Application of FD - [2015] NSWSC 285

Supreme Court

New South Wales

Medium Neutral Citation: Application of FD [2015] NSWSC 285
Hearing dates: On the papers
Date of orders: 27 March 2015
Decision date: 27 March 2015
Before: Garling J
Decision:
Application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 dismissed.

Catchwords: CRIMINAL LAW – application under s 78 Crimes (Appeal and Review) Act 2001 for inquiry into sentence –applicant convicted at trial of armed robbery, malicious wounding with intent to cause grievous bodily harm and murder – unsuccessful appeal to Court of Criminal Appeal against conviction – leave granted by Court of Criminal Appeal to appeal against sentence – no doubt of the way in which the applicant’s appeal against sentence was dealt with by the Court of Criminal Appeal – no basis for referral under Pt 7 Crimes (Appeal and Review) Act – application dismissed
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v FD [2006] NSWCCA 31
R v FD; R v JD [2005] NSWSC 128
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Texts Cited: Not Applicable
Category: Principal judgment
Parties: FD (Applicant)
Attorney-General of NSW (Respondent)
Representation: Solicitors:
Kiki Kyriacou (Applicant)
NSW Crown Solicitors (Attorney-General)

File Number(s): 2014/239120
Publication restriction: Order of the Court of Criminal appeal on 21 February 2006 that the applicant is to be referred to as FD, and that there is to be no publication of any material capable of identifying the applicant.

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Judgment

Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (“the Act”), FD (“the applicant”) applies for an inquiry into the sentence imposed upon him. The applicant seeks that his case be referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912: s 79(1)(b) of the Act.
The application is opposed by the Attorney-General for the State of New South Wales.

Relevant Legislation

Sections 78 and 79 of the Act are relevantly 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)   ...
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…

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.

Continue reading Application of FD

Details

AGLC: Application of FD [2015] NSWSC 285
Case: [2015] NSWSC 285
Decision Date: 27 March 2015

CaseChat Overview and Summary

An application has been made by an individual, identified as FD, to the court under section 78 of the Crimes (Appeal and Review) Act 2001. The application seeks an inquiry into the sentence imposed on FD, who was found guilty at trial of armed robbery, malicious wounding with intent to cause grievous bodily harm, and murder. FD's appeal against the conviction was unsuccessful in the Court of Criminal Appeal, which subsequently granted leave to appeal against the sentence. The primary legal issues before the court were whether the Court of Criminal Appeal had appropriately considered the sentence and if there was a basis for referral under Part 7 of the Crimes (Appeal and Review) Act.

The court examined the Court of Criminal Appeal's handling of the sentence appeal, confirming that there was no doubt about the manner in which it was dealt with. The court concluded that there was no basis for referring the sentence back to the Court of Criminal Appeal under Part 7 of the Act. Given the clear assessment by the Court of Criminal Appeal and the absence of any grounds for further review, the application was dismissed. The court's reasoning was grounded in the procedural fairness and adequacy of the sentence review process already undertaken by the Court of Criminal Appeal.

Consequently, the court dismissed the application. The decision upheld the sentence as appropriately considered by the Court of Criminal Appeal, with no legal grounds for further review under the relevant statute. The court's final orders reflect the dismissal of the application and the maintenance of the original sentence.

Orders