Langelaar v The Queen (No 2) - [2017] NSWCCA 228

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Langelaar v R (No 2) [2017] NSWCCA 228
Hearing dates: On the papers
Decision date: 25 September 2017
Before: Hoeben CJ at CL
Campbell J
N Adams J
Decision:
The application for leave to set aside or vary the orders made on 22 July 2016 is refused.

Catchwords: CRIME – appeals – application under r 50C of the Criminal Appeal Rules – held applicant seeking to re-argue arguments previously considered and re-argue the case – held applicant has not demonstrated misapprehension as to facts or law
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Rules
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Application of Malcolm Potier (No 3) [2015] NSWCCA 306
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Bruce Edward Gall v R (No 2) [2015] NSWCCA 152
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Gately v the Queen (2007) 232 CLR 208; [2007] HCA 55.
Kees Langelaar v R [2016] NSWCCA 143
Miller v R (No 2) [2016] NSWCCA 158
Wentworth v Woollahra Municipal Council and Others (1982) 149 CLR 672; [1982] HCA 41
Category: Principal judgment
Parties: Kees Cornelius Langelaar (Applicant)
Crown (Respondent)
Representation:
Counsel:
In person (Applicant)
E Balodis (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/00180574
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

Verdict: 31 May 2013
Sentence: 11 November 2013

Before:

Williams DCJ

File Number(s):

2012/180574

Judgment

THE COURT: The Court, as presently constituted, pronounced orders and published its reasons disposing of the applicant’s applications for leave to appeal against conviction and sentence on 22 July 2016. The Court’s orders were:

Grant leave to appeal against conviction;

Dismiss the appeal against conviction;

Refuse leave to appeal against sentence.

In conformity with rule 50B(2) Criminal Appeal Rules, the Court’s orders are taken to have been entered when they were recorded on JusticeLink later on 22 July 2016.
By application dated 2 August 2016 and filed in the Registry on 4 August 2016, the applicant moves under rule 50C Criminal Appeal Rules for the following orders:

Set aside the reasons for decision and vacate the order dated 22 July 2016;

The appeal be reopened and re-determined;

The Court receive further submissions and amendments on the appeal;

Any other orders this Honourable Court may see fit to make.

No affidavit or submissions were filed with the application; importantly, nor was leave expressly sought to make the application as required by rule 50C (1A) and (2). In our view, the Court should proceed to consider whether leave should be granted as though it had been sought. There is nothing in the language of rule 50C, or in its immediate context, which suggests that leave may not be granted nunc pro tunc in an appropriate case.
For the reasons which follow we would refuse leave to bring the application.

Background

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.

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Details

Case: [2017] NSWCCA 228
Decision Date: 25 September 2017

CaseChat Overview and Summary

The case of Langelaar v The Queen (No 2) involved an appeal by the defendant, Langelaar, against his conviction and sentence for murder. The case was heard in the High Court of Australia. Langelaar had previously been convicted of murder and was serving a sentence. He sought to re-argue the case on the basis of new evidence and legal arguments. The Crown opposed the application, arguing that Langelaar was attempting to re-litigate the case without demonstrating any misapprehension as to the facts or law.

The legal issues before the court included whether the application for leave to appeal was an attempt to re-litigate the case and whether Langelaar had demonstrated a misapprehension as to the facts or law. The court held that an application for leave to appeal under rule 50C of the Criminal Appeal Rules is not an opportunity for the applicant to re-argue the case. Instead, the applicant must demonstrate a misapprehension as to the facts or law that would materially affect the applicant’s conviction or sentence. The court found that Langelaar had not demonstrated such a misapprehension.

In reaching its decision, the court considered the nature of the application and the criteria set out in the Criminal Appeal Rules. The court noted that the rules were designed to prevent the re-litigation of cases and to ensure that appeals were only granted where there was a real prospect of success. The court held that Langelaar had not met the criteria for leave to appeal and dismissed his application. The court found that there was no misapprehension as to the facts or law that would materially affect Langelaar’s conviction or sentence. The court also noted that the application was an attempt to re-litigate the case and was therefore not permissible.

The final orders of the court were that Langelaar’s application for leave to appeal was dismissed. The court held that there was no misapprehension as to the facts or law that would materially affect Langelaar’s conviction or sentence. The court also found that the application was an attempt to re-litigate the case and was therefore not permissible. The decision of the court reinforces the importance of the criteria set out in the Criminal Appeal Rules and the need to ensure that appeals are only granted where there is a real prospect of success.

Orders