GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

By application dated 2 March 2016 and submitted on 14 March 2016, the applicant sought, pursuant to Division 3 of Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), a further inquiry into his conviction in 2002 for the offence of sexual intercourse without consent. The applicant was sentenced in respect of that offence to imprisonment for a term of six years commencing on 5 April 2002 and expiring on 4 April 2008, with a non-parole period of four years and six months. The present application was lodged 7 years and 11 months after the applicant had served his sentence.

The applicant’s appeal against his conviction was dismissed and leave was refused to appeal against his sentence: GAR v R [2003] NSWCCA 224 (the Original Appeal). In February 2009, Barr J referred the case pursuant to s 79 of the Crimes (Appeal and Review) Act to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal dismissed the appeal: GAR v R (No. 1) [2010] NSWCCA 163 (the Review Appeal).

The applicant seeks a further direction under s 79(1)(a) of the Crimes (Appeal and Review) Act that an inquiry be held, or in the alternative, an order under s 79(1)(b) that the matters be referred to the Court of Criminal Appeal to be dealt with as an appeal pursuant to the Criminal Appeal Act. The Court’s discretion to make a direction under s 79(1) arises only “if it appears that there is 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”.

The present application is based on what is said to be “fresh evidence”, being statements apparently made by the applicant’s former wife, ER, and their daughter, E. The statements appear on a single page which reads as follows:

There is another page relied upon on which the following appears in handwriting:

Mr West’s signature appears on the bottom right hand corner of this page.

The applicant contended that the effect of the typed statements was to undermine the credibility of both E and ER, who gave evidence for the prosecution. He contended that the handwritten statement, dated 2 October 2015, was, in effect, superseded by the later typed statements.

In order to assess the relative importance of these items it is necessary to consider the factual background, what occurred at the trial and subsequently. As I have already addressed these matters in a previous application under s 78 of the Crimes (Appeal and Review) Act, I propose to reproduce the summary from my reasons for refusing that application: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734.

The applicant was charged on indictment as follows:

On 21 October 2002, the trial commenced in the District Court before Judge Naughton and a jury. On 1 November 2002, the jury returned a verdict of not guilty on the first count and guilty on the second count.

The complainant, ER, and the applicant were divorced shortly before 13 January 2002, after having been married for approximately 20 years. They had a son and a daughter, E, who, in January 2002, was 12 years old and lived with ER at Doonside. On the morning of 13 January 2002, the applicant went to ER’s home. E was at home when he arrived. ER arrived later in response to a phone call.

When ER arrived home, the applicant swore and shouted at her. After they went inside, he pinned her against the kitchen sink for about an hour and a half, during which time he moved back and forth approximately a foot and a half away. ER remained in the kitchen for a further period, during which the applicant did not allow her to move from the area. They moved into the dining room. Throughout this period, the applicant was abusive and made threats against her and a man referred to as RM.

Between lunch time and approximately 5 pm, the applicant was alternatively calm and abusive. He refused ER’s request that he leave and, when she wanted to go for a walk with E, he said they could only go if he went with them.

At about 11 pm, E went to bed. ER again asked the applicant to leave and he refused. At around midnight ER went to bed. She remained fully dressed.

About 15 minutes later, the applicant came into ER’s bedroom. ER said “Don’t do this to me [GAR]. Please don’t do this to me.” The applicant responded by threatening to silence ER, and then threw her back on the bed, removed her clothing and had forced penile intercourse with her. Afterwards, he threatened her and followed her to the bathroom. On returning to the bedroom, the applicant set ER’s alarm clock and lay on the bed next to her. When the alarm sounded at 4 am, the applicant left, but threatened to return.

After the applicant left, ER went to the bathroom where she vomited and then showered. After she had dressed she sat in the dining room for some time, before calling RM. At about 6 am, E came into the dining room and spoke to ER. She then rang the police who came to her home at approximately 11.20am. One of the officers gave evidence about the content of the conversation with ER. Later that afternoon, ER attended Westmead Hospital, where Dr Sterrett took a history from her, examined her and prepared a report which was tendered.

The evidence in the Crown case was given by ER, E and the police officers who attended the Doonside home and carried out the investigation. The Crown also relied on the report of Dr Sterrett. Photographs of ER’s injuries were admitted into evidence. RM was not called as a witness. Detective Senior Constable Crompton gave evidence that he had been unable to contact him for a statement.

The applicant, who gave evidence, said that he went to ER’s house for the purpose of inviting his daughter on an outing, and that he became concerned about what she told him about herself and RM, who was much older that she was. When ER returned home, the applicant discussed his concerns with her. He acknowledged that the discussion was at times heated, particularly in relation to RM (whom he suspected of abusing his daughter). He neither restricted ER’s movements nor prevented her from leaving. As the afternoon wore on, the applicant and ER became more conciliatory. When E went to bed ER invited him to have intercourse with her in her room. Consensual intercourse then took place several times. The applicant left early in the morning.

One of the grounds in the Original Appeal was that the trial judge erred in law in directing and/or failing to direct the jury adequately or properly as to complaint and/or the effect of complaint. In addressing that ground, Miles AJ (with whom Spigelman CJ and Bell J agreed) referred to the following aspects of the evidence that the trial judge summarised, in his directions, as complaint evidence:

The Court concluded that the trial judge’s directions in relation to the evidence of ER said to amount to a complaint to RM were inaccurate. Miles AJ referred to relevant authorities, and said: “evidence of complaint is no longer admitted in effect to bolster or strengthen the credit of the complainant, but as evidence of the facts intended to be represented”. Miles AJ said further at [47]:

Notwithstanding Miles AJ’s conclusion that the directions on the complaint evidence were inaccurate in so far as ER’s statements to RM were concerned, rule 4 of the Criminal Appeal Rules was applied and leave was refused in respect of that ground on the following bases:

The basis for Barr J’s referral of the matter to the Court of Criminal Appeal for the Review Appeal was a statement that E was said to have made to her father, on a visit to Long Bay Gaol (in the company of a friend of her father’s, John Carroll), that she had not heard anything that night and that her mother had told her to say that she had on the grounds that that the police “wouldn’t believe her [ER] by herself”. It was also alleged that E had made a similar statement to the applicant’s sister, JC, and to a former friend of ER.

The applicant initially contended that ER had procured E to give fabricated evidence at the trial which implicated him. However, following E’s oral evidence on the appeal, the applicant reframed this ground to allege that E had given false evidence against the applicant “at the behest of” ER. He argued that in light of the fresh evidence about E having lied in her evidence, the Court should be satisfied as to his innocence or at least entertain a reasonable doubt about his guilt so as to warrant quashing the verdict and ordering a retrial. The applicant contended:

Both E and ER gave evidence at the hearing of the Review Appeal.

At the Review Appeal, E recanted her evidence at trial that she had heard noises at 2am, including her mother saying, “Please don’t [GAR], please don’t”. The Court noted that the applicant’s counsel did not put to E at trial that she had not heard her mother say those words. At the Review Appeal E also recanted her evidence at trial that she had heard her father say to her mother: “I don’t care what you call it but I call it revenge” and that she had also heard her father say at 4am before slamming the front door, “Well, I’m fucking going”. E also recanted the evidence she had given at trial that when E had got up the following morning she found her mother in the dining room, crying, and told her mother that she was calling the police. E’s evidence at trial was that her mother said, “No, don’t” to which E responded, “I know he raped you”, to which her mother responded, “Yes, he did.” E’s evidence at trial was that, after this exchange, she called the police immediately.

At the Review Appeal, E gave evidence that she discussed the contents of her police statement with her mother and that she had felt pressured to help her mother at trial.

The Court on the Review Appeal found the evidence that E gave in the Review Appeal (which, if accepted, would have seriously undermined the Crown case and ER’s credibility), to be “neither cogent, credible nor plausible” (at [151] (c)). The Court considered that E was prepared to agree to anything that was put by the applicant’s counsel which reflected favourably on the applicant. In any event, the Court considered that, even without E’s evidence, there was sufficient evidence to satisfy the jury of the applicant’s guilt beyond reasonable doubt.

By contrast, the Court found ER’s evidence given on the Review Appeal that she did not know what her daughter had, or had not, heard in the early hours of 14 January 2002 and denied having seen E’s statement or discussed its contents with her “not only credible but cogent” (at [151] (c)).

The Court addressed the evidence of E and ER in the following terms at [151]:

The Court dismissed the appeal.

Section 78 of the Crimes (Appeal and Review) Act provides for applications to be made to this Court by a convicted person. Section 79 relevantly provides:

In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 252 Johnson J summarised the relevant authorities and referred at [8] to the need for there to be “available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet”.

The present application is the third application to the Court pursuant to s 78 of the Crimes (Appeal and Review) Act for a review of the conviction.

As referred to above, the present application is based on the contents of the two documents reproduced in full above. The first apparently comprises statements by E and ER, both dated 2 December 2015, in which: E said that her mother asked her to falsely corroborate her evidence and that her statement to police and evidence was false; and ER said that E’s statement is true. The second is ER’s handwritten statement dated “2.10.15” which was apparently signed by Mr West in the bottom right hand corner.

There is no evidence as to how these statements came into being and no explanation to illuminate how, or why, ER’s typed statement dated 2.12.15 and her handwritten statement dated 2.10.15 came into being. Nor is there any explanation as to the opening words of the typed statements:

The Crown submitted in its written submissions dated 27 June 2016 that it was necessary for the Crown to investigate the provenance of the documents in order to ascertain whether they were verifiable and argued that the purposes of ss 78 and 79 could appropriately be served by such an inquiry. To that end, the Crown Solicitors Office arranged for a private investigator to interview Mr West to ask whether he witnessed the signatures of E and ER on the typed document and signed the bottom right hand corner of the handwritten document. Mr West signed a statement dated 15 June 2016 which the Crown has attached to its submissions.

Mr West’s statement reads as follows:

The applicant contended that the effect of the new typewritten statements of E and ER was to undermine the reasons of the Court of Criminal Appeal in the Review Appeal and undermine the credibility of the evidence of E and ER, on the basis of which he had been convicted by the jury. He argued:

The Attorney-General on behalf of the Crown submitted that: the statements do raise a doubt or a question as to the applicant’s guilt and as to the evidence of E and ER; there do not appear to be any reasons for this Court to refuse to consider or otherwise deal with the application; and the application discloses sufficient information to enable the conviction to be properly considered. The Crown submitted that Mr West’s statement establishes, “at a fundamental level” that the Court can act on the statements. It also submitted that the new material relied on by the applicant, in light of Mr West’s statement, gives rise to a relevant sense of unease or disquiet about the applicant’s guilt. The Crown contended that, on this basis, it could appear to the Court that there is a “doubt” or “question” about the applicant’s guilt within the meaning of s 79(2) and that, accordingly, it would be appropriate for the matter to be referred to the Court of Criminal Appeal for the whole of the case to be dealt with as an appeal.

In his submissions in reply the applicant referred this Court to M v The Queen (1994) 181 CLR 487 and the applicable test for determining whether a verdict returned by a jury ought be set aside as unreasonable or not able to be supported having regard to the evidence. He submitted as follows:

The particular factual matrix presented by the new material relied on by the applicant is new, in that, previously, he relied on oral statements made by E to himself and to third parties to the effect that her evidence at trial was false. This matter was extensively investigated in the course of the Review Appeal, in which E gave evidence and was not believed for the reasons extracted from the Court’s judgment set out above. Although E’s statement dated 2 December 2015 is typewritten, whereas the earlier statements were oral, the effect of several statements made by E since the applicant’s conviction is to undermine the evidence she gave at the trial and concessions she made in the Review Appeal. Although there are some differences between the recent statement and earlier statements, they are substantially similar in that they support the applicant’s innocence and are inconsistent with E’s evidence at trial.

The Court of Criminal Appeal in the Review Appeal had an opportunity to hear and see E’s evidence and assess her credibility. Its finding that she was not to be believed because she was prepared to say anything that would advance the applicant’s position reflected that advantage.

What is apparently new is the statement by ER that E’s statement was true. This statement is inconsistent with ER’s evidence at trial and her evidence at the Review Appeal. It is also, in some respects, inconsistent with the handwritten statement dated 2 October 2015 although the inconsistency is not direct (since the earlier statement relates to the incident itself whereas the typed statement relates to what ER said to E).

In my view, the question whether E and ER were telling the truth about the incident and its immediate aftermath has already been fully investigated both at the trial and on the Review Appeal. That a witness or victim might, after an offender has been released from custody, appear to recant from evidence given at a trial or on an appeal, does not necessarily create a doubt about the offender’s guilt. Such recanting could also be explained by other factors. In the case of E, her relationship with her father, the applicant, is likely to be substantially affected by what E says or said about his conduct. ER, too, might be inclined to say other than the truth in order to assist E, or in the belief that nothing is to be gained by not providing a statement that the applicant has requested, since he has already served his sentence. Nonetheless, whatever ER said in the “induced” statement, she adhered to her evidence that the offence occurred, as appears from her handwritten statement dated 2 October 2015.

That E and ER were apparently prepared to sign these statements in the presence of Mr West, as a Justice of the Peace, does not make their statements credible. It merely tends to prove that there were not fabricated by the applicant. The statements appear to have been made by E and ER, after their having received an “inducement that the evidence will not be used to prosecute any offence” against either one of them.

It does not appear to me that there is a doubt or question as to the applicant’s guilt, or any doubt as to the evidence of E and ER in the trial. Any doubt which existed prior to the Review Appeal has, in my view, been removed by that appeal. I am not persuaded that it is necessary to consider the application further. Accordingly the application is dismissed.