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Court of Criminal Appeal 25 September 2017

Langelaar v R (No 2)

[2017] NSWCCA 228

Sexual offences
CRIME APPEALS HELD APPLICANT SEEKING TO RE ARGUE THE CASE

Citation: Langelaar v R (No 2) [2017] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 25 September 2017
Judges: Hoeben CJ at CL, Campbell J, N Adams J

Background

The applicant had been convicted in the District Court at Taree in May 2012 on four counts of sexual intercourse with a person aged 14 to 16 under his authority, and one count of indecent assault on a person under 16. He was sentenced to an aggregate term of five years' imprisonment with a three-year non-parole period.

The applicant sought leave to appeal against both conviction and sentence. In July 2016, the Court of Criminal Appeal granted leave to appeal against conviction but dismissed that appeal, and refused leave to appeal against sentence. The applicant had been self-represented before the Court of Criminal Appeal throughout.

Within 14 days of those orders being entered, the applicant filed a Notice of Motion seeking to have the orders set aside and the appeal reopened, purportedly under rule 50C of the Criminal Appeal Rules. No affidavit or submissions accompanied the application, and leave to make the application was not expressly sought as the rule required.

  • Whether the Court could treat the application as one for leave under rule 50C, even though leave had not been expressly sought.
  • What the proper scope of rule 50C is, and whether it permits a full rehearing of an appeal on its merits.
  • Whether the applicant's materials demonstrated a misapprehension of fact or law by the original Court sufficient to engage the principle in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
  • Whether leave to bring the rule 50C application should be granted.

Decision

The Court first addressed the procedural defect: the applicant had not expressly sought leave as required by rule 50C(1A) and (2). The Court concluded it could treat the application as though leave had been sought, finding nothing in the rule's language to prevent leave being granted nunc pro tunc (that is, retrospectively) in an appropriate case.

The Court then examined the scope of rule 50C, drawing on its own prior decisions in Potier (No 3), Gall (No 2), and Miller (No 2). It confirmed that rule 50C does not confer an unlimited jurisdiction to rehear an appeal. The rule enables the Court to correct obvious mistakes and ensure orders accurately reflect its intentions at the time they were made. It does not allow a party to reopen proceedings simply on the basis that the original decision was wrong.

The applicant's written submissions were characterised by the Court as a "running commentary" on the original judgment, indicating what he agreed with and disagreed with. In substance, the materials were a re-agitation of the arguments already put at the original appeal hearing. The Court found this fell well short of demonstrating any misapprehension of fact or law capable of engaging the Autodesk principle.

The applicant also sought to challenge aspects of his trial representation and filed material responding to affidavits from his former barrister and solicitor. The Court noted that at the original appeal hearing, the applicant had asked only a small number of questions of each witness and had expressly indicated he had no further questions. His subsequent written commentary on those affidavits did not constitute proper cross-examination and was rejected accordingly.

Orders Made

  • Leave to bring the application under rule 50C of the Criminal Appeal Rules was refused.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules does not confer a general power to reopen and rehear a criminal appeal on its merits once the orders have been entered. Its function is limited to correcting obvious mistakes or ensuring orders accurately reflect the Court's original intention.
  • The principle from Autodesk Inc v Dyason (No 2) requires a demonstrated misapprehension of fact or law. A mere assertion that the original decision was wrong does not satisfy that threshold.
  • Finality of litigation carries significant weight in this context. The Court cited Autodesk directly in warning against rule 50C becoming "a backdoor method by which unsuccessful litigants can seek to re-argue their cases."
  • Where an applicant has had the opportunity to cross-examine witnesses at a hearing but declines to do so, later written commentary on those witnesses' evidence will not ordinarily be entertained in a subsequent application.
  • The absence of expressly sought leave under rule 50C(1A) did not prevent the Court from treating the application as one for leave, with the Court indicating leave may be granted nunc pro tunc where the circumstances are appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(4), 61M(2)
- Criminal Appeal Rules, rr 50B(2), 50C
- Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases:
- Kees Langelaar v R [2016] NSWCCA 143
- Application of Malcolm Potier (No 3) [2015] NSWCCA 306
- Bruce Edward Gall v R (No 2) [2015] NSWCCA 152
- Miller v R (No 2) [2016] NSWCCA 158
- Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
- Wentworth v Woollahra Municipal Council and Others (1982) 149 CLR 672; [1982] HCA 41