GAR v Attorney General of NSW

Judgment

1. HARRISON J: GAR brings an application under s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into his conviction for having sexual intercourse with his former wife ER without her consent. This application is the fourth such application that GAR has made. GAR had previously appealed against his conviction to the Court of Criminal Appeal. That appeal was dismissed: see R v GAR [2003] NSWCCA 224.
2. GAR's first s 78 application was determined by Barr J on 2 February 2009. His Honour referred the matter to the Court of Criminal Appeal. That Court heard evidence and dismissed the matter referred to it: see GAR v R (No 1) [2010] NSWCCA 163. GAR's second application was determined by Adamson J on 4 December 2014. Her Honour dismissed the application: see GAR - Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734. On 29 August 2016, Adamson J dismissed GAR's third application: see GAR - Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205. That third application was itself the subject of judicial review in the Court of Appeal: see GAR v Attorney General of NSW (No 2) [2017] NSWCA 314. That judicial review application was also dismissed.
3. An examination of these decisions makes it clear that the evidence upon which GAR was convicted included evidence from ER and their daughter E. At GAR's trial, E gave evidence that corroborated her mother's account of some of the relevant events. Following GAR's conviction, E sought to resile from that evidence or to retract it completely. That circumstance has been fundamental to the various proceedings in this Court, the Court of Appeal and the Court of Criminal Appeal since then. GAR contends that E's disavowal of her original evidence given in support of ER at the trial is the result of E having been improperly pressured by her mother falsely to corroborate ER's evidence.
4. Payne JA dealt with this issue in GAR v Attorney General of NSW (No 2) as follows: "[164] So far as E's statement is concerned, it is true that the allegation E made that ER asked her falsely to corroborate ER's evidence that she had called out 'Please don't [GAR], please don't,' or similar went further than E's evidence before the Court of Criminal Appeal following the first s 78 application. The primary judge was aware of those differences but concluded that the evidence was substantially similar to that earlier given by E in that it supported the applicant's innocence and was inconsistent with E's evidence at the trial (at [41]). The primary judge concluded, at [42], that the Court of Criminal Appeal in the hearing following the first s 78 application heard and saw E's evidence and found 'she was not to be believed because she was prepared to say anything that would advance the applicant's position'. It may be accepted that E's statement for the first time actively asserted that she was asked by ER to lie at GAR's trial. It is also correct, however, that E had earlier given evidence in the Court of Criminal Appeal that she had lied at GAR's trial, that ER knew at the time of the trial that E was lying and that ER, by her conduct, had pressured E to lie at GAR's trial. [165] After a thorough investigation by the Court of Criminal Appeal of substantially similar allegations made by E, that Court had concluded that E was prepared to say anything to advance GAR's position. In those circumstances, the primary judge's conclusion taking into account the decision of the Court of Criminal Appeal and rejecting E's statement as appearing to give rise to any relevant doubt or question was not legally unreasonable. [166] ER's typewritten statement poses a more difficult issue. Whilst there was some attraction in the view urged by counsel for the Attorney General before the primary judge that ER's statement gave rise to a doubt or question about her evidence at the trial, the primary judge's determination that it did not appear to her Honour that there was such a doubt or question about the applicant's guilt or any part of the evidence was not legally unreasonable. That is, the primary judge's decision did not lack 'an evident and intelligible justification': Li at [76] per Hayne, Kiefel and Bell JJ. [167] The important aspect of ER's typewritten statement was that she said that E's statement that she had asked E 'to falsely corroborate her evidence that she had called out "Please don't [GAR], please don't," or similar' is 'TRUE'. [168] In my view the primary judge provided an evident and intelligible justification for her conclusion that this evidence did not satisfy her that there was a doubt or question about the applicant's guilt or any part of the evidence. In particular, the primary judge reasoned: 1. the question of whether E and ER were telling the truth had been examined at length by the CCA in response to the first s 78 application; 2. the timing of the statements of E and ER, after the expiry of the applicant's sentence, was relevant in determining whether the state of satisfaction about a doubt or question existed; 3. in the same document, in handwriting, ER had adhered to her evidence that the sexual assault occurred; 4. the 'inducement' contained in the statements affected their credibility; and 5. her Honour did not have a doubt or question about the applicant's guilt or any part of the evidence."