Application of Michael Anthony Gleeson under the Crimes Act 1900 s 474D Crimes (Appeal and Review) Act 2001 s 78

[2008] NSWSC 200

CITATION:	Application of Michael Anthony Gleeson under the Crimes Act 1900 s 474D Crimes (Appeal and Review) Act 2001 s 78 [2008] NSWSC 200
JUDGMENT DATE :	17 January 2008
JUDGMENT OF:	Price J at 1
DECISION:	Application refused.
CATCHWORDS:	Application for judicial inquiry into conviction - fourth application - matter fully dealt with previously - no special facts or special circumstances.
LEGISLATION CITED:	Crimes Act 1900 s 61E (1A), s 61D, s 76, s 474D, s 474E Crimes (Appeal and Review) Act 2001 s 78, s 79,
CATEGORY:	Principal judgment
CASES CITED:	Varley v The Attorney General in and for the State of New South Wales (1987) 8 NSWLR 30
PARTIES:	Michael Anthony Gleeson
FILE NUMBER(S):	SC 72017/06
SOLICITORS:	Mr Abadee for Director of Public Prosecutions. Michael Anthony Gleeson
LOWER COURT JURISDICTION:	District Court
LOWER COURT DATE OF DECISION:	13 August 1993

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

17 January 2008

72017/06

THE APPLICATION OF MICHAEL ANTHONY GLEESON
CRIMES ACT S.474D, CRIMES (APPEAL AND REVIEW)
ACT S.78


DETERMINATION

1 HIS HONOUR: This is the fourth application by Michael Anthony Gleeson under s 474D of the Crimes Act 1900 into his convictions in the District Court of New South Wales on 13 August 1993.

2 The applicant on 12 May 1993 was indicted on nine counts of sexual assault against his stepdaughter. He pleaded not guilty to counts three, and five and the Crown accepted pleas of guilty to the remaining counts in full discharge of the offences charged in the indictment.

3 Counts one and two were charges of indecent assault under the now repealed s 76 of the Crimes Act. Count one involved the applicant having a shower with his stepdaughter, rubbing oil on her, masturbating and ejaculating onto her stomach. Count two involved the applicant rubbing oil on her, rubbing her vagina and masturbating in her presence. At the time of these offences she was eight years old.

4 Counts four, six and seven were charges of sexual intercourse without consent under the now repealed s 61D of the Crimes Act. Count four involved the applicant rubbing his stepdaughter with oil, inserting his finger into her vagina and masturbating in her presence. She was then eight years old. The offending conduct in count six involved rubbing oil on his stepdaughter’s breasts and his own penis, inserting his finger in her vagina and masturbating in her presence. She was then aged nine or ten years. Count seven involved the applicant inserting his penis into his stepdaughter’s mouth. She was then ten years old.

5 Count eight which was a charge of indecent assault under authority pursuant to the now repealed s 61E(1A) of the Crimes Act involved the applicant putting his penis on her back. She was then fourteen years old. Count nine was also a charge under s 61E(1A). The offence involved placing a hand on her breast.

6 On 13 August 1993, Newton DCJ sentenced the applicant in relation to each of the fourth, sixth and seventh counts in the indictment to four and a half years penal servitude. A minimum term of three years was set. In relation to counts one, two, eight and nine, the applicant was sentenced to a fixed term of imprisonment of two years. All sentences were to be served concurrently. The applicant was to be eligible for release on 12 August 1996.

7 During the sentencing hearing, a document which Newton DCJ referred to as “a useful summary of the dates, places, charge/sections, penalties (in some cases) and actions/evidence of the seven counts” was admitted by consent and marked exhibit E. The applicant was legally represented during the proceedings on sentence. His Honour went on to remark:

“ The facts, of course, are also clearly and fully set out in other exhibits” (ROS at p2).

8 In Regina v Michael Anthony Gleeson (Court of Criminal Appeal, 21 February 1996, unreported) an application for extension of time in which to appeal against the convictions was granted but leave to appeal was refused. The applicant had argued that had the matter proceeded to trial he may not have been convicted principally for the reason that he claimed the police record of interview was not voluntary. Ireland J (with whom Gleeson CJ and Meagher JA agreed) described the prosecution case as being “extremely strong” even if the record of interview was ignored. His Honour had earlier set out the applicant’s evidence before Newton DCJ when he was asked by his counsel how he now felt about the offences to which he had pleaded and towards his stepdaughter (the victim) who was present in Court. His answer was:

“A. Well, I’d like to firstly apologise before the Judge and the court and the girl, that I’m very sorry that it happened. And there is nothing I can do to take back what’s happened. I’ve apologised to her before. But I just want to make it public now that I’m very sorry it happened.”

9 In cross-examination he was asked did he accept complete responsibility for his actions against the victim and he said “A. Yes, I do. I do”:

10 Ireland J examined the pleas of guilty and said: at p4:

“ In the present case where the facts have been ventilated before the applicant on so many occasions and where he has participated at length in reviewing his own approach to the events giving rise to the charges and in open court has tendered apologies it simply could not be said that at any stage he was other than in full knowledge of the facts. ”

11 Prior to the hearing of the appeal, the applicant had sought an inquiry pursuant to s 474D of the Crimes Act. It appears that the principal concern of the applicant related to the police record of interview. Badgery-Parker J on 18 September 1996 declined to direct that an enquiry into the convictions be conducted and was “comfortably satisfied beyond reasonable doubt that [the applicant] was guilty as charged and proved”.

12 Following this determination, the applicant wrote to the registrar raising further matters arising out of statements by the victim. Badgery-Parker J decided to deal with the letter as a fresh application and rejected the applicant’s contention in relation to the eighth and ninth charges that it was possible to:

“…extract from the several statements made by the complainant a proposition inconsistent with her having been present in Sydney, and in the company of the applicant, during the period during which the offences were alleged to have been committed, namely between 31 August 1987 and 1 November 1987.”

13 His Honour determined that:

“ Nothing appears from any of the material before me which is capable of being held to be special facts or special circumstances that justify the taking of further action.”

14 Badgery-Parker J refused to consider or otherwise deal with the second application.

15 A third application for an inquiry pursuant to s 474D was made by letter dated 13 May 2001.

16 It appears from the reasons of McClellan CJ at CL that the applicant challenged the decision of Newton DCJ because he said that the Judge’s reference to offences taking place over a six-year period was erroneous, particularly because he said this would include offences, which occurred during that time but when he was in Queensland. He also said that the confession, which he made, was not freely given because at the time he was in fear of his personal safety from the boyfriend of the victim and other various challenges were made. His Honour said at [20]:

“I have reviewed the whole of the material provided by the applicant, and have considered the previous applications which he has made, the decision of the Court of Criminal Appeal and have also perused the transcript of evidence and the various statements available to the sentencing judge. I am satisfied that there was ample evidence to support the charges without the confession made to the police. That confession needs to be considered having regard to the statement which the applicant made to the court in the course of the sentencing process acknowledging his guilt. Furthermore, the threats and harassment which the applicant alleges took place all occurred after he had pleaded guilty and accordingly are not relevant to the veracity of the confession which he made.”

17 His Honour was satisfied that there was nothing in the material advanced by the applicant which could justify the intervention of the Court and refused to consider or otherwise deal with the application pursuant to s 474D.

18 The applicant made the present application by letter dated 6 December 2006. Since that time there have been eight letters received from him, some of which are in reply to submissions made by the Crown.

19 The application was made under s 474D of Pt 13A of the Crimes Act which was repealed on 23 February 2007 by the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006. Amongst the amendments effected by this Act were the transfer of Divisions 2, 3, 4 and 5 (ss 474B-474N) of Part 13A of the Crimes Act to Divisions 2, 3 ,4 and 5 (ss 76-88) of Part 7 Crimes (Appeal and Review) Act 2001 (previously entitled Crimes (Local Courts Appeal and Review) Act 2001).

20 As the application was not determined prior to 23 February 2007 it is taken to be an application under the corresponding provision of Part 7 Crimes (Appeal and Review) Act 2001.

21 Section 79 of the Crimes (Appeal and Review) Act is 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:

(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 or 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.
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect of 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).”

22 The test which has been applied in considering an application under Pt 13A of the Crimes Act is whether or not on the material provided a doubt arises as to the guilt of the applicant. A doubt is an unease in allowing the conviction to stand. As was said by Hope JA in Varley v The Attorney General in and for the State of New South Wales (1987) 8 NSWLR 30 (at 48):

“ To initiate an inquiry in the present case, a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry. To adopt the language of Nagle CJ at CL in Varley v Attorney General of New South Wales (at 12), ‘the section envisages the placing of any material before a Judge of the Supreme Court (Supreme Court Act 1970, s 40)...or, in a petition, before the Governor…which might cause him, for want of a better word “‘unease” in allowing a conviction to stand’.”

23 It is important in the present application to set out the test to be applied as the applicant has requested that I “ask or direct” the Crown Solicitor or Director of Public Prosecutions to produce evidentiary material which includes “actual evidence that is independent documented evidence which would clearly prove that [the victim] made a statement to the police on the 19th of July 1990”.

24 Whilst I have said Pt 13A of the Crimes Act has been repealed, ss 78 and 79 of the Crimes (Appeal and Review) Act do not change the test to be applied as set down in Varley as they mirror ss 474D and 474E of the Crimes Act.

25 My task is to consider whether on the material provided a doubt arises as to the guilt of the applicant. There is sufficient information before me which enables the convictions to be properly considered and I do not propose to make the directions sought.

26 The principal complaint by the applicant is that the date of the statement namely 19 July 1990 made by the victim is “untrue, incorrect and misleading” as she states at paragraph 13 of the statement:

“ About December, 1990 I returned to Sydney .”

27 He contends that “without any other factual evidence it must be obvious that her statement must have been made after December 1990”. He asks if no official complaint or allegation was made to the NSW police until after December 1990 then why was he arrested and charged by NSW police in July 1990? He makes reference to paragraph one of the statement in which the victim states that the statement “accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness”.

28 The Crown submits that the reference to “1990” at paragraph 13 is clearly a typographical error.

29 In a statement dated 4 January 1991, the victim states at [30]:

“ In 1989, at the beginning of the year I came back to Australia, by myself. ”

30 She then recounts where she lived with her mother and the ringing of social workers in January 1990. She states further:

“ I then went to the Police Station in July, the counsellor didn’t know I went to see the police, I did it myself. I spoke to a police woman and made a statement.”

31 During the committal hearing on 3 June 1992, the victim gave evidence that one of her statements to police was made on 19 July 1990. The applicant was legally represented at the hearing and the victim was cross-examined. Her evidence as to the date she made this statement was not challenged. In answer to the question in cross-examination (T21):

“ Q. When did you go to Fiji?”

She replied:

“A. 87”

32 And further (T 22)

“Q. And how long were in Fiji?”

Answered:

“A. Two years”

33 This evidence is consistent with the victim’s return to Australia in1989.

34 Detective Constable Allison told the Court that he had indicated to the applicant that a statement had been made by the victim dated 19 July 1990 when he interviewed him on 30 July 1990: (T25). This evidence is supported by question 14 of the record of interview.

35 In her statement dated 20 July 1990, the victim’s mother and the applicant’s then wife, states at [7]:

“[The victim] came back to Australia in February 1989 and moved in with me .”

36 There is an abundance of evidence which supports the conclusion that the victim made her first statement to police on 19 July 1990 and had returned to Australia in 1989. The reference to “1990” at para 13 is clearly a typographical error which was overlooked when the victim signed the statement. There is no merit in the applicant’s complaint.

37 The applicant makes reference to a police fact sheet on which in the following appears:

“ In June 1990, Gleeson was arrested and charged with a series of sexual assaults upon the same child which had occurred after the family arrived from Queensland.”

38 It appears that the facts sheet was prepared in February 1998 in support of an application that the applicant be extradited to Queensland to answer further charges of sexual assault in that state. The applicant contends that if the facts are true, then the sexual assaults with which he was charged must have occurred between June 1987 and September 1987 when his family was in Sydney for a short time.

39 He initially complained that the statements of the victim make no allegations about any series of sexual assaults between June 1987 and 13 September 1987.

40 What is stated in a police fact sheet prepared for other purposes is not the evidence which was put before the sentencing Judge. As I have recounted at paragraph 7 (supra), the material before Newton DCJ included Exhibit E which summarised the actions/evidence of each of the counts to which the applicant pleaded guilty. The first offence occurred between 31 December 1980 and 14 July 1981 whereas the applicant’s criminality in respect of counts eight and nine occurred between 31 August 1987 and 1 November 1987 (count 8) and 31 August 1987 and 1 December 1987 (count 9). The foundation for count 8 is contained in the victim’s statement of 4 January 1991 at paragraph 27.

41 In response to the Crown’s submissions, the applicant points out that in paragraph 27 the victim states that she remembers “that it was hot, it could have been around September”. He complains that it could not have been hot in Sydney in September. As I have related, the offence (count 8) to which the applicant entered a plea of guilty was alleged to have occurred between 31 August 1987 and 1 November 1987.

42 The applicant’s complaint of his convictions on counts eight and nine was the subject of the second application which was rejected by Badgery-Parker J. There is no substance in these further complaints by the applicant.

43 The applicant also complains about the “Port Macquarie and Dubbo matters” which were counts three and five. As he pleaded not guilty to these counts which were not proceeded with, these complaints are irrelevant.

44 In his letter dated 6 December 2006 a claim is made by the applicant that “when I apologised in court and in [writing] I was definitely apologising for the photos that were taken by me in Queensland but were DEFINITELY NOT taken in N.S.W.” I have related the apology given by the applicant in evidence before Newton DCJ at paragraph 8 (supra). It seems that the applicant is now saying that the apology was not for the offences to which he had pleaded guilty in the District Court. It is evident from the transcript of the sentencing proceedings that the apology was made for the offences to which he had pleaded guilty and was to be sentenced by the Judge. This claim is rejected.

45 A further claim is made by the applicant that he was “bluffed” into pleading guilty. Ireland J examined, as I have related at paragraph 10 (supra), the applicant’s plea of guilty and nothing further of substance arises from the applicant’s assertion. Various other complaints are made about the nature of the charges and what is said to have been a failure to serve a brief of evidence upon him in 1990. The applicant was legally represented in the committal proceedings and in the District Court and had full knowledge of the facts. There is no merit in any of these complaints.

46 I have considered all of the material provided by the applicant, the three previous applications which have been considered pursuant to s 474D, the decision of the Court of Criminal Appeal, the transcripts of evidence in the District Court, the statements tendered before Newton DCJ and the transcript of the committal proceedings in the Local Court. There is nothing in any of the matters advanced by the applicant which causes any unease in allowing the convictions to stand without further inquiry. A doubt does not arise as to the guilt of the applicant.

47 I am satisfied that the matter has been fully dealt with both “in the proceedings giving rise to the conviction or sentence” and in the “proceedings on appeal from the conviction or sentence”. Furthermore, the matter has been dealt with “under the previous review provisions” on three separate occasions.

48 I am not satisfied that “there are special facts or special circumstances that justify the taking of further action”.

49 Accordingly, I refuse to consider or otherwise deal with the application.

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