Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001

[2016] NSWSC 635

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635
Hearing dates:	On the papers
Date of orders:	17 May 2016
Decision date:	17 May 2016
Before:	Garling J
Decision:	Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, I refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912
Catchwords:	CRIMINAL LAW – application for inquiry into conviction – Crimes (Appeal and Review) Act 2001, s 78 – where applicant convicted of possessing child abuse material under s 91H(2) of the Crimes Act 1900 – where applicant pleaded guilty on erroneous advice that “child” within the meaning of s 91H(2) is a person under the age of 18 years – where Local Court and District Court erroneously proceeded on basis that “child” within the meaning of s 91H(2) is a person under the age of 18 years – whether doubt or question as to the applicant’s guilt
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth)
Cases Cited:	Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 R v Hawker [2005] NSWCCA 118 R v Wilkes [2001] NSWCCA 97
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Alex Jimenez (Applicant)
File Number(s):	2016/28255
Publication restriction:	Not Applicable

DECISION

1. Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (“the Act”), Alex Jimenez (“the applicant”) applies for an inquiry into his conviction for an offence contrary to s 91H(2) of the Crimes Act 1900 of possessing child abuse material on 2 June 2010.

2. On 10 January 2011, the applicant pleaded guilty to the offence in the Local Court. He was convicted of the offence and fined $6,600 by O’Shane LCM.

3. He lodged an appeal to the District Court of NSW, seeking leave to appeal against his conviction, to have his conviction quashed, and to have the matter returned to the Local Court to have the question of his guilt determined afresh.

4. On 5 September 2011, Berman DCJ refused the applicant’s application to appeal against his conviction.

Relevant Legislation

5. Sections 78 and 79 of the Act relevantly provide:

“78   Applications to Supreme Court

An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

79   Consideration of applications

After considering an application under section 78 or on its own motion:

the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

it appears that the matter:

has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

has previously been dealt with under this Part or under the previous review provisions, or

has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A) …

(3B) …

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).”

Applicable Principles

6. In determining this application, the Court is engaged in an administrative task or function. That function is not another avenue of appeal; it is a function engaged once the criminal justice system has run its course following a trial and an appeal: see Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [4] ff per Johnson J. That the proceedings are not judicial proceedings is expressly stated in s 79(4) of the Act.

7. This Court’s powers under s 79 are limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal, there being no power to quash a conviction or sentence. The precondition for the exercise of these powers is the appearance of a “doubt or question” as to guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case. This precondition will be satisfied if there is available material which causes the decision-maker “… unease or a sense of disquiet in allowing the conviction or sentence to stand”: Holland at [6].

8. Given the nature of the Court’s jurisdiction under Part 7, there is some flexibility involved in terms of the material which may be placed before the court in support of an application for an inquiry or referral to the Court of Criminal Appeal.

Relevant Factual Background

9. On 2 June 2010, Mr Jimenez was arrested at Sydney Airport as he entered Australia. During a search conducted of him and his possessions, a USB drive was found. A full examination of the USB drive conducted at a later point in time identified a total of 53 images, all apparently depicting the same female. The officer who examined the images formed the opinion that the female in them was approximately 12-14 years of age. By reference to the COPINE scale developed by the UK Sentencing Panel in 2002, the officer categorised the images in this way:

1. 31 images depicting erotic posing with no sexual activity (Level 1);

2. 13 images depicting the female masturbating (Level 2); and

3. 9 images showing the female in various poses restrained by ropes (Level 5).

10. As a result of this examination, Mr Jimenez was arrested and cautioned. He was interviewed.

11. Following the interview he was charged with a single offence of possession of child abuse material contrary to s 91H(2) of the Crimes Act. It was to this offence that he ultimately pleaded guilty.

12. After two further interviews, on 4 and 10 June 2010 respectively, Mr Jimenez was served with a court attendance notice for a further charge of using a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth).

13. On 14 September 2010, Mr Jimenez’s solicitor, Mr Watson, made representations to the Commonwealth Director of Public Prosecutions (“CDPP”) proposing that the Commonwealth offence be withdrawn and the State offence be dealt with in the Local Court’s summary jurisdiction. On 15 November, the CDPP replied to Mr Watson indicating that the course he proposed would be followed.

14. When the matter returned to Local Court on 30 November 2010, the Crown tendered to O’Shane LCM an agreed Statement of Facts, the full and complete transcripts of the three interviews between Mr Jimenez and officers of the Australian Federal Police (“the AFP”), and a disc containing the 53 images. Mr Watson provided various written submissions and tendered various documents on behalf of Mr Jimenez.

15. O’Shane LCM adjourned the matter for sentence to 10 January 2011 to allow herself time to read the tendered material, view the images, and enable witnesses to be called.

16. On 10 January 2011, the sentencing hearing took place before O’Shane LCM. This included the applicant himself giving evidence, and a number of the witnesses. Ultimately, the solicitor for the applicant submitted that an order should be made under s 10 of the Crimes (Sentencing Procedure) Act 1999 and that no conviction be recorded.

17. On 14 January 2011, O’Shane LCM convicted the applicant and imposed a fine of $6,600.

18. On 25 January 2011, the applicant lodged a Notice of Appeal, appealing his sentence to the District Court. In addition, the applicant sought leave to appeal against his conviction. The applicant contended before the District Court that although he had pleaded guilty to the offence in the Local Court, it could not be established that the images were of a child.

19. On 5 September 2011, Berman DCJ delivered two judgments, the first refusing leave to Mr Jimenez to appeal against his conviction and the second dismissing Mr Jimenez’s appeal against his sentence.

20. In the first judgment, Berman DCJ said the following:

“[The applicant] has sworn an affidavit. It indicates that the only issue that [the applicant] would have tested, were the matter returned to the local court, was the age of the person depicted in the photographs. It was his view that she is over the age of 18. Clearly, if the person in question was over the age of 18 then no offence has been committed.”

21. His Honour went on to say that both parties to the appeal had agreed that he should view the images. After viewing the images, his Honour said:

“I can say categorically that I am firmly of the view that there is no way in the world she is 18 or above. I fully appreciate that people mature, and more clearly young girls mature at different rates, but every aspect of the images suggests a girl well below the age of 18, and probably around the age of 13.”

22. Accordingly, his Honour concluded:

“I am satisfied beyond reasonable doubt that the images were clearly of a girl well below the age of 18. As was agreed, that is enough to determine this application. I refuse the application to allow [the applicant] to appeal against his conviction.”

Grounds of the Application

23. The Application is somewhat discursive. It is unfocussed, and deals with a wide range of matters, not all of which are directly relevant. As well, a number of documents have been supplied by the applicant in support of his Application, the relevance of which is unestablished.

24. The submissions made on behalf of the Attorney-General helpfully distil the Application into nine grounds. They are:

“(a)   That his plea of guilty should not stand as it was entered on incorrect legal advice and he had entered into a ‘false plea bargain’.

(b)   That he was sentenced by Magistrate O’Shane, who has been the subject of complaints to the Judicial Commission of NSW.

(c)   That his solicitor (Mr Watson) who appeared on his behalf at the Local Court hearing on 10 January 2011, failed to mention various matters on his behalf.

(d) That various defences were available to the Applicant under s 91H(4)(a), (c) and/or s 91H(5) of the Crimes Act 1900.

(e) That no conviction or fine should have been imposed, and an order should have been made under s 10 of the Crimes (Sentencing Procedure) Act 1999.

(f)   That Judge Berman should not have granted his sister, Ms Abraham, leave to appear on his behalf at his District Court appeal. It is also suggested that Judge Berman was biased against him.

(g)   That Judge Berman failed to accord Mr Jimenez procedural fairness.

(h)   That it could not be proved that the females depicted in the images were children.

(i)   That he should be granted a pardon and removed from the child protection register, or granted a fresh hearing.”

25. As the relevant test under the legislation requires me to consider whether there appears to be a doubt or question as to the applicant’s guilt or, put another way, whether the available material causes me unease or a sense of disquiet in allowing the conviction to stand, it is unnecessary for me to consider every ground if one of the grounds leads to that state of mind.

26. Conveniently, I will commence with a consideration of the first ground nominated by the applicant, as encapsulated by the Attorney-General, namely whether the applicant’s plea of guilty should not stand as it was entered into on an incorrect legal basis.

Discernment

27. The charge to which the applicant pleaded guilty was contrary to s 91H(2) of the Crimes Act, namely being in possession of child abuse material. For the purposes of that section, “child” is defined in s 91FA of the Crimes Act as a person who is under the age of 16 years.

28. For the purposes of the Commonwealth offence with which the applicant was initially charged under s 474.19 of the Criminal Code Act, namely using a carriage service to access child pornography material, “child pornography material” is defined in s 473.1 as material that depicts a person who is or appears to be under 18 years of age.

29. It is to be recalled that on the first occasion when the matter came before O’Shane LCM, her Honour was informed that the Commonwealth DPP was withdrawing the charge for the Commonwealth offence and only proceeding with the charge for the Crimes Act offence. Consequently, the prosecution needed to prove beyond reasonable doubt that the female depicted in the images was a person under the age of 16 years.

30. In the sentencing hearing on 10 January 2011, a factual issue arose before O’Shane LCM as to the age of the female depicted in the images. The following exchange occurred between the Bench, Mr Watson who was the applicant’s solicitor, and Ms Catsanos who appeared for the CDPP:

“Her Honour:   This is child pornography.

Watson:   It’s child pornography of a young girl. There’s a bit of dispute, but she’s in her teens, somewhere between 14 and …

Her Honour:   18, it would have to be.

Watson:   I think the prosecution said between 12 and …

Her Honour:   Is 18 the age of …

Catsanos:   That’s correct.

Her Honour:   Is for the law, our legal purposes …

Watson:   Yes, she’s a child.”

31. Her Honour was informed that while the precise age of the female was in dispute, the parties were at one that she was a “child” for the purpose of the Crimes Act offence.

32. In further exchanges between Mr Watson and O’Shane LCM, it became clear that O’Shane LCM had, by looking at the images, formed the view that the female was somewhere between the ages of 12 and 16, but that her Honour had in mind that the relevant age for the purpose of the charge was 18.

33. As recounted earlier, the applicant was convicted in the Local Court.

34. When Berman DCJ was considering the question of whether or not to grant leave to appeal against conviction, his Honour asked to look at the images. He did so. There was then a discussion with Ms Abraham, the applicant’s sister, to whom the Court had granted leave to appear on behalf of the applicant. The following exchange occurred:

“His Honour:   … well Ms Abraham, there’s many legal principles that govern the matter, there’s evidence that has to be called but it would all be futile, if I was satisfied that there is no possibility in the wide world that … young girl was older than 18 wouldn’t it?

Abraham:   Your Honour, I must say to your Honour I’m not convinced 100% sure that she is an 18 year old …

…

His Honour:   My question is, if I was satisfied that there is no way in the world that the person depicted in that image and the other ones I’ve seen, was under 18 then the proceeding further is futile, isn’t it?

Abraham:   Yes your Honour.”

35. Then his Honour took submissions from Ms Abraham on behalf of the applicant as to whether or not he ought to be satisfied beyond reasonable doubt that the female in the images was over 18 years old.

36. In his decision, Berman DCJ expressed the view that he was firmly satisfied that “… there is no way in the world she is 18 or above”.

37. It is clear from these exchanges that the wrong question has been addressed in these two proceedings. The prosecution had to prove, as an element of the offence under s 91H(2) of the Crimes Act, that the person depicted in the images found in the applicant’s possession was a “child”, being a person under the age of 16 years. Throughout these proceedings, it has been assumed, wrongly, that a “child” for the purposes of the Crimes Act offence is a person under the age of 18 years. In particular:

1. On 14 September 2010, Mr Watson wrote to the CDPP, stating that “[n]o issue is taken that the material depicts a female who appears to be under 18 and thus a child within the meaning of the legislation”;

2. In the Local Court proceedings, Ms Catsanos for the CDPP and Mr Watson for the applicant referred to the relevant age of a “child” as being under 18 years;

3. In the District Court proceedings, Ms Abraham for the applicant referred to the relevant age of a “child” as being under 18 years; and

4. Both O’Shane LCM and Berman DCJ proceeded on the understanding that the relevant age was18 years, and this understanding was not corrected.

38. Prima facie, a plea of guilty is an admission of all the elements of the offence. However, a miscarriage of justice may occur if a plea of guilty is permitted to stand in circumstances where there has been a failure on the part of the applicant to appreciate the true nature of the charge to which the plea was entered or, alternatively, that there was a mistake or other circumstance which affected the integrity of the plea as an admission of guilt: see Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 157. A miscarriage of justice will also occur if the advice of the applicant’s lawyers is imprudent, inappropriate or incorrect: see R v Wilkes [2001] NSWCCA 97; R v Hawker [2005] NSWCCA 118.

39. The Attorney-General in her submissions on this Application accepts that it is clear that the proceedings in both the Local Court and the District Court erroneously proceeded on the basis that the meaning of a “child” for the purpose of s 91H of the Crimes Act was a person under the age 18.

40. The Attorney-General accepts that this erroneous approach may itself be sufficient to give rise to a question or doubt as to the applicant’s guilt.

41. That question or doubt as to the applicant’s guilt could be resolved by me by looking at the images in question.

42. However, the Court has been informed that the images are no longer available. In that circumstance, the Attorney-General submitted that:

“It is conceded that if the images are no longer available, there would remain a doubt or question as to [the applicant’s] guilt, and the appropriate course would be for the matter to be referred to the Court of Criminal Appeal to be dealt with as an appeal pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act.”

43. I have concluded that I have a doubt or question as to the applicant’s guilt because of the erroneous approach of both of the Courts that have dealt with the applicant’s matter, and in particular the erroneous approach of the applicant’s solicitor in providing advice to the applicant as to whether or not it was in his interests to plead guilty to the offence. That doubt cannot be resolved by me in the absence of the images of the female in question.

44. In those circumstances it is inappropriate that I express any view as to the other grounds of the Application.

45. Accordingly, I conclude that it is appropriate for me to refer the matter to the Court of Criminal Appeal pursuant to s 78 of the Crimes (Appeal and Review) Act.

Order

46. I make the following order:

1. Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, I refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

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Amendments

25 May 2016 - Typographical error in [39]

Decision last updated: 25 May 2016