Armand-Iskak v Attorney-General of New South Wales

BASTEN JA: I agree with White JA that the summons for judicial review must be dismissed. This step could have been taken summarily. There was no plausible suggestion that Bellew J, carrying out a screening function under s 75 and s 79 of the Crimes (Appeal and Review) Act 2001 (NSW) misunderstood the nature of the function being exercised, or the relevant legal principles to be applied. The applicant has been consistent in his complaints of injustice ever since his conviction. As Bellew J pointed out, the issues he raised for inquiry had been addressed and rejected by the Court of Criminal Appeal. That would have provided a sufficient reason to refuse to consider the application: Appeal and Review Act, s 79(3)(a)(i) and (b).

MACFARLAN JA: I agree with White JA and also with the additional observations of Basten JA.

WHITE JA: On 4 December 2012 the applicant was convicted after a trial in the District Court of the 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). On 8 March 2013, the applicant was sentenced by Huggett DCJ to nine years and four months’ imprisonment commencing on 17 January 2012, with a non-parole period of seven years.

The applicant sought leave to appeal against the conviction and sentence. On 19 December 2014 the Court of Criminal Appeal refused leave (Armand-Iskak v R [2014] NSWCCA 325).

On 16 March 2018 the applicant made an application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction and sentence.

Sections 78 and 79 of the Act relevantly provide as follows:

The application was considered by Bellew J and was dismissed on 11 July 2018 (Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928). Although Bellew J considered that it appeared that the matter had been fully dealt with by the Court of Criminal Appeal in the proceedings in which leave was sought to appeal from the conviction and sentence (at [14], [18], [19], [20]), his Honour dealt with the application under s 79(2) by concluding that it did not appear that there was a doubt or question as to the applicant’s guilt (at [21]). I agree with Basten JA that the application could have been dealt with summarily under s 79(3)(a)(i) and (b).

No appeal lies from the decision of Bellew J, but the applicant seeks relief by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). Relief by way of judicial review would be available if the applicant could establish jurisdictional error (Patsalis v Attorney General for NSW (2013) 85 NSWLR 463 at [23]-[24]; Buttrose v Attorney General for NSW (2015) 324 ALR 562; [2015] NSWCA 221 at [4]). It is doubtful that an order in the nature of certiorari to quash a decision for error of law on the face of the record or an order in the nature of mandamus to compel performance of a duty under s 79(1) could be made (Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 at [66]-[76]), but in an appropriate case a declaration could be made identifying a matter that may create a doubt or question as to the correctness of a conviction or sentence (Sinkovich at [79]; Buttrose at [29], [33], [34]).

In the present case the judge’s decision was not attended by any error, either as to jurisdiction or law.

On his summons for judicial review the applicant seeks to repeat submissions that were fully dealt with by the Court of Criminal Appeal. He asserts that the judge’s decision was wrong not because the judge was wrong in deciding that the matters he sought to raise had already been dealt with by the Court of Criminal Appeal, but because the judge should have found that the Court of Criminal appeal erred in its findings.

In the Court of Criminal Appeal Rothman J described the circumstances of the offending as follows:

The applicant’s submissions in the Court of Criminal Appeal were described by Rothman J as follows:

Bellew J (at [11]) summarised the principles governing applications under s 78. His Honour then added (at [12]):

The applicant does not take issue with this statement.

Bellew J summarised the grounds on which the applicant relied as follows (at [13]):

Bellew J held that “the unreasonable particulars ground” and “the incompetence of counsel ground” had been comprehensively addressed in the Court of Criminal Appeal and extracted the reasons of Rothman J and of Wilson J in the Court of Criminal Appeal dealing with those grounds.

His Honour also held that “the conviction ground” had been comprehensively considered and rejected by the Court of Criminal Appeal and quoted the reasons of Rothman J at [49]-[57] to demonstrate why that was so.

Bellew J rejected the applicant’s submission that the Court of Criminal Appeal had failed to appreciate all of his grounds of appeal (at [19]). His Honour also held that “the no evidence ground” had been considered and rejected by the Court of Criminal Appeal and quoted the paragraphs of Rothman J’s judgment where that was done.

Bellew J concluded (at [21]):

In his submissions before this Court the applicant did not seek to demonstrate any error in Bellew J’s conclusions that the matters that he had raised in his application under s 78 had all been considered and addressed by the Court of Criminal Appeal in 2014. Instead, the applicant sought again to ventilate matters that had already been addressed by the Court of Criminal Appeal. His submissions were not enhanced by his assertion that the prosecution was malicious (para 3). He asserted that the police “embarked upon an irrefutable agenda of unreasonable particulars”. This reference to “unreasonable particulars” seems not only to be a reference to an asserted failure by the Crown to particularise sufficiently the claim against him, but also to a claim that “particulars” in the form of pre-trial materials supplied to him were unreasonable because they were wrong or deliberately wrong. Thus, in para 1 of his submission in chief the applicant asserted that the police “embarked upon an irrefutable agenda of unreasonable particulars” by having the victim of the offence perjure herself in a statement on 13 January 2012. He adduced no material supporting the claim of perjury, nor his claim that other pre-trial materials were wrong or deliberately wrong, except for his bare denials. In that statement the complainant said:

The applicant referred to an expert certificate prepared for the purpose of s 177 of the Evidence Act 1995 (NSW) by a Police Forensic Medical Officer who stated that based upon her examination of the complainant she was of the opinion that the complainant had injuries consistent with an assault that morning that she described as “victim was grabbed from behind, around neck, scratched offender”. A further certificate by a Dr Isaacs who was called by the Crown at the trial stated that the complainant gave a history that:

A NSW Police Facts Sheet dated 18 January 2012 asserted that the applicant was positioned behind the victim and he used his right forearm to wrap around the front of the victim’s throat (Appendix 6, p 37 of 93).

In a later witness statement the complainant said that the applicant approached her from behind and that when he grabbed her she instantly grabbed hold of his forearm and elbow area with both hands. His grip around her neck was very tight and there was pressure against her neck that blocked her airway so that she could not breathe (Appendix 7, p 11 of 93).

In opening address the Crown said that the applicant put his arm around the complainant’s throat and proceeded to apply pressure to her such that she momentarily blacked out (Rothman J at [22] quoted below).

The complainant gave evidence that the crook of the applicant’s arm and the inside of his arm was against her neck (p 52 of 93). The applicant’s position was that he had put his arm around the complainant’s shoulder, as a hug, and not around her neck as a choke (pp 55 and 56 of 93). The complainant did not accept the suggestion put to her in cross-examination that the applicant “simply put his arm around you across your shoulder and didn’t put your neck in the crook of his elbow”.

Rothman J summarised the applicant’s position at trial as follows:

The applicant’s principal complaint appears to be that he did not have adequate particulars as to how the Crown would contend that the choking with which he was charged occurred. He complains that the Crown’s allegation as to how the choking occurred emerged for the first time in the Crown’s final submissions (Appendix 12, p 58 of 93) where the Crown Prosecutor said:

This was consistent with the case particularised and opened, which did not depend on any precise identification of the positioning of the applicant’s arm around the complainant’s neck during the alleged choking. The complaint of inadequate particularisation and surprise was made before the Court of Criminal Appeal and rejected. Rothman J said:

The applicant challenges Rothman J’s findings that the evidence of the witnesses and the Crown’s addresses were consistent with the crook of his elbow being at the side of, rather than in front, of the complainant’s neck. He submitted that this was inconsistent with the complainant’s evidence that she was grabbed from behind around her neck (Appendix 11, p 52 of 93) and with Dr Isaac’s evidence that the history she was given was that the obstruction was not to the complainant’s whole neck but that the windpipe was obstructed with the crook of the elbow at the front (Appendix 46, p 86 of 93).

Bellew J was right to proceed on the basis that the applicant’s submissions had been fully considered by the Court of Appeal. In any event, the matters the applicant raises do not create any doubt or question about his guilt. Whether the crook of the elbow was at the front of the neck or the side of the neck is neither here nor there. Either could be a choke. The jury rejected the applicant’s evidence that he gave the complainant a hug but did not choke her. The complainant’s scratching of the applicant’s forearm (about which there was no dispute) could have been done whether the crook of the elbow was at the front or the side. The applicant submitted that if the crook of his elbow was at the front of the complainant’s neck, the scratches on his arm could not have been made at the places and angles on his arm that they were. (Appendix 5, p 36 of 93). That is mere assertion. A young woman could easily bring her right hand across to or beyond her left shoulder so as to scratch the assailant’s forearm and the angle of scratch would depend on the angle of her wrist.

If the applicant established a doubt or question as to the exact position of his arm in relation to the complainant’s neck, it would not raise a doubt or question about his guilt. The Crown case was overwhelming.

The judge was correct to find that these matters had been addressed in the Court of Criminal Appeal. There was no error, let alone a jurisdictional error or error of law, in the judge’s decision that nothing in the material relied upon by the applicant gave rise to any sense of unease or disquiet and there was no appearance of a doubt or question as to his conviction.

The applicant did not point to any material that had been submitted to the judge on the application pursuant to s 78 that had not been considered.

The summons for judicial review should be dismissed. The Attorney General did not seek costs.

In Ferella v Stomo [2017] NSWCA 268 Sackville AJA observed that whilst the institution of judicial review is an important component of the rule of law, its availability without a requirement of leave opens the way to a determined or obstinate litigant who has exhausted all rights of appeal to mount a further challenge by invoking the original, as opposed to the appellate, jurisdiction of the Court. In that case the application was for judicial review of orders of the District Court refusing to set aside decisions of a Review Panel that had refused to set aside an assessment of costs of a costs assessor. This case is another example of the misuse of judicial review proceedings. The question whether judicial review proceedings assigned to the Court of Appeal by s 48 of the Supreme Court Act should be subject to a requirement of leave, such as is applicable to an appeal warrants attention.