Citation: Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623
Court: Supreme Court of New South Wales
Date: 26 May 2020
Judge(s): Hamill J
Background
The applicant was an inmate at Lithgow Correctional Centre serving a sentence for murder. On 4 March 2009, he was observed on CCTV entering the Industries Area of the prison but was never recorded leaving it. He was found missing at the afternoon muster and, after an extensive search, was discovered hiding in the roof cavity of the Industries Area at approximately 8:45 pm. He had been concealed there in complete darkness for at least five and a quarter hours.
The applicant was charged with attempting to escape from lawful custody under s 310D(b) of the Crimes Act 1900 (NSW). Following a judge-alone trial in the District Court in Bathurst, Judge Colefax found him guilty in August 2011 and sentenced him to a fixed term of 13 months imprisonment, to be served cumulatively on his existing murder sentence. The Court of Criminal Appeal dismissed his appeal against conviction and sentence in December 2014, and the High Court refused special leave in September 2015.
The applicant then brought the present application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), raising a specific evidentiary challenge that had not been ventilated in the earlier appeal proceedings. He targeted the evidence of two Corrective Services officers who gave testimony about the prison's layout, practices, and one officer's opinion as to how the applicant might have been attempting to escape.
Legal Issues
- Whether the evidence of the two Corrective Services officers included inadmissible hearsay, speculation, conjecture, or lay opinion evidence contrary to the Evidence Act 1995 (NSW)
- Whether, having regard to those evidentiary complaints, there was a "doubt or question" as to the applicant's guilt sufficient to warrant an inquiry under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW)
- Whether it was appropriate for the Supreme Court to consider fresh grounds under Part 7 that were not raised in prior appeal proceedings
Decision
Hamill J examined the applicant's evidentiary complaints in detail, considering the trial evidence of the two Corrective Services officers. The applicant argued that portions of their testimony constituted inadmissible hearsay (describing things they had not personally observed), impermissible lay opinion (not qualifying under s 78 of the Evidence Act 1995 (NSW)), and speculation or conjecture about the applicant's purpose in hiding. The court considered each complaint against the relevant provisions of the Evidence Act.
On the hearsay complaints, the court found that the officers were largely giving evidence of their own observations and direct knowledge of the prison environment, rather than recounting out-of-court statements. Any passages that could arguably be characterised as hearsay were not shown to have materially influenced the trial judge's conclusions. Similar reasoning applied to the opinion evidence complaints: where officers offered views about the facility or the applicant's possible route of escape, the trial judge's verdict rested on a solid foundation of circumstantial evidence that did not depend on those passages.
The court acknowledged that it was appropriate to consider evidentiary grounds raised for the first time in a Part 7 application, even where earlier appeals had been exhausted. However, having reviewed the evidence as a whole, Hamill J concluded that the applicant's complaints, taken individually or together, did not give rise to any appearance of doubt as to the guilt of the applicant. The applicant's alternative innocent explanations for being in the roof cavity, including secreting material, self-protection, mischief, or seeking privacy, had been considered and rejected at trial and on appeal.
The court declined to direct an inquiry or refer the matter to the Court of Criminal Appeal. The strength of the circumstantial case, including the CCTV evidence showing entry but no exit, the duration of concealment, and the absence of any credible innocent explanation, meant the application did not satisfy the threshold required under s 79(2) of the CAR Act.
Orders Made
• Decline to exercise powers in s 79(1) of the Crimes (Appeal and Review) Act 2001
• Will not direct an inquiry into the applicant's conviction
• Will not refer the case to the Court of Criminal Appeal to be dealt with on appeal pursuant to the Criminal Appeal Act 1912 (NSW)
Key Takeaways
- Under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court will consider fresh grounds not raised in prior appeal proceedings, but the threshold for directing an inquiry remains a "doubt or question" as to the applicant's guilt under s 79(2).
- Evidentiary complaints about hearsay or lay opinion at trial will not, on their own, satisfy the Part 7 threshold unless they can be shown to have materially affected the verdict or to create an appearance of doubt about guilt.
- The Court of Criminal Appeal had previously confirmed that concealing oneself in a prison roof cavity for over five hours, missing a muster in the process, was capable of constituting conduct more than "remotely leading towards" escape and was "immediately connected" with it, satisfying the proximity requirement for an attempt.
- Refusing special leave, the High Court noted that the applicant's argument about the proximity test in inchoate offences had not been raised in the courts below, illustrating the general principle that appellate review is constrained by issues actually agitated at earlier stages.
- No appearance of doubt arose from the evidentiary challenges in this application; the circumstantial evidence at trial, viewed as a whole, remained sufficient to support the conviction.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 310D(b)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), ss 78, 79
Cases
- Steer v R [2014] NSWCCA 338
- Brian James Steer v The Queen [2015] HCASL 149, S 35/2015
- Application by Brian Wayne Coles pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 797
- Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1) [2015] NSWSC 291
- Further Application by Gil Bum Yun Pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 825
- GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- D'Orta-Ekenaide v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28