Citation: [2023] NSWSC 449
Court: Supreme Court of New South Wales
Date: 1 May 2023
Judge(s): McNaughton J
Background
The applicant, identified by the pseudonym Alexander, sought an inquiry into ten convictions under the Crimes Act 1900 (NSW) for sexual and indecent assault of his daughter, who was ten years old at the time of the offending. The convictions followed a judge-alone trial at which Alexander was self-represented. All names in the judgment are pseudonyms, used to protect the identity of the child complainant.
Alexander had previously exhausted the ordinary appeal process. The New South Wales Court of Criminal Appeal (CCA) upheld his convictions in 2019, and he was represented at that appeal by senior and junior counsel. This application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) was his first petition for a post-appeal inquiry.
The NSW Attorney General opposed the application, submitting that it disclosed no doubt or question as to Alexander's guilt, any mitigating circumstances, or any part of the evidence, and that the Court should exercise its discretion to refuse to consider the application.
Legal Issues
- Whether the application disclosed a doubt or question as to the applicant's guilt, any mitigating circumstances, or any part of the evidence sufficient to warrant an inquiry 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 to consider the application
- Whether the applicant's self-representation at trial gave rise to a breach of procedural fairness or engaged the principle in Dietrich v The Queen (1992), which concerns the right to a fair trial where an accused faces a serious charge without legal representation
- Whether the prosecution had breached its duties by failing to call certain witnesses, tendering selective evidence, or failing to tender a fitness-to-stand-trial report
Decision
McNaughton J outlined the applicable principles from GILLIES [2021] NSWSC 1392, confirming that a s 78 application is an administrative, not judicial, proceeding. It is not intended as another avenue of appeal after the appeal process has been exhausted, but is engaged where additional material has come to light raising a doubt or question as to guilt. The relevant threshold, while not a demanding one, requires material that as a matter of practical reality creates an "unease or sense of disquiet" about allowing the conviction to stand.
The Court addressed each complaint in turn. Alexander's self-representation at trial did not raise a Dietrich concern: he had been given appropriate opportunities to obtain representation over several years before trial and had made informed choices in that regard. The CCA had considered related grounds on appeal and found no miscarriage of justice.
The complaints regarding the prosecution's conduct were each rejected. The prosecutor's failure to call various witnesses, including several police officers and a psychiatrist, was examined individually. In each instance, either the reason for not calling the witness was adequately explained in the trial record, the issue had been addressed at trial or on appeal, or the applicant failed to articulate any basis for how the omission could give rise to a doubt or question within s 79(2). The complaint about selective crime scene photographs was similarly rejected: the trial record showed that the number of beds in the cabin had been clearly established through cross-examination and additional exhibits tendered by Alexander himself.
Additional complaints, including that the CCA failed to notice inadmissible Crown evidence, that appeal counsel declined to adduce fresh evidence regarding physical scarring, and that no expert witnesses were called, were each rejected as lacking a discernible basis or as matters that had been, or could have been, raised in the appeal.
Orders Made
No orders were made in this decision.
Key Takeaways
- A Part 7 application under the Crimes (Appeal and Review) Act 2001 is not a further avenue of appeal and is properly refused where no new material creates a genuine sense of unease or disquiet about the conviction.
- The Dietrich principle was not engaged where an accused was self-represented at a judge-alone trial but had been given extensive opportunities to obtain counsel over a period of years and raised no timely complaint about disadvantage.
- Complaints regarding prosecutorial conduct, including failures to call witnesses, were rejected where the applicant could not articulate how any omission gave rise to a doubt or question as to guilt under s 79(2).
- Grounds that were available to be raised on the CCA appeal, but were not raised by experienced counsel, were treated as a significant indicator that those grounds did not support any relevant doubt or question.
- Under s 79(3), the Supreme Court retains a discretion to refuse to consider an application, and that discretion is to be exercised responsibly and sparingly, with the court acting as a gatekeeper to prevent the inquiry mechanism from becoming a vehicle for re-litigating concluded proceedings.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), ss 61M, 61O, 66C, 475
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 61, 62, 63, 67, 142, 175, 183, 184, 185, 294A
- Evidence Act 1995 (NSW), s 138
- Crime Commission Act 2012 (NSW)
- Surveillance Devices Act 2007 (NSW)
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
Cases:
- Alexander (a pseudonym) v R [2019] NSWCCA 79
- GILLIES, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392
- Dietrich v The Queen (1992) 177 CLR 292
- Varley v Attorney General in and for the State of New South Wales (1987) 8 NSWLR 30
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
- GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314
- GAR v Attorney General for the State of New South Wales (No 3) [2020] NSWCA 179
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Clark v Attorney General of New South Wales [2020] NSWCA 70
- Craig v South Australia (1995) 184 CLR 163
- R v Rendell (1987) 32 A Crim R 243
- Director of Public Prosecutions (NSW) v Chaouk [2010] NSWSC 1418