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Supreme Court 15 December 2015

Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

[2015] NSWSC 1925

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL SECOND S 78 APPLICATION S 133 OF THE JUSTICES ACT 1902 (NSW)

Citation: Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925
Court: Supreme Court of New South Wales
Date: 15 December 2015
Judge: Wilson J

Background

The applicant was convicted in January 2000 before the Local Court at Bega of common assault under s 61 of the Crimes Act 1900 (NSW), arising from an incident at her former matrimonial home during which she was witnessed by a police officer to strike her former husband several times in the face. A fine of $500 was imposed.

The applicant appealed to the District Court. One judge made orders under s 133 of the Justices Act 1902 (NSW) requiring witnesses to attend the appeal hearing, but those orders were not on the court file when a different judge heard the appeal. That second judge declined to call the prosecution witnesses and ultimately confirmed the conviction.

This was the applicant's second application to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act), seeking an inquiry into her conviction. Her first application was dismissed by Adamson J in 2012, and a subsequent petition to the Governor was declined in 2013. The applicant relied on a newly obtained transcript of the December 2000 proceedings as the basis for fresh consideration.

  • Whether the newly obtained transcript of the December 2000 District Court proceedings constituted new material capable of supporting a second s 78 application.
  • Whether the failure by the second District Court judge to comply with, or give effect to, the witness attendance orders made by the first judge constituted jurisdictional error.
  • Whether any such jurisdictional error gave rise to a doubt or question as to the applicant's guilt, mitigating circumstances, or any part of the evidence, sufficient to warrant an inquiry under the CAR Act.

Decision

Wilson J accepted that the transcript was new material not available at the time of the first application, and on that basis treated the second s 78 application as properly before the Court. However, her Honour found that the material did not support an inquiry into the conviction.

The Court examined the applicant's contention that the second District Court judge's failure to comply with the witness attendance orders amounted to jurisdictional error. Even assuming such an error occurred, Wilson J held that the relevant question under the CAR Act is whether there exists a doubt or question as to the applicant's guilt, not whether a procedural irregularity occurred on appeal. A procedural error does not, of itself, create the requisite doubt.

Wilson J reviewed the evidence heard at first instance in detail. The prosecution case was described as "reasonably cogent." A police officer who was present throughout the incident gave direct eyewitness evidence of the assault. The complainant's evidence was broadly consistent with the officer's account. The matters the applicant wished to cross-examine the prosecution witnesses about on appeal were assessed as incapable of materially affecting the evidence relevant to the elements of the offence.

The applicant's witnesses, called on the appeal, gave evidence of a bruise on her arm, but their accounts were vague and inconsistent as to its location, and neither account corroborated the applicant's claim that a police officer had caused it. Having considered all of the evidence, Wilson J concluded that no doubt or question as to the applicant's guilt arose.

Orders Made

  • Application dismissed.

Key Takeaways

  • Under s 78 of the CAR Act, the touchstone for ordering an inquiry is whether a doubt or question arises as to the convicted person's guilt, mitigating circumstances, or any part of the evidence. A procedural irregularity in the appeal process does not automatically satisfy that test.
  • A second s 78 application may be entertained where the applicant identifies genuinely new material not available when the first application was determined, but the new material must itself give rise to the requisite doubt.
  • In dismissing the application, the Court confirmed that s 78 applications are not an opportunity to re-run the case at first instance with the benefit of hindsight or on the basis that different tactical decisions might have been made, consistent with the approach taken in Application of Peter James Holland [2008] NSWSC 251.
  • Witness evidence of a physical injury will carry limited weight in a s 78 application where the accounts are inconsistent with each other and do not squarely support the version of events given by the applicant at trial.
  • The applicability of s 133 of the Justices Act 1902 (NSW) was the operative provision governing the District Court appeal, notwithstanding the applicant's submissions which referred to the CAR Act.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), particularly Part 7, ss 76 and 78
- Crimes Act 1900 (NSW), s 61
- Justices Act 1902 (NSW), s 133

Cases:
- Application by Petronella Boege for an inquiry into conviction and sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW), Adamson J, 27 March 2012, unrep)
- Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- B v Gould & Anor (1993) 67 A Crim R 297
- Court of Appeal Registrar v Craven (No 2) (1995) 120 FLR 464
- DPP v Losurdo [1998] NSWSC 16; (1998) 44 NSWLR 618
- Regina v Kennedy (1997) 94 A Crim R 341
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783