Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3)

Case •

[2017] NSWSC 210

•

08 March 2017

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) [2017] NSWSC 210
Hearing dates: Written Submissions
Date of orders: 08 March 2017
Decision date: 08 March 2017
Jurisdiction:Common Law - Criminal
Before: Latham J
Decision:

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

Catchwords: CRIMINAL LAW – application for inquiry into conviction and sentence following conviction – Pt 7 of the Crimes (Appeal and Review) Act 2001 – s 78 of the Crimes (Appeal and Review) Act 2001 – application refused
Legislation Cited: Crimes Appeal and Review Act 2001 (NSW)
Cases Cited:

Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293

 

Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260

 

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

  R v Cheney (Criminal Court of Appeal (NSW), 28 April 1998, unrep)
Category:Principal judgment
Parties: Roger Cheney (Applicant)
Attorney General for the State of NSW (Respondent)
Representation:

Counsel:
Self–represented (Applicant)
Crown Solicitor for NSW (Respondent)

  Solicitors:
Self–represented (Applicant)
Crown Solicitor for NSW (Respondent)
File Number(s): 2016/00281870
Publication restriction: Nil

Judgment

  1. Roger David Cheney, the applicant, makes an application pursuant to s 78 of the Crimes Appeal and Review Act 2001 (NSW) (the Act) for an inquiry into his 1995 convictions for maliciously inflicting actual bodily harm with intent to have sexual intercourse and assault occasioning actual bodily harm. This application principally concerns the assault offence which was committed against a police officer, Constable Meredith, who was involved in the arrest of the applicant.

The Offences

  1. The facts of the offences were sufficiently summarised by Studdert J in R v Cheney (Criminal Court of Appeal (NSW), 28 April 1998, unrep):[1]

“The offences charged allegedly took place at about 7.00pm on the evening of 3 May 1991 in Everton Lane, Strathfield. Mrs Long lived in a unit on the third floor of a building in Everton Road, Strathfield. The rear section of that block of units faced Everton Lane and Mrs Long, who lived in a rear unit, said that she heard that evening some grunting out in the laneway. The Strathfield TAFE was beside the lane and there was some light into the laneway from the TAFE buildings. When Mrs Long looked out, she saw two figures across the lane, one of which appeared to be straddled over the top of the lower figure. She observed the figure on top drag the lower figure along some distance away from her position and she eventually lost sight of the figures. She then rang Burwood police station and according to her, police vehicles arrived quickly.

Constable Meredith was on patrol nearby in a police panel van with Constable Wicks as his offsider. In prompt response to a police radio message, Constable Meredith drove the van down Everton Lane with the headlights on high beam and the roof spotlight shining ahead. According to Constable Meredith, he saw ahead of him and to the right, a male person on top of another figure. The male person had his trousers down and Constable Meredith said he could see his buttocks. Having stopped the vehicle Constable Meredith began to alight. As he did so the male ahead stood up. According to Constable Meredith that person’s penis was erect. As the constable left the van, the figure ahead began to pull up his tracksuit pants and run away. Constable Meredith said that he noticed that this person was wearing a blue and bright yellow spray jacket, a black coloured beanie and he had long fair hair protruding below his headwear.

Constable Meredith gave evidence that he chased this person over a set of wooden gates, up beside a building, over another two fences, through a gate and across on to the roadway, Everton Road, which runs parallel with Everton Lane, at the front of the block of units in which Mrs Long lived. As the blond haired person set off to cross the road there was a moving vehicle in his path and Constable Meredith said that the fugitive ran into the near side of the vehicle, stumbled, regained his balance and continued to flee. The chase continued into other premises along the side of which the fugitive ran, followed by Constable Meredith. Eventually, when the fugitive reaching the back of the premises which adjoined Cowdery Lane, Constable Meredith caught up with him and tackled him. A struggle followed, during which Constable Wicks also arrived. The two police officers were attempting to but were unable to securely handcuff the fugitive. Further officers arrived and he was in due course handcuffed. There is no dispute that the person arrested in that fashion was the appellant. Thereafter, when the appellant stood up, he kneed Constable Meredith in the testicles. That incident gave rise to the third count in the indictment.

It was the evidence of Constable Meredith, that he was two or three metres away from the appellant when he commenced his flight and this police officer said that he never lost sight of the appellant between that point and the time when he later tackled him beside Cowdery Lane.

Constable Wicks gave evidence that as the van proceeded along Everton Lane, Constable Meredith said something to him and he then saw Constable Meredith leave the van and he saw the offender climbing a wooden fence. Constable Wicks did not notice if the offender had anything on his head by he did see that he was wearing a blue and gold spray jacket and black tracksuit pants and that he had shoulder length blond hair. Constable Wicks was behind Constable Meredith in the chase that followed. When Constable Wicks left the vehicle he saw the victim lying on the ground and he spoke to her and he then took up the chase, although he lost sight of Constable Meredith after crossing Everton Road. However, he came upon his colleague struggling with the appellant. He confirmed Constable Meredith’s account concerning the struggle and the eventual overpowering of the appellant. Constable Wicks confirmed that when the appellant was handcuffed and stood up, he kneed Constable Meredith in the groin.

1. The first four paragraphs were similarly extracted by Hamill J in the previous application (Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293 [2].

The History of the Case

  1. The history of the case is a long and convoluted one. The applicant was convicted and sentenced for the aforementioned offences (the Strathfield matters) by Shillington DCJ sitting alone on 24 March 1995. The applicant pleaded not guilty to both counts on the indictment. He was sentenced to a minimum term of four years and eight months imprisonment with an additional term of two years on the first count, and one year imprisonment on the second count.

  2. The conviction on the first count of the indictment, maliciously inflicting actual bodily harm with intent to have sexual intercourse, was the subject of an appeal to the Court of Criminal Appeal. Studdert J, Levine and Simpson JJ delivered the judgment of the Court on 28 April 1998, and dismissed the appeal.

  3. The applicant then made an application pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his convictions in relation to the Strathfield matters. This application was based upon so-called fresh evidence relating to the applicant’s DNA, the absence of forensic evidence proving the applicant’s presence at the scene, the absence of the complainant at trial, and alleged inconsistencies between internal police documents and the Crown case. Justice Hamill dealt with the application and dismissed it: Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293

Legal Framework

  1. The legal framework which governs applications under s 78 is principally outlined in ss 78-79 Crimes (Appeal and Review) Act 2001 (NSW). Section 79 relevantly states:

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.

…

(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).

  1. The test has been usefully clarified by Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [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 s465 and its replacement by the provisions now contained in s79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].

This test has been cited with approval: Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260 at [3]; Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review Act 2001 (No 1) [2015] NSWSC 291 at [20].

  1. An application under s 78 is not to be seen as another avenue of appeal or an opportunity to rerun the trial with different arguments: Application of Peter James Holland under s 78 Crimes (Appeal and Review Act 2001 [2008] NSWSC 251 [9].

The Applicant’s Submissions

  1. The submissions made by the applicant were contained in two separate documents. The first set of submissions was dated 14 September 2016. The second set of submissions was made in reply to the Crown submissions and was dated 5 November 2016.

Fresh Evidence

  1. The applicant’s primary submission is that fresh evidence casts doubts on the decision by Hamill J. The “fresh evidence” referred to is the same “fresh evidence” canvassed in the decision of Hamill J. This argument features in both the September and November submissions.

  2. The applicant submits that the allegation of assaulting Constable Meredith, was a “total lie”. The applicant submits that Constable Meredith was not on sick leave at the time of his bail application, rather, Constable Meredith accompanied him to the bail application. This submission was also made and dealt with by Hamill J in the previous application.

  3. Furthermore, the applicant submits that Constable Meredith could not have taken sick leave. He relies upon a document that he has received by way of a freedom of information request, which contains Constable Wicks’ account of events for the purposes of an investigation by Senior Sergeant J.M. O’Connor into the conduct of police in apprehending the applicant. Constable Wicks states that after the applicant was apprehended and secured, Constable Meredith “returned to the scene [of the sexual assault] assisting Scientific Police”. A statement in similar terms is also made in Constable Meredith’s report. The same submission featured in the application before Hamill J.

  4. The applicant highlights Constable Meredith’s statement in his report that the applicant “kicked my in the testicles [sic]”. The applicant then seeks to distinguish this from a finding made by Studdert J, that the applicant “kneed Constable Meredith in the groin”: R v Cheney (Criminal Court of Appeal (NSW), 28 April 1998, unrep). The same submission was made in the application to Hamill J.

  5. The applicant seeks to cast doubt upon the honesty of the police officers who apprehended him.

Conflict of Interest – Hamill J

  1. In the November submissions, the applicant further submits that Hamill J should not have been allowed to make a decision in Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293, due to a conflict of interest.

  2. The applicant submits that he had previously retained unnamed Senior Counsel in an unrelated matter. The applicant “sacked” Senior Counsel for suggesting that the applicant’s claim in this unrelated matter had “no merit”. This particular Senior Counsel worked from Forbes Chambers. The applicant submits that prior to being elevated to the bench Hamill J was a “joint owner” of Forbes Chambers, and accordingly, in his submission, this gives rise to a conflict of interest.

Defects in the Crown case

  1. In the November submissions, the applicant submits that the following defects and inconsistencies were present in the Crown case:

  1. The victim did not appear at his trial;

  2. Constable Meredith claimed victims compensation;

  3. The applicant was rearrested at a later date;

  4. Defects in the DNA evidence;

  5. Issues with the blood sampling;

  6. Issues with the documentation of how the applicant was identified by the police at the scene;

  7. Shoe patterns not matching.

  1. The applicant submits that these matters cast doubt on the convictions for the offences which occurred in Strathfield.

The Crown’s Submissions

  1. The Crown makes two submissions.

  2. The first submission is that the matter has been previously dealt with by Hamill J in Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293.

  3. The second submission is that the matter does not give rise to a doubt or question as to guilt. This also follows from statements made by Hamill J on the previous application: Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293 at [39].

Consideration

  1. After a review of the submissions from both parties, the decision of Hamill J on the previous s 78 application and the 1998 Court of Criminal Appeal judgment, I have reached the following conclusions:

  1. Notwithstanding the applicant’s reliance upon further evidence, there is no doubt or question about the applicant’s guilt on the basis of very minor anomalies or inconsistencies in the statements of Constables Meredith and Wicks. Whether Constable Meredith was kicked in the testicles or kneed to the groin is immaterial as to whether an assault occurred that occasioned actual bodily harm. It does not create a doubt as to whether the applicant was criminally responsible for the crimes of which he was convicted.

  2. There is no conflict of interest in relation to Hamill J. A barrister is, and indeed must be, a sole practitioner: Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) at rule 12. Accordingly, it is irrelevant that Hamill J and the applicant’s former counsel both worked from Forbes Chambers. No conflict could arise in the circumstances described by the applicant, namely, that Hamill J once occupied a room in chambers of which another senior counsel was a member, and who in any event did not ultimately act for the applicant.

  3. The alleged defects in the Crown case which the applicant relies upon for the purposes of this application have already been addressed by this Court in Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2015] NSWSC 293.

  1. I refuse to further deal with the application pursuant to s 79(3)(a)(ii).

  2. The application is dismissed.

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Endnote

Decision last updated: 08 March 2017

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