Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001

The applicant was arrested and charged on 21 September 2001 in respect of events that took place in Goulburn on 19 July 2001. Between 13 and 21 May 2002, the applicant stood trial before Shadbolt DCJ and a jury on an indictment containing five counts. The first was a charge of aggravated sexual intercourse without consent, the aggravation being the infliction of actual bodily harm. The second and third counts were of attempted sexual intercourse without consent, and the fourth and fifth counts were of assault with acts of indecency. All of the offences were said to have been committed as part of a single, continuing course of conduct during the evening of 19 July 2001.

The facts are conveniently summarised in the judgment of the Court Of Criminal Appeal (R v Holland [2002] NSWCCA 469) as follows:

The jury found the applicant guilty on the first and second counts, and not guilty on the remaining three counts. The applicant was represented by counsel at the trial.

On 27 June 2002 the applicant was sentenced on the first count to imprisonment for four years commencing 21 May 2002 and expiring 20 May 2006 with a non-parole period of eighteen months expiring 20 November 2003. On the second count he was sentenced to imprisonment for two years with a non-parole period of one year. That sentence also commenced on 21 May 2002 and was to be served concurrently with the sentence for count 1.

On 27 November 2002 the Court of Criminal Appeal (Simpson J, Carruthers & Mathews AJJ) dismissed an appeal against conviction. The applicant was represented by counsel on the appeal.

Five of six grounds of appeal were argued. Four of the grounds complained of inadequate and erroneous directions and instructions to the jury, and one ground alleged that the verdicts on counts 1 and 2 were unreasonable by reason of inconsistency with the verdicts on counts 3, 4 and 5. There was no ground of appeal that the verdicts in relation to counts 1 and 2 were themselves unreasonable.

No application was made to the High Court for special leave to appeal.

On 28 May 2006 the applicant applied pursuant to Part 13A of the Crimes Act 1900 (NSW) for an enquiry into his convictions. On 23 February 2007, the provisions contained in Part 13A (ss.474B-474N) Crimes Act 1900 were repealed and re-enacted as Part 7 (ss.76-88) Crimes (Appeal and Review) Act 2001 (“CARA”). 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 of CARA: cl.13, Schedule 1 of CARA.

The application was determined by Johnson J under s 78, (contained within Part 7) of the CARA, and the application was refused: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251.

On 21 July 2016 the applicant lodged a second application under s 78. That application was determined by Fagan J who determined pursuant to s 79(3) of the CARA that he refused to consider or otherwise deal with the application: Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2017] NSWSC 462.

On 17 May 2020, the applicant made a further application under s 78 of the Act. This judgment concerns that application.

Sections 78 and 79 of the CARA provide as follows:

In Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 I said:

Since the present application is the third such application under s 78 of the Act, the issues raised by s 79(3) arise for consideration. In addition, the question of the extent of reasons required for a determination of the present application acquires some significance.

In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001, Johnson J said this in relation to reasons for determining s 78 applications:

In Clark v Attorney General of New South Wales [2020] NSWCA 70 Basten JA said this concerning s 79(3):

Justice McCallum (with whom Macfarlan JA agreed) said:

Clark v Attorney General of New South Wales was an application for prerogative relief in relation to a determination by a judge at first instance of an application under s 78. The Court of Appeal made clear that such a determination is reviewable for jurisdictional error (at [12] and [36]). In circumstances where a decision is reviewable for jurisdictional error, it seems to me that it is necessary for the decision maker to provide at least sufficient reasons so that a court reviewing the determination is able to determine whether the decision maker has acted within jurisdiction. That may mean that what was said by Grove J in Application of Kalajzich, 18 September 1992, BC9201597, (referred to by Johnson J in Holland) requires modification.

Nevertheless, the circumstances of a particular application may mean that only brief reasons need to be given, particularly where the material put forward in a subsequent application is repetitive of material considered in earlier applications.

In Milat, Ivan Robert Marko - Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209, Johnson J was dealing with a sixth application under s 78. The applicant had unsuccessfully appealed to the Court of Criminal Appeal and had been refused special leave to appeal to the High Court. All of the earlier s 78 applications had been unsuccessful. In those circumstances, Johnson J determined that he should refuse to consider or otherwise deal with the application, merely by accepting brief submissions from the Crown that the application was repetitive of matters put forward on earlier applications. In my opinion, the brevity of those reasons was such that, if the Court of Appeal was called upon to consider whether Johnson J had acted within jurisdiction, the reasons would have been adequate for it to do so.

The applicant’s first set of submissions run to 151 pages. He then lodged what was said to be an addition to his application consisting of 31 pages on 22 May 2020. On 4 June 2020 he filed a document headed “Addendum to application” consisting of 21 pages, and on 17 June 2020 he filed further additional submissions of 43 pages in length. He also lodged and sought to rely on:

Finally, and in response to the Crown’s submissions he lodged further submissions totalling 46 pages. Those submissions did not on their face appear to be a reply to the Crown submissions but rather, further submissions along similar lines to the earlier ones lodged. Subsequently, on 1 October 2020, the applicant lodged a further 11 pages of submissions dealing with one matter that was said to point to jurisdictional error on the part of Fagan J.

At some point, it is not clear when, the applicant lodged an affidavit on 28 June 2018 sworn by him which said that he wished to have certain matters placed into his application in relation to Court proceedings numbered 2018/97693. The present file proceedings are numbered 2020/00147569, on the basis that the application was first made in May 2020. Nevertheless, I have had regard to the affidavit of 28 June 2018.

The applicant’s submissions focus in particular on two matters which are interrelated. The first is the complainant’s credibility, and the second is the matter of whether the injuries reported by her and seen by Dr Harmon could have been caused by the applicant in the course of committing the offences in respect of which he was convicted.

In focusing on those two matters, the approach of the applicant throughout his submissions has been to critique what both Johnson J and Fagan J did in the reports they prepared.

In his judgment, Fagan J said at [75]:

That statement by Fagan J finds support in the judgment of Wilson J in Further application of Henry Edgar Des Rosiers pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 365 at [43], where her Honour observed that a second application under s 78 in not a proper means of exposing error in an earlier application.

Notwithstanding that statement by Fagan J, the applicant’s present submissions are almost entirely taken up with criticisms of the approach taken by both Johnson J and Fagan J, by asserting that they have constructed hypotheses about the events of the night in question which cannot be sustained.

The failure of the applicant to take on board what Fagan J said, and in particular what it was necessary for him to do under the legislation, suggests that he is either unable or unwilling to address himself to what needs to be shown, to result in the Court dealing with the matter in the first place (s 79(3)), or thereafter either directing an enquiry under s 79(1)(a) or referring the case to the Court of Criminal Appeal under s 79(1)(b).

The two issues concerning the complainant’s credibility generally and her injuries dealt with in the applicant’s present submissions were dealt with at length by Johnson J in his judgment at [51]-[69] and in Fagan J’s judgment at [39]-60].

Apart from seeking to challenge the approach of both Johnson J and Fagan J to this evidence, the applicant merely argues, in a highly repetitive fashion, for his analysis of the same evidence which was before the jury, the Court of Criminal Appeal and both Johnson J and Fagan J. Some of his criticisms, particularly in his reply submissions of 29 September 2020, and his further submissions of 1 October 2020, approach the matter as if the present application was an application for judicial review of the judgments of Johnson J and Fagan J, asserting, for example, that they fell into jurisdictional error or that they erred on the face of the record. Those submissions also argue on the basis that the jury’s verdict was an unreasonable one, and that it must have entertained a doubt about the applicant’s guilt.

The enquiry under s 79 is not concerned with unreasonable verdicts, nor with what the jury might or should have done. The enquiry on the present application is whether “it appears that there is a doubt or question as to the convicted person’s guilt”. That is directed to a doubt or question which I consider appears from the evidence and any additional material put forward.

With two possible exceptions, all of the matters now raised have previously been dealt with under Pt 7 of the Act on two previous occasions. That is so, notwithstanding Fagan J’s final conclusion that, pursuant to s 79(3), he refused to consider or otherwise deal with the application. There is no inconsistency in a conclusion that the matter has been previously dealt with under this Part by Fagan J when regard is had to what Basten JA said in Clark, that extensive reasons may be necessary for dismissing an application under s 79(3), because there is an absence of a clear statement of a power to make an order for summary dismissal. However the matter is characterised, having regard to the unusual terminology in s 79(3) (as to which, see Basten JA in Clark at [6]), Fagan J examined all of the material put forward by the applicant, before reaching his conclusion.

I will now say something about the two arguably new matters raised by the applicant on the present application. They are “arguably new” only because the information touching those matters post-date the last application under s 78.

The first of these is the affidavit by the applicant sworn 28 June 2018. The affidavit annexes what is said to be the applicant’s recollection of a telephone conversation he had with Sergeant Cameron Bellis on 7 June 2018, together with an email chain between the applicant and Sergeant Bellis.

In his application dealt with by Johnson J, the applicant provided a statement by Sergeant Bellis dated 30 June 2007, which was a response to questions posed to him by the applicant. Sergeant Bellis was a witness at the trial. He was at the nightclub and saw the complainant very soon after the events that formed the basis of the applicant’s conviction. He also spent time with the complainant that evening and suggested to her that the matter should be reported to the police station.

That statement and the submissions made by the applicant to Johnson J, were dealt with by Johnson J as follows:

The applicant raised the issue again in his application dealt with by Fagan J, who said this about it:

The applicant says in the affidavit that he and Sergeant Bellis spoke for nearly two hours. It is not without significance that the applicant said:

What the applicant summarises Sergeant Bellis as saying was that there was nothing physically wrong with the complainant on the night concerned, that she was able to move in a normal fashion, and that she was laughing and dancing without any indication of pain or injury.

The other information said to have been provided by Sergeant Bellis concerned the nature of the relationship between the complainant and Matthew Ellis, another witness at the trial.

The applicant’s affidavit also annexes a series of emails which shows that Sergeant Bellis has been prevented from providing a further statement or information to the applicant unless a subpoena is served upon him.

There is nothing in the further hearsay material from Sergeant Bellis that is substantially different, or different at all, from what was considered by Johnson J and Fagan J. Sergeant Bellis gave his evidence at the trial and, as Johnson J said, “It was and remains potent evidence against the Applicant”, and Sergeant Bellis has not withdrawn that testimony.

Similarly, the issue about the complainant’s relationship with Matthew Ellis has also been dealt with. Even if accepted in its entirety, there is nothing in it that gives rise to any doubt or question about the applicant’s guilt. The material from Sergeant Bellis is simply a reiteration of issues that were dealt with in the Court of Criminal Appeal and on both the previous s 78 applications.

The other arguably new material appears in paragraph 297 of the applicant’s submission of 17 May 2020. This concerns the further contact the applicant has made with Dr Morris Odell, after Johnson J’s judgment, relating to the injuries sustained by the complainant at the time of the assault.

In his application to Johnson J, the applicant provided a number of medical reports from three doctors, Dr Parker-Newlyn, Dr Reid and Dr Odell. Dr Parker-Newlyn had been the applicant’s general practitioner since October 2001 and had known him through his partner prior to that time. She was not called to give evidence at the trial.

The thrust of the medical evidence given by the three doctors concerned whether the injuries complained of by the complainant could have been seen by her on the night in question in the circumstances described by her, and whether they were likely to have been caused in the assault as she described it. The evidence also went to a comparison of her injuries with what was said to be her behaviour after the alleged assault.

Associated with that evidence was material from a person described as a forensic scientist, Mr Brent Turvey, who raised a number of issues in relation to the injuries and the sexual assaults alleged.

Justice Johnson dealt with Mr Turvey’s evidence at [35]-[40]. His Honour dealt with the evidence concerning the injuries and the further medical reports extensively at [51]-[69].

The further evidence in the applicant’s present submission is this:

It will be noted again that the purpose of this evidence is to assert that Johnson J and Fagan J were wrong in the conclusions they reached.

Whist genital herpes, a herpetic ulcer, Candida, bacterial infections, contact allergy or dermatitis from clothing were not raised in Dr Odell’s earlier report dealt with by Johnson J, no possible weight can be given to Dr Odell’s response in answer to the applicant’s recent enquiry. What is clearly being put forward is a series of possibilities in circumstances where Dr Odell never examined the complainant. Indeed the fact that so many possibilities are raised by Dr Odell points to the weakness and unreliability of what the applicant seeks to obtain from the enquiry he made.

There is nothing in the affidavit of the applicant, nor in the further comments of Dr Odell, that appears to raise any question as to the applicant’s guilt. There is nothing in the material that constitutes special facts or special circumstances.

In my opinion, apart from the matter set out at [50] above, all of the matters raised by the applicant have been previously dealt with under earlier applications under this Part of the Act. The hearsay material from Dr Odell (at [50] above) has no weight whatsoever. I am not satisfied that there are special facts or special circumstances that justify the taking of further action.

In those circumstances I refuse to consider or otherwise deal with the application.