Cheney v The Queen [2015] NSWSC 291 | Case summary

Supreme Court of NSW|2015-03-27|Before: Hamill J, Shaw J, Newman J

Judgment

Roger David Cheney (the applicant) applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for an inquiry into his conviction in relation to 13 offences including kidnapping and aggravated sexual assault. The convictions have been subject to previous appeals, applications for review and claims for executive clemency.
The offences 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."
In R v Cheney [1999] NSWCCA 312, Newman J summarised the allegations and the prosecution case as follows (at [8]-[27]): "8. The appellant and his girlfriend, Julie Bird were in the Port Macquarie district during the period when the offences were committed. Julie Bird gave evidence that in that time, the appellant would go out at night and, on occasions, return in the early hours of the morning. In respect of counts 1-5 9. On one of those occasions, on the night of 20 November 1993 the appellant through the rear screen door, entered the bedroom of the complainant, M, which she was sharing with a family friend in her parents' home at Port Macquarie. She was then aged nine years. He woke her up and told her his name was "Jimmy" and to be quiet or the monster would get her. He then picked her up and placed her bedspread over her head and forcibly took her into the rear yard, behind a shed. While in the rear yard the appellant forcibly made the victim suck his penis. He also touched her in the area of the vagina. He told her to go back to bed and go to sleep and not to tell anyone or the monster would get her. She went back to bed and didn't tell her parents on that day. When the victim awoke in the morning she found the rear door open. 10. She described the offender as being about the same age as her step father (35-40) wearing black clothing, a black beanie/balaclava. 11. On 20 December 1993 this victim was shown one beanie, one balaclava and one peaked cap, all the property of the appellant. She identified the black beanie as being the same as the beanie the offender wore on the night of this offence. 12. On the night of 27 November 1993 the appellant returned to the house and gained entry by forcing the lounge room window. Whilst inside he went to the victim's bedroom, woke her and told her it was "Jimmy" and "Have you been a good girl." He tickled her and attempted to touch her on the vagina. The victim screamed and the appellant fled the house. The victim has informed police he was the same person who entered the house the week before and took her against her will to the rear yard and forcibly made her perform oral sex on him. 13. S, the complainant's mother gave evidence that her daughter was born on 26 September 1983. She said that on 28 November 1993 the complainant told her that "Jimmy is back…" and that he had touched her on the vagina a week ago. 14. On 7 December 1993 the appellant again left the camp he was sharing with Julie Bird and drove his Holden utility to the vicinity of the Vacation Village Resort in Port Macquarie. In respect of count 6 15. On 7 December 1993 the appellant then broke into unit 6A by removing the flyscreen in the Vacation Village Resort which was occupied by Julie-Anne Cookson at that time. 16. Julie-Anne Cookson gave evidence that on 7 December 1993 she and her husband, George Jenkins were staying at Unit 6A. At about 9.45 pm on that day she had left the unit. Prior to her leaving, she left the lights and television on but the back door was unlocked. She returned to her unit and found that her handbag was missing and it contained one wallet, three credit cards, one purse, one silver pen, two sets of sterling silver earrings, cosmetics, and one ten dollar note. In respect of count 7 17. Ian Gett gave evidence that on 7 December 1993 he was staying in Unit 6B at the Vacation Village Resort. He left his unit earlier in the evening on that night and returned at about 9.45 pm. He noticed that a Holden utility park at the back about 100 metres from the entrance to the village. Later he and his wife, Kathy left the unit and were walking towards the lounge. He passed the unit next to him Unit 6A and saw a tall figure which was dressed in black. That figure went from the main bedroom into the second bedroom. He could hear the flyscreen being removed on a window. He then saw that person come out of the unit through a window and walk towards the gate. He said "What are you doing?" He kept on walking through the gate and didn't respond to him at all. He could not get through the gate and was hiding behind a tree. He followed him to a point when the appellant pointed a silver revolver at Gett and he said something to him. He became scared and could not recall what he said. As the light was shining on the revolver and he could see it clearly. He then said "OK mate, it's yours, you can have it, I'm out of here." He had his hands in the air at that time. On 9 December 1993 he identified that revolver at the police station shown to him by Det Francisco. In respect of count 8 18. About 2 am on Wednesday, 8 December 1993, the appellant removed the flyscreen and climbed through a ground floor window and entered the bedroom of unit 5C in the Vacation Village Resort. This bedroom was occupied by the complainant A and her brother. At the time both children were asleep. The appellant carried the complainant from her bedroom to a grassed area nearby. This conduct and what followed was relied upon to establish kidnapping. In respect of counts 9 - 12 19. The complainant gave evidence that the appellant used the name "Jimmy" spoke in whispers, and told her she should not tell anybody about what had happened. After being left alone for a moment, she was washed by the appellant at a nearby pool, and then taken back to her bedroom. Next morning she complained to her parents. 20. When the complainant was kidnapped, she was indecently assaulted, subjected to penile penetration of vagina and mouth and digital penetration of the vagina. In the result she suffered a tear to the hymen, and other injuries to the body and face. Two medical examinations made of her on the day of the incident cogently establish that penetration occurred. 21. The complainant understandably had difficulty verbalising some of her evidence. She was however able to write it down on notes. She was asked by the Crown "did he touch you with any part of his body from the waist down?" and she wrote "his penis." She agreed that it hurt her. She said that this "touching" occurred on her vagina. It is the Crown case that at around 2.30 am on 8 December 1993 the offences were committed on A. She was unable to identify the appellant but she was able to identify a distinctive cap worn by the offender. 22. The following day he was seen in an area close by the north shore and was chased by a number of people. During that time he was wearing a cap. When eventually caught by police he was not wearing that cap. The next day a cap was found by a civilian in the area where the chase had taken place and handed to police. This cap was identified by A and by the appellant's fiancee, Ms Bird. It had a distinctive white tape which covered the back tab. 23. He had also been seen carrying a bag during the chase. This contained a black beanie, jacket and silver revolver. The revolver being identified by Mr Gett who had followed him from the commission of the break and enter in Ms Cookson's unit at 10.30 pm on 7 December in the Vacation Village. The bag also contained a black beanie and black jacket similar to one's worn by the offender of the first victim. In respect of counts 13-14 24. Later the following afternoon, the appellant was seen on the north shore with a bag which was subsequently found to contain the Billabong jacket in the pocket of which was a silver revolver. After being sighted by police, a chase occurred during which the appellant assaulted two men, Mr Anning and Mr Hurley each of whose premises he had entered. The two men sustained injuries. In the course of an altercation with one of these men, the cap worn by the appellant has been knocked off, but not found and recovered until the following day. Police eventually apprehended the appellant. 25. He made admissions at the time of his arrest and subsequently at the back of a police truck and at the police station. Those admissions were recorded in a police notebook, which was not signed. The appellant refused to participate in a record of interview or to acknowledge the accuracy of the notebook record. 26. The motor vehicle which had been driven by the appellant (a white Holden utility) had been found abandoned near the Village with some items from Ms Cookson in it. 27. It is also the Crown case that a number of documents have been fabricated by the appellant and sent to Crown witnesses effectively asking them to change their stories in such a way as would allow him to escape conviction as evidence of consciousness of guilt."

HISTORY OF THE MATTER

The applicant was convicted by a jury in the District Court sitting at Coffs Harbour on 8 June 1995 and was sentenced by Kirkham DCJ on 22 June 1995.
On 15 September 1999 the Court of Criminal Appeal heard the applicant's appeal against conviction and sentence. Except to the extent that the Crown conceded that count 4 disclosed an offence unknown to the law, the appeal against conviction was dismissed. The appeal against sentence was allowed and the applicant was re-sentenced in relation to count 8, the charge of kidnapping (R v Cheney [1999] NSWCCA 312). An application for special leave to appeal to the High Court was dismissed: Cheney v The Queen [2001] HCA Trans 649 (Gleeson CJ and Callinan J).
In 2003 Mr Cheney made an application under Part 13A of the Crimes Act 1900 (NSW) seeking an inquiry into his convictions. Part 13A is the predecessor to s 78, which is the section that the present application is to be considered under. That application sought a review of the conviction on the following grounds (as summarised by the Crown ): "(i) An allegation that the notebooks produced by the police at the Petitioner's criminal trial were fabrications. It was part of his case that, based upon information obtained subsequently to his trial, the notebooks which were allegedly used by the police in order to record notations at time of interaction with the Petitioner, as well as at the trial itself, were fabricated documents. It was his case that it would then follow that the material contained within such documentation was fabricated. (ii) The Petitioner attacked the duty books of the police officers involved in the investigation and at his trial on the basis that such duty books were not genuine, and it followed that any entries made within such documentation were also fabrications. He alleged that when one examined the notebooks produced at the trial, they were numbered on every two pages, and accordingly did not conform with what he believed to have been how notebooks appeared at the time. (iii) The Petitioner further alleged that police officers who were alleged to have been involved in the police investigation of him were fictitious. These police officers were nominated by him as being K. Collits, K. Every, T.M. Thomson as well as M. Cavanagh. (iv) He alleged that a FACTS Sheet used at his trial was withheld from his Defence Counsel prior to his trial, and that a Detective Lang was able to persuade witnesses to lie on his behalf at the trial. (v) He alleged that there was interference by the police in vital evidence, such evidence constituting a fabrication of evidence. (vi) He raised issues with the DNA test results, and maintained that the results were withheld, and such DNA results will prove his innocence. (vii) He alleged that a police telephone message entry was a fabrication. (viii) The above were not the only matters relied upon in support of his earlier application."
In dealing with that application, Shaw J said in R v Cheney [2004] NSWSC 104 at [26]: "… I think that much of what the petitioner says about the police evidence, the numbering of notebooks and the supposed fictitious nature of various police officers is spurious. I do see some possibility of an argument that there is fresh evidence arising from documents from the Division of Analytical Laboratories, Lidcombe Sydney…." His Honour concluded at [30]: "In the circumstances of the present application, I see a tangible difficulty in granting an inquiry without knowing any real or precise details [as none were available] about the DNA testing or, more importantly, the results of it. Because the relevance and nature of the DNA material is unknown to me, I am unable to form the requisite unease or sense of disquiet in relation to the conviction."
On 10 March 2004 Shaw J declined to direct that an inquiry be conducted noting at [9]: "The petitioner has been through the hierarchy of courts in the criminal justice system and his conviction and penalty have been upheld by those superior courts"
The applicant submitted a further Petition dated 12 January 2006 challenging those findings. He sought to rely on (what was said to be) additional material to challenge his conviction. According to the Attorney General's submissions in 2007, this petition was unsuccessful. In view of the fact that the present application was made the following year, that must be correct.
On 27 October 2006 the applicant forwarded a bundle of material to the Attorney General of New South Wales. This purported to be, or was treated as, an application for the exercise of the Royal Prerogative of Mercy by the Governor. This application was also unsuccessful.
Although the current application was initiated on 12 July 2007, the applicant's final "submissions in reply" were not provided to the Court until 19 December 2014. In the intervening years, there have been a number of letters and memoranda sent to the Court in support of the application. The submissions in reply included a series of accusations of misconduct by various investigators, prosecutors and other officials and included a large number of attachments in relation to which there was no real underlying unity.
The applicant is self-represented in the application and supporting submissions are made in a series of hand written letters to the Court and the Crown Solicitors Office dated from 2007-2014. Whilst it is understood that the applicant has limited resources, there have been three separate periods of well over a year in which no action was taken to advance the application. This should be noted in light of the fact that there otherwise would appear to have been an inordinate delay between the date when the application was first lodged and the date of disposition.

SENTENCE IMPOSED

As I have said, there is some confusion in the documentation as to the applicant's sentence and release date. In the 1999 appeal, the conviction on count 4 was quashed, the appeal against sentence was allowed and the Court resentenced the applicant as follows (R v Cheney [1999] NSWCCA 312 at [91]): "Count 1: A minimum term of two years penal servitude commencing 22 June 2010 and expiring 21 June 2012. Additional term of eight years commencing 22 June 2012 and expiring on 21 June 2020. Counts 2 & 3: On each charge a minimum term of penal servitude for two years commencing on 22 June 2010 and expiring on 21 June 2012. Additional term of three years commencing 22 June 2010 and expiring 21 June 2015. Count 5: Fixed term of penal servitude of twelve months commencing 22 June 2010 and expiring 21 June 2011. Count 6: Fixed term of penal servitude for five years commencing on 22 June 1995 and expiring on 21 June 2000. Count 7: Fixed term of penal servitude for seven years commencing 22 June 1995 and expiring 21 June 2002. Count 8: Fixed term of penal servitude for fifteen years commencing 22 June 1995 and expiring on 21 June 2010. Counts 9, 11 and 12: Fixed term of penal servitude for ten years commencing 22 June 1995 and expiring 21 June 2005. Count 10: Fixed term of five years commencing 22 June 1995 and expiring 21 June 2000. Counts 13, 14: On each charge a fixed term of penal servitude for three years commencing 22 June 1995 and expiring on 21 June 1998."

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

The current application was lodged in July 2007 and filed pursuant to Part 13A (ss 474B-474N) of the Crimes Act 1900 (NSW). These provisions were repealed on 23 February 2007 and re-enacted as Part 7 (ss 76-88) of the Crimes (Appeal and Review) Act 2001. There is no material difference between the provisions in the two statutes: Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 per Johnson J at [2]. An application made under Part 13A before the repeal and transfer of that Part on 23 February 2007 that had not been finally determined under that Part immediately before its repeal, is taken to be an application under the corresponding provision of Part 7 Crimes (Appeal and Review) Act 2001 (NSW): cl.13, Schedule 1, Crimes (Appeal and Review) Act 2001 (NSW). Accordingly, the application is to be determined under ss 78-79 of the Crimes (Appeal and Review) Act 2001 (NSW).
Sections 78-79 Crimes (Appeal and Review) Act 2001 (NSW) are in the following terms: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) The Supreme Court may defer consideration of an application under section 78 if: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (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)."
The jurisdiction is of an administrative and discretionary nature: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 (at 48-50); Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251.
It was said In Varley (at 48) that in deciding to initiate an inquiry: "a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry."
This element of doubt was discussed in R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362 at [3] as: "3. Put simply, the question for the judge is whether the material which has been put forward in connection with the application causes the judge unease or a sense of disquiet about allowing the relevant conviction(s) to stand."
The test was adopted by Johnson J in Holland at [6]: "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].
Beech Jones J analysed the development of this test in SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 at [21; 24]: "21.… the test to be applied in proceedings of this nature is whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case (s 79(2)). Under the now-repealed, but similarly phrased s 475 of the Crimes Act 1900, it was said that the requisite view may be formed where the material submitted causes the person considering the matter "unease or a sense of disquiet" in allowing the conviction or sentence to stand (Holland at [6], citing Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245). This requires available material which "as a matter of practical reality" gives rise to the sense of unease or disquiet (Holland at [8]). That formula has been applied in applications made under s 79(2) (Holland at [6]). … 24. Further, I note that s 79(2) of the Review Act refers not only to a doubt or question about the convicted person's guilt but also "as to any part of the evidence in the case". It is possible for there to be a doubt or question about such evidence even if there is no doubt or question about the convicted person's guilt (Varley at 46 per Hope JA; Eastman [2003] HCA 28; 214 CLR 318 at [123] per Heydon J). The example given in Varley concerned the ordering of an inquiry to redress unjustified attacks on a particular Crown witness. However in this case I would not exercise the power conferred by s 79(1) to either order an inquiry or refer the matter to the Court of Criminal Appeal unless any question or doubt that might be raised about the evidence or part of it against Bilal Skaf was such as to give rise to "unease or [a] sense of disquiet" about his convictions."
Finally, as noted by Johnson J in Holland at [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.

CONCURRENT APPLICATION

This is one of two applications under s 78 currently being prosecuted by the applicant. Prior to the applicant's trial in the District Court sitting in Coffs Harbour, he was tried and convicted by Shillington DCJ in the District Court sitting in Sydney (this trial is referred to in correspondence as the "Strathfield matter"). The application relating to the Strathfield matter concerns a proposed review of convictions for maliciously inflicting actual bodily harm with intent to have sexual intercourse and assaulting a police officer occasioning actual bodily harm.
For the Strathfield matter, the applicant was sentenced to a minimum term of 4 years and 8 months imprisonment in relation to the first count and term of 1 year imprisonment for the second count: R v Cheney (Court of Criminal Appeal (NSW), 29 April 1998, unrep).
The Crown summarised the history of that case as follows: "The factual background relating to these offences shows that at about 7.00 pm on the evening of 3 May, 1991 in Everton Lane, Strathfield, the Petitioner was seen by a Mrs. Long in suspicious circumstances, straddling over the top of a lower figure in the laneway. She observed the upper figure drag the lower figure along some distance away from her position. Being concerned, she immediately telephoned Burwood Police, and police vehicles arrived within a very short period of time. There was then a pursuit of the Petitioner, who was apprehended during the course of such pursuit. The victim of the attempted sexual assault was apparently so affected by the events that she was unable to give evidence at the Petitioner's trial. The Petitioner appealed against his conviction to the Court of Criminal Appeal which in a Judgment handed down on the 28th April, 1998 dismissed the appeal."

CONSIDERATION

In assessing the current application, I have taken into account the grounds and material upon which the applicant's 2006 application relied. These have been summarised by the Crown as; "In support of his further Petitions dated 12 January, 2006 and 27 October, 2006, Mr. Cheney put forward the following grounds (put in their most succinct form): (i) The police notebooks were fabrications, and accordingly the information contained within such fabricated notebooks are themselves fabrications. (ii) The police officers involved in the investigation are fictitious. (iii) His conviction in 1995 came about as a result of fabricated circumstantial evidence with respect to all 14 counts of the indictment presented by the Director of Public Prosecutions. In support of his Petition on that occasion, Mr. Cheney presented the following additional material, inter alia: (i) Letter from Sergeant Danny Webster of the NSW Police College dated 12 April, 2005. (ii) Letter from Ms. Laraine Tate, Archivist, with NSW Police Corporate Archives. (iii) Letter forwarded by Ms. Kelly Haggett, Acting Manager, Printing & Design Services of NSW Police addressed to the Petitioner's then solicitors dated 8 July, 2002. (iv) Statutory Declaration by a solicitor, namely Christopher Jowett, relating to his experience with police notebooks. (v) A copy of Detective Lang's Statement and also his notebook used during the course of the trial."
As I have said, the applicant's submissions were receieved by way of a series of letters with attachments over some seven years. I have considered the material provided by the applicant as well as two sets of submissions provided by the Attorney General. The first set of submissions was prepared in November 2007 with a supplementary set prepared in May 2013.
The applicant argues that he has "fresh evidence" not ruled upon by this Court and that "special facts and circumstances" justify the taking of further action. A substantial amount of documentation was received by the Court on 14 December 2014. The applicant makes a number of references to "fresh evidence" within the 400 or so pages of submissions and extrinsic material provided. One example relates to a police report of 8 December 1993: "FRESH EVIDENCE POLICE REPORT OF OCCURRENCE No 93/1013: 8/12/93: 4:00PM: DETECTIVE LYSAUGHT ALSO STATES. 'IT IS NOT CONFIRMED IF HE (THE APPLICANT) HAS FIREARMS' IAN GETT COUNT:7 ALSO COUNT:6 BREAK ENTER STEAL IS SAID TO OCCUR HOURS EARLIER BEFORE THE ABOVE REPORT WAS DONE. THIS WAS APPROXIMATLY 10PM ON 7/12/93 IT WAS SAID TO BE REPORTED TO POLICE. THE APPLICANT IS SAID TO BE THE OFFENDER OF THE SO CALLED POINTING A SILVER REVLOVER AT IAN GETT AT VACATION VILLAGE IF IT WAS TRUE FACTS. THE POLICE WOULD HAVE BEEN AT VACATION VILLAGE IN GREAT NUMBERS CLEARLY IF AN OFFENDER WAS RUNNING AROUND WITH A SILVER REVOLVER POINTING IT AT THE PATRONS. THIS DID NOT HAPPEN BECAUSE DETECTIVE LANG MADE HIS OWN EVIDENCE UP AGAINST THE APPLICANT ALONG WITH THE FALSE ADMISSIONS."
There is no fresh evidence underpinning this assertion. It is an argument that could have been made during the trial or previous appeals and reviews. If such a submission was made, it clearly did not find favour with the tribunals that dealt with the matter in the past.
I point to the "IAN GETT COUNT 7" submission merely as an example. The submissions in reply are littered with similar assertions. The applicant makes submissions based on inferences he seeks to draw from perceived inconsistencies within police documentation. This evidence is not 'fresh'. It was available at both the trial and on appeal. Even where there is a new flavour to the submission, it does not elicit a 'sense on disquiet' in allowing the conviction to stand. The extensive submissions in reply continue in a similar vein.
In considering the application, the following observations of Shaw J are pertinent (R v Cheney [2004] NSWSC 104 at [14]): "Many of the matters he seeks to advance were matters which were or should have properly been advanced at trial and on appeal. Some are matters of mere speculation and it is relevant that the petitioner was legally represented at trial and on appeal by counsel. I also accept that an application of this kind should not be used as an additional avenue on appeal."
I will deal briefly with six of the applicant's arguments by way of example and to give a flavour of the application and the allegations contained in the documentation: (1) That the unprosecuted charges of using a false instrument to pervert the court of justice (s 319 Crimes Act 1900) (x 4) and corruption of a crown witness to give false evidence (s 321(1) Crimes Act) (x2) were improperly taken into account in his 1995 trial. This matter was mentioned in R v Cheney [1999] NSWCCA 312 per Newman J at [27]. It was a matter properly for consideration by the trial judge or the Court of Criminal Appeal. On its face, it is relevant evidence going to a consciousness of guilt and the Crown was entitled to rely on the evidence in the way it did. The charges in the Local Court were dismissed as a matter of prosecutorial discretion, as were earlier charges of break enter and steal noted by Shaw J at [18]. It is not new or fresh material warranting an inquiry or consideration by the Court of Criminal Appeal 20 years after the event. However, along with the other arguments raised by the application, I will take it into account globally in determining whether a sense of disquiet or unease is engendered by reference to the accumulation of matters raised by the application. (2) There is "fresh evidence" of the fabrication of Police Duty books. During the trial, the Crown stated on the record that all subpoenaed material was being kept securely in chambers. The applicant alleges that the official police notebooks were never in possession of the Crown prosecutor as photocopies we relied upon in trial. He alleges that photocopies of unspecified exhibits at his trial did not match the originals and were therefore fabrications. It is suggested that Kirkham DCJ was a party to this. This allegation was dealt with by Shaw J who said: "15. First, it is said that the police notebooks tendered at trial were fabrications. However, those notebooks were produced at trial, and were the subject of scrutiny and cross examination by the petitioner's legal representatives. The genuineness of the documentation was not challenged although there was a controversy about the alleged verbal admissions advanced in the Crown case. Subsequently, no appeal point was taken in relation to the issue. As the Crown submissions contend: 'To accept this ground as having any credibility whatsoever would mean that one would be accepting of the fact that virtually each and every police officer who produced his notebook and/or duty book at the trial was producing false documents which had not really been issued by the NSW Police to that officer.'" Shaw J rejected a substantially similar argument based on material that was essentially the same. Once again, this is not fresh or new material and there is nothing that causes me to believe that the approach taken by Shaw J was wrong or needs to be revisited. (3) The applicant alleges that a number of police officers involved in the investigation were "fictitious". This was addressed by Shaw J who stated at [17]: "It is next said by the petitioner that certain specified police officers are "fictitious" police officers. It appears to be true that one police officer, a woman, changed her name at the time of marriage, but there is no credible evidence that the supposed fictitious officers, who in any event played a minor role in the investigation, were non-existent. I find that this submission is untenable." I agree with Shaw J's assessment of the matter and, in any event, the matter has already been subject to careful judicial scrutiny. (4) The applicant relies on a transcript arising from a NSW Police Internal Affairs Investigation in relation to complaints by the applicant. The transcript is of an interview dated 28 January 1994 between Detective Sergeant Moss and the applicant. In the interview the applicant set out a number of complaints and grievances concerning the conduct of police. The applicant relies on the transcript of the interview with Detective Sergeant Moss as proof that the allegations therein took place. The problem with that contention is self-evident. Essentially, the applicant relies on his own version of the events to corroborate his current allegations. The applicant said in the interview that "Detective Lang said to me he's charging me, I don't need evidence, I'll make it up as I go and seeing you are not answering questions, I'm going to verbal you." The internal affairs interview took place before the applicant's trial and related to police misconduct and fabrication of evidence. It cannot corroborate in any meaningful way the allegations that are now made. The most that can be said is that the applicant has made these allegations and challenged his conviction and the conduct of the police for a very long time. In other words, his assertions that the police acted corruptly or improperly is not a recent invention on his part. I take the matter into account in that way. However, the material is not fresh. Shaw J dealt with this issue in 2004 and noted (at [18]) that: "The question as to whether the police officer in question was giving false evidence was dealt with during the trial and was expressly referred to by the trial judge who appeared to be satisfied that there was no such fabrication on the part of the police". As I have already said, the applicant was legally represented at both trial and on appeal and these allegations of misconduct on the part of the investigators, insofar as they were relevant to whether the applicant was guilty of the offences with which he was charged, was or could have been, dealt with at that time. (5) There is an allegation concerning fabricated evidence relating to the baseball cap that the applicant was alleged to be wearing. The submission seems to be suggesting that because the baseball cap was only mentioned by victims and witnesses after the applicant's arrest, and because he was not wearing the cap when he was arrested (it was found nearby the day before), the police involved have "FABRICATED AND HIDDEN EVIDENCE." Once again, the statements of police and witnesses were matters to be addressed at trial. It is not "fresh evidence". The argument, if accepted, is not persuasive. It does not raise a doubt as to the applicant's guilt either by itself or in combination with the other matters articulated by the applicant (6) There is a submission that a fingerprint located on the victim's fly screen does not match the fingerprints of the applicant. Assuming this assertion to be correct, it was a matter able to be raised at trial and is most unlikely to lead to any conclusion favourable to the applicant. The fact that evidence is not inculpatory does not make it exculpatory.
The foregoing does not purport to summarise the entirety of the lengthy and discursive submissions and material filed by the applicant over the seven years since he initiated this application. However, it provides some flavour of the content of those submissions. I have considered all of the material in the context of the statutory function that I am required to perform.

CONCLUSION

This Court may refuse to consider an application for review pursuant to s 79(3) of the Act if it appears the matter: 1. 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 2. has previously been dealt with under this Part or under the previous review provisions, or 3. 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.
Johnson J discussed the history and operation of s 79(3) in Application by Ivan Milat under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 at [14]-[22]. The present application raises no new facts or circumstances to justify action under Part 7. The applicant endeavours to re-agitate matters that were or should have been considered at trial, on appeal to the Court of Criminal Appeal, in the 2003 application or in the two petitions to the Governor. These arguments have been considered and dealt with previously. In some cases, they have been considered on more than one occasion. However, rather than refusing to deal with the matters pursuant to s 79(3) I have considered the merit of the application.
The material which has been put forward in connection with the present application evokes no sense of disquiet or unease about the efficacy of the convictions. It raises no doubt or question as to the applicant's guilt, any part of the evidence in the case or as to any mitigating circumstance relevant to sentence.
Putting to one side the question of whether the material is fresh, the material provided does not justify action under s 78 in any event. Considered alongside the evidence upon which the applicant was convicted, the evidence and submissions produced on this application do not elicit the sense of unease described in the authorities as warranting an order that there be another inquiry into the applicant's convictions.
The application is dismissed.

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Cheney v The Queen

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