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Supreme Court 28 June 2001

REGINA v. SUEY

[2001] NSWSC 543

Sexual offencesFirearms & weapons
WHETHER DOUBT OR QUESTION AS TO GUILT NECESSITY TO DETERMINE ISSUES ENQUIRY DIRECTED.

Citation: Regina v Suey [2001] NSWSC 543
Court: Supreme Court of New South Wales (Criminal Division)
Date: 28 June 2001
Judge(s): Greg James J

Background

The convicted person, Ronald James Suey, was found guilty by a jury in the District Court of New South Wales on nine indictable offences arising from events in November 1996. The counts included possessing an offensive weapon with intent to commit an indictable offence, a specially aggravated break and enter, abduction, and multiple charges of aggravated sexual intercourse without consent. The offences were alleged to have been committed against a complainant identified only as "LT" during an incident at a remote country property.

The Crown case was that Suey and three others attended the property armed with a shotgun, ostensibly to commit armed robbery of a suspected drug dealer. On the Crown's account, Suey entered the premises, seized the complainant, forcibly removed her, and thereafter participated in and was complicit in serious sexual offending. Suey was sentenced to a total of 20 years' penal servitude, comprising a 15-year minimum term and a five-year additional term.

Suey appealed to the Court of Criminal Appeal on multiple grounds, including fresh evidence, alleged impropriety by police and prosecution, alleged inadequacy of defence representation, and a contention that the verdicts were unreasonable or unsupported by the evidence. When those appeals generated a large volume of factual disputes, the Court of Criminal Appeal remitted the factual issues to a single judge of a court of trial for resolution. Suey separately applied for a post-conviction enquiry under the Crimes Act 1900.

  • Whether the material before the court gave rise to a sufficient "doubt or question" as to the convicted person's guilt to warrant directing a formal enquiry under s 474E(1)(a) of the Crimes Act 1900.
  • Whether such an enquiry should be deferred pending the determination of the outstanding appeal to the Court of Criminal Appeal.
  • How to manage the overlap between the subject matter of the appeal grounds and the matters proposed to be covered by the enquiry.

Decision

Greg James J found that the material before the court raised a doubt or question, in the sense described by the relevant authorities, as to Suey's guilt, as to any mitigating circumstances, and as to parts of the evidence adduced at trial. This threshold, often described in the authorities as a "sense of unease or disquiet," was satisfied on the facts as presented.

The question of whether to defer the enquiry until after the appeal was resolved was addressed practically. The enquiry was proposed to cover a range of factual matters, including allegations of police misconduct (such as the planting of evidence), DNA evidence, and the reliability of certain witnesses. Both the Crown and the applicant accepted that deferral was not appropriate, partly because the applicant had elected to abandon any grounds of appeal that overlapped with the subject matter of the enquiry.

That election meant the enquiry and the remaining appeal could proceed without duplicating effort or risk. The applicant's acceptance that convictions might be supported by further Crown evidence, and the Crown's acceptance that the enquiry could extend to examining whether a procedural miscarriage had occurred, shaped the court's approach. Greg James J directed the enquiry to proceed accordingly, and indicated the Chief Justice had intimated he should be appointed to conduct it.

Orders Made

  • An enquiry directed to be conducted by a prescribed person in accordance with s 474E(1)(a) of the Crimes Act 1900, and conducted in accordance with s 474G.
  • Greg James J to be appointed to conduct the enquiry, subject to no objection from the parties.
  • The applicant to abandon any grounds of appeal covered by the subject matter of the enquiry.

Key Takeaways

  • Under s 474E(1)(a) of the Crimes Act 1900, a post-conviction enquiry may be directed where the court identifies a "doubt or question" as to the convicted person's guilt, mitigating circumstances, or aspects of the evidence at trial, sometimes described in the case law as a "sense of unease or disquiet."
  • A post-conviction enquiry need not automatically be deferred pending an outstanding appeal to the Court of Criminal Appeal, particularly where the subject matter of the two proceedings can be separated and the applicant elects to abandon overlapping appeal grounds.
  • Remittal by the Court of Criminal Appeal of factual questions to a single trial judge does not preclude a separate post-conviction enquiry being directed at the same level of court, where the statutory threshold is independently satisfied.
  • The scope of an enquiry under these provisions can extend to allegations of serious police and prosecutorial misconduct, including evidence-planting, matters that may benefit from expertise derived from Royal Commission experience.
  • Where both parties accept that deferral is unwarranted and the overlap between the appeal and the proposed enquiry is resolved by the applicant's election to abandon duplicated grounds, the court retains a practical and flexible discretion as to how and when the enquiry proceeds.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(3), 474E(1)(a), 474G

Cases
- The application of Bernard Lewis Moore [2000] NSWSC 364
- The application of Raymond Grant Pedrana [2000] NSWSC 975
- Pedrana [2001] NSWCCA 266
- Johns [1999] NSWCCA 206
- Varley v Attorney General (1986) NSWLR 30
- The application of Harry Rendell (1987) 32 A Crim R 243
- Canellis v Slattery (1994) 33 NSWLR 104