Corliss v R (No 2)

[2020] NSWCCA 180

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Corliss v R (No. 2) [2020] NSWCCA 180

Hearing dates:

On the papers

Date of orders:

29 July 2020

Decision date:

29 July 2020

Before:

Brereton JA at [1]
Johnson J at [5]
Lonergan J at [67]

Decision:

Applicant’s Notice of Motion dated 20 April 2020 dismissed.

Catchwords:

CRIME – sentence appeal – application under r 50C Criminal Appeal Rules to set aside judgment and orders – jurisdiction to reconsider appeal – application misconceived – applicant seeks to have dissenting judgment replace majority judgment on appeal – leave refused

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Criminal Appeal Act 1912

Cases Cited:

Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69

Application of Ainsley Whitney [2020] NSWCCA 146

Application of Malcolm Potier (No. 3) [2015] NSWCCA 306

Baghdadi v R (No 2) [2012] NSWCCA 77

Corliss v R [2020] NSWCCA 65

Dickson v R (No. 2) [2018] NSWCCA 183

El Ali v R (No. 2) [2019] NSWCCA 289

R v Previtera (1997) 94 A Crim R 76

Simmons v R (No. 2) [2020] NSWCCA 29

Texts Cited:

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Category:

Procedural and other rulings

Parties:

Patrick Joseph Corliss (Applicant)
Regina (Respondent)

Representation:

Counsel:
Applicant self-represented (Applicant)
A Kelly, solicitor (Respondent)

File Number(s):

2016/324737

Publication restriction:

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Judgment

1. BRERETON JA: I have had the benefit of reading, in draft, the judgment to be delivered by Johnson J, in which the relevant principles applicable to the consideration of applications under Rule 50C of the Criminal Appeal Rules are summarised.

2. It will be apparent, from my judgment in the appeal, that it is my view that the sentencing judge made an error, in the nature of a slip, in failing to give effect in the sentence imposed to the intent which her Honour had expressed: see Corliss v R [2020] NSWCCA 65 at [8]. Such a ‘slip’ might have been amenable to correction by the sentencing judge under the slip rule, but could also be corrected on appeal, as in my (minority) view it ought to have been.

3. However, it does not follow that there was a ‘slip’ in this Court’s decision, such as to warrant intervention under the slip rule or under Rule 50C. Each member of this Court considered Ground 3, which expressly contended that the sentencing judge failed to give effect in the sentence imposed to the intention which her Honour had expressed. That the majority did not agree with my analysis of that issue does not mean that there was any “slip” in the judgment of this Court, or any failure to address a ground of appeal, or any such “misapprehension of the facts or the relevant law” as to justify intervention under Rule 50C: see Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69; Baghdadi v R (No 2) [2012] NSWCCA 77; El Ali v R (No 2) [2019] NSWCCA 289; Application of Ainsley Whitney [2020] NSWCCA 146.

4. I otherwise agree with the reasons of, and the orders proposed by, Johnson J.

5. JOHNSON J: On 8 April 2020, the Court, as presently constituted, granted the Applicant, Patrick Corliss, leave to appeal against sentence and (by majority) dismissed his appeal: Corliss v R [2020] NSWCCA 65.

6. The appeal had been heard on 14 August 2019. The Applicant was represented at the hearing of the appeal by counsel instructed by the Legal Aid Commission of NSW.

7. Following the hearing, but before judgment was delivered, the Registrar of the Court of Criminal Appeal received a Notice of Motion dated 23 August 2019 which had been lodged by the Applicant personally and not by his legal representatives. When delivering judgment, the Court unanimously declined to receive and consider the Applicant’s Notice of Motion which had been filed at a time when the Applicant was still legally represented, but where his legal representatives did not seek to advance the matters raised by the Notice of Motion.

The Present Application

8. By Notice of Motion dated 20 April 2020, the Applicant, now self-represented, sought the following orders under Rule 50C Criminal Appeal Rules (“Rule 50C Application”):

“(1)   The decision of the Court, to dismiss the appeal, be set aside.

(2)   The determination of Brereton J, that there was a slip by the sentencing judge, be adopted and dealt with according to law.

(3)   The reasoning of Brereton J be adopted and the sentence reduced accordingly.

(4)   The applicant's Notice of Motion dated 23 August 2019 be received by the Court and properly dealt with according to proper practice and procedure.

(5)   The applicant be granted leave to file an appeal against conviction.”

9. The Applicant, who states that he is a retired accountant, supported his application with an affidavit dated 20 April 2020 containing detailed written submissions which sought, amongst other things, to challenge the decision of the majority and support the conclusions in the dissenting judgment of Brereton JA.

10. In accordance with usual practice, the Crown was provided with an opportunity to respond to the Applicant’s submissions. Written submissions for the Crown dated 18 May 2020 were furnished to the Court and served upon the Applicant.

11. On 26 June 2020, the Applicant provided a further affidavit containing detailed and wide-ranging written submissions said to be in reply to the Crown submissions.

Rule 50C Criminal Appeal Rules

12. Rule 50C Criminal AppealRules states:

“50C    Power to set aside or vary order (cf UCPR rule 36.16)

(1)    The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.

(1A)    An application to set aside or vary an order may only be made with the leave of the Court.

(1B)    The Court may determine both whether to grant leave and the application on the papers.

(2)    If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.

(3)    Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.

(4)    The Court may not extend the time limited by subrule (2) or (3).

(5)    Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions).”

13. The source of jurisdiction under Rule 50C(2) Criminal Appeal Rules, and its history, were considered by this Court (Basten JA, Simpson AJA, N Adams J) in El Ali v R (No. 2) [2019] NSWCCA 289 at [4]-[19], with the Court considering as well (at [20]-[22]) the requirement for leave under Rule 50C(1A).

14. In Simmons v R (No. 2) [2020] NSWCCA 29, the Court (Macfarlan JA, Adamson and Beech-Jones JJ) said at [6]:

“The failure of this court to address a ground of appeal may constitute a basis for leave to be granted under r 50C: Baghdadi v R (No 2) [2012] NSWCCA 77. However r 50C does not permit a party to re-agitate an unsuccessful appeal or seek to argue it differently in the hope of obtaining a different result: Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554 at [48]-[53] (Beazley P, Fullerton and Hamill JJ).”

15. Rule 50C Criminal Appeal Rules cannot be used where the application amounts to an appeal against the decision of the Court in the appeal and it does not confer jurisdiction to rehear an appeal on its merits: Application of Ainsley Whitney [2020] NSWCCA 146 at [36] (Meagher JA, Harrison and Button JJ). It is impermissible to utilise a Rule 50C application to seek by a backdoor method to reargue an unsuccessful appeal: Dickson v R (No. 2) [2018] NSWCCA 183 at [47] (Wilson J, Macfarlan JA and Schmidt J agreeing).

16. Rather, this Court may exercise the power under Rule 50C where there has been “some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing”: Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69 at [7]; El Ali v R (No 2) at [22]; Application of Ainsley Whitney at [34].

17. Rule 50C enables this Court to reconsider and correct its orders to rectify obvious mistakes and to reflect correctly its intent at the time of making the decision in question: Application of Malcolm Potier (No. 3) [2015] NSWCCA 306 at [7]; Application of Ainsley Whitney at [36].

18. It is clear that a Rule 50C application does not extend to paragraph 5 of the Applicant’s Notice of Motion in which he seeks leave to file an appeal against conviction. In any event, the Applicant pleaded guilty to the charges in the District Court and was sentenced by reference to an Agreed Statement of Facts signed by the Applicant.

The Decision of this Court in the Appeal

19. As noted earlier, the Applicant was represented by counsel instructed by the Legal Aid Commission of NSW at the hearing of his application for leave to appeal against sentence which was determined on 8 April 2020.

20. The Applicant sought to appeal against sentences passed in the District Court for child sexual assault offences committed by him (then aged 31 or 32 years) in 1979 against the daughter (then aged 12 or 13 years) of the Applicant’s then partner.

21. The Applicant relied on three grounds of appeal:

1. Appeal Ground 1 - her Honour erred in failing to adequately assess the objective seriousness of the offending.

2. Appeal Ground 2 - her Honour erred in determining the starting point for Sequences 6 and 7.

3. Appeal Ground 3 - her Honour erred in failing to give full effect to historical sentencing practices as her remarks suggest she intended.

22. Each member of the Court dismissed the first and second grounds of appeal: Corliss v R at [1], [27]-[46] and [140]-[161].

23. The majority of the Court rejected Appeal Ground 3: Corliss v R at [47]-[61], [162]-[169]. Brereton JA reached a contrary view at [2]-[9].

24. Although it was not necessary to determine the proper construction and application of s.25AA Crimes (Sentencing Procedure) Act 1999 as the appeal was to be dismissed, each member of the Court made observations concerning that issue: Corliss v R at [10]-[21], [62]-[100] and [170]-[172]. The issue had been addressed by the parties and was of some importance for other appeals to this Court where the question may arise. However, what the members of the Court said on this issue was obiter dicta only and not binding in its effect.

25. As noted earlier, each member of the Court determined that the Applicant’s Notice of Motion dated 23 August 2019, lodged by him in person after the hearing of the appeal but before judgment was delivered, should not be entertained: Corliss v R at [1], [103] and [173]-[180]. The Applicant seeks to reagitate this aspect in paragraph 4 of the Notice of Motion dated 20 April 2020.

Determination of Application for Leave Under Rule 50C Criminal Appeal Rules

26. As the Applicant requires leave to bring the present application, it is appropriate to deal succinctly with the issues raised by him.

27. At paragraph 7 of his affidavit of 20 April 2020, the Applicant set out seven topics or grounds for the application:

“1.   Error of Law - The Slip Rule

2.   Failure of the Court to Properly Address Ground 3

3.   Judicial Error of Fact in Time-Frame and Statutory Limitation

4.   Procedural Error - Rejected Notice of Motion dated 23 August 2019

5.   Improper Consideration of Victim Impact Statement

6.   Resentencing - Misapprehension of s6(3) "should have been passed''

7.   Resentencing-Misapprehension of Concept of Fairness.”

Ground 1

28. Ground 1 of the Rule 50C Application seeks to invoke the slip rule and asserts error of law, contending that the dissenting judgment of Brereton JA concerning Appeal Ground 3 was correct. The Applicant relies upon the word “slip” in his Honour’s judgment at [8] and seeks to invoke Rule 36.17 Uniform Civil Procedure Rules 2005 which provides for correction of a judgment or order.

29. The Crown submits that the Applicant has misconceived the slip rule and is seeking to reargue Appeal Ground 3 which was determined adversely to him by the majority of the Court.

30. Brereton JA used the term “slip” in Corliss v R at [8] to describe what his Honour considered was an oversight by the sentencing Judge as explained in that paragraph of his Honour’s judgment.

31. In my view, the Applicant has misconceived the nature of the slip rule in his arguments in support of Ground 1 of the Rule 50C Application. The majority of the Court held that the sentencing Judge did not err in the manner complained of in Appeal Ground 3.

32. The Applicant is seeking to reargue Appeal Ground 3 in this Court by asserting that the minority judgment of Brereton JA should be accepted in place of the majority judgment on that ground.

33. The Applicant seeks to reagitate a ground which was unsuccessful on appeal and this does not constitute a basis for an application under Rule 50C.

Ground 2

34. The Applicant’s Ground 2 asserts that the Court failed to properly address Appeal Ground 3. The arguments advanced under this heading seek to challenge the conclusions of the majority in its decision concerning this ground of appeal.

35. Once again, the Crown submits that the Applicant has misconceived the nature of a Rule 50C application.

36. The Applicant’s Ground 2 is affected by the same difficulty as Ground 1 of the application. The members of the Court did not fail to consider the third ground of appeal: Corliss v R at [2]-[9], [47]-[61], [162]-[169]. Rather, each member of the Court considered that ground of appeal and the majority rejected it. That is a not uncommon outcome when an appellate court exercises its functions.

37. Nothing raised by the Applicant under this heading constitutes a basis to revisit the issue under Rule 50C. In truth, the Applicant seeks to reargue this ground of appeal via a backdoor method which is not open on a Rule 50C application (see [13]-[17] above).

Ground 3

38. Ground 3 appears under a heading “Judicial Error of Fact in Time-Frame and Statutory Limitation”. Under this heading, the Applicant raises a number of matters concerning dates of offences referred to in the judgment of Lonergan J at [107].

39. The Crown responds to the matters raised by the Applicant under this heading and contends that there was no misapprehension on the part of Lonergan J in the parts of her Honour’s judgment which are criticised by the Applicant.

40. Ground 3 attempts to rely upon the limitation upon prosecutions contained in s.78 Crimes Act 1900 at the time of the offences. The Applicant asserts that if the victim was 14 years old at the time of any of the offences, then s.78 Crimes Act 1900 was capable of operating in his favour.

41. The Applicant’s argument in this respect is misconceived and fails at the threshold. Lonergan J made clear that the offences occurred when the victim was aged 12 or 13 years and the Applicant was aged 31 or 32 years: Corliss v R at [117]-[118], [120], [124], [142], [146], [148] and [158]. This was also made clear in my judgment at [40], [43] and [44]. The findings of fact made by the sentencing Judge, and referred to by Lonergan J and myself, were based upon an Agreed Statement of Facts which had been signed by the Applicant: Corliss v R at [114].

42. There was no assertion in the judgments of Lonergan J and myself that the Applicant’s offending occurred when the victim was 14 years old. There was no misapprehension of fact (see [16] above).

43. There is no merit in the Applicant’s submission in support of this ground.

Ground 4

44. Ground 4 complains of procedural error in the rejection of the Applicant’s Notice of Motion dated 23 August 2019 advanced personally by him whilst the Court had reserved its decision. As noted earlier, the Court declined to receive this material as the Applicant was, at that time, still represented by counsel and solicitor who did not seek to advance the matters on his behalf.

45. The Applicant asserts that his lawyers made a “wrong judgment” by failing to support his application and he seeks to agitate the matters which, he contends, should have been advanced on his behalf.

46. The Crown notes the approach which the Court took in declining to entertain the application made by the Applicant whilst the Court had reserved its decision: Corliss v R at [173]-[180].

47. In my view, Ground 4 does not advance his application. The Applicant’s affidavit of 23 August 2019, which accompanied the Notice of Motion of the same date, accepted that he was sentenced upon the basis that the offences occurred whilst the victim was 12 or 13 years old. What was said concerning Ground 3 (at [40]-[43] above) has application to this ground as well.

48. There is no merit in this ground.

Ground 5

49. Ground 5 asserts that there was improper consideration by the majority of the Court of the victim impact statement which was before the sentencing Judge.

50. The Crown submitted that no ground of appeal before the Court asserted that the sentencing Judge had incorrectly had regard to the victim impact statement and that, in any event, the references to the victim impact statement by members of this Court did not involve any error.

51. Lonergan J referred at [116] to the contents of the victim impact statement and noted that the sentencing Judge had taken into account the harm done to the victim and the community consistent with what was said in R v Previtera (1997) 94 A Crim R 76. I referred to the victim impact statement at [90] in the context of an examination of s.25AA Crimes (Sentencing Procedure) Act 1999, when considering the rationale for that provision when courts are sentencing offenders for child sex offences.

52. Nothing said by Lonergan J or myself concerning the victim impact statement reveals error or inconsistency with what was said in R v Previtera. This aspect does not assist the Applicant in his Rule 50C Application.

Ground 6

53. Ground 6 asserts error on my part (at [93] and [97]) in consideration of the meaning of the words “should have been passed” in s.6(3) Criminal Appeal Act 1912. The Applicant seeks to rely upon parts of the judgment of Brereton JA on this issue in support of the present application.

54. The Crown submits that this argument does not fall within the ambit of Rule 50C as the majority of the Court proposed to dismiss the appeal and that no error is revealed in any event.

55. As noted earlier, all members of the Court considered the construction and operation of s.25AA Crimes (Sentencing Procedure) Act 1999 in what were obiter comments given that the Court, by majority, determined to dismiss the appeal. Based on the reasoning of Brereton JA, the Applicant seeks that the Court reopen the appeal on this issue.

56. A Rule 50C application is not an occasion to reargue an unsuccessful appeal.

57. The appeal was dismissed, by majority, in any event. What was said concerning s.25AA played no part in the determination that the appeal be dismissed.

Ground 7

58. Ground 7 of the Rule 50C Application asserts misapprehension by me (at [79]) concerning s.6(3) Criminal Appeal Act 1912, in that part of the judgment which considered s.25AA Crimes (Sentencing Procedure) Act 1999. The Applicant submits that the reasoning of Brereton JA on this issue should be preferred to the reasoning of the majority.

59. The Crown submits that this aspect fails for the same reason as Ground 6.

60. Once again, it should be observed that what was said by members of the Court concerning s.25AA Crimes (Sentencing Procedure) Act 1999 constituted obiter comments which did not have operative effect because the Applicant’s appeal was dismissed.

61. However, what the Applicant seeks to do here is, once again, to reargue what has already been argued and stated by the Court with respect to s.25AA Crimes (Sentencing Procedure) Act 1999, where the views of the majority differed from that of Brereton JA.

58. Nothing raised by the Applicant under this heading constitutes a proper basis for a grant of leave to the Applicant to advance his Rule 50C Application.

Conclusion

63. It is appropriate to make allowance for the fact that the Applicant is now unrepresented. That said, he has produced lengthy submissions in support of the application which reflect that he has acquired some understanding of the topic.

64. It is sufficient to observe that I have considered the matters raised by the Applicant in support of his Rule 50C Application by reference to the principles governing such an application (see [13] to [17] above).

65. I am not persuaded that any matter raised by the Applicant warrants a grant of leave under Rule 50C(1A) Criminal Appeal Rules for him to seek to set aside or vary any order made by the Court.

66. I propose that the Applicant’s Notice of Motion dated 20 April 2020 be dismissed.

67. LONERGAN J: I agree with Johnson J.

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Decision last updated: 29 July 2020