Langelaar v R

Court of Criminal Appeal (NSW)|2017-09-25|Before: Hoeben CJ, Campbell J, Adams J

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: 1. Grant leave to appeal against conviction; 2. Dismiss the appeal against conviction; 3. 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: 1. Set aside the reasons for decision and vacate the order dated 22 July 2016; 2. The appeal be reopened and re-determined; 3. The Court receive further submissions and amendments on the appeal; 4. 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

These reasons assume familiarity with the reasons of N Adams J in Kees Langelaar v R [2016] NSWCCA 143 at [3] ff., in which Hoeben CJ at CL (at [1]) and Campbell J (at [2]) agreed. It is sufficient at present to say that after standing trial in the District Court at Taree commencing on 22 May 2012 before Williams DCJ and a jury of 12, the applicant was convicted on 31 May 2012 on four of five counts of sexual intercourse with a person over the age of 14 years and under the age of 16 years who was then under his authority, contrary to s 66C(4) Crimes Act 1900 (NSW); and one count of indecent assault on a person under the age of 16 years, contrary to s 61M(2) of the Crimes Act. The jury returned a verdict of not guilty with respect to a fifth count under s 66C(4).
Counts 1 and 2 on the indictment charged the applicant with digital penetration of the complainant's vagina. Count 3, indecent assault on a person under 16, charged that the complainant masturbated the applicant at his request. Counts 4 and 5 were connected with Count 6 and consisted of digital penetration of the complainant's vagina (Count 4), fellatio of the applicant by the complainant (Count 5), and an allegation of penile penetration by the applicant of the complainant's vagina (Count 6). He was acquitted of Count 6.
At the trial the applicant had been represented by counsel and instructing solicitor. He was, and remains, self-represented before this Court.
For the five offences of which he was convicted Williams DCJ sentenced the applicant to an aggregate sentence of imprisonment of 5 years with a non-parole period of 3 years. The non-parole period expired on 10 November 2016, after which the applicant was released to parole.

Procedural history of the application

It is necessary to set out briefly the history of the present application lest it be thought there has been some undue delay on the part of the Court. Although the applicant filed his Notice of Motion within the time fixed by rule 50C(2), he did not file any submissions or supporting documentation with it. Due to the informal nature of the applicant's documentation, the fact of the making of it was not recorded until 18 August 2016. The Registrar wrote to Mr Langelaar on 29 August 2016 pointing out that no submissions had been filed and ordering that they be provided by 14 September 2016. The Registrar informed the applicant that the reasons why the applicant should be granted leave should be dealt with in the submissions.
The applicant did not comply with the Registrar's order. The matter was called over on three occasions, being 29 September, 13 October and 27 October 2016. On each occasion the applicant had been unable to comply with the Registrar's order. It appears that he may have been confused about whether he was to have the benefit of counsel for the application. On the third call-over the applicant confirmed he was content for the matter to be dealt with on the papers without an oral hearing. On the same day he asked for a further extension for filing submissions to a date after his release from custody. This application was granted. On 4 November 2016, in fact before his release, the applicant filed the document which he styled "initial written submissions" in a covering letter addressed to the Registrar. These apparently had been prepared with the assistance of a "McKenzie friend". Other material in support was filed, much, if not all of which, had been lodged in relation to the original appeal.
The Court provided copies of the material lodged by the applicant to the Director of Public Prosecutions on 15 November 2016. The Registrar followed this up by letter dated 19 December 2016 asking whether the DPP intended to respond by way of written submission. Follow-up telephone calls from the Registry during 2017 did not elicit a positive indication that the DPP would lodge submissions.
The applicant lodged yet further material on 28 March 2017. Again, this was "new" material, but which had been previously available to him. Much of this material pre-dated the hearing of the conviction appeal, going to what the applicant says is his prior good character.
On 5 June 2017, the applicant confirmed that he had filed all material upon which he wished to rely and that it was his intention to proceed with the application.
The Registrar referred the matter to the Court on 20 July 2017. Crown submissions were received in the Registry on 26 July 2017. They were then referred to the Court.

Rule 50C Criminal Appeal Rules

Rule 50C is in the following terms: 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).
The High Court of Australia noticed the promulgation of rule 50C in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34, but found it unnecessary to make any decision about "the validity or operation of [the] rule" ( at 227 [30]).
A number of decisions of this Court have sought to make clear that the rule does not confer an unbounded jurisdiction to rehear an appeal on its merits: Application of Malcolm Potier (No 3) [2015] NSWCCA 306 at [5] - [7]; Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 at [13] - [28] (by Hoeben CJ at CL); Miller v R (No 2) [2016] NSWCCA 158 at [39] - [53]. These citations do not comprehensively deal with the jurisprudence in this Court but adequately emphasise the narrowness of the gateway provided by rule 50C.
In Potier (No 3) at [7], the Court said: "Put simply, r 50C does not confer jurisdiction on this Court to re-hear the merits of an appeal once it has been determined. Rather, it enables the Court to reconsider and correct its orders to rectify obvious mistakes and correctly to reflect its intention at the time of making the decision in question … there is no jurisdiction under r 50C to re-visit orders or reasons where the contended misapprehension is merely an assertion that a conclusion made following consideration of the matter by the Court is wrong (citations omitted)."
As the Court pointed out in Miller (No 2) at [43], the Explanatory Note to rule 50C states that the power the rule confers is "similar" to the power conferred on the Supreme Court in civil cases by UCPR r 36.16(3A). This empowers the Court to exercise the power identified in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6, even after the orders have been entered, provided the jurisdiction is invoked with the degree of promptitude specified in the rule, i.e. 14 days.

The decision in Autodesk

As the applicant has invoked the principle in Autodesk in his submissions filed on 4 November 2016 (at p 17 [60]), it is useful to set out the familiar passage from the judgment of Mason CJ at 302-303 [4] fully: "… the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law … However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to 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. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."
We also think it worth emphasising, as Gaudron J did (at 322 [1]): "However, the circumstances in which justice requires that course are, in practice, extremely rare, particularly if there has been an opportunity for full argument." (Our emphasis.) In Wentworth v Woollahra Municipal Council and Others (1982) 149 CLR 672; [1982] HCA 41 at 684 the Court said: "… the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard." (Our emphasis.) These statements were made of the powers exercisable by the High Court of Australia. That Court is the final court of appeal. Where, as in the case at hand, the question relates to an intermediate court of appeal the power falls to be exercised with even greater parsimony. This is so because errors of this Court may be corrected on appeal, by special leave, to the High Court.

Consideration

Having carefully reviewed the 120 pages or so of (mostly) handwritten material neatly set out, we have formed the firm view that the present case falls into that category where for the most part, the applicant is seeking to re-agitate, or re-argue, arguments already considered by the Court. To the extent that new matters are advanced, these too fall into an impermissible category of seeking to put the case better or more fully than it previously was. We are of the view that the applicant has not demonstrated that the Court's decision is affected by any relevant misapprehension of fact or law.
Much of the material lodged by the applicant is a replication of the material he placed before the Court at the original hearing. There are three documents that are arguably "new", bearing in mind, that material is new is not to the point. The question is whether misapprehension of fact or relevant law has been demonstrated. The three documents are the applicant's submissions of 4 November 2016, a document entitled "Court of Criminal Appeal Applicant's Remarks" (which appears to be undated), and a document entitled "Contrary Remarks to Raymond Drake's Affidavit" dated 27 August 2016.

The written submissions

As the Crown point out in their written submissions, pages 1 to 12 ([1] - [43]) of the applicant's submission seem to argue that the verdicts of the jury should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence, on bases that were not advanced at all at the hearing of the appeal. The significance of this is that that material does not seek to focus on any question of misapprehension of fact or law vitiating the Court's decision. The material manifestly falls into the category of attempting to put the argument better or more fully.
The point that the applicant seeks to make is that the Crown had not proved the elements of the offending because it was not established by the evidence that the victim was between the ages of 14 and 16 at the time of the offending or that the offending occurred within the period specified in the indictment. As the Crown argues, there was evidence that the victim was 15 years of age at the time of offending that the jury were entitled to accept. First, there was the victim's evidence at transcript 52.31 that she was 15; and secondly, the admission of the applicant to Officer Dean admitted without objection at transcript 119.29 that "She's 15 years old. She turns 16 soon".
There was also evidence that the victim resided in the applicant's home during the period specified in the indictment: transcript 63.42; transcript 76.46; transcript 145.36; and transcript 120.49 ff.
In our opinion, the applicant should not be granted leave to recast his argument in this manner. Indeed the Court has no power to permit this new ground to be raised: Autodesk at 302-303.
The balance of the written submissions, pp 12 - 16 [43] - [55], seek to reformulate grounds 1, 6, 7, 8, 9 and 14 advanced in the appeal. In relation to his recast Ground 1, for example (p 12 [43]), the applicant submits that the ground should have been "interpreted" in a certain way. In respect of other recast grounds he says they were "intended to mean …". We do not accept that this recasting establishes that there was any misapprehension on the part of the Court as to the substance of the grounds ventilated by the applicant. The applicant tacitly accepts as much at p 17[60] where he states: The applicant submits he is not attempting to reargue his appeal, although he acknowledges shortcomings in the manner in which his grounds of appeal and submissions were formulated and expressed.
As we have said, in our view, the recasting of the grounds plainly demonstrates impermissible re-agitation or re-argument and does not establish that the Court "has apparently proceeded according to some misapprehension of the facts or the relevant law". Moreover, paragraph 60 is an express acknowledgment that, even if recasting of the grounds were a rhetorical device to demonstrate misapprehension on the part of the Court that misapprehension was due to his neglect or default in the relevant sense, notwithstanding the disadvantage of him being self-represented. As Mason CJ put it (at [22] above) the power is not "to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put."
In any event, the reasons of N Adams J at [137] - [141] clearly demonstrate that the Court well understood that part of the applicant's complaint relating to inconsistent verdicts. Moreover, other asserted weaknesses in the Crown case were dealt with at [142] - [147]. Having reviewed all of the evidence, the Court was satisfied it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.
The fresh evidence that the applicant sought to introduce on the hearing of the appeal, with respect, was comprehensively dealt with at [48] - [63], and the various ways in which complaints were advanced about the competence of the applicant's legal representation were fully rehearsed from [64] to [133]. N Adams J dealt with: the general principles at [64] - [81]; the complaint that witnesses were not called at [82] - [86]; the failure of counsel to call the applicant to give evidence in his own case at [87] - [91]; the matter of erectile dysfunction and tremors at [92] - [98]; the complaint about being pressured into acknowledging his guilt for the purpose of the proceedings on sentence at [99] - [116]; the failure to lead evidence of good character at [117] - [122]; the failure to cross-examine the victim about whether she had made a false complaint for secondary gain at [123] - [125]; and the failure to cross-examine about other complaints of sexual misconduct that the victim may have made against others at [128] - [133]. It may be (see applicant's remarks re [92] of the Court's prior judgment) that the applicant no longer argues that he suffers from "erectile dysfunction".
There is a further new matter that the applicant seeks to raise. Ground 15 (at [44] of the original judgment) is in the following terms: "The Crown's entire position rested on one fact. [The complainant] made a statement to the police and that is all there ever was and ever has been." In his written submission (at p 16 [55]) the applicant seeks to completely recast this matter in the following way: "There has been a miscarriage of justice arising from the inability of a jury to compare and assess conflicting evidence contained in the evidence of the police interview of the complainant and oral testimony of witnesses". This, as we have said is an entirely new complaint not advanced at the hearing of the appeal. This complaint is agitated in the applicant's written submission of 4 November 2016 from p 11 [35] to p 12 [39], and at p 17 [59].
Because the substance of this complaint was never advanced previously it cannot be raised now as no question of misapprehension of either fact or law engaging the Autodesk principle can arise in relation to it. In any event even assuming an audio-visual recording of the whole of the complainant's evidence was available, it does not follow that it would have been appropriate to send that recording into the jury room, given that no audio visual recording of the evidence of other witnesses was available. Probably that would have been inappropriate: Gately v the Queen (2007) 232 CLR 208; [2007] HCA 55.

Court of Criminal Appeal Applicant's Remarks

The applicant's remarks on the original judgment run to 23 pages. They consist largely of a running commentary or annotation regarding the Court's judgment indicating matters he agrees with and matters he disagrees with. In substance, it is a re-agitation of the case that he presented at the hearing of the appeal. This material does not demonstrate any misapprehension of fact of law capable of engaging the Autodesk principle. As the Court said in Potier (No 3) rule 50C does not confer power to entertain an argument that the original decision was simply wrong.

"Contrary Remarks to Raymond Drake's Affidavit"

As the judgment makes clear, a substantial part of the applicant's original complaint related to the competence of his representation at the trial. We have indicated above the extent to which those matters were dealt with in the reasons of N Adams J. Both the barrister and solicitor gave evidence on the hearing of the appeal. At the conclusion of the barrister's evidence, the applicant asked three questions only, which did not challenge the substance of the barrister's evidence. At the conclusion of the solicitor's evidence, the applicant asked four questions about who had paid a psychologist who had examined the applicant for the purpose of the proceedings on sentence, whether the applicant directly, or the solicitor from his trust account. When asked by Hoeben CJ at CL (at transcript 30.45) whether there were any other questions the applicant said "no". In these circumstances we would reject the eight page document entitled "Contrary Remarks to [the solicitor's] Affidavit". These consisted substantially of matters of comment on the affidavit which was read at the hearing of the appeal, but not cross-examined on except to the extent I have indicated.

Conclusion

Given the importance of the principle of finality of litigation, the narrowness of the exception to that principle provided by rule 50C, and the importance of discouraging "a backdoor method by which unsuccessful litigants can seek to re-argue their cases" (Autodesk at 303), we are of the view that the proper order in the present case is to refuse leave for the applicant to apply to set aside or vary the orders pronounced on 22 July 2016 as that application has insufficient prospects of success to justify a grant of leave.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2017

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