Citation: [2016] NSWSC 729
Court: Supreme Court of New South Wales
Date: 8 June 2016
Judge(s): N Adams J
Background
The applicant was convicted of common assault at Bega Local Court on 5 January 2000, following an incident in which she was found to have punched her former husband several times in the head during a dispute over photo albums, in the presence of a police officer. She was fined $500. An appeal to the District Court was dismissed in March 2001.
The applicant subsequently pursued multiple avenues of review. She made two prior applications to the Supreme Court under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act"), both of which were refused after detailed consideration by different judges. She also petitioned the Governor of New South Wales under s 76 of the CAR Act, which was declined in January 2013.
This third application, filed in January 2016, again sought an inquiry into the same conviction. As with the prior applications, the Attorney-General filed submissions in response under s 79(4) of the CAR Act.
Legal Issues
- Whether the Court should exercise its discretion under s 79(3) of the CAR Act to refuse to consider the application, given that the matter had already been dealt with twice under the same Part
- Whether the applicant had identified any "special facts or special circumstances" that would justify taking further action, as required by s 79(3)(b)
- Whether the application raised any doubt or question as to the applicant's guilt, any mitigating circumstances, or any part of the evidence in the case
Decision
Adams J noted that the court may refuse to consider or deal with an application under s 79(3) of the CAR Act where the matter has previously been dealt with under that Part and the court is not satisfied that special facts or special circumstances justify further action. Both prior applications had been considered on their merits, with Adamson J and Wilson J each finding no doubt or question as to the applicant's guilt.
The third application raised no new arguments. Its central complaint remained the same as in the two earlier applications: that the evidence of the former husband and the police officer should not have been accepted. Adams J adopted Wilson J's observations from the second application, which explained that inconsistencies between witnesses do not, of themselves, require rejection of their evidence, and that the prosecution witnesses had been consistent on all material matters.
Adams J also noted Johnson J's earlier observation that repeated unmeritorious applications under s 78(1) waste judicial resources. Having had the benefit of two prior substantive considerations of her application, the applicant was not entitled to have the same material considered a third time.
Accordingly, Adams J refused to consider the application, without proceeding to examine the merits.
Orders Made
• Application refused
Key Takeaways
- Under s 79(3) of the CAR Act, the Supreme Court may refuse to consider a s 78(1) application where the matter has previously been dealt with under that Part and no special facts or special circumstances are established, without conducting any further merits review.
- A s 78(1) application is not intended to provide an additional avenue of appeal after ordinary avenues have been exhausted; it is an administrative function designed primarily for situations where new material has come to light that may raise a doubt or question as to guilt.
- Inconsistencies between prosecution witnesses do not automatically raise a doubt or question as to guilt sufficient to enliven the powers in s 79(1); what matters is whether the evidence going to the elements of the offence is accurate, reliable, and accepted beyond reasonable doubt.
- Repeated applications turning on the same complaints, and raising no new arguments, carry a risk of being refused at the threshold stage without substantive consideration, particularly where prior applications were already dealt with on the merits.
- The Supreme Court performs an administrative (not judicial) function when determining s 78(1) applications, and its powers are limited to directing an inquiry or referring the matter to the Court of Criminal Appeal; there is no power to quash a conviction.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 76, 78(1), 79(3), 79(4)
- Crimes Act 1900 (NSW), ss 61, 474E(3)
- Justices Act 1902 (NSW), s 133
Cases:
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- 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)
- Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925
- Milat, Ivan Robert Marko – Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209