The applicant has prepared the application herself. It contains significant detail and numerous arguments are advanced therein. Those arguments are conveniently summarised in the submissions filed on behalf of the Attorney-General as follows:
1. The applicant denies that she assaulted her ex-husband.
2. The applicant asserts both that her counsel on appeal did not "put evidence" before the District Court on certain matters and that the Magistrate made a number of errors. Specifically, the applicant contends:
1. that the Magistrate should not have referred to the Apprehended Violence Order (AVO) as if it were a separate matter;
2. that Mr Boege's police statement differed in certain respects from his evidence in chief on the appeal and from the evidence he gave in the Local Court;
3. that the prosecution witnesses fabricated and changed their evidence;
4. that the Magistrate erred in finding that there was relevant consistency as to the nature of the abuse the applicant was shouting at the time of the alleged assault;
5. that Mr Boege could not have grabbed the photo albums without grabbing her. The applicant contends that rather than being the aggressor she was the victim of an assault by her ex-husband;
6. that the Magistrate erred in finding that Senior Constable van der Hout did not assault her; that the applicant was not a truthful witness; and that he was satisfied beyond reasonable doubt that the applicant had struck Mr Boege to the head and face a number of times;
7. that Mr Boege had been untruthful in his police statement when he said that none of the applicant's personal property was in the house on the day of the incident. The applicant then sets out information about items of her personal property that she says Mr Boege had retained and some details of their acrimonious property settlement;
8. that Mr Boege's evidence in the Local Court was in fact consistent with her own evidence;
9. that, prior to the Local Court hearing, the police officer had informed the applicant's daughter that the applicant had assaulted the complainant; and
10. that her lawyer failed to put before Shillington QC DCJ the reason her daughter did not give evidence in the Local Court.
1. The applicant asserts that she could not possibly have punched Mr Boege in the manner alleged because she was holding the photo albums in her arms at the material time and because she has problems with the tendons in her arms.
2. The applicant contends that the assault charge was only laid on 10 November 1999 after she "took out" an AVO on 29 October 1999.
[2]
Submissions on behalf of the Attorney General of NSW
The primary submission of the Attorney General is that the Court should refuse to consider or otherwise deal with this application under section 79(3) of the CAR Act because the issues raised therein have all been fully dealt with in the proceedings giving rise to the conviction, on appeal and in the previous applications under this Part and there are no special facts or special circumstances that justify the taking of further action. Although the applicant has sought to formulate her submissions differently in the present application, they are not new arguments.
The Attorney-General points to the fact that the applicant exercised her right to appeal to the District Court against her conviction in the Local Court. The applicant was represented by counsel on the hearing of that appeal. There is no fresh evidence now raised in this application and nothing that could lead the Court to be satisfied that there are special facts or special circumstances that justify the taking of further action. The applicant's assertions about inconsistencies in the evidence of the prosecution witnesses and about the sequence of events, including her assertion that Mr Boege attacked her during the incident, were all fully ventilated in both the Local Court and the District Court as well as in the previous applications.
The Attorney-General further submits that, in any event, the application raises no doubt or question as to the applicant's guilt or any part of the evidence in the case.
[3]
Are there special facts or special circumstances that justify the taking of further action?
Having considered the application, the previous reasons provided by Adamson and Wilson JJ and the submissions relied upon by the Attorney General, I am not satisfied that there are any special facts or special circumstances that justify the taking of any further action in this matter. I accept the submission on behalf of the Attorney-General that there are no new arguments raised.
In addition to petitioning the Governor under s 76 of the CAR Act, the applicant has now made three applications to this Court, all of which effectively turn on the same complaint; namely, that the evidence of Mr Boege and Senior Constable van der Hout should not be accepted. As Wilson J observed in her reasons for refusing the second application at [72]-[74]:
"It is common in criminal matters to find differences in the accounts of witnesses as to some features of a contested event; that is a natural consequence of the stressful nature of such events, the relative perspectives of different witnesses and their respective capacity to observe events, and of the imperfection of human memory. Inconsistencies in evidence do not, of themselves, dictate that the evidence of the relevant witnesses should not be accepted.
It is always open to any tribunal of fact to accept part of a witness' evidence and reject part of the evidence of the same witness. What is important and necessary is for the tribunal of fact to determine whether the evidence going to the elements of the offence is both accurate and reliable, and can be accepted beyond reasonable doubt.
Whilst the complainant and the informant officer gave evidence which differed as to the sequence and location of the offence, the evidence was in all material matters consistent."
Both Adamson and Wilson JJ were of the view that there was a proper basis for this Court to refuse to consider the application, but each went on to find that nothing in the applications raised a doubt or question about the applicant's guilt, any mitigating circumstances, or any part of the evidence in the case in any event.
I note the observation by Johnson J that repeated applications to this court under s 78(1) of the CAR Act should be considered in the context of the waste of judicial resources that can flow from repeated unmeritorious applications for inquiries. The applicant has had the benefit of her application being considered twice already. I do not propose to consider the same material for a third time.
For the reasons set out herein I refuse to consider this application.
[4]
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Decision last updated: 16 June 2016
This is not the first application brought by the applicant in relation to this conviction.
On 20 October 2010, the applicant first made application to this Court for an inquiry into her conviction under s 78(1) of the CAR Act. The principle complaints made in that application were that:
1. there were grave inconsistencies in the prosecution evidence, both as between witnesses and as between the different accounts of each witness, such that the applicant should not have been convicted;
2. the prosecution witnesses, namely, the applicant's former husband Mr Boege and the police officer Senior Constable van der Hout, had colluded and fabricated their evidence; and
3. Shillington QC DCJ had erred in refusing to permit the applicant's counsel to cross-examine these two witnesses again at the hearing of her appeal.
The first application was considered by Adamson J in reasons delivered on 27 March 2012. Her Honour considered the matters raised by the applicant in some detail. Her Honour was of the view that the issues raised in the application had all been fully dealt with in the original proceedings and/or in the District Court appeal and that there were no "special facts or special circumstances" which justified the taking of further action in respect of the application. Her Honour went on to make a finding that the application should be dismissed in any event because it did not raise any doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: 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, unrep) at [64]-[65].
Following the dismissal of that application, the applicant petitioned her Excellency the (then) Governor of New South Wales asking for a review of the conviction pursuant to s 76 of the CAR Act. The petition was declined on 30 January 2013.
The applicant then made a second application to this court under s 78(1) of the CAR Act. She relied upon there being new material, not available at the time that Adamson J considered the first application, which justified a further consideration of the matter. The "new material" was transcript of proceedings before Goldring DCJ on 4 December 2000, which was relied upon as proving that there had in fact been an order under what was then s 133 of the Justices Act 1902 (NSW) requiring the two prosecution witnesses Mr Boege and Senior Constable van der Hout to attend and give evidence at her conviction appeal at the District Court at Bega.
Wilson J formed the view that Goldring DCJ had not properly exercised the jurisdiction conferred on him by s 133 of the Justices Act and hence there was no valid order that bound Shillington QC DCJ to require the witnesses to attend. Her Honour noted that, as is the usual practice, the application had been dealt with in chambers on the papers and no submissions had been made by either the applicant or the Attorney-General as to that aspect of the application. In light of this, even though her Honour was of the view that there was no new material before the Court, she decided to consider the application on its merits in any event "to obviate any unfairness to the applicant": at [62]. In detailed reasons published on 15 December 2015, her Honour concluded that she was not left with any doubt or question as to the applicant's guilt or as to any mitigating circumstances or as to any part of the evidence in the case. That application was also refused: Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925.
On 25 January 2016, the applicant filed this third application under s 78(1) of the CAR Act again seeking an inquiry into her conviction.
As is the usual practice, submissions have been filed on behalf of the Attorney-General pursuant to s 79(4) of the CAR Act with respect to the application.
Relevant legislation
The relevant provisions in Part 7 of the CAR Act are as follows:
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…
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.
(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.
(3A) …
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.
(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."
[emphasis added]
It can be seen that this Court may refuse to deal with this application if, inter alia, it has either been fully dealt with in the proceedings giving rise to the conviction or has previously been dealt with under this Part and if the Court is not satisfied that there are "special facts or special circumstances that justify the taking of further action."
The relevant principles to be applied in determining an application pursuant to s 78 were considered by Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 commencing at [4]. Those principles were summarised by Wilson J in Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925 (by reference to the relevant paragraphs in the judgment of Johnson J) as follows:
1. The court performs an administrative act in determining such an application (at [5]);
2. Determination of an application under s 78 is not intended to provide an additional avenue of appeal after the usual avenues have been exhausted (at [9]);
3. The jurisdiction exercised under Division 3 of Part 7 of the CAR Act is an administrative function that may be activated when the criminal justice system has run its course, frequently because additional evidence has come to light which may raise a doubt or question as to guilt or sentence (at [10]);
4. The powers available under s 79 are limited to the direction of an inquiry, or referral of the case to the Court of Criminal Appeal, there being no power to quash a conviction or sentence (at [10]); and
5. The nature of the jurisdiction under Part 7 allows for flexibility in the material which may be placed before the court relevant to an application (at [11]).
As Spigelman CJ observed in Kirk Group Holdings Pty Limited v Workcover Authority of NSW [2006] NSWCA 172 at [5]; 66 NSWLR 151 at 154, Part 7 of the CAR Act has its origins in a legislative scheme that was an innovation in New South Wales. His Honour went on to observe of the predecessor to Part 7 at [8], "…this is remedial legislation designed to overcome the injustices that sometimes arise in the course of the administration of criminal justice."
Johnson J recently considered the relevant principles governing repeated applications for an inquiry under Part 7 of the CAR Act in Milat, Ivan Robert Marko - Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209. His Honour traced the legislative history of the statutory test in s 79(3) of the CAR Act, which was previously contained in s 474E(3) of the Crimes Act 1900, and observed the following at [20]:
"It may be seen that the balance being struck by the provisions then contained in s 474E(3), and now contained in s 79(3), involved an appropriate remedial process for applications for a post-conviction inquiry and the need to guard against 'the waste of judicial resources that can flow from repeated unmeritorious applications for inquiries.'" [emphasis in original]
Given that there have been repeated applications to this Court for an inquiry into the applicant's conviction, I must first consider the threshold question posed by s 79(3) of the CAR Act; namely, whether there are any special facts or circumstances that justify the taking of further action in this matter.