GAR v Attorney General of New South Wales

The application to this Court

1. At [131] Payne JA has extracted and paraphrased the grounds of the present application pleaded by the applicant in the Amended Summons. It is to be emphasised that, because the function being exercised by the primary judge was administrative, and not judicial, the applicant's entitlement to review of the primary judge's decision is limited; his entrée into this Court lies only under s 69 or s 75 of the Supreme Court Act, and not by way of appeal under s 101. He further limited his avenues by relying only on jurisdictional error, to the exclusion of error of law on the face of the record.
2. Nonetheless, I have come to the view that he has established grounds for relief.
3. The grounds advanced by the applicant may be further summarised as: (i) that the primary judge took into account extraneous or irrelevant considerations - those considerations being possible explanations for E or ER having recanted from their original evidence implicating the applicant (see [44] of the determination); (ii) error of principle in failing to accept a view (of the facts) most favourable to the applicant in assessing the credibility of the fresh evidence (the fresh evidence being the statements in the 2015 document); (iii) factual error in respect of the date of the handwritten statement on the 2015 documents; (iv) error in failing to take into account discrepancies between the evidence of ER (in the trial) concerning facial scratching, and the medical evidence.

Analysis

1. There is one obvious construction to be placed on the 2015 document. That is that: E asserted:

• that ER had asked E falsely to corroborate ER's evidence at trial;
• that she had done so;
• that the evidence she had given was false; ER:
• confirmed that E's statements were true;
• but, nevertheless, maintained (in the handwritten statement) that her complaint of sexual assault was true.

1. There may be other explanations for the statements in the document which are not immediately apparent and cannot at present be explored. What is now important is that, on that proposed construction, there is no inconsistency between ER's two statements (contrary to the view expressed by the primary judge in [43]). There is no inconsistency in admitting to procuring false corroboration of a true complaint.

Jurisdictional error

1. I have concluded that it is unnecessary to dissect the grounds specified by the applicant. That is because I am satisfied that the primary judge failed to address the question committed to her, and, accordingly, failed to exercise the jurisdiction conferred: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088; [2003] HCA 26 at [32]; Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1; Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220 at [39].
2. To reiterate, by s 79 of the CAR Act, the Supreme Court may direct that an inquiry be conducted into a conviction or sentence, (or may refer "the whole case" to the Court of Criminal Appeal) if (and only if) it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstance in the case, or as to any part of the evidence in the case. The task is not a composite one; it is tripartite. The section potentially calls for attention to three discrete and distinct issues. (I say "potentially" because not each issue will call for attention in each case. What is called for will depend upon the circumstances of the individual case.) There remain, however, three components to s 79, each of which is, as I have said, separate and distinct and needs, where it arises, to be addressed separately from the others. The three components are (in the sequence stated in the legislation):

• the guilt of the convicted person;
• any mitigating circumstances in the case; and
• any part of the evidence in the case. In Sinkovich (at [27]) Basten JA also pointed out the tripartite nature of the exercise prescribed by s 29(4).

1. The second of the three heads prescribed for inquiry is peculiarly related to questions of sentence and can for present purposes be put to one side. The first and third relate to conviction, although the third could also relate to sentence.
2. In Sinkovich, Basten JA (with whom Bathurst CJ, Beazley P, and Price and Beech-Jones JJ agreed) likened the "overriding purpose" of Pt 7 to: "… 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 …" (at [52]) He added (reviewing the long history of the Pt 7 provisions and their predecessors) that: "… 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."

Resolution

1. I begin by stating the proposition that the question committed to the judge to whom a s 78 application is allocated is not whether there exists, objectively, a doubt or a question as to the guilt of the convicted person, or as to any evidence in the case. The question so committed is whether it appears to that judge that there is such a doubt or question: Sinkovich at [26]; Buttrose at [16]. That is, I acknowledge, a substantial limitation on the extent to which this Court may intrude into the consideration.
2. Nevertheless, if the judge to whom an application is allocated fails to address his or her satisfaction that there exists a relevant doubt or question, jurisdictional error is established. In my opinion that is this case.
3. A further preliminary proposition is this. The foundation for the application was the 2015 document. In the absence of any evidence (other than that of Mr West) as to its provenance, it must be taken at face value - that is, an admission by E that she had, at the behest of ER, given false evidence at the applicant's trial, and a further admission by ER that that was the case. (ER's further assertion that her complaint of sexual assault by the applicant was true does not advance the question of the veracity of E's evidence at trial.)
4. Examination of the primary judge's reasons establishes to my satisfaction that she focussed exclusively upon the first question - whether it appeared to her that there was a doubt or question as to the applicant's guilt. So much is apparent from [44], which she commenced by considering whether E and ER were (at the trial) telling the truth about the incident and its immediate aftermath, and in which she went on, in the second sentence, to say that recanting by witnesses from evidence "does not necessarily create a doubt about the offender's guilt". Moreover, in [42] and [46] her Honour placed heavy reliance upon, and, indeed, adopted, the findings of the 2010 Court of Criminal Appeal as to the credibility of E, notwithstanding that the later statement by E, and, more particularly, the statement apparently by ER, cast considerable doubt on those findings, and put the credibility of E in a different light. Indeed, the primary judge paid little attention to the impact of what must for present purposes be taken to be an admission by ER that she had procured E to give false evidence.

Factual background

1. On 1 November 2002, a jury returned a guilty verdict on an indictment alleging that on or about 14 January 2002 at Doonside the applicant had sexual intercourse with his wife (ER), without her consent and knowing that she was not consenting. The applicant was sentenced to a term of imprisonment of 6 years, with a non-parole period of 4 years and 6 months. The term of imprisonment expired on 4 April 2008. The applicant is presently serving a term of imprisonment for two armed robbery offences, unrelated to those the subject of this appeal: GAR v Attorney General of NSW [2017] NSWCA 47 at [7]. The facts in relation to the applicant's sexual assault conviction may be summarised as follows: 1. On the morning of 13 January 2002, a few days after GAR and ER divorced, GAR went to the house in which ER and ER and GAR's daughter, then 12 years of age, resided (E); 2. The Crown case was that GAR remained in the house, contrary to requests from ER that he leave. The circumstances in which GAR remained in the house were the subject of a wrongful detention count in the indictment at the trial on which he was acquitted; 3. At about midnight, ER went to bed in her room, remaining fully dressed. About 15 minutes later, GAR came into the room and approached her. ER said, "Don't do this to me G. Please don't do this to me". GAR then had sexual intercourse with ER without her consent. Sometime later, he left the house; 4. ER showered, dressed and then telephoned a friend, RM. In the early morning, at about 6am, she had a conversation with E. A telephone call was made to the police. At about 11:20 am two police officers attended the house and had a conversation with ER. Later that afternoon, ER attended Westmead Hospital where a Dr Sterrett took a history, examined her and prepared a report; 5. ER was the main Crown witness at the trial. She gave evidence that her injuries included "scratches where [GAR had] dug his fingernails into the, on my face when he had his hand over my face"; 6. The two other Crown witnesses were, relevantly, E and Detective Senior Constable Peter Crampton. Detective Crampton gave complaint evidence with respect to taking ER's statement on 14 January 2002; 7. E's evidence corroborated her mother's evidence in a number of respects. She gave evidence that in the early hours of the morning of 14 January 2002, she overheard her mother pleading with GAR. She also gave evidence (relied on by the Crown as evidence of complaint) that in her morning conversation with ER, she had said to her mother "I know he raped you" and ER had replied "Yes he did", following which E called the police; 8. The defence case at trial was that during the afternoon of 13 January 2002, GAR and ER reconciled. GAR gave evidence that after E went to bed, consensual intercourse took place between ER and himself several times.

The applicant's appeal to the CCA in 2003

1. On 19 August 2003, the applicant's appeal against his conviction was dismissed, and leave to appeal against his sentence was refused by the Court of Criminal Appeal comprising, Spigelman CJ, Bell J and Miles AJ: R v GAR [2003] NSWCCA 224.
2. One of the grounds in that appeal was that the trial judge erred in law in directing and/or failing to direct the jury adequately or properly as to ER's complaint. The Court referred to aspects of the evidence that the trial judge summarised, in his directions, as complaint evidence. This summary was set out by the primary judge in the present case at [19]: "1. ER's evidence in relation to ringing RM, and, in cross-examination, that she had 'told him what had happened.' 2. The evidence of the daughter, E, that after she woke and saw her mother in the dining room, she said 'Mum I'm calling the police.' ER replied 'No, don't.' The daughter responded 'I know he raped you.' ER replied 'Yes he did.' The daughter then rang the police. 3. Evidence about which his Honour said there was no dispute, namely that the police 'received a complaint from the complainant that morning she had been raped by the accused.' 4. Evidence of Constable White, who accompanied Constable Wharfe to the house at about 11.30 am on 14 January 2002 and heard ER say to Constable Wharfe, 'He wouldn't let us leave the house, and I couldn't call anyone, when I went to bed, he came in and raped me'. This evidence was also not challenged. 5. A certificate admitted under s 177 of the Evidence Act 1995 (NSW) signed by Dr Sterrett, recording that ER arrived at the Westmead Hospital on 14 January 2002 and gave a history of abuse by her ex-husband including 'threats against her life, holding her down with physical force (hand on face and throat) and vaginal rape with penile penetration and, she believed, ejaculation'."
3. The Court of Criminal Appeal concluded that the trial judge's directions in relation to the evidence of ER said to amount to a complaint to RM were inaccurate. Miles AJ referred to relevant authorities, and said at [47]: "evidence of complaint is no longer admitted in effect to bolster or strengthen the credit of the complainant, but as evidence of the facts intended to be represented". Miles AJ also noted at [47]-[48]: "[47] The fact of the telephone call in itself was irrelevant. Arguably it might have been relevant for her to say in evidence that she 'told him what happened', but the probative value of her telling RM 'what happened' was well outweighed by the likelihood of unfair prejudice, the jury being invited in effect to speculate upon what it was that she said to RM. Hence evidence that she told him 'what happened', if it had been objected to, was likely to have been rejected on discretionary grounds under s 135 or 137 of the Evidence Act." [48] Since the evidence went no higher than establishing that the complainant told RM 'what happened', the jury should not have been left in the situation where they had been instructed that the complainant had made a complaint to RM."

E's evidence at trial

1. The relevant evidence that E gave at trial was identified by the Court of Criminal Appeal in GAR v R (No 1) [2010] NSWCCA 163 as follows: "49 At the time of the alleged offences, E was a few weeks short of her thirteenth birthday. By the time of the trial she was 13 years and 8 months. In chief she gave evidence relevant to the first count that corroborated her mother's evidence in a number of respects that are no longer relevant. 50 With respect to the second count, the following exchange took place between E and the Crown Prosecutor : 'CROWN PROSECUTOR: Q. Do you have any recollection of hearing your father at any other stage during this day or night? A. I heard noises early in the - in the morning. Q. When you say 'in the morning' do you mean in the Sunday morning when your dad arrived or the next morning? A. The next morning. Q. Can you tell us how early do you think it was? A. I think it was about 2 o'clock. Q. What could you hear at that time. A. I heard my mother saying 'Please don't [GAR], please don't'. Q. Did you hear your father say anything? A. No, but I heard him say something at 4 o'clock in the morning. Q. When your mother said these words, 'Please don't, please don't ', did you hear anything else at that time? A. Yes. Q. What did you hear? A. I heard my father say something about 'I don't care what you call it but I call it revenge'. Q. Did you hear anything else at that time, that is when your mother used those words? A. No, I don't think so.'" (Emphasis added) 51 E was then asked whether she then went back to sleep and she agreed that she did. She then said that she woke at about 4am and heard her father say 'Well I'm fucking going' and heard the front door slam. When she got up she found her mother 'in the dining room crying on the chair'. She then gave the following evidence : 'Q. Did you speak to your mother at that time? A. Yes. Q. And what did you say? A. I said 'Mum, I'm calling the police'. She said 'No, don't' and I said 'I know he raped you' and then she said 'Yes, he did', so I called the police straight away.' 52 E had given a statement to the police on 14 January 2002. In cross-examination it was put to her that in that statement she had stated that she went to sleep about 9pm and woke at 2am exactly. The following exchange then took place: 'Q. What happened when you woke up at 2 o'clock? I withdraw that. What happened when you woke up and looked at the clock and - - A. I heard my mother saying to my father '[GAR], please don't, please don't' and I tried to pretend I was dreaming and went straight back to sleep. Q. What do you mean you tried to pretend you were dreaming? A. I knew what my father was doing to my mother. I was scared. I just tried my hardest to go back to sleep.' 53 A little later on in her cross-examination E said that she awoke at about 4am and heard her father say "Well I'm effing going". The following exchange then occurred : 'Q. And you can't remember any other words being used by your father, apart from 'I'm fucking going' and that's it? A. Yeah I do. I remember him saying 'I don't care what you call it, but I call it a square up' or something or revenge or something.' (Emphasis added) This last answer was consistent with the answer which we have last emphasised in E's evidence-in-chief extracted at [50] above. 54 It was put to E that she went down the hallway to see how her mother was, which she denied. She said that she was concerned about her mother being raped but had done nothing about it as it was the norm as GAR and her mother always used to fight and argue and she had gotten used to it. 55 The appellant's counsel then cross-examined E with respect to what had occurred after she woke up that morning. The following exchange then occurred : 'Q. So when you woke up, what happened? A. What do you mean when I woke up? Q. When you woke up in the morning - I'm sorry, I wasn't clear there - when you woke up finally before you got up, what happened? A. I went out to the - like the back room of my house and I told my mum. I said 'I know what happened to you. I know dad raped you'. She said - I said 'I'm calling the police'. She said 'No'. I said 'I know he raped you' and she said 'Yes he did' and I went and called the police. Q. Now you made a false allegation, didn't you, when you said that, didn't you? A. No. Q. Because when you woke up, you were thinking that maybe your mother and father had got back together again? A. Yeah. Q. So are you saying that you said to your mother that you heard something during the night and you were calling the police. A. Yes. Q. What was your mother's response? A. Yes he did. Q. Didn't you say a moment ago your mother said 'No' when you said 'I'm calling the police'? A. Yeah, first of all she said 'No' when I said - - Q. Right okay, if I could just hold you there - so when you first started talking to her, your mother didn't want you to call the police, is that right? A. Yeap. Q. But you decided you would anyway? A. Yeah. Q. What phone did you call the police on? A. Home phone. Q. What did you say when you rang the police? A. I don't remember.' 56 Two observations may be made with respect to the evidence recorded in the preceding paragraph. The first is that it is to a degree consistent with ER's evidence which we have extracted at [42] and [44] above. However, ER was adamant that she did not tell her daughter that she had been raped. Second, although E said to her mother 'I know what happened to you. I know dad raped you', she did not give evidence that she had told her mother that she had heard her say 'Please don't [GAR], please don't'. Furthermore, the appellant's trial counsel did not suggest to her that she had not heard her mother saying those words: on the contrary, E repeated that she had heard her mother say those words in the exchange referred to at [52] above."

The first s 78 application

1. On 29 November 2007, the applicant made his first application under s 78 of the CAR Act for an inquiry into his conviction (the first s 78 application).
2. On 2 February 2009 Barr J determined the first s 78 application and referred it under s 79(1)(b) to the Court of Criminal Appeal comprising Tobias JA, Johnson and Rothman JJ, as if it were an appeal under the Criminal Appeal Act 1912 (NSW). The basis for his Honour's referral of the matter was a statement that E was said to have made to her father, on a visit to Long Bay Gaol (in the company of a friend of her father's, John Carroll), that she had not heard anything that night and that her mother had told her to say that she had. It is convenient to reproduce this evidence from the Court's judgment (at [57]), which was contained in an affidavit tendered by the applicant sworn on 13 October 2006: "He said to her 'E in front of John, tell the truth about what you heard the night you said you heard me sexually assault your mother'. E responded, 'I didn't hear anything, mum got me to say that I did because she said they wouldn't believe her by herself'. The appellant said 'I saw you come up to ER's bedroom door in the early hours that morning and we were just sleeping'. E said 'Yes, I saw you'."
3. It was also alleged that E had made a similar statement to the applicant's sister, JC, and to a former friend of ER. In an affidavit sworn on 12 April 2007 JC recounted a conversation she observed E have with ER on the telephone (reproduced at [60] of the CCA judgment): "During the conversation [E] started arguing with her mother. [E] said words to the effect, 'Mum you made me lie about dad'. [ER] said words, 'You had to or no one would believe me, there wouldn't be a case'. [E] said words to the effect, 'Mum you made me tell lies'."
4. E was interviewed by police on 21 June 2007. She denied lying in court about her father and addressed a number of questions asked by the interviewer about her visit to gaol in 2005 (reproduced at [76] of the CCA judgment): "Q31. … Did you visit your father in 2005 at Long Bay Gaol? A. Yes. Q32. And were you with John Carroll? A. Yes. Q33. Did you tell your father, during that visit, that your mother got you to tell lies about him in court? A. Yes. Q34. Why did you tell him that? A. Probably to keep the peace with my father and my mother - Q35. Right. A. --- it's very hard where I stand between them both, and just to give my dad hope, I guess. … Q37. What you told your father about lying in court, that was not the truth, is that correct? A. No. … Q40. Did you ever tell any other person that your mother had asked you to lie in court? A. No. Q41. So as far as you remember, it's just that one time when you visited your father? A. Just, and my auntie, probably. … Q42. OK. So you think you may have told [JC] at one point? A. At, yeah. Q43. And was that for the same reason? A. She's, yes. Most definitely. Q44. OK. All right. And this is, so just, just to clarify. So this is because you feel torn between them? A. I do. … Q46. Can you remember when you, when you actually spoke to your auntie about this lying in court stuff? A. Yes. … Q48. Was it around, around the 2002, when you stayed over? A. Around, yeah. Q49. Yes. How did that conversation happen? A. My auntie pressuring me about the whole situation. Just, I was meant to be going up there actually to get away from it all, but just my dad ringing and my aunt, it's just ongoing."

The second s 78 application

1. On 2 March 2014, the applicant made a further application under s 78 of the CAR Act for an inquiry into his conviction (the second s 78 application).
2. The second s 78 application was based on the following evidence: 1. an affidavit of RM sworn on 15 July 2012 in which he deposed that when he spoke to ER on the morning of 14 January 2002 she did not say anything to him about GAR sexually assaulting her; and 2. a missing page from the medical report of Dr Sterrett, who had examined ER on 14 January 2002.
3. Adamson J considered the second s 78 application. Her Honour held that the evidence of RM did not give rise to any doubt or question about the applicant's guilt. While her Honour accepted that RM's affidavit evidence demonstrated a lack of evidence of consistency of complaint, she rejected its ability to affect ER's credibility since the contents of her conversation with RM that morning were not explored at trial. Her Honour rejected the applicant's submission that RM's evidence bolstered ER's credibility on the Review Appeal, observing that the Court on the Review Appeal had excluded ER's evidence about RM from its consideration.
4. In relation to Dr Sterrett's report, the applicant contended that the medical evidence did not corroborate the entirety of ER's evidence, in particular, her evidence that the applicant scratched her face. Adamson J rejected this submission. Her Honour observed that the point had not been overlooked at trial as applicant's counsel had used Dr Sterrett's report to cross-examine ER about her injuries and had addressed the jury about its absence of reference to facial scratches.
5. On 4 December 2014, Adamson J dismissed the second s 78 application: GAR v Attorney General for the State of New South Wales [2014] NSWSC 1734.

The third s 78 application

1. On 2 March 2016, the applicant made a further application under s 78 of the CAR Act for an inquiry into his conviction (the third s 78 application).
2. The third s 78 application was based on written statements apparently made by ER and E. Those statements, in full, provided as follows: "IN THE MATTER OF [GAR] Under the inducement that the evidence will not be used to prosecute any offence against me I [E] state the following:- My mother, [ER] did ask me to falsely corroborate her evidence that she had called out. "Please don't, [GAR] please don't," or similar. When I made my statement to police and gave evidence, it was false. Signed by [E] [signature appears] DRIVERS LICENCE [number given] SIGHTED [signature appears] JP [number given] 2.12.15 IAN WEST E Dated 2/12/15 Under the inducement that this evidence will not be used to prosecute any offence against me ER. STATES THE FOLLOWING:- "The statement made by my daughter E above is TRUE." Signed by [ER] [signature appears] ORIGINAL LICENCE [number given] SIGHTED [signature appears] JP [number given] 2.12.15 IAN WEST ER Dated 2.12.15"
3. On the back of that statement the following appears in handwriting: "I, ER state. The words "[GAR] please don't" were my first words uttered as [GAR] placed his hand over my mouth & nose - he then said "you make one fucking sound, I will snap your f…. neck - he waited for my daughter to be asleep - the crime did occur - I stand by my statement. [signature appears] 2/12/15"
4. There was no evidence in the Court below and on appeal as to how these statements came into being. On the face of the statements, they were provided under the apparent "inducement" that the evidence would not be used to prosecute E or ER for any offence. There was no evidence about who, if anybody, provided this "inducement". It should be noted that during the hearing in this Court, the applicant stated that he was in possession of further information about the making of these statements: "APPLICANT: ….It is the applicant's understanding, and this is an understanding that I've been able to gather from my daughter, that the evidence will show that ER and E signed their 2015 statement in front of Mr West. ER then after leaving Mr West walked to the car with E and then in an attempt to justify her admitted fabrication of E's‑‑ BEAZLEY ACJ: No, you can't tell us matters that are not in evidence."

Decision of the primary judge

1. The primary judge considered the further evidence and the extent to which it was inconsistent with the evidence of E and ER at trial and the Review Panel. Her Honour was satisfied that the question of whether E and ER were telling the truth had already been investigated at both the trial and by the CCA as a result of the first s 78 application. The primary judge observed that merely to recant evidence given at trial or on appeal, does not necessarily create a doubt about the offender's guilt. Her Honour went on to state at [44]-[45]: "[44] ….Such recanting could also be explained by other factors. In the case of E, her relationship with her father, the applicant, is likely to be substantially affected by what E says or said about his conduct. ER, too, might be inclined to say other than the truth in order to assist E, or in the belief that nothing is to be gained by not providing a statement that the applicant has requested, since he has already served his sentence. Nonetheless, whatever ER said in the "induced" statement, she adhered to her evidence that the offence occurred, as appears from her handwritten statement dated 2 October 2015. [45] That E and ER were apparently prepared to sign these statements in the presence of Mr West, as a Justice of the Peace, does not make their statements credible. It merely tends to prove that they were not fabricated by the applicant. The statements appear to have been made by E and ER, after their having received an "inducement that the evidence will not be used to prosecute any offence" against either one of them."
2. The primary judge concluded that she was not satisfied that there was a doubt or question as to the applicant's guilt, or any doubt or question about the evidence of E or ER at trial. The primary judge dismissed the third s 78 application.

The issues on appeal

1. The applicant, in his further amended summons, advanced six overlapping grounds of appeal, which can be summarised as follows: 1. the primary judge fell into error by identifying possibilities and making arbitrarily constructed findings of where the truth may lie to "explain away" the fresh evidence (grounds 1 and 3); 2. the primary judge failed to adopt a view most favourable to the applicant in assessing the credibility of the fresh evidence (ground 2); 3. the primary judge erred in not determining the application according to the truth of the facts and the truth of the applicant's submissions (grounds 4 and 5), and thus fell into error by making findings that; 1. ER's typewritten statement and handwritten statement were produced and written two months apart; and 2. ER's handwritten statement was "superseded" by her typewritten statement. 1. the primary judge erred by not to assessing ER's "fabricated face scratches" and the missing page five of Doctor Sterrett's report in the context of the 2015 fresh evidence (ground 6).

Legislative framework

1. Section 78 of the CAR Act provides for applications for an inquiry into a conviction or sentence to be made to the Supreme Court by a convicted person or by another person on behalf of the convicted person.
2. Section 79 relevantly provides: "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. . . . (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."

The test under s 79 of the CAR Act

1. Under s 79(1) the Court may either direct an inquiry by a judicial officer or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal. This power is only enlivened 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": s 79(2).
2. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [65] Basten JA, with whom Bathurst CJ, Beazley P, Price and Beech-Jones JJ relevantly agreed, said that use of language drawn from earlier cases seeking to explain the "doubt or question" required in terms of an "unease or a sense of disquiet…" about the convicted person's guilt, any mitigating circumstances in the case or any part of the evidence in the case was to be deprecated: "This language does not assist. There is no purpose served by adopting other words than the statutory language of "doubt or question". The "material" on which the judge may base an opinion is not improved or added to by a document setting out the subjective beliefs of the applicant. Nor is it necessary for the applicant to demonstrate subjective grievance, to establish an appropriate basis for seeking an inquiry. The form of the second proposed declaration is inapt."
3. In Sinkovich, Basten JA, after tracing the history, operation and development of Part 7 of the CAR Act and its predecessor, s 383 of the Criminal Law Amendment Act 1883 (NSW), which pre-dated by almost three decades the first general right of appeal in criminal cases in the State, said at [52] and [53]: "[52] 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. [53] The fact that the gateway to an inquiry is now by seeking to satisfy a Supreme Court judge of a doubt or question as to a conviction or sentence reflects both the importance placed upon the procedure and an appropriate mechanism to ensure that it is exercised responsibly and, no doubt, sparingly. However, this mechanism militates against an unduly narrow construction of the statutory gateway."

Review by this Court of the primary judge's decision

1. The determination of an application under s 78 of the CAR Act is administrative in nature and is open to review for jurisdictional error. In Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343 Basten JA (Bathurst CJ and Beazley P agreeing) stated at [22]-[24]: "[22] Section 79 in effect permits the following steps to be taken in the Supreme Court, namely that the Court may: (a) consider an application for an inquiry into a conviction or sentence; (b) on its own motion, consider whether there should be an inquiry into a conviction or sentence; (c) after (a) or (b) - (i) direct that an inquiry be conducted, or (ii) refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal. [23] The Supreme Court Act provides for an appeal from 'any judgment or order of the Court in a Division': s 101(1)(a). Similar language is found in s 73 of the Constitution ('judgments, decrees, orders and sentences'), in the Judiciary Act (ss2 and 35) and many other statutes conferring appellate jurisdiction. One point made in cases discussing these provisions is that a finding of fact or a ruling on a submission is not, of itself, an operative judicial act: Commonwealth v Mullane [1961] HCA 28; 106 CLR 166 (Dixon CJ); Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392 (Spigelman CJ). Another is that a reference to a 'judgment' may mean an operative order as distinguished from reasons for judgment: Driclad Pty Ltd v Commissioner of Taxation (Cth) [1968] HCA 91; 121 CLR 45 at 64 (Barwick CJ and Kitto J). Relevantly for present purposes, it has never been doubted that the language applies only to the exercise of judicial power. That is made clear by its context, namely a judgment or order 'of the Court in a Division'. In a passage cited with approval in this Court in Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; 62 NSWLR 309 at [30] (Spigelman CJ) and in Salter at [19] (Spigelman CJ), King CJ in Legal Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 stated: 'A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge.' [24] It follows that no appeal lay, whether by leave or otherwise, from the determination of R A Hulme J, rejecting the application for an inquiry. The only right of appeal arises pursuant to s 101 of the Supreme Court Act, which is limited to the exercise of judicial power, as opposed to administrative determinations."

Grounds 1 and 3 - explaining away the fresh evidence and making findings of where the truth may lie

Applicant's submissions

1. These grounds address the applicant's complaint that the primary judge fell into error by identifying "possibilities" and by making findings about where the truth may lie. It was submitted that the primary judge made arbitrarily constructed findings of fact in relation to where the truth may lie, and as a result misapprehended her function under Pt 7 of the CAR Act and thus fell into jurisdictional error. As noted at the outset, the applicant did not press any complaint of error of law on the face of the record and it is thus unnecessary to consider whether the primary judge exercising an administrative function constitutes a "court or tribunal" within the meaning of s 69(4) of the Supreme Court Act 1970 (NSW).
2. In support of these submissions, the applicant directed the Court to statements made by the primary judge at [44], which I will set out in full: "[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. Such recanting could also be explained by other factors. In the case of E, her relationship with her father, the applicant, is likely to be substantially affected by what E says or said about his conduct. ER, too, might be inclined to say other than the truth in order to assist E, or in the belief that nothing is to be gained by not providing a statement that the applicant has requested, since he has already served his sentence…."
3. The applicant submitted that the primary judge fell into jurisdictional error by making findings as to why E and ER were motivated to recant the evidence they gave at trial. The applicant submitted that there was no evidence to support the primary judge's findings. The applicant also submitted that in paragraph [44] her Honour was attempting to "explain away" the 2015 statements made by ER and E.
4. In support of his submissions under these grounds, the applicant relied upon the decision in Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 where the High Court held (at [23]) that it was not the role of the Court of Criminal Appeal to: "…seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to exploit forensically."

Consideration of grounds 1 and 3

1. The Court will interfere with an administrative decision if that decision is one that could not reasonably have been reached. As explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide."
2. The circumstances in which a court will interfere with an administrative decision were explained in Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 where Gibbs J made the following observations at 118: "Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it."
3. Gibbs J highlighted the potential difficulty posed in cases where the administrative decision maker was required to be satisfied of a particular matter as a matter of opinion at 118-119: "…where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."
4. If an administrative decision maker fails to consider the substance of an applicant's case, there will be a constructive failure to exercise jurisdiction. Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81], after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, said: "[81] However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of 'refugee'."

Ground 2 - failure to adopt the view most favourable to the applicant

Applicant's submissions

1. The applicant submitted that the primary judge failed to consider the most favourable view a jury might take about the fresh evidence.

Consideration

1. The critical question in forming the view required by s 79 of the CAR Act was identified in Sinkovich at [26]: "[26] Action can be taken only if it 'appears' to the judge that the condition is satisfied. It is the satisfaction of the judge as to the relevant condition which is critical."
2. The primary judge did not approach the task set by s 79(2) as requiring her to posit the most favourable view a jury might take towards the fresh evidence, assuming following an inquiry or appeal under s 79(1) of the CAR Act a new trial were ordered.
3. The primary judge here addressed the correct state of satisfaction required by s 79(2). Her Honour was not required by s 79 (or otherwise) to adopt the most favourable view a jury might take of the statements of E and ER in addressing her own state of satisfaction as to the existence of a doubt or question.
4. Whilst I do not suggest that her Honour acted to reject this application under s 79(3), the matters referred to in s 79(3) and in particular s 79(3)(b) make clear that her Honour was entitled to form a view about the credibility of the evidence the subject of the s 78 application. Section 79(3)(b) permits the Supreme Court to decline to act when it is "not satisfied that there are special facts or special circumstances that justify the taking of further action". That statutory language emphasises the breadth of the matters the Supreme Court may take into account in considering whether it appears that there is a doubt or question about any of the matters identified in s 79(2).
5. Assuming, in the applicant's favour, that ground 2 raises an alleged jurisdictional error, being a failure to identify and adopt the correct construction of the task required by the s 79(2), the primary judge did not fall into jurisdictional error. She was required to decide whether she was satisfied of the existence of a relevant doubt or question. In addressing that question her Honour was not required to adopt the most favourable view a jury might take of the statements of E and ER. I would reject ground 2.

Grounds 4 and 5 - primary judge erred in fact by referring to ER's handwritten statement being dated "2 October 2015"

Applicant's submissions

1. The applicant submitted that the primary judge erred in finding that: 1. ER's handwritten statement was dated 2 October 2015, that being two months prior to the first and second statements; and 2. ER's handwritten statement was "superseded" by her typewritten statement, the applicant having made no such submission.

Consideration

1. The primary judge referred to the evidence supporting the application at [34]: "[34] The first apparently comprises statements by E and ER, both dated 2 December 2015, in which: E said that her mother asked her to falsely corroborate her evidence and that her statement to police and evidence was false; and ER said that E's statement is true. The second is ER's handwritten statement dated '2.10.15' which was apparently signed by Mr West in the bottom right hand corner."
2. Ms J Davidson, counsel for the Attorney General on the appeal, accepted that the primary judge made an error in referring to the handwritten statement as being dated "2.10.15". Her Honour did so by mistaking the second digit in the month as a "0" instead of a "2". The applicant and the respondent agreed that all three statements were dated 2 December 2015. So much appears to me, having now examined the original documents, to be correct. It is also the case that Mr West's signature does not appear on that part of the original document where the handwritten statement is found. Presumably Mr West's signature was on the copy of the handwritten statement provided to the primary judge as part of the Crown Solicitor's inquiry referred to at [126] above.
3. The applicant's written submissions explained that the original versions of the statements comprised of one (double-sided) document with the typewriting on the front and the handwritten statement on the back. The respondent informed the Court that the Crown Solicitor was not capable of receiving double-sided faxes. It is likely that the presentation of the statements to the primary judge as two separate documents contributed to what the Crown Solicitor accepts was a factual error by the primary judge regarding the dates.
4. The primary judge understood that the handwritten statement was superseded by the typewritten statements. This was an error of fact. Her Honour did not, however, thereby fall into jurisdictional error.
5. The error made by her Honour was favourable to the applicant. It appeared to her Honour that the typewritten statement had been made two months after the handwritten statement, although her Honour recognised that the inconsistency between the typewritten statements and the handwritten statement was only indirect. It appears to be the case, having examined the original document and having regard to Mr West's evidence that he does not recall ever having seen the handwritten statement, that the handwritten statement was made on the back of the typewritten statements sometime later the same day 2 December 2015.

Ground 6 - the missing page of Dr Sterrett's report

1. Ground 6 concerned ER's evidence at trial of face scratches which the applicant alleged was fabricated in light of the missing page of Dr Sterrett's report.
2. As counsel for the respondent correctly pointed out, this evidence was explored in the second s 78 application before Adamson J in 2014. The primary judge concluded that the evidence on the third s 78 application did not give rise to a doubt or question as to any part of the evidence given at trial and such determination was final.
3. The evidence was already dealt with in a previous application and was not readdressed by her Honour in the third s 78 application. There was no jurisdictional error demonstrated. If her Honour had found a doubt or question about ER's evidence it may have followed that a similar doubt would have arisen about the evidence of scratches on her face. Her Honour found no such doubt or question.
4. I would dismiss ground 6 of the application.

Conclusion and orders

1. Since preparing my draft reasons I have had the opportunity to consider the draft reasons prepared by Simpson JA. The declaration proposed by Simpson JA would have the effect that a Supreme Court judge must again consider the present application made by GAR. My conclusion that the application be dismissed would not prevent the applicant from bringing a further application although, as Basten JA explained in Sinkovich at [66]: "[66] …The refusal of the application for an inquiry did not preclude a further application, although, if a further application were made on the same grounds, it might well be refused simply on the basis that the complaint had previously been dealt with, pursuant to s 79(3)(a)(ii), which reflects a general principle which would operate absent any statutory basis…"
2. Whether the applicant has further information sufficient to support a subsequent application is not a matter which can be determined here. That will be a matter for a Supreme Court judge considering any further application.
3. For the foregoing reasons I propose the following orders: 1. Application dismissed; 2. Applicant pay the respondent's costs as agreed or assessed.

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: 12 December 2017