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Supreme Court 20 November 2012

Patsalis - Application for Inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001

[2012] NSWSC 1597

Homicide
CRIMINAL LAW APPLICANT CONVICTED IN 1999 FOR MURDER PRIOR PETITION TO GOVERNOR REJECTED ASSERTED FRESH AND NEW EVIDENCE AGITATION OF MATTERS RAISED AT TRIAL NO DOUBT OR QUESTION AS TO GUILT

Citation: Patsalis - Application for Inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2012] NSWSC 1597
Court: Supreme Court of New South Wales
Date: 20 November 2012
Judge(s): R A Hulme J

Background

The applicant was convicted of murder in September 1999 following a 55-day jury trial in the Supreme Court. The Crown alleged he and a co-accused murdered a man during a planned robbery, then disposed of the body and destroyed evidence. Both accused were convicted. The applicant's appeals to the Court of Criminal Appeal and an application for special leave to the High Court were each dismissed.

Having previously petitioned the Governor under Part 7 of the Crimes (Appeal and Review) Act 2001, which was ultimately declined on the Attorney General's recommendation, the applicant filed a fresh application under s 78 of the same Act. He sought referral of his conviction to the Court of Criminal Appeal to be dealt with as an appeal. The supporting material largely replicated what had been placed before the Governor.

  • Whether the application should be refused outright because the same matters had already been considered in the earlier Governor's petition, and no special facts or special circumstances justified further action under s 79(3).
  • Whether, in the alternative, the matters raised had been fully dealt with at trial and on appeal, providing a separate basis for refusal.
  • Whether any of the applicant's grounds, including proposed fresh expert forensic pathology evidence about the direction of the stab wounds, raised any doubt or question as to guilt sufficient to warrant referral under s 79(2).

Decision

Hulme J considered the Attorney General's submissions and reviewed the substantial volume of material filed by the applicant, including additional submissions received as late as 13 November 2012. His Honour found that a large proportion of that material sought to re-agitate matters already argued and determined at trial and on appeal. An application under Part 7 is not the occasion to revisit matters that have already been heard and determined.

On the proposed forensic pathology evidence, the applicant contended that expert evidence could establish all stab wounds were inflicted by the co-accused rather than by the applicant. Hulme J accepted the premise for the purposes of argument but found it would not assist the applicant. The Crown had advanced the case on additional bases, namely joint criminal enterprise murder and felony murder, both of which remained unaffected by that evidence. There was therefore no purpose in exploring the issue further.

His Honour expressed no unease or disquiet about the applicant's guilt. Applying s 79(2), the Court was not persuaded that any doubt or question existed as to the applicant's guilt, as to any mitigating circumstances, or as to any part of the evidence. Because that threshold was not met, the application was refused.

Orders Made

  • The application was refused.

Key Takeaways

  • Under s 79(2) of the Crimes (Appeal and Review) Act 2001, the Supreme Court may only refer a conviction to the Court of Criminal Appeal if it appears there is a doubt or question as to the convicted person's guilt, mitigating circumstances, or any part of the evidence. Without that threshold being met, the court has no basis to act.
  • A Part 7 application is not a mechanism to revisit matters already fully argued and determined at trial and on appeal; re-agitation of those matters does not constitute the fresh or compelling basis the Act contemplates.
  • Where a prior petition to the Governor under the same Act has been declined and the supporting material is substantially the same, the court may refuse the application unless special facts or special circumstances justify further action under s 79(3)(b).
  • Proposed fresh evidence must be capable of raising a genuine doubt as to guilt across all available legal bases for the conviction. Where the Crown case rests on multiple independent theories, evidence undermining only one of them will not necessarily displace the others.
  • Refusing the application, Hulme J noted that the relative brevity of his reasons did not reflect the volume of material considered, but that the lack of merit across the grounds did not require each point to be individually addressed.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 76, 78, 79
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- R v Spathis; R v Patsalis [2001] NSWCCA 476
- Patsalis v The Queen [2007] HCATrans 651
- R v Patsalis & Spathis (No 3) [1999] NSWSC 718
- R v Patsalis & Spathis (No 22) [1999] NSWSC 1320
- New South Wales Bar Association v Amor-Smith [2003] NSWADT 239