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Judgment

1. BASTEN JA: I agree with White JA that the summons for judicial review must be dismissed. This step could have been taken summarily. There was no plausible suggestion that Bellew J, carrying out a screening function under s 75 and s 79 of the Crimes (Appeal and Review) Act 2001 (NSW) misunderstood the nature of the function being exercised, or the relevant legal principles to be applied. The applicant has been consistent in his complaints of injustice ever since his conviction. As Bellew J pointed out, the issues he raised for inquiry had been addressed and rejected by the Court of Criminal Appeal. That would have provided a sufficient reason to refuse to consider the application: Appeal and Review Act, s 79(3)(a)(i) and (b).
2. MACFARLAN JA: I agree with White JA and also with the additional observations of Basten JA.
3. WHITE JA: On 4 December 2012 the applicant was convicted after a trial in the District Court of the offence of attempting to choke with intent to commit an indictable offence, namely indecent assault, contrary to s 37 of the Crimes Act 1900 (NSW). On 8 March 2013, the applicant was sentenced by Huggett DCJ to nine years and four months' imprisonment commencing on 17 January 2012, with a non-parole period of seven years.
4. The applicant sought leave to appeal against the conviction and sentence. On 19 December 2014 the Court of Criminal Appeal refused leave (Armand-Iskak v R [2014] NSWCCA 325).
5. On 16 March 2018 the applicant made an application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction and sentence.
6. Sections 78 and 79 of the Act relevantly provide 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. ... (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. ..."
7. The application was considered by Bellew J and was dismissed on 11 July 2018 (Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928). Although Bellew J considered that it appeared that the matter had been fully dealt with by the Court of Criminal Appeal in the proceedings in which leave was sought to appeal from the conviction and sentence (at [14], [18], [19], [20]), his Honour dealt with the application under s 79(2) by concluding that it did not appear that there was a doubt or question as to the applicant's guilt (at [21]). I agree with Basten JA that the application could have been dealt with summarily under s 79(3)(a)(i) and (b).
8. No appeal lies from the decision of Bellew J, but the applicant seeks relief by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). Relief by way of judicial review would be available if the applicant could establish jurisdictional error (Patsalis v Attorney General for NSW (2013) 85 NSWLR 463 at [23]-[24]; Buttrose v Attorney General for NSW (2015) 324 ALR 562; [2015] NSWCA 221 at [4]). It is doubtful that an order in the nature of certiorari to quash a decision for error of law on the face of the record or an order in the nature of mandamus to compel performance of a duty under s 79(1) could be made (Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 at [66]-[76]), but in an appropriate case a declaration could be made identifying a matter that may create a doubt or question as to the correctness of a conviction or sentence (Sinkovich at [79]; Buttrose at [29], [33], [34]).
9. In the present case the judge's decision was not attended by any error, either as to jurisdiction or law.
10. On his summons for judicial review the applicant seeks to repeat submissions that were fully dealt with by the Court of Criminal Appeal. He asserts that the judge's decision was wrong not because the judge was wrong in deciding that the matters he sought to raise had already been dealt with by the Court of Criminal Appeal, but because the judge should have found that the Court of Criminal appeal erred in its findings.
11. In the Court of Criminal Appeal Rothman J described the circumstances of the offending as follows: "6 The complainant was walking down King Street, Newtown, at around 2.00am on 13 January 2012. The complainant first saw the applicant walking towards her. He looked at her; turned as they passed each other, with the complainant seeking to avoid making eye contact. The complainant heard him stop walking and turn back towards her. 7 The applicant walked up behind the complainant, placed his arm around her neck and choked her. The complainant fell to the ground and blacked out. 8 The applicant transferred her into an alley. The complainant, having regained consciousness, fought the applicant and scratched him during the transfer. 9 Once in the alley, the applicant threw the complainant to the ground and lay on top of her. A number of persons living nearby heard the commotion and attempted, initially by shouting, to prevent the assault. One such person called Emergency Services. 10 The applicant left the alley, returned to King Street, Newtown, and hailed a taxi. 11 The residents nearby, or some of them, went to the alley and tended to the complainant. The complainant appeared distressed and was bleeding from an injury above her eye. 12 It is uncontested that the applicant did not know the complainant before the assault. It is also uncontested that the applicant approached the complainant from behind and put his right arm around her. Further, there is no contest that the complainant tried to remove the applicant's arm from around her. There is some issue as to whether the right arm, to which reference is made above, was put around the complainant's shoulder or neck, and at the appeal hearing much was sought to be made of the evidence in relation to this discrepancy or inconsistency between the complainant's evidence and that of the applicant."
12. The applicant's submissions in the Court of Criminal Appeal were described by Rothman J as follows: "38 During the course of the written submissions, the applicant relied upon 'grounds of appeal' not contained in the appeal to the Court, which I have taken to be particulars of the ground of appeal. Those particulars were that: there was a lack of reasonable particulars provided pre-trial by the prosecution in respect of how the offence had been effected, as a consequence of which, the specific acts which gave rise to the allegation were effectively concealed and Legal Aid appointed defence counsel failed in their preparation of a defence; the jury's verdict was unreasonable and cannot be supported by the evidence; Legal Aid appointed defence counsel proved most incompetent not appreciating any of the applicant's pre-trial verbal and written instructions for an appropriate line of enquiry to be pursued of the respective Crown witnesses, whereby a verdict of acquittal was accordingly lost to the applicant; there was no fair trial according to law; the Crown prosecutor failed to put, in cross-examination of the applicant, the allegation of the manner in which the offence was said to be committed, which, it is said, was physically impossible; there was an incorrect summary by the trial judge of an expert witness's testimony; and, the ERISP ought not have been admitted. 39 Ultimately, as seems to have been put in cross-examination during this appeal of the applicant's counsel at trial and instructing solicitor at trial, all of the particulars and the unreasonable verdict allegation derive from what is alleged to have been the physical impossibility of the applicant sustaining the scratch marks in the manner which was described by the Crown. 40 As a consequence, the expert evidence was said to be incorrect, the trial was said to be unfair, the Crown did not put to the applicant the precise manner in which the injury to the complainant occurred (and therefore how the injury to his arm occurred), there was a lack of particulars of the precise mechanism by which the injury to the complainant occurred and, as a consequence of all of that, the jury's verdict was said to be unreasonable and not supported by the evidence. 41 The injury to the complainant to which the foregoing refers is the choking and rendering unconsciousness. The injury to the applicant is a series of fingernail marks in the applicant's right forearm. The applicant submits that the location of the injury to his forearm on the distal edge (on top of that edge of the forearm closest to the radius bone) and the placing of the scratch marks at that point is inconsistent with the forearm being in the position described by the complainant and described by the Crown in its opening and closing addresses."
13. Bellew J (at [11]) summarised the principles governing applications under s 78. His Honour then added (at [12]): "Importantly, given the matters that the applicant now seeks to raise in support of his application, the procedure under s 78 is not intended to provide a convicted person with another avenue of appeal after the usual avenues have been exhausted, nor is it intended to provide an opportunity to conduct the trial again on paper with the ultimate submission that an acquittal should result. If an applicant seeks to simply re-agitate a matter that has already been agitated and rejected in an appeal against conviction or sentence, and the applicant cannot point to any further specific facts or circumstances, there necessarily arises a real question as to whether a court should refuse to consider some or all of the application: Application of Dunn (supra); R v Milat [2005] NSWSC 920; 157 A Crim R 565; Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260."
14. The applicant does not take issue with this statement.
15. Bellew J summarised the grounds on which the applicant relied as follows (at [13]): "(1) the 'unreasonable particulars' provided by the Crown precluded him from engaging in necessary pre-trial preparation, and allowed the prosecution to succeed 'for no other reason than it could neither have been rationally anticipated, appropriately prepared for, nor rightly refuted' ('the unreasonable particulars ground'); (2) the Court of Criminal Appeal erred in law by 'contravening the established legal principle of the High Court in Osland v R (1998) 197 CLR 316; [1998] HCA 75 (that) a conviction cannot be justified on the basis of a scenario that had not been put to the jury' ('the conviction ground'); (3) the Court of Criminal Appeal 'failed to appreciate all the applicant's grounds of appeal, including the ground alleging that the Crown's failure to provide pre-trial material prejudiced the preparation of the applicant's defence' ('the CCA error ground'); (4) counsel for the applicant at trial had acted incompetently by failing to bring pre-trial applications ('the incompetence of counsel ground'); and (5) there was an absence of evidence to support the conviction and that by 're-examining the evidence of the Crown expert witness Dr Isaacs, the victim and defence expert witness Professor Duflow (sic), Mr Crown's objectively malicious November 12 prosecution and the CCA's irrefutable error of law will be compellingly made out' ('the no evidence ground')."
16. Bellew J held that "the unreasonable particulars ground" and "the incompetence of counsel ground" had been comprehensively addressed in the Court of Criminal Appeal and extracted the reasons of Rothman J and of Wilson J in the Court of Criminal Appeal dealing with those grounds.
17. His Honour also held that "the conviction ground" had been comprehensively considered and rejected by the Court of Criminal Appeal and quoted the reasons of Rothman J at [49]-[57] to demonstrate why that was so.
18. Bellew J rejected the applicant's submission that the Court of Criminal Appeal had failed to appreciate all of his grounds of appeal (at [19]). His Honour also held that "the no evidence ground" had been considered and rejected by the Court of Criminal Appeal and quoted the paragraphs of Rothman J's judgment where that was done.
19. Bellew J concluded (at [21]): "Nothing in the material now relied upon by the applicant gives rise to any sense of unease or disquiet, and there is no appearance of a doubt or question as to the applicant's conviction. In these circumstances, I accept the submission advanced on behalf of the Attorney-General that the threshold consideration in s 79(2) of the CAR Act has not been met. It follows that the application should be dismissed."
20. In his submissions before this Court the applicant did not seek to demonstrate any error in Bellew J's conclusions that the matters that he had raised in his application under s 78 had all been considered and addressed by the Court of Criminal Appeal in 2014. Instead, the applicant sought again to ventilate matters that had already been addressed by the Court of Criminal Appeal. His submissions were not enhanced by his assertion that the prosecution was malicious (para 3). He asserted that the police "embarked upon an irrefutable agenda of unreasonable particulars". This reference to "unreasonable particulars" seems not only to be a reference to an asserted failure by the Crown to particularise sufficiently the claim against him, but also to a claim that "particulars" in the form of pre-trial materials supplied to him were unreasonable because they were wrong or deliberately wrong. Thus, in para 1 of his submission in chief the applicant asserted that the police "embarked upon an irrefutable agenda of unreasonable particulars" by having the victim of the offence perjure herself in a statement on 13 January 2012. He adduced no material supporting the claim of perjury, nor his claim that other pre-trial materials were wrong or deliberately wrong, except for his bare denials. In that statement the complainant said: "I kept walking but only moments after I felt somebody behind me. The person grabbed me around the neck with their forearm. They started to squeeze my neck. I immediately started to get him off me by trying to hit him. I just threw my hands behind me to try and hit him. ... Whilst I was attempting to fight him off me I started to feel that I was unable to breathe until the point that my body went limp. At that point I stopped fighting and I passed out."
21. The applicant referred to an expert certificate prepared for the purpose of s 177 of the Evidence Act 1995 (NSW) by a Police Forensic Medical Officer who stated that based upon her examination of the complainant she was of the opinion that the complainant had injuries consistent with an assault that morning that she described as "victim was grabbed from behind, around neck, scratched offender". A further certificate by a Dr Isaacs who was called by the Crown at the trial stated that the complainant gave a history that: "She was walking down King Street, Newtown, when a person grabbed her from behind. This person grabbed her with their elbow around her neck. She struggled. ..."
22. A NSW Police Facts Sheet dated 18 January 2012 asserted that the applicant was positioned behind the victim and he used his right forearm to wrap around the front of the victim's throat (Appendix 6, p 37 of 93).
23. In a later witness statement the complainant said that the applicant approached her from behind and that when he grabbed her she instantly grabbed hold of his forearm and elbow area with both hands. His grip around her neck was very tight and there was pressure against her neck that blocked her airway so that she could not breathe (Appendix 7, p 11 of 93).
24. In opening address the Crown said that the applicant put his arm around the complainant's throat and proceeded to apply pressure to her such that she momentarily blacked out (Rothman J at [22] quoted below).
25. The complainant gave evidence that the crook of the applicant's arm and the inside of his arm was against her neck (p 52 of 93). The applicant's position was that he had put his arm around the complainant's shoulder, as a hug, and not around her neck as a choke (pp 55 and 56 of 93). The complainant did not accept the suggestion put to her in cross-examination that the applicant "simply put his arm around you across your shoulder and didn't put your neck in the crook of his elbow".
26. Rothman J summarised the applicant's position at trial as follows: "33 The applicant then testified to the fact that he went over to the complainant and "gave her a hug"; placed his right arm around her shoulders with her neck in the crook of his arm. She was startled. The applicant denied choking her or squeezing her arm but realised that she was scratching his arm so he pulled his arm back forcefully. The complainant stumbled and fell onto the pavement."
27. The applicant's principal complaint appears to be that he did not have adequate particulars as to how the Crown would contend that the choking with which he was charged occurred. He complains that the Crown's allegation as to how the choking occurred emerged for the first time in the Crown's final submissions (Appendix 12, p 58 of 93) where the Crown Prosecutor said: "The accused has scratch marks on his right arm. The photograph. You might think that where those scratch marks are, very much supports the evidence of [the complainant]. If someone had their arm around your neck, and you were trying to get them off, the obvious way to do it would be to reach around and try and wrench them off, leaving marks in the position where you might expect to find it. Not if someone just puts their arm around you in a hug. How would you get scratch the outside the arm, you just push the arm away and run. Well [the complainant] had no opportunity to run, she was in a serious headlock ..."
28. This was consistent with the case particularised and opened, which did not depend on any precise identification of the positioning of the applicant's arm around the complainant's neck during the alleged choking. The complaint of inadequate particularisation and surprise was made before the Court of Criminal Appeal and rejected. Rothman J said: "49 The fundamental difficulty faced by the applicant is that his case depends upon a perception by him of that which the Crown and the complainant said about the injuries to his arm and the manner in which he 'choked' the complainant. That perception was, in significant respects, incorrect. 50 The complainant was aware that she had scratched (or dug her nails into) the applicant's forearm, but was unsure, or did not recollect, precisely when it was that injury was inflicted. Thus, the evidence of the applicant that it was inflicted at the time that the arm was on the 'shoulders' and/or 'neck' was uncontroverted. It also occurred just before, or at the time that, the complainant was rendered unconscious. 51 Thus, there is no discrepancy in the timing of the infliction of the injury to his forearm. 52 Secondly, and far more importantly, the applicant's recollection of the Crown address is significantly in error. During the Crown opening (AB201, transcript 28.11.12, page 3) the incident was relevantly described in the following way: 'She [the complainant] will tell the Court I expect that when she got to the next corner, which is Queen Street, a fairly quiet street, the man came up behind her. He put his arm around her throat and proceeded to apply pressure to her. He said nothing. At this stage [the complainant] had a large shoulder strap bag on her shoulder. The Crown says that the accused applied so much pressure that she blacked out momentarily, causing her to drop the bag. The accused made no attempt to take the bag or look in the bag and indeed ignored the bag and dragged her down Queen Street...' 53 In the closing address (AB401, Transcript 4.12.12, page 28) the Crown said: 'And she [the complainant] did glance in the window when she realised that he was following her and she started to go faster and the accused, he thinks that this is some sort of amorous engagement, runs after her. And the Crown says he put her in a headlock with his arms squeezing, applying quite some force. She drops her bag, he has no interest in her bag. He makes no demand for money or property. Doesn't look in the bag. His interest is in her. She passes out. You might have thought that the scuff marks on the top of the boots where he dragged her, she said that those scuff marks weren't there before this altercation.' Later in the closing address, the Crown says (AB402, Transcript 4.12.12, page 29): 'The accused has scratch marks on his right arm. The photograph. You might think that where those scratch marks are, very much supports the evidence of [the complainant]. If someone had their arm around your neck, and you were trying to get them off, the obvious way to do it would be to reach around and try and wrench them off, leaving marks in the position where you might expect to find it. Not if someone just puts their arm around you in a hug. How would you get scratch [marks] on the outside of the arm, you just push the arm away and run. Well [the complainant] had no opportunity to run, she was in a serious headlock and she wasn't motioned down the alleyway. She was dragged while she was unconscious and then she was very much frogmarched down there and she was thrown on the ground. You have all the injuries, you will see the photographs.' 54 The applicant submits to this Court that there was a change in the Crown position relating to the position of his arm during the choking incident. There is no significant or substantial change in the position described by the Crown. That was the evidence of Mr Averre [applicant's counsel at trial]. That evidence is corroborated by the transcript. 55 The misperception of the applicant was disclosed during the course of his cross-examination of Ms Mayne, the solicitor at trial. In demonstrating to her a position of the arm, he described the expert evidence (and some of the inferences available from the lay evidence) as the pressure being placed on the neck by the 'crook of the elbow'. The display of the applicant, during the course of cross-examination, was that the elbow was at the front of the neck. Nowhere, in the evidence or the submissions, is it suggested that the elbow was at the front of the neck. 56 The evidence both of the experts and lay witnesses, together with the addresses of the Crown both in opening and in closing, are consistent with the crook of the elbow being at the side of the neck, not at the front of the neck. Thus, the evidence is consistent with the applicant's evidence that that the upper part of the arm (the humerus) was at the back of the neck, the elbow was bent at the side of the neck and the forearm was at the front of the neck. 57 The foregoing positioning of the arm, which seems to be the only available position on the evidence before the Court below and before this Court, renders unarguable the applicant's submission that the infliction of the injury in that position was impossible and renders any submission as to inconsistency and lack of cross-examination unsustainable."
29. The applicant challenges Rothman J's findings that the evidence of the witnesses and the Crown's addresses were consistent with the crook of his elbow being at the side of, rather than in front, of the complainant's neck. He submitted that this was inconsistent with the complainant's evidence that she was grabbed from behind around her neck (Appendix 11, p 52 of 93) and with Dr Isaac's evidence that the history she was given was that the obstruction was not to the complainant's whole neck but that the windpipe was obstructed with the crook of the elbow at the front (Appendix 46, p 86 of 93).
30. Bellew J was right to proceed on the basis that the applicant's submissions had been fully considered by the Court of Appeal. In any event, the matters the applicant raises do not create any doubt or question about his guilt. Whether the crook of the elbow was at the front of the neck or the side of the neck is neither here nor there. Either could be a choke. The jury rejected the applicant's evidence that he gave the complainant a hug but did not choke her. The complainant's scratching of the applicant's forearm (about which there was no dispute) could have been done whether the crook of the elbow was at the front or the side. The applicant submitted that if the crook of his elbow was at the front of the complainant's neck, the scratches on his arm could not have been made at the places and angles on his arm that they were. (Appendix 5, p 36 of 93). That is mere assertion. A young woman could easily bring her right hand across to or beyond her left shoulder so as to scratch the assailant's forearm and the angle of scratch would depend on the angle of her wrist.
31. If the applicant established a doubt or question as to the exact position of his arm in relation to the complainant's neck, it would not raise a doubt or question about his guilt. The Crown case was overwhelming.
32. The judge was correct to find that these matters had been addressed in the Court of Criminal Appeal. There was no error, let alone a jurisdictional error or error of law, in the judge's decision that nothing in the material relied upon by the applicant gave rise to any sense of unease or disquiet and there was no appearance of a doubt or question as to his conviction.
33. The applicant did not point to any material that had been submitted to the judge on the application pursuant to s 78 that had not been considered.
34. The summons for judicial review should be dismissed. The Attorney General did not seek costs.
35. In Ferella v Stomo [2017] NSWCA 268 Sackville AJA observed that whilst the institution of judicial review is an important component of the rule of law, its availability without a requirement of leave opens the way to a determined or obstinate litigant who has exhausted all rights of appeal to mount a further challenge by invoking the original, as opposed to the appellate, jurisdiction of the Court. In that case the application was for judicial review of orders of the District Court refusing to set aside decisions of a Review Panel that had refused to set aside an assessment of costs of a costs assessor. This case is another example of the misuse of judicial review proceedings. The question whether judicial review proceedings assigned to the Court of Appeal by s 48 of the Supreme Court Act should be subject to a requirement of leave, such as is applicable to an appeal warrants attention.