Application by Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 6)

[2025] NSWSC 195

Supreme Court

New South Wales

Medium Neutral Citation:

Application by Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 6) [2025] NSWSC 195

Hearing dates:

On the papers

Date of orders:

12 March 2025

Decision date:

12 March 2025

Jurisdiction:

Common Law

Before:

Coleman J

Decision:

Application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) refused.

Catchwords:

CRIMINAL LAW – application under s78 of the Crimes (Appeal and Review) Act 2001 (NSW) – inquiry into conviction of common assault and appeal from the Local Court’s decision District Court – five previous applications dismissed – application not further dealt with or considered under s 79(3) having been previously dealt with in review proceedings

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW) ss 76, 78, 79

Crimes Act 1900 (NSW) – s 61

Cases Cited:

Application by Petronella Boege for an inquiry into conviction and sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW), Adamson J, 27 March 2012, unrep)

Application by Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 935

Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) [2016] NSWSC 729

Boege v Attorney General of New South Wales [2016] NSWSC 1469

Further Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925

Category:

Principal judgment

Parties:

Petronella Boege (Applicant)
Attorney-General of NSW (Respondent)

Representation:

Counsel:
Petronella Boege (Applicant)
David Birch (Respondent)

Solicitors:
Crown Solicitors Office (NSW) (Respondent)

File Number(s):

2024/348868

Publication restriction:

Nil

JUDGMENT

1. HIS HONOUR: Petronella Boege applies for an inquiry into her conviction at the Bega Local Court on 5 January 2000 for one offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). The prosecution case was that Ms Boege assaulted her former husband in October 1999 at Bega. The events the subject of the assault occurred in the context of a bitter breakdown of their marriage. Ms Boege was convicted and fined $500.

2. Ms Boege appealed against her conviction to the District Court of New South Wales. That appeal was heard and dismissed by Shillington QC DCJ on 8 March 2001.

3. Ms Boege now applies for yet another inquiry into her conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Act”).

4. Ms Boege has made five previous unsuccessful applications of this kind in relation to the same conviction.

5. The first was considered by her Honour Adamson J in Application by Petronella Boege for an inquiry into conviction and sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW), Adamson J, 27 March 2012, unrep). Her Honour dismissed that application.

6. Following the dismissal of that application, Ms Boege petitioned the Governor of New South Wales for a review of the conviction pursuant to s 76 of the Act. That petition was declined on 30 January 2013.

7. Ms Boege then made a second application to this Court pursuant to s 78 of the Act. Her Honour Wilson J refused that application: Further Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925.

8. Ms Boege made a third application to this Court pursuant to s 78 of the Act. Her Honour N Adams J refused that application: Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) [2016] NSWSC 729.

9. Ms Boege made a fourth application to this Court pursuant s 78 of the Act. His Honour Harrison J (as the Chief Judge then was) refused that application: Boege v Attorney General of New South Wales [2016] NSWSC 1469. His Honour concluded his judgment by saying:

“[12] This matter has previously and obviously been dealt with under Part 7 of the Act. Three separate applications have been considered by three separate Supreme Court judges who all reached what amounts to the same conclusion. For what it is worth, I have revisited all of those decisions. The conclusions reached in each case are unexceptionable. I would also have reached the same conclusion as the judges who dealt with them.

[13] Nothing promoted or provided by Ms Boege in the present application is new. I am completely satisfied that there are no special facts or special circumstances that justify the taking of further action. In the circumstances I refuse to consider or otherwise deal with this application. It is clearly frivolous and vexatious and a monumental waste of this Court’s time. In any other litigious context it would arguably amount to an abuse of the process of the Court.”

10. Ms Boege then made a fifth application to this court pursuant s 78 of the Act with respect to her “AVO Conviction” and her assault conviction. Her Honour Schmidt J refused the application: Application by Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 935. In concluding her reasons, her Honour referred to Harrison J’s judgment and said:

“[13] Reference was also made to Harrison J’s refusal to consider her third application: Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) at [25] and Harrison J’s observations at [12] earlier referred to.

[14] I am satisfied that there is, in the circumstances, no question that both Ms Boege’s AVO Conviction and the appeal from the Local Court’s decision to the District Court have previously been dealt with, as Harrison J concluded. What is now raised by Ms Boege, on this fifth application, raises no special facts or special circumstances that justify the taking of any further action.

[15] Like Harrison J, I consider that Ms Boege’s refusal to accept the rejection of her repeated applications and her pursuit of a fifth application to be frivolous and vexatious, a monumental waste of this Court’s time and in any other litigious context, unarguably amounting to an abuse of the process of the Court.

[16] In the result, this application must also be dealt with under s 79(3). The application will accordingly not be further considered.”

The application

11. Ms Boege’s present application is supported by written submissions dated 8 September 2024 and signed 12 September 2024. The submissions are almost 15 pages in length. They are in a form which makes them difficult to summarise. There is nothing new or additional in those submissions to the substance of the matters she has repeatedly raised (and which have been rejected) in the five previous applications. I therefore do not consider it necessary to repeat in any detail the matters she seeks to raise or all of the issues she says arise. They have all been raised (and rejected) before.

12. Ms Boege’s arguments on this application can be briefly stated as:

1. That various aspects of the evidence in the assault proceedings were not properly considered. For example, she asserts that:

1. Mr Boege and Senior Constable van der Hout fabricated evidence;

2. There were inconsistencies between Mr Boege’s evidence in chief and his police statement;

3. Her evidence was that she did not punch Mr Boege, and this is said to be consistent with various matters;

4. Her evidence was that Mr Boege grabbed her and the photo albums, and this is said to be consistent with various matters;

5. Senior Constable van der Hout was untruthful when he gave evidence that he did not know Mr Boege.

2. That Shillington QC DCJ erred in the District Court appeal in holding that leave to cross-examine witnesses in appeal had not been granted and he would not allow it.

3. That various witnesses were not cross-examined in relation to identified issues.

4. That an internal NSW police report erred in various respects.

5. That each of the Supreme Court judges who conducted the five previous s 78 applications made various errors.

13. Submissions were provided on behalf of the Attorney-General dated 19 November 2024. Those submissions helpfully recite the factual and procedural history of the matter, including each of the other five s 78 applications made by Ms Boege and refused by this Court. Those submissions also dealt with the matters raised by Ms Boege.

14. Ms Boege filed submissions in reply to the Attorney-General’s submissions dated 13 January 2025. They are largely repetitive of the matters raised in her submissions in chief. They raise nothing new to that which has previously been dealt with.

Consideration

15. Part 7 of the Act deals with applications to the Court by a convicted person for an inquiry into a conviction or sentence.

16. Section 79 of the Act provides relevantly as follows:

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.

…

17. Ms Boege does not raise on this application any new fact or matter which would establish that there are special facts or special circumstances which would justify the taking of any further action with respect to her conviction. The matters she raises have all substantively been raised and dealt with in her previous Part 7 applications in respect to the same conviction. The matter has been reviewed and dealt with by five other judges of this Court. All of them have effectively reached the same conclusion.

18. I have considered the material put before the Court by Ms Boege on this application. I am comfortably satisfied that there are no special facts or special circumstances that justify taking any further action in relation to the conviction.

19. I have referred to the comments of Harrison J (endorsed by Schmidt J) that the applications by Ms Boege before them were frivolous and vexatious and, in any other litigious context, would arguably be an abuse of the Court. The same conclusions must be made with respect to this application. I agree with their Honours that Ms Boege’s repeated applications, on the same bases and without raising anything new or in addition to the matters that have been previously (and repeatedly) dealt with, are a monumental waste of the Court’s time.

20. Pursuant to s 79(3) of the Act the application will not be further considered or dealt with.

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Decision last updated: 21 March 2025