Application by Mark Stevens (a pseudonym) under Part 7 of the Crimes (Appeal and Review) Act 2001

[2023] NSWSC 657

Supreme Court

New South Wales

Medium Neutral Citation:

Application by Mark Stevens (a pseudonym) under Part 7 of the Crimes (Appeal and Review) Act 2001 [2023] NSWSC 657

Hearing dates:

On the papers

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

The application of Mark Stevens filed on 3 August 2022 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.

Catchwords:

CRIMINAL LAW – appeal and review – application to Supreme Court for inquiry under Part 7 Crimes (Appeal and Review) Act 2001 into five convictions of indecent assault of person under 16 – defended hearing in the Local Court – whether there were errors made by the applicant’s lawyer or the Magistrate - whether there is an appearance of a doubt or question as to the guilt of the applicant – no doubt or question - application refused

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Criminal Procedure Act 1986

Cases Cited:

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

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

Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221

GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314

Gibson, Scott – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577

R v Murray (1987) 11 NSWLR 12

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

Williams v R [2021] NSWCCA 25

Texts Cited:

Criminal Trials Bench Book

Category:

Principal judgment

Parties:

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

Representation:

Applicant: self-represented
Respondent: S McGee (instructed by the Crown Solicitor’s Office)

File Number(s):

2022/13723

Publication restriction:

Non-publication order with respect to the name of the complainant or any information which may tend to identify them.

JUDGMENT

1. The applicant, who I have assigned the pseudonym Mark Stevens, applies to this court for an inquiry into his convictions pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (CAR Act) with respect to five counts of indecent assault of a person under 16 years of age contrary to s 61M(2) of the Crimes Act 1900 (the offences) which were perpetrated upon his stepdaughter AB in 2017 and 2018. Section 61M(2) of the Crimes Act has since been repealed. At the time of the offending, AB was 10 and 11 years old. On 8 April 2019, the applicant was convicted and sentenced for the offences in the Local Court after a two-day hearing before her Honour Magistrate Holdsworth. An appeal against conviction and sentence to the District Court was dismissed by Arnott SC DCJ on 3 September 2019.

2. I have assigned the applicant a pseudonym in these proceedings because a non-publication order was made in the Local Court prohibiting the identification of the complainant and any information that might tend to identify her.

3. The applicant is self-represented. He filed submissions with his application on 3 August 2022 and then again on 21 April 2023. Ms McGee, on behalf of the respondent, the Attorney General, filed submissions on 10 November 2022 with a bundle of material that includes the following documents from the Local Court hearing:-

1. Court Attendance Notices;

2. Transcript of AB’s interview with police, which was played on day 1 of the hearing (MFI 1 in the Local Court proceedings);

3. Transcript of the hearing on 24 January 2019 and 8 April 2019, which includes her Honour’s judgment and sentencing remarks;

4. Exhibit list from the hearing;

5. List of documents marked for identification;

6. Exhibit 1 (a diagram of a body marked by the complainant); and

7. Exhibit 2 (photographs of the complainant’s home).

4. Also contained in this bundle are the following documents from the appeal to the District Court:-

1. Notice of Appeal to the District Court;

2. Exhibit 1 (psychiatric assessment report and Justice Health record);

3. Exhibit 2, being a bundle of records from Justice Health;

4. Exhibit 3, being written submissions on behalf of Mr Stevens; and

5. District Court appeal orders.

5. The applicant has filed the following documents:-

1. Four pages of transcript of the Local Court hearing;

2. A letter from the Office of the Legal Services Commissioner to Mr Stevens acknowledging his complaints against the legal practitioners who represented him in the Local Court and the District Court;

3. An affidavit filed by the applicant in the Federal Circuit Court of Australia on 20 April 2021 (sworn on 19 April 2021);

4. An undated statutory declaration of a friend of the applicant; and

5. A bundle of screenshots of text messages, some of which bear dates in July, August, and September 2017.

6. The reasons for judgment by Arnott SC DCJ dismissing the appeal against conviction and sentence to the District Court are unavailable. I do not consider that his Honour’s reasons would have been of any assistance to me in determining this application. In light of the submissions made by Mr Stevens, I have had to carefully scrutinise the transcript and material before the Local Court and the additional material provided by the applicant in arriving at my decision.

7. As I perceive it, the crux of Mr Stevens’ application is that:

1. he complains about his lawyer’s alleged failure in the Local Court to call witnesses and tender evidence (and in particular text messages) that he contends proves that the offences could not have occurred;

2. the complainant lied;

3. the assistant principal to whom the complainant made a complaint prompted her into making the allegations against him; and

4. her Honour failed to properly direct herself when giving judgment, and in particular failed to give herself a Murray and a Liberato direction.

8. Mr Stevens’ submission is that when taking into account all these matters, I would exercise my power under the CAR Act, and ultimately quash his convictions. I set out my powers under the CAR Act below, which do not include a power to quash the applicant’s conviction.

9. Ms McGee on behalf of the respondent submits that nothing in the Local Court (or District Court) proceedings gives rise to the need for this court to exercise its power under the CAR Act to order an inquiry into the applicant’s convictions (or refer the matter to the Court of Criminal Appeal).

10. For the reasons that follow, I refuse Mr Stevens’ application.

The offences

11. Mr Stevens was convicted of five offences in the Local Court. As described by the prosecutor orally (and as they appear [as amended] in the Court Attendance Notices), they are as follows:-

1. Between 1 June and 31 July 2017, on a school night at about 7pm, the complainant was in her bedroom which she shared with her brother. There were bunk beds in the room and the complainant was on the bottom bunk bed. When she was alone, Mr Stevens got on top of her and touched her breasts for a short period of time. The complainant told Mr Stevens to stop. He swore at her and then left the bedroom (Sequence 1).

2. Between November 2017 and 31 January 2018, the complainant was in her bedroom on her bed. Mr Stevens got on top of her, touched her breasts for 20 to 25 seconds. Mr Stevens was wearing only underwear and did not say anything to the complainant (sequence 2).

3. Between 1 April 2018 and 31 May 2018, the complainant and Mr Stevens passed each other in the hallway of the home. The complainant moved to the side. Mr Stevens stood in front of her and grabbed her breasts for a brief period and then kept walking (sequence 3).

4. Between 1 August 2017 and 30 July 2018, the complainant had her own bedroom. There were a number of kittens in her room. When the complainant was in her bedroom, Mr Stevens entered it, lay on top of her and touched both her breasts over her clothes for about 30 seconds and said nothing (sequence 4).

5. On 25 June 2018, Mr Stevens entered the complainant’s bedroom. She was on the bed playing with a toy to help her fall asleep. He got on top of the complainant, remained there for a short period of time, squeezed her breasts, and then got off her and left the room (sequence 5).

Local Court proceedings

12. The applicant pleaded not guilty to the offences. There was a two-day defended hearing in the Local Court at Campbelltown which took place on 24 January and 8 April 2019. The applicant’s solicitor withdrew from the matter (with the leave of her Honour) at the commencement of the second day of the hearing. The matter continued with the applicant self-represented. Her Honour later refused Mr Stevens’ application for an adjournment so that he could seek new representation. The officer in charge and then the applicant gave evidence on the day Mr Stevens was unrepresented. All of the other evidence in the case was adduced on the first day of hearing when Mr Stevens was legally represented.

13. On the second day of hearing, on the application of the Crown, the dates on two of the Court Attendance Notices (sequences 2 and 4) were amended to co-relate with the evidence of the complainant. Mr Stevens was self-represented at the time this application was made. Her Honour was satisfied that the applicant would suffer no prejudice by allowing the amendments (which were minor), because Mr Stevens denied that any of the offending occurred, and he did not make any submissions about how he would otherwise be prejudiced.

14. Her Honour delivered judgment on 8 April 2019, at the conclusion of the hearing. She found Mr Stevens guilty of each sequence. On that day she sentenced him to an aggregate term of imprisonment of 14 months commencing on 2 April 2019 with a non-parole period of 10 months expiring on 1 February 2020. An indicative term of five months imprisonment was imposed for each sequence. Final orders were also made in respect of an apprehended domestic violence order which is not the subject of complaint by the applicant.

Evidence at the hearing

15. The witnesses who gave evidence in the Crown case were the complainant, an assistant principal from the complainant’s school (who gave complaint evidence), the complainant’s mother CD, and the officer in charge. The applicant gave evidence in his own case.

16. On the first day of trial, the recording of the complainant’s interview with police on 29 June 2018 was played as her evidence-in-chief in accordance with s 306S of the Criminal Procedure Act 1986 (the CPA) and marked for identification. A diagram marked by the complainant and photographs of the complainant’s home where the offences allegedly occurred were tendered as exhibits.

17. In her interview with police, AB alleged that the applicant would touch her at least twice a fortnight between June 2017 and June 2018. The complainant also said that she did not like it when Mr Stevens was in the home because he would often get angry with her, that he would use bad language, and that he would slap her and her siblings in the face when they did something wrong, which made her feel unsafe. I observe that the applicant had a young son with the complainant’s mother. The complainant and her other brother had fathers other than the applicant.

18. AB told police that in about June or July 2018, when she was in her older brother’s room, she was watching TV whilst under the covers on her brother’s bed. She said that the applicant came into the room, lay on top of her and touched her breasts with both hands over the blanket. She told him to stop. The applicant swore at her and left the room (Sequence 1).

19. AB also told police that in about April 2018 or May 2018, she and Mr Stevens passed each other in the hallway of the home. The complainant moved to the side, but Mr Stevens stood in front of her and grabbed her breasts for a brief period and then kept walking (Sequence 3).

20. AB then told police that in June or July 2018, she had her own bedroom. She had a number of kittens in her room. She was in her bedroom, when Mr Stevens entered it, laid on top of her and touched her breasts over her clothes for about 30 seconds (Sequence 4).

21. AB next told police about a time between November 2017 and January 2018, when she was in her bedroom on her bed. Mr Stevens got on top of her and touched her breasts for 20 to 25 seconds. Mr Stevens was wearing only underwear and did not say anything to the complainant (Sequence 2).

22. AB also told police that in about late June 2018, Mr Stevens entered her bedroom. She was on the bed playing with a toy to help her fall asleep. He got on top of the complainant, remained there for a short period of time, squeezed her breasts, and then got off her and left (Sequence 5).

23. AB’s initial complaint was to a teacher’s aide at her school on 29 June 2018, although she did not disclose any sexual abuse. The teacher’s aide referred the complainant to an assistant principal to whom she repeated allegations of Mr Stevens being angry and violent in the home. After being questioned by the assistant principal, she disclosed that Mr Stevens had touched her inappropriately. The assistant principal, being a mandatory reporter, referred the matter to the police who came to AB’s home that evening and took her to the police station to be interviewed. That interview was played in the Local Court proceedings.

24. The cross-examination of AB was in most respects unremarkable. The complainant remained consistent in her evidence and denied that the subject offences did not occur. She disagreed that the offences could not have occurred because the applicant was not there during the relevant times. She told the court that Mr Stevens, whilst he did not live at the home permanently before November 2017, would still visit and sometimes stay two or three nights per week. She said that the reason she did not tell her mother about the touching occurring was because she did not want her to confront Mr Stevens and make him angry, which on her evidence would happen frequently in the home. Her evidence in court was consistent with the allegations she made in her initial complaint and to the police.

25. It is noteworthy that Mr Stevens’ legal representative fully and fairly cross-examined the complainant, taking into account that she was 12 years of age at the date of the trial. He explored each incident in detail and put squarely to the complainant, in language she clearly understood, that the incidents could never have occurred, including the first because the applicant was not there. The complainant was appropriately equivocal about some peripheral matters, but she was steadfast about the events constituting each of the charges.

26. The assistant principal next gave evidence as the sole complaint witness. She corroborated the complainant’s evidence about their conversation. She agreed in cross-examination that she may have asked prompting questions to encourage the complainant to talk. She would not agree that she specifically asked words to the effect of “is he touching you inappropriately at home?” but conceded that she might have asked that question.

27. The complainant’s mother then gave evidence. She corroborated the complainant’s evidence that she was only told of the allegations against the applicant after her daughter’s complaint at school and the subsequent interview with police. She said that Mr Stevens did not live in the home at all for about a three-month period, being approximately July – September 2017, but that during those months, he would come around to pick up and drop off the kids (including the complainant). He then moved back to live in the home perhaps in about November 2017. He would stay for a couple of days, on and off.

28. The complainant’s mother described the applicant as “strict on the kids especially with their chores” and as “very abusive.” She never saw the applicant hit the children. She said that up until the day of the complainant’s interview with police, her daughter had only complained of the applicant being verbally abusive. She said that she spoke to the complainant about the touching on the night of the police interview, in slight contradiction to the complainant’s evidence that this conversation occurred on the morning after the police interview.

29. Toward the end of the mother’s cross-examination, Mr Stevens’ solicitor asked her if she was romantically involved with another man at the time the subject offences allegedly occurred. When the Magistrate asked how this was a relevant line of questioning, the applicant’s solicitor submitted that it went to a fact in issue, as the applicant’s case was that he was not living at the home because CD was involved with another man at the time. Her Honour rejected questioning on this topic.

30. On the second day of the trial, the applicant’s solicitor was given leave to withdraw. Her Honour refused the applicant’s request for an adjournment.

31. The officer-in-charge gave evidence. His evidence confirmed the details of the police investigation. He was cross-examined by the applicant.

32. The Crown then applied to make minor amendments to the CANs dealing with sequences 2 and 4 to accord with the complainant’s evidence, which her Honour allowed. The Crown closed its case.

33. After being told by her Honour that he had a right to remain silent, Mr Stevens chose to give evidence in his own case. He denied that the offending occurred because, on his case, as he was not living at the home during some of the relevant time period, all of the subject offences could never have occurred. In cross-examination by the Crown, Mr Stevens conceded that he got angry with the complainant in the home and admitted that on one occasion he slapped the complainant across the face. Text messages from the applicant to the complainant’s mother were marked for identification in the proceedings, but never tendered. Those text messages form part of the material submitted by Mr Stevens on this application.

34. Mr Stevens wanted his father to give evidence. He was called several times outside court, but he did not appear.

35. Mr Stevens then asked her Honour to adjourn the matter so that he could call a witness, but the application was refused. Mr Stevens then addressed her Honour. He denied that the offending took place and said that the alleged timing made it impossible, as he was not then living at the family home.

The Magistrate’s judgment

36. Her Honour gave an ex tempore judgment after a short adjournment following the conclusion of the hearing. Her Honour acknowledged that up until the day before the second day of hearing, Mr Stevens was legally represented. In declining Mr Stevens’ application for an adjournment to obtain new legal representation, her Honour had regard to the fact that all of the contentious evidence had already been adduced and that Mr Stevens was legally represented when that evidence was heard on the first day of the hearing. Her Honour did not accept that Mr Stevens required additional time to properly prepare for the second day of the hearing.

37. Her Honour found AB to be an impressive witness. She said that the complainant was clear and unembellished. Her Honour recognised that there had been a delay in complaint, but her Honour did not reject AB’s evidence on that account, and she accepted that AB was afraid to complain to her mother because her mother would have confronted the applicant who would likely have become angry. Her Honour thus implicitly recognised the content of s 294 of the CPA, i.e. that an absence or delay in complaint does not necessarily indicate that the allegations are false and that there may be good reasons for a complainant to hesitate or refrain in making a complaint. Her Honour also appropriately directed herself as to the weight of the complaint evidence, i.e. that it was evidence in addition to the evidence of AB that went to the reliability of AB’s evidence. Her Honour noted that AB’s interview with police and her cross-examination was consistent which enhanced her credibility, and she explicitly found AB to be a reliable witness.

36. Critically, on two occasions her Honour acknowledged that as AB’s evidence was uncorroborated, she had to scrutinise her evidence carefully to satisfy herself of its cogency. This was entirely consistent with an essential witness direction and did not contravene s 294AA of the CPA to the effect that it would have been dangerous to convict on the uncorroborated evidence of the complainant.

37. As to CD’s evidence, her Honour accepted that her relationship with Mr Stevens was on and off over many years, that there were periods when he was not living at the family home, and that childcare arrangements were fluid. Her Honour found that Mr Stevens stayed over at the family home at least on occasion in the months prior to November 2017, and implicit in her findings (and the evidence) is that he had access to the family home at all times.

38. Whilst her Honour did not explicitly state the content of the Liberato direction, her Honour noted at the outset that the Crown had to prove its case on the material it brought before the court beyond reasonable doubt. She noted Mr Stevens’ denials, his evidence about the impossibility of the events alleged occurring, and his suggestion that AB had a motive to lie, namely that she was unhappy with the way Mr Stevens disciplined her at home. Her Honour expressly rejected Mr Stevens’ evidence and his denials, and in the spirit of the third limb of Liberato put it to one side. Instead, her Honour accepted the evidence of AB and found the applicant guilty of each count.

39. After brief submissions on sentence from both the prosecutor and the applicant (who was self-represented at this point), her Honour made final orders with respect to an AVO and imposed an aggregate sentence of 14 months imprisonment with a non-parole period of 10 months. The head sentence was set to commence on the date the non-parole period imposed for unrelated offending expired, on 2 April 2019. The indicative sentence for each sequence was five months imprisonment.

Appeal against conviction in the District Court

42. On 29 April 2019, the applicant filed a notice of appeal against his conviction in the District Court. The appeal was heard on 3 September 2019 by Arnott SC DCJ. The applicant was represented by counsel who provided written submissions to the court and tendered two bundles of documents. The first comprised a psychiatric assessment report and Justice Health records and the second comprised Justice Health records from 2001, 2004 and 2005. His Honour dismissed the appeal and upheld the orders of the Local Court.

43. The applicant filed his application to this court on 3 August 2022.

Legislative framework

44. Mr Stevens’ application is made pursuant to s 78 of the CAR Act. It is contained in Part 7 of that Act which deals with reviews of convictions and sentences. Section 78 provides:

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.

45. Section 79 of the CAR Act sets out the court’s power after consideration of such applications:

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).

46. I observe that nothing in the CAR Act gives me power to quash Mr Stevens’ conviction.

47. Proceedings pursuant to s 78 are not judicial proceedings. Rather, the court is exercising an administrative power when determining such an application. In considering an application made under s 78, the court is not providing an applicant with the opportunity for a further hearing of an appeal against conviction: Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes Appeal and Review Act 2001 (NSW) [2020] NSWSC 1048 at [8] – [10] per Cavanagh J; Application of Peter James Holland under s. 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (Holland) at [5] per Johnson J; Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 (Varley), 48 per Kirby P, Hope and Samuels JJA. As Johnson J said in Holland at [5]:

“Part 7 of the CAR Act is remedial legislation designed to overcome injustices that sometimes arise in the course of the administration of criminal justice.”

48. The test required to be applied when this court exercises its administrative power in considering applications under s 78 is set out at s 79(2) (see above). Yehia J recently remarked in Gibson, Scott – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577 at [9]:

“Per s 79(1), exercising the administrative power, the Supreme Court is conferred with the power to direct that an inquiry be conducted into a conviction, or to refer the matter to the Court of Criminal Appeal to be dealt with as an appeal. Section 79(2) provides that those actions “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”. This is “language of confinement”, and unless the judge is of the view that one of those three conditions is satisfied, the Court may not take action (see Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783 at 790).”

49. As to whether it appears that there is a “doubt or question” as required by s 79(2), Beazley P and Leeming JA in Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221 observed at [16]:

“The question is whether the decision made by the judge is attended by jurisdictional error. That in turn depends upon the nature of the function his Honour was performing. The precondition to a direction that there be an inquiry or a referral to the Court of Criminal Appeal under s 79(1) is that “it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”. The statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question. That is to say, as Basten JA said in Sinkovich at [26] , “it is the satisfaction of the judge as to the relevant condition which is critical.” (emphasis added)

50. In GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314, Payne JA made three observations of the s 79(2) test at [137] – [139]:

“[137] The following observations may be made about the test required by s 79(2) of the CAR Act. First, that test is not a demanding one. I agree with Basten JA that the task is to be approached with a view to the overriding purpose of providing a means to address doubts as to compliance with the principle that liberty should only be infringed upon the commission of a criminal offence if commission of the offence has been established beyond reasonable doubt.

[138] Secondly, the “doubt” or “question” the Supreme Court must harbour is one that applies to the finding of the applicant’s guilt, as to any mitigating circumstances in the case or to any part of the evidence in the case. The breadth of those matters, where a “doubt” or “question” which enlivens the powers in s 79(1) may arise, tends to highlight the fact that no limitations should readily be implied into the statutory test.

[139] Thirdly, the fact that the gatekeeper to either of the inquires provided for by s 79 is the Supreme Court itself emphasises the importance of the role and ensures, as Basten JA explained at [53] in Sinkovich, that it is exercised “responsibly and, no doubt, sparingly”. Some matters relevant to the exercise of that gatekeeper role are identified in s 79(3) in the breadth of the considerations which may properly lead the Supreme Court to refuse to consider or otherwise deal with an application. Section 79(3)(b), in allowing for cases where the Supreme Court is “not satisfied that there are special facts or special circumstances that justify the taking of further action”, throws further light on the breadth of the matters which may be taken into account in exercising this gatekeeper role.”

(emphasis added)

51. I adopt Yehia J’s distillation of the relevant principles in Gibson at [13]:

“(i) In determining the application, the Court is exercising an administrative power;

(ii) The Court is not hearing an appeal against the applicant’s conviction;

(iii) The legislation is designed to overcome injustices that sometimes arise in the course of the administration of criminal justice;

(iv) The legislation has a beneficial purpose;

(v) The scope of the administrative function is determined by the relevant provisions set out in s 79(2) of the Crimes (Appeal and Review) Act; and

(vi) 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: s 79(2).”

The Applicant’s submissions

52. The substance of Mr Stevens’ application appears to be based on what he perceives to be the failure of the lawyer who represented him on the first day of the hearing, and in particular his alleged failure to adduce evidence of allegedly exculpatory text messages, his lawyer’s alleged failure to call witnesses, and his lawyer’s alleged error in the cross-examination of CD (by putting to her that Mr Stevens was kicked out of the family home in 2018, as opposed to 2017), to which the complainant agreed. Mr Stevens maintains his innocence, says that the complainant lied and that she was prompted into making the allegations by her school assistant principal.

53. Mr Stevens submits that the offences could never have occurred because he was not living at the property in June or July 2017 (which is when her Honour accepted that the offending commenced), having left the property in March or April of that year. He says that CD was living with another man and that he and his son (with CD) were living at his parents’ home from about March or April 2017 until November 2017.

54. Mr Stevens also complains that her Honour stopped the line of questioning in both the cross-examination of the complainant and her mother about another man living at the home, which he says made it impossible for him to have attended the home and therefore for the subject offences to have occurred. In fact, her Honour rejected the questioning of AB about a man with a “German accent” as being unfair (which was conceded by the applicant’s lawyer). Further, her Honour was of the view that similar cross-examination of the complainant’s mother was not relevant to a fact in issue and ultimately said in her judgment that the court was not in a position to make any finding of fact in relation to whether or not CD was in a relationship at some time with another man. However, she found that Mr Stevens occasionally stayed over prior to returning to live in the home November 2017 and rejected his evidence that it was impossible for the offences to have occurred.

55. Mr Stevens also complains that her Honour failed to give herself either a Liberato or a Murray direction in the terms set out in the Criminal Trials Bench Book.

56. As I have said, Mr Stevens asks the court to quash his convictions.

Applicant’s further submissions

57. Mr Stevens filed further written submissions on 21 April 2023. The respondent was provided with an opportunity to reply to these further submissions but declined to add anything further.

58. In his further submissions, Mr Stevens refers to the decision of Williams v R [2021] NSWCCA 25 and says that in that case the court held that the trial judge correctly gave a Murray direction. In Williams, Adamson J (as her Honour then was), with whom Hoeben CJ at CL and RA Hulme J agreed, held that while the trial judge had given himself what was in effect a Murray direction it had not breached the prohibition in s 294AA(2) of the CPA, because the trial judge had not said that it would have been dangerous to convict on the uncorroborated evidence of the complainant. Mr Stevens largely repeats the submissions previously made, that the Magistrate erred in accepting AB’s evidence and rejecting his evidence, and that AB’s allegations were lies. He reiterates that it was impossible for him to have lived or stayed at the family home in June and July 2017 because CD had a new partner with whom she was living in the family home. Mr Stevens repeats his submissions that the Magistrate ought to have given herself a Liberato direction, and that her Honour did not scrutinise the evidence of the AB with enough care.

Respondent’s submissions

59. Ms McGee, on behalf of the Attorney-General submits that there is nothing in this application which creates a doubt or question such that an inquiry should be ordered.

60. The respondent understands that the applicant argues his innocence by suggesting that it was impossible for him to have committed the offences (and in particular the first offence), that the complainant lied about that allegation and by extension the subsequent allegations. The Attorney-General submits that the applicant’s main piece of evidence supporting this application are text messages between himself and the complainant’s mother which Mr Stevens says demonstrate that he was not living or staying at the home between June-November 2017 and therefore could not have committed some or all of the offences.

61. Ms McGee submitted that the complainant was consistent in her evidence with respect to the initial complaint she made to her school assistant principal, to the police in her record of interview, and in the evidence she gave in court in cross-examination. Ms McGee says that AB’s evidence about Mr Stevens being angry and sometimes violent in the home was corroborated by the complaint evidence of AB’s school assistant principal and CD. She observes that these allegations were unchallenged in cross-examination, adopted by the applicant’s legal representative and later admitted to by the applicant in cross-examination, when he conceded that he once he slapped AB across the face.

62. With respect to the finding by the Magistrate that the evidence of the complainant’s mother showed that Mr Stevens was staying at the home on and off between June and November 2017, Ms McGee points to CD’s evidence-in-chief when she said that there was a three-month period when Mr Stevens did not stay over or live, but when he continued to pick up and drop off the kids. In cross-examination, CD agreed that Mr Stevens began staying over at the family home again in about November 2017.

63. However, notwithstanding this possible misapprehension of the evidence, Ms McGee submits that it was open for the Magistrate to reject the applicant’s argument of impossibility given the following conclusions that arise from all of the available evidence:-

1. Neither the complainant nor her mother denied that the applicant had been “kicked out” of the mother’s home for some months in 2017 during which time he did not stay overnight;

2. CD’s recollection was that the applicant had not lived at the home for approximately three months, likely during July-September 2017;

3. The text messages the applicant relies upon (which were not adduced into evidence in the Local Court proceedings but were marked for identification) do not address CD and Mr Stevens’ relationship status or living situation prior to 30 June 2017 or after 16 September 2017;

4. AB’s evidence did not tie any of the incidents to a specific context or circumstance in which the applicant was staying overnight at the home or to the applicant’s relationship status with her mother;

5. Even during the period that the applicant was not staying overnight at the mother’s home, the applicant:

1. regularly had care of the children, including in the absence of the mother for a few hours in the evenings, the time when the offences were said to have occurred; and

2. was permitted, and at times was invited by the complainant’s mother to spend time with all of the children at her home around the times he picked them up or dropped them off; and

6. There is no evidence that another male was living at the home in June-July 2017, the time of the first offence. The only evidence to support the existence of another male in CD’s life is contained (obliquely) in a few messages dated 16 September 2017.

64. Thus, in the respondent’s submission, there is no material inconsistency between AB’s account that the first offence occurred on a school day in June-July 2017 at approximately 7pm. Further, Ms McGee submits that there was no “failure to tender” the text messages as they did not prove the impossibility of any of the offences occurring. Rather, she submits that the messages show that the applicant and CD were in communication during the period June to November 2017 about the care of all of the children and that Mr Stevens was at times taking care of the complainant and her brothers in the absence of the complainant’s mother. She also observes, correctly, that any error made by the applicant’s lawyer (about the events occurring in 2018 rather than 2017) was clarified by the prosecutor in his re-examination of AB.

64. As to Mr Stevens’ submission that the indecent assault allegations were raised only after prompting by the assistant principal, Ms McGee submits that this misconstrues the assistant principal’s evidence that the complaint came up during a “continual conversation” in which she likely said words to the effect of “did anything else happen?”

Consideration

66. I turn now to the issues raised by the applicant.

Failure to adduce text messages at hearing

67. At the hearing, the text messages were marked for identification but were never tendered. They were not tendered because their contents were not put to the complainant’s mother. However, they were dealt with in the cross-examination of the applicant. Despite the fact they were not put to the complainant’s mother when she was cross-examined by Mr Stevens’ lawyer, they do not corroborate his claim that the offence in June could never have happened. Rather, the text messages demonstrate that between 30 July 2017 and 16 September 2017 (the date range of the text messages provided), care of the children was alternating between the mother and the applicant, sometimes it appears at the request of the mother. For example, it appears that in one instance, Mr Stevens cared for the children for about six days. This does not exculpate the applicant. Rather, it provides a timeframe when the offences could have occurred when the complainant was in the care of, and in the same location as the applicant, including the first offence which Mr Stevens says could not have occurred. The text messages do not prove that the applicant could never have been at the family home at the time of the offences in accordance with the evidence of the complainant (whom her Honour believed).

Lawyer’s failure to call witnesses

68. Mr Stevens does not specify the witnesses who he says his lawyer failed to call to give evidence, apart from his father. To the extent that his lawyer failed to call the applicant’s father, I observe that the Crown case was not closed on the first day of the hearing. On the second day of the hearing, when Mr Stevens called his father as a witness in his case, his father was not present at court.

Lawyer’s error made in cross-examination

69. The error made by the applicant’s lawyer when he put to the complainant that the applicant was “kicked out” of the family home in 2018 instead of 2017 (to which the complainant had agreed) was clearly corrected in re-examination by the prosecutor.

Liberato direction

70. In a case when an accused has given an account of the events (in this case the applicant gave evidence denying the assaults), a standard Liberato direction would have been to the following effect: that an accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt. It follows from this that, first, if the accused’s evidence is believed, then he must be acquitted. Second, if there is difficulty in accepting the accused’s evidence, but it might be true, then the accused must be acquitted. Third, if the accused’s evidence is not believed, then it must be put to one side. The question will remain: has the Crown, upon the basis of the evidence that is accepted, proved the accused’s guilt beyond reasonable doubt?

71. Although her Honour did not express herself in this way, in my view she complied with the spirit of this direction. She mentioned the standard and onus of proof and dealt with the applicant’s evidence which she rejected. She then turned to the evidence adduced by the Crown she did accept (the complainant’s evidence), and which she was satisfied proved the guilt of the applicant beyond reasonable doubt.

Murray direction

72. As I have already noted above, her Honour was well aware that she had to accept AB’s evidence, as she was the essential Crown witness, before she could convict the applicant. On two occasions she remarked that she was required to carefully scrutinise the evidence of the complainant. Her Honour was satisfied that the complainant was an honest and reliable witness and made findings accordingly.

73. Furthermore, her Honour was entitled to rely upon the complaint evidence of the assistant principal whose evidence she accepted. Her Honour was entitled to regard that evidence as additional evidence that the complainant was assaulted in the way she described. Her Honour was also entitled to rely upon the complaint evidence as relevant to the truthfulness of the complainant’s evidence in court.

74. Her Honour was correct to take into account, as she did in relation to the timing of the complaint made to the assistant principal, that a delay in complaining does not necessarily indicate that the allegations were false. There may be good reasons why a victim of a sexual assault may hesitate in making, or refrain from making, a complaint about it. Her Honour accepted that the complainant was afraid of the applicant and was reluctant to tell her mother about the assaults. To this end, her Honour complied with the spirit of s 294 of the CPA.

75. Finally, to the extent that there were any differences in the complainant’s accounts in the police interview and her cross-examination, her Honour was clearly alive to s 293A of the CPA, i.e. that experience shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, that trauma may affect people differently, including affecting how they recall events, that it is common for there to be differences in accounts of a sexual offence, that  both truthful and untruthful accounts of a sexual offence may contain differences, and that it was up to her Honour to decide whether or not any differences in the complainant’s account were important in assessing the complainant’s truthfulness and reliability.

76. I observe that even if her Honour misapprehended a small part of the evidence of the complainant’s mother, it was still open to her Honour to reject the applicant’s claim that it was impossible for the offences to have occurred and prefer the evidence of the complainant based upon the evidence before her.

Affidavit in the Federal Circuit Court proceedings

77. The Federal Circuit Court affidavit upon which the applicant relies was not before her Honour. Nevertheless, it does not provide any relevant information not already canvassed in the Local Court proceedings or Mr Stevens’ submissions. Neither does the statutory declaration from the friend of Mr Stevens.

Prompting questions by the complaint witness

78. Nothing in the evidence before me, or in the Local Court, demonstrates that the assistant principal unduly prompted the complainant into making her disclosures with respect to the applicant. I accept Ms McGee’s submission that Mr Stevens, in making this complaint, has misconstrued the evidence of the assistant principal and that her questioning of the complainant was merely designed to encourage the complainant to be frank and forthcoming. It was not designed to manufacture the allegations. The evidence of both the complainant and the assistant principal were consistent with one another. I note too that Mr Stevens admitted to some of what the complainant had told the assistant principal, i.e. that he was angry and sometimes violent in the home. This was unchallenged in cross-examination and conceded by Mr Stevens’ lawyer during the first day of the hearing.

Other Matters

79. Mr Stevens has suggested that his lawyers were incompetent. I do not accept this contention based on my reading of the transcript and the submissions in the District Court. Mr Stevens also suggests that her Honour ought to have adjourned the matter on the second day of the hearing so that he could call witnesses in his case. At the commencement of the second day of hearing, Mr Stevens was legally represented (after more than a 2 month adjournment). No witnesses were present at the time of the resumed hearing. I infer that no witnesses were available to give evidence, as did her Honour. Furthermore, no evidence as to what those witnesses might have said was provided with this application.

Disposition

80. In my opinion, none of the material or the arguments relied upon by the applicant gives rise to the appearance of a doubt or question about his guilt, any mitigating circumstances, or any part of the evidence. In my view, her Honour was entitled to accept the evidence of the complainant beyond reasonable doubt and convict Mr Stevens of each sequence.

Conclusion

81. The application of Mark Stevens filed on 3 August 2022 pursuant to s 78 of the CAR Act is refused .

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Decision last updated: 22 June 2023