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Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW)

Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW)

Case [2017] NSWSC 462 21 April 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2017] NSWSC 462
Hearing dates: On written submissions
Date of orders: 21 April 2017
Decision date: 21 April 2017
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
Application under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW) refused.

Catchwords: CRIMINAL LAW – application for inquiry into conviction under Crimes (Appeal and Review) Act 2001 (NSW), s 78 – where applicant had already appealed unsuccessfully to the Court of Criminal Appeal – where previous application for inquiry refused – whether the Court can refuse to consider the application under Crimes (Appeal and Review) Act, s 79(3) – whether the matter had been fully dealt with in proceedings or previous review – whether special circumstances exist.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Evidence Act 1995 (NSW)
Listening Devices Act 1984 (NSW)
Cases Cited: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452
R v Burton [2013] NSWCCA 335; 237 A Crim R 238
R v Holland [2002] NSWCCA 469
Re Cheney (No 1) [2015] NSWSC 291
R v Naa (2006) 76 NSWLR 271; [2006] NSWSC 851
R v Ryan [2013] NSWCCA 316
R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1
Category: Principal judgment
Parties: Peter James Holland (applicant)
File Number(s): 2016/223185
Publication restriction: Nil

Judgment

In September 2001 Peter James Holland was charged with five sexual offences alleged to have been committed by him at Goulburn on the evening of 19 July 2001, all against the same adult female complainant. He was tried on those charges in the District Court over seven days in May 2002. He was found guilty on count 1, aggravated sexual intercourse without consent involving digital vaginal penetration, contrary to s 61J(1) of the Crimes Act1900 (NSW), and on count 2, attempted sexual intercourse without consent. The jury acquitted him of the other three counts.
Mr Holland was sentenced to imprisonment. He appealed against conviction. Five grounds were argued, all of which were rejected: R v Holland [2002] NSWCCA 469. He has fully served his sentence.
On 28 May 2006 Mr Holland applied pursuant to Part 13A of the Crimes Act for an inquiry into the convictions. On 23 February 2007 the provisions contained in Part 13A (ss 474B – 474N) were repealed and re-enacted as Part 7 (ss 76 – 88) of the Crimes (Appeal and Review) Act 2001 (NSW). Mr Holland’s application under Part 13A had not been finally determined immediately before the repeal and was therefore taken to be an application under the corresponding provisions of Part 7 of the Crimes (Appeal and Review) Act by force…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2017] NSWSC 462
Case: [2017] NSWSC 462
Decision Date: 21 April 2017

CaseChat Overview and Summary

The case before the court involved an application by Peter James Holland, who sought an inquiry into his conviction under section 78 of the Crimes (Appeal and Review) Act 2001 (NSW). Holland had previously appealed his conviction to the Court of Criminal Appeal, which was unsuccessful, and a prior application for an inquiry had also been dismissed. The court was tasked with determining whether it could refuse to entertain Holland’s current application under section 79(3) of the Act, which stipulates that the court may decline to consider an application if the matter has been fully addressed in prior proceedings or reviews. Additionally, the court needed to ascertain whether any special circumstances existed that warranted reconsideration.

The court examined whether the matter had indeed been fully dealt with in the prior proceedings or review processes. It considered the statutory provisions and the legal principles governing the scope of judicial review under the Act. The court deliberated on the nature of the previous decisions and the extent to which they addressed Holland's claims, aiming to determine if there were any residual issues or new evidence that had not been previously considered. The court also assessed whether the special circumstances, if any, were sufficient to warrant a departure from the statutory limitations on successive applications.

In its reasoning, the court found that the matter had been comprehensively addressed in the previous proceedings and review processes. It concluded that there were no residual issues that warranted further judicial inquiry. The court also determined that no special circumstances existed that would justify revisiting the application. Consequently, the court decided to decline Holland’s application for an inquiry into his conviction. It was held that the statutory framework and previous judicial decisions precluded the court from considering the matter further under the specified provisions.

The final orders of the court were that the application by Peter James Holland for an inquiry into his conviction under section 78 of the Crimes (Appeal and Review) Act 2001 (NSW) be dismissed. The court reiterated that the matter had been fully dealt with in prior proceedings, and no special circumstances were present to warrant reconsideration. Holland’s application was thus refused, and the conviction remained as upheld by the previous decisions.

Orders