Buttrose v Attorney General of New South Wales

Background

1. On 15 May 2012, the applicant was convicted by a jury following a trial before Toner DCJ on 11 counts of sexual assault committed against his stepdaughter over a three-year period when she was 13 to 16 years of age. Those 11 counts included nine counts of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900 (NSW) and two counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act. The applicant's conduct ranged from indecent assault to penile-anal intercourse, penile-vaginal intercourse and fellatio.
2. The applicant was sentenced to an effective sentence of imprisonment comprising a non-parole period of seven and a half years (15 May 2012 to 14 November 2019) with a balance of term of three years expiring on 14 November 2022. The individual sentences were as follows: Count 1: Aggravated sexual intercourse without consent on 31 July 2007 - imprisonment with a non-parole period of 6 years to commence 15 May 2012 and to expire on 14 May 2018 with a balance of term of 4 years to expire on 14 May 2022. Count 2: Aggravated indecent assault between 1 August 2007 and 3 May 2008 - imprisonment for a fixed term of 3 years to commence 15 May 2012 and to expire 14 May 2015. Count 3: Aggravated sexual intercourse without consent on 21 February 2009 - imprisonment for a fixed term of 4 years to commence 15 May 2012 and to expire 14 May 2016. Count 4: Aggravated sexual intercourse without consent on 17 April 2009 - imprisonment with a non-parole period of 6 years commencing 15 May 2012 and expiring 14 May 2018, with a balance of term of 4 years expiring 14 May 2022. Count 5: Aggravated sexual intercourse without consent on 17 April 2009 - imprisonment for a fixed term of 4 years to commence 15 May 2012 and to expire 14 May 2016. Count 6: Aggravated sexual intercourse without consent on 7 August 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire on 14 November 2019 with a balance of term of 3 years to expire 14 November 2022. Count 7: Aggravated indecent assault on 31 October 2010 - imprisonment for a fixed term of 2 years and 6 months to date from 15 November 2015 and to expire on 14 May 2018. Count 8: Aggravated sexual intercourse without consent between 31 October 2010 and 16 December 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire on 14 November 2019, with a balance of term of 3 years to expire on 14 November 2022. Count 9: Aggravated sexual intercourse without consent on 16 December 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire 14 November 2019 with a balance of term of 3 years to expire 14 November 2022. Count 10: Aggravated sexual intercourse without consent on 16 December 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire 14 November 2019 with a balance of term of 3 years to expire on 14 November 2022. Count 11: Aggravated sexual intercourse without consent on 17 December 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire 14 November 2019 with a balance of term of 3 years to expire 14 November 2022.
3. The applicant appealed against his conviction to the CCA and the Crown appealed against the inadequacy of the sentence. The Crown appeal was dismissed on discretionary grounds and the appeal against conviction was also dismissed: TDP v R; R v TDP [2013] NSWCCA 303. Although the applicant was represented by Mr Dhanji SC on the Crown appeal, he was self-represented on his appeal against conviction.
4. No application for special leave to appeal to the High Court was ever filed by the applicant.

Relevant legislation

1. It is necessary to first have regard to the relevant legislation and principles.
2. Section 78(1) of the CAR Act provides: "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."
3. Section 79 of the CAR Act provides: "(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) … (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)." (emphasis added)
4. This Court may refuse to deal with an application such as this if the matters raised have already been fully dealt with, including in a CCA appeal provided that the Court is not satisfied that there are "special facts or special circumstances that justify the taking of further action."
5. As Spigelman CJ observed in Kirk Group Holdings Pty Ltd v Workcover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172 at [5]; 66 NSWLR 151 at 154, Part 7 of the CAR Act has its origins in a legislative scheme that was an innovation in New South Wales. His Honour went on to observe of the predecessor to Part 7 at [8] that "…this is remedial legislation designed to overcome the injustices that sometimes arise in the course of the administration of criminal justice."
6. In determining an application under Part 7 of the CAR Act, the Court is making an administrative decision: Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124]. The relevant principles to be applied in determining an application pursuant to s 78 were considered by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 ("Peter Holland"). His Honour stated the following at [6]-[9]: "[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. [8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. Some Other Features of the Jurisdiction [9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result."
7. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 ("Sinkovich v Attorney General"), Basten JA referred at [64] to the test stated in Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 of whether there is a feeling of "unease" or "disquiet" (referred to by Johnson J above at [6] in Peter Holland). His Honour went on to observe at [65] that "[t]his language does not assist. There is no purpose served by adopting other words than the statutory language of 'doubt or question'."
8. In Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221, Beazley P and Leeming JA observed at [16]: "The precondition to a direction that there be an inquiry or a referral to the Court of Criminal Appeal under s 79(1) is that '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 statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question. That is to say, as Basten JA said in Sinkovich at [26], 'it is the satisfaction of the judge as to the relevant condition which is critical.'"

Preliminary question: should the court refuse to consider this application?

1. The primary submission of the Attorney General is that the Court should refuse to consider or otherwise deal with this application under s 79(3) of the CAR Act as nearly all of the issues raised therein have been fully dealt with by the CCA and as there are no special facts or special circumstances that justify the taking of further action. The Attorney General submits that the applicant exercised his right to appeal to the CCA against his conviction (but not his sentence) and there is no fresh evidence now raised in this application nor anything that could lead the Court to be satisfied that there are special facts or special circumstances that justify the taking of further action.
2. When I first read the application, the submissions relied upon by the Attorney General and the decision of the CCA, I was satisfied that no new arguments were raised and nor were there are any special facts or special circumstances that justify the taking of any further action in this matter. My initial position was that I should refuse to consider the matter under s 79(3) of the CAR Act. When I came to provide my reasons for coming to that conclusion (as I am required to do), I necessarily considered each of the specific complaints relied upon by the applicant. Thus, despite the fact that it was clearly open to me to refuse to consider this application, I have instead considered it and have formed the view that no doubt or question arises as to the applicant's guilt, any mitigating circumstances in his case or any part of the evidence in the case.
3. My conclusion that that no doubt or question arises as to the applicant's guilt is reinforced by the fact that, after defending these charges at trial, the applicant made voluntary admissions to a forensic psychologist prior to his proceedings on sentence and invited the sentencing judge to have regard to his remorse as a mitigating factor on sentence.

The application - the five grounds of review

1. The applicant has prepared his application himself. Attached to it was an affidavit sworn by the applicant on 23 November 2017 explaining the delay in bringing the application. That explanation included the time taken in obtaining the relevant papers and being self-represented. A number of other documents were attached to the application including a copy of a search warrant, a map, a drug analysis report and various other documents from the brief of evidence for trial.
2. The applicant has listed under a heading "Grounds for judicial review" the following five grounds (I do not propose to identify the grammatical and other errors in the application and have instead extracted the relevant portions from the application as they appear therein): Ground 1: The trial and conviction of the applicant are nullities by reason of having proceeded on an invalid indictment. Ground 2: "A miscarriage of justice" by Crown prosecutor misconduct leading to 'unreasonable jury verdict.' A false premise of access to a prescription drug to support the Complainant's version of the s 61J Crimes Act 1900 offence immediately prior and after in Count 1. Ground 3: The Trial Judge erred on a manifestly wrong decision on the admission of evidence the Complainant had support the tablets were given where "she either went to sleep or became unconscious" and roused by the 61J offence occurring. Ground 4: A Constitutional error by the District Court, recording as occurring in sentence, an activity of administering an intoxicant to facilitate sexual assault based on the false premise of access to the intoxicant. Ground 5: Abuse of the Courts process. Where upon the unchallenged evidence within count 1 the legislator provided a greater single or conjoined offence. Upon the same circumstantial evidence the state shows the lesser penalty offence. [emphasis in original]
3. Ground 1 was only partially raised in the appeal to the CCA but is misconceived in any event. Grounds 2 and 3 concern the evidence at trial concerning "green pills", an issue that was considered by the CCA at length, and grounds 4 and 5 concern the sentence imposed. I will deal with these grounds in turn.

Grounds 1-3: no doubt or question about the applicant's guilt

Ground 1 - trial a "nullity" due to defective indictment

1. In support of ground one the applicant has extracted various provisions of the Criminal Procedure Act 1986 (NSW) including s 6 (certain defects do not affect the indictment), s 7 (which includes a definition of an "indictment" as including a court attendance), s 8 (prosecution of indictable offences), s 20 (an indictment may not be amended except with the leave of the court or the consent of the accused) and s 142 (which outlines what is required in a prosecution's notice). In addition, reference is made to the Prosecution Guidelines of the Office of the Director of Public Prosecutions and a number of decisions including the High Court decisions of Mallard v R (2005) 224 CLR 125; [2005] HCA 68 and Grey v R (2001) 184 ALR 593; [2001] HCA 65 and the CCA decision of R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281.
2. The applicant's argument is somewhat difficult to follow but appears to be a complaint that the date range for count 8 in the indictment presented at trial was different to the date range in the court attendance notice in the Local Court and that there was a failure to disclose further statements when the amendments were made.
3. It is unclear on the material before me whether the trial indictment was the same indictment on which the applicant was arraigned when his matter was first committed to the District Court for trial. Although it is dated 7 May 2012 (a few days before the trial commenced) that does not necessarily mean that it differed in its terms to the indictment first presented in the District Court. Leave (or consent) is only required to amend an indictment pursuant to s 20 of the Criminal Procedure Act if an indictment has already been presented in the relevant jurisdiction and amendments are sought to be made after that time.
4. Although the applicant complains about there being two indictments, I have only been provided with a copy of one indictment. The other documents provided include a list of the court attendance notices in the Local Court on which he was committed for trial. The DPP was not prevented from presenting an indictment in different terms to the court attendance notices. Nor is there any obligation to serve additional statements when a bill of indictment is found in different terms to the indictment so long as the overriding duty of disclosure has been complied with. There is nothing to suggest any general breach of this duty. The complainant's lengthy recorded interview was provided to the applicant but it was not put before the jury as it disclosed considerably more criminal conduct than was contained in the indictment.
5. Complaint is made in the supplementary submissions that a "doubt or question" as to the applicant's guilt arises "in the context of a denial of procedural fairness in the circumstances" of his trial arising from breaches of the Crown's obligation under the Criminal Procedure Act in relation to the non-disclosure of "material evidence identifying the essential ingredient of time in count 8". The applicant seems to complain that he was not aware before the trial that the complainant stated that she had attended a party during the time period covering count 8.
6. The applicant appears to be confused about the evidence in support of different counts on the indictment. He made the same mistake in his arguments in the CCA. In both instances, complaint is made that the allegation fell outside the time frame on the indictment. The CCA dealt with this complaint at [91]-[94] as follows: "Ground 6 - An abuse of process by Crown asserting evidence in disparity to complainant. ERISP and trial testimony regarding charges 9 and 10. Ground asserts 31 October to 16 December 2010 to visit Pop in Armidale. From mother's testimony Pop stayed until at least 14 November 2010. The complainant's ERISP "definitely not near Christmas", and trial testimony "end of winter sort of?? (2010)". Ground 9 - It was not open to the jury to convict on charges 9 and 10. The element 11 "that at the time and place" was not proven beyond reasonable doubt. [91] These Grounds of Appeal raise the same issue and can be dealt with together. The applicant appears to have mistakenly referred to Counts 9 and 10 when the Grounds of Appeal are directed to Count 8. [92] The applicant relies upon the contents of the complainant's ERISP in support of Ground 6. The ERISP was not before the jury. As already indicated, there were good reasons why most of the ERISP was not dealt with in cross-examination. The ERISP made it clear that the frequency and extent of the applicant's offending was considerably greater than that encompassed by the 11 counts with which he had been charged. The prejudicial effect for the applicant of the ERISP going before the jury far outweighed any cross-examination benefits which might have been gained. [93] Count 8 identified the time of the offending as between 31 October and 16 December 2010. The particular occasion was identified as a visit to "Pop" in Armidale. The party which Stephanie also attended was on 30 October 2010. Even if, as the applicant submitted, Pop stayed until 14 November 2010 the offending still occurred within the timeframe specified in count 8. [94] It follows that if Grounds of Appeal 6 and 9 refer to count 8 they have not been made out. If they refer to counts 9 and 10 they also fail because of the evidence of Mr Goodhew, who was the owner of the motel at Warialda. His evidence was that the applicant booked a double room in the motel for the evening of 16 December 2010."
7. The CCA found that the incident the subject of count 8 occurred within the timeframe averred in the indictment.
8. The applicant addresses these findings by the CCA in his application in the following terms: "The CCA at [93] had clarified the evidence given at trial that was not disclosed in a required supplementary statement, to the Applicant and the Court with the amended Hardman indictment, i.e, that party on 30 October 2010 and that [S] attended, identified when count eight occurred. The circumstances to defend at trial were unidentifiable. Not obtaining a supplementary statement was an evidentiary prejudicial irregularity. There was a denial of natural justice from raising a defence, i.e. an alibi that was available for some time after the Complainant had revoked the element that was agreed on in the 23 February 2011 ERISP (when this element was revoked is unknown)."
9. In his second submissions the applicant states: "…. When referencing the complainants two served statements or any known statement, the essential ingredient of time within count eight was stated wrongly within the 7 May 2012 indictment, the applicant was tried and convicted upon"
10. These complaints made by the applicant take the matter no further than the findings of the CCA extracted above.
11. There is nothing before me to suggest that the indictment was defective in any way such as to render the trial a nullity. There are no "special facts or special circumstances" that justify the taking of further action identified by the applicant in relation to ground 1.

Ground 2: that the allegation that the applicant had access to a prescription drug before and after count 1 and that the evidence that the complainant fell asleep after taking them should have been excluded

1. These two grounds mirror a number of the grounds dealt with by the CCA at length. They concern a complaint about the admissibility of evidence of "green tablets" at the trial. The application includes portions of the transcript pertaining to this issue. This ground also contains criticism of the Crown Prosecutor and reliance is placed in this respect on Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334. This complaint appears to be that the complainant should not have been permitted to give evidence as to the green tablets and that such evidence should have been excluded under s 137 of the Evidence Act 1995 (NSW).
2. Count one was said to have occurred after the complainant and the applicant had both gone to a Gwen Stefani concert and stayed in a motel room together. The complainant alleged that she had been given tablets by the applicant to swallow before bed and he did not tell her what they were. She fell asleep and when she woke up she found the applicant was on top of her having penile-vaginal intercourse with her: see CCA [8]-[12].
3. The applicant complains that the trial progressed on the basis that he had administered an intoxicant to facilitate a sexual assault. This is not the case. The trial judge had ruled that the only basis on which the tablets were allowed was that he had access to green tablets supporting the proposition that he had given the complainant tablets which went to the complainant's credibility but not whether he had tried to stupefy her.
4. The applicant also complains under ground 2 that a report by Mr Hosking, who was a forensic toxicologist, should have been before the jury. Mr Hosking had noted that there were no drugs detected in any of the complainant's hair segments that he analysed. His report was in fact tendered by the Crown without objection at the trial and become exhibit G.
5. These complaints were dealt with in detail by the CCA at [46]-[82]. It is necessary only to extract [70]-[73] and [75]-[79] to establish why these complaints are misconceived: "[70] The applicant's submissions overlap to a large extent. Underlying Grounds 1, 3, 4 and 5 is the submission that the Crown should have placed before the jury an expert report setting out the pharmacological ingredients of Hypnodorm and also setting out its effects. His submission is that had this evidence been before the jury, it would have enabled defence counsel to substantially discredit the complainant. The applicant also wishes to place this evidence before the Court in the appeal. The basis for the tender is that this evidence should have been called by the Crown at trial and if it were placed before this Court, it would demonstrate the unreliability of the complainant. [71] That submission fails on a number of bases. Defence counsel successfully objected to the Crown adducing any evidence as to the makeup and identity of any tablets given by the applicant to the complainant and as to their possible effect upon her. This was the result of the ruling made by the trial judge, following the voir dire on that issue. To accept the applicant's submission would be contrary to the stance adopted by the applicant at trial and should not be allowed. [72] In any event, the premise on which the submission is based is not made out, i.e., that further scientific information would strengthen the position of the applicant and discredit the testimony of the complainant. The evidence before the jury was that Exhibit G, the toxicology report, showed that none of the specified drugs had been found in the hair of the complainant, which had been tested. However, the testing only covered the period March 2011 back to August 2010. So far as it went, that negative result favoured the applicant. [73] Because of the limitations in the testing (the hair length tested), a result for the period before August 2010 could not be obtained. In other words, the toxicology test results said nothing about whether Hypnodorm had been given to the complainant between July 2007 (the incident giving rise to count 1) and August 2010. There was no evidence at trial of any green tablets/ Hypnodorm being given to the complainant between August 2010 and 16 December 2010 (being the last date on which there was any sexual contact between the complainant and the applicant). Accordingly, evidence of the type identified by the applicant, whether it was before the jury during the trial or before this Court, would not advance his case. ……. [75] Finally, the applicant's submission assumes in his favour that the toxicology report, Exhibit G, demonstrated the absence of any Hypnodorm in the complainant's hair. That is not necessarily so. Rohypnol is the generic brand name for Hypnodorm. The drug itself is called Flunitrazepam. That is not one of the drugs for which the complainant's hair was tested in the toxicology report. It is not known whether, if the complainant's hair had been tested for Flunitrazepam, it would have produced a positive result. [76] It follows that the evidence at trial favoured the applicant. It was never suggested at trial that the toxicology report might not have been capable of detecting Hypnodorm. Further testing and further scientific evidence would not have assisted the applicant's case and may well have weakened it. [77] Fundamental to these Grounds of Appeal is the proposition that further scientific evidence would have enabled the complainant's credibility to be successfully challenged if she had been cross-examined as to what she said about tablets in her ERISP. There were, however, significant dangers for the applicant arising from such cross-examination. In her ERISP the complainant had described regular sexual intercourse with the applicant, often several times per week over three years, which on many occasions was accompanied by the applicant giving her tablets. Cross-examination as to what the complainant said in her ERISP concerning tablets would have only emphasised to the jury the frequency of the applicant's offending. The prejudice for the applicant associated with such an approach far outweighed the possible gain. [78] There was no obligation on the part of the Crown to adduce evidence concerning Hypnodorm. This was particularly so when the identity of that substance was introduced into the trial by the applicant. There is no basis for the submission that the Crown was holding back evidence, such as occurred in Grey v R. It was, of course, open to the defence to call such evidence. For the reasons set out above, however, there were very good reasons for the defence not doing so and for not wishing to draw the jury's attention to the tablet issue in any significant way. [79] The emphasis given to the tablet issue by the applicant in these grounds of appeal ignores the fact that the tablets formed a very small part of the evidence at trial. This can be seen from the treatment of them by both the Crown and defence counsel in submissions. The importance for the Crown was that the giving of the tablets on the night of the Gwen Stefani concert enabled the complainant to identify with some precision the date upon which the offence in count 1 occurred. The evidence concerning the tablets was incidental to the Crown case and did not form an important part of it." (emphasis added)
6. The applicant also appears to suggest incompetence of counsel under ground 2. That complaint was also dealt with by the CCA under ground 13. The CCA dismissed the ground of incompetence: see [111]-[129]. No new material going to that issue is raised in the application.
7. All of these complaints have already been dealt with by the CCA. There are no "special facts or special circumstances" that justify the taking of further action identified by the applicant in relation to grounds 2 and 3. I am satisfied that there is no doubt or question as to the applicant's guilt or any part of the evidence in the case.

Further Relevant matters to whether a doubt or question as to the applicant's guilt exists

1. There are two other matters relevant to this application disclosed in the CCA decision. The first of these pertains to the waiving of r 4 of the Criminal Appeal Rules 1952 (NSW). As Hoeben CJ at CL observed at [118]: "Most of the Grounds of Appeal relied upon by the applicant required leave under rule 4. Because the applicant was not legally represented in the conviction appeal, I have dealt with each Ground of Appeal on its merits in more detail than would usually be required. It should be noted, however, that in relation to most of the Grounds of Appeal, leave would not have been granted under rule 4 because the point was not taken at trial (often for a good reason) and no "arguable case" has been made out that the Judge made an error of law, or that the applicant's conviction involved a miscarriage of justice (Papakosmas v R [1999] HCA 37; 196 CLR 297 per McHugh J at [72])."
2. The fact that the applicant was unrepresented at his CCA appeal was taken into account by that Court and the appeal grounds were considered despite the fact that ordinarily leave would have been refused on most of the grounds.
3. The second matter raised is of greater significance to the question as to whether a doubt or question arises as to the accused's guilt. The applicant made admissions to these offences after he was convicted and his counsel relied upon these admissions as a mitigating feature relevant to remorse in his proceedings on sentence. The details of this are set out by Hoeben CJ at CL at [120]-[122] as follows: "[120] The background is that following his conviction, the applicant made admissions to Ms Hopkins, a psychologist who saw him for the purpose of being able to prepare a report for use in the sentence proceedings. The admissions made by the applicant appear to be voluntary. The report recorded: 'Mr P was advised that the purpose of the assessment was to provide a report to the Court and that what he disclosed at interview would not remain confidential. He accordingly provided written consent for the information given to be used in the report.' [121] The relevant admissions in the report were: 'Mr P informed me that he has had approximately five sexual partners throughout his life, three of whom were in the context of intimate relationships, one being the victim in the current offences and the last being a prostitute he had intercourse with on one occasion in his early twenties. ... I questioned him regarding this discrepancy and he indicated that it was not that he was attracted to younger people, but that he was specifically attracted to his stepdaughter. ... He informed me that he believed his stepdaughter was a willing participant in the sexual contact and it was his perception that she wanted to engage in this behaviour with him given that she "never said no". I informed Mr P that consent also referred to the fact that even if a child appears to consent by not saying no to sexual behaviour this is arbitrary, given that children are not cognitively sophisticated enough to make adult-like decisions about engaging in sexual behaviour. He said "I was aware of that but I didn't think about it". ... Mr P reported that he was found guilty of the offences. He indicated that the offending behaviour "was not planned". He noted that at the time of the offences, he was experiencing emotional problems, including anxiety and low moods. Mr P advised that he had developed what he perceived to be an intimate bond with his stepdaughter and felt that he could always talk to her and had a good relationship with her. He noted that this led to sexual behaviour which continued for three years and which he apparently believed she was a willing participant in. Indeed Mr P indicated that he perceived his relationship with the victim as that of a friend rather than a father and he reported to me that he did not perceive her as his daughter. He indicated that he felt "love" for the victim and that the offences were engaged in out of a sense of intimacy rather than in order to achieve sexual gratification. He said that the offending behaviour included oral, vaginal and anal sexual intercourse and it seems that he used the relationship with his stepdaughter in order to groom her into different sexual acts, by removing her from her mother and taking her to hotels or remote areas, alone where she could not seek help. Mr P advised me that he felt that the lack of emotional reciprocation that he received from his father may have impacted the offending behaviour, given that he had a "confusion about being close to others" and how to display love."' [122] In due course the report of Ms Hopkins was tendered by the applicant's counsel in the sentence proceedings."
4. The CCA decision goes on to note how the sentencing judge dealt with this change of position at [138] as follows: "His Honour was critical of the change of position on the part of the applicant in that he was prepared to admit to the offending in the sentence proceedings, whereas at trial he had put forward a positive case that the offences had not occurred. His Honour said: "In effect he actively called the victim a liar and obliged her to endure what must have been the excruciating process of giving the evidence of the appalling conduct perpetrated upon her by the accused. This was conduct over about three and a half years and the various counts in the indictment only disclosed part of his predatory sexual assaults on her during that time. I accept the Crown's submission that this act, in now confessing to these crimes, really demonstrates that TDP is prepared to say or do anything to his own advantage. Firstly he pleaded not guilty and denied the charges and accused his victim of being a liar. On his conviction he then announces to the psychologist that he in fact committed these crimes and I am invited to see those admissions as some evidence of his prospects of rehabilitation and as a demonstration of his remorse and contrition for these crimes... Nonetheless, the outrageous hypocrisy that his change of story now represents does not stand well for him in the sentencing process. (ROS 12.2 - .9)"
5. The CCA was not satisfied that any of the grounds were made out so the post-trial admissions made by the applicant did not directly arise for consideration by the CCA. Despite this, Hoeben CJ at CL dealt with the relevance of such admissions to the operation of the proviso at [123] - [127] before concluding at [128]: "I have considerable doubts as to whether an "admission" such as occurred in this case could influence the application of the proviso in s6(1) Criminal Appeal Act 1912. It may, however, have become significant if there were a real issue as to whether the appropriate order was one for acquittal or for a retrial. That issue, however, does not arise for decision in this case."
6. The applicant at no time disputes that the admissions were made. In fact he does not address the issue in his application at all save as when responding to the Attorney General's submission that the post-trial admissions are a relevant factor to take into account in this application. When addressing ground 1 in his supplementary submissions, the applicant states: "…. In reply to Attorney Generals Response (AG), (52)-(53) had omitted a crucial finding by the Criminal Court of Appeal (CCA), where Hoeben CJ at CL noted at [128] "I have considerable doubts as to whether an "admission" such as occurred in this case could influence the application of the proviso in s6(1) Criminal Appeal Act 1912. It may, however, have become significant if there were a real issue as to whether the appropriate order was one for acquittal or for a retrial."
7. There are a number of differences between an appeal against conviction under s 6(1) of the Criminal Appeal Act 1912 (NSW) and an application under Part 7 of the CAR Act. I am making an administrative decision and would only order an inquiry or refer this matter to the CCA if it appeared to me that there is a doubt or question as to, relevantly, the applicant's guilt.
8. The only significant "new" material before me which was not before the jury is the evidence of the applicant's admissions. I am satisfied that it is relevant to my consideration of this application that the applicant has admitted that he had sexual intercourse with his stepdaughter after he was convicted by the jury.
9. I am satisfied that no doubt or question arises as to the applicant's guilt or as to any part of the evidence in the case even putting to one side his post trial admissions. That conclusion is only strengthened by those admissions. There was nothing in the material before me to suggest that the applicant denies making those admissions. The CCA decision discloses that the applicant's counsel put the admission before the sentencing court, presumably on instructions, and made submissions in relation to them.

Grounds 4 and 5: The sentence miscarried because of evidence of the green tablets

1. Grounds 4 and 5 in the application pertain to the applicant's sentence proceedings. Although an inquiry into a conviction under Part 5 can also extend to a sentence (Sinkovich v Attorney General at [29]-[31]), the applicant did not seek leave to appeal against the severity of the sentence imposed on him following being sentenced. No explanation is provided for why that is the case. Instead, the Crown appealed against the inadequacy of the sentence imposed on him. Section 79(3)(a)(iii) provides that one of the circumstances relevant to whether the Supreme Court may refuse to consider or deal with an application such as this is whether the applicant had a right to apply for leave to appeal but failed to exercise that right. As I have stated above, I have considered the application as it pertains to both the applicant's conviction and sentence.
2. The applicant now asserts for the first time under ground 4 that the sentencing process was unfair. The complaint appears to be that the applicant should not have been sentenced for intoxicating the complainant (this is based on the same submissions already made in relation to the tablets). There is no material before me to suggest that this occurred. Ground 5 repeats the complaint made in ground 4 and notes the terms of ss 38 and 61J of the Crimes Act to suggest that there was some breach of principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at the applicant's sentence.
3. In response to these complaints it is pertinent to extract some of the relevant portions of the CCA decision regarding the Crown appeal against the manifest inadequacy of the sentence imposed.
4. Hoeben CJ at CL observed at [158] that he was satisfied that the sentencing judge had erred in failing to allow some accumulation between the sentence imposed for the offence in count 1 and that imposed for the offence in count 4 and that the course taken failed to "adequately reflect the criminality of those two offences." After referring to the ten week delay between the sentence and the Crown appeal against sentence being lodged, his Honour went on to observe at [161]: "There is another more significant consideration. Although there was some dispute as to the meaning to be given to certain exchanges between the Crown and his Honour in the sentence proceedings, it is clear that the Crown submitted that his Honour should structure the sentences in the way in which he did, i.e., that the offences in counts 1 - 5 should be grouped together, as should those in counts 6 - 11 and that there should be an accumulation between the two groups. It was implicit in that submission that there should not be accumulation between offences within those groups."
5. His Honour concluded at [163] that: "It follows in the particular circumstances of this case that the Crown should not be allowed to challenge the approach which the sentencing judge followed in relation to accumulation when that approach was specifically recommended and endorsed by the Crown in the sentence proceedings."
6. RA Hulme J observed at [168]: "I have considerable disquiet about whether a total effective sentence of 10 years 6 months is adequate to reflect the gross level of offending by the applicant against his step-daughter over a prolonged period of time. In my view, there should have been further accumulation of at least some of the individual sentences so as to achieve a total term which better reflected the totality of the applicant's criminality."
7. The CCA thus concluded that the overall sentence was manifestly inadequate but declined to intervene on discretionary grounds including the fact that the Crown had submitted that the sentencing judge adopt the approach his Honour ultimately took.
8. In refusing this application insofar as it pertains to the applicant's sentence I have had regard to: the fact that no application for leave to appeal against the severity of the sentence imposed on the applicant was ever made; the fact that the CCA only failed to intervene to increase the applicant's sentence on discretionary grounds; and the fact that no material was put before the Court to suggest that the sentencing proceedings miscarried in any way that caused any unfairness to the applicant. I am satisfied that there is no doubt or question about a mitigating factor in his case either.
9. For these reasons I refuse the application. 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: 16 November 2018