Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

[2020] NSWSC 1048

Supreme Court

New South Wales

Medium Neutral Citation:

Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2020] NSWSC 1048

Hearing dates:

On written submissions

Date of orders:

11 August 2020

Decision date:

11 August 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The application is dismissed.

Catchwords:

CRIME — appeal and review — application to Supreme Court under Part 7 — application for inquiry into conviction — discretion for summary disposition of application — whether Court should consider or otherwise deal with application — where applicant relies only on matters previously raised at trial and on appeal

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79

Criminal Appeal Act 1912 (NSW), s 6

Criminal Procedure Act 1986 (NSW), s 306S

Cases Cited:

Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001(NSW) (No 2) [2019] NSWSC 1412

Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928

Application of Dunn [2005] NSWSC 857

Application of Esposito (Supreme Court (NSW), Hunt CJ at CL, 14 July 1988, unrep)

Application of Milat [2005] NSWSC 920; 157 A Crim R 565

Application of Peter James Holland under s.78 Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251

Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145

AZ v R [2018] NSWCCA 294

AZ v The Queen [2019] HCASL 192

Clark v Attorney General of New South Wales [2020] NSWCA 70

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28

Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172

Varley v Attorney General(NSW) (1987) 8 NSWLR 30

Category:

Principal judgment

Parties:

AZ (a pseudonym) (Applicant)
Attorney General of New South Wales (Respondent)

Representation:

Counsel:
G Wright (Respondent)

Solicitors:
Crown Solicitor’s Office (Respondent)

Applicant (self-represented)

File Number(s):

2019/397463

Publication restriction:

Nil

Judgment

1. By application dated 18 December 2019, a person to whom the pseudonym “AZ” has been given (“the applicant”) applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Review Act”) seeking an inquiry into his conviction in respect of 10 counts of offences against two children.

2. On 7 March 2017, the applicant was convicted by a jury on 10 counts of child sexual assault and indecency and was sentenced to an aggregate sentence of 13 years’ imprisonment with a non-parole period of 9 years. The applicant had pleaded not guilty to all of the charges.

3. The applicant appealed to the Court of Criminal Appeal. On 14 December 2018, the Court of Criminal Appeal dismissed the appeal by a majority decision. [1]

   1. AZ v R [2018] NSWCCA 294 (Walton and Wilson JJ, White JA dissenting).

4. On 5 March 2019, the applicant sought special leave to appeal to the High Court.

5. On 12 June 2019, the High Court declined to grant special leave to appeal. [2]

   2. AZ v The Queen [2019] HCASL 192.

6. The applicant is not legally represented on this application. That is not unusual in these types of applications.

The nature of the application

7. Sections 78 and 79 of the Review Act are in the following terms:

78   Applications to Supreme Court

(1)   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.

(2)   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

(1) After considering an application under section 78 or on its own motion—

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

(b)   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.

(2)   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.

(3)   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—

(a)   it appears that the matter—

(i)   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

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

(iii)   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

(iv)   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

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

(3A) The Supreme Court may defer consideration of an application under section 78 if—

(a)   the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b)   the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c)   the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(3B)   This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from—

(a)   the fact that the convicted person was—

(i) questioned under section 24 of the Crime Commission Act 2012, or

(ii) required under section 24 or 29 of that Act to produce a document or thing, or

(b)   either or both of the following—

(i)   evidence obtained directly from that questioning or requirement,

(ii)   any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing.

(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).

8. An application under s 78 does not involve a judicial proceeding: s 79(4). However, the Court may consider any written submissions made by the Crown with respect to an application. Both the applicant and the Crown have made written submissions. The applicant also provided written submissions in response, which were hand written due to the restrictions arising from the current health crisis.

9. In determining the application, the Court is exercising an administrative power. [3] It is not hearing an appeal against the applicant’s conviction.

   3. Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48–50.

10. The legislation is remedial legislation designed to overcome injustices that sometimes arise in the course of the administration of criminal justice. The legislation has a beneficial purpose. [4]

    4. Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [60], [64]–[75]; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172 at [11].

11. The scope of the administrative function is determined by the relevant provisions. As set out in s 79(2) of the Review Act, action under s 79(1) (being either to direct that an inquiry be conducted or for the whole case to be referred to the Court of Criminal Appeal) 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.

12. The applicant requests that the verdicts of the jury be overturned. He does not seek any other action. However, I would have due regard to the fact that he is not legally represented and assume that he seeks an inquiry into his conviction. As he could hardly be seeking that the matter be referred back to the Court of Criminal Appeal, then the only other action that could be taken in response to his application is a direction that an inquiry be conducted.

13. Having said that, his seeking that the verdicts be overturned is consistent with the application as a whole in that, as he expressly states, he is echoing the submissions made at trial and then on appeal.

14. The principles applicable to the consideration of applications under s 79 were reviewed by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review Act) 2001[5] (“Holland”) as follows:

"6. The test is whether it appears that there is 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: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].

7.   Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].

8.   There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9].”

5. [2008] NSWSC 251 at [6]–[8].

15. The administrative function exercised under Part 7 of the Review Act is generally exercised when the criminal justice system has run its course following trial and appeal. [6] In most cases, the applicant may seek to rely on additional evidence that has come to light after the trial which might raise a doubt or question as to guilt.

    6. Holland at [10].

16. The process available under s 78 is not intended to be another form of appeal. [7]

    7. Application of Milat [2005] NSWSC 920; 157 A Crim R 565 at [26]; Application of Dunn [2005] NSWSC 857 at [9] (quoting Application of Esposito (Supreme Court (NSW), Hunt CJ at CL, 14 July 1988, unrep at 2)); Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928 at [12].

17. Section 79(3) sets out the circumstances (non-exhaustively) on which the Court may refuse to consider or otherwise deal with an application. It provides a basis for a form of summary dismissal of the application. [8]

    8. Clark v Attorney General of New South Wales [2020] NSWCA 70 at [5] (Basten JA, Macfarlan and McCallum JJA agreeing); Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 at [7] (White JA, Macfarlan JA agreeing).

18. In Clark v Attorney General of New South Wales, the Court observed:

“5. The purpose of s 79(3) is tolerably clear: it is to ensure that the court has appropriate powers to dispose summarily of applications which might otherwise be described as frivolous, vexatious, misconceived or lacking in substance. Satisfaction as to such matters would be sufficient to warrant a refusal to refer an application for an inquiry under s 79(1). However, s 79(3) seeks to go one step further and provide bases upon which the court may refuse to consider the application at all. It also permits the court to refuse to ‘otherwise deal with’ an application, although it is not clear whether that language adds anything to a refusal to consider.”[9]

9. [2020] NSWCA 70 at [5] (Basten JA, Macfarlan and McCallum JJA agreeing).

19. One basis on which the Court may dispose of the application summarily is:

1. if it appears that the matter has been fully dealt with in the proceedings giving rise to the conviction (or in any proceedings on appeal from the conviction); [10] and

2. the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. [11]

   10. Review Act s 79(3)(a)(i).

   11. Review Act s 79(3)(b).

20. The discretion to refuse to consider the application is broad. [12]

    12. Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 at [4] (McCallum J).

21. The meaning of “special facts or special circumstances” in s 79(3)(b) is not specified or limited but I consider that the emergence of new evidence or new arguments (which have a reasonable foundation) not previously raised might be considered special facts or circumstances.

22. I emphasise that the existence of special facts or special circumstances is not a threshold for satisfaction of the matters referred to in s 79(2). It is merely that, if the Court is not satisfied that there are special facts or special circumstances and any of the matters set out in ss 79(3)(a)(i)–(iv) are established, then the Court may deal with the application summarily.

23. Dealing with the application summarily means no more than declining to consider or otherwise deal with the application; that is, declining to consider whether 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.

24. In my view, the purpose of s 79(3) is to balance the right of a convicted person to pursue an application under s 78 with the need to ensure that such applications are not merely pursued as matter of course, as if it were a further step in the appeal process.

25. Having said that, the Court is not compelled to refuse to consider or otherwise deal with the application if any of the matters set out in ss 79(3)(a)(i)–(iv) and (b) apply, but the matters set out in ss 79(3)(a)(i)–(iv) and (b) are matters that the Court would have regard to in determining whether to consider or otherwise deal with the application.

26. It follows that, whilst the Court has a general discretion in determining whether to refuse to consider or otherwise deal with the application, the Court would have regard to whether any of the matters set out in ss 79(3)(a)(i)–(iv) arise and then go on to further consider whether there are special facts or special circumstances that justify the taking of further action.

27. In this matter, the applicant does not seek to rely on “fresh evidence” or even material that was not before the jury and the Court of Criminal Appeal. Rather, the applicant expressly relies upon the submissions put forward on his behalf to the Court of Criminal Appeal and to the High Court on the special leave application, as well as the notes prepared by the applicant as to the evidence and the alleged irregularities in the trial.

28. In particular, the applicant relies on the reasons of White JA in the Court of Criminal Appeal decision relating to a number of counts on which he was convicted by the jury.

29. I will now set out the events which lead to the application.

The circumstances of the offending

30. Consistent with the pseudonyms adopted by the Court of Criminal Appeal, I will call the first victim “Thomas” and his younger half-brother “Christopher”. Thomas was seven years old and Christopher was four years old at the time of the offending.

31. Thomas and Christopher were the children of a person who had become a close friend of the applicant during the four years prior to the offending. The children called the applicant “Uncle”. The applicant often looked after the children whilst their mother was working. They were under his authority when the offences occurred.

32. The offending was first subject to mention by Thomas to his mother on 2 March 2015, the day on which Counts 8 to 11 are alleged to have occurred, which was the day of Thomas’s indoor soccer grand final. After the game, the children, their mother, the applicant and another person returned to the children’s home. When the applicant went out to the shops, Thomas said to his mother that he did not want the applicant to come back.

33. His mother gave evidence as follows:

“... I just remember him just looking at me back and forth and then he said, ‘Does [the applicant] have to come back?’ and I kind of looked at him and – and I was like, ‘What do you mean? Why – why – what do you mean? You know, he’s gone to get dinner. [The applicant is] coming back.’ He said, ‘I don’t want him to come back,’ and got quite anxious and—

Q.   What do you mean? What did you notice about--

A.   So when [Thomas] gets nervous he kind of – like when he was younger he would use his hands a lot like just – yeah – and he – he then said to me, ‘I don’t want [the applicant] to come back, mum,’ and I was like, ‘Why, why don’t you want [the applicant] to come back?’ and he said, ‘I didn’t like the games,’ and I was like, ‘What do you – what do you mean, what games?’ and he said, ‘I didn’t like the games, especially this morning,’ and I said, ‘What games, [Thomas]?’ and he pointed to his--…

CROWN PROSECUTOR

Q.   Did you say anything to him about whether he could talk to you?

A.   Yeah, I – I told him – sorry, before that, I did tell him that he can tell me and--

Q.   Try and say it as though you’re talking to him now. Try to do it in the first person.

A.   Yeah, I said to [Thomas], ‘You can tell me, buddy,’ or something like that, like, ‘You won’t be in trouble but what do you mean? I don’t know what you mean,’ and he pointed to his groin area and he said, ‘I didn’t like those games.’ From what I can recall, it’s so long ago, he said, ‘I didn’t like the taste.’

Q.   Did you say anything in response to that?

A.   I – I – at this stage I had paused the TV and I looked over to Alex and I kind of just looked at him and he could see I was getting a bit worked up.

Q.   Just try and keep to the words. Did you respond when he said, ‘The taste’?

A.   I said, ‘The taste of what?’ or something like that. He used to call his private part a woo-woo, and he said, ‘My woo-woo and his woo-woo,’ or something like that, yeah, and I just looked at Alex and he just looked at me and I don’t know what he heard or anything like that and I just broke down.

Q.   Did you say anything else? Did you ask him anything else at that point?

A.   I asked him – from what I can recall, I think I asked him, like, ‘You know you can tell me. Is that all that happened? What games? Was [Christopher] there?’ Yeah.

Q.   What else did [Thomas] say to you, if anything else, at that stage?

A.   He was more concerned, and said, ‘Is [the applicant] coming back? [The applicant is] coming back, am I in trouble?’ Yeah.”

34. Thomas participated in four recorded interviews.

35. The applicant was charged with 11 offences. They are described in the judgment of White JA in the Court of Criminal Appeal as follows:

“10.   …The first three offences were alleged to have taken place at Emerton Pool.

11. The first count on the indictment was that between 1 June 2014 and 31 December 2014 at Emerton the applicant assaulted Thomas, a person then under the age of 16 years, namely seven years, and at the time of such assault did commit an act of indecency upon him contrary to s 61M(2) of the Crimes Act 1900 (NSW). The act relied upon was that the applicant touched Thomas’ penis.

12. The second count was that between 1 June and 31 December 2014 at Emerton the applicant assaulted Christopher, a person then under the age of 16 years, namely four years, and at the time of such assault did commit an act of indecency on him. Again, the offence charged was an offence contrary to s 61M(2) of the Crimes Act. The Crown alleged that the applicant touched Christopher’s penis.

13. The third count was that between 1 January and 31 December 2014 at Emerton the applicant committed an act of indecency towards Thomas, a person then under the age of 10 years, namely seven years. The offence charged was an offence against s 61O(2) of the Crimes Act. The act relied upon was that the applicant masturbated himself in front of Thomas.

14.   Counts 4-7 were described by the Crown as having arisen from a ‘Weekend Bedroom Incident’.

15. Count 4 charged that between 6 June 2014 and 28 February 2015 at Emerton the applicant had sexual intercourse with Thomas, then aged seven, in circumstances of aggravation, namely Thomas was at the time under the applicant’s authority. The charge was laid under s 66A(2) of the Crimes Act. The act relied on was that the applicant allegedly made Thomas suck his penis. The applicant was acquitted on this count.

16.   Count 5 was in the same terms as count 4. The act relied upon was that the applicant sucked Thomas’ penis.

17. Count 6 charged an act of indecency contrary to s 61O(2) of the Crimes Act. The act alleged was that the applicant made Thomas masturbate him.

18. Count 7 alleged an offence against s 66B of the Crimes Act that the applicant attempted to have sexual intercourse with Thomas. The act alleged was that the applicant attempted to put his penis into Thomas’ anus.

19.   Counts 8-11 concerned offences alleged to have occurred on 2 March 2015 at Thomas’ home.

20. Count 8 alleged an act of indecency contrary to s 61O(2) of the Crimes Act. The act alleged was that the applicant masturbated himself in front of Thomas.

21. Count 9 alleged an offence against s 61M(2) of the Crimes Act. The act alleged was that the applicant assaulted Thomas and at the time of the assault committed an act of indecency upon him. The act alleged was that the applicant masturbated Thomas.

22. Count 10 alleged a further offence against s 61O(2) that the applicant committed an act of indecency with Thomas. The act alleged was that the applicant made Thomas masturbate him.

23. Count 11 alleged an act of attempted sexual intercourse contrary to s 66B of the Crimes Act. The act alleged was that the applicant attempted to put his penis into Thomas’ anus.”

36. The charges against the applicant thus related to his conduct whilst the children were in his care either at the showers of a swimming pool (Counts 1–3), in the bedroom of the children’s mother over the course of one weekend (Counts 4–7) or at Thomas’s home on 2 March 2015 (Counts 8–11).

37. They involve complaints of touching, masturbation, sucking and an attempt by the applicant to put his penis into Thomas’s anus.

38. The Crown case depended upon Thomas’s evidence. Christopher was not called as a witness. Only Count 2 involved Christopher, who was 4 years old at the time.

39. There was no corroboration of Thomas’s complaints. There was no forensic evidence to support or contradict Thomas’s evidence. There is no suggestion that forensic evidence could have been obtained.

40. On 7 March 2017, a jury of 10 (2 members having been excused) returned guilty verdicts on Counts 1 to 3 and 5 to 11 and a verdict of not guilty on Count 4.

41. The applicant appealed to the NSW Court of Criminal Appeal. The sole ground of appeal was:

“That in all the circumstances the verdicts of the jury on counts 1, 2, 3, 5, 6, 7, 8, 9, 10, & 11 were unreasonable and not supported by the evidence and therefore there was occasion to the applicant a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).”

42. On 14 December 2018, a majority of the Court of Criminal Appeal (Walton and Wilson JJ) granted leave to appeal but dismissed the appeal. White JA, in dissent, would have ordered that the verdicts and convictions on Counts 2, 5, 8, 9, 10 and 11 be set aside and, in lieu thereof, that the applicant be acquitted on those counts.

43. His Honour would have ordered that the sentence imposed on the applicant be quashed and the proceedings be remitted to the District Court for the applicant to be re-sentenced on Counts 1, 3, 6 and 7.

44. On 11 March 2019, the applicant filed an (amended) application for special leave to appeal to the High Court. The sole proposed ground of appeal was that the majority of the Court of Criminal Appeal erred in failing to hold that the verdicts of the jury in respect of Counts 2 and 5 were unreasonable. That is, the applicant did not seek leave to appeal to the High Court against all of the convictions but only in respect of Counts 2 and 5.

The applicant’s submissions

45. The applicant summarised the basis of his present application as follows:

“You will note from the following submissions I will make note that the orders from his honour White JA made in the CCA were to overturn the convictions on charges 2, 5, 8, 9, 10 and 11, [i]f your Honour was to agree with His Honour White JA in this matter I would be open and grateful to that decision, however as mentioned my submissions are for the whole conviction.

Your Honour my submissions will outline what I see to be the ‘faults’ of the crown case against myself and the failure to meet the onus of proving their case ‘beyond a reasonable doubt’. I will outline certain sections of the case in witness statements to the police and what was given in […] evidence at trial by the same witnesses and also the police case outlining dates and places of the alleged acts.” (Emphasis in original).

46. The applicant then identified 12 factors that he submits should lead to the conclusion that there is a doubt or question as to his guilt as follows:

“1)   The complainant gave conflicting evidence about the location of the events the subject of counts 1, 2 and 3 stating at least five different locations for them;

2)   The complainant said he could not remember the event comprising count 1 and conceded it may not have occurred;

3)   The complainant stated that events comprising 2 and 3 did not occur;

4)   The complainant was unable to describe crucial aspects of the event comprising count 4 and gave a description of that event that made it physically impossible (I was acquitted by the jury on this count who must have had doubts about the reliability of the complainant’s evidence on this count);

5)   The complainant stated that the event comprising count 5 never occurred;

6)   Some of the complainant’s evidence in the second JIRT interview about how the incident the subject of count 7 was said to have occurred was implausible;

7)   The complainant stated the events comprising counts 8, 9, 10 and 11 did not occur on the date particularised in the indictment, proof of which is required beyond reasonable doubt (his soccer grand final day 2 March 2015);

8)   More generally, the inconsistencies between the four police interviews which formed the bulk of the complainant’s evidence in chief;

9)   The apparent ability of the complainant to remember things in September 2015, which the complainant claimed to be unable to remember in March 2015;

10)   The apparent ability of the complainant to remember things in 2017 that he was unable to remember in 2015;

11)   The influence of mother upon the complainant’s evidence; and

12)   The absence of evidence independent of the complainant, to support the allegations.”

47. Having identified those 12 points, the applicant then goes on to provide an “outline of argument”. In particular, the applicant identifies the legal principles to be applied in considering whether there was a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

48. Further, the applicant restates the questions identified in the special leave application to the High Court, emphasising the submissions made on the special leave application, in particular, repeating the submission that the Court of Criminal Appeal erred in failing to give discrete consideration to the reasonableness of each of the verdicts of guilty in its judgment.

49. The applicant submits that, although the special leave application only concerned Counts 2 and 5, on this application he seeks to have overturned his convictions in respect of all counts for which he was found guilty, in accordance with his not guilty pleas at pre-trial and as contended in the Court of Criminal Appeal. In his reply submissions, the applicant reiterates a number of submissions already made, acknowledges that he is echoing the submissions made by his counsel at trial and on appeal and maintains that the result of the application should be that all of the verdicts are overturned.

The Crown Submissions

50. The principal submission made by the Crown is that the Court should decline to deal with the application, as it is merely a repeat of the arguments raised on appeal. Alternatively, the Crown submits that the submissions in support of the application do not lead to a doubt or question as to the applicant’s guilt within the meaning of s 79(2) of the Review Act.

Consideration

51. The primary difficulty with the application is that, as the applicant identifies early in his submissions, he is really relying on the case put on his behalf at trial, the submissions made to the Court of Criminal Appeal, the dissenting judgment of White JA and then the submissions made to the High Court on the special leave application. Indeed, in his hand written submissions in response, he acknowledges the Crown submission that, on this application, he has merely relied on points previously raised in the Court of Criminal Appeal and concedes that he is “simply making this application on what [he sees] as the merits of the points raised at trial [and on appeal]”.

52. He says that he is outlining the faults of the Crown case and the failure of the prosecution to meet the onus of proving their case “beyond a reasonable doubt”, but these were the “faults” which were relied upon by the applicant in the Court of Criminal Appeal and the submissions made presently do not add anything new of substance to the submissions made in the Court of Criminal Appeal.

53. The applicant does not identify special facts or circumstances that may justify the taking of further action. Thus, as submitted by the Crown, this matter may fall squarely within the terms of ss 79(3)(a)(i) and (b), such that the Court may refuse to consider or otherwise deal with the application.

54. Section 79(3) of the Review Act sets out the circumstances in which the Court may refuse to consider the application. It does not mandate dismissal of the application should the matters set out in ss 79(3)(a) and (b) be satisfied. However, having regard to s 79(3), the threshold question, which arises in this matter, is whether I should decline to consider or otherwise deal with the application.

55. I should note, for completeness, that the applicant raises his treatment in prison since being sentenced as a factor. Whatever sympathy the Court may have in relation to that treatment, it is not a relevant factor in determining whether action may be taken in accordance with s 79(1).

56. In any event, whilst it may appear from the content of the applicant’s submissions that the matter has been fully dealt with in the proceedings giving rise to the conviction, it is appropriate that I consider in further detail each of the 12 factors identified by the applicant in his submissions.

57. I do so in the first instance for the purposes of determining whether I should decline to deal with the application, prior to further considering whether there is a 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.

Factors 1, 2 and 3

The complainant gave conflicting evidence about the location of the events the subject of counts 1, 2 and 3 stating at least five different locations for them

The complainant said he could not remember the event comprising count 1 and conceded it may not have occurred

The complainant stated that events comprising 2 and 3 did not occur

58. Thomas first complained to his mother on 2 March 2015. He was interviewed by Police Officers attached to the Penrith Joint Investigation Response Team (“JIRT”) on 12 March 2015. There was a video recording of that interview, which was part of his evidence-in-chief.

59. He was then interviewed a second time by a Police Officer associated with Penrith JIRT on 2 September 2015. Again, that video recording formed part of his evidence-in-chief.

60. He was interviewed a third time on 3 February 2017 and a fourth time on 13 February 2017. The video recordings were also part of his evidence-in-chief. Indeed, he was permitted to give evidence in that way, pursuant to s 306S of the Criminal Procedure Act 1986 (NSW).

61. There was some further limited examination-in-chief and then cross-examination on behalf of the applicant.

62. The point made by the applicant in the Court of Criminal Appeal and in his submissions in support of this application is that in his first interview, Thomas stated that the events giving rise to Counts 1, 2 and 3 took place at Parramatta Pool. In his second interview, he said that the acts occurred at Penrith or Mt Druitt Pools. He finally said that he thought that the events occurred at Emerton Pool.

63. The doubts said to arise under Counts 1, 2 and 3 are referred to in Factors 1, 2 and 3 of the applicant’s submissions. The applicant says that over the course of his various interviews and his evidence at trial, Thomas gave conflicting evidence about the location of the events, suggesting that they happened in at least five different locations. Further, when pressed, Thomas said he could not remember the applicant touching his penis at the pool and conceded it may not have occurred.

64. Further, contrary to his evidence in the interviews, he accepted in cross-examination that the events comprising Counts 2 and 3 did not occur.

65. The foundation for these submissions is firstly Thomas’s differing recollection as to where the events happened, that is, at which pool they happened in the interviews and, secondly, the cross-examination of Thomas as follows:

“Q.   I’m going to ask you now about the Emerton Pool.

A.   Okay.

Q.   [Thomas], is it the case – I’ll talk about Emerton Pool, okay?

A.   Okay.

Q.   You say you’ve told the police that [the applicant] touched you on the rude part at Emerton Pool?

A.   Yes.

Q.   That didn’t happen, did it?

A.   I can’t remember.

Q.   It may not have happened, is that right?

A.   Yeah.

Q.   And [the applicant] didn’t touch [Christopher] at the pool, at Emerton Pool, did he?

A.   No, he didn’t.

Q.   And [the applicant] didn’t touch his own rude part at Emerton Pool, did he?

A.   No, he didn’t.

Q.   And [the applicant] didn’t’ touch his own rude part with you at any pool, did he?

A.   Yes.

Q.   I put to you that [the applicant] didn’t touch your rude part any pool.

A.   He did.

Q.   You say it’s not Emerton Pool, is that right, where that –

A.   No.

Q.   --touching happened?

A.   It did happen at Emerton Pool.

Q.   Are you saying now it did happen at Emerton Pool?

A.   Yes.

Q.   You understand you agreed earlier that it didn’t happen?

HIS HONOUR: Perhaps complete the sentence.

BURKE: I will, your Honour, sorry.

Q.   You know you just said that it didn’t happen at Emerton Pool? Do you remember that?

A.   Yes.

Q.   Was that the truth?

A.   No.”

66. This content of the interviews and the cross-examination referred to above were the subject of submissions in the Court of Criminal Appeal and were considered by the Court of Criminal Appeal.

67. Count 2 was that the applicant touched Christopher’s penis at the Emerton pool. Thomas was subject to cross-examination on this point as follows:

“Q. You say you’ve told the police that [the applicant] touched you on the rude part at Emerton Pool?

A. Yes.

[Um, long pause.]

Q. That didn’t happen, did it?

A. I can’t remember.

Q. It may not have happened, is that right?

A. Yeah.

Q. And [the applicant] didn’t touch [Christopher] at the pool, at Emerton Pool, did he?

A. No, he didn’t.”

68. White JA considered that the conviction on Count 2 should be quashed. He did not consider the convictions on Counts 1 and 3 should be quashed. As his Honour said,[13] Thomas was seven at the time of the first interview. He was confused in finding the location of the pool. This did not cause White JA to have any doubt that the events he described as taking place at Emerton pool did take place at Emerton pool. Walton and Wilson JJ did not consider that Counts 1, 2 or 3 should be quashed.

    13. AZ v R [2018] NSWCCA 294 at [130].

69. As identified on the special leave application, Walton and Wilson JJ dealt with the issue more generally as follows:

“157.   … The evidence given by means of the recorded interviews may have been regarded by the jury as compelling; that is my assessment of it. However, there were inconsistencies and concessions in the evidence given by Thomas at trial. The applicant relies upon these inconsistencies and concessions to argue that the verdicts for counts 1 – 3 and 5 – 11 were unreasonable and unsupported by the evidence.

158.   In assessing that contention, not only should the evidence of Thomas be taken as a whole and not piecemeal, but the evidence given at trial more broadly must be taken as a whole. It was, of course, entirely open to the jury to accept part of Thomas’ evidence, and not other parts.” [14]

14. AZ v R [2018] NSWCCA 294 at [157]–[158].

70. Their Honours considered that the evidence of Thomas in his JIRT interviews was visceral and utterly believable.

71. Further, the comments made by the Crown Prosecutor in closing address to the effect that the jury might have a reasonable doubt as to the applicant’s guilt on Counts 2 and 5 were the subject of consideration by the Court of Criminal Appeal with reference to the role and obligations of a Crown Prosecutor.

72. As observed by Walton and Wilson JJ, the submissions of the Crown Prosecutor were not determinative before the jury. The Crown’s concessions at trial are a feature to be closely considered, having regard to the evidence before the jury as a whole. They are of no greater weight.

73. The matters raised in Factors 1, 2 and 3 identified by the applicant on this application were fully dealt with by the Court of Criminal Appeal. The applicant has not raised any new or different point.

Factor 4

The complainant was unable to describe crucial aspects of the event comprising count 4 and gave a description of that event that made it physically impossible (I was acquitted by the jury on this count who must have had doubts about the reliability of the complainant’s evidence on this count)

74. The applicant was acquitted on Count 4.

75. If the point is that the acquittal on Count 4 gave rise to an inconsistency between verdicts, this submission was made to the Court of Criminal Appeal and dealt with. [15] White JA found that the applicant’s acquittal on Count 4 is not inconsistent with his conviction on the other counts.

    15. AZ v R [2018] NSWCCA 294 at [34], [59], [67] (White JA).

76. This is also dealt with by Walton and Wilson JJ (at [144]) who agreed with White JA’s assessment that there is a rational basis for the difference. Their Honours observed that distinguishing Count 4 from the remaining counts was the qualitative difference in the complainant’s evidence with respect to it, both in the JIRT interviews and evidence-in-chief at trial.

Factor 5

The complainant stated that the event comprising count 5 never occurred

77. Count 5 was dealt with by Walton and Wilson JJ in the same way as Counts 1, 2 and 3. Their Honours contrasted the environment in which the interviews took place and the method of questioning and the timing of the interviews with the evidence at the trial. As their Honours said, the evidence at trial was taken from Thomas as he sat in a remote witness room of a courthouse, an environment which might give rise to some level of anxiety in a trial. The questions asked of Thomas often gave or suggested an answer and were more frequently asked in a way that a young child may have struggled to comprehend.

78. Their Honours considered that the fact that there was a contradiction or concession by a child in cross-examination is not, of itself, necessarily an indication that the child is not a credible witness. The question turned on a careful examination of the whole of the evidence.

79. Their Honours examined the whole of Thomas’s evidence and gave due regard to the concessions extracted by questioning at trial but were left with no doubt as to the availability of the jury’s verdicts with respect to Counts 1 to 3 and 5 to 11.

80. White JA took a different view. His Honour considered that there was a clear acceptance by Thomas that some of the acts charged never took place. His Honour found:

“The Crown prosecutor told the jury that it could have a reasonable doubt about the applicant’s guilt on count 5. I have that doubt. It is a doubt the jury should have shared. The applicant should be acquitted of count 5.”[16]

16. AZ v R [2018] NSWCCA 294 at [93] (White JA).

81. Again, the issues raised as Factor 5 were fully dealt with by the Court of Criminal Appeal, albeit with differing conclusions amongst their Honours.

Factor 6

Some of the complainant’s evidence in the second JIRT interview about how the incident the subject of count 7 was said to have occurred was implausible

82. Walton and Wilson JJ included Count 7 when they referred to having examined the whole of Thomas’s evidence and having due regard to the concessions extracted by questioning at trial but still being left with no doubt as to the jury’s verdicts.

83. After referring to the evidence given in the second interview, White JA noted that Thomas adhered to that evidence in cross-examination and said that he accepted Thomas’s evidence in relation to Count 7.

Factor 7

The complainant stated the events comprising counts 8, 9, 10 and 11 did not occur on the date particularised in the indictment, proof of which is required beyond reasonable doubt (his soccer grand final day 2 March 2015)

84. The Crown accepted that the date on which the offences alleged in Counts 8 to 11 took place needed to be proved beyond reasonable doubt. However, Thomas accepted in cross-examination that the acts, the subject of Counts 9 to 11, did not take place on grand final day.

85. White JA considered that this gave rise to a reasonable doubt as to whether the events took place on that day. His Honour did not consider that Thomas’s answers were ambiguous. It was not open to infer that he was confused. In the circumstances, White JA had a doubt as to whether the acts took place on that day. It was a doubt that his Honour considered the jury should have had.

86. Walton and Wilson JJ dealt with these matters more generally but did make reference to the complaint made by Thomas to his mother on the day it was alleged that Counts 8 to 11 had been committed, at what seemed like the first available opportunity for Thomas to speak to his mother in the absence of the applicant. As is plain from their Honours’ reasons, they disagreed with the approach of White JA.

87. Whatever the strength of this factor, the applicant did not pursue the point in the special leave application before the High Court. As submitted by the Crown, he conceded that it was open to the jury to conclude that Thomas’s retraction in cross-examination was a result of him having simply forgotten the precise day on which the offences were committed.

Factors 8–12

More generally, the inconsistencies between the four police interviews which formed the bulk of the complainant’s evidence in chief

The apparent ability of the complainant to remember things in September 2015, which the complainant claimed to be unable to remember in March 2015

The apparent ability of the complainant to remember things in 2017 that he was unable to remember in 2015

The influence of mother upon the complainant’s evidence

The absence of evidence independent of the complainant to support the allegations

88. Submissions were made to the Court of Criminal Appeal on these issues. The majority dealt with these complaints of a more general nature, rejecting the submission that evidence of a contradiction or concession by a child in cross-examination or a contrast between evidence contained in the interviews and cross-examination was an indication that the child was not a credible witness.

89. Of course, as the applicant submitted on his special leave application, his principal complaint to the High Court was the alleged failure by the majority of the Court of Criminal Appeal to give discrete consideration to the reasonableness of each of the verdicts.

Conclusion

90. On my analysis, the 12 factors identified by the applicant as supporting a proposition that there is a doubt or question as to the applicant’s guilt were all either raised at trial or the subject of submissions and consideration in the Court of Criminal of Appeal.

91. Adopting the language in s 79(3)(a)(i), it thus appears that the matter has been fully dealt with in the proceedings giving rise to the conviction or any proceedings on appeal from the conviction.

92. Further, the applicant has not identified any special facts or special circumstances that justify the taking of further action. The applicant has not raised any new points. He does not point to any new or fresh evidence. He does not point to any evidence which has been overlooked by the Court of Criminal Appeal.

93. Even the proposition that the majority dealt with the arguments more generally without reference to each individual count was the subject of the special leave application.

94. Whilst I am not bound to refuse to consider or otherwise deal with the application merely because the matters set out in ss 79(3)(a) and (b) are satisfied, the very purpose of s 79(3) is to allow the Court to refuse to consider the application in circumstances in which the applicant does no more than restate the submissions raised in the proceedings and on appeal, having exhausted all avenues of appeal.

95. This is plainly this case. The Court’s function in considering an application under s 78 is not to act as another Court of Appeal.

96. In the circumstances, I would refuse to consider or otherwise deal with the application and the application is dismissed.

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Endnotes

Decision last updated: 14 August 2020