GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

HARRISON J: GAR brings an application under s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into his conviction for having sexual intercourse with his former wife ER without her consent. This application is the fourth such application that GAR has made. GAR had previously appealed against his conviction to the Court of Criminal Appeal. That appeal was dismissed: see R v GAR [2003] NSWCCA 224.

GAR’s first s 78 application was determined by Barr J on 2 February 2009. His Honour referred the matter to the Court of Criminal Appeal. That Court heard evidence and dismissed the matter referred to it: see GAR v R (No 1) [2010] NSWCCA 163. GAR’s second application was determined by Adamson J on 4 December 2014. Her Honour dismissed the application: see GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734. On 29 August 2016, Adamson J dismissed GAR’s third application: see GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205. That third application was itself the subject of judicial review in the Court of Appeal: see GAR v Attorney General of NSW (No 2) [2017] NSWCA 314. That judicial review application was also dismissed.

An examination of these decisions makes it clear that the evidence upon which GAR was convicted included evidence from ER and their daughter E. At GAR’s trial, E gave evidence that corroborated her mother’s account of some of the relevant events. Following GAR’s conviction, E sought to resile from that evidence or to retract it completely. That circumstance has been fundamental to the various proceedings in this Court, the Court of Appeal and the Court of Criminal Appeal since then. GAR contends that E’s disavowal of her original evidence given in support of ER at the trial is the result of E having been improperly pressured by her mother falsely to corroborate ER’s evidence.

Payne JA dealt with this issue in GAR v Attorney General of NSW (No 2) as follows:

GAR has provided detailed and lengthy written submissions in support of the present application which were filed on 25 February 2019. The Attorney General’s written submissions were filed on 18 April 2019. GAR furnished detailed written submissions in reply to the Attorney General’s submissions which were filed on 28 May 2019. GAR’s present application is also supported by two affidavits, one from E and one from Greg Schumer, a solicitor. Mr Schumer deposes to a conversation with ER on 1 November 2018 in which he asked her to assist GAR in “the appeal enquiry” by providing an affidavit. ER refused to do so.

E’s affidavit is much longer. In essence, it is a brief historical review of E’s feelings about her involvement in the events that founded GAR’s charges and E’s assertion that her mother asked her to say that she heard her mother crying in the middle of the night saying “please don’t [GAR], please don’t”. She also said, “Mum told me the police wouldn’t believe her on her word and made me rehearse this several times before the police arrived”.

The issue of whether or not E was telling the truth at the trial, whether ER told her falsely to say that she heard ER crying during that night, whether the circumstances in which E came to resile from her evidence were significant or credible, as well as a series of closely related issues of varying degrees of difference, have all been thoroughly, not to say exhaustively, examined and re-examined in the several determinations and decisions listed earlier in these reasons.

In the understandable nature of things, GAR’s lengthy submissions reproduce much of what has been said by some of the judges who have dealt with his various appeals and applications. He is not to be criticised for that. I mention it here in order to emphasise that I have not been able to identify any issue or contention that even comes close to raising a new issue, or a significant variation of an old issue, that causes me to pause and reflect upon the question of GAR’s guilt.

The burden of GAR’s approach has always been that ER was herself lying and that E was asked by her to lie as well. E has since admitted that she lied, although it is fair to say that her retraction remains attended by doubt and controversy. However, that can for present purposes be put to one side. ER has never changed her evidence that GAR had sexual intercourse with her to which she did not consent. Nothing in the material to which GAR’s detailed submissions refer suggests any departure by ER from her previous evidence or her 2015 statement considered in GAR’s third s 78 application. GAR is seeking no more than that these matters be looked at again, but with no relevantly new material to support an inference that a different result or conclusion might then emerge. The position would be quite different if GAR could demonstrate that ER’s own evidence at his trial was false, not merely that ER may have suborned their daughter to support her. The question whether ER’s admission in her 2015 statutory declaration that she procured E falsely to corroborate her version of events is true or not true has been dealt with by Adamson J in dismissing GAR’s third s 78 application and by the Court of Appeal in reviewing that decision.

Section 79 of the Crimes (Appeal and Review) Act is in the following relevant terms:

A review of GAR’s persistent attempts to review his conviction serves to highlight what I perceive him to say is the enduring contradiction, namely, that the jury’s acceptance of ER as a witness of truth at his trial may well have been cast into doubt if ER’s alleged influence upon her daughters’ evidence had been revealed as an issue for them to decide. As far as I am able to determine, however, GAR has been unable in this application to point to anything that suggests why that issue should now be looked at again.

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.