Corliss v Director of Public Prosecutions (NSW) [2023] NSWCA 263

Corliss v Director of Public Prosecutions (NSW) [2023] NSWCA 263

The amended summons was dismissed because the prosecutor's failure to file a certificate under s 35A(2) did not invalidate the sentence or make the penalty itself contrary to law for the purposes of s 43. The sentence was one the District Court had power to impose, and s 43 is not engaged by an error in the reasoning or process leading to a lawful penalty. Herbert DCJ's reasons adequately conveyed the essential ground for dismissing the motion, any inadequacy of reasons would not itself amount to jurisdictional error, and any procedural fairness deficiency was immaterial because further oral submissions could not have produced a realistic possibility of a different outcome.

Jurisdiction
Australia
Judgment Date
02 November 2023
Procedural Posture
Judicial Review of District Court Decision Dismissing Application to Reopen Sentencing Proceedings / Amended Summons in the NSW Court of Appeal Seeking Certiorari and a Declaration Under S 69 and S 75 of the Supreme Court Act 1970 (nsw)
Outcome
Amended summons dismissed with costs.
Legal Topics
['jurisdictional Error' 'application to Reopen Sentencing Proceedings' 'form 1 Offences' 'failure to File Certificate Under S 35 A(2)' 'adequacy of Reasons' 'procedural Fairness' 'materiality' 'finality of Appeals']
['administrative Law' 'criminal Law' 'sentencing'] ['jurisdictional Error' 'application to Reopen Sentencing Proceedings' 'form 1 Offences' 'failure to File Certificate Under S 35 A(2)' 'adequacy of Reasons' 'procedural Fairness' 'materiality' 'finality of Appeals']

Case Brief

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Procedural Posture

Judicial Review of District Court Decision Dismissing Application to Reopen Sentencing Proceedings / Amended Summons in the NSW Court of Appeal Seeking Certiorari and a Declaration Under S 69 and S 75 of the Supreme Court Act 1970 (nsw)

Legal Issues

  1. 1 ['Whether the District Court made jurisdictional error by determining that s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not empower it to reopen the sentencing proceedings.' 'Whether failure by the prosecutor to file a certificate under s 35A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) made the sentence a penalty imposed contrary to law within s 43.' 'Whether Herbert DCJ failed to give adequate reasons sufficient to constitute jurisdictional error or error of law.' 'Whether any denial of procedural fairness was material and caused practical injustice.' 'Whether sentencing orders that had been the subject of an unsuccessful appeal to the Court of Criminal Appeal could be reopened by the District Court.']

Ratio Decidendi

The amended summons was dismissed because the prosecutor's failure to file a certificate under s 35A(2) did not invalidate the sentence or make the penalty itself contrary to law for the purposes of s 43. The sentence was one the District Court had power to impose, and s 43 is not engaged by an error in the reasoning or process leading to a lawful penalty. Herbert DCJ's reasons adequately conveyed the essential ground for dismissing the motion, any inadequacy of reasons would not itself amount to jurisdictional error, and any procedural fairness deficiency was immaterial because further oral submissions could not have produced a realistic possibility of a different outcome.

Court Disposition

Amended summons dismissed with costs.

Orders

  • ['The amended summons filed on 10 July 2023 is dismissed.' "Mr Corliss is to pay the Director's costs as agreed or assessed."]