The applicant's first set of submissions run to 151 pages. He then lodged what was said to be an addition to his application consisting of 31 pages on 22 May 2020. On 4 June 2020 he filed a document headed "Addendum to application" consisting of 21 pages, and on 17 June 2020 he filed further additional submissions of 43 pages in length. He also lodged and sought to rely on:
(a) Forensic examination report of Brent E Turvey dated 2 March 2006;
(b) Medical report of Dr Geoffrey Reid, undated;
(c) Medical report of Dr Morris Odell dated 25 September 2007;
(d) Medical report of Dr Chris Harmon dated 31 July 2001;
(e) Statement of the complainant dated 24 July 2001;
(f) Photographs.
It should be noted that the four reports referred to formed part of the application considered by Johnson J.
Finally, and in response to the Crown's submissions he lodged further submissions totalling 46 pages. Those submissions did not on their face appear to be a reply to the Crown submissions but rather, further submissions along similar lines to the earlier ones lodged. Subsequently, on 1 October 2020, the applicant lodged a further 11 pages of submissions dealing with one matter that was said to point to jurisdictional error on the part of Fagan J.
At some point, it is not clear when, the applicant lodged an affidavit on 28 June 2018 sworn by him which said that he wished to have certain matters placed into his application in relation to Court proceedings numbered 2018/97693. The present file proceedings are numbered 2020/00147569, on the basis that the application was first made in May 2020. Nevertheless, I have had regard to the affidavit of 28 June 2018.
The applicant's submissions focus in particular on two matters which are interrelated. The first is the complainant's credibility, and the second is the matter of whether the injuries reported by her and seen by Dr Harmon could have been caused by the applicant in the course of committing the offences in respect of which he was convicted.
Clark v Attorney General of New South Wales [2021] NSWSC 384 | Case summary | Zoe
In focusing on those two matters, the approach of the applicant throughout his submissions has been to critique what both Johnson J and Fagan J did in the reports they prepared.
[2]
Determination
In his judgment, Fagan J said at [75]:
…The Submissions are almost entirely written in the language of a critique of Johnson J's conclusions and reasoning. Mr Holland has misconceived the present application as a form of appeal from or review of Johnson J's decision whereas in fact he either has to identify some new matter which was not put to Johnson J or identify special facts or circumstances under s 79(3) which would warrant reopening the matters previously considered by his Honour.
That statement by Fagan J finds support in the judgment of Wilson J in Further application of Henry Edgar Des Rosiers pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 365 at [43], where her Honour observed that a second application under s 78 in not a proper means of exposing error in an earlier application.
Notwithstanding that statement by Fagan J, the applicant's present submissions are almost entirely taken up with criticisms of the approach taken by both Johnson J and Fagan J, by asserting that they have constructed hypotheses about the events of the night in question which cannot be sustained.
The failure of the applicant to take on board what Fagan J said, and in particular what it was necessary for him to do under the legislation, suggests that he is either unable or unwilling to address himself to what needs to be shown, to result in the Court dealing with the matter in the first place (s 79(3)), or thereafter either directing an enquiry under s 79(1)(a) or referring the case to the Court of Criminal Appeal under s 79(1)(b).
The two issues concerning the complainant's credibility generally and her injuries dealt with in the applicant's present submissions were dealt with at length by Johnson J in his judgment at [51]-[69] and in Fagan J's judgment at [39]-60].
Apart from seeking to challenge the approach of both Johnson J and Fagan J to this evidence, the applicant merely argues, in a highly repetitive fashion, for his analysis of the same evidence which was before the jury, the Court of Criminal Appeal and both Johnson J and Fagan J. Some of his criticisms, particularly in his reply submissions of 29 September 2020, and his further submissions of 1 October 2020, approach the matter as if the present application was an application for judicial review of the judgments of Johnson J and Fagan J, asserting, for example, that they fell into jurisdictional error or that they erred on the face of the record. Those submissions also argue on the basis that the jury's verdict was an unreasonable one, and that it must have entertained a doubt about the applicant's guilt.
The enquiry under s 79 is not concerned with unreasonable verdicts, nor with what the jury might or should have done. The enquiry on the present application is whether "it appears that there is a doubt or question as to the convicted person's guilt". That is directed to a doubt or question which I consider appears from the evidence and any additional material put forward.
With two possible exceptions, all of the matters now raised have previously been dealt with under Pt 7 of the Act on two previous occasions. That is so, notwithstanding Fagan J's final conclusion that, pursuant to s 79(3), he refused to consider or otherwise deal with the application. There is no inconsistency in a conclusion that the matter has been previously dealt with under this Part by Fagan J when regard is had to what Basten JA said in Clark, that extensive reasons may be necessary for dismissing an application under s 79(3), because there is an absence of a clear statement of a power to make an order for summary dismissal. However the matter is characterised, having regard to the unusual terminology in s 79(3) (as to which, see Basten JA in Clark at [6]), Fagan J examined all of the material put forward by the applicant, before reaching his conclusion.
I will now say something about the two arguably new matters raised by the applicant on the present application. They are "arguably new" only because the information touching those matters post-date the last application under s 78.
The first of these is the affidavit by the applicant sworn 28 June 2018. The affidavit annexes what is said to be the applicant's recollection of a telephone conversation he had with Sergeant Cameron Bellis on 7 June 2018, together with an email chain between the applicant and Sergeant Bellis.
In his application dealt with by Johnson J, the applicant provided a statement by Sergeant Bellis dated 30 June 2007, which was a response to questions posed to him by the applicant. Sergeant Bellis was a witness at the trial. He was at the nightclub and saw the complainant very soon after the events that formed the basis of the applicant's conviction. He also spent time with the complainant that evening and suggested to her that the matter should be reported to the police station.
That statement and the submissions made by the applicant to Johnson J, were dealt with by Johnson J as follows:
[82] The Applicant's submissions arising from the statement of Mr Bellis:
(a) raised questions concerning the complainant's possible sexual relationships in and after July 2001;
(b) suggested that the complainant did not appear to be in pain after the incident on 19 July 2001;
(c) suggested that the complainant's behaviour following the assault did not appear to be that of a bona fide victim.
[83] The Crown submitted that the beliefs of Mr Bellis concerning the complainant's possible sexual relationships were speculative and, in any event, irrelevant to the present application. To the extent that the Applicant may be contending that the complainant was sexually active between 19 and 23 July 2001, the Crown submits that this is pure speculation and contrary to the evidence at trial. The Crown points to Dr Harman's report, referred to by Dr Odell, which indicated that the complainant had told Dr Harman that sexual intercourse had not taken place within seven days of the assault. The Crown points, in any event, to difficulties with admissibility of this evidence having regard to s.293 Criminal Procedure Act 1986. The Crown submits that no doubt or question as to the Applicant's guilt arises from this material.
[84] With respect to the claim that the complainant was not in pain and appeared to be enjoying herself at the nightclub following the incident on 19 July 2001, the Crown observed that Mr Bellis did not vary his evidence at trial that, when he first saw the complainant at the nightclub, she was very upset and crying and that she put her head on his chest and cried (T177), that the complainant told Mr Bellis that she wanted to stay and "enjoy the rest of our night" (T179, T185), that they had stayed at the nightclub until approximately 2.00 am (T178), that he observed the complainant having a few more drinks, dancing and going out and enjoying herself (T179) and that they had walked home together (T179). The Crown submits, therefore, that the only new material concerning the complainant's conduct following the assault is the opinion that the complainant did not appear to be in pain and the statement that she was dancing with at least six police officers at one stage which involved straddling one male's leg whilst another was close behind. The Crown submits that none of these matters assist the Applicant on this application.
[85] With respect to the claim that the complainant's behaviour following the incident was not that of a bona fide victim, the Crown submits that Mr Bellis' material concerning the behaviour and feelings of the complainant is inconclusive, unpersuasive and does not cause unease with respect to the Applicant's conviction. In a number of respects, the Crown submits that the recent material from Mr Bellis does not assist the Applicant.
[86] In summary, the Crown submits that none of the material in the statement raises a doubt or question as to the Applicant's guilt or as to any part of the evidence in the case. The Crown submits the material is largely based on opinion and hearsay of doubtful admissibility and that, in any event, Mr Bellis was called as a witness at the trial and cross-examination on any of these matters could have been undertaken, if permitted by the trial judge.
[87] I have had regard to the Applicant's submissions and material concerning the recent statement of Mr Bellis, together with the Crown submissions on that topic. The material concerning the complainant's possible sexual relationships is, in my view, entirely speculative. I do not consider that it assists the Applicant on this application. It is highly doubtful that it would be admissible, even if capable of demonstration as being objectively true. In any event, the material indicates that the complainant informed Dr Harman that she did not engage in sexual activity between 19 and 23 July 2001 (see [57], [83] above).
[88] Mr Bellis was a significant Crown witness at the trial. His evidence pointed to early distress and upset on the part of the complainant together with early complaint by her of sexual assault on the part of the Applicant. No part of that testimony has been withdrawn by Mr Bellis. In my view, it was and remains potent evidence against the Applicant. It was the evidence of Mr Bellis at trial that the complainant remained at the nightclub and that dancing took place. It is necessary to maintain an air of reality and commonsense in considering this material. It is well known that the reaction of complainants of sexual assault may take a variety of forms. The explanations for this have been considered in the context of delay in complaint and associated issues.
[89] In this case, there was early visible distress accompanied by complaint of sexual assault. The complainant did not assert at the time, or since, that she was entirely physically disabled by the actions of the Applicant during the assault. The fact that the complainant remained at the nightclub for a period and danced with persons does not, in my view, give rise to any question or doubt as to the Applicant's guilt or to any doubt or question as to part of the evidence in the case. The additional material from Mr Bellis provided on 30 June 2007 does not, in my view, cut across his evidence at the trial which was damaging to the Applicant in significant respects.
[90] I agree with the Crown submission that the statement of Mr Bellis of 30 June 2007 in response to questions posed by the Applicant is essentially hearsay and opinion, and adds nothing to the present application which would assist the Applicant.
The applicant raised the issue again in his application dealt with by Fagan J, who said this about it:
[49] Ground 2 relies in part upon evidence provided in 2007 by Constable Bellis. He was a witness in the Crown case. He gave evidence in the trial that the complainant met with him at Flamingos on the evening in question and complained then that she had been sexually assaulted by Mr Holland and that she was in pain. In a post-trial statement provided to Mr Holland Constable Bellis described the complainant dancing with other police officers at Flamingos for some time after she made this complaint. Mr Holland now characterises the description given by Constable Bellis and other witnesses of the complainant's dancing as "extreme physical activity" which he submits is inconsistent with her having been sexually assaulted by vigorous digital penetration in the manner she alleged. Constable Bellis' statement was before Johnson J and was taken into account in his Honour's decision to refuse the previous application under ss 78 and 79 of the Crimes (Appeal and Review) Act.
[50] Mr Holland's submissions now under consideration include a contention that the complainant's dancing at the Flamingos after his sexual activity with her was in a suggestive and sexually provocative style. This claim is repeated countless times throughout his written submissions, in a manner which I find gratuitous. The characterisation of her dancing as "overtly sexual" has nothing to do with the issues on this application. One of the witnesses at trial described her manner of dancing as "sluttish", whatever that may have been intended to convey. Mr Holland's current submissions quote that evidence again and again. The only point now relevant is whether the complainant's post-assault activity was inconsistent with the bruising and tenderness she claimed to have suffered.
[51] I infer that Mr Holland has dwelt upon this description of her dancing in order to try to put the complainant in a poor moral light. Apparently to the same end he has made frequent reference to the fact that she was not wearing underpants on the evening in question. This fact is referred to in the submissions so frequently but to so little purpose that it has assumed the appearance of a prurient pre-occupation. I draw no conclusions about the complainant's character or veracity from these matters, to which Mr Holland has devoted such considerable attention. I do not find this aspect of his submissions relevant let alone persuasive as to whether there exists any doubt or question about his convictions or about any of the evidence given against him.
The applicant says in the affidavit that he and Sergeant Bellis spoke for nearly two hours. It is not without significance that the applicant said:
I advised him of what I was doing as far as challenging the findings of Johnson J and Fagan J.
What the applicant summarises Sergeant Bellis as saying was that there was nothing physically wrong with the complainant on the night concerned, that she was able to move in a normal fashion, and that she was laughing and dancing without any indication of pain or injury.
The other information said to have been provided by Sergeant Bellis concerned the nature of the relationship between the complainant and Matthew Ellis, another witness at the trial.
The applicant's affidavit also annexes a series of emails which shows that Sergeant Bellis has been prevented from providing a further statement or information to the applicant unless a subpoena is served upon him.
There is nothing in the further hearsay material from Sergeant Bellis that is substantially different, or different at all, from what was considered by Johnson J and Fagan J. Sergeant Bellis gave his evidence at the trial and, as Johnson J said, "It was and remains potent evidence against the Applicant", and Sergeant Bellis has not withdrawn that testimony.
Similarly, the issue about the complainant's relationship with Matthew Ellis has also been dealt with. Even if accepted in its entirety, there is nothing in it that gives rise to any doubt or question about the applicant's guilt. The material from Sergeant Bellis is simply a reiteration of issues that were dealt with in the Court of Criminal Appeal and on both the previous s 78 applications.
The other arguably new material appears in paragraph 297 of the applicant's submission of 17 May 2020. This concerns the further contact the applicant has made with Dr Morris Odell, after Johnson J's judgment, relating to the injuries sustained by the complainant at the time of the assault.
In his application to Johnson J, the applicant provided a number of medical reports from three doctors, Dr Parker-Newlyn, Dr Reid and Dr Odell. Dr Parker-Newlyn had been the applicant's general practitioner since October 2001 and had known him through his partner prior to that time. She was not called to give evidence at the trial.
The thrust of the medical evidence given by the three doctors concerned whether the injuries complained of by the complainant could have been seen by her on the night in question in the circumstances described by her, and whether they were likely to have been caused in the assault as she described it. The evidence also went to a comparison of her injuries with what was said to be her behaviour after the alleged assault.
Associated with that evidence was material from a person described as a forensic scientist, Mr Brent Turvey, who raised a number of issues in relation to the injuries and the sexual assaults alleged.
Justice Johnson dealt with Mr Turvey's evidence at [35]-[40]. His Honour dealt with the evidence concerning the injuries and the further medical reports extensively at [51]-[69].
The further evidence in the applicant's present submission is this:
297. So I contacted Dr Morris Odell to see if he could shed some light on this extraordinary acceptance of the level of physical activity that two NSW Supreme Court Justices have been trying to explain away -
Question. In your expert medical opinion is there any medical condition that would allow a woman who was demonstrating to all witnesses on 19 July 2001 a level of physical activity that clearly demonstrates she was not injured, debilitated or disabled in any fashion (including the observation that the complainant did not appear to be in pain and the statement that she was dancing with at least six police officers at one stage which involved straddling one male's leg whilst another was close behind) to then have an increasing level of pain in the genital area that bridges across four days including evidence that she had difficulty sitting down three days later and would preclude a medical examination on the fourth day?
Dr Odell's' response:
The classic condition that causes a rapid onset of severe genital pain in young women is an acute attack of genital herpes. The first attack of herpes is usually the worst but recurrent herpes is also very painful. Such an attack could be triggered by trauma or it could be coincidental. Usually with herpes there are obvious ulcers present but they may not be noticed if a full detailed examination is not possible. The abrasion described by Dr Harmon could have been a herpetic ulcer. I commented on the rapid healing of traumatic genital injuries in my original expert certificate but this does not necessarily apply to herpetic ulcers. Other possibilities include severe Candida (thrush), bacterial infections or a contact allergy or dermatitis from clothing. (emphasis in the original)
It will be noted again that the purpose of this evidence is to assert that Johnson J and Fagan J were wrong in the conclusions they reached.
Whist genital herpes, a herpetic ulcer, Candida, bacterial infections, contact allergy or dermatitis from clothing were not raised in Dr Odell's earlier report dealt with by Johnson J, no possible weight can be given to Dr Odell's response in answer to the applicant's recent enquiry. What is clearly being put forward is a series of possibilities in circumstances where Dr Odell never examined the complainant. Indeed the fact that so many possibilities are raised by Dr Odell points to the weakness and unreliability of what the applicant seeks to obtain from the enquiry he made.
There is nothing in the affidavit of the applicant, nor in the further comments of Dr Odell, that appears to raise any question as to the applicant's guilt. There is nothing in the material that constitutes special facts or special circumstances.
In my opinion, apart from the matter set out at [50] above, all of the matters raised by the applicant have been previously dealt with under earlier applications under this Part of the Act. The hearsay material from Dr Odell (at [50] above) has no weight whatsoever. I am not satisfied that there are special facts or special circumstances that justify the taking of further action.
In those circumstances I refuse to consider or otherwise deal with the application.
[3]
Amendments
28 April 2021 - Solicitors on title page amended
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: 28 April 2021
The applicant was arrested and charged on 21 September 2001 in respect of events that took place in Goulburn on 19 July 2001. Between 13 and 21 May 2002, the applicant stood trial before Shadbolt DCJ and a jury on an indictment containing five counts. The first was a charge of aggravated sexual intercourse without consent, the aggravation being the infliction of actual bodily harm. The second and third counts were of attempted sexual intercourse without consent, and the fourth and fifth counts were of assault with acts of indecency. All of the offences were said to have been committed as part of a single, continuing course of conduct during the evening of 19 July 2001.
The facts are conveniently summarised in the judgment of the Court Of Criminal Appeal (R v Holland [2002] NSWCCA 469) as follows:
[4] The appellant left the bar and went to Tully Park Tavern. Just before leaving he pulled forward the clothing the complainant was wearing on the upper part of her body, indicated her breasts and made a sexually suggestive remark. After having another drink at the Academy Bar, the complainant also returned to Tully Park Tavern in the company of others. She encountered the appellant and again bought a drink for each of them. He then bought each of them a drink. The appellant and the complainant engaged in conversation for about 20 or 25 minutes. During this conversation the appellant hugged the complainant on two or three occasions. This caused her no concern. At this point the appellant's (male) companion stated that he intended to leave. The appellant asked the complainant what she intended to do. She said that she intended moving to another bar (identified in the transcript as "Dingoes", also known as "Bingo". It may be that "Dingoes" is a mis-transcription for "Flamingos".) In any event the complainant and the appellant left Tully Park Tavern and went to another bar called Flamingos. At Flamingos the appellant continued to behave in a sexually suggestive manner, and his behaviour became more sexually explicit. The appellant's hands were on the complainant's back and hips. He told her he wanted to go outside. She asked why and he said he wanted to talk. He took the complainant by the hand and led her outside. He led her to a gate, pressed her against it and made further sexually suggestive references to her breasts. He pulled down her upper clothing, continuing to make references to her breasts. He kissed her breasts. The complainant was protesting. The act of kissing her breasts was the act that gave rise to the fourth count on the indictment, the first in time. On this count the appellant was acquitted. The complainant stated that she wished to return inside, but the appellant held her by the wrist and walked down a hill. The complainant protested. The appellant continued to hold the complainant tightly by the wrist preventing her pulling away. The appellant again removed, or tried to remove, the top part of the complainant's clothing. The complainant continued to protest. The appellant put his hand in the front of the complainant's pants and inserted his fingers in her vagina. This caused the complainant some pain. The act of inserting his fingers in her vagina gave rise to the first count on the indictment (of which the appellant was convicted). At the same time he was attempting, using his other hand, to remove her clothing. The appellant told the complainant that she "wanted it because she was wet". The appellant pushed the complainant downwards until she was on her knees and attempted to insert his penis into her, but his penis was not fully erect and the attempt failed. This gave rise to the second count (of attempted sexual intercourse), on which, again, the appellant was convicted. The appellant again pulled the complainant down and attempted to insert his penis into her mouth. It was not fully erect, and touched her face. This gave rise to the third count on the indictment (on which the appellant was acquitted).
[5] The complainant stood up and began to leave. The appellant took her hand and placed it on his penis. This gave rise to the fifth count (which resulted in the appellant's acquittal). The complainant began to walk away and returned to the car park at the Tully Park Tavern. The appellant accompanied her. On the way he again attempted to kiss her. At the car park the complainant saw four of her friends entering a car, and she joined them. They drove to Flamingos. There she found a close friend, Cameron Bellis.
[6] She told him something of what had happened. She made specific reference to the allegation that the appellant had attempted to insert his fingers in her vagina. She was crying. Mr Bellis, and a number of others, observed the complainant in an apparently distressed condition. She was experiencing pain in the vaginal area. In the toilet she made a visual inspection of her vaginal area and found that it was swollen and discoloured.
The jury found the applicant guilty on the first and second counts, and not guilty on the remaining three counts. The applicant was represented by counsel at the trial.
On 27 June 2002 the applicant was sentenced on the first count to imprisonment for four years commencing 21 May 2002 and expiring 20 May 2006 with a non-parole period of eighteen months expiring 20 November 2003. On the second count he was sentenced to imprisonment for two years with a non-parole period of one year. That sentence also commenced on 21 May 2002 and was to be served concurrently with the sentence for count 1.
On 27 November 2002 the Court of Criminal Appeal (Simpson J, Carruthers & Mathews AJJ) dismissed an appeal against conviction. The applicant was represented by counsel on the appeal.
Five of six grounds of appeal were argued. Four of the grounds complained of inadequate and erroneous directions and instructions to the jury, and one ground alleged that the verdicts on counts 1 and 2 were unreasonable by reason of inconsistency with the verdicts on counts 3, 4 and 5. There was no ground of appeal that the verdicts in relation to counts 1 and 2 were themselves unreasonable.
No application was made to the High Court for special leave to appeal.
On 28 May 2006 the applicant applied pursuant to Part 13A of the Crimes Act 1900 (NSW) for an enquiry into his convictions. On 23 February 2007, the provisions contained in Part 13A (ss.474B-474N) Crimes Act 1900 were repealed and re-enacted as Part 7 (ss.76-88) Crimes (Appeal and Review) Act 2001 ("CARA"). 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 of CARA: cl.13, Schedule 1 of CARA.
The application was determined by Johnson J under s 78, (contained within Part 7) of the CARA, and the application was refused: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251.
On 21 July 2016 the applicant lodged a second application under s 78. That application was determined by Fagan J who determined pursuant to s 79(3) of the CARA that he refused to consider or otherwise deal with the application: Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2017] NSWSC 462.
On 17 May 2020, the applicant made a further application under s 78 of the Act. This judgment concerns that application.
Legal principles
In Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 I said:
[34] The legal principles governing these applications are now reasonably well known. The inquiry is not whether there is a doubt or question as to the convicted person's guilt or, here, as to the sentence (Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [29]-[31]) but whether there appears to be a doubt or question: Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [16]. The requisite "doubt or question" was said to be something which might cause unease: Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 at 48.
[35] In Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Johnson J said:
[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.
Since the present application is the third such application under s 78 of the Act, the issues raised by s 79(3) arise for consideration. In addition, the question of the extent of reasons required for a determination of the present application acquires some significance.
In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001, Johnson J said this in relation to reasons for determining s 78 applications:
[13] The Applicant is unrepresented on the present application. This is not uncommon in Part 7 applications to the Court. As occurred in the Application of Higgins [2007] NSWSC 848 at [55], a large volume of written material has been provided by the Applicant in support of his application, much of which was repetitive. The Crown has responded to the Applicant's submissions and materials in several written submissions.
[14] In the course of determining an application for an inquiry under s.475 Crimes Act 1900 (Application of Kalajzich, 18 September 1992, BC9201597), Grove J observed at page 43:
"Unlike a judicial determination I am not obliged to give reasons and it would be sufficient for me to read all the proffered material and, in the absence of any conclusion that it gave rise to a sense of disquiet or unease, simply take no action. I have made reference to some of the claims which I believe gives a fair overview to the nature and quality of the avalanche of assertion which has been forthcoming. I record that I have in fact read all of the material and none of it provokes doubt about the integrity of the convictions."
[15] Grove J made this observation in the context of an application accompanied by voluminous written material. His Honour said at page 3:
"The approach to the court has been accompanied by a profusion of print from which I have gleaned that those who prepared it might conceive that I am exercising some undefined but ultimate appellate power. Whatever the administrative nature of my task essentially is, I am not presiding in judicial proceedings: Varley v Attorney General of New South Wales (1987) 8 NSWLR 30."
[16] It has been clear since the decision in Public Service Board of New South Wales v Osmond (1985-1986) 159 CLR 656 that, absent the imposition of a statutory obligation, the general law principles of procedural fairness do not require administrative decision makers to give reasons for the discretionary exercise of a statutory power: Commissioner of Police v Ryan [2007] NSWCA 196 at [38].
[17] I observe that the statutory scheme contained in Part 7 of the Crimes (Appeal and Review) Act 2001 is more elaborate than the scheme in s.475 Crimes Act 1900. In particular, the Supreme Court may refuse to consider or otherwise deal with an application (s.79(3)) or may defer consideration of a s.78 application (s.79(3A)).
[18] The provisions contained in Part 7 suggest that where a judge declines to direct an inquiry or refer the case, some reasons for that decision should be provided. Section 79(3)(a)(ii) provides that the Court may refuse to consider or otherwise deal with an application if it appears that the matter has previously been dealt with under Part 7 or previous review provisions, and the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. It might be thought that a judge is in a better position to reach such a view if reasons have been provided by the first judge for refusing the previous review application.
[19] Where a judge directs an inquiry under s.79(1)(a) of the Act, it might be expected that reasons will be provided for such a direction to allow an understanding of the circumstances giving rise to the doubt or question identified for the purposes of s.79(2) of the Act. Reasons might also be expected where a referral of the whole case is made to the Court of Criminal Appeal under s.79(1)(b) of the Act, although it will be a matter for the Court of Criminal Appeal to determine the appeal upon the grounds and materials before that Court: R v Vastag (Court of Criminal Appeal, 20 June 1997, unreported); R v Johns at 151-153.
[20] I propose to give reasons for my decision on the application. I do not propose to address every argument advanced by the Applicant in his submissions. I will, however, address the significant topics advanced in support of the application.
In Clark v Attorney General of New South Wales [2020] NSWCA 70 Basten JA said this concerning s 79(3):
[5] The purpose of s 79(3) is tolerably clear: it is to ensure that the court has appropriate powers to dispose summarily of applications which might otherwise be described as frivolous, vexatious, misconceived or lacking in substance. Satisfaction as to such matters would be sufficient to warrant a refusal to refer an application for an inquiry under s 79(1). However, s 79(3) seeks to go one step further and provide bases upon which the court may refuse to consider the application at all. It also permits the court to refuse to "otherwise deal with" an application, although it is not clear whether that language adds anything to a refusal to consider. There is obvious merit in taking the step adopted by Rothman J in order (3) of dismissing the application.
[6] There is a difficulty with the concept of refusal to consider in circumstances where the judge is not conducting an inquiry, but only determining whether an inquiry should be held. In many circumstances it will be necessary to give some level of consideration to the material on which the application is based in order to reach the conclusion that no inquiry should be conducted. However, in circumstances where the judge's reasons extend to 131 paragraphs covering 44 pages, it is hard to say that there has been a refusal to "consider" the application at all. There has been a refusal to further consider, which may fall within the words, "refuse to … otherwise deal with" the application. However, that reading is awkward.
[7] A second problem with the function and structure of s 79(3) derives from the list of matters identified in pars (a) and (b). Although those matters do not purport to limit the discretionary power otherwise conferred in the first sentence in the chapeau, a court will approach the generality of a power conferred in unfettered terms by considering any implied limitations which may derive from the purpose and subject matter of the power conferred, and the statutory context in which it is to be found. The statutory context includes the list of matters which are said to engage the power to refuse to consider or otherwise deal with an application. One troubling factor derives from the apparent intention that pars (a) and (b) identify cumulative considerations. To take one example, from par (a)(ii), it might be thought appropriate to refuse to consider an application which had been previously dealt with; yet that factor is only engaged where the court has also considered whether, and not been satisfied that, there are "special facts or special circumstances that justify the taking of further action." It is apparent that Rothman J thought it appropriate, perhaps from an abundance of caution, to express (affirmatively) that there were no special facts or circumstances preventing the exercise of the power to refuse to consider. However, if the judge had been satisfied that there were any facts or circumstances justifying further consideration of the application, presumably he would have taken that step. The purpose of referring in par (b) to "special facts" and "special circumstances" is obscure and tends to confuse.
[8] There is much to be said for transparency in dealing with applications seeking an inquiry into criminal convictions and sentences. However, that value can be overstated in circumstances where an application should be summarily dismissed on the grounds that it is, for example, repetitive and raises no new matter. The absence of a clear statement of the power to deal with an application in that way leads, understandably, to extensive reasons being given for dismissing an application which might otherwise be given short shrift. (emphasis added)
Justice McCallum (with whom Macfarlan JA agreed) said:
[44] In determining whether to consider an application under Part 7, it would not be permissible for the judge to act arbitrarily or capriciously; where it is a condition of the exercise of a statutory power that the decision-maker must be "satisfied" as to the existence of certain factual matters, he or she is required to act in good faith in reaching a conclusion on that issue: Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at 118 (Gibbs J), 131 (Mason J). The scope of the discretion is otherwise confined at least by "the subject matter, scope and purpose of the legislation under which it is conferred": Li [Minister for Immigration and Cirtizenship v Li (2013) 249 CLR 332; [2013] HCA 18] at [23] (French CJ). The separate judgments of Basten JA and Beech-Jones J in Sinkovich [Sinkovich v Attorney-General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383] provide a helpful analysis of the statutory history and language of Part 7. Justice Basten concluded at [52] that the overriding purpose of that Part is, "consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles". Acting consistently with that purpose, Rothman J was careful to consider the grounds for the application in some detail before deciding to refuse to consider them further.
[45] It may be accepted that the scope of the grounds that may properly be raised for seeking an inquiry under Part 7 is broad. In Sinkovich at [30], Basten JA noted that the "looseness of the fit of the language as between ss 78(1) and 79(2) militates against reliance on the precise terms of s 79(2) to impose restrictions on the scope of the matters which an applicant may seek to raise in applying for an inquiry". His Honour was referring to the fact that what may be sought under s 78(1) is "an inquiry into a conviction or sentence" whereas s 79(2) uses the term "guilt" (rather than conviction) and extends to matters underlying the conviction ("any part of the evidence in the case") and matters couched in the language familiar to proceedings on sentence ("any mitigating circumstances"); and see the additional remarks of Beech-Jones J in Sinkovich at [86] and [87] concerning the scope of an application concerning sentence.
[46] It may be accepted in accordance with those remarks that the breadth of the matters which an applicant may seek to raise in applying for an inquiry informs the scope of the Court's consideration for the purposes of s 79(3) as to whether "the matter" has been fully dealt with at the trial or on appeal, or previously dealt with under Part 7. However, it does not follow that the Court cannot exercise the discretion without again considering every issue raised in any previous proceeding. On that approach the screening function of the discretionary power to refuse to consider an application would be defeated.
[47] Finally, the content of the relevant "matter" and the question whether it has been "dealt with" previously will be informed by the nature of the issues raised. Although, as noted by Basten JA in Sinkovich at [46], Part 7 is "inherently an exception to the principle of finality", it is not intended to set the verdict of the jury at nought. There is nothing in the text of the statute to suggest that it is necessary, before the discretion to refuse to consider an application under Part 7 is enlivened, for the Supreme Court to be satisfied that every piece of evidence or every paragraph of every submission put in support of the application was fully dealt with at the trial or on appeal or has previously been dealt with under Part 7. The task is to identify the substance of the matter the applicant contends warrants an inquiry or referral of the case to the Court of Criminal Appeal. (emphasis added)
Clark v Attorney General of New South Wales was an application for prerogative relief in relation to a determination by a judge at first instance of an application under s 78. The Court of Appeal made clear that such a determination is reviewable for jurisdictional error (at [12] and [36]). In circumstances where a decision is reviewable for jurisdictional error, it seems to me that it is necessary for the decision maker to provide at least sufficient reasons so that a court reviewing the determination is able to determine whether the decision maker has acted within jurisdiction. That may mean that what was said by Grove J in Application of Kalajzich, 18 September 1992, BC9201597, (referred to by Johnson J in Holland) requires modification.
Nevertheless, the circumstances of a particular application may mean that only brief reasons need to be given, particularly where the material put forward in a subsequent application is repetitive of material considered in earlier applications.
In Milat, Ivan Robert Marko - Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209, Johnson J was dealing with a sixth application under s 78. The applicant had unsuccessfully appealed to the Court of Criminal Appeal and had been refused special leave to appeal to the High Court. All of the earlier s 78 applications had been unsuccessful. In those circumstances, Johnson J determined that he should refuse to consider or otherwise deal with the application, merely by accepting brief submissions from the Crown that the application was repetitive of matters put forward on earlier applications. In my opinion, the brevity of those reasons was such that, if the Court of Appeal was called upon to consider whether Johnson J had acted within jurisdiction, the reasons would have been adequate for it to do so.