Application by Adriana Kostov under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Review Act), the applicant, Ms Adriana Kostov, seeks an inquiry into the convictions recorded against her by Milledge LCM at the Downing Centre Local Court on 13 August 2019 in respect of:

In her application, filed on 17 December 2020, the applicant submitted that she was convicted in circumstances where:

It was submitted that these matters are serious enough for this Court to commence an inquiry into the convictions. Further, it was submitted that the matters amount to a basic denial of civil rights in legal proceedings contrary to art 14(3) of the International Covenant on Civil and Political Rights. [1]

The applicant also noted it was difficult, distressing and costly for her to appeal against the convictions.

The applicant submitted that, for those reasons, this Court should review the matter and remit it back to the Local Court for rehearing.

Towards the end of her application, the applicant also stated:

Sections 78 and 79 of the Review Act relevantly provide:

Thus, s 78(1) of the Review Act enables, among other things, a convicted person such as the applicant to apply to this Court for an “inquiry into a conviction or sentence”, and s 79(1) confers on the Court a discretion:

By the terms of s 79(2), the action in s 79(1)(a) may only be taken by the Court if:

As the terms of the present application make clear, only an inquiry – and not a reference of the whole case as an appeal to the Court of Criminal Appeal – is sought. Furthermore, the inquiry which the applicant seeks pertains only to her convictions, not any sentences.

Two observations can be made about applications under s 78. First, an application under s 78 does not initiate judicial proceedings but instead involves an exercise of administrative power: s 79(4); Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 (Varley) at 48-50 (Hope JA, Samuels JA agreeing); Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318; [2003] HCA 28 at [124] (Heydon J, Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ agreeing).

Secondly, in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (Holland), Johnson J noted, at [9], that s 78 does not serve as another avenue of appeal available to a convicted person after the appeal process has been exhausted, nor is it an opportunity to run their trial again on the papers. Rather, such applications may be appropriate where “the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence”: Holland at [10].

The test to be applied in an application for an inquiry under s 78 is, as specified in s 79(2), whether it appears that there is a doubt or question as to:

It has been established that such a doubt or question may arise where the material submitted creates an “unease or a sense of disquiet in allowing the conviction or sentence to stand”: Holland at [6], citing Varley at 48 and Douglas Harry Rendell (1987) 32 A Crim R 243 at 245 (Hunt J). It was also said in Holland, at [8], that this requires “available material which, as a matter of practical reality, gives rise to [the] … sense of unease or disquiet”.

It will be appropriate to deal with s 79(3) of the Review Act in more detail below.

Given the administrative nature of the application, it has been determined on the papers. I have considered the submissions and documents provided by the applicant and the submissions and other material provided, pursuant to s 79(4), by the Attorney General.

In order to determine whether the application should be considered and whether an inquiry should be directed, it is necessary to review the circumstances of the convictions and subsequent steps taken in relation to the convictions in some detail.

There are many proceedings which have been brought by, and some against, Ms Kostov. It is not necessary to refer to many of these proceedings for the purposes of the present matter. I shall focus on proceedings directly related to the convictions which Ms Kostov seeks to have reviewed.

On 6 March 2019 the applicant was charged with – but, it appears, not arrested for – the following offences contrary to s 254(b)(ii) of the Crimes Act:

The matter was first mentioned before Deputy Registrar Hoffmann at the Downing Centre Local Court on 24 April 2019. The applicant did not attend, but her solicitor, a Mr or Ms Lau, appeared and entered pleas of not guilty to both charges on her behalf. The matter then proceeded summarily, and the Registrar made orders:

Trad LCM presided over the second mention, on 5 June 2019. The applicant, who again did not appear, was represented by a Mr or Ms Kalantar that time. Her Honour made orders listing the matter for hearing on 9 August 2019 with an estimate of three hours.

On 5 August 2019, as a result of an application by the applicant to vacate the hearing on 9 August 2019 for medical reasons, Mottley DCM effectively vacated the hearing and listed the matter for hearing on 13 August 2019.

On 13 August 2019 the matter came before Milledge LCM for hearing. The applicant attended the hearing in person and was unrepresented.

At the outset of the hearing, the police prosecutor sought leave to amend some incorrect details on the court attendance notices (CANs) in respect of the offences. That application was unopposed, and Milledge LCM allowed it. Consequently, the magistrate made the following amendments:

The next issue raised by the prosecutor was whether it was necessary to play the closed‑circuit television (CCTV) footage obtained by police for the purposes of identifying the applicant as being present at the time and place of each of the offences. As it transpired, it was unnecessary to play the footage, since the applicant did not contest that she was present.

The magistrate then gave the applicant a brief explanation about the way the hearing would be conducted, including the way witnesses would give evidence and the requirement upon the prosecution to establish a prima facie case.

The applicant then sought to hand up a letter to Milledge LCM outlining her case, but her Honour explained that it was inappropriate for the Court to hear the accused’s case prior to the prosecution’s. Accordingly, her Honour did not read the applicant’s letter at that stage.

The applicant then raised a concern about an unknown woman present in the courtroom, and the following exchange occurred:

At this point the prosecutor sought leave to make another amendment to one of the CANs, namely that the financial advantage in respect of the second offence be changed back to $241 as it had originally stated.

After the further amendment was dealt with, the applicant raised for a second time her concern about the unknown woman at the back of the courtroom:

The prosecution then called its first witness to give evidence.

After a few questions by the prosecution to the witness about introductory matters such as the witness’s name and occupation, the applicant interrupted the proceedings by approaching the unknown woman at the back of the courtroom:

The discussion between the applicant and Milledge LCM continued in that way for a while, but eventually the applicant left the courtroom, which the magistrate noted on the record:

The hearing then proceeded without the applicant, and the prosecutor continued his examination of the first witness. He subsequently examined the second, third and fourth witnesses in the absence of the applicant.

The applicant returned to the courtroom in the middle of the examination in chief of the fifth witness, which the magistrate accordingly noted:

At the conclusion of the evidence in chief of the fifth witness, the magistrate asked the applicant if she wished to cross-examine the witness. The applicant declined to do so.

Having heard the prosecution’s evidence, Milledge LCM determined that there was a case to answer.

It is worth mentioning that, shortly before adjourning for morning tea, a further amendment was made to the CAN in relation the second offence at the request of the prosecution, namely the date of the purported offence was amended to 18 February 2021 instead of 19 February 2021.

Following the morning tea adjournment, the applicant was given an opportunity to give evidence and make submissions. The applicant did not give evidence but did make oral submissions. In addition, Milledge LCM allowed the applicant to hand up the letter outlining her case (including annexures to the letter) and her Honour read those documents.

Milledge LCM then determined the matter, delivered reasons for her decision and convicted the applicant of both offences. Her Honour also noted:

Her Honour then explained to the applicant that the matter would be adjourned until 1 October 2019 to allow time for an assessment report to be prepared by Community Corrections, to assist the Court to determine the appropriate sentence to impose. Milledge LCM made it clear that the applicant was required to report to Community Corrections by 16 August 2019 and attend court on 1 October 2019 for sentencing:

Orders convicting the applicant were entered on 13 August 2019.

Sometime after the hearing on 13 August 2019 the applicant applied to Legal Aid for assistance. It appears that on 16 September 2019 an interview was scheduled with Legal Aid for 24 September 2019, which the applicant attended. By a letter from Legal Aid dated 24 September 2019 the applicant was informed that her application for legal assistance was granted and she was to be represented by a solicitor, Ms Shiranica Tambyrajah, at the hearing on 1 October 2019.

Neither the applicant nor Ms Tambyrajah attended the hearing before Milledge LCM on 1 October 2019. A solicitor, Mr Maspero, appeared as agent for Ms Tambyrajah and provided the following explanation:

Milledge LCM stressed to Mr Maspero the importance of the applicant’s attendance at court and explained that the matter would be adjourned to 2 October 2019 to give the applicant an opportunity to present herself before the Court for sentencing. Her Honour also explained that the Court would not consider an application for a further adjournment unless the applicant was present in court, and that if the applicant failed to attend court on the next occasion a warrant pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) would be issued for her arrest.

In addition, it appears the applicant was notified by email from the Chief Magistrate’s Office that a warrant would be issued for her arrest if she did not attend court for sentencing.

The applicant did not attend court on 2 October 2019. She was represented by Mr Tom Warr of counsel, who it seems had agreed to appear for the applicant on short notice. In addition, a representative from Legal Aid, a Mr or Ms Haddlington, was present and explained to the magistrate that, for unknown reasons, Ms Tambyrajah had withdrawn that morning from the applicant’s matter. The following discussion took place between the Legal Aid representative and Milledge LCM:

Mr Warr then explained that he had only been notified of the matter that morning. He thus requested an adjournment until he was available to represent the applicant on 4 October 2019. Additionally, he said he would convey to the applicant that an arrest warrant would be issued unless she attended court on that date.

The matter was accordingly adjourned until 4 October 2019, allowing the applicant another opportunity to present herself to the Court to prevent a warrant being issued against her.

The applicant did not attend court on 4 October 2019. Mr Warr appeared again and provided the following explanation about the applicant’s absence:

As a result of the applicant’s failure to comply with the Court’s directive to attend court for sentencing, Milledge LCM issued a warrant pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act.

On 10 October 2019 an appeal by the applicant pursuant to s 11 of the Review Act against her convictions was heard by Syme DCJ at the Downing Centre District Court. Neither the applicant nor any representative of the applicant appeared at the hearing.

Section 11 provided:

Syme DCJ dismissed the appeal on the basis that an appeal by a defendant against a conviction by the Local Court may not be made to the District Court before the defendant has been sentenced by the Local Court: s 11(2).

On 21 October 2019 the applicant attempted to commence proceedings in the special jurisdiction of the Local Court under Pt 4 of the Local Court Act 2007 (NSW) with a view to diverting her criminal proceedings through s 32 of the Mental Health (Forensic Provisions) Act.

Part 4 of the Local Court Act relevantly provided:

The applicant sought to file her s 45 application notice with the registry at the Downing Centre Local Court. It appears the application was expressed in terms that sought a hearing in the Local Court for consideration as to whether the applicant’s criminal proceedings should be diverted under s 32 of the Mental Health (Forensic Provisions) Act.

Section 32 relevantly provided:

The application notice came before Registrar Wiseman for consideration. He concluded that it constituted an attempt by the applicant to commence proceedings that were frivolous, vexatious and without substance, and had no reasonable prospect of success. In reaching that conclusion, it appears the registrar found it problematic that, among other things, the application notice, which sought to invoke s 32, was not supported by sufficiently relevant medical documentation.

The filing of the application was thus refused, and an email was sent from the registry to the applicant notifying her of the reasons for that.

On 1 November 2019 an application by the applicant pursuant to s 4 of the Review Act to annul her convictions was heard by Milledge LCM. The applicant did not attend but was represented by a Mr Digges.

Section 4 relevantly provided:

Her Honour dismissed the application on the basis that the applicant was prevented by s 4(1A)(a) from making an annulment application as she was, at the time of her convictions, in appearance before the Court.

On 28 November 2019 an application by the applicant to revoke her warrant was heard, and dismissed, by Milledge LCM. The applicant was not in attendance on that occasion, but it appears she was represented by a Mr Cummins. It seems, however, that Mr Cummins withdrew from her case after that hearing.

On 11 December 2019 a further appeal by the applicant was heard by the District Court. This time the applicant sought to appeal Milledge LCM’s decision of 1 November 2019 to refuse to annul the convictions. This matter was heard by Hunt DCJ. The applicant was represented by a Mr Sisinni.

Mr Sisinni explained to the Court that he was additionally instructed to apply for orders pursuant to s 32 of the Mental Health (Forensic Provisions) Act. It is unclear why it was proposed that an application might be made pursuant to s 32 to a judge of the District Court when the provision appears to allow particular action to be taken by magistrates only. Hunt DCJ remarked on that occasion:

Both parties’ representatives agreed with that observation.

In respect of the appeal itself, the following submissions were made by the Crown:

Both Hunt DCJ and Mr Sisinni expressed agreement with that position thus:

It is not clear whether s 11A of the Review Act was brought to his Honour’s attention. That section relevantly provides:

The operation of s 11A was not raised as an issue in the application for inquiry and it does not appear to be necessary to consider it further.

On 18 December 2019 an application was heard at the Downing Centre Local Court pursuant to s 47(3) of the Local Court Act to review Registrar Wiseman’s decision of 21 October 2019 to refuse to allow the filing of the applicant’s application notice in the Local Court’s special jurisdiction. Mottley DCM presided over the hearing.

The Deputy Chief Magistrate decided the application as follows:

The registrar’s refusal to file the application notice was thus confirmed.

On 20 February 2020, Ms Kostov filed a summons in this Court in which she effectively sought to appeal or sought leave to appeal against her convictions in the Local Court, under ss 52 and 53 of the Review Act. This application was out of time but, since an extension of time was not opposed, time for filing of the application was extended to 20 February 2020.

On 29 May 2020, when the application was listed for hearing, Ms Kostov applied for an adjournment on five bases: first, she contended that it was necessary for the matter to be removed to the High Court because she had raised a constitutional issue and had served notices under s 78B of the Judiciary Act 1903 (Cth); secondly, she contended that she had been unable to obtain legal representation and was indigent; thirdly, she said that she was unwell; fourthly, she said that she was distressed because her uncle has terminal cancer; and fifthly, she said that it was unfair for her to have to proceed given that the Attorney-General had raised the issue of her legal incapacity. That application was refused by Adamson J who delivered an ex tempore judgment in relation to the adjournment application on that day: Kostov v Commissioner of Police [2020] NSWSC 678.

Adamson J’s judgment on the substantive application for leave to appeal was delivered on 1 June 2020: Kostov v Commissioner of Police (No 2) [2020] NSWSC 679. That judgment contains a summary of what occurred in the Local Court and the District Court in relation to the convictions. It is useful quoting her Honour’s findings at some length (from [7]-[20]) in order to appreciate the basis upon which the appeal or application for leave to appeal was considered. The relevant paragraphs were as follows:

At the hearing on 29 May 2020, as Adamson J was delivering her ex tempore reasons for refusing the adjournment, Ms Kostov chose to disconnect from the virtual courtroom. Adamson J’s judgment then recorded what occurred as follows, at [26]-[31]:

Adamson J noted that Ms Kostov’s grounds of appeal were as follows:

Her Honour, at [34], characterised these grounds as raising in substance the following issues:

Adamson J then quoted relevant provisions of the Criminal Procedure Act.

Her Honour’s consideration of Ms Kostov’s grounds of appeal was as follows:

Adamson J also considered other submissions made by Ms Kostov which were not directly related to her grounds of appeal. At [52]ff, her Honour addressed the submission that the magistrate erred in allowing the matter to proceed notwithstanding that she did not have legal representation. After referring to the principles in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, Adamson J said, at [54]:

Adamson J also noted that the medical issues raised in submissions before her Honour as reasons why the matter should have been adjourned by the Magistrate were not brought to the attention of the Local Court.

Further, the question of legal representation was raised with the magistrate after the convictions had been ordered and Ms Kostov indicated that she wanted an adjournment to obtain legal advice before she was sentenced. Since an adjournment was granted for these purposes, Adamson J concluded at [55] that it had not been shown that the magistrate was in error.

As to the contention that Ms Kostov was convicted in her absence, Adamson J, at [56], found that Ms Kostov was in court when her convictions were ordered and thus Ms Kostov was not entitled to apply for an annulment of the conviction in light of s 4(1A)(a) of the Review Act. In addition, it was held that s 8 of that Act is not to be read as a stand-alone provision which gives a defendant a right to apply for an annulment, notwithstanding s 4(1A)(a).

Ms Kostov also referred to evidence prepared for the purposes of s 32 of the Mental Health (Forensic Provisions) Act and “the alleged circumstance that the Attorney-General of New South Wales had, on 21 May 2019, filed a notice of motion to have the plaintiff declared legally incapable”. Adamson J in effect concluded that these matters were not relevant to the application for leave to appeal which she was considering.

In these circumstances, Adamson J refused leave to appeal to the extent that leave was necessary and otherwise dismissed Ms Kostov’s summons.

On 6 March 2020, Ms Kostov filed a summons seeking judicial review of the decision of Hunt DCJ striking out as incompetent an appeal by Ms Kostov under s 11A(1) of the Review Act to the District Court from the decision of Milledge LCM refusing to annul the convictions.

On 20 April 2020, at the first directions hearing in relation to the judicial review application, Bell P made directions that both parties were to file and exchange written submissions on the question of whether or not Ms Kostov required leave prior to commencing judicial review proceedings, and what consequences, if any, flowed from Ms Kostov’s failure to obtain such leave: Kostov v Director of Public Prosecutions (NSW) [2020] NSWCA 73. The questions concerning leave arose out of the fact that in November 2018, Ms Kostov had been made the subject of a vexatious proceedings order: Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794. An appeal against the vexatious proceedings order was discontinued and the order continued in effect.

A day after the directions were made, however, Ms Kostov sent an email to the Registrar of the Supreme Court and to Bell P’s Associate, requesting that Bell P recuse himself from all matters concerning Ms Kostov. Ms Kostov refused to make any submissions in relation to the directions made by Bell P until her request for his Honour’s recusal was considered.

On 18 May 2020, Bell P made orders refusing to recuse himself and declaring that the summons seeking judicial review filed on 6 March 2020 and the proceedings stood dismissed by virtue of s 13(3) of the Vexatious Proceedings Act 2008 (NSW): Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94.

By a notice of motion filed on 3 June 2020, Ms Kostov sought orders that Adamson J’s orders of 1 June 2020 be set aside and the matter be remitted to the High Court for determination pursuant to the s 78B notice.

This application was heard by Davies J on 21 August and 25 August 2020. His Honour made orders dismissing the application with costs: Kostov v Commissioner of Police, NSW Police Force (No 3) [2020] NSWSC 1122.

His Honour provided, at [12]-[17] of his judgment, a fulsome account of what occurred during the hearing before Adamson J. In addition, it was noted, at [25], that when Ms Kostov’s application for an adjournment of the hearing before Davies J was refused, she said that she wished to proceed to have her notice of motion heard.

In dismissing Ms Kostov’s notice of motion, Davies J:

On 9 September 2020, Ms Kostov filed a document headed “Summons seeking leave to appeal” which said to be brought under s 101(2) of the Supreme Court Act 1970 (NSW) against the decision of Adamson J made on 2 June 2020. In her draft notice of appeal, Ms Kostov identified the following grounds of appeal:

On 24 November 2020, Ms Kostov filed a notice of discontinuance in respect of that appeal which stated, inter alia:

On 30 November 2020, Ms Kostov lodged a petition to the Governor under s 76 of the Review Act. (A copy of this document was apparently filed in this Court on 17 March 2021).

As noted above, on 17 December 2020 Ms Kostov filed her application (proceedings number 2020/357909) under s 78 of the Review Act seeking an inquiry into the convictions recorded against her by Milledge LCM at the Downing Centre Local Court on 13 August 2019. This is the application for inquiry presently before me for consideration.

It was not clear what was the intended relationship between this application for inquiry and Ms Kostov’s petition to the Governor lodged 18 days before. Nonetheless, it can be observed that the matters raised in both the application for inquiry and the petition appeared to be overlap significantly, if not entirely. Indeed, much of the material in the application for inquiry appeared to be copied and pasted from the material included in the petition to the Governor.

On 4 March 2021, Ms Kostov emailed the Registrar of the Court of Criminal Appeal in relation to her application for inquiry claiming that the application raised a constitutional matter, namely “whether, Australians have the Constitutional right, to a fair trial (which, includes hearing and testing Prosecution evidence, and having legal representation) …”. She requested that her attached notice of constitutional matter be sealed and returned to her so that it could be served on the Attorneys General in accordance with r 1.23 of the UCPR.

On 5 March 2021, the Registrar replied to Ms Kostov by email indicating that r 1.23 did not apply to applications for inquiry under s 78 of the Review Act and stating:

On 24 March 2021, Ms Kostov emailed the Registrar requesting information as to the process applicable in the case of an application for inquiry and, in particular, whether there would be a directions hearing or whether she should await submissions. On the same day, Ms Kostov sent emails to the Commonwealth, State and Territory Attorneys General attaching her notice of constitutional matter and providing certain background information. In that notice, the nature of the constitutional matter was described as follows:

On 25 March 2021, Ms Kostov emailed the Registrar informing him that she had served her notice of constitutional matter on the Attorneys General and requesting that the Attorneys be allowed to respond before the application for enquiry was referred for consideration by a judge. In this email, she also requested an opportunity to make oral submissions.

Two weeks later, on 9 April 2021, Ms Kostov filed a notice of discontinuance in relation to the application for enquiry (proceedings number 2020/357909). That a notice of discontinuance contained the following:

By letter dated 29 April 2021, The Secretary of the Department of Communities and Justice responded to Ms Kostov’s petition to the Governor in the following terms:

On 4 May 2021, Ms Kostov provided a document in relation to her petition to the Governor headed “Section 78 Petition – Reply to Attorney Submission 29 April 2021” consisting of 9 pages of submissions and 26 pages of “Annexures & Fresh Evidence for Her Excellency”. The new evidence was identified in the submissions as follows:

In addition, Ms Kostov submitted that the findings of Adamson J concerning her health on 13 August 2019 were not based on any evidence as follows:

Ms Kostov also made submissions concerning other issues, including but not limited to, a report under s 32 and whether it was premature to consider matters relating to sentencing while the sentencing proceedings had not been determined.

On 6 May 2021, a further letter on behalf of the Secretary of the Department of Communities and Justice was sent to Ms Kostov. That letter stated:

On 6 May 2021, Ms Kostov sent an email to the Registrar which was in the following terms:

In these circumstances and despite Ms Kostov’s earlier discontinuance of the application for inquiry, I have determined that her application for inquiry should be considered. For this purpose, time was allowed for any of the Attorneys General upon whom Ms Kostov served her notice of constitutional matter to provide submissions. Since the consideration of her application for inquiry is an administrative process, it was not appropriate for the matter to be dealt with by way of oral submissions as if it involved the exercise of judicial power.

In substance and without attempting to set out exhaustively Ms Kostov’s submissions, Ms Kostov’s application for inquiry into her conviction was based on the grounds which may be summarised adequately for present purposes as follows:

In addition, it was contended that these circumstances amounted to a basic denial of civil rights in legal proceedings contrary to art 14(3) of the International Covenant on Civil and Political Rights.

Towards the end of her application for inquiry, the applicant submitted as follows:

This was an obvious recognition of the fact that the history of the proceedings and the steps taken by Ms Kostov in relation to challenging her convictions were likely to attract the potential operation of s 79(3) of the Review Act.

By virtue of s 79(3), the Court has a discretion to refuse to consider or otherwise deal with an application for inquiry under s 78 including where:

What might constitute “special facts or special circumstances” for the purposes of s 79(3)(b) of the Review Act is not spelt out in the Act. In Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2020] NSWSC 1048 at [21], Cavanagh J considered that the emergence of new evidence or new arguments (which have a reasonable foundation) not previously raised might be considered special facts or circumstances. Further, the Second Reading Speech, portion of which was quoted by Johnson J in Milat at [18], indicates that the requirement for the Court not to be satisfied that there are special facts or special circumstances that justify the taking of further action is directed to ensuring judicial resources are not wasted as a result of repeated, unmeritorious applications for inquiries. Thus “special facts or special circumstances” can be understood as including facts and circumstances which indicate that there is a reasonable basis for the application for inquiry which has not already been considered and has sufficient merit to justify the expenditure of judicial resources on consideration of the application for inquiry.

The specific history and purpose of s 79(3) was considered by Johnson J in Milat, Ivan Robert Marko - Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 (Milat) at [16]-[22] as follows:

The relevant principles when considering the application of s 79(3) of the Review Act have also been recently dealt with in the Court of Appeal in Clark v Attorney General of New South Wales [2020] NSWCA 70 (Clark) and GAR v Attorney General for the State of New South Wales (No. 3) [2020] NSWCA 179 (GAR). Those principles include:

The Court’s discretion to refuse to consider or otherwise deal with an application under s 79(3) will be enlivened in the present case if:

In regard to s 79(3)(a)(ii), it appears to me that the issues raised by Ms Kostov in her application for inquiry were all raised in, and have all been dealt with in substance and effect by the responses to, her petition to the Governor under s 76 of the Review Act. Indeed, a line by line comparison of the petition to the Governor with the application for inquiry demonstrates that no new facts or circumstances were raised in the application for inquiry. The only differences between the two documents were:

In these circumstances and in light of the reasons given by the Local Court, the District Court, the Supreme Court, the Court of Appeal and the Secretary, it appears to me that Ms Kostov’s matter has been dealt with as specified in s 79(3)(a)(ii) and (iv). Furthermore, even if the discontinued application for leave to appeal to the Court of Appeal did not constitute circumstances falling within s 79(3)(a)(iv), the fact that her petition to the Governor under Pt 7 was previously dealt with and reasons were given in that regard to Ms Kostov by way of the letters from the Secretary of 29 April 2021 and 6 May 2021, lead me to accept that it appears that the matter has, at least, been dealt with as specified in s 79(3)(a)(ii).

Furthermore, it appears to me that:

In particular, the two specific matters raised by Ms Kostov as circumstances that were “special enough” for the purposes of s 79(3)(b), namely: (a) “it has been too difficult for [her], to run appeals in the higher Courts”; and (b) “[she] should be given, the basic right, to a represented defended Hearing in the Local Court, especially in circumstances of Legal Incapacity, which, [she has] been denied” were raised in the applicant’s appeals and in her petition and were, in effect, dealt with by Adamson J and by the Secretary. In addition, the proceedings, both judicial and administrative, embarked upon by the applicant have demonstrated her ability to raise the matters which she has sought to have addressed by the inquiry by other means that were available to her.

For these reasons in the present case, I am not satisfied that there are special facts or special circumstances that justify the taking of further action.

On these bases, the discretion under s 79(3) of the Review Act to refuse to consider or otherwise deal with Ms Kostov’s application is enlivened in this case.

Moreover, I am satisfied that the Court should refuse to consider or otherwise deal with Ms Kostov’s application for inquiry, beyond what has already been addressed in this determination, because there is no substantial injustice or unfairness suffered by Ms Kostov because:

Furthermore, even if, contrary to my conclusion, it were not appropriate to dispose of the present application for inquiry under s 79(3), I am satisfied that it does not appear from the material submitted by Ms Kostov in support of her application for inquiry that there is, relevantly for the present case, a doubt or question as to her guilt or as to any part of the evidence in the case.

In this regard, I respectfully adopt the reasoning of the various Courts referred to above which have considered Ms Kostov’s applications and appeals, and the reasoning of the Secretary in relation to Ms Kostov’s petition to the Governor set out in the letters of 29 April 2021 and 6 April 2021, to the extent that it addresses the substance of the grounds relied upon to support the application for inquiry, on the basis that such reasoning appears to me to be correct and not involve any relevant error. It is not necessary to repeat the relevant portions of that reasoning here. It is sufficient to note, without attempting to be exhaustive, that I do not accept that there is a doubt or question as to Ms Kostov’s guilt or as to any part of the evidence in the case as a result of:

For all these reasons, I have determined that the Court should refuse to consider or otherwise deal with the application. Accordingly, the application for inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) filed on 17 December 2020 is refused.