Holland v Attorney General of NSW

1. [1]

   MEAGHER JA: I agree for the reasons given by McCallum JA that this summons should be dismissed with costs.

2. [2]

   PAYNE JA: I agree with McCallum JA.

3. [3]

   McCALLUM JA: Peter Holland stood trial almost twenty years ago for five sex offences alleged to have been committed against a female student at the Goulburn Police Academy when Mr Holland was a member of the NSW Police Service and a tutor at the Academy. The offences were alleged to have been committed in a social setting. There was no dispute that sexual intercourse took place; the trial was run on the issue of consent. At the conclusion of the trial before Shadbolt DCJ with a jury, Mr Holland was convicted of one count of aggravated sexual intercourse without consent and one count of attempted sexual intercourse without consent. He was acquitted on the other three counts. He was sentenced to a term of imprisonment which he has long since served.

4. [4]

   Mr Holland maintains his innocence of the two offences. Since his trial he has repeatedly sought, without success, to have the convictions overturned, first by appealing to the Court of Criminal Appeal and subsequently by making repeated applications (three in all) for an inquiry into his convictions. An application for such an inquiry may be brought under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) and is commonly referred to as a “Part 7 application”. While Mr Holland was legally represented at his trial and in the appeal, he has conducted each of the Part 7 applications without legal representation.

5. [5]

   The three applications were all made to the Supreme Court and were governed by ss 78 and 79 of the Crimes (Appeal and Review) Act.

6. [6]

   Section 79(1) allows the Court, after considering an application, to direct that an inquiry be conducted or to refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). Section 79(2) qualifies that power by providing (in the case of an application concerning a conviction) that such action “may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt…or as to any part of the evidence in the case”.

7. [7]

   Section 79(3) of the Act confers power “to refuse to consider or otherwise deal with an application.” The circumstances in which that power may properly be exercised are illuminated but not limited by s 79(3)(a):

8. [8]

   Mr Holland’s first application was dealt with by Johnson J. That application was brought under the predecessor to Part 7 but fell to be determined under that Part in accordance with the relevant transitional provisions. Johnson J determined the application under s 79(1). After considering the application, his Honour declined to direct an inquiry or to refer the case to the Court of Criminal Appeal: Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251. That decision was published on 28 March 2008.

9. [9]

   Mr Holland’s second application was dealt with by Fagan J. His Honour took the view that the application of s 79(3) was attracted by the circumstances of the case: Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 462 at [7]. For reasons explained at length in the published decision, his Honour accordingly refused to consider or otherwise deal with the application: at [81]. That decision was published on 21 April 2017.

10. [10]

    Mr Holland’s third application was dealt with by Davies J. Like Fagan J, his Honour took the view that the power conferred by s 79(3) was enlivened and refused to consider or otherwise deal with the application: Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2021] NSWSC 384 at [55]. That decision was published on 28 April 2021.

11. [11]

    By summons filed 14 July 2021, Mr Holland applies under s 69 of the Supreme Court Act 1970 (NSW) for judicial review of the decision of Davies J. It is accepted that a decision under s 79(3) of the Crimes (Appeal and Review) Act is reviewable for jurisdictional error: Clark v Attorney General of New South Wales [2020] NSWCA 70 at [12] (my judgment, with which Basten and Macfarlan JJA agreed at [3] and [11] respectively). As I noted in my judgment in that case, it has not been authoritatively determined whether, being the decision of a judge of the Supreme Court exercising a non-judicial function, a Part 7 decision is immune from review by this Court on the ground of non-jurisdictional error of law on the face of the record: Clark at [36], citing Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [35]. However, as was the case in Clark, that issue does not arise for determination in the present case. The error alleged is legal unreasonableness; the Attorney concedes that such error, if established (which is denied) would amount to jurisdictional error.

12. [12]

    Recognising that his decision would be reviewable for jurisdictional error (citing Clark), Davies J expressed the view (with which I respectfully agree) that it is necessary for the decision maker determining a Part 7 application under s 79(3) “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”: at [18]. However, his Honour also expressed the view, and again I agree, that in circumstances where an application is repetitive of matters put forward on earlier applications, the statement of reasons for refusing to consider the application need only be brief: at [19]-[20].

13. [13]

    In his decision, after identifying the extensive material provided by the applicant, Davies J summarised the application as follows at [24]-[25]:

14. [14]

    Davies J considered that, with two possible exceptions, all of the matters raised in the application referred to his Honour had been dealt with in the two previous Part 7 applications: at [33]. His Honour conceded that the two possible exceptions were “arguably new” only because the information in question (an affidavit of the applicant and further comments from Dr Odell) post-dated the application determined by Fagan J: at [34]. His Honour addressed those matters and gave cogent reasons for his conclusion at [53] that there was nothing in the arguably new material that appeared to raise any question as to the applicant’s guilt and nothing constituting special facts or special circumstances: cf s 79(3)(b) of the Crimes (Appeal and Review) Act.

15. [15]

    Having addressed those “arguably new” points, his Honour proceeded under s 79(3), concluding at [54]-[55]:

16. [16]

    As submitted by the Attorney, it is no part of the function of this Court to determine whether, in the view of this Court and contrary to the conclusion reached by Davies J, the material and submissions advanced by the applicant give rise to a doubt or question about his guilt or as to any part of the evidence in the case. The only question for this Court is whether Davies J acted within jurisdiction. It is for the applicant to persuade this Court that his Honour did not.

Grounds for review

1. [17]

   The applicant’s grounds for review make for an inauspicious start to that end. The summons specified four grounds as follows:

2. [18]

   To an extent, those grounds invite reconsideration of the merits of the previous decisions, which is no part of the function of this Court. Distilling the grounds to their jurisdictional essence, the contention must be that Johnson J and Fagan J determined the first and second applications in a manner that was arbitrary, capricious and irrational and that, accordingly, it was legally unreasonable of Davies J to conclude that the matters raised by the applicant had “previously been dealt with” in earlier applications under Part 7 so as to enliven the power to refuse to consider the application.

The Crown case at trial

1. [19]

   Before considering the applicant’s submissions, it will be helpful to give a brief outline of the Crown case. The trial transcript was not before this Court. The following summary is drawn primarily from the decision of the Court of Criminal Appeal dismissing Mr Holland’s appeal against conviction: R v Holland [2002] NSWCCA 469 which, in turn, is extracted at length in the decision of Johnson J.

2. [20]

   The events giving rise to the charges occurred on the evening of 19 July 2001 when Mr Holland and the complainant were out socialising with others at various establishments in Goulburn. The offences were alleged to have occurred outside one of those establishments.

3. [21]

   The Crown case was that Mr Holland led the complainant outside and sexually assaulted her. The first count was based on an allegation that he put his hand down the front of her pants and inserted his fingers in her vagina. The second count was based on an allegation that he pushed her to her knees and attempted to insert his penis into her vagina but failed to do so.

4. [22]

   The complainant gave evidence at the trial that the assault caused her pain. She said she examined herself in a bathroom cubicle and observed swelling and discolouration or bruising. She became distressed. A friend, Mr Bellis, asked her what had happened and she complained that she had been sexually assaulted by Mr Holland. She remained at the club for a period and gave evidence that she danced for a while but had to stop because her vagina was too sore. The Court of Criminal Appeal recorded at [8] that one witness described her manner of dancing as “odd” and “sort of sluttish”. It will be necessary to return to that evidence.

5. [23]

   Mr Bellis suggested that she report the incident to police but she said she could not handle it at that time.

6. [24]

   The complainant was observed three days after the assault to be walking with difficulty and wincing when she walked. When asked what was wrong, the complainant had said she had been sexually assaulted by Mr Holland. Later that day, a clerical officer employed at the Goulburn Police College, Ms Swords, spoke to the complainant. Ms Swords gave evidence that the complainant was crying and upset and that she complained that she had been sexually assaulted by Mr Holland and that she was “sore”.

7. [25]

   Four days after the assault, the complainant was examined by Dr Harmon. Dr Harmon observed that the complainant’s mons and labia were contused, swollen and tender (too tender to conduct an internal examination with a speculum) and that there was a small abrasion. Dr Harmon gave evidence at the trial to the effect that the injuries were consistent with the complainant’s account.

The applicant’s submissions

1. [26]

   The applicant’s submissions barely engaged with the reasons of Davies J. Instead, the submissions largely rehearsed the same points addressed at length in the reasons of Johnson J and Fagan J in a way that transparently invited review of the merits of those decisions.

2. [27]

   Four propositions underpinned Mr Holland’s written submissions in this Court:

   1. (1)

      that the expert medical evidence was “completely overlooked”;

   2. (2)

      that a forensic expert’s evidence was dismissed by Johnson J because he is American (the expert, not Johnson J);

   3. (3)

      that corroborating injury evidence was “invented” by Johnson J; and

   4. (4)

      that “new hypotheses” were “invented [by Johnson J and Fagan J] to keep the complainants’ credibility intact.”

3. [28]

   The submissions in support of those points presented a tendentious and selective account of the evidence. For example, Mr Holland submitted that the alleged level of violence described by the complainant “cannot be reconciled with her pristine appearance immediately after the alleged assault”, citing the evidence of Matthew Ellis. However, the Court of Criminal Appeal recorded only the following evidence of that witness at [8]:

4. [29]

   In the same paragraph, the Court recorded the evidence of Donna Green:

5. [30]

   I make this point not because I have succumbed to the siren call of the merits but to illustrate the selective nature of Mr Holland’s submissions.

6. [31]

   Mr Holland also cited (twice) the following remarks which he says were made by the trial judge, Shadbolt DCJ:

7. [32]

   As already noted, the trial transcript is not before this Court. Assuming the remarks were made as recorded by the applicant, and leaving aside the fact that they reflect anachronistic assumptions as to how victims of sexual assault should be expected to behave, they are irrelevant to the present application. Again, I make this point only to illustrate the tendentious nature of the applicant’s submissions.

8. [33]

   Turning to the applicant’s four main points, the contention that the medical evidence was “completely overlooked” is unfounded. Far from overlooking the medical evidence, Johnson J discussed it carefully and at length at [51]-[69] of his decision.

9. [34]

   As to the supposed dismissal of the Turvey report “because he's American”, that is simply wrong. Johnson J identified the issues raised by Mr Turvey and explained why those matters did not raise a doubt or question in his mind as to the applicant’s guilt or as to part of the evidence. Those reasons were set out at [35]-[40] and further explained by reference to the medical evidence at [51]-[69]. Davies J recorded that fact (that Johnson J had dealt with those matters) at [49] of his Honour’s judgment. There is no merit in the complaint that Johnson J dismissed Mr Turvey’s evidence arbitrarily, still less that Davies J’s conclusion that Johnson J had already dealt with the matter entailed jurisdictional error.

10. [35]

    The contention that corroborating injury evidence was “invented” by Johnson J evidently refers to a statement his Honour made that there was evidence to corroborate the complainant’s evidence of being in pain on the evening of the assault (after the assault).

11. [36]

    In his judgment at [31], Johnson J summarised the issues in the trial. His Honour recorded at [31](e):

12. [37]

    Later in the decision at [65], his Honour said:

13. [38]

    Mr Holland asserts that the word “odd” to describe the dancing was “never provided by the Crown to the jury”. The contention appears to be that Johnson J “invented” the notion that the complainant’s style of dancing was “odd” in order falsely to corroborate the injury evidence.

14. [39]

    If that is the submission, it is unfair and should be rejected. The word “odd” is in quotation marks in Simpson J’s summary of the evidence in the judgment of the Court of Criminal Appeal at [8]. Her Honour attributes it to the witness Green. The full summary of Green’s evidence by Simpson J is:

15. [40]

    Johnson J quoted that passage of the judgment of the Court of Criminal Appeal in his decision at [26]. It is not to the point whether that is in fact what the witness Green said. The point is that it is clear Johnson J did not invent the evidence. It is not clear that anything much turns on that except that the description “sluttish” better suits Mr Holland’s argument whereas the word “odd” is more consistent with the complainant’s account that she was in pain. She gave evidence that she had difficulty dancing because her vagina was hurting too much, and so she left the dance floor and told Mr Bellis she wanted to go home.

16. [41]

    Finally, as to the contention that the judges who dealt with his earlier applications invented “hypotheses” or designed “theories as to why the new evidence exists”, that is not a fair characterisation of the earlier decisions.

17. [42]

    As already noted, the complainant’s evidence at trial was that the assaults caused her pain and that, upon self-examination she observed swelling and bruising (the decision in the Court of Criminal Appeal recorded that she found her vaginal area to be swollen and discoloured). Dr Harmon’s examination four days later found injuries considered to be consistent with her account.

18. [43]

    The material provided to support the first Part 7 inquiry included reports from Dr Parker-Newlyn, the applicant's wife’s general practitioner; Dr Geoffrey Reid, a gynaecologist; Dr Morris Odell, a forensic physician; and Mr Brent Turvey, a forensic scientist.

19. [44]

    Johnson J recorded at [55] that the material from Dr Parker-Newlyn was directed to two issues:

20. [45]

    The “manner [of self-examination] described by the complainant” was hardly implausible. As recorded by Johnson J at [31](d), she said that, after speaking to Mr Bellis, she went into a bathroom cubicle “due to [her] vagina being sore” and “tried to have a look” and saw that her “vagina lips were very swollen and it had a dark colour”. No person would be better placed to make those observations of the state of her body than the complainant.

21. [46]

    As to the argued inconsistency, the new material was calculated to show that the injuries observed by Dr Harmon could not have been the result of the assault because, in effect working backwards, if those were the injuries caused by the assaults, they would have been so severe on the night of the assaults as to render the complainant’s admitted conduct afterwards (dancing on stage as described by witnesses) essentially impossible.

22. [47]

    Johnson J addressed that evidence as follows at [66]-[68]:

23. [48]

    That was, with respect, an entirely unexceptionable approach to the familiar task of considering the material put forward, assessing its cogency and its weight and making a judgment as to whether, in all the circumstances and having regard to the evidence as a whole, it appeared that there was a doubt or question as to Mr Holland’s guilt or as to any part of the evidence in the case.

24. [49]

    Mr Holland also relied on a document dated 30 June 2007 consisting of 31 questions posed by him to Senior Constable Cameron Bellis, together with his response to each question.

25. [50]

    Senior Constable Bellis gave evidence at trial that, on the night of the alleged assaults, he saw the complainant distressed and that she told him that she had been sexually assaulted by Mr Holland. In his first Part 7 application (as summarised by Johnson J at [82]), Mr Holland submitted that the new material:

26. [51]

    Johnson J analysed those submissions in detail. His Honour noted the Crown’s submission that in large measure the new statement added nothing to the evidence at trial (my words). The Crown submitted (and his Honour appears to have accepted) that “the only new material concerning the complainant’s conduct following the assault is the opinion that the complainant did not appear to be in pain and the statement that she was dancing with at least six police officers at one stage which involved straddling one male’s leg whilst another was close behind”: at [84].

27. [52]

    Johnson J concluded at [88]-[89]:

28. [53]

    In his submissions in this Court, Mr Holland placed considerable emphasis on the description of the complainant “dancing with at least six police officers at one stage which involved straddling one male’s leg whilst another was close behind”. He characterised that as evidence that the complainant was “rubbing the alleged injured genitals up and down that officer's leg whilst smiling and laughing”. It does not appear from the material before this Court that Senior Constable Bellis used those words. In any event, the significant fact is that Johnson J dealt with the matter, concluding, “The fact that the complainant remained at the nightclub for a period and danced with persons does not, in my view, give rise to any question or doubt as to the Applicant’s guilt or to any doubt or question as to part of the evidence in the case.”

29. [54]

    As already noted, the second Part 7 application was referred to Fagan J, who exercised the power under s 79(3) to refuse to consider or otherwise deal with it. His Honour nonetheless gave extensive reasons for taking that course.

30. [55]

    As noted by the Attorney, his Honour gave careful consideration to the applicant's submissions based on the material from Dr Newell-Parker, Dr Odell, Dr Reid, Mr Turvey, and Constable Bellis. His Honour also discussed Mr Holland’s further attack on the complainant's account including the fact that she did not raise hue and cry when (on her account) she found herself as a young student police officer at a social event attended by many police in the position of having her tutor in martial arts forcing himself upon her. Fagan J also considered reconstructive videos prepared by the applicant in which he attempted to demonstrate the impossibility of the assaults having occurred in the manner alleged.

31. [56]

    As Fagan J noted, in circumstances where the issue was consent, the helpfulness of those videos was unclear. The assumption seems to have been that consensual intercourse is faster than non-consensual sexual assault. That assumption was untested. In any event, Fagan J carefully analysed Mr Holland’s submissions on those matters at [53]-[60] of his Honour’s decision.

32. [57]

    Again, like Johnson J, his Honour undertook what I would regard to be an entirely unexceptionable approach to the analysis of evidence.

33. [58]

    During oral submissions, the applicant was asked to identify with specificity the issues he contends Davies J wrongly found had previously been dealt with. His response was, yet again, to give a tendentious account of the evidence before Johnson J and the manner in which his Honour dealt with it. For example, the applicant asserted that, in 2007, the Crown Advocate was “making an adjudication in relation to perjury” and that it followed that they “already knew” that the evidence of Senior Constable Bellis “demonstrated the complainant had lied”.

34. [59]

    Mr Holland also repeated the submission concerning the evidence of Mr Turvey addressed above. He proceeded in his oral submissions to address the merits of the Turvey points, without ever explaining how the submission could be sustained that Johnson J did not deal with those matters. The burden of the complaint was that Mr Holland does not agree with Johnson J’s analysis of those points. That does not establish that they were not dealt with.

35. [60]

    The oral submissions took a similar course in respect of the decision of Fagan J. Mr Holland took us to the judgment at [80] where his Honour said:

36. [61]

    The applicant’s submission about that paragraph of the reasons was directed to the merits of Fagan J’s analysis:

37. [62]

    The power under s 79(3) was enlivened in this case because Davies J was satisfied that it appeared (“it appears”) that the matters had previously been dealt with under Part 7. As explained by Basten JA in Sinkovich at [26] (considering the same words in s 79(2) and applied to s 79(3) in Clark at [41]), that expression indicates that “it is the satisfaction of the judge as to the relevant condition which is critical”. In Clark at [42], we held that the decision maker’s assessment of that issue could only be impugned in this Court if it was so unreasonable as to amount to jurisdictional error in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

38. [63]

    It was plainly open to Davies J to find that the matters raised by Mr Holland had been previously dealt with under Part 7 by Johnson J and Fagan J. Nothing put by Mr Holland has persuaded me that the decision of Davies J was legally unreasonable or entailed jurisdictional error. Accordingly, the orders I propose are:

    1. (1)

       that the summons be dismissed.

    2. (2)

       that the applicant pay the respondent’s costs.