GAR v Attorney General for the State of New South Wales (No. 3)

MEAGHER JA: I have had the benefit of reading in draft the judgments of White JA and McCallum JA. I respectfully agree with the orders proposed by McCallum JA for the reasons her Honour gives.

WHITE JA: On 25 February 2019 the applicant, GAR, filed an application in the Supreme Court for an inquiry into his conviction for sexual assault. The application was made pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Act”). The application was refused by Harrison J (GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 982). His Honour’s decision was to “...refuse to consider or otherwise deal further with the application in accordance with s 79(3)(a) of the Crimes (Appeal and Review) Act 2001.”

This was not the first application for such an inquiry. The history of GAR’s conviction for sexual assault of his former wife (ER) and his subsequent appeals from that conviction and attempts to obtain an order for an inquiry into his conviction are referred to in judgments of this court and the Court of Criminal Appeal and in reasons for decision of single judges tasked with considering an application for an inquiry pursuant to s 78 of the Act.

GAR was found guilty by a jury on a charge that he, on or about 14 January 2002, had sexual intercourse with ER without her consent and knowing that she was not consenting. GAR and ER had been divorced a few days before 13 January 2002. On 13 January 2002 he went to ER’s house. Their daughter, E, then aged 12 was living in the house. The Crown’s case was that ER asked him to leave but he refused to do so. GAR was charged with wrongfully detaining ER, but he was acquitted of that charge. The Court of Criminal Appeal that heard the appeal against conviction (R v GAR [2003] NSWCCA 224) summarised the evidence adduced by the Crown on the charge on which GAR was convicted as follows. At about 11.00pm E (GAR’s and ER’s daughter) went to bed. ER repeatedly asked GAR to leave but he refused. At about midnight ER went to bed in her room. The court continued:

GAR did not dispute that he had sexual intercourse with ER that night. He said the intercourse was consensual.

ER’s evidence was corroborated by E.

In dismissing the appeal against conviction, Miles AJ (with whom Spigelman CJ and Bell J agreed) said (at [61]):

E, who was 12 at the time of the alleged rape and 13 at the time of trial, gave evidence that at about 2.00am “I heard my mother saying ‘Please don’t, [G] please don’t.” She then gave the following evidence:

E also gave evidence that she heard her father leaving at about 4.00am saying, “Well, I’m fucking going”. She gave evidence that when she woke up her mother was in the dining room, crying on a chair and she said to her:

On 12 February 2009 Barr J directed pursuant to s 79(1) of the Act that “the whole case” be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). Barr J’s reasons for decision are not reported and are not available on Caselaw, but were provided by the Attorney.

Section 79 provides relevantly as follows:

Barr J recorded that a friend of GAR’s, a Mr John Carroll, accompanied E to visit GAR in prison on 16 April 2005 and in that visit E said “I didn’t hear anything. Mum got me to say that I did because she said they wouldn’t believe her by herself.” Both GAR and Mr Carroll deposed to E having said this.

There was also evidence from GAR’s sister (“JC”) that in or about October 2002 E was living with her because of difficulties with her mother. GAR’s sister deposed that in the course of a telephone conversation that was on loud speaker between E and her mother, E said to her mother, “Mum, you made me lie about Dad”, and ER replied, “You had to or no-one would believe me, there wouldn’t be a case.”

There was also evidence of a third person that E had told her years before that she had lied about her father.

Barr J noted that E had been interviewed by the police on 21 June 2007 and had denied telling lies in court, but affirmed having told ER during a telephone conversation whilst staying with GAR’s sister that “Mum, you made me lie in court.”

Barr J said that this material caused him an unease or a sense of disquiet in allowing the conviction to stand (referring to R v Rendell (1987) 32 A Crim R 243; Varley v Attorney General (NSW) (1987) 8 NSWLR 30). His Honour referred the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW).

GAR’s grounds of appeal included a ground that ER procured her daughter (E) to give fabricated evidence implicating GAR. The Court of Criminal Appeal noted that that ground was reframed during the hearing before the Court of Criminal Appeal to say that E had given false evidence “at the behest of” ER (her mother) (at [22]). The allegation that ER had actively procured E to lie for her was not maintained (at [23]).

E and ER were examined and cross-examined before the Court of Criminal Appeal. As noted above, E had been interviewed by the police on 21 June 2007. In her police interview she was asked whether she had lied in court about her father when she gave evidence at the trial. She denied having done so. The questions and answers were as follows:

Later in her police interview she stated that:

At the hearing before the Court of Criminal Appeal, E said that her answer to the police to question 7 “Did you tell lies about your father in court?”, to which she answered “No”, was untrue and that the answer should have been “Yes.” (at [81]). The Court of Criminal Appeal then added:

E confirmed that in the presence of GAR’s sister, JC, she had said to ER, “Mum, you made me lie”. A member of the Court asked:

ER denied having asked her daughter to lie for her.

The Court of Criminal Appeal held that the evidence given before it by ER was credible and cogent. On the other hand, the evidence of E was neither cogent, credible nor plausible (at [151](c)). The appeal was dismissed (GAR v R (No. 1) [2010] NSWCCA 163).

On 2 March 2014 GAR brought a second application pursuant to s 78 for an inquiry into his conviction in 2002 (GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734).

This application was brought on two pieces of evidence. ER had given evidence at trial that she had complained to a friend, RM, about the assault. GAR relied upon an affidavit of RM sworn on 15 July 2012 (that is, about 10 years after the event) in which RM deposed that when he spoke to ER on the morning of 14 January 2002 she did not say anything to him about the applicant’s having sexually assaulted her. Unsurprisingly, Adamson J, who dealt with the application, did not consider that this gave any ground for reopening an inquiry into GAR’s conviction.

The second ground of the application made in 2014 was based on the medical report of Dr Sterrett who had examined ER on 14 January 2002. Both in the application made on 2 March 2014 and subsequently GAR has complained of the way in which the Court of Criminal Appeal on the first appeal against conviction and on the second appeal had dealt with the medical evidence concerning ER’s description of her injuries during the alleged rape.

ER was examined by Dr Sterrett on 14 January 2002. ER gave evidence at trial that during the rape GAR had “dug his fingernails into ... my face ... when he had his hand over my face”. She gave evidence that “my face was sore, it was more internally than the scratches. The scratches were there but my face internally was very, very sore.” She also said that the scratches had been pointed out to her by the hospital.

GAR submitted on this application that Dr Sterrett’s report made no mention of scratches to ER’s face. He submitted that the evidence given by ER at trial that she had suffered scratches to her face during the assault was recent invention. He said that she had made no reference to such injuries when she was interviewed by the police, that there was no reference to such injuries in Dr Sterrett’s report, and that the first time this was raised was in ER’s evidence at trial. GAR complained that in the first appeal, Miles AJ had found (at [14]) that Dr Sterrett’s report had reported “scratches to the left side of the complainant’s face” when no such finding had been made. He submitted that the photographs of ER’s face showed no scratches to the lower left side whilst acknowledging that there was a mark on the left side (which GAR said was not a scratch). He relied upon a concession made by the Crown at the second hearing in the Court of Criminal Appeal in 2010 that it was not possible to say that the photographs did show a scratch.

As to this ground, Adamson J said:

Adamson J refused to direct an inquiry under s 79(1)(a) or to refer the case to the Court of Criminal Appeal under s 79(1)(b).

On 2 March 2016 GAR submitted a further application for an inquiry into his conviction. This application also came before Adamson J (GAR - Application for an inquiry into conviction pursuant to s 78 of Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205).

Her Honour observed that the application was based on what was said to be “fresh evidence”, being statements apparently made by ER and their daughter E. The document apparently signed by both E and ER stated:

Both signatures were witnessed by Mr Ian West JP.

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

The effect of these documents, if genuine, was that under a supposed inducement that the evidence would not be used against her to prosecute her for an offence, ER acknowledged that she falsely asked E to corroborate her evidence that she had called out “Please don’t, [G], please don’t” or something similar. She also said that she said those words as GAR placed his hand over her mouth and nose and threatened to snap her neck and that he thereafter waited for her daughter to be asleep before the assault occurred.

The Attorney General caused inquiries to be made of Mr West in relation to his witnessing the statements of E and ER. Mr West authenticated his signatures on the document but had no recollection of the signatories, nor the documents.

The Attorney General accepted before Adamson J that this material warranted an inquiry into GAR’s conviction. Adamson J did not agree. Her Honour said:

GAR applied for judicial review of Adamson J’s refusal to order an inquiry into his 2002 conviction.

On 12 December 2017 the Court of Appeal by majority (Beazley ACJ and Payne JA, Simpson JA dissenting) dismissed that application (GAR v Attorney General New South Wales (No 2) [2017] NSWCA 314). (It was accepted in the Court of Appeal that Adamson J was mistaken in reading the date in the handwritten statement as being 2 October rather than 2 December 2012 (at [182]). This was not significant.)

Simpson JA would have made a declaration that in considering GAR’s application under s 78, the judge failed to address whether it appeared that there was a doubt or question as to a particular part of the evidence in the applicant’s trial in October 2002 and accordingly fell into jurisdictional error (at [93]). Her Honour considered that although it may have been open to Adamson J to order, as Barr J had previously done, that the whole case be referred to the Court of Criminal Appeal to be dealt with as an appeal, the more appropriate course was for an inquiry to be conducted by a judicial officer who had had the opportunity, sitting as a single judge, to make necessary and appropriate findings of fact, following which the judicial officer could report the results of the inquiry to the Chief Justice or refer the matter to the Court of Criminal Appeal for consideration whether the conviction should be quashed (at [87]).

Simpson JA observed (at [60]) that contrary to the view expressed by Adamson J (at [43]) there was no inconsistency in ER’s having admitted to procuring false corroboration and her complaint being true. Her Honour emphasised that an inquiry under s 79 encompassed an inquiry into “any part of the evidence in the case” which reflected the importance placed by the criminal justice system on the integrity of the process by which the outcome of criminal proceedings is reached (at [62]-[66], [76]). Simpson JA said that to the extent Adamson J addressed this question, she did so on the basis that ER’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, that the Court of Criminal Appeal had rejected E’s evidence in those proceedings (and accepted her evidence given at trial) and the Court of Criminal Appeal had accepted the credibility of ER. But those findings were made in the absence of the apparent confirmation by ER of the evidence that E gave before the Court of Criminal Appeal (at [77]-[80]). Simpson JA considered that the judge had fallen into jurisdictional error.

Simpson JA was in dissent.

Payne JA held that Adamson J did not commit jurisdictional error. He summarised the inquiry (at [155]) as follows:

As to the second question, Payne JA said (at [158]):

As to the fourth question, Payne JA noted that although the unreasonableness ground of judicial review is no longer limited to what is in effect an irrational, if not bizarre, decision, that no reasonable person could have arrived at (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68]), nonetheless, Li does not go so far as to permit the court to substitute its subjective sense of reasonableness for that of the decision-maker (at [153], [162]). His Honour concluded (at [168]):

Payne JA observed that dismissal of the application would not prevent GAR from bringing a further application if he had further information sufficient to support it (at [192]-[193]).

Beazley ACJ said:

These were conclusions. Her Honour’s reason for those conclusions was her agreement with the reasons of Payne JA (at [1]).

The majority’s reasons are not an endorsement of Adamson J’s reasons. Rather they find that Adamson J’s reasons were not “legally unreasonable” for the purposes of judicial review of an administrative decision.

GAR made a further application under s 78 that included new material.

GAR’s further application (filed on 25 February 2019) consisted of a submission of some 80 pages which largely recounted the history of the matter and extracted relevant portions of the evidence given at different hearings. The submission annexed the documents of 2 December 2015 that provided the basis for the application before Adamson J discussed above. It also annexed two affidavits, and one from a Mr Greg Schumer, solicitor, who stated that he was acting as “amicus” to assist GAR with aspects of his matter, and one from E.

In his affidavit of 8 February 2019, Mr Schumer deposed that he attended at the home of E on 1 November 2018 for the purpose of assisting her with a family law matter. ER was present to provide information in relation to that matter. At some point, E left for about 30 minutes. Mr Schumer deposed that he told ER that E had made an affidavit to assist the appeal inquiry and asked ER if she would consider making an affidavit. He deposed that:

E’s affidavit is dated 30 January 2019. E expands on her previous statement that ER asked her to corroborate her evidence that she had called out “Please don’t, [G], please don’t” or similar, and that when she made her statement to the police and gave evidence it was false. E deposed to her memory of events that occurred on the evening of 13 January and the morning of 14 January 2002. She deposed that before falling asleep she remembered hearing her parents getting along and laughing.

E deposed that her next memory was at around 8.00am on the morning of 14 January 2002 and that as soon as her mother saw her she burst into tears and said (speaking of GAR), “He’s gone. He raped me”. She deposed that ER said: “I’m terrified. I’m so worried they’re not going to believe me. Did you hear anything?”. She deposed that she said “No”, and remembered ER then saying:

E said that she used to threaten her mother on a daily basis that she was going to the police to tell them the truth, but her mother used to panic and fluster and cry and beg her not to go to the police. She deposed that once she got to 14 or 15 years old, “it got unbearable” and she decided she would tell the truth. She referred to giving evidence before judges of the court (which she apparently recalled taking place in the Downing Centre). She described her giving evidence, evidently before the Court of Criminal Appeal in 2010, as follows:

She said:

E described the circumstances in which ER signed the declaration of 2 December 2015 as follows:

In his submissions in support of his application of 25 February 2019 GAR submitted that Mr Schumer’s affidavit showed ER’s antipathy towards him and her resolve to have him incarcerated. He submitted that her position in this regard remained the same today as it was when she complained of rape in 2002.

Adamson J had said (at [44]) that:

GAR challenged this reasoning by submitting that it was not for the Supreme Court on an administrative review:

It may be taken that the same submission was made before the Court of Appeal in 2017. But GAR also submitted that Mr Schumer’s affidavit showed that there was good reason to think that ER was not motivated to say something other than the truth in the statement that she signed on 2 December 2015 because of a belief that nothing was to be gained by not providing a statement that the applicant had requested.

E’s affidavit went much further. First, it provides an explanation as to how ER came to sign the statement of 2 December 2015. That explanation is inconsistent with ER’s having provided the statement at GAR’s request.

It also provided for the first time an explanation as to why E did not say at the Court of Criminal Appeal hearing in 2010 that ER had asked her to lie in support of ER’s complaint. That evidence was contrary to her statement on 2 December 2015 that ER had asked her to corroborate falsely ER’s evidence.

In her reasons of 29 August 2016 Adamson J had said that it did not appear to her Honour that there was a doubt or question either as to the applicant’s guilt or as to the evidence of E and ER in the trial (at [46]). Her reason for that view was that the question whether E and ER were telling the truth had been fully investigated, both at the trial and on the Review Appeal.

The Court of Criminal Appeal on the review appeal in 2010 did not have E and ER’s statements of 2 December 2015. Adamson J, in 2016, did not have E’s explanation as to how those statements came to be made, nor E’s explanation as to why she did not say at the hearing in 2010 that her mother had asked her to provide false corroboration.

Next, unlike the typed statements of 2 December 2015, E’s affidavit was not expressed to be made having received an “inducement that the evidence will not be used to prosecute any offence” against her, a matter which Adamson J considered significant in assessing the credibility to be given to those statements.

In his reasons for decision (GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 982) Harrison J acted under s 79(3)(a) in refusing to consider or otherwise deal with GAR’s application.

Harrison J’s dispositive findings for concluding that he should refuse to consider or otherwise deal with the application in accordance with s 79(3)(a) were as follows:

GAR attacks the merits of that reasoning. He correctly submits that the circumstances in which E came to resile from her evidence have not been thoroughly or exhaustively examined (J[7]). The Court of Criminal Appeal’s judgment in 2010 found that the evidence E gave in 2010 was neither credible, nor reliable, in contrast to the evidence of ER. But that finding was made without knowledge of ER’s subsequent apparent acknowledgment that she had suborned her daughter to give false evidence at the trial. If she did, that would affect the credibility of both E and ER. The statements made by E and ER on 2 December 2015 cast doubt on the Court of Criminal Appeal’s findings. But they threw up a further inconsistency in E’s evidence. At trial E had given evidence of hearing ER saying “Please don’t [G], please don’t”. She resiled from that evidence at the hearing in 2010, but did not say that her mother had put her up to making a false statement. Then on 2 December 2015 E did make that accusation. The new material, being her affidavit of 30 January 2019, explained why she had not done so in 2010.

As to para [8] of his Honour’s reasons, the question under s 79(2) would not merely be whether there was reason to pause and reflect upon the question of GAR’s guilt, but whether there was cause to pause and reflect upon the evidence upon which the guilty verdict had been obtained.

For the same reasons, the observation in [9] of his Honour’s reasons that “ER has never changed her evidence that GAR had sexual intercourse with her to which she did not consent” does not address the inquiry that would be directed by s 79(2), if that inquiry were embarked upon, as to whether there was a doubt or question as to the evidence on which GAR was convicted.

The primary judge’s statement (at [9]) that:

As explained further below, GAR submits that there is other evidence that ER’s own evidence at trial was false. Indeed, in what is apparently ER’s handwritten statement, after she said the words “G, please don’t”, ER now says that GAR waited for her daughter to be asleep before the assault occurred. That does not appear to be consistent with the evidence she gave at trial as to the course of events as recorded by the Court of Criminal Appeal in its 2003 reasons quoted above at [4]. Her evidence, as there recorded, rather suggested that the assaults followed immediately. [1]

In the reasons of the Court of Criminal Appeal in 2010 (GAR v R (No. 1) [2010] NSWCCA 163) the Court stated (at [114] and [117]) that ER gave evidence before that court that she did not know what her daughter heard or did not hear and she believed her daughter was asleep.

Harrison J said that whether ER’s admission in her 2015 declaration that she procured E falsely to corroborate her version of events was true or not true had been dealt with by Adamson J in dismissing GAR’s third s 78 application and by the Court of Appeal in reviewing that decision.

The Court of Appeal’s review of Adamson J’s dismissal of GAR’s third s 78 application did not endorse her Honour’s reasoning. The basis of the decision of the majority was that her Honour’s decision contained a justification which was both “evident” and “intelligible” and was accordingly not “legally unreasonable” (at [166] and [169]). Payne JA stressed that the question was not whether he would have reached the same conclusion as the primary judge about the existence of a doubt or question, or whether he disagreed, even strongly, with her Honour’s process of reasoning about an issue of fact (at [169]).

The power under s 79(3) for the Supreme Court to refuse to consider or otherwise deal with an application is conferred by the first sentence of that subsection. Paragraphs (a) and (b) provide circumstances in which the Supreme Court may refuse to consider or otherwise deal with the application, but they are not exhaustive. In the present case, Harrison J said that his order was made under s 79(3)(a). That is to say, the judge was not exercising any wider discretion to refuse to consider or otherwise deal with the application other than as described in para (a).

The exercise of the power under s 79(3) because one of the matters in s 79(3)(a) is satisfied is dependent also upon para (b) being satisfied. Harrison J did not address para (b). That is, his Honour did not say he was not satisfied that there were special facts or special circumstances that justified the taking of further action.

If a judge declines to act under s 79(3) only on the basis of a ground specified in s 79(3)(a) he or she is bound to consider whether under s 79(3)(b) there are special facts or special circumstances that justify the taking of further action.

It follows that it is unnecessary to consider the extent of the power of the Supreme Court to refuse to consider or otherwise deal with an application under s 79(3) in circumstances which do not fall within s 79(3)(a) and (b). No doubt that power is to be exercised having regard to the purpose of s 79 as a whole described by Basten JA in Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 at [52] and by Simpson JA in GAR v Attorney General of New South Wales (No. 2) at [65] as being a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, or to avoid an irremediable miscarriage of justice, or which raises doubt about the integrity of the process by which a guilty verdict has been arrived at.

There are cases (of which Li v Attorney-General for New South Wales [2019] NSWCA 95; (2019) 368 ALR 242, Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 and Clark v Attorney-General of New South Wales [2020] NSWCA 70 are examples) where the fresh application contained no new material that had not previously been considered and the material that had already been considered did not raise any doubt or question as to the applicant’s guilt or any mitigating circumstance or as to any part of the evidence in the case. In such a case the judge to whom an application under s 78 is referred can refuse to consider the application without elaborate reasons.

In Clark Basten JA (with the agreement of Macfarlan and McCallum JJA) said:

The power to refuse to consider or otherwise deal with an application under s 79(3) might not be confined to the summary dismissal of a repetitive application that raises no new material or is frivolous, misconceived or lacking in substance. Nonetheless, the standard of reasonableness required must have regard to the purpose of s 79 referred to at [80] above.

Harrison J did not say whether he was proceeding under s 79(3)(a)(i) or (ii) or both. A conclusion that the matter had been fully dealt with in the proceedings giving rise to the conviction or on proceedings on appeal from the conviction (s 79(3)(a)(i)) would be legally unreasonable in the sense of Li and disclose a constructive failure to exercise jurisdiction. Neither the Court of Criminal Appeal on appeal from conviction, nor the Court of Criminal Appeal on its review hearing in 2010 following the referral of the case to that Court by Barr J on 12 February 2009, dealt with the matter that ER had apparently confessed to suborning her daughter to give false evidence (s 79(3)(a)(i)).

Expressed in generalities, the matter of whether there was doubt or question as to GAR’s guilt or as to any part of the evidence in the case (s 79(2)) had been previously dealt with by Adamson J in 2016 (s 79(3)(a)(ii)). But, as GAR’s submissions pointed out, Adamson J had relied on the findings of the Court of Criminal Appeal of 2010 as establishing ER’s credibility when ER’s statements of 2 December 2015 raised questions or unease about her evidence given before the Court of Criminal Appeal in 2010. As GAR’s submissions pointed out ER was asked at the hearing on 29 April 2010 whether she gave false evidence in GAR’s trial. She said she did not. She was asked whether she procured E to give false evidence in that trial. She said she did not. Her apparent statement of 2 December 2015 is contrary to that evidence.

Adamson J gave no reason as to why ER’s statement did not give rise to a doubt about the evidence on which GAR was convicted, except for her Honour’s hypothesis that ER’s recanting might be explained by an inclination to assist E, or to assist GAR, or because her statement was “induced”.

E’s affidavit of 30 January 2019 and Mr Schumer’s affidavit of 8 February 2019 at least raises questions about those grounds.

That material was fresh. The judge could only have refused the application under s 79(3)(a)(ii) if he were not satisfied that the fresh material contained special facts or circumstances that would justify the taking of further action. His Honour did not address this consideration. That consideration had to be addressed if his Honour were to rely on s 79(3)(a) as the ground for refusing to consider the application.

If Harrison J exercised the general discretion under s 79(3), and if that discretion is unconstrained by the requirements of s 79(3)(b) applicable to the exercise of discretion under s 79(3)(a), nonetheless his reasons demonstrate legal unreasonableness for the reasons at [69]-[76] above.

The judge did not address these matters. This amounted to a constructive failure to exercise jurisdiction, a failure to consider relevant considerations and was legally unreasonable in the sense described in Li.

This was clearly not a case that could warrant summary dismissal on the basis that the application was frivolous, or vexatious, or repetitive with no new material, and disclosed no arguable ground for thinking there was a doubt or question as to the evidence on which GAR was convicted.

Since writing the above, I have had the advantage of reading in draft the reasons for judgment of McCallum JA. I maintain my view that the matters in s 79(3)(b) are mandatory relevant considerations if the judge exercises his or her discretion under s 79(3) on the basis of the matters in s 79(3)(a). That follows from the text.

But the decision in this case does not depend upon that question. It may be accepted that there is a general discretion under s 79(3) to refuse to deal with an application which is not constrained by, although it will be informed by, s 79(3)(a) and (b). An example could be an application under s 79, after the dismissal of an appeal against conviction or sentence, where the matter relied on was peremptorily and not fully dealt with on appeal because it was hopeless.

But the decision of Harrison J was legally unreasonable whether it was made under s 79(3)(a) (as his Honour said) or under the general discretion under s 79(3). For the reasons at [69]-[76], Harrison J’s reasons for refusing the application reveal that this Honour did not address GAR’s complaints.

I also do not accept that the judge addressed the question whether he should be satisfied or not satisfied of the existence of any special facts or circumstances that justified the taking of further action (s 79(3)(b)). If his Honour had done so he would have had to address the matters relied on by GAR.

As was explained in this Court’s 2017 judgment, no appeal lies under s 101 of the Supreme Court Act 1970 (NSW) from the decision because the judge was exercising an administrative function, not judicial power. The decision is at least reviewable for jurisdictional error. Whether it is reviewable on any other available administrative law ground, for example error of law on the face of the record (Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343 at [35] (Basten JA), does not arise.

In Minister for Immigration and Citizenship v Li, Hayne, Kiefel and Bell JJ said (at [65]-[68]) that whether an administrative decision made in the exercise of a statutory power or discretion can be impugned on the ground that it is unreasonable depends upon what, on the true construction of the statute, is the standard of reasonableness the decision maker is required to observe. Their Honours stated that the Wednesbury formulation of unreasonableness on the basis of which an administrative decision can be impugned can be:

The plurality also said (at [76]):

In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1, the Full Federal Court (Allsop CJ, Robertson and Mortimer JJ) said (at [47]) that:

In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Nettle and Gordon JJ said (at [84]):

In Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7 Gleeson J and Colvin J in their separate reasons considered the scope of review for legal unreasonableness where the reasons for the decision do not admit of an intelligible justification for the decision. Gleeson J said (at [35]):

Colvin J said (at [91]):

Colvin J’s approach was subsequently affirmed by the unanimous court in Tsvetnenko v United States of America (2019) 269 FCR 225; [2019] FCAFC 74 at [83].

In determining whether the judge committed jurisdictional error through legal unreasonableness the reasons for the decision will be the focal point for determining whether an intelligible justification for the exercise of the power exists. Focusing on whether the reasons for the decision admit of legal unreasonableness means that legal unreasonableness can be found even if another path could be taken to the same conclusion that did not involve legal unreasonableness (Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287] (Bathurst CJ)). Where the conclusion reached by the judge is within a range of legally permissible outcomes but the process taken fails to provide an intelligible justification it would be impermissible to re-exercise that discretion by taking another path on which the judge may not have necessarily reached the same conclusion, even though it may have been open, if he or she had taken that path.

Most of GAR’s oral submissions in support of the summons were directed to his challenge to findings made by various courts in respect of the evidence given by ER at trial that in the course of his assault of her, GAR had dug his fingernails into her face when he had his hand over her face to stop her calling out. She gave evidence at the trial that after she said “Please, please don’t hurt me, please don’t hurt me, please don’t do this to me, please don’t [G] ...”, he lunged towards her, grabbed both her arms very tightly, squeezed his fingernails into her upper arm just above her elbow, threw her onto the bed, pushed his hand over her mouth and nostrils and dug his fingers into her face so that she could not scream and could not breath. At the trial she was shown a photograph which she recognised as being a photograph taken of her. She could not recall when it was that the photograph was taken. She was shown another photograph, which she said showed scratches on her lower cheek on the left side. She was asked how extensive were the scratches and answered:

GAR contended that this evidence was false. He submitted that when ER made her complaint to the police on 14 January, she made no reference to any scratches on her face. He referred to the medical report of Dr Sterrett who examined ER on 14 January and made no finding of any scratches to her face. His certificate dated 12 February 2002 (only parts of which were before Harrison J, but which included the following) recorded ER’s complaint that GAR threatened her life, held her down with physical force with his hand on her face and throat and that she was vaginally raped with penile penetration and, she believed, ejaculation. His certificate stated that:

Dr Sterrett’s report included pages showing a stylised drawing of a person’s body with space to indicate the injuries shown on different parts of the body. Page 5 of the report which provided for a description of injuries to the face included no reference to injury.

Photographs of ER presented by the Crown at trial were included in the Court Book on the present application. GAR contended that they showed no injury to ER’s lower cheek on her left side, although he conceded that they showed a mark, which he contended was not a scratch.

GAR complained about how the evidence as to ER’s having been scratched on her face had been dealt with in the various hearings. In the appeal from conviction, Miles AJ who gave the leading judgment, said (at [14]):

His Honour erred in saying that Dr Sterrett’s report included a report of scratches to the left side of the complainant’s face.

This point was taken up, as would be expected, on the appeal in 2010. GAR said that the Crown at the hearing conceded that it was not possible to tell from the photographs tendered whether there was a scratch on ER’s face. In dismissing the appeal the Court of Criminal Appeal said (at [151](i)) that the complainant’s evidence “as well as the medical evidence” would have been more than sufficient to justify the jury in accepting the reliability of ER’s evidence and so being satisfied of GAR’s guilt beyond reasonable doubt. As to the medical evidence, the court referred to Dr Sterrett’s evidence that was consistent with the complainant’s history of assault quoted at [106] above, and continued (at [37]):

In her reasons of 4 December 2014 Adamson J concluded (at [49]):

GAR referred to exchanges in the course of submissions before the Court of Criminal Appeal which suggested that the court might not have had before it page 5 of Dr Sterrett’s report showing no injuries to the face. In any event, the injuries reported by Dr Sterrett quoted above and quoted by the Court of Criminal Appeal made no reference to any such injury.

GAR complains that Dr Sterrett’s report was not “entirely consistent with the injuries ER said she sustained during the struggle with the appellant”. He made no reference to injury to ER’s face.

GAR also complains that Dr Sterrett’s report was that the injuries observed neither confirmed nor refuted ER’s account.

This court was informed that Dr Sterrett was not called at the trial. GAR said that he was overseas at the time of the trial.

GAR then complained about how his application for review which raised this ground was dealt with by Adamson J in her judgment of 4 December 2014. In particular, GAR submitted that ER gave evidence at the trial that the scratches on her face had been pointed out to her in the hospital. He said that that statement was not credible, given the absence of any reference to such injuries in Dr Sterrett’s report. He complained that Adamson J did not deal with that point in her reasons of 4 December 2014.

Harrison J did not deal with these matters. If this had been the only point available to GAR I think Harrison J would have been justified in proceeding under s 79(3).

Because a declaration should be made, the effect of which will be that GAR’s application should be further considered, I express no view on the cogency of GAR’s submission.

As Basten JA explained in Sinkovich, there is an unresolved question or doubt as to whether an order in the nature of certiorari and mandamus can be issued to a superior court judge even though the judge is acting in an administrative, and not judicial, capacity. As in that case, and as proposed by Simpson JA in GAR v Attorney General of New South Wales (No 2), and by Brereton JA in Li v Attorney General of New South Wales the appropriate course is to make a declaration pursuant to s 75 of the Supreme Court Act.

I propose the following order:

McCALLUM JA: I have had the benefit of reading the judgment of White JA in draft. I respectfully disagree with the conclusion his Honour has reached, for the following reasons.

My different conclusion is founded primarily upon a different understanding of the nature of the discretion under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW) to “refuse to consider or otherwise deal with” an application under s 78 and perhaps also a different understanding of the basis on which the exercise of that discretion is amenable to judicial review. According to my understanding of those matters, the applicant has not established a basis for the relief sought.

The nature of the discretion must be considered in the historical and procedural context in which the opportunity to seek an inquiry into conviction or sentence exists. The relevant legislative history is set out in the judgment of Heydon J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [64]-[75]. As there explained, legislation conferring authority on a judge of the Supreme Court (then only by direction of the Governor) to conduct an inquiry after the conviction of a prisoner in order to resolve a doubt or question as to the prisoner’s guilt was first introduced in 1883, well before the existence of any right of appeal against conviction. That is not to say that the possibility of seeking an inquiry has become redundant; on the contrary, as noted by Basten JA in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [52], when appeals became available, the mechanism for resolving doubts or questions as to the soundness of a conviction or sentence “was not removed but was, indeed, improved upon and made more readily accessible”.

Basten JA made those remarks in the context of a discussion of the potential conflict, in the argument for such an inquiry, between the demands of finality and the demands of justice. The whole of the relevant passage at [52] warrants repeating:

It may be accepted, in accordance with those remarks, that the availability of an accessible mechanism for resolving a doubt as to the basis for infringement of a person’s liberty that emerges after conviction and sentence remains important. However, the introduction of appeals necessarily repositioned that mechanism in the hierarchy of appeal and review. So much is plain from the scheme of s 79, which contemplates that the appeal process should first be exhausted before an application for an inquiry will be considered.

In that context, s 79 authorises three courses that may be taken by the judge to whom an application under s 78 is referred. The judge may:

Where the judge decides to consider an application, he or she may take action of the kind identified s 79(1). However, such action may only be taken if the “gateway” in s 79(2) is passed. Section 79(2) provides:

By contrast, s 79(3) is self-contained. In Clark, I noted that the discretion conferred by that section is not conditional upon the establishment of any particular matter and, while the matters stated in pars (a) and (b) serve as a guide to the proper limits of that power, its exercise is not conditional upon their being satisfied: at [39], Basten and Macfarlan JJA agreeing at [3] and [11] respectively; see also the additional remarks of Basten JA at [7]. It may be accepted that the proper exercise of the discretion to refuse to consider an application will require some consideration of the material on which the application is based and the circumstances in which it is brought: Clark at [6] per Basten JA. The consideration to be given to those matters will of course be informed by the content of the task the judge is considering whether to undertake, which in turn calls attention to the terms of the gateway provision in s 79(2).

As White JA has noted, the gateway provision does not put the bar so high as to require an applicant to establish the appearance of a doubt or question as to the convicted person’s guilt; it is enough (to satisfy the gateway) if the application concerns the evidence in the case. However, it does not follow that action under s 79(1) is required in every case in which any aspect of the evidence is impugned. As Basten JA explained in Sinkovich, the section is concerned with the soundness of the conviction (or sentence). The statute does not confer an entitlement to an inquiry, only an entitlement to seek one. Where the application relies on new evidence said to give rise to the appearance of doubt as to the evidence in the case, some evaluative judgment must be undertaken as to the cogency of the matters relied upon and their materiality to the soundness of the conviction.

White JA holds that Harrison J “could only have refused the application under s 79(3)(a)(ii) if he were not satisfied that the fresh material contained special facts or circumstances that would justify the taking of further action”. White JA considers that it was necessary for Harrison J to address that issue “if his Honour were to rely on s 79(3)(a) as the ground for refusing to consider the application”.

In my respectful opinion, that analysis misconceives the breadth of the discretion to refuse to consider an application. I accept of course that an application under s 78 has to be considered in good faith and that the scope of the discretion is otherwise confined at least by the subject matter, scope and purpose of the legislation under which it is conferred, as I said in Clark at [44]. My point is that the lawful exercise of the power is not conditional upon satisfaction as to the matters listed in s 79(3)(a) and (b), even though those matters strongly guide the proper exercise of the discretion.

Harrison J recorded his decision in the following terms: “I consider that in all of these circumstances I should refuse to consider or otherwise deal further with this application in accordance with s 79(3)(a) of the Act”: at [12]. The use of the phrase “in accordance with” does not suggest that his Honour put all else out of his mind, nor could those words constrain an otherwise unconstrained discretion. As already explained, it is not the case that the discretion may only be exercised if the matters identified are established or if a “ground” in s 79(3) is made out.

Further, as observed by Basten JA in Clark at [7], with respect to the consideration in s 79(3)(a)(ii), the purpose of the reference in s 79(3)(b) to “special facts” and “special circumstances” is obscure. To have spelled out such a matter in the statute may be taken to reflect cautious legislative drafting. Ex hypothesi, a judge acting in good faith who was satisfied that there were special facts or special circumstances that justified the taking of further action would do so. Rather than viewing that as a mandatory consideration to which his Honour failed to have regard, I would take it to be a necessary implication of his Honour’s exercise of the discretion to refuse to consider the application that he was not satisfied as to the existence of any special facts or special circumstances that justified the taking of further action.

Furthermore, that conclusion is implicit in his Honour’s reasons at [11]. Having identified the substantial issue to which GAR’s application was directed as being “the jury’s acceptance of ER as a witness of truth” in the face of her alleged influence upon her daughter’s evidence, his Honour was not satisfied that there was “anything that suggests why that issue should now be looked at again”.

The scope of the discretion not to consider an application informs the content of the grounds on which its exercise is amenable to judicial review. It is uncontroversial that the determination of an application under s 78 is amenable to review for jurisdictional error. The more difficult question is to determine what that means in the case of an (almost) absolute discretion. In a delightful discussion of that topic, ‘The Return of the (Almost) Absolute Statutory Discretion’ in Janina Boughey and Lisa Burton Crawford (eds), Interpreting Executive Power (Federation Press, 2020) 129 at 129, Professor Matthew Groves refers to Ronald Dworkin’s explanation of the notion of discretion:

Professor Groves notes that this reasoning defines discretion by the absence of other things (restrictions). An important consideration in determining the tightness of the belt around the discretion under s 79(3) is the repository of the power (a judge exercising non-judicial power) and the context in which it falls to be exercised (after a trial and after the opportunity to exercise all rights of appeal).

Section 79(4) is also significant. That section provides:

The designation of the proceedings as “not judicial proceedings” is a necessary corollary of the existence of the authority conferred by s 79(3) not to consider an application; a judge exercising a judicial function could not refuse to exercise the court’s jurisdiction properly invoked.

The new material relied upon in the present case consisted of the affidavit of Mr Schumer dated 8 February 2019 deposing to words said to him by ER (“after what that man has put me through, I want nothing to do with him. I have been dragged through so many court cases which has taken a huge toll on me over the years. I will never do anything to help him”) and an affidavit of E dated 30 January 2019 expanding on her most recent account of the events of the night and her reasons for giving different accounts in the trial and before the Court of Criminal Appeal. There is no new direct evidence from ER.

White JA notes that Harrison J’s reasons at [8] fastened on the question of guilt and did not address the question of any doubt as to the evidence in the case. His Honour holds at [91] that Harrison J’s failure to address the issues raised by the evidence “amounted to a constructive failure to exercise jurisdiction, a failure to consider relevant considerations and was legally unreasonable in the sense described in [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18].”

I respectfully disagree. The statute authorises the court to refuse to consider an application. That discretionary power is not unconstrained; none is: Li at [23]. But nor is it to be construed so narrowly as to leave no scope for the exercise of judgment on the part of the judge to whom an application is referred. The Act does not disclose an intention that every application that raises a doubt as to any aspect of the evidence in the case must necessarily be considered. It is rare for there to be no doubt as to any aspect of the evidence in a criminal case. Part 7 finds its place within a suite of protections in the Crimes (Appeal and Review) Act and the Criminal Appeal Act against miscarriage of the processes of the criminal justice system. The object of providing “a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence” referred to by Basten JA in Sinkovich is not unilaterally for the benefit of convicted persons. Just as a potentially unsound conviction should properly be the subject of inquiry or referral to the Court of Criminal Appeal, a sound conviction should stand, at some point finally so. The existence of the discretion not to consider a Part 7 application is an important and valuable aspect of the function conferred on the court by the Act.

For my part, I do not think s 79(3) is to be construed as being subject to a limitation requiring the court to consider and address any application based on new evidence that contradicts or undermines other evidence in the case. The discretion not to consider an application (beyond considering it to the extent necessary to form a view as to whether to exercise the discretion under s 79(3)) calls for an evaluative assessment which will ultimately be guided by fairness.

For the same reasons, I would respectfully doubt the correctness, in the present context, of White JA’s analysis at [87] that “focusing on whether the reasons for the decision admit of legal unreasonableness means that legal unreasonableness can be found even if another path could be taken to the same conclusion that did not involve legal unreasonableness (Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287] (Bathurst CJ))”. The Chief Justice’s remarks in that case were directed to the reasoning in support of a decision on factual matters essential to the making of a finding of corrupt conduct.

A decision under s 79(3) is of a different kind. The section permits the judge to decline to consider an application including where he or she is satisfied of certain matters and not satisfied of certain matters. If it could be concluded, without legal unreasonableness, that it was open to refuse to consider an application, the availability or appropriateness of declaratory relief might be doubted.

The applicant specified three grounds for review, as follows:

Ground 1 asserts the existence of a requirement, when a judge is considering an application under s 78, to assess the credibility of any fresh evidence on the view most favourable to an applicant. The very same ground for review was rejected in GAR (No 2) at [177]-[179] (Payne JA, with whom Beazley P agreed). No authority to the contrary was cited by the applicant. This ground should be rejected.

Ground 2 asserts error in reaching the view that the fresh evidence did not “overcome” s 79(3)(a) of the Act. The applicant submitted:

The submission misconceives the nature of the discretionary power to refuse to consider an application, for the reasons already explained. As submitted on behalf of the Attorney General, it was open to Harrison J, in the exercise of his discretion, to refuse to consider or otherwise deal with the applicant’s fourth s 78 application on the basis that the matter had previously been dealt with. The affidavit material relied upon in support of the application did not include anything new from ER. The applicant relies on the evidence of Mr Schumer to undermine the hypothesis posited by Adamson J that ER might have signed the statutory declaration in 2015 because she had nothing to lose in assisting GAR after he had served his sentence. Adamson J said at [44]:

The applicant noted in his written submissions that her Honour’s reasoning has no relevance in the present case because he “is in custody and has been in custody, essentially based on the evidence of ER since 2002 and is not due for release until 2021 earliest and 2027 fulltime.” So much was clear from the applicant’s evidence before the Court of Criminal Appeal when the matter was referred by Barr J. In an interlocutory judgment of McColl JA in the earlier proceedings for judicial review, her Honour recorded that the applicant is presently serving lengthy terms of imprisonment for two armed robbery offences in respect of which ER gave “what was clearly important evidence for the Crown” at two separate trials: GAR v Attorney General of New South Wales and Supreme Court of New South Wales [2017] NSWCA 47 at [7].

It may be accepted that Mr Schumer’s evidence appears to refute one of the reasons postulated by Adamson J as to why ER might have been inclined to provide the 2015 statutory declaration supporting E. However, that is not material to the soundness of the conviction. Taking the evidence at its highest (which is generous, given that it consists of a single, untested statement shorn of any context), it goes no further than to indicate an attitude that is entirely consistent with the offence having been committed exactly as ER described.

So far as E is concerned, her affidavit does elaborate upon the content of the 2015 statutory declaration considered by Adamson J. However, in my view, it was open to conclude that the affidavit did not take the matter any further than the position as it stood before Adamson J. The matter raised by that application was an assertion by E that she had been asked by her mother to give false corroboration of what she evidently believed to be a true complaint of sexual assault together with an admission by ER that what E said in that respect was true. That matter went to the general credibility of ER. The new material does not take that issue any further. The essence of the fourth application was to cavil with the reasoning of earlier decisions without providing any new basis for doubting the soundness of the conviction.

It is important in that context to recall the scope of this Court’s jurisdiction. This is not a review of the merits of the decision of Harrison J, let alone of the merits of the decision of Adamson J. The single question for this Court is whether Harrison J’s decision entailed jurisdictional error. I am not persuaded that it did.

Ground 3 raises no further issue beyond those raised by grounds 1 and 2.

For those reasons, I am of the view that the summons should be dismissed with an order that the applicant pay the respondent’s costs.