Application by Serge Zhura pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

Serge Zhura applied to the Supreme Court for a review of his conviction and sentence under section 78 of the Crimes (Appeal and Review) Act 2001 (NSW). Zhura was convicted of multiple counts of sexual touching, common assault, and associated offences committed on the dancefloor of a nightclub. The incidents involved three separate victims and were considered out of character for Zhura, who had no previous convictions and suffered from psychological issues. The application sought to address the question of whether the case should have been diverted under mental health legislation and whether convictions should have been recorded.

The legal issues before the Court involved the nature of Zhura’s psychological state at the time of the offences, the appropriateness of recording convictions given his background, and the application of the discretionary power of the Court to review the conviction and sentence. Zhura's lawyer had made a submission in the District Court that the objective seriousness of the offences was lessened by the sexually charged environment of the nightclub, though the Court found this argument difficult to articulate. The Court had to determine whether there was an appearance of doubt or a question around the conviction or sentence warranting review.

The Court dismissed the application, finding that the matter had been carefully considered by the Magistrate and the District Court. The Court acknowledged that the issues had been thoroughly reviewed in the lower courts and that Zhura's psychological issues were relevant, but ultimately concluded that there was no basis for the Court to intervene. The Court exercised its discretion not to consider the application on its merits and dismissed it, finding no grounds to question the conviction or sentence.