Achurch v The Queen

Sections 78 and 79 Appeal and Review Act

1. The terms of ss.78 and 79(1) and (2) Appeal and Review Act should be noted: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. … "

Muldrock and Subsequent Decisions Concerning the Proper Construction of ss.78-79

1. The decision in Muldrock has given rise to a significant number of applications being made to the Supreme Court under s.78 Appeal and Review Act.
2. The decision of the Court of Appeal in Sinkovich v Attorney-General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 ("Sinkovich") made clear that a claim of Muldrock error could give rise to a s.78 application. The Court accepted that "a doubt or question … as to any mitigating circumstances in the case or as to any part of the evidence in the case" for the purpose of s.79(2) Appeal and Review Act was capable of accommodating a claim of Muldrock error in a particular case. In Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10, the High Court, at 162-163 [35], noted the decision in Sinkovich with respect to Muldrock error.
3. It must be said that there is some tension in the description of s.79(2) in Sinkovich. In the leading judgment of the Court, Basten JA referred to the "gateway" in s.79(2) at 790 [25]-[26] using the words contained in that provision (emphasis added): "25 The direction of an inquiry or referral of the case to the Court of Criminal Appeal are actions available under s 79(1) which 'may only be taken if' the gateway in sub-s (2) is passed. That is language of confinement: there is no power in the court to take action under s 79(1) unless a specified condition is fulfilled. 26 The action is to be taken by the Supreme Court, which means a judge authorised by the Chief Justice pursuant to s 75(1). Action can be taken only if it 'appears' to the judge that the condition is satisfied. In other words, it is the satisfaction of the judge as to the relevant condition which is critical. …"
4. Later, at 796 [51], Basten JA described the process without reference to the word "appears" (emphasis added): "51 A strict test of exceptional circumstances, or the need to avoid substantial injustice, applied to applications for an extension of time within which to seek leave to appeal, may well lead to different results, as compared with the language of Pt 7, requiring a judge to be satisfied that there is 'a doubt or question' in relation to a conviction or sentence. However, the possibility of anomalous outcomes does not permit this Court to rewrite the language of s 79(2). If anomalous outcomes are to be avoided, that must be the result of the exercise of the discretionary power, and cannot be achieved by denying the existence of the power."
5. Basten JA said at 795 [53] (emphasis added): "53 The fact that the gateway to an inquiry is now by seeking to satisfy a Supreme Court judge of a doubt or question as to a conviction or sentence reflects both the importance placed upon the procedure and an appropriate mechanism to ensure that it is exercised responsibly and, no doubt, sparingly. However, this mechanism militates against an unduly narrow construction of the statutory gateway."
6. On 19 June 2014, Hoeben CJ at CL was not satisfied that Muldrock error had occurred in the Applicant's case and the first s.78 application was refused.
7. On 31 July 2015, the Court of Appeal gave judgment in Buttrose. Beazley P and Leeming JA emphasised the low threshold set by s.79(2). Their Honours said at 566 [16]-[17] (emphasis added): "16 The question is whether the decision made by the judge is attended by jurisdictional error. That in turn depends upon the nature of the function his Honour was performing. The precondition to a direction that there be an inquiry or a referral to the Court of Criminal Appeal under s 79(1) is that 'it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case'. The statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question. That is to say, as Basten JA said in Sinkovich at [26], 'it is the satisfaction of the judge as to the relevant condition which is critical.' 17 We regard that question as having been determined by what was said in Sinkovich at [26], and Mr Buttrose's submission to the contrary, which fell short of asking this Court to find that this aspect of Sinkovich was clearly wrong, as merely formal. In any event, unassisted by authority, we would readily reach the same conclusion, and not merely from the language of s 79, but also its context. The structure of s 79(1) is clear. Only if s 79(1) be satisfied will there be an inquiry or a referral to the Court of Criminal Appeal, in which case the later steps will take place with the benefit of full submissions from the parties. In that context, it is only natural that all that is required is the judge forming the view - ordinarily, on limited material only - that there is a doubt or question."
8. Beazley P and Leeming JA said at 567 [26] (emphasis added): "26 It is unnecessary to say anything more, although the parties' submissions ranged broadly. It is unnecessary in this proceeding to express a conclusion whether or not the inference to which the plaintiff pointed was made out. That is because the question arising under s 79(2) is merely whether 'it appears that there is a doubt or question'. It is certainly possible that there may be a doubt or question sufficient to engage the power to refer to the Court of Criminal Appeal, in a process in which the other side is not heard and which ordinarily takes place on the papers, but nonetheless, after full argument, the appeal might be dismissed."
9. The submissions of the Applicant in support of the present application rely upon what was said in Buttrose to contend that Hoeben CJ at CL did not apply the correct test under s.79 in determining the first application in 2014. It is said, amongst other things, that his Honour considered whether there was a doubt or question rather than whether it appeared that there was a doubt or question.
10. The written submissions for the Respondent make clear that it is the low threshold confirmed by the Court of Appeal in Buttrose which founds the concession made that the Supreme Court should refer the matter to the Court of Criminal Appeal under s.79 Appeal and Review Act.
11. Having considered the matters raised, I propose to refer the matter to the Court of Criminal Appeal as requested.

Some Observations Concerning the Operation of ss.78 and 79 Appeal and Review Act With Respect to Sentence

1. Before doing so, I wish to make a number of observations concerning the operation of ss.78 and 79 in the area of sentencing.
2. As noted in Sinkovich (at 792-793 [33]-[41]), these provisions are the statutory successor to s.475 Crimes Act 1900 and s.26 Criminal Appeal Act 1912.
3. Prior to its removal in 1993, s.475(1) Crimes Act 1900 was expressed as follows (emphasis added): "Whenever, after the conviction of any person, any doubt or question arises as to his guilt, or any mitigating circumstances in the case, or any portion of the evidence therein, the Governor on the petition of the person convicted, or some person on his behalf, representing such doubt or question, or the Supreme Court of its own motion, may direct any Justice to, and such Justice may, summon and examine on oath all persons likely to give material information on the matter suggested."
4. In 1993, s.475 was removed and replaced by provisions contained in Part 13A Crimes Act 1900. These changes were effected by the Crimes Legislation (Review of Convictions) Amendment Act 1993. It was that Act which inserted ss.474D and 474E which (subject to amendment in 1996) are now contained in ss.78 and 79 Appeal and Review Act. The words contained in s.475(1) were not repeated. As enacted in 1993, s.474E(1) and (2) provided (emphasis added): "(1) The Supreme Court may direct that an inquiry be conducted by a prescribed person into a conviction: (a) on considering an application under section 474D, or (b) on its own motion. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case."
5. It was the 1993 amendments which introduced the formula "if it appears that there is a doubt or question".
6. In the second reading speech for the Crimes Legislation (Review of Convictions) Amendment Bill 1993, the Attorney-General, the Honourable JP Hannaford, noted that the background to the 1993 amendments included an Issues Paper prepared by the Criminal Law Review Division in November 1992 entitled "Reform of Section 475 of the Crimes Act". It is clear that the focus of the amendments was on convictions, with no reference in the second reading speech to sentence. In the course of the second reading speech, the Attorney-General said (Hansard, Legislative Council, 27 October 1993): "Whilst the Government's proposals substantially revise and streamline the present law, most of the existing structure will be retained. A convicted person, or any other person on his or her behalf, will still be able to apply to the Supreme Court, or petition the Governor, for a judicial inquiry into the conviction. This is the existing position. Further, whilst the bill rationalises the two existing mechanisms for review of convictions under section 475 and section 26 of the Criminal Appeal Act, by incorporating both provisions into a new section 474 of the Crimes Act, the substance of section 26 has not been effectively altered. For convenience, I shall continue to refer to the new section 474 inquiries as section 475 inquiries. The most important changes in the bill will eliminate the present incompatibility between section 475 and section 26. At the completion of the hearing of the application, the justice or judicial officer, in addition to making a report to the Governor, will now be empowered to refer the matter directly to the Court of Criminal Appeal for its hearing of the application for the quashing of the conviction."
7. The Attorney-General concluded the second reading speech in the following way: "Other procedural reforms in the bill which seek to clarify the operation of the section include the following. When the judge is determining whether to direct an inquiry, he or she may consider any written submissions made by the Crown with respect to the application; the Crown will be given a right of appearance or to make submissions at the quashing hearing; and a judicial inquiry will have the relevant powers of a royal commission for the purposes of obtaining evidence, summoning witnesses, and providing witnesses with the same protection as is given to witnesses before royal commissions. In addition, when considering a quashing application, the Court of Criminal Appeal will normally only consider the relevant judicial inquiry report, and any Supreme Court report where applicable, together with the submissions of the Crown and the convicted person on the reports. The court will be able to grant leave to allow any other material to be introduced before it. The Court of Criminal Appeal will also not be bound by the rules of evidence in hearing the quashing application. These procedural reforms for quashing hearings will ensure that there is no unnecessary duplication of the evidence already heard in the section 475 inquiry, except where appropriate. In summary, the bill provides a carefully considered set of reforms which deal comprehensively with the problems of post-conviction inquiries. They will ensure better accessibility to the review of convictions generally, and will remove the stigma of convictions in appropriate cases by providing a more efficient and equitable mechanism for the quashing of convictions."
8. Perusal of the Issues Paper prepared by the Criminal Law Review Division in November 1992 indicates that no proposal was made which would affect the operation of these sections in the area of sentencing. Nor was there any reference to a proposed formula as included in s.474E(2) - "it if appears that there is a doubt or question".
9. The Issues Paper explained its origin as follows: "The Attorney General has requested the Criminal Law Review Division of the Attorney General's Department to undertake the first comprehensive review of section 475 since its introduction into the Crimes Act in 1990. Whilst there has been some piecemeal amendment to the section, the proliferation of applications in recent years, including the McLeod-Lindsay, Ziggy Pohl, Douglas Rendell and most recently Andrew Kalajzich inquiries, have reinforced the need for a detailed examination of the operation and effect of the section."
10. The provisions in Part 13 of the Crimes Act 1900 were amended further by the Crimes Amendment (Review of Convictions and Sentences) Act 1996. In Application of Pearson (1999) 46 NSWLR 148; [1999] NSWSC 143, Wood CJ at CL described the 1996 Act at 155 [23]: "The 1993 Act, it may be also noted, was further amended by the Crimes Amendment (Review of Convictions and Sentences) Act 1996, which amended S 474E (1) to provide that, after considering an application for an Inquiry into a conviction, the Court could refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal, and to extend the Section to sentences, as well as to the proceedings giving rise to conviction and sentence. Its obvious purpose was to clarify and improve the procedure for review (see the Second Reading Speech, Hansard, Legislative Council 12 September 1996, pp 4095-4096)."
11. In September 1996, Barr J held that the provisions in Part 13 were concerned only with inquiries into convictions and not into sentences: Application Pursuant to s.474D Crimes Act 1900 by James William Shepherd (unreported, 13 September 1996); Application of Pearson at 159 [45]; Sinkovich at 793 [40].
12. At the time of Barr J's decision, steps were already underway to amend the provisions in Part 13A. In the second reading speech for the Crimes Amendment (Review of Convictions and Sentences) Act 1996, the Attorney General, the Hon JW Shaw, said (Hansard, Legislative Council, 12 September 1996): "The provisions of part 13A were originally derived from the former section 475 of the Crimes Act. Following a review of that section in 1993, section 475 was repealed and remade into part 13A, which now comprises section 474A to 474P inclusive. The bill introduces a number of reforms. By schedule 1[4], the bill will enable a review to be carried out under part 13A in relation to sentences as well as convictions. By Schedule 1[3], the bill will enable reviews to be carried out in relation to the proceedings giving rise to convictions and sentences as well as in relation to the convictions and sentences themselves. These changes are necessary because under the present wording of part 13A, an inquiry is arguably limited to convictions only. Under the previous section 475, a review was not so limited. It appears that the restriction of part 13A inquiries to matters of conviction was not something that was envisaged at the time of drafting of the new part. Rather, it has come to light in the course of consideration being given to the petition of Evan Dunston Pederick and also as a result of anticipated references from the New South Wales police royal commission. These changes will restore to part 13A the facility to allow inquiries into matters other than conviction.
13. Against this background, the decision in Sinkovich is of particular significance. The New South Wales Law Reform Commission referred to this decision in Report 140, "Criminal Appeals" (March 2014) at paragraphs 13.37-13.41 (footnotes omitted) (emphasis added): "13.37 Where an application for an inquiry is made to the Supreme Court and it appears there is a doubt or question as to the convicted person's guilt, any mitigating circumstances or any part of the evidence in the case, the Supreme Court may: direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or refer the whole case to the CCA to be dealt with as an appeal under the CAA. 13.38 The NSW Court of Appeal recently considered the scope of an inquiry under Part 7 in Sinkovich v AG (NSW). In that case, the defendant had been sentenced in accordance with the approach to standard non-parole period offences outlined in R v Way. This approach was overruled by the High Court after the defendant's appeal rights had been exhausted. Consequently, an application for an inquiry was made to the Supreme Court on the basis that an error of law on the part of the sentencing judge (although correct at the time of sentencing) constituted a doubt or question as to mitigating circumstances in the case. 13.39 The Supreme Court refused the application on the basis that 'mitigating circumstances' cannot encompass situations where the law has changed between conviction and sentence, and appeal. The defendant sought review of this refusal by way of the supervisory jurisdiction of the Court of Appeal or declaratory relief. 13.40 The Court of Appeal held that the term 'mitigating circumstances' could include errors of law, stating: Any procedural error which possibly gave rise to a more severe sentence than should properly have been imposed, may found a doubt or question as to a mitigating circumstance; that is, the failure to sentence the prisoner on a basis that would have led to a less severe sentence than that imposed. 13.41 This decision could be regarded as broadening the circumstances in which the Supreme Court may direct that an inquiry be conducted, though the case is recent and the impact in practice is not clear. Proceedings under Part 7 of CARA are not judicial proceedings, nor are they a form of criminal appeal. We have not considered the operation or scope of Part 7 in this review."
14. Since that Report was published in March 2014, the decision in Buttrose has demonstrated further the low threshold involved for the purpose of a s.78 application with respect to sentence.
15. It is necessary to keep in mind that the test in s.79(2) involves the appearance of a doubt or question, and not satisfaction that there is a doubt or question. It is this distinction which was emphasised in Buttrose (see [21] above).
16. It might be thought that the present construction of s.79(2) is distant from the understanding of s.475 Crimes Act 1900, and the replacement provisions in ss.474D and 474E as introduced in 1993 and further amended in 1996. Although it is clear (at least since 1996) that an application may relate to sentence only, the test to be applied in s.79(2) is limited to the appearance of a doubt or question and not satisfaction of the existence of a doubt or question.
17. In Cornall v AB (A Solicitor) [1995] 1 VR 372, the Appeal Division of the Supreme Court of Victoria (Ormiston, Coldrey and O'Bryan JJ) observed at 392: "The word 'appear' is a chameleon-like word and much abused, and so it is in its actual context that one must look for its true meaning."
18. Their Honours concluded, in the context of a provision which involved the formation of an "opinion that there appears to have been misconduct or a standards breach" on the part of a legal practitioner, that the provision was not intended to require more than the proof of a prima facie case. In explaining this conclusion, their Honours said at 392-393 (emphasis added): "We consider that it was not intended to require more than the proof of a prima facie case for two reasons. The first is that in its context the word 'appears' must be seen as used in combination with, but preceded by, the word 'opinion'. If a higher standard were intended it would be sufficient for the section to require that 'the Secretary is of opinion that there has been misconduct or a standards breach'. Here he must form an opinion but only an opinion that there 'appears' to have been misconduct etc. In other words the required opinion of the secretary is merely one that there is an appearance of misconduct or a standards breach. Such a conclusion is consistent with the investigatory role of the secretary and the secretary's position in the scheme of the Part, namely as a filter of complaints most of which must ultimately be decided by registrar or board, except if the case is of a kind where independently he may exercise the powers under s84. Secondly, it would be both illogical and inconsistent with what we perceive to be the primary function of the secretary conferred on him by s38Q, namely, to investigate alleged misconduct or standards breaches, to confer upon him also a quasi-judicial function after completion of the investigation and for the purpose of forming an opinion. The acts of the secretary pursuant to subs(2) and subs(5) are simply steps in an investigative procedure. Should the secretary form the necessary opinion then Pt3A contemplates that there will follow a quasi-judicial hearing or finding, either upon a hearing by the registrar or the board pursuant to para(a) and para(b) of subs(5) or by exercise of the secretary's powers under s84 pursuant to para(5)(c)."
19. The operation of ss.78 and 79 since Buttrose means that a Judge of the Supreme Court will be considering, in the area of sentencing, a past decision of a sentencing court for the purpose of deciding if there appears to be a doubt or question as to a suggested sentencing error arising in the case. The Judge will not be considering whether there is a doubt or question in this respect, but whether it appears that there is a doubt or question. If it so appears, the gate is opened and the Judge will refer the matter to the Court of Criminal Appeal to decide the case as if on appeal to that Court under the Criminal Appeal Act 1912.
20. The process being undertaken by the Supreme Court Judge under s.79(2) is not analogous to that considered in cases such as Cornall v AB where the decision maker is determining, as a filtering process, whether a matter should proceed further for hearing and determination on the evidence which will be adduced at what would ordinarily be a hearing on the merits.
21. In the case of s.79(2), the sentencing hearing will have already occurred in the first-instance court and there may have been (as in the Applicant's case) an appeal to the Court of Criminal Appeal after the original sentence. In this case, the Applicant brought an unsuccessful s.78 application in 2014 and now seeks to bring another one taking advantage of the construction of ss.78 and 79 arising from the decisions in Sinkovich and Buttrose.
22. The test involved under s.79(2) is to be contrasted with an application for leave to appeal against sentence to the Court of Criminal Appeal or for an extension of time to appeal: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
23. Further, if a referral under ss.78 and 79 is made to the Court of Criminal Appeal, then any requirement for an extension of time or leave to appeal against sentence under s.5(1)(c) Criminal Appeal Act 1912 is bypassed: Carlton v R [2014] NSWCCA 14 at [9]-[38].
24. It may be seen that satisfaction of the low threshold in s.79(2) permits an applicant to side step the requirements for leave to appeal and extension of time which would otherwise apply. This would have been achieved by discharge of the low threshold in s.79(2). It might be suggested that this is a curious, if not anomalous, position.
25. The concept of finality in the area of sentencing must be approached with the interests of justice in mind: Sinkovich at 793-796 [42]-[54]. However, it might be thought that the low threshold contained in s.79(2) is not consistent with a reasonable expectation of finality in the area of sentencing.
26. In my view, there is scope for these provisions to be revisited by the relevant authorities with a view to narrowing their scope in the area of sentencing.
27. As the Attorney-General for New South Wales is a party to these proceedings, I will proceed upon the basis that these observations will be brought to his attention without any recommendation from the Court that this should occur.

Returning to the Present Application

1. If I was determining whether there was a doubt or question as to sentence in this case, I would reach the same conclusion as Hoeben CJ at CL with respect to the 2014 application (see [13] above).
2. However, the task under s.79(2) is to consider whether it appears that there is a doubt or question as to sentence. The appearance of a doubt or question arises here because: 1. the Court of Criminal Appeal was sentencing the Applicant for murder after trial at a time when the principles in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 had currency: Davis v R [2015] NSWCCA 90 at [33]; 2. an argument may be advanced that there is "neatness of arithmetic" in the sentence imposed by the Court of Criminal Appeal: Further Application of Buttrose pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1851 at [48].
3. The low statutory threshold in s.79(2) has been reached in this case. This conclusion, of course, does not mean that I am satisfied that a doubt or question as to sentence actually exists, let alone that the Applicant has demonstrated error under the Criminal Appeal Act 1912, so as to engage s.6(3) of that Act.
4. On the material placed before the Court in support of the present application, and having regard to the submissions of the parties, I accept that it appears that there is a doubt or question as to whether Muldrock error occurred when the Court of Criminal Appeal sentenced the Applicant for murder on 2 June 2008.
5. I refer the whole of the Applicant's case to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912.

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