Application by Cartman (a pseudonym) pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW)

[2022] NSWSC 308

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Application by Cartman (a pseudonym) pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 308

Hearing dates:

On the papers

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

(1)   Application granted.

(2) I direct that pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the whole of the applicant’s case is referred to the Court of Criminal Appeal to be dealt with as an appeal against conviction.

(3)   The applicant’s case be listed before the Registrar of the Court of Criminal Appeal for further directions as soon as reasonably practicable.

Catchwords:

CRIME – Appeal and review – application to Supreme Court for inquiry into conviction under Part 7 Crimes (Appeal and Review) Act 2001 – new evidence – whether new evidence casts a doubt or question as to the credibility of the complainant – whether attempt to “rerun the trial on the papers” – complainant’s evidence as to the applicant’s outfit critical to her account – evidence suggests error in complainant’s account – doubt as to guilt found – not an attempt to rerun the trial on the papers given additional evidence

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW), s 3C

Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B

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

Crimes Act 1900 (NSW), ss 61J, 66C(3), 474C, 474E, 475

Crimes Legislation (Review of Convictions) Amendment Act 1993

Criminal Appeal Act 1912 (NSW), ss 2, 5, 5AA, 6, 8, 26

Criminal Law Amendment Act 1883 (NSW)

Criminal Procedure Act 1986 (NSW), ss 133(1), 306U

Criminal Records Act 1991 (NSW), s 7(1)(b)

Cases Cited:

Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623

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

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

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

Grierson v The King (1938) 60 CLR 431; [1938] HCA 45

Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35

R v Johns (1999) 110 A Crim R 149

R v Pollock [2005] NSWCCA 316

Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383

State of NSW v Norstead [2019] NSWSC 1095

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

WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
K Heath (Applicant)
M Dalla-Pozza (Respondent)

Solicitors:
Dowson Turco Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2021/139897

Publication restriction:

Pseudonym adopted for the applicant

Judgment

1. The applicant applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (“CAR Act”) for an inquiry into her conviction for an offence of sexual intercourse with a child between the ages of 14 and 16 contrary to s 66C(3) of the Crimes Act 1900 (NSW). The offence was alleged to have been committed between 1 July and 31 October 2014 at which time the applicant was a child. Consequently, s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), subject to s 15B of that Act, prohibits the publication or broadcast of the applicant’s name so as to connect her with proceedings relating to the offence.

2. While s 15B of the Children (Criminal Proceedings) Act would permit me to name the applicant, there is something of an anomaly in this judgment being published on the Caselaw website (which I intend to do) in circumstances where a member of the community would be committing a criminal offence against s 15A of that Act were they to publish or broadcast the applicant’s name in connection with the proceedings. This was the view taken by Button J in State of NSW v Norstead [2019] NSWSC 1095 with which I agree. Further, for reasons which will become apparent, to publish the applicant’s name on the Internet in connection with this judgment will largely defeat the point of her application, given that none of the earlier proceedings are available online. The factual background to the matter is such that naming the applicant also has the potential to identify the complainant. The applicant will, therefore, be referred to by a pseudonym in this judgment.

3. In 2015, the applicant was charged with eight offences relating to alleged sexual acts with another young person. Those offences were alleged to have been committed when the applicant was between 15 and 17 years old, and the complainant between 13 and 15 years old.

4. The applicant was found not guilty as to six of the eight charges in the Children’s Court, and found not guilty of a further charge following an appeal to the District Court. Only one conviction remains.

5. When convicted in 2016, the applicant was sentenced to a suspended Control Order of 10 months, which was reduced on the appeal to the District Court to 6 months. Although the applicant has long completed her sentence, by virtue of her conviction she is a registrable person on the Sex Offender Register for life, and has a criminal record that can never become spent: Criminal Records Act 1991 (NSW), s 7(1)(b).

6. On 1 December 2018, the Child Protection (Offenders Registration) Act 2000 (NSW) was amended by inserting s 3C, allowing a Court that sentences a person for a sexual offence committed by the person when they were a child, to make an order declaring that the person is not to be treated as a registrable person in respect of that offence. The applicant was sentenced on 1 April 2016 and did not receive the benefit of those amendments.

7. It is submitted by the applicant that fresh evidence has come to light that raises a doubt or question as to her guilt, or as to part of the evidence in the case. She seeks that the Court refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): CAR Act, s 79(1)(b).

The Relevant Provisions

8. Sections 78 and 79 of CAR Act provide:

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).

9. 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 [2008] NSWSC 251 (“Application of Holland”) at [6]-[9]:

“[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] NSWSC 364; (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].

Some Other Features of the Jurisdiction

[9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat [2005] NSWSC 920; (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.”

10. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, Basten JA, at [65], expressed some reservation about relying on 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” in allowing the conviction to stand. His Honour there observed that “[t]his language does not assist”. His Honour continued, “There is no purpose served by adopting other words than the statutory language of ‘doubt or question’”: see also Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623 at [14]; Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412.

11. While the present application appears to be at least partly motivated by the applicant’s status as a registrable person on the Sex Offender Register, this is the result of the operation of the law as it applies to her. It is not relevant to the application.

12. Further, while the applicant’s identification of supposedly “fresh” evidence is at the heart of the present application, it is not necessary, in an application under Part 7, to determine if the evidence is “fresh” rather than “new”. In relation to this, Johnson J in Application of Holland, said, at [11]:

“The nature of the jurisdiction under Part 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal. To invoke the fresh evidence rule at the ss.78-79 stage (as the Crown submissions of 30 November 2006 suggested by reference to R v Ion (1996) 89 A Crim R 81 at 93-94) does not sit well with the function being performed. In decisions concerning applications under s.475, it was observed that the fresh evidence rule had no application: Application of Esposito at page 2; Application of Visser at page 3.”

13. If the case is referred to the Court of Criminal Appeal, however, that Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act: s 86 of the CAR Act.  Accordingly, subject to the nature of the appeal under that Act (as to which see below), on an appeal following referral, the test governing the reception of new and fresh evidence on appeal is applicable: Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 per Toohey and Gaudron JJ at 311-312; R v Johns (1999) 110 A Crim R 149 at 151-153 [4]-[10], 165-169 [41]-[58]; R v Pollock [2005] NSWCCA 316 at [2]-[3], [31]-[42].

14. As noted above, the offences were initially dealt with summarily in the Children’s Court. They were then the subject of an appeal to the District Court. If the applicant is successful on this application the “whole case” will be referred to the Court of Criminal Appeal “to be dealt with as an appeal under the Criminal Appeal Act”: s 79(1)(b) of the CAR Act. The Court of Criminal Appeal is then “to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly”: s 86 of the CAR Act.

15. A referral of a case to the Court of Criminal Appeal as a result of an application under s 78 of the CAR Act will commonly operate to invest that Court with jurisdiction where that jurisdiction is otherwise spent: see s 79(3)(a)(iii) and (iv) of the CAR Act; cf Grierson v The King (1938) 60 CLR 431; [1938] HCA 45. The matter is then able to be treated as an appeal of the type that would have been available prior to it having been exhausted. Most commonly, applications of this sort arise in the context of convictions on indictment, which, following referral, are treated as appeals pursuant to s 5(1) and determined in accordance with s 6 of the Criminal Appeal Act. In that way the matter is treated “in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act”.

16. In the present case there was no obvious appeal available under the Criminal Appeal Act in which the applicant could have raised her present contentions (and which she could have exhausted). Indeed, if there was, there would, subject to the need for an extension of time, be no need for the application under s 78 of the CAR Act and I would need to consider whether I should refuse to deal with the application pursuant to s 79(3)(a)(iii). This raises a question of the nature of the appeal under the Criminal Appeal Act applicable to a referral in a case such as the present.

17. Section 5(1) of the Criminal Appeal Act provides for an appeal, where a person “is convicted on indictment”. The definition of “indictment” in the Criminal Appeal Act is sufficiently broad to include a Court Attendance Notice (on which the applicant was convicted). That definition is, however, also qualified by the words “unless the context or the subject matter otherwise require or indicates”. An appeal under s 5(1) is to be determined in accordance with s 6 of the Criminal Appeal Act. Section 6 is concerned with a verdict of a jury, or a verdict of a judge after a trial by judge alone on indictment (as ordinarily understood), which has the status of a jury verdict by operation of s 133(1) of the Criminal Procedure Act 1986 (NSW). Other provisions in Part 3 of the Criminal Appeal Act also tend to support the conclusion that s 5(1) is concerned with appeals from convictions and sentences on indictment in the commonly understood sense of the word, despite the (inclusive) definition of “indictment” in s 2.

18. The absence of an avenue of appeal under s 5(1) of the Criminal Appeal Act in the present case is potentially significant having regard to the various other appeals available under Part 3 of that Act. For example, s 5B allows for a question of law to be submitted to the Court of Criminal Appeal by the District Court exercising its appellate jurisdiction. This process would, in theory at least, have been available in this case. It would, however, be an odd result to refer the matter under s 79 of the CAR Act on the basis of a “doubt or question” as to the applicant’s guilt and then restrict her to a question of law before the Court of Criminal Appeal. Other provisions in Part 3 of the Criminal Appeal Act provide for appeals, which like an appeal under s 5 were not available to the applicant, but which are of a different nature to an appeal under s 5(1). For example, an appeal from a conviction in the Supreme Court exercising summary jurisdiction is available under s 5AA of the Criminal Appeal Act and is not the same as an appeal under s 5. The nature of the appeal also affects whether, for example, s 8 of the Criminal Appeal Act has application.

19. As can be seen from the above, in the event that this matter is referred to the Court of Criminal Appeal, the nature of that Court’s jurisdiction is not immediately obvious. Locating the source of the Court’s jurisdiction as s 79(1)(b) and s 86 of the CAR Act together with the referral, does not elucidate the nature of the appeal. It may be that some clue is provided by an examination of the history of the legislation. That history was set out by Heydon J in Eastman v Director of Public Prosecutions(ACT) (2003) 214 CLR 318; [2003] HCA 28 at [64]-[75]. There, his Honour notes the origins of the provisions, in the Criminal Law Amendment Act 1883 (NSW). That origin pre-dates the Criminal Appeal Act.

20. Section 383 of the Criminal Law Amendment Act led to s 475 of the Crimes Act which was part of the Crimes Act when enacted in 1900. Both were in very similar terms and operated where “any doubt or question arises as to [an applicant’s] guilt, or any mitigating circumstance in the case or any portion of the evidence therein”, and provided in the case of s 475, (and in very similar words in the earlier s 383) that “the Governor, on the petition of the prisoner, or some person on his behalf, representing such doubt or question, or a Judge of the Supreme Court of his own motion” could direct an inquiry with the matter ultimately returning to the Governor to “be disposed of, as to the Governor … shall appear to be just”.

13. When the Criminal Appeal Act was passed in 1912 the preamble to the Act included as one of the Act’s purposes, “to provide for better consideration of petitions of convicted persons”. This object was reflected in s 26 which provided:

Nothing in this Act shall affect the pardoning power of the Governor, but the Minister of Justice, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence other than the sentence of death passed on a convicted person, may—

(a)    refer the whole case to the court, and the case shall be heard and determined by the court as in the case of an appeal by a person convicted;

(b)    if he desires the assistance of the court on any point arising in the case with a view to the determination of the petition, refer that point to the court for their opinion thereon, and the court shall consider the point so referred and furnish the Minister with their opinion thereon accordingly.

22. Section 26 of the Criminal Appeal Act and s 475 of the Crimes Act were repealed by the Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW), which inserted Part 13A into the Crimes Act. Part 13A contained ss 474C and 474E, which were later transferred to the CAR Act and became ss 77 and 79 respectively. Section 474C, as inserted, provided for the referral of a case to the Court of Criminal Appeal “to be dealt with as an appeal”, although the referral could only be done by the Minister. Section 474E was subsequently amended by the Crimes Amendment (Review of Convictions and Sentences) Act 1996, Sch 1 [7] to provide for a referral of a case by the Supreme Court to the Court of Criminal Appeal.

23. As can be seen, the words “to be dealt with as an appeal” in the current provision was first used in 1993 in s 474C of the Crimes Act, by which time the Criminal Appeal Act contained a number of different appeal provisions additional to appeals under s 5(1) and s 6. However, those words (and the jurisdiction exercised by the Court of Criminal Appeal) have their source in the original s 26 of the Criminal Appeal Act – “the case shall be heard and determined by the court as in the case of an appeal by a person convicted”. At that time an appeal under the Criminal Appeal Act was limited to an appeal pursuant to s 5(1) of the Act to be determined in accordance with s 6. This, and the subsequent history of the legislation is a strong indicator that the words “be dealt with as an appeal under the Criminal Appeal Act" in the current provision refer to an appeal determined in accordance with s 6 of the Criminal Appeal Act.

24. The jurisdiction of the Court of Criminal Appeal was not a matter raised by either party on this application and I have, therefore, not been assisted by any submissions. In my view the appropriate course is to consider the application on its merits. Ultimately, if there is a “doubt or question” as to the applicant’s guilt, a referral should follow and it will then be a matter for the Court of Criminal Appeal to determine its jurisdiction, although having regard to the above history, my present view is that, despite the origin of the conviction in the Children’s Court, the referral would be dealt with in accordance with s 6 of the Criminal Appeal Act.

The Current Application

25. The applicant provided a written application, which comprised:

1. the application, dated 14 May 2021;

2. court attendance notices;

3. the applicant’s submissions dated 12 May 2021;

4. affidavit of the applicant affirmed 11 May 2021 and annexures;

5. affidavit of the applicant’s solicitor, Nicholas William Stewart affirmed 12 April 2021 and annexures; and

6. affidavit of Nicholas William Stewart affirmed 11 May 2021 and annexures.

26. The Attorney General provided written submissions dated 30 July 2021. The applicant provided submissions in reply dated 11 August 2021.

27. This decision has been made on the papers. I have considered all of the above materials in making my decision.

Procedural History

Children’s Court proceedings

28. On 25 March 2015, the applicant was charged with eight offences under the Crimes Act, all of which related to alleged sexual acts with the complainant. The applicant entered a plea of not guilty to all charges.

29. On 25 January 2016, his Honour Children’s Magistrate Sbrizzi found the applicant not guilty of six offences and guilty of two offences. One of the two convictions related to the conviction against s 66C(3) of the Crimes Act, the subject of this application (the “Haymarket offence”) and the second conviction related to a charge of aggravated sexual assault under s 61J of the Crimes Act, which involved a finding that the applicant digitally penetrated the complainant while attending a cinema screening of The Hobbit (the “Hobbit offence”).

30. On 1 April 2016, Magistrate Sbrizzi imposed a Control Order of 10 months in relation to the Haymarket offence and 20 months in relation to the Hobbit offence, each suspended on the condition that the applicant be of good behaviour and comply with supervision and counselling requirements.

District Court proceedings

31. The applicant appealed to the District Court pursuant to s 11 of the CAR Act. This was an appeal by way of rehearing.

32. On 8 September 2016, Baly SC DCJ quashed the conviction in relation to the Hobbit offence, but confirmed the conviction in respect of the Haymarket offence.

Background to the Application

The Haymarket offence

33. Before turning to the matters raised in support of the present application, it is appropriate to elaborate on the facts underlying the Haymarket offence.

34. The facts underlying the conviction for the Haymarket offence, as based on the evidence of the complainant before Magistrate Sbrizzi in the Children’s Court and accepted by Baly DCJ in the District Court, were conveniently set out by the applicant in her written submissions as follows:

“a. At some time between July and October 2014, the applicant and complainant went to a bra shop at Paddy’s Market in Haymarket;

b. The complainant said she wanted to try on bras. She took a bra and went into a fitting room;

c. The applicant came into the cubicle. She was wearing a t-shirt and jeans.

d. The applicant started to scratch the complainant’s back. The applicant then took a photograph of the complainant’s back which was marked with what looks like scratches…

e. The applicant then asked the complainant to perform cunnilingus on her. The complainant said she did not want to do so;

f. The applicant lowered her jeans and pushed the complainant’s head towards her vagina. The complainant demonstrated the level to which the applicant lowered her jeans in the witness box;

g. The complainant licked the applicant’s vagina, but the applicant’s jeans did not come completely off and so the complainant was unable to perform an act of cunnilingus as that word is understood by lay persons.”

35. At the hearing, the evidence-in-chief of the complainant was given in the form of a recording pursuant to s 306U of the Criminal Procedure Act. In that recording she said that the assault had occurred after school on a “mufti” day held at the school she attended with the complainant (a “mufti” day being a day where students are not required to wear a school uniform):

“Q 239 What were you dressed in?

A   I was, had my jeans on, had jeans on because it was a mufty day at school, yeah, and I wasn’t wearing anything on my top, so no bra and no T-shirt because I was trying on the pink bra. It was pink and black and I remember because her mum picked her up afterwards at Caps, which was the capital theatre which is a photo booth place and her mum saw the bra.” (emphasis added)

36. Critically for present purposes, the complainant’s evidence as to the applicant’s outfit was as follows:

“Q243 And what was [the applicant] wearing?

A    She was wearing a T-Shirt and jeans because she took her T shirt and bra off as well.

...

Q250   OK, so tell me more about from the time that she has come in to that happening.

A   Um, well, she sat on the floor from what I remember. We were both sitting on the floor against the mirror and, um, sorry - - -

Q251   No. Are you feeling OK?

A   Yeah, yeah, I just, it's just disgusting to think about. And she, she got me to go down on her. So she took, no, no, she didn't take off her jeans off and that's why it didn't go, I didn't do it properly. So she took her jeans and her underwear off but only to about here and then she asked me and she pushed my head down. She did push my head down. I remember that.

Q252   Ah-huh

A   And what happened, and then I go up because I, I just didn't want to do it and she didn't take her jeans off so I couldn't do it anyway…"

37. When the complainant was cross-examined in relation to this evidence, she maintained that the applicant was wearing jeans:

"Q. You initially said, did you not, in these two pages that you didn't want to do it and "she didn't take off her jeans off so I couldn't do it anyway". That was one of your answers, was it not?

A. It was.

Q. Then you've gone on further to say that she's pushed your head down to her vagina and you didn't do anything to - "And did you do anything to her vagina?", you answered, "I licked it because she asked me to."

A. Yep.

Q. But doesn't she still have her jeans on at that time?

A. I, I did say that she did take her jeans and underwear down to about here.

Q. Sorry, I didn't see. You'd have to do that slowly.

A. Down to about here.

His Honour: The witness is indicating about 5 centimetres above the knee, pointing to the left side of her thigh for the record."

The judgment in the District Court

38. As noted above at [32], on 8 September 2016, Baly DCJ quashed the conviction in respect of the Hobbit offence and confirmed the conviction in respect of the Haymarket offence after conducting a full review of the evidence. It is necessary to set out her Honour’s reasoning for both determinations to understand the applicant’s submissions.

39. Baly DCJ admitted evidence going to the relationship between the applicant and the complainant, finding as follows:

“The evidence reveals that there was a relationship of a sexual nature between the appellant and the complainant. This relationship appeared to commence when the complainant was 13 years and the young person was 15…

[I]t seems to me that the relationship between the complainant and the young person was complicated and entrenched. I accept that the young person, who was both older and physically larger than the complainant, was controlling and manipulative. I find that the complainant was vulnerable, not only is she about two years younger than the young person, she is smaller and she was mentally fragile.”

40. There was also an application to admit tendency evidence. While evidence of uncharged acts relied on in this regard were not admitted as tendency evidence, Baly DCJ admitted evidence of text messages and Facebook exchanges between the complainant and applicant, that included expressions of sexual interest in the complainant. This was admitted as evidence of the applicant’s tendency to have a particular state of mind, that being to have a sexual attraction to the complainant. Her Honour found the evidence of sexual attraction “make[s] it considerably more likely” that the applicant committed the acts the subject of the Haymarket offence and the Hobbit offence.

41. Baly DCJ then turned to the specific evidence supporting the allegations relating to each of these offences. Her Honour’s findings in relation to the Haymarket offence were as follows:

"[I]t is clear to me that the magistrate found the complainant's version credible. He said that she was unshaken in her resolve that this offence occurred. He also had the benefit of seeing the complainant demonstrate the level to which the jeans were pulled down; I have not had that benefit.

Mr Isaacs submits that the complainant gave inconsistent answers about licking the young person's vagina. It is submitted that her answers are confusing and contradictory. It is submitted that she, in fact, said she was unable to lick her vagina. On a reading of the complainant's evidence as a whole, I do not accept that submission. I find that the complainant said she did lick the young person's vagina, but that the jeans did not come completely off and she was unable to perform an act of cunnilingus, as that word is understood by lay persons. I find, as a matter of law, that she did commit cunnilingus. I note that there is no evidence that contradicts the complainant's account of what took place. I am satisfied beyond reasonable doubt that this act of cunnilingus took place. I base that finding on what the complainant said and how she described it, that is, with a certain amount of detail that, in my view, makes it unlikely to be the product of invention or fabrication.

I also rely upon the magistrate's positive findings about the complainant's credit, namely, that she was unshaken and was clear and consistent. I rely upon the photo, Exhibit 7. It is true that it is not corroborative of the act of cunnilingus, but it does support, to some extent, the complainant' s version of what took place. Lastly, I rely upon the tendency evidence, as outlined earlier in these reasons. I accept that the complainant was at the relevant time under 16 years.

Accordingly, I find this offence to be proven." (emphasis added)

42. Exhibit 7, referred to above, was the photograph said by the complainant to have been taken in the change room and showing scratches on her back (see (d) at [34] above).

43. In relation to the Hobbit offence, her Honour noted that the complainant had given evidence, both in the interview with police and under cross-examination, that they had remained until the end of the movie, and that once the movie was over she was exhausted and upset and just wanted to get away from the applicant as soon as possible. However, in cross-examination the complainant was confronted with a photograph, taken at 8:17 pm, that showed the complainant and the applicant “relaxed and happy, smiling with their arms around each other”. Her Honour stated:

“[T]he complainant was not correct when she said she left after the movie ended. The pair must have left the cinema well before the end of the movie. More importantly, the evidence directly contradicts the complainant’s claim that she went home immediately, and that she was upset. Or, at least to some extent, it contradicts her version of being upset.”

44. Her Honour then went on to describe how the complainant maintained she was upset but had to pretend to be happy because she was with the applicant. In relation to this, her Honour observed:

“Much has been made of what is submitted by the defence as the complainant’s lies about going straight home and about her emotional state… For my part, I am troubled by the evidence… It seems to me that if the complainant felt she had to stay with the young person and pretend she was not upset, she could readily have said so from the outset. She did not admit that she had stayed, until directly confronted with Exhibit 10, I find this troubling.

…

There are, in my view, problems with the prosecution case.

First, there is the lie. I agree with Mr Isaacs that it is not an immaterial lie, that is in part because of the way that it was exposed. The complainant was clear in cross-examination that she did go home and that she was upset. Contrary to what the magistrate found, I do not accept that she was unclear about it. I find her explanation for her happy demeanour as shown in the photos to be somewhat unconvincing.”

45. Her Honour did not find that the lie told by the complainant in relation to going straight home, cast doubt upon the complainant’s credibility in relation to the Haymarket offence.

Fresh evidence

46. As noted above at [7], the applicant submits, in essence, that fresh evidence has emerged, such that there is a doubt or question as to the applicant’s guilt in respect of the Haymarket offence. This evidence is contained in two affidavits: that of the applicant affirmed 11 May 2021 and the affidavit of Nicholas William Stewart affirmed 12 April 2021. The evidence deposed to in these affidavits is said to establish the following two facts:

1. First, the only mufti day held during the period 1 July and 31 October 2014 at the school the applicant attended with the complainant was on 15 August 2014 (“the first fact”); and

2. Secondly, on that date, the applicant was not wearing jeans, but rather, a knee-length skirt (“the second fact”).

47. The applicant asserts that the first fact is significant as it establishes the Haymarket offence must have occurred on 15 August 2014. The second fact has a flow-on significance: if the assault occurred on 15 August 2014, and the applicant was not wearing jeans on that day, the applicant asserts that the complainant’s credibility is undermined with respect to her evidence on the events in the changeroom.

48. It is convenient to consider, in turn, the evidence supporting each of these facts.

Date of the Haymarket offence

49. The charges against the applicant were particularised as having occurred between 1 July and 31 October 2014. This date range was obtained from the complainant’s interview. The complainant also said in the interview that the offence had taken place on a school mufti day. The applicant relies on these pieces of evidence at trial for the contention that the offence must have occurred on a mufti day in this date range.

50. The fresh evidence is said to support the first fact in three ways. First, Nicholas Stewart’s affidavit outlines the steps taken by the applicant’s solicitors to ascertain the dates of any mufti days in the relevant period. The annexed correspondence shows that on 5 and 10 February 2021, the law firm was informed by phone and by email that the only mufti day in the relevant period was on 15 August 2014. Secondly, in the applicant’s affidavit, she deposed to the fact that the school’s annual Foundation Day was the only mufti day that year. The school newsletter annexed to her affidavit shows that Foundation Day in that year fell on 15 August 2014. Together, this is said to establish that the only mufti day in the relevant period was 15 August 2014 and, accordingly, the Haymarket offence must have occurred on that date.

The applicant’s outfit on mufti day

51. The applicant points to multiple parts of the fresh evidence to support the second fact. This evidence includes:

1. A screenshot of a series of messages on Facebook Messenger where the applicant said, “I showed my mom the outfit and she was like it looks good!! we’re gunna pin it tomorrow and she’s gunna iron the skirt”. A pop-up box indicates that the messages were sent on 14 August 2014.

2. Three undated photographs of the applicant on what appears to be school premises (“school photos”). One shows the applicant wearing a black singlet and a knee-length skirt, and the other two show the applicant wearing a denim jacket and a skirt. According to the applicant, the complainant sent these photographs to her in response to the applicant’s message, which said “Where’s the photos you took of me?? Like all of them and the ones with Esterman?”. A pop-up box indicates that this message was sent on 15 August 2014.

3. A photograph of the applicant and the complainant taken at a Photo Booth with a time stamp “2014.08.15 18:18” (“Photo Booth photo”). The photograph shows the applicant wearing a black singlet and knee-length skirt.

4. A “selfie” of the applicant and the complainant that the applicant says she sent to the complainant on 15 August 2014 (“selfie photo”).

Applicant’s submissions

52. The applicant submits that the fresh evidence demonstrates the complainant made an error in her evidence as to the applicant’s outfit on the day of the offence. This is said to raise a serious doubt or question as to the complainant’s credibility, and therefore the applicant’s guilt.

53. The applicant provides three reasons for this. First, the “clarity and consistency” of the complainant’s version, including the fact that she was able to demonstrate in the witness box the level to which the jeans were said to have been lowered, was central to Baly DCJ’s acceptance of her evidence as unlikely to be the “product of invention or fabrication” (see [41] above). Secondly, the fact the applicant wore jeans was central to the complainant’s description of the incident. In particular, she gave evidence about the difficulty of performing cunnilingus “properly” as the applicant “didn’t take her jeans off” completely, a difficulty which, the applicant asserts, would not have existed if the applicant was wearing the skirt. Thirdly, the applicant submits that this, as with the Hobbit offence, is an example of where the complainant’s account appears, on its face, to be reliable, but which is subject to serious doubt in the face of objective evidence to the contrary. Reference is made to Baly DCJ’s reliance on the complainant’s lie as basis for acquitting the applicant of the Hobbit offence.

52. The applicant submits that the error in the complainant’s evidence raises a doubt or question about the complainant’s evidence, and this error is so critical that allowing this conviction to stand would cause unease or a sense of disquiet (although, as noted above at [10], I understand that I am to determine this application on the basis of whether a doubt or question is raised and not whether allowing a conviction to stand would cause unease).

53. While the applicant provided further submissions to assert that the evidence is “fresh”, it is not necessary at this juncture for me to determine if the evidence is “fresh” rather than “new” (as noted above at [12]).

Attorney General’s Submissions

56. The Attorney General relies on three grounds in support of his submission that the application should be dismissed: first, the fresh evidence does not raise any doubt or question as to the applicant’s guilt; secondly, the applicant should not be permitted to make challenges to the complainant’s credit which ought to have been made during the trial, as this constitutes an attempt to rerun the trial on the papers: see Application of Holland at [9]; and thirdly, the applicant is bound by her representatives’ acquiescence to the way the prosecution particularised its case as to when the offending occurred. The Attorney General’s reasons for each will be set out in turn.

No doubt or question as to guilt

57. The Attorney General submits, in essence, that the evidence, even if uncritically accepted, only establishes the applicant was wearing a skirt on 15 August 2014. This does not exclude the possibility that the offending occurred on another date when the applicant was wearing jeans, which is consistent with the prosecution case that the assault occurred on any date between 1 July and 31 October 2014, and not on a mufti day or on 15 August 2014 specifically. The Attorney General submits that the applicant attributes too much importance to the complainant’s fleeting reference to a mufti day, which never formed part of the prosecution case.

58. It was further submitted by the Attorney General that, even if the offending did occur on 15 August 2014, the evidence does not establish that the applicant was wearing a skirt at all times on that date. Accordingly, the offending could have occurred after the applicant had changed into jeans. In any case, the applicant’s affidavit evidence, which is of critical importance to establishing the possibility that the school photos were taken on 15 August 2014, is self-serving and should not be relied on to find a doubt as to the applicant’s guilt.

59. Further, the Attorney General submits that it is not possible to extrapolate, from Magistrate Sbrizzi’s dismissal of six charges against the applicant or Baly DCJ’s remarks with respect to the Hobbit offence, any general tendency of the complainant towards untruthfulness or the complainant’s credibility with respect to this charge. Here, the Attorney General notes that the complainant’s allegations were corroborated by other evidence unchallenged by the fresh evidence, such as the photograph depicting the complainant naked from the waist up in a cubicle with a pink bra on the floor, and the tendency evidence which demonstrated the applicant’s sexual interest towards the complainant.

Attempt to rerun the trial on the papers

60. The Attorney General submits that the applicant had sufficient information available to her at trial to challenge the complainant’s credibility by taking the point that the offending must have occurred on 15 August 2014 and the applicant was not wearing jeans on that day. For example, she was in possession of the Photo Booth photo and selfie photo at trial, which she could have tendered as evidence of her outfit on 15 August 2014, and she could have easily obtained information about the dates of mufti days during the relevant period. The Attorney General asserts that the Court should not permit the applicant to, in essence, “rerun” the trial by making forensic choices that were available, but not made at trial.

61. The Attorney General referred to the observations of McCallum J (as the Chief Justice of the ACT then was) in Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 at [73], [75], to support its submission that the principles requiring an appellate court to give due deference to the forensic judgment of trial counsel and the inherent limitations on retrospective review of such judgment are applicable in the context of an application such as the present.

Acquiescence to the prosecution’s particularisation of the dates of offending

62. Similarly to the second ground, the Attorney General submitted that, by not insisting on a precise date of offending, the applicant had accepted that the prosecution had adequately particularised the charge by offering a range of dates as to when the offending occurred. He alleges this was a deliberate forensic decision, by which the applicant is now bound, such that she should not be permitted to advance a case relying on this precise date.

Applicant’s submissions in reply

63. The applicant disputes the Attorney General’s submissions on three points.

64. First, the complainant’s evidence that the alleged offence occurred on a school mufti day was not an extraneous detail as it was volunteered by her without any prompting by the interviewing officer and is corroborated by the applicant’s evidence in her affidavit that she visited Bras N Things with the complainant on 15 August 2014.

65. Secondly, the Attorney General’s submission that the applicant may have changed her outfit after 6:18 pm, the time stamp on the Photo Booth photo, is entirely speculative and does not detract from the doubt raised by the fresh evidence.

66. Thirdly, the applicant disputes the characterisation of the present application as an attempt to rerun the trial on the papers. According to Application of Holland per Johnson J at [10], the review jurisdiction is activated “when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence” (emphasis added). The applicant asserts that the application falls squarely within this description as additional evidence has come to light. She also contends that she is not bound by the alleged “forensic choices” made by her counsel at trial as her counsel was not aware of the evidence required to make those forensic choices.

The first issue: whether the evidence raises a doubt about the applicant’s guilt

67. As discussed above, there are two steps in the reasoning relied upon by the applicant to establish a doubt or question as to the applicant’s guilt. The first step is that the evidence now available suggests the date on which the complainant says the events occurred was 15 August 2014. The second step is that the applicant was not wearing jeans on 15 August 2014, thereby casting doubt on the complainant’s description of the alleged offence.

The date of the alleged offending

68. As noted above, the offending was particularised as having occurred between 1 July 2014 and 31 October 2014. There is objective evidence from the school (which can be regarded as reliable) that the only mufti day held by the school between those dates was on 15 August 2014.

69. The complainant in her interview was initially unsure as to when the event the subject of the allegation took place. She was, however, after some reflection, clear that it was after July 2014, because she had come to know a particular person in July, and it occurred after meeting that person. She then stated it was between then and October 2014. It is not clear how she arrived at October as the end date of that period. While the charge was particularised as occurring between those dates, it is not necessarily fatal to a charge if it is not proved the offence occurred within the dates particularised: see WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58. (I note that given the complainant was still 15 when she gave her account to the police, there is no issue that she was under 16, even if mistaken about the dates between which she said the event occurred.)

70. It is not unusual for an accused person to be faced with an offence, particularly an offence of a sexual nature, alleged to have occurred at some point during a broad range of dates. It is even more common in circumstances where, as here, there were a number of different allegations. It is also no doubt the case that more could have been done, both by the prosecution, and by the defence, to narrow the date on which the offence was said to have taken place. Indeed, the complainant in her record of interview said she would have a receipt for the purchase made that day. It may have been the view of both parties at first instance that isolating the date, when there was no dispute that the events surrounding the allegation occurred, would be of little or no importance. Be that as it may, it is necessary to consider the matter having regard to the significance of the date in the light of the material now relied upon on the application.

71. It is necessary to consider the complainant’s account of the event in more detail. The complainant in her interview of 10 July 2015 was asked if she remembered any other incidents and introduced the narrative with respect to the present allegation saying (at A216-217):

“A   - - - I’m pretty sure that relates to one time when we went shopping after school.

…

A   Um, we went to a bra shop in the city, if I’m remembering this right. I remember it happened, but I just, I’m pretty sure this is what we’re talking about. We went to a bra shop in the city and I went to go try on some bras and she came in the change room with me…”

72. The complainant went on to describe the applicant, having scratched her back, inducing the complainant to lick her (the applicant’s) breasts and vagina (the basis of the charge). She clarified that the location where this occurred was at Bras N Things at Paddy’s Market. The complainant was asked (at Q239) what she was dressed in and responded as follows:

“I was, had my jeans on, had jeans on because it was a mufty day at school, yeah, and I wasn’t wearing anything on my top, so no bra and no T-shirt because I was trying on the pink bra. It was pink and black and I remember because her mum picked her up afterwards at Caps, which was the capital theatre which is a photo booth place and her mum saw the bra. Um, Caps, caps would have come up a lot in conversation because that was where she met Tim.”

73. It is true that, as submitted by the Attorney General, the reference in the above answer to the day in question having been a mufti day appears to have been made almost in passing. It is nonetheless, in my view, significant, particularly when considered with other evidence. As noted above, in introducing the event, the complainant stated that she had gone to the particular location with the applicant after school. It is possible that the complainant and the applicant could have changed their clothing after school. Nonetheless, this would presumably have required each of them to go to their respective houses after school, unless either one, or both of them, had taken clothes to school to change into. There is, however, no suggestion in the complainant’s account that this occurred. This tends to support the suggestion that the event occurred on a day when the complainant and the applicant were not required to wear school uniform. This suggestion is then supported by the reference, some pages of transcript later, to the particular day being a mufti day.

74. There is, of course, the possibility that event occurred on a mufti day outside the period particularised in the charge (if one accepts the Attorney General’s submission and gives little weight to the matters in applicant’s affidavit unsupported by objective evidence). However, as set out above, the applicant in support of this application has provided a page containing a number of photographs apparently taken at a commercial Photo Booth. The page tendered suggests the Photo Booth allows users to not only take a photograph but then use that photograph in a collage together with overlaid graphics to produce stylised images. This document is significant in identifying the date of the alleged offence. It bears a date stamp of 15 August 2014. It also bears a timestamp of 6:18 pm. The outfits worn by the applicant and complainant appear to be consistent with other evidence of what they were wearing at school on 15 August 2014 (discussed below).

75. While the complainant did not explicitly state that she and the applicant went to a Photo Booth after going to Bras N Things, she did say, in the answer set out above at [72], that the applicant was picked up by the applicant’s mother from a “photo booth place”. It is reasonable to infer that they had gone to this location to use the photo booth. The existence of what appears to be the product of a Photo Booth, timestamped 15 August 2014, which also happens to be a mufti day at school, is either a remarkable coincidence, or the events did in fact occur on 15 August 2014. I also note that 15 August 2014 was a Friday. While there is no particular evidence in this regard, it may be regarded as more likely that the complainant and the applicant would have been allowed to go on an outing after school on a Friday, rather than another weekday. There is, to my mind, strong evidence in support of the event having occurred on 15 August 2014.

The clothes worn by the applicant on 15 August 2014

76. As set out above, the applicant relies on a screenshot of a series of messages on Facebook Messenger apparently sent on 14 August 2014 discussing what the applicant proposed to wear the next day, and indicating that her mother was going to iron “the skirt”. The applicant was also able to locate a short exchange of messages, one of which had a pop-up timestamp, 8:46 pm on 15 August 2014 in which the applicant requested “the photos you took of me”. While it is not apparent from the face of the document, the applicant states in her affidavit that the communication was with the complainant. The applicant relies on a number of photographs said to have been sent to her in response to her request. She also said that the complainant’s identity is not displayed on the printout of the message as a result of the complainant having blocked the applicant on Facebook. The time stamp on the message (of 8:46 pm) is not inconsistent with the earlier use of the Photo Booth at 6:18 pm.

77. Ultimately, in my view it does not much matter whether the photos were sent by the complainant or not, although it seems likely they were. What is significant, is that the photograph sent in response to the applicant’s request on 15 August appears to show the applicant, and the clothes she was wearing, on school grounds in the presence of a particular teacher. It is clear in the photographs the applicant is not wearing a school uniform. If, as it appears, the photos were taken on school grounds, the overwhelming inference is they were taken the day they were sent, it being a mufti day (as established in the first step, above). In the photograph printed with the message showing the date, the applicant is wearing a denim jacket and what could be a dress or a skirt. Other photos, which according to the applicant were sent at the same time, show her in what appears to be the same clothes but make it clear that she was wearing a skirt and a singlet top. The clothes in these photographs are remarkably similar to the applicant’s outfit in the Photo Booth photo. The similarity is such that they are, particularly when regard is had to all the evidence, in my view, very likely to be the same clothes.

78. The above evidence strongly suggests the applicant was wearing a skirt at school on 15 August 2014. The Photo Booth photo suggests she was still wearing the same outfit at the photo booth, located at “Caps” (the Capital Theatre) from where the applicant (and possibly the complainant) was likely picked up by the applicant’s mother. There is a very strong, if not overwhelming, inference that the applicant was therefore wearing a skirt while at Bras N Things, given the attendance at Bras N Things was very likely to have occurred between those two events. I would not accept the Attorney General’s submission that the evidence can be discounted based on the possibility the applicant changed from a skirt into jeans before going to Bras N Things. I regard such a possibility as remote.

79. I note that in coming to my view as to the clothing worn at the relevant time, it has not been necessary to have regard to the applicant’s memory of the occasion as set out in her affidavit. Rather, I have been able to reach my conclusion based on what appears to be, and what the Attorney General described as, the objective evidence.

80. The above analysis impacts on the reliability of the complainant’s account. It is convenient to set out again her description of the event in her interview on 10 July 2015 (at A251-2):

“Yeah, yeah, I just, it’s just disgusting to think about. And she, she got me to go down on her. So she took, no, no, she didn’t take off her jeans off and that’s why it didn’t go, I didn’t do it properly. So she took her jeans and her underwear off but only to about here and then she asked me and she pushed my head down. She did push my head down. I remember that.

… And what happened, and then I got up because I, I just didn’t want to do it and she didn’t take her jeans off so I couldn’t do it anyway. …”

81. As set out above, the complainant was cross-examined on her account in the Children’s Court and, in answer to questions asked of her, confirmed the applicant was wearing jeans. It was put to her that she had said in her interview that the jeans had prevented her from performing cunnilingus. The complainant responded indicating she had said that the applicant took her jeans and underwear down “to about here”. The Magistrate intervened to record that the complainant was indicating about 5 cm above the knee pointing to the left side of her thigh.

82. It is apparent from the above that the clothing worn by the applicant was not an incidental aspect of the complainant’s narrative. Rather, it was central to that narrative, because it went to not just the memory of the day generally, but was relied upon to explain why things happened the way that they did. It is, of course, not impossible that the complainant could have been obstructed by the applicant’s underwear alone. That, however, was unlikely to present an obstacle of any significance. The Attorney General, in his submissions, indeed acknowledged that the assertion the applicant was wearing jeans was a “key aspect” of the complainant’s account.

83. I am mindful of the strength of other evidence which supports the complainant’s account, in particular, the tendency evidence and the evidence supporting the presence of both parties in the changing booth. Moreover, not only was the complainant at least half naked in order to try on a bra, there was evidence of a photograph taken in the booth, supporting the complainant’s account of the applicant having scratched her back in the booth. However, it remains the case that the prosecution case relied wholly on the evidence of the complainant to establish precisely what occurred, and in particular whether there was an act of cunnilingus. A central aspect of her account now appears to be unreliable. It is not necessary for the applicant to establish that the events did not occur, or could not have occurred as alleged. It is sufficient if the material relied upon on the application raises a “doubt or question” as to the applicant’s guilt. In my view, it does.

84. Before leaving the matter, I should deal with the further submissions of the Attorney General. The Attorney General is critical of the applicant on the basis that she could have isolated the date of the alleged offending and made the attack she now brings at the trial. To some extent, this smacks of the State taking advantage of its own failure to properly investigate and particularise the charge it brought. Certainly, while the applicant could have done more, she was not only a child at the time, but facing seven other charges. It is not entirely surprising that neither she nor her lawyers, in the order of a year after the event, considered that they may be able to ascertain what she was wearing on a particular day in a four-month period.

81. Contrary to the Attorney General’s submission, I do not accept that the application is an attempt to rerun the trial by making different forensic decisions. Nor do I accept the Attorney General’s submission that the applicant’s assertion that the relevant events must have occurred on 15 August 2014 is inconsistent with the absence of opposition to the prosecution’s particularisation of the charge. In any event, in my view the Attorney General’s submissions in this regard take what was said by Johnson J in Application of Holland out of context. After making the observations relied on by the Attorney General, Johnson J immediately observed (at [10]):

“The jurisdiction which a judge is exercising under Part 7 Crimes (Appeal and Review) Act 2001 is an administrative function which may be activated when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence.”

86. That is precisely this case.

87. Nor is the Attorney General assisted by what was said in Application by Sef Gonzales (No 2). McCallum J’s comments as to the significance of forensic judgments of counsel were made in a context where the applicant’s complaint was specifically one of miscarriage based on incompetence of counsel. Her Honour (at [71]) described the complaint as having “the semblance of an aspirational reconstruction of the case that might have been”. In that context her Honour understandably drew on well established authority in relation to the determination of appeals under s 5(1) and s 6 of the Criminal Appeal Act in which miscarriage is asserted on the basis of the conduct of trial counsel. The present application goes beyond “the aspirational”. The applicant has put forward credible evidence that was not before the courts below. It is enough, applying the statutory test that, based on that evidence, I am satisfied there is a question or doubt as to the applicant’s guilt.

Conclusion

88. It follows from the above that the whole case should be referred to the Court of Criminal Appeal to be “dealt with as an appeal under the Criminal Appeal Act”.

Orders

89. I make the following orders:

1. Application granted.

2. I direct that pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the whole of the applicant’s case is referred to the Court of Criminal Appeal to be dealt with as an appeal against conviction.

3. The applicant’s case be listed before the Registrar of the Court of Criminal Appeal for further directions as soon as reasonably practicable.

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Amendments

13 April 2022 - Citations corrected

Decision last updated: 13 April 2022