Application of Doyle under s 78 of the Crimes (Appeal and Review) Act 2001

1. [1]

   On 10 July 2018, Mr Edward Doyle, the applicant, filed an application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) seeking an inquiry.

The Application

1. [2]

   The application took the form of 3 pages of submissions headed “Crimes (Appeal and Review) Act 2001 (NSW)” and was signed by the applicant (the Application). The Application was accompanied by the following written material:

   1. (1)

      Written submissions dated 25 August 2003 headed “In the Court of Criminal Appeal Regina v Edward Emmett Doyle for hearing on 11 September 2003 Crown Submissions”.

   2. (2)

      A New South Wales Police report on antecedents of Edward Emmett Doyle dated 24 February 1957.

   3. (3)

      What appear to be reasons for a determination to refuse bail by a police officer at Central Police Station dated 4 June 1983, although the accused referred to in those reasons is not identified. The reasons were as follows:

   4. (4)

      A statement by a Police constable, Rex Waldron, from Murwillumbah dated 4 January 1957 concerning Henry William Coote driving a black MG on the Pacific Highway at South Murwillumbah on 5 May 1956.

2. [3]

   In the Application, the applicant sought an “INQUIRY FOR A REVIEW” into what was described as a “FRAUD COMMITTED ON BOTH THE NSWCCA AS WELL AS MYSELF” by counsel appearing for the Crown in proceedings in the Court of Criminal Appeal on 11 September 2003 (the 2003 proceedings). (For the judgment of that Court in relation to the 2003 proceedings, see R v ED [2003] NSWCCA 255.)

3. [4]

   The fraud was said to have been committed by counsel informing the Court of Criminal Appeal, in the written submissions dated 25 August 2003, that the applicant had convictions for possessing heroin, possessing Indian hemp and conspiracy to steal when that was not the case. The correct position was said to be as set out in the report on the applicant’s antecedents dated 24 February 1957. Because the Court did not call upon counsel for the Crown, the applicant contended that:

4. [5]

   The Application also referred to “AN EVEN MORE OUTRAGEOUS FALSE CRIMINAL HISTORY… [being] PRESENTED TO A COURT”. This related to proceedings in 2001 in the Court of Criminal Appeal (the 2001 proceedings) in which the applicant’s convictions and sentences in 1985 for imposition and goods in custody were quashed, see R v Doyle [2001] NSWCCA 252. These 1985 convictions and sentences had been referred to the Court of Criminal Appeal pursuant to ss 474D and 474E of the Crimes Act 1900 (NSW) [1] by Hulme J, see R v Doyle [2000] NSWSC 512 and R v Doyle [2001] NSWCCA 252 at [1].

5. [6]

   The false criminal history referred to in the context of the 2001 proceedings was the criminal history summarised in the reasons for determination to refuse bail dated 4 June 1983, which have been quoted above. It was conceded in the 2001 proceedings that the history was incorrect. [2] One of the reasons why the applicant’s 1985 convictions were quashed by the Court of Criminal Appeal was that there was “no innocent explanation of the erroneous reference on two occasions to details of the applicant’s prior record.” [3]

6. [7]

   That false history in 1983 has, however, no role to play in the present application. This was implicit in the Application where it was stated:

7. [8]

   I note that the later reference in the Application to the matter of “R V DOYLE (2000) -NSWCCA 252” appears to be a typographical error and appears to be intended to be a reference to R v Doyle [2000] NSWSC 512.

8. [9]

   Although the Application went on to include the following information:

   1. (1)

      that as a result of “THE MATTERS” (which appears to be the 1985 convictions the subject of the 2001 proceedings) being quashed, Mr Greg Walsh, a solicitor, commenced action in the District Court;

   2. (2)

      but in a tea break the applicant was followed to the toilet and was accosted by a police officer who threatened him to such an effect as to cause him to flee the precinct of the court without informing Mr Walsh as to the reason he was doing so but the applicant did inform his barrister of his reasons but he did not recall his name but he did recall Mr Walsh telling him he had at one time been Chief Justice of Papua New Guinea; and since that time, Mr Walsh had refused all attempts to speak to him on the matter,

9. [10]

   It is important to recognise what the Application did not seek. The Application did not seek a review or enquiry in relation to of the applicant’s conviction and sentence in 1957 for larceny of a motor vehicle. This does not appear to be an oversight. That conviction and sentence have been challenged or reviewed previously:

   1. (1)

      in 1957, the applicant appealed to the Court of Criminal Appeal (it is unclear whether this was against conviction or sentence or both) but the applicant abandoned the appeal on 18 November 1957 before the hearing;

   2. (2)

      on 1 May 2002, the applicant applied pursuant to s 474D of the Crimes Act for an inquiry into his 1957 conviction and sentence but that application was refused by Dunford J on 1 November 2002: Application of Doyle [2002] NSWSC 1022;

   3. (3)

      on 8 April 2003, the applicant filed a notice of appeal in respect of his 1957 conviction and sentence and a month later sought an extension of time in which to appeal against the conviction and leave to appeal against the sentence, both of the latter applications were refused by the Court of Criminal Appeal on 11 September 2003: R v ED [2003] NSWCCA 255. These are the 2003 proceedings referred to in the Application; and

   4. (4)

      on 8 October 2004, special leave to appeal from the Court of Criminal Appeal’s refusal of his applications for an extension of time and leave to appeal was refused by the High Court: ED v The Queen [2004] HCATrans 396.

10. [11]

    The only matter in relation to which an inquiry is sought in the Application is the alleged fraud committed on the Court of Criminal Appeal and the applicant as a result of a false criminal history allegedly being put forward by counsel for the Crown in the 2003 proceedings.

Relevant statutory provisions and principles

1. [12]

   Sections 78 and 79 of the Crimes (Appeal and Review) Act relevantly provide:

2. [13]

   As s 79(4) indicates, consideration of an application under s 78 is not an exercise of judicial power: Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 (“Sinkovich”) at [12]. Rather, the power being exercised is administrative: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [5]. A history of provisions allowing for inquiry and review of convictions and sentences is provided in Sinkovic at [33] to [41]. Further, I note the comments of Basten JA in Sinckovic at [52] to [54] which are as follows:

3. [14]

   It should be noted, however, that s 79(3) provides that the Court may refuse to consider or otherwise deal with an application under s 78:

   1. (1)

      in circumstances where “the matter” has:

   2. (2)

      the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action: s 79(3)(b).

4. [15]

   The Court of Appeal recently endorsed the approach of refusing to consider an application under s 78 where the requirements of s 79(3)(a) and (b) were met: Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 at [1], [2] and [7].

5. [16]

   If, however, an application under s 78 is to be considered, the applicable test is contained in s 79(2) which requires that action to direct an inquiry or refer the whole case to the Court of Criminal Appeal under s 79(1) can 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”.

6. [17]

   The applicable principles in regard to the test under s 79(2) were summarised in Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423, by Davies J as follows:

7. [18]

   In Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928, Bellew J noted, at [12]:

The application should be dismissed

1. [19]

   The Application states that it is made under s 78 of the Crimes (Appeal and Review) Act 2001. That section provides that “an application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person …”.

2. [20]

   In the present case, the Application does not, however, seek an inquiry “into a conviction or sentence” but rather seeks an inquiry into the conduct of counsel for the Crown in relation to a submission made to the Court of Criminal Appeal in the 2003 proceedings. To this extent, the application does not fall within s 78(1).

3. [21]

   Further, even if the Application did fall within s 78(1) because the 2003 proceedings concerned the applicant’s 1957 conviction and sentence, the Application is based on a misunderstanding of what occurred and is, consequently, without merit. The portion of counsel’s written submissions said by the applicant to be fraudulent was identified with precision in the Application as follows:

4. [22]

   As has been recorded above, a copy of counsel’s written submissions in the 2003 proceedings, dated 25 August 2003 accompanied the Application. It should be noted, first, that these were not “sworn submissions” as the Application alleges.

5. [23]

   Secondly, page 4 lines 7-10 of those written submission are part of a quotation from a decision of the Court of Criminal Appeal in R v Gregory [2002] NSWCCA 199 (“Gregory”) at [41]-[45] (Hodgson JA). In particular, [44] of that judgment was in the following terms:

6. [24]

   Paragraph 7 of counsel’s written submissions makes plain that these paragraphs from Hodgson JA’s judgment in Gregory were quoted because they involved consideration of issues relating to delay and whether an extension of time in which to appeal should be granted where the delay was in the order of 21 years. The quotation was relevant and appropriate in the context of the 2003 proceedings.

7. [25]

   The criminal history referred to in page 4, lines 7-10, of counsel’s written submissions was that of the applicant in R v Gregory not Mr Doyle.

8. [26]

   There is no basis for concluding that counsel who appeared for the Crown in the 2003 proceedings engaged in any fraudulent conduct whatsoever or that the Court of Criminal Appeal’s decision concerning his 1957 conviction and sentence was affected in any way by the fraudulent conduct contended for by the applicant.

9. [27]

   As formulated in the Application, the request for an inquiry under s 78 proceeds upon a fundamental misunderstanding. There was no fraudulent or other conduct which might justify an inquiry or review.

10. [28]

    For these reasons, the application for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 should be refused.

11. [29]

    It can be noted, however, that the applicant, in later submissions, appeared to accept that the criminal history referred to at page 4, lines 7-10, of the written submissions in the 2003 proceedings did not relate to him and both parties made submissions concerning matters that went beyond what has been dealt with above. Consequently, for the sake of completeness, I shall also briefly address those submissions.

Matters going beyond the alleged fraud in relation to the 2003 proceedings

1. [30]

   In accordance with s 78(2) of the Crimes (Appeal and Review) Act, a copy of the Application was sent to the Attorney General, being the relevant Minister, who provided submissions in relation to the Application on 8 August 2018.

2. [31]

   In response to the submissions of the Attorney General, the applicant provided written submissions by emails of 30 October and 5 November 2018. In addition, a bundle of 19 “attachments” was filed on 7 November 2018. The written submissions were revised and were submitted in their final form by an email of 18 November 2018. The 19 attachments were as follows:

   1. (1)

      “A”, identified as “EDWARD DOYLE COURT FORM P34 - WILLIAM COOTE COURT FORM P34 - WILLIAM COOTE WITNESS LIST - WILLIAM COOTE PURPORTED STATEMENT. UNDATED, UNSIGNED, UNWITNESSED PURPORTING TO BE WILLIAM COOTE STATEMENT TO SGT ENGLUND” containing:

   2. (2)

      “B”, identified as “DOYLE CRIMINAL HISTORY AT THAT TIME 1957 - FALSE CRIMNAL HISTORY CONCOCTED BY PROSECUTOR IN A SEPARATE MATTER POLICE REPORT – POLICE REPORT BY CONST WALDRON TO SGT ENGLUND, PADDINGTON POLICE” containing the following documents which also accompanied the Application and have been referred to above:

   3. (3)

      “C”, identified as “3 PAGES PROOF CONST WALDRON CALLED TO GIVE TESTIMONY AT WILLIAM COOTE TRIAL PLUS MISCARRIAGE OF JUSTICE INFORMATION” containing:

   4. (4)

      “D”, identified as “16 PAGES OF APPEAL TO JUDICIAL COMMITTEE OF THE PRIVY COUNCIL” containing documents relating to an appeal to the Judicial Committee of the Privy Council including submissions stamped as received by the High Court of Australia Registry on 29 November 2007 and a letter from a registrar of the Judicial Committee of the Privy Council dated 12 December 2007 stating the Judicial Committee would not consider the petition for special leave to appeal.

   5. (5)

      “E”, identified as “7 PAGES TO INNOCENCE PROJECT LYNNE WEATHERED” containing a 7 page letter to Lynne Weathered regarding Mr Doyle’s 1957 conviction and an unidentified ‘page 7’ of written submissions

   6. (6)

      “F”, identified as “3 PAGES OF REFERENCE FROM VIRO-R 1978 CONCERNING APPEALS FROM THE H.C TO THE PRIVY COUNCIL” containing 2 further pages of written submissions and 1 page from Viro v R (1978) 141 CLR 88; [1978] HCA 9, from [23] to [26]

   7. (7)

      “G”, identified as “1 PAGE OF REMARKS LORD WIDGERY C.J” containing the same page of written submissions found in “E”

   8. (8)

      “ADDENDUM”, identified with the note “10 PAGES THIS FILE SHOULD BE READ IN CONJUNCTION WITH THE PENULTIMATE PARAGRAPH OF EMAIL MARKED ADDENDUM” containing:

   9. (9)

      “H”, identified as “DUTIES OF JUDGES TO DETERMINE ADMISSABILITY” containing a marked up copy of the case R v Deathe [1962] VR 650

   10. (10)

       “I”, identified as “6 PAGES CORRESPONDENCE PRIVY COUNCIL” containing correspondence that largely replicates what is found in “D” but including further correspondence evidencing the difficulty Mr Doyle had in appealing to the Judicial Commission of the Privy Council

   11. (11)

       “J”, identified as “3 PAGES GENERAL BACKGROUND” including 3 further pages of written submissions challenging various aspects of the Court of Criminal Appeal’s judgment in R v ED [2003] NSWCCA 255

   12. (12)

       “K”, identified as “9 PAGES GENERAL BACKGROUND” containing pages 3-9 of written submissions challenging, among other things, the High Court’s failure to correct the wrong apparently in relation to the 1957 conviction and sentence

   13. (13)

       “L”, identified as “9 PAGES MARKED INDEX TO EXHIBITS” containing pages 2 and 4-11 of the same written submissions found in “K”

   14. (14)

       “M”, identified as “REMARKS CONCERNING H.C.A.” containing pages 8 and 9 of the same written submissions found in “K” and “L”

   15. (15)

       “N”, identified as “NOTICE OF APPEAL 37 PAGES” containing a notice of appeal in the form of a letter to “the Chairman, NSW, Court of Criminal Appeal” dated 8 April 2003

   16. (16)

       “O”, identified as “6 PAGES CRITICISM HAWKINS MISHANDLING CASE” containing written submissions largely the same as those found in “ADDENDUM”

   17. (17)

       “17”, a copy of Regina v ED [2003] NSWCCA 255

   18. (18)

       “18”, a copy of the Crown’s written submissions in Regina v Edward Emmett Doyle for hearing on 11 September 2003 in the Court of Criminal Appeal, which accompanied the Application and which have been referred to above

   19. (19)

       “19”, a copy of Application of Doyle [2002] NSWSC 1022.

3. [32]

   On 5 December 2018, the Attorney General provided submissions in reply.

4. [33]

   The applicant subsequently sent two further emails containing written submissions at 10.24 am and 3.50 pm on 13 February 2019.

5. [34]

   A review of the applicant’s submissions provided in response to the Attorney General’s submissions indicates that are not limited to the “fraud” allegedly committed on the Court of Criminal Appeal and himself in the 2003 proceedings, but deal with matters that arose in 1956 and 1957 and have arisen since. They also involve challenges to the findings and reasoning of the Court of Criminal Appeal in R v ED [2003] NSWCCA 255.

6. [35]

   In order to consider these submissions concerning the 1957 conviction and sentence and whether the Court is satisfied that there are special facts or special circumstances that justify the taking of further action in relation to that conviction and sentence, I set out below some more detailed background information concerning the 1957 conviction and sentence and the previous applications for an inquiry and for leave to appeal.

7. [36]

   The following summary of the applicant’s 1956 offending is extracted from the reasons of Dunford J in Application of Doyle [2002] NSWSC 1022, [7]–[13]:

8. [37]

   In relation to what occurred after his conviction in 1957, Dunford J recorded in his judgment at [2]:

9. [38]

   On 1 May 2002, the applicant applied to the Supreme Court under s 474D of the Crimes Act for an inquiry into the conviction and sentence imposed on 12 June 1957. The applicant relied on several grounds in support of his application, including grounds to the effect that:

   1. (1)

      The statement of Constable Waldron dated 4 January 1957 was concealed from him during the trial. This statement indicated that Cst Waldron stopped the MG Roadster for speeding on 5 May 1956. He identified Mr Coote as the driver and in a number of photographs on 25 November 1956. Cst Waldron did not indicate whether there were any other passengers in the vehicle at the time. The applicant considered that if there were other people in the car, Cst Waldron would have referred to them in his statement and the fact he did not suggested the applicant was not guilty.

   2. (2)

      He was not supplied with a copy of a statement made by Mr Coote which implicated him in the offence.

   3. (3)

      The jury only took a short time (65 minutes) to return its verdict.

   4. (4)

      The trial judge failed to hold a voir dire examination in relation to verbal admissions made by the applicant.

   5. (5)

      The jury directions were incorrect as the trial judge informed the jury they did not have to be satisfied the applicant intended to permanently deprive the owner of his property.

   6. (6)

      His sentence was manifestly excessive when compared to that of his co-offender, Mr Coote.

10. [39]

    On 1 November 2002, Dunford J refused the application on the basis that the applicant’s grounds did not raise an appearance of doubt or a question as to the application’s guilt or the sentence imposed: Application of Doyle [2002] NSWSC 1022. His Honour found, at [18], that the case against the applicant at his trial was “overwhelming”. After considering the applicant’s submissions in detail, his Honour said, at [48]:

11. [40]

    In April 2003, the applicant sought an extension of time to appeal against his conviction and leave to appeal against the sentence imposed. The applicant’s primary argument was that fresh evidence had come to light which warranted the conviction being set aside. The evidence relied upon by the applicant was the statement made by Cst Waldron on 4 January 1957.

12. [41]

    The Court of Criminal Appeal found the applicant had “long since served the sentence imposed upon him” and in addition to there being a real question as to whether it constituted “fresh” evidence, the statement of Cst Waldron was equivocal and could not be tested. Accordingly, this ground was found to be “without merit” and leave to appeal was refused: R v ED [2003] NSWCCA 255. Hidden J (with whom Spigelman CJ and James J agreed) said at [20]-[22]:

13. [42]

    The applicant then sought special leave to appeal to the High Court of Australia against the refusal of an extension of time and leave to appeal by the Court of Criminal Appeal. The application was dismissed on 8 October 2004: ED v The Queen [2004] HCATrans 396. In refusing leave, Gleeson CJ said:

14. [43]

    In addition to the submissions provided at the time of filing his application on 10 July 2018, which have been dealt with above, the applicant made further submissions on 30 October and 5 November 2018, supported by the 19 attachments referred to above. Some of the points raised, without trying to be exhaustive, were:

    1. (1)

       The law applicable in these and previous proceedings emanating from the applicant’s 1957 conviction is the law in force in England in 1956;

    2. (2)

       The failure of the prosecutor at his original trial to call Cst Waldron or to inform the applicant of the means of contacting him represented a breach of the prosecutor’s duties;

    3. (3)

       The Registrar of the High Court erred by failing to allow his appeal to the Privy Council, by applying the Australia Act 1986 (Cth) retrospectively and in a way that operated prejudicially to the applicant;

    4. (4)

       The prosecutors relied on a false criminal history;

    5. (5)

       The manner in which counsel in the 2003 proceedings in the Court of Criminal Appeal mentioned the criminal history of Mr Gregory was unnecessary and apt to “distract the NSWCCA from proper consideration of [the] application”;

    6. (6)

       The police failed to comply with proper procedures in relation to the events leading up to and including his arrest in 1957;

    7. (7)

       Dunford J, in Application of Doyle [2002] NSWSC 1022, erred by finding that Cst Waldron’s failure to make reference to passengers being in the MG Roadster when he stopped it for speeding on 5 May 1956 was “totally irrelevant”, and his Honour “committed a fraud on the NSWCCA as well as committing a fraud on [the applicant]” by referring to the MG Roadster as a “speeding car” rather than a “stolen car”, which misled the Court of Criminal Appeal;

    8. (8)

       Hidden J, in Regina v ED [2003] NSWCCA 255, committed a fraud on the applicant by speculating about why Cst Waldron might have neglected to mention the presence of passengers when he stopped the MG Roadster for speeding; and

    9. (9)

       The applicant’s solicitor, at his original trial, was suffering “mental anguish” and did not competently manage his case.

15. [44]

    By email dated 13 February 2019 the applicant drew attention, among other things, to the “Lawyer X” controversy and the Royal Commission into the Management of Police Informants in Victoria. He submitted that these revelations necessitated a “completely new appraisal [of] the law as it affects my application” because, in pursuing his matter through various courts since his conviction in 1957, “judges of all persuasions ,just point blank refuse to believe that police tell lies ,and manipulate evidence.”

16. [45]

    The Attorney General filed submissions on 8 August 2018, and on 5 December 2018 in reply to the applicant’s later submissions. He submitted, among other things, that the applicant has not raised the appearance of a doubt or question as to his guilt, any mitigating circumstances, or the evidence in the case as required by s 79(2). It was noted that the primary basis for his application was that counsel for the Crown in the 2003 proceedings incorrectly characterised his conviction history in written submissions. However, those submissions made clear that the passage of concern was a quote from an authority relied on and was not a reference to the applicant’s conviction history. The Attorney General submitted that the application should accordingly be refused. This aspect of the submissions has already been addressed above.

17. [46]

    The applicant’s successful application for inquiry and quashing of his 1985 convictions was noted as follows:

18. [47]

    Under the heading ‘Other possible grounds for inquiry not made out’, the Attorney General submitted that the statement of Cst Waldron had been considered at length both in the context of previous applications for review and leave to appeal. The Attorney General therefore submitted that the matter had been dealt with previously, for the purposes of s 79(3)(ii), and there were no special facts or circumstances which would justify another inquiry.

19. [48]

    In reply to the applicant’s further submissions of October and November 2018, the Attorney General submitted that the further matters raised by the applicant had already been determined adversely to him on previous occasions, or otherwise did not assist him. It was submitted that none of the matters raised gave rise to any appearance of “doubt or question” regarding the applicant’s conviction for the purposes of s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW).

20. [49]

    The Attorney General addressed the applicant’s further submissions, under the following headings:

21. [50]

    It was noted that the applicant previously raised this issue before this Court and the Court of Criminal Appeal in the proceedings which were the subject of the decisions in Application of Doyle [2002] NSWSC 1022 and R v ED [2003] NSWCCA 255, respectively. On both occasions, the applicant asserted that the failure to call or identify Cst Waldron as a witness deprived the applicant of the opportunity to adduce evidence from him to the effect that he was not present in the vehicle at the time it was stopped for speeding. The Attorney General submitted that Dunford J’s conclusion, that Cst Waldron’s failure to make reference to passengers being in the vehicle was “totally irrelevant” to the applicant’s conviction, was supported by the applicant’s admissions to police, including that he had driven to Queensland with Mr Coote in the stolen car: Application of Doyle [2002] NSWSC 1022 at [18], [35] and [37]. These admissions bolstered his Honour’s assessment of the case against the applicant as being “overwhelming”: at [18]-[20].

22. [51]

    As to Hidden J’s comments in Regina v ED [2003] NSWCCA 255 at [14] that it was “most likely” that the applicant’s solicitor would have become aware of Cst Waldron’s statement in the course of preparing his client’s case and could have easily identified and interviewed Cst Waldron, it was submitted that “none of this is inappropriate speculation” and rather the comments serve to demonstrate Hidden J’s “essential point” that the evidence, which could have been adduced on this point, was equivocal and that it was unlikely that it could now be tested given the significant passage of time since the trial.

23. [52]

    In both cases, the Attorney General submitted that the applicant’s argument was “correctly” rejected. To the extent that the failure to call or identify Cst Waldron as a witness was a breach of duty by the prosecutor, it was submitted that this was merely a “new label” for the same arguments and accordingly did not give rise to any appearance of “doubt or question” regarding the applicant’s convictions.

24. [53]

    The Attorney General also submitted that, once it is accepted that the arguments in relation to the alleged failure to call Cst Waldron or to provide his contact details have been already been correctly determined adversely to the applicant, it was unnecessary to consider the source of the relevant prosecutorial obligations in 1956 or to determine any distinctions between the law in force in the United Kingdom and New South Wales at the relevant time.

25. [54]

    The matter underpinning this submission was the allegation that the applicant perverted the course of justice by threatening Mr Coote. It was submitted that this matter did not demonstrate any appearance of “doubt or question” about the applicant’s conviction or the circumstances in which it was made. The Attorney General noted that a failure to charge the applicant with a further offence based on this matter was not probative of the applicant being innocent of the charge on which he was convicted.

26. [55]

    The Attorney General submitted that this was neither new material, nor sufficiently specific to give rise to any appearance of “doubt or question” about the applicant’s conviction on the basis of general police corruption.

27. [56]

    It was also submitted that there was no reason why the applicant’s admissions to police could not have been “comfortably” elicited within the approximately 15 minutes allowed for by the applicant for his police interview. In any case, this matter did not give rise to any appearance of “doubt or question” about his conviction.

28. [57]

    It was noted that the applicant had previously raised the competence of his legal representation in his application before Dunford J, the subject of Application of Doyle [2002] NSWSC 1022, where it was found not to be a matter justifying an inquiry into his conviction or warranting leave to appeal being granted. His current submissions on the matter did not point to any additional or particular failure or error made by the solicitor in the way he conducted the defence, and amounted to mere conjecture.

29. [58]

    The applicant’s belief in his right of appeal to the Privy Council was submitted to be misconceived.

30. [59]

    In the circumstances of the present matter, relevant aspects of which have been set out above, it appears to me that the matters in relation to the applicant’s 1957 conviction and sentence, in so far as they are properly raised in the present application (contrary to my primary conclusion), have:

    1. (1)

       “been fully dealt with … in any proceedings on appeal from the conviction or sentence” within s 79(3)(a)(i) by way of the 2003 proceedings and the judgment in those proceedings, R v ED [2003] NSWCCA 255, as well as by way of the High Court special leave application; and

    2. (2)

       “previously been dealt with under this Part or under the previous review provisions” within s 79(3)(a)(ii) in Dunford J’s consideration of the application under s 474D, the subject of the decision in Application of Doyle [2002] NSWSC 1022; and

    3. (3)

       “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” within s 79(3)(a)(iv) by way of the appeal lodged in 1957 which was abandoned on 18 November 1957.

31. [60]

    Furthermore, in relation to the additional matters raised by the applicant, I accept the submissions made on behalf of the Attorney General, which have been summarised above, for the reasons given in those submissions. In particular and without being exhaustive, it appears to me that:

    1. (1)

       The “revelations” concerning the “Lawyer X” controversy Victoria and Royal Commission into the Management of Police Informants do not necessitate a “completely new appraisal [of] the law as it affects [the] application” because, in pursuing his matter through various courts since his conviction in 1957, “judges of all persuasions, just point blank refuse to believe that police tell lies, and manipulate evidence.” Those revelations concern a specific person in Victoria and do not raise concerns relating to the applicant, his 1957 conviction and sentence or his relevant circumstances.

    2. (2)

       The applicant’s belief as to the existence, nature and extent of a right of appeal to the Privy Council does not justify further action under s 78 or 79.

    3. (3)

       None of the matters raised by the applicant concerning the 1957 trial leads to it appearing that there is a doubt or question as to his guilt in relation to the 1957 conviction and sentence, as to any mitigating circumstances in that case or as to any part of the evidence in that case, for the reasons already given by Dunford J and the Court of Criminal Appeal, which I also respectfully adopt, and for the reasons set out above.

32. [61]

    Having regard to all those matters, I am not satisfied that there are special circumstances that justify the taking of further action, within s 79(3)(b) of the Crimes (Appeal and Review) Act.

33. [62]

    Accordingly, even if the Application sought “an inquiry into a conviction or sentence”, it is appropriate to refuse to consider or otherwise deal with the Application, under s 79(3) of the Crimes (Appeal and Review) Act.

Conclusion

1. [63]

   For all of the reasons set out above, the application for an inquiry under s 78 of the Crimes (Appeal and Review) Act set out in the Application filed on 8 August 2018 is refused.