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[2018] NSWSC 928

Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001

(1) The application is dismissed. (2) I direct that the Registrar forward a copy of this judgment to the applicant.

Catchwords

CRIMINAL LAW – Application under s 78 of the Crimes (Appeal and Review) Act 2001 – Whether doubt or question as to conviction – Applicant convicted of attempting to choke within intent to commit an indictable offence, namely indecent assault – Where applicant sought leave to appeal against his conviction from the Court of Criminal Appeal – Where leave was refused – Grounds relied upon in support of the present application determined by Court of Criminal Appeal – Where the applicant pointed to no further factors bearing upon those grounds – Application dismissed

Cases cited

  • Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001[2016] NSWSC 260
  • Application of Dunn[2005] NSWSC 857
  • Application of Moore[2000] NSWSC 364; (2000) 112 A Crim R 331
  • Application of Rendell (1987) 32 A Crim R 243
  • Application of Suey[2001] NSWSC 543
  • Armand-Iskak v R[2014] NSWCCA 325
  • Buttrose v Attorney General of NSW[2015] NSWCA 221; (2018) 324 ALR 562
  • NSWSC 260
  • Osland v R (1998) 197 CLR 316;[1998] HCA 75
  • Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001[2008] NSWSC 251
  • R v Milat[2005] NSWSC 920; 157 A Crim R 565
  • Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783;[2013] NSWCA 383
  • Varley v Attorney General (NSW)(1987) 8 NSWLR 30

Legislation cited

  • Crimes Act 1900 (NSW)
  • Crimes (Appeal and Review) Act 2001 (NSW)

Judgment

INTRODUCTION

  1. [1]

    By correspondence forwarded to the Registrar of the Court dated 16 March 2018, Sheon Alexander Armand-Iskak (“the applicant”) has made an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”) in respect of his conviction for an offence contrary to s 37 of the Crimes Act 1900 (NSW). The matter was referred to me on 7 May 2018 for determination.

  2. [2]

    In support of the application, the applicant filed the following written material:

  3. [3]

    It should be noted that the applicant has prepared this material without legal assistance. All of it has been taken into account in my determination of his application.

BACKGROUND

  1. [4]

    The applicant stood trial in the District Court before her Honour Judge Huggett and a jury for an offence of attempting to choke with intent to commit an indictable offence, namely indecent assault, contrary to s 37 of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is imprisonment for 25 years.

  2. [5]

    On 4 December 2012, the jury found the applicant guilty. On 8 March 2013 her Honour sentenced the applicant to 9 years and 4 months imprisonment, with a non-parole period of 7 years.

  3. [6]

    The applicant subsequently made an application to the Court of Criminal Appeal for leave to appeal against both his conviction and sentence. Leave was refused: Armand-Iskak v R [2014] NSWCCA 325.

THE CIRCUMSTANCES OF THE APPLICANT’S OFFENDING

  1. [7]

    The following summary of the circumstances of the applicant’s offending is drawn from the judgment of Rothman J (with whom Simpson J (as her Honour then was) and Wilson J agreed) in the Court of Criminal Appeal (commencing at [6]):

  2. [8]

    The evidence at the applicant’s trial was summarised by Rothman J commencing at [13]:

THE RELEVANT LEGISLATION

  1. [9]

    Section 78 of the CAR Act is in the following terms:

  2. [10]

    Section 79 of the CAR Act is in the following terms:

THE PRINCIPLES GOVERNING THE PRESENT APPLICATION

  1. [11]

    The authorities which govern applications of this nature establish a number of fundamental principles, including the following:

  2. [12]

    Importantly, given the matters that the applicant now seeks to raise in support of his application, the procedure under s 78 is not intended to provide a convicted person with another avenue of appeal after the usual avenues have been exhausted, nor is it intended to provide an opportunity to conduct the trial again on paper with the ultimate submission that an acquittal should result. If an applicant seeks to simply re-agitate a matter that has already been agitated and rejected in an appeal against conviction or sentence, and the applicant cannot point to any further specific facts or circumstances, there necessarily arises a real question as to whether a court should refuse to consider some or all of the application: Application of Dunn (supra); R v Milat [2005] NSWSC 920; 157 A Crim R 565; Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260.

THE GROUNDS RELIED UPON BY THE APPLICANT

  1. [13]

    As best I can ascertain from the material filed by the applicant, he relies upon the following grounds:

    1. (1)

      the “unreasonable particulars” provided by the Crown precluded him from engaging in necessary pre-trial preparation, and allowed the prosecution to succeed “for no other reason than it could neither have been rationally anticipated, appropriately prepared for, nor rightly refuted” (“the unreasonable particulars ground”);

    2. (2)

      the Court of Criminal Appeal erred in law by “contravening the established legal principle of the High Court in Osland v R (1998) 197 CLR 316; [1998] HCA 75 (that) a conviction cannot be justified on the basis of a scenario that had not been put to the jury” (“the conviction ground”);

    3. (3)

      the Court of Criminal Appeal “failed to appreciate all the applicant’s grounds of appeal, including the ground alleging that the Crown’s failure to provide pre-trial material prejudiced the preparation of the applicant’s defence” (“the CCA error ground”);

    4. (4)

      counsel for the applicant at trial had acted incompetently by failing to bring pre-trial applications (“the incompetence of counsel ground”); and

    5. (5)

      there was an absence of evidence to support the conviction and that by “re-examining the evidence of the Crown expert witness Dr Isaacs, the victim and defence expert witness Professor Duflow (sic), Mr Crown’s objectively malicious November 12 prosecution and the CCA’s irrefutable error of law will be compellingly made out” (“the no evidence ground”).

CONSIDERATION

  1. [14]

    The unreasonable particulars ground and the incompetence of counsel ground can be conveniently addressed together. The issues raised by both of these grounds were comprehensively addressed by the Court of Criminal Appeal. At [38], Rothman J noted that it was asserted by the applicant that:

  2. [15]

    In dealing with those issues, his Honour said (commencing at [46]):

  3. [16]

    Significantly, Wilson J made the following additional observations as to the level of competence of the applicant’s solicitor and counsel at trial (at [69]):

  4. [17]

    To the extent that the present application relies on these two grounds, it represents nothing more than a further attempt by the applicant to raise arguments which have already been fully agitated, and rejected, by the Court of Criminal Appeal.

  5. [18]

    Similarly, the conviction ground was comprehensively considered and rejected by the Court of Criminal Appeal. In this regard, Rothman J said (commencing at [49]):

  6. [19]

    The CCA error ground is similarly without merit. In particular, the applicant’s suggestion that the Court of Criminal Appeal failed to appreciate all of his grounds of appeal is at odds with the fact that Rothman J (at [38]) specifically noted that the applicant had relied upon, and the Court had considered, grounds of appeal which had not been contained in the material provided to the Court, but which the Court treated as particulars of the appeal which was brought. One of the matters to which his Honour specifically referred in that context was the applicant’s assertion that the Crown had failed to provide reasonable particulars in advance of the trial.

  7. [20]

    Finally, the no evidence ground was also considered and rejected by the Court of Criminal Appeal. In this regard, Rothman J said (at [59]):

  8. [21]

    Nothing in the material now relied upon by the applicant gives rise to any sense of unease or disquiet, and there is no appearance of a doubt or question as to the applicant’s conviction. In these circumstances, I accept the submission advanced on behalf of the Attorney-General that the threshold consideration in s 79(2) of the CAR Act has not been met. It follows that the application should be dismissed.

CONCLUSION

  1. [22]

    In these circumstances I make the following orders:

    1. (1)

      The application is dismissed.

    2. (2)

      I direct that the Registrar forward a copy of this judgment to the applicant.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.