Simmons v R (No 2)

1. [1]

   THE COURT: On 5 February 2020 the Court heard the applicant’s application for leave to appeal and the appeal. On 14 February 2020 the Court made orders granting leave to appeal and dismissing the appeal and published its reasons: Simmons v R [2020] NSWCCA 16 (the Principal Judgment).

2. [2]

   On 27 February 2020, Mr Simmons (the applicant), applied for leave pursuant to r 50C of the Criminal Appeal Rules (NSW) which provides:

3. [3]

   It was common ground that the application under r 50C had been made within the time provided for under r 50C(2) and that the Court has power to set aside or vary an order if leave is granted.

4. [4]

   The application was accompanied by written submissions. The applicant sought leave on two bases. First, the appellant submitted that the Court did not address ground 3 separately; and, secondly, the appellant identified an error in the table of charges relied on by the Crown which was adopted by the Court in its judgment. The error related to the description of an offence on a Form 1.

5. [5]

   For the reasons which follow, the Court is not persuaded that leave is warranted. The Court did not consider it to be necessary to hear from the Crown in opposition to the application.

6. [6]

   The failure of this court to address a ground of appeal may constitute a basis for leave to be granted under r 50C: Baghdadi v R (No 2) [2012] NSWCCA 77. However r 50C does not permit a party to re-agitate an unsuccessful appeal or seek to argue it differently in the hope of obtaining a different result: Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554 at [48]-[53] (Beazley P, Fullerton and Hamill JJ).

7. [7]

   The applicant’s notice of appeal which was heard on 5 February 2020 contained the following 4 grounds:

8. [8]

   In the Principal Judgment, the Court (Adamson J, Macfarlan JA and Beech-Jones J agreeing) said, of present relevance:

9. [9]

   As referred to above, ground 3 was expressed as a separate ground in the notice of appeal. The applicant’s written submissions addressed this ground separately. However, in the course of oral argument it emerged that ground 3 was, in effect, the corollary to grounds 1 and 2. This proposition was initially resisted by Ms Wasley, who appeared on behalf of the applicant on 5 February 2020. However, she ultimately made the concession.

10. [10]

    The relevant passages from the transcript (at tr. 5.44-6.38 and tr. 7.36-8.6) are as follows:

11. [11]

    The sequence evident from the transcript extracted above was that, although Ms Wasley initially resisted the proposition that ground 3 was a corollary of grounds 1 and 2, she ultimately accepted the proposition that ground 3 was, in substance, dependent on the applicant making out either of grounds 1 or 2. In other words, her final submission was that what made the indicative sentences disproportionate (ground 3) was that the sentencing judge had erroneously taken into account conditional liberty and prior history in assessing objective seriousness (grounds 1 and 2). To the extent that lack of proportionality was alleged which was not covered by grounds 1 and 2, this fell to be considered under ground 4, the manifest excess ground, which appears to be the point Ms Wasley was making in the last passage extracted.

12. [12]

    It is plain from the transcript that this was the way the Crown understood the concession. In oral submissions, all that the Crown said with respect to ground 3 was as follows, at tr. 11.12-.13:

13. [13]

    When Ms Wasley was invited to make any submissions in reply, she indicated that she had nothing in reply. Thus, Ms Wasley, by her conduct, indicated to the Court that the Crown’s understanding of the concession, based on the exchange between the Presiding Judge and Ms Wasley was correct. In these circumstances, the applicant is bound by the conduct of his counsel.

14. [14]

    It is important to recognise the value of oral argument in appeals before this Court. While frequently counsel indicate that they rely on their written submissions, the hearing of an appeal is dynamic. Positions taken and submissions made in writing may be confirmed, varied or abandoned by counsel in the course of a hearing. These changes may arise as a result of further reflection by counsel or as a consequence of questions asked by the Bench or matters raised in opposition by other counsel. The Court is entitled to act on the basis of those concessions and decide the appeal or application accordingly. The principle that an accused is bound by the conduct of his or her counsel at trial (R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8] (Gleeson CJ) and [79] (McHugh J)) also applies in the different context of appeals.

15. [15]

    In the present case, there was an objectively sound forensic reason for Ms Wasley to make the concession which she did: ground 3 did depend on grounds 1 and 2 since this was the basis on which it was said that the indicative sentences were disproportionately high, having regard to the objective seriousness of the offences. In any event, proportionality necessarily arose as part of ground 4 since any disproportionality would tend to give rise to excess in the result. We add that separate consideration of Ground 3 would not in any event have affected the outcome of the application for leave to appeal as the only matters relevant to it were in our view covered by Grounds 1, 2 and 4.

16. [16]

    Having regard to the matters set out above, the Court is not persuaded that it is appropriate to grant leave pursuant to r 50C in respect of ground 3.

17. [17]

    As to the second matter, the applicant has raised the circumstance that this Court proceeded on the basis that offences on a Form 1 were to be taken into account on the sentence for sequence 17 (common assault) and not, as was the case, on the sentence for sequence 16 (aggravated break, enter and commit a serious indictable offence). The entry in the table contained in the Crown’s submissions was the source of this Court’s misapprehension, which was replicated in the table in the Court’s reasons. The Court relies on counsel to identify any errors in their own and their opponent’s submissions. While the Court takes care to ensure that its judgments reflect the primary records in the appeal books, it is entitled to rely on the parties to assist it in that process.

18. [18]

    The relevant principles were summarised by this Court in Kauwenberghs v R (Cth) [2009] NSWCCA 201 at [10] (Beazley JA, Hall and Fullerton JJ):

19. [19]

    For the reasons given above, the Court accepts that it proceeded on a misapprehension of fact. However, the Court is not satisfied that the matter complained of affected its decision in a material way. It was not relevant to grounds 1 and 2 and, in so far as it was relevant to proportionality, this issue was neutral to the ground of manifest excess since an aggregate sentence was imposed. The discrepancy is not of such materiality to warrant this Court re-opening the appeal. The Court has found, in its reasons for not upholding ground 4, that the sentence imposed was not manifestly excessive.

Orders

1. [20]

   The Court makes the following orders:

   1. (1)

      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.