PFC v R (No.2) [2014] NSWCCA 241

PFC v R (No.2) [2014] NSWCCA 241

The application failed because PFC did not demonstrate that the first Court proceeded on any material misapprehension of fact or law. His complaints about fraud, custody conditions, access to documents, additional tender documents, trial representation, Count 12, and the application of SKA either did not identify a misapprehension in the first judgment, relied on material not before the first Court, or amounted to an impermissible attempt to reargue the dismissed conviction appeal. The apprehended bias objection also failed because the case management remark referring to Achurch was made in open court to ensure comprehensive submissions and would not cause a fair-minded lay observer...

Jurisdiction
Australia
Judgment Date
30 October 2014
Procedural Posture
Criminal Appeal Procedure Application / Application Pursuant to Rule 50 C of the Criminal Appeal Rules to Vary Orders Dismissing Conviction Appeal; Application for Reconstitution of Court Also Considered
Outcome
Application dismissed.
Legal Topics
['rule 50 C of the Criminal Appeal Rules' 'apprehended Bias' 'reconstitution of the Court' 'finality of Litigation' 'misapprehension of Fact or Law' 'fresh Evidence' 'unsafe or Unsatisfactory Convictions' 'competence of Trial Representation']
['criminal Law' 'criminal Appeal Procedure'] ['rule 50 C of the Criminal Appeal Rules' 'apprehended Bias' 'reconstitution of the Court' 'finality of Litigation' 'misapprehension of Fact or Law' 'fresh Evidence' 'unsafe or Unsatisfactory Convictions' 'competence of Trial Representation']

Case Brief

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Procedural Posture

Criminal Appeal Procedure Application / Application Pursuant to Rule 50 C of the Criminal Appeal Rules to Vary Orders Dismissing Conviction Appeal; Application for Reconstitution of Court Also Considered

Legal Issues

  1. 1 ['Whether remarks made by Garling J during a case management hearing gave rise to a reasonable apprehension of bias requiring reconstitution of the Court.' 'Whether the Court of Criminal Appeal had proceeded on a material misapprehension of fact or law in its judgment delivered on 15 December 2011.' 'Whether the applicant could use Rule 50C of the Criminal Appeal Rules to rely on documents not tendered at trial or put before the first Court as fresh evidence.' 'Whether the first Court misapprehended or misapplied the law concerning unsafe or unsatisfactory convictions, including the principles in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.' 'Whether complaints about access to documents, custody conditions, alleged fraud by complainants, and competence of trial lawyers justified varying the orders dismissing the conviction appeal.']

Ratio Decidendi

The application failed because PFC did not demonstrate that the first Court proceeded on any material misapprehension of fact or law. His complaints about fraud, custody conditions, access to documents, additional tender documents, trial representation, Count 12, and the application of SKA either did not identify a misapprehension in the first judgment, relied on material not before the first Court, or amounted to an impermissible attempt to reargue the dismissed conviction appeal. The apprehended bias objection also failed because the case management remark referring to Achurch was made in open court to ensure comprehensive submissions and would not cause a fair-minded lay observer...

Court Disposition

Application dismissed.

Orders

  • ['Application pursuant to Rule 50C of the Criminal Appeal Rules to vary the orders entered by the Court of Criminal Appeal on 15 December 2011 dismissed.']