Citation: Allan - Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2012] NSWSC 1596
Court: Supreme Court of NSW
Date: 12 November 2012
Judge(s): R A Hulme J
Background
The applicant was convicted at the Downing Centre Local Court in November 2010 on four counts: being armed with intent to commit an indictable offence (s 114, Crimes Act 1900) and three counts of common assault (s 61, Crimes Act 1900). The convictions arose from an incident in Darlinghurst on the evening of 27 March 2010, in which three women, including a sex worker and two youth workers, gave evidence that a man approached them, shoved one of the women, and then returned brandishing a knife before chasing them along Bourke Street.
Police responding to a triple-zero call located the applicant nearby, wearing clothing matching the description provided by the complainants. He was found to be carrying a Swiss Army knife and made admissions about it on the spot. At trial, the applicant did not deny that the incident occurred; rather, he maintained that he was not the man involved, offering an alternative account in which he had shown the knife to a woman who had threatened him.
The applicant subsequently appealed to the District Court, where the appeal was dismissed. He then brought this application to the Supreme Court under Part 7 of the Crimes (Appeal and Review) Act 2001, seeking an inquiry into the correctness of his convictions.
Legal Issues
- Whether there was a doubt or question as to the applicant's guilt sufficient to warrant an inquiry or referral to the Court of Criminal Appeal under ss 78 and 79 of the Crimes (Appeal and Review) Act 2001
- Whether fresh evidence was available that could affect the reliability of the complainants' identification evidence
- Whether the prosecution had failed to disclose material evidence, causing unfairness to the applicant
- Whether the verdicts were unreasonable and unsupported by the evidence
- Whether the courts below had erred in the weight given to the credibility of the complainants' evidence compared with the applicant's account
Decision
Hulme J considered each of the six grounds advanced by the applicant in turn. The first ground concerned the credibility of the sex worker complainant, who had said during cross-examination that she recognised the applicant as a prior client. The applicant sought to introduce fresh evidence to challenge this claim. Hulme J found no basis to doubt the findings of the courts below, noting that defence counsel at trial had conceded that the complainants' evidence was credible and had not challenged this particular claim when it was made.
Several other grounds raised alleged failures by the prosecution to disclose evidence, inconsistencies between the complainants' accounts, and procedural complaints about the conduct of the hearing. Hulme J found that many of these matters had not been raised in the Local Court or District Court, and some could have been the subject of cross-examination had counsel considered them significant. The cumulative effect of these matters did not generate any doubt about the correctness of the convictions.
The court placed considerable weight on the concession made by defence counsel at trial: that the complainants had given forthright and credible evidence, and that it was entirely open for the Magistrate to accept it. Both the Magistrate and the District Court judge independently concluded the complainants were credible witnesses. The applicant's alternative account, which required accepting that two separate incidents occurred simultaneously in the same street involving men with the same clothing, the same conduct, and the same type of knife, was found to be wholly incredible.
On the final ground, that the verdicts were unreasonable and not supported by the evidence, Hulme J found that nothing was added beyond points already raised. The application was refused in its entirety, with the court finding no doubt or question as to the applicant's guilt on any of the four counts.
Orders Made
- The application for an inquiry into conviction and sentence was refused.
- No direction was made for an inquiry to be conducted, and the matter was not referred to the Court of Criminal Appeal.
Key Takeaways
- Under Part 7 of the Crimes (Appeal and Review) Act 2001, the Supreme Court will only direct an inquiry or refer a matter to the Court of Criminal Appeal where there is a genuine doubt or question as to the applicant's guilt; a disagreement with factual findings made below does not suffice.
- Concessions made by defence counsel at trial regarding the credibility of prosecution witnesses carry significant weight in subsequent proceedings, and can substantially undermine later attempts to challenge those witnesses' evidence.
- Fresh evidence will not support an inquiry application where it fails to raise any real question about the reliability of the findings made by the original tribunal of fact and the appellate court.
- Alleged prosecution non-disclosure and procedural irregularities are unlikely to warrant an inquiry where the complaints were not raised at trial or on appeal, and where the matters could have been tested through cross-examination.
- In dismissing the application, the court applied the principles set out in Application of Peter James Holland [2008] NSWSC 251, confirming that the threshold for intervention under the post-appeal review regime is a high one.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61, 114
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79, Part 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases:
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251