Armand-Iskak v Attorney-General of New South Wales

Supreme Court of NSW|2020-08-11|Before: Cavanagh J, Hunt CJ

The applicant's submissions

The applicant summarised the basis of his present application as follows: "You will note from the following submissions I will make note that the orders from his honour White JA made in the CCA were to overturn the convictions on charges 2, 5, 8, 9, 10 and 11, [i]f your Honour was to agree with His Honour White JA in this matter I would be open and grateful to that decision, however as mentioned my submissions are for the whole conviction. Your Honour my submissions will outline what I see to be the 'faults' of the crown case against myself and the failure to meet the onus of proving their case 'beyond a reasonable doubt'. I will outline certain sections of the case in witness statements to the police and what was given in […] evidence at trial by the same witnesses and also the police case outlining dates and places of the alleged acts." (Emphasis in original).
The applicant then identified 12 factors that he submits should lead to the conclusion that there is a doubt or question as to his guilt as follows: "1) 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; 2) The complainant said he could not remember the event comprising count 1 and conceded it may not have occurred; 3) The complainant stated that events comprising 2 and 3 did not occur; 4) 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); 5) The complainant stated that the event comprising count 5 never occurred; 6) 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; 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); 8) More generally, the inconsistencies between the four police interviews which formed the bulk of the complainant's evidence in chief; 9) The apparent ability of the complainant to remember things in September 2015, which the complainant claimed to be unable to remember in March 2015; 10) The apparent ability of the complainant to remember things in 2017 that he was unable to remember in 2015; 11) The influence of mother upon the complainant's evidence; and 12) The absence of evidence independent of the complainant, to support the allegations."

The Crown Submissions

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

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]".
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.
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.
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.
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).
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.
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

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.
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.
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).
There was some further limited examination-in-chief and then cross-examination on behalf of the applicant.
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.
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.
Further, contrary to his evidence in the interviews, he accepted in cross-examination that the events comprising Counts 2 and 3 did not occur.
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."
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.
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."
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.
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]
Their Honours considered that the evidence of Thomas in his JIRT interviews was visceral and utterly believable.
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.
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.
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)

The applicant was acquitted on Count 4.
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.
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

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.
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.
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.
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]
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

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.
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)

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.
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.
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.
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

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.
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

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.
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.
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.
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.
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.
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.
In the circumstances, I would refuse to consider or otherwise deal with the application and the application is dismissed.

Endnotes

AZ v R [2018] NSWCCA 294 (Walton and Wilson JJ, White JA dissenting).
AZ v The Queen [2019] HCASL 192.
Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50.
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].
[2008] NSWSC 251 at [6]-[8].
Holland at [10].
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].
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).
[2020] NSWCA 70 at [5] (Basten JA, Macfarlan and McCallum JJA agreeing).
Review Act s 79(3)(a)(i).
Review Act s 79(3)(b).
Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 at [4] (McCallum J).
AZ v R [2018] NSWCCA 294 at [130].
AZ v R [2018] NSWCCA 294 at [157]-[158].
AZ v R [2018] NSWCCA 294 at [34], [59], [67] (White JA).
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

The nature of the application

Sections 78 and 79 of the Review Act are in the following terms: 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. (3A) The Supreme Court may defer consideration of an application under section 78 if - (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (3B) This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from - (a) the fact that the convicted person was - (i) questioned under section 24 of the Crime Commission Act 2012, or (ii) required under section 24 or 29 of that Act to produce a document or thing, or (b) either or both of the following - (i) evidence obtained directly from that questioning or requirement, (ii) any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing. (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).
An application under s 78 does not involve a judicial proceeding: s 79(4). However, the Court may consider any written submissions made by the Crown with respect to an application. Both the applicant and the Crown have made written submissions. The applicant also provided written submissions in response, which were hand written due to the restrictions arising from the current health crisis.
In determining the application, the Court is exercising an administrative power. [3] It is not hearing an appeal against the applicant's conviction.
The legislation is remedial legislation designed to overcome injustices that sometimes arise in the course of the administration of criminal justice. The legislation has a beneficial purpose. [4]
The scope of the administrative function is determined by the relevant provisions. As set out in s 79(2) of the Review Act, action under s 79(1) (being either to direct that an inquiry be conducted or for the whole case to be referred to the Court of Criminal Appeal) 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.
The applicant requests that the verdicts of the jury be overturned. He does not seek any other action. However, I would have due regard to the fact that he is not legally represented and assume that he seeks an inquiry into his conviction. As he could hardly be seeking that the matter be referred back to the Court of Criminal Appeal, then the only other action that could be taken in response to his application is a direction that an inquiry be conducted.
Having said that, his seeking that the verdicts be overturned is consistent with the application as a whole in that, as he expressly states, he is echoing the submissions made at trial and then on appeal.
The principles applicable to the consideration of applications under s 79 were reviewed by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review Act) 2001 [5] ("Holland") as follows: "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]."
The administrative function exercised under Part 7 of the Review Act is generally exercised when the criminal justice system has run its course following trial and appeal. [6] In most cases, the applicant may seek to rely on additional evidence that has come to light after the trial which might raise a doubt or question as to guilt.
The process available under s 78 is not intended to be another form of appeal. [7]
Section 79(3) sets out the circumstances (non-exhaustively) on which the Court may refuse to consider or otherwise deal with an application. It provides a basis for a form of summary dismissal of the application. [8]
In Clark v Attorney General of New South Wales, the Court observed: "5. The purpose of s 79(3) is tolerably clear: it is to ensure that the court has appropriate powers to dispose summarily of applications which might otherwise be described as frivolous, vexatious, misconceived or lacking in substance. Satisfaction as to such matters would be sufficient to warrant a refusal to refer an application for an inquiry under s 79(1). However, s 79(3) seeks to go one step further and provide bases upon which the court may refuse to consider the application at all. It also permits the court to refuse to 'otherwise deal with' an application, although it is not clear whether that language adds anything to a refusal to consider." [9]
One basis on which the Court may dispose of the application summarily is: 1. if it appears that the matter has been fully dealt with in the proceedings giving rise to the conviction (or in any proceedings on appeal from the conviction); [10] and 2. the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. [11]
The discretion to refuse to consider the application is broad. [12]
The meaning of "special facts or special circumstances" in s 79(3)(b) is not specified or limited but I consider that the emergence of new evidence or new arguments (which have a reasonable foundation) not previously raised might be considered special facts or circumstances.
I emphasise that the existence of special facts or special circumstances is not a threshold for satisfaction of the matters referred to in s 79(2). It is merely that, if the Court is not satisfied that there are special facts or special circumstances and any of the matters set out in ss 79(3)(a)(i)-(iv) are established, then the Court may deal with the application summarily.
Dealing with the application summarily means no more than declining to consider or otherwise deal with the application; that is, declining to consider whether 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.
In my view, the purpose of s 79(3) is to balance the right of a convicted person to pursue an application under s 78 with the need to ensure that such applications are not merely pursued as matter of course, as if it were a further step in the appeal process.
Having said that, the Court is not compelled to refuse to consider or otherwise deal with the application if any of the matters set out in ss 79(3)(a)(i)-(iv) and (b) apply, but the matters set out in ss 79(3)(a)(i)-(iv) and (b) are matters that the Court would have regard to in determining whether to consider or otherwise deal with the application.
It follows that, whilst the Court has a general discretion in determining whether to refuse to consider or otherwise deal with the application, the Court would have regard to whether any of the matters set out in ss 79(3)(a)(i)-(iv) arise and then go on to further consider whether there are special facts or special circumstances that justify the taking of further action.
In this matter, the applicant does not seek to rely on "fresh evidence" or even material that was not before the jury and the Court of Criminal Appeal. Rather, the applicant expressly relies upon the submissions put forward on his behalf to the Court of Criminal Appeal and to the High Court on the special leave application, as well as the notes prepared by the applicant as to the evidence and the alleged irregularities in the trial.
In particular, the applicant relies on the reasons of White JA in the Court of Criminal Appeal decision relating to a number of counts on which he was convicted by the jury.
I will now set out the events which lead to the application.

At a glance

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