HER HONOUR: Stephen John Allan has applied for a (further) inquiry pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Act") into convictions recorded against him at the Downing Centre Local Court on 15 November 2010. An application for an inquiry into the same convictions was refused by RA Hulme J on 12 November 2012 (Allan - Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2012] NSWSC 1596) ("the previous application").
Mr Allan was convicted in the Local Court on 15 November 2010 of four offences: one offence of being armed with intent to commit an indictable offence contrary to s 114 of the Crimes Act 1900 (NSW) and three offences of assault contrary to s 61 of the Crimes Act. The victim of each offence was a woman.
A bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed by her Honour Barkell LCM for the more serious offence under s 114 of the Crimes Act. Fines were imposed for the assaults.
Mr Allan appealed to the District Court against his conviction. The appeal was heard by his Honour Judge Finnane QC on 28 March 2011. The appeal was dismissed and the convictions and sentences were confirmed.
The prosecution case in the Local Court and on the appeal was that the three women were on Bourke Street, Darlinghurst at about 9.15pm on Saturday 27 March 2010 when Mr Allan approached one of them, Ms Montabello, seeking to engage her services as a sex worker. The other two women, Ms Jamal and Ms Humphreys, were youth workers associated with the Wayside Chapel. They were also in the area. Ms Montabello and Ms Jamal knew one another.
When Mr Allan approached, Ms Montabello formed the opinion that he had been drinking. Although Mr Allan was unable or unwilling to pay the stipulated fee for services he persisted and refused to move on. When Ms Jamal was alerted to the issue by hearing Ms Montabello insist that she "said no" she interceded and called Ms Montabello to where she was standing with Ms Humphreys. Ms Jamal then approached Mr Allan and told him to leave or she would call the police. Mr Allan screamed obscenities at her and then grabbed her by the arm and shoved her backwards causing her to stumble. Ms Jamal also formed the opinion that Mr Allan had been drinking. When she regained her balance she rejoined Ms Montabello and Ms Humphreys who were a short distance away.
Mr Allan commenced to walk away as Ms Jamal placed a 000 call to police to report the incident. She gave evidence that she contacted police (with Ms Montabello's consent) because she was concerned that the man's insobriety, his age relative to Ms Montabello's youth (Mr Allan was aged 50 at the time) and his verbal and physical aggression directed to her when she sought to intercede on Ms Montabello's behalf might expose Ms Montabello to risk if he remained in the area.
Ms Jamal gave evidence that as she was talking to the 000 operator Mr Allan turned and started to return quickly towards where she and the other two women were standing. Ms Jamal gave evidence that as he approached (and whilst she was speaking to the operator) she saw that he had a knife in his hand which he was brandishing in a threatening way. Ms Montabello and Ms Humphreys gave similar evidence. The three women then ran in different directions as Mr Allan chased first one of them and then all three along Bourke Street. Ms Jamal gave evidence that she was still on the phone to the police while this was happening and that she reported to police that the man had a knife. The 000 recording was not tendered in the prosecution case in the Local Court or on appeal to the District Court and was not included in the materials accompanying the previous application.
Upon being advised that the man had a knife which he was using to threaten the women, uniformed police upgraded the urgency of their response and were soon in attendance in Burton Street where they had been advised by Ms Jamal the man was last seen. When the women also turned into Burton Street they observed that a man had been apprehended. Ms Jamal pointed to Mr Allan and said to the police, "That's him. That's him".
Constable Julie Moulden gave evidence that she was flagged down by Ms Jamal who said, "He went that way" and "He was wearing a blue long sleeve shirt, black long pants and he was old". Constable Moulden looked along Burton Street and saw Mr Allan, wearing the clothing that had been described to her. She said that there was no one else in the area who remotely matched the description given by Ms Jamal. The police vehicle was driven up to Mr Allan and he was asked to stop. When asked if he had a knife he responded, "Yes, I do, a Swiss Army knife. I carry it all the time with me. It's in my right pocket". Mr Allan was searched and a knife was found in his pocket and he was arrested. When cautioned he said, "I haven't done anything wrong. Those girls were harassing me".
Mr Allan gave evidence in the Local Court. In broad terms, his version of events was that he had caught a bus to Darlinghurst from Double Bay at around 9pm, after consuming about six beers. He was walking along Bourke Street, about 30 metres south of William Street, when he was approached by a woman who threatened him by saying, "My friends are going to mug you and do you over if you walk up Bourke Street". He told her to leave him alone and took a few steps back. The woman approached him again and so he pushed her away from him by her shoulders to keep her at arm's length. He said to her, "I'm not going to be intimidated by you or your friends because I'm carrying a Swiss Army knife". The woman remained undeterred and asked him to show her the knife. Mr Allan said, "I took her threats very seriously because I've had previous experiences in the area of armed robberies, criminal groups like this who operate not individually, but in gangs, and so I chose to show her the knife to, because I thought that it would, it would diffuse a more dangerous situation because she would've been aware that her gang could not be able to intimidate me and would be more than likely to not approach me as I walked up Bourke Street".
After showing the woman the knife, Mr Allan said that she turned and jogged towards a group of women about 50 metres away. There were three other women there who he said spoke with another before walking away towards Oxford Street. Mr Allan said that he continued up Bourke Street and turned into Burton Street at which point he was arrested.
Mr Allan's case in the Local Court and on appeal to the District Court was not to challenge the honesty of the account each of the three women gave of their encounter with the man that assaulted and threatened them with a knife, but to deny that he was that man.
Both Barkell LCM and Finnane DCJ were satisfied that the prosecution witnesses who gave evidence of being assaulted by a man in the vicinity of Bourke and Burton Streets, Darlinghurst was honest and their evidence both directly and indirectly identifying Mr Allan as the assailant was credible. Neither judicial officer considered Mr Allan's account a reasonably possible version of events such as to raise a doubt as to his guilt.
In publishing his reasons for refusing the application brought by Mr Allan under Part 7 of the Crimes (Appeal and Review) Act in 2012, RA Hulme J observed at [15] that the competing cases presented significant problems for Mr Allan in persuading a court to accept his version. On the case he advanced, there were two incidents in Bourke Street, Darlinghurst that occurred almost simultaneously, both involving a man in a long sleeved blue shirt, both involving that man pushing a woman in the upper torso, and both involving that man being armed with a small bladed knife. There was the further coincidence that both men then walked into Burton Street at about the same time, with the police finding only one man in Burton Street even remotely matching the description given by the women of the assailant, that person being Mr Allan.
At [5] RA Hulme J noted that the principles that apply to the making of an application under the Act, and the consideration to be given to an application once made, are settled. They are usefully set out in detail in the judgment of Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [4]-[19]. I also have had regard to those provisions and principles and do not restate them.
It is sufficient for present purposes to emphasise that the current application for a direction that an inquiry into Mr Allan's conviction be conducted by a judicial officer under s 79(1)(a) of the Act, or that the case be referred to the Court of Criminal Appeal to be dealt with as an appeal under s 79(1)(b) of the Criminal Appeal Act 1912 (NSW), will only be made where it appears, as provided for in s 79(2), that there is a "doubt or question" as to Mr Allan's guilt. In neither application has Mr Allan submitted that there are any "mitigating circumstances" or that there is a doubt or question as to "any part of the evidence in the case" under s 79(2) as might otherwise invoke the power in s 79(1) to direct an inquiry into his convictions or to refer the case to the Court of Criminal Appeal.
Of significance to the present application is that the Court may refuse to consider or otherwise deal with the application as provided for in s 79(3):
79(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:
(a) it appears that the matter:
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the previous review provisions, or
(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
As outlined by Mr Allan in his written submissions filed in support of the current application, the sole basis for bringing a further application is that since the previous application was refused by RA Hulme J he has obtained access under the Government Information (Public Access) Act 2009 (NSW) to the recording of the 000 call placed by Ms Jamal. Mr Allan submits that the content of that call highlights four material discrepancies in the evidence of all three women whose evidence was relied upon by the prosecution to prove its case in the Local Court and on appeal to the District Court. Mr Allan submits these discrepancies serve to undermine the credibility of the evidence of the three women to the extent that a "doubt or question" as to his guilt now arises.
The four discrepancies said to be patent in the evidence of the three women are itemised in Mr Allan submissions at paragraph 6.5. In the Crown's submissions in response they are described as the four grounds underpinning the current application - a nomenclature adopted by Mr Allan in his submissions in reply to the Crown submissions. For convenience I will also refer to them in the same terms, although in summary only.
Ground 1
Ms Humphreys and Ms Montabello gave evidence that they telephoned police, but police have only produced a 000 call from Ms Jamal.
Ground 2
The 000 call does not recall the obscenities that the witnesses state the assailant was screaming during the incident.
Ground 3
In the 000 call Ms Jamal reports the assailant's hair as white and later in the call as grey while Mr Allan claims his hair is red.
Ground 4
In the 000 call, Ms Jamal reports the colour of Mr Allan's pants and shirt correctly but the description of his hair was incorrect which is consistent with her sighting of him at a distance of 50 metres but not closer.
In the Crown's submission, the applicant's four grounds all relate to the credibility of the three prosecution witnesses. Where the issue of their credibility has been considered successively by each of Barkell LCM, who had the benefit of seeing the witnesses give their evidence; by Finnane DCJ, who was of the independent opinion that the witnesses had given evidence in an entirely credible way; and by RA Hulme J, who found that the issues raised by each of the grounds in the former application (four of which concerned the credibility of those same witnesses in varying degrees) did not give rise to any doubt or question as to Mr Allan's guilt, it is open to the Court under ss 79(3)(a)(i) and (ii) to refuse to deal with them on the current application.
Insofar as the current application seeks to re-agitate the question of the different ways the three witnesses described the assailant's hair colour, and the extent to which that might be at variance with the applicant's hair colour - the gravamen of Grounds 3 and 4 above - I accept the Crown's submission. In refusing to deal further with the issue raised by Grounds 3 and 4, I note that in dealing with the applicant's complaint in the former application that "the Court's findings about the perception of the defendant's hair colour are scientifically incorrect", RA Hulme J said:
[23] This is a reference to the evidence of the three complainants which was to the effect that the colour of the man's hair was grey. It seems to have been common ground that when [Mr Allan] appeared in court his hair was a reddish blond colour. Within the material annexed to the application there is a photograph of Mr Allan said to have been taken several months before the incident which shows that his hair was a reddish colour rather than grey. Also attached is a document of a scientific nature dealing with the basic concepts of lighting.
[24] The issue as to the description of the man's hair colour, grey according to each of the complainants but apparently in reality a reddish colour, was considered by both the Magistrate and the judge on appeal. Both dismissed it as having no significance given that the observations were made at night with street lighting. The material now provided does not raise anything of significance in relation to this issue.
I also note that although Ms Jamal first described the assailant's hair colour as "white" to the 000 operator, later in the call she referred to it as "grey". In my view, in all the circumstances, that is a distinction without a material difference and incapable of negatively impacting upon her credibility. I note that in the arrest photograph Mr Allan included in the material the subject of this application, Mr Allan's short cropped hair has a reddish tinge and that he could easily be older than his stated age of 50 years. In the 000 call Ms Jamal describes the assailant as an "older gentlemen" ... "60s early, late 60s".
As to the remaining two grounds, although I do not intend to refuse to deal with them under s 79(3)(a)(ii), on my review of all the material relied upon on the application, including the 000 call (which I have listened to), neither ground gives rise to any doubt or question as to the applicant's guilt or the evidence of the three women upon which the prosecution case was based.
[2]
Ms Humphreys and Ms Montabello gave evidence that they telephoned police, but police have only produced a 000 call from Ms Jamal.
[3]
The 000 call does not recall the obscenities that the witnesses state the assailant was screaming during the incident.
Both grounds can be conveniently dealt with together.
As to Ground 1, even assuming for the sake of argument that either or both Ms Humphreys and Ms Montabello gave evidence that they also telephoned police before the police were directed to attend by the 000 operator through the response system (as to which there is some doubt given the ambiguity in their evidence as pointed out by the Crown in written submissions), Mr Allan did not seek to identify how this might have any impact on their honesty and reliability in describing their encounter with the man who assaulted and threatened them with a knife, or how it has any material bearing on the sole issue in dispute, namely whether Mr Allan was that man. It was clearly not an issue regarded of any significance in the Local Court proceedings where Mr Allan was represented by counsel or an issue taken up on appeal when Mr Allan was self-represented.
As to the second ground, Ms Jamal gave evidence that she telephoned police when Mr Allan was about 100 to 150 metres away, and that when he turned and walked back quickly to where she was standing, he pulled a knife out of his pocket. She went on to give the following evidence:
Q: Was he doing anything while he was holding the blade out?
A: Yeah, he was screaming out obscenities again, "Who the fuck are you?" You know, things like that. I can't remember specifically what he said but I was - he was - he was determined to get me I felt.
Q: Why do you say that?
A: Because he was charging at me and his arm - his arm did not move down from where - from the position that he had it so he was running at me like this.
Q: What was the closest that he came to you?
A: I would say probably about 2 metres.
Q: When he was charging at you what did you do?
A: I was pushing Ashley down Bourke Street, running down, screaming down Bourke Street.
Ms Montabello gave evidence that she heard the assailant screaming obscenities when Ms Jamal was on the phone. Ms Humphreys did not recall the man saying anything, although she was on the other side of Bourke Street by that time.
That the 000 call does not record Mr Allan's voice shouting obscenities either as the assailant approaches Ms Jamal, as he chases Ms Humphreys or on his approach to Ms Montabello, is relied upon by Mr Allan as evidence that he did not commit the offences. In his submission, if he were as close to Ms Jamal as she claimed when he swore at her (that is, while she was on the telephone to the 000 operator) and if Ms Montabello heard this, there is no explanation for his voice not being recorded. That submission fails to account for how Ms Jamal was holding the phone or, for that matter, the type of phone she was using or what might be thought to be her legitimate concern to ensure that she had a clear and uncompromised line of communication with the 000 operator by speaking loudly and directly into the mouthpiece. Having listened to the recording, while Ms Jamal's voice and that of the operator are clear, the background voices, such as they are, are simply not discernible.
In Mr Allan's reply to the Crown's submissions to both the first and second grounds, he submitted (without elaboration) that the 000 call was in conflict with the evidence of the women and consistent with his case. I do not accept that submission. In my view, despite there being no audible record of his voice, the 000 call underscores the strength of the prosecution case that it was the applicant who accosted and threatened the women. The fear and panic in Ms Jamal's voice is palpable as the man approaches her after having drawn the knife from his pocket. This is in contrast to the calm and considered way in which, at the commencement of the call seconds earlier, she described the man who had been "hassling a female in the street" (clearly a reference to Ms Montabello) and the man who had then assaulted her (including, as noted above, her description of the clothing Mr Allan was wearing in the arrest photographs). Upon seeing the knife, Ms Jamal's voice reflects her obvious concern for Ms Humphreys who (as she reports to the operator) is being chased by the man with the knife and her concern for Ms Montabello who she is heard first to tell to run away and then to direct to cross the road and stay with her. What is also clear beyond question is Ms Jamal's contemporaneous account of the man's movements relative both to where she was and the movements of the other two women, as she progressively updated the operator as she tracks that man's movements to where he turned into Burton Street as the police arrive. Other evidence confirms Mr Allan's arrest at that time. To repeat for emphasis, rather than the 000 call undermining Ms Jamal's credibility, it positively enhances it as it does, by association, the evidence given by the other two women. In addition to the observations of RA Hulme J noted above at [15], having considered the tone and content of the 000 call, in my view Mr Allan's account of events is wholly implausible.
[4]
Consideration
Having considered the 000 call and the arrest photograph in the context of the material relied upon in support of the former application, and after having considered the submissions of Mr Allan and the Crown, I am of the opinion that there is no doubt or question as to Mr Allan's guilt in respect of any of the offences for which he was convicted. Accordingly, I decline to direct an inquiry be conducted or to refer the case to the Court of Criminal Appeal.
The application is refused.
[5]
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Decision last updated: 30 May 2017