Application by TDP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   By application filed on 5 February 2018, TDP (“the applicant”) makes application for an inquiry into his conviction pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”).

2. [2]

   Although these are not judicial proceedings, the Supreme Court may consider any written submissions made by the Crown with respect to an application: s 79(4) of the CAR Act.

3. [3]

   On 15 March 2018, the Attorney General filed submissions in response pursuant to s 79(4) of the CAR Act.

4. [4]

   On 14 May 2018, submissions in reply were filed by the applicant annexing certain court attendance notices.

5. [5]

   On 25 June 2018, the Attorney General filed further submissions in reply.

6. [6]

   The Attorney General does not support the application on the basis that it raises no special facts or special circumstances that justify the taking of further action and that all but one of the grounds raised have already been comprehensively dealt with by the Court of Criminal Appeal (“CCA”): ss 79(3)(a)(i) and 79(3)(b) of the CAR Act.

7. [7]

   On 15 May 2012, the applicant was convicted by a jury following a trial before Toner DCJ on 11 counts of sexual assault committed against his stepdaughter over a three-year period when she was 13 to 16 years of age. Those 11 counts included nine counts of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900 (NSW) and two counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act. The applicant’s conduct ranged from indecent assault to penile-anal intercourse, penile-vaginal intercourse and fellatio.

8. [8]

   The applicant was sentenced to an effective sentence of imprisonment comprising a non-parole period of seven and a half years (15 May 2012 to 14 November 2019) with a balance of term of three years expiring on 14 November 2022. The individual sentences were as follows:

9. [9]

   The applicant appealed against his conviction to the CCA and the Crown appealed against the inadequacy of the sentence. The Crown appeal was dismissed on discretionary grounds and the appeal against conviction was also dismissed: TDP v R; R v TDP [2013] NSWCCA 303. Although the applicant was represented by Mr Dhanji SC on the Crown appeal, he was self-represented on his appeal against conviction.

10. [10]

    No application for special leave to appeal to the High Court was ever filed by the applicant.

11. [11]

    It is necessary to first have regard to the relevant legislation and principles.

12. [12]

    Section 78(1) of the CAR Act provides:

13. [13]

    Section 79 of the CAR Act provides:

14. [14]

    This Court may refuse to deal with an application such as this if the matters raised have already been fully dealt with, including in a CCA appeal provided that the Court is not satisfied that there are “special facts or special circumstances that justify the taking of further action.”

15. [15]

    As Spigelman CJ observed in Kirk Group Holdings Pty Ltd v Workcover Authority of New South Wales (2006) 66 NSWLR 151; [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] that “…this is remedial legislation designed to overcome the injustices that sometimes arise in the course of the administration of criminal justice.”

16. [16]

    In determining an application under Part 7 of the CAR Act, the Court is making an administrative decision: Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124]. 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 (“Peter Holland”). His Honour stated the following at [6]-[9]:

17. [17]

    In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 (“Sinkovich v Attorney General”), Basten JA referred at [64] to the test stated in Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 of whether there is a feeling of “unease” or “disquiet” (referred to by Johnson J above at [6] in Peter Holland). His Honour went on to observe at [65] that “[t]his language does not assist. There is no purpose served by adopting other words than the statutory language of ‘doubt or question’.”

18. [18]

    In Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221, Beazley P and Leeming JA observed at [16]:

19. [19]

    The primary submission of the Attorney General is that the Court should refuse to consider or otherwise deal with this application under s 79(3) of the CAR Act as nearly all of the issues raised therein have been fully dealt with by the CCA and as there are no special facts or special circumstances that justify the taking of further action. The Attorney General submits that the applicant exercised his right to appeal to the CCA against his conviction (but not his sentence) and there is no fresh evidence now raised in this application nor anything that could lead the Court to be satisfied that there are special facts or special circumstances that justify the taking of further action.

20. [20]

    When I first read the application, the submissions relied upon by the Attorney General and the decision of the CCA, I was satisfied that no new arguments were raised and nor were there are any special facts or special circumstances that justify the taking of any further action in this matter. My initial position was that I should refuse to consider the matter under s 79(3) of the CAR Act. When I came to provide my reasons for coming to that conclusion (as I am required to do), I necessarily considered each of the specific complaints relied upon by the applicant. Thus, despite the fact that it was clearly open to me to refuse to consider this application, I have instead considered it and have formed the view that no doubt or question arises as to the applicant’s guilt, any mitigating circumstances in his case or any part of the evidence in the case.

21. [21]

    My conclusion that that no doubt or question arises as to the applicant’s guilt is reinforced by the fact that, after defending these charges at trial, the applicant made voluntary admissions to a forensic psychologist prior to his proceedings on sentence and invited the sentencing judge to have regard to his remorse as a mitigating factor on sentence.

22. [22]

    The applicant has prepared his application himself. Attached to it was an affidavit sworn by the applicant on 23 November 2017 explaining the delay in bringing the application. That explanation included the time taken in obtaining the relevant papers and being self-represented. A number of other documents were attached to the application including a copy of a search warrant, a map, a drug analysis report and various other documents from the brief of evidence for trial.

23. [23]

    The applicant has listed under a heading “Grounds for judicial review” the following five grounds (I do not propose to identify the grammatical and other errors in the application and have instead extracted the relevant portions from the application as they appear therein):

24. [24]

    Ground 1 was only partially raised in the appeal to the CCA but is misconceived in any event. Grounds 2 and 3 concern the evidence at trial concerning “green pills”, an issue that was considered by the CCA at length, and grounds 4 and 5 concern the sentence imposed. I will deal with these grounds in turn.

Grounds 1-3: no doubt or question about the applicant’s guilt

1. [25]

   In support of ground one the applicant has extracted various provisions of the Criminal Procedure Act 1986 (NSW) including s 6 (certain defects do not affect the indictment), s 7 (which includes a definition of an “indictment” as including a court attendance), s 8 (prosecution of indictable offences), s 20 (an indictment may not be amended except with the leave of the court or the consent of the accused) and s 142 (which outlines what is required in a prosecution’s notice). In addition, reference is made to the Prosecution Guidelines of the Office of the Director of Public Prosecutions and a number of decisions including the High Court decisions of Mallard v R (2005) 224 CLR 125; [2005] HCA 68 and Grey v R (2001) 184 ALR 593; [2001] HCA 65 and the CCA decision of R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281.

2. [26]

   The applicant’s argument is somewhat difficult to follow but appears to be a complaint that the date range for count 8 in the indictment presented at trial was different to the date range in the court attendance notice in the Local Court and that there was a failure to disclose further statements when the amendments were made.

3. [27]

   It is unclear on the material before me whether the trial indictment was the same indictment on which the applicant was arraigned when his matter was first committed to the District Court for trial. Although it is dated 7 May 2012 (a few days before the trial commenced) that does not necessarily mean that it differed in its terms to the indictment first presented in the District Court. Leave (or consent) is only required to amend an indictment pursuant to s 20 of the Criminal Procedure Act if an indictment has already been presented in the relevant jurisdiction and amendments are sought to be made after that time.

4. [28]

   Although the applicant complains about there being two indictments, I have only been provided with a copy of one indictment. The other documents provided include a list of the court attendance notices in the Local Court on which he was committed for trial. The DPP was not prevented from presenting an indictment in different terms to the court attendance notices. Nor is there any obligation to serve additional statements when a bill of indictment is found in different terms to the indictment so long as the overriding duty of disclosure has been complied with. There is nothing to suggest any general breach of this duty. The complainant’s lengthy recorded interview was provided to the applicant but it was not put before the jury as it disclosed considerably more criminal conduct than was contained in the indictment.

5. [29]

   Complaint is made in the supplementary submissions that a “doubt or question” as to the applicant’s guilt arises “in the context of a denial of procedural fairness in the circumstances” of his trial arising from breaches of the Crown’s obligation under the Criminal Procedure Act in relation to the non-disclosure of “material evidence identifying the essential ingredient of time in count 8”. The applicant seems to complain that he was not aware before the trial that the complainant stated that she had attended a party during the time period covering count 8.

6. [30]

   The applicant appears to be confused about the evidence in support of different counts on the indictment. He made the same mistake in his arguments in the CCA. In both instances, complaint is made that the allegation fell outside the time frame on the indictment. The CCA dealt with this complaint at [91]-[94] as follows:

7. [31]

   The CCA found that the incident the subject of count 8 occurred within the timeframe averred in the indictment.

8. [32]

   The applicant addresses these findings by the CCA in his application in the following terms:

9. [33]

   In his second submissions the applicant states:

10. [34]

    These complaints made by the applicant take the matter no further than the findings of the CCA extracted above.

11. [35]

    There is nothing before me to suggest that the indictment was defective in any way such as to render the trial a nullity. There are no “special facts or special circumstances” that justify the taking of further action identified by the applicant in relation to ground 1.

12. [36]

    These two grounds mirror a number of the grounds dealt with by the CCA at length. They concern a complaint about the admissibility of evidence of “green tablets” at the trial. The application includes portions of the transcript pertaining to this issue. This ground also contains criticism of the Crown Prosecutor and reliance is placed in this respect on Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334. This complaint appears to be that the complainant should not have been permitted to give evidence as to the green tablets and that such evidence should have been excluded under s 137 of the Evidence Act 1995 (NSW).

13. [37]

    Count one was said to have occurred after the complainant and the applicant had both gone to a Gwen Stefani concert and stayed in a motel room together. The complainant alleged that she had been given tablets by the applicant to swallow before bed and he did not tell her what they were. She fell asleep and when she woke up she found the applicant was on top of her having penile-vaginal intercourse with her: see CCA [8]-[12].

14. [38]

    The applicant complains that the trial progressed on the basis that he had administered an intoxicant to facilitate a sexual assault. This is not the case. The trial judge had ruled that the only basis on which the tablets were allowed was that he had access to green tablets supporting the proposition that he had given the complainant tablets which went to the complainant’s credibility but not whether he had tried to stupefy her.

15. [39]

    The applicant also complains under ground 2 that a report by Mr Hosking, who was a forensic toxicologist, should have been before the jury. Mr Hosking had noted that there were no drugs detected in any of the complainant’s hair segments that he analysed. His report was in fact tendered by the Crown without objection at the trial and become exhibit G.

16. [40]

    These complaints were dealt with in detail by the CCA at [46]-[82]. It is necessary only to extract [70]-[73] and [75]-[79] to establish why these complaints are misconceived:

17. [41]

    The applicant also appears to suggest incompetence of counsel under ground 2. That complaint was also dealt with by the CCA under ground 13. The CCA dismissed the ground of incompetence: see [111]-[129]. No new material going to that issue is raised in the application.

18. [42]

    All of these complaints have already been dealt with by the CCA. There are no “special facts or special circumstances” that justify the taking of further action identified by the applicant in relation to grounds 2 and 3. I am satisfied that there is no doubt or question as to the applicant’s guilt or any part of the evidence in the case.

19. [43]

    There are two other matters relevant to this application disclosed in the CCA decision. The first of these pertains to the waiving of r 4 of the Criminal Appeal Rules 1952 (NSW). As Hoeben CJ at CL observed at [118]:

20. [44]

    The fact that the applicant was unrepresented at his CCA appeal was taken into account by that Court and the appeal grounds were considered despite the fact that ordinarily leave would have been refused on most of the grounds.

21. [45]

    The second matter raised is of greater significance to the question as to whether a doubt or question arises as to the accused’s guilt. The applicant made admissions to these offences after he was convicted and his counsel relied upon these admissions as a mitigating feature relevant to remorse in his proceedings on sentence. The details of this are set out by Hoeben CJ at CL at [120]-[122] as follows:

22. [46]

    The CCA decision goes on to note how the sentencing judge dealt with this change of position at [138] as follows:

23. [47]

    The CCA was not satisfied that any of the grounds were made out so the post-trial admissions made by the applicant did not directly arise for consideration by the CCA. Despite this, Hoeben CJ at CL dealt with the relevance of such admissions to the operation of the proviso at [123] – [127] before concluding at [128]:

24. [48]

    The applicant at no time disputes that the admissions were made. In fact he does not address the issue in his application at all save as when responding to the Attorney General’s submission that the post-trial admissions are a relevant factor to take into account in this application. When addressing ground 1 in his supplementary submissions, the applicant states:

25. [49]

    There are a number of differences between an appeal against conviction under s 6(1) of the Criminal Appeal Act 1912 (NSW) and an application under Part 7 of the CAR Act. I am making an administrative decision and would only order an inquiry or refer this matter to the CCA if it appeared to me that there is a doubt or question as to, relevantly, the applicant’s guilt.

26. [50]

    The only significant “new” material before me which was not before the jury is the evidence of the applicant’s admissions. I am satisfied that it is relevant to my consideration of this application that the applicant has admitted that he had sexual intercourse with his stepdaughter after he was convicted by the jury.

27. [51]

    I am satisfied that no doubt or question arises as to the applicant’s guilt or as to any part of the evidence in the case even putting to one side his post trial admissions. That conclusion is only strengthened by those admissions. There was nothing in the material before me to suggest that the applicant denies making those admissions. The CCA decision discloses that the applicant’s counsel put the admission before the sentencing court, presumably on instructions, and made submissions in relation to them.

Grounds 4 and 5: The sentence miscarried because of evidence of the green tablets

1. [52]

   Grounds 4 and 5 in the application pertain to the applicant’s sentence proceedings. Although an inquiry into a conviction under Part 5 can also extend to a sentence (Sinkovich v Attorney General at [29]-[31]), the applicant did not seek leave to appeal against the severity of the sentence imposed on him following being sentenced. No explanation is provided for why that is the case. Instead, the Crown appealed against the inadequacy of the sentence imposed on him. Section 79(3)(a)(iii) provides that one of the circumstances relevant to whether the Supreme Court may refuse to consider or deal with an application such as this is whether the applicant had a right to apply for leave to appeal but failed to exercise that right. As I have stated above, I have considered the application as it pertains to both the applicant’s conviction and sentence.

2. [53]

   The applicant now asserts for the first time under ground 4 that the sentencing process was unfair. The complaint appears to be that the applicant should not have been sentenced for intoxicating the complainant (this is based on the same submissions already made in relation to the tablets). There is no material before me to suggest that this occurred. Ground 5 repeats the complaint made in ground 4 and notes the terms of ss 38 and 61J of the Crimes Act to suggest that there was some breach of principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at the applicant’s sentence.

3. [54]

   In response to these complaints it is pertinent to extract some of the relevant portions of the CCA decision regarding the Crown appeal against the manifest inadequacy of the sentence imposed.

4. [55]

   Hoeben CJ at CL observed at [158] that he was satisfied that the sentencing judge had erred in failing to allow some accumulation between the sentence imposed for the offence in count 1 and that imposed for the offence in count 4 and that the course taken failed to “adequately reflect the criminality of those two offences.” After referring to the ten week delay between the sentence and the Crown appeal against sentence being lodged, his Honour went on to observe at [161]:

5. [56]

   His Honour concluded at [163] that:

6. [57]

   RA Hulme J observed at [168]:

7. [58]

   The CCA thus concluded that the overall sentence was manifestly inadequate but declined to intervene on discretionary grounds including the fact that the Crown had submitted that the sentencing judge adopt the approach his Honour ultimately took.

8. [59]

   In refusing this application insofar as it pertains to the applicant’s sentence I have had regard to: the fact that no application for leave to appeal against the severity of the sentence imposed on the applicant was ever made; the fact that the CCA only failed to intervene to increase the applicant’s sentence on discretionary grounds; and the fact that no material was put before the Court to suggest that the sentencing proceedings miscarried in any way that caused any unfairness to the applicant. I am satisfied that there is no doubt or question about a mitigating factor in his case either.

9. [60]

   For these reasons I refuse the application.