Cheney v Sydney West Area Health Service

CONCURRENT APPLICATION UNDER S 78 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001 (NSW)

1. I have before me two applications under s 78 instituted by the applicant. After the charges relevant to the present application, the applicant was tried in the District Court sitting in Coffs Harbour for the various charges discussed in Cheney (No 1) at [3]. In the submissions and material, that case is also referred to as the "Port Macquarie matter" while this case is referred to "Strathfield matter". The offences in the Port Macquarie matter were summarised by Shaw J in R v Cheney [2004] NSWSC 104 at [4]: "Broadly speaking, the allegations against the petitioner fall into a number of categories. First there are incidents of sexual molestation, including forcible cunnillingus upon a nine-year-old girl. There were alleged to be other offences involving touching of the vagina. Other allegations involved the theft of a handbag, which apparently contained a wallet, credit cards, a purse, a pen, earrings, cosmetics and a small amount of cash. Other incidents involved, it is alleged, kidnapping, indecent assault and penile penetration of the vagina, the mouth and digital penetration of the vagina."
2. For full details of the procedural history of the Port Macquarie matter see Cheney (No 1) at [5]-[13]. In summary, the applicant was convicted by a jury and was sentenced by Kirkman DCJ on 22 June 1995. The Court of Criminal Appeal quashed a conviction on one count (count 4) but otherwise the appeal against conviction was dismissed. The appeal against sentence was allowed and adjustments were made to the sentences: Cheney (No 1) at [4].
3. The applicant unsuccessfully applied for special leave to appeal to the High Court and has made an unsuccessful application under the predecessor provisions in Part 13A of the Crimes Act 1900 (NSW) seeking an inquiry into his convictions: see R v Cheney [2004] NSWSC 104. The applicant also made two unsuccessful petitions to the Governor.
4. The applicant continues to press allegations of corruption and misconduct by members of the NSW Police force and prosecuting authorities.

HISTORY OF THE LITIGATION

1. The applicant pleaded not guilty to each of the three counts on an indictment presented against him the District Court in March 1995. The trial was conducted by Judge alone before his Honour Judge Shillington QC. On 24 March 1995 the applicant was found guilty of the first and third count. His Honour then imposed sentence.
2. In April 1998, the Court of Criminal Appeal heard an appeal against conviction for the first charge of maliciously inflicting actual bodily harm with intent to have sexual intercourse. No challenge was made to the sentence. The appeal was dismissed: R v Cheney (Criminal Court of Appeal (NSW), 28 April 1998, unrep). Studdert J (Levine and Simpson JJ agreeing) concluded his judgment with the following remarks: "I have closely considered all the evidence which was placed before the learned trial judge and I have considered his Honour's judgment in its entirety. His Honour carefully recorded the various matters to be proved by the prosecution and the evidence that established those essential elements. There is, in my opinion, no error to be found in his Honour's judgment. Paying due regard to all the submissions made by counsel and in particular, the submission made concerning the DNA evidence, it does not seem to me that there is any reason for concern as to the result of the trial. I do not consider that there is a significant possibility that an innocent person has been convicted and I regard the conviction as soundly based. Accordingly, in my opinion this appeal should be dismissed."
3. Although the current application was initiated on 12 July 2007, the applicant's final submissions were not provided until 21 May 2014. In the intervening years, the applicant provided a number of letters and memoranda sent to the Court in support of the application. Further, the submissions in reply relating to Cheney (No 1) were not received until mid-December 2014. As I pointed out in Cheney (No 1) this explains the lengthy delay between the institution of the application and its disposition.

legal FRAMEWORK FOR APPLICATIONS UNDER S 78 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001 (NSW)

1. My analysis of the relevant legal framework is contained in Cheney (No 1) at [15]-[22].

THE APPLICANTS SUBMISSIONS CONSIDERED

1. The applicant's submissions were received by way of a series of letters and attachments over some seven years. I have considered all of these materials as well as submissions provided by the Attorney General on 14 October 2013.
2. The Applicant identifies four discrete arguments in his application for an inquiry into his convictions.

1. "Fresh evidence" obtained from the Sydney West Area Health Service in 2007 pursuant to a Freedom of Information application
2. The applicant contends that evidence not previously provided to him is capable of undermining some of the fundamental parts of the prosecution case. The "fresh evidence" consists of two documents each dated 1 July 1991 and both purporting to be a statement of Jennifer Burger of the Department of Health Forensic Biology Laboratory, Division of Analytical Laboratories, Glebe. The applicant says that he gained access to these documents in 2007 after he made a Freedom of Information request for "all blood tests results, DNA results, Police reports, Biologist reports, all documentation relating to Roger David Cheney held at the Department of Forensic Medicine, Glebe" (see Cheney v Sydney West Area Health Service [2007] NSWADT 75).
3. The two documents appear to be different versions of the same document.
4. The first document is headed "Re: the alleged sexual assault of [name redacted in black and then written in handwriting]". It lists 10 items received from Detective Khoudair of the Crime Scene Unit on 10 May 1991. Item 2 in that list is described as "Blood - Cheney". Item 10 is described as "Blood sample - [word or words blacked out]" and then the word "BLATCH" appears in hand-writing adjacent to the black redaction.
5. The second document is identical except that the victim's name is in typed form and no other words are blacked out. However, it lists only 9 items and does not include the Item 10 or any reference to "BLATCH".
6. The applicant says that at his trial he was only provided the second document and he argues that this was done in order to cover up the fact that the police may have had another suspect (i.e. somebody called "Blatch"). This in turn prevented him from raising an argument that the police arrested the wrong man and from submitting that that the existence of a second suspect put the lie to Constable Meredith's evidence that he observed the applicant from the time of the attack to the time of his apprehension. As the description of the case by Studdert J shows, the Crown case was that the applicant was caught red handed by the police with his trousers down. Indeed, the prosecution did not call the alleged victim of the crime because she was so traumatised by the events and it was considered unnecessary given the evidence of the other witnesses.
7. The applicant submits that a blood sample labelled 'BLATCH' was recorded on 7 May 1991, whereas his blood was not sampled until 9 May 1991. In making this submission I assume that the applicant relies on a document entitled "Specimen/exhibit Examination Form". That document refers to "a blood sample in the name of David [Cheney] dated 9.5.01 - Lidcombe." It then refers to "two blood samples in name of [REDACTED IN BLACK] Dated 7.5.91 for grouping." On the second page of the form, the 10 items received from the police are detailed and item 10 is recorded as a "blood sample - [REDACTED IN BLACK]". The applicant argues that this earlier enquiry into another person shows that police witnesses fabricated the evidence that he was the only suspect because he was always in Constable Meredith's sight. Further he argues that this evidence would have given support to his case at trial that Constable Meredith did not observe him in Everton Lane and had fabricated his evidence.
8. One difficulty with the argument is that it not clear exactly what "Blatch" means. The argument only works, if it works at all, if one accepts the applicant's contention that BLATCH was a suspect. The report does not establish, as asserted by the applicant, that a person called "Blatch" was a suspect in the matter. The Specimen Examination Form makes no reference to "Blatch" at all. If "Blatch" was a suspect, there is no reason for his name to be redacted. There are a number of other redactions on the form and they all appear to be designed to protect the identity of the alleged victim. For example, there is reference to "Sexual assault kit in the name of [REDACTED IN BLACK]", "pantihose the property of [REDACTED IN BLACK]" and "ladies … shirt in the name of [REDACTED IN BLACK]. No blood sample is recorded as being received from the alleged victim.
9. The Attorney General's submission indicates that the Crown Solicitor's Office made a number of inquiries into which of the two reports was actually tendered at the trial. Due to the effluxion of time, the effort to locate the original exhibit has been fruitless. Records kept by the Office of the Director of Public Prosecutions have only one version of the report, and it contains the "item 10" and "BLATCH" references. This suggests, albeit inconclusively, that the applicant and/or his legal representatives may have received the complete version of the report at the time of trial. The Attorney General submits that there is no independent evidence to support the applicant's assertion.
10. I am inclined to accept the submissions of the Attorney General. The evidence now presented is, at best, ambiguous. Other inferences might arise other than the one for which the applicant contends. This is not to place any particular onus on the accused but to give effect to the finding of the trial Judge and the Court of Criminal Appeal as to the evidence upon which the accused was convicted. The evidence of Constable Meredith was tested and accepted at trial. His evidence received some support from the other witnesses (that is, the witnesses in the car into which the applicant ran). The applicant's assertion that he had never seen the second report cannot be tested with any degree of reliability at this time.
11. I will take this matter into account in the consideration of the matters raised under ss 78-79 but, taken alone, this matter is insufficient to warrant action under those provisions. By itself, it does not leave me with a sense of unease or disquiet as to the conviction.

2. The DNA and other physical evidence as to the presence of the applicant at the scene of the crime
3. The applicant makes three arguments with regard to the DNA and other physical evidence. All of those issues were considered and dismissed on appeal.
4. First, the applicant argues that because his DNA was not a match to the DNA found within semen located on the victim's underpants, another person was the perpetrator. Putting to one side the logical fallacy of this reasoning, this evidence was fully available both at trial and on appeal. On Appeal Studdert J found that: "It is clear from Dr Gunn's evidence, that it was not possible to determine when the semen had been deposited on the underwear but its presence, whilst not adding to the prosecution case, cannot be considered of itself to be exculpatory of the appellant. It does no more than to afford a basis for an inference that the victim had intercourse at some time with somebody other than the appellant It was not possible, according to Dr Gunn, to determine the age of the deposited semen."
5. Secondly, the applicant argues that the fact that his tracksuit pants were not damaged contradicts the evidence at trial that some fabric from his pants had lodged in the tail light of the car which he struck whilst fleeing police. He says the same about his lack of injuries. His contention is that he could not have been the person Constable Meredith was chasing because his clothes were not damaged and he was not injured. This argument was also raised and rejected in the course of the appeal. Studdert J said: "The trial judge considered the significance of the fact that there were no signs of injury to the accused. However, his Honour had regard to the fact that the car was not travelling quickly and that there was no suggestion that the appellant had been struck a direct blow but rather a glancing one. His Honour further had regard to the fact that the person who collided with the car, was able to run on immediately. His Honour considered that it was quite consistent with the appellant having been that person, notwithstanding the absence of injury to him and notwithstanding the absence of damage to his clothing. It seems to me that that was a conclusion which was entirely open to the trial judge."
6. Thirdly, the applicant contends that the evidence of similarity between a cream-coloured wool-like fibre found on his black tracksuit pants and a fibre found on the victim's cardigan and was not substantiated by proper forensic procedures. This argument was also dealt with by Studdert J in disposing of the appeal: "Professor Pailthorpe, who has a doctorate in textile technology, tested the samples of fibre taken from the victim's cardigan and from the tracksuit pants the appellant was wearing. A number of tests were carried out, which indicated that the samples so taken and analysed each were of pure wool and of the same approximate diameter of fibre. Each sample had no dye in it. Neither sample had been exposed to detergent, so that the professor concluded that the samples could have been from the same origin. Professor Pailthorpe's evidence was that wool comprised only five percent of clothing fabric and undyed white wool, such as that analysed, made up only ten percent of that five percent. Mr Byrne referred to a question which the trial judge then asked: "Q. So it is five in 10,000 is it? A. Yes. .5%, or five in 10,000, correct." Mathematically that is incorrect and Mr Byrne has argued that the judge attached undue weight to this evidence. I do not think that that conclusion is warranted. There was a later passage of evidence in the appeal book and the judge asked the professor: "Q. Ten percent of five percent? A. Ten percent of five percent is white apparel wool. Q. So you multiply ten over 100 by five over 100? A. You end up with, .5 percent world­wide would be white apparel wool." It seems to me, following that second piece of evidence, that there is no reason for concluding that his Honour considered that the incidence of white apparel wool was any more that five in a thousand cases. In considering the significance of the evidence of the fibres found on the appellant's tracksuit, his Honour was alive to the possibility that that fibre might have found its way on to the appellant's tracksuit in an innocent way, perhaps through the police officer who helped the victim into the car and who might possibly then have transferred the fibre on to the clothing of the victim. However, his Honour remarked that the evidence was consistent with the appellant being the assailant and there can be no criticism of that observation."

3. The absence of evidence by the complainant at trial
4. The applicant argues that the conviction is unjust because the alleged victim did not give evidence at the trial. Studdert J noted that the submission on appeal was that the verdict was unsafe and unsatisfactory for the following reasons: "1. The absence of evidence by the alleged victim of the offence."
5. Two other matters were said to support the argument that the conviction was unsafe (the quality of the identification evidence and the lack of evidence supporting the identification).
6. Studdert J noted that the victim did not give evidence and that a psychiatrist gave evidence that: "… this lady was suffering from a post traumatic stress disorder, as a consequence of her experience on 3 May 1991 and it was the doctor's opinion that the effect of her giving evidence would be catastrophic for her condition."
7. Of course, it is unusual for the complainant in a sexual assault trial not to give evidence. On the other hand, it is unusual that the perpetrator is caught in the act and seen to pull his trouser up before being chased and caught by a police officer. Studdert J considered essentially the same argument in 1998 and did so with the considerable benefit of the assistance of the late Paul Byrne SC. His Honour, with whom both Levine and Simpson JJ agreed said: "There was ample evidence to support the conclusion that the trial judge reached, not only that actual bodily harm had been maliciously inflicted upon the victim but that this had been done with intent to have sexual intercourse as defined by the Crimes Act".
8. These arguments, and the fact that they have been comprehensively dealt with on appeal at a time more proximate to the trial, make the following observation of Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 particularly apposite to the present application: "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."
9. In Application by Ivan Milat under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 Johnson J considered the history and application of s 79(3) of the Crime (Appeal and Review) Act [11]-[22] and concluded: "20 It may be seen that the balance being struck by the provisions then contained in s.474E(3), and now contained in s.79(3), involved an appropriate remedial process for applications for a post-conviction inquiry and the need to guard against "the waste of judicial resources that can flow from repeated unmeritorious applications for inquiries". 21. In a case to which s.79(3) applies, the Court may refuse to consider or otherwise deal with an application. This course may be taken where one or more of the circumstances identified in s.79(3)(a)(i)-(iv) arises and, in addition, the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action: s.79(3)(b).

4. Inconsistency between internal police documents and the Crown case
5. The applicant argues that the Crown case in relation to his assault of Constable Meredith is inconsistent with an internal police report of the same incident. The reports the applicant points to were created during a police internal investigation that was initiated by the applicant after he had complained about his treatment during and after his arrest. The applicant acquired these documents through FOI requests.
6. The applicant says that due to the nature of his arrest, where he was handcuffed and held by four police officers, it would have been physically impossible for him to assault Constable Meredith.
7. The Crown case is that the applicant kneed Constable Meredith in the groin. This is consistent with the version of events that Constable Meredith gave in his evidence and in his reports to police internal investigations. However, an internal report made by a Mr Cushway, one of the detectives on the case, records that, during the struggle to arrest the applicant, Meredith was punched and kicked in the upper body. It makes no mention of a kick or knee to the groin.
8. The applicant further points to an alleged inconsistency in Cushway's report that after the arrest Constable Meredith went "of[f] duty on sick report". The applicant says this is inconsistent as Constable Meredith accompanied him to his bail appearance the next day on 4 May 1991.
9. The applicant relies on these inconsistencies as evidence that the assault on Meredith was fabricated. The applicant further submits that the false evidence given by Constable Meredith in relation to the first count should also impact on the Court's assessment of the third count. In other words, all of the offences on the indictment should be quashed.
10. The alleged inconsistencies arising from the reports of Detective Cushway fail to raise any real possibility that the entire assault was fabricated. The evidence of Constable Meredith was tested and accepted at trial. Detective Cushway's report that after the arrest Constable Meredith went "of[f] duty on sick report" is not necessarily inconsistent with Constable Meredith taking the applicant to the bail court. The report does not specify when and for how long Constable Meredith was off sick.
11. Finally, the applicant had a right to appeal against his conviction for the assault charge at the same time as he pursued his appeal against the conviction for the sexual assault charge. Studdert J noted "the appellant appeals only against his conviction in respect of the offence charged in the first count". Section 79(3)(iii) Crimes (Appeal and Review) Act 2001 (NSW) provides that a court may refuse to deal with an application if the matter: "(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."
12. If the application related solely to the conviction for assault, I would be inclined to refuse to deal with it under s 79(3)(iii). However, given its close connection to the conviction for the aggravated sexual assault, I will not invoke that provision.

CONCLUSION

1. This Court may refuse to consider an application for review pursuant to s 79(3) of the Act if it appears 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, (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."
2. With the exception of the arguments based around the reports and forms obtained under the Freedom of Information request (considered above at [14]-[23]), all of the matters raised in this application were dealt with in the 1998 appeal. I would be inclined to refuse to consider this application pursuant to s 79(3) if it were not for that singe fresh argument (putting aside whether it is "fresh evidence" as that term is generally understood) and the applicant's contention that those documents may give rise to an inference that there was another suspect called "BLATCH" and the capacity of that inference to undermine the testimony of Constable Meredith. However, in view of that one matter, I have reviewed all of the material provided with that particular issue at the forefront of my consideration.
3. Having conducted that review and considered the submissions of both parties, I am unable to conclude that there is a doubt or question as to the applicant's guilt or as to any part of the evidence in the case: s 79(2). I am not left with the sense of disquiet or unease that the authorities refer to as justifying action under the section: see, for example, R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362 at [3]. I also apply the observations of Beech-Jones J in SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 at [21; 24].
4. In the final analysis, the conclusions that the applicant seeks to be drawn from the "BLATCH" evidence is more in the nature of speculation than it is a process of proper and logic-based circumstantial reasoning.
5. I would not exercise my power to order an inquiry or to refer the matter to the Court of Criminal Appeal to be dealt with as on an appeal.
6. The application is dismissed.

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: 09 April 2015