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Supreme Court 10 March 2004

R v Cheney

[2004] NSWSC 104

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
INQUIRY INTO CONVICTION FRESH EVIDENCE DNA EVIDENCE

Citation: R v Cheney [2004] NSWSC 104
Court: Supreme Court of New South Wales (Common Law Division, Criminal List)
Date: 10 March 2004
Judge(s): Shaw J

Background

The applicant, a self-represented prisoner incarcerated at Goulburn, petitioned the Supreme Court seeking an inquiry into his 1995 conviction on 14 counts arising from a series of offences committed in Port Macquarie in late 1993. Those offences included kidnapping, sexual intercourse with children under ten years of age, indecent assault, break and enter, robbery, using an offensive weapon, and assaulting police.

The applicant had exhausted his conventional appellate options. The Court of Criminal Appeal had dismissed his conviction appeal in 1999 (varying sentence only), and the High Court had refused special leave to appeal in 2001. He then brought this petition under s 474D of the Crimes Act 1900 (NSW), which allows a judge to direct an inquiry into a conviction where a doubt or question as to guilt arises.

The applicant contended that DNA evidence existed which had not been fully explored, and he alleged that police had fabricated or manipulated the admissions relied upon at trial. He sought access to DNA documentation held by a forensic scientist, Mr Goetz, who had examined items including a pair of black track pants.

  • Whether the court should exercise its discretion under s 474D of the Crimes Act 1900 (NSW) to direct an inquiry into the conviction
  • Whether the material presented, including the alleged fresh DNA evidence, gave rise to a sufficient doubt or question as to the applicant's guilt to warrant such an inquiry
  • Whether the allegations of police misconduct provided grounds for an inquiry

Decision

The threshold for directing an inquiry under s 474D is the existence of a "doubt or question" as to the petitioner's guilt, framed in some cases as a sense of "unease" in allowing the conviction to stand. Shaw J applied this standard, drawing on Varley v Attorney-General and the approach taken in Application by Robert Scott Havell.

The central difficulty the court identified was that neither the nature nor the results of any DNA testing were before it. The applicant had made efforts to obtain DNA documentation from Mr Goetz, but the results of any such testing remained entirely unknown. Without knowing what the DNA evidence actually showed, the court was unable to form the requisite sense of unease about the conviction.

Shaw J also accepted the Crown's submission that there was no real evidence of police corruption. The trial had proceeded on a powerful circumstantial case, and the applicant and his legal representatives had had the opportunity to investigate and test the medical evidence, including Mr Goetz's report, which had been tendered at trial.

On that basis, the court declined to direct an inquiry and dismissed the petition.

Orders Made

  • The petition was dismissed.

Key Takeaways

  • Under s 474D of the Crimes Act 1900 (NSW), a judge will direct an inquiry into a conviction only where there is a genuine doubt or question as to the petitioner's guilt, sometimes described as a sense of "unease" in allowing the conviction to stand.
  • A bare assertion that DNA evidence exists is insufficient to satisfy this threshold; the applicant must place before the court material that actually reveals the nature and results of that evidence.
  • Where DNA results are entirely unknown, the court cannot assess whether they are capable of raising a doubt about guilt, and an inquiry will not be ordered on speculative grounds alone.
  • Allegations of police misconduct will not ground an inquiry in the absence of real supporting evidence, particularly where the prosecution case was otherwise strong.
  • The decision confirms that the s 474D jurisdiction is not a further avenue for re-litigating a conviction without fresh material that has genuine probative significance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 474D
- Criminal Appeal Act 1912 (NSW)

Cases
- Varley v Attorney-General (1978) 8 NSWLR 30
- Application by Robert Scott Havell, Buddin J, 9 December 2003
- R v Cheney [1999] NSWCCA 312
- Cheney v The Queen S286/2000 (14 December 2001)
- R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362
- R v Sing (2001) 54 NSWLR 31
- R v Button [2001] QCA 133
- Douglas Harry Rendell (1987) 32 A Crim R 243