Citation: Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2017] NSWSC 462
Court: Supreme Court of New South Wales
Date: 21 April 2017
Judge: Fagan J
Background
The applicant was convicted in the District Court in May 2002 of aggravated sexual intercourse without consent and attempted sexual intercourse without consent, arising from events in Goulburn on the evening of 19 July 2001. The complainant was a student at the Goulburn Police Academy; the applicant was a police officer and tutor there. He was acquitted on three other counts. After serving his sentence in full, he appealed unsuccessfully to the Court of Criminal Appeal in 2002.
The applicant had previously sought an inquiry into his convictions under the predecessor provisions to the current legislation, and that application was refused by Johnson J in 2008 after the applicant submitted more than 870 pages of material.
In July 2016 the applicant lodged a second application, again seeking a direction that a judicial officer conduct an inquiry into his conviction and sentence, this time under ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW). The present judgment records the Supreme Court's reasons for refusing that second application.
Legal Issues
- Whether the Supreme Court could exercise its discretion under s 79(3) of the Crimes (Appeal and Review) Act 2001 to refuse to consider or deal with the application, on the basis that the matters raised had already been fully dealt with at trial, on appeal, or in the earlier review.
- Whether "special facts or special circumstances" existed under s 79(3)(b) that would justify taking further action despite those prior proceedings.
- Whether any of the points raised in the applicant's 407 pages of submissions raised a new or compelling basis for doubting the convictions.
Decision
Fagan J held that the conditions in both s 79(3)(a)(i) and (ii) were satisfied: the matters had been fully dealt with in the original proceedings and on appeal, and the earlier application had previously been dealt with under the relevant review provisions. No special facts or special circumstances within the meaning of s 79(3)(b) existed to justify taking further action, and the Court exercised its discretion to refuse to consider or otherwise deal with the application.
The applicant submitted a total of 407 pages of written submissions, prepared by himself. Fagan J found them repetitive, discursive, and unfocused, and assessed that their substantive content could have been expressed in no more than five pages. All points that could be extracted from the submissions had been previously dealt with at trial, on appeal, or before Johnson J, or across more than one of those occasions.
Fagan J assessed whether any of the applicant's arguments, despite having been previously dealt with, might constitute a special fact or circumstance justifying further consideration. The court found no new insight in the submissions. The applicant characterised the case against him in extravagant terms, as though it were self-evidently fanciful, but the court found his individual points unpersuasive and, taken together, insufficient to demonstrate an inherently unbelievable case.
The court also found no striking improbability in the evidence that had been accepted by the jury. The complainant's conduct after the events, including her failure to immediately resist or report, was noted as credibly consistent with the account she gave at trial, taking account of the differences in gender, physical strength and seniority between the parties.
Orders Made
• Pursuant to s 79(3), the application is refused.
Key Takeaways
- Under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may refuse to consider or deal with an application for inquiry where the matters raised have already been fully addressed at trial, on appeal, or in a prior review, and no special facts or circumstances justify further action.
- A prior refused application under the same statutory scheme satisfies s 79(3)(a)(ii), meaning the Court may decline to reconsider the same or substantially similar material again.
- The absence of any definition of "special facts or special circumstances" in the Act means the Court applies that test by examining whether the applicant has raised genuinely new arguments or identified a striking improbability in the evidence underpinning the conviction.
- Voluminous repetitive submissions do not, in themselves, constitute or reveal special facts or circumstances; the court assessed the substantive content of 407 pages of material and found it added nothing beyond what had already been considered in prior proceedings.
- In refusing the application, the Court reaffirmed that post-conviction review mechanisms are not an avenue for relitigating arguments that were available to be, or were in fact, advanced at trial and on appeal.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), s 61J(1)
- Evidence Act 1995 (NSW)
- Listening Devices Act 1984 (NSW)
Cases
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- R v Holland [2002] NSWCCA 469
- Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452
- R v Burton [2013] NSWCCA 335; 237 A Crim R 238
- Re Cheney (No 1) [2015] NSWSC 291
- R v Naa (2006) 76 NSWLR 271; [2006] NSWSC 851
- R v Ryan [2013] NSWCCA 316
- R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
- The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1