Citation: [2025] NSWSC 195
Court: Supreme Court of New South Wales
Date: 12 March 2025
Judge(s): Coleman J
Background
The applicant was convicted of common assault in January 2000 at the Bega Local Court, following an incident involving her former husband in October 1999. She was fined $500. Her subsequent appeal to the District Court was dismissed in March 2001.
Following the exhaustion of those avenues, the applicant pursued a series of applications to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking an inquiry into her conviction. Five previous applications, heard by five different Supreme Court judges between 2012 and 2017, were all refused. A petition to the Governor of New South Wales under s 76 of the Act was also declined in 2013.
The present application, the sixth of its kind, was supported by written submissions running to nearly 15 pages. The applicant again challenged the reliability of evidence given at trial, alleged fabrication by witnesses, and contended that both the District Court and each of the five previous Supreme Court judges made errors.
Legal Issues
- Whether the applicant raised any new facts or circumstances sufficient to justify further action under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW)
- Whether the Supreme Court should refuse to further consider or deal with the application on the basis that the matter had previously been dealt with under Part 7 of the Act and no special facts or special circumstances warranted further action
Decision
Coleman J found that the applicant's current submissions raised nothing new or additional to the substance of the matters repeatedly advanced and rejected across the five prior applications. The arguments again centred on alleged evidentiary fabrication, inconsistencies in witness testimony, the conduct of the District Court appeal, and supposed errors by previous reviewing judges. None of these points had changed in any material respect.
The Court applied s 79(3) of the Act, which permits the Supreme Court to refuse to consider or deal with an application where the matter has previously been dealt with under Part 7 and the Court is not satisfied that special facts or circumstances justify further action. Coleman J was comfortably satisfied that no such special facts or circumstances existed.
His Honour expressly adopted the characterisations made by Harrison J (and endorsed by Schmidt J) in earlier proceedings, describing the repeated applications as frivolous and vexatious, a waste of the Court's time, and something that would arguably constitute an abuse of process in any other litigious context. The application was refused under s 79(3) without further consideration.
Orders Made
The application was not further considered or dealt with, pursuant to s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW).
Key Takeaways
- Under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may decline to consider a review application where the matter has previously been dealt with under Part 7 and no special facts or special circumstances justify further action.
- Six successive applications raising substantially identical grounds will not satisfy the "special facts or special circumstances" threshold, regardless of the length or detail of the supporting submissions.
- Repeated applications on unchanged grounds, previously considered and rejected by multiple judges, may attract descriptions of frivolous and vexatious conduct and be characterised as a waste of the Court's time.
- The statutory mechanism in s 79(3) operates as a gatekeeping provision that allows the Supreme Court to refuse engagement entirely, without substantively re-examining the underlying conviction.
- Prior refusals under Part 7 by multiple judges carry cumulative weight: Coleman J reviewed those earlier decisions and found their conclusions unimpeachable, reinforcing the finality of the prior determinations.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 76, 78, 79
- Crimes Act 1900 (NSW), s 61
Cases:
- Application by Petronella Boege for an inquiry into conviction and sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW), Adamson J, 27 March 2012, unreported)
- Further Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925 (Wilson J)
- Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) [2016] NSWSC 729 (N Adams J)
- Boege v Attorney General of New South Wales [2016] NSWSC 1469 (Harrison J)
- Application by Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 935 (Schmidt J)