Citation: [2017] NSWSC 210
Court: Supreme Court of New South Wales
Date: 8 March 2017
Judge(s): Latham J
Background
The applicant, convicted in 1995 following a trial before a judge alone in the District Court, sought a further inquiry into two convictions: maliciously inflicting actual bodily harm with intent to have sexual intercourse, and assault occasioning actual bodily harm on a police officer. The assault conviction arose from an incident in which the applicant kneed a constable in the groin after being arrested and handcuffed in a laneway in Strathfield.
The applicant had previously appealed his conviction on the first count to the Court of Criminal Appeal, which dismissed the appeal in 1998. He then made an earlier application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), which Hamill J dismissed in 2015. The present application was the applicant's third attempt to obtain review of his convictions.
In support of this third application, the applicant pointed to alleged inconsistencies between the statements of the two arresting constables, and raised a conflict-of-interest argument concerning Hamill J's involvement in the previous application.
Legal Issues
- Whether the alleged inconsistencies in police officers' accounts gave rise to a doubt or question as to the applicant's guilt sufficient to warrant an inquiry under s 79(2) of the Act
- Whether the matter had already been dealt with in prior proceedings, such that the Court should refuse to further consider the application under s 79(3)(a)(ii)
- Whether Hamill J had a conflict of interest in deciding the earlier application, which would undermine that decision's standing
Decision
Latham J found that the inconsistencies relied on by the applicant were, at most, minor anomalies. Whether the constable had been kicked in the testicles or kneed to the groin was immaterial to the question of whether an assault occasioning actual bodily harm had occurred. Those discrepancies did not create any doubt as to whether the applicant was criminally responsible for the offences of which he was convicted.
The conflict-of-interest argument was rejected. The applicant contended that Hamill J had a conflict because he and the applicant's former counsel had both worked from Forbes Chambers. Latham J noted that, under the Legal Profession Uniform Conduct (Barristers) Rules 2015, a barrister must be a sole practitioner. The fact that two barristers occupied rooms in the same chambers creates no professional conflict, particularly where the counsel in question did not ultimately act for the applicant.
The Court also noted that the defects in the Crown case relied upon in this application had already been addressed in the 2015 decision. Having reviewed both parties' submissions, the earlier s 78 decision, and the 1998 Court of Criminal Appeal judgment, Latham J concluded that the matter had previously been dealt with under Part 7 of the Act and refused to further deal with the application under s 79(3)(a)(ii).
Orders Made
- The application was dismissed.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001, a doubt or question sufficient to warrant an inquiry must be substantive. Minor inconsistencies between witness accounts, such as the precise nature of a physical blow, do not meet this threshold.
- Refusing the application under s 79(3)(a)(ii), the Supreme Court confirmed that where the same grounds have been addressed in a prior Part 7 review, the Court may decline to revisit the matter unless special facts or circumstances justify further action.
- No conflict of interest arises from a judge and a barrister having occupied rooms in the same chambers, because barristers are sole practitioners by operation of the Legal Profession Uniform Conduct (Barristers) Rules 2015, and any such connection does not create a professional relationship between chambers members.
- In dismissing the application, the Court demonstrated the cumulative weight given to prior appellate and review proceedings: where a conviction has survived both a Court of Criminal Appeal challenge and an earlier s 78 application, a further application raising substantially the same issues faces a high threshold.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 12
Cases
- Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293
- R v Cheney (Court of Criminal Appeal (NSW), 28 April 1998, unreported)
- Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251