Boege v Attorney General of New South Wales

[2016] NSWSC 1469

Supreme Court

New South Wales

Medium Neutral Citation:	Boege v Attorney General of New South Wales [2016] NSWSC 1469
Hearing dates:	On the papers
Date of orders:	14 October 2016
Decision date:	14 October 2016
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Application refused
Catchwords:	CRIMINAL LAW – application pursuant to s 78(1) Crimes (Appeal and Review) Act for an enquiry into conviction for common assault – where three applications previously dealt with under Part 7 of the Act – where Supreme Court not satisfied that there are special facts or special circumstances to justify the taking of further action – whether Supreme Court should refuse to consider or otherwise deal with the application – application refused
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes Act 1900
Cases Cited:	Application by Petronella Boege for an inquiry into conviction and sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW), Adamson J, 27 March 2012, unrep) Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) [2016] NSWSC 729 Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925
Category:	Principal judgment
Parties:	Petronella Boege (Applicant) Attorney-General of NSW (Respondent)
Representation:	Counsel: G Wright (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2016/232280
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Petronella Boege applies for an inquiry into her conviction at Bega Local Court on 5 January 2000 for one offence of common assault contrary to s 61 of the Crimes Act 1900. The prosecution case was that Ms Boege punched her husband several times in the head during a disagreement over a number of photo albums in the wider context of the breakdown of her marriage. The offence occurred in the presence of a police constable. Ms Boege was convicted and fined $500.

2. Ms Boege appealed against her conviction to the District Court of New South Wales. On 8 March 2001, Shillington QC DCJ dismissed the appeal.

3. Ms Boege now applies for an inquiry into her conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001.

4. This application is not the first such application made by Ms Boege. There have been three previous applications. The first was considered by her Honour Adamson J in reasons delivered on 27 March 2012. The application was dismissed.

5. Following the dismissal of that application, Ms Boege petitioned the Governor of New South Wales asking for a review of the conviction pursuant to s 76 of the Act. That petition was declined on 30 January 2013.

6. Ms Boege made a second application to this Court pursuant to s 78 of the Act. Her Honour Wilson J refused that application: see Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925.

7. Ms Boege made a third application to this Court pursuant to s 78 of the Act. Her Honour Adams J refused that application: see Application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) [2016] NSWSC 729.

8. It is unnecessary for present purposes to refer to these applications in any more detail.

The application

9. Ms Boege’s application is supported by extensive and detailed written submissions dated 25 July 2016, to which is annexed a significant bundle of documents. Ms Boege has also filed submissions in reply to the Attorney-General’s submissions dated 27 September 2016. In summary, Ms Boege now contends as follows:

1. Both her former husband and senior constable van der Hout fabricated parts of their evidence given at the Bega Local Court before Magistrate O’Connor.

2. Mr Boege sought an apprehended violence order against her in order to retain possession of her personal property which he sought to sell in contravention of orders made by the Family Court.

3. The apprehended violence order in question obtained by the police on 15 October 1999 was not tendered in evidence before the magistrate and witnesses were not cross-examined about it.

4. Magistrate O’Connor erred in admitting evidence adduced in relation to the common assault charge in the apprehended violence order matter.

5. Ms Boege’s children were subpoenaed to give evidence but were not called to do so.

6. A statement by Mr Boege dated 18 October 1999 and a breach report dated 7 November 1999 were not tendered at the hearing before the magistrate.

7. Ms Boege did not strike Mr Boege as described by the prosecution witnesses and she no longer has a relationship with her children or grandchildren.

10. I have read Ms Boege’s submissions and considered all of the annexed material.

Consideration

11. Section 79 (3) of the Act provides relevantly 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:

(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)…”

12. This matter has previously and obviously been dealt with under Part 7 of the Act. Three separate applications have been considered by three separate Supreme Court judges who all reached what amounts to the same conclusion. For what it is worth, I have revisited all of those decisions. The conclusions reached in each case are unexceptionable. I would also have reached the same conclusion as the judges who dealt with them.

13. Nothing promoted or provided by Ms Boege in the present application is new. I am completely satisfied that there are no special facts or special circumstances that justify the taking of further action. In the circumstances I refuse to consider or otherwise deal with this application. It is clearly frivolous and vexatious and a monumental waste of this Court’s time. In any other litigious context it would arguably amount to an abuse of the process of the Court.

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