Citation: [2015] NSWSC 291
Court: Supreme Court of New South Wales
Date: 27 March 2015
Judge: Hamill J
Background
The applicant was convicted of 13 offences, including kidnapping and aggravated sexual assault, arising from a series of incidents in the Port Macquarie district in late 1993. The offences involved the sexual assault of a nine-year-old girl on multiple occasions, the kidnapping and serious sexual assault of a second child, a break-and-enter, and the production of a firearm against a witness. The applicant was identified through clothing, a distinctive cap, a silver revolver, admissions made at the time of arrest, and the evidence of his then-partner.
Following conviction, the applicant pursued multiple avenues of challenge: an appeal to the Court of Criminal Appeal (decided in 1999), an application for special leave to the High Court, a petition to the Governor, a further petition for executive clemency, and a prior application for review under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), determined in 2004.
The present application was the most recent of those attempts. The applicant, unrepresented, filed materials and submissions over approximately seven years, alleging fabrication of evidence and raising various other grounds. There were significant delays in the provision of that material throughout the proceedings.
Legal Issues
- Whether the application raised new facts or circumstances sufficient to justify action under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), that is, whether there was a doubt or question as to the convicted person's guilt, the evidence, or any mitigating circumstance relevant to sentence
- Whether the court should decline to consider the application at all under s 79(3) of the Act, on the basis that the matters raised had already been dealt with in prior proceedings or appeals
- Whether the allegations of evidence fabrication and other grounds advanced by the unrepresented applicant gave rise to any sense of unease about the soundness of the convictions
Decision
Hamill J considered the substance of the application rather than simply refusing it under s 79(3), even though the matters raised were substantially the same as those previously litigated. Under s 79(3), the court may decline to consider an application where the matter has already been fully dealt with in the original proceedings or on appeal, was the subject of a prior review, or could have been the subject of an appeal that was never brought.
The power to act under s 78 is enlivened where the material before the court produces a sense of unease or disquiet about the conviction, in the sense of a doubt or question as to guilt or the evidence. Hamill J found that the material filed by the applicant produced no such sense of unease. The allegations, including claims of evidence fabrication, were considered alongside the evidence on which the applicant had been convicted, and were found to add nothing capable of justifying further inquiry.
The court observed that the applicant sought to re-agitate matters that were, or should have been, raised at trial, on appeal to the Court of Criminal Appeal, in the 2003 Part 7 application, or in the two petitions to the Governor. In some instances, the same arguments had been considered on more than one occasion. The application was therefore dismissed.
Orders Made
- The application was dismissed.
Key Takeaways
- Under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), the threshold for further inquiry requires that the material before the court generate a genuine sense of unease or disquiet about the conviction, including doubt as to guilt, the evidence, or any mitigating circumstance relevant to sentence.
- Section 79(3) of the Act gives the court a discretionary power to refuse to consider an application where the matters raised have already been dealt with in prior proceedings, on appeal, or in earlier review applications; however, the court retains the discretion to consider the merits regardless.
- In dismissing the application, the Supreme Court confirmed that simply alleging fabrication of evidence or repeating previously litigated arguments does not satisfy the threshold for action under Part 7, absent fresh material capable of casting genuine doubt on the convictions.
- A lengthy history of appeals, petitions, and prior review applications does not itself prevent a further s 78 application, but it does make it significantly harder to demonstrate that any new material raises matters not previously considered.
- No error or doubt was established by the applicant's unrepresented submissions over seven years of filing, and the application was treated as raising nothing beyond what had already been weighed by the courts on multiple prior occasions.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(3)
- Crimes Act 1900 (NSW)
Cases:
- R v Cheney [1999] NSWCCA 312
- R v Cheney [2004] NSWSC 104
- Cheney v The Queen [2001] HCATrans 649
- Application by Ivan Robert Marko Milat pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 434
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- SKAF, Bilal: Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45
- R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30