Templeton (a pseudonym) v Director of Public Prosecutions (NSW) (No 2)

THE COURT: The Court delivered judgment on this application for judicial review on 21 December 2018 ([2018] NSWCA 335). By notice of motion filed on 28 December 2018, the applicant sought an order setting aside that judgment and an order for the rehearing of her application. As the notice of motion was filed within the 14 day period specified in r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), the Court has a discretion to set-aside or vary its previous judgment if the circumstances warrant it.

On her application for judicial review, the applicant contended that her Local Court convictions, as affirmed in the District Court as a result of the failure of her appeal to that Court, should be quashed because the record of her police interview (“the ERISP”) should not have been admitted into evidence as she was not properly cautioned prior to it occurring. In support of her notice of motion, she contends that, in rejecting her judicial review application, this Court proceeded on a misapprehension that she had not been under arrest at the time of the police interview.

Even if it be assumed in the applicant’s favour that (i) she was under arrest at the time of the police interview, (ii) this would have rendered the caution insufficient and (iii) as a result, she would have had an argument both in the Local Court and District Court that the ERISP should not be admitted into evidence, her notice of motion should nevertheless be dismissed. This is because even if these assumptions are made in her favour she would still not have had any arguable case for judicial review of her convictions. In particular, as Macfarlan JA pointed out in the earlier judgment (at [27]-[28]), the ERISP was admitted into evidence with the consent of the applicant given through her counsel and, in the absence of demonstration of any exceptional circumstances, the applicant is bound by the conduct of her counsel (at [42]). Furthermore, as also pointed out by his Honour (at [44]), any error in admission of the ERISP into evidence would not have constituted a jurisdictional error, that type of error being necessary to found the applicant’s application for judicial review.

For the same reasons, the matter relied upon by the applicant on her notice of motion, even if substantiated, would not affect the conclusion of Basten JA (with whose judgment Meagher JA agreed) that the applicant did not establish any arguable basis for her judicial review application.

For these reasons, the notice of motion filed on 28 December 2018 should be dismissed with costs.