Varley v Attorney General

Varley v Attorney General (NSW) (1987) 8 NSWLR 30 Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 R v Vastag (Court of Criminal Appeal, 12 May 1997, unreported) R v Johns (1999) 110 A Crim R 149 CASES CITED : R v Liberti (1991) 55 A Crim R 120 Meissner v The Queen (1995) 184 CLR 132 R v Doyle (2001) 123 A Crim R 151 R v Van (2002) 129 A Crim 229 Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 R v Sewell [2001] NSWCCA 299

COUNSEL : Applicant (in person) C Morris (Respondent)

SOLICITORS : Crown Solicitor's Office (Respondent)

LOWER COURT JURISDICTION : District Court

LOWER COURT JUDICIAL OFFICER : His Honour Judge Shadbolt

LOWER COURT DATE OF DECISION : 12 December 2003

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

72005/06 Application of Paul Nardelli under s.474D Crimes Act 1900

JUDGMENT 1 JOHNSON J: On 14 April 2006, the Applicant, Paul Nardelli, made written application to the Supreme Court pursuant to s.474D(1) Crimes Act 1900 for an inquiry into his conviction and sentence on 12 December 2003 in the District Court for offences of sexual assault, armed robbery and commit act of indecency. 2 Following pleas of guilty entered on 24 September 2003, the Applicant was sentenced by his Honour Judge Shadbolt in the Sydney District Court on 12 December 2003 to a term of imprisonment of six years for armed robbery, commencing on 1 November 2002 and expiring on 31 October 2008 with a non-parole period of three years to expire on 31 October 2005. With respect to two counts of sexual intercourse without consent (and taking into account on a Form 1 two offences of committing an act of indecency), the Applicant was sentenced to a term of eight years' imprisonment commencing 1 November 2005 and expiring on 31 October 2013 with a non-parole period of four years expiring on 31 October 2009. 3 The Applicant has not filed an appeal or application for leave to appeal to the Court of Criminal Appeal with respect to these matters.

The Present Application 4 In support of the application made on 14 April 2006, the Applicant provided a number of documents which he contended warranted a direction that an inquiry be conducted into his conviction and sentence. 5 In accordance with s.474D(2), the Registrar caused a copy of the application (and supporting material) to be sent to the Attorney-General for New South Wales. On 7 August 2006, a written submission was furnished by the Crown opposing the application. A copy of the Crown submission was provided to the Applicant. 6 On 16 August 2006, the Applicant provided a written submission in reply to the Crown submission.

Nature of Application under s.474D Crimes Act 1900 7 Section 474E Crimes Act 1900 is in the following terms: "474E Consideration of applications

(1) After considering an application under section 474D or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a prescribed person into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(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 repealed 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.

(3A) The Supreme Court may defer consideration of an application under section 474D if: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)." 8 The following provisions of s.474E are pertinent to this application:

(a) after considering an application unde s.474D, the Court may direct that an inquiry be conducted into the conviction or sentence or may refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 : s.474E(1);

(b) however, such a direction or referral may only take place if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.474E(2);

(c) the Court may refuse to consider or otherwise deal with an application if it appears, amongst other things, that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (s.474E(3)(a)(i)) or 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: (s.474E(3)(a)(iii)),

(ii) and the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action: s.474E(3)(b). 9 In the present case, the Applicant has not exercised his rights to appeal or to apply for leave to appeal against his conviction and sentence under the Criminal Appeal Act 1912.

An Administrative Process 10 An application under s.474D does not involve a judicial proceeding: s.474E(4). In determining such an application, the Court exercises administrative power: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124]. 11 The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.474E(2). This view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley, above, at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. 12 A test for reference under s.474E(1)(b) is not the same test that the Court of Criminal Appeal applies on the hearing of an appeal: Application of Pedrana (2000) 117 A Crim R 459 at 463. On receiving a reference under s.474E(1)(b), the Court of Criminal Appeal is to deal with the case so referred in the same way as if the convicted person has appealed against the conviction or sentence under the Criminal Appeal Act 1912 and that Act applies accordingly: s.474L. It will then be a matter for the Court of Criminal Appeal to determine the appeal upon the grounds and materials before that Court: R v Vastag (Court of Criminal Appeal, 12 May 1997, unreported); R v Johns (1999) 110 A Crim R 149 at 151-153.

Relevance to the Present Application of Applicant's Pleas to Guilty 13 The Applicant pleaded guilty in the District Court to the offences with respect to which he now asserts that he is innocent. If he had appealed to the Court of Criminal Appeal against his convictions, it would have been necessary for him to overcome a number of hurdles. The Courts treat an attempt to change the plea on appeal with "caution bordering on circumspection" because of the public interest in the finality of proceedings and because the plea of guilty is an admission of all the necessary legal ingredients of the offence: R v Liberti (1991) 55 A Crim R 120 at 121-122. A Court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea: Meissner v The Queen (1995) 184 CLR 132 at 141. 14 In R v Doyle (2001) 123 A Crim R 151, a referral was made to the Court of Criminal Appeal under s.474E(1)(b) with respect to convictions which had been entered following pleas of guilty. When the matter came before the Court of Criminal Appeal, the relevant principles to be applied were described as follows by Hulme J (Spigelman CJ and Howie J agreeing) at 154: "10 I turn to the merits of the appeal, if I may so describe it. In support of his application to withdraw his pleas of guilty, Mr Doyle denies his guilt and claims that he was induced to plead guilty to the charges and abandon his appeal as a result of improper pressure exerted on him by investigating police officers.

11 There is no doubt that in an appropriate case a plea of guilty will be allowed to be set aside and a conviction entered on the basis of such a plea regarded as a miscarriage of justice and quashed - Regina v Liberti (1991) 55 A Crim R 120, Regina v Sagiv (1986) 22 A Crim R 73, Regina v Murphy (1965) VR 1887, Regina v Chiron (1980) 1 NSWLR 218. As was recognised in Regina v Maxwell (1996) 184 CLR 501 at 511, Cincotta (unreported, CCA, 1 November 1995) and Regina v Davies (unreported, CCA, 16 December 1993) a plea of guilty by someone who denies his guilt and resulting only from threats is, unless perhaps the case against the accused is overwhelming, one such case.

12 Nevertheless, the task of someone wishing to withdraw such a plea is not an easy one. After all, he has solemnly confessed his guilt in open court and would ordinarily have stood by without protest while the Court is, so it is later claimed, deceived by the evidence adduced by the prosecution." 15 In Application of Robert Joseph Dunn [2005] NSWSC 857, Kirby J considered a s.474D application in support of which it was contended that the applicant had been induced to plead guilty by statements made to him by his legal representative concerning the length of sentence which may be imposed. In rejecting this ground, Kirby J repeated and adopted (at paragraph 85) conclusions of the Court of Criminal Appeal (on the applicant's appeal) where the same argument was advanced and rejected by that Court. Kirby J observed, at paragraph 81, that apart from the bare assertion of the applicant in that case that a representation had been made concerning sentence, there was no evidence offered in support of the assertion. 16 Where an appeal against conviction follows a plea of guilty, it is necessary for an appellant to demonstrate that he did not appreciate the nature of the charge to which the plea was entered, that the plea was not a free and voluntary confession, that the plea was not really attributable to a genuine consciousness of guilt, that there was a mistake or other circumstances affecting the integrity of the plea as an admission of guilt, that the plea was induced by threats or other impropriety, that the plea was not made in circumstances suggesting that it was a true admission of guilt or that, at the time the plea was entered, the appellant was not in possession of all the facts and did not entertain a genuine consciousness of guilt: R v Van (2002) 129 A Crim 229 at 238-239 (paragraphs 48-50). 17 A Court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant's own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea "is not in truth guilty of the offence": Meissner at 141; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 45 [33]. A person may plead guilty upon grounds which extend beyond that person's belief in his guilt including the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred: Meissner at 157. 18 A person seeking to withdraw a plea of guilty bears the onus of proof upon the application and must establish "a good and substantial reason for the court taking that course": R v Sewell [2001] NSWCCA 299 at paragraph 39; Wong v Director of Public Prosecutions at 46 [39]. 19 In Wong v Director of Public Prosecutions, Howie J, at 45-46 [34]-[37], referred to the principles to be applied where application is made to withdraw a plea of guilty which had been entered following the receipt of legal advice: "There is a discussion as to the concept of a miscarriage of justice in relation to an application to withdraw a plea prior to conviction in Sewell , above. Smart AJ, with whom the other members of the Court agreed, at [39] pointed out the difficulty of trying to fit all the circumstances in which it might be in the interests of justice to permit a person to withdraw a plea of guilty 'within one verbal formula'.

If the advice that the plaintiff received from his legal representative went to the nature of the charge, the elements of the offence, or whether any conduct of the plaintiff amounted to the offence charged, it might be that the court would more easily come to the view that the plea of guilty did not constitute an admission of all of the elements of the offence notwithstanding the plaintiff's antecedents and his knowledge and familiarity with the criminal process. If the plaintiff is asserting that as a result of legal advice he was confused at the time of the plea of guilty, again the issue will probably be whether the plaintiff entered the plea of guilty from a consciousness of guilt or intending it to be an admission of the elements of the offence charged against him.

If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant's own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty: Sewell above at [34]. But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it." 20 I am not, of course, exercising the function of a trial Judge or the Court of Criminal Appeal in considering the present application. I am exercising an administrative function in determining whether a relevant doubt or question appears for the purpose of s.474E(2) of the Act. The application involves the exercise of administrative power. However, the principles to be applied by a trial or appeal court on an application to withdraw a plea of guilty are of broad assistance in determining the present application.

Applicant's Failure to Appeal 21 I have contemplated refusing to consider or otherwise deal with the application given that the Applicant has not exercised his right of appeal or right to apply for leave to appeal to the Court of Criminal Appeal: s.474E(3)(a)(iii). Where no appeal has been brought, the Court may refuse to consider the application if the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action: s.474E(3)(b). 22 In the present case, however, the Crown has provided comprehensive written submissions which address the substance of the grounds relied upon by the Applicant. In these circumstances, I will consider the application on its merits.

Factual Background 23 Before turning to the grounds relied on in support of the application, it is appropriate to place the application in a factual and chronological context. The offences to which the Applicant pleaded guilty were committed at Dubbo on 25 August 1995. 24 On 25 August 1995, the victim, a 55-year old woman, was attacked in the grounds of her Dubbo home by a man carrying a weapon in the form of a sharpening steel. Throughout the attack, the man continually threatened to kill the victim if she looked at him. After robbing her of an amount of money, the man sexually assaulted the victim and then left. The victim called the police and made a statement in which she described the circumstances of the attack upon her. She described a number of forcible sexual acts culminating in the offender ejaculating in an area where his sperm fell on ferns and pavers in the vicinity of the victim's driveway. The victim provided a description of her attacker to police. 25 In August 2002, police took DNA samples from the Applicant in relation to another matter. Police caused those DNA samples to be tested against the DNA evidence collected at the crime scene on 25 August 1995. The Applicant was subsequently charged with those offences. 26 On 3 August 2003, following committal proceedings before Magistrate Hodgson in the Dubbo Local Court, the Applicant was committed for a trial with respect to the offences. 27 On 24 September 2003, the Applicant appeared before his Honour Judge Twigg QC in the District Court at Parkes and pleaded guilty to the charges against him. The matter was stood over to the Sydney District Court for sentence. 28 On 12 December 2003, following his pleas of guilty, sentences were imposed upon the Applicant, by his Honour Judge Shadbolt in the terms set out earlier in these reasons.

Material Advanced by Applicant Concerning his Pleas of Guilty 29 The material advanced in support of the application includes a document headed "Legal Complaints". The contents of this document appears to form the basis on which the Applicant seeks to withdraw his guilty pleas. Of course, the function which I am exercising presently is not a judicial one. It is not open to me to grant the Applicant leave to withdraw his pleas of guilty. If the application was referred to the Court of Criminal Appeal under s.474E(1)(b), that would be a matter for the Court of Criminal Appeal to determine. Nevertheless, as I have observed earlier, it is appropriate for me to have in mind the relevant principles in considering the present application. 30 In his "Legal Complaints" document, the Applicant states that his pleas of guilty were made only because of the advice he received from counsel briefed by his then solicitor. That advice is said by the Applicant to have contradicted earlier advice to the Applicant by his solicitor, allegedly to the effect that "because of this detective's lies (OIC), wrong dates, missing items, and items destroyed I would beat this case". The Applicant alleges that during his first conference with counsel, he was directed to plead guilty. The Applicant alleges: "He [counsel] offered me a plea barging [sic] of seven years, with four years on the bottom and he would compare a similar case; … I decided to take his plea bargain and part of this so-called deal was to lie in my pre-sentence reports and to write a remorse letter, but at sentencing I got a 11 years with seven years on the bottom for a crime I did not commit." 31 In the sentencing proceedings before his Honour Judge Shadbolt, the Applicant was represented by counsel. An Agreed Statement of Facts was tendered to the Court naming the Applicant as the offender. Also tendered to the Court was a "remorse letter" prepared by the Applicant in which he said "I am pleading guilty for a dark spot in my past and coming to terms for my actions". 32 The Crown points to a significant feature in the circumstances leading to the Applicant's pleas of guilty. DNA evidence found at the crime scene implicated the Applicant as the offender and eliminated another person, Reginald Knight, whom the victim had said, soon after the offences, resembled her attacker. In circumstances where DNA evidence implicated the Applicant, the Crown submits that counsel's advice to enter an early plea of guilty with a view to receiving the least possible sentence represented understandable and sound advice. Given that the Applicant seeks to challenge aspects of the DNA evidence, it is appropriate that I return to this issue later in these reasons.

Grounds for Application 33 In his application, the Applicant relies on a number of grounds as "causes of consideration of appeal". I will refer to these grounds to the limited extent necessary to determine the present application. 34 Before doing so, it is appropriate to observe that a number of witnesses were called at committal proceedings in the Dubbo Local Court in 2003. The Applicant was legally represented at that hearing and witnesses were cross-examined on his behalf. It is apparent that almost all the grounds relied upon by the Applicant in support of this s.474D application were the subject of cross-examination at committal proceedings. 35 It is clear that the advice proffered to the Applicant by his then legal representatives to enter pleas of guilty to the charges was given after prosecution witnesses had been tested by cross-examination in those proceedings. This aspect is important to both the particular complaints of the Applicant raised in the grounds to be shortly mentioned, and also his decision to enter pleas of guilty to the charges following the receipt of legal advice given after committal proceedings where the prosecution's evidence had been tested.

Grounds 1 and 2 36 The Applicant asserts that a solicitor for the Western Aboriginal Legal Service, Dubbo, asked for a second opinion on the DNA testing report and was told "it's contaminated" or "tampered with". However, the report of Professor Wayne Solters, said to be an expert on contamination, was not received. 37 In support of these grounds, the Applicant proffers a type-written file note and three pages of handwritten notes. There is nothing in the documents furnished by the Applicant which suggests that a report from Professor Wayne Solters ever existed. The transcript of committal proceedings on 3 April 2003 suggests that the Applicant may well have instructed his then legal representatives to obtain an expert report. Application was made to the presiding Magistrate to adjourn the committal proceedings to permit a report in reply to the report of the Crown expert, Ms Michele Franco, forensic biologist, to be obtained. The Magistrate declined to adjourn the committal proceedings for that purpose (T24-24, 3 April 2003). 38 The material advanced by the Applicant does not indicate that any report of a DNA expert is in existence which casts doubt upon the opinion of Ms Franco that DNA located in the sperm found at the crime scene was that of the Applicant. 39 There is no substance in these grounds in support of the application.

Ground 3 40 The Applicant points to the destruction of the weapon, a sharpening steel, in support of the application. It appears that police were authorised to destroy the item in May 1996. The Applicant complains that the destruction of the weapon meant that it was not available for fingerprint or DNA testing. 41 It will be remembered that the offences occurred in August 1995 and that the Applicant was charged with the offences following DNA analysis undertaken in August 2002. I do not consider that the destruction of the weapon assists the present application. I note that the Applicant's legal representative did not cross-examine police officers at the committal proceedings about the destruction of this item. 42 This ground does not assist the Applicant.

Grounds 4, 5, 6, 7, 12 and 13 43 The Applicant raises a number of issues, including complaints that laboratory dates of DNA evidence were confused, clothes and the weapon were stored at the forensic laboratory at Dubbo and then returned to Sydney, Ms Franco denied receiving a hair sample, the semen on the clothes of the victim was never tested for the Applicant's DNA, all reports concerning DNA were made in 2002-2003, the report concerning Mr Knight was made in 1995 and that a request had been made for original reports but worksheets only had been received. 44 The Applicant elaborated upon these complaints in his application and the Crown provided a detailed response in its written submission (pages 12-13). The Crown submits that these grounds raise general and otherwise unsupported allegations of errors in handling, testing and/or losing the physical and DNA evidence recovered from the scene of the crime. These matters were the subject of cross-examination of Ms Franco in the committal proceedings. In the course of that evidence, Ms Franco:

(a) made corrections to her report regarding the specific dates on which specimens were received at the laboratory, and was cross-examined about those corrections (T25-26);

(b) gave evidence about laboratory procedures adopted to ensure that samples, items and exhibits do not get mixed up (T16);

(c) was not asked to give evidence regarding tests on the victim's clothing;

(d) identified which items of evidence were recorded as having been received and returned to police (T29);

(e) gave evidence that a hair sample taken from the Applicant was received and tested (T21). 45 It appears, from documents provided by the Applicant, that the Western Aboriginal Legal Service wrote to a Dr Brian McDonald on 2 April 2003 and 17 April 2003 in relation to the DNA analysis of Ms Franco. The Applicant has not provided a report of Dr McDonald, or any other person, relating to the DNA issue for the purposes of the present application. 46 It is apparent that a number of issues concerning the DNA analysis were taken up in cross-examination of Ms Franco during the committal proceedings in April 2003. No further evidence or report touching this issue has been provided by the Applicant. In the light of the DNA evidence adduced at the committal proceedings, it is clear that the Applicant was advised to plead guilty to the charges and he did so. 47 No issue relied upon by the Applicant under these grounds assists him on the present application.

Ground 8 48 The Applicant relies upon the fact that the victim identified Reginald Knight as her attacker. The Crown submits that, in raising this issue, the Applicant is attempting to revisit the victim's initial identification, which was later demonstrated by DNA testing to have been mistaken. 49 Ms Franco gave evidence at the committal proceedings that DNA testing of Mr Knight's blood, and the semen located on the fern fronds at the crime scene, led to the conclusion that it was not Mr Knight's semen on the fern fronds. 50 Mr Knight had become a suspect in the matter as a result of the victim attending a hotel in Dubbo on the day after the offences and seeing a person "who looked like the person who assaulted me. It was his build and physical features that were similar" (statement of victim, 28 December 2002, paragraph 3). It is clear that the DNA analysis operated to exclude Mr Knight as a suspect. It must be observed that the victim's identification of Mr Knight, in any event, was tenuous and carried little weight. 51 Under Ground 8, the Applicant raises a further issue. Based on certain documents, the Applicant alleges that the police lost his DNA sample and seeks to argue that the DNA sample which produced a positive result, when compared with the DNA evidence at the crime scene, was actually the DNA sample of Mr Knight. I accept the written submissions of the Crown (pages 14-16) which demonstrate that the Applicant is plainly wrong in this assertion. The evidence of Ms Franco at the committal proceedings (T16-20) confirms this conclusion. The Applicant has not provided any material that casts doubt upon Ms Franco's opinion that it was his DNA contained in the semen located at the crime scene.

Ground 9 52 The Applicant relies upon the loss of the police brief between 1995 and 2002 and the fact that police did not make statements until 2002. This issue was taken up in cross-examination of a number of police witnesses at the committal proceedings in 2003. It is apparent from the evidence given at the committal proceedings (see pages 17-18 of the Crown submissions), that police officers used contemporaneous documents and records from 1995 for the purpose of making statements in 2002 following the arrest and charging of the Applicant. 53 The Applicant does not point to any actual prejudice which is said to have resulted from the delay in preparation of statements. This ground does not assist the Applicant.

Ground 10 54 The Applicant contends that a slide used by Ms Franco for the purpose of DNA analysis was destroyed and thus could not be utilised for the purpose of obtaining a second opinion. 55 The Crown submits that the Applicant has misunderstood evidence given by Ms Franco at the committal proceedings. Ms Franco said that the swab taken at the crime scene in 1995 was totally consumed in the DNA testing in 2002, but that the slide could still be in existence at the laboratory (T20). That is how the evidence stood at the time of the Applicant's pleas of guilty. 56 I do not consider that this aspect assists the Applicant on the present application.

Grounds 11 and 14 57 The Applicant points to a matter arising from the search of the victim's garden following the attack. The forensic officer found one hair on the ferns in the victim's garden following the offences. The Applicant contends that this discovery was improbable and gave rise to a doubt or question as to his guilt. 58 Once again, this issue was taken up at the committal proceedings, in the evidence of Senior Constable Pearson who explained the circumstances in which he located the hair as part of the forensic examination of the relevant area (T37). 59 In my view, this issue was explored at the committal proceedings and provides no assistance to the Applicant for the purpose of this application.

Grounds 15A and 15B 60 The Applicant complains about the selection of a photograph of himself used by police for the purpose of a photographic array shown to the victim. He submits that he is the only person depicted in the photographs who was not wearing a shirt. 61 This issue was taken up in the committal proceedings in cross-examination of Sergeant Jones (T53). He explained that the photograph used was the only one of the Applicant available at the time. Sergeant Jones stated that the victim had never formally identified the Applicant in relation to the matter. 62 In my view, this issue does not assist the Applicant on this application.

Ground 15C 63 The Applicant advances an argument based upon the victim's description of her actions during the offences, and her ability to observe a tattoo on her attacker. Sergeant Jones was cross-examined at the committal proceedings concerning tattoos on the Applicant and Mr Knight (T48). 64 I do not consider that this issue, which was canvassed at the committal proceedings, provides any assistance to the Applicant for present purposes.

Grounds 16 and 17A 65 The Applicant submits that the officer-in-charge of the case lied in his evidence at the committal proceedings concerning the destruction of police note books and his possession of a photograph of the Applicant. 66 The Crown points to evidence given by the officer-in-charge at the committal proceedings (T43, 52) and submits that there is no support for any allegation of impropriety, or the giving of untruthful evidence, by the police officer. I accept the Crown submission. The bare assertion by the Applicant is unsupported by any evidence. 67 The Applicant derives no assistance from this ground.

Ground 17B 68 The Applicant contends that, in 1998, Dubbo Detectives asked him if would supply a blood and urine sample and he said that he would. However, the Applicant states that a statutory declaration signed by him to that effect is missing or destroyed. 69 The Crown points to the statement of Sergeant Jones (paragraph 6) and evidence given by him at the committal proceedings (T43). According to the statement of Sergeant Jones, the Applicant declined to be interviewed with respect to the matter in November 1995 and stated that he wished to obtain legal advice before supplying a sample of blood for the purpose of analysis. Sergeant Jones stated that he later received a telephone call from a solicitor for the Western Aboriginal Legal Service who said that the Applicant would not volunteer a sample of blood for comparison. 70 This issue was canvassed at the committal proceedings with the evidence reflecting an unwillingness of the Applicant, on legal advice, to volunteer a sample of blood for comparison. This ground does not assist the Applicant.

Ground 17C 71 The Applicant contends that he and members of his family have been harassed by police since he was arrested and charged in August 2002. In support of this claim, the Applicant has provided a file note which is said to record a telephone conversation between a person named Lucy and Donna Dickson, identified as the Applicant's defacto wife, wherein allegations are made of police harassment. 72 This material provides no assistance to the Applicant on the present application.

Conclusion 73 There is no doubt that a number of serious offences were committed against the victim in the vicinity of her home in Dubbo in August 1995. The victim said that the offender ejaculated, thereby leaving semen on fern fronds in her garden. The next day, the victim observed Reginald Knight at a hotel and informed police that he appeared to be similar to the person who attacked her. 74 After a blood sample was taken from the Applicant in 2002, DNA analysis was undertaken by Ms Franco. She conducted a comparison of DNA extracted from semen located on a fern frond at the crime scene with the DNA of the Applicant and Mr Knight. The DNA contained in the semen on the crime scene matched that of the Applicant but not Mr Knight. The Applicant was charged with the offences. 75 The Applicant was legally represented at committal proceedings in April 2003 at the Dubbo Local Court. Ms Franco and a number of police witnesses were called and cross-examined on a range of issues. The Applicant was committed for trial. 76 Following committal, the Applicant's counsel advised that he plead guilty to the charges, no doubt having regard to the strength of the Crown case based upon the DNA evidence. The Applicant pleaded guilty to the charges and wrote a "remorse letter" for the purpose of the sentencing proceedings. 77 The Applicant was sentenced to a lengthy term of imprisonment for the offences. This is understandable given the serious nature of the offences to which he pleaded guilty. Since being sentenced on 12 December 2003, the Applicant has not appealed or sought leave to appeal to the Court of Criminal Appeal with respect to his convictions and sentences. 78 In substance, the material relied upon by the Applicant in support of this application is material which was available to him after the committal proceedings in 2003. In light of the evidence then available, he pleaded guilty to the offences. Given the strength of the DNA evidence against him, the advice apparently given to him in this respect by his counsel was understandable. 79 It does not appear to me that there is a doubt or question as to the Applicant's guilt of these offences. There was powerful evidence in the form of the DNA evidence linking the Applicant inextricably with the crimes. To the extent that it is appropriate for me to consider the material advanced by the Applicant in support of his application to withdraw his pleas of guilty, it does not appear to me that the Applicant comes near to meeting the requirements laid down in the authorities referred to earlier in these reasons. There is a bare assertion of innocence by the Applicant in the face of powerful DNA evidence and admissions made by him for the purpose of the District Court proceedings in the form of his pleas of guilty and other expressions of guilt and remorse. 80 I note that the that entire argument advanced by the Applicant has asserted doubts or questions as to his guilt of the offences rather than mitigating circumstances which may bear upon sentence. 81 For the purposes of s.474E(2), I state that it does not appear that there is a doubt or question as to the Applicant's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

82 I have considered the present application fully, given the fact that the Crown provided detailed submissions on the substance of the application and the Applicant has replied to those submissions. It must be said, however, that the failure of the Applicant to appeal to the Court of Criminal Appeal with respect to these matters would have justified my refusal to consider the application under s.474E(3) given that I am not satisfied that there are special facts or special circumstances that justify the taking of further action with respect to the application. However, as the application has been fully argued, I have proceeded to deal with the substance of the application. Having done so, I am entirely unpersuaded that the material and issues raised by the Applicant ought lead to a direction for an inquiry or a referral to the Court of Criminal Appeal under s.474E(1). 83 The application under s.474D Crimes Act 1900 is refused. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.