Citation: [2022] NSWSC 1577
Court: Supreme Court of New South Wales
Date: 17 November 2022
Judge: Yehia J
Background
The applicant was convicted in the NSW Local Court on 1 June 2020 of seven counts of knowingly contravening a restriction in an Apprehended Violence Order (AVO), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), as well as one count of stalking or intimidation. He entered pleas of not guilty to all but one sequence.
The applicant, self-represented, appealed to the District Court. On 28 October 2020, Judge Baly SC quashed four of the AVO breach convictions and the stalking conviction, but upheld three of the AVO breach convictions (sequences 1, 7 and 9). He was re-sentenced to a Conditional Release Order for six months.
On 18 January 2022, the applicant, again self-represented, filed an application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) seeking an inquiry into his remaining convictions. He contended there was a doubt or question as to his guilt, particularly around the element of intent.
Legal Issues
- Whether, under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), it appeared that there was a doubt or question as to the applicant's guilt, as to any mitigating circumstances, or as to any part of the evidence, sufficient to warrant directing an inquiry or referring the matter to the Court of Criminal Appeal.
- Whether the applicant's argument, that the prosecution had failed to establish the requisite mental element (mens rea) for the AVO breach offences, raised a genuine doubt about the convictions.
- Whether the applicant's contention that his conduct was motivated by kindness rather than malice was relevant to guilt under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Decision
Yehia J set out the statutory framework under ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW). A Part 7 application is an exercise of administrative, not judicial, power, and action under s 79(1) can only be taken if it "appears" that there is a doubt or question as to guilt, mitigating circumstances, or any part of the evidence. The section uses, as described in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783, "language of confinement."
The judge addressed the applicant's central argument that the prosecution had not established the necessary mental element. Under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), an offence requires proof that the accused was aware of the AVO and its conditions, and knowingly engaged in conduct that constituted a breach. Critically, the prosecution is not required to prove any intention to cause the complainant to feel harassed or intimidated. The applicant had always accepted that he knew the AVO was in place and was aware of its conditions.
The applicant argued that his conduct in sequences 1 and 7 (described as gestures constituting communication) was motivated by concern for the complainant's wellbeing rather than malice. Yehia J found that motivation was not a relevant element of the offence. The non-contact condition prohibited approaching or contacting the complainant "in any way," and Judge Baly SC had already accepted that each gesture constituted a form of communication amounting to a breach.
Having considered all of the applicant's submissions, Yehia J was not satisfied that any doubt or question arose as to guilt, mitigating circumstances, or the evidence. The application was refused.
Orders Made
- The application of Scott Gibson filed on 18 January 2022 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.
Key Takeaways
- A Part 7 application under the Crimes (Appeal and Review) Act 2001 (NSW) is not an additional avenue of appeal. It is an administrative power activated only where it "appears" there is a doubt or question as to guilt, mitigating circumstances, or evidence.
- Under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the prosecution must prove the accused knew of the AVO and its conditions and knowingly engaged in conduct that breached them. It does not need to prove any intention to cause fear, harassment, or intimidation.
- An applicant's benign or sympathetic motive for conduct that constitutes an AVO breach is not a relevant element of the offence and does not give rise to a doubt as to guilt.
- No doubt or question arose simply because the applicant believed his conduct was motivated by kindness, where the District Court had already found the conduct constituted communication in contravention of an unconditional non-contact prohibition.
- Refusing the application, the Supreme Court confirmed that the Part 7 mechanism is reserved for cases where the criminal justice system may have produced an injustice, not for revisiting arguments that have already been fully tested through available appeal processes.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13, 14
Cases
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783
- Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes Appeal and Review Act 2001 (NSW) [2020] NSWSC 1048
- Application by Christopher Cranney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 1005
- Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442
- Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061
- Potier: Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 768
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Application of Paul Nardelli under Section 474D Crimes Act 1900 [2006] NSWSC 967
- Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218