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Court of Criminal Appeal 4 March 2020

Simmons v R (No 2)

[2020] NSWCCA 29

Other

Citation: Simmons v R (No 2) [2020] NSWCCA 29
Court: Court of Criminal Appeal, NSW
Date: 4 March 2020
Judges: Macfarlan JA; Adamson J; Beech-Jones J

Background

The applicant had previously sought leave to appeal against a sentence imposed following convictions for a range of offences. On 14 February 2020, the Court of Criminal Appeal granted leave to appeal but dismissed the appeal, publishing its reasons in Simmons v R [2020] NSWCCA 16 (the Principal Judgment).

On 27 February 2020, the applicant applied under r 50C of the Criminal Appeal Rules (NSW) to set aside or vary the orders made in the Principal Judgment. The application was brought within the 14-day window permitted by that rule.

The applicant pressed the application on two bases: first, that the Court had failed to separately address one of the four grounds of appeal (ground 3, concerning proportionality); and second, that the Court had replicated a factual error from the Crown's submissions relating to the description of an offence listed on a Form 1 document.

  • Whether the Court failed to separately address ground 3 of the appeal (erroneous application of the principle of proportionality), such that leave to vary the orders should be granted under r 50C.
  • Whether a factual error adopted by the Court from the Crown's submissions (relating to an offence on the Form 1) was sufficiently material to warrant varying the orders.
  • What principles govern applications under r 50C to re-open a concluded appeal.

Decision

On the treatment of ground 3: The Court found that ground 3 had, in fact, been addressed in the Principal Judgment, albeit as a corollary of grounds 1 and 2 rather than as a standalone point. The transcript of the hearing showed that the applicant's counsel initially resisted characterising ground 3 as dependent on grounds 1 and 2, but ultimately conceded that its substance depended on establishing at least one of those two grounds. Having failed on grounds 1 and 2, the applicant could not establish ground 3 on the basis accepted during oral argument. The Court is bound by the conduct of counsel, and a r 50C application cannot be used to re-agitate an appeal on a different footing in pursuit of a better result.

On the factual error in the Form 1 description: The Court accepted that it had proceeded on a misapprehension of fact. An entry in the Crown's submissions incorrectly attributed a Form 1 matter to one sequence of offending (common assault) rather than another (aggravated break, enter and commit a serious indictable offence), and the Court's reasons replicated that error. However, applying the test from Kauwenberghs v R (Cth) [2009] NSWCCA 201, the error also had to be material to the outcome. The Court was not satisfied that it was: the misapprehension played no role in the analysis of grounds 1 and 2, and, in the context of an aggregate sentence, the discrepancy was neutral to the question of manifest excess. The appeal had already been found not to disclose manifest excess.

On the general approach to r 50C: The Court reiterated that the rule exists to correct genuine oversights, not to give applicants a second opportunity to argue their case differently. A misapprehension of fact or law must have materially affected the court's consideration of the appeal's merits before the court will intervene. Leave was refused.

Orders Made

  • Application for leave pursuant to r 50C of the Criminal Appeal Rules (NSW) to vary the orders entered by the Court of Criminal Appeal on 14 February 2020: refused.

Key Takeaways

  • Under r 50C of the Criminal Appeal Rules (NSW), the Court may set aside or vary orders after an appeal, but only where there is a genuine failure to address a ground or a material misapprehension of fact or law. The rule does not permit re-agitation of an unsuccessful appeal on a different basis.
  • Where counsel concedes during oral argument that a ground of appeal is contingent on other grounds, the applicant is bound by that concession. The concession here meant ground 3 had effectively been considered and disposed of in the Principal Judgment.
  • A factual error originating in a party's submissions, and replicated in the court's reasons, will not justify varying orders unless it affected the outcome in a material way. Courts are entitled to rely on counsel to identify errors in their own and their opponents' submissions.
  • The two-step test from Kauwenberghs requires the applicant to establish both (1) that the court proceeded on a misapprehension and (2) that the misapprehension was material to the result. Failure on the materiality question is fatal to the application.
  • In sentencing appeals involving aggregate sentences, a discrepancy in the description of a Form 1 offence attributed to the wrong sequence is unlikely to be material where manifest excess has already been rejected on other grounds.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Rules (NSW), r 50C

Cases
- Simmons v R [2020] NSWCCA 16 (the Principal Judgment)
- Kauwenberghs v R (Cth) [2009] NSWCCA 201
- Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554
- Baghdadi v R (No 2) [2012] NSWCCA 77
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- R v Birks (1990) 19 NSWLR 677