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Category: Principal judgment

Parties: Scott Gibson (Applicant)
Attorney General of New South Wales (Respondent)

Representation: Counsel:
Scott Gibson (Self-represented)
Katrina Curry (Respondent)
Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s): 2023/00331816

JUDGMENT

1. On 18 October 2023, the applicant, Scott Gibson, filed an application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) for an inquiry into convictions relating to three offences of knowingly contravening a restriction in an apprehended domestic violence order (ADVO), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act). The convictions were originally entered on 1 June 2020 in the Local Court of New South Wales. In addition, the current application is said to relate to another charge from 2017, which the applicant has not been able to specify with any particularity.

2. This is the applicant’s second application under Part 7 of the CAR Act concerning his 2020 convictions. In November 2022, his first application was considered and dismissed by Yehia J: see GIBSON, Scott – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577. Apart from the matters relating to the 2017 charge, the current Part 7 application rehearses all the same complaints the applicant made in support of his first Part 7 application.

3. This judgment needs to be read in conjunction with Yehia J's judgment in which her Honour set out the extensive history of the applicant's dealings with the courts about the charges and convictions which are now the subject of this application. Familiarity with that history is assumed.

Chronology

4. It is however relevant for the purposes of this judgment to set out the key dates that precede this application.

5. On 22 August 2017, the applicant was served with a provisional ADVO. [1] The person in need of protection (PINOP) in the provisional order was the applicant’s ex-partner who it seems is also the complainant with respect to the three ADVO offences relating to this application. Despite a future listing date of 6 September 2017, it appears that the provisional ADVO was ultimately confirmed as a final order by the Local Court at Moss Vale on 20 September 2017. Relevantly, the final ADVO contained conditions that prevented the applicant from having any contact with the PINOP. The duration of the ADVO was confirmed for 2 years, beginning on 20 September 2017. [2]

6. On 8 December 2017, the applicant was charged with knowingly contravening a restriction of what seems to be the ADVO made to protect the PINOP on 20 September 2017, contrary to s 14(1) of the CDPV Act. On 23 January 2018, the applicant was sentenced in the Local Court at Moss Vale to a s 10 bond for a 12-month period. [3]

7. On 21 August 2019, the applicant was further charged with 10 offences concerning the PINOP. Namely, nine sequences of knowingly contravening a restriction in an ADVO contrary to s 14(1) of the CDPV Act and one offence of stalking or intimidation with intent to cause fear of physical or mental harm, contrary to s 13(1) of the CDPV Act.

8. On the same date, the police served the applicant with an application to extend the existing ADVO for a period of two years and six months from that date. [4] This application appears to contain an administrative error. That is, it referred to the current ADVO as having been confirmed on 20 September 2019, when it should have specified the commencement date as 20 September 2017.

9. In any event, on 4 September 2019, with the consent of the applicant, the Local Court at Moss Vale ordered an extension of the ADVO for a further period of 12-months, extending the order until 18 September 2020. [5] However, again, it appears there was an administrative error in the uploading of this order to the court’s electronic system which incorrectly recorded the ADVO as having been extended for 2 years, instead of 12-months. On 1 July 2020, Senior Constable Houghton wrote a letter to the applicant bringing this issue to his attention. [6]

10. I pause to note that prior to the applicant receiving this letter it appears he filed an application to have the ADVO revoked on the 27 May 2020. [7] There is no further material that has been provided as to the success or failure of that application. However, it is noted that there is evidence, provided by the applicant in support of this application, that the said ADVO was again confirmed for a period of three years, in the same terms as the previous order, on 24 October 2022 by the Local Court at Moss Vale. [8]

11. On 1 June 2020, the applicant attended a hearing at the Local Court at Moss Vale in relation to the 10 offences. The applicant entered a plea of not guilty to all offences except one (Sequence 9) to which the applicant entered a plea of guilty to knowingly contravening a restriction in an ADVO contrary to s 14(1) of the CDPV Act.

12. At the conclusion of the hearing, Douglass LCM convicted the applicant of seven of the s 14(1) offences (Sequences 1, 3, 4, 6, 7, 8, 9) and the single s 13(1) offence (Sequence 10). [9] On each charge, the applicant was sentenced to a community corrections order for a period of 18-months from the date of convictions. [10]

13. On 10 June 2020, the applicant filed a notice of appeal to the District Court of New South Wales, challenging his convictions. [11]

14. On 10 August 2020, whilst awaiting the hearing of this appeal, the applicant was served with another provisional ADVO in relation to a different PINOP. The terms of this provisional ADVO also included full non-contact conditions. [12]

15. On 24 August 2020, it appears that the applicant was then charged with two counts of stalking or intimidating with intent to cause fear of physical or mental harm contrary to s 13(1) of the CDPV Act, in relation to the second PINOP, the subject of the provisional ADVO served some 14-days earlier. [13] On 9 September 2020, the provisional ADVO was then ordered as an interim ADVO whilst the applicant awaited a hearing date for the substantive charges. [14]

16. On 26 and 28 October 2020, the applicant’s District Court appeal was heard before Baly SC DCJ (District Court matter). Her Honour upheld the appeal in part and quashed the convictions in relation to four of the s 14(1) offences and the single conviction for the s 13(1) offence (Sequences 3, 4, 6, 8 and 10). Her Honour dismissed the appeal for the three remaining offences (Sequences 1, 7 and 9) but on each charge, re-sentenced the applicant to a conditional release order for a term of six months. [15]

17. On 25 November 2020, the applicant sought to refer his District Court matter to the Court of Criminal Appeal on “12 questions of law”. He purported to lodge an appeal under s 5B of the Criminal Appeal Act 1912 (NSW) via email to the Local Court at Queanbeyan. On 26 November 2020, Baly SC DCJ informed the applicant, via an email from the Registry, that she refused to state a case pursuant to s 5B of the Criminal Appeal Act to the Court of Criminal Appeal. [16]

18. On 18 March 2021, the applicant filed a summons in the Court of Appeal seeking judicial review of Baly SC DCJ’s decision. Despite the summons having been filed out of time, the Director of Public Prosecutions did not oppose an extension being afforded to the applicant. [17]

19. On 2 August 2021, the applicant then appeared before the Local Court at Moss Vale for a hearing in relation to his outstanding charges concerning the second PINOP arising from 24 August 2020. Magistrate O'Brien presided over this hearing. The applicant was legally represented. Despite the hearing initially proceeding, the prosecutor ultimately withdrew and O’Brien LCM dismissed both charges following the applicant’s consent, without admission, to enter into a three-year ADVO. [18]

20. Three days later, on 5 August 2021, the applicant filed a motion seeking to vacate the hearing date for his application for judicial review of Baly SC DCJ’s decision in the District Court matter. This proceeding was listed to take place on 20 August 2021 before the Court of Appeal. This motion was refused by Basten JA: see Gibson v Director of Public Prosecutions [2021] NSWCA 176. [19]

21. On 20 August 2021, the Court of Appeal, presided over by Bell P, Basten and Meagher JJA, dismissed the applicant’s summons with costs: see Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218. [20] Over four months later, on the 18 January 2022, the applicant then filed an application under Part 7 of the CAR Act concerning his District Court matter; specifically the sustained convictions to Sequences 1, 7 and 9. [21]

22. On 9 November 2022, Yehia J refused the applicant’s Part 7 application having formed the opinion that there was no doubt or question as to the applicant’s guilt or any mitigating circumstances in the case, or as to any part of the evidence in the case. Her Honour found that the issues and submissions, largely raised in support of the application, had already been dealt with in the Local Court and the District Court. Despite this, her Honour proceeded to consider the question as to whether a direction should be given for an inquiry to be conducted or for a referral to be made, pursuant to s 79(2) of CAR Act, before ultimately declining to do so. [22]

23. Then, some seven months later, on 28 June 2023, the applicant filed a document titled ‘Summons (Supervisory Jurisdiction)’ in the Court of Appeal, seeking that the “**…questions of law raised in the first s 5B appeal be put before the Criminal Court of Appeal for consideration”. [23] It is evident from that filing alone that the applicant appeared to be confused and was conflating potential legal avenues available to him, some of which were simply untenable. The Registry subsequently brought this issue to the applicant’s attention advising him that, “As to the 5B, your options are to seek judicial review of the decision not to state a case to the Court of Criminal Appeal, if that is what you wish to do which will require you to file a Summons in the Court of Appeal”. [24] Despite this suggestion, the applicant has not sought any further or different remedy from the Court of Appeal.

24. On 18 October 2023, the applicant filed his second Part 7 application (current application) pursuant to Part 7 the CAR Act*,* which is presently before me.

25. For completeness, I note that upon the applicant filing his current application, the Registrar initially made directions requiring the respondent, the Attorney General, to respond to the applicant’s filed application. However, these directions were ultimately vacated on 31 October 2023 when the applicant informed the Court that he intended to file further material in support of his application.

26. On 2 November 2023, the applicant filed a letter with the Court titled “To The Judge”. Over the course of the following months, the Registry communicated with the applicant about what documents were required to be filed and the form in which documents needed to be received by the Court to further his application.

27. Over a year and a half after the applicant’s current application was filed, the Court received a USB from the applicant with materials in support of his current application. On 18 March 2025, the Crown Solicitor’s Office was informed that the Registry had received the entirety of the applicant’s evidence relied upon. On 24 March 2025, the Registrar made orders regarding the filing of the respondent’s submissions. On 30 May 2025, in compliance with those orders, the respondent filed its response. On 23 June 2025, the applicant then filed his reply to the respondent’s submissions.

Brief factual background to offences

28. The factual matrix for the three breach of ADVO charges, the subject of this application, are as follows:

Sequence (1)

29. This Sequence involved a contravention of the ADVO between 1:00pm and 1:15pm on 22 May 2019, when the applicant drove past the complainant on Valetta Street in Moss Vale and tooted his horn and waved at her.

30. At first instance the complainant gave evidence that the applicant was driving behind her, that she stopped and he drove past her and then “within a few minutes he passed [her] again on the other side of the road”. She said, “he tooted and I think he waved”. The applicant indicated to the Magistrate that he disputed that he drove past the complainant and waved, but even if he did, it would not constitute a breach of the ADVO.

31. Magistrate Douglass found the applicant guilty, accepting that he tooted and waved, and accepting that this was contact for the purpose of breaching the ADVO.

32. On appeal, the applicant contended that he had put his hand on his heart as he drove past the complainant, as a gesture of “kindness”. This was a departure from the applicant’s evidence in the Local Court. Nevertheless, Baly SC DCJ accepted the applicant’s version of events but ruled that the conduct still breached the ADVO, finding that such a gesture constituted contact with the complainant. Her Honour dismissed the appeal in relation to this Sequence.

Sequence (7)

33. This Sequence involved a contravention of the ADVO between 10:30am and 10:40am on 7 July 2019, when the applicant drove past the complainant, and flashed his lights and waved at her.

34. At the hearing, the prosecution evidence was supported by a self-addressed email which the complainant sent to her own email address; a form of contemporaneous diarising of the event. The applicant contended in evidence that this was a “chance meeting”, stating that this was an area he would “normally pass”.

35. Magistrate Douglass found that, although it was not “the most serious example” to flash his car lights and wave, it was nevertheless contact and thus a breach of the ADVO.

36. On appeal, Baly SC DCJ determined that this was a “technical breach” of the ADVO, noting it was “innocently done”. Importantly, on appeal the applicant admitted that he did signal to the complainant to show “all was okay”. Her Honour explained to the applicant that such conduct does constitute a form of communication with the complainant, and whilst it was not motivated by malice or any intention to harass or intimidate her, it was a breach of the ADVO which required no contact at all with the complainant.

Sequence (9)

37. This Sequence involved the applicant contravening the ADVO between 6:20pm and 6:30pm on 15 August 2019, when he sent an email to the complainant with a manuscript attached.

38. In both the Local Court and the District Court, the applicant maintained a plea of guilty to this sequence. The applicant did not seek to traverse his guilty plea on appeal. Unsurprisingly, the applicant’s appeal against his conviction in this instance was refused.

39. As previously outlined, even though Baly SC DCJ confirmed three of the original convictions, her Honour significantly moderated the penalties for these offences.

Current Part 7 Application

40. As is clear, the applicant has been very persistent in his attempts to overturn his convictions. I accept that he has a genuine belief that justice has not operated in the way it should in his case. He has argued consistently, and not without some force, that he has never been motivated by malice in his dealings with the complainants; that his curial problems stem from being unfairly led to consent to ADVOs; that police have dismissed his own complaints about being a domestic violence victim himself; and that he has been discriminated against on gender grounds.

41. On careful analysis though, it is also clear that the applicant has maintained a fundamental misunderstanding about the law as it applies to his circumstances, particularly concerning the elements of the offences with which he was convicted under s 14(1) of the CDPV Act.

42. Importantly, prior to Yehia J's consideration of his first Part 7 application, when the applicant attempted to lodge an appeal under s 5B of the Criminal Appeal Act to the Court of Criminal Appeal and when that proved to be frustrated by his inability to bring such an appeal without Baly SC DCJ's approval, he then sought to file a summons in the Court of Appeal seeking to invoke the supervisory jurisdiction of that Court. Bell P, with Basten and Meagher JJA agreeing, dismissed the applicant's summons with costs. The applicant then included his failed s 5B appeal notice in his bundle of documents attached to his first Part 7 application considered by Yehia J.

43. The applicant sought to have the s 5B appeal *"*accepted and translated from its current form" in the Part 7 process. Justice Yehia considered that request and rejected it, noting that the issues raised in support of the s 5B appeal were dealt with by the Court of Appeal. [25]

44. As outlined above, in a further echo of earlier procedural manoeuvring, the applicant has again included in the current application a draft summons seeking judicial review of Baly SC DCJ's refusal to state a case under s 5B; the very point already determined by the Court of Appeal.

45. The current application contends that there is a doubt or question as to his guilt in relation to the identified charges. The application includes a large volume of material, much of which was previously filed in support of his first Part 7 application.

46. The applicant is unrepresented, as he was in relation to the first Part 7 application, and as he was in the Court of Appeal proceedings. The applicant has provided the Court with extensive written submissions in support of his application. Counsel for the Attorney General has also made extensive written submissions in response. The applicant replied to those submissions.

The Relevant Legislative Provisions and Applicable Principles

47. The applicant’s current application is brought pursuant to Part 7 of the CAR Act. It is to be determined in accordance with ss 78 and 79, which provides as follows:

78 Applications to Supreme Court

(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

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.

(3A) The Supreme Court may defer consideration of an application under section 78 if—

(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(3B) This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from—

(a) the fact that the convicted person was—

(i) questioned under section 24 of the Crime Commission Act 2012, or

(ii) required under section 24 or 29 of that Act to produce a document or thing, or

(b) either or both of the following—

(i) evidence obtained directly from that questioning or requirement,

(ii) any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing.

(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.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).

48. The legislative purpose of Part 7 applications is to “overcome injustices that sometimes arise in the course of the criminal justice system”: see Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061 at [4]; and Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2020] NSWSC 1048 at [10].

49. Counsel for the Attorney General submitted that the applicant's primary grounds in this current application mirror the grounds raised in his first application and, therefore, there is no new material or arguments of any substance to be considered. In those circumstances, the Attorney General submits that the Court should refuse to consider the application and deal with it pursuant to s 79(3) of the CAR Act.

50. The principles relating to the operation of s 79(3) are quite well-settled. The provision allows the Court to exercise its discretion to refuse to consider an application. The discretion is broad: see McCallum J in Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act (No 2) [2019] NSWSC 1412 at [4].

51. Justice Hamill's summary of the case law on the application of s 79(3) in Application by Serge Zhura pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2024] NSWSC 198 at [16] is particularly instructive, as follows:

“The power to refuse to deal with the matter under s 79(3) does not require the Court to be satisfied that every argument or ground raised by the applicant has been dealt with previously: Clark at [46]-[47]. In GAR v Attorney General for the state of New South Wales (No 3) [2020] NSWCA 179 McCallum JA stated at [143]:

"… 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."

52. Also, in Milat, Ivan Robert Marko - Application under S**ection 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209, Johnson J considered the history and application of s 79 at [19]-[22]:

"[19] The model for the "special facts or special circumstances" test introduced in s.474E(3) was the test then contained in s.22A B**ail Act 1978 with respect to repeated bail applications.

[20] It may be seen that the balance being struck by the provisions then contained in s.474E(3), and now contained in s.79(3), involved an appropriate remedial process for applications for a post-conviction inquiry and the need to guard against "the waste of judicial resources that can flow from repeated unmeritorious applications for enquiries".

[21] In a case to which s79(3) applies, the Court may refuse to consider or otherwise deal with an application. This course may be taken where one or more of the circumstances identified in s79 (3)(a)(i)-(iv) arises and, in addition, the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action: s.79(3)(b).

[22] Where repeated applications for an inquiry into conviction have been made, the threshold question posed by s.79(3) will arise for consideration."

53. The applicant has repeated many of the same arguments that both Yehia J and the Court of Appeal have previously considered. The current application undoubtedly demonstrates how significant the relevant convictions are to the applicant. There can be no doubting his sincerely held views that he has suffered a grave miscarriage of justice. Much of his thinking, though, stems from his belief that the investigating police were somehow biased in favour of the complainant and that the police refused to take his allegations of her misconduct against him seriously.

54. In the Local Court, the District Court and on multiple occasions in support of his applications under Part 7, the applicant has suggested that the complainant, who is a psychologist, had previously worked in conjunction with the investigating police. No evidence was produced to support this claim.

55. He also alleged that a lawyer, who was originally representing him in the Local Court, approached the officer in charge of the case, after the lawyer was dismissed, and flagged the nature of the applicant's defence and the proceedings to the police. This suggestion was put to several of the police officers in the hearing in the Local Court but was denied on each occasion. No other evidence substantiating these allegations has been provided.

56. The current application also includes a complaint that the Magistrate who heard the case initially was biased and, accordingly, the proceedings miscarried. This allegation is not based on any evidence that the applicant has produced. Nor did the applicant make an application for the Magistrate to recuse himself. Despite having appealed against the Magistrate's orders in the District Court, no complaint was made about the Magistrate’s bias in that Court either. Nor was there any detail about any such allegation made in the material relied upon to ground the proceedings in the Court of Appeal.

The current grounds raised in the first Application

57. The Attorney General's submissions accurately set out a summary of the primary grounds that were relied upon by the applicant in his first Part 7 application. These are as follows:

58. There was unheard evidence proving that the ADVO was false;

59. The police never investigated the allegations and hid the evidence showing the applicant was not guilty;

60. The applicant was denied the right to present a defence and properly cross-examine the witnesses because his mental health was affected during the course of the proceedings; and

61. There are clear defences to the three counts of which he was convicted. Those defences are:

(a) Sequence 1: putting one's hand on one's heart does not contravene the ADVO, and even if it did, the mens rea requirement was not met; (b) Sequence 7: signalling to Ms Clarke that "all was okay" was not a breach of the ADVO as it was necessary in the circumstances, and even if it was a breach, the mens rea requirement was not met; and (c) Sequence 9: the applicant did not have the capacity to understand that sending a "gentle and caring email” to Ms Clarke was a breach of the law.

58. It was a common theme throughout the applicant's arguments in the Local Court, the District Court and in his first Part 7 application that he did not have the necessary mens rea to commit any of the offences.

59. Additionally, it was part and parcel of the applicant's approach in the Local Court, the District Court and in his first Part 7 application to advance an argument that his original consent to the ADVO was obtained under duress and without proper basis. The applicant has consistently argued that there was an unsound basis for the initial making of the ADVO which ought to have been exposed in the criminal proceedings and, therefore, there was no legitimate order that could have been breached.

60. A related part of the applicant’s thesis is that the Court should now find that there is a doubt or question as to his guilt stemming from the tainted ADVO. The primary grounds relied upon in the current application are as follows:

61. There is extensive exculpatory evidence contained in the police brief which was not provided to the defence or presented in court;

62. There is unheard evidence that proves that the ADVO is false;

63. There is evidence of the complainant's "disturbed state of mind" which has not been presented to the court;

64. Police arrested and charged the applicant without investigating the allegations properly;

65. The applicant was denied the right to present a defence and to properly cross-examine the witnesses because his mental health was adversely affected during the proceedings; and

66. There are clear defences to the three counts of which he was convicted and to the other historical breach of ADVO charge (namely the same defences that he raised in the first application).

67. Once again, the applicant continues to raise the claim that it is necessary for the prosecution to prove a guilty mens rea and submits that he never intended to break criminal laws or even the ADVO.

68. As Counsel for the Attorney General submitted in her submissions, the applicant is suffering from a misapprehension about the legal meaning of “mens rea" in the context of the offences with which he was charged. The applicant has consistently submitted that because he did not act with malice, he did not have the requisite "mens rea" to commit the offences. This plainly misconstrues the elements of the offences pursuant to s 14 of the CDPV Act.

69. The only fault element for offences under s 14 of the CDPV Act is “knowingly” contravening a prohibition or restriction specified in an ADVO made against the person charged. The offence is made out when the accused voluntarily acts in a way which they know contravenes the ADVO. A mistake about the legal parameters of the prohibition or restriction does not provide a defence. Nor does the applicant’s claim that he was, somehow, clouded or impaired in his decision-making because of the stress-related mental health issues he was suffering from at the time.

70. There is no suggestion in the material before the Court that the applicant was suffering from a mental health impairment that would have required the Local or District Courts to consider the operation of s 14 of the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 (NSW) (or the former s 32 of the Mental Health (Forensic Provisions) Act 1900 (NSW) which was repealed and replaced by the new Act on 27 March 2021). Certainly, no such application was made in either Court, nor is it suggested that Part 7 ought to be activated so as to allow such an application now.

Expansion of the Part 7 Application to cover proceedings in 2017

65. As noted, the current application further relates to an unspecified set of proceedings in 2017. Despite some encouragement by the Registrar to identify these proceedings more precisely, the applicant has failed to provide any information about which proceedings in 2017 he is referring to. The current application does, though, include a transcript of proceedings in the Local Court at Moss Vale in August 2021 and other documents relating to those proceedings.

66. Those proceedings related to two offences the applicant was charged with contrary to s 13 of the CDPV Act*.* As already noted, those offences allegedly occurred between 17 May 2017 and 30 September 2018 (S****equence 1), and 1 October 2018 and 12 June 2020 (S****equence 2) and related to a different PINOP than the proceedings which took place before Douglass LCM.

67. On 2 August 2021, the matter was listed for hearing before O'Brien LCM. Given the dates of the alleged offending in Sequence 1, which covers a timeframe including part of 2017, it may well be that the applicant is referring to this matter in his current application.

68. During those Local Court proceedings, the prosecution ultimately withdrew both charges, and the Court dismissed those charges, with the applicant consenting to the making of a three-year final ADVO.

69. I act on the basis that these proceedings are the "2017 proceedings" which the applicant referred to in his current application. If these are the proceedings he seeks to have reviewed, given that no findings of guilt were made and no convictions were recorded in that matter, my jurisdiction pursuant to ss 78 and 79 of the CAR Act is not enlivened.

70. It is however possible that the applicant is referring to a different set of proceedings in 2017 which he seeks to have reviewed. The applicant's criminal history was included in the material provided by the respondent. It reflects that on 8 December 2017 the applicant was charged with contravening a prohibition/restriction in an ADVO. As previously noted, that matter was dealt with at the Local Court at Moss Vale on 23 January 2018 and no conviction was recorded. The applicant was released on a section 10 bond for a 12-month period.

71. These proceedings are clearly quite different to the proceedings heard by O'Brien LCM in 2021, however no other details, documents or information has been provided about that charge by the applicant. It is likely, though, that those proceedings related to the ADVO which was made on 20 September 2017 to protect the PINOP in that case. But as the applicant provided no further evidence or information about which 2017 proceedings he was referring to in his application, there is nothing that I can do about the complaint.

72. In these circumstances, there is no basis upon which the Court can now make any orders under ss 78 or 79 concerning any proceedings in 2017.

Issues raised in the current application

73. I now wish to address a number of particular issues raised in the current application.

The social significance of the application

74. Prominent in the application are the applicant's references to its "social significance". The applicant expressed the view that police discriminated against domestic violence victims that "do not fit the culturally assigned definition of a victim", suggesting that, because he was a male and apparently tall and muscular, the police refused to act against the complainant when he accused her of perpetrating domestic violence against himself.

75. The applicant also contended that the courts force people like him to consent to ADVOs without admission, leading to the ultimate criminalisation of alleged breaches by truly innocent alleged perpetrators who are being discriminated against because of their gender and adverse relationships with police. The applicant has pointed out that people like him, who have otherwise been respectable and contributing citizens, lose their ability to function in society even to the point of suicide.

76. Very similar submissions were made in support of the first application and were considered by Yehia J in her Honour’s judgement at [40]-[55]. These considerations are irrelevant to ss 78 and 79 of the CAR Act. In any event, all of the applicant's concerns were considered and addressed in the first application.

Extensive evidence not provided to the defence or presented in court

77. The application refers to a number of videotapes and audiotapes that are said to be supportive of the applicant's case. A USB was included in the current application and, presumably, the files on that USB contain the evidence which is said to clear the applicant from criminal culpability. There is no other material outlined which is said to be exculpatory evidence.

78. The video clips contained on the USB were not, apparently, included in support of the first Part 7 application. I have viewed those video clips. They are irrelevant or, even if relevant, only very marginally so. They show the applicant approaching police officers and accusing them of harassing him or of declining to accept his reports of domestic violence. One of them shows a police officer requiring him to undertake a breath test which he disputes as being "random". He accuses the officer of selecting him for breath testing as part of a pattern of discrimination against him. Another video clip shows an officer at the front desk of a police station declining to accept his complaint about domestic violence.

79. Collectively the videos demonstrate the applicant's belief that the police discriminated against him, but the existence of the applicant's belief does not cause a question about the three relevant convictions the subject of the Part 7 application. I accept Counsel for the Attorney General's submission that even though these video clips are "new" evidence, they do not give rise to the appearance of a doubt or question as to the applicant's guilt. Nor do they touch upon any mitigating circumstance. Nor do they give rise to a doubt or question concerning any part of the evidence. They do not constitute "special facts or special circumstances".

Unheard evidence

80. In the documents filed to support Mr Gibson’s current application, the applicant included a number of audiotapes and some images of vandalised cards. Justice Yehia had copies of the photos of vandalised cards for the purpose of the first application. However, it is not clear if her Honour had the tape recordings. The applicant submitted that there is evidence that supported his case which was not presented to the Court at first instance. I understand that the vandalised cards and the tape recordings are the "Unheard Evidence" that the applicant refers to.

81. The Crown Solicitor's Office transcribed these audio files. I have listened to the recordings and read the transcripts. I accept Counsel for the Attorney General's submissions that there is no evidence about how the tapes were made or when they were made and there is no identification of the voices recorded on the tapes. My understanding, though, is that the complainant and the applicant are the two people recorded. I am confident that there is one 41-minute audio tape which records a conversation between the two of them and that the other 12 tapes are excerpts from the 41-minute tape (the main tape).

82. The main tape commences with the sound of the complainant arriving at the applicant's premises. She walks inside. The applicant is playing the drums and, after a few minutes they talk about arrangements for an upcoming live music event during which time the complainant asks the applicant if he had been having sex with another, named woman. He admitted he had been. The complainant then calmly, but with apparent sadness, explains why she cannot continue to be in a relationship with him. The main tape ends with the complainant driving away from the premises.

83. I am sure that these audio tapes are significant to the applicant. They probably help to understand why the complainant no longer wanted to have any contact with the applicant. But there is no way that these tapes shed any light at all on the facts in issue in the proceedings that led to the relevant convictions. They are irrelevant and should have been ruled as inadmissible if they had been tendered. Their existence does not raise a doubt, or question, concerning any part of the evidence. Moreover, they do not constitute "special facts or special circumstances".

84. It is not correct to assert, as the applicant has, that he was not afforded procedural fairness. I have read the entirety of the transcript of the proceedings in the Local Court and the transcript of the appeal in the District Court before Baly SC DCJ. I agree with Yehia J's assessment at [112] of her Honour’s judgment, that the applicant was given every opportunity to present his account by way of evidence and submissions. Both Douglass LCM and Baly SC DCJ were very patient with the applicant and explained the effect of the rules of evidence and the substantive law to him with great judicial patience. Judge Baly SC gave him the benefit of some very favourable factual findings and extended the applicant considerable leniency on sentence.

Judicial bias

85. Upon reviewing the transcript of the Local Court proceedings, it clearly demonstrates that Douglass LCM, at all times, conducted himself in a thoroughly judicial manner and extended courtesy to the applicant. His Honour was careful to explain the procedure to the applicant, and his Honour made rulings for and against the applicant which demonstrated his impartiality.

86. As stated above, the applicant made no application for his Honour to recuse himself, and even now, after such protracted proceedings concerning this case, the applicant has not provided any evidence or information that suggests that his Honour was or could be seen to have been biased against him.

Evidence of mental health issues

87. As Counsel for the Attorney General's submissions point out, the applicant's evidence and submissions about the complainant's mental health replicates the submissions he made in his initial Part 7 application. There is no new issue to consider.

88. In any event, there is insufficient evidence to suggest that the complainant's health issues have ever been relevant to the facts in issue in the proceedings, which are the subject of the current application. Further, the material about the complainant's mental health issues does not raise a doubt or question concerning any part of the evidence. They do not constitute "special facts or special circumstances".

Other issues previously raised

89. The applicant previously advanced submissions in his first Part 7 application that the police did not investigate the case against him. Justice Yehia dealt with this argument at [113]-[116] of her Honour’s judgment. Nothing new has been raised in the current application.

90. Likewise, the applicant repeated his previous submission that he was denied the right to present a case and to cross-examine the complainant and the police. The transcript proves otherwise.

91. Also repeated were the applicant's arguments about the defences he had to the charges which resulted in convictions. He continues under the same misapprehension about the elements of the offence charged in each instance. Nothing new emerges on this front, either.

92. Nor is there anything material, or even new, contained in the applicant's letter to the Judge dated 2 November 2023, except for unverified assertions that the applicant has untreated cancers and cardiac conditions requiring surgery. Health problems may have been relevant to the sentencing outcome but, given the very lenient sentence imposed, it is unlikely to have reduced the penalty any further. The potential existence of some medical evidence which was not acted upon does not warrant any action under ss 78 and 79 of the CAR Act. Nor does the evidence that the applicant has Complex Post Traumatic Stress Disorder (PTSD) as stated by Dr Turner. The issue of the applicant's Complex PTSD is not new. It was squarely raised in the first Part 7 application, as well as in the instant proceedings in both the Local Court and the District Court.

Conclusion

93. For all of the reasons outlined, I conclude that nothing raised in the current application raises a doubt or question as to the applicant's guilt or any mitigating circumstances in the case or as to any part of the evidence for the purposes of s 79(2) of the CAR Act*.*

94. I considered simply refusing to consider the current application because the application alone does not raise anything of substance that was not previously considered by Yehia J. But, given I had to review all of the applicant's supporting material and the Attorney General's responsive material, which involved a considerable amount of reading and reflection, there was no point refusing to consider the material.

95. Nothing in the application requires a different outcome from the one which Yehia J determined. I also conclude that there are no special facts or circumstances that justify further action.

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Endnotes

Tab 4, Exhibit B: Applicant’s Material.

Tab 6, Exhibit B: Applicant’s Material.

Tab 37, Exhibit A: Respondent’s Material.

Tab 7-8, Exhibit B: Applicant’s Material.

Tab 9, Exhibit B: Applicant’s Material.

Tab 11, Exhibit B: Applicant’s Material.

Tab 10, Exhibit B: Applicant’s Material.

Tab 17, Exhibit B: Applicant’s Material.

Tab 27, Exhibit B: Applicant’s Material.

Tab 39, Exhibit A: Respondent’s Material.

Tab 40, Exhibit A: Respondent’s Material.

Tab 14, Exhibit B: Applicant’s Material.

Tab 37, Exhibit A: Respondent’s Material.

Tab 15, Exhibit B: Applicant’s Material.

Tab 43, Exhibit A: Respondent’s Material.

Tab 46, Exhibit A: Respondent’s Material.

Tab 46, Exhibit A: Respondent’s Material.

Tab 16, Exhibit B: Applicant’s Material.

Tab 45, Exhibit A, Respondent’s Material.

Tab 46, Exhibit A, Respondent’s Material.

Tab 1, Exhibit A, Respondent’s Material.

Tab 50, Exhibit A, Respondent’s Material.

Tab 2, Exhibit B, Applicant’s Material.

Email to the applicant from the Registrar of the Court of Criminal Appeal dated 20 August 2024.

GIBSON, Scott- Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577 at [67]-[78].