Citation: Application by Shelden Vaughan pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2024] NSWSC 553
Court: Supreme Court of New South Wales
Date: 10 May 2024
Judge: Harrison CJ at CL
Background
The applicant pleaded guilty in the District Court to two serious violence offences arising from an attack on 18 August 2015 at a Carramar carpark. He stabbed his former wife in the chest and arm, stabbed her work colleague in the head, and then deliberately drove his vehicle into his former wife while she lay on the ground, crushing her against another parked car. The former wife sustained multiple severe injuries including fractured vertebrae, ribs, a fractured pelvis and scapula; the colleague required sutures to a head laceration.
The applicant was sentenced in April 2018 to an aggregate term of 21 years' imprisonment with a non-parole period of 14 years. A subsequent application to the Court of Criminal Appeal for an extension of time to seek leave to appeal against sentence was refused in January 2020. Notably, the applicant had not argued in that appeal that his aggregate sentence was manifestly excessive or that the individual indicative sentences fell outside the sentencing judge's discretion.
This was the applicant's second application under s 78 of the Crimes (Appeal and Review) Act 2001 seeking an inquiry into his sentence. His first application had been refused by N Adams J on 8 July 2022.
Legal Issues
- Whether the applicant's second s 78 application raised a doubt or question as to any mitigating circumstances or any part of the evidence, sufficient to enliven the power to refer the matter for inquiry under s 79
- Whether special facts or special circumstances existed that would justify taking further action, given the matters raised had previously been dealt with in the applicant's first s 78 application and in earlier appeal proceedings
Decision
The applicant's submissions ran to 843 pages containing more than 760 separate grounds. Harrison CJ at CL noted that length and repetition were not held against the applicant, and that all submissions were considered in full. The grounds included allegations that his former wife had committed migration fraud, that the agreed facts constituted a false instrument, that expert psychiatric evidence had been fabricated through conspiracies involving the Crown and his legal team, and that his sentence was manifestly excessive. None of the fraud or conspiracy allegations was supported by evidence beyond the applicant's own assertions.
The court found that the applicant's contentions had already been dealt with by N Adams J in the first application. No new material or arguments were presented that had not been raised or available previously. The applicant offered no basis for concluding that any doubt or question arose as to mitigating circumstances or any part of the evidence.
The court was not satisfied that special facts or special circumstances existed that would justify taking further action under s 79(3)(b). The application was accordingly refused. A briefly signalled alternative request for relief under ss 23 or 69 of the Supreme Court Act 1970 was also rejected, as no meaningful submissions were advanced in support of it.
Orders Made
• The application is refused.
Key Takeaways
- Under s 79(3) of the Crimes (Appeal and Review) Act 2001, the Supreme Court may refuse a s 78 application where the matters raised have previously been dealt with and the applicant has not established special facts or special circumstances justifying further action.
- A second s 78 application will not succeed merely by reformulating or expanding upon contentions already considered and rejected in an earlier application under the same provision.
- Allegations of fraud, conspiracy, or fabricated evidence that rest solely on the applicant's own assertions, unsupported by independent evidence, do not give rise to a doubt or question about mitigating circumstances or the evidence within the meaning of s 79(2).
- Arguments not raised in earlier appeal proceedings, including a contention that a sentence was manifestly excessive, do not automatically become available through a subsequent s 78 application, particularly in the absence of new material.
- Voluminous or repetitive submissions do not, of themselves, enliven the court's power to refer a matter for inquiry; the threshold question remains whether the statutory criteria in ss 78 and 79 are actually met.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(2)(b), 54B(4)
- Crimes Act 1900 (NSW), ss 27, 33(1)(b)
- Supreme Court Act 1970 (NSW), ss 23, 69
Cases:
- Application by Shelden Patrick Vaughan pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 920 (N Adams J, first application)
- Vaughan v R [2020] NSWCCA 3 (Court of Criminal Appeal, refusal of extension of time for leave to appeal against sentence)