Application by Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3)

Petronella Boege (“the applicant”) makes application for an inquiry into her conviction at Bega Local Court on 5 January 2000 for one offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). The prosecution case was that, following a dispute over some photo albums in the context of a marital breakdown, the applicant punched her ex-husband several times in the head in the presence of a police officer, Senior Constable van der Hout. The applicant was convicted and fined $500.

The applicant appealed against her conviction to the District Court of New South Wales sitting at Bega. On 8 March 2001, Shillington QC DCJ heard that appeal and it was dismissed. The applicant was represented by counsel on the appeal.

This application for an inquiry into conviction is brought under section 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”).

This is not the first application brought by the applicant in relation to this conviction.

On 20 October 2010, the applicant first made application to this Court for an inquiry into her conviction under s 78(1) of the CAR Act. The principle complaints made in that application were that:

The first application was considered by Adamson J in reasons delivered on 27 March 2012. Her Honour considered the matters raised by the applicant in some detail. Her Honour was of the view that the issues raised in the application had all been fully dealt with in the original proceedings and/or in the District Court appeal and that there were no “special facts or special circumstances” which justified the taking of further action in respect of the application. Her Honour went on to make a finding that the application should be dismissed in any event because it did not raise any 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: Application by Petronella Boege for an inquiry into conviction and sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW), Adamson J, 27 March 2012, unrep) at [64]-[65].

Following the dismissal of that application, the applicant petitioned her Excellency the (then) Governor of New South Wales asking for a review of the conviction pursuant to s 76 of the CAR Act. The petition was declined on 30 January 2013.

The applicant then made a second application to this court under s 78(1) of the CAR Act. She relied upon there being new material, not available at the time that Adamson J considered the first application, which justified a further consideration of the matter. The “new material” was transcript of proceedings before Goldring DCJ on 4 December 2000, which was relied upon as proving that there had in fact been an order under what was then s 133 of the Justices Act 1902 (NSW) requiring the two prosecution witnesses Mr Boege and Senior Constable van der Hout to attend and give evidence at her conviction appeal at the District Court at Bega.

Wilson J formed the view that Goldring DCJ had not properly exercised the jurisdiction conferred on him by s 133 of the Justices Act and hence there was no valid order that bound Shillington QC DCJ to require the witnesses to attend. Her Honour noted that, as is the usual practice, the application had been dealt with in chambers on the papers and no submissions had been made by either the applicant or the Attorney-General as to that aspect of the application. In light of this, even though her Honour was of the view that there was no new material before the Court, she decided to consider the application on its merits in any event “to obviate any unfairness to the applicant”: at [62]. In detailed reasons published on 15 December 2015, her Honour concluded that she was not left with any doubt or question as to the applicant’s guilt or as to any mitigating circumstances or as to any part of the evidence in the case. That application was also refused: Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925.

On 25 January 2016, the applicant filed this third application under s 78(1) of the CAR Act again seeking an inquiry into her conviction.

As is the usual practice, submissions have been filed on behalf of the Attorney-General pursuant to s 79(4) of the CAR Act with respect to the application.

The relevant provisions in Part 7 of the CAR Act are as follows:

It can be seen that this Court may refuse to deal with this application if, inter alia, it has either been fully dealt with in the proceedings giving rise to the conviction or has previously been dealt with under this Part and if the Court is not satisfied that there are “special facts or special circumstances that justify the taking of further action.”

The relevant principles to be applied in determining an application pursuant to s 78 were considered by Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 commencing at [4]. Those principles were summarised by Wilson J in Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925 (by reference to the relevant paragraphs in the judgment of Johnson J) as follows:

As Spigelman CJ observed in Kirk Group Holdings Pty Limited v Workcover Authority of NSW [2006] NSWCA 172 at [5]; 66 NSWLR 151 at 154, Part 7 of the CAR Act has its origins in a legislative scheme that was an innovation in New South Wales. His Honour went on to observe of the predecessor to Part 7 at [8], “…this is remedial legislation designed to overcome the injustices that sometimes arise in the course of the administration of criminal justice.”

Johnson J recently considered the relevant principles governing repeated applications for an inquiry under Part 7 of the CAR Act in Milat, Ivan Robert Marko - Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209. His Honour traced the legislative history of the statutory test in s 79(3) of the CAR Act, which was previously contained in s 474E(3) of the Crimes Act 1900, and observed the following at [20]:

Given that there have been repeated applications to this Court for an inquiry into the applicant’s conviction, I must first consider the threshold question posed by s 79(3) of the CAR Act; namely, whether there are any special facts or circumstances that justify the taking of further action in this matter.

The applicant has prepared the application herself. It contains significant detail and numerous arguments are advanced therein. Those arguments are conveniently summarised in the submissions filed on behalf of the Attorney-General as follows:

The primary submission of the Attorney General is that the Court should refuse to consider or otherwise deal with this application under section 79(3) of the CAR Act because the issues raised therein have all been fully dealt with in the proceedings giving rise to the conviction, on appeal and in the previous applications under this Part and there are no special facts or special circumstances that justify the taking of further action. Although the applicant has sought to formulate her submissions differently in the present application, they are not new arguments.

The Attorney-General points to the fact that the applicant exercised her right to appeal to the District Court against her conviction in the Local Court. The applicant was represented by counsel on the hearing of that appeal. There is no fresh evidence now raised in this application and nothing that could lead the Court to be satisfied that there are special facts or special circumstances that justify the taking of further action. The applicant’s assertions about inconsistencies in the evidence of the prosecution witnesses and about the sequence of events, including her assertion that Mr Boege attacked her during the incident, were all fully ventilated in both the Local Court and the District Court as well as in the previous applications.

The Attorney-General further submits that, in any event, the application raises no doubt or question as to the applicant’s guilt or any part of the evidence in the case.

Having considered the application, the previous reasons provided by Adamson and Wilson JJ and the submissions relied upon by the Attorney General, I am not satisfied that there are any special facts or special circumstances that justify the taking of any further action in this matter. I accept the submission on behalf of the Attorney-General that there are no new arguments raised.

In addition to petitioning the Governor under s 76 of the CAR Act, the applicant has now made three applications to this Court, all of which effectively turn on the same complaint; namely, that the evidence of Mr Boege and Senior Constable van der Hout should not be accepted. As Wilson J observed in her reasons for refusing the second application at [72]-[74]:

Both Adamson and Wilson JJ were of the view that there was a proper basis for this Court to refuse to consider the application, but each went on to find that nothing in the applications raised a doubt or question about the applicant’s guilt, any mitigating circumstances, or any part of the evidence in the case in any event.

I note the observation by Johnson J that repeated applications to this court under s 78(1) of the CAR Act should be considered in the context of the waste of judicial resources that can flow from repeated unmeritorious applications for inquiries. The applicant has had the benefit of her application being considered twice already. I do not propose to consider the same material for a third time.

For the reasons set out herein I refuse to consider this application.