Citation: [2020] NSWSC 1048
Court: Supreme Court of New South Wales
Date: 11 August 2020
Judge: Cavanagh J
Background
The applicant, referred to by the pseudonym "AZ", applied under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction. In March 2017, a jury convicted him on 10 counts of child sexual assault and indecency offences against two children, and he was sentenced to an aggregate 13 years' imprisonment with a non-parole period of nine years.
AZ had exhausted his formal appeal avenues. The Court of Criminal Appeal dismissed his appeal by majority in December 2018, and the High Court refused special leave to appeal in June 2019. AZ was unrepresented in this application, which the court noted is not unusual in proceedings of this kind.
The applicant sought to have the jury's verdicts overturned, expressly acknowledging that his submissions echoed those made at trial and on appeal. No new or fresh evidence was raised.
Legal Issues
- Whether the Supreme Court should consider or otherwise deal with the application under s 78, or whether it should be summarily dismissed under s 79(3)
- Whether the matters raised by the applicant had already been fully dealt with in the original proceedings and on appeal
- Whether any special facts or special circumstances existed to justify taking further action despite those matters having been previously dealt with
Decision
Cavanagh J confirmed that an application under s 78 is an administrative function, not a judicial proceeding, and is not a further avenue of appeal. The court can only take action under s 79(1) (directing an inquiry or referring the case to the Court of Criminal Appeal) if it appears there is a doubt or question as to the convicted person's guilt, mitigating circumstances, or any part of the evidence.
The applicable test, drawn from Varley v Attorney General (NSW) and affirmed in Holland, is whether the available material causes a sense of unease or disquiet about allowing the conviction to stand. Cavanagh J found that no such material existed here. AZ raised no new evidence and pointed to nothing overlooked by the Court of Criminal Appeal. His arguments were, by his own admission, a restatement of submissions already considered and rejected at trial and on appeal.
Section 79(3) empowers the court to refuse to consider or deal with an application where the matters raised have been fully dealt with in prior proceedings and no special facts or circumstances justify further action. Cavanagh J found both conditions were satisfied. The court noted that even the argument that the CCA majority had addressed the grounds too broadly, without reference to individual counts, had been raised in the special leave application to the High Court.
Cavanagh J emphasised that the s 78 process is not intended to be another form of appeal. In circumstances where an applicant simply restates arguments already exhausted through the ordinary appeals process, the court's power to refuse consideration exists precisely to address that situation.
Orders Made
The application was dismissed.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court can only direct an inquiry or refer a matter to the Court of Criminal Appeal if there is a doubt or question as to the convicted person's guilt, mitigating circumstances, or the evidence. The test is whether the material causes unease or disquiet about allowing the conviction to stand.
- A s 78 application is an administrative function, not a judicial proceeding, and is not a substitute for a further appeal against conviction.
- Section 79(3) provides a summary dismissal power where the matters raised were fully dealt with at trial or on appeal and no special facts or circumstances justify further action. Both conditions must be satisfied before the court is justified in refusing to consider the application.
- Raising no fresh evidence and simply restating arguments already rejected at trial, on appeal, and in a special leave application is the paradigm case for summary dismissal under s 79(3).
- The court treated the unrepresented applicant's request to have verdicts overturned as an application for an inquiry into his conviction, construing the application beneficially given his lack of legal representation.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), s 306S
Cases
- AZ v R [2018] NSWCCA 294
- AZ v The Queen [2019] HCASL 192
- Application of Peter James Holland under s.78 Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Application of Milat [2005] NSWSC 920; 157 A Crim R 565
- Application of Dunn [2005] NSWSC 857
- Application of Esposito (Supreme Court (NSW), Hunt CJ at CL, 14 July 1988, unrep)
- Clark v Attorney General of New South Wales [2020] NSWCA 70
- Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145
- Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
- Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172