Citation: [2026] NSWSC 450
Court: Supreme Court of New South Wales
Date: 1 May 2026
Judge(s): Emmett J
Background
The applicant was convicted by a jury on 6 October 2022 of 28 counts of domestic violence-related offending against his then wife. The offences spanned approximately eight and a half years, from early 2012 to August 2020, and comprised nine counts of common assault, 15 counts of intimidation, one count of assault occasioning actual bodily harm, one count of property damage, one count of suffocation without consent, and one count of choking and rendering incapable of assistance. The jury acquitted the applicant on six remaining counts on the indictment.
The applicant was sentenced by Culver DCJ on 17 February 2023. He subsequently applied for leave to appeal against conviction and sentence to the Court of Criminal Appeal, which was dealt with in Habambo v R [2023] NSWCCA 328. Having been unsuccessful on appeal, the applicant brought this application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking a review of his convictions in the Supreme Court.
The offending involved 16 episodes of physical violence or intimidation directed at the complainant. These ranged from wrapping duct tape around the complainant's head, placing a plastic bag over her head, choking and suffocating her, ramming her into a wall, and making repeated threats including threats to kill.
Legal Issues
-
Whether there was a "doubt or question" as to the applicant's guilt, or as to any mitigating circumstance in his case, sufficient to warrant referral of the matter to the Court of Criminal Appeal under ss 78–79 of the Crimes (Appeal and Review) Act 2001 (NSW).
-
Whether the applicant's extensive submissions (running to 402 paragraphs) raised any matter not already considered and resolved at trial or on appeal that could give rise to such a doubt or question.
Decision
Emmett J dismissed the application. The Court considered the applicant's voluminous submissions, his affidavit and supporting annexures, the trial transcript, the sentencing remarks of Culver DCJ, and the Court of Criminal Appeal's decision.
The legal framework under Part 7 of the CAR Act requires the applicant to demonstrate a doubt or question concerning guilt, or a mitigating circumstance, before the Supreme Court will refer a matter back to the Court of Criminal Appeal. The threshold is informed by authorities including Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783 and Application by Glasby pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 130, which establish that the jurisdiction is not a further appeal but a mechanism for addressing potential miscarriages of justice.
Emmett J concluded that no such doubt or question existed. The matters raised by the applicant did not establish any basis to disturb the convictions. The application was dismissed.
Orders Made
- The application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) was dismissed.
Key Takeaways
- Under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), an applicant must identify a genuine doubt or question about guilt, or a mitigating circumstance not adequately addressed at trial or on appeal, rather than treat the provision as a further right of appeal.
- The Supreme Court found that the applicant's extensive submissions, despite their volume, did not raise any matter sufficient to meet the statutory threshold for referral to the Court of Criminal Appeal.
- In dismissing the application, Emmett J reaffirmed the well-established line of authority governing Part 7 applications, including the principles set out in Sinkovich, Glasby, and Application by Scott Gibson [2022] NSWSC 1577.
- A high threshold applies to applicants who have already exhausted their appeal rights and seek further review through the Supreme Court under Part 7, as this decision illustrates.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78–79
- Crimes Act 1900 (NSW), ss 37, 59(1), 61, 195
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Evidence Act 1995 (NSW)
- Surveillance Devices Act 2007 (NSW)
Cases:
- Habambo v R [2023] NSWCCA 328
- Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383
- Application by Glasby pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 130
- Application by Gonzales pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 1412
- Application by Scott Gibson under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577
- GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314
- Hughes v R (2015) 93 NSWLR 474
- Libke v The Queen (2007) 230 CLR 559
- McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274
- R v Livermore (2006) 67 NSWLR 659
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Rugari (2001) 122 A Crim R 1; [2021] NSWCCA 64
- Whitehorn v The Queen (1983) 152 CLR 657