Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   By application dated 18 December 2019, a person to whom the pseudonym “AZ” has been given (“the applicant”) applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Review Act”) seeking an inquiry into his conviction in respect of 10 counts of offences against two children.

2. [2]

   On 7 March 2017, the applicant was convicted by a jury on 10 counts of child sexual assault and indecency and was sentenced to an aggregate sentence of 13 years’ imprisonment with a non-parole period of 9 years. The applicant had pleaded not guilty to all of the charges.

3. [3]

   The applicant appealed to the Court of Criminal Appeal. On 14 December 2018, the Court of Criminal Appeal dismissed the appeal by a majority decision. [1]

4. [4]

   On 5 March 2019, the applicant sought special leave to appeal to the High Court.

5. [5]

   On 12 June 2019, the High Court declined to grant special leave to appeal. [2]

6. [6]

   The applicant is not legally represented on this application. That is not unusual in these types of applications.

The nature of the application

1. [7]

   Sections 78 and 79 of the Review Act are in the following terms:

2. [8]

   An application under s 78 does not involve a judicial proceeding: s 79(4). However, the Court may consider any written submissions made by the Crown with respect to an application. Both the applicant and the Crown have made written submissions. The applicant also provided written submissions in response, which were hand written due to the restrictions arising from the current health crisis.

3. [9]

   In determining the application, the Court is exercising an administrative power. [3] It is not hearing an appeal against the applicant’s conviction.

4. [10]

   The legislation is remedial legislation designed to overcome injustices that sometimes arise in the course of the administration of criminal justice. The legislation has a beneficial purpose. [4]

5. [11]

   The scope of the administrative function is determined by the relevant provisions. As set out in s 79(2) of the Review Act, action under s 79(1) (being either to direct that an inquiry be conducted or for the whole case to be referred to the Court of Criminal Appeal) may only be taken 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.

6. [12]

   The applicant requests that the verdicts of the jury be overturned. He does not seek any other action. However, I would have due regard to the fact that he is not legally represented and assume that he seeks an inquiry into his conviction. As he could hardly be seeking that the matter be referred back to the Court of Criminal Appeal, then the only other action that could be taken in response to his application is a direction that an inquiry be conducted.

7. [13]

   Having said that, his seeking that the verdicts be overturned is consistent with the application as a whole in that, as he expressly states, he is echoing the submissions made at trial and then on appeal.

8. [14]

   The principles applicable to the consideration of applications under s 79 were reviewed by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review Act) 2001 [5] (“Holland”) as follows:

9. [15]

   The administrative function exercised under Part 7 of the Review Act is generally exercised when the criminal justice system has run its course following trial and appeal. [6] In most cases, the applicant may seek to rely on additional evidence that has come to light after the trial which might raise a doubt or question as to guilt.

10. [16]

    The process available under s 78 is not intended to be another form of appeal. [7]

11. [17]

    Section 79(3) sets out the circumstances (non-exhaustively) on which the Court may refuse to consider or otherwise deal with an application. It provides a basis for a form of summary dismissal of the application. [8]

12. [18]

    In Clark v Attorney General of New South Wales, the Court observed:

13. [19]

    One basis on which the Court may dispose of the application summarily is:

    1. (1)

       if it appears that the matter has been fully dealt with in the proceedings giving rise to the conviction (or in any proceedings on appeal from the conviction); [10] and

    2. (2)

       the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. [11]

14. [20]

    The discretion to refuse to consider the application is broad. [12]

15. [21]

    The meaning of “special facts or special circumstances” in s 79(3)(b) is not specified or limited but I consider that the emergence of new evidence or new arguments (which have a reasonable foundation) not previously raised might be considered special facts or circumstances.

16. [22]

    I emphasise that the existence of special facts or special circumstances is not a threshold for satisfaction of the matters referred to in s 79(2). It is merely that, if the Court is not satisfied that there are special facts or special circumstances and any of the matters set out in ss 79(3)(a)(i)–(iv) are established, then the Court may deal with the application summarily.

17. [23]

    Dealing with the application summarily means no more than declining to consider or otherwise deal with the application; that is, declining to consider whether 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.

18. [24]

    In my view, the purpose of s 79(3) is to balance the right of a convicted person to pursue an application under s 78 with the need to ensure that such applications are not merely pursued as matter of course, as if it were a further step in the appeal process.

19. [25]

    Having said that, the Court is not compelled to refuse to consider or otherwise deal with the application if any of the matters set out in ss 79(3)(a)(i)–(iv) and (b) apply, but the matters set out in ss 79(3)(a)(i)–(iv) and (b) are matters that the Court would have regard to in determining whether to consider or otherwise deal with the application.

20. [26]

    It follows that, whilst the Court has a general discretion in determining whether to refuse to consider or otherwise deal with the application, the Court would have regard to whether any of the matters set out in ss 79(3)(a)(i)–(iv) arise and then go on to further consider whether there are special facts or special circumstances that justify the taking of further action.

21. [27]

    In this matter, the applicant does not seek to rely on “fresh evidence” or even material that was not before the jury and the Court of Criminal Appeal. Rather, the applicant expressly relies upon the submissions put forward on his behalf to the Court of Criminal Appeal and to the High Court on the special leave application, as well as the notes prepared by the applicant as to the evidence and the alleged irregularities in the trial.

22. [28]

    In particular, the applicant relies on the reasons of White JA in the Court of Criminal Appeal decision relating to a number of counts on which he was convicted by the jury.

23. [29]

    I will now set out the events which lead to the application.

The circumstances of the offending

1. [30]

   Consistent with the pseudonyms adopted by the Court of Criminal Appeal, I will call the first victim “Thomas” and his younger half-brother “Christopher”. Thomas was seven years old and Christopher was four years old at the time of the offending.

2. [31]

   Thomas and Christopher were the children of a person who had become a close friend of the applicant during the four years prior to the offending. The children called the applicant “Uncle”. The applicant often looked after the children whilst their mother was working. They were under his authority when the offences occurred.

3. [32]

   The offending was first subject to mention by Thomas to his mother on 2 March 2015, the day on which Counts 8 to 11 are alleged to have occurred, which was the day of Thomas’s indoor soccer grand final. After the game, the children, their mother, the applicant and another person returned to the children’s home. When the applicant went out to the shops, Thomas said to his mother that he did not want the applicant to come back.

4. [33]

   His mother gave evidence as follows:

5. [34]

   Thomas participated in four recorded interviews.

6. [35]

   The applicant was charged with 11 offences. They are described in the judgment of White JA in the Court of Criminal Appeal as follows:

7. [36]

   The charges against the applicant thus related to his conduct whilst the children were in his care either at the showers of a swimming pool (Counts 1–3), in the bedroom of the children’s mother over the course of one weekend (Counts 4–7) or at Thomas’s home on 2 March 2015 (Counts 8–11).

8. [37]

   They involve complaints of touching, masturbation, sucking and an attempt by the applicant to put his penis into Thomas’s anus.

9. [38]

   The Crown case depended upon Thomas’s evidence. Christopher was not called as a witness. Only Count 2 involved Christopher, who was 4 years old at the time.

10. [39]

    There was no corroboration of Thomas’s complaints. There was no forensic evidence to support or contradict Thomas’s evidence. There is no suggestion that forensic evidence could have been obtained.

11. [40]

    On 7 March 2017, a jury of 10 (2 members having been excused) returned guilty verdicts on Counts 1 to 3 and 5 to 11 and a verdict of not guilty on Count 4.

12. [41]

    The applicant appealed to the NSW Court of Criminal Appeal. The sole ground of appeal was:

13. [42]

    On 14 December 2018, a majority of the Court of Criminal Appeal (Walton and Wilson JJ) granted leave to appeal but dismissed the appeal. White JA, in dissent, would have ordered that the verdicts and convictions on Counts 2, 5, 8, 9, 10 and 11 be set aside and, in lieu thereof, that the applicant be acquitted on those counts.

14. [43]

    His Honour would have ordered that the sentence imposed on the applicant be quashed and the proceedings be remitted to the District Court for the applicant to be re-sentenced on Counts 1, 3, 6 and 7.

15. [44]

    On 11 March 2019, the applicant filed an (amended) application for special leave to appeal to the High Court. The sole proposed ground of appeal was that the majority of the Court of Criminal Appeal erred in failing to hold that the verdicts of the jury in respect of Counts 2 and 5 were unreasonable. That is, the applicant did not seek leave to appeal to the High Court against all of the convictions but only in respect of Counts 2 and 5.

The applicant’s submissions

1. [45]

   The applicant summarised the basis of his present application as follows:

2. [46]

   The applicant then identified 12 factors that he submits should lead to the conclusion that there is a doubt or question as to his guilt as follows:

3. [47]

   Having identified those 12 points, the applicant then goes on to provide an “outline of argument”. In particular, the applicant identifies the legal principles to be applied in considering whether there was a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

4. [48]

   Further, the applicant restates the questions identified in the special leave application to the High Court, emphasising the submissions made on the special leave application, in particular, repeating the submission that the Court of Criminal Appeal erred in failing to give discrete consideration to the reasonableness of each of the verdicts of guilty in its judgment.

5. [49]

   The applicant submits that, although the special leave application only concerned Counts 2 and 5, on this application he seeks to have overturned his convictions in respect of all counts for which he was found guilty, in accordance with his not guilty pleas at pre-trial and as contended in the Court of Criminal Appeal. In his reply submissions, the applicant reiterates a number of submissions already made, acknowledges that he is echoing the submissions made by his counsel at trial and on appeal and maintains that the result of the application should be that all of the verdicts are overturned.

The Crown Submissions

1. [50]

   The principal submission made by the Crown is that the Court should decline to deal with the application, as it is merely a repeat of the arguments raised on appeal. Alternatively, the Crown submits that the submissions in support of the application do not lead to a doubt or question as to the applicant’s guilt within the meaning of s 79(2) of the Review Act.

Consideration

1. [51]

   The primary difficulty with the application is that, as the applicant identifies early in his submissions, he is really relying on the case put on his behalf at trial, the submissions made to the Court of Criminal Appeal, the dissenting judgment of White JA and then the submissions made to the High Court on the special leave application. Indeed, in his hand written submissions in response, he acknowledges the Crown submission that, on this application, he has merely relied on points previously raised in the Court of Criminal Appeal and concedes that he is “simply making this application on what [he sees] as the merits of the points raised at trial [and on appeal]”.

2. [52]

   He says that he is outlining the faults of the Crown case and the failure of the prosecution to meet the onus of proving their case “beyond a reasonable doubt”, but these were the “faults” which were relied upon by the applicant in the Court of Criminal Appeal and the submissions made presently do not add anything new of substance to the submissions made in the Court of Criminal Appeal.

3. [53]

   The applicant does not identify special facts or circumstances that may justify the taking of further action. Thus, as submitted by the Crown, this matter may fall squarely within the terms of ss 79(3)(a)(i) and (b), such that the Court may refuse to consider or otherwise deal with the application.

4. [54]

   Section 79(3) of the Review Act sets out the circumstances in which the Court may refuse to consider the application. It does not mandate dismissal of the application should the matters set out in ss 79(3)(a) and (b) be satisfied. However, having regard to s 79(3), the threshold question, which arises in this matter, is whether I should decline to consider or otherwise deal with the application.

5. [55]

   I should note, for completeness, that the applicant raises his treatment in prison since being sentenced as a factor. Whatever sympathy the Court may have in relation to that treatment, it is not a relevant factor in determining whether action may be taken in accordance with s 79(1).

6. [56]

   In any event, whilst it may appear from the content of the applicant’s submissions that the matter has been fully dealt with in the proceedings giving rise to the conviction, it is appropriate that I consider in further detail each of the 12 factors identified by the applicant in his submissions.

7. [57]

   I do so in the first instance for the purposes of determining whether I should decline to deal with the application, prior to further considering whether there is a doubt or question as to the applicant’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

Factors 1, 2 and 3

1. [58]

   Thomas first complained to his mother on 2 March 2015. He was interviewed by Police Officers attached to the Penrith Joint Investigation Response Team (“JIRT”) on 12 March 2015. There was a video recording of that interview, which was part of his evidence-in-chief.

2. [59]

   He was then interviewed a second time by a Police Officer associated with Penrith JIRT on 2 September 2015. Again, that video recording formed part of his evidence-in-chief.

3. [60]

   He was interviewed a third time on 3 February 2017 and a fourth time on 13 February 2017. The video recordings were also part of his evidence-in-chief. Indeed, he was permitted to give evidence in that way, pursuant to s 306S of the Criminal Procedure Act 1986 (NSW).

4. [61]

   There was some further limited examination-in-chief and then cross-examination on behalf of the applicant.

5. [62]

   The point made by the applicant in the Court of Criminal Appeal and in his submissions in support of this application is that in his first interview, Thomas stated that the events giving rise to Counts 1, 2 and 3 took place at Parramatta Pool. In his second interview, he said that the acts occurred at Penrith or Mt Druitt Pools. He finally said that he thought that the events occurred at Emerton Pool.

6. [63]

   The doubts said to arise under Counts 1, 2 and 3 are referred to in Factors 1, 2 and 3 of the applicant’s submissions. The applicant says that over the course of his various interviews and his evidence at trial, Thomas gave conflicting evidence about the location of the events, suggesting that they happened in at least five different locations. Further, when pressed, Thomas said he could not remember the applicant touching his penis at the pool and conceded it may not have occurred.

7. [64]

   Further, contrary to his evidence in the interviews, he accepted in cross-examination that the events comprising Counts 2 and 3 did not occur.

8. [65]

   The foundation for these submissions is firstly Thomas’s differing recollection as to where the events happened, that is, at which pool they happened in the interviews and, secondly, the cross-examination of Thomas as follows:

9. [66]

   This content of the interviews and the cross-examination referred to above were the subject of submissions in the Court of Criminal Appeal and were considered by the Court of Criminal Appeal.

10. [67]

    Count 2 was that the applicant touched Christopher’s penis at the Emerton pool. Thomas was subject to cross-examination on this point as follows:

11. [68]

    White JA considered that the conviction on Count 2 should be quashed. He did not consider the convictions on Counts 1 and 3 should be quashed. As his Honour said, [13] Thomas was seven at the time of the first interview. He was confused in finding the location of the pool. This did not cause White JA to have any doubt that the events he described as taking place at Emerton pool did take place at Emerton pool. Walton and Wilson JJ did not consider that Counts 1, 2 or 3 should be quashed.

12. [69]

    As identified on the special leave application, Walton and Wilson JJ dealt with the issue more generally as follows:

13. [70]

    Their Honours considered that the evidence of Thomas in his JIRT interviews was visceral and utterly believable.

14. [71]

    Further, the comments made by the Crown Prosecutor in closing address to the effect that the jury might have a reasonable doubt as to the applicant’s guilt on Counts 2 and 5 were the subject of consideration by the Court of Criminal Appeal with reference to the role and obligations of a Crown Prosecutor.

15. [72]

    As observed by Walton and Wilson JJ, the submissions of the Crown Prosecutor were not determinative before the jury. The Crown’s concessions at trial are a feature to be closely considered, having regard to the evidence before the jury as a whole. They are of no greater weight.

16. [73]

    The matters raised in Factors 1, 2 and 3 identified by the applicant on this application were fully dealt with by the Court of Criminal Appeal. The applicant has not raised any new or different point.

Factor 4

1. [74]

   The applicant was acquitted on Count 4.

2. [75]

   If the point is that the acquittal on Count 4 gave rise to an inconsistency between verdicts, this submission was made to the Court of Criminal Appeal and dealt with. [15] White JA found that the applicant’s acquittal on Count 4 is not inconsistent with his conviction on the other counts.

3. [76]

   This is also dealt with by Walton and Wilson JJ (at [144]) who agreed with White JA’s assessment that there is a rational basis for the difference. Their Honours observed that distinguishing Count 4 from the remaining counts was the qualitative difference in the complainant’s evidence with respect to it, both in the JIRT interviews and evidence-in-chief at trial.

Factor 5

1. [77]

   Count 5 was dealt with by Walton and Wilson JJ in the same way as Counts 1, 2 and 3. Their Honours contrasted the environment in which the interviews took place and the method of questioning and the timing of the interviews with the evidence at the trial. As their Honours said, the evidence at trial was taken from Thomas as he sat in a remote witness room of a courthouse, an environment which might give rise to some level of anxiety in a trial. The questions asked of Thomas often gave or suggested an answer and were more frequently asked in a way that a young child may have struggled to comprehend.

2. [78]

   Their Honours considered that the fact that there was a contradiction or concession by a child in cross-examination is not, of itself, necessarily an indication that the child is not a credible witness. The question turned on a careful examination of the whole of the evidence.

3. [79]

   Their Honours examined the whole of Thomas’s evidence and gave due regard to the concessions extracted by questioning at trial but were left with no doubt as to the availability of the jury’s verdicts with respect to Counts 1 to 3 and 5 to 11.

4. [80]

   White JA took a different view. His Honour considered that there was a clear acceptance by Thomas that some of the acts charged never took place. His Honour found:

5. [81]

   Again, the issues raised as Factor 5 were fully dealt with by the Court of Criminal Appeal, albeit with differing conclusions amongst their Honours.

Factor 6

1. [82]

   Walton and Wilson JJ included Count 7 when they referred to having examined the whole of Thomas’s evidence and having due regard to the concessions extracted by questioning at trial but still being left with no doubt as to the jury’s verdicts.

2. [83]

   After referring to the evidence given in the second interview, White JA noted that Thomas adhered to that evidence in cross-examination and said that he accepted Thomas’s evidence in relation to Count 7.

Factor 7

1. [84]

   The Crown accepted that the date on which the offences alleged in Counts 8 to 11 took place needed to be proved beyond reasonable doubt. However, Thomas accepted in cross-examination that the acts, the subject of Counts 9 to 11, did not take place on grand final day.

2. [85]

   White JA considered that this gave rise to a reasonable doubt as to whether the events took place on that day. His Honour did not consider that Thomas’s answers were ambiguous. It was not open to infer that he was confused. In the circumstances, White JA had a doubt as to whether the acts took place on that day. It was a doubt that his Honour considered the jury should have had.

3. [86]

   Walton and Wilson JJ dealt with these matters more generally but did make reference to the complaint made by Thomas to his mother on the day it was alleged that Counts 8 to 11 had been committed, at what seemed like the first available opportunity for Thomas to speak to his mother in the absence of the applicant. As is plain from their Honours’ reasons, they disagreed with the approach of White JA.

4. [87]

   Whatever the strength of this factor, the applicant did not pursue the point in the special leave application before the High Court. As submitted by the Crown, he conceded that it was open to the jury to conclude that Thomas’s retraction in cross-examination was a result of him having simply forgotten the precise day on which the offences were committed.

Factors 8–12

1. [88]

   Submissions were made to the Court of Criminal Appeal on these issues. The majority dealt with these complaints of a more general nature, rejecting the submission that evidence of a contradiction or concession by a child in cross-examination or a contrast between evidence contained in the interviews and cross-examination was an indication that the child was not a credible witness.

2. [89]

   Of course, as the applicant submitted on his special leave application, his principal complaint to the High Court was the alleged failure by the majority of the Court of Criminal Appeal to give discrete consideration to the reasonableness of each of the verdicts.

Conclusion

1. [90]

   On my analysis, the 12 factors identified by the applicant as supporting a proposition that there is a doubt or question as to the applicant’s guilt were all either raised at trial or the subject of submissions and consideration in the Court of Criminal of Appeal.

2. [91]

   Adopting the language in s 79(3)(a)(i), it thus appears that the matter has been fully dealt with in the proceedings giving rise to the conviction or any proceedings on appeal from the conviction.

3. [92]

   Further, the applicant has not identified any special facts or special circumstances that justify the taking of further action. The applicant has not raised any new points. He does not point to any new or fresh evidence. He does not point to any evidence which has been overlooked by the Court of Criminal Appeal.

4. [93]

   Even the proposition that the majority dealt with the arguments more generally without reference to each individual count was the subject of the special leave application.

5. [94]

   Whilst I am not bound to refuse to consider or otherwise deal with the application merely because the matters set out in ss 79(3)(a) and (b) are satisfied, the very purpose of s 79(3) is to allow the Court to refuse to consider the application in circumstances in which the applicant does no more than restate the submissions raised in the proceedings and on appeal, having exhausted all avenues of appeal.

6. [95]

   This is plainly this case. The Court’s function in considering an application under s 78 is not to act as another Court of Appeal.

7. [96]

   In the circumstances, I would refuse to consider or otherwise deal with the application and the application is dismissed.