Baini v The Queen - [2023] NSWSC 418 - NSWSC 2023 case summary — Zoe

NSWNSWSC

Baini v The Queen

[2023] NSWSC 418

Supreme Court of NSW|2023-04-21|Before: Chen J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-04-21

Before

Chen J

Catchwords

[2012] HCA 59 Betts v The Queen (2016) 258 CLR 420
[2016] HCA 25 Buttrose v Attorney General of New South Wales (2015) 324 ALR 562
[2021] NSWCCA 148 Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 66 NSWLR 151
[2006] NSWCA 172 Landsman v The Queen (2014) 88 NSWLR 534

Source

Original judgment source is linked above.

Catchwords

[2012] HCA 59 Betts v The Queen (2016) 258 CLR 420[2016] HCA 25 Buttrose v Attorney General of New South Wales (2015) 324 ALR 562[2021] NSWCCA 148 Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 66 NSWLR 151[2006] NSWCA 172 Landsman v The Queen (2014) 88 NSWLR 534[2014] NSWCCA 328 Lawless v The Queen (1979) 142 CLR 659[1979] HCA 49 Mickelberg v The Queen (1989) 167 CLR 259[1989] HCA 35 MRW v R [2011] NSWCCA 260 R v Birks (1990) 19 NSWLR 677 R v Johns (2000) 110 A Crim R 149[1999] NSWCCA 206 R v Milat (2005) 157 A Crim R 565[2005] NSWSC 920 R v Pollock [2005] NSWCCA 316 Ratten v The Queen (1974) 131 CLR 540[1974] HCA 35 Rodi v Western Australia (2018) 265 CLR 254[2018] HCA 44 Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783[2013] NSWCA 383 Skaf, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 TKWJ v The Queen (2002) 212 CLR 124

Judgment (30 paragraphs)

[1]

[2]

Introduction

On 17 June 2015 Mr Paul Howes ('the applicant') was convicted of three offences of stalking with intent to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) ('CDPV Act'). The conduct in question occurred on 25 September 2013 (one offence) and 18 December 2013 (two offences), and involved the applicant following, and surreptitiously recording young boys at outdoor markets using a pen camera. The convictions were upheld on appeal to the District Court in September 2016.
The applicant seeks to have his 'case' referred to the Court of Criminal Appeal, to be dealt with as an appeal - against conviction and sentence - under the Criminal Appeal Act 1912 (NSW): ss 78 and 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) ('the CAR Act').
The application, as ultimately developed, involves three principal contentions: 1. The first is that "new evidence has come to light" - a diagnosis of Autism Spectrum Disorder ('ASD') - that raises a serious question or doubt about his guilt: the doubt being whether the prosecution could establish that the applicant intended to cause fear or that he knew that his actions would cause fear (applicant's submissions at [23]). 2. The second is that the ASD diagnosis is a "mitigating circumstance" in the case, and makes available s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ('the MHFP Act') - with the potential for conditional or unconditional dismissal of the charges - and the applicant "lost an opportunity" for his conduct to be dealt with under the MHFP Act (applicant's supplementary submissions at [6]-[8]; applicant's submissions in reply at [14]). 3. The third relates to the sentencing of the applicant - because the applicant was sentenced "without any evidence of his cognitive impairment being placed before the Court", the applicant "lost an opportunity" for his conduct to be dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 (applicant's submissions in reply at [26]-[29]).
The applicant relied upon submissions dated 15 March 2022, further submissions dated 31 May 2022 and submissions in reply dated 26 August 2022. The applicant also relied upon affidavits of Jin Hong Ti, the applicant's solicitor, affirmed 17 March, 8 April and 26 August 2022.
The Attorney General has filed submissions dated 24 June 2022 to the effect that the application should be refused.

[4]

The statutory framework: ss 78 and 79 of the CAR Act.

Part 7 of the CAR Act creates a statutory scheme enabling persons to apply for an inquiry into their conviction or sentence. It thus provides for a statutory exception to the principle of finality: Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [46]-[47] ('Sinkovich'); Application by Shelden Patrick Vaughan pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 920 at [11]. The key provisions are ss 78 and 79 of that Act.
Section 78 of the CAR Act provides: 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.
Upon receiving an application, s 79 provides: 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. …
The provisions are remedial, and designed to overcome injustices that might occur in the course of the criminal justice system: Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 66 NSWLR 151; [2006] NSWCA 172 at [8] and [11]. The procedure is available "when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to the guilt or sentence": Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [10] ('Holland'). The procedure available thus provides an important safeguard against a wrongful conviction (Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623 at [12]) or where there is doubt or question about a sentence imposed. In this last respect, although s 79(2) "does not refer to sentence at all … it is beyond doubt that there may be an inquiry into a sentence": Sinkovich at [30]. Nevertheless, the procedure is not intended to provide a convicted person with a further avenue of appeal, after the usual avenues have been exhausted, raising the very matters that have been fully dealt with in those proceedings: R v Milat (2005) 157 A Crim R 565; [2005] NSWSC 920 at [26].
The fulfilment of the precondition to the Court directing an inquiry or the referral of the "whole case" to the Court of Criminal Appeal hinges on it appearing 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 statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question: Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221 at [16]. There is no power to take a step under s 79(1) "unless a precondition is fulfilled" - it is "the satisfaction of the judge as to the relevant condition which is critical": Sinkovich at [25] and [26]; GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [67] ('GAR'). Section 79(2) has thus been described as a gateway to the discretionary power conferred by s 79(1): Sinkovich at [56].
The content of the condition - the necessary state of mind - is whether it appears that there is a doubt or question as to one or other of the matters within s 79(2), being (a) the convicted person's guilt; (b) any mitigating circumstances in the case; or (c) any part of the evidence in the case. And, as to the phrase "requires a doubt or question", although it was suggested in earlier cases that the statutory test "doubt or question" called for a feeling of "unease" or "sense of disquiet" in allowing the conviction (relevantly) to stand, it has more recently been held that there "is no purpose served by adopting other words other than the statutory language of 'doubt or question'": Sinkovich at [65]; GAR at [135]. To the extent that the applicant's submissions framed the inquiry by reference to a feeling of "unease" or "sense of disquiet" (applicant's submissions at [29]), they are inconsistent with these decisions, and I do not accept them.
In terms of the test, it has been described as "not a demanding one" (albeit exercised "sparingly": Sinkovich at [53]), and that "the task is to be approached with a view to the overriding purpose of providing a means to address doubts as to compliance with the principle that liberty should only be infringed upon the commission of a criminal offence if commission of the offence has been established beyond reasonable doubt": GAR at [137]; Sinkovich at [52]. The section requires the material "as a matter of practical reality" to give rise to the appearance of a doubt or question: Holland at [8]; Skaf, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 at [21].
In terms of the material that can be considered on this application, it is unnecessary to determine whether the evidence - notably that relating to the diagnosis of ASD - is "fresh", rather than "new" (as to the distinction, see Ratten v The Queen (1974) 131 CLR 540 at 516-517; [1974] HCA 35 ('Ratten'); Lawless v The Queen (1979) 142 CLR 659, 674-675; [1979] HCA 49 ('Lawless')). The reason for this was explained in Holland at [11]: The nature of the jurisdiction under Part 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal. To invoke the fresh evidence rule at the ss.78-79 stage (as the Crown submissions of 30 November 2006 suggested by reference to R v Ion (1996) 89 A Crim R 81 at 93-94) does not sit well with the function being performed. In decisions concerning applications under s.475, it was observed that the fresh evidence rule had no application: Application of Esposito at page 2; Application of Visser at page 3.
Nevertheless, if the matter is referred to the Court of Criminal Appeal, the test governing the reception of new and fresh evidence is applicable: Holland at [12], citing R v Johns (2000) 110 A Crim R 149; [1999] NSWCCA 206 at [4]-[10], [41]-[58] and R v Pollock [2005] NSWCCA 316 at [2]-[3], [24]ff.
For completeness, reference should also be made to s 79(3). As is apparent from the terms of it, the Court may refuse to consider, or otherwise deal with, an application made under s 78, including in the circumstances prescribed by ss 79(3)(a) and (b) - situations that, expressed broadly and by way of example, cover when the "matter" has been "fully dealt with in the proceedings" (s 79(3)(a)(i)) or the "matter" has been the subject of an appeal, or there is a right to appeal that was not exercised (s 79(3)(a)(iii)). It remains relevant to consider s 79(3) because, as I earlier noted, the applicant abandoned an appeal against sentence following the dismissal of his conviction appeal.

[6]

The commission of the offences

On 30 December 2013 the applicant was charged with three offences of stalking with intent to cause physical or mental harm, contrary to s 13(1) of the CPDV Act: 1. Sequence 1: Between 12.38pm and 12.42pm on the 25/09/2013 at Penrith in the state of New South Wales did stalk an unknown male approximately 12 years of age with the intention of causing the said unknown male to fear physical or mental harm. 2. Sequence 2: Between 9.58am and 10.03am on the 18/12/2013 at Penrith in the state of New South Wales did stalk [BK] with the intention of causing the said [BK] to fear physical or mental harm. 3. Sequence 3: Between 10.18am and 10.20am on the 18/12/2013 at Penrith in the state of New South Wales did stalk an unknown male approximately 12 years of age with the intention of causing the said unknown male to fear physical or mental harm.
Section 13 of the CPDV Act relevantly provides: (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
The applicant did not give evidence at the hearing of the 2013 charges.
There was no dispute that the physical elements of the offence were satisfied; rather, the principal issue in dispute was whether the prosecution proved beyond reasonable doubt that the applicant either knew or intended that his actions of covertly following and recording young boys would cause fear. On each occasion the subject of a charge, the different boys were unaware at the time that they were being followed and recorded - although, by the terms of s 13(4), proof of this matter was unnecessary. The dispute thus turned upon s 13(3) of the CPDV Act.
The Magistrate held that the offences had been made out by the prosecution. The dispositive finding was expressed by the Magistrate in these terms: When one considers the facilitating provision in sub (3) of s 13 of the Act … coupled with the intention that one can infer from the conduct, the nature of the instrument with which the defendant sought to, in a clandestine manner, record that pursuit, that following, notwithstanding that it is in a public place, the ultimate conclusion to be arrived at in my view is that the defendant also knew that the conduct was likely to cause fear in the other person, had the person been aware.
Pursuant to s 11 of the CAR Act, the applicant appealed to the District Court where the conviction appeal was heard by Delaney A-DCJ. On appeal, the applicant's challenge to his conviction raised two issues: the first being the admissibility of the tendency evidence; the second being whether the prosecution could establish that the applicant intended to cause each complainant to fear, or knew that his actions would cause each complainant to fear - this issue raising the terms of s 13(3) of the CPDV Act.
The conviction appeal was heard at the Penrith District Court on 5 and 11 July and 7 and 8 September 2016.
By judgment delivered 8 September 2016, Delaney A-DCJ upheld the convictions, finding with regard to whether the applicant knew that his conduct was likely to cause fear: It was submitted again that the argument by the Crown that the offender had known that his conduct was likely to cause fear obfuscates the true issue because had the person been aware it is unlikely he would have been placed in fear. This was of course the difficulty with which the Magistrate and this Court has to grapple with. It is not a decision of statutory interpretation but is a decision on the facts. When one considers as it was necessary to do in the case, the whole of the evidence of what had occurred, accepting that there was indeed, that the tendency evidence was appropriate there was in my opinion a basis for finding that if this had been a one off situation without the relevant tendency then the argument for the appellant may have had some effect but in my opinion the Crown case that the appellant did stalk the victims on the basis that there was as the Crown said a course of conduct on the question of fear, that course of conduct was sufficient to justify a finding that the evidence was sufficient to prove the case on each of the offences beyond reasonable doubt ... The likely effect of the conduct here would in my opinion clearly show that such fear would have been engendered, this can be inferred from the surrounding circumstances based on the tendency, the behaviour that was observed and I find that it is the only reasonable inference to be drawn from the whole of the evidence, that he would have known the misconduct was likely to cause fear, physical or mental harm even though they may not have actually been put in fear. The appeals are against conviction dismissed.
Following the unsuccessful appeal, the applicant's appeal against sentence was abandoned. To sum up: in both the Local Court and the District Court, the intent was inferred based essentially upon the surrounding circumstances, including what the applicant did, as well as his use of the pen camera.
A further matter should also be noted following on from the applicant's conviction. On 29 June 2015, the police made an application, pursuant to s 3E of the Child Protection (Offenders Registration) Act 2000 (NSW) seeking an order that the applicant be placed on the child protection register. The application involved reliance upon the conduct giving rise to the 2013 charges, as well as further charges laid on 2 June 2016 (discussed immediately in what follows).

[7]

The 2016 charges

In addition to the 2013 charges, on 2 June 2016 the applicant was charged with forty four offences - offences that are alleged to have occurred during the period 2010 to 2016. It is said, in an affidavit sworn in support of the application by the solicitor for the applicant, that those offences "were not related to the 2013 charges", although the basis for that assertion was not spelt out in the evidence. The Attorney General, fairly, pointed out that the Court has not been provided with any substantive "information about the 2016 charges". The material relating to those charges is extremely confined: to the extent it was disclosed, it is what is contained in the applicant's solicitor's affidavit, plus what can be drawn from some medical evidence that cover the time period - medical evidence that was secured in connection with the 2016 charges.
In relation to those charges, the DPP took over those proceedings, and proceeded with eleven charges of stalking, and one charge of possessing child abuse material. It was in the context of the 2016 charges that the applicant secured a report dated 9 June 2016 from his treating psychologist, Dr Gary Sawle - a report that was obtained for the purpose of the applicant securing an order that he be released on bail.
In that report, Dr Sawle noted that its purpose was "written as a means for the Court to consider factors relating to [the applicant's] application for bail", and in doing so expressed the opinion that the applicant suffered from ASD: Clinical and psychometric assessment indicate that [the plaintiff] fulfils the DSM-5 criteria for a diagnosis of autistic spectrum disorder, without intellectual disability, at a moderate level of severity.
It is important to note that the applicant concedes that, from 9 June 2016, it can be inferred that the applicant's then lawyer knew that the applicant had been diagnosed with ASD (applicant's submissions at [44]). That is an inference that I draw, and a finding I make. It will be necessary to return to the 2016 diagnosis, and I address this further: see [39]ff, below. It is also important to note that this report is dated approximately three months before the last hearing day of the appeal to the District Court in connection with the 2013 charges.
The applicant applied to have the 2016 charges dealt with under s 32 of the MHFP Act. In support of that application, the applicant secured expert evidence - reference will be made to the detail of this later: see [43]ff, below - from a qualified psychiatrist (Dr Ahmed) and a treating psychologist (Mr Borkowski).
On 27 September 2019, Magistrate Swain dealt with the s 32 application. The majority of the 2016 charges were dismissed, and the applicant was released into the care of his father subject to a condition that the applicant "continues treatment with Mr Borkowski or his delegate and to abide by all treatment recommendations and directions". Magistrate Swain declined, however, to deal with the charge of possessing child abuse material as part of the s 32 application. Subsequently, on 12 March 2020, the DPP withdrew this charge.
In July 2020, following the dismissal of the 2016 charges, the registration application by the police relied solely upon the convictions for, and evidence in support of, the 2013 offences.
The application was defended, but on 10 July 2020 Magistrate Swain granted the application. There is currently, before the District Court, an appeal against the making of these orders, but the hearing of that appeal has been deferred pending the outcome of this application.

[8]

The extent to which the applicant's diagnosis featured in the courts below

It is the applicant's position that the ASD diagnosis was not raised in the Local Court or District Court. The solicitor for the appellant, Jin Hong Ti, noted in his affidavit of 17 March 2022: "I have reviewed the transcripts of the Local Court proceedings in relation to the 2013 Charges and the District Court appeal of the convictions. No evidence was tendered and no submissions were made relating to the Applicant's diagnosis of ASD" (affidavit at [54]). The Attorney General did not submit otherwise. In those circumstances I am prepared to accept, and find, that the ASD 'issue' was not raised before the Local Court or the District Court in connection with the 2013 charges here.
Nevertheless, as I have earlier noted, there was evidence available to the applicant's solicitor at the time (different from the ones that have been retained for the present application) that did confirm the ASD diagnosis after his conviction, but before the hearing of his appeal to the District Court - namely, opinion expressed in the report by Dr Gary Sawle dated 9 June 2016 (see [32]-[33], above). The applicant, as I also earlier noted, conceded that it "may be inferred that from the 9 June 2016 … [the applicant's former solicitor] knew that the applicant had a diagnosis of Autism Spectrum Disorder (ASD) based upon the report from Dr Sawle" (applicant's submissions at [44]). The submissions also pointed out that "this was never raised in the District Court appeal which was heard shortly thereafter".
The evidence is, however, silent on: (a) the applicant's knowledge about that diagnosis at that time (namely on or before early June 2016; or, indeed, before that time); (b) the applicant's knowledge of the report from Dr Sawle; and (c) whether the report from Dr Sawle was relied upon to secure the applicant bail following the 2016 charges.
Furthermore, neither the evidence, nor the submissions, addressed why that report was not utilised in the proceedings in the District Court; nor did it address why the diagnosis, and its potential ramifications, was not pursued further. The written submissions of the applicant's counsel in the District Court were in the material attached to the affidavit of the applicant's solicitor, and they make no mention of the ASD diagnosis - consistent with what the applicant's current solicitor has said, and my finding about, whether the issue was "raised" before the District Court. Nevertheless, there is no material from the applicant's then counsel about the extent of his knowledge of the ASD diagnosis.

[10]

Report from Dr Katie Seidler dated 7 February 2014

Dr Seidler was a consultant psychologist qualified by the applicant's solicitor, and she undertook a report in connection with the 2013 charges. She interviewed the applicant for the purposes of preparing her report, but also acknowledged that she had prepared a report dated 21 June 2013 - having "previously assessed [the applicant] with respect to an unrelated matter". It should be noted that that earlier report was not in the material that formed part of the application. Based upon the 2014 report, it appears that the earlier consultation may well have been as a consequence of the applicant coming "to the attention of authorities for inappropriate conduct in the presence of young males ...": report at [64]. Neither the applicant, nor the Attorney General, drew attention to this matter, so I will not consider it further.
The applicant and the Attorney General both drew attention to par 54 of Dr Seidler's report. That paragraph was: [The applicant] reported that he has been charged with a number of offences pertaining to him 'stalking' adolescent boys by filming them with a secreted camera pen in public places. [The applicant] stated that he believes he will be pleading not guilty to the present charges but his account of the offences at interview was consistent with that contained in official documentation. [The applicant] denied any sexual intent behind his actions and he found it difficult to understand why his behaviour was illegal or to appreciate how the victims may have experienced his actions. He required considerable challenge in this regard. However, [the applicant] did acknowledge that the victims may have been upset, confused and potentially even frightened by his behaviour and he was also willing to acknowledge that on some level, he chose to follow the victims briefly by 'walking in the same direction', which was motivated by his evaluation of their attractiveness, for example, liking their hairstyle. He was also willing to acknowledge that having and using the camera pen was inappropriate. [The applicant's] account of his offending behaviour was somewhat confused and lacking in insight but this is consistent with his understanding of other aspects of his life and functioning and indicates his immaturity and lack of insight about his internal processes which will require specialised therapeutic intervention to address. (emphasis added)
The applicant also drew attention to the following opinions expressed by Dr Seidler: 1. namely, that "the applicant does not seem to be particularly self-aware, insightful or psychologically minded. Rather, his thinking is generally superficial, as is his understanding of interpersonal interactions and emotional experience" (at [67]); and, 2. that the applicant "fails to recognise the socio-moral reasons why his behaviour is inappropriate, against the Law and abusive" (at [69]).
Dr Seidler undertook a "semi structured interview and psychometric testing" (report at [1]) and ultimately concluded that, in her opinion, the applicant was "not currently suffering with any form of diagnosable psychopathology, nor has he seemingly done so at any time in the past", and went on to express the opinion that she did "not believe that section 32 considerations would be applicable in this case", and that treatment should include assisting the applicant "to become more accountable in relation to his offending behaviour and his sexual interests in general" (report at [77]).
The Attorney General, on the other hand, drew attention to those parts of par 54 from Dr Seidler's report that I have underlined - to support a submission that the applicant acknowledged matters, at a time close to the commission of the offences - being that the "victims may have been upset, confused and potentially even frightened by his behaviour" and that "having and using the camera pen was inappropriate" (Attorney General's submissions at [66]-[67]).
The letter of instruction to Dr Seidler (which is addressed by Dr Seidler on p 13 of her report) was not included in the material relied upon by the applicant.

[13]

Reports from Jason Borkowski dated 16 August 2018, 20 September 2018, 10 October 2018, 31 January 2019, 12 September 2019, 10 March 2020, 31 January 2022 and 18 August 2022

Jason Borkowski is the applicant's treating psychologist. He has been treating him since 9 February 2017. The applicant was assessed by another psychologist, Jennifer Grant, on three occasions prior to the first consultation that the applicant had with Mr Borkowski - namely, on 21 December 2016 and 9 and 16 January 2017.
The first report, dated 16 August 2018, noted that the applicant was involved in proceedings currently before the Court (being the 2016 charges), and that Mr Borkowski agreed to implement a psychological treatment plan with the applicant "should the section 32 application in his matter be successful".
The report dated 20 September 2018 was essentially a treatment report, and neither the applicant nor the Attorney General drew attention to anything from that report in their submissions.
In the report dated 10 October 2018 Mr Borkowski noted that the applicant … has frequently expressed difficulty in understanding how his actions may cause concern for others, which in my opinion, is a function of his diagnosed mental condition, and his associated social immaturity, and his limited ability to have insight into the perceptions of others. To that end, [the applicant] continues to grapple with what is "wrong" with his behaviours.
The reports from Mr Borkowski dated 31 January 2019, 12 September 2019 and 10 March 2020 essentially update the treatment, and progress of that treatment. Neither the applicant, nor the Attorney General, drew attention to any material contained within those reports.
Mr Borkowski was specifically requested, by letter of instruction dated 23 November 2021 to prepare a report about the applicant's state of mind in connection with the 2013 charges, and for use in the current application. The report that Mr Borkowski prepared, in response to that letter, is dated 31 January 2022.
The applicant's submissions drew attention to Mr Borkowski's opinion on page 3 of his report: The most prominent ASD related characteristics exhibited by [the applicant] relate to his social difficulties, social isolation, and limited interest in forming and maintaining social connections or relationships … [the applicant] also exhibits deficits in reading and understanding social cues, he has difficulty understanding some social norms, and he is notably lacking in his ability to understand the perspective of others.
In the report, when addressing whether the ASD "affected" whether the applicant intended to cause harm, Mr Borkowski relevantly responded as follows: Throughout my interactions with [the applicant] he has frequently expressed difficulty in understanding how his actions may cause concern for others, which, in my opinion, is a function of his diagnosed condition, and his associated social immaturity, and his limited ability to have insight into the perceptions of others. To that end, [the applicant] continues to grapple with what was "wrong" with his behaviours. In my opinion, [the applicant's] behaviour was motivated by his 'interest' in the lifestyle that young people lead, as well as his perceived relatability with young people. He also has a pre-occupation with the physical appearances of young people, with hairstyles and skin tone being particular factors that he pays attention to, which again is a function of his diagnosed condition. That is, a diagnostic feature of individuals with Autism Spectrum Disorder is fixated interests and associated repetitive patterns of behaviours and/or activities. As such, I do not believe [the applicant's] intentions at the time of the offences were to cause fear or physical harm for the victims, insofar as his diagnosed condition significantly impairs his ability to understand the perspectives of others, and therefore he was likely unaware that his behaviour may have affected the victims in any way.
The applicant also provided a supplementary report from Jason Borkowski dated 18 August 2022. The applicant, in his submissions, drew particular attention to the response provided to question 3 posed to Mr Borkowski (which sought to elicit, amongst other matters, information about what the applicant said "about his state of mind when filming the three victims"): [the applicant] maintained the attitude that others were unaware of what he was doing, and as such he did not believe his actions would have had any impact on the victims, and he was unable to conceive how his behaviour was causing harm to anyone.
In this report, Mr Borkowski also confirmed that, in expressing the opinion that he did not "believe" the applicant's intentions were to cause fear or harm, he had had regard to what the applicant had said "about filming the three victims".
It is appropriate to note at this point that the applicant relies upon Mr Borkowski's reports, prior to those dated 31 January 2022 and 18 August 2022, as merely confirmatory of the ASD diagnosis and, further, the applicant accepts that the reports before that time "do not refer to the offences [the] subject of this application" (applicant's reply submissions at [9]).

[16]

Introduction

The applicant's overarching submission is that new evidence has come to light which raises a "serious doubt or question" about the applicant's guilt.
Specifically, the applicant relies upon the ASD diagnosis which, it is argued, raises doubts as to "whether the prosecution could establish that he intended to cause fear or that he knew that his actions would cause fear" (applicant's submissions at [23]). In furtherance of this, the applicant argues that whilst the fact that he had ASD was not new, "the effect of this disorder upon his state of mind and intention at the relevant times is" (applicant's submissions at [62]). As to this last matter, it is said that: (a) the "interrelationship of that condition with the applicant's intention and/or state of knowledge" was substantive, and went to the ultimate issue in the case (applicant's submissions at [62]); and (b) it raised doubt as to whether the prosecution could establish that the applicant "intended to cause fear or whether he knew that his conduct was likely to cause the victims to fear" (applicant's submissions at [62]).
The essential submissions of the applicant are that, with the ASD diagnosis - and what that involves - there is a doubt or question as to whether the prosecution could establish the mental element of the offence under s 13 of the CDPV Act or the diagnosis are "mitigating circumstances" - and the existence of each matter provides a basis for the matter to be referred to the Court of Criminal Appeal to be dealt with as an appeal against conviction (applicant's further submissions at [8]-[9]).
A considerable amount of material, and submissions, were directed to the manner in which the charges were proven - particularly the mental element of the offending. Although this material is not unimportant, it is not, to my mind, the central concern. That is for two, related, reasons. The first is that the application is not advanced on the footing that the evidence was incapable of establishing the mental element of the offence; rather it is directed to what evidence was not before the Magistrate when hearing the charges or before the District Court Judge when hearing the appeal, and the consequences of that omission. The second is that the determination of the sufficiency of the evidence to establish the offence, was a matter that was the subject of the appeal to the District Court - and fully dealt with in those proceedings (s 79(3)(a)(i) would provide a significant obstacle to any application to review the sufficiency of the evidence). Thus, as I see it, the central concern is whether or not, by the absence of the 'ASD evidence', I am satisfied that there is a doubt or question - relevantly here - as to the applicant's guilt (or that it constitutes "mitigating circumstances"). Put another way, the issue is whether the medical evidence in connection with the applicant's ASD diagnosis, and its effects, and the omission of evidence on these matters are such that there is a doubt or question as to his guilt in connection with the 2013 offences (or "mitigating circumstances").
The Attorney General submits that, whilst accepting "that the new evidence is relevant to the essential disputed issue", the Court would be "cautious to treat the opinions … as productive of the appearance of a doubt or question about guilt" and, ultimately, submits that the individual and cumulative effect of the opinions expressed "does not lead to the appearance of a doubt or a question about the applicant's guilt" (Attorney General's submissions at [65], [76] and [79]).
What follows deals with the ASD diagnosis, and its effect raises a doubt or question as to the applicant's guilt; whether it constitutes "mitigating circumstances" is dealt with later in these reasons: see [116]ff, below.
In my view there are two broad issues to consider: first, the effect of the psychiatric/psychological evidence, and whether it raises a "serious doubt or question" about the applicant's guilt (or constitutes "mitigating circumstances"); secondly, the significance - if any - to be attached to the fact that the ASD diagnosis was, as I have found, known by the applicant's then solicitor, prior to the hearing of the appeal in the District Court.

[17]

The effect of the ASD evidence

As earlier noted, the applicant submitted that the fact he "repeatedly followed, watched or photographed children did not strengthen the case against him because one of the features of the applicant's ASD is stereotypical and repetitive behaviours" - thus it was argued that the characteristics of ASD, and the inferential reasoning that applies to tendency evidence, "did not have application in this case". Further, it was submitted that the applicant "did not understand that his conduct was likely to cause fear in the minds of the complainants because he lacked the social skills to recognise this … he lacked the mens rea to permit the evidence to be used for tendency purposes" (applicant's submissions at [67]).
It should be noted that - in aid of the submission that the fact that the applicant "repeatedly followed, watched or photographed children" did not strengthen the case against him, because one of the features of the applicant's ASD is "stereotypical and repetitive behaviours" - the applicant relied on general comments that were contained in a report from Ms Raue (report dated 5 April 2019). However, in later submissions the applicant only relied upon the report to the extent that Ms Raue's ASD diagnosis was consistent with other opinions expressed (applicant's reply submissions at [9]). The absence of the evidential basis for the submission - where no other evidence to support that submission was identified in any other submissions made by the applicant - denies it acceptance.
In any event, even if that were not so, there are other difficulties with the submission which stand against its acceptance, and inform why I do not accept it: 1. The reference in Ms Raue's report to "Stereotyped or repetitive behaviours", was within the part of her report dealing with the applicant's 'Diagnostic Evaluation', and is expressed in extremely general terms. The 'Criteria' was expressed as "Stereotyped or repetitive behaviours" and in the section dealing with "Details", the following was recorded: "History of repetitive behaviours" and "Stereotyped/repetitive language". I am not prepared to relate (nor accept) these general comments as supportive of the fact that the applicant's conduct identified - that is, as referred to in the applicant's submissions - were manifestations of the applicant's ASD. 2. At a minimum, as the applicant ultimately acknowledged in submissions, Ms Raue did not obtain any history about the 2013 offending (nor the detail of it), as I have previously noted. Nor was she asked to express an opinion upon whether, assuming that the applicant "repeatedly followed, watched or photographed children", that was a characteristic of the applicant's ASD. Again, I am not prepared to accept these general comments in the report as supportive of the applicant submissions in those circumstances. 3. It is unclear, from the terms of the report, whether the "evaluation" (and what the submissions sought to rely upon) rests upon self-reporting by the applicant or was derived from what Ms Raue was told by one or other of the applicant's parents (who were both interviewed by her). 4. As the Attorney General pointed out in its submissions, the report specifically states that it was not to be used for medico-legal purposes - thereby emphasising that the intent of the report was for a different purpose (viz., diagnosis and treatment) rather than use in legal proceedings, such as the present application. (Indeed, the applicant, in his reply submissions at [9], essentially withdrew any submissions based Ms Raue's opinion, except in relation to diagnosis and treatment).
The applicant next relied upon the opinions expressed in the reports from Mr Borkowski dated 31 January 2022 and 18 August 2022. As I noted earlier, see [45], above, the applicant specifically eschewed reliance upon the opinions expressed in Mr Borkowski's reports before that time - except as confirmation of the diagnosis - and, in relation to those reports, accepted that none of them refer to the offences the subject of this application.
In relation to the report dated 31 January 2022, the applicant particularly relied upon the following matters: 1. the applicant had "frequently expressed difficulty in understanding how his actions may cause concern for others" (report, page 4); 2. the applicant continued "to grapple with what was 'wrong' with his behaviours" (report, page 4); and 3. the applicant was pre-occupied "with the physical appearances of young people … which again is a function of his diagnosed condition" (report, page 4).
Furthermore, the applicant relied upon the fact that Mr Borkowski did "not believe [the applicant's] intentions at the time of the offences were to cause fear or physical harm for the victims, insofar as his diagnosed condition significantly impairs his ability to understand the perspective of others, and therefore he was likely unaware that his behaviour may have affected the victims in any way" (report, page 4).
In relation to the report dated 18 August 2022, the applicant relied upon two matters contained within that report. The first matter was that the applicant "maintained the attitude that others were unaware of what he was doing, and as such he did not believe his actions would have had any impact on the victims, and he was unable to conceive how his behaviour was causing harm to anyone" (report, page 3). The second matter was Mr Borkowski's opinion that he had taken into account that the applicant had acknowledged to Dr Seidler (see [47], above) that the victims may have been "upset, confused or potentially even frightened by his behaviour": as to that acknowledgement, Mr Borkowski (report, page 4) said that during the course of the applicant's treatment with him … at times he may verbally agree or acknowledge something if it is put to him, but in spite of those verbal acknowledgements, it has been continually apparent that [the applicant] has significant difficulty in understanding the perspective of others, or insight as to how the behaviours he engaged in may have impacted on others.
It is assumed - the submissions did not go on to expressly identify the specific finding that was sought based upon this evidence - that the evidence was in aid of the ultimate submission that the applicant did not understand his conduct was likely to cause fear in the minds of the complainants, due to the lack of social skills that he had, and therefore he lacked the mens rea for the offences. The applicant argued that the 'opinions' expressed by Mr Borkowski were based upon all relevant "facts and information", involved discussions with the applicant on "the offending conduct", and the opinions expressed were "properly based on evidence rather than being based on a symptom (sic) ASD" (applicant's reply submissions at [8]).
I do not accept this submission, and I am not satisfied that there is a doubt or question as to the applicant's guilt. That is for the following reasons. First, Mr Borkowski's opinions do not create a doubt or question as to the applicant's guilt. Secondly, the other medical evidence - including the histories contained in those reports, and the opinions expressed in them - do not create a doubt or question as to the applicant's guilt. Thirdly, the other material that is available - specifically letters or notes prepared by the applicant - do not create a doubt or question as to the applicant's guilt.

[18]

Mr Borkowski's reports

First, contrary to what was submitted, I do not consider that the evidence of itself from Mr Borkowski is such as to create a doubt or question about the applicant's conviction.
In relation to the matters expressed in Mr Borkowski's report dated 31 January 2022 (see [85(1)]-[85(3)], above), although the opinions expressed by Mr Borkowski should be understood as directed to the applicant's insight into his behaviour - and its impact on others - it is expressed in language that, in my opinion, is not supportive of the submission that the applicant lacked the "mens rea" for the 2013 charges. For example, Mr Borkowski noted that the applicant had frequently expressed "difficulty in understanding how his actions may cause concern for others". In my view that evidence falls well short of suggesting that the applicant could not - or did not - know that that the conduct underpinning the 2013 charges was likely to cause fear in the victims for the purposes of s 13(3) of the CPDV Act. It is not expressed in terms of complete lack of insight or complete inability to understand. A "difficulty" in understanding does not equate to an inability to understand, in my view.
The ultimate opinion expressed by Mr Borkowski - to the effect that he did not "believe" that the applicant's "intentions … were to cause fear or physical harm for the victims - rested upon the fact that the ASD diagnosis "impaired" the applicant's ability to understand the perspective of others and that it was "likely" that the applicant was unaware that his behaviour may have affected the victims. Again, this evidence, in my view, falls well short of demonstrating that the applicant could not - or did not - know that the conduct underpinning the 2013 charges was likely to cause fear in the victims. Again, it is not expressed in terms of complete lack of insight or complete inability to understand. In respect of his opinions, generally, it is apparent that Mr Borkowski did not specifically interview the applicant nor undertake any direct questioning of the applicant in connection with the 2013 charges in order to express the opinions that he did - albeit that I recognise that Mr Borkowski drew upon, in general terms, what had been discussed with the applicant during the course of the consultations. In my view, that significantly undercuts the weight of this evidence, in any event.
I turn now to address the matters relied upon in Mr Borkowski's report dated 18 August 2022.
The first matter relied upon was that the applicant, in effect, was "unable to conceive how his behaviour was causing harm to anyone". (Put simply, this statement was made essentially because the applicant considered that if the victims were unaware of him secretly filming them, then it could not cause harm). In my view, read in context, this statement records what had been expressed by the applicant to Mr Borkowski, but, it does not demonstrate that the applicant could not - or did not - form the requisite intent. That is because Mr Borkowski recorded that this belief of the applicant was based upon the applicant's "attitude that others were unaware of what he was doing, and as such he did not believe his actions would have had any impact on the victims". Properly understood, therefore, it says nothing about whether the requisite mental element for the 2013 charges was, or could be, present. I also observe that it is not an element of the offence for the prosecution to prove that the person alleged to have been stalked or intimidated "actually feared physical or mental harm": s 13(4) of the CPDV Act.
The second matter relied upon was Mr Borkowski's opinion that the applicant had "significant difficulty" in understanding the perspective or others, or insight as to how his behaviour may have impacted others. This opinion is expressed in similar language to the opinions in the 31 January 2022 report, and the limitations of that evidence, and why I do not accept it applies here: see [91]-[92], above.

[19]

The other medical evidence

Secondly, I do not consider that assessing whether a doubt or question as to the applicant's guilt, in the way argued by the applicant, can be undertaken merely on the basis of Mr Borkowski's opinions. Rather, as the Attorney General submitted, it is necessary to consider the other 'medical' evidence available in order to resolve whether a doubt or question as to the applicant's guilt is apparent. Having undertaken that task, I am unpersuaded that there is such a doubt or question as to the applicant's guilt. Specifically, this includes the following medical evidence: 1. Dr Seidler's report dated 7 February 2014. I have earlier set out the relevant parts of Dr Seidler's report: see [46]-[47], above. In my view, as the Attorney General submitted, this is a significant report because Dr Seidler was retained by the applicant's then solicitor to provide a report in connection with the 2013 charges and, further, involved Dr Seidler interviewing the applicant on 5 February 2014 - that is, proximate to the offending the subject of the 2013 charges. That examination extended to specifically interrogating the applicant in connection with the 'offending behaviour'. As earlier noted: 1. the applicant acknowledged "that the victims may have been upset, confused and potentially even frightened by his behaviour"; and, 2. the applicant was "also willing to acknowledge that having and using the camera pen was inappropriate". 1. Dr Ahmed's report dated 20 July 2018. That report of Dr Ahmed expressed the opinion that it was "likely [the applicant] has some insight into the inappropriateness of some of his actions or thoughts".
Thus, when considered against the background of this evidence, I am unpersuaded that Mr Borkowski's opinion creates a doubt or question about the applicant's conviction. The "acknowledgement" by the applicant is supportive of the applicant's capacity and ability to form the requisite intent - at a minimum, the "acknowledgement", and what is recorded by Dr Ahmed, is destructive of any suggestion that he could not by reason of his ASD diagnosis have formed the requisite intent, in my view.

[20]

The letters and notes from the applicant

Thirdly, I do not consider that, contrary to what the applicant initially submitted, regard should not be had to the material not in evidence at the hearing but was included - it has been suggested mistakenly - in the applicant's material. No reason was advanced to justify, or explain, why it was not capable of consideration. In my view, it is both relevant, and capable of consideration on the application. The applicant next submitted that if the material was to be considered, it needed to be considered, amongst other matters, with Mr Borkowski's opinions (applicant's reply submissions at [11]). That is plainly so.
The Attorney General drew attention to various letters or notes prepared by the applicant (contained in Exhibit JHT-2, page 122) including: 1. When he was confronted by police at the Sydney International Regatta Centre on 26 January 2010. On that day, the applicant decided to seek some shade under a tree, where a young family was standing. The applicant then described the following events: I was by myself. I glanced towards the kids of the family for a few seconds. Then I looked towards the father and he seemed concerned that I was looking at them, or standing near them. As soon as I make eye contact with the father, I turn the other way … I decide that I don't really feel comfortable standing there near them so I slowly start to walk away … But I was not absolutely sure whether the father was concerned with me, so as I walk away, I decide that I will quickly turn back around for a second glance as I walk away and I am able to confirm it, I was right as I notice both the father and the mother watching me as I walk away. And when I find another place to rest, I turned back towards them, and they are still looking at me, and are looking concerned. About half an hour later, about five or six police officers surround me … And tell me that a mother has just made a complaint that I was looking at her kids … 1. When confronted by police at Jamieson Park on 19 June 2010. On that day the applicant was sitting in his car watching soccer, when he took some photographs on a mobile telephone. The applicant was approached by a person, and thereafter he did not take any more photographs, and he put the mobile phone away. The applicant then records the following: I stayed where I was, nobody did confront me, although I did notice a lady walked past and made by the contact with me and she did look concerned. I then thought to myself that I wish I had not taken the photos as I began to ponder what people who saw me taking the photos might think I noticed some people walking past and look in at the as I sat in my car, I did not think much of it … I did notice some people sitting in the car beside mine, and I felt that they kept looking at me … so I decided to move my car to another spot …. [Later] I heard a tap on the window [and] a police officer was motioning that need to wind my window down … the policeman said to me that he received reports from numerous people that I have been sitting in my car taking photos of the children … I felt a wave of guilt and I panicked and lied to the policeman as I thought that I might get into trouble. I told the policeman that I did not take any photos and that I did not have a mobile phone or camera … The officer looked through them, he was concerned that I lied to him and that I had taken photos of minors without their consent … I had perhaps wrongfully taken the photos, although the photos I had taken would never stand up in a court, we both knew that, as they lacked substance, and the evidence required by any means for him to be able to call me a paedophile. The detective was trying to make more out of the photos then (sic) there was. He had nowhere to go, he was barking up the wrong tree with me and I knew it. I had done something silly by taking the photos on the phone, and then even sillier by lying about it to the police officer, these are things that I wish I had not … done. 1. In a letter dated 4 June 2012 in connection with his employment, the applicant wrote: I feel as though I am living a nightmare. I have taken photographs at a children's soccer game and this was not a good thing to have done. I did not think it would have been that big of a deal at the time. It was stupid to take the photos. I am not going to take any more photographs at a children's sporting event ever again. I consider this as a steep learning curve, in the way that I have been perceived as taking the photographs. … On 19 June 2010 … Police nearly lectured me about taking photographs of children, that I should not do it due to how this may be perceived by people. … As far as I am concerned, police lectured me about taking photos at children's sporting events, so I will no longer take photos at children's sporting events.
The applicant submitted that it should be inferred, from this conduct and the conduct underlying the 2013 charges, that the applicant did not know that his conduct was likely to cause fear in the minds of the children. I do not accept that submission. Rather, in my view, what is recorded evidences an awareness of the potential for the behaviour - being, watching and photographing children - to cause at least concern to others based upon their perception of the applicant's behaviour and that it was the wrong thing to do, as the Attorney General submitted. It also consistent with the medical evidence in the case (in particular what is recorded in Dr Seidler's report) - viz., that the applicant had some insight into the offending conduct, and how that may be understood by the victims. This material, in my view, is consistent with the applicant having the capacity and ability to hold the requisite intent for the purposes of the 2013 charges.

[22]

The appeal to the District Court

The appeal to the District Court was, as I have earlier noted, brought pursuant to s 11 of the CAR Act. In connection with an appeal against conviction, that is to be by way of rehearing on the basis of the evidence given in the Local Court proceedings (except as provided by s 19 - not presently relevant): s 18(2) of the CAR Act. Fresh evidence may be given on appeal, "but only by leave of the District Court if the court is satisfied that it is in the interests of justice that the fresh evidence be given": s 18(2) of the CAR Act.
Section 4 of the CAR Act defines 'fresh evidence': "in relation to appeal proceedings, means evidence in addition to or in substitution for the evidence given in the proceedings from which the proceedings have arisen". There is, to my mind, no doubt that the evidence - being essentially the report from Dr Sawle or evidence relating to the ASD diagnosis more generally - satisfied that definition. Moreover, it is difficult to conceive why the interests of justice would not favour the reception of that "evidence" in light of the fact that the ASD diagnosis was made in 2016 and went to the question of the "mental element" of the offence: Landsman v The Queen (2014) 88 NSWLR 534; [2014] NSWCCA 328 at [69]. In my view, it plainly would be in the interests of justice for that fresh evidence to be received, and I consider that to be the probable finding if leave had been sought to adduce that evidence in the District Court.
Yet the report was not deployed in the appeal to the District Court at all. There is no evidence, on the current application, directed to why that was so. Generally speaking, an accused is bound by the way the trial is conducted by his legal representatives: R v Birks (1990) 19 NSWLR 677, 685. The applicant's submissions did not suggest that there was anything in the conduct of his legal representatives that warranted a departure from this general principle.
Thus, the position can be summed up - and I find it to be - as follows: (a) the ASD diagnosis was made by Dr Sawle, and a report was prepared by Dr Sawle following that diagnosis, after the Local Court proceedings and sent to and received by the applicant's solicitors at that time; (b) the applicant's solicitor was aware of the ASD diagnosis in June 2016 via the report from Dr Sawle; (c) the report was obtained in connection with the applicant seeking bail in the Local Court for the 2016 charges; and, (d) despite the availability of that report, and the availability, in any appeal to the District Court from his conviction, for fresh evidence to be given on appeal, subject to leave of the District Court, the applicant did not use - or seek to use - that report in the appeal to that Court.

[23]

An appeal to the Court of Criminal Appeal

Here, there being no suggestion that there has been an error on the part of either the Local or District Court, the only ground of appeal available, if the matter was referred to the Court of Criminal Appeal, would be that there had been a miscarriage of justice - because the ASD evidence was not before the Local or District Courts, such that "something occurred or did not occur" in the trial that deprived the trial of its fairness: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [30]; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [54].
Although the rules relating to new and fresh evidence sought to be adduced on appeal do not apply to materials submitted in support of this application, it does not follow, in my view, that those rules and principles are irrelevant. On the contrary, in my view, they are relevant matters to consider on the question of the utility of any referral to the Court of Criminal Appeal. A referral to the Court of Criminal Appeal would be of little utility if it was such that any evidence upon which that appeal would turn was not admissible. It is necessary to consider, therefore, whether the Court of Criminal Appeal would receive the further material - notably, the evidence from Mr Borkowski (or, indeed, all the medical evidence upon which the applicant sought to rely, or refer to, in the current application).
If the matter is referred to the Court of Criminal Appeal under s 79(1)(b) of the CAR Act, the "Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly": s 86. On appeal, s 12(1) of the Criminal Appeal Act confers on the Court the power to receive further evidence "if it thinks it necessary or expedient in the interests of justice". The power to receive further evidence, however, is not "freestanding … but one which must be exercised having regard to the particular ground of appeal": Xie v R [2021] NSWCCA 1 at [437].
In my assessment, the evidence relied upon by the applicant would not have entitled him to an acquittal - the evidence did not demonstrate innocence or that his guilt was not established beyond reasonable doubt: Ratten at 518 and 520; Mickelberg v The Queen (1989) 167 CLR 259, 301; [1989] HCA 35; Xie at [433]-[434]. The evidence relating to the diagnosis, and features that accompanied that disorder, would, however at least be relevant to the applicant's conduct said to give rise to the 2013 offences (specifically, given the way it was conducted below, it would be relevant to the mental element of the offences).
In those circumstances, in order for this evidence to be received on appeal, the applicant would need to demonstrate, as explained by Bathurst CJ in MRW v R [2011] NSWCCA 260 at [46], three matters: First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial …; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant.
For present purposes it can be assumed that the second and third matters are established. What follows addresses the first matter - viz., whether the evidence is "fresh", not simply "new", evidence.
Put simply, new evidence is evidence which could have been led at trial, but was not: it is evidence that was either available or, discoverable with reasonable diligence: Ratten at 516-517. On the other hand, fresh evidence is of a different kind, being evidence that was not available at trial or could not have been available with the exercise of reasonable diligence: Ratten at 516-517; Lawless at 674-675; Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44 at [28]. Where the evidence is new evidence, a miscarriage of justice does not arise simply because evidence is available, or could with reasonable diligence have been discovered, but is not called. At least one reason for that is because a criminal trial is adversarial, and the parties are free to determine what evidence they will (or will not) call: Ratten at 517; Lawless at 675. Further, there may well have been a very good reason, and forensic decisions that explain, why the evidence was not called at trial (or, more relevantly here, on appeal to the District Court).
In my view, there is no doubt that the evidence sought to be relied upon is simply new evidence, not fresh evidence. That is because the applicant was diagnosed with ASD by Dr Sawle in June 2016 and, as the applicant accepted, the existence of that report supports an inference (which I have drawn) and a finding (that I have made) that the applicant's solicitor was aware of that diagnosis. That report also drew attention to some of the symptoms of that condition, and how it impacted upon the applicant.
In those circumstances, there is no basis to conclude that the applicant would be placed to have this evidence admitted on any appeal. To my mind that is a further - discretionary - matter that tells against the matter being referred to the Court of Criminal Appeal: absent that evidence, any appeal against the conviction on the basis that there had been a miscarriage of justice would inevitably fail.

[24]

Doubt or question about mitigating circumstances: the ASD diagnosis

The applicant submitted that the availability of an application under s 32 of the MHFP Act was a 'mitigating circumstance' within s 79(2), "and a further basis for the case to be referred to the Court of Criminal Appeal" (applicant's further submissions at [8]). The applicant further argued that the absence of "evidence of [the applicant's] cognitive impairment being placed before the Court" meant that he "lost an opportunity for his conduct to be dealt with therapeutically under the MHFP Act rather than according to law" and also lost an opportunity to have the Court "consider not proceeding to a conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999" (NSW) ('CSPA') (applicant's reply submissions at [26]).
The submission in connection with s 10 of the CSPA is dealt with separately in the next section of these reasons: see [123], below. What follows deals with the argument that there was a "lost opportunity" in connection with the MHFP Act that was a "mitigating circumstance".
Before dealing with the substance of the applicant's submission, a number of matters should be noted. First, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into force on 27 March 2021 and repealed the MHFP Act. At the time that the applicant was convicted and sentenced, and when the matter was before the District Court, the repealed Act remained in force. Neither the applicant, nor the Attorney General, suggested anything turned on this. Secondly, the applicant's submissions did not seek to distinguish between the respective courts that dealt with the 2013 charges. Thirdly, the applicant's submissions did not address - or even refer to - Dr Sawle's report and the diagnosis made in June 2016. Fourthly, the applicant submissions did not seek to address what constitutes "mitigating circumstances", or refer to any authorities that might have interpreted that phrase.
In light of the way that the matter was argued by the applicant (that there was a loss of opportunity to seek other orders based upon the ASD diagnosis), it is unnecessary, to examine the reach of this phrase, other than to note that it extends to circumstances that have the potential to lower a convicted person's sentence: Sinkovich at [28]-[30], [80]; Buttrose at [36]. I will proceed on the basis that a potential "loss of opportunity", in the way advanced, can potentially constitute "mitigating circumstances".
Nevertheless, even proceeding on that footing, I do not accept that the applicant lost an opportunity to have the charges dealt with under the MHFP Act. That is because, although the diagnosis was not made until after the Local Court proceedings had been finalised, once the diagnosis was made in June 2016 (and there was evidence at that time about the way the disorder manifested in the applicant's behaviour) no attempt was made to have that evidence adduced before the District Court in connection with the conviction or sentence appeal.
Thus, contrary to what was submitted, the applicant had the opportunity to have the 2013 charges dealt with under the MHFP Act: it was open for the applicant to seek leave to have this material put before the District Court in connection with his conviction appeal (see [103]-[104], above) and in connection with his sentence appeal - albeit, in connection with any sentence appeal, there was no requirement to obtain leave of the District Court to adduce fresh evidence (see [136], below). Furthermore, although the applicant made no submissions about this (notwithstanding that the submissions assumed it), it is also clear that there was no issue about the District Court exercising the power conferred by s 32 of the MHFP Act. That is because, following the lodging of an appeal against conviction and sentence by the applicant, s 28(2) of the CAR Act enabled the District Court, in an appeal against conviction and sentence, to exercise the power conferred by s 32 of the MHFP Act: Huynh v The Queen (2021) 105 NSWLR 384; [2021] NSWCCA 148 at [29]-[33].
To sum up. The true position (I find) is that, whilst the ASD diagnosis was made after the applicant had been convicted and sentenced in the Local Court, the applicant had, by filing a conviction and sentence appeal to the District Court, an opportunity to place evidence before the Court of the ASD diagnosis (and any other fresh evidence directed to that issue generally). That opportunity was simply not acted upon: the decision not to seek to have those charges dealt with in that way - and to use the report from Dr Sawle and whatever other evidence that might have assisted the applicant on any application under s 32 of the MHFP Act - was a decision taken by him, or taken on his behalf by his legal representatives.

[26]

Introduction

The applicant further submitted that he lost an "opportunity" to have the 2013 offences dealt with under s 10 of the CSPA - and accordingly seeks to have the sentence referred to the Court of Criminal Appeal (applicant's reply submissions at [26]). That is appropriately considered as a sentencing question because the engagement of that section is a finding that a person is "guilty of an offence": s 10(1) of the CSPA.
As I have earlier noted, although s 79(2) does not refer at all to an enquiry into a sentence, it is beyond doubt that there may be: Sinkovich at [30].
The submissions for the applicant described the applicant's appeal "against the convictions and sentences", as being dismissed, with the "penalties imposed in the Local Court" confirmed (applicant's submissions at [4] and [21]). Those submissions are accurate, but incomplete: the applicant did not proceed with the sentence appeal following the dismissal of the conviction appeal (transcript of proceedings dated 8 September 2016, page 9). That is apparent from the following: HIS HONOUR: We now turn to the appeals on sentence. GHABRIEAL: Does your Honour want me to raise anything? HIS HONOUR: What are you submitting on sentence please? GHABRIEAL: Well your Honour if the finding is that the appeal against conviction fails then I don't wish to be heard in relation to the appeal against sentence, I think the sentence is appropriate. It was an all grounds appeal but my understanding is that it was only base[d] on the conviction, it was an all grounds on that basis but if your Honour finds against the appellant on the conviction then I think it needs to go away in relation to the sentence. MICHALKO: For the appellant's benefit, the sentence was s9 bonds in respect of each matter or two years and fined $800 in relation to each matter. HIS HONOUR: That's why I was asking you the question, whether or not you wish to say anything about that. GHABRIEAL: I think the appellant will agree that the appropriate sentence in the Local Court.
Again, as with the applicant's submissions made in connection with the ASD diagnosis being "mitigating circumstances", the applicant submissions made no reference to the applicant being diagnosed with ASD in June 2016.
The applicant's submissions invite consideration of the course of proceedings in the District Court, and the "opportunity" that the applicant had to adduce the evidence about, and in connection with, his ASD diagnosis in that Court. Before doing so, it is important to address a threshold issue: namely, the fact that although the applicant lodged an appeal against sentence, the applicant did not proceed with that appeal following dismissal of the conviction appeal.

[27]

The appeal against sentence was abandoned by the applicant and the sentence accepted to be appropriate

I have already addressed the factual position in connection with the applicant's appeal against sentence: it was withdrawn. To be clear I do not accept, as the applicant submitted, that it is correct to characterise what occurred in the District Court as simply resulting in the applicant's sentence being "confirmed".
In those circumstances, it is necessary to consider s 79(3)(a)(iii). The terms of that section have previously been set out, but it is convenient to note that (relevantly) it is in the following terms: (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) … (ii) … (iii) … (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
It is clear that the applicant had, and exercised, a right to appeal the sentence imposed upon him by the Magistrate, and equally clear that the applicant's legal representative withdrew that appeal following the unsuccessful conviction appeal.
In those circumstances, therefore, I refuse to "consider or otherwise deal with" this application in connection with the sentence: s 79(3)(a)(iv). I consider the fact that it was withdrawn to be a powerful, and decisive, consideration against any referral: I refuse the application on this ground.
I also refuse to "consider or otherwise deal with" the application to refer the sentence to the Court of Criminal Appeal for a further reason: the applicant's legal representative, following dismissal of the conviction appeal, expressly accepted that the sentence was "appropriate" and, following this and upon being invited to address the sentence appeal by the District Court Judge, again confirmed that the applicant agreed "that the appropriate sentence [was imposed] in the Local Court".

[28]

The sentence appeal to the District Court: no loss of opportunity

The conclusions that I have reached (see [131]-[132], above) are sufficient to refuse the application in connection with the applicant's sentence. Nevertheless, I do not accept, as the applicant argued, that he lost any opportunity to have the ASD diagnosis dealt with as a relevant sentencing matter. Rather, in my view, as I next explain, the applicant had such an opportunity, but did not exercise it.
In order to explain why it is that the applicant had an opportunity to adduce the ASD "evidence" in connection with his sentence, it is necessary to outline the statutory scheme that applied to the appeal lodged by the applicant.
The applicant had a right of appeal to the District Court in connection with his conviction and sentence: s 11 of the CAR Act. That right was exercised by the applicant.
An appeal against sentence is by way of rehearing of the evidence given in the Local Court proceedings, "although fresh evidence may be given in the appeal proceedings": s 17 of the CAR Act. Thus, in relation to both conviction and sentence appeals, 'fresh evidence' may be given on appeal. But there is an important difference: in connection with a sentence appeal, s 17 does not require leave of the District Court before the fresh evidence is adduced.
Having regard to the terms of ss 4 (see [104], above) and 17 of the CAR Act, the report from Dr Sawle was clearly 'fresh evidence', and therefore admissible. So too would any other evidence directed to the ASD diagnosis, or the way in which that condition impacted upon the applicant.
No attempt was made to adduce that evidence - nor any other evidence about or relating to the ASD diagnosis - in the appeal proceedings in the District Court. Thus, contrary to what the applicant argued, the applicant did not lose any opportunity - a decision was taken by the applicant, or on his behalf by his legal representatives, not to seek to adduce that evidence in connection with his sentence appeal. Furthermore, as I have noted, the applicant's legal representative (a) conceded the appropriateness of the sentence imposed and (b) withdrew the appeal in connection with the sentence. These matters are separately, and collectively, destructive of any suggestion that there was a loss of opportunity in the way argued by the applicant.
There is a further, but separate, matter that tells against a referral on sentence: the improbability that the material relied upon to justify a referral to the Court of Criminal Appeal would be admissible on any sentence appeal to that Court.
Any appeal against sentence would require leave and, ordinarily, demonstration of error: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10] ('Betts'). Here, no error could possibly have arisen having regard to the conduct of the matter in the District Court (see [106], above) and the withdrawal of the appeal and concession about the "appropriateness" of the sentence imposed (see [130]-[132], above). In any event, even if leave were granted, it would be necessary to demonstrate that the evidence was fresh and thus fall within an exception to the accepted constraints upon sentence appeals: Hoang v The Queen [2020] NSWCCA 324 at [16]-[22]; Toller v The Queen [2021] NSWCCA 204 at [21]-[23]. Or otherwise in that the admission of the evidence is necessary to avoid a miscarriage of justice: Betts at [10].
It is difficult to accept that, in the circumstances that I have outlined, the ASD evidence could be received: it is not fresh evidence. The interests of justice, in my view, also stand against its admission on any appeal.
In those circumstances, therefore, I refuse the application to refer the sentencing of the applicant to the Court of Criminal Appeal.

Baini v The Queen

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