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Supreme Court 27 March 2015

Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2)

[2015] NSWSC 293

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW APPLICATION FOR REVIEW OF CONVICTION AGGRAVATED SEXUAL ASSAULT FRESH EVIDENCE WHERE FRESH EVIDENCE AMBIGUOUS

Citation: Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293
Court: Supreme Court of New South Wales
Date: 27 March 2015
Judge(s): Hamill J

Background

The applicant was convicted in the District Court in March 1995, following a judge-alone trial, of maliciously inflicting actual bodily harm with intent to have sexual intercourse and assaulting a police officer occasioning actual bodily harm. The offences occurred in a laneway in Strathfield in May 1991. A police officer responding to a radio call drove down the laneway and observed the applicant on top of another figure with his trousers down. After a chase, the applicant was arrested and later kneed the officer in the testicles.

An appeal against conviction was dismissed by the Court of Criminal Appeal in 1998. The applicant then made this application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking an inquiry into those 1995 convictions on the basis that a doubt or question existed as to his guilt.

The application was filed in July 2007 but final submissions were not provided until May 2014, contributing to a significant delay in resolution. This was one of two concurrent s 78 applications brought by the same applicant, the other relating to separate convictions arising from offences in Port Macquarie (dealt with in Cheney No 1 [2015] NSWSC 291).

  • Whether documents obtained through a Freedom of Information request constituted fresh evidence capable of undermining the testimony of the key police witness, Constable Meredith
  • Whether any of the grounds raised in the application were previously dealt with on appeal, and if so, whether special facts or circumstances justified further consideration under s 79(3) of the Act
  • Whether, on the totality of the material, a doubt or question arose as to the applicant's guilt sufficient to justify an inquiry or referral to the Court of Criminal Appeal

Decision

The applicant argued that Freedom of Information documents referenced a person referred to as "BLATCH," which he contended raised the inference that there was another suspect in the laneway that night. He submitted this undermined Constable Meredith's evidence that he never lost sight of the person he chased from the scene to the point of arrest.

Hamill J found that, with the exception of arguments based on those Freedom of Information documents, all other matters raised in the application had already been dealt with in the 1998 appeal. The Court would ordinarily have been inclined to refuse to consider the application under s 79(3) but proceeded to examine all material with the "BLATCH" question at the forefront.

After reviewing all the material and submissions from both parties, Hamill J concluded that the inference the applicant sought to draw from the "BLATCH" reference was speculative rather than the product of proper, logic-based circumstantial reasoning. The documents were ambiguous, and the evidence fell well short of raising a doubt or question as to the applicant's guilt within the meaning of s 79(2).

The Court was not left with the sense of unease or disquiet that the authorities identify as justifying action under the section. There were no grounds to order an inquiry or refer the matter to the Court of Criminal Appeal.

Orders Made

  • The application was dismissed.

Key Takeaways

  • Under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may decline to consider an application where the grounds were previously dealt with on appeal, unless special facts or circumstances justify further action.
  • Ambiguous documents obtained through a Freedom of Information request do not automatically constitute "fresh evidence" sufficient to reopen a concluded conviction; the inferences sought must be grounded in logic rather than speculation.
  • In dismissing the application, Hamill J reaffirmed the standard from cases such as R v Garry Andrew Bayliss [2001] NSWSC 732: the court must be left with a genuine sense of unease or disquiet before taking action under s 79(2).
  • Where a conviction rests on strong direct evidence, including a police officer's unbroken visual observation of the offender from offence to arrest, fresh material that is equivocal will not displace the soundness of that conviction.
  • Post-conviction review under Part 7 of the Act is not a vehicle for re-agitating grounds already dismissed on formal appeal, absent some genuinely new matter that can rationally affect the outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW)

Cases:
- Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1) [2015] NSWSC 291
- R v Cheney (Court of Criminal Appeal (NSW), 28 April 1998, unreported)
- R v Cheney [2004] NSWSC 104
- R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362
- SKAF, Bilal: Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Cheney v Sydney West Area Health Service [2007] NSWADT 75
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30