Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001

[2018] NSWSC 928

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Application of Armand-Iskak pursuant to s 78 Crime (Appeal and Review) Act 2001 [2018] NSWSC 928
Hearing dates:	Written submissions
Date of orders:	11 July 2018
Decision date:	11 July 2018
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1) The application is dismissed. (2) I direct that the Registrar forward a copy of this judgment to the applicant.
Catchwords:	CRIMINAL LAW – Application under s 78 of the Crimes (Appeal and Review) Act 2001 – Whether doubt or question as to conviction – Applicant convicted of attempting to choke within intent to commit an indictable offence, namely indecent assault – Where applicant sought leave to appeal against his conviction from the Court of Criminal Appeal – Where leave was refused – Grounds relied upon in support of the present application determined by Court of Criminal Appeal – Where the applicant pointed to no further factors bearing upon those grounds – Application dismissed
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW)
Cases Cited:	Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260 Application of Dunn [2005] NSWSC 857 Application of Moore [2000] NSWSC 364; (2000) 112 A Crim R 331 Application of Rendell (1987) 32 A Crim R 243 Application of Suey [2001] NSWSC 543 Armand-Iskak v R [2014] NSWCCA 325 Buttrose v Attorney General of NSW [2015] NSWCA 221; (2018) 324 ALR 562 NSWSC 260 Osland v R (1998) 197 CLR 316; [1998] HCA 75 Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 R v Milat [2005] NSWSC 920; 157 A Crim R 565 Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383 Varley v Attorney General (NSW) (1987) 8 NSWLR 30
Category:	Principal judgment
Parties:	Sheon Alexander Armand-Iskak – Applicant Attorney General for NSW – Respondent
Representation:	Counsel: Applicant – Self represented D New – Respondent   Solicitors: Crown Solicitor for NSW – Respondent
File Number(s):	2018/17156
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By correspondence forwarded to the Registrar of the Court dated 16 March 2018, Sheon Alexander Armand-Iskak (“the applicant”) has made an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”) in respect of his conviction for an offence contrary to s 37 of the Crimes Act 1900 (NSW). The matter was referred to me on 7 May 2018 for determination.

2. In support of the application, the applicant filed the following written material:

1. the application and accompanying grounds (totalling 12 pages);

2. written submissions dated 24 April 2018 (totalling 44 pages);

3. further (undated) written submissions (totalling 184 pages).

3. It should be noted that the applicant has prepared this material without legal assistance. All of it has been taken into account in my determination of his application.

BACKGROUND

4. The applicant stood trial in the District Court before her Honour Judge Huggett and a jury for an offence of attempting to choke with intent to commit an indictable offence, namely indecent assault, contrary to s 37 of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is imprisonment for 25 years.

5. On 4 December 2012, the jury found the applicant guilty. On 8 March 2013 her Honour sentenced the applicant to 9 years and 4 months imprisonment, with a non-parole period of 7 years.

6. The applicant subsequently made an application to the Court of Criminal Appeal for leave to appeal against both his conviction and sentence. Leave was refused: Armand-Iskak v R [2014] NSWCCA 325.

THE CIRCUMSTANCES OF THE APPLICANT’S OFFENDING

7. The following summary of the circumstances of the applicant’s offending is drawn from the judgment of Rothman J (with whom Simpson J (as her Honour then was) and Wilson J agreed) in the Court of Criminal Appeal (commencing at [6]):

[6] The complainant was walking down King Street, Newtown, at around 2.00am on 13 January 2012. The complainant first saw the applicant walking towards her. He looked at her; turned as they passed each other, with the complainant seeking to avoid making eye contact. The complainant heard him stop walking and turn back towards her.

[7] The applicant walked up behind the complainant, placed his arm around her neck and choked her. The complainant fell to the ground and blacked out.

[8] The applicant transferred her into an alley. The complainant, having regained consciousness, fought the applicant and scratched him during the transfer.

[9] Once in the alley, the applicant threw the complainant to the ground and lay on top of her. A number of persons living nearby heard the commotion and attempted, initially by shouting, to prevent the assault. One such person called Emergency Services.

[10] The applicant left the alley, returned to King Street, Newtown, and hailed a taxi.

[11] The residents nearby, or some of them, went to the alley and tended to the complainant. The complainant appeared distressed and was bleeding from an injury above her eye.

[12] It is uncontested that the applicant did not know the complainant before the assault. It is also uncontested that the applicant approached the complainant from behind and put his right arm around her. Further, there is no contest that the complainant tried to remove the applicant's arm from around her. There is some issue as to whether the right arm, to which reference is made above, was put around the complainant's shoulder or neck, and at the appeal hearing much was sought to be made of the evidence in relation to this discrepancy or inconsistency between the complainant's evidence and that of the applicant.

8. The evidence at the applicant’s trial was summarised by Rothman J commencing at [13]:

[13] The complainant gave evidence of all of the matters recited in the fact summary above, except that which occurred during the time that she had blacked out. The complainant said she was "punching, hitting, scratching, anything I could, to try and make him let go", but is not sure if she made contact (Transcript, page 7, line 13-15). She did not recall inflicting the particular scratch/nail injuries on the applicant, but otherwise testified to all of the facts above. There was independent evidence of some of the matters on which the Crown relied.

[14] Mr Samuel Dalley saw the complainant fall, saw the applicant pick her up and turn towards Queen Street, noticed that the complainant had left her bag on the ground, took off his ear phones and crossed the road to pick up the bag.

[15] After he removed the ear phones, he heard a female voice saying, "Get off me". He then saw the applicant run towards him and pass him in the street. Mr Dalley went to the assistance of the complainant and returned her bag. The complainant swore at him. Mr Dalley noticed that the complainant had an injury to her head and was bleeding. The complainant seemed angry, shaky and frantic.

[16] Given the emphasis placed by counsel at trial and the applicant before the Court on the alleged inconsistency of Mr Dalley's evidence with that of the complainant, some further short explanation is required. As is clear from the foregoing, Mr Dalley was walking along King Street with earphones in his ears.

[17] He first noticed the complainant when she fell to the ground. It was the fall to the ground that caught his attention. As a consequence, Mr Dalley's evidence is not directly concerned with the initial attack and alleged choking. It is consistent otherwise with the complainant's evidence and, at least to some degree, with the evidence of the applicant as to the later events in the incident.

[18] Mr Max Rolon lived on the first floor of an apartment building, the window of which looked out onto the alley at which the events were said to have occurred. He heard a scream of "help me", which seemed like it was coming from directly below his window.

[19] He saw a person lying on top of another in the alleyway and could hear a female voice saying "Help me. Get off me". Mr Rolon saw the applicant rise onto all fours. He was wearing clothing consistent with that described by Mr Dalley. Mr Rolon screamed out to the applicant and immediately dressed and went downstairs. Mr Rolon described the complainant as in emotional distress with a bleeding eyebrow.

[20] Despite the submissions in this Court, Mr Rolon's evidence (and Ms Flockhart's evidence) is consistent with the evidence of the complainant and directly inconsistent with the applicant's evidence that he did not lie on top of the complainant.

[21] Ms Kirsty Flockhart was a neighbour who also heard the noise. She lived with Mr Rolon and confirmed his evidence, or that part of it which related to the events before Mr Rolon left the apartment to tend to the complainant. Ms Flockhart called the Emergency Services. After calling Emergency Services, Ms Flockhart also went to the alley and described the complainant as "very upset, really disoriented, really upset, she was crying and had lots of cuts and visible injuries".

[22] Mr Anthony Fleming was another neighbour awoken by the noise in the alley. He too heard a female voice shouting for assistance and went to the aid of the complainant.

[23] Mr Richard Scott seems to have heard events earlier than those that occurred in the alley. He heard a female voice saying words to the effect of: "No I don't want to come with you" or "I don't want to come to your house". He was not sure of the exact words.

[24] About 35 to 40 seconds later, he heard incoherent screaming. He went onto his balcony and saw a man across the road, who called out "Call the police". The man picked up a large handbag and walked towards the woman. Mr Scott then also went to the assistance of the complainant. He described her as having a mark on her face and looking "very distressed". He did not see the applicant.

[25] There was police evidence, the most relevant aspect of which is the evidence of an interview of the applicant, being an electronically recorded interview of a suspected person (ERISP), which is Exhibit 8 in the proceedings. The ERISP was generally to the effect that the applicant did not wish to answer questions and gave, in response to some questions, an alleged alibi. The police asked the applicant why his DNA was found under the complainant's fingers, to which the applicant replied: "You've got me red-handed". He then showed the police his right forearm with four bits of skin missing. He then said "I've pretty much conceded the whole case" and said he did not wish to answer anything further. Notwithstanding the last mentioned attitude, the applicant, later in questioning, admitted he was the person shown on CCTV footage and, in answer to a question put to him by police that he choked the complainant and dragged her into Queen Street, the applicant responded by saying: "Correct".

[26] A DNA sample was taken from the applicant and it matched the DNA found under the fingernails of the complainant. The CCTV footage showed the applicant at a nightclub, standing outside the club, walking down George Street and a few other streets, before arriving at King Street and crossing paths with the complainant. It also showed the applicant hailing a taxi and leaving in the taxi.

[27] Evidence was also adduced from other police and from experts, which it is unnecessary to recite in these reasons. It is desirable to summarise the evidence of Dr Rosemary Isaacs, a General Practitioner specialising in sexual assault. Dr Isaacs examined the complainant, who was not, at that time, in physical distress, but her eyes were red, she had limited neck movement and there was a red mark on the right side of her neck. The complainant had a small abrasion above her right eye. There were five bruises and two abrasions on her right arm; there was an abrasion on her left arm; there was an area of tenderness on her back.

[28] Dr Isaacs described these injuries as consistent with the history given by the complainant of the man grabbing her around the neck with his elbow; her struggling; blacking out and being dragged by him.

[29] Dr Isaacs opined that the application of pressure to the complainant's neck with the crook of the applicant's elbow could have caused her to lose consciousness. Dr Isaacs said that there would not necessarily be bruising on the neck. Nor would she necessarily expect it. Dr Isaacs saw the complainant some 14 to 15 hours after the alleged incident had occurred.

[30] Dr Duflou is the Chief Forensic Pathologist of the Department of Forensic Medicine in Sydney and gave evidence for the applicant. His evidence was, it seems, affected by an understanding that the choking, if it were to have occurred, was by the hands of the applicant. When cross-examined on the basis that the strangulation occurred by the crook of the elbow, Dr Duflou's evidence as to the expectation of reddening and fullness in the complainant's face or haemorrhages in the eyes and fingernail impressions on the neck was significantly qualified. As a consequence, there was little or no inconsistency between the medical practitioners.

[31] The applicant gave evidence as to his use of prescription drugs (Zoloft) and the evidence otherwise admitted identity and basic facts, although did not admit the offence.

[32] The applicant gave evidence of seeing the complainant, following her in the street and perceiving that she was looking at him through the reflection of a window on a number of occasions.

[33] The applicant then testified to the fact that he went over to the complainant and "gave her a hug"; placed his right arm around her shoulders with her neck in the crook of his arm. She was startled. The applicant denied choking her or squeezing her arm but realised that she was scratching his arm so he pulled his arm back forcefully. The complainant stumbled and fell onto the pavement.

[34] The applicant kneeled beside the complainant and tried to grab her nails and remove any DNA evidence.

[35] The applicant testified that he removed the complainant to the alley because the light was brighter and he could better remove the remnants of his DNA. He heard and saw the person across the road, while he was in Queen Street and heard and saw the commotion by residents. The applicant denied any sexual intent towards the complainant and sought to give innocent explanations for the inculpatory answers given to police during the ERISP.

THE RELEVANT LEGISLATION

9. Section 78 of the CAR Act is in the following terms:

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.

10. Section 79 of the CAR Act is in the following terms:

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).

THE PRINCIPLES GOVERNING THE PRESENT APPLICATION

11. The authorities which govern applications of this nature establish a number of fundamental principles, including the following:

1. an inquiry under Part 4 of the CAR Act is not an inquiry as to whether there is a doubt or question as to the convicted person’s guilt or sentence, but rather whether there appears to be such a doubt or question: Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383 at [29]-[31]; Buttrose v Attorney General of NSW [2015] NSWCA 221; (2015) 324 ALR 562;

2. the requisite doubt or question is something which might cause unease: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at [48];

3. the test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstance(s), or as to any part of the evidence in the case. Such a view may be formed where there is a sense of unease disquiet in allowing the conviction or sentence to stand: Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [6] citing Varley (supra); Application of Rendell (1987) 32 A Crim R 243 at 245;

4. where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore [2000] NSWSC 364; (2000) 112 A Crim R 331;

5. the provisions are intended to apply to a part of the evidence which has some real material substance affecting the conclusion of guilt: Application of Suey [2001] NSWSC 543; and

6. there must be available material which, as a matter of practical reality, gives rise to the relevant sense of unease or disquiet: Application of Dunn [2005] NSWSC 857.

12. Importantly, given the matters that the applicant now seeks to raise in support of his application, the procedure under s 78 is not intended to provide a convicted person with another avenue of appeal after the usual avenues have been exhausted, nor is it intended to provide an opportunity to conduct the trial again on paper with the ultimate submission that an acquittal should result. If an applicant seeks to simply re-agitate a matter that has already been agitated and rejected in an appeal against conviction or sentence, and the applicant cannot point to any further specific facts or circumstances, there necessarily arises a real question as to whether a court should refuse to consider some or all of the application: Application of Dunn (supra); R v Milat [2005] NSWSC 920; 157 A Crim R 565; Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260.

THE GROUNDS RELIED UPON BY THE APPLICANT

13. As best I can ascertain from the material filed by the applicant, he relies upon the following grounds:

1. the “unreasonable particulars” provided by the Crown precluded him from engaging in necessary pre-trial preparation, and allowed the prosecution to succeed “for no other reason than it could neither have been rationally anticipated, appropriately prepared for, nor rightly refuted” (“the unreasonable particulars ground”);

2. the Court of Criminal Appeal erred in law by “contravening the established legal principle of the High Court in Osland v R (1998) 197 CLR 316; [1998] HCA 75 (that) a conviction cannot be justified on the basis of a scenario that had not been put to the jury” (“the conviction ground”);

3. the Court of Criminal Appeal “failed to appreciate all the applicant’s grounds of appeal, including the ground alleging that the Crown’s failure to provide pre-trial material prejudiced the preparation of the applicant’s defence” (“the CCA error ground”);

4. counsel for the applicant at trial had acted incompetently by failing to bring pre-trial applications (“the incompetence of counsel ground”); and

5. there was an absence of evidence to support the conviction and that by “re-examining the evidence of the Crown expert witness Dr Isaacs, the victim and defence expert witness Professor Duflow (sic), Mr Crown’s objectively malicious November 12 prosecution and the CCA’s irrefutable error of law will be compellingly made out” (“the no evidence ground”).

CONSIDERATION

14. The unreasonable particulars ground and the incompetence of counsel ground can be conveniently addressed together. The issues raised by both of these grounds were comprehensively addressed by the Court of Criminal Appeal. At [38], Rothman J noted that it was asserted by the applicant that:

…there was a lack of reasonable particulars provided pre-trial by the prosecution in respect of how the offence had been effected, as a consequence of which, the specific acts which gave rise to the allegation were effectively concealed and Legal Aid appointed defence counsel failed in their preparation of a defence; the jury’s verdict was unreasonable and cannot be supported by the evidence; Legal Aid appointed defence counsel proved most incompetent not appreciating any of the applicant’s pre-trial verbal and written instructions for an appropriate line of inquiry to be pursued of the respective Crown witnesses…

15. In dealing with those issues, his Honour said (commencing at [46]):

[46] Ms Mayne, the solicitor at trial, gave evidence in the appeal. Her evidence was compelling and displayed a remarkable knowledge of the facts of the case and organisation of material provided, at length, by the applicant to the Legal Aid Commission. Those notes and that evidence confirm that the trial was conducted wholly in accordance with the instructions of the applicant.

[47] Counsel in the trial, Mr Averre, likewise, while not having access to notes of the trial, displayed a remarkable memory of a trial that occurred two years earlier and the details of the examination, cross-examination and address that occurred during the course of the trial. His memory of the instructions received from the applicant was also compelling.

[48] Contrary to the applicant's submissions, each of the applicant's solicitor and barrister dealt with all of their instructions appropriately and competently. A study of the transcript at trial discloses that cross-examination was competent and appropriate and tested all that was necessary to test in order to disclose, to the best advantage, the applicant's instructions.

16. Significantly, Wilson J made the following additional observations as to the level of competence of the applicant’s solicitor and counsel at trial (at [69]):

I wish to fully endorse the observations of Rothman J with respect to the evidence given before this Court by Ms. Mayne and Mr. Averre, the applicant's solicitor and counsel respectively at trial. Ms. Mayne was an impressive witness who was clearly an extremely capable solicitor; she had a thorough grasp of the applicant's case, her memory of it being significantly aided by the comprehensive file notes and records that she had taken and maintained. The practice of making thorough contemporaneous notes bespeaks her professionalism. Mr. Averre too was a witness of integrity. I had no hesitation in accepting the evidence of each.

17. To the extent that the present application relies on these two grounds, it represents nothing more than a further attempt by the applicant to raise arguments which have already been fully agitated, and rejected, by the Court of Criminal Appeal.

18. Similarly, the conviction ground was comprehensively considered and rejected by the Court of Criminal Appeal. In this regard, Rothman J said (commencing at [49]):

[49] The fundamental difficulty faced by the applicant is that his case depends upon a perception by him of that which the Crown and the complainant said about the injuries to his arm and the manner in which he "choked" the complainant. That perception was, in significant respects, incorrect.

[50] The complainant was aware that she had scratched (or dug her nails into) the applicant's forearm, but was unsure, or did not recollect, precisely when it was that injury was inflicted. Thus, the evidence of the applicant that it was inflicted at the time that the arm was on the "shoulders" and/or "neck" was uncontroverted. It also occurred just before, or at the time that, the complainant was rendered unconscious.

[51] Thus, there is no discrepancy in the timing of the infliction of the injury to his forearm.

[52] Secondly, and far more importantly, the applicant's recollection of the Crown address is significantly in error. During the Crown opening (AB201, transcript 28.11.12, page 3) the incident was relevantly described in the following way:

"She [the complainant] will tell the Court I expect that when she got to the next corner, which is Queen Street, a fairly quiet street, the man came up behind her. He put his arm around her throat and proceeded to apply pressure to her. He said nothing. At this stage [the complainant] had a large shoulder strap bag on her shoulder. The Crown says that the accused applied so much pressure that she blacked out momentarily, causing her to drop the bag. The accused made no attempt to take the bag or look in the bag and indeed ignored the bag and dragged her down Queen Street..."

[53] In the closing address (AB401, Transcript 4.12.12, page 28) the Crown said:

"And she [the complainant] did glance in the window when she realised that he was following her and she started to go faster and the accused, he thinks that this is some sort of amorous engagement, runs after her. And the Crown says he put her in a headlock with his arms squeezing, applying quite some force.

She drops her bag, he has no interest in her bag. He makes no demand for money or property. Doesn't look in the bag. His interest is in her.

She passes out. You might have thought that the scuff marks on the top of the boots where he dragged her, she said that those scuff marks weren't there before this altercation."

Later in the closing address, the Crown says (AB402, Transcript 4.12.12, page 29):

"The accused has scratch marks on his right arm. The photograph. You might think that where those scratch marks are, very much supports the evidence of [the complainant]. If someone had their arm around your neck, and you were trying to get them off, the obvious way to do it would be to reach around and try and wrench them off, leaving marks in the position where you might expect to find it. Not if someone just puts their arm around you in a hug. How would you get scratch [marks] on the outside of the arm, you just push the arm away and run.

Well [the complainant] had no opportunity to run, she was in a serious headlock and she wasn't motioned down the alleyway. She was dragged while she was unconscious and then she was very much frogmarched down there and she was thrown on the ground.

You have all the injuries, you will see the photographs."

[54] The applicant submits to this Court that there was a change in the Crown position relating to the position of his arm during the choking incident. There is no significant or substantial change in the position described by the Crown. That was the evidence of Mr Averre. That evidence is corroborated by the transcript.

[55] The misperception of the applicant was disclosed during the course of his cross-examination of Ms Mayne, the solicitor at trial. In demonstrating to her a position of the arm, he described the expert evidence (and some of the inferences available from the lay evidence) as the pressure being placed on the neck by the "crook of the elbow". The display of the applicant, during the course of cross-examination, was that the elbow was at the front of the neck. Nowhere, in the evidence or the submissions, is it suggested that the elbow was at the front of the neck.

[56] The evidence both of the experts and lay witnesses, together with the addresses of the Crown both in opening and in closing, are consistent with the crook of the elbow being at the side of the neck, not at the front of the neck. Thus, the evidence is consistent with the applicant's evidence that that the upper part of the arm (the humerus) was at the back of the neck, the elbow was bent at the side of the neck and the forearm was at the front of the neck.

[57] The foregoing positioning of the arm, which seems to be the only available position on the evidence before the Court below and before this Court, renders unarguable the applicant's submission that the infliction of the injury in that position was impossible and renders any submission as to inconsistency and lack of cross-examination unsustainable.

[58] Because the applicant is unrepresented, I have paid more attention to the evidence even though no submission was addressed to it other than as dealt with above. There is no aspect of the trial, including the conduct and competence of counsel or solicitor, that has occasioned the miscarriage of justice or rendered the trial anything other than a fair trial.

19. The CCA error ground is similarly without merit. In particular, the applicant’s suggestion that the Court of Criminal Appeal failed to appreciate all of his grounds of appeal is at odds with the fact that Rothman J (at [38]) specifically noted that the applicant had relied upon, and the Court had considered, grounds of appeal which had not been contained in the material provided to the Court, but which the Court treated as particulars of the appeal which was brought. One of the matters to which his Honour specifically referred in that context was the applicant’s assertion that the Crown had failed to provide reasonable particulars in advance of the trial.

20. Finally, the no evidence ground was also considered and rejected by the Court of Criminal Appeal. In this regard, Rothman J said (at [59]):

[59] More importantly, the evidence in the proceedings would not even arguably suggest that it was not open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offence of which he was convicted. I have no doubt of the kind that would suggest there was an insufficiency of evidence or that would involve a reasonable doubt as to the conclusion reached by the jury: see Morris v R [1987] HCA 50; (1987) 163 CLR 454 at 473; M v R [1994] HCA 63; (1994) 181 CLR 487 at 493; MFA v R [2002] HCA 53; (2002) 213 CLR 606 at 623-624; SKA v R [2011] HCA 13; (2011) 243 CLR 400.

[60] I have no doubt, reasonable or otherwise, as to the guilt of the accused and the appeal against conviction is, in my view, untenable.

[61] Ultimately, the expert evidence supported the version of events described by the complainant. The independent witnesses supported the version of events given by the complainant. Each class of evidence was materially inconsistent with the version of events given by the applicant. The criticism of the evidence of Mr Dalley as inconsistent with the evidence of the complainant misunderstands the circumstance that the observations of Mr Dalley occurred after the initial contact by the applicant, at the time immediately after the complainant lost consciousness. As a consequence there is, in the expert and independent evidence, only corroboration of the complainant's version and significant inconsistency with the version given by the applicant.

[62] As earlier stated, in relation to the sentence appeal, the applicant's submission concentrates on the maximum sentence available for indecent assault without regard to the fact that, in the offence here charged, the indecent assault is but one ingredient or element of the far more serious offence of which the applicant was convicted.

[63] The maximum sentence for the instant offence is 25 years' imprisonment. The applicant was convicted after trial and, notwithstanding the subjective factors to which the sentencing judge referred, a sentence of a non-parole period of 7 years with a remainder of term of 2 years and 4 months, commencing 17 January 2012 is neither out of the range available to the sentencing judge for this offence and this offender nor manifestly excessive.

[64] While the foregoing expression of view as to manifest excess is a conclusion, it is based upon the findings of fact of the sentencing judge as to the circumstances of the offence and the subjective circumstances of the offender and relates, particularly, to the range of sentences that have been imposed for such an offence, bearing in mind that there are few such examples.

[65] The expression of opinion takes account of the circumstances of the offence described above, the intoxication of the applicant and the applicant's brain and/or psychiatric injuries. The sentencing judge took into account that the offence that was ultimately committed after the choking was an indecent assault and not sexual intercourse without consent, thus lessening the culpability of the applicant, but also that the offence was interrupted by the conduct of the surrounding residents and others who observed or heard what was occurring.

[66] There is no error of principle or error that would warrant this Court interfering or considering interference with the sentencing discretion exercised by the trial judge: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. The sentence is consistent with the statutory regime and within the range of sentences available and is not manifestly excessive.

[67] For the foregoing reasons, I consider that the ground of appeal on conviction and the ground of appeal on sentence are untenable and do not warrant the grant of leave to appeal. I propose that the Court refuse leave to appeal.

21. Nothing in the material now relied upon by the applicant gives rise to any sense of unease or disquiet, and there is no appearance of a doubt or question as to the applicant’s conviction. In these circumstances, I accept the submission advanced on behalf of the Attorney-General that the threshold consideration in s 79(2) of the CAR Act has not been met. It follows that the application should be dismissed.

CONCLUSION

22. In these circumstances I make the following orders:

1. The application is dismissed.

2. I direct that the Registrar forward a copy of this judgment to the applicant.

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Amendments

16 July 2018 - Typographical correction to coversheet

Decision last updated: 16 July 2018