Citation: [2015] NSWSC 177
Court: Supreme Court of New South Wales
Date: 9 March 2015
Judge(s): Rothman J
Background
The applicant was convicted of murder by a jury in September 1999, following a trial before Kirby J. He and his co-accused were found guilty of killing Klaus Peter Ludwig, and the applicant was sentenced to a total term of 21 years and 6 months with a non-parole period of 16 years.
The applicant exhausted all conventional avenues of review. His appeal to the Court of Criminal Appeal was dismissed in 2001, and his application for special leave to appeal to the High Court was refused in 2007. A prior s 78 application to the Supreme Court in 2012, as well as a petition to the Governor, were also unsuccessful, and the Court of Appeal dismissed a subsequent application for leave to appeal that decision in 2013.
The current proceeding was the applicant's second application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), filed in 2014. He advanced 37 grounds and identified seven purported special facts or circumstances said to have arisen since his 2012 application. The application was opposed by the Attorney-General of New South Wales.
Legal Issues
- Whether the applicant's 2014 application identified material giving rise to a doubt or question as to his guilt, any mitigating circumstance, or any part of the evidence in the case, sufficient to warrant ordering an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001.
- Whether special facts or circumstances had arisen since the 2012 application so as to justify further consideration under s 79(3)(b) of the Act.
- Whether the alleged suppression, concealment or fabrication of Annexure A (a police computer enquiry record) gave rise to the requisite unease or disquiet.
- Whether the admissibility of the applicant's handwritten notes (Exhibit G) warranted reconsideration.
- Whether the prior decisions of RA Hulme J and the Court of Appeal constituted special circumstances supporting the current application.
- Whether the applicant's claimed mental illness during previous post-trial proceedings was relevant to the current application.
Decision
The applicable test: Proceedings under the Act are administrative in nature and operate outside the ordinary appellate process. The court must be satisfied that there is a doubt or question as to the convicted person's guilt, any mitigating circumstances, or any part of the evidence, sufficient to cause unease or disquiet at allowing the conviction to stand (at [11]-[13]). The legislation is not an additional avenue of appeal and does not permit a convicted person to re-run their trial on paper (at [13]).
Alleged corruption and suppression of evidence (Annexure A): The applicant's central submission was that the Crown Prosecutor and investigating police acted corruptly by suppressing or fabricating Annexure A, a police computer record relating to a vehicle registration search. Rothman J characterised the conspiracy alleged as unlikely (at [25]). The Court of Criminal Appeal had previously considered the effect of the police records on the outcome of the trial, and the applicant's submission on this issue was held to have been sufficiently dealt with in earlier proceedings and appeals (at [26], [33]).
Admissibility of handwritten notes (Exhibit G): The admissibility of the applicant's handwritten notes had been the subject of a six-day voir dire, two interlocutory rulings at trial, consideration by the Court of Criminal Appeal, and review in the 2012 s 78 application (at [30]). RA Hulme J had considered the findings from those proceedings, including the operation of ss 138 and 139 of the Evidence Act 1995, and Rothman J agreed with those conclusions (at [20], [31]-[33]).
Prior judicial decisions as special circumstances: The applicant sought to rely on the decisions of RA Hulme J and the Court of Appeal themselves as special facts or circumstances. Rothman J rejected this, noting that the applicant's complaints about those decisions, including alleged omissions, factual errors and inadequate reasons, did not establish the necessary doubt or disquiet (at [29], [36]-[37]).
Mental illness: The applicant contended he had been suffering from schizophrenia during his previous post-trial challenges. Rothman J found this had little or no relevance to the current application, noting no issue of fitness to be tried or mental illness defence arose, and observing that the current submissions were almost identical to prior ones despite the claim of impaired capacity (at [35]).
Overall conclusion: The court found no doubt as to the applicant's guilt, no doubt as to any mitigating circumstance, and no doubt as to any part of the evidence (at [20], [36]). The applicant did not raise the necessary sense of unease or disquiet required for an inquiry to be ordered, and no special facts or circumstances justifying further inquiry were established (at [36]-[37]).
Orders Made
- The application is refused.
Key Takeaways
- Refusing the application, the Supreme Court confirmed that s 78 of the Crimes (Appeal and Review) Act 2001 is not an additional tier of appeal and does not permit a convicted person to re-litigate matters already determined at trial or on appeal (at [13], [15]).
- A second or subsequent s 78 application requires the identification of special facts or circumstances that have arisen since the previous application under s 79(3)(b); the decisions made in response to an earlier application do not themselves constitute such special circumstances (at [29], [37]).
- Under the applicable test, purported fresh or new evidence must give rise to a genuine sense of unease or disquiet about the conviction before an inquiry will be ordered; dissatisfaction with prior judicial reasoning does not meet that threshold (at [12], [36]).
- Where the admissibility of evidence has been resolved through a voir dire, interlocutory rulings, appellate review, and a prior s 78 application, a further application directed at the same evidence is unlikely to satisfy the statutory test (at [30]-[33]).
- A claim of mental illness during previous post-trial proceedings does not bear on the merits of a s 78 application where no issue of fitness to plead or mental illness defence arises, and where the current submissions mirror those made in earlier proceedings (at [35]).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001
- Criminal Appeal Act 1912
- Evidence Act 1995
Cases
- Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Eastman v Director of Public Prosecutions (DPP) (ACT) [2003] HCA 28; (2003) 214 CLR 318
- Patsalis, Application for Inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2012] NSWSC 1597
- Patsalis v Attorney General for NSW [2013] 85 NSWCA 343
- Patsalis v The Queen [2007] HCATrans651
- R v Patsalis & Spathis (No 3) [1999] NSWSC 718
- R v Patsalis & Spathis (No 4) [1999] NSWSC 715
- R v Patsalis & Spathis (No 22) [1999] NSWSC 1320
- R v Rendell (1987) 32 A Crim R 243
- Re Application of Dunn [2005] NSWSC 857
- Re Application of Esposito (Hunt J, 14 July 1988, unreported)
- Re Application of Milat (2005) 157 A Crim R 565
- Re Application of Visser (Newman J, 27 June 1994, BC9402667)
- R v Spathis; R v Patsalis [2001] NSWCCA 476
- Varley v Attorney-General (NSW) (1987) 24 A Crim R 413