Corliss v Director of Public Prosecutions (NSW)

1. [1]

   ADAMSON JA: I have had the benefit of reading the reasons of Stern JA in draft. I agree with Stern JA’s reasons and the orders proposed. I wish to add the following reasons to my agreement with Stern JA.

2. [2]

   In substance, the fundamental question raised by Patrick Corliss, the applicant, is whether non-compliance by the Director of Public Prosecutions (the DPP) with the requirements in s 35A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) to file a certificate invalidates a sentence which takes into account an offence or offences on a Form 1 pursuant to s 32 of the Act.

3. [3]

   The evident purpose of the certification requirements is to involve the victim of the offences and the officer in charge of the investigation in the process of charge negotiations by consulting with them. This process may be particularly important where, in the course of charge negotiations, separate charges are relegated to a Form 1 with the consequence that no separate sentence is imposed, or indicated, in respect of them. The only effect on sentencing of charges on a Form 1 is to (potentially) increase the sentence for the offences for which such charges are to be taken into account and is, accordingly, limited by the maximum penalty for the offence for which the sentence is imposed: see Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]-[43].

4. [4]

   When one has regard to the statutory purpose of the certificate, the conclusion is, in my view, compelling that the Act does not evince a legislative intention to invalidate a sentence imposed in breach of s 35A of the Act: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]-[93] (McHugh, Gummow, Kirby and Hayne JJ). It follows from this conclusion that none of the grounds for review pursuant to s 69 of the Supreme Court Act 1970 (NSW) has been made out.

5. [5]

   STERN JA: On 12 April 2018 the applicant, Patrick Corliss, was sentenced by Herbert DCJ to an aggregate sentence of 7 years imprisonment with a non-parole period of 4 years and 4 months. Mr Corliss was released on parole on 11 August 2022. Mr Corliss had pleaded guilty in the Local Court to five sexual offences against the same complainant when she was aged 12 or 13 years. One further charge of indecent assault was taken into account on sentence in accordance with the procedure provided by s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (such a charge is described in this judgment as a “form 1 offence”). Mr Corliss was sentenced on the basis of an agreed statement of facts, which he had signed. Mr Corliss appealed unsuccessfully against his sentence to the Court of Criminal Appeal: Corliss v R [2020] NSWCCA 65. He then unsuccessfully sought to have that judgment and orders set aside relying upon r 50C of the Criminal Appeal Rules (as then in force): Corliss v R (No 2) [2020] NSWCCA 180.

6. [6]

   On 20 January 2021 Mr Corliss filed a notice of motion in the District Court seeking that the sentence imposed by Herbert DCJ be set aside on the ground that the prosecutor had not filed a certificate as required by s 35A(2) of the Crimes (Sentencing Procedure) Act. In his motion he made no mention of, and did not rely upon, s 43 of the Crimes (Sentencing Procedure) Act. On 3 March 2021 Judge Hanley SC decided that the District Court did not have jurisdiction in relation to that motion. On 22 November 2022 Mr Corliss made a further application to the District Court, seeking orders that:

7. [7]

   The error of law relied upon by Mr Corliss in this motion was the taking into account on sentence of the form 1 offence notwithstanding the failure by the prosecutor to file the certificate required by s 35A(2) of the Crimes (Sentencing Procedure) Act. On 15 December 2022 Herbert DCJ dismissed that motion. Her Honour held that the Court did not have jurisdiction under s 43 of the Crimes (Sentencing Procedure) Act to make the orders sought by Mr Corliss.

8. [8]

   By amended summons, filed on 10 July 2023, Mr Corliss seeks review of that decision pursuant to s 69 of the Supreme Court Act 1970 (NSW). Mr Corliss seeks an order in the nature of certiorari, quashing the decision of Herbert DCJ and remitting the matter to the District Court to be dealt with according to law. He also seeks a declaration under s 75 of the Supreme Court Act that the decision made by Herbert DCJ on 15 December 2022 is invalid.

9. [9]

   In support of his summons Mr Corliss relies on three grounds:

10. [10]

    Four affidavits from Mr Corliss, affirmed, 21 November 2022, 23 December 2022, 7 July 2023 and 15 September 2023, were read on the motion. These included much which was properly characterised as submission rather than evidence. In his affidavit of 7 July 2023, Mr Corliss explains that he has examined the District Court file in relation to his sentencing and that there was no certificate under s 35A of the Crimes (Sentencing Procedure) Act in that file.

11. [11]

    The first respondent, the Director of Public Prosecutions (“the Director”) did not file any evidence on the motion. She did, however, concede that a certificate should have been, but was not, filed under s 35A(2) of the Crimes (Sentencing Procedure) Act for the purposes of the sentencing proceedings before Herbert DCJ and that in this case a statement of agreed facts and form 1 offence were the subject of charge negotiations within the meaning of s 35A(1) of the Crimes (Sentencing Procedure) Act.

12. [12]

    For the reasons set out below, the summons should be dismissed with costs.

The sentencing proceedings

1. [13]

   Mr Corliss was sentenced to 7 years imprisonment with a non-parole period of 4 years and 4 months. He was eligible for release on parole (and was released on parole) on 11 August 2022. The sentencing judge was asked to, and did, take the form 1 offence into account when sentencing Mr Corliss.

The motion before Herbert DCJ on 15 December 2022

1. [14]

   The orders sought by Mr Corliss in his notice of motion filed on 21 November 2022 are set out at [6] above. In his affidavit affirmed 21 November 2022, which was filed in support of that motion, Mr Corliss identified as the “Purpose of notice of motion”:

2. [15]

   Mr Corliss further contended in this affidavit that:

3. [16]

   He contended that the sentence imposed by Herbert DCJ was a nullity and the proceedings should be referred back to the Registrar to commence de novo.

4. [17]

   The nub of the contention that Mr Corliss made in this affidavit was that compliance with the requirements of s 35A(2) of the Crimes (Sentencing Procedure) Act was an essential precondition to the sentencing judge having power to take the form 1 offence into account when sentencing him on 12 April 2018. Thus, he contended, the failure to file a certificate in compliance with the requirements of s 35A(2) “cause[d] the whole sentence to come undone”.

The hearing before Herbert DCJ on 15 December 2022

1. [18]

   The hearing before Herbert DCJ on 15 December 2022 was short. The transcript, set out in full below, clearly discloses why Herbert DCJ dismissed Mr Corliss’ motion:

Relevant legislation

1. [19]

   Section 35A of the Crimes (Sentencing Procedure) Act provides that:

2. [20]

   Section 35A is in Pt 3 Div 3 of the Act, headed “Taking further offences into account”. This Division sets out the procedure for taking a form 1 offence into account, and the permissible consequences of doing so.

3. [21]

   Sections 32-33, also within Div 3, provide that:

4. [22]

   The consequences of taking a form 1 offence into account are set out in s 35. As set out in s 35(1):

5. [23]

   It is apparent from this that a form 1 offence can only be taken into account by the sentencing court if the offender has indicated that they want the court to do so and if the offender admits guilt to the further offence.

6. [24]

   Section 43 of the Crimes (Sentencing Procedure) Act, which Mr Corliss contends provided Herbert DCJ with power on 15 December 2022 to grant the relief he sought, provides that:

Achurch v the Queen (2014) 253 CLR 141; [2014] HCA 10

1. [25]

   The leading authority on the proper ambit of s 43 of the Crimes (Sentencing Procedure) Act is Achurch v the Queen (2014) 253 CLR 141; [2014] HCA 10 (“Achurch”). In Achurch at [32], French CJ, Crennan, Kiefel and Bell JJ held:

2. [26]

   At [36], their Honours added:

3. [27]

   Gageler J, writing separately, held at [41]:

Ground 1: that Herbert DCJ fell into jurisdictional error

1. [28]

   Mr Corliss’ contention on ground 1 is, in essence, that Herbert DCJ had jurisdiction:

   1. (1)

      to consider and determine whether to make an order under s 43 of the Crimes (Sentencing Procedure) Act; and

   2. (2)

      to make the orders he sought, under s 43.

2. [29]

   Mr Corliss contends that Herbert DCJ erred in finding to the contrary. By reason of that error, he contends, Herbert DCJ did not rule on the merits of his notice of motion filed on 22 November 2022. He submits further that, in any event, her Honour’s decision not to make orders under s 43 is tainted by jurisdictional error. In support of his overarching contention as to jurisdictional error, he contends that, contrary to her Honour’s decision, Herbert DCJ had jurisdiction under s 43 to make the orders sought on his motion because the sentencing decision was “contrary to law” within the meaning of s 43(1)(a). This was because Herbert DCJ took the form 1 offence into account when sentencing him on 12 April 2018 notwithstanding that the prosecutor had not filed the certificate required under s 35A(2). He contends that:

   1. (1)

      compliance with the requirements of s 35A(2) was a condition of the sentencing court having jurisdiction to take the form 1 offence into account. In this regard, Mr Corliss relies, by analogy, upon the judgment of the majority in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107 (“Stanley (HC)”) at [88] that a failure by an inferior court to take into account a matter which it is required by statute to consider can involve jurisdictional error; and/or

   2. (2)

      a certificate having been filed, as required by s 35A(2), was a jurisdictional fact, in the sense that it was a matter which had to be established before the court had jurisdiction to take the form 1 offence into account on sentence. As to this Mr Corliss relies upon the judgment of O’Connor J in Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114; [1909] HCA 90 in support of the proposition that where the jurisdiction of a court is founded upon and can be exercised solely with respect to a certain subject matter, the existence or non-existence of that subject matter is in every case a jurisdictional fact which the court must determine.

3. [30]

   In contending that the sentencing judge fell into jurisdictional error, Mr Corliss also relies on the judgment of the High Court in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 (“Craig”) at 176-178, in particular at 177:

4. [31]

   That passage underscores the importance of determining, as a matter of statutory construction, whether a particular requirement or matter is a precondition of the existence of authority to decide an issue or to make an order in the circumstances of the particular case. As set out below, the requirements of s 35A(2) of the Crimes (Sentencing Procedure) Act do not fall into that category.

5. [32]

   Mr Corliss, in his written submissions, places some weight upon two cases which he submits support his contention that Herbert DCJ fell into jurisdictional error in not making the orders he sought under s 43 of the Crimes (Sentencing Procedure) Act. In the first, R v Toyer (No 2) [2021] NSWDC 92 Lerve DCJ imposed a sentence of imprisonment of 1 year and 10 months to be served by an Intensive Correction Order. Imposition of an Intensive Correction Order was a course that was not available given that the offender had been found guilty of manslaughter: Crimes (Sentencing Procedure) Act, s 67(1). The sentence was thus contrary to law. In that context, Lerve DCJ reopened the proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act. In the second, R v Baxter (No 2) [2019] NSWDC 736, it was contended that the sentencing judge had failed to deal with breach of bond matters in sentencing for a robbery offence and that the proceedings could thus be reopened pursuant to s 43. Grant DCJ held that s 43 did not allow the reopening of the proceeding. At [34] Grant DCJ held that, whilst he had fallen into error in not dealing with the breach proceedings, the sentence imposed was not contrary to law.

6. [33]

   The starting point for consideration of ground 1 is determining what Herbert DCJ found on 15 December 2022. On a fair reading of the transcript of the proceedings on that day, it is apparent that Herbert DCJ did not refuse Mr Corliss’ application on the basis that the Court did not have jurisdiction to consider whether or not to make orders pursuant to s 43. Rather, her Honour found that s 43 of the Crimes (Sentencing Procedure) Act did not empower the Court to make the orders Mr Corliss sought “on the basis of the errors that [Mr Corliss said had] been demonstrated in this matter”. In so finding, Herbert DCJ clearly considered the merits of Mr Corliss’ motion. Thus, I would reject Mr Corliss’ contention that Herbert DCJ failed on 15 December 2022 to consider and determine whether to make an order under s 43 of the Crimes (Sentencing Procedure) Act.

7. [34]

   Mr Corliss’ second contention, that on 15 December 2022 Herbert DCJ fell into jurisdictional error in not making the orders he sought in his motion should also be rejected. Herbert DCJ was correct that s 43 of the Crimes (Sentencing Procedure) Act did not confer power to reopen Mr Corliss’ sentencing proceedings on account of the fact that the sentencing judge had regard to the form 1 offence notwithstanding the failure of the prosecutor to comply with s 35A(2) of the Crimes (Sentencing Procedure) Act. Despite that error, the sentence imposed upon Mr Corliss, being the relevant “penalty” for the purposes of s 43, was not itself contrary to law within the meaning of s 43. At most, the error relied upon by Mr Corliss could be characterised as an error of law in the course of determining what penalty to impose. The penalty imposed was nonetheless a sentence that Herbert DCJ had power to impose having regard to the provisions of the Crimes (Sentencing Procedure) Act. As is clear from the judgment of the plurality in Achurch at [36], set out above, s 43 is not engaged merely by reason of there being such an error. Further, as set out by Gageler J in Achurch at [41], s 43 is only engaged where the penalty is “in its terms an order that the court could not have made in criminal proceedings”. The sentence imposed upon Mr Corliss could not be so characterised.

8. [35]

   This conclusion derives from the terms of s 35A, construed in the context of the Crimes (Sentencing Procedure) Act as a whole. In this case, the question whether the error relied upon by Mr Corliss is jurisdictional coincides precisely with the question whether that error leads to the penalty being “contrary to law”. This is because the only basis upon which the sentence imposed upon Mr Corliss could be so characterised would be if the sentencing judge did not have jurisdiction to impose it having regard to the fact that the sentencing judge took into account the form 1 offence notwithstanding the prosecutor’s failure to file the certificate required by s 35A(2). Both matters therefore turn on whether the relevant error goes to jurisdiction. This in turn depends upon the proper construction of the relevant statutory requirement: Stanley (HC) at [55] (Gordon, Edelman, Stewart and Gleeson JJ).

9. [36]

   The following matters tell strongly against a conclusion that the error relied upon by Mr Corliss is jurisdictional, or has the consequence that the sentence imposed was “contrary to law”, notwithstanding the mandatory language of s 35A(2).

   1. (1)

      As the majority held in Stanley (HC) at [87], the use of mandatory language in the Crimes (Sentencing Procedure) Act is a relevant but not conclusive indication that a particular consideration is a condition or limit on jurisdiction. As was there observed, in the Crimes (Sentencing Procedure) Act mandatory language is used in several instances in which it is unlikely that the legislative intention was that non-compliance would result in invalidity.

   2. (2)

      Section 35A(5), which provides that the court may require the prosecution to explain the reason for a failure to file a certificate when it is required by the section to do so, strongly suggests that a failure by the prosecutor to file a certificate under s 35A does not go to the jurisdiction of the sentencing court to have regard to a form 1 offence. Rather, it indicates that the court retains power to take a form 1 offence into account on sentence even if no certificate is filed, but that the court has power to require an explanation for the non-compliance from the prosecutor. The obvious purpose of the power is so that the court can, if it considers it appropriate, seek an explanation from the prosecutor for the purpose of determining whether to take a statement of agreed facts or form 1 offence, into account. There would be no point in providing such a power if the failure to file the required certificate precluded the statement of agreed facts or form 1 offence being taken into account at all.

   3. (3)

      The substantive requirements of s 35A suggest that compliance with its requirements were not intended to be jurisdictional. They plainly provide important safeguards to ensure that there has been consultation with the victim and the police officer in charge of the investigation before a form 1 offence or statement of agreed facts is taken into account on sentence. However, those safeguards are superimposed on a legislative scheme in which there is already, in s 33, careful delineation of the circumstances in which a form 1 offence can be taken into account, including that the offender both admits guilt of the form 1 offence and indicates that they want the court to take the form 1 offence into account on sentence. The requirement that the prosecutor file the certificate required by s 35A(2) goes to matters over and above the offender’s admission of guilt and request that the offence be taken into account as a form 1 offence. Similarly, the requirement that a certificate be filed by the prosecutor verifying that the statement of agreed facts constitutes a fair and accurate account of the objective criminality and is in accordance with the applicable prosecution guidelines is imposed in a context in which the prosecutor is already subject to those guidelines. It is unlikely that Parliament intended that the requirement to file the certificate would, in these circumstances, go to jurisdiction.

   4. (4)

      That conclusion is consistent with the terms of s 32(6), which provides that a failure to comply with the requirements of s 32 as regards the list of form 1 offences to be taken into account “does not invalidate any sentence imposed by the court for the principal offence”. The requirements of s 32 include that the list of form 1 offences is signed by the offender and by or on behalf of the Director. Given the obvious significance of the list of form 1 offences, it would be surprising if a failure to comply with s 32 was not jurisdictional, but a failure to comply with s 35A(2) were. That suggests that Parliament did not intend compliance with s 35A(2) to go to jurisdiction. Whilst s 35A does not include an equivalent to s 32(6), it does include s 35A(5) which in its terms strongly indicates that a failure to file a certificate required by s 35A does not go to jurisdiction.

   5. (5)

      In Stanley (HC), at [88], the majority, by reference to the decision of the High Court in Craig at 180, held that a failure by an inferior court to consider a matter which it is required by law to take into account in determining a question within jurisdiction will not ordinarily involve jurisdictional error. In that case, the error went “beyond that ordinary case”: at [88]. Critical to that conclusion, as identified at [82], was that the discretionary power and corresponding duty in s 66 of the Crimes (Sentencing Procedure) Act “fundamentally changes the nature of the sentence of imprisonment imposed from full-time detention to one of intensive correction in the community”, and to misconceive the nature of that function or to fail to comply with a condition on the jurisdiction when exercising the power had the consequence that the sentencing court brought itself outside of jurisdiction. That is a far cry from the error relied upon by Mr Corliss in this case.

10. [37]

    Neither of the cases which Mr Corliss relies upon as examples of the application of s 43 support his contention that the error he relies upon enlivens jurisdiction under s 43 to make the orders he seeks. The Intensive Correction Order imposed by Lerve DCJ in R v Toyer was a penalty which was not available given that the offender was convicted of the offence of manslaughter. The penalty was contrary to law within the meaning of s 43, as the Court had no power to impose it under the applicable statutory regime. In R v Baxter, Grant DCJ held that the sentencing error he had made by not considering the breach of bond matters before sentencing did not have the consequence that the sentence his Honour imposed was contrary to law within the meaning of s 43, having regard to the decision of the High Court in Achurch. That decision does not assist Mr Corliss’ contention that a different conclusion should be reached in this case.

11. [38]

    Mr Corliss relies only upon the prosecutor’s failure to comply with the requirements of s 35A(2) in support of his contentions that the sentence imposed upon him on 12 April 2018 was a penalty that was contrary to law so as to engage jurisdiction under s 43. In these circumstances, ground 1 should be dismissed.

Ground 2: that Herbert DCJ fell into jurisdictional error on account of a failure to give proper reasons

1. [39]

   Mr Corliss contends that that Herbert DCJ fell into jurisdictional error by failing to give reasons as to why the District Court lacked jurisdiction, particularly when this “complex area of law is subject to judicial review”.

2. [40]

   As Mr Corliss submits, the obligation upon a court to provide reasons after trials and in important interlocutory decisions is “well established”: see eg AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89] (Heydon J); Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 (“Wainohu”) at [54]-[56] (French CJ and Kiefel J). However, as held by French CJ and Kiefel J in Wainohu at [56]:

3. [41]

   As held by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, what is necessary is that:

4. [42]

   A duty to give reasons arises in cases which are not subject to a right of appeal: see eg Wainohu at [57] (French CJ and Kiefel J). In such cases, the duty to give reasons serves the purpose of promoting good decision making, the acceptability of judicial decisions and accountability: AK v Western Australia at [89] citing Gleeson, “Judicial Accountability”, The Judicial Review, vol 2 (1995) 117 at 122; cited with approval by French CJ and Kiefel J in Wainohu at [56]. It is also an incident of the “open court principle”; Wainohu at [58].

5. [43]

   In Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 (“Alexandria Landfill”) at [29], Basten JA considered the purpose of the duty to give reasons in a case where an appeal was only available on questions of law:

6. [44]

   Accepting that Herbert DCJ was required to give reasons for dismissing Mr Corliss’ motion on 15 December 2022, the content of that duty was shaped by the nature of the interlocutory application before her Honour. Moreover, there was no right of appeal against her Honour’s decision, albeit the decision was reviewable under s 69 of the Supreme Court Act. In these circumstances, the purpose of the duty the give reasons is somewhat analogous to that identified by Basten JA in Alexandria Landfill.

7. [45]

   The question before her Honour on 15 December 2022 was whether proceedings that had been finally determined could be re-opened under s 43 of the Crimes (Sentencing Procedure) Act by reason of the fact that the sentencing judge had taken into account a form 1 offence in circumstances in which the requirement under s 35A(2) that the prosecutor file a certificate under that section had not been complied with. The threshold question for Herbert DCJ was whether or not the Court had power, under s 43, to reopen proceedings on account of an error of that character.

8. [46]

   The reasons were given ex tempore. As is clear from the transcript of proceedings on 15 December 2022, Herbert DCJ:

   1. (1)

      Identified the nature of the application being made by Mr Corliss and the relevant matters in the procedural history of the matter;

   2. (2)

      Identified that the difficulty with Mr Corliss’ application was that the errors that Mr Corliss alleged were not of a character that the Court had jurisdiction under s 43 to make the orders that Mr Corliss sought, which were to quash his sentence and to effectively have the matter recommence; and

   3. (3)

      Clarified that her Honour had not formed any view as to whether or not Mr Corliss had established the errors he alleged.

9. [47]

   Whilst her Honour’s reasons were not lengthy, they adequately conveyed the essential ground upon which the decision rested. They conveyed both to Mr Corliss, and the public, that the reason why the Court dismissed Mr Corliss’ motion was because the error he alleged did not entitle the Court to set aside his sentence. There was no failure to give reasons sufficient to constitute an error of law.

10. [48]

    In any event, the reasons do not reveal a constructive failure to exercise jurisdiction or another form of jurisdictional error. Where, as here, there was no statutory duty upon the Court to give reasons as a condition of the exercise of power, even if there had been a failure by Herbert DCJ to give adequate reasons that would not have constituted jurisdictional error. As Kirk JA (White and Mitchelmore JJA agreeing) held in Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [46]:

11. [49]

    For these reasons, ground 2 should be dismissed.

Ground 3: denial of procedural fairness

1. [50]

   By ground 3 of the amended summons before the Court Mr Corliss contends that:

2. [51]

   Mr Corliss’ real complaint is that he claims that he was denied an opportunity to deal with a material issue at the hearing before Herbert DCJ on 15 December 2022. In particular, he contends that he was denied the opportunity at the hearing to make oral submissions as to why Herbert DCJ should exercise power under s 43 to set aside his sentence. To the extent that Mr Corliss complains that the Crown was not given an opportunity to make oral submissions, as the Director makes no complaint about this it is not a matter that properly falls to Mr Corliss to raise in an application for review under s 69 of the Supreme Court Act.

3. [52]

   Mr Corliss submits that Herbert DCJ had an obligation “to pay greater attention to the principles of natural justice” given the fact that he is a self-represented litigant.

4. [53]

   It is unnecessary to decide whether, in this case, there was any denial of procedural fairness as I am satisfied that no practical injustice was caused to Mr Corliss in any event. In MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [32], the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) explained:

5. [54]

   Consistent with this, in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 the High Court held that a failure to afford procedural fairness involves jurisdictional error only where that failure was material to the relevant decision, which requires that the person affected show that the failure deprived them of a realistic possibility of a different outcome. Kiefel CJ, Keane and Gleeson JJ held, at [32]:

6. [55]

   Having regard to the matters set out as regards ground 1, any failure during the hearing on 15 December 2022 to give Mr Corliss an opportunity to make oral submissions to supplement his lengthy written submissions on the motion could not have given rise to a realistic possibility of a different decision having been made. The error relied upon by Mr Corliss, was not, and could not properly have been, characterised as something which had the consequence that his sentence was contrary to law within the meaning of s 43. That was simply not an available conclusion in the circumstances. In these circumstances, such failure did not lead to any practical injustice. Even if there was a denial of procedural fairness, it was not material.

7. [56]

   Ground 3 should also be dismissed.

Conclusion

1. [57]

   In light of my conclusions set out above, the amended summons should be dismissed.

2. [58]

   In the event of such an outcome, the Director seeks an order that Mr Corliss pay her costs of the application.

3. [59]

   Mr Corliss, in his submissions in reply (in his affidavit affirmed 14 September 2023) submits that there are four reasons why he should not be ordered to pay the costs of the motion. These are, in essence:

   1. (1)

      That the matter being litigated is essentially criminal in nature;

   2. (2)

      That the matter only arises because the Director acted in bad faith or did not fulfil their obligations to the sentencing judge in not filing the certificate required by s 35A(2), in not informing Judge Hanley SC of the Court’s power under s 43 at the hearing on 3 March 2021 and in refusing “to admit their failure [to] comply with the law” for at least 18 months;

   3. (3)

      Mr Corliss is a pensioner with limited assets and his application for fee waiver is pending the outcome of the proceedings; and

   4. (4)

      The application is in the public interest as there is a divergence of opinion as regards the issue before the Court. In this regard Mr Corliss refers to Achurch and Stanley (HC).

4. [60]

   As to (1), these are unquestionably civil proceedings albeit that the decision under review was made in the exercise of the criminal jurisdiction of the District Court. The jurisdiction as to costs does not depend upon the character of the decision under review, and this is not a factor which, in my judgment, should lead to anything other than an order that costs should follow the event in this case. As to (2) the fact that the “error” complained of by Mr Corliss was a failure of the Director to these proceedings provides the context for this application but does not provide a basis not to order Mr Corliss to pay the costs of the proceedings. The other matters relied upon similarly do not provide such a basis. There was no obligation upon counsel for the Director to inform the Court of s 43 at the hearing on 3 March 2021 as s 43 did not confer a power to make the orders that Mr Corliss was then seeking. There is no evidence before this Court to support a contention that the Director refused to admit that no certificate was filed under s 35A(2) at the time of Mr Corliss’ sentencing proceedings.

5. [61]

   As to (3), Mr Corliss’ impecuniosity is not relevant: Sassoon v Rose [2013] NSWCA 220 at [10] (Meagher JA, Gleeson JA agreeing). As to (4), this was not an application which clarified uncertainty in the law. Contrary to Mr Corliss’ contention, there is no confusion or uncertainty afflicting the issue of the proper ambit of s 43. In any event, even if there were such confusion or uncertainty, there is no doubt that the error relied upon by Mr Corliss does not enliven the Court’s power under s 43.

6. [62]

   In the circumstances, I am not satisfied that there is any reason to displace the usual order as to costs.

7. [63]

   I propose the following orders:

   1. (1)

      The amended summons filed on 10 July 2023 is dismissed.

   2. (2)

      Mr Corliss is to pay the Director’s costs as agreed or assessed.

8. [64]

   BASTEN AJA: On 12 April 2018 the applicant, Patrick Joseph Corliss, was sentenced by Judge Herbert in the District Court to an aggregate sentence of seven years imprisonment with a non-parole period of four years and four months, for five counts involving sexual assaults which occurred between 1978 and 1980. A sixth count was included on a form 1 and taken into account by the judge in indicating the individual sentence which would have been imposed for an offence under s 71 of the Crimes Act 1900 (NSW), as in force at the relevant time. A seventh charge on the original court attendance notice was not pressed.

9. [65]

   The applicant sought leave to appeal against the aggregate sentence. On 8 April 2020 the Court of Criminal Appeal granted leave to appeal, but dismissed the appeal. [1] There followed an application under r 50C of the Criminal Appeal Rules (as then in force) seeking to reopen the judgment of the Court of Criminal Appeal, an application which was refused on 29 July 2020. [2]

10. [66]

    On 20 January 2021, the applicant filed a notice of motion in the District Court seeking to have the sentence “set aside” on the ground that the prosecutor had failed to file a certificate under s 35A of the Crimes (Sentencing Procedure) Act 1999 (NSW). That motion came before Judge Hanley SC on 3 March 2021. Judge Hanley stated:

11. [67]

    There was no application to review that decision.

12. [68]

    On 22 November 2022, the applicant filed a further notice of motion seeking to have the District Court reopen the sentencing orders of Herbert DCJ, pursuant to s 43 of the Sentencing Procedure Act, “to correct an error of law”. The motion also stated that the sentence imposed on 12 April 2018 was “contrary to law” and should be “set aside”.

13. [69]

    That motion came before Herbert DCJ on 15 December 2022, who stated:

14. [70]

    By an amended summons filed on 10 July 2023 in the supervisory jurisdiction of this Court, the applicant sought orders setting aside the decision of Herbert DCJ of 15 December 2022, and declaring that the decision was “invalid”. The first (and, it was submitted, primary) ground of review was that Herbert DCJ made a jurisdictional error in determining that the District Court lacked jurisdiction to deal with the motion under s 43(2) of the Sentencing Procedure Act.

15. [71]

    The alleged error was that the sentencing had proceeded in circumstances where the prosecutor had agreed to abandon one matter (sequence 1) and allow a second matter (sequence 2) to be included on a form 1 and taken into account with respect to another matter, being sequence 7. It was common ground that there had been “charge negotiations” and that in order for the court to take a matter into account, pursuant to s 33(2), the prosecutor was required to file a certificate under s 35A stating that “requisite consultation” had taken place or, if it had not, the reasons why it had not.

16. [72]

    For the reasons explained by Stern JA, the omission did not constitute a jurisdictional error invalidating the sentence. I agree that the summons in this Court should be dismissed on that basis.

17. [73]

    There is, however, an even more fundamental problem, which appears to have been recognised by both District Court judges in rejecting the motions before them. It is that the sentence having been appealed to the Court of Criminal Appeal, unsuccessfully, it is no longer open to the applicant to seek to impugn the validity of the sentence the subject of those proceedings.

18. [74]

    The applicant had, and exercised, a right of appeal (subject to a grant of leave), in accordance with s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), “against the sentence passed on the person’s conviction”. In accordance with the principles stated in Grierson v The King [3] there is no second right of appeal, nor may an application be made to reopen the original appeal, even where it was suggested that material facts had become known after the appeal had been disposed of. That principle is subject to a limited right, conferred by the rules, prior to entry of orders or within 14 days thereafter, or where there has been a clerical mistake or accidental slip or omission. [4] There is no reason to suppose that that principle of finality does not apply with respect to an appeal against sentence. Part of the rationale for that conclusion in Grierson was the existence of alternative means of seeking relief where a basis for doubting the correctness of a conviction was available under other statutory provisions, now found in Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW). Those provisions apply equally to sentences where there is a doubt or question as to “any mitigating circumstances in the case”. [5]

19. [75]

    Secondly, there is no reason to doubt that a right of appeal “against the sentence passed on the person’s conviction” would extend to a ground asserting the invalidity of the sentence, because imposed without jurisdiction. That conclusion is consistent with the approach to an appeal from a void decision accepted by the Privy Council in Calvin v Carr [6] and by the Full Court of the Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd. [7] The latter case was applied in this Court in The Ombudsman v Laughton [8] for the related proposition that a legally ineffective or void (administrative) decision is susceptible to an appeal.

20. [76]

    Whether it is said that the original decision merged in the decision of the appellate court, or that the later decision superseded the earlier decision, it is clear that the applicant could no longer invite the District Court to reopen its own decision, having presented the correctness of that decision to the appellate court for its consideration and obtained a ruling. Whatever the precise legal analysis may be, it is self-evidently inconsistent with the hierarchical structure of the courts for a court from which an appeal has been taken to change its orders after the appeal had been determined, thereby rendering the hearing and determination of the appeal nugatory.

21. [77]

    This difficulty was clearly appreciated by both Hanley DCJ and Herbert DCJ, correctly. The refusal of each to intervene to correct a matter which could have been, but was not, dealt with in the appeal, was entirely appropriate. No other course was open to them.

22. [78]

    The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation [9] involved a challenge to a decision of the Australian Conciliation and Arbitration Commission alleging procedural unfairness on the part of Deputy President Marks, who had heard a matter which was opposed by the applicant (the BLF). The BLF appealed to a Full Bench of the Commission, unsuccessfully, and then sought judicial review based on a denial of procedural fairness by Marks J. Before the High Court, the BLF argued that “if the challenge to the decision of Marks J succeeded on the footing that it was void, the confirmation of that decision by the Full Bench would have no operative effect”. [10]

23. [79]

    Mason J rejected that submission, stating:

24. [80]

    Aickin J relevantly agreed with Mason J (at 493). Murphy J and Wilson J did not address the question expressly, and Brennan J noted that it was unnecessary to consider “whether an order of confirmation supersedes an order made by a Presidential Member”: at 499.

25. [81]

    This decision, and Wishart v Fraser, [11] are relied upon by the Hon KR Handley in Spencer Bower and Handley: Res Judicata [12] in dealing with an English Court of Appeal decision allowing the reopening of an appeal based on discovery of fresh evidence of alleged ostensible bias on the part of the trial judge:

26. [82]

    The English cases are not presently relevant: Grierson requires this Court to deny the availability of a second appeal to the Court of Criminal Appeal. In that circumstance, the law would be incoherent if that application of the principle of finality could be subverted by returning to the court below and seeking to have it reopen the orders which had been the subject of an unsuccessful appeal.

27. [83]

    It may be noted that the applicant, despite an absence of legal training, was alert to this problem. He addressed in written submissions an argument that the primary judge had “taken the view that a matter referred to a higher court becomes functus officio in the lower court” or “that the court is functus officio until the superior court remits the matter back to the lower court”. [13] The applicant considered that a court could not be functus officio where there was statutory authority to reopen the proceedings, a response which did not address the fact that s 43 was not relied upon to reopen the decision of the Court of Criminal Appeal. The applicant further noted that “functus officio is thus bound up with the doctrine of res judicata” which, he stated, “prevents the reopening of a matter before the same court … that renders the final decision”. [14] His response was that res judicata did not arise because the matter had not been fully determined. However, if that were so, the doctrine of res judicata would never operate to prevent the reopening of a final judgment where the unsuccessful party wished to raise some point not raised before and therefore not dealt with in the earlier judgment. That submission cannot be accepted.

28. [84]

    It follows that, as Judge Herbert recognised in the first part of her response to the applicant, she had no jurisdiction to entertain a motion to reopen the sentencing orders which had been the subject of an appeal to the Court of Criminal Appeal. For these reasons, in addition to those relied upon by Stern JA, the proceedings in this Court must be dismissed.