Citation: Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928
Court: Supreme Court of New South Wales
Date: 11 July 2018
Judge(s): Bellew J
Background
The applicant was convicted by a jury in the District Court in December 2012 of attempting to choke a person with intent to commit an indictable offence (indecent assault), contrary to s 37 of the Crimes Act 1900 (NSW). The offence arose from an early-morning attack on a lone pedestrian in Newtown, Sydney. The applicant approached the complainant from behind, placed his arm around her neck, caused her to lose consciousness, and dragged her into a nearby alley. The complainant regained consciousness and resisted. Multiple neighbours witnessed events from their apartments and intervened.
The evidence against the applicant was substantial. It included eyewitness accounts from several neighbours, DNA found under the complainant's fingernails matching the applicant, CCTV footage, and admissions the applicant made during a recorded police interview, including a statement that the police had him "red-handed" and a direct confirmation that he had choked the complainant.
The applicant was sentenced to 9 years and 4 months imprisonment with a non-parole period of 7 years. He applied to the Court of Criminal Appeal for leave to appeal both conviction and sentence, but leave was refused in 2014. He then brought the present application to the Supreme Court under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), without legal assistance, submitting approximately 240 pages of written material.
Legal Issues
- Whether the application raised a "doubt or question" about the applicant's conviction sufficient to meet the threshold under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), so as to warrant referral to the Court of Criminal Appeal.
- Whether the grounds advanced by the applicant in support of the application were materially different from, or added anything to, the grounds already considered and rejected by the Court of Criminal Appeal.
Decision
The Court noted that a Part 7 application under the Crimes (Appeal and Review) Act 2001 (NSW) is not simply another avenue of appeal. The threshold question under s 79(2) is whether there appears to be a doubt or question as to the applicant's guilt, the conviction, or any sentence. That threshold must be met before the matter can be referred to the Court of Criminal Appeal.
Bellew J examined the grounds raised by the applicant, which included challenges to the reliability of witness evidence and aspects of the trial process. His Honour found that the same grounds had been considered and rejected by the Court of Criminal Appeal when refusing leave to appeal in 2014. The applicant pointed to no further factors bearing upon those grounds that had not already been addressed.
Having reviewed all of the applicant's written material, Bellew J concluded that nothing in it gave rise to any sense of unease or disquiet about the conviction. The statutory threshold under s 79(2) was not met, and accordingly the application was dismissed.
Orders Made
- The application is dismissed.
- The Registrar is directed to forward a copy of the judgment to the applicant.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), a Part 7 application will not proceed unless there is an appearance of a "doubt or question" as to the applicant's conviction or guilt. This threshold is a meaningful gateway, not a formality.
- Where the grounds relied upon in a Part 7 application have already been considered and rejected by the Court of Criminal Appeal, and the applicant identifies no additional factors, the threshold requirement is unlikely to be satisfied.
- Substantial written submissions, even prepared without legal assistance and running to hundreds of pages, do not in themselves satisfy the statutory threshold if the underlying grounds lack merit or novelty.
- The Court confirmed that it will take into account all material filed by a self-represented applicant, but volume of material does not substitute for substance that raises a genuine doubt about the conviction.
- A Part 7 application is a distinct statutory remedy, not an extension of the ordinary appeal process, and its threshold requirements operate independently of how the earlier leave application was decided.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 37
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7 (ss 78, 79)
Cases:
- Armand-Iskak v R [2014] NSWCCA 325
- Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260
- Application of Dunn [2005] NSWSC 857
- Application of Moore [2000] NSWSC 364; (2000) 112 A Crim R 331
- Application of Rendell (1987) 32 A Crim R 243
- Application of Suey [2001] NSWSC 543
- Buttrose v Attorney General of NSW [2015] NSWCA 221; (2018) 324 ALR 562
- Osland v R (1998) 197 CLR 316
- Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- R v Milat [2005] NSWSC 920; 157 A Crim R 565
- Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30