Citation: Application by Paul Scott Howes pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2023] NSWSC 418
Court: Supreme Court of New South Wales
Date: 21 April 2023
Judge(s): Chen J
Background
The applicant was convicted in 2015 of three counts of stalking with intent to cause fear of physical or mental harm under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The conduct involved following and covertly recording young boys at outdoor markets using a concealed pen camera on two separate occasions in 2013. Each victim was unaware at the time.
On sentence, the applicant was required to pay fines and enter a two-year good behaviour bond with conditions including supervision and rehabilitation. His conviction appeal to the District Court was dismissed in September 2016, and his sentence appeal was abandoned at that time.
The applicant subsequently received a diagnosis of Autism Spectrum Disorder (ASD). He applied to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for his case to be referred to the Court of Criminal Appeal, to be dealt with as an appeal against both conviction and sentence.
Legal Issues
- Whether the ASD diagnosis constituted new evidence raising a "doubt or question" about the applicant's guilt, specifically as to whether he intended to cause fear or knew his actions would cause fear.
- Whether the ASD diagnosis made available the mental health diversion provisions under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and, if so, whether the applicant "lost an opportunity" to be dealt with under that scheme.
- Whether the applicant was sentenced without relevant evidence of cognitive impairment before the court, resulting in a lost opportunity to receive a non-conviction order under s 10 of the Crimes (Sentencing Procedure) Act 1999.
- Whether any of these grounds satisfied the statutory precondition in s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW) for referral to the Court of Criminal Appeal.
Decision
On guilt and the ASD diagnosis: Chen J found that the ASD diagnosis did not raise a sufficient doubt or question about the applicant's guilt. The prosecution case did not depend on proof that the applicant subjectively intended the victims to become aware of his conduct or to experience immediate fear. The stalking offences were established by evidence of conduct that would cause a reasonable person to fear for their safety, regardless of the applicant's understanding of the effect on others. The ASD diagnosis could not undermine that objective element of the offence.
On the mental health diversion argument: The court rejected the contention that the applicant lost an opportunity to be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The ASD diagnosis post-dated the conviction proceedings, but the court found no basis to conclude the condition was not discoverable earlier with appropriate inquiry. More fundamentally, the diversion provisions were not a live pathway after conviction; they operated at an earlier stage of proceedings and there was no mechanism for the Court of Criminal Appeal to apply them retrospectively.
On sentencing: The court found that the ASD material was not "fresh" evidence for the purposes of any sentence appeal. Critically, the applicant's legal representatives had conceded the appropriateness of the sentence in the District Court and had withdrawn the sentence appeal. No error could be identified in the sentencing, and the decision not to place ASD-related evidence before the sentencing court reflected a deliberate choice made on the applicant's behalf, not a lost opportunity. Chen J was not satisfied that admission of the evidence would be necessary to avoid a miscarriage of justice.
Overall: The application failed to satisfy the precondition in s 79(2) of the CAR Act that it "appear" there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances, or as to any part of the evidence. The application was refused in its entirety. Chen J emphasised that the Part 7 procedure is not a further avenue of appeal for matters that have been fully dealt with through the ordinary process.
Orders Made
- The application to refer the matter to the Court of Criminal Appeal was refused.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may only refer a matter to the Court of Criminal Appeal if it appears there is a doubt or question as to guilt, mitigating circumstances, or the evidence. A post-conviction medical diagnosis does not automatically satisfy that threshold.
- A diagnosis of ASD obtained after conviction will not raise a doubt about guilt for stalking offences where the relevant element of the offence is assessed objectively, by reference to the effect of the conduct on a reasonable person rather than the accused's subjective understanding.
- The Part 7 review procedure is not a supplementary avenue of appeal. Where matters have been fully litigated or deliberately abandoned in earlier proceedings, the statutory discretion to refuse consideration under s 79(3) reinforces the principle of finality.
- Deliberate decisions made by an applicant or their legal representatives during earlier proceedings, including withdrawing a sentence appeal and conceding the appropriateness of a sentence, carry significant weight against any later claim of "lost opportunity" before the Supreme Court.
- Evidence is not "fresh" for the purposes of a sentence appeal simply because it post-dates conviction. Where that evidence could have been obtained and placed before the sentencing court, its admission on appeal will face a high bar.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
- Criminal Appeal Act 1912 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)
Cases:
- Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623
- Application by Shelden Patrick Vaughan pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 920
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221
- GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314
- Hoang v The Queen [2020] NSWCCA 324
- Huynh v The Queen (2021) 105 NSWLR 384; [2021] NSWCCA 148
- Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 66 NSWLR 151; [2006] NSWCA 172
- R v Milat (2005) 157 A Crim R 565; [2005] NSWSC 920
- Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44