Citation: [2014] NSWSC 1661
Court: Supreme Court of New South Wales
Date: 24 November 2014
Judge(s): Harrison J
Background
The applicant had been convicted by a jury in the District Court of two counts of aggravated sexual assault, following an incident in March 2003 in Newtown. He was acquitted of a third count. He received sentences of 9 years and 4 months on one count and 11 years on the other, with non-parole periods that had both expired by the time of this application.
The applicant had previously appealed unsuccessfully to the Court of Criminal Appeal, which dismissed his appeal by majority in 2005. No application for special leave to appeal to the High Court was made.
The applicant then brought this application to the Supreme Court under s 78(1) of the Crimes (Appeal and Review) Act 2001, seeking an inquiry into his convictions on several grounds.
Legal Issues
- Whether the application raised any doubt or question as to the applicant's guilt, any mitigating circumstances, or any part of the evidence, sufficient to warrant an inquiry or referral to the Court of Criminal Appeal under s 79 of the Crimes (Appeal and Review) Act 2001
- Whether the applicant's claim that the sexual acts were physically impossible constituted "incontrovertible proof of innocence"
- Whether allegations of police corruption, including tampering with witnesses, destruction of CCTV footage, and blood sample tampering, provided a basis for review
- Whether complaints about the competence or integrity of defence counsel and judicial officers supported the application
Decision
Harrison J dismissed the application, finding no doubt or question as to the applicant's guilt, any mitigating circumstances, or any part of the evidence in the case. The applicable test, drawn from Varley v The Attorney-General (1987), requires that material placed before the court cause "unease" in allowing the conviction to stand. None of the grounds advanced met that threshold.
On the claim of physical impossibility, the court found the argument entirely unconvincing. The applicant had submitted detailed handwritten materials and diagrams asserting that the alleged sexual acts were anatomically impossible. Harrison J noted, however, that similar arguments had been considered and rejected at trial and on appeal, and that the jury, who saw and heard the witnesses, was plainly entitled to accept the complainant's evidence.
On the police corruption allegations, no supporting evidence was produced beyond bare assertion. The applicant offered nothing to substantiate claims that CCTV footage was destroyed, witnesses tampered with, or blood samples interfered with. Similarly, the complaints about defence counsel were unsupported by evidence, and any concerns about trial counsel's conduct could in any event have been raised on appeal. Complaints about judicial officers were likewise unparticularised, and any specific grievances about the trial judge's directions or rulings were matters that could have been, but were not, raised on the earlier appeal.
Orders Made
- The application for an inquiry into the applicant's convictions for sexual assault, made pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001, was dismissed.
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 matter to the Court of Criminal Appeal if it appears that there is a doubt or question as to the convicted person's guilt, mitigating circumstances, or some part of the evidence.
- The threshold test, as articulated in Varley v The Attorney-General (1987), requires that the material before the court cause "unease" about allowing the conviction to stand; the doubt need not be proven well-founded at the threshold stage, but bare assertions without supporting evidence are insufficient.
- Allegations of police corruption, counsel incompetence, and judicial misconduct will not satisfy that threshold unless supported by some factual basis or specificity.
- Where a ground of complaint could have been, but was not, raised on an earlier appeal, that failure weighs against the grant of a review, particularly in the absence of special facts or special circumstances.
- In dismissing the application, Harrison J noted that arguments about physical impossibility that had been considered and rejected at trial and on appeal do not gain force simply by being repeated in a subsequent review application.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J(1)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
Cases:
- Regina v Mosegaard [2005] NSWCCA 361
- Varley v The Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30; (1987) 24 A Crim R 413