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.
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.
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.
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."
GAR has provided detailed and lengthy written submissions in support of the present application which were filed on 25 February 2019. The Attorney General's written submissions were filed on 18 April 2019. GAR furnished detailed written submissions in reply to the Attorney General's submissions which were filed on 28 May 2019. GAR's present application is also supported by two affidavits, one from E and one from Greg Schumer, a solicitor. Mr Schumer deposes to a conversation with ER on 1 November 2018 in which he asked her to assist GAR in "the appeal enquiry" by providing an affidavit. ER refused to do so.
E's affidavit is much longer. In essence, it is a brief historical review of E's feelings about her involvement in the events that founded GAR's charges and E's assertion that her mother asked her to say that she heard her mother crying in the middle of the night saying "please don't [GAR], please don't". She also said, "Mum told me the police wouldn't believe her on her word and made me rehearse this several times before the police arrived".
The issue of whether or not E was telling the truth at the trial, whether ER told her falsely to say that she heard ER crying during that night, whether the circumstances in which E came to resile from her evidence were significant or credible, as well as a series of closely related issues of varying degrees of difference, have all been thoroughly, not to say exhaustively, examined and re-examined in the several determinations and decisions listed earlier in these reasons.
In the understandable nature of things, GAR's lengthy submissions reproduce much of what has been said by some of the judges who have dealt with his various appeals and applications. He is not to be criticised for that. I mention it here in order to emphasise that I have not been able to identify any issue or contention that even comes close to raising a new issue, or a significant variation of an old issue, that causes me to pause and reflect upon the question of GAR's guilt.
The burden of GAR's approach has always been that ER was herself lying and that E was asked by her to lie as well. E has since admitted that she lied, although it is fair to say that her retraction remains attended by doubt and controversy. However, that can for present purposes be put to one side. ER has never changed her evidence that GAR had sexual intercourse with her to which she did not consent. Nothing in the material to which GAR's detailed submissions refer suggests any departure by ER from her previous evidence or her 2015 statement considered in GAR's third s 78 application. GAR is seeking no more than that these matters be looked at again, but with no relevantly new material to support an inference that a different result or conclusion might then emerge. The position would be quite different if GAR could demonstrate that ER's own evidence at his trial was false, not merely that ER may have suborned their daughter to support her. The question whether ER's admission in her 2015 statutory declaration that she procured E falsely to corroborate her version of events is true or not true has been dealt with by Adamson J in dismissing GAR's third s 78 application and by the Court of Appeal in reviewing that decision.
Section 79 of the Crimes (Appeal and Review) Act is in the following relevant terms:
"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."
A review of GAR's persistent attempts to review his conviction serves to highlight what I perceive him to say is the enduring contradiction, namely, that the jury's acceptance of ER as a witness of truth at his trial may well have been cast into doubt if ER's alleged influence upon her daughters' evidence had been revealed as an issue for them to decide. As far as I am able to determine, however, GAR has been unable in this application to point to anything that suggests why that issue should now be looked at again.
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.
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Decision last updated: 15 August 2019