Schmidt J, Adamson J, Ms P, Following Adamson J, Harrison J
Source
Original judgment source is linked above.
Judgment (2 paragraphs)
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Judgment
Ms Boege has applied for another inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) into her "AVO Conviction", which she explained in her April 2017 submission was an application dealt with by O'Connor LCM in January 2000. Ms Boege also makes reference to what transpired on her unsuccessful appeal to the District Court and asks for her assault conviction to be reviewed.
Ms Boege was convicted of having assaulted her former husband in October 1999 at Bega, for which she was fined $500. An apprehended violence order was then made for the protection of Mr Boege, in proceedings in which she was legally represented. Her appeal from that conviction failed.
Ms Boege has made four previous applications, each of which were dismissed by the Court: Boege v Attorney General of New South Wales [2016] NSWSC 1469; Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) [2016] NSWSC 729; Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925; and Application by Petronella Boege for an inquiry into conviction and sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW), Adamson J, 27 March 2012, unrep).
Following Adamson J's decision in 2012, Ms Boege also unsuccessfully petitioned the Governor of New South Wales, asking for a review of the conviction pursuant to s 76 of the Act.
In Boege v Attorney General of New South Wales, Harrison J refused Ms Boege's fourth application under s 79 of the Crimes (Appeal and Review) Act, observing:
"12 This matter has previously and obviously been dealt with under Part 7 of the Act. Three separate applications have been considered by three separate Supreme Court judges who all reached what amounts to the same conclusion. For what it is worth, I have revisited all of those decisions. The conclusions reached in each case are unexceptionable. I would also have reached the same conclusion as the judges who dealt with them.
13 Nothing promoted or provided by Ms Boege in the present application is new. I am completely satisfied that there are no special facts or special circumstances that justify the taking of further action. In the circumstances I refuse to consider or otherwise deal with this application. It is clearly frivolous and vexatious and a monumental waste of this Court's time. In any other litigious context it would arguably amount to an abuse of the process of the Court."
These are not judicial proceedings, but the Court may consider the written submissions made on behalf of the Attorney General on 19 May 2017, to which Ms Boege replied on 1 June: s 79(4). The Attorney contends that this application should also be dismissed under s 79(3).
Section 79(3) provides:
"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.
Ms Boege referred in her submission to Wilson J's conclusions in Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001. Her offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW) was there dealt with, her Honour observing:
"61 It is noted that this application has been dealt with on the papers, and the parties did not make submissions on the aspect of the matter upon which I have determined the question of the legitimacy of the orders of Goldring DCJ. The focus of both the applicant and the Crown was on the effect of the absence of a record of the orders on their legitimacy, in light of the "fresh" evidence that established that the orders were clearly pronounced in court.
62 For that reason, and to obviate any unfairness to the applicant, I have decided to consider the applicant's s 78 application as if the orders of Goldring DCJ were valid, as the applicant contends they are, and the Crown concedes they could be.
63 That necessitates consideration of the evidence that was before the Local and District Courts on the question of the applicant's guilt of the charge, and the possible effect on the conclusions of the respective courts about that evidence, having regard to the inability of the applicant to test the evidence in the way she asserts she should have been permitted to do.
64 To that end, I have considered the evidence that was before both courts, in transcript.
65 Like Adamson J in Application by Petronella Boege for an inquiry into conviction and sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, I am unable to conclude that the application raises any doubt or question as to the applicant's guilt, or as to any mitigating circumstance in the case or as to any part of the evidence in the case."
Ms Boege now advances complaints as to evidence which she claims "was not put before the Appeal"; what transpired at the hearing; and what Mr Boege said in his statement, as well as what Senior Constable Van der Hout and she each said. Ms Boege also denies having struck her husband, as was found in the Local Court.
Ms Boege opposed her further application being dismissed under s 79(3), submitting in her reply submissions that her previous applications "do not include that both prosecution witnesses changed their evidence and that the evidence was not put before the District Court." She also contends that she had paid a solicitor to reply to the Crown's submissions on the application dealt with by Adamson J in 2012, but no submissions had been provided.
Ms Boege provided details of what she now contends was evidence which was not tendered. She also explained what she contends were differences in Mr Boege's statement, his evidence in chief and cross-examination.
Ms Boege also refers to Adamson J's observations at [56] that what was relied on did not support the proposition that the evidence was fabricated, but rather that Mr Boege and the Constable had given truthful, independent evidence.
Reference was also made to Harrison J's refusal to consider her third application: Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) at [25] and Harrison J's observations at [12] earlier referred to.
I am satisfied that there is, in the circumstances, no question that both Ms Boege's AVO Conviction and the appeal from the Local Court's decision to the District Court have previously been dealt with, as Harrison J concluded. What is now raised by Ms Boege, on this fifth application, raises no special facts or special circumstances that justify the taking of any further action.
Like Harrison J, I consider that Ms Boege's refusal to accept the rejection of her repeated applications and her pursuit of a fifth application to be frivolous and vexatious, a monumental waste of this Court's time and in any other litigious context, unarguably amounting to an abuse of the process of the Court.
In the result, this application must also be dealt with under s 79(3). The application will accordingly not be further considered.
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Decision last updated: 27 July 2017