Bruce Edward Gall v R (No 2) [2015] NSWCCA 152

Bruce Edward Gall v R (No 2) [2015] NSWCCA 152

The Court held that even if there were a misapprehension of fact regarding the transcript, it was attributable solely to the applicant’s neglect or default, since the issue could and should have been raised at trial or during the original appeal but was not. The application amounted to an impermissible attempt to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 June 2015
Procedural Posture
Criminal Appeal / Application to Vary Orders Under Rule 50 C of the Criminal Appeal Rules
Outcome
Application dismissed
Legal Topics
['criminal Appeals' 'finality of Litigation' 're Opening Appeals' 'misapprehension of Fact or Law']
['criminal Law'] ['criminal Appeals' 'finality of Litigation' 're Opening Appeals' 'misapprehension of Fact or Law']

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Procedural Posture

Criminal Appeal / Application to Vary Orders Under Rule 50 C of the Criminal Appeal Rules

Legal Issues

  1. 1 ['Whether there was a misapprehension of fact in the principal judgment regarding the accuracy of a transcript relied upon in the underlying appeal against conviction' 'Whether such a misapprehension, if any, materially affected the earlier judgment to the extent necessary to justify reopening under Rule 50C' 'Whether any such misapprehension was due solely to the neglect or default of the applicant']

Ratio Decidendi

The Court held that even if there were a misapprehension of fact regarding the transcript, it was attributable solely to the applicant’s neglect or default, since the issue could and should have been raised at trial or during the original appeal but was not. The application amounted to an impermissible attempt to re-argue the original appeal on a new basis, which is not permitted under Rule 50C. The finality of litigation and principles governing reopening of appeals require a high threshold, which was not met in this case.

Court Disposition

Application dismissed

Orders

  • ['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 is dismissed.']