Citation: [2016] NSWSC 307
Court: Supreme Court of New South Wales
Date: 29 March 2016
Judge(s): Fagan J
Background
The convicted person was found guilty in the Local Court at Sutherland in July 2012 of an offence under the Companion Animals Act 1998 (NSW). The charge related to an incident in June 2011 at a Sydney oval, where a Rottweiler owned and controlled by him attacked and injured a 75-year-old man, causing serious wounds to the victim's right arm. A fine of $400 and court costs of $83 were imposed following a two-day contested hearing in which both sides were legally represented.
The convicted person lodged an appeal to the District Court but withdrew it in December 2012. His father subsequently applied to the Supreme Court on his behalf under ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking an order directing a judicial inquiry into the conviction and sentence.
The application was accompanied by extensive written submissions, including an initial document of 404 pages, a further letter and supplementary submissions, and an 88-page reply to the Crown's response. The father also raised criticisms of the solicitor who had represented his son at the Local Court hearing.
Legal Issues
- Whether the Supreme Court should exercise its discretion under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW) to refuse to consider the application
- Whether "special facts or special circumstances" existed within the meaning of s 79(3)(b) that would justify directing a judicial inquiry into the conviction and sentence
- Whether any of the matters raised in the extensive submissions, including complaints about trial representation, constituted grounds sufficient to trigger further action
Decision
Section 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW) permits the Supreme Court to refuse to deal with an application where the matter has already been fully dealt with in the original proceedings or was the subject of an appeal that was withdrawn, unless the Court is satisfied that special facts or special circumstances justify taking further action. Fagan J found both triggering conditions in s 79(3)(a) were satisfied: the Local Court had conducted a thorough and contested two-day hearing, and the convicted person had lodged, then withdrawn, a District Court appeal.
Fagan J then considered whether any special facts or circumstances had been demonstrated. The evidence at the Local Court hearing had included eyewitness testimony from the victim, DNA matching linking the dog to the convicted person's household, admissions made by the convicted person to a council officer, and detailed evidence from the convicted person himself over some 60 pages of transcript. The magistrate had given detailed reasons and the case had been competently conducted on both sides.
The father's voluminous submissions were found to be largely repetitive and to amount, in substance, to argument about how the magistrate should have assessed the evidence. Fagan J observed that such arguments were matters properly for an appeal, which had been withdrawn. The criticisms of the defence representative at the hearing disclosed no point that clearly demonstrated incompetence or lack of integrity sufficient to raise a question of miscarriage of justice. A civil statement of claim filed by the victim in separate proceedings was treated as entirely irrelevant to the review application.
Accordingly, the Court was not satisfied that special facts or special circumstances existed, and refused to deal with the application under s 79(3).
Orders Made
- The application under ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW) was refused.
Key Takeaways
- Under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may refuse to deal with a review application where the conviction was the subject of a contested hearing and an appeal was later withdrawn, unless the applicant demonstrates special facts or special circumstances justifying further action.
- Disagreement with a magistrate's factual findings and credibility assessments does not, without more, constitute special facts or special circumstances for the purposes of s 79(3)(b); those are matters for an appeal.
- Criticisms of trial counsel must identify a point that clearly demonstrates incompetence or lack of integrity before they can support a finding of special circumstances warranting a judicial inquiry.
- Voluminous and repetitive submissions do not compensate for an absence of substantive grounds; the Court examined the full body of materials but found no identifiable point warranting further action.
- Separate civil proceedings brought by the victim arising from the same incident are irrelevant to the question of whether a criminal conviction should be the subject of a judicial review inquiry.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(2), 79(3)
- Companion Animals Act 1998 (NSW), s 16(1)(b)
Cases:
- Re Cheney (No 1) [2015] NSWSC 291