Kirk Group Holdings Pty Limited v WorkCover Authority of NSW

Repeated Applications for Review of Convictions

1. Sections 78 and 79 lie within Part 7 of the Crimes (Appeal and Review) Act 2001. Part 7 has its origins in a legislative scheme which was an innovation in New South Wales. It is remedial legislation designed to overcome injustices that sometimes arise in the administration of criminal justice: Kirk Group Holdings Pty Limited v WorkCover Authority of NSW [2006] NSWCA 172; 66 NSWLR 151 at 154 [5], 155 [8] (Spigelman CJ). The decision of the High Court of Australia in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 564 [47] did not concern the s.474D issue touched upon by Spigelman CJ.
2. The Applicant contends that there is a doubt or question as to his guilt: s.79(2).
3. The statutory history of ss.78 and 79 (and their predecessors) and their interaction with the principle of finality, were considered in Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 at 792-796 [33]-[55].
4. A feature of the present statutory scheme is of particular significance to this application. It relates to circumstances where repeated applications for review are made.
5. Section 79(3) provides as follows: "(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action."
6. The provisions now contained in s.79(3) were first introduced as part of extensive statutory reforms contained in the Crimes Legislation (Review of Convictions) Amendment Act 1993. As Spigelman CJ observed in Kirk Group Holdings Pty Limited v WorkCover Authority (NSW) at 154 [6], the 1993 Act followed the preparation by the Criminal Law Review Division of an issues paper entitled "Review of Section 475 of the Crimes Act 1900" (November 1992).
7. The 1993 Act inserted ss.474C-474F into the Crimes Act 1900. As enacted in 1993, s.474E(3) provided: "(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter is the same as a matter that has previously been dealt with under this Part or under the repealed provisions; and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action."
8. In the second reading speech for the Crimes Legislation (Review of Convictions) Amendment Bill 1993, the Attorney General, the Hon JP Hannaford, said with respect to Clause 474E(3) (Hansard, Legislative Council, 27 October 1993): "The bill also provides for some limit to be placed on subsequent and further applications for a section 475 inquiry, by adopting a test similar to section 22A of the Bail Act. The Government is concerned that in removing restrictions on the post-conviction inquiry procedure, some additional safeguards are required against the waste of judicial resources that can flow from repeated unmeritorious applications for inquiries. Consequently, either the Governor or the Attorney General in the case of petitions, or the Supreme Court in the case of applications to it, will be entitled to refuse to consider an inquiry if the matter is substantially the same as one that has already been dealt with and there are no special circumstances justifying further action."
9. The model for the "special facts or special circumstances" test introduced in s.474E(3) was the test then contained in s.22A Bail Act 1978 with respect to repeated bail applications.
10. It may be seen that the balance being struck by the provisions then contained in s.474E(3), and now contained in s.79(3), involved an appropriate remedial process for applications for a post-conviction inquiry and the need to guard against "the waste of judicial resources that can flow from repeated unmeritorious applications for inquiries".
11. In a case to which s.79(3) applies, the Court may refuse to consider or otherwise deal with an application. This course may be taken where one or more of the circumstances identified in s.79(3)(a)(i)-(iv) arises and, in addition, the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action: s.79(3)(b).
12. Where repeated applications for an inquiry into conviction have been made, the threshold question posed by s.79(3) will arise for consideration.

The Present Application

1. As with the Applicant's five previous applications, the present application has been prepared by the Applicant and is in handwritten form.
2. The Applicant summarises the grounds of his present application as follows: "(1) Unease over trial judge misdirections in law to the jury: (a) given the misdirections in law went to the jury's verdict. (2) The availability of evidence from the trial suggests that the issues in the appeal grounds were never fully addressed by the Court of Criminal Appeal."
3. In seeking to address the test posed in s.79(3)(b), the Applicant submitted that there are special facts or special circumstances that justify taking further action in this case, namely the "right to a trial according to law, to be given the opportunity to challenge the evidence that the trial judge put to the jury in the course of his sum up [sic] directions".
4. In relation to the first ground, the Applicant contends, in essence, that the trial Judge erred in law to the extent that his Honour's directions conveyed that the Crown was not required to establish whether the Applicant committed the offences alone or in company.
5. In relation to the second ground, the Applicant contends that "the failure of the Court of Criminal Appeal to investigate relevant evidence of the nature of the Crown case at trial, that the relevant evidence was that the Crown did not undertake to establish that the accused participated either alone or in company in any of the acts of murder … that failure by the Court of Criminal Appeal permitted the miscarriage of justice to go uncorrected".
6. The Crown submitted that the Court should refuse to consider or otherwise deal with the present application under s.79(3) upon the basis that the matters raised have already been dealt with in dealing with the five previous applications made by the Applicant and that there are no special facts or special circumstances that justify the taking of further action.
7. Having considered the material furnished in support of the application for the purpose of determining the s.79(3) threshold test, I express my agreement with the Crown submission that the Court should refuse to consider or otherwise deal with the application under s.79(3).
8. I accept the Crown submission that, although there are minor differences in the way in which the Applicant's submissions are cast, the present application repeats the claims made in his third, fourth and fifth applications. Once again, the basis of the Applicant's complaint is that the Crown had an obligation to prove the precise nature of his involvement in the offences and, in particular, whether he acted alone or as part of a joint criminal enterprise. The Applicant argues, once again, that the Crown failed to do this and that Hunt CJ at CL nevertheless directed the jury in a manner which the Applicant seeks to challenge. This submission was considered and rejected by McClellan CJ at CL in considering the third and fourth applications and by Adamson J in considering the fifth application.
9. I accept the submission of the Crown that the Applicant appears either unable to understand, or unwilling to accept, the Court's determination on these issues.
10. I am satisfied that matters raised by the Applicant have previously been dealt with on applications made by him for review of his convictions: s.79(3)(a)(ii). Further, I am not satisfied that there are special facts or special circumstances that justify the taking of further action in this matter: s.79(3)(b).
11. The present application exemplifies a repeated unmeritorious application for an inquiry of the type to which the 1993 amendment, and the present s.79(3), are directed. The application should be rejected at the statutory threshold.
12. I refuse to consider or otherwise deal with this application for review in accordance with s.79(3) Crimes (Appeal and Review) Act 2001.

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