Citation: Application by TDP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 1698
Court: Supreme Court of New South Wales
Date: 9 November 2018
Judge: N Adams J
Background
The applicant was convicted by a jury in May 2012 on 11 counts of aggravated sexual intercourse without consent and aggravated indecent assault committed against his stepdaughter over a three-year period when she was aged 13 to 16. The offending included penile-anal intercourse, penile-vaginal intercourse, fellatio, and indecent assault. He received an effective sentence comprising a non-parole period of seven and a half years and a balance of term of three years.
The applicant appealed his conviction to the Court of Criminal Appeal (CCA), appearing unrepresented. The Crown separately appealed the sentence as inadequate. In 2013, the CCA dismissed both appeals: the conviction appeal on its merits, and the Crown's sentence appeal on discretionary grounds, noting that the Crown itself had invited the sentencing structure it later challenged.
In February 2018, the applicant filed an application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), seeking a further inquiry into both his conviction and sentence. The Attorney General opposed the application.
Legal Issues
- Whether the Supreme Court should decline to consider the application under s 79(3) of the CAR Act on the basis that the matters raised had already been fully dealt with in prior proceedings
- Whether, in any event, there appeared to be a doubt or question as to the applicant's guilt, any mitigating circumstances, or any part of the evidence, so as to justify further action under s 79(1)-(2)
- Whether special facts or special circumstances existed that would justify taking further action despite earlier appellate determination
Decision
Adams J considered the application in accordance with the framework established by s 79 of the CAR Act. The Court noted that proceedings under s 78 are administrative rather than judicial in nature, and that the relevant test is whether the material gives rise to unease or disquiet sufficient to doubt the conviction or sentence. The Court applied the principles articulated in Application of Peter James Holland [2008] NSWSC 251, which drew on earlier authority requiring genuine doubt or question as to guilt, mitigating circumstances, or evidence.
On the conviction grounds, the Court found that all but one of the issues raised had already been comprehensively addressed by the CCA in 2013. The one ground not previously litigated was examined, but the Court found it raised no sufficient doubt or question as to the applicant's guilt. The Attorney General's submission that no special facts or circumstances justified further action was accepted.
On sentence, the Court observed that the applicant had never sought leave to appeal the severity of his own sentence. The CCA had found the overall sentence manifestly inadequate but declined to increase it on discretionary grounds, given the Crown's own conduct in the sentencing proceedings. Adams J found no material suggesting the sentencing proceedings had miscarried in any way that caused unfairness to the applicant, and no doubt or question about any mitigating factor.
The application was refused in its entirety.
Orders Made
No formal orders were extracted in the provided text, but the Court refused the application under s 78(1) of the CAR Act.
Key Takeaways
- Under s 79(2) of the CAR Act, the Supreme Court may only direct an inquiry or refer a matter to the CCA if it appears there is a genuine doubt or question as to guilt, mitigating circumstances, or part of the evidence. A sense of unease or disquiet is the applicable standard drawn from earlier authority.
- Where matters have already been fully dealt with by the CCA on appeal, the Supreme Court may refuse to consider a s 78 application unless the applicant demonstrates special facts or special circumstances justifying further action.
- The administrative (non-judicial) character of the s 78 process does not lower the threshold for intervention: the applicant must still bring forward material that raises a real doubt, not merely repeat grounds already exhausted on appeal.
- A convicted person's failure to seek leave to appeal against their own sentence is a relevant consideration when later applying for an inquiry into that sentence under the CAR Act.
- In refusing the sentence aspect of the application, the Court noted that the CCA's finding of manifest inadequacy had not assisted the applicant, since the failure to increase the sentence arose from the Crown's own conduct at first instance, not from any procedural unfairness to the applicant.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79, Pt 7
- Crimes Act 1900 (NSW), ss 61J, 61M
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 6, 7, 8, 20, 142
- Evidence Act 1995 (NSW), s 137
Cases:
- TDP v R; R v TDP [2013] NSWCCA 303
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221
- Mallard v R (2005) 224 CLR 125; [2005] HCA 68
- Grey v R (2001) 184 ALR 593; [2001] HCA 65
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281