Citation: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
Court: Supreme Court of New South Wales
Date: 28 March 2008
Judge(s): Johnson J
Background
The applicant had been convicted in the District Court of New South Wales on 21 May 2002 of aggravated sexual intercourse without consent and attempted sexual intercourse without consent. He applied in 2006 under what was then Part 13A of the Crimes Act 1900, seeking an inquiry into those convictions. By the time the application was determined, the relevant provisions had been re-enacted as Part 7 of the Crimes (Appeal and Review) Act 2001, and the application proceeded under that legislation.
The applicant represented himself throughout the proceedings. He submitted lengthy written submissions, referencing numerous cases and other materials, and raised a range of challenges directed at the evidence against him, including questions about the physical injuries observed on the complainant.
The Crown opposed the application at each stage, with senior counsel filing submissions on the Crown's behalf.
Legal Issues
- Whether the application gave rise to a "doubt or question" as to the applicant's guilt, as required by s.79(2) of the Crimes (Appeal and Review) Act 2001
- Whether any doubt or question existed as to a part of the evidence in the case (specifically the injury evidence), and if so, whether that doubt or question affected the conclusion of guilt
- What the correct standard and approach is when determining an application under s.78, including the role of the "unease or disquiet" test
- Whether the application should be referred to the Court of Criminal Appeal or an inquiry directed
Decision
Johnson J outlined the nature of the s.78 application at the outset: it is an administrative process, not a judicial proceeding. The governing test is whether it "appears" that there is a doubt or question as to the convicted person's guilt, as to mitigating circumstances, or as to any part of the evidence. Consistent with longstanding authority, this doubt or question may be indicated where the material causes the decision-maker "unease or a sense of disquiet" in allowing the conviction to stand.
The judge considered each of the principal topics raised by the applicant in turn. On every ground examined, Johnson J concluded that no doubt or question arose as to the applicant's guilt. The court found, in particular, that the evidence concerning the complainant's injuries did not generate any relevant doubt or question. Where questions were raised about part of the evidence, the court assessed whether those questions had any material impact on the conclusion of guilt, and determined they did not.
Johnson J acknowledged the volume of material assembled by the applicant and noted that submissions touching on a broader range of issues had been taken into account, even where not separately addressed in the reasons. The court was satisfied that the materials and submissions, considered as a whole, did not cause unease or disquiet about the convictions remaining in place.
The court declined to direct an inquiry or to refer the case to the Court of Criminal Appeal under s.79(1). The application was refused.
Orders Made
- The application under s.78 of the Crimes (Appeal and Review) Act 2001 was refused.
Key Takeaways
- Under s.79(2) of the Crimes (Appeal and Review) Act 2001, the Supreme Court may only direct an inquiry or refer a case to the Court of Criminal Appeal if it appears there is a "doubt or question" as to the convicted person's guilt, as to mitigating circumstances, or as to any part of the evidence in the case.
- The "unease or disquiet" formulation, originating in cases dealing with predecessor legislation, continues to guide assessment of whether the required doubt or question has been established.
- Where an applicant relies on a claimed doubt or question about part of the evidence, it is necessary to consider whether that doubt has real, material weight in relation to the ultimate conclusion of guilt. A theoretical or peripheral doubt about one piece of evidence is insufficient on its own.
- Proceedings under s.78 are administrative in character, not judicial, meaning the court performs an administrative act when determining such applications.
- In refusing the application, the Supreme Court confirmed that the length and detail of an applicant's submissions do not themselves generate the requisite doubt; the substance of the material must actually produce a sense of disquiet about the conviction.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001, ss.78-79
- Crimes Act 1900 (repealed Part 13A, ss.474B-474N)
- Criminal Appeal Act 1912
- Evidence Act 1995
- Criminal Procedure Act 1986
- Listening Devices Act 1984
Cases
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318
- Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 66 NSWLR 151
- Application of Rendell (1987) 32 A Crim R 243
- Application of Pedrana (2000) 117 A Crim R 45
- Application of Suey [2001] NSWSC 543
- Application of Moore (2000) 112 A Crim R 331
- Application of Milat (2005) 157 A Crim R 565
- Application of Higgins [2007] NSWSC 848
- R v Holland [2002] NSWCCA 469
- R v NZ (2005) 63 NSWLR 628
- The Queen v Swaffield; Pavic v The Queen [1998] 192 CLR 159
- TKWJ v The Queen [2002] 212 CLR 124
- Commissioner of Police v Ryan [2007] NSWCA 196