Citation: Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442
Court: Supreme Court of New South Wales
Date: 14 April 2022
Judge(s): Dhanji J
Background
The applicant was convicted in 2005 of three counts of murder following a trial before Barr J. He did not dispute killing the three deceased on 1 February 2003. His plea of not guilty rested on the defence of mental illness, with an alternative plea of substantial impairment (which, if accepted, would have reduced the verdicts to manslaughter). The jury rejected both defences, and the applicant was sentenced to life imprisonment on each count.
A subsequent sentence appeal to the Court of Criminal Appeal was dismissed in 2006. No appeal against conviction was ever brought. The applicant has remained in custody since his arrest and, as the judgment notes, will never be released unless these convictions are disturbed.
The applicant applied under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his convictions and sentences. He relied principally on fresh psychiatric evidence said to cast doubt on the psychiatric evidence led at trial, including new expert reports reflecting advances in understanding the relationship between prodromal or first-episode schizophrenia and violent offending, as well as confirmation of the nature of his illness through subsequent treatment.
Legal Issues
- Whether the new psychiatric evidence gave rise to a "doubt or question" as to the applicant's guilt sufficient to warrant action under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW)
- Whether the Court should exercise its discretion under s 79(3) to refuse the application on the basis that avenues of appeal against conviction had not been exhausted
- Whether, if the application for an inquiry was refused, the Court should instead refer the whole matter to the Court of Criminal Appeal on its own motion under s 79(1)(b)
- Whether "special circumstances" existed within the meaning of s 79(3)(b) to justify further action despite the unexplained and lengthy delay in raising these matters
Decision
Dhanji J found that the new psychiatric evidence did give rise to a doubt or question as to the applicant's guilt on the murder convictions. The updated expert reports diverged from the psychiatric evidence presented at trial, reflecting advances in the understanding of prodromal or first-episode schizophrenia and its relationship to violent offending, as well as the subsequent confirmation of the applicant's diagnosis through his treatment history. These matters caused the requisite sense of unease or disquiet about allowing the convictions to stand.
However, the Court declined to simply direct that an inquiry be conducted by a judicial officer. Because the applicant had never appealed his convictions, those avenues of appeal remained unexhausted, engaging the discretion under s 79(3) to refuse the application. The Court considered that an inquiry would be of questionable benefit in any event, given the superior capacity of the Court of Criminal Appeal to deal with the full range of issues arising, including conviction and sentencing matters together.
Acting on its own motion under s 79(1)(b), the Court instead referred the whole matter to the Court of Criminal Appeal to be dealt with as an appeal. Dhanji J acknowledged the significant and unexplained delay in bringing the new expert reports to the attention of the courts (two earlier reports had existed for a number of years before the application was made), but concluded that the questions raised about guilt were sufficiently serious to warrant referral despite that delay and its potential impact on any extension of time application.
The Court also held that special circumstances existed under s 79(3)(b) justifying further action, primarily because confining the applicant to filing his own appeal would limit him to challenging his convictions alone, which was a less satisfactory outcome than a whole-of-matter referral that could address both conviction and sentencing questions together.
Orders Made
- The application for an inquiry into the applicant's convictions and/or sentences is refused.
- The whole of the applicant's case is 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.
- 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 relevant question is whether a doubt or question as to guilt "appears" to exist, not whether such a doubt is well-founded. The court considering the application does not need to resolve the underlying question; that is a matter for any subsequent inquiry or appeal.
- Fresh expert evidence that diverges from expert evidence given at trial, particularly where that divergence reflects genuine advances in scientific or clinical understanding, can satisfy the threshold for "doubt or question as to any part of the evidence in the case."
- A referral to the Court of Criminal Appeal under s 79(1)(b) operates as a referral to be dealt with as an appeal, not merely as an application for leave to appeal. This distinction has practical consequences for procedural requirements, including any extension of time for an applicant who has not previously appealed a conviction.
- Substantial and unexplained delay in bringing new evidence forward does not automatically defeat an application, but the Supreme Court recognised it as an unsatisfactory feature of the process and noted that the Court of Criminal Appeal will need to grapple with its consequences.
- Where avenues of appeal against conviction remain unexhausted, the Supreme Court retains a discretion to refuse an inquiry application under s 79(3), but special circumstances can justify bypassing that refusal and referring the whole matter to the Court of Criminal Appeal instead.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7, ss 78, 79
- Crimes Act 1900 (NSW), ss 18, 23A
- Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)
- Crimes Act 1900 (ACT), s 422
Cases:
- Adanguidi v Regina (2006) 167 A Crim R 295; [2006] NSWCCA 404
- Regina v Crespin Adanguidi [2005] NSWSC 519
- 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 Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623
- Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Li v Attorney General for New South Wales [2018] NSWSC 674
- Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
- Clark v Attorney General of New South Wales [2020] NSWCA 70
- GAR v Attorney General for the State of New South Wales (No 3) [2020] NSWCA 179
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Porter (1933) 55 CLR 182; [1933] HCA 1