Armand-Iskak v Attorney-General of New South Wales

Relevant statutory provisions and principles

1. Sections 78 and 79 of the Crimes (Appeal and Review) Act relevantly provide: "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. (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convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify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. (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)."
2. As s 79(4) indicates, consideration of an application under s 78 is not an exercise of judicial power: Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 ("Sinkovich") at [12]. Rather, the power being exercised is administrative: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [5]. A history of provisions allowing for inquiry and review of convictions and sentences is provided in Sinkovic at [33] to [41]. Further, I note the comments of Basten JA in Sinckovic at [52] to [54] which are as follows: "52. History and statutory language demonstrate that the overriding purpose of Pt 7 is, consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles. Historically, the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention. When appeals became available, that mechanism was not removed but was, indeed, improved upon and made more readily accessible. 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. 54. Further, the fact that an appeal is available as of right in respect of an error of law in respect of a conviction, but only by leave as to a matter of fact, contradicts the view that a post-appeal inquiry should be limited to questions of fact: see Criminal Appeal Act, s 5(1)(a). The identification of error with respect to points of law is a function peculiarly suited to a superior court judge. The scheme by which the gateway function is conferred on the Supreme Court, rather than a justice of the peace or any other person, is inconsistent with an intention to exclude errors of law."
3. It should be noted, however, that s 79(3) provides that the Court may refuse to consider or otherwise deal with an application under s 78: 1. in circumstances where "the matter" has: 1. "been fully dealt with … in any proceedings on appeal from the conviction or sentence": s 79(3)(a)(i);or 2. "previously been dealt with under this Part or under the previous review provisions": s 79(3)(a)(ii);or 3. "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": s 79(3)(iv); and 1. the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action: s 79(3)(b).
4. The Court of Appeal recently endorsed the approach of refusing to consider an application under s 78 where the requirements of s 79(3)(a) and (b) were met: Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 at [1], [2] and [7].
5. If, however, an application under s 78 is to be considered, the applicable test is contained in s 79(2) which requires that action to direct an inquiry or refer the whole case to the Court of Criminal Appeal under s 79(1) can 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".
6. The applicable principles in regard to the test under s 79(2) were summarised in Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423, by Davies J as follows: "[34] The legal principles governing these applications are now reasonably well known. The inquiry is not whether there is a doubt or question as to the convicted person's guilt or, here, as to the sentence (Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [29]-[31]) but whether there appears to be a doubt or question: Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [16]. The requisite "doubt or question" was said to be something which might cause unease: Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 at 48. [35] In Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Johnson J said: [6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2):Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. [8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. Some Other Features of the Jurisdiction [9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result. [36] Having determined whether it appears that there is a doubt or question the Court should then consider the matters in s 79(3) including, relevantly for the present matter, whether the matter has been fully dealt with in proceedings already."
7. In Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928, Bellew J noted, 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."

The application should be dismissed

1. The Application states that it is made under s 78 of the Crimes (Appeal and Review) Act 2001. That section provides that "an application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person …".
2. In the present case, the Application does not, however, seek an inquiry "into a conviction or sentence" but rather seeks an inquiry into the conduct of counsel for the Crown in relation to a submission made to the Court of Criminal Appeal in the 2003 proceedings. To this extent, the application does not fall within s 78(1).
3. Further, even if the Application did fall within s 78(1) because the 2003 proceedings concerned the applicant's 1957 conviction and sentence, the Application is based on a misunderstanding of what occurred and is, consequently, without merit. The portion of counsel's written submissions said by the applicant to be fraudulent was identified with precision in the Application as follows: "THE FRAUD WAS COMMITTED IN HIS SWORN SUBMISSIONS TO THE CCA, PAGE 4, lines 7 - 10, WHERE HE CONCOCTED A COMPLETELY FALSE AND OUTRAGEOUS CRIMINAL HISTORY FOR MR DOYLE. [The counsel for the Crown] TELLS THE CCA DOYLE HAD CONVICTIONS FOR, AND I QUOTE 'THE APPLICANT HAD BEEN CONVICTED OF POSSESSING HEROIN, POSSESSING INDIAN HEMP, AND CONSPIRACY TO STEAL'."
4. As has been recorded above, a copy of counsel's written submissions in the 2003 proceedings, dated 25 August 2003 accompanied the Application. It should be noted, first, that these were not "sworn submissions" as the Application alleges.
5. Secondly, page 4 lines 7-10 of those written submission are part of a quotation from a decision of the Court of Criminal Appeal in R v Gregory [2002] NSWCCA 199 ("Gregory") at [41]-[45] (Hodgson JA). In particular, [44] of that judgment was in the following terms: "44 As regards the damage to the applicant's reputation caused by the conviction, no evidence concerning such damage has been advanced. Before this conviction, the applicant had been convicted of possessing heroin, possessing Indian hemp, and conspiracy to steal. There appears to be no evidence one way or the other about any subsequent convictions, and there is no evidence as to the impact which this conviction has had on the applicant's life after release from imprisonment." (underlining added).
6. Paragraph 7 of counsel's written submissions makes plain that these paragraphs from Hodgson JA's judgment in Gregory were quoted because they involved consideration of issues relating to delay and whether an extension of time in which to appeal should be granted where the delay was in the order of 21 years. The quotation was relevant and appropriate in the context of the 2003 proceedings.
7. The criminal history referred to in page 4, lines 7-10, of counsel's written submissions was that of the applicant in R v Gregory not Mr Doyle.
8. There is no basis for concluding that counsel who appeared for the Crown in the 2003 proceedings engaged in any fraudulent conduct whatsoever or that the Court of Criminal Appeal's decision concerning his 1957 conviction and sentence was affected in any way by the fraudulent conduct contended for by the applicant.
9. As formulated in the Application, the request for an inquiry under s 78 proceeds upon a fundamental misunderstanding. There was no fraudulent or other conduct which might justify an inquiry or review.
10. For these reasons, the application for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 should be refused.
11. It can be noted, however, that the applicant, in later submissions, appeared to accept that the criminal history referred to at page 4, lines 7-10, of the written submissions in the 2003 proceedings did not relate to him and both parties made submissions concerning matters that went beyond what has been dealt with above. Consequently, for the sake of completeness, I shall also briefly address those submissions.

Matters going beyond the alleged fraud in relation to the 2003 proceedings

1. In accordance with s 78(2) of the Crimes (Appeal and Review) Act, a copy of the Application was sent to the Attorney General, being the relevant Minister, who provided submissions in relation to the Application on 8 August 2018.
2. In response to the submissions of the Attorney General, the applicant provided written submissions by emails of 30 October and 5 November 2018. In addition, a bundle of 19 "attachments" was filed on 7 November 2018. The written submissions were revised and were submitted in their final form by an email of 18 November 2018. The 19 attachments were as follows: 1. "A", identified as "EDWARD DOYLE COURT FORM P34 - WILLIAM COOTE COURT FORM P34 - WILLIAM COOTE WITNESS LIST - WILLIAM COOTE PURPORTED STATEMENT. UNDATED, UNSIGNED, UNWITNESSED PURPORTING TO BE WILLIAM COOTE STATEMENT TO SGT ENGLUND" containing: 1. a charge sheet from the Court of Petty Sessions, Paddington dated 16 January 1957 and stamped with the Court stamp on 11 January and 14 February 1957 naming Mr Doyle as the defendant 2. a charge sheet from the Court of Petty Sessions, Paddington, stamped with the Court stamp on 30 November 1957 naming Mr Coote as the defendant 3. a witness list 4. an unsigned statement of D Englund dated 10 January 1957 5. 3 photographs of an 'MG Roadster' 1. "B", identified as "DOYLE CRIMINAL HISTORY AT THAT TIME 1957 - FALSE CRIMNAL HISTORY CONCOCTED BY PROSECUTOR IN A SEPARATE MATTER POLICE REPORT - POLICE REPORT BY CONST WALDRON TO SGT ENGLUND, PADDINGTON POLICE" containing the following documents which also accompanied the Application and have been referred to above: 1. a criminal history of Mr Doyle from 1957 2. an unidentified "reasons for determination" in relation to bail being refused in 1983 3. a statement of Constable Waldron dated 4 January 1957 1. "C", identified as "3 PAGES PROOF CONST WALDRON CALLED TO GIVE TESTIMONY AT WILLIAM COOTE TRIAL PLUS MISCARRIAGE OF JUSTICE INFORMATION" containing: 1. a charge sheet from the Court of Petty Sessions, Paddington, stamped with the Court stamp on 30 November 1957 naming Mr Coote as the defendant (identical to that found in A) 2. a witness list (identical to that found in A) 3. a photocopy of what appears to be page 355 from a text book chapter "Appeals", specifically addressing the Criminal Appeal Act 1912, s 6(1) proviso 1. "D", identified as "16 PAGES OF APPEAL TO JUDICIAL COMMITTEE OF THE PRIVY COUNCIL" containing documents relating to an appeal to the Judicial Committee of the Privy Council including submissions stamped as received by the High Court of Australia Registry on 29 November 2007 and a letter from a registrar of the Judicial Committee of the Privy Council dated 12 December 2007 stating the Judicial Committee would not consider the petition for special leave to appeal. 2. "E", identified as "7 PAGES TO INNOCENCE PROJECT LYNNE WEATHERED" containing a 7 page letter to Lynne Weathered regarding Mr Doyle's 1957 conviction and an unidentified 'page 7' of written submissions 3. "F", identified as "3 PAGES OF REFERENCE FROM VIRO-R 1978 CONCERNING APPEALS FROM THE H.C TO THE PRIVY COUNCIL" containing 2 further pages of written submissions and 1 page from Viro v R (1978) 141 CLR 88; [1978] HCA 9, from [23] to [26] 4. "G", identified as "1 PAGE OF REMARKS LORD WIDGERY C.J" containing the same page of written submissions found in "E" 5. "ADDENDUM", identified with the note "10 PAGES THIS FILE SHOULD BE READ IN CONJUNCTION WITH THE PENULTIMATE PARAGRAPH OF EMAIL MARKED ADDENDUM" containing: 1. 9 pages of further submissions addressing, inter alia, the conduct of John Hawkins, "MY SOLICITOR AT MY TRIAL"; and 2. 2 pages of newspaper clippings with highlighted articles titled "Man charged with murder of solicitor" and "Man sentenced to life for killing solicitor" both regarding the murder of John Hawkins by Raymond Henry Phillips 1. "H", identified as "DUTIES OF JUDGES TO DETERMINE ADMISSABILITY" containing a marked up copy of the case R v Deathe [1962] VR 650 2. "I", identified as "6 PAGES CORRESPONDENCE PRIVY COUNCIL" containing correspondence that largely replicates what is found in "D" but including further correspondence evidencing the difficulty Mr Doyle had in appealing to the Judicial Commission of the Privy Council 3. "J", identified as "3 PAGES GENERAL BACKGROUND" including 3 further pages of written submissions challenging various aspects of the Court of Criminal Appeal's judgment in R v ED [2003] NSWCCA 255 4. "K", identified as "9 PAGES GENERAL BACKGROUND" containing pages 3-9 of written submissions challenging, among other things, the High Court's failure to correct the wrong apparently in relation to the 1957 conviction and sentence 5. "L", identified as "9 PAGES MARKED INDEX TO EXHIBITS" containing pages 2 and 4-11 of the same written submissions found in "K" 6. "M", identified as "REMARKS CONCERNING H.C.A." containing pages 8 and 9 of the same written submissions found in "K" and "L" 7. "N", identified as "NOTICE OF APPEAL 37 PAGES" containing a notice of appeal in the form of a letter to "the Chairman, NSW, Court of Criminal Appeal" dated 8 April 2003 8. "O", identified as "6 PAGES CRITICISM HAWKINS MISHANDLING CASE" containing written submissions largely the same as those found in "ADDENDUM" 9. "17", a copy of Regina v ED [2003] NSWCCA 255 10. "18", a copy of the Crown's written submissions in Regina v Edward Emmett Doyle for hearing on 11 September 2003 in the Court of Criminal Appeal, which accompanied the Application and which have been referred to above 11. "19", a copy of Application of Doyle [2002] NSWSC 1022.
3. On 5 December 2018, the Attorney General provided submissions in reply.
4. The applicant subsequently sent two further emails containing written submissions at 10.24 am and 3.50 pm on 13 February 2019.
5. A review of the applicant's submissions provided in response to the Attorney General's submissions indicates that are not limited to the "fraud" allegedly committed on the Court of Criminal Appeal and himself in the 2003 proceedings, but deal with matters that arose in 1956 and 1957 and have arisen since. They also involve challenges to the findings and reasoning of the Court of Criminal Appeal in R v ED [2003] NSWCCA 255.
6. In order to consider these submissions concerning the 1957 conviction and sentence and whether the Court is satisfied that there are special facts or special circumstances that justify the taking of further action in relation to that conviction and sentence, I set out below some more detailed background information concerning the 1957 conviction and sentence and the previous applications for an inquiry and for leave to appeal.

The applicant's 1956 offending and 1957 conviction and sentence

1. The following summary of the applicant's 1956 offending is extracted from the reasons of Dunford J in Application of Doyle [2002] NSWSC 1022, [7]-[13]: "[7] The case against the applicant at his trial may be summarised as follows: Allen John Innes gave evidence that between 11pm on 4 May 1956 and 6am the following morning his MG Roadster, registration number ARV-373 was taken, without his consent, from outside his residence at 1/123 Ocean Street Edgecliff, and about a month later, after being notified by police, he recovered the vehicle from the yard of the police station at Coolangatta, Queensland. [8] Detective McEntee gave evidence that on 6 January 1957, in company with Det Dooley, he interviewed the applicant at the Paddington Police Station. He told the applicant that he wished to ask him questions about the MG Roadster no. ARV-373 which was stolen from Ocean Street, Edgecliff on 4-5 May 1956 and recovered by Queensland police at Coolangatta and cautioned him in the usual terms, to which the applicant replied, "Yes Coote was charged with stealing that car, he must have been talking". The detective said that Coote had stated that he, the applicant, was with him and assisted him to take it and the applicant asked, "What does he say I did?", to which Det McEntee replied, "Coote has told us that you, Roy French and himself, had agreed to take this car and go for a holiday. He states that he went with you to Ocean Street where the car was parked, and you gave him a key which fitted the ignition lock, and you then drove down to the Edgecliff Post Office and picked up Roy French, and later on you drove to Queensland". [9] The applicant said, "That is not right. Coote told me about taking a car, and asked me how he would go about it, and I told him to get the number off the ignition lock and then go to a car dealer and buy a key with the same number. I did not give him the key". Detective McEntee then said to the applicant, "The fact is that you were there with him when he took it", to which the applicant replied, "Yes I was there. Roy French was keeping watch down the road". In answer to further questions the applicant told Detective Dooley that he and Coote had taken the number plates off a car belonging to Garry Roberts and driven to Queensland with the correct number plates on the MG, but that when they got to about Casino they substituted Gary Roberts' plates and threw the MG's plates into the bush. They drove onto Coolangatta, left the car there and returned to Sydney by train. [10] The applicant was invited to make a written statement but was cautioned that he was not required to. He said he did not wish to make a statement, and asked whether Coote had made a statement. He was supplied with a copy of Coote's statement and after appearing to read it he said, "He has put me in a nice position. It was all his idea. I only went along for the ride. In any case I did not give him the key. What will happen now? … Coote was the one that stole it, I only went along for the ride." He was then charged. [11] Det McEntee was cross-examined by the applicant's solicitor, Mr Hawkins, and in such cross-examination it emerged that Roy French was not at court and the police were not currently aware of his address but believed it might be possible to locate him if they tried. He had been committed for trial on the charge of stealing this motor vehicle but he had subsequently been no-billed, whilst Coote had been charged with stealing the car, pleaded guilty and was committed for sentence but failed to appear when called up for sentence, and his whereabouts were unknown. [12] The statement of Coote which had been referred to was marked for identification, and Detective Dooley gave evidence to the same effect corroborating that of Detective McEntee. That concluded the Crown case and the accused made an unsworn statement in the following terms:- "Gentlemen of the jury, all I can say is that I never stole that car and I never give Billy Cootes no key. I do not know why he said it. I wish he were here so that I could find out why he said it. I went up to the Police Station of my own accord 7 months after this is alleged to have happened. I spoke to the detectives. I certainly did not say what they said. Maybe with three lots of evidence, as they say, they could be quite easily confused, as there was a 7 month time lag and it is 12 months now, and I certainly did not take that car and I have always had one of my own, and I certainly did not take that car or give Billy Cootes the key." [13] There was a short case in reply in which Det McEntee denied that he may have been confused between his interrogation of the applicant and his interrogation of Coote and French and said he did not interrogate French but Det Englund did. Following counsel's addresses his Honour summed up, the jury retired at 12.55pm and returned with a verdict of guilty at 2pm. Following the short evidence of the applicant's criminal history and antecedents and an address by his counsel, the applicant was sentenced to 3 years imprisonment and the learned judge recommended that the sentence be served at a training centre."
2. In relation to what occurred after his conviction in 1957, Dunford J recorded in his judgment at [2]: "Following his conviction, the applicant was sentenced to imprisonment for 3 years with a recommendation that the sentence be served at a training centre. An appeal to the Court of Criminal Appeal was lodged (whether it was against conviction or sentence is not clear), but was abandoned on 18 November 1957. The applicant claims that this was because his solicitor, Mr Hawkins, told him he was a personal friend of the Minister of Justice and would obtain his release on licence within a very short time, if he would only get on with serving his sentence. This assertion of the applicant is completely uncorroborated, Mr Hawkins is now deceased, and I have no information as to whether the applicant was released on licence, or if so, when."

First application for inquiry

1. On 1 May 2002, the applicant applied to the Supreme Court under s 474D of the Crimes Act for an inquiry into the conviction and sentence imposed on 12 June 1957. The applicant relied on several grounds in support of his application, including grounds to the effect that: 1. The statement of Constable Waldron dated 4 January 1957 was concealed from him during the trial. This statement indicated that Cst Waldron stopped the MG Roadster for speeding on 5 May 1956. He identified Mr Coote as the driver and in a number of photographs on 25 November 1956. Cst Waldron did not indicate whether there were any other passengers in the vehicle at the time. The applicant considered that if there were other people in the car, Cst Waldron would have referred to them in his statement and the fact he did not suggested the applicant was not guilty. 2. He was not supplied with a copy of a statement made by Mr Coote which implicated him in the offence. 3. The jury only took a short time (65 minutes) to return its verdict. 4. The trial judge failed to hold a voir dire examination in relation to verbal admissions made by the applicant. 5. The jury directions were incorrect as the trial judge informed the jury they did not have to be satisfied the applicant intended to permanently deprive the owner of his property. 6. His sentence was manifestly excessive when compared to that of his co-offender, Mr Coote.
2. On 1 November 2002, Dunford J refused the application on the basis that the applicant's grounds did not raise an appearance of doubt or a question as to the application's guilt or the sentence imposed: Application of Doyle [2002] NSWSC 1022. His Honour found, at [18], that the case against the applicant at his trial was "overwhelming". After considering the applicant's submissions in detail, his Honour said, at [48]: "Having taken all the applicant's submissions into account and for the reasons I have set out, I am not left with any doubt, uneasiness or sense of disquiet at the applicant's conviction, and can see no reason for any inquiry into it. The application is accordingly refused."

Application for leave to appeal against conviction and sentence

1. In April 2003, the applicant sought an extension of time to appeal against his conviction and leave to appeal against the sentence imposed. The applicant's primary argument was that fresh evidence had come to light which warranted the conviction being set aside. The evidence relied upon by the applicant was the statement made by Cst Waldron on 4 January 1957.
2. The Court of Criminal Appeal found the applicant had "long since served the sentence imposed upon him" and in addition to there being a real question as to whether it constituted "fresh" evidence, the statement of Cst Waldron was equivocal and could not be tested. Accordingly, this ground was found to be "without merit" and leave to appeal was refused: R v ED [2003] NSWCCA 255. Hidden J (with whom Spigelman CJ and James J agreed) said at [20]-[22]: "[20] As I have said, in the present case a new trial is out of the question. The fresh evidence ground is without merit and, even if it had merit, could have justified no more than an order for a new trial. The applicant has long since served the sentence imposed upon him. In all the circumstances, it would not be in the interests of justice to grant an extension of time in which to appeal against the conviction and I would refuse it. [21] The applicant wishes to pursue an appeal against sentence upon the basis of the marked disparity between the three years imprisonment visited upon him and the five year recognisance extended to the co-offender, Coote. As he has served his sentence, there would be no utility in entertaining the appeal. In any event, such material as the applicant has been able to supply about the sentencing of Coote is wholly inadequate to determine why Judge Rooney took the course he did, or to decide whether the applicant's sense of grievance about the sentencing disparity might be justified. [22] I would also refuse leave to appeal against the sentence."

Application for special leave to appeal

1. The applicant then sought special leave to appeal to the High Court of Australia against the refusal of an extension of time and leave to appeal by the Court of Criminal Appeal. The application was dismissed on 8 October 2004: ED v The Queen [2004] HCATrans 396. In refusing leave, Gleeson CJ said: "On 12 June 1957 the applicant was tried before the late Judge Clegg sitting as a chairman of Court of Sessions and a jury upon a charge of stealing a motor vehicle. He was convicted and sentenced. On 8 May 2003 the applicant applied for an extension of time within which to appeal against the conviction and to seek leave to appeal against the sentence. On 11 September 2003 the Court of Criminal Appeal of New South Wales dismissed the application on the ground that it would not be in the interests of justice to grant an extension of time in which to appeal against the conviction and the court also refused leave to appeal against the sentence. The substantial ground of appeal against conviction which the applicant sought to argue related to the failure of the prosecuting authorities 50 years ago to provide him or his solicitors with a statement of a person the applicant says would have been a material witness and the failure of the Crown to call that witness to give evidence at the trial of the applicant. We are of the view that there are insufficient prospects of success of an appeal against the discretionary decision of the Court of Criminal Appeal. No error of principle has been shown in the reasoning of the Court of Criminal Appeal. The application is dismissed."

Submissions provided on 30 October and 5 November 2018

1. In addition to the submissions provided at the time of filing his application on 10 July 2018, which have been dealt with above, the applicant made further submissions on 30 October and 5 November 2018, supported by the 19 attachments referred to above. Some of the points raised, without trying to be exhaustive, were: 1. The law applicable in these and previous proceedings emanating from the applicant's 1957 conviction is the law in force in England in 1956; 2. The failure of the prosecutor at his original trial to call Cst Waldron or to inform the applicant of the means of contacting him represented a breach of the prosecutor's duties; 3. The Registrar of the High Court erred by failing to allow his appeal to the Privy Council, by applying the Australia Act 1986 (Cth) retrospectively and in a way that operated prejudicially to the applicant; 4. The prosecutors relied on a false criminal history; 5. The manner in which counsel in the 2003 proceedings in the Court of Criminal Appeal mentioned the criminal history of Mr Gregory was unnecessary and apt to "distract the NSWCCA from proper consideration of [the] application"; 6. The police failed to comply with proper procedures in relation to the events leading up to and including his arrest in 1957; 7. Dunford J, in Application of Doyle [2002] NSWSC 1022, erred by finding that Cst Waldron's failure to make reference to passengers being in the MG Roadster when he stopped it for speeding on 5 May 1956 was "totally irrelevant", and his Honour "committed a fraud on the NSWCCA as well as committing a fraud on [the applicant]" by referring to the MG Roadster as a "speeding car" rather than a "stolen car", which misled the Court of Criminal Appeal; 8. Hidden J, in Regina v ED [2003] NSWCCA 255, committed a fraud on the applicant by speculating about why Cst Waldron might have neglected to mention the presence of passengers when he stopped the MG Roadster for speeding; and 9. The applicant's solicitor, at his original trial, was suffering "mental anguish" and did not competently manage his case.

Submissions filed 13 February 2019

1. By email dated 13 February 2019 the applicant drew attention, among other things, to the "Lawyer X" controversy and the Royal Commission into the Management of Police Informants in Victoria. He submitted that these revelations necessitated a "completely new appraisal [of] the law as it affects my application" because, in pursuing his matter through various courts since his conviction in 1957, "judges of all persuasions ,just point blank refuse to believe that police tell lies ,and manipulate evidence."

Submissions in reply provided on 8 August 2018

1. The Attorney General filed submissions on 8 August 2018, and on 5 December 2018 in reply to the applicant's later submissions. He submitted, among other things, that the applicant has not raised the appearance of a doubt or question as to his guilt, any mitigating circumstances, or the evidence in the case as required by s 79(2). It was noted that the primary basis for his application was that counsel for the Crown in the 2003 proceedings incorrectly characterised his conviction history in written submissions. However, those submissions made clear that the passage of concern was a quote from an authority relied on and was not a reference to the applicant's conviction history. The Attorney General submitted that the application should accordingly be refused. This aspect of the submissions has already been addressed above.
2. The applicant's successful application for inquiry and quashing of his 1985 convictions was noted as follows: "This application was successful, in that the convictions and sentences imposed upon him were referred to the Court of Criminal Appeal and quashed, in part on the basis aspects of his criminal history provided to the Court by Police were incorrect. However no such issue arises in the present case where counsel for the Crown is clearly not referring to the applicant's criminal record. This ground does not raise the appearance of a doubt or question as to the applicant's guilt, mitigating circumstances, or any part of the evidence." (footnotes omitted)
3. Under the heading 'Other possible grounds for inquiry not made out', the Attorney General submitted that the statement of Cst Waldron had been considered at length both in the context of previous applications for review and leave to appeal. The Attorney General therefore submitted that the matter had been dealt with previously, for the purposes of s 79(3)(ii), and there were no special facts or circumstances which would justify another inquiry.

Further submissions in reply filed 5 December 2018

1. In reply to the applicant's further submissions of October and November 2018, the Attorney General submitted that the further matters raised by the applicant had already been determined adversely to him on previous occasions, or otherwise did not assist him. It was submitted that none of the matters raised gave rise to any appearance of "doubt or question" regarding the applicant's conviction for the purposes of s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW).
2. The Attorney General addressed the applicant's further submissions, under the following headings:

The asserted failure to call Senior Constable Waldron or to provide his contact details

1. It was noted that the applicant previously raised this issue before this Court and the Court of Criminal Appeal in the proceedings which were the subject of the decisions in Application of Doyle [2002] NSWSC 1022 and R v ED [2003] NSWCCA 255, respectively. On both occasions, the applicant asserted that the failure to call or identify Cst Waldron as a witness deprived the applicant of the opportunity to adduce evidence from him to the effect that he was not present in the vehicle at the time it was stopped for speeding. The Attorney General submitted that Dunford J's conclusion, that Cst Waldron's failure to make reference to passengers being in the vehicle was "totally irrelevant" to the applicant's conviction, was supported by the applicant's admissions to police, including that he had driven to Queensland with Mr Coote in the stolen car: Application of Doyle [2002] NSWSC 1022 at [18], [35] and [37]. These admissions bolstered his Honour's assessment of the case against the applicant as being "overwhelming": at [18]-[20].
2. As to Hidden J's comments in Regina v ED [2003] NSWCCA 255 at [14] that it was "most likely" that the applicant's solicitor would have become aware of Cst Waldron's statement in the course of preparing his client's case and could have easily identified and interviewed Cst Waldron, it was submitted that "none of this is inappropriate speculation" and rather the comments serve to demonstrate Hidden J's "essential point" that the evidence, which could have been adduced on this point, was equivocal and that it was unlikely that it could now be tested given the significant passage of time since the trial.
3. In both cases, the Attorney General submitted that the applicant's argument was "correctly" rejected. To the extent that the failure to call or identify Cst Waldron as a witness was a breach of duty by the prosecutor, it was submitted that this was merely a "new label" for the same arguments and accordingly did not give rise to any appearance of "doubt or question" regarding the applicant's convictions.

The content of the duties as at 1956 is to be assessed by reference to the law in England at that time

1. The Attorney General also submitted that, once it is accepted that the arguments in relation to the alleged failure to call Cst Waldron or to provide his contact details have been already been correctly determined adversely to the applicant, it was unnecessary to consider the source of the relevant prosecutorial obligations in 1956 or to determine any distinctions between the law in force in the United Kingdom and New South Wales at the relevant time.

Failure to charge the applicant with perverting the course of justice

1. The matter underpinning this submission was the allegation that the applicant perverted the course of justice by threatening Mr Coote. It was submitted that this matter did not demonstrate any appearance of "doubt or question" about the applicant's conviction or the circumstances in which it was made. The Attorney General noted that a failure to charge the applicant with a further offence based on this matter was not probative of the applicant being innocent of the charge on which he was convicted.

Generalised allegations of police corruption

1. The Attorney General submitted that this was neither new material, nor sufficiently specific to give rise to any appearance of "doubt or question" about the applicant's conviction on the basis of general police corruption.

The limited period of time the applicant was interviewed by police

1. It was also submitted that there was no reason why the applicant's admissions to police could not have been "comfortably" elicited within the approximately 15 minutes allowed for by the applicant for his police interview. In any case, this matter did not give rise to any appearance of "doubt or question" about his conviction.

Competence of the accused's representation

1. It was noted that the applicant had previously raised the competence of his legal representation in his application before Dunford J, the subject of Application of Doyle [2002] NSWSC 1022, where it was found not to be a matter justifying an inquiry into his conviction or warranting leave to appeal being granted. His current submissions on the matter did not point to any additional or particular failure or error made by the solicitor in the way he conducted the defence, and amounted to mere conjecture.

Appeal rights to the Privy Council

1. The applicant's belief in his right of appeal to the Privy Council was submitted to be misconceived.

Consideration

1. In the circumstances of the present matter, relevant aspects of which have been set out above, it appears to me that the matters in relation to the applicant's 1957 conviction and sentence, in so far as they are properly raised in the present application (contrary to my primary conclusion), have: 1. "been fully dealt with … in any proceedings on appeal from the conviction or sentence" within s 79(3)(a)(i) by way of the 2003 proceedings and the judgment in those proceedings, R v ED [2003] NSWCCA 255, as well as by way of the High Court special leave application; and 2. "previously been dealt with under this Part or under the previous review provisions" within s 79(3)(a)(ii) in Dunford J's consideration of the application under s 474D, the subject of the decision in Application of Doyle [2002] NSWSC 1022; and 3. "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" within s 79(3)(a)(iv) by way of the appeal lodged in 1957 which was abandoned on 18 November 1957.
2. Furthermore, in relation to the additional matters raised by the applicant, I accept the submissions made on behalf of the Attorney General, which have been summarised above, for the reasons given in those submissions. In particular and without being exhaustive, it appears to me that: 1. The "revelations" concerning the "Lawyer X" controversy Victoria and Royal Commission into the Management of Police Informants do not necessitate a "completely new appraisal [of] the law as it affects [the] application" because, in pursuing his matter through various courts since his conviction in 1957, "judges of all persuasions, just point blank refuse to believe that police tell lies, and manipulate evidence." Those revelations concern a specific person in Victoria and do not raise concerns relating to the applicant, his 1957 conviction and sentence or his relevant circumstances. 2. The applicant's belief as to the existence, nature and extent of a right of appeal to the Privy Council does not justify further action under s 78 or 79. 3. None of the matters raised by the applicant concerning the 1957 trial leads to it appearing that there is a doubt or question as to his guilt in relation to the 1957 conviction and sentence, as to any mitigating circumstances in that case or as to any part of the evidence in that case, for the reasons already given by Dunford J and the Court of Criminal Appeal, which I also respectfully adopt, and for the reasons set out above.
3. Having regard to all those matters, I am not satisfied that there are special circumstances that justify the taking of further action, within s 79(3)(b) of the Crimes (Appeal and Review) Act.
4. Accordingly, even if the Application sought "an inquiry into a conviction or sentence", it is appropriate to refuse to consider or otherwise deal with the Application, under s 79(3) of the Crimes (Appeal and Review) Act.

Conclusion

1. For all of the reasons set out above, the application for an inquiry under s 78 of the Crimes (Appeal and Review) Act set out in the Application filed on 8 August 2018 is refused.

Endnotes

1. Sections 474D and 474E of the Crimes Act have been repealed and re-enacted in s 78 and 79 of the Crimes (Appeal and Review) Act.
2. R v Doyle (2001) NSWCCA 252 at [25].
3. R v Doyle (2001) NSWCCA 252 at [26] and [45]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2019