IN THE APPLICATION OF Michael Anthony GLEESON [2001] NSWSC 866

FRIDAY, 19 OCTOBER 2001 THE APPLICATION OF Michael Anthony GLEESON CRIMES ACT s 474D DETERMINATION 1 His Honour: Michael Anthony Gleeson was charged by an indictment containing nine counts with various sexual offences against a female child who was his stepdaughter. He pleaded guilty to seven of the counts and not guilty to two of them. The Crown accepted the guilty pleas as a full discharge of the indictment. The offences to which the applicant pleaded guilty took place between 31 December 1980 and 1 December 1987. 2 On 19 July 1990 the victim made her first statement to authorities in relation to the matters and on 30 January 1990 the applicant was arrested and charged. A record of interview was conducted in which he made admissions in relation to the offences. The victim gave a further statement on 4 January 1991. The police also obtained photographs that had been taken by the applicant during the course of some of the activities. They were conclusive in respect of the charges to which they are relevant. 3 Counts one and two were charges of indecent assault under the now repealed s 76 of the Crimes Act. Count one involved the applicant having a shower with the victim, rubbing oil on her, masturbating and ejaculating onto her stomach. She was then aged eight years. Count two involved the applicant rubbing oil on the victim, rubbing her vagina and masturbating in her presence. She was then aged eight years. 4 Counts four, five and seven were charges of sexual intercourse without consent under the now repealed s 61D of the Crimes Act. Count four involved the applicant rubbing the victim with oil, inserting a finger into her vagina and masturbating in her presence. 5 Count six involved the applicant rubbing oil on the victim's breasts and his penis, and inserting his finger into her vagina and masturbating in her presence. She was then aged nine or ten years. 6 Count seven involved the applicant inserting his penis into the victim's mouth. She was then aged ten. 7 Counts eight and nine were charges of indecent assault under authority under the now repealed s 61E(1A) of the Crimes Act. Count eight involved the applicant placing his hand on the victim's breast and rubbing his penis on her back. She was then aged fourteen years. Count nine involved the applicant placing his hand on her breast. She was then aged fourteen years. 8 Although the applicant was arrested in July 1990, the committal hearing did not take place until 12 June 1992. On 12 May 1993 the matters were listed for trial before Newton DCJ. On this occasion, having made an unsuccessful application for a stay of proceedings, the applicant pleaded guilty to the seven of the nine charges. 9 The applicant was sentenced on 13 August 1993 following the submission of a pre-sentencing report and a psychologist report. He was sentenced to a three year minimum term plus a one and a half year additional term for charges four, six and seven which was to be served concurrently with a two year fixed term for charges one, two, eight and nine. He became eligible for release on 12 August 1996. 10 The applicant made an application for an extension of time to appeal against conviction and sentence. The Court of Criminal Appeal heard that application on 21 February 1996. The basis of the application was that, had there been a trial, the applicant might not have been convicted because of questions as to the voluntary nature of the police record of interview. 11 Ireland J found that the prosecution case was strong, even without the record of interview. He carefully examined the plea of guilty and found that the applicant had entered into it with a "full knowledge" of the facts. Furthermore the applicant had apologised to the victim in open court, saying "I am very sorry that it happened. And there is nothing I can do to take back what's happened." 12 Ireland J determined that although extension of time to appeal should be granted, leave to appeal should be refused. The other members of the court agreed. 13 In the meantime, the applicant had sought an inquiry pursuant to s 474D. That application was determined by Badgery-Parker J on 18 September 1996 when his Honour declined to direct that an inquiry into the convictions be conducted. He said: "The whole of the applicant's assertions and complaints have to be considered in the light of the photographs of himself and the victim referred to earlier; his successive applications for involvement in the pre-trail diversion of offenders programme, participation in which is conditional upon his pleading guilt to the offences in question; his public apology to the victim in the course of the District Court sentencing proceedings and his affirmative answer at that time to the question, 'Do you accept complete responsibility for your actions against the girl …?'; the pre-sentence report in which the probation officer records certain excuses and mitigating circumstances advanced by the applicant in respect of the offences in a context which clearly implies his admission of the acts themselves; the psychologist's report tendered in the sentencing proceedings in which she noted that the applicant had 'at no time denied the assault and this admission allowed the process of counselling to being'; and finally and most recently, in his letter to this court of 14 April 1996, the paragraph which states:- 'Firstly and most importantly, I do wish to apologise to the young woman and her mother and I do deeply regret any actions on my part that may have caused them any stress, pain or suffering either physically or emotionally.' " 14 Following this determination the applicant wrote raising further matters and Badgery-Parker J decided to deal with the letter as a fresh application under s 474D. 15 Badgery-Parker J determined in relation to this second application: "The applicant's case in relation to those charges is that it is possible to extract from the several statements made by the complainant a proposition inconsistent with her having been present in Sydney, and in the company of the applicant, during the period during which the offences were alleged to have been committed, namely between 31 August 1987 and 1 November 1987. An examination of those statements and of the statements of the complainant's mother and a school teacher to whom she made the first complaint shows that the applicant's point is without substance." 16 His Honour proceeded to determine that there was nothing in the material before him, which would justify the taking of further action, and accordingly the further application was dismissed. 17 The present application was made by letter dated 13 May 2001. The applicant has submitted two further letters in support of the application, the second being a reply to the submission made by the Crown. 18 The applicant makes various detailed complaints. He challenges the decision of Newton DCJ because he says that the judge's reference to offences taking place over a six-year period is erroneous, particularly because he says this would include offences, which occurred during that time but when he was in Queensland. He also says that the confession, which he made, was not freely given because at the time he was in fear of his personal safety from the boyfriend of the victim. He has various other complaints about particular aspects of the remarks on sentence of Newton DCJ. Otherwise his submission can be categorised as a general challenge to the convictions. 19 A significant motivation for the applicant's submission appears to be the revelations of the Police Royal Commission of corrupt activity by police officers in the prosecution of offences. The applicant draws attention to the newspaper articles revealing this corruption and the fact that many admissions may have been wrongly obtained. It would appear that the applicant is asserting that his own admissions were falsely obtained. 20 I have reviewed the whole of the material provided by the applicant, and have considered the previous applications which he has made, the decision of the Court of Criminal Appeal and have also perused the transcript of evidence and the various statements available to the sentencing judge. I am satisfied that there was ample evidence to support the charges without the confession made to the police. That confession needs to be considered having regard to the statement which the applicant made to the court in the course of the sentencing process acknowledging his guilt. Furthermore, the threats and harassment which the applicant alleges took place all occurred after he had pleaded guilty and accordingly are not relevant to the veracity of the confession which he made. 21 The applicant also complains about matters which relate to charges three and five of the original indictment. As he pleaded not guilty to these counts his complaint in relation to those matters is irrelevant. 22 The applicant also complains that the sentencing judge had regard to events allegedly occurring in Queensland when he imposed the sentences in New South Wales. This complaint cannot be sustained for the sentencing judge made clear that he was only sentencing the applicant in relation to the matters to which he had pleaded guilty and not otherwise. His Honour said: "…there is photographic evidence of entirely inappropriate behaviour on the part of the prisoner. I mention this, not to suggest that the prisoner is to be punished for matters for which he has not pleaded guilty. The purpose of mentioning is simply to indicate that the prisoner can get no benefit from any suggestion, which has not in fact been made, that the charges constituted a number of fairly isolated occasions." 23 I am satisfied that there is nothing in the material advanced by the applicant which could justify the intervention of the court. Section 474D(1) of the Crimes Act provides: "An application for an enquiry 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." 24 Section 474E relevantly provides:- "1. After considering an application under s 474D or on its own motion: (a) the Supreme Court may direct that an enquiry be conducted by a prescribed person into the conviction or sentence, or

… ." 25 The applicant was convicted and sentenced and sought, unsuccessfully, to appeal that decision. He has made two previous applications which have been considered pursuant to s 474D and both of them have been dismissed. I am satisfied that the matter has been fully dealt with both "in the proceedings giving rise to the conviction or sentence" and "in the proceedings on appeal from the conviction or sentence", and further has previously been dealt with under this part" the latter on two previous occasions. 26 I am not satisfied from the material before me, that "there are special facts or special circumstances that justify the taking of further action." 27 Accordingly I refuse to consider or otherwise deal with the application made by the applicant pursuant to s 474D.

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