[2026] SASCA 31

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE FULLER) DCCRM-23-045352 Appellant/Respondent: THE KING Counsel: MS T COSTI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) First Respondent/Appellant: BEDHANE TARIKA BEKELE No Attendance Second Respondent/Appellant: BESUFIKAD YEBELTHAL HAILE No Attendance Third Respondent: SADAM HUSSEIN ISSAK Counsel: MR A CULSHAW WITH MR O MORRIS - Solicitor: WILLIAMS BARRISTERS AND SOLICITORS Hearing Date/s: 23/03/2026 File No/s: SCCRM-25-026189; SCCRM-25-026854; SCCRM-25-036291 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v BEKELE & ORS; HAILE v THE KING; BEKELE v THE KING (No 2) [2026] SASCA 31 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David) 2 April 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL On 13 February 2026, the South Australian Court of Appeal granted the Director’s application for leave to appeal against certain directed acquittals, allowed the appeal and quashed the acquittals the subject of challenge. Orders reflecting its judgment were entered. Those orders erroneously included an order quashing the acquittal of the respondent Issak on Count 7 on the information. That order did not reflect the Court’s intention as explained in its reasons. Held (by the Court), recalling Order 3 of the Court’s orders of 13 February 2026 and substituting an order quashing the acquittals on Counts 2, 6 and 7 for Bekele, Counts 5 and 7 for Haile and Counts 2, 3, 5 and 6 for Issak: 1. The Court’s intention, as apparent from its reasons, was that Issak’s acquittal on Count 7 should not be disturbed. 2. The Court has power to recall and correct the order in order to do justice and give effect to its intention. Sentencing Act 2017 (SA) s 20, referred to. -- 1 of 5 -- Burrell v The Queen (2008) 238 CLR 218; DJL v The Central Authority (2000) 201 CLR 226; R v De Zylva (1988) 38 A Crim R 207, discussed. L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590; Rajunder Narain Rae v Bijai Govind Sing (1839) II Moo Ind App 181; Ainsworth v Wilding [1896] 1 Ch 673; Thynne v Thynne [1955] P 272 at 313; Postiglione v R (1996) 189 CLR 295; Jovanovic v R (1999) 92 FCR 580; R v AN (No 2) (2006) 66 NWSLR 523; R v Bekele & Ors; Haile v The King; Bekele v The King [2026] SASCA 9, considered. -- 2 of 5 -- R v BEKELE & ORS; HAILE v THE KING; BEKELE v THE KING (No 2) [2026] SASCA 31 Court of Appeal – Criminal: Kourakis CJ, Bleby and David JJA 1 THE COURT: On 13 February 2026, the Court delivered judgment in this matter, granting the Director’s application for leave to appeal against certain directed acquittals, allowing the appeal and quashing the acquittals the subject of challenge.1 Relevantly, Order 3 of the Court’s orders read as follows: 3. The Court quashes the acquittals on Counts 2, 6 and 7 for Bekele, Counts 5 and 7 for Haile and Counts 2, 3, 5, 6 and 7 for Issak. 2 The inclusion of Count 7 in the counts to be quashed in respect of the respondent Issak was done in error. As the Court observed in the table included at paragraph [45] of the reasons of Bleby and David JJA, the prosecution had conceded that there was no case to answer for Issak on this count. There was no dispute at the hearing of the appeal that the acquittal of Issak on this count was correct. 3 The joint reasons at paragraph [49] then limited the issue of the quashing of the acquittal on Count 7 to the respondents Bekele and Haile. The Court’s summary of the evidence in respect of Count 7 at paragraphs [86]-[94] omits any reference to the respondent Issak, there being no evidence that he was present. It was in the Court’s foreshadowing of the orders to be made, in its conclusion at paragraph [164], that the quashing of the acquittal on Count 7 in respect of Issak was erroneously included. The reasons repeated that error in the final paragraph setting out the orders to be made. 4 Chief Justice Kourakis’s separate reasons for judgment at paragraph [2] erroneously repeated the inclusion of Count 7 with respect to Issak. Those reasons also erroneously referred, at [35(i)], to evidence of Issak’s presence during the events the subject of Count 7. Again, as the Director had conceded, there was no evidence Issak was present at that time. 5 In summary, the inclusion of Count 7 occurred in the joint reasons only mistakenly when announcing the orders to be made. That inclusion did not reflect the intention of the Court as explained in its reasons. The separate reasons of Kourakis CJ repeated that error and misstated the uncontested effect of the evidence. 6 When the Court became aware of the error, it notified the parties of its proposal to call the matter on and invited submissions from counsel for the respondent Issak and the Director. Counsel for Issak provided helpful written submissions. On consideration of those submissions, the Court reached the preliminary view that it had power to correct the order. At the oral hearing, it 1 R v Bekele & Ors; Haile v The King; Bekele v The King [2026] SASCA 9. -- 3 of 5 -- [2026] SASCA 31 The Court 2 advised the parties of its preliminary view and invited any submissions to the contrary. Neither party sought to be heard further in light of the Court’s intimation. The Court then ordered as follows: 1. Order 3 of the Court’s orders of 13 February 2026 is recalled, and in its place, the Court orders as follows: 3. The Court quashes the acquittals on Counts 2, 6 and 7 for Bekele, Counts 5 and 7 for Haile and Counts 2, 3, 5 and 6 for Issak. 7 These are the Court’s reasons for making that order. 8 The inclusion of Count 7 in Order 3 with respect to the respondent Issak did not reflect the Court’s intention as manifested in the Court’s reasons, as set out earlier. As a superior court of record, the Supreme Court has the power to correct an accidental slip insofar as to do so gives effect to its intention. However, that power is strictly confined. In Burrell v The Queen,2 the High Court said:3 Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court. The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order4 provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded. (Footnote in original.) 9 In DJL v The Central Authority,5 Kirby J observed that ordinarily, the slip rule:6 … is limited to correction of the formal record for accidental mistakes or omissions of no substantive significance. Similarly, when it can be shown that a court order does not correctly reflect the court's decision as contained in its reasons, rectification of the order is viewed as nothing more than a mechanical task7. (Footnote in original.) 2 (2008) 238 CLR 218. 3 Burrell v The Queen (2008) 238 CLR 218 at [20]-[21] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ). 4 L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595. 5 (2000) 201 CLR 226. 6 DJL v The Central Authority (2000) 201 CLR 226 at [93]. 7 Rajunder Narain Rae v Bijai Govind Sing (1839) II Moo Ind App 181 at 216, 222-223 [18 ER 269 at 282, 285], per Lord Brougham; Ainsworth v Wilding [1896] 1 Ch 673 at 677; Thynne v Thynne [1955] P 272 at 313. -- 4 of 5 -- [2026] SASCA 31 The Court 3 10 There has been some debate over whether the slip rule applies in the criminal jurisdiction.8 Legislation and Rules of Court sometimes make specific provision. For example, in South Australia, s 20 of the Sentencing Act 2017 (SA) makes specific provision for the rectification of sentencing errors. Nevertheless, in R v De Zylva,9 the Victorian Court of Criminal Appeal observed that:10 … any court has an inherent jurisdiction to correct any judgment or order which owing to error does not give effect to what the court intended to do. It is a power which is essential to ensure that justice is done. It is not possible pursuant to the power to vary an order which the court intended to make but an error in an order can be corrected so as to do justice and to give effect to the court’s intention. 11 Ultimately, and certainly since Burrell,11 it is clear that the Court has power in the exercise of its inherent jurisdiction to correct an order in a criminal matter in order to give effect to its intention. 12 In this matter, the Court’s intention, as apparent from its reasons, was that Issak’s acquittal on Count 7 should not be disturbed. The only reference in the joint reasons to the contrary was in the actual formulation of the orders to be pronounced. The reasons for judgment themselves made clear that the acquittal on Count 7 was not challenged. 13 The reasons of Kourakis CJ adopted the evaluation of the evidence in the joint reasons, including that with respect to Count 7.12 Chief Justice Kourakis’s inclusion of the words, at [35(i)], ‘in Issak’s presence’ was contrary to the factual summary in the joint reasons and the evidence. It occurred in Kourakis CJ’s consideration of the evidence of the fault element by accessories, referring back to the analysis of the evidence in the joint judgment. The indicated words, ‘in Issak’s presence’ misstated that analysis. In that context, the words were a slip that did not give effect to the Court’s understanding or intention. 14 For these reasons, the Court was satisfied that in order to do justice and give effect to its intention, it was appropriate to order as indicated. 8 See, e.g., Postiglione v The Queen (1997) 189 CLR 295 at 319 (Gummow J); Jovanovic v The Queen (1999) 92 FCR 580 at 585 (Wilcox, Miles and Weinberg JJ) and, generally, John Tarrant, Amending Final Judgments and Orders (Federation Press, 2010) at 177-181. 9 (1988) 38 A Crim R 207. 10 R v De Zylva (1988) 38 A Crim R 207 at 208 (Young CJ). See also R v AN (No 2) (2006) 66 NWSLR 523 at 530 (James J). 11 Burrell v The Queen (2008) 238 CLR 218. 12 R v Bekele & Ors; Haile v The King; Bekele v The King [2026] SASCA 9 at [2] (Kourakis CJ). -- 5 of 5 --