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Corliss v R (No 2)

Corliss v R (No 2)

Case [2020] NSWCCA 180 29 July 2020

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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: ---

Judgment

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Corliss v R (No 2)

Details

AGLC: Corliss v The Queen (No. 2) [2020] NSWCCA 180
Case: [2020] NSWCCA 180
Decision Date: 29 July 2020

CaseChat Overview and Summary

In the case of Corliss v R (No 2), the appellant sought to appeal against a sentence imposed by the court. The appellant, having previously been convicted of a crime, sought to have the judgment and orders set aside and reconsidered. The application was made under rule 50C of the Criminal Appeal Rules. The legal issues before the court were whether the court had jurisdiction to reconsider the appeal and whether the application was misconceived, as the appellant was seeking to have a dissenting judgment replace the majority judgment on appeal.

The court held that the application was misconceived as the appellant sought to replace the majority judgment with a dissenting judgment. The court noted that the appellant's application did not challenge the merits of the appeal or the sentence imposed, but rather sought to have a different judgment substituted. The court held that the application was not a valid application under rule 50C of the Criminal Appeal Rules and therefore, the court did not have jurisdiction to reconsider the appeal. The court also noted that the application was an attempt to have the dissenting judgment replace the majority judgment, which was not permissible under the law. The court held that the application was misconceived and therefore, leave to appeal was refused.

The court's reasoning and outcome in this case were based on the interpretation of rule 50C of the Criminal Appeal Rules and the principles of appellate jurisdiction. The court held that the application was misconceived as it sought to have a dissenting judgment replace the majority judgment on appeal, which was not permissible under the law. The court held that the application did not challenge the merits of the appeal or the sentence imposed, but rather sought to have a different judgment substituted. The court held that the application was not a valid application under rule 50C of the Criminal Appeal Rules and therefore, the court did not have jurisdiction to reconsider the appeal.

The final orders of the court were that leave to appeal was refused, and the application under rule 50C of the Criminal Appeal Rules was dismissed. The court held that the application was misconceived and did not challenge the merits of the appeal or the sentence imposed. The court held that the application sought to have a dissenting judgment replace the majority judgment on appeal, which was not permissible under the law. The court held that the application was not a valid application under rule 50C of the Criminal Appeal Rules and therefore, the court did not have jurisdiction to reconsider the appeal.

Orders