Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1)

1. [1]

   Roger David Cheney (the applicant) applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for an inquiry into his conviction in relation to 13 offences including kidnapping and aggravated sexual assault. The convictions have been subject to previous appeals, applications for review and claims for executive clemency.

2. [2]

   The offences were summarised by Shaw J in R v Cheney [2004] NSWSC 104 at [4]:

3. [3]

   In R v Cheney [1999] NSWCCA 312, Newman J summarised the allegations and the prosecution case as follows (at [8]-[27]):

4. [4]

   Because of the multiplicity of offences in this and an earlier trial for separate offences (as to which see below and see Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293 (‘Cheney No 2’)) as well as the imprecision and complexity of the documentation and slight variations made in an earlier appeal, the precise sentence and custodial situation of the applicant is a little difficult to unravel. By email dated 2 December 2014, the Crown Solicitor’s office informed me that:

HISTORY OF THE MATTER

1. [5]

   The applicant was convicted by a jury in the District Court sitting at Coffs Harbour on 8 June 1995 and was sentenced by Kirkham DCJ on 22 June 1995.

2. [6]

   On 15 September 1999 the Court of Criminal Appeal heard the applicant’s appeal against conviction and sentence. Except to the extent that the Crown conceded that count 4 disclosed an offence unknown to the law, the appeal against conviction was dismissed. The appeal against sentence was allowed and the applicant was re-sentenced in relation to count 8, the charge of kidnapping (R v Cheney [1999] NSWCCA 312). An application for special leave to appeal to the High Court was dismissed: Cheney v The Queen [2001] HCA Trans 649 (Gleeson CJ and Callinan J).

3. [7]

   In 2003 Mr Cheney made an application under Part 13A of the Crimes Act 1900 (NSW) seeking an inquiry into his convictions. Part 13A is the predecessor to s 78, which is the section that the present application is to be considered under. That application sought a review of the conviction on the following grounds (as summarised by the Crown ):

4. [8]

   In dealing with that application, Shaw J said in R v Cheney [2004] NSWSC 104 at [26]:

5. [9]

   On 10 March 2004 Shaw J declined to direct that an inquiry be conducted noting at [9]:

6. [10]

   The applicant submitted a further Petition dated 12 January 2006 challenging those findings. He sought to rely on (what was said to be) additional material to challenge his conviction. According to the Attorney General’s submissions in 2007, this petition was unsuccessful. In view of the fact that the present application was made the following year, that must be correct.

7. [11]

   On 27 October 2006 the applicant forwarded a bundle of material to the Attorney General of New South Wales. This purported to be, or was treated as, an application for the exercise of the Royal Prerogative of Mercy by the Governor. This application was also unsuccessful.

8. [12]

   Although the current application was initiated on 12 July 2007, the applicant’s final “submissions in reply” were not provided to the Court until 19 December 2014. In the intervening years, there have been a number of letters and memoranda sent to the Court in support of the application. The submissions in reply included a series of accusations of misconduct by various investigators, prosecutors and other officials and included a large number of attachments in relation to which there was no real underlying unity.

9. [13]

   The applicant is self-represented in the application and supporting submissions are made in a series of hand written letters to the Court and the Crown Solicitors Office dated from 2007-2014. Whilst it is understood that the applicant has limited resources, there have been three separate periods of well over a year in which no action was taken to advance the application. This should be noted in light of the fact that there otherwise would appear to have been an inordinate delay between the date when the application was first lodged and the date of disposition.

SENTENCE IMPOSED

1. [14]

   As I have said, there is some confusion in the documentation as to the applicant’s sentence and release date. In the 1999 appeal, the conviction on count 4 was quashed, the appeal against sentence was allowed and the Court resentenced the applicant as follows (R v Cheney [1999] NSWCCA 312 at [91]):

STATUTORY FRAMEWORK FOR APPLICATIONS UNDER S 78 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001 (NSW)

1. [15]

   The current application was lodged in July 2007 and filed pursuant to Part 13A (ss 474B-474N) of the Crimes Act 1900 (NSW). These provisions were repealed on 23 February 2007 and re-enacted as Part 7 (ss 76-88) of the Crimes (Appeal and Review) Act 2001. There is no material difference between the provisions in the two statutes: Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 per Johnson J at [2]. An application made under Part 13A before the repeal and transfer of that Part on 23 February 2007 that had not been finally determined under that Part immediately before its repeal, is taken to be an application under the corresponding provision of Part 7 Crimes (Appeal and Review) Act 2001 (NSW): cl.13, Schedule 1, Crimes (Appeal and Review) Act 2001 (NSW). Accordingly, the application is to be determined under ss 78-79 of the Crimes (Appeal and Review) Act 2001 (NSW).

2. [16]

   Sections 78-79 Crimes (Appeal and Review) Act 2001 (NSW) are in the following terms:

3. [17]

   The jurisdiction is of an administrative and discretionary nature: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 (at 48-50); Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251.

4. [18]

   It was said In Varley (at 48) that in deciding to initiate an inquiry:

5. [19]

   This element of doubt was discussed in R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362 at [3] as:

6. [20]

   The test was adopted by Johnson J in Holland at [6]:

7. [21]

   Beech Jones J analysed the development of this test in SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 at [21; 24]:

8. [22]

   Finally, as noted by Johnson J in Holland at [9]:

CONCURRENT APPLICATION

1. [23]

   This is one of two applications under s 78 currently being prosecuted by the applicant. Prior to the applicant’s trial in the District Court sitting in Coffs Harbour, he was tried and convicted by Shillington DCJ in the District Court sitting in Sydney (this trial is referred to in correspondence as the “Strathfield matter”). The application relating to the Strathfield matter concerns a proposed review of convictions for maliciously inflicting actual bodily harm with intent to have sexual intercourse and assaulting a police officer occasioning actual bodily harm.

2. [24]

   For the Strathfield matter, the applicant was sentenced to a minimum term of 4 years and 8 months imprisonment in relation to the first count and term of 1 year imprisonment for the second count: R v Cheney (Court of Criminal Appeal (NSW), 29 April 1998, unrep).

3. [25]

   The Crown summarised the history of that case as follows:

CONSIDERATION

1. [26]

   In assessing the current application, I have taken into account the grounds and material upon which the applicant’s 2006 application relied. These have been summarised by the Crown as;

2. [27]

   As I have said, the applicant’s submissions were receieved by way of a series of letters with attachments over some seven years. I have considered the material provided by the applicant as well as two sets of submissions provided by the Attorney General. The first set of submissions was prepared in November 2007 with a supplementary set prepared in May 2013.

3. [28]

   The applicant argues that he has “fresh evidence” not ruled upon by this Court and that “special facts and circumstances” justify the taking of further action. A substantial amount of documentation was received by the Court on 14 December 2014. The applicant makes a number of references to “fresh evidence” within the 400 or so pages of submissions and extrinsic material provided. One example relates to a police report of 8 December 1993:

4. [29]

   There is no fresh evidence underpinning this assertion. It is an argument that could have been made during the trial or previous appeals and reviews. If such a submission was made, it clearly did not find favour with the tribunals that dealt with the matter in the past.

5. [30]

   I point to the “IAN GETT COUNT 7” submission merely as an example. The submissions in reply are littered with similar assertions. The applicant makes submissions based on inferences he seeks to draw from perceived inconsistencies within police documentation. This evidence is not ‘fresh’. It was available at both the trial and on appeal. Even where there is a new flavour to the submission, it does not elicit a ‘sense on disquiet’ in allowing the conviction to stand. The extensive submissions in reply continue in a similar vein.

6. [31]

   In considering the application, the following observations of Shaw J are pertinent (R v Cheney [2004] NSWSC 104 at [14]):

7. [32]

   I will deal briefly with six of the applicant’s arguments by way of example and to give a flavour of the application and the allegations contained in the documentation:

8. [33]

   The foregoing does not purport to summarise the entirety of the lengthy and discursive submissions and material filed by the applicant over the seven years since he initiated this application. However, it provides some flavour of the content of those submissions. I have considered all of the material in the context of the statutory function that I am required to perform.

CONCLUSION

1. [34]

   This Court may refuse to consider an application for review pursuant to s 79(3) of the Act if it appears the matter:

2. [35]

   Johnson J discussed the history and operation of s 79(3) in Application by Ivan Milat under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 at [14]-[22]. The present application raises no new facts or circumstances to justify action under Part 7. The applicant endeavours to re-agitate matters that were or should have been considered at trial, on appeal to the Court of Criminal Appeal, in the 2003 application or in the two petitions to the Governor. These arguments have been considered and dealt with previously. In some cases, they have been considered on more than one occasion. However, rather than refusing to deal with the matters pursuant to s 79(3) I have considered the merit of the application.

3. [36]

   The material which has been put forward in connection with the present application evokes no sense of disquiet or unease about the efficacy of the convictions. It raises no doubt or question as to the applicant's guilt, any part of the evidence in the case or as to any mitigating circumstance relevant to sentence.

4. [37]

   Putting to one side the question of whether the material is fresh, the material provided does not justify action under s 78 in any event. Considered alongside the evidence upon which the applicant was convicted, the evidence and submissions produced on this application do not elicit the sense of unease described in the authorities as warranting an order that there be another inquiry into the applicant’s convictions.

5. [38]

   The application is dismissed.