The applicant commenced his application by noting its "social significance" and making six overarching points, before listing his four direct reasons for the application.
Social significance of the Application and points set out by applicant
The applicant submitted that there is social significance attached to this Part 7 application. He states:
"The pattern of behaviour by police and the local courts to which I have been exposed has been based upon the protection of those police consider to be within their own sphere (gang mentality) and upon gender bias and profiling. These acts and injustices have been repeated countless times throughout the state of NSW upon innocent, gentle and positive males and have led to an significant loss of wellbeing, functionality and life.
This reproachable and draconian state of affairs is not only ongoing but seems to be worsening as we loose any contact with procedural fairness, the necessity for evidence based actions and investigations, the relevance of Mens Rea and the right to the presumption of innocence. It is also ongoing in my life and shows no sings of casing after 5 years of false arrest, threats, harassment and fraud by police all because I tried to leave a do0mestically violent relationship in a gentle manner so as I could grow again."
The applicant asserted that due to the "bigoted" approach of police, individuals who do not "fit the mould" of victims of domestic violence "are left without support and exposed to the brutality of police corruption and malfeasance alongside the costs and emotional torments of false prosecutions".
The applicant stated that, through his Part 7 application, he hopes to be "cleared of all charges and allegations" and to "use this case as a trigger for reform and both legal and social change".
I will now briefly set out the six points that the applicant made in his application before turning to the direct reasons for the application.
[1]
Refusal of police to follow police and procedure and denial of legal rights based upon gender
In submissions, the applicant referred to his childhood abuse, diagnosis of Complex Post Traumatic Stress Disroder and domestic violence perpetrated against him by his former wife/ the complainant. He submitted that when the complainant was physically violent toward him, he "would not retaliate but simply withdraw". Following December 2016, when he left the complainant, he submitted there was further violence, illegal entry into his home, and verbal threats. The applicant submitted these things "triggered an escalation in Complex P.T.S.D Symptoms and the beginnings of traumatic reminiscence".
The complainant, the applicant submitted, made a "false AVO report to ensure the abuse against [the applicant] would continue". The applicant received a phone message from police and voluntarily attended Bowral Police Station. He submitted:
"Sensing the situation was escalating out of control I tried to report the crimes committed by [the complainant] so as she may receive some support and their could be some enforcement of my right to live without abuse and I was told by the police officer to shut my mouth - that I don't get to speak or report anything - that if I did I would be arrested and locked up and it was insinuated he could have be raped in prison - my liberty was deprived (door was physically blocked by officer to prevent me leaving) and then an interim A.V.O was issued on me without any consideration of the crimes I was trying to report or investigation."
The applicant submitted that following this, he has tried to report domestic violence perpetrated against him on over 12 occasions and has been ignored and threatened by police. He stated that he has been told he "had better take an A.V.O and shut [his] mouth about the violence otherwise [he] would be locked up for 5 years or [his] life [would] be so intruded upon that [he would] commit suicide to escape police." Further, he submitted that he has had "fraudulent" AVOs served on him that did not go before a judge, and that court-appointed lawyers were "planted by police" and refused to contest the AVOs. He made concerning submissions about being harassed by police including having police "unclipping their guns…as warnings not to go to court".
The applicant submitted that the message sent to him by police is that he is a "persona non grata" who has no right to report abuse.
[2]
Denial of actual academic statistics relating to domestic violence
The applicant submitted that research as to violence in domestic relationships has been ignored by DV officers:
"The facts as shown by the Dunedin report and countless other academic papers that can be presented to the court are that females are statistically slightly more violent than men in domestic relationships (51%/49%). We all know all research otherwise has been distorted by feminist researchers with agenda. This is simple academic fact. Yet this is constantly denied by DV officers who tell people such as myself (a yoga student, musician, volunteer for the community) that all males are toxic. Why is police training and the courts not embracing and accepting the actual statistics."
[3]
Use of duress and economic pressures to force individuals into AVOs without permission/ AVOs taken without admission being used as if factual to criminalise individuals
The applicant submitted that harassment and duress was used to cause him to "take A.V.O's without admission." He submitted that he was, therefore, subject to AVOs that were both "false" and "taken under duress".
The applicant further submitted that the police have tried to criminalise him for violence even though he did not admit to any crimes.
[4]
Failure of the current system to embrace correct legal procedure and natural law. Proving of legal validity AVO without admission is not in the system.
The applicant submitted it is not a fair procedure for criminal charges to be laid in relation to the breach of an AVO where the "truth and validity" of that AVO has not been tested:
"Where there is an alleged breach of an AVO without admission it follows that before the AVO statement can be taken as a basis upon which criminal charges can be pursued then it must first be thoroughly investigated by police and if they are to allege its validity then the allegations in the A.V.O statement must be brought before the court for a evidence based assessment of its truth before any criminal charges relating to breach's can be pursued".
It was submitted that if the AVO was false, then it must be the case that "all charges relating to a breach of AVO…have no merit".
[5]
System based on gender bias, profiling and discrimination
The applicant submitted that as a male, he has been given "no right to the protection of law" or to report domestic violence.
[6]
Refusal of state to acknowledge effects of Domestic Violence upon males
The applicant stated that he had police laugh at him when he told them about violence. He stated that they abused him and tried to silence him which "destroyed [his] well being".
Unheard evidence
The applicant submitted that there is evidence that "the AVO is false", and that Ms Clarke has lied and committed other criminal acts. He stated that this evidence has not previously been presented in court due to procedural fairness being denied to him, and due to his mental health. The three areas of unheard evidence identified by the applicant are:
1. Recordings made by the complainant of a conversation had between the applicant and complainant in early 2017 where he "supported her through her mental health issues and threats of suicide". The applicant stated that this recording provides evidence that the AVO statement was "false and without merit" and also that he "was a gentle and caring partner throughout the relationship".
2. Pictures of cards "vandalised" and pictures smashed during illegal entry to his home. The applicant contended that this evidence "proves [the complainant's] actions were aggressive and violent and her mental state was unbalanced and vindictive".
3. Evidence of the complainant's mental health issues.
No investigation and Evidence Hidden by police
The applicant submitted that in a related matter police admitted they never investigated the allegations. It was also submitted that the police have "hidden" videos of interactions between the applicant and the complainant, which shows that he is "gentle and caring" and that the complainant is "lying and irrational".
In relation to sequence 7, it was submitted that police have also hidden a video that "clears [the applicant] of the sequence for it shows he was not in the AVO zone and did not approach or communicate with" Ms Clarke other than to signal that everything was okay.
In relation to sequence 1, it was submitted that there is evidence that shows that the applicant "did not follow or go near" the complainant and that she was lying in her statement. It was submitted "this can be proven by a search of police records".
The applicant also contended that police have "refused to release the evidence of their long and ongoing professional relationship" with the complainant who, he contended, they have been protecting "from her crimes and actions".
Right to fair procedure and to cross examine
The applicant submitted that he has been denied the right to present a defence; the complainant and the police "have never been properly cross examined due to the effects of the events overwhelming the accused".
There are clear defences the accused can present to the remaining 3 sequences and to the other historical breach of AVO charge
The applicant submitted that he should be entitled to present his defence "where he is not overwhelmed by intimidation and the trauma of past events and the events in question".
In relation to sequence 1, the applicant questioned whether "the act of putting ones hand on ones heart" actually contravenes the AVO which prohibits approaching or contacting the PINOP. If it was indeed a contravention, the applicant would then question whether the mens rea requirements were met, given "mental health issues…and the effects of domestic and childhood abuse".
In relation to sequence 7, the applicant again questioned whether the AVO was in actual fact breached by signalling to the PINOP that all was okay (this being "an act of necessity" in the circumstances,) and similarly contended that if it was breach, the requirement of mens rea was not met for the abovementioned reasons.
In relation to sequence 9, the applicant submitted that, when he sent "a gentle and caring email offering his business to the PINOP so [he]… could leave for overseas so as to escape harassment and intimidation and heal from the abuse and mental health issues that were being constantly triggered by police", he did not have the mental capacity to understand that this was a breach of the law, nor did he have the mens rea to breach the law.
The applicant submitted that he did not have the required mens rea in any of the above sequences, and that 'there is nothing in this whole case that shows [he] has ever been anything but supportive and loving of [the complainant] despite her actions and issues". He has, he submitted, never intended to breach any AVO, "but has simply been trying to survive and recover as a victim of abuse".
The Applicant's Section 5B Appeal
Included in this application was the contents of the applicant's prior s 5B appeal. The applicant requested that it be "accepted and translated from its current form".
In the s 5B appeal to the Court of Appeal, the applicant submitted that he had been the victim of domestic violence by the complainant, and that she had committed various crimes against him.
It was submitted that that the complainant and the police took advantage of the applicant's mental health conditions to silence him and to criminalise him by using threats, intimidation and harassment. It was also submitted that the police had threatened to incarcerate him when he attempted to report domestic abuse and that this happened over ten times.
The applicant submitted that the AVO had been "taken under threats, intimidation and harassment from police and the use of tactics by police to silence an abuse victim". It was also taken without admission.
The applicant contended there was evidence that had not been presented to the court regarding the actions of the PINOP, and that there was evidence of nepotism and corruption in the proceedings. Finally, the applicant submitted that he was not violent and that "[t]he breaches of the AVO involve[d] very gentle, tender and caring actions".
The applicant raised the following twelve questions of law on the 5B appeal:
1. Did the police pervert the course of justice by refusing to take reports of domestic violence against the applicant and by harassing, threatening and intimidating him?
2. Was the AVO taken under duress?
3. Could the applicant, given his mental health, understand the ramifications of taking the AVO?
4. Can the Court proceed to conviction and do the charges have any basis where there is unheard evidence that the AVO statement was false?
5. Did the applicant have the capacity, or recognise, that the nature and quality of the acts were reaches of the AVO?
6. Did the police criminalise the applicant and pervert the course of justice, including by planting court appointed lawyers and leaving the accused unrepresented?
7. Does the law require that there be a threat of danger to a person before an AVO is issued?
8. Did the applicant contravene the AVO when he put his hand on his heard and, if so, was the mens rea requirement met?
9. Did the applicant contravene the AVO when he signalled that all was okay to Mr Clarke and, if so, was the mens rea requirement met?
10. When sending an email offering his business to Ms Clarke, did the applicant have the mental capacity to understand this was a breach of the law?
11. Do questions about the integrity of Ms Clarke and the fact that there is unheard evidence regarding the AVO statement being false bring the whole case into question, including the validity of the AVO?
12. Is it within the powers of police, the Court and the Crown to use the laws designed to protect victims of domestic violence to act against and convict a victim of domestic violence?
The issues raised in support of the 5B appeal were dealt with by the Court of Appeal on 14 September 2021: Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218. The Court held, dismissing the summons with costs:
The reasons for refusing to refer the questions to the Court of Criminal Appeal were not wholly clear as to whether or not they were in fact the judge's reasons, or a paraphrase of them, and what the precise basis of the refusal was: [23]-[24] (Bell P); [28] (Basten JA); [64] Meagher JA).
The reasons did not affirmatively demonstrate that the District Court Judge misconceived her true function in relation to the request to submit questions of law: [57]-[59] (Basten JA); [64] Meagher JA).
If a proper understanding of the reasons was that the judge could not entertain the request to refer questions to the Court of Criminal Appeal because she had no power to do so and was functus officio in that sense, this would have involved jurisdictional error, if the error were material: [23]-[24] (Bell P); [38] (Basten JA); [64] (Meagher JA).
If there was jurisdictional error, it was "immaterial" as the purported questions of law sought to be referred were plainly not "questions of law" within the meaning of s 5B: [27]-[29] (Bell P); [38], [58] (Basten JA); [64] (Meagher JA).
Alternatively, relief should be withheld in the exercise of the Court's discretion because of its lack of demonstrated utility: [30] (Bell P); [38] (Basten JA); [64] (Meagher JA).
The Crown Submissions on the Part 7 Application
The Crown submitted that when the applicant raised the question as to whether he had to requisite mens rea to commit the offences, he "misapprehended what is meant by "mens rea" in this context as meaning the reason why he breached the order, or the intention behind the contact". The Crown further submitted that in determining the applicant's guilt for the offences of breaching the AVO, "it is irrelevant" whether or not there was "malice in his conduct".
Sequence 1
The Crown submitted that as the AVO prohibited the applicant from approaching or contacting the complainant in any way, it was clearly breached. Although the applicant contested the fact that he tooted and waived at the complainant, the complainant's evidence was "unshaken" in this respect. Despite this, however, the applicant conceded before Judge Baly SC, that he put his hand on his heart when he passed the complainant, and given the strictness of the AVO, this amounted to a breach.
Sequence 7
The Crown submitted that Judge Baly SC's finding that the applicant's conduct in signalling that everything was okay to the complainant was a "technical breach" of the AVO, was clearly open on both the complainant's evidence and on the applicant's own concessions in court.
Sequence 9
The Crown submitted that there does not appear to be any doubt as to the applicant's guilt in relation to this sequence. It was also submitted that "the binding effect of the applicant's plea can only be undone if the applicant brings himself within the limited circumstances that enable someone to withdraw their plea".
Referring to the judgment of Justice Johnson in Application of Paul Nardelli under Section 474D Crimes Act 1900 [2006] NSWSC 967, the Crown submitted that, in determining whether a plea may be undone, "the relevant inquiry is into the integrity of the plea, rather than an examination of the applicant's guilt or innocence".
To traverse a plea of guilty, "it is necessary for an appellant to demonstrate that he did not appreciate the nature of the charge to which the plea was entered, that the plea was not a free and voluntary confession, that the plea was not readily attributable to a genuine consciousness of guilt, that there was a mistake or other circumstances affecting the integrity of the plea as an admission of guilt, that the plea was induced by threats or other impropriety, that the plea was not made in circumstances suggesting that it was a true admission of guilt or that, at the time the plea was entered, the appellant was not in possession of all the facts and did not entertain a genuine consciousness of guilt" (Application of Paul Nardelli under Section 474D Crimes Act 1900 [2006] NSWSC 967 at [16]).
The Crown submitted that, at the time the plea was entered, none of the above circumstances applied, and the transcripts support the proposition that the applicant understood the nature of the charge against him. It was further submitted that no medical evidence was provided by the applicant in support of his suggestion that he did not have the mental capacity to understand that his conduct constituted a breach of the AVO. Although there was a diagnosis of Post Traumatic Stress Disorder supported by evidence, there was nothing to indicate how this impacted his ability to understand the nature of the charge.
Complaints in relation to the validity of the AVO
In response to the applicant's complaints that the AVO was invalid and made based on false statements by the complainant, the Crown submitted that "the applicant consented to the making of the AVO, without admissions, thereby forfeiting his right to test the truthfulness of the complainant's statement in cross examination at a contested hearing". The Crown submitted that the applicant is "bound by his forensic decisions and the procedure under s 78 of the Act is not intended to provide the applicant with an opportunity to run his case again".
The Crown submitted that the "unheard evidence" referred to by the applicant relates to the question of the credibility of the complainant in respect of the initial AVO, and that the appropriate time to examine that evidence would have been in a contested hearing, the right to which was forfeited when he made the forensic decision to plead guilty. This evidence, further, was submitted to have "no bearing on the question of the applicant's guilt in relation to the offences of breaching the AVO".
The Crown submitted that there was no evidence of actual threats or harassment by police, but that a formal complaint can be made to a relevant authority if the applicant wishes. The Crown also submitted that complaints about the extension of the AVO are immaterial as the charge period occurred before that extension.
Complaints in relation to the police investigation
In response to the applicant's complaints regarding police impropriety in investigating the AVO breaches, the Crown submitted that no allegation that the police had hidden evidence was put to officers giving evidence.
Moreover, it was submitted the conduct of the police has "little bearing on the evidence relating to sequences one, seven and nine". These issues, the Crown submitted, appeared to have been raised "as a matter of perceived public interest", rather than relating directly to the matter of the applicant's guilt for these charges.
Complaints against the police in respect of uncharged acts by the complainant against the applicant
In respect of these complaints, the Crown submitted that these issues are not relevant to the question of the applicant's guilt for the three sequences the subject of this application.
Complaints in relation to court processes
The Crown, referring to the transcript of Local Court proceedings, submitted that any issue of a court-appointed lawyer breaking privilege was denied when police were cross-examined by the applicant in court and that the issue has no bearing on the question of the applicant's guilt in relation to these sequences.
The Crown further submitted that although the applicant now questions the fairness of his court appearances, before Judge Baly SC he stated that the Crown and Judge had been "balanced" and indicated that he had "a voice".
The Applicant's Submissions in Reply
The applicant's submissions in reply are largely repetitive of the original submissions in support of the Part 7 application. He submitted, firstly, that 'the submission of the Attorney General is based upon the continuation of a long line of history to protect the abusers and those acting outside the promises, policies and procedures and the laws of the state". He reaffirmed that he feels he has been silenced since his childhood where he suffered trauma and disadvantage.
The applicant stressed his history of volunteering and lack of violence. He stated he wanted to "leave the relationship in a gentle and supportive manner" but that he suffered abuse in response. He stated that he sought assistance from the police to address his ex-partner's behaviour but that they would not assist him and, to the contrary, he was "told in a violent and aggressive manner to shut [his] mouth and that if [he] tried to speak about the domestic violence [he] had experienced [he] would be locked up in jail and exposed to anal rape". He stated that the abuse he suffered at the hands of the complainant and police led him to believe that "nothing had changed since [his] childhood".
The applicant submitted that the complainant "was given the green light for the crimes", and that his over twelve attempts to report the violence were unsuccessful. The complainant and police, the applicant submitted, used his mental health against him.
The applicant submitted that the police denied to look at the evidence, that the arrests did not meet LEPRA requirements and that Goulburn Court lied to him about there being no course of appeal. He further submitted: "DV Houghton has said on record that she will pursue me for legal and normal actions once AVO's are completed and has done this". All this, the applicant submitted, goes to the fact that "there is a clear ongoing pattern of intimidation, harassment and arrests without grounds and outside the LEPRA laws to silence me from presenting the truth, the actual evidence and seeking justice".
The applicant called the Court to "open this up and look at the truth", stating that there is no evidence that shows him to be aggressive or violent in any way.
Addressing sequence 9, the applicant re-stated that the lawyer had been planted by police "and that she had agreed to an AVO" when he had said he "wanted to fight it".
Further Submissions Received on 2 November 2022
The most recent submissions filed by the applicant are largely irrelevant to the matters I have to consider in making a determination about whether to grant or refuse the application. The applicant, in those submissions, makes allegations of police misconduct in the form of laying false charges and harassment. The applicant also refers to a number of mental and physical health issues including but not limited to being unable to leave his home safely; experiencing "immense stress"; identifying a number of medical ailments that have not been properly treated because he continues to suffer from stress; and, allegations of collusion between the complainant and the police to bring false charges against the applicant.
Consideration
Although the applicant is un-represented, he has provided comprehensive submissions.
Section 79(3) of the Crimes (Appeal and Review) Act sets out the circumstances (non-exhaustively) in which the Court may refuse to consider or otherwise deal with an application. It provides the basis for a form of summary dismissal of the application. I am not bound to refuse to consider or otherwise deal with the application merely because the matters set out in ss 79(3)(a) and (b) are satisfied.
To a large extent, the issues and submissions raised in support of this application have been previously dealt with in the Local Court and the District Court. However, I will proceed to consider the question as to whether I should direct that an inquiry be conducted into the conviction imposed by the District Court on 28 October 2020, or a referral made, having regard to s 79(2).
The Court may dispose of the application summarily if it appears that the matter has been fully dealt with in the proceedings giving rise to the conviction (or in any proceedings on appeal from the conviction); and, if the Court is not satisfied that there are special facts or circumstances that justify the taking of further action. The discretion to refuse to consider the application is broad.
I repeat, the material and submissions relied upon by the applicant are, to a large degree, repetitive of the material that was placed before Judge Baly SC at the District Court.
"Unheard Evidence" and "Right to fair procedure and to cross-examine"
Insofar as the applicant relies upon a denial of procedural fairness, it is necessary to say something about the conduct of the proceedings in the Local Court and the District Court.
Magistrate Douglass confirmed with the applicant that he was ready to proceed and that he had received a copy of "the brief". The applicant stated that he was "equipped and prepared a case to present himself". He added: "I'm actually very well prepared" (Tcpt 4/11/2019 at p 2).
The applicant objected to an application made by the prosecution that the complainant give evidence via audio-visual link. The applicant was heard on the application. Magistrate Douglass refused the application.
A number of witnesses were called in the Crown case, including the complainant. The applicant was able to cross-examine each of the witnesses. In relation to the complainant, he discontinued cross-examination because he believed that it "is just going to be really damaging. I don't think Katherine needs this" (Tcpt 4/11/19 at p 72).
The accused gave evidence in the Local Court proceedings and was cross-examined. He was afforded an opportunity to make submissions.
The applicant was also self-represented in the District Court. Having read the transcript, it is abundantly clear that Judge Baly SC extended to the applicant every opportunity to make submissions. Her Honour afforded the applicant patience, respect and procedural fairness. Indeed, her Honour proceeded to make findings that were consistent with the accounts given, and concessions made, by the applicant.
I reject any suggestion that the applicant was not afforded procedural fairness. On the contrary, the record shows that he was given every opportunity to present his account by way of evidence and submissions.
No investigation and Evidence hidden by police
Each of the complaints raised in support of this submission, was raised in the proceedings before the Local and District Courts. The applicant cross-examined police officers connected with the investigation during the Local Court proceedings.
Senior Constable Simone Houghton was called and cross-examined by the applicant. The applicant tested the witness's evidence in respect of allegations of breaching the AVO by following the complainant or taking routes that would place him in contact with her.
The applicant also cross-examined Senior Constable Susan Devlin. The applicant questioned the witness about his experience with police. It was suggested that police were very aggressive towards him, threatened him and "shut [him] down". The witness was also cross-examined about police policies in relation to domestic violence insofar as those questions were relevant and admissible.
The applicant had the opportunity to question police about evidence that had not been presented or was allegedly "hidden". The applicant was not denied the opportunity to raise complaints about the police investigation or police conduct.
"Clear defences that the applicant can present to the remaining three sequences and to the other historical breach of AVO proceedings"
The applicant entered a plea of guilty to sequence 9. He has maintained that plea during the proceedings. The breach was constituted by the applicant sending the complainant an email with an attached manuscript. There is no dispute that this conduct took place. The applicant has always accepted that he had the necessary knowledge that the AVO was in existence at the relevant time, and that he was aware of the conditions attached to the AVO.
In respect of sequence 1 and 7, Judge Baly SC accepted the account given by the applicant and found that, on each occasion, the relevant gesture constituted a form of communication. The non-contact condition was very strict. It prohibited the applicant from approaching or contacting the complainant "in any way".
The persistent theme in the applicant's complaint is that he was not motivated by malice. The communication was motivated by kindness or a concern for the well-being of the complainant. The applicant has previously and consistently raised the issue that the prosecution had not established the requisite "mens rea".
An offence contrary to s 14(1) of the CDPV Act requires that an accused person knowingly contravene a prohibition or restriction specified in an AVO. The purpose of the legislation is to enable a court to impose protective orders. The means of protection is the prohibition of particular conduct that may result in feelings of harassment and intimidation.
Put another way, to be guilty of an offence of contravening an AVO, the prosecution must establish that an accused person was aware of the existence of the AVO and the conditions attached to it, and knowingly engaged in the conduct that constituted the breach. The prosecution is not required to prove an intention to cause a complainant to feel harassed or intimidated.
Having considered the applicant's comprehensive submissions, and to the extent that they raise issues that have not been fully dealt with in the proceedings giving rise to the convictions, I am not satisfied that a direction should be made that that an inquiry be conducted by a judicial officer into the conviction of the applicant.
I am also not satisfied that the case should be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. I am of the opinion that there is no doubt or question as to Mr Gibson's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
Order
Accordingly, I make the following order:
1. The application of Scott Gibson filed on 18 January 2022 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.
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: 17 November 2022
Statutory Framework for Applications Under Section 78 of the Crimes (Appeal and Review) Act 2001 (NSW)
This application is brought pursuant to Part 7 of the Crimes (Appeal and Review) Act, and is to be determined in accordance with ss 78 and 79 of that Act, which provide:
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).
The purpose of the legislation in respect 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]; 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] (AZ).
An application under Part 7 does not engage the exercise of judicial power, but rather requires the Court to exercise an administrative power: AZ at [10] and [16]. Indeed, when dealing with a Part 7 application, a judge of the Supreme Court is not exercising the power as a judicial officer, but as a persona designate exercising administrative power that is independent of, and not incidental to, any exercise of judicial power (see Application by Christopher Cranney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 1005 at [16]).
Per s 79(1), exercising the administrative power, the Supreme Court is conferred with the power to direct that an inquiry be conducted into a conviction, or to refer the matter to the Court of Criminal Appeal to be dealt with as an appeal. Section 79(2) provides that those actions "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". This is "language of confinement", and unless the judge is of the view that one of those three conditions is satisfied, the Court may not take action (see Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783 at 790).
An application under Part 7 is not intended to provide a convicted person with a further avenue of appeal; rather, it is activated "when the criminal justice system runs its course" and is only enlivened, per s 79(2) of the Act, where there is "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" (see Potier - Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 768 at [10]-[11]). It is common that an applicant will seek to rely on evidence that has come to light after trial which might raise a doubt as to their guilt (AZ [15]).
Justice Johnson in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (Holland) set out the relevant test, as follows:
"[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].
[7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].
[8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]."
Justice Dhanji summarised some of the recent caselaw regarding the principles applicable to a Part 7 application in Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442:
"[9] In Li v Attorney General for New South Wales [2018] NSWSC 674, Harrison J stressed, at [15], that "[t]he statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question … The Court does not need to be satisfied that a doubt or question is well founded to order an inquiry, as that is a matter for the inquiry" (emphasis in original). This was reproduced with approval by Basten JA in Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95 at [19].
[10] In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, Basten JA, at [65], expressed some reservation about relying on the test stated in Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 of whether there is a feeling of "unease" or "disquiet" in allowing the conviction to stand. His Honour there observed that "[t]his language does not assist. There is no purpose served by adopting other words than the statutory language of 'doubt or question'": see also Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623 at [14]; Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 at [13].
[11] In Eastman v Director of Public Prosecutions (ACT) (No 2) (2014) 9 ACTLR 178; [2014] ACTSCFC 2, the Court considered the interpretation of s 422 of the Crimes Act 1900 (ACT) (the ACT equivalent of s 79 of the CAR Act, albeit with more conditions before an inquiry may be ordered), and came to the view (at [50]) that the concept of "doubt" is connected to the outcome of the finding of guilt, whereas "question" is linked to the process by which that finding was reached.
[12] It is not necessary for the Court in an application under Part 7 to determine if the evidence is "fresh" rather than "new". In relation to this, Johnson J in Application of Holland, said, at [11]:
'The nature of the jurisdiction under Part 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal. To invoke the fresh evidence rule at the ss.78-79 stage (as the Crown submissions of 30 November 2006 suggested by reference to R v Ion (1996) 89 A Crim R 81 at 93-94) does not sit well with the function being performed. In decisions concerning applications under s.475, it was observed that the fresh evidence rule had no application: Application of Esposito at page 2; Application of Visser at page.'"
In summary, the following principles can be distilled from the case law:
1. In determining the application, the Court is exercising an administrative power;
2. The Court is not hearing an appeal against the applicant's conviction;
3. The legislation is designed to overcome injustices that sometimes arise in the course of the administration of criminal justice;
4. The legislation has a beneficial purpose;
5. The scope of the administrative function is determined by the relevant provisions set out in s 79(2) of the Crimes (Appeal and Review) Act; and
6. Action under s 79(1) (being either to direct that an inquiry be conducted, or for the whole case to be referred to the Court of Criminal Appeal), 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: s 79(2).