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Supreme Court 23 March 2022

Application by Cartman (a pseudonym) pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW)

[2022] NSWSC 308

Sexual offences
CRIME APPEAL AND REVIEW NEW EVIDENCE DOUBT AS TO GUILT FOUND

Citation: Application by Cartman (a pseudonym) pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 308
Court: Supreme Court of New South Wales
Date: 23 March 2022
Judge: Dhanji J

Background

The applicant (referred to by the pseudonym "Cartman") was convicted in the Children's Court in 2016 of one count of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The offending was alleged to have occurred between July and October 2014, when the applicant herself was between 15 and 17 years old and the complainant between 13 and 15 years old. Of eight charges originally brought, the applicant was acquitted of six in the Children's Court and a further one on appeal to the District Court, leaving this single conviction standing.

The applicant received a suspended Control Order of 10 months, later reduced to six months on appeal. Although the sentence has long been served, the conviction carries permanent consequences: lifetime registration on the NSW Sex Offender Register and a criminal record that can never become spent under the Criminal Records Act 1991 (NSW). The applicant was also sentenced before the 2018 amendment to the Child Protection (Offenders Registration) Act 2000 (NSW) that would have allowed a court to declare that a person who offended as a child need not be treated as a registrable person.

The applicant brought proceedings under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), contending that fresh evidence had come to light that raised a doubt or question as to her guilt. She sought referral of the whole case to the Court of Criminal Appeal to be dealt with as an appeal against conviction.

  • Whether fresh evidence was available that raised a "doubt or question" as to the applicant's guilt, or as to part of the evidence in the case, sufficient to enliven the power under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW)
  • Whether the applicant's reliance on the new evidence amounted to an impermissible attempt to "rerun the trial on the papers"
  • Whether the complainant's evidence as to the applicant's outfit, which was critical to the complainant's account, was undermined by the fresh evidence
  • Whether the whole case should be referred to the Court of Criminal Appeal under s 79(1)(b)

Decision

Dhanji J applied the well-established statutory test: action under s 79 may only be taken where it "appears" there is a doubt or question as to the convicted person's guilt, or as to part of the evidence. Drawing on prior authority, his Honour confirmed that this standard is met where the available material causes a sense of unease or disquiet about allowing the conviction to stand, rather than requiring proof of actual innocence.

The court identified that the complainant's description of what the applicant was wearing at the time of the alleged offending was critical to her account. Fresh evidence placed before the court suggested there was an error in that description. This evidence had not been before the courts below, and his Honour was satisfied it raised a genuine doubt as to the applicant's guilt rather than constituting a mere attempt to re-agitate matters already considered at trial and on appeal.

The Attorney General resisted the application on the basis that it amounted to an attempt to "rerun the trial on the papers" and pointed to forensic decisions made by trial counsel. Dhanji J rejected both arguments. The principle against relitigating trial issues did not apply where credible new evidence, not previously available, had come to light. The references to counsel's forensic judgments, drawn from Application by Sef Gonzales (No 2), were made in a different context (alleged incompetence of counsel) and did not assist the Attorney General here.

Dhanji J was satisfied the statutory threshold was met and that the whole case should be referred to the Court of Criminal Appeal. The court also addressed the publication of the applicant's name, declining to identify her given the prohibition in s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and the risk that publication on CaseLaw would effectively undermine the relief sought, given that none of the earlier proceedings are available online.

Orders Made

  • Application granted
  • The whole of the applicant's case referred to the Court of Criminal Appeal pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), to be dealt with as an appeal against conviction
  • The applicant's case to be listed before the Registrar of the Court of Criminal Appeal for further directions as soon as reasonably practicable

Key Takeaways

  • Under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may refer a conviction to the Court of Criminal Appeal where available material causes a sense of unease or disquiet about allowing the conviction to stand; proof of actual innocence is not required.
  • Fresh evidence that was not before the courts at trial or on appeal can justify a referral and does not amount to an impermissible attempt to "rerun the trial on the papers," provided the evidence is credible and genuinely new.
  • Principles concerning the forensic decisions of trial counsel, as discussed in cases involving allegations of counsel incompetence, are not automatically applicable to s 78 applications that rely on new evidence.
  • Where a complainant's evidence as to a specific detail is described as critical to their account, fresh evidence casting doubt on the accuracy of that detail may be sufficient to satisfy the statutory doubt-or-question threshold.
  • The Supreme Court may decline to publish a convicted person's name in connection with a s 78 judgment where the Children (Criminal Proceedings) Act 1987 (NSW) restricts publication and where naming the person online would largely defeat the purpose of the application.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), s 66C(3)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B
- Child Protection (Offenders Registration) Act 2000 (NSW), s 3C
- Criminal Records Act 1991 (NSW), s 7(1)(b)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412
- Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623
- State of NSW v Norstead [2019] NSWSC 1095
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783
- WGC v The Queen (2007) 233 CLR 66
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
- Mickelberg v The Queen (1989) 167 CLR 259
- R v Pollock [2005] NSWCCA 316