Bruce Edward Gall v R (No 2)

HOEBEN CJ at CL:

By letter dated 30 April 2015 the applicant made an application to re-open the appeal in this Court pursuant to Rule 50C of the Criminal Appeal Rules. Rule 50C provides:

In order to understand the applicant’s submissions, it is necessary to set out [172] – [183] of the principal judgment:

The applicant’s submissions were based on those paragraphs. The particular focus was on the conversation between the applicant, Kevin Gall and Peter Van Straalen at [175]. The conversation had been recorded on a listening device on 19 June 2010, some two months after the shooting of the deceased. The recording was tendered at the trial as exhibit AB (T.291) and a transcript of the recording as exhibit AC (T.291.40).

The applicant submitted that at [178] of the judgment there had been a “misapprehension of the facts” when it was stated that “exhibit AC was accepted as an accurate transcription of what the listening device was able to pick up and was tendered without objection”. The applicant submitted that it was incorrect to say that the tender of exhibit AC was made without objection because there were significant qualifications associated with the tender. The applicant noted that the jury was told:

The applicant submitted that the extract from p 20 of exhibit AC, which was set out at [175] of the judgment and which was in part relied upon for a conclusion that the proviso applied, was incorrect in a significant way. The applicant submitted that when one listened to the recording (exhibit AB), the error in the transcription became obvious and was even more obvious when an enhanced audio analysis of the recording was carried out.

Based on the enhanced audio analysis, the applicant submitted that the relevant part of p 20 of exhibit AC should have read:

The underlined portions are those which differ from p 20 of exhibit AC.

The applicant submitted that this evidence, if correct, undermined in a significant way the reasoning supporting the application of the proviso in the applicant’s appeal against conviction. The applicant submitted that this was because the evidence from the listening device would not support the conclusion that the applicant had told Van Straalen that the intruders were not armed at the time of the shooting. Instead it would support the conclusion that he had in fact confirmed that the men, or at least one of them, were armed.

The applicant conceded that this issue was not raised by those appearing for him at trial and in the appeal. He explained that by saying that until the handing down of the Court’s judgment the significance of the new material to the success or failure of his appeal was not appreciated by his legal advisers. The applicant submitted that on a matter of such significance it was essential that the evidence of the recording itself, and any other evidence that might cast doubt on the accuracy of p 20 of exhibit AC, should be the subject of careful examination and evaluation by the Court. The applicant submitted that the transcript was no more than an aid memoire and that even if there had been a general acceptance of its accuracy at trial and during the appeal, the fact that evidence had subsequently emerged which cast a doubt on the accuracy of that transcript could not be ignored.

The applicant submitted that the evidence of Kevin Gall at T.467.4 of the trial transcript, as referred to at [178] of the principal judgment, was not decisive on this issue. On that issue, the applicant relied on the evidence of Kevin Gall at T.503-4 which he submitted placed considerable doubt on the reliability of the earlier evidence in that it was obvious from the later trial transcript that Kevin Gall did not have a recollection of the detail of the conversation between the applicant and Van Straalen. The applicant noted that when this evidence was given no attempt was made to play the recording. There was simply a reliance on the content of p 20 of exhibit AC. The applicant submitted that because Kevin Gall was being asked more than two years later to comment on what he (the applicant) had actually said in June 2010, his evidence on this issue was equivocal and had little probative value. The applicant submitted that this was particularly so when the actual recording was available and could be listened to.

The applicant submitted that this Court should re-open the appeal proceedings, listen to the actual recording of p 20 of exhibit AC and receive into evidence the affidavit of Ali Abbas, dated 10 April 2015. (Mr Abbas was the solicitor for Kevin Gall who forwarded the unsolicited affidavit to the Court annexing an enhanced audio recording of p 20 of exhibit AC which is referred to at [177] of the principal judgment.) The applicant submitted that this Court should have regard to both the actual recording of the listening device (exhibit AB) and to the enhanced audio analysis of that recording, together with the revised transcript of the conversation at p 20 of exhibit AC.

The Court of Criminal Appeal was established by the Criminal Appeal Act 1912 (NSW) and subsequent amendments. Its jurisdiction is confined within the limits of the Act and when the Court has heard an appeal on its merits and given its decision, the appeal cannot be re-opened. This is subject only to the rules of court which allow an appeal to be revisited if an application is made within the time prescribed by the rules.

The principle of finality has a significant role to play in the proper disposal of appeals. Re-arguing or re-agitating issues which have already been decided by a court involves an unacceptable and unavailable departure from the principle of finality.

In Burrell v The Queen [2008] HCA 34; 238 CLR 218 the plurality (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ) said:

Rule 50C was introduced by the Criminal Appeal Rules (Amendment No 1) No 455 of 2007 and came into operation in September 2007. The explanatory note in the Government Gazette when the amending rules were published reads as follows:

The genesis of the rule was the problem which arose in Burrell. The Court of Criminal Appeal in Burrell had occasion to consider its power to re-visit a decision made on an erroneous view of the facts. The court held that in the circumstances of that case it did have such power, but the circumstances and authorities referred to made obvious the advantage of putting the matter beyond doubt by the creation of a Rule. In fact the Court of Criminal Appeal’s decision as to the existence of such a power was overruled by the High Court in Burrell.

The first consideration of the rule occurred in Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69. The Court of Criminal Appeal had previously dismissed the applicant’s appeal against conviction (Alramadan v DPP (NSW) [2007] NSWCCA 322). The basis of the application under Rule 50C was the availability of two further statements made by medical witnesses for the accused. There was a statement from Dr Nicholls, an orthopaedic surgeon, to the effect that the applicant would have had great difficulty in climbing onto the examination table in his surgery and having sexual intercourse with the complainant in the manner alleged. The other statement was from Dr White to the effect that although semen from the applicant was found on a “high vaginal swab” obtained from the complainant, such could occur otherwise than through “normal intercourse”.

The evidence of those doctors had been ruled inadmissible at trial and the applicant had not put that material before the Court of Criminal Appeal. Following the dismissal of his appeal, the applicant sought to rely upon Rule 50C as a basis for re-opening the appeal and adducing that further evidence.

When considering the application the Court of Criminal Appeal (Basten JA with whom Latham and Rothman JJ agreed) concluded that the broad terms of the explanatory note needed to be seen in the light of the remarks of Dixon J in Grierson v R [1938] HCA 45; 60 CLR 431 at 436 in the passage cited with approval in Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 234 CLR 38 at [7]. There Dixon J addressed the effect of the Criminal Appeal Act 1912 at p 436:

Basten JA said:

The approach of the Court of Criminal Appeal in Alramadan (No 2) was affirmed in Kauwenberghs v R [2009] NSWCCA 201. In that matter the applicant pleaded guilty in the District Court to an indictment containing five drug related counts and was sentenced on 5 May 2006. The applicant successfully appealed against the severity of his sentence and was re-sentenced. The applicant then sought to vary those orders as provided for in Rule 50C. The basis for the application was that the court did not have before it the applicant’s grounds of appeal and the written submissions he prepared but instead had the grounds of appeal and written submissions prepared by his former lawyers, both of which he had specifically abandoned when he assumed the conduct of the appeal himself. The Court had determined the appeal based upon his former lawyers’ submissions and the grounds of appeal filed by them.

The Court (Beazley JA, Hall and Fullerton JJ) concluded that none of the issues or grounds pursued by the applicant on the appeal were overlooked or were the subject of a misapprehension of the kind that enlivened the exercise of the Court’s power under Rule 50C. The Court said:

In R v AB (No 2) [2011] NSWCCA 256 the Court (Bathurst CJ, Hoeben and Johnson JJ) considered the application of Rule 50C. The facts were that the Court had given judgment in a Crown appeal allowing the appeal and making orders which effectively increased the period of imprisonment (R v AB [2011] NSWCCA 229). Two errors in the judgment were subsequently brought to the attention of the Court.

The errors were that a slip had been made in the calculation of the period of aggregation of the notional sentences creating a three month gap between the expiry of the sentence on count 3 and the commencement of the sentence on count 4, during which period the offender would not be serving a sentence. Secondly, it was not open to the Court to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 because s 53A did not apply to sentences for offences in respect of which a plea of guilty had been entered before the commencement of that section.

Both the Crown and the offender requested the Court to make orders under Rule 50C to overcome the agreed errors. The Court held that both of those issues constituted a misapprehension of fact or law not solely attributable to the parties which materially affected the Court’s judgment in the appeal and that it was appropriate for orders to be made under Rule 50C to remedy the position.

The Court most recently considered Rule 50C in PFC v R (No 2) [2014] NSWCCA 241. There the Court (Fullerton, R A Hulme and Garling JJ) reviewed previous authorities and said:

By reference to those decided cases, Rule 50C is of limited application with an emphasis on correcting obvious mistakes in language used or results that did not reflect the intention of the Court. Rule 50C has been used:

Three of the cases discussed above involved the applicant seeking orders which amounted to an appeal against the Court of Criminal Appeal’s decision. In Alramadan (No 2) the Court took the view that the applicant was seeking to re-open the appeal so as to remedy deficiencies in the material presented at the hearing and held that such an approach “would appear to fall squarely within the impermissible purpose of seeking “by a back door method” to re-argue an unsuccessful appeal”. It could not be justified on the criteria explained by Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300; Alramadan (No 2) at [12].

In Kauwenberghs the Court did not consider that any of the issues in the grounds pursued by the applicant had been overlooked or were the subject of a misapprehension of a kind that enlivened the exercise of the Court’s power under Rule 50C. Similarly, in PFC it was held that the substance of the oral submissions was an attempt to re-argue the appeal and the entirety of the submissions did not demonstrate any misapprehension of fact or law in the first judgment.

The misapprehension of fact relied upon by the applicant is that the Court mistakenly concluded that p 20 of exhibit AC was an accurate record of what was said and by whom. There are a number of difficulties with that submission.

The Crown does not accept that the transcript at p 20 of exhibit AC is incorrect and asserts that the recording exhibit AB was correctly transcribed and in particular, that the recording does not contain a response by the applicant to the effect of “yeah he had it on him”. The Crown submitted that not only were those words not used by the applicant in the recorded conversation but that such words were quite inconsistent with the tenor of the conversation. Accordingly, the asserted misapprehension of fact is a matter in dispute.

The accuracy of p 20 of exhibit AC was never an issue at trial. Not only was it not an issue, it was accepted by all parties as accurate. Kevin Gall’s counsel asked him questions with specific reference to p 20 of exhibit AC. Implicit in the questions was the accuracy of that transcript (T.467). Similarly, the Crown cross-examined Kevin Gall with specific reference to p 20 of exhibit AC. Again, implicit in those questions was the accuracy of the transcript on which he was cross-examined (T.503.-4). Most significantly counsel for the applicant (who did not give evidence in the trial) said at the beginning of his closing address “He does not dispute that Kevin Gall shot dead Neil Green. He does not dispute that Neil Green was at the time not armed” (T.621).

The recording (exhibit AB) was played to the jury during the trial. No part of its transcription, which became exhibit AC, was disputed.

During the appeal, no point was taken as to the accuracy of p 20 of exhibit AC. Its accuracy was accepted. In oral submissions, senior counsel for the applicant made a submission which assumed its accuracy (appeal transcript T.15). The first indication that any part of p 20 of exhibit AC might be inaccurate was in the affidavit of Mr Abbas of 10 April 2015. Mr Abbas, of course, was retained by Kevin Gall not the applicant. The purpose of that issue being raised on behalf of Kevin Gall was never made clear since it was irrelevant to any of the issues raised by him on the appeal. Significantly, even at that late stage no challenge to the accuracy of p 20 of exhibit AC was made by the applicant.

Another problem with the asserted misapprehension of fact is that if p 20 of exhibit AC should be read as the applicant asserts, it would be the only evidence to that effect in the trial. It would be inconsistent with the interpretation of the conversation accepted by him at trial, inconsistent with the evidence at trial, particularly that of Kevin Gall and inconsistent with the position adopted by him through his counsel at trial. There was no evidence that the deceased or Fox had firearms. On the contrary, the evidence of Kevin Gall was that they did not have firearms (T.466, 467, 510).

In those circumstances, I am not satisfied that there has been a misapprehension of fact as required by Rule 50C. The correct characterisation of what the applicant is seeking to do is to re-open the appeal so that he can raise matters which could and should have been raised at trial and on appeal but were not. The effect of the applicant being allowed to do so would be to re-argue the appeal on a different basis to that adopted by the applicant, both at trial and on the appeal.

There is another problem with this application. If it be the case that there has been a misapprehension of fact of the kind that would engage Rule 50C, that misapprehension can be attributed solely to the neglect or default of the applicant. If in the trial, or even in the appeal, the applicant wished to raise as an issue that he had a genuine belief that either or both the deceased and Fox had a firearm, he could and should have done so. There was nothing to stop the applicant, or his legal advisers, both at trial and in the appeal from listening carefully to any relevant parts of exhibit AB and making submissions thereon. That was not done. It follows that any misapprehension of fact by the Court at the hearing of the appeal was solely due to the manner in which the applicant ran his case.

The order I propose is that the application pursuant to Rule 50C of the Criminal Appeal Rules to vary the orders made by the Court of Criminal Appeal on 20 April 2015 be dismissed.

R A HULME J: I agree with Hoeben CJ at CL.

DAVIES J: I agree with Hoeben CJ at CL.