Citation: Application of Alejandro Arturo Toro-Martinez [2008] NSWSC 34
Court: Supreme Court of New South Wales (Common Law Division)
Date: 1 February 2008
Judge(s): Hall J
Background
The applicant pleaded guilty in November 1999 to a charge under s 233B(1)(d) of the Customs Act 1901 (Cth) of being knowingly concerned in the importation of not less than a trafficable quantity of cocaine. He was sentenced in the District Court and subsequently appealed unsuccessfully to the Court of Criminal Appeal.
Acting without legal representation, the applicant wrote to the Supreme Court seeking a formal inquiry or referral under what became s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). His application raised two central complaints: that a witness had committed perjury during the proceedings, and that the investigation had involved illegal conduct by authorities that should have led to the exclusion of key evidence.
The Commonwealth Attorney-General's Department appeared in response to the application and submitted that the material disclosed no proper basis for an inquiry or referral.
Legal Issues
- Whether the material raised a sufficient doubt or question as to the applicant's guilt, any mitigating circumstances, or any part of the evidence, so as to warrant an inquiry or referral under s 79(2) of the Crimes (Appeal and Review) Act 2001
- Whether allegations of perjury by a witness at the original proceedings were supported by sufficient evidence
- Whether alleged investigative illegality by the National Crime Authority (NCA) had been adequately dealt with in prior proceedings
- Whether the Supreme Court had jurisdiction, in respect of a federal offender, to direct an inquiry under s 79(1)(a), or only to refer the matter to the Court of Criminal Appeal under s 79(1)(b)
Decision
Hall J confirmed that an application under s 78 of the Crimes (Appeal and Review) Act 2001 is not a judicial proceeding but an exercise of administrative power. The relevant test is whether the material before the court generates a doubt or question as to guilt, mitigating circumstances, or any part of the evidence. That threshold may be reached where the material causes a sense of unease or disquiet about allowing the conviction or sentence to stand.
On the perjury allegation, Hall J found that the applicant had not provided sufficient evidence to substantiate the claim. Without an evidentiary foundation, the allegation could not constitute the kind of "special fact or special circumstance" required to justify further action where a matter had already been the subject of appeal proceedings.
The allegation of investigative illegality had been fully ventilated before both the District Court and the Court of Criminal Appeal. The Court of Criminal Appeal had found that the NCA's conduct was covered by a valid certificate under s 15M of the Crimes Act 1914 (Cth) and that any residual impropriety did not reach the level required to exclude the evidence. The trial judge's exercise of the discretion under s 138 of the Evidence Act was left undisturbed. Hall J noted that these matters had therefore already been fully dealt with in prior proceedings.
Hall J concluded that the application raised no doubt, sense of unease, or disquiet regarding the conviction. No basis existed under s 79(2) to warrant referral to the Court of Criminal Appeal. The application was refused.
Orders Made
- Application under s 78 of the Crimes (Appeal and Review) Act 2001 refused.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001, the Supreme Court may only direct an inquiry or order a referral where the material generates a doubt or question as to guilt, mitigating circumstances, or the evidence, including where it causes a sense of unease or disquiet about the conviction standing.
- A bare allegation of perjury, unsupported by evidence, is insufficient to satisfy the threshold for further action under the statutory scheme.
- Where allegations of investigative illegality have already been fully considered by the trial court and the Court of Criminal Appeal, they cannot, without more, be revived through a s 78 application.
- In respect of federal offenders, the Supreme Court's powers under this statutory scheme are more limited: directing an inquiry under s 79(1)(a) is not available, and the court's role is confined to determining whether to refer the matter to the Court of Criminal Appeal under s 79(1)(b).
- Proceedings under s 79 are administrative, not judicial in character, a distinction confirmed by reference to Varley v Attorney General (NSW) (1987) 8 NSWLR 30 and Eastman v DPP (ACT) [2003] 214 CLR 318.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 76-88 (formerly Part 13A, Crimes Act 1900 (NSW))
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes Act 1914 (Cth), s 15M
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW)
- Freedom of Information Act 1982 (Cth)
Cases:
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Eastman v DPP (ACT) [2003] 214 CLR 318
- Application of Rendell (1987) 32 A Crim R 243
- Application of Moore (2000) 112 A Crim R 331
- Re Pedrana (2000) 117 A Crim R 459
- Application of Pearson [1999] NSWSC 143
- Application of El Hani [2007] NSWSC 330
- R v Toro-Martinez [2000] NSWCCA 216
- Mallard v Regina (2005) 224 CLR 125
- MacKenzie v The Queen (1996) 71 ALJR 91