Armand-Iskak v Attorney-General of New South Wales

The Crown Submissions

1. The principal submission made by the Crown is that the Court should decline to deal with the application, as it is merely a repeat of the arguments raised on appeal. Alternatively, the Crown submits that the submissions in support of the application do not lead to a doubt or question as to the applicant's guilt within the meaning of s 79(2) of the Review Act.

Consideration

1. The primary difficulty with the application is that, as the applicant identifies early in his submissions, he is really relying on the case put on his behalf at trial, the submissions made to the Court of Criminal Appeal, the dissenting judgment of White JA and then the submissions made to the High Court on the special leave application. Indeed, in his hand written submissions in response, he acknowledges the Crown submission that, on this application, he has merely relied on points previously raised in the Court of Criminal Appeal and concedes that he is "simply making this application on what [he sees] as the merits of the points raised at trial [and on appeal]".
2. He says that he is outlining the faults of the Crown case and the failure of the prosecution to meet the onus of proving their case "beyond a reasonable doubt", but these were the "faults" which were relied upon by the applicant in the Court of Criminal Appeal and the submissions made presently do not add anything new of substance to the submissions made in the Court of Criminal Appeal.
3. The applicant does not identify special facts or circumstances that may justify the taking of further action. Thus, as submitted by the Crown, this matter may fall squarely within the terms of ss 79(3)(a)(i) and (b), such that the Court may refuse to consider or otherwise deal with the application.
4. Section 79(3) of the Review Act sets out the circumstances in which the Court may refuse to consider the application. It does not mandate dismissal of the application should the matters set out in ss 79(3)(a) and (b) be satisfied. However, having regard to s 79(3), the threshold question, which arises in this matter, is whether I should decline to consider or otherwise deal with the application.
5. I should note, for completeness, that the applicant raises his treatment in prison since being sentenced as a factor. Whatever sympathy the Court may have in relation to that treatment, it is not a relevant factor in determining whether action may be taken in accordance with s 79(1).
6. In any event, whilst it may appear from the content of the applicant's submissions that the matter has been fully dealt with in the proceedings giving rise to the conviction, it is appropriate that I consider in further detail each of the 12 factors identified by the applicant in his submissions.
7. I do so in the first instance for the purposes of determining whether I should decline to deal with the application, prior to further considering whether there is a 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.

The complainant gave conflicting evidence about the location of the events the subject of counts 1, 2 and 3 stating at least five different locations for them

The complainant said he could not remember the event comprising count 1 and conceded it may not have occurred

The complainant stated that events comprising 2 and 3 did not occur

1. Thomas first complained to his mother on 2 March 2015. He was interviewed by Police Officers attached to the Penrith Joint Investigation Response Team ("JIRT") on 12 March 2015. There was a video recording of that interview, which was part of his evidence-in-chief.
2. He was then interviewed a second time by a Police Officer associated with Penrith JIRT on 2 September 2015. Again, that video recording formed part of his evidence-in-chief.
3. He was interviewed a third time on 3 February 2017 and a fourth time on 13 February 2017. The video recordings were also part of his evidence-in-chief. Indeed, he was permitted to give evidence in that way, pursuant to s 306S of the Criminal Procedure Act 1986 (NSW).
4. There was some further limited examination-in-chief and then cross-examination on behalf of the applicant.
5. The point made by the applicant in the Court of Criminal Appeal and in his submissions in support of this application is that in his first interview, Thomas stated that the events giving rise to Counts 1, 2 and 3 took place at Parramatta Pool. In his second interview, he said that the acts occurred at Penrith or Mt Druitt Pools. He finally said that he thought that the events occurred at Emerton Pool.
6. The doubts said to arise under Counts 1, 2 and 3 are referred to in Factors 1, 2 and 3 of the applicant's submissions. The applicant says that over the course of his various interviews and his evidence at trial, Thomas gave conflicting evidence about the location of the events, suggesting that they happened in at least five different locations. Further, when pressed, Thomas said he could not remember the applicant touching his penis at the pool and conceded it may not have occurred.
7. Further, contrary to his evidence in the interviews, he accepted in cross-examination that the events comprising Counts 2 and 3 did not occur.
8. The foundation for these submissions is firstly Thomas's differing recollection as to where the events happened, that is, at which pool they happened in the interviews and, secondly, the cross-examination of Thomas as follows: "Q. I'm going to ask you now about the Emerton Pool. A. Okay. Q. [Thomas], is it the case - I'll talk about Emerton Pool, okay? A. Okay. Q. You say you've told the police that [the applicant] touched you on the rude part at Emerton Pool? A. Yes. Q. That didn't happen, did it? A. I can't remember. Q. It may not have happened, is that right? A. Yeah. Q. And [the applicant] didn't touch [Christopher] at the pool, at Emerton Pool, did he? A. No, he didn't. Q. And [the applicant] didn't touch his own rude part at Emerton Pool, did he? A. No, he didn't. Q. And [the applicant] didn't' touch his own rude part with you at any pool, did he? A. Yes. Q. I put to you that [the applicant] didn't touch your rude part any pool. A. He did. Q. You say it's not Emerton Pool, is that right, where that - A. No. Q. --touching happened? A. It did happen at Emerton Pool. Q. Are you saying now it did happen at Emerton Pool? A. Yes. Q. You understand you agreed earlier that it didn't happen? HIS HONOUR: Perhaps complete the sentence. BURKE: I will, your Honour, sorry. Q. You know you just said that it didn't happen at Emerton Pool? Do you remember that? A. Yes. Q. Was that the truth? A. No."
9. This content of the interviews and the cross-examination referred to above were the subject of submissions in the Court of Criminal Appeal and were considered by the Court of Criminal Appeal.
10. Count 2 was that the applicant touched Christopher's penis at the Emerton pool. Thomas was subject to cross-examination on this point as follows: "Q. You say you've told the police that [the applicant] touched you on the rude part at Emerton Pool? A. Yes. [Um, long pause.] Q. That didn't happen, did it? A. I can't remember. Q. It may not have happened, is that right? A. Yeah. Q. And [the applicant] didn't touch [Christopher] at the pool, at Emerton Pool, did he? A. No, he didn't."
11. White JA considered that the conviction on Count 2 should be quashed. He did not consider the convictions on Counts 1 and 3 should be quashed. As his Honour said, [13] Thomas was seven at the time of the first interview. He was confused in finding the location of the pool. This did not cause White JA to have any doubt that the events he described as taking place at Emerton pool did take place at Emerton pool. Walton and Wilson JJ did not consider that Counts 1, 2 or 3 should be quashed.
12. As identified on the special leave application, Walton and Wilson JJ dealt with the issue more generally as follows: "157. … The evidence given by means of the recorded interviews may have been regarded by the jury as compelling; that is my assessment of it. However, there were inconsistencies and concessions in the evidence given by Thomas at trial. The applicant relies upon these inconsistencies and concessions to argue that the verdicts for counts 1 - 3 and 5 - 11 were unreasonable and unsupported by the evidence. 158. In assessing that contention, not only should the evidence of Thomas be taken as a whole and not piecemeal, but the evidence given at trial more broadly must be taken as a whole. It was, of course, entirely open to the jury to accept part of Thomas' evidence, and not other parts." [14]
13. Their Honours considered that the evidence of Thomas in his JIRT interviews was visceral and utterly believable.
14. Further, the comments made by the Crown Prosecutor in closing address to the effect that the jury might have a reasonable doubt as to the applicant's guilt on Counts 2 and 5 were the subject of consideration by the Court of Criminal Appeal with reference to the role and obligations of a Crown Prosecutor.
15. As observed by Walton and Wilson JJ, the submissions of the Crown Prosecutor were not determinative before the jury. The Crown's concessions at trial are a feature to be closely considered, having regard to the evidence before the jury as a whole. They are of no greater weight.
16. The matters raised in Factors 1, 2 and 3 identified by the applicant on this application were fully dealt with by the Court of Criminal Appeal. The applicant has not raised any new or different point.

The complainant was unable to describe crucial aspects of the event comprising count 4 and gave a description of that event that made it physically impossible (I was acquitted by the jury on this count who must have had doubts about the reliability of the complainant's evidence on this count)

1. The applicant was acquitted on Count 4.
2. If the point is that the acquittal on Count 4 gave rise to an inconsistency between verdicts, this submission was made to the Court of Criminal Appeal and dealt with. [15] White JA found that the applicant's acquittal on Count 4 is not inconsistent with his conviction on the other counts.
3. This is also dealt with by Walton and Wilson JJ (at [144]) who agreed with White JA's assessment that there is a rational basis for the difference. Their Honours observed that distinguishing Count 4 from the remaining counts was the qualitative difference in the complainant's evidence with respect to it, both in the JIRT interviews and evidence-in-chief at trial.

The complainant stated that the event comprising count 5 never occurred

1. Count 5 was dealt with by Walton and Wilson JJ in the same way as Counts 1, 2 and 3. Their Honours contrasted the environment in which the interviews took place and the method of questioning and the timing of the interviews with the evidence at the trial. As their Honours said, the evidence at trial was taken from Thomas as he sat in a remote witness room of a courthouse, an environment which might give rise to some level of anxiety in a trial. The questions asked of Thomas often gave or suggested an answer and were more frequently asked in a way that a young child may have struggled to comprehend.
2. Their Honours considered that the fact that there was a contradiction or concession by a child in cross-examination is not, of itself, necessarily an indication that the child is not a credible witness. The question turned on a careful examination of the whole of the evidence.
3. Their Honours examined the whole of Thomas's evidence and gave due regard to the concessions extracted by questioning at trial but were left with no doubt as to the availability of the jury's verdicts with respect to Counts 1 to 3 and 5 to 11.
4. White JA took a different view. His Honour considered that there was a clear acceptance by Thomas that some of the acts charged never took place. His Honour found: "The Crown prosecutor told the jury that it could have a reasonable doubt about the applicant's guilt on count 5. I have that doubt. It is a doubt the jury should have shared. The applicant should be acquitted of count 5." [16]
5. Again, the issues raised as Factor 5 were fully dealt with by the Court of Criminal Appeal, albeit with differing conclusions amongst their Honours.

Some of the complainant's evidence in the second JIRT interview about how the incident the subject of count 7 was said to have occurred was implausible

1. Walton and Wilson JJ included Count 7 when they referred to having examined the whole of Thomas's evidence and having due regard to the concessions extracted by questioning at trial but still being left with no doubt as to the jury's verdicts.
2. After referring to the evidence given in the second interview, White JA noted that Thomas adhered to that evidence in cross-examination and said that he accepted Thomas's evidence in relation to Count 7.

The complainant stated the events comprising counts 8, 9, 10 and 11 did not occur on the date particularised in the indictment, proof of which is required beyond reasonable doubt (his soccer grand final day 2 March 2015)

1. The Crown accepted that the date on which the offences alleged in Counts 8 to 11 took place needed to be proved beyond reasonable doubt. However, Thomas accepted in cross-examination that the acts, the subject of Counts 9 to 11, did not take place on grand final day.
2. White JA considered that this gave rise to a reasonable doubt as to whether the events took place on that day. His Honour did not consider that Thomas's answers were ambiguous. It was not open to infer that he was confused. In the circumstances, White JA had a doubt as to whether the acts took place on that day. It was a doubt that his Honour considered the jury should have had.
3. Walton and Wilson JJ dealt with these matters more generally but did make reference to the complaint made by Thomas to his mother on the day it was alleged that Counts 8 to 11 had been committed, at what seemed like the first available opportunity for Thomas to speak to his mother in the absence of the applicant. As is plain from their Honours' reasons, they disagreed with the approach of White JA.
4. Whatever the strength of this factor, the applicant did not pursue the point in the special leave application before the High Court. As submitted by the Crown, he conceded that it was open to the jury to conclude that Thomas's retraction in cross-examination was a result of him having simply forgotten the precise day on which the offences were committed.

More generally, the inconsistencies between the four police interviews which formed the bulk of the complainant's evidence in chief

The apparent ability of the complainant to remember things in September 2015, which the complainant claimed to be unable to remember in March 2015

The apparent ability of the complainant to remember things in 2017 that he was unable to remember in 2015

The influence of mother upon the complainant's evidence

The absence of evidence independent of the complainant to support the allegations

1. Submissions were made to the Court of Criminal Appeal on these issues. The majority dealt with these complaints of a more general nature, rejecting the submission that evidence of a contradiction or concession by a child in cross-examination or a contrast between evidence contained in the interviews and cross-examination was an indication that the child was not a credible witness.
2. Of course, as the applicant submitted on his special leave application, his principal complaint to the High Court was the alleged failure by the majority of the Court of Criminal Appeal to give discrete consideration to the reasonableness of each of the verdicts.

Conclusion

1. On my analysis, the 12 factors identified by the applicant as supporting a proposition that there is a doubt or question as to the applicant's guilt were all either raised at trial or the subject of submissions and consideration in the Court of Criminal of Appeal.
2. Adopting the language in s 79(3)(a)(i), it thus appears that the matter has been fully dealt with in the proceedings giving rise to the conviction or any proceedings on appeal from the conviction.
3. Further, the applicant has not identified any special facts or special circumstances that justify the taking of further action. The applicant has not raised any new points. He does not point to any new or fresh evidence. He does not point to any evidence which has been overlooked by the Court of Criminal Appeal.
4. Even the proposition that the majority dealt with the arguments more generally without reference to each individual count was the subject of the special leave application.
5. Whilst I am not bound to refuse to consider or otherwise deal with the application merely because the matters set out in ss 79(3)(a) and (b) are satisfied, the very purpose of s 79(3) is to allow the Court to refuse to consider the application in circumstances in which the applicant does no more than restate the submissions raised in the proceedings and on appeal, having exhausted all avenues of appeal.
6. This is plainly this case. The Court's function in considering an application under s 78 is not to act as another Court of Appeal.
7. In the circumstances, I would refuse to consider or otherwise deal with the application and the application is dismissed.

Endnotes

1. AZ v R [2018] NSWCCA 294 (Walton and Wilson JJ, White JA dissenting).
2. AZ v The Queen [2019] HCASL 192.
3. Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50.
4. Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [60], [64]-[75]; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172 at [11].
5. [2008] NSWSC 251 at [6]-[8].
6. Holland at [10].
7. Application of Milat [2005] NSWSC 920; 157 A Crim R 565 at [26]; Application of Dunn [2005] NSWSC 857 at [9] (quoting Application of Esposito (Supreme Court (NSW), Hunt CJ at CL, 14 July 1988, unrep at 2)); Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928 at [12].
8. Clark v Attorney General of New South Wales [2020] NSWCA 70 at [5] (Basten JA, Macfarlan and McCallum JJA agreeing); Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 at [7] (White JA, Macfarlan JA agreeing).
9. [2020] NSWCA 70 at [5] (Basten JA, Macfarlan and McCallum JJA agreeing).
10. Review Act s 79(3)(a)(i).
11. Review Act s 79(3)(b).
12. Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 at [4] (McCallum J).
13. AZ v R [2018] NSWCCA 294 at [130].
14. AZ v R [2018] NSWCCA 294 at [157]-[158].
15. AZ v R [2018] NSWCCA 294 at [34], [59], [67] (White JA).
16. AZ v R [2018] NSWCCA 294 at [93] (White JA). 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: 14 August 2020