Citation: Application by Brian Wayne Coles pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 797
Court: Supreme Court of New South Wales
Date: 27 June 2019
Judge(s): Hamill J
Background
The applicant was convicted in 1992 by Judge McDevitt in the District Court at Broken Hill on two counts of sexual intercourse without consent under s 61D(1) of the Crimes Act 1900 (NSW). The trial proceeded before a judge alone, without a jury. The applicant was sentenced to a minimum term of two and a half years' imprisonment plus an additional term of ten months on each count.
The prosecution case was that the complainant, who was intoxicated and lying on a footpath late at night, was dragged to a grassy area and subjected to both digital and penile intercourse while she screamed, resisted, and called for help. The applicant's account, given in a signed record of interview, was that the complainant had consented and actively participated. The trial judge accepted the complainant's evidence, corroborated by witness testimony and medical findings.
The applicant appealed to the Court of Criminal Appeal, which dismissed the appeal in September 1993. An application for special leave to appeal to the High Court was refused in 1994. The applicant then brought this application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) seeking a fresh inquiry into his conviction, many years after completing his sentence.
Legal Issues
- Whether there was a "doubt or question" as to the applicant's guilt sufficient to warrant referring the matter to the Court of Criminal Appeal under s 79 of the Crimes (Appeal and Review) Act 2001 (NSW)
- Whether the applicant's election for trial by judge alone was in some way flawed or had produced an unfair outcome
- Whether the applicant's election not to give sworn evidence at trial resulted in a miscarriage of justice
- Whether the trial judge's reasons for conviction were legally insufficient
- Whether subsequent High Court authorities on the adequacy of reasons changed the position, given those issues were previously considered on appeal
- Whether alleged weaknesses in the prosecution case created a sufficient appearance of doubt to justify a further inquiry
Decision
Hamill J identified the governing test under s 78 as whether there is an "appearance of doubt" as to the applicant's guilt. The section does not require proof of innocence or even a probability of innocence; it requires something more than a bare assertion but less than certainty. Where most of the matters raised have already been considered by appellate courts, and no compelling new evidence is presented, the threshold is difficult to meet.
The court examined each of the applicant's grounds in turn. On the question of the election for trial by judge alone, the court found no flaw in the procedure and noted the issue had been addressed in the earlier appeal. On the applicant's decision not to give sworn evidence, the court accepted that later High Court authority had developed the law around silence at trial, but found this did not generate a sufficient appearance of doubt given the strength of the prosecution case and the prior appellate consideration of the same point.
On the adequacy of the trial judge's reasons, the court acknowledged that subsequent High Court decisions had signalled that more detailed reasoning may be required in judge-alone trials than was common practice in 1992. However, this ground had been considered by both the Court of Criminal Appeal and the High Court in the original proceedings. The court declined to treat developments in the law on judicial reasoning as a new basis for doubt when those very issues were squarely before the earlier appeal courts.
Having assessed the totality of the applicant's submissions, the court found no appearance of doubt as to the applicant's guilt sufficient to warrant referral for inquiry. The factual findings of the trial judge, corroborated by witness evidence and medical findings, remained compelling. The application was refused.
Orders Made
• The application is refused.
Key Takeaways
- Under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), the test for referring a conviction for inquiry is whether there is an "appearance of doubt" as to guilt; this requires something beyond a bare assertion but falls short of establishing actual innocence.
- Where grounds raised in a s 78 application were already considered and rejected on appeal, their mere re-agitation does not generate the necessary appearance of doubt, even when the applicant frames them differently.
- Subsequent High Court decisions expanding the requirements for judicial reasoning in judge-alone trials did not create a new basis for doubt in this case, because the adequacy of the trial judge's reasons had been squarely examined by both the Court of Criminal Appeal and the High Court in the original proceedings.
- No compelling new evidence was presented in this application; the evidentiary foundation of the conviction, including corroborating witness testimony and medical findings, remained intact and supported the original findings.
- A significant delay between conviction and a s 78 application does not, of itself, affect the merits of the review; the court assessed the application on its substantive grounds regardless of the time elapsed.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), s 61D(1)
- Criminal Procedure Act 1986 (NSW), s 133
Cases
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1) [2015] NSWSC 291
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2009] NSWSC 251
- Filippou v R (2015) 256 CLR 47; [2015] HCA 29
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314
- Gipp v R [1998] HCA 21; (1998) 72 ALJR 1012
- R v Perry (1993) 29 NSWLR 589
- Richard William Buttrose v A-G Of New South Wales [2015] NSWCA 221
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Further Application by Gil Bum Yun Pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 825