Citation: GAR - Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734
Court: Supreme Court of New South Wales
Date: 4 December 2014
Judge(s): Adamson J
Background
The applicant was convicted in 2002 by a District Court jury of sexual intercourse without consent against his former wife, following a trial in which he maintained that intercourse had been consensual. He was sentenced to six years' imprisonment with a non-parole period of four years and six months. His original appeal against conviction was dismissed by the Court of Criminal Appeal in 2003, and a subsequent inquiry referral by Barr J in 2009 also resulted in dismissal of the appeal by the Court of Criminal Appeal in 2010.
In March 2014, the applicant brought a further application under Part 7 of the Crimes (Appeal and Review) Act 2001, seeking either a fresh inquiry or a further referral to the Court of Criminal Appeal. The application relied on two pieces of material: an affidavit from a man referred to as RM, sworn in 2012, and a page from the medical report of the doctor who examined the complainant shortly after the offence.
The applicant argued that the affidavit undermined evidence of a prior consistent complaint by the complainant, and that the medical report page had been previously overlooked and did not corroborate part of the complainant's evidence about her injuries.
Legal Issues
- Whether the affidavit of RM gave rise to a relevant doubt or question as to the applicant's guilt, within the meaning of s 79(1) of the Crimes (Appeal and Review) Act 2001
- Whether the previously overlooked page of the medical report raised a doubt or question as to any part of the evidence in the case
- Whether either piece of material was capable of affecting the jury's or the Court of Criminal Appeal's assessment of the credibility of the complainant or her daughter
- Whether the threshold for ordering an inquiry or making a referral to the Court of Criminal Appeal had been met
Decision
Adamson J dismissed the application, finding that neither piece of material gave rise to any doubt or question as to the applicant's guilt. The threshold under s 79(1) of the Crimes (Appeal and Review) Act requires the Court to identify "available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet" (drawing on Johnson J's formulation in the Holland application). That threshold was not met here.
On the RM affidavit, Her Honour found that the complainant's statement to police had already been put to her in cross-examination at trial, and she had confirmed calling RM and telling him what had occurred. The affidavit, which stated that RM did not recall the complainant disclosing the assault during their early morning call, did not demonstrate that no such disclosure was made. The matter had effectively been canvassed at trial and did not generate any fresh basis for doubt.
On the medical report, Adamson J found that the relevant page had in fact been tendered at trial and that trial counsel had already made submissions to the jury about the absence of facial scratches in the medical findings. The Court of Criminal Appeal in the Review Appeal had specifically addressed the consistency between the medical report and the complainant's account of her injuries, without relying on any facial scratches. The medical report did not contradict the complainant's overall account in any material way.
Her Honour also found that neither piece of material was capable of supporting the applicant's broader submission that the complainant's daughter had been manipulated into giving false evidence. The application was dismissed.
Orders Made
- The application was dismissed.
Key Takeaways
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Under s 79(1) of the Crimes (Appeal and Review) Act 2001, the Supreme Court may order an inquiry or refer a matter to the Court of Criminal Appeal only if it appears there is doubt or question as to the convicted person's guilt, the mitigating circumstances, or any part of the evidence. The applicable standard requires material that, as a matter of practical reality, generates a relevant sense of unease or disquiet.
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A second application for an inquiry into the same conviction is not precluded, but the applicant bears the burden of identifying new material capable of raising a genuine doubt. Reliance on material already before the jury or already addressed by a prior appellate court will generally not satisfy that threshold.
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Where evidence said to be "fresh" was in fact tendered at trial and the subject of submissions by trial counsel, it cannot be characterised as overlooked or capable of affecting the outcome in a new way.
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In dismissing the application, the Court found that a discrepancy between a witness affidavit obtained years after trial and the complainant's own evidence does not automatically establish that the complainant fabricated her account, particularly where her statement on the point was already tested in cross-examination.
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Partial inconsistency between medical findings and one aspect of a complainant's evidence does not undermine a conviction where the medical report is otherwise consistent with the complainant's account of how the offence occurred, and the inconsistency was already known and argued at trial.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), particularly Part 7, ss 78 and 79
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules
- Evidence Act 1995 (NSW)
Cases
- GAR v R [2003] NSWCCA 224 (the Original Appeal)
- GAR v R (No. 1) [2010] NSWCCA 163 (the Review Appeal)
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 252