GAR v Attorney General of New South Wales (No 2)

BEAZLEY A/CJ: Having had the advantage of reading in draft the reasons of Simpson JA and of Payne JA, I am in agreement with the reasons of Payne JA and with the orders his Honour proposes. My short reasons for my agreement, which assume a familiarity with the factual material and the legislation set out in the respective judgments of their Honours, are as follows.

In my opinion, the primary judge, Adamson J, dealt with the evidence comprising the statutory declarations of GAR’s former wife and his daughter and the other evidence that related to those statutory declarations. Accordingly, I do not consider that the applicant has established jurisdictional error, including any constructive failure to exercise jurisdiction.

I am also of the opinion that there was no error in the primary judge not finding sufficient credibility in the new evidence adduced by way of the statutory declarations to warrant the making of an order pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), for the reasons given by Payne JA.

SIMPSON JA: Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (to which I will, in conformity with Payne JA, refer as “the CAR Act”) provides a mechanism by which a person convicted of a criminal offence (and who has exhausted his or her rights of appeal) may apply to the Supreme Court for an inquiry into the conviction or the sentence imposed (s 78). The jurisdiction is exercised by the Chief Justice or by a justice of the Supreme Court authorised by the Chief Justice (s 75). After considering the application, the judge may either direct that an inquiry be conducted by a judicial officer (s 79(1)(a)) or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) (s 79(1)(b)) but may take either of these courses only 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 (s 79(2)). In certain circumstances (not here material) the Supreme Court may refuse to consider or otherwise deal with an application (s 79(3)). Determination of an application under s 78 is an exercise of administrative, not judicial, power: see s 79(4); Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343; Buttrose v Attorney General of New South Wales [2015] NSWCA 221; Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [12]. Such a determination is reviewable for jurisdictional error under s 69 of the Supreme Court Act 1970 (NSW): Patsalis at [3], [7], [25]-[41]. It is also subject to declaratory relied under s 75 of the Supreme Court Act.

As a matter of practice, an application under s 78 is ordinarily disposed of in chambers by the judge to whom it is allocated on such documentary material as is provided by the applicant, and supplemented by the Attorney General (the Minister administering the CAR Act: Interpretation Act 1987 (NSW), s 15). Although there is nothing in Pt 7 that precludes a judge “considering” (the language of s 79(1)) the application from conducting an oral hearing, that has not been the practice of the Court.

On 1 November 2002 the applicant was convicted, after jury trial, of an offence of sexual intercourse without consent. He was sentenced to a term of imprisonment of 6 years with a non-parole period of 4 years and 6 months, which expired on 4 October 2006. He appealed against the conviction and sought leave to appeal against the sentence. In August 2003 the appeal against conviction was dismissed, and leave to appeal against sentence refused: GAR v R [2003] NSWCCA 224.

In March 2016 the applicant applied under s 78 of the CAR Act for a review of the conviction. (As will be seen, this was his third such application.) On 29 August 2016 Adamson J (“the primary judge”) dismissed the application: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205.

By Summons originally filed in this Court on 11 April 2017, and amended on 15 August 2017, the applicant seeks, pursuant to s 69 of the Supreme Court Act, judicial review of that decision; in the alternative, pursuant to s 75 he seeks declaratory relief, formulated in a variety of ways. The formulation of the orders and declarations sought, and the extensive written submissions filed in support, suggest that the documents have been prepared without the benefit of legal assistance. Payne JA, whose judgment I have had the advantage of reading in draft, would dismiss the application.

Although the relevant background to the application is set out in the judgment of Payne JA, for the convenience of the reader I will restate those facts that are necessary to facilitate an understanding of the reasons that I have come to a contrary view. That is best done chronologically.

Before doing so, however, it is appropriate to:

Sections 78 and 79 of the CAR Act relevantly provide:

It will be necessary to return to examine some of these provisions more closely in due course.

It is apparent that the applicant prepared and presented his s 78 application without legal assistance. The material put before this Court shows that he initially submitted his application on 14 March 2016, and provided a substantial written submission in support (which he subsequently amended and expanded). The Attorney General (to whom, pursuant to s 78(2), a copy of the application was given) also provided a lengthy written submission. The substance of the Attorney General’s submission was that the applicant had established the necessary foundation for a conclusion that a doubt or question existed about the applicant’s guilt of the offence, and it was therefore proposed that the matter be referred to the Court of Criminal Appeal to be dealt with as an appeal.

The applicant’s initial submissions ran to more than 80 pages of typescript. His amended or supplementary submissions covered a further 38 pages. It is fair to comment that much of the content of these documents was of questionable materiality. It does however, contain a good deal of factual material, although not presented in a conventional evidentiary fashion.

As will appear below, this application is the culmination of a lengthy procedural history in the Supreme Court, the Court of Criminal Appeal, and this Court. Generally speaking, the primary material (such as records of interview and statements) were not provided to the primary judge, or to this Court. This is not an ideal way of ascertaining the relevant facts, but is the only way available. The judgments in various curial proceedings, as well as the submissions of the applicant and the Attorney General, provide the basis for much of the factual history that follows, much of which is not in dispute. I will indicate where the position is otherwise.

Until shortly before 13 January 2002, the applicant was married to a woman to whom it is convenient (for reasons of privacy) to refer as “ER”. The applicant and ER were divorced at about that time. They had a daughter (“E”), who was, in 2002, 12 years of age.

On the evening of 13 January 2002, the applicant visited the home in which ER and E were living. Both ER and E were present in the home. The following day, 14 January 2002, ER reported to police that she had been involuntarily detained by the applicant the previous evening, and that he had subjected her to unlawful, non-consensual sexual intercourse. On 14 January E made a statement to police. That statement does not appear in the materials before this Court.

The applicant was charged that:

A trial took place in October 2002. Evidence in the Crown case was given by ER, E, and police officers to whom ER reported the events of 13 and 14 January 2002. The applicant gave evidence. The issue in the trial with respect to the sexual intercourse count was whether intercourse, which had admittedly taken place, was non-consensual.

ER’s evidence included evidence that, on the morning of 14 January, she had telephoned a (male) friend (RM) and “told him what had happened”. She gave no detail of what she had told RM, and RM was not called as a witness in the trial.

The evidence of E in the trial had essentially two components: first, she said that she had been in bed, but had woken at 2.00am. She had heard ER say:

The second part of E’s evidence was that she woke again at 4.00am, heard the applicant leave the house, and found her mother crying in an armchair. E’s evidence was that:

The applicant was acquitted of the count of detention but convicted of the sexual intercourse count. He was sentenced as set out above. The total sentence expired on 4 April 2008. (The applicant is, however, presently serving sentences in relation to other offences.) As also mentioned above, the applicant’s appeal against conviction was dismissed.

In April 2005, in the company of a man named John Carroll, E visited the applicant in prison. There is evidence that, during the course of that visit, the following conversation took place:

On 13 October 2006 the applicant deposed an affidavit in which he recounted this conversation. (So far as the evidence goes, the conversation has never been denied by E.) The affidavit appears to have sparked further inquiries, although it is not clear by whom the inquiries were made. At some stage police were involved. In any event, on 12 April 2007, the applicant’s sister (referred to as “JC”) swore an affidavit in which she deposed that, in October 2002, when E was staying with her, she (JC) had overheard a telephone conversation between E and ER. The conversation as recounted by JC went as follows:

At about this time, in circumstances not disclosed, inquiries were made by police, who interviewed a number of people. On 13 June 2007 JC was interviewed, and confirmed (in very slightly different terms) what she had said in her affidavit.

On 21 June 2007 E participated in such an interview. The following questions and answers were recorded:

She denied the conversation attributed to her by JC. She said that, while staying with JC, she had had a conversation by telephone with ER and that the conversation was on speaker phone (explaining why, if JC’s evidence were correct, she had been able to hear both sides of the conversation). She agreed that the conversation was probably recorded. She could not recall the content of the conversation other than that she had told ER something about RM.

E admitted to police that, in a gaol visit to the applicant with John Carroll in 2005, she had told the applicant that ER had got her to tell lies about him in court, and said that she did this “probably to keep the peace with my father and my mother”. She said that what she had said to the applicant was not the truth.

On 29 November 2007, presumably on the basis of this material, the applicant applied under s 78 of the CAR Act for an inquiry into his conviction. (This was the first of three such applications.)

After considering the application, on 12 February 2009 Barr J ordered that the whole case be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act: The application of GAR (Supreme Court (NSW), 12 February 2009, unrep). [Despite efforts, his Honour’s reasons have not been able to be located.]

The appeal was heard over three days in April 2010. The ground of appeal (as finally articulated) was that there was fresh evidence to the effect that E had, at the behest of ER, given false evidence implicating the applicant in the sexual assault of ER (and that, accordingly, the verdict of guilty should be set aside).

E and ER both gave evidence in the appeal. E was asked about the statement she had given to the police on 14 January 2002. She was asked whether the answers that she had given to the police officer were true, to which she answered “No”. She was asked:

She maintained that ER had never asked her to lie to the police, and had never asked her to lie in court. She said, however, that she was “incredibly influenced” by what ER had told her had happened on that occasion, and had felt “peer-pressured” by ER’s accounts of the events in question.

The following exchange then took place:

E was specifically taken to the evidence she had given in the trial, and agreed that her answers were incorrect, and that she had not heard the applicant say the words she had attributed to him.

By this time, therefore, ER had:

ER was also interviewed by police in June 2007. She denied having given false evidence in the trial. She agreed that, while E was staying with JC in 2002, E had, in a telephone conversation, said to her:

In her evidence on the appeal, ER again agreed that she had had a telephone conversation with E in 2002 in which E accused her of making her (E) lie in the trial, but said that she had responded by denying having done so.

For medical reasons, JC was not called to give oral evidence on the appeal.

There was also evidence in the appeal from a former friend of E (Tammy Toobey), with whom E had fallen out, to the effect that E had told her that she had lied about the applicant in court.

In a joint judgment (GAR v R (No 1) [2010] NSWCCA 163), the Court of Criminal Appeal accepted ER’s evidence as “clearly true” and rejected JC’s evidence as “not believable”. It considered that E:

The Court held that the evidence (in the appeal) of ER was “not only credible but also cogent” but that the evidence of E “was neither cogent, credible nor plausible”.

Applying well established principles concerning the disposition of appeals founded on asserted fresh evidence (see R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356), the Court therefore dismissed the appeal.

On 2 March 2014 the applicant again applied under s 78 for an inquiry into his conviction. The bases for this application included an affidavit sworn by RM to the effect that, although he had had a conversation with ER on the morning of 14 January 2002, she had not made any complaint of sexual assault. (This contradicted the trial evidence of ER that she had told RM “what happened”.) A second ground, which can be passed over, concerned a complaint about certain medical evidence in the trial.

On 4 December 2014 Adamson J dismissed that application: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734. It is unnecessary further to explore this application.

On 2 December 2015, in circumstances not disclosed in the evidence, E and ER, in the presence of a Justice of the Peace (Ian West) signed a document. On one side of the document, in typescript, the following appears:

On the reverse side of the document, in handwriting, appears the following:

This handwriting also appears to be signed by ER, and is dated 2 December 2015. I will refer to this document as “the 2015 document”.

A statement by Mr West authenticates his signatures on the typescript. Mr West does not remember previously sighting the handwritten part of the document. He had no other recollection of the signatories or the documents. He said he did not read the contents of documents prior to witnessing signatures.

Since, for reasons outlined above, no oral evidence was given before the primary judge, there is no explanation of how the 2015 document came into existence, and no explanation of the references to “inducement”.

On the basis of that document, on 2 March 2016, the applicant made a third application for inquiry into his conviction. This application was also allocated to Adamson J.

As mentioned above, on 29 August 2016, her Honour dismissed the application: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205. That is the determination the subject of the present application in this Court.

At the outset of her reasons, the primary judge set out in full the 2015 document, which was the foundation for the application. However, there is, as counsel for the Attorney General concedes, a factual error, the significance of which will be discussed below. Her Honour misread the date of the handwritten statement as “2.10.15”. It is in fact dated 2 December 2015, the same date as the two typewritten statements on the reverse side of the document. Her Honour appears to have attributed some significance to what she then thought was a period of two months between the making of the handwritten statement by ER, and the making of the typewritten statement. She perceived an inconsistency (though indirect) between the two statements.

Her Honour then set out relevant circumstances to which it is not necessary to go, and, under the heading “Consideration”, she said:

At [131] Payne JA has extracted and paraphrased the grounds of the present application pleaded by the applicant in the Amended Summons. It is to be emphasised that, because the function being exercised by the primary judge was administrative, and not judicial, the applicant’s entitlement to review of the primary judge’s decision is limited; his entrée into this Court lies only under s 69 or s 75 of the Supreme Court Act, and not by way of appeal under s 101. He further limited his avenues by relying only on jurisdictional error, to the exclusion of error of law on the face of the record.

Nonetheless, I have come to the view that he has established grounds for relief.

The grounds advanced by the applicant may be further summarised as:

There is one obvious construction to be placed on the 2015 document. That is that:

There may be other explanations for the statements in the document which are not immediately apparent and cannot at present be explored. What is now important is that, on that proposed construction, there is no inconsistency between ER’s two statements (contrary to the view expressed by the primary judge in [43]). There is no inconsistency in admitting to procuring false corroboration of a true complaint.

I have concluded that it is unnecessary to dissect the grounds specified by the applicant. That is because I am satisfied that the primary judge failed to address the question committed to her, and, accordingly, failed to exercise the jurisdiction conferred: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088; [2003] HCA 26 at [32]; Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1; Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220 at [39].

To reiterate, by s 79 of the CAR Act, the Supreme Court may direct that an inquiry be conducted into a conviction or sentence, (or may refer “the whole case” to the Court of Criminal Appeal) if (and only if) it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstance in the case, or as to any part of the evidence in the case. The task is not a composite one; it is tripartite. The section potentially calls for attention to three discrete and distinct issues. (I say “potentially” because not each issue will call for attention in each case. What is called for will depend upon the circumstances of the individual case.) There remain, however, three components to s 79, each of which is, as I have said, separate and distinct and needs, where it arises, to be addressed separately from the others. The three components are (in the sequence stated in the legislation):

The second of the three heads prescribed for inquiry is peculiarly related to questions of sentence and can for present purposes be put to one side. The first and third relate to conviction, although the third could also relate to sentence.

In Sinkovich, Basten JA (with whom Bathurst CJ, Beazley P, and Price and Beech-Jones JJ agreed) likened the “overriding purpose” of Pt 7 to:

To that I would add that the inclusion of “any part of the evidence” in the trio of issues that could warrant the further investigation of a conviction by inquiry or appeal reflects the importance placed by the criminal justice system on, not only the outcome of criminal proceedings, but the integrity of the process by which the outcome is reached. The legislature could have, but expressly did not, confine the circumstances that might give rise to further investigation of a conviction to doubts or questions about the guilt of the convicted person.

That there appears to the judge to be a doubt or question about any part of the evidence is sufficient to warrant directing an inquiry or referring the case to the Court of Criminal Appeal, even if it is unlikely that the evidence in question was determinative (although the importance of the evidence, as well as the extent of any concerns about its integrity, may well be relevant to the exercise of the discretion to take one of the steps provided by s 79(2)).

I begin by stating the proposition that the question committed to the judge to whom a s 78 application is allocated is not whether there exists, objectively, a doubt or a question as to the guilt of the convicted person, or as to any evidence in the case. The question so committed is whether it appears to that judge that there is such a doubt or question: Sinkovich at [26]; Buttrose at [16]. That is, I acknowledge, a substantial limitation on the extent to which this Court may intrude into the consideration.

Nevertheless, if the judge to whom an application is allocated fails to address his or her satisfaction that there exists a relevant doubt or question, jurisdictional error is established. In my opinion that is this case.

A further preliminary proposition is this. The foundation for the application was the 2015 document. In the absence of any evidence (other than that of Mr West) as to its provenance, it must be taken at face value – that is, an admission by E that she had, at the behest of ER, given false evidence at the applicant’s trial, and a further admission by ER that that was the case. (ER’s further assertion that her complaint of sexual assault by the applicant was true does not advance the question of the veracity of E’s evidence at trial.)

Examination of the primary judge’s reasons establishes to my satisfaction that she focussed exclusively upon the first question – whether it appeared to her that there was a doubt or question as to the applicant’s guilt. So much is apparent from [44], which she commenced by considering whether E and ER were (at the trial) telling the truth about the incident and its immediate aftermath, and in which she went on, in the second sentence, to say that recanting by witnesses from evidence “does not necessarily create a doubt about the offender’s guilt”. Moreover, in [42] and [46] her Honour placed heavy reliance upon, and, indeed, adopted, the findings of the 2010 Court of Criminal Appeal as to the credibility of E, notwithstanding that the later statement by E, and, more particularly, the statement apparently by ER, cast considerable doubt on those findings, and put the credibility of E in a different light. Indeed, the primary judge paid little attention to the impact of what must for present purposes be taken to be an admission by ER that she had procured E to give false evidence.

Inherent in the approach taken by the primary judge was a paradox; she accepted the truth of E’s evidence at trial (based on the assessment of E’s credibility by the Court of Criminal Appeal) notwithstanding that, in the same decision, the Court of Criminal Appeal found E to be a witness lacking credibility, cogency and plausibility, and notwithstanding the apparent evidence in the 2015 document in which E reiterated her disclaimer of her trial evidence, and ER confirmed that disclaimer. The primary judge did not, in my opinion, give any real consideration to the impact of ER’s part of the 2015 document, instead hypothesising about possible reasons for ER’s apparent admission. It was not sufficient to say, as she did in [46], that “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”, particularly as that was followed by unquestioning reliance on the factual findings of the Court of Criminal Appeal, which did not have available to it the evidence of the statutory declarations.

I accept also the applicant’s contention that the balance of [44] contains no more than a hypothesis as to a potential reason why “a witness or victim” might “recant” from evidence given in the trial and was an irrelevant factor. Given that the entire consideration of the primary judge was (in accordance with usual practice) undertaken without any oral hearing, the hypothesis remains speculation, without any evidentiary foundation.

The primary judge failed to address her attention to the separate question whether it appeared to her that a doubt or question existed as to “any part of the evidence in the case”. The relevant part of the evidence was, of course, the evidence of E that at about 2.00am she had heard ER say “Please don’t [G…], please don’t”.

The significance of that evidence in the trial cannot be doubted. This was a case in which (apart from the evidence of E) the only direct evidence of the offence charged was that of ER, the complainant. In 2002, in those circumstances, a trial judge was obliged to give a direction in accordance with R v Murray (1987) 11 NSWLR 12, to the effect that, where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before a verdict of guilty could be found. (For completeness, it should be noted that such a direction is now not only not required; it is, in cases of sexual offences, prohibited: Ewen v R (2015) 250 A Crim R 544; [2015] NSWCCA 117.) In the applicant’s trial, the corroborative evidence of E obviated the need or, indeed, the opportunity, for such a direction.

E’s evidence must be taken to have carried considerable weight with the jury and to have been highly influential in his conviction.

The question therefore was whether it appeared to the primary judge that a doubt or question existed as to that evidence. Section 79(2) does not require that the doubt or question be such as to affect the assessment of the guilt of the convicted person; it is sufficient if the doubt or question exists as to any part of the evidence. If such a doubt or question appears, it is necessary to give consideration to what, if any, orders under s 79(1) ought to be made.

To the extent that the primary judge addressed this question, she did so on the basis that E’s veracity had been accepted and therefore established by the conclusions in the 2010 Court of Criminal Appeal judgment, that E’s evidence in those proceedings was not credible, cogent or plausible.

However, that conclusion was reached by the Court of Criminal Appeal in a different context, in which it was required to consider the impact of evidence that E had admitted to the applicant at the prison that she had given false evidence at the behest of ER, in the light of the evidence given by both E and ER in the appeal.

The issue concerning a doubt or question as to any part of the evidence in the trial could not be resolved by reliance on the credibility findings of the Court of Criminal Appeal in 2010. The issue before that Court was a different one. It was (perhaps because of the way the case was then presented) whether fresh evidence adduced on behalf of the applicant (the evidence of the conversation in the presence of Mr Carroll) cast doubt upon the reliability of the conviction. In rejecting the evidence of E as not credible, cogent or plausible, and accepting the evidence of ER as credible and persuasive, the Court of Criminal Appeal concluded that the conviction was soundly based.

By contrast, the question presented to the primary judge was whether there was (or appeared to be) a doubt or question as to one discrete part of the evidence that resulted in that conviction. Not only were there the conflicting accounts given by E: there was the apparent confirmation by ER that the evidence of E was, in a material respect, false.

In a sense, the real question has been confused by focus upon the role played by ER in the fabrication (if that is what it was) of evidence by E. The true question is whether there was a doubt or question about the veracity of E’s evidence. The impetus for any such fabrication was peripheral, relevant to help establish that the evidence was fabricated, but otherwise tangential.

Further, and more importantly, the Court of Criminal Appeal reached its conclusions without the additional circumstance of the 2015 document, in which (at least on its face – neither its provenance nor its reliability could be determined in the absence of any investigation) ER admitted that she had procured false testimony from E.

That alone (as the Attorney General conceded before the primary judge) was sufficient to require a comprehensive examination of E’s credibility. That could not be achieved “on the papers”. It will be remembered that E (and ER) had agreed to the affidavit evidence of JC that E and ER had had a telephone conversation in which E had accused ER of asking her to lie in court about the applicant.

The apparent acknowledgement in 2015 by ER that she had procured E to give false evidence at the applicant’s trial demanded a proper scrutiny of E’s evidence, and the various statements she had made from time to time thereafter.

In failing to address their question, the primary judge fell into jurisdictional error.

Given these circumstances, there appears to be no reason why, without further inquiry, E’s evidence at trial should be accorded more faith than her statements and evidence that contradicted it.

In my opinion, had the primary judge addressed the question concerning E’s evidence as a discrete issue, she could not have avoided a conclusion that an inquiry should be directed. Although it may have been open to her to order, as Barr J had done previously, that the whole case be referred to the Court of Criminal Appeal to be dealt with as an appeal, in my opinion the more appropriate course was for an inquiry to be conducted by a judicial officer who would have the opportunity, sitting as a single judge, to make necessary and appropriate findings of fact. Should that course have been taken, the judicial officer could, under s 82(1)(b) of the CAR Act, report the results of the inquiry to the Chief Justice, or, under s 82(2)(a), refer the matter to the Court of Criminal Appeal for consideration whether the conviction should be quashed.

In my respectful opinion, the primary judge failed to address one of the questions which she was required to address. Jurisdictional error is established.

That leaves the question of what orders ought to be made.

The order primarily sought by the applicant was an order in the nature of certiorari quashing the determination of the primary judge. This, if granted, would be an exercise of the power conferred on this Court by s 69 of the Supreme Court Act.

Complex questions concerning the availability of relief of that kind in respect of determinations under Pt 10 of the CAR Act have been recognised, but not resolved: see Sinkovich at [66]-[76], Buttrose at [12].

The same issues do not arise in relation to declaratory orders under s 75 of the Supreme Court Act. The justice of this case may be met by making a declaration along the lines of those made in those two cases.

I would, therefore:

I appreciate, as Payne JA has pointed out in his additional observations, that, if the current application is dismissed, the applicant would nevertheless be entitled to bring a further application, with enhanced evidentiary material. That, in my opinion, is no answer to his entitlement to have his present application decided according to law.

PAYNE JA: By amended summons dated 15 June 2017 the applicant seeks judicial review of a decision of the primary judge refusing his application for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) into his conviction for sexual intercourse without consent: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205.

The nature of this application invokes the supervisory jurisdiction of the Supreme Court conferred by s 69 of the Supreme Court Act 1970 (NSW) in respect to the administrative function exercised by the primary judge. The applicant seeks orders in the nature of certiorari and mandamus. Alternatively, he seeks a range of declaratory relief.

Although the applicant’s amended summons did not make clear whether any error of law on the face of the record was alleged, the applicant clarified in the course of his oral submissions that his complaints were limited to errors which allegedly constituted jurisdictional error. Accordingly, the only question before this Court is whether the primary judge fell into jurisdictional error in her failure to form the state of satisfaction required by s 79(2) to take one of the courses that would then have been open to her Honour under s 79(1) of the CAR Act.

It is convenient briefly to explain the background giving rise to this application for an inquiry into the applicant’s 2002 conviction.

On 1 November 2002, a jury returned a guilty verdict on an indictment alleging that on or about 14 January 2002 at Doonside the applicant had sexual intercourse with his wife (ER), without her consent and knowing that she was not consenting. The applicant was sentenced to a term of imprisonment of 6 years, with a non-parole period of 4 years and 6 months. The term of imprisonment expired on 4 April 2008. The applicant is presently serving a term of imprisonment for two armed robbery offences, unrelated to those the subject of this appeal: GAR v Attorney General of NSW [2017] NSWCA 47 at [7]. The facts in relation to the applicant’s sexual assault conviction may be summarised as follows:

The applicant’s oral submissions in this Court made clear that his belief is that if, following an inquiry under s 79 of the CAR Act, his sexual assault conviction is quashed, he would then be eligible for release from prison.

On 19 August 2003, the applicant’s appeal against his conviction was dismissed, and leave to appeal against his sentence was refused by the Court of Criminal Appeal comprising, Spigelman CJ, Bell J and Miles AJ: R v GAR [2003] NSWCCA 224.

One of the grounds in that appeal was that the trial judge erred in law in directing and/or failing to direct the jury adequately or properly as to ER’s complaint. The Court referred to aspects of the evidence that the trial judge summarised, in his directions, as complaint evidence. This summary was set out by the primary judge in the present case at [19]:

The Court of Criminal Appeal 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 at [47]: “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 also noted at [47]-[48]:

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, leave to appeal was refused under r 4 of the Criminal Appeal Rules (NSW) as:

The relevant evidence that E gave at trial was identified by the Court of Criminal Appeal in GAR v R (No 1) [2010] NSWCCA 163 as follows:

On 29 November 2007, the applicant made his first application under s 78 of the CAR Act for an inquiry into his conviction (the first s 78 application).

On 2 February 2009 Barr J determined the first s 78 application and referred it under s 79(1)(b) to the Court of Criminal Appeal comprising Tobias JA, Johnson and Rothman JJ, as if it were an appeal under the Criminal Appeal Act 1912 (NSW). The basis for his Honour’s referral of the matter 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. It is convenient to reproduce this evidence from the Court’s judgment (at [57]), which was contained in an affidavit tendered by the applicant sworn on 13 October 2006:

It was also alleged that E had made a similar statement to the applicant’s sister, JC, and to a former friend of ER. In an affidavit sworn on 12 April 2007 JC recounted a conversation she observed E have with ER on the telephone (reproduced at [60] of the CCA judgment):

E was interviewed by police on 21 June 2007. She denied lying in court about her father and addressed a number of questions asked by the interviewer about her visit to gaol in 2005 (reproduced at [76] of the CCA judgment):

Both E and ER gave evidence at the hearing before the CCA. E was asked to reread her record of interview with the police about which the Court made the following observations:

E was asked in cross-examination about her police interview where she discussed visiting her father in gaol in April 2005. The CCA reproduced at [83] the following exchange between counsel and E:

In the CCA, E eventually recanted the evidence she gave at trial about hearing or seeing anything, in particular evidence that:

E also 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.

ER gave evidence before the CCA 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 police statement or having discussed its contents with her.

On 5 August 2010, the CCA dismissed the appeal following the first s 78 application: GAR v R (No 1) [2010] NSWCCA 163. The CCA rejected the evidence of E described above and accepted the evidence of ER.

The Court made the following observations about the evidence of E and ER at [151]:

On 2 March 2014, the applicant made a further application under s 78 of the CAR Act for an inquiry into his conviction (the second s 78 application).

The second s 78 application was based on the following evidence:

Adamson J considered the second s 78 application. Her Honour held that the evidence of RM did not give rise to any doubt or question about the applicant’s guilt. While her Honour accepted that RM’s affidavit evidence demonstrated a lack of evidence of consistency of complaint, she rejected its ability to affect ER’s credibility since the contents of her conversation with RM that morning were not explored at trial. Her Honour rejected the applicant’s submission that RM’s evidence bolstered ER’s credibility on the Review Appeal, observing that the Court on the Review Appeal had excluded ER’s evidence about RM from its consideration.

In relation to Dr Sterrett’s report, the applicant contended that the medical evidence did not corroborate the entirety of ER’s evidence, in particular, her evidence that the applicant scratched her face. Adamson J rejected this submission. Her Honour observed that the point had not been overlooked at trial as applicant’s counsel had used Dr Sterrett’s report to cross-examine ER about her injuries and had addressed the jury about its absence of reference to facial scratches.

On 4 December 2014, Adamson J dismissed the second s 78 application: GAR v Attorney General for the State of New South Wales [2014] NSWSC 1734.

On 2 March 2016, the applicant made a further application under s 78 of the CAR Act for an inquiry into his conviction (the third s 78 application).

The third s 78 application was based on written statements apparently made by ER and E. Those statements, in full, provided as follows:

On the back of that statement the following appears in handwriting:

There was no evidence in the Court below and on appeal as to how these statements came into being. On the face of the statements, they were provided under the apparent “inducement” that the evidence would not be used to prosecute E or ER for any offence. There was no evidence about who, if anybody, provided this “inducement”. It should be noted that during the hearing in this Court, the applicant stated that he was in possession of further information about the making of these statements:

The Crown sought to investigate the origin 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 Solicitor’s Office arranged for a private investigator to interview the Justice of the Peace, Mr West, to ask whether he witnessed the signatures of E and ER on the typewritten document. Mr West signed a statement dated 15 June 2016 which the Crown attached to its submissions.

Mr West’s statement provides as follows:

This leaves unresolved the questions of who provided the apparent inducement, under what circumstances it was given and how the handwritten statement came to be on the back of the final document.

The primary judge considered the further evidence and the extent to which it was inconsistent with the evidence of E and ER at trial and the Review Panel. Her Honour was satisfied that the question of whether E and ER were telling the truth had already been investigated at both the trial and by the CCA as a result of the first s 78 application. The primary judge observed that merely to recant evidence given at trial or on appeal, does not necessarily create a doubt about the offender’s guilt. Her Honour went on to state at [44]-[45]:

The primary judge concluded that she was not satisfied that there was a doubt or question as to the applicant’s guilt, or any doubt or question about the evidence of E or ER at trial. The primary judge dismissed the third s 78 application.

The applicant, in his further amended summons, advanced six overlapping grounds of appeal, which can be summarised as follows:

Section 78 of the CAR Act provides for applications for an inquiry into a conviction or sentence to be made to the Supreme Court by a convicted person or by another person on behalf of the convicted person.

Section 79 relevantly provides:

Under s 79(1) the Court may either direct an inquiry by a judicial officer or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal. This power is only enlivened 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”: s 79(2).

In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [65] Basten JA, with whom Bathurst CJ, Beazley P, Price and Beech-Jones JJ relevantly agreed, said that use of language drawn from earlier cases seeking to explain the “doubt or question” required in terms of an “unease or a sense of disquiet…” about the convicted person’s guilt, any mitigating circumstances in the case or any part of the evidence in the case was to be deprecated:

In Sinkovich, Basten JA, after tracing the history, operation and development of Part 7 of the CAR Act and its predecessor, s 383 of the Criminal Law Amendment Act 1883 (NSW), which pre-dated by almost three decades the first general right of appeal in criminal cases in the State, said at [52] and [53]:

The following observations may be made about the test required by s 79(2) of the CAR Act. First, that test is not a demanding one. I agree with Basten JA that the task is to be approached with a view to the overriding purpose of providing a means to address doubts as to compliance with the principle that liberty should only be infringed upon the commission of a criminal offence if commission of the offence has been established beyond reasonable doubt.

Secondly, the “doubt” or “question” the Supreme Court must harbour is one that applies to the finding of the applicant’s guilt, as to any mitigating circumstances in the case or to any part of the evidence in the case. The breadth of those matters, where a “doubt” or “question” which enlivens the powers in s 79(1) may arise, tends to highlight the fact that no limitations should readily be implied into the statutory test.

Thirdly, the fact that the gatekeeper to either of the inquires provided for by s 79 is the Supreme Court itself emphasises the importance of the role and ensures, as Basten JA explained at [53] in Sinkovich, that it is exercised “responsibly and, no doubt, sparingly”. Some matters relevant to the exercise of that gatekeeper role are identified in s 79(3) in the breadth of the considerations which may properly lead the Supreme Court to refuse to consider or otherwise deal with an application. Section 79(3)(b), in allowing for cases where the Supreme Court is “not satisfied that there are special facts or special circumstances that justify the taking of further action”, throws further light on the breadth of the matters which may be taken into account in exercising this gatekeeper role.

The determination of an application under s 78 of the CAR Act is administrative in nature and is open to review for jurisdictional error. In Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343 Basten JA (Bathurst CJ and Beazley P agreeing) stated at [22]-[24]:

In Sinkovich, Basten JA (at [26]-[27]) made the following observations about the scope of the inquiry in forming the requisite state of mind, that being a “doubt or question”:

More recently in Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221, Beazley P and Leeming JA stated at [4]:

In Buttrose at [16]-[17] their Honour’s said:

These grounds address the applicant’s complaint that the primary judge fell into error by identifying “possibilities” and by making findings about where the truth may lie. It was submitted that the primary judge made arbitrarily constructed findings of fact in relation to where the truth may lie, and as a result misapprehended her function under Pt 7 of the CAR Act and thus fell into jurisdictional error. As noted at the outset, the applicant did not press any complaint of error of law on the face of the record and it is thus unnecessary to consider whether the primary judge exercising an administrative function constitutes a “court or tribunal” within the meaning of s 69(4) of the Supreme Court Act 1970 (NSW).

In support of these submissions, the applicant directed the Court to statements made by the primary judge at [44], which I will set out in full:

The applicant submitted that the primary judge fell into jurisdictional error by making findings as to why E and ER were motivated to recant the evidence they gave at trial. The applicant submitted that there was no evidence to support the primary judge’s findings. The applicant also submitted that in paragraph [44] her Honour was attempting to “explain away” the 2015 statements made by ER and E.

In support of his submissions under these grounds, the applicant relied upon the decision in Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 where the High Court held (at [23]) that it was not the role of the Court of Criminal Appeal to:

The Court will interfere with an administrative decision if that decision is one that could not reasonably have been reached. As explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 at 432:

The circumstances in which a court will interfere with an administrative decision were explained in Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 where Gibbs J made the following observations at 118:

Gibbs J highlighted the potential difficulty posed in cases where the administrative decision maker was required to be satisfied of a particular matter as a matter of opinion at 118-119:

If an administrative decision maker fails to consider the substance of an applicant’s case, there will be a constructive failure to exercise jurisdiction. Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81], after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, said:

In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at 626 Gleeson CJ and McHugh J warned against equating a subjectively strong sense of disagreement with error:

The unreasonableness ground of judicial review is no longer limited to what is in effect an irrational, if not bizarre decision – which is to say one that no reasonable person could have arrived at it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68] per Hayne, Kiefel and Bell JJ.

In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) it is suggested (at [6.450]), in my view correctly, that Li “invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge’s subjective sense of reasonableness”.

The relevant inquiry for present purposes is whether the primary judge’s opinion, that the fresh evidence of E and ER did not give rise to a “doubt or question as to the applicant’s guilt … or as to any part of the evidence in the case”, was formed according to law. That inquiry has five parts: first, whether the primary judge directed herself to ask the appropriate question required by s 79(2) of the CAR Act; secondly, whether the primary judge constructively failed to exercise jurisdiction by failing to consider the substance of an applicant’s case; thirdly, whether the primary judge took into account legally irrelevant matters under s 79(2); fourthly, whether the primary judge’s decision in dismissing the application was one that was reasonably open to her; and fifthly, whether the primary judge’s decision was one for which there was no evidence.

As to the first question, in the present case the primary judge was aware of the nature of the power she was exercising under Pt 7 of the CAR Act. Her Honour set out s 79 of the CAR Act in full, which sets out the relevant test for the consideration of applications made pursuant to s 78. The primary judge applied the test in s 79(2), that being when it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case, she could direct that an inquiry be conducted or refer the whole case to the Court of Criminal Appeal. Her Honour recited as much in her written reasons in reciting the correct test (paragraphs [31] and [32]), addressing the evidence and the parties’ submissions (paragraphs [34]-[40]), identifying what was new in the material relied upon (paragraph [43]), addressing the credibility of the new evidence (paragraphs [44]-[45]) and concluding, in terms, that “it did not appear [to her Honour] that there was a doubt or question as to the applicant’s guilt, or any doubt as to the evidence of E and ER in the trial”(paragraph [46]).

The primary judge did not misapprehend the nature of the power conferred by s 79. Her Honour was well aware that she needed to satisfy herself as to the existence of a doubt or question as to the applicant’s guilt or as to any part of the evidence in the case. The primary judge understood the correct question to be addressed and gave consideration to that question. Her Honour, having set out the evidence and her findings on that evidence did not form the requisite state of satisfaction required by s 79(2). The primary judge unequivocally concluded at [46]:

As to the second question, the primary judge did not constructively fail to exercise jurisdiction by failing to consider the substance of the applicant’s case. As I have set out above at [156]-[157], the primary judge addressed the question in terms about whether a doubt or question existed as to the evidence in the case, and identified her Honour’s reasons for failing to be satisfied that there was a doubt or question about the evidence in the case. The applicant’s real complaint is that no reasonable decision maker could have come to the conclusion that was reached by the primary judge about the evidence in the case, based on the fresh material. I will address that submission below.

As to the third question, whether the primary judge took into account irrelevant considerations, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mason J explained at 40:

In my view there is no implication to be found in the subject matter, scope and purpose of the CAR Act to the effect that the primary judge was not permitted to have regard to the factors identified in paragraph [44] of her Honour’s decision in determining whether she was satisfied about the existence of a relevant doubt or question about the applicant’s guilt or any part of the evidence. In particular, the following were not irrelevant considerations in the determination of the relevant state of satisfaction:

The primary judge did not err, as was alleged, in taking into account irrelevant considerations being mere “possibilities”. What her Honour did was address the credibility of the typewritten statements. That was a matter open to her Honour in deciding whether she was satisfied that a relevant doubt or question arose.

As to the fourth question, whilst Li makes clear that the unreasonableness ground is no longer limited to a decision that no reasonable person could have arrived at, Li does not go so far as to permit this Court to substitute its subjective sense of reasonableness for that of the decision maker.

As I have earlier explained, the primary judge directed herself to the contents of the statements given by E and ER, and made a number of observations, including:

So far as E’s statement is concerned, it is true that the allegation E made that ER asked her falsely to corroborate ER’s evidence that she had called out “‘Please don’t [GAR], please don’t,’ or similar” went further than E’s evidence before the Court of Criminal Appeal following the first s 78 application. The primary judge was aware of those differences but concluded that the evidence was substantially similar to that earlier given by E in that it supported the applicant’s innocence and was inconsistent with E’s evidence at the trial (at [41]). The primary judge concluded, at [42], that the Court of Criminal Appeal in the hearing following the first s 78 application heard and saw E’s evidence and found “she was not to be believed because she was prepared to say anything that would advance the applicant’s position”. It may be accepted that E’s statement for the first time actively asserted that she was asked by ER to lie at GAR’s trial. It is also correct, however, that E had earlier given evidence in the Court of Criminal Appeal that she had lied at GAR’s trial, that ER knew at the time of the trial that E was lying and that ER, by her conduct, had pressured E to lie at GAR’s trial.

After a thorough investigation by the Court of Criminal Appeal of substantially similar allegations made by E, that Court had concluded that E was prepared to say anything to advance GAR’s position. In those circumstances, the primary judge’s conclusion taking into account the decision of the Court of Criminal Appeal and rejecting E’s statement as appearing to give rise to any relevant doubt or question was not legally unreasonable.

ER’s typewritten statement poses a more difficult issue. Whilst there was some attraction in the view urged by counsel for the Attorney General before the primary judge that ER’s statement gave rise to a doubt or question about her evidence at the trial, the primary judge’s determination that it did not appear to her Honour that there was such a doubt or question about the applicant’s guilt or any part of the evidence was not legally unreasonable. That is, the primary judge’s decision did not lack “an evident and intelligible justification”: Li at [76] per Hayne, Kiefel and Bell JJ.

The important aspect of ER’s typewritten statement was that she said that E’s statement that she had asked E “to falsely corroborate her evidence that she had called out ‘Please don’t [GAR], please don’t,’ or similar” is “TRUE”.

In my view the primary judge provided an evident and intelligible justification for her conclusion that this evidence did not satisfy her that there was a doubt or question about the applicant’s guilt or any part of the evidence. In particular, the primary judge reasoned:

The question is not whether I would have reached the same conclusion as the primary judge about the existence of a doubt or question or whether I disagree, even strongly, with her Honour’s process of reasoning about an issue of fact. The primary judge’s decision contained a justification which I regard as both “evident” and “intelligible”. The primary judge’s decision was not for this reason unreasonable and she did not fall into jurisdictional error.

As to the fifth question, the allegation that there was “no evidence” for the primary judge’s conclusion, the allegation effectively repeats earlier submissions concerning taking into account irrelevant considerations. It is of course correct that a finding of ultimate fact or the drawing of inferences from intermediate facts for which there is no evidence is an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32. In the present case, however, the conclusion reached by the primary judge about the existence of a doubt or question was based on the evidence before the Court. The matters about which there was allegedly “no evidence” were those matters her Honour addressed in deciding whether she was satisfied that the written statements were credible. Her Honour reached no conclusions about those matters, save that she was not persuaded that the statements were sufficiently credible to satisfy her about a question or doubt.

The passage relied upon by the applicant from Mallard provides no assistance in resolving the present question. In that case the High Court was addressing the nature and scope of the Court of Criminal Appeal’s appellate function. The decision of the primary judge was addressing a quite different administrative function.

Further, the applicant’s reliance on M v R (1994) 181 CLR 487; [1994] HCA 63 in his written submissions is also inappropriate. The High Court in that case addressed the test to be applied by an appellate court when a verdict of guilty is said to be unreasonable or not supported by the evidence.

For the foregoing reasons, I would dismiss grounds 1 and 3 of this application.

The applicant submitted that the primary judge failed to consider the most favourable view a jury might take about the fresh evidence.

The critical question in forming the view required by s 79 of the CAR Act was identified in Sinkovich at [26]:

The primary judge did not approach the task set by s 79(2) as requiring her to posit the most favourable view a jury might take towards the fresh evidence, assuming following an inquiry or appeal under s 79(1) of the CAR Act a new trial were ordered.

The primary judge here addressed the correct state of satisfaction required by s 79(2). Her Honour was not required by s 79 (or otherwise) to adopt the most favourable view a jury might take of the statements of E and ER in addressing her own state of satisfaction as to the existence of a doubt or question.

Whilst I do not suggest that her Honour acted to reject this application under s 79(3), the matters referred to in s 79(3) and in particular s 79(3)(b) make clear that her Honour was entitled to form a view about the credibility of the evidence the subject of the s 78 application. Section 79(3)(b) permits the Supreme Court to decline to act when it is “not satisfied that there are special facts or special circumstances that justify the taking of further action”. That statutory language emphasises the breadth of the matters the Supreme Court may take into account in considering whether it appears that there is a doubt or question about any of the matters identified in s 79(2).

Assuming, in the applicant’s favour, that ground 2 raises an alleged jurisdictional error, being a failure to identify and adopt the correct construction of the task required by the s 79(2), the primary judge did not fall into jurisdictional error. She was required to decide whether she was satisfied of the existence of a relevant doubt or question. In addressing that question her Honour was not required to adopt the most favourable view a jury might take of the statements of E and ER. I would reject ground 2.

The applicant submitted that the primary judge erred in finding that:

The primary judge referred to the evidence supporting the application at [34]:

Ms J Davidson, counsel for the Attorney General on the appeal, accepted that the primary judge made an error in referring to the handwritten statement as being dated “2.10.15”. Her Honour did so by mistaking the second digit in the month as a “0” instead of a “2”. The applicant and the respondent agreed that all three statements were dated 2 December 2015. So much appears to me, having now examined the original documents, to be correct. It is also the case that Mr West’s signature does not appear on that part of the original document where the handwritten statement is found. Presumably Mr West’s signature was on the copy of the handwritten statement provided to the primary judge as part of the Crown Solicitor’s inquiry referred to at [126] above.

The applicant’s written submissions explained that the original versions of the statements comprised of one (double-sided) document with the typewriting on the front and the handwritten statement on the back. The respondent informed the Court that the Crown Solicitor was not capable of receiving double-sided faxes. It is likely that the presentation of the statements to the primary judge as two separate documents contributed to what the Crown Solicitor accepts was a factual error by the primary judge regarding the dates.

The primary judge understood that the handwritten statement was superseded by the typewritten statements. This was an error of fact. Her Honour did not, however, thereby fall into jurisdictional error.

The error made by her Honour was favourable to the applicant. It appeared to her Honour that the typewritten statement had been made two months after the handwritten statement, although her Honour recognised that the inconsistency between the typewritten statements and the handwritten statement was only indirect. It appears to be the case, having examined the original document and having regard to Mr West’s evidence that he does not recall ever having seen the handwritten statement, that the handwritten statement was made on the back of the typewritten statements sometime later the same day 2 December 2015.

The error of fact made by the primary judge did not adversely affect the applicant’s case. The primary judge did not by reason of that error fail to address any substantial argument made by the applicant.

I would dismiss grounds 4 and 5.

Ground 6 concerned ER’s evidence at trial of face scratches which the applicant alleged was fabricated in light of the missing page of Dr Sterrett’s report.

As counsel for the respondent correctly pointed out, this evidence was explored in the second s 78 application before Adamson J in 2014. The primary judge concluded that the evidence on the third s 78 application did not give rise to a doubt or question as to any part of the evidence given at trial and such determination was final.

The evidence was already dealt with in a previous application and was not readdressed by her Honour in the third s 78 application. There was no jurisdictional error demonstrated. If her Honour had found a doubt or question about ER’s evidence it may have followed that a similar doubt would have arisen about the evidence of scratches on her face. Her Honour found no such doubt or question.

I would dismiss ground 6 of the application.

Since preparing my draft reasons I have had the opportunity to consider the draft reasons prepared by Simpson JA. The declaration proposed by Simpson JA would have the effect that a Supreme Court judge must again consider the present application made by GAR. My conclusion that the application be dismissed would not prevent the applicant from bringing a further application although, as Basten JA explained in Sinkovich at [66]:

Whether the applicant has further information sufficient to support a subsequent application is not a matter which can be determined here. That will be a matter for a Supreme Court judge considering any further application.

For the foregoing reasons I propose the following orders: