HIS HONOUR: On 31 July 2006, Max Gillies was found guilty by a jury of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900. The Crown case was that on 9 July 2004, Mr Gillies had filmed himself committing a number of sexual acts on his then partner while she was unconscious.
Mr Gillies was tried on three counts of having sexual intercourse without consent, one count of attempted sexual intercourse and a further charge of assault with an act of indecency. The jury convicted Mr Gillies on one count of sexual intercourse without consent, acquitted him on another count of sexual intercourse without consent and the act of indecency count but were unable to agree on the remaining charge of attempted sexual intercourse without consent. On 30 September 2009, a retrial commenced in Sydney District Court in relation to that remaining count and on 16 October 2009, Mr Gillies was acquitted on that count.
Mr Gillies was sentenced to imprisonment for 6 years and 8 months, with a non-parole period of 5 years. He appealed against both his conviction and sentence to the Court of Criminal Appeal. That appeal was dismissed on 23 December 2008: Gillies v Director of Public Prosecutions [2008] NSWCCA 339. The relevant facts are set out in some detail in the judgment of that Court at [9]-[15].
Mr Gillies applied for a grant of legal aid in order to seek Special Leave to Appeal to the High Court. That application was refused in March 2011.
On 19 July 2019, Mr Gillies applied for a Part 7 enquiry into his conviction. The challenge to his conviction was based on what he claims to be "fresh metadata" evidence that will prove that the transcript in his first trial was tampered with, apparently by the trial judge. It is not clear to me how that proposition aligns with the fact that the jury would have heard the evidence in real time and that the status of the transcript would in the normal course be expected to recede in significance.
On 17 December 2019, the Chief Executive Officer of the Legal Aid Commission, Mr Brendan Thomas, refused Mr Gillies' legal aid application. A right of review is not provided to the Legal Aid Review Committee.
Gillies v Legal Aid Commission New South Wales [2020] NSWSC 505 | Case summary | Zoe
By summons filed on 28 February 2020, Mr Gillies commenced proceedings in this Court seeking judicial review of the defendant's decision to refuse him aid for his Part 7 application. By amended summons filed on 2 April 2020, Mr Gillies seeks the following:
"Pursuant to r 59.4 of the UCPR, the Plaintiff seeks judicial review of the whole of the decision based on the conduct of the Defendant in the making of the decision which is supported by the Facts and particulars set forth in this summons.
Pursuant to r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) the decision for review was made by Mr Brendan Thomas (CEO) on 17 December 2019 on behalf of the Defendant, which decision involved a deliberate jurisdictional error."
Mr Gillies also seeks an order quashing or setting aside the decision under s 69(1)(e) of the Supreme Court Act 1970, an order under s 34 of the Legal Aid Commission Act 1979 or s 8 of the Legal Aid Policy directing the defendant to approve funding for him, an order under s 34(c) of the Legal Aid Commission Act engaging external counsel for him and an order under UCPR 59.9 directing the defendant to identify the person who created the written submissions "used by the decision-maker in the determination to refuse [his] application for legal aid".
In his affidavit in support dated 28 February 2020, Mr Gillies has annexed all the documents before the defendant as the decision maker in support of his application for legal aid.
The summons was first returnable before Registrar Jones on 10 March 2020. A number of directions were made at that time.
On 26 March 2020, Mr Gillies filed a notice of motion seeking a series of orders. On 2 April 2020, the Registrar made further orders, the effect of which was that only orders 6-13 in the notice of motion are pressed before me today. Order 6 is the substantive order and is in the following terms:
An Order pursuant to s 33(d) of the Legal Aid Commission Act 1979 (NSW) and/ or pursuant to Section 66(4) of the Supreme Court Act 1970 (NSW), and/or pursuant to the general law, that the Court appoint an independent suitably qualified and experienced "expert" forensic examiner, (at the Defendant's expense), to examine the Metadata of the transcripts in relation with the Plaintiff's proceedings heard in the Sydney District Court and the Court of Criminal Appeal for the purposes of establishing the significant authenticity issues with respect to each tampered transcript.
Orders 7 to 10 are consequential orders about the material to which the expert should have access (orders 7 and 8), what the expert may do (order 9) and about the production of a report (order 10). Order 11 seeks a hearing date for the substantive proceedings and order 12 seeks costs of the motion.
The defendant opposes each of the orders sought.
For reasons that appear below, I am satisfied that Mr Gillies' notice of motion must be dismissed.
[2]
Mr Gillies' submissions
In written submissions filed on 29 April 2020, Mr Gillies alleges that his conviction was a "gross miscarriage of justice" because he is innocent. He contends that there is "clear evidence" of prosecutorial misconduct leading to the obstruction of justice on the part of judicial officers. The burden of his complaint is that the trial transcript of his original trial and the transcript of his appeal proceedings in the Court of Criminal Appeal were altered. He submits that he can establish this with "fresh metadata evidence".
Mr Gillies also claims that ss 21-22 of the Human Rights Act 2004 have been breached by this conduct.
Mr Gillies contends that this Court should strike out the defendant's defence or, alternatively, enter summary judgment in his favour on the basis that the defendant has not complied with the first order made by Registrar Jones in a directions hearing on 10 March 2020. It is further submitted that the conduct of the Registrar and the defendant at the 23 April 2020 hearing contravened UCPR 18.1.
With respect to the proposed expert evidence relevant to his review application, Mr Gillies contends that an order could be made under s 53 of the Evidence Act 1995. Paragraph [28] of Mr Gillies' submissions is as follows:
"It is submitted that, for the purpose of this Motion focus is fixed on the tampering issues found at (page 397) [CB 58, 60, 61] of the transcript for 10 August 2006, given that those changes were done to conceal the fact that the police in the case doctored the evidence that was used to wrongly convict the Plaintiff. This issue with the transcript in this regards was first discovered on 26 January 2019 and the material embodied in the transcript at (page 397) was not the evidence adduce during the trail [sic], which demonstrates a gross miscarriage of justice had occurred in the trial and the judgment handed down by the NSWCCA was based on illicit material. All transcripts referred to herein and that are in the possession of the Plaintiff, had been digitally transmitted via emails to the Plaintiff by the Courts. That fact alone proves the continuity and authenticity and creation of the transcripts by the Court, which is irrefutable evidence on its own accord."
Mr Gillies also referred to a forensic expert report of Dr Allan Watt dated 5 February 2019, the transcripts of the District Court and Court of Criminal Appeal proceedings, the Crown Appeal Book and several emails with court staff. He submitted that fresh metadata evidence satisfies the requirements pursuant s 4.14.1 and s 8.2 of the Legal Aid NSW Policy and that the defendant should thus grant him legal aid for the purposes of a Part 7 enquiry.
Finally, Mr Gillies referred to several documents, some of which were filed as written submissions in support of his Amended Summons on 1 April 2020. They are:
1. Emails between Mr Gillies and the Registrar of the Sydney District Court in 2011.
2. The transcript of the retrial in 2009.
3. A Merit Advice on a Special Leave Application to the High Court prepared by Ms Carolyn Davenport.
4. An affidavit prepared by Ms Sarah Therese Ryan from the Crown Solicitor's Office.
5. A copy of Gillies v District Court [2014] NSWCA 3.
Mr Gillies further disputed submissions made by the defendant in its response to the amended summons. As most of these concerned the substantive issues in contest in his review application, it is not necessary to summarise them here.
[3]
Defendant's submissions
Legal Aid noted that the substantive proceedings are for judicial review. This means that the Court's enquiry is based on the evidence that was before the original decision maker: Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1; [2017] FCAFC 194 at [64]; MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]. The defendant submitted that Mr Gillies "cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact", citing Minister for Immigration and Border Protection v Singh [2016] FCA 575 at [58].
It was submitted that order 6 has no utility: proceedings for judicial review require the demonstration of legal error on the part of the decision maker in respect of material that was before that decision maker. They do not relate to the merits of the original decision maker's decision to which the expert evidence the subject of order 6 is plainly directed.
Furthermore, the defendant submitted that this Court has no power to make such an order. Section 33(d) of the Legal Aid Commission Act does not exist. If Mr Gillies is referring to s 33(1)(d) of the Act, that provision provides power to the Commission to refer a person for legal aid. It does not provide power for the Court to do so. Furthermore, even though s 66(4) of the Supreme Court Act provides that this Court may, at any stage of proceedings, on terms, grant an interlocutory injunction, this would not enable the making of the proposed order 6.
Finally, the defendant submitted that order 11 was unnecessary as the fixing of hearing dates can be done before the Registrar. The defendant submitted that the costs order sought in order 12 is unnecessary given that orders 6-10 have no basis, and that no further orders are required.
[4]
Consideration
Mr Gillies' application is wholly and fundamentally misconceived. His challenge is relevantly to the decision made by the defendant to refuse to approve a grant in his favour for the purposes of pursuing his quest for a review of his conviction. It is to be accepted that Mr Gillies maintains that (what I should neutrally refer to as) the problems with the transcripts of his trial and (somehow) his appeal will, when revealed, support his assertion that his conviction cannot stand. That contention may or may not be made good in due course. However, it was not any part of the role of the defendant to appoint or qualify, or even become in any way involved in the search for, some suitably qualified expert to establish or to demonstrate that Mr Gillies' concerns about the authenticity or accuracy of these transcripts is well founded. It is correspondingly no part of the Court's function on an application such as this to appoint an expert somehow to assist Mr Gillies' in his proposed challenge. Any consideration or assessment by this Court of the decision of the defendant to decline Mr Gillies' application does not extend to empowering or authorising this Court to do what Mr Gillies, as an applicant for a grant of legal aid, contends the defendant failed or omitted to do.
As indicated above, Mr Gillies places special reliance upon s 66(4) of the Supreme Court Act. Although not referred to in his written submission, Mr Gillies also drew my attention to s 65 of that Act in the course of his oral presentation. Those provisions are as follows:
65 Order to fulfil duty
(1) The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested.
(2) The Court may, on terms, make an interlocutory order under subsection (1) in any case where it appears to the Court just or convenient so to do.
(3) The powers of the Court under this section are in addition to any other powers of the Court.
66 Injunction
…
(4) The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do.
Section 66(4) of the Supreme Court Act can have nothing to do with Mr Gillies' application for relief in accordance with paragraph 6 of his notice of motion and was presumably referred to by him in error.
Section 65 of the Supreme Court Act is similarly irrelevant. Mr Gillies has identified no duty that is imposed upon the defendant with which it has failed to comply. Doing the best I can, I anticipate that Mr Gillies asserts that the defendant had an obligation or duty to consider his application for a grant of legal aid according to law. That contention is something to which Mr Gillies may wish to direct his attention when his application for substantive relief is considered at the hearing of his summons. It has nothing to do with his present application for relief in terms of paragraph 6 of his notice of motion.
Finally, and without intending to derogate from anything that I have said so far, I note that Mr Gillies also drew my attention to the terms of what for presently relevant purposes appears to be the defendant's decision dated 26 November 2019 in respect of which he seeks prerogative relief. Under the heading "Client's submissions", the following appears:
"Client's submissions
The client in his application dated 19 July 2019 outlined his submissions. On 20 November 2019 he provided Legal Aid with attachments that were referred to but not uploaded previously. In short:
• The Applicant contends that there was a conspiracy between the prosecutors, Trial Judge, and the Department of Justice to illegally modify trial transcripts that went to the Court of Criminal Appeal.
• The Applicant bases this on a report from a Dr Allan Watt dated 5 February 2019 that contends 'metadata' shows the trial transcripts were modified by the Judge
• The report in question annexes a metadata analysis which shows the 10 August 2006 transcript was modified by the NSW Attorney-General's Department on 10 August 2006
• The Applicant contends this is a denial of natural justice and procedural fairness.
• The Applicant's ultimate submission is that because the Court of Criminal Appeal was provided with false transcripts, their dismissal is a miscarriage of justice as it was based on false information.
• It is noted the application does not show what was modified and records 'total edit time' as 0 minutes.
There is no merit in a further investigation into the conviction as there is no new information that will justify a Part 7 inquiry. The metadata indicates it was saved by the Court but does not establish whether anything was modified or inserted that would otherwise cause the evidence of the trial into question or cause a miscarriage of justice. An appeal on the conviction of the Applicant would undoubtedly fail."
Mr Gillies has submitted that the defendant should in some fashion, when confronted or supplied with this information, have embarked upon its own investigative exercise, better to inform itself of the truth or otherwise of the matters alleged by Mr Gillies concerning the transcripts in question, or even as a means of independently verifying the complaints that he was making. The defendant had no such obligation. Even if for the sake of argument Mr Gillies' contention is accepted, it is not one that advances his application for the relief that he seeks in paragraph 6 of his notice of motion.
Mr Gillies sought costs. He raised arguments in oral submissions complaining about the defendant's alleged failure to comply with directions made by the Registrar. Whatever costs consequences those alleged failures may have in the ultimate disposition of Mr Gillies' summons, they are not germane to the disposition of his notice of motion.
[5]
Conclusion
In these circumstances, I make the following order:
1. Mr Gillies' notice of motion filed 26 March 2020 is dismissed with costs.
[6]
Amendments
15 May 2020 - Typographical error in paragraph 2 corrected
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: 15 May 2020