Citation: [2026] NSWSC 776
Court: Supreme Court of New South Wales
Date: 2 July 2026
Judge(s): Boulten J
Background
The applicant was convicted in the Local Court in June 2020 on multiple counts of knowingly contravening restrictions in an Apprehended Domestic Violence Order (ADVO), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). On appeal, the District Court quashed several of those convictions but upheld three, re-sentencing the applicant to a conditional release order of six months on each.
The applicant pursued further review through the Court of Appeal, which dismissed his summons in August 2021. He then filed his first application to the Supreme Court under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), which Yehia J dismissed in November 2022, finding no doubt or question as to guilt, mitigating circumstances, or evidence.
In October 2023, the applicant filed a second Part 7 application, the subject of this judgment. The second application largely repeated the same complaints advanced in the first, and also raised a separate charge from 2017 that the applicant could not particularise with any precision.
Legal Issues
- Whether the current application raised any doubt or question as to the applicant's guilt, any mitigating circumstances, or any part of the evidence, for the purposes of s 79(2) of the CAR Act
- Whether anything in the application disclosed special facts or circumstances justifying further action by the Supreme Court
- Whether the unspecified 2017 charge introduced any new grounds warranting inquiry
Decision
The s 79(2) threshold:
Boulten J applied the statutory test under s 79(2) of the CAR Act, which requires the court to form an opinion that there is a doubt or question as to the convicted person's guilt, any mitigating circumstances, or any part of the evidence before ordering an inquiry. The judge found that nothing in the current application met that threshold.
Repetition of prior grounds:
The applicant's submissions substantially reproduced the same arguments considered and rejected by Yehia J in 2022. Boulten J noted that the issues had been addressed not only in the first Part 7 application but also in the Local Court and District Court proceedings. The earlier determination by Yehia J was not disturbed.
The 2017 charge and mental health grounds:
The applicant sought to agitate a charge from 2017, but was unable to identify it with any particularity, and this ground did not advance the application. The applicant also relied on evidence of Complex Post-Traumatic Stress Disorder. Boulten J noted this issue was not new: it had been raised squarely in the first Part 7 application and in the earlier court proceedings, and added nothing to the current application.
Whether to refuse consideration outright:
Boulten J acknowledged that the application alone did not raise anything of substance not previously considered by Yehia J, and considered simply refusing to engage with it. However, because the material had necessarily been reviewed in full, the judge proceeded to determine the matter on its merits before dismissing it.
Orders Made
No orders were made in this decision.
Key Takeaways
- A second Part 7 application under the CAR Act will not succeed where it rehearses the same grounds already considered and rejected in a prior Part 7 application by the Supreme Court.
- Under s 79(2) of the CAR Act, an applicant must raise a genuine doubt or question as to guilt, mitigating circumstances, or evidence; a repetition of previously rejected submissions does not satisfy that threshold.
- Evidence of a mental health condition, including Complex PTSD, will not constitute fresh or compelling material if it was already raised and considered in prior proceedings, including an earlier Part 7 application.
- An inability to particularise an additional charge with any precision is fatal to reliance on that charge as a ground for inquiry.
- In dismissing the application, Boulten J confirmed that a court may decline to refuse consideration outright where it has already undertaken a full review of the supporting material, preferring instead to determine the matter substantively.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13, 14
- Criminal Appeal Act 1912 (NSW), s 5B
- Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 (NSW), s 14
- Mental Health (Forensic Provisions) Act 1900 (NSW), s 32
Cases:
- GIBSON, Scott – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577 (Yehia J)
- Gibson v Director of Public Prosecutions [2021] NSWCA 176
- Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218
- Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review Act) 2001 (NSW) [2020] NSWSC 1048
- Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act (No 2) [2019] NSWSC 1412
- Application by Serge Zhura pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2024] NSWSC 198
- Milat, Ivan Robert Marko – Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209