fresh evidence
37 At the commencement of this application, that is the application for leave to appeal against sentence, an application was made for leave to adduce fresh evidence in these proceedings. In support of that application and admitted on that application only, the Court read an affidavit by the applicant and also the contents of a sealed envelope produced to the Court by the Crown, and returned to the custody of the Crown.
38 I note that the application for leave to appeal against sentence was initially listed before this Court on 17 December 2003. At that time the applicant sought an adjournment in order to explore and produce fresh evidence. That resulted in the applicant's affidavit and the sealed envelope. The content of the affidavit may be encapsulated briefly. It was that on 2 January 2002, before the date of his sentence, he had witnessed a murder in the prison in which he was being held. Although he was spoken to by investigating police on that day, he provided no information. Subsequently, after sentencing, he took a different course and did cooperate with and assist police in their investigations.
39 He was told that his life was in danger. Subsequently he was assaulted whilst in gaol. The applicant attributed the assault to the refusal of himself and his girlfriend to have his girlfriend bring drugs to the gaol; but he also deposed that the assailants knew that he was a Crown witness.
40 The applicant put some medical evidence before the Court which supported his account of assault and injury. As a result, he also spent two or three weeks in segregation. He had given evidence for the Crown in the Local Court of committal proceedings against five people charged with the murder. As a further result of his cooperation, the applicant has been held at the special purposes centre since 19 July 2003.
41 The applicant expects to serve the remainder of his sentence at the Special Purpose Centre. In that facility he has no access to any of the privileges ordinarily accorded to inmates towards the end of their sentences. He is not able to have day release or work release. He is isolated and held, effectively, in a maximum-security gaol. He has little contact with his family because they live in Queensland.
42 The applicant has provided further assistance which it is undesirable to detail. He further feels that, on his release, he may have to enter a witness protection program or receive a new identity. If he has to take the latter course, he is concerned that he will lose the reputation as an artist that he has developed to date.
43 In my opinion, had these matters been before the sentencing judge, they would properly have been of considerable moment. I have no doubt that the applicant would have been entitled to a significant reduction in his sentence in recognition of the principles stated in R v Cartwright (1989) 17 NSWLR 243. The difficulty for the applicant is that all of the matters which would have warranted that course post-date sentencing.
44 This Court will resentence only when error in the sentencing process is established. Axiomatically, error cannot be established by post-sentencing events. I discussed this matter at length in R v Willard [2001] NSWCCA 6, and do not propose to repeat what I there said.
45 I am satisfied that the material now proffered to this Court is not material that can be taken into account on the application for leave to appeal against sentence. Accordingly, the application for leave to adduce fresh evidence should be rejected. I would note that counsel for the applicant pressed for the admission of the evidence on the application for leave to appeal on the basis that the precipitating event, that is, the murder that the applicant witnessed, occurred before the date of his sentence, but that he did not appreciate the significance of the assistance that he had not then given, but subsequently did give.
46 Counsel relied on what she called an overriding principle that the admission of the evidence would be in the interests of justice. In support of that proposition, she relied upon the decision of this Court in The Queen v Many (1990) 51 A Crim R 54. She also referred the Court to the earlier decisions of this Court in The Queen v P [2003] NSWCCA 298 and The Queen v W [2001] NSWCCA 172. In each of these cases the events the subject of the fresh evidence occurred prior to sentencing, and for one reason or another, were not put before the sentencing judge.
47 I would add that s6(3) of the Criminal Appeal Act 1912 provides for the circumstances in which this Court might allow an appeal against sentence. Those circumstances are where the Court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed. It is quite clear that events that post date sentencing cannot establish that some other sentence should have been passed by the sentencing judge.
48 It would be different if the applicant had established error in the sentencing process; in that case it would be appropriate for the Court to take the material into account on re-sentencing. I have already expressed the view that such error has not been shown.
49 It is, of course, open to the applicant to seek administrative remedy. As I have earlier indicated, in my opinion the applicant's claim (as distinct from his application for leave to appeal) has considerable merit. His legal advisors should take the matter up with the appropriate authorities. I would refer particularly to Division 2, Part 13A of the Crimes Act 1900. There is also the possibility of executive intervention.
50 Since no error in the sentencing process has been shown, the applicant should be given leave to appeal against the sentences, but the appeal should be dismissed.
51 GROVE J: I agree.
52 SPERLING J: I also agree, but I would like to add an observation concerning the decision of this Court in Many (1990) 51 A Crim R 54. Counsel for the applicant relied on a statement appearing in the judgment of the court in that decision at page 65, where, in relation to the application for leave to appeal against sentence, the court said:
The overriding duty of this Court is to avoid a miscarriage of justice: Criminal Appeal Act 1912 (NSW) s6.
53 Unlike s6(1), which relates to appeals against conviction, s6(3), which relates to appeals against sentence, is not predicated upon a miscarriage of justice.
54 Reading the judgment in Many as a whole, I am of the opinion that the passage quoted above should be read as intended to be confined to facts of the kind under consideration in that decision.
55 This is apparent particularly from what was said by the court at pages 61 and 62 where the facts of the case are stated. In substance, the applicant had rendered assistance to the authorities prior to sentence, but this had not been brought to the attention of the sentencing judge because the applicant was ignorant of his entitlement to make use of that assistance for the purpose of the sentencing process. The court observed that the evidence of what had occurred was not strictly "fresh evidence". That was plainly so because the matter in question was known to the applicant at the time of sentencing. The court, though, went on to say, at page 62:
We are of the view that in the unusual and somewhat complex circumstances of this matter it is appropriate to admit this material in the interests of justice. In doing so the Court disregards entirely those facts occurring subsequently to the time of sentencing. They should not be taken into account by this Court on an appeal against sentence. As noted by Street CJ in Munday (1981) 2 NSWLR 177 at 178:
"The review of the sentence in the light of subsequent events is the proper province of the Executive Government and not of an Appeal Court."
56 That passage illuminates what was meant by the phrase "miscarriage of justice" at page 65 of the judgment in Many.
57 The passage which I have quoted from page 62 of the judgment in Many is fatal to the application to adduce fresh evidence in the present case.
58 GROVE J: The orders of the Court will be as proposed by Simpson J. In addition, it is ordered that the content of the sealed envelope described as an affidavit of comfort be returned to the applicant.
59 Following an application by Ms Kluss that the affidavit of the applicant also be sealed, we bear in mind that the Court file is not like a property register, in that not anybody can search the files in this Court. Given the nature of the material to which Ms Kluss has referred, we are of the view that we should not make any special order.