(2019) 368 ALR 242
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
[2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
[2013] HCA 18
Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463
[2013] NSWCA 343
R v Rendell (1987) 32 A Crim R 243
Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783
Source
Original judgment source is linked above.
Catchwords
(2019) 368 ALR 242
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437[2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18
Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463[2013] NSWCA 343
R v Rendell (1987) 32 A Crim R 243
Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783
Judgment (2 paragraphs)
[1]
The applicant's grounds for review
The applicant specified three grounds for review, as follows:
"(1) His Honour Harrison J made an error in law in not assessing the credibility of the 2018/2019 fresh evidence of ER, E, and Solicitor Greg Schumer upon the view most favourable to an applicant which in the Court's view a reasonable jury may properly take.
(2) The Supreme Court was wrong in law to dismiss the application, because in its view ER and E's fresh evidence of 2018/2019 did not overcome 79(3)(a) of the Crimes (Appeal and Review) Act 2001.
(3) Declare that the Supreme Court acted ultra-vires to the statutory requirements of the Supreme Court Rules in Part 7 Crimes (Appeal and Review) Act 2001 by refusing to consider ER and E's credibility at trial and the Court of Criminal Appeal against the 2018/2019 fresh evidence."
Ground 1 asserts the existence of a requirement, when a judge is considering an application under s 78, to assess the credibility of any fresh evidence on the view most favourable to an applicant. The very same ground for review was rejected in GAR (No 2) at [177]-[179] (Payne JA, with whom Beazley P agreed). No authority to the contrary was cited by the applicant. This ground should be rejected.
Ground 2 asserts error in reaching the view that the fresh evidence did not "overcome" s 79(3)(a) of the Act. The applicant submitted:
"Harrison J was wrong in law in not accepting that the 2019 affidavit of E (attached as annexure (B)) coupled to ER's 2018 exchange with Mr Schumer (affidavit of Greg Schumer attached as annexure (C)) was fresh evidence that (1) undermines the evidence relevant to the applicant's conviction, (2) represents a direct challenge to the findings of her Honour Adamson J in GAR - Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205 and (3) overcomes the issues surrounding s 79(3)(a)(ii), of the Crimes (Appeal and Review) Act 2001."
The submission misconceives the nature of the discretionary power to refuse to consider an application, for the reasons already explained. As submitted on behalf of the Attorney General, it was open to Harrison J, in the exercise of his discretion, to refuse to consider or otherwise deal with the applicant's fourth s 78 application on the basis that the matter had previously been dealt with. The affidavit material relied upon in support of the application did not include anything new from ER. The applicant relies on the evidence of Mr Schumer to undermine the hypothesis posited by Adamson J that ER might have signed the statutory declaration in 2015 because she had nothing to lose in assisting GAR after he had served his sentence. Adamson J said at [44]:
"That a witness or victim might, after an offender has been released from custody, appear to recant from evidence given at a trial or on an appeal, does not necessarily create a doubt about the offender's guilt."
The applicant noted in his written submissions that her Honour's reasoning has no relevance in the present case because he "is in custody and has been in custody, essentially based on the evidence of ER since 2002 and is not due for release until 2021 earliest and 2027 fulltime." So much was clear from the applicant's evidence before the Court of Criminal Appeal when the matter was referred by Barr J. In an interlocutory judgment of McColl JA in the earlier proceedings for judicial review, her Honour recorded that the applicant is presently serving lengthy terms of imprisonment for two armed robbery offences in respect of which ER gave "what was clearly important evidence for the Crown" at two separate trials: GAR v Attorney General of New South Wales and Supreme Court of New South Wales [2017] NSWCA 47 at [7].
It may be accepted that Mr Schumer's evidence appears to refute one of the reasons postulated by Adamson J as to why ER might have been inclined to provide the 2015 statutory declaration supporting E. However, that is not material to the soundness of the conviction. Taking the evidence at its highest (which is generous, given that it consists of a single, untested statement shorn of any context), it goes no further than to indicate an attitude that is entirely consistent with the offence having been committed exactly as ER described.
So far as E is concerned, her affidavit does elaborate upon the content of the 2015 statutory declaration considered by Adamson J. However, in my view, it was open to conclude that the affidavit did not take the matter any further than the position as it stood before Adamson J. The matter raised by that application was an assertion by E that she had been asked by her mother to give false corroboration of what she evidently believed to be a true complaint of sexual assault together with an admission by ER that what E said in that respect was true. That matter went to the general credibility of ER. The new material does not take that issue any further. The essence of the fourth application was to cavil with the reasoning of earlier decisions without providing any new basis for doubting the soundness of the conviction.
It is important in that context to recall the scope of this Court's jurisdiction. This is not a review of the merits of the decision of Harrison J, let alone of the merits of the decision of Adamson J. The single question for this Court is whether Harrison J's decision entailed jurisdictional error. I am not persuaded that it did.
Ground 3 raises no further issue beyond those raised by grounds 1 and 2.
For those reasons, I am of the view that the summons should be dismissed with an order that the applicant pay the respondent's costs.
[2]
Endnote
This court was provided with the transcript of the trial, but it was not before Harrison J and was admitted only for the purpose of checking excerpts quoted by GAR in his submissions before Harrison J. The judgments were before Harrison J.
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: 19 August 2020
Solicitors:
n/a (Applicant)
Crown Solicitors Office (Respondent)
File Number(s): 2019/376331
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law Division
Citation: [2019] NSWSC 982
Date of Decision: 15 August 2019
Before: Harrison J
File Number(s): 2019/62055
The nature of the discretion under s 79(3)
The nature of the discretion must be considered in the historical and procedural context in which the opportunity to seek an inquiry into conviction or sentence exists. The relevant legislative history is set out in the judgment of Heydon J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [64]-[75]. As there explained, legislation conferring authority on a judge of the Supreme Court (then only by direction of the Governor) to conduct an inquiry after the conviction of a prisoner in order to resolve a doubt or question as to the prisoner's guilt was first introduced in 1883, well before the existence of any right of appeal against conviction. That is not to say that the possibility of seeking an inquiry has become redundant; on the contrary, as noted by Basten JA in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [52], when appeals became available, the mechanism for resolving doubts or questions as to the soundness of a conviction or sentence "was not removed but was, indeed, improved upon and made more readily accessible".
Basten JA made those remarks in the context of a discussion of the potential conflict, in the argument for such an inquiry, between the demands of finality and the demands of justice. The whole of the relevant passage at [52] warrants repeating:
"History and statutory language demonstrate that the overriding purpose of Pt 7 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. Historically, the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention. When appeals became available, that mechanism was not removed but was, indeed, improved upon and made more readily accessible."
It may be accepted, in accordance with those remarks, that the availability of an accessible mechanism for resolving a doubt as to the basis for infringement of a person's liberty that emerges after conviction and sentence remains important. However, the introduction of appeals necessarily repositioned that mechanism in the hierarchy of appeal and review. So much is plain from the scheme of s 79, which contemplates that the appeal process should first be exhausted before an application for an inquiry will be considered.
In that context, s 79 authorises three courses that may be taken by the judge to whom an application under s 78 is referred. The judge may:
1. consider the application and then either take action of the kind allowed under s 79(1) (subject to satisfaction of s 79(2)) or dismiss it;
2. refuse to consider or "otherwise deal with" the application under s 79(3); or
3. defer consideration of the application under s 79(3A) pending the finalisation of any appeal proceedings or the provision of further information (this gives content to the power to refuse to "otherwise deal with" an application under s 79(3): cf Clark v Attorney General of New South Wales [2020] NSWCA 70 at [5] per Basten JA).
The basis on which the exercise of the discretion is amenable to review
The scope of the discretion not to consider an application informs the content of the grounds on which its exercise is amenable to judicial review. It is uncontroversial that the determination of an application under s 78 is amenable to review for jurisdictional error. The more difficult question is to determine what that means in the case of an (almost) absolute discretion. In a delightful discussion of that topic, 'The Return of the (Almost) Absolute Statutory Discretion' in Janina Boughey and Lisa Burton Crawford (eds), Interpreting Executive Power (Federation Press, 2020) 129 at 129, Professor Matthew Groves refers to Ronald Dworkin's explanation of the notion of discretion:
"Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, 'Discretion under which standards?' or 'Discretion under which authority?'"
Professor Groves notes that this reasoning defines discretion by the absence of other things (restrictions). An important consideration in determining the tightness of the belt around the discretion under s 79(3) is the repository of the power (a judge exercising non-judicial power) and the context in which it falls to be exercised (after a trial and after the opportunity to exercise all rights of appeal).
Section 79(4) is also significant. That section provides:
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.
The designation of the proceedings as "not judicial proceedings" is a necessary corollary of the existence of the authority conferred by s 79(3) not to consider an application; a judge exercising a judicial function could not refuse to exercise the court's jurisdiction properly invoked.
The new material relied upon in the present case consisted of the affidavit of Mr Schumer dated 8 February 2019 deposing to words said to him by ER ("after what that man has put me through, I want nothing to do with him. I have been dragged through so many court cases which has taken a huge toll on me over the years. I will never do anything to help him") and an affidavit of E dated 30 January 2019 expanding on her most recent account of the events of the night and her reasons for giving different accounts in the trial and before the Court of Criminal Appeal. There is no new direct evidence from ER.
White JA notes that Harrison J's reasons at [8] fastened on the question of guilt and did not address the question of any doubt as to the evidence in the case. His Honour holds at [91] that Harrison J's failure to address the issues raised by the evidence "amounted to a constructive failure to exercise jurisdiction, a failure to consider relevant considerations and was legally unreasonable in the sense described in [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18]."
Where the judge decides to consider an application, he or she may take action of the kind identified s 79(1). However, such action may only be taken if the "gateway" in s 79(2) is passed. Section 79(2) provides:
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.
By contrast, s 79(3) is self-contained. In Clark, I noted that the discretion conferred by that section is not conditional upon the establishment of any particular matter and, while the matters stated in pars (a) and (b) serve as a guide to the proper limits of that power, its exercise is not conditional upon their being satisfied: at [39], Basten and Macfarlan JJA agreeing at [3] and [11] respectively; see also the additional remarks of Basten JA at [7]. It may be accepted that the proper exercise of the discretion to refuse to consider an application will require some consideration of the material on which the application is based and the circumstances in which it is brought: Clark at [6] per Basten JA. The consideration to be given to those matters will of course be informed by the content of the task the judge is considering whether to undertake, which in turn calls attention to the terms of the gateway provision in s 79(2).
As White JA has noted, the gateway provision does not put the bar so high as to require an applicant to establish the appearance of a doubt or question as to the convicted person's guilt; it is enough (to satisfy the gateway) if the application concerns the evidence in the case. However, it does not follow that action under s 79(1) is required in every case in which any aspect of the evidence is impugned. As Basten JA explained in Sinkovich, the section is concerned with the soundness of the conviction (or sentence). The statute does not confer an entitlement to an inquiry, only an entitlement to seek one. Where the application relies on new evidence said to give rise to the appearance of doubt as to the evidence in the case, some evaluative judgment must be undertaken as to the cogency of the matters relied upon and their materiality to the soundness of the conviction.
White JA holds that Harrison J "could only have refused the application under s 79(3)(a)(ii) if he were not satisfied that the fresh material contained special facts or circumstances that would justify the taking of further action". White JA considers that it was necessary for Harrison J to address that issue "if his Honour were to rely on s 79(3)(a) as the ground for refusing to consider the application".
In my respectful opinion, that analysis misconceives the breadth of the discretion to refuse to consider an application. I accept of course that an application under s 78 has to be considered in good faith and that 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, as I said in Clark at [44]. My point is that the lawful exercise of the power is not conditional upon satisfaction as to the matters listed in s 79(3)(a) and (b), even though those matters strongly guide the proper exercise of the discretion.
Harrison J recorded his decision in the following terms: "I consider that in all of these circumstances I should refuse to consider or otherwise deal further with this application in accordance with s 79(3)(a) of the Act": at [12]. The use of the phrase "in accordance with" does not suggest that his Honour put all else out of his mind, nor could those words constrain an otherwise unconstrained discretion. As already explained, it is not the case that the discretion may only be exercised if the matters identified are established or if a "ground" in s 79(3) is made out.
Further, as observed by Basten JA in Clark at [7], with respect to the consideration in s 79(3)(a)(ii), the purpose of the reference in s 79(3)(b) to "special facts" and "special circumstances" is obscure. To have spelled out such a matter in the statute may be taken to reflect cautious legislative drafting. Ex hypothesi, a judge acting in good faith who was satisfied that there were special facts or special circumstances that justified the taking of further action would do so. Rather than viewing that as a mandatory consideration to which his Honour failed to have regard, I would take it to be a necessary implication of his Honour's exercise of the discretion to refuse to consider the application that he was not satisfied as to the existence of any special facts or special circumstances that justified the taking of further action.
Furthermore, that conclusion is implicit in his Honour's reasons at [11]. Having identified the substantial issue to which GAR's application was directed as being "the jury's acceptance of ER as a witness of truth" in the face of her alleged influence upon her daughter's evidence, his Honour was not satisfied that there was "anything that suggests why that issue should now be looked at again".
I respectfully disagree. The statute authorises the court to refuse to consider an application. That discretionary power is not unconstrained; none is: Li at [23]. But nor is it to be construed so narrowly as to leave no scope for the exercise of judgment on the part of the judge to whom an application is referred. The Act does not disclose an intention that every application that raises a doubt as to any aspect of the evidence in the case must necessarily be considered. It is rare for there to be no doubt as to any aspect of the evidence in a criminal case. Part 7 finds its place within a suite of protections in the Crimes (Appeal and Review) Act and the Criminal Appeal Act against miscarriage of the processes of the criminal justice system. The object of providing "a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence" referred to by Basten JA in Sinkovich is not unilaterally for the benefit of convicted persons. Just as a potentially unsound conviction should properly be the subject of inquiry or referral to the Court of Criminal Appeal, a sound conviction should stand, at some point finally so. The existence of the discretion not to consider a Part 7 application is an important and valuable aspect of the function conferred on the court by the Act.
For my part, I do not think s 79(3) is to be construed as being subject to a limitation requiring the court to consider and address any application based on new evidence that contradicts or undermines other evidence in the case. The discretion not to consider an application (beyond considering it to the extent necessary to form a view as to whether to exercise the discretion under s 79(3)) calls for an evaluative assessment which will ultimately be guided by fairness.
For the same reasons, I would respectfully doubt the correctness, in the present context, of White JA's analysis at [87] that "focusing on whether the reasons for the decision admit of legal unreasonableness means that legal unreasonableness can be found even if another path could be taken to the same conclusion that did not involve legal unreasonableness (Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287] (Bathurst CJ))". The Chief Justice's remarks in that case were directed to the reasoning in support of a decision on factual matters essential to the making of a finding of corrupt conduct.
A decision under s 79(3) is of a different kind. The section permits the judge to decline to consider an application including where he or she is satisfied of certain matters and not satisfied of certain matters. If it could be concluded, without legal unreasonableness, that it was open to refuse to consider an application, the availability or appropriateness of declaratory relief might be doubted.