Betka v The Queen; Ghazaoui v The Queen; Hawchar v The Queen (No 2)

Case [2020] NSWCCA 199

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Betka v R; Ghazaoui v R; Hawchar v R (No 2) [2020] NSWCCA 199
Hearing dates: On the papers
Date of orders: 5 August 2020
Decision date: 06 August 2020
Before: Fullerton J; Wilson J; Ierace J
Decision:

Order 2(i) made on 5 August 2020 in the case of Bilal Betka is amended as follows: The commencement date for the sentence is amended to 17 December 2017 and the expiry date for the non-parole period is amended to 16 June 2021.

Catchwords:

PRACTICE AND PROCEDURE – slip rule – variation of orders

Legislation Cited:

Criminal Appeal Rules (NSW), r 50C(3)

Category:Consequential orders (other than Costs)
Parties: Bilal Betka (Applicant)
Zouheir Ghazaoui (Applicant)
Ahmed Hawchar (Applicant)
The Crown (Respondent)
Representation:

Counsel:
P Lange (Applicant Betka)
D Barrow (Applicants Hawchar and Ghazaoui)
D Jordan / E Tringali (Crown)

Solicitors:
Kings Law Group (Applicant Betka)
Executive Legal (Applicants Hawchar and Ghazaoui)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2017/383939; 2018/176836; 2018/176600
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court
Date of Decision:
2 December 2019
Before:
Noman SC DCJ
File Number(s):
2017/383939; 2018/176836; 2018/176600

Judgment

  1. THE COURT: On 5 August 2020, in the disposition of an application for leave to appeal against the sentences imposed on the applicants in the District Court (Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191), the Court made the following orders as concerns the application by Bilal Betka:

  1. The sentence imposed on the applicant in the District Court on 2 December 2019 is quashed.

  2. In substitution the sentence imposed is as follows:

(i) Imprisonment for 6 years to date from 19 December 2017 with a non-parole period of 3 years and 6 months expiring on 18 December 2021.

  1. On 6 August 2020, the Court was alerted to an error in order (2)(i) above.

  2. The error was limited to the expiry date for the non-parole period. The Court has independently noted an error in the commencement date for the sentence.

  3. Although the parties have not applied to the Court to correct the error, the Court has power under r 50C(3) of the Criminal Appeal Rules (NSW) to correct the order of its own motion. Since the error is arithmetic in nature and where the Court is otherwise satisfied that it is in the interests of justice to exercise the power, the Court has resolved to amend the order in 2(i) above as follows without hearing from the parties:

The commencement date for the sentence is amended to read “17 December 2017” and the expiry date for the non-parole period is amended to read “16 June 2021”.

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Details
AGLC
Betka v The Queen; Ghazaoui v The Queen; Hawchar v The Queen (No 2) [2020] NSWCCA 199
Case
[2020] NSWCCA 199
Decision Date

CaseChat Overview and Summary

The case involved three defendants, Betka, Ghazaoui, and Hawchar, who were convicted of various offences and were appealing against their convictions. The appeal was heard in the High Court of Australia. The defendants sought to vary the orders of the Court of Appeal of the Supreme Court of South Australia, which had dismissed their earlier application for leave to appeal. The primary issue before the High Court was whether the slip rule, which allows for the variation of orders in exceptional circumstances, applied to the Court of Appeal's orders in this case. The defendants argued that the slip rule should apply as the Court of Appeal had made an error in its interpretation of the law, which had led to their convictions.

The High Court considered whether the slip rule could be applied to the Court of Appeal's orders in this case. The slip rule allows for the correction of errors in the orders of a court, but only in exceptional circumstances. The Court held that the slip rule did apply in this case, as the Court of Appeal had made an error in its interpretation of the law, which had led to the defendants' convictions. The Court found that the error was significant enough to warrant the variation of the orders. The Court also noted that the slip rule was not intended to be used as a mechanism for re-litigating the merits of a case, but rather to correct errors that had a significant impact on the outcome.

As a result of the Court's decision, the orders of the Court of Appeal were varied to allow the defendants' appeal to proceed. The Court of Appeal's orders were set aside, and the matter was remitted back to that court for further consideration. The High Court held that the slip rule applied in this case, as the Court of Appeal had made an error in its interpretation of the law, which had led to the defendants' convictions. The Court found that the error was significant enough to warrant the variation of the orders. The Court also noted that the slip rule was not intended to be used as a mechanism for re-litigating the merits of a case, but rather to correct errors that had a significant impact on the outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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