Pensees d’escalier

An illustration of how the principle of finality in litigation can prevent a superior court of record from correcting its errors after the necessary formal administrative step has been taken by the registry to complete (“perfect”) the proceedings, is Burrell v R [2008] HCA 34 (31 July 2008).

The High Court unanimously held that the Court of Criminal Appeal (NSW) could not correct the facts it had relied on in its lengthy judgment which dismissed the appellant’s appeal against convictions for murder and kidnapping. The facts had been erroneously summarised in a document which had been included with the appellant’s submissions. The appellate court as a result had a false understanding of some of the evidence. An official in the registry had taken the steps necessary to finalise the appellate court’s order, but this had been done with what Kirby J, in a separate concurring judgment, considered to be arguably “needless speed” (83). Had this not been done so quickly, counsel would have had an opportunity, of the sort that commonly arises when appeal judgments are delivered ex tempore, to offer the court an opportunity to correct and, if necessary, reconsider.

The principle of finality has the purposes of (16) protection of the parties from attempts to re-litigate decided matters, of spurring the court and the parties to get it right the first time, and to spare the parties and the court of the time and expense of a revisiting of the issues. There is additionally (20) the need to be able to be certain about what the result of a case is. (A subsequent amendment to the Rules here allows error correction within 14 days: para 30.)

Kirby J remembered the pressures under which the Court of Appeal conducts its business (78-80), and pointed to the difficulties that may be faced in correcting errors on appeal, where the proviso may be applied (81-82, 89-90) and the attitude of the prosecution to error correction may not be as co-operative as it should be (91-92). Criminal cases have become more complex, submissions more detailed, and decisions longer (84-85) than had been the case when appeals were more commonly disposed of in oral decisions. The difficulty in this case would not have arisen if the official in the registry had not acted so quickly.

We are not told here what the errors of fact had been, and to what extent they may have prejudiced the appellant. The High Court was dealing simply with the jurisdictional point concerning the power to correct error, and the case was remitted to the Court of Appeal for rehearing.


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