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[2026] ACTCA 23
respondent. Leave to appeal refused.
The court held that the ACT fresh-evidence appeal scheme can apply even where a person was convicted after pleading guilty. But Kader’s ex-wife’s affidavit did not meet the statutory test. The evidence could have been presented earlier with reasonable diligence, and it was not sufficiently reliable or probative to justify reopening the conviction. The court also considered that Kader had pleaded guilty, declined an opportunity to withdraw the plea, and was unlikely to obtain a better result if resentenced. Leave was refused.
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2,465 words · generated 07/10/2026
In Kader v DPP [2026] ACTCA 23, White J considered an application for leave to appeal against a conviction under Part 8AB of the Supreme Court Act 1933 (ACT). The conviction was for perjury. The central practical issue was not whether Kader denied committing perjury altogether. White J recorded that Kader accepted he was guilty of perjury concerning where the dog was living, but his complaint centred on the sentencing judge’s further finding that his perjury extended to his evidence about a cabinet and other objects near a wall in his apartment ([34], [58]).
6 cited instruments linked from this judgment.
At the first trial for sexual offences, the complainant alleged that Kader had thrown her against a wall while she was trying to leave his apartment. Kader denied that account. His evidence included that a cabinet and dog-related objects were positioned near the wall, making the complainant’s account impossible. The jury did not reach a verdict ([3]–[5]).
After the trial, police obtained information from Kader’s ex-wife that contradicted his account of the dog’s living arrangements. Kader then sent her an email acknowledging that some of his evidence had not been true and asking for support for his account before the second trial ([6]–[7]). He pleaded guilty to perjury at the start of that second trial, which White J noted he did for forensic reasons, and pleaded not guilty to other charges. That trial also ended without a verdict ([8]–[10]).
Kader later pleaded guilty to perjury and attempting to pervert the course of justice. At the sentencing hearing, the judge considered whether the perjury also covered the evidence about the cabinet and dog items. The judge found beyond reasonable doubt that the items were not present as Kader had claimed, and that his evidence about them had been a deliberate lie ([16]–[25]). Kader appealed against sentence. The Court of Appeal dismissed the relevant challenge to that finding, upheld the sentence on the perjury count, and dismissed the appeal ([28]–[31]).
For this leave application, Kader relied on an affidavit from his ex-wife that had been prepared for unrelated ACAT proceedings. It said that she had removed the dog food box, bowls and dog from the apartment in July or August 2019, but that the white cabinet remained where depicted in a photograph when she last visited in approximately December 2019 ([35]–[38]). White J refused leave because the affidavit was not fresh or compelling evidence, and because leave was not in the interests of justice ([98]–[107]).
The judgment separates the question of whether Part 8AB is available in principle from whether this particular application meets its conditions.
First, White J rejected the argument that Part 8AB only applies after a contested trial. The statutory language refers to a “convicted person” and to a person “convicted or found guilty”. In White J’s view, the natural meaning includes a person convicted following a guilty plea ([91]–[92]). He also concluded that the provisions defining fresh evidence could apply to a proceeding in which a guilty plea was entered ([92]). The applicant therefore was not excluded from the scheme merely because his conviction followed a plea.
Second, White J rejected the proposition that the earlier sentence appeal, by itself, barred a Part 8AB application. He read s 68ZE as allowing for evidence not tendered in an earlier appeal against conviction, and concluded that a prior appeal against sentence did not automatically preclude an application, provided the other statutory requirements were met ([95]–[97]). This did not transform a sentencing complaint into a successful conviction appeal. It meant only that the earlier appeal was not a categorical bar.
The first decisive problem was freshness. Under s 68ZE(1), evidence is fresh if it was not tendered in the relevant proceeding or appeal and “could not, in the course of an exercise of reasonable diligence,” have been tendered there. Kader accepted that he could have called his ex-wife’s evidence in the sentencing proceedings. He argued that it was unreasonable to expect him to subpoena her, given their antagonistic circumstances. White J was not satisfied that those difficulties met the statutory test, particularly because the cabinet issue was live at sentence and Kader had been able to use her evidence in the ACAT proceedings ([98]–[100]). The question was not simply whether the evidence had in fact been used earlier, but whether it could have been tendered with reasonable diligence.
The affidavit also failed the compelling-evidence test. Section 68ZE(3) requires evidence to be reliable, substantial, and highly probative in the context of the issues in dispute in the proceeding. White J was concerned that the affidavit had been made for collateral proceedings and had not been tested in the present matter. Its terms did not unequivocally establish the cabinet’s presence at the critical time, and the strained relationship between Kader and his ex-wife affected the assessment of its purport ([101]). The judgment also makes a distinction between evidence relevant to the scope of the sentencing judge’s factual findings and evidence capable of undermining the conviction itself. White J accepted that this affidavit went to the former, not to the integrity of the guilty plea ([102]–[103]).
Finally, White J held that leave would not be in the interests of justice. He treated Kader’s plea as a public confession of guilt. Kader had been given an opportunity to withdraw it after the sentencing issue became apparent but declined to do so ([105]). White J also considered the likely endpoint of the application: the sentence on the perjury count had been described as lenient and upheld on appeal, and he considered that resentencing was unlikely to improve Kader’s position ([106]). The conclusion rested on the combined statutory requirements and the particular procedural history, not on a general rule that a guilty plea can never be challenged.
Before this decision, Part 8AB was a recently enacted ACT regime for appeals based on fresh and compelling evidence. White J noted that it was inserted by the Supreme Court Amendment Act 2023 (ACT), alongside a related scheme in Part 8AA dealing with prosecution appeals in limited circumstances ([42]). The Explanatory Statement said the test for allowing an appeal matched the leave test, apart from the additional requirement of a “substantial miscarriage of justice”; White J observed that the explanatory material was not very helpful ([43]–[47]).
The judgment addressed several interpretive questions that the ACT provisions had left to be resolved. It held that a guilty plea does not, in itself, put a conviction outside Part 8AB ([91]–[94]). It also held that an unsuccessful sentence appeal does not itself prevent a later Part 8AB application ([95]–[97]). These are interpretations of the ACT statutory text in this judgment, not a general determination that every guilty-plea conviction or sentence-related complaint will qualify.
The decision also applied the statutory definitions of “fresh” and “compelling”. Freshness demands more than novelty: if the evidence could have been tendered through reasonable diligence in an earlier proceeding, it does not satisfy s 68ZE(1)(b) ([98]–[100]). Compelling evidence is subject to cumulative qualities, including reliability, substantiality and high probative value. White J relied on the statutory text and discussed authorities interpreting comparable legislation, including Van Beelan v The Queen and Roberts v The Queen ([48]–[57]).
After this decision, the legal position expressed by the ACT Court of Appeal single judge is that Part 8AB can encompass guilty pleas, while the evidence and interests-of-justice requirements remain substantive barriers. The outcome did not decide that Kader’s original sentence finding was correct for all purposes, nor did it create a new sentencing appeal route. It decided that the proposed fresh-evidence appeal could not proceed on this evidence and in these circumstances.
At [91], White J said that the statutory language “encompasses a person who has become a convicted person as a result of entering a plea of guilty”. In plain English, the legislation is not confined to people convicted after a full trial. The judgment then applied the same textual approach to the references in s 68ZE to the proceeding in which a person was convicted or found guilty ([92]).
At [96], White J reasoned that a prior sentence appeal did not automatically prevent an application under Part 8AB. The qualification matters: the applicant still had to meet the requirements of Part 8AB. This is not a holding that Part 8AB can be used as a second ordinary sentence appeal.
At [98], White J stated that the affidavit was not fresh because it could have been tendered earlier with reasonable diligence. In plain English, evidence does not become fresh merely because it was not presented at the time. The applicant must also account for why it could not have been presented despite reasonable efforts.
At [101], White J identified concerns about the affidavit’s form, lack of testing, ambiguity about the relevant time, and the parties’ strained relationship. Those matters informed whether the evidence was reliable and probative. The court did not make a finding that the ex-wife’s statement was false. It concluded that the affidavit, as presented, did not satisfy the statutory standard.
At [103], White J said that the evidence did not invite the conclusion that the conviction should be set aside, even if accepted. This makes clear the connection between the proposed evidence and the remedy available under s 68ZH. Evidence that might affect a sentencing finding does not necessarily justify setting aside a conviction.
At [105]–[106], the court considered the guilty plea, the opportunity to withdraw it, the previous sentence appeal, and the likely consequences of further proceedings. These were part of the interests-of-justice assessment in this case, rather than a freestanding rule that a plea always forecloses further review.
The decision is relevant where a person seeks leave under Part 8AB after a guilty plea and argues that fresh evidence undermines the conviction. It confirms that the guilty-plea feature alone does not prevent the statutory scheme from applying. A decision-maker would still need to examine whether the evidence meets the statutory definitions and whether leave would be in the interests of justice ([91]–[94], [104]).
It is also relevant where a person has already pursued an appeal concerning sentence. The judgment says that this history does not automatically bar a Part 8AB application, although the application must still genuinely satisfy Part 8AB’s requirements ([95]–[97]). Where the real complaint concerns the factual basis of sentence rather than guilt, the distinction between conviction and sentencing issues may be significant. White J treated that distinction as important when assessing whether the proposed affidavit could support setting aside the conviction ([102]–[103]).
The reasonable-diligence reasoning is relevant where evidence was available from a witness during an earlier trial or sentencing proceeding but was not called. The judgment shows that interpersonal difficulty may be considered, but it does not necessarily establish that the evidence could not have been tendered with reasonable diligence ([99]–[100]). The facts and the explanation for not calling the witness remain material.
The decision is also relevant where evidence comes from a separate or collateral proceeding. White J considered the fact that the affidavit had been prepared for ACAT proceedings and had not been tested in the leave application. That circumstance contributed to concerns about reliability, alongside the affidavit’s terms and the relationship between the parties ([101]). The judgment does not establish that affidavits from collateral proceedings are invariably inadmissible or incapable of being compelling; the stated concern was specific to the material and procedural circumstances before the court.
The supplied judgment does not identify any later court decisions applying or interpreting Kader v DPP [2026] ACTCA 23. It would therefore be unsupported to state how later courts have treated this decision.
White J did discuss earlier authorities addressing comparable statutory schemes. Van Beelan v The Queen concerned the South Australian legislation and explained the ordinary meanings of reliability, substantiality and high probative value, as well as the interests-of-justice requirement ([48]–[51]). Roberts v The Queen concerned the Victorian scheme and was cited for the requirement that a court be positively satisfied of the statutory qualities of the evidence, rather than merely finding them reasonably arguable ([56]–[57]).
The judgment also considered Mokbel v The King, where the Victorian Court of Appeal allowed appeals following guilty pleas. White J concluded that the Victorian scheme was not particularly relevant to the construction of the ACT provisions, because its statutory context differed ([66]–[78], [93]). He did not cast doubt on the result in Mokbel ([93]). Vella v Western Australia [No 2] was discussed as involving different statutory language and an observation about the absence of issues in dispute at a trial after a guilty plea ([76]–[77]).
These authorities help explain the reasoning in Kader, but they are not later treatment of Kader itself. On the material provided, the development of the decision’s reception by subsequent courts remains unknown.
The judgment leaves open how the ACT courts will apply the “highly probative in the context of the issues in dispute” requirement where a person pleaded guilty and there was no contested trial. White J decided that Part 8AB can apply after a guilty plea, but the affidavit failed the freshness and compelling-evidence requirements, so the court did not need to define the full range of issues that may be relevant in a guilty-plea case ([91]–[103]).
The decision also does not determine what evidentiary procedure is required for fresh evidence in a Part 8AB application. White J expressed concern that the ex-wife’s affidavit had been made for collateral proceedings and could not be tested by cross-examination, but deferred the issue because no formal objection was taken and it was unnecessary to decide it ([39], [101]). The judgment therefore raises, without resolving, questions about when affidavit evidence from other proceedings can adequately establish the statutory threshold.
Another open issue is how far sentencing-related evidence can support an appeal against conviction. Here, White J considered that the affidavit went to the factual basis of the sentence, not the integrity of the plea, and that it did not support setting aside the conviction ([102]–[103]). The judgment does not decide every circumstance in which evidence about sentencing facts might also bear on guilt or the validity of a plea.
Finally, the interests-of-justice discussion was applied to this particular history: a maintained guilty plea, a declined opportunity to withdraw it, a prior unsuccessful sentence appeal, and a sentence described as lenient and upheld on appeal ([105]–[106]). The judgment does not establish a general rule about the weight each factor must receive in another case. This is general legal information, not legal advice. Zoe can make mistakes. Before relying on this analysis or acting on it, have it checked by a qualified Australian lawyer.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Kader v DPP Citation: [2026] ACTCA 23 Hearing Date: 20 July 2026 Decision Date: 7 August 2026 Before: White J Decision: Leave is refused. Catchwords: APPEAL – PRACTICE AND PROCEDURE – Leave to appeal – application to appeal against conviction on basis of fresh and compelling evidence – where applicant pleaded guilty to perjury – where sentencing judge found perjury extended to comments in addition to those for which applicant entered plea of guilty – where purported fresh evidence is affidavit tendered in unrelated proceedings – consideration of interests of justice – whether appeal the appropriate course in the circumstances STATUTORY INTERPRETATION – CRIMINAL APPEAL PROVISIONS – Part 8AB of the Supreme Court Act 1933 (ACT) – application for leave to appeal against conviction on basis of fresh and compelling evidence – meaning of “fresh evidence” – meaning of “compelling evidence” – meaning of “convicted person” – whether Part 8AB applicable to convictions following guilty pleas Legislation Cited: Criminal Law Consolidation Act 1935 (SA) s 353A Criminal Procedure Act 1921 (SA) s 159 Criminal Procedure Act 2009 (Vic) ss 326A, 326C, 326E Judiciary Act 1901 (Cth) s 35A Supreme Court Act 1933 (ACT) ss 37J, 68ZC, 68ZD, 68ZE, 68ZF, 68ZG, 68ZH, Pts 8AA, 8AB Supreme Court Amendment Act 2023 (ACT) Cases Cited: DPP v Kader (No 6) [2023] ACTSC 363 GAS v The Queen [2004] HCA 22; 217 CLR 198 Kader v DPP [2024] ACTCA 31 Mokbel v The King [2025] VSCA 243 R v Bromley [2018] SASCFC 41 R v De Simoni [1981] HCA 31; 147 CLR 383 Roberts v The Queen [2020] VSCA 58; 60 VR 431 Rogerson v R, McNamara v R [2021] NSWCCA 160; 290 A Crim R 239 Van Beelan v The Queen [2017] HCA 48; 262 CLR 565 Vella v Western Australia [No 2] [2025] WASCA 70 Texts Cited: Explanatory Statement, Supreme Court Amendment Bill 2023 (ACT) Parties: Imran Kader (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel Self-represented (Applicant) E Roff (Respondent) Solicitors Self-represented (Applicant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 57 of 2025 Decision Under Appeal: Court: ACT Supreme Court Before: McCallum CJ Date of Decision: 1 December 2023 Case Title: DPP v Kader (No 6) Citation: [2023] ACTSC 363 Court File Numbers: SCC 200 of 2021 SCC 201 of 2021 WHITE J: Introduction
This is an application for leave pursuant to s 68ZG of the Supreme Court Act 1933 (ACT) to bring an appeal against conviction. The matter has a long and involved history which it will be necessary to relate.
The applicant was tried twice for sexual offences alleged to have been committed against a work colleague who I will call the complainant. After the first trial, the applicant was charged with perjury in relation to evidence he had given at the first trial. He pleaded guilty to that offence before the jury at the start of the second trial. He was subsequently sentenced for that offence by McCallum CJ who presided over the second trial (see DPP v Kader (No 6) [2023] ACTSC 363 (Kader (No 6)). It is in relation to that matter that he now seeks leave to appeal.
Procedural History
The first trial
The prosecution case alleged that the offences had taken place in the applicant’s apartment following a work Christmas party. This included an allegation that as the complainant attempted to leave the apartment, the applicant threw her against a wall near the front door. The complainant drew a diagram of the compartment marking the part of the wall she said she had been thrown against.
The applicant’s case was that the sexual activity was consensual, and he denied throwing the complainant against the wall. It was put to the complainant by the applicant’s counsel at trial that she had not been thrown against the wall as she alleged. She was taken to photographs taken by the applicant of his apartment which depicted furniture and dog items against the wall where she said she had been thrown. The complainant gave evidence that “I don’t recall any of that being there but I didn’t specifically look in that direction either” (Transcript, DPP v Kader (ACT Supreme Court, SCC 200/2021, McWilliam AJ) 23 February 2022 at 238.27 (“First Trial Transcript”)).
The applicant gave evidence that he did not throw the complainant against the wall and further that it would not have been possible to do so “because there was a large cabinet there, and also the large tub of dog food.” (First Trial Transcript, 3 March 2022 at 712.34) the applicant gave evidence that he had a dog living with him at the time, but that the date of the alleged offence, the dog was visiting his wife (now ex-wife, and who will be referred to as the ex-wife) in Newcastle. The jury was unable to reach a verdict.
After the first trial, police contacted the ex-wife and obtained a statement relating to the dog which contradicted the applicant’s evidence at the first trial. After being served with this statement, the applicant made repeated attempts to contact the ex-wife to persuade her to change her evidence to support his account. This contact included an email to the ex-wife wherein the appellant admitted to giving false evidence. This email is set out in full as annexure to Kader (No 6). The email commenced: Dear UG, There is a very specific reason that Detective Bakes asked the questions that he did. He was sent on a fishing expedition to see if he could get you to contradict any of my evidence. There were one or two things that I stated in my evidence that wasn't true. The main thing was regarding the dog. I gave the evidence knowing that the only person that could possibly contradict me was you. When the case ended I suspected the prosecution may ask Detective Bakes to contact you to try and find anything they could use against me. That was why I sent you the text not long afterwards asking you to please not speak to the police, even if they threaten to subpoena you because if they don't know what you were going to say, they wouldn’t ask you to take the stand. The issue relating to the dog is relatively simple. The complainant alleged that as she was trying to leave the apartment, I grabbed her, pulled her back and threw her into a wall. She then claimed that she got to the door, opened it, yelled out Jet me go [sic] then I chased her to an Uber. I denied doing this. I said that her version of events was not possible because there was a cabinet and a large tub of dog food in the area that she claimed I threw her into the wall. There was also some dog bowls against the wall. I provided a photo out of one of the videos I had taken of the dog. The attached images "near door" and "dog bowls" are what was submitted as evidence. You can see the layout.
The sentence on the perjury and attempt to pervert the course of justice charges
On 19 July 2023, the applicant entered pleas of guilty to both charges and an agreed statement of facts signed by the applicant and dated 19 July 2023 was tendered to the Court.
In relation to the perjury charge, the agreed statement of facts included: During his evidence in chief, the offender gave evidence that a large cabinet, large tub of dog food and dog bowls were kept against the wall of his apartment in December 2019. Defence tendered photographs… from early 2019 showing the dog bowl and food… The offender indicated these items were in the same position on the evening of the alleged sexual assault (1 December 2019). This was inconsistent with where the complainant alleged the offender had held her against the wall.
The agreed statement of facts then set out extracts of the evidence given by the applicant at the first trial and including cross-examination of him. The extract of evidence included a part of the cross-examination where the applicant stated: … so I had to keep the dog in Canberra for the first six months up until I think August. And then after that when my wife moved to Newcastle, she rented a house so that the dog could intermittently go on holidays to Newcastle so I can have a weekend without the dog every now and then.
The statement of facts continued: The offender’s sworn evidence (above) at trial that his dog remained living with him in Canberra after August 2019 was false, as the dog was in fact living with [the ex-wife] in Newcastle at that stage.
The matter came on for sentence before McCallum CJ on 30 November 2023. One of the issues that emerged at the sentence was the factual basis for the applicant’s plea to the offence of perjury. The applicant contended that the only basis for the plea was the false evidence he had given about where the dog was living.
It should be noted as that McCallum CJ had presided over the second trial, at the commencement of which the applicant had pleaded guilty to the count of perjury and not guilty to the count of attempting to pervert the course of justice, her Honour accordingly had the benefit of hearing all of the evidence that was given in the second trial, obviously including evidence that was relevant to the count of perjury.
On behalf of the applicant, it was submitted that the plea of guilty to perjury only extended to the applicant’s false evidence about the presence of the dog in Canberra at the relevant time, and did not extend to his evidence about the presence of items or objects against the wall.
Her Honour referred to her “anterior knowledge” of the facts and stated (Transcript, DPP v Kader (ACT Supreme Court, SCC 200/2021, McCallum CJ) 13 November 2023 at 7.28 (“Sentence Transcript”)): Well, I think we have a problem. Because I think my assessment of the evidence is that the statement that the dog equipment was still in Canberra at the time of the Christmas party was false. And if that needs to be – I mean I don’t know if you want to take me to any authorities that say a judge is bound by an agreed statement of facts. Or if you want to say that should be a contested fact hearing and we need to have a contested fact hearing. But I would feel compromised in my own honest assessment of the evidence if I was asked to sentence on a basis that the dishonesty didn’t extend to that. Because, in my assessment, it plainly did.
The appeal to the Court of Appeal
The applicant appealed to the Court of Appeal against the sentences imposed on various grounds, the relevant ground for present purposes being ground (c): On the evidence before the Court in the sentencing proceeding, her Honour erred in finding either or both of the following as matters of fact beyond reasonable doubt: i. No large cabinet either existed or was in the appellant’s apartment at the time of the alleged sexual offences; and ii. That the appellant lied in his evidence that a large cabinet was placed against the wall into which it was alleged he pushed the complainant of the alleged sexual offences, or that it existed at the time of those alleged sexual offences.
The Court of Appeal dismissed ground (c). The Court held that in order to succeed on this ground, it was necessary to demonstrate that the findings were not open to the primary judge. This the appellant had failed to do (Kader v DPP [2024] ACTCA 31 at [84]-[86]): As counsel for the Director observed, in the first trial, the complainant could not recall the large cabinet being against the wall, even after being shown the photographs tendered by the appellant. The appellant’s oral testimony was the sole evidence that the cabinet was against the wall on the night of the alleged sexual offending. Importantly, in his email to former ex-wife, the appellant stated: There were one or two things that I stated in my evidence that wasn’t true. The main thing was regarding the dog… I said that her version of events was not possible because there was a cabinet and a large tub of dog food in the area that she claimed I threw her into the wall. As the Director’s counsel submitted, it was open to the primary judge to draw an inference that the appellant’s evidence regarding the presence of those items was false. In particular, unless the appellant was being untruthful about the cabinet, there was no reason for him to refer to the cabinet in his email to his ex-wife. Further, it was well open to the primary judge to conclude that although the “main thing” that the appellant lied about was the dog items, the appellant’s reference to the presence of the cabinet as well as the dog items in the email is an indication that his lie also extended to the cabinet. As the Director’s counsel submitted, in an email describing his false evidence, “one may wonder why the appellant would refer to the presence of the cabinet if that aspect of his evidence was not [also] false”.
The Court of Appeal did uphold one ground of appeal, finding that the primary judge had erred on a De Simoni basis (R v De Simoni [1981] HCA 31; 147 CLR 383) in her sentence on the perjury ground. However the Court held that the penalty that had been imposed by the primary judge was lenient and concluded that no lesser sentence than that imposed by the primary judge was appropriate in all the circumstances. Accordingly the appeal was dismissed.
The applicant has not sought special leave of the High Court to appeal against the decision of the Court of Appeal.
The present application
The applicant, who was represented by counsel in both trials and in the Court of Appeal, now appears for himself. He seeks leave under s 68ZG of the Supreme Court Act to appeal against “the conviction, and consequently the sentence imposed by McCallum CJ”, citing 4 grounds: (a) “Error of fact regarding the presence of the large cabinet in the apartment on the night of 1 December 2019”; (b) “Error of fact regarding the date of the text messages sent on 2 July 2022”; (c) “Breach of the common law principle against duplicity”; and (d) “Breach of the Human Rights Act section 22.2 a) and/or b)”.
I should say that in two notices of appeal that the appellant has lodged, neither expressly refers to s 68ZG of the Supreme Court Act. Indeed, one application was in the form of an application to the Registrar for leave to appeal out of time, and the second was in the form of a notice of appeal against the orders made by McCallum CJ. However, the written submissions made by the applicant, and his oral argument before me all proceeded on the basis that this was an application for leave under s 68ZG.
Despite the breadth of the grounds pleaded, it is fair to say that the main issue revolves around the charge of perjury and the finding of McCallum CJ in relation to the presence of the large cabinet. As I understand it, the applicant does not contest that he is guilty of the charge of attempting to pervert the course of justice. Nor does he contest that he is guilty of the count of perjury; rather he contends that he was sentenced for that offence on an improper basis. The ex-wife’s affidavit
In support of his application, the applicant seeks to put further evidence before the Court in the form of an affidavit affirmed by the applicant’s ex-wife (which I will call the ex-wife’s affidavit). As I apprehend it, it is the ex-wife’s affidavit which constitutes the “fresh and compelling evidence in relation to the offence” of which it is necessary for an applicant under s 68ZG to satisfy the court.
The ex-wife’s affidavit is put before this Court as an annexure to an affidavit affirmed by the applicant on 18 December 2025. In his affidavit, the applicant claims that “on 27 November 2025 [his ex-wife] provided an affidavit for proceedings in the ACT Civil and Administrative Tribunal confirming the cabinet was present at the time in question”. The applicant’s affidavit goes on to assert that the ex-wife’s affidavit provides fresh and compelling evidence that demonstrates a substantial miscarriage of justice, as “the finding that the cabinet was not present is incorrect and the statement ought not have been found to constitute a criminal offence of perjury.”
The ex-wife’s affidavit itself was purportedly sworn on 27 November 2025 by the applicant’s ex-wife. It deposes that during 2019, she visited the applicant’s apartment approximately once every two months. It then refers to two photographs of the interior of the apartment which are said to show a white cabinet and a black dog food box next to the cabinet, as well as some dog bowls. The affidavit continues at paragraph 4: I took the dog food box and bowls and the dog from the apartment in July/August 2019. The white cabinet remained in the same place where it is depicted in [the relevant photo] when I last visited the Deakin apartment in approximately December 2019.
The relevant provisions
Pursuant to ss 37J and 68ZF of the Supreme Court Act, questions of leave to appeal under s 68ZG may be heard by single judge of the Court of Appeal, and it is in that capacity that I heard the present matter.
The relevant provisions are to be found in Part 8AB of the Supreme Court Act, which is headed “Appeals against conviction for fresh and compelling evidence”. The critical provisions are as follows: 68ZC Application—pt 8AB (1) This part applies in relation to a person who is convicted or found guilty of an offence in the Supreme Court or the Magistrates Court (the convicted person). (2) In this section: convicted or found guilty, of an offence, includes a conviction or finding of guilt entered before the commencement of this part. Division 8AB.2 Important concepts 68ZD Definitions—pt 8AB In this part: compelling, evidence—see section 68ZE (3). convicted person––see section 68ZC (1). court means the Court of Appeal. fresh, evidence—see section 68ZE (1). 68ZE Meaning of fresh and compelling evidence—pt 8AB (1) For this part, evidence in relation to an offence is fresh if the evidence— (a) has not been tendered in the proceeding in which the convicted person was convicted or found guilty of the offence, or any appeal against the conviction or finding of guilt; and (b) could not, in the course of an exercise of reasonable diligence, have been tendered in a proceeding mentioned in paragraph (a). (2) To avoid any doubt, subsection (1) does not prevent evidence from being fresh only because the evidence was, or would have been considered to be, inadmissible in the proceeding in which the convicted person was convicted or found guilty of the offence. (3) For this part, evidence in relation to an offence is compelling if the evidence is— (a) reliable; and (b) substantial; and (c) highly probative in the context of the issues in dispute in the proceeding in which the person was convicted or found guilty. … Division 8AB.4 Appeal against conviction 68ZG Court may grant leave to appeal conviction (1) The court may, on application by a convicted person, grant leave for the convicted person to bring an appeal against their conviction or finding of guilt if satisfied that— (a) there is fresh and compelling evidence in relation to the offence that should be considered on an appeal; and (b) it is in the interests of justice for the order to be made. (2) To remove any doubt, the court may grant leave under this section if a convicted person has previously made an application or been granted leave under this section. 68ZH Orders on appeal against conviction (1) This section applies if the court grants leave under section 68ZG. (2) The court, on an appeal against a conviction or finding of guilt, may— (a) allow the appeal if it considers that— (i) there is fresh and compelling evidence; and (ii) after taking into account the fresh and compelling evidence, there has been a substantial miscarriage of justice; or (b) dismiss the appeal. (3) If the court allows the appeal, the court must— (a) set aside the conviction or finding of guilt; and (b) either order— (i) a verdict of not guilty to be entered; or (ii) a new trial or hearing.
Principles applicable to grant of leave
In Van Beelan v The Queen [2017] HCA 48; 262 CLR 565 (“Van Beelen”) the High Court considered the South Australian scheme in s 353A of the Criminal Law Consolidation Act 1935 (SA). (The current South Australian legislation is to be found in s 159 of the Criminal Procedure Act 1921 (SA) in essentially similar form.) The Court noted at [1] that s 353A “conferred a novel jurisdiction on the Full Court” to determine a second or subsequent appeal, and that that jurisdiction “is conditioned on the Full Court’s satisfaction that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal.”
It was not necessary for the High Court to consider the meaning of “fresh evidence” as it was clear in that case that the evidence did not exist at the time of trial and came into existence decades later.
The Court did consider the meaning of “compelling evidence” stating at [28]: Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words ‘reliable’, ‘substantial’ and ‘highly probative’ in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused's act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt. (Footnotes omitted.)
The Court also considered the term “the interests of justice”, noting at [30]: Jurisdiction under s 353A(1) is further conditioned on the Full Court's satisfaction that it is in the interests of justice to consider the fresh and compelling evidence on appeal. Commonly, where fresh evidence is compelling, the interests of justice will favour considering it on appeal. Nonetheless, as the respondent submits, it is possible to envisage circumstances, such as where an applicant has made a public confession of guilt, where the interests of justice may not favour that course.
The respondent’s position generally
The respondent opposes the grant of leave on the following basis: (a) The application is not one which enlivens a grant of leave pursuant to s 68ZG. In substance, the applicant’s complaint concerns a factual finding made at sentence, not his guilt of the offence of perjury. The procedure provided for by s 68ZG does not apply to enable the applicant to review a sentencing decision; and (b) To the extent the applicant seeks to appeal his guilt in relation to the offence of perjury, he has failed to demonstrate there is fresh and compelling evidence in relation to the offence which should be considered on appeal, and it is not in the interests of justice for a grant of leave to be made.
The respondent makes the point that the application represented by the two notices of appeal referred to above does not appear to be in the appropriate form, but the respondent is nevertheless content for the Court to treat the present application as one purporting to be brought pursuant to s 68ZG, which in substance appears to be what the applicant wants.
The respondent does note that although the applicant’s draft notice of appeal alleges five grounds, the fifth of which is abandoned, the relevant “fresh and compelling evidence” relates only to the first ground alleging an error of fact regarding the presence of the cabinet. The respondent submits that given that the jurisdiction under s68ZH turns on whether there is a substantial miscarriage of justice “taking into account the fresh and compelling evidence” the respondent need only respond to the substance of ground 1, in other words, the first ground is the only ground capable of enlivening the Court’s jurisdiction to grant leave. Why the respondent says leave should not be granted
The respondent raises the following objections to the grant of leave: (a) Part 8AB does not permit a second or subsequent appeal against a sentence decision, so the present application does not fall within Part 8AB; (b) Even if the application could be brought, the ex-wife’s affidavit does not constitute fresh or compelling evidence; (c) In any event, it would not be in the interests of justice to grant leave.
Does the present application fall within Part 8AB?
The respondent argues that the present application, whilst framed as an appeal against conviction in order to fit within Part 8AB, is in substance a second attempt by the applicant to appeal against his sentence on the count of perjury. The respondent submits that Part 8AB does not permit a second or subsequent appeal against a sentence decision. The respondent points out that although the applicant refers to his conviction for perjury as being unsafe, he does not challenge the fact of his guilt with respect to the offence. I interpolate as referred to above, the applicant eschewed the opportunity of traversing his plea on the count of perjury at his sentencing hearing. The respondent argues that the existence of the purported fresh evidence has no bearing on the integrity of the applicant’s plea of guilty, rather it is simply relied upon to seek to demonstrate that his offending conduct was narrower than that found by the sentencing judge. The respondent further argues that because the applicant does not in substance challenge his conviction, even if he is a “convicted person” for the purposes of Part 8AB, the present application is not one for leave to bring an appeal against his conviction or finding of guilt.
The respondent points to an alternative avenue of appeal that was open to the applicant following the decision of the Court of Appeal, namely to seek special leave to appeal to the High Court. The respondent points out that one of the considerations of leave under s 35A of the Judiciary Act 1901 (Cth) is the administration of justice in the particular case. The respondent submits that the availability of that avenue of appeal is relevant to an interpretation of the object and purpose of the scheme under Part 8AB.
In response, the applicant points to and relies on the decision of the Court of Appeal of Victoria in Mokbel v The King [2025] VSCA 243 (“Mokbel”). In that case, the applicant had pleaded guilty to a number of serious drug offences and was sentenced to a substantial period of imprisonment. His barrister at the time was a police agent who as the Court of Appeal noted at [5], “was motivated by desire to ensure that the applicant was charged with and convicted of serious offences”. The applicant sought leave under the Victorian provisions which correspond with Part 8AB. The “evidence” that was said to be the fresh and compelling evidence which enlivened the jurisdiction of the court was said to be “the evidence concerning the assistance given by [his barrister] to Victoria police” (see at [17]). The Court ultimately granted leave to the applicant to bring a second appeal in respect of three matters, and set aside the applicant’s convictions on two of the matters.
There can be no doubt that what had happened in relation to Mr Mokbel was the most outrageous abuse of process and the setting aside of his convictions, even following a plea of guilty by him, seems an entirely appropriate and just result. It is however a little difficult to understand why what his barrister did was characterised as “fresh evidence” for the purposes of the Victorian legislation. The normal meaning of “evidence” (and this is confirmed by the definition of fresh and compelling evidence in s 68ZE and its Victorian equivalent) is a matter “tendered in a proceeding”. Evidence is compelling if inter alia it is “highly probative in the context of the issues in dispute in the proceeding in which the person was convicted or found guilty” (s 68ZE(3)(c)).
Fresh or compelling evidence? “Fresh”
The respondent submits in any event that that issue may not need to be resolved, as the substance of the applicant’s complaint in the present matter is about a fact found on sentence, not the integrity of the plea, and the fresh and compelling evidence put forward by the applicant has no bearing on the integrity of the plea.
The respondent notes that the photographs that are annexed to the ex-wife’s affidavit were tendered in the applicant’s trial through the complainant and the applicant gave evidence about them. The ex-wife gave evidence in the trial that the dog related items were not at the applicant’s apartment. She was not shown the photographs during her evidence although she had already been sent them by the applicant as part of the email he sent to her. In any event the respondent submitted, the first three paragraphs of the ex-wife’s affidavit do not constitute fresh evidence. In fact, the third paragraph where the ex-wife asserted that she had taken the dog food box and bowls and the dog from the apartment in July/August 2019 was contrary to the evidence that the applicant had previously given and tended to reinforce the applicant’s guilt in respect of other aspects of his false evidence.
As to the fourth paragraph of the affidavit about the cabinet’s position in December 2019, even if it could satisfy the first part of the definition of fresh evidence as having not been tendered in the proceeding, it could not satisfy the second part; that is, s 68ZE(1)(b). That was because any evidence about the movement of the cabinet or its placement could have been called by the applicant during cross-examination of his ex-wife during the trial. The fact that evidence had not been called reflected a forensic decision made by counsel at trial. In those circumstances it could not be said that the evidence “could not, in the course of an exercise of reasonable diligence, have been tendered”.
Further, the respondent submitted that the evidence could have been obtained for the purpose of the sentencing hearing. It had clearly been a live issue in those proceedings.
For these reasons the respondent argued the evidence was not “fresh”.
In argument, the applicant conceded that he could have called the evidence in his ex-wife’s affidavit from his ex-wife in the sentencing proceedings. However, he argued, it would be “unreasonable” to expect the defence to subpoena his ex-wife who the applicant noted was now a witness in a Family Court dispute with the applicant, a witness who has an active domestic violence order against the applicant, and who gave a victim impact statement in the sentencing proceedings against him. However, the applicant conceded that if the matter turned on “whether or not subpoenaing my ex-wife was reasonable” then if it was something that should have been done, he accepted that his argument on freshness failed (Transcript, 20 July 2026 at 95.43-46).
“Compelling”
The respondent submitted, even if the evidence were fresh it is not compelling. The origin of the ex-wife’s affidavit in collateral proceedings, and the inability for the Court to interrogate its contents undermined its reliability which was a necessary ingredient for compelling evidence. In any event, the respondent submitted there was nothing in the ex-wife’s affidavit which suggests that the applicant did not lie about the position of the cabinet. The ex-wife’s affidavit simply confirms the photographs (which the applicant had taken in April 2019 and sent to his ex-wife) and states that the cabinet was in the same position in December 2019. The alleged sexual assault took place in November 2019 and it was plausible that the cabinet was not there during that time and was moved back.
In summary, the respondent’s position was that the evidence was not compelling because, considered in the light of the balance of the evidence, it raised no doubt about the integrity of the plea. The substance of the applicant’s complaint was about a fact found at sentence, not the integrity of the plea, and accordingly the “fresh and compelling evidence” put forward by the applicant had no bearing on the integrity of the plea but was simply relied upon to demonstrate that the offending conduct was narrower than what was found by the sentencing judge.
The interests of justice
The respondent submitted that in any event, leave should be refused because the Court could not be satisfied that it is in the interests of justice for the order to be made.
The respondent submitted that central to the interests of justice was the fact that in the present case there had been a public confession as to guilt on the perjury charge. An aspect of the interests of justice included the conviction of the guilty and public confidence in the administration of justice as referred to in Bromley. The fact that there had been a public confession of guilt was accordingly a factor which pointed in favour of the refusal of leave.
The respondent also pointed out that Mokbel did not deal with the relevance of a public confession as to guilt as being relevant to the interests of justice, as the High Court had referred to in Van Beelan and the South Australian Full Court had referred to in Bromley. It was understandable, the respondent argued, given the seriousness of the conduct bringing the administration of justice into disrepute in Mokbel that the issue had not been raised in that case. However, the respondent submitted in the present case all the evidence suggested that the plea entered by the applicant can be used as evidence of public confession, and that matter was relevant to the issue of whether it was in the interests of justice for the order granting leave to be made under s 68ZG.
The applicant submitted that there had not been a relevant public confession of guilt as there had been a clear disagreement as to the basis on which the plea was entered. There was certainly an admission of guilt for one statement (the living arrangements for the dog), but that did not cover another statement as to the cabinet.
Consideration Can Part 8AB apply where plea of guilty has been entered?
The key relevant ingredients of s 68ZG are that a “convicted person” may apply to bring an appeal “against their conviction or finding of guilt”. In my view, the natural meaning of those words encompasses a person who has become a convicted person as a result of entering a plea of guilty, and are not limited to a person who has undergone a trial.
Further, the definitions of fresh and compelling evidence in s 68ZE both refer to “the proceeding in which the convicted person was convicted or found guilty of the offence”. Again the natural meaning of those words encompasses a proceeding where a plea of guilty was entered as distinct from a contested trial.
I accept the respondent’s argument that the Victorian scheme considered in Mokbel differs in significant respects from the ACT scheme. But, if anything, the Victorian provisions, by the use of the word “trial” (for example in s 326C(3)(b)(iii)(A)) give more colour to an argument that pleas of guilty should be excluded from the scheme. I am not saying that to cast any doubt on the decision in Mokbel. Rather I find that Mokbel and the provisions that it considered are not particularly relevant in construing the ACT provisions on this point.
I conclude that Part 8AB can apply in the present circumstance. Was the present application in substance a second attempt by the applicant to appeal against his sentence on the count of perjury?
The respondent raises what is really a separate although related argument which is to the effect that in substance this proceeding is simply an attempt to relitigate the sentence proceedings and thus in substance does not fall within Part 8AB.
In my view the simple answer to that is that such an application would not be precluded if the applicant could otherwise bring themselves within Part 8AB. I note that the definition of fresh evidence in s 68ZE(1) includes evidence which “has not been tendered in … any appeal against the conviction or finding of guilt”. It follows from this that Part 8AB can be availed of following an appeal, although the words “any appeal against the conviction or finding of guilt” do not naturally apply to appeal against sentence. I do not think that it follows that a person who has appealed against sentence is somehow precluded from bringing an application under Part 8AB, provided of course that they can otherwise bring themselves within the terms of the Part.
Clearly enough, it will be an unusual situation for a person who has entered a plea of guilty to subsequently contest that plea by reference to fresh or compelling evidence. Any such application will, as here, generally demand attention to the question of the interests of justice. However, in my view the legislation does not preclude an application in that situation, nor does it preclude an application where a person has pleaded guilty, and has subsequently appealed unsuccessfully against that sentence. Was the evidence fresh?
Outcome
Orders
I certify that the preceding one hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice White. Associate: Date:
Kader
DPP
Leave to appeal refused.
The email then set out at some length and extract from the applicant’s cross-examination at the trial, and continued: It is very vague and my lawyers want to have a chat to you to basically get you to say yes the plan was for the dog to live in Newcastle but there was a transition due to anxiety. It would not look suspicious because your answer is non-committal and vague and Detective Bakes didn't get any specifics. The problem we have is that we don't want you at the trail [sic]. We want to agree with the prosecution to a set of agreed facts so you don't have to give evidence. The statement of facts the prosecution has currently offered states: They shared a dog named Schnitzel that initially lived in Canberra with Dr Kader. When UG moved from Taree to Newcastle in mid-2019, the dog Schnitzel moved to Newcastle and lived with UG. We can't agree to that going to the jury because the prosecution will simply argue that the dog had moved, the crate was gone and I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff. It will be obvious that I have lied under oath, my credibility will be gone and I'll be convicted. If you turn this email, the fact that I contacted you or the text messages over to the prosecution I will clearly be convicted. If you give a version of events to my lawyers with a transition and no need to take stuff to Canberra then the situation will be the same as last time. My lawyers would try to make submissions to the prosecution to alter the statement of facts and then not call you as a witness. If the prosecution don't agree then you will be called to give evidence. The second trial
Prior to the second trial, the prosecutor filed an amended indictment which added counts of aggravated perjury with an alternative of perjury simpliciter, as well as a count of attempting to pervert the course of justice. The perjury charges related to the evidence that the applicant had given at the first trial, and the charge of attempting to pervert the course of justice related to his approach to the ex-wife. At the commencement of the second trial, over which McCallum CJ presided, the prosecutor accepted a plea of guilty to the charge of perjury in satisfaction of the aggravated offence of perjury. The applicant pleaded guilty to a charge of perjury in front of the jury, and not guilty to the remaining counts on the indictment. Those remaining counts included the count of attempting to pervert the course of justice.
It is worth emphasising that, as the applicant conceded in the present proceedings, the applicant entered a plea of guilty to the charge of perjury before the jury in the second trial for forensic reasons, namely to avoid extensive cross-examination at the second trial on the issue.
The second trial also resulted in a hung verdict.
The prosecutor then filed a notice declining to proceed in respect of the sexual offences, and an amended indictment which was limited to the perjury simpliciter and attempting to pervert the course of justice charges.
The prosecutor, relying upon GAS v The Queen [2004] HCA 22; 217 CLR 198 (GAS), stated (Sentence Transcript at 26.27): … the prosecution case is that the perjury encompassed what we say was false evidence given about it couldn’t have happened because of the presence of dog bowls and a large container and also the statement about the living arrangements the dog had at the time.
The applicant’s counsel made it clear that the applicant did not wish to withdraw his plea (Sentence Transcript at 29.18-28): Your Honour, I would certainly accept what is laid down there in the decision your Honour has been provided of GAS. What I wish to add just to the question – perhaps I should – if it wasn't clear from what has already fallen earlier this morning that the offender does not accept that his plea to the offence of perjury extends to having given false evidence about the presence of those items along the wall, and that this is not a situation where, well, because of that, he will just seek leave to withdraw his plea, because he still adheres to his plea of guilty in respect of the evidence that he gave about the whereabouts of the dog at the relevant time, whether it lived in Newcastle or Canberra. So it is not a question of a withdrawal of plea as such - - -
Her Honour later again offered the prospect of a withdrawal of plea to the applicant, which was not taken up.
And finally, the following exchange took place (Sentence Transcript at 36.9): HER HONOUR: And can I just be clear? Your position now, after the exchange we’ve had this morning, is not that it would not be open to me to sentence the offender on the basis that his evidence it couldn’t have happened that way was a lie but that I would not be satisfied beyond reasonable doubt that it was a lie? DEFENCE COUNSEL: Yes.
Her Honour delivered her sentence on 1 December 2023: see Kader (No 6). As to the perjury charge, her Honour noted at [12]-[15]: The plea of guilty to the charge of perjury was entered on the basis that the offender lied about where the dog was living at the time of the alleged sexual assaults in November/December 2019. He gave evidence that the dog was living with him at that time but was occasionally going to his wife. That was the lie. There was a lengthy debate at the proceedings on sentence as to the scope of the admitted facts. As I will explain, the facts addressed two potential lies. First, the offender gave sworn evidence-in-chief that it would not have been possible for him to throw the complainant against the wall as she described because there was furniture and items relating to the dog in that space at that time. Secondly, in cross-examination, he explained that the dog was living with him at that time and occasionally visiting his wife. Counsel for the offender indicated that the plea of guilty was entered only on the basis that the second statement as to where the dog was living at the relevant time was false. He accepted that the first statement, that it would not have been possible to throw the complainant against the wall because there were dog items in that space, was within the scope of the agreed facts, but noted that the offender had not admitted that was a lie. I am not bound by any understanding between the prosecution and the defence, still less by the offender’s unilateral understanding, as to the scope of the inferences that can be drawn from the agreed facts: GAS v The Queen [2004] HCA 22; 217 CLR 198 at [31]. However, it is axiomatic that, before sentencing the offender on the basis that his evidence that it would not have been possible to throw the complainant against the wall because of the presence of the items in that space was a lie, I would have to be satisfied of that fact beyond reasonable doubt.
Her Honour considered the evidence and concluded at [21]-[27]: I am satisfied beyond reasonable doubt that the items described by the offender as being near the wall (a large cabinet and the large tub of dog food) were not present in his apartment at the time of the alleged sexual offences. The overwhelming weight of the evidence of the former wife was to that effect. That finding is further supported by the content of the offender’s email, which provides a telling account of a series of deliberate lies. I am further satisfied beyond reasonable doubt that the offender’s sworn evidence that it would not have been possible for the complainant to have been pushed against the wall because of the presence of other items was a deliberate lie told by the offender for the purpose of undermining the evidence of the complainant as part of a broader attack on her credibility. In his email to his former wife, the offender said: I explained that when we moved from leppington we went from a 5 bedroom house to a 1 bedroom unit and we left some boxes of stuff in my mum's garage, including a spare dog crate, a pile of leads, additional dog bowls, a bed and all sorts of things because the dog is spoilt so there was no need to take anything from Canberra when you moved to Newcastle and the dog was still visiting Canberra so I left the dog bowls lying there for when she was there. (Emphasis added.) The offender was acutely aware of the significance of the lie. That is clearly what drove him to prevail upon his former wife to support his lie. The brazenness of his approach to his former wife is telling. At a time when he plainly knew she wanted nothing to do with him, he prevailed upon her to help him defend charges of sexual assaults allegedly committed during their marriage. His conduct towards his former wife was cynical and manipulative. Before resorting to sending her an email, he wrote her a text message in which he described her conduct in providing a statement to police as “disgraceful”. In the email, he acknowledged that parts of his evidence “wasn’t true”. Commenting on an agreed fact as to the dog’s living arrangements based on his former wife’s statement to police, he wrote: We can't agree to that going to the jury because the prosecution will simply argue that the dog had moved, the crate was gone and I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff. It will be obvious that I have lied under oath, my credibility will be gone and I'll be convicted. (Emphasis added.) The email attached the photographs of the area near the door and of the dog bowls so that his former wife could “see the layout”. The only reasonable inference is that he wanted to ensure her evidence concerning the dog items matched his so that his false evidence was not questioned. For those reasons, I am satisfied beyond reasonable doubt that the offender perjured himself in giving false evidence that it would not have been possible to throw the complainant against the wall because of the presence of items in that space.
For context, it is worth setting out what the High Court in GAS said at [30]-[31]: Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor. Fourthly, as a corollary to the third principle, there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found the relevant law and sentencing principles. It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel. (Footnotes omitted.)
The applicant was sentenced to nine months’ imprisonment for the charge of perjury, and two years and three months’ imprisonment for the charge of attempting to pervert the course of justice. The aggregate sentence was two years and six months’ imprisonment with a 12-month non-parole period expiring 30 November 2024.
It appears this affidavit was tendered to the ACT Civil and Administrative Tribunal in proceedings between the Medical Board of Australia as applicant and the present applicant as respondent.
I do have concerns about whether the ex-wife’s affidavit is the appropriate way to place before this Court the “fresh and compelling evidence” which must be shown to exist before a grant of leave under s 68ZG can be made. I would expect that the evidence would be brought before the court by way of affidavit sworn by the ex-wife in these proceedings, which would permit the respondent to conduct a cross-examination on the matters deposed to. However as the proceedings before me were conducted on the basis that no formal objection was taken to the evidence. I proceeded on the basis that if the threshold questions in this matter were resolved in the applicant’s favour, the form of the fresh and compelling evidence could be returned to later.
The provisions in Part 8AB are of recent origin, having been inserted into the Act by the Supreme Court Amendment Act 2023 (ACT) (“the Amendment Act”). The provisions appear to be a counterpart to the provisions in Part 8AA, which abolished the principle of double jeopardy in some situations and made provision for prosecution appeals against acquittal in limited circumstances.
The Explanatory Statement which accompanied the Amendment Act (see Explanatory Statement, Supreme Court Amendment Bill 2023 (ACT)) is not very helpful, although it does refer to similar legislation in some other States: The test for allowing an appeal is the same test for granting leave to appeal, except for the requirement that there has been a ‘substantial miscarriage of justice’. This higher threshold will help to prevent vexatious and untenable appeals and is consistent with the approaches in South Australia, Tasmania and Victoria.
The statutory scheme provides for two distinct steps. First, there is the consideration of the grant of leave pursuant to s 68ZG, whereby the court must be satisfied that there is “fresh and compelling evidence in relation to the offence that should be considered on an appeal” and further that it is in the interests of justice for leave to be granted. If leave is granted, s 68ZH applies to the hearing of the appeal by the full Court of Appeal. The court “may” allow the appeal if it considers that there is fresh and compelling evidence and after taking into account that evidence, there has been “a substantial miscarriage of justice”.
As to what constitutes “fresh” and “compelling” evidence, that is defined in s 68ZE, in the same way as in the counterpart Part 8AA.
As indicated by the Explanatory Statement, there are similar provisions in South Australia, Tasmania and Victoria. There are some differences in the regimes which it will not be necessary to outline. Each regime has a leave requirement before a subsequent appeal can be brought, and that leave requirement is contingent upon two matters, being (a) fresh and compelling evidence; and (b) that it is in the interests of justice that leave is granted. Again, if leave is granted, the appeal court must be satisfied that there has been a substantial miscarriage of justice.
It will be observed that in considering a grant of leave, not only must the court be satisfied that there is fresh and compelling evidence, the court must be satisfied that that evidence “should” be considered on an appeal. This seems to relate to the conclusion that the Court of Appeal must come to under s 68ZH that there has been a substantial miscarriage of justice. In other words, the judge granting leave must have regard to the possible result of the consideration by the Court of Appeal of the fresh and compelling evidence, that is that there has been a substantial miscarriage of justice. Although the judge granting leave does not have to be convinced there has been a substantial miscarriage of justice, the possibility of that finding is a matter that the judge granting leave will have regard to in determining whether the judge is satisfied that the evidence should be considered by the Court of Appeal.
The issue of what constituted “the interests of justice” was also considered in R v Bromley [2018] SASCFC 41 (“Bromley”) where the Court, having referred to that passage from Van Beelan, noted at [384]: In the confession example there given, the evidence to be received would likely include not only the content of the confession but also how it was recorded, the circumstances surrounding its making and quite possibly various other associated matters.
The Court in Bromley adopted a wide view of what the interest of justice might comprehend as encompassing “the acquittal of the innocent, the conviction of the guilty, [and] the public interest in seeing those things happen in the due administration of justice”: see at [385]-[387].
As to what constitutes “fresh evidence”, the definition in s 68ZE seems to comprehend evidence which was or was not in existence at the time of trial, although for evidence which was in existence, it will only be considered “fresh evidence” where it “could not, in the course of an exercise of reasonable diligence, have been tendered” in the earlier proceeding.
There has been a great deal of consideration of the meaning of “fresh evidence” by various courts of appeal. In Rogerson v R, McNamara v R [2021] NSWCCA 160; 290 A Crim R 239, the Court (Bell P, R A Hulme J and Beech-Jones J) said at [458]-[459]: On behalf of Rogerson, it was submitted that the evidence the subject of this ground was ‘fresh evidence’. In MRW v R [2011] NSWCCA 260 at [46], Bathurst CJ identified three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on this basis: ‘First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial: see Ratten [v The Queen (1974) 131 CLR 510; [1974] HCA 35] … at 512; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant.’ As to the first question, where the relevant material is evidence that was in existence as at the time of the trial, the relevant issue is whether that material ‘could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case’ (Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 at 516 per Barwick CJ). The evidence of Rogerson’s solicitor and trial counsel is noted above at [457]. Having regard to that evidence, and the fact that Witness A did not come forward until after Rogerson was sentenced, we accept that the evidence of Witness A and Ms Ballard is relevantly “fresh”.
A useful summary of the relevant principles concerning the statutory scheme is to be found in Roberts v The Queen [2020] VSCA 58; 60 VR 431 (“Roberts”) at [39] et seq.
One aspect of the statutory scheme, and this was an aspect emphasised by the respondent to the present application, is that the court hearing the application for leave must be positively satisfied that there is “fresh and compelling evidence” and that it is in the interests of justice for the order granting leave to be made. In other words, the language of s 68ZG(1) requires the court to be satisfied of the conditions stated in the subsection, including the definitional preconditions in s 68ZE. As stated in Roberts at [44]: …the Court must be satisfied that the fresh evidence has the qualities prescribed by s 326C(3). This follows from the plain terms of the section. It will not be sufficient for the purpose of leave under the Victorian statute to establish that it is reasonably arguable that the evidence has these qualities. (Footnotes omitted.)
What is clear from the legislation and Explanatory Statement is that Part 8AB deals with appeals against a conviction or finding of guilt. It is apparent that the real grievance that the present applicant has is that he was sentenced on the charge of perjury on an incorrect basis, namely the sentencing judge wrongly took into account an issue concerning the presence or absence of the cabinet. The applicant accepts that he perjured himself in relation to the dog. As noted above, during the sentencing hearing, the applicant eschewed the opportunity to withdraw his plea on the count of perjury.
It will thus be necessary to determine as a preliminary matter whether s 68ZG is the appropriate avenue for the applicant to pursue.
In Mokbel the applicant, relying on a passage in Roberts, put that issue this way at [21]- [22]: The applicant submitted that the evidence is ‘highly probative in the context of the issues in dispute at the trial’, which extends to the underlying question whether the applicant received a fair trial according to law. He submitted that the fresh evidence is probative of the nature and extent of illegalities and improprieties in the investigation, extradition and prosecution of the applicant. He points out that the issue is not whether the evidence is highly probative of an issue at the trial, but whether it is highly probative in the context of the issues at trial. In respect of two of the three convictions, the applicant also submitted that the evidence would have ‘eliminated or substantially weakened the prosecution case’ if it had been presented at trial. He submitted that the evidence would have required the exclusion of the evidence of Mr Bickley, Mr Cooper and Mr Thomas (all pseudonyms), or would have drastically undermined their credibility, and that of the informant in one matter, Detective Senior Sergeant Paul Rowe. In respect of all three matters, the applicant submitted that the fresh evidence would also have given rise to the prospect of a stay. (Footnotes omitted.)
In Roberts the Court noted at [91]-[92]: The question is not whether a jury would inevitably acquit having regard to the fresh evidence, but whether it is of high probative value with respect to a central issue at the trial. Further, the concept of the issues in dispute at the trial extends to the underlying question of whether the applicant received a fair trial according to law. It is not limited to specific forensic issues concerning Senior Constable Miller’s dying declarations. The fresh evidence discloses lines of defence which were not apparent either at the time of trial or at the time of appeal.
In any event the applicant relies upon Mokbel as a case where the corresponding Victorian provisions were used to overturn convictions after pleas of guilty had been entered.
The respondent submitted that Mokbel did not apply as the Victorian legislative scheme was relevantly different from Part 8AB.
In Mokbel, the Court considered s 326C of the Victorian legislation, which read: (3) In this section, evidence relating to an offence of which a person is convicted is— … (b) compelling if— (i) it is reliable; and (ii) it is substantial; and (iii) either— (A) it is highly probative in the context of the issues in dispute at the trial of the offence; or (B) it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
Section 326E(1) of the Victorian legislation provided: 326E Orders etc. on successful appeal (1) If the Court of Appeal allows an appeal under section 326A, it must set aside the conviction of the offence (offence A) and must— (a) order a new trial of offence A; or (b) enter a judgment of acquittal of offence A; or (c) if— (i) the appellant could have been found guilty of some other offence (offence B) instead of offence A; and (ii) the court is satisfied that the jury or, in the case of a plea of guilty to offence A, the trial judge must have been satisfied of facts that prove the appellant was guilty of offence B— enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A
The respondent in Mokbel argued that because the applicant had pleaded guilty to the charges in question no trial had ever commenced, and the applicant could not satisfy the definition of “compelling” in sub-paragraph (iii)(A) of s 326A. In rejecting this argument, the Court specifically referred to ss 326C(3) and 326E(1)(c)(ii) at [31]-[33]: First, the text of sub-para (iii)(A) is not necessarily restricted to trials that have actually taken place. It is capable of embracing trials that would have taken place, if not for a plea of guilty. The issues may have been in dispute at a trial of the offence, or they may have been going to be in dispute at such a trial. In either case, they are aptly described as ‘issues in dispute at the trial’. Nothing in the language of sub-para (iii)(A) prevents the issues in dispute at the trial from being identified as at a point before any trial has commenced. Secondly, the context points strongly to the wider meaning. Sub‑para (iii)(B) is expressed in the subjunctive and clearly contemplates a hypothetical scenario. It readily accommodates evidence that would have weakened the prosecution case if presented at trial, whether or not a trial has actually occurred. The inquiry is into the effect on the prosecution case, not an effect on a trial. It would be anomalous if sub-paras (iii)(A) and (B) applied to different subject matter, with only the latter provision applying in a case where there has been no trial. That would give rise to an arbitrary difference between appeals after conviction by a jury and appeals after a guilty plea. Thirdly, the provisions for second and subsequent appeals are intended to enable the remedying of substantial miscarriages of justice: s 326D. There is no apparent reason why that purpose would be confined to convictions after trial, and there is no textual indication to that effect. To the contrary, as the applicant noted, s 326E(1)(c)(ii) expressly contemplates an appeal after a plea of guilty. The respondent’s construction is at odds with principles of statutory construction that favour a remedial provision having a broad operation and require a grant of jurisdiction to a court to be construed generously. The respondent’s construction would give sub-para (iii)(A) a markedly more confined operation than its words are capable of conveying. Given that the provisions for second and subsequent appeal are intended to enable such appeals after a guilty plea, a construction of sub-para (iii)(A) that promotes that purpose should be preferred. (Footnotes omitted; emphasis added.)
The respondent in the present matter submits that whereas the Victorian provisions were interpreted in their legislative context as supporting the wider meaning encompassing convictions after a plea, the equivalent ACT provisions pointed in a different direction. In particular, the Victorian legislative context included provisions which were intended to enable conviction appeals after a guilty plea. There was no ACT equivalent to provide similar context. Further, whereas the Victorian Court of Appeal referred to sub-paragraph (iii)(B) as contemplating a hypothetical scenario, there was no equivalent in the ACT provisions, which simply relate to the proceeding which has actually occurred.
In this regard, the respondent also relies on obiter dictum of Vandongen JA in Vella v Western Australia [No 2] [2025] WASCA 70. In that case, the applicant sought to appeal under Western Australian provisions which permitted an appeal for “fresh, new and compelling evidence” in respect of a matter in which he had pleaded guilty. Vandongen JA noted at [226]: However, as I have already noted in the context of CACR 97 of 2023, s 35D(4) of the CAA provides that evidence relating to an offence of which an offender was convicted is 'compelling' if it is highly probative in the context of the issues in dispute at the trial of the offence. As Mr Vella pleaded guilty to the offence of AOBH, there were no 'issues in dispute at the trial of the offence'. In those circumstances, there is no basis on which this court could conclude that the evidence Mr Vella relies on is 'compelling'.
The Court in Mokbel noted its disagreement with this obiter dictum at [36].
On the various bases set out above, the respondent invites me to distinguish Mokbel, on the basis that the Victorian legislative scheme is different to the ACT scheme and in particular was apt to apply to the situation where a plea of guilty had been entered, whereas the ACT scheme did not extend to cover that situation.
I conclude that the ex-wife’s affidavit is not “fresh” evidence because it is not evidence which, as required by s 68ZE(1)(b) “could not, in the course of an exercise of reasonable diligence” have been tendered in previous proceedings.
The applicant in effect conceded that the evidence was available and could have been tendered in particular on the sentence proceeding, although he pointed to difficulties in calling the evidence from his ex-wife given what is best described as antagonism between them at the time of the sentencing proceedings. Against this, it must be noted that he was able to call the evidence in the ACAT proceedings.
I find that the claimed difficulties in calling the evidence in the sentencing proceedings, where it was clear that there was a real issue as to the presence of the cabinet, do not avail the applicant in this case. It is for the applicant to convince the court to grant leave, and the excuse offered for not calling the evidence does not overcome the requirement for the applicant to demonstrate that he could not in the course of an exercise of reasonable diligence have called the evidence in earlier proceedings. Was the evidence compelling?
I conclude that the ex-wife’s affidavit is not “compelling” evidence. The form of the evidence, being an affidavit in collateral proceedings which was unable to be tested in these proceedings, is one basis of concern. The affidavit in its terms does not go unequivocally to the issue of whether the cabinet was present in the room when the alleged sexual assault took place. The fractious relationship between the applicant and his ex-wife (which I note is put forward by the applicant as a reason he did not call the evidence in earlier proceedings) also casts a pall over the exact purport of the evidence.
I accept the respondent’s argument that in any event the evidence does not go to the integrity of the plea itself, but rather to the issue of facts to be found on sentence by the sentencing judge.
This is a relevant consideration given that, should leave be given, the applicant would be seeking to have the conviction or finding of guilt set aside (see s 68ZH(3)). The evidence simply does not invite that conclusion even if it were accepted. Is it in the interests of justice for the order to be made?
I find that it is not in the interests of justice for the order sought to be made. I note that as submitted by the respondent, what is “in the interests of justice” is to be determined in the light of what would be the ultimate order of the Court of Appeal, namely that there has been a substantial miscarriage of justice.
First, I accept the respondent’s argument that the plea of guilty entered to the charge of perjury by the applicant is properly to be considered a public confession of guilt. It is relevant in that regard to recall that there were tactical reasons for the entry of the plea by the applicant before the jury in the second trial, and the applicant adhered to that plea in the sentence proceedings. The applicant was given fair opportunity to withdraw his plea in the sentence proceedings after he became aware of the issue that was being considered by the sentencing judge as to what the facts relevant to that plea were. He declined to take the opportunity to withdraw his plea.
Secondly, it is relevant that the sentence that was pronounced by the sentencing judge and upheld by the Court of Appeal on the count of perjury (of which count the applicant has never suggested he was not guilty) was a lenient sentence of nine months imprisonment, which was only in effect accumulated upon the other more serious offence of attempting to pervert the course of justice by three months. Even if the applicant were to be resentenced on the count of perjury, which is the logical endpoint of the present application, he could not realistically hope for a better outcome.