Citation: Application of Doyle under s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 1029
Court: Supreme Court of New South Wales
Date: 13 August 2019
Judge(s): Wright J
Background
The applicant had a long history of proceedings arising from a 1957 conviction and sentence for larceny of a motor vehicle. Those proceedings included an abandoned appeal in 1957, a refused inquiry application in 2002, a refused extension of time and leave to appeal in the Court of Criminal Appeal in 2003, and a refused application for special leave to the High Court in 2004. Separately, convictions from 1985 for imposition and goods in custody had been quashed by the Court of Criminal Appeal in 2001.
In July 2018, the applicant filed an application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), the provision that allows a convicted person to seek a Supreme Court inquiry into their conviction or sentence. The application did not, however, seek a review of the 1957 conviction and sentence itself. Instead, it alleged that Crown counsel had committed a fraud on the Court of Criminal Appeal during the 2003 proceedings by presenting an incorrect criminal history, specifically attributing drug and conspiracy offences to the applicant that he denied having.
The applicant argued that because the Court of Criminal Appeal did not call on Crown counsel to respond during the 2003 hearing, the court had already made up its mind without allowing him to refute the allegedly fabricated record. He also raised supplementary matters, including the Victorian "Lawyer X" controversy and a claimed right of appeal to the Privy Council.
Legal Issues
- Whether the application, properly characterised, sought "an inquiry into a conviction or sentence" as required by s 78 of the Crimes (Appeal and Review) Act 2001.
- Whether, in the alternative, the court should exercise its discretion under s 79(3) to refuse to consider or deal with the application on the basis that the underlying matter had already been fully dealt with through prior proceedings, reviews, or lapsed appeals.
- Whether any special facts or circumstances existed under s 79(3)(b) that would justify taking further action despite that history.
Decision
Wright J found that the application was fundamentally misconceived in its framing. The applicant's complaint targeted alleged misconduct by Crown counsel in the 2003 Court of Criminal Appeal proceedings, not any doubt or question as to the applicant's guilt, mitigating circumstances, or evidence in relation to a conviction or sentence. Section 79(2) permits action only where such a doubt or question appears. Because the application did not seek an inquiry into a conviction or sentence in the required sense, it did not satisfy the threshold for relief under ss 78 and 79.
Even if the application were treated as properly directed at the 1957 conviction and sentence, Wright J found multiple independent grounds to refuse it under s 79(3). The matter had been fully dealt with in the 2003 Court of Criminal Appeal proceedings and the earlier 2002 inquiry application decided by Dunford J. Additionally, the 1957 appeal lodged by the applicant and subsequently abandoned before hearing constituted proceedings that had "been withdrawn or allowed to lapse" within s 79(3)(a)(iv).
On the supplementary matters, Wright J accepted the Attorney General's submissions. The Victorian Lawyer X controversy concerned a specific individual in another jurisdiction and raised no concerns about the applicant's own circumstances. The applicant's belief in a Privy Council right of appeal provided no basis for further action. None of the matters raised in relation to the 1957 trial generated a doubt or question of the kind required by s 79(2), and Wright J respectfully adopted the reasoning of Dunford J and the Court of Criminal Appeal from earlier proceedings to that effect.
Accordingly, Wright J was not satisfied that special facts or circumstances existed under s 79(3)(b) to justify further action, and the application was refused on all available grounds.
Orders Made
- The application for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001, filed on 8 August 2018, was refused.
Key Takeaways
- An application under s 78 of the Crimes (Appeal and Review) Act 2001 must seek an inquiry into a conviction or sentence; a complaint directed solely at alleged misconduct during appellate proceedings does not satisfy this threshold requirement.
- Under s 79(2), the Supreme Court may only direct an inquiry or refer a matter to the Court of Criminal Appeal where it appears there is a doubt or question as to the convicted person's guilt, mitigating circumstances, or part of the evidence. The applicant's allegations about a false criminal history presented to the Court of Criminal Appeal in 2003 did not meet this test.
- Where a matter has previously been dealt with through inquiry applications, appeal proceedings, and a High Court special leave application, the s 79(3) discretion to refuse the application will be engaged, and courts will examine carefully whether any genuinely new or special circumstances exist.
- Abandoning an appeal before hearing can constitute proceedings that have "been withdrawn or allowed to lapse" within s 79(3)(a)(iv), providing a further independent basis for refusal.
- Controversies or findings concerning police or legal misconduct in other jurisdictions, such as the Victorian Lawyer X matter, do not of themselves raise doubts about an unrelated conviction in New South Wales.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), ss 474D, 474E (repealed)
- Australia Act 1986 (Cth)
Cases
- Application of Doyle [2002] NSWSC 1022
- R v Doyle [2000] NSWSC 512
- R v Doyle [2001] NSWCCA 252
- R v ED [2003] NSWCCA 255
- ED v The Queen [2004] HCATrans 396
- R v Gregory [2002] NSWCCA 199
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928
- Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423