GAR v Attorney General for the State of New South Wales (No. 3)

[2020] NSWCA 179

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

GAR v Attorney General for the State of New South Wales (No. 3) [2020] NSWCA 179

Hearing dates:

19 February 2020

Date of orders:

19 August 2020

Decision date:

19 August 2020

Before:

Meagher JA at [1];
White JA at [2];
McCallum JA at [122]

Decision:

1. Order that the summons be dismissed.

2. Order that the applicant pay the respondent’s costs.

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error – Application for an inquiry into conviction – Whether primary judge who refused to consider or otherwise deal further the application in accordance with s 79(3)(a) of the Crimes (Appeal and Review) Act 2001 fell into jurisdictional error – Whether material presented on the application had been considered in previous applications for an inquiry – Nature of the discretion under s 79(3)

Legislation Cited:

Crimes (Appeal and Review) Act 2001, ss 78, 79

Criminal Appeal Act 1912 (NSW)

Supreme Court Act 1970 (NSW), ss 75, 101

Cases Cited:

Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145

Buttrose v Attorney General (NSW) [2015] NSWCA 221; (2015) 324 ALR 562

Clark v Attorney General of New South Wales [2020] NSWCA 70

Duncan v Independent Commission Against Corruption [2016] NSWCA 143

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28

GAR - Application for an inquiry into conviction pursuant to s 78 of Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205

GAR – Application for an inquiry into conviction pursuant to s 78 of Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734

GAR – Application for an inquiry into conviction pursuant to s 78 of Crimes (Appeal and Review) Act 2001 [2019] NSWSC 982

GAR v Attorney General New South Wales (No 2) [2017] NSWCA 314

GAR v Attorney General of New South Wales and Supreme Court of New South Wales [2017] NSWCA 47

GAR v R (No.1) [2010] NSWCCA 163

GAR v R [2003] NSWCCA 224

Li v Attorney-General for New South Wales [2019] NSWCA 95; (2019) 368 ALR 242

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343

R v Rendell (1987) 32 A Crim R 243

Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383

Varley v Attorney General (NSW) (1987) 8 NSWLR 30

Texts Cited:

M Groves, ‘The Return of the (Almost) Absolute Statutory Discretion’ in Janina Boughey and Lisa Burton Crawford (eds), Interpreting Executive Power (Federation Press, 2020) 129

Category:

Principal judgment

Parties:

GAR (Applicant)
Attorney General for the State of New South Wales (Respondent)

Representation:

Counsel:
In person (Applicant)
J Davidson (Respondent)

Solicitors:
n/a (Applicant)
Crown Solicitors Office (Respondent)

File Number(s):

2019/376331

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 982

Date of Decision:

15 August 2019

Before:

Harrison J

File Number(s):

2019/62055

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 1 November 2002 the applicant was convicted by a jury of the offence of sexual intercourse without consent in relation to conduct involving his former wife (ER). On 25 February 2019 the applicant made what would be his fourth application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the ‘Act’) ‘ seeking an inquiry into that conviction. The applicant by a summons invoked the supervisory jurisdiction to challenge a decision of a judge of the Common Law Division who ‘...refuse[d] to consider or otherwise deal further with’ the applicant’s application ‘in accordance with s 79(3)(a) of the [Act]’.

The principal argument made by the applicant in support of the summons was that the primary judge fell into jurisdictional error when he refused to consider or deal further with the application where new material, which had not been considered in previous s 78 applications or by the Court of Criminal Appeal, was raised.

The thrust of that new material was an affidavit made by the applicant’s daughter (E) where she deposed ER had suborned her into corroborating aspects of ER’s account of the offending. The new material also included an affidavit of a solicitor (Mr Schumer) who deposed to a conversation between himself and ER where ER allegedly said that she would ‘never do anything to help [the applicant]’. It was said that this material should have caused the primary judge to pause and reflect on the applicant’s guilt in light of the probative evidence given by E at trial and a past statement by ER to the effect she asked E to ‘falsely corroborate her evidence’. Other submissions were also raised concerning the correct approach to assessing the credibility of any fresh evidence and that findings made by various courts in respect of the evidence given by ER at trial were inconsistent with a contemporaneous medical report.

The issue on the summons was whether the primary judge was in jurisdictional error when he refused to consider or otherwise deal with the application in light of the material presented by the applicant.

The Court of Appeal (Meagher and McCallum JJA, White JA dissenting) dismissed the summons, holding:

Per McCallum JA (Meagher JA agreeing at [1])

The discretion under s 79(3) the Act is not limited by the matters referred to in paragraphs (a) and (b) even though those matters strongly guide the proper exercise of the discretion: [129], [132]. When the primary judge purported to act in accordance with s 79(3)(a) it does not follow that his mind was closed to all relevant matters nor that his unconstrained discretion became fettered: [133]-[135].

When considering the scope of the discretion reposed by s 79(3) it is relevant that the discretion is conferred on judge exercising non-judicial power and its exercise occurs after trial and the exhaustion of statutory rights of appeal: [136]-[139]. In this context, the provision does not disclose an intention that every application that raises a doubt as to any aspect of the evidence in the case must necessarily be considered: [142], [143].

In the present case, the so called new material did not include anything new from ER, nor did the affidavit of Mr Schumer go to an issue material to the soundness of the conviction: [149]-[151]. It was open to the primary judge to conclude that the new affidavit of E did not take the issue of ER’s credibility or the strength of her evidence any further than had already been considered in a prior application: [152].

The other submissions of the applicant raised no new matter that had not already been addressed in previous applications or appeals therefrom: [147], [154] (White JA to the same effect: [118]).

Per White JA (dissenting)

When the primary judge stated he was acting in accordance with s 79(3)(a) he was not exercising any wider discretion to refuse to consider or otherwise deal with the application other than as described in that paragraph: [77] .

If the primary judge’s refusal was under s 79(3)(a)(i) it was legally unreasonable as the Court of Criminal Appeal did not deal with the specific issue of ER’s apparent confession to suborning her daughter into giving false evidence: [84]. If the refusal was under s 79(3)(a)(ii) it was also unreasonable as the issue of whether ER suborned her daughter was not addressed in a prior s 78 application other than by raising doubts as to the quality of or the motivation for the evidence of suborning: [85]-[87].

When exercising the discretion under s 79(a) the matters in s 79(3)(b) are mandatory relevant considerations. The fresh material raised on the present application would require consideration of whether there were special facts or circumstances that would justify the taking of further action. That consideration did not occur and amounted to a jurisdictional error: [78]-[79], [88]-[90]. Where the judge’s reasons demonstrate legal unreasonableness the decision is invalid even if the judge could have taken another path to reach that conclusion: [97]-[104].

Judgment

1. MEAGHER JA: I have had the benefit of reading in draft the judgments of White JA and McCallum JA. I respectfully agree with the orders proposed by McCallum JA for the reasons her Honour gives.

2. WHITE JA: On 25 February 2019 the applicant, GAR, filed an application in the Supreme Court for an inquiry into his conviction for sexual assault. The application was made pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Act”). The application was refused by Harrison J (GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 982). His Honour’s decision was to “...refuse to consider or otherwise deal further with the application in accordance with s 79(3)(a) of the Crimes (Appeal and Review) Act 2001.”

3. This was not the first application for such an inquiry. The history of GAR’s conviction for sexual assault of his former wife (ER) and his subsequent appeals from that conviction and attempts to obtain an order for an inquiry into his conviction are referred to in judgments of this court and the Court of Criminal Appeal and in reasons for decision of single judges tasked with considering an application for an inquiry pursuant to s 78 of the Act.

4. GAR was found guilty by a jury on a charge that he, on or about 14 January 2002, had sexual intercourse with ER without her consent and knowing that she was not consenting. GAR and ER had been divorced a few days before 13 January 2002. On 13 January 2002 he went to ER’s house. Their daughter, E, then aged 12 was living in the house. The Crown’s case was that ER asked him to leave but he refused to do so. GAR was charged with wrongfully detaining ER, but he was acquitted of that charge. The Court of Criminal Appeal that heard the appeal against conviction (R v GAR [2003] NSWCCA 224) summarised the evidence adduced by the Crown on the charge on which GAR was convicted as follows. At about 11.00pm E (GAR’s and ER’s daughter) went to bed. ER repeatedly asked GAR to leave but he refused. At about midnight ER went to bed in her room. The court continued:

“12    About fifteen minutes later, the appellant came into the room and approached her. She said ‘Don’t do this to me G. Please don’t do this to me.’ The appellant responded by threatening to silence her. He then threw her back onto the bed, removed her clothing and had forcible penile intercourse with her. He continued to threaten her and watch her when she went to the bathroom and put her clothes back on. He set the alarm clock and lay on the bed next to her. When the alarm clock sounded at 4 am, he left, threatening to return.

13    After showering and dressing the complainant went to the dining room where she sat for some time. She then telephoned RM. At about 6 am the daughter came into the dining room. They conversed and a telephone call was made to the police. At about 11.20 am two police officers attended the house. The complainant had a conversation with them. The contents of that conversation were given in evidence by one of the police officers. Later that afternoon the complainant attended the Westmead Hospital where Dr Sterrett took a history, examined the complainant and prepared a report.

14    The evidence in the Crown case was given by the complainant, the daughter and police officers who attended the scene and carried out investigation. The report of Dr Sterrett was admitted into evidence. Apart from the history given by the complainant, it reported scratches to the left side of the complainant’s face and fingernail marks on the left arm and bruising. Injuries of that nature were shown in photographs also admitted into evidence. Forensic evidence included DNA testing which established a match between semen found on the complainant’s bed sheet and a sample taken from the appellant.”

5. GAR did not dispute that he had sexual intercourse with ER that night. He said the intercourse was consensual.

6. ER’s evidence was corroborated by E.

7. In dismissing the appeal against conviction, Miles AJ (with whom Spigelman CJ and Bell J agreed) said (at [61]):

“... although his Honour told the jury that the evidence on the second count was uncorroborated, there was material that was capable of supporting the evidence of the complainant. There was in the daughter’s evidence that she had heard her mother say to the appellant ‘Please don’t do this’. There was the evidence of injury.”

8. E, who was 12 at the time of the alleged rape and 13 at the time of trial, gave evidence that at about 2.00am “I heard my mother saying ‘Please don’t, [G] please don’t.” She then gave the following evidence:

“Q.   Did you hear your father say anything?

A.   No, but I heard him say something at 4 o’clock in the morning.

Q.   When your mother said these words, ‘Please don’t, please don’t.’, did you hear anything else at that time?

A.   Yes.

Q.   What did you hear?

A.   I heard my father say something about ‘I don’t care what you call it but I call it revenge’.” (GAR v R (No. 1) [2010] NSWCCA 163 at [50])

9. E also gave evidence that she heard her father leaving at about 4.00am saying, “Well, I’m fucking going”. She gave evidence that when she woke up her mother was in the dining room, crying on a chair and she said to her:

“‘Mum, I’m calling the police.’ She said ‘No, don’t.’ and I said ‘I know he raped you.’ And then she said ‘Yes, he did.’, so I called the police straight away.” (Gar v R (No. 1) at [51])

10. On 12 February 2009 Barr J directed pursuant to s 79(1) of the Act that “the whole case” be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). Barr J’s reasons for decision are not reported and are not available on Caselaw, but were provided by the Attorney.

11. Section 79 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.

...

(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).”

12. Barr J recorded that a friend of GAR’s, a Mr John Carroll, accompanied E to visit GAR in prison on 16 April 2005 and in that visit E said “I didn’t hear anything. Mum got me to say that I did because she said they wouldn’t believe her by herself.” Both GAR and Mr Carroll deposed to E having said this.

13. There was also evidence from GAR’s sister (“JC”) that in or about October 2002 E was living with her because of difficulties with her mother. GAR’s sister deposed that in the course of a telephone conversation that was on loud speaker between E and her mother, E said to her mother, “Mum, you made me lie about Dad”, and ER replied, “You had to or no-one would believe me, there wouldn’t be a case.”

14. There was also evidence of a third person that E had told her years before that she had lied about her father.

15. Barr J noted that E had been interviewed by the police on 21 June 2007 and had denied telling lies in court, but affirmed having told ER during a telephone conversation whilst staying with GAR’s sister that “Mum, you made me lie in court.”

16. Barr J said that this material caused him an unease or a sense of disquiet in allowing the conviction to stand (referring to R v Rendell (1987) 32 A Crim R 243; Varley v Attorney General (NSW) (1987) 8 NSWLR 30). His Honour referred the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW).

17. GAR’s grounds of appeal included a ground that ER procured her daughter (E) to give fabricated evidence implicating GAR. The Court of Criminal Appeal noted that that ground was reframed during the hearing before the Court of Criminal Appeal to say that E had given false evidence “at the behest of” ER (her mother) (at [22]). The allegation that ER had actively procured E to lie for her was not maintained (at [23]).

18. E and ER were examined and cross-examined before the Court of Criminal Appeal. As noted above, E had been interviewed by the police on 21 June 2007. In her police interview she was asked whether she had lied in court about her father when she gave evidence at the trial. She denied having done so. The questions and answers were as follows:

“...

‘Q7.    Did you tell lies about your father in court?

A.    No.

Q8.    Did your mother ever ask you to lie about your father to police?

A.    No.

Q9.    Did your mother ever ask you to lie about your father to the court?

A.    No.’

19. Later in her police interview she stated that:

“Q61.    … So it’s fair enough to say you prepared, you’re prepared to lie to your father so that, for those reasons, to keep him happy but you would never lie about him?

A.    No.

Q62.    And you didn’t lie about him in court?

A.    No.”

20. At the hearing before the Court of Criminal Appeal, E said that her answer to the police to question 7 “Did you tell lies about your father in court?”, to which she answered “No”, was untrue and that the answer should have been “Yes.” (at [81]). The Court of Criminal Appeal then added:

“She was then referred to Q8 which was:

‘Q8. Did your mother ever ask you to lie about your father to police?

A. No.’

When asked whether that answer was correct, she responded:

‘Question 8 is fine. My mother never asked me to lie to the police. And question 9, my mother never asked me to lie in court. But I was incredibly influenced by whatever my mother had told me had happened on that occasion.’

She then agreed that her answer to Q7 was the only false answer in the transcript of interview apart from her answer to Q37 which was also false.”

21. E confirmed that in the presence of GAR’s sister, JC, she had said to ER, “Mum, you made me lie”. A member of the Court asked:

“If you did say that, was it true?

E’s answer was:

‘A. No it wasn’t that my mother made me lie, I guess I just blame my mother, and I still do, because I was so young at the time, and I was so influenced by my mum, and whatever she told me had happened I believed, and that is not true, ...” (at [92]).

22. ER denied having asked her daughter to lie for her.

23. The Court of Criminal Appeal held that the evidence given before it by ER was credible and cogent. On the other hand, the evidence of E was neither cogent, credible nor plausible (at [151](c)). The appeal was dismissed (GAR v R(No. 1) [2010] NSWCCA 163).

24. On 2 March 2014 GAR brought a second application pursuant to s 78 for an inquiry into his conviction in 2002 (GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734).

25. This application was brought on two pieces of evidence. ER had given evidence at trial that she had complained to a friend, RM, about the assault. GAR relied upon an affidavit of RM sworn on 15 July 2012 (that is, about 10 years after the event) in which RM deposed that when he spoke to ER on the morning of 14 January 2002 she did not say anything to him about the applicant’s having sexually assaulted her. Unsurprisingly, Adamson J, who dealt with the application, did not consider that this gave any ground for reopening an inquiry into GAR’s conviction.

26. The second ground of the application made in 2014 was based on the medical report of Dr Sterrett who had examined ER on 14 January 2002. Both in the application made on 2 March 2014 and subsequently GAR has complained of the way in which the Court of Criminal Appeal on the first appeal against conviction and on the second appeal had dealt with the medical evidence concerning ER’s description of her injuries during the alleged rape.

27. ER was examined by Dr Sterrett on 14 January 2002. ER gave evidence at trial that during the rape GAR had “dug his fingernails into ... my face ... when he had his hand over my face”. She gave evidence that “my face was sore, it was more internally than the scratches. The scratches were there but my face internally was very, very sore.” She also said that the scratches had been pointed out to her by the hospital.

28. GAR submitted on this application that Dr Sterrett’s report made no mention of scratches to ER’s face. He submitted that the evidence given by ER at trial that she had suffered scratches to her face during the assault was recent invention. He said that she had made no reference to such injuries when she was interviewed by the police, that there was no reference to such injuries in Dr Sterrett’s report, and that the first time this was raised was in ER’s evidence at trial. GAR complained that in the first appeal, Miles AJ had found (at [14]) that Dr Sterrett’s report had reported “scratches to the left side of the complainant’s face” when no such finding had been made. He submitted that the photographs of ER’s face showed no scratches to the lower left side whilst acknowledging that there was a mark on the left side (which GAR said was not a scratch). He relied upon a concession made by the Crown at the second hearing in the Court of Criminal Appeal in 2010 that it was not possible to say that the photographs did show a scratch.

29. As to this ground, Adamson J said:

“[47]    In the Original Appeal, Miles AJ, in summarising the Crown case said, erroneously, that Dr Sterrett’s report had included a reference to scratches on the left side of ER’s face. It is difficult to see what difference that error could have made to the reasonableness of the conviction since the error was made on appeal. Although Miles AJ’s summary was accepted by the applicant and the Crown for the purposes of the Review Appeal, the court that heard the Review Appeal engaged in debate with the Crown about whether there was evidence, other than ER’s evidence, of injuries to her face. The Crown accepted in argument that it was not possible to ascertain from the photograph whether ER’s face was scratched. The Crown did not refer to Dr Sterrett’s report in this context. In these circumstances the Review Appeal Court cannot have been misled by the error in the summary.

[48]    At [37] of the reasons in the Review Appeal, the court said:

Annexed to Dr Sterrett’s report are diagrams where he indicated the location of two abrasions, one to each elbow posteromedially and each about 1 cm long and 3 cm wide and contusions to the inner aspect of her legs at the position of ER’s knees. Accordingly, it is clear that the physical evidence of the injuries to ER as described by Dr Sterrett is entirely consistent with the injuries ER said she sustained during the struggle with the applicant.

[49]    In my view, a fair reading of this paragraph indicates that the court was relying upon the consistency between Dr Sterrett’s report of injuries to ER’s elbows and the inner aspect of her legs and her evidence of those injuries. The absence of reference to scratches on ER’s face showed, in my view, that they did not form part of the court’s conclusion about the consistency between ER’s description of her injuries and Dr Sterrett’s report.”

30. Adamson J refused to direct an inquiry under s 79(1)(a) or to refer the case to the Court of Criminal Appeal under s 79(1)(b).

31. On 2 March 2016 GAR submitted a further application for an inquiry into his conviction. This application also came before Adamson J (GAR - Application for an inquiry into conviction pursuant to s 78 of Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205).

32. Her Honour observed that the application was based on what was said to be “fresh evidence”, being statements apparently made by ER and their daughter E. The document apparently signed by both E and ER stated:

“Under the inducement that the evidence will not be used to prosecute any offence against me

I [E] state the following:-

My mother, [ER] did ask me to falsely corroborate her evidence that she had called out. ‘Please don’t, [G] please don’t,’ or similar.

When I made my statement to the police and gave evidence, it was false.

Signed by

[E]

Dated 2-12-15

Under the inducement that this evidence will not be used to prosecute any offence against me

[ER]

... STATES THE FOLLOWING:-

‘The statement made by my daughter [E] above is TRUE.’

Signed by

[ER]

Dated 2-12-15”

33. Both signatures were witnessed by Mr Ian West JP.

34. On the reverse side of the document in handwriting, there appears the following:

“I, [ER] state

The words ‘[G] please don’t’ were my first words uttered as [GAR] placed his hand over my mouth and nose – he then said ‘you make one fucking sound, I will snap your f... neck – he waited for my daughter to be asleep – the crime did occur – I stand by my statement.

[ER]

2/12/15”

35. The effect of these documents, if genuine, was that under a supposed inducement that the evidence would not be used against her to prosecute her for an offence, ER acknowledged that she falsely asked E to corroborate her evidence that she had called out “Please don’t, [G], please don’t” or something similar. She also said that she said those words as GAR placed his hand over her mouth and nose and threatened to snap her neck and that he thereafter waited for her daughter to be asleep before the assault occurred.

36. The Attorney General caused inquiries to be made of Mr West in relation to his witnessing the statements of E and ER. Mr West authenticated his signatures on the document but had no recollection of the signatories, nor the documents.

37. The Attorney General accepted before Adamson J that this material warranted an inquiry into GAR’s conviction. Adamson J did not agree. Her Honour said:

“35   There is no evidence as to how these statements came into being and no explanation to illuminate how, or why, ER’s typed statement dated 2.12.15 and her handwritten statement dated 2.10.15 came into being. Nor is there any explanation as to the opening words of the typed statements:

‘Under the inducement that the evidence will not be used to prosecute any offence against me”

36 The Crown submitted in its written submissions dated 27 June 2016 that it was necessary for the Crown to investigate the provenance of the documents in order to ascertain whether they were verifiable and argued that the purposes of ss 78 and 79 could appropriately be served by such an inquiry. To that end, the Crown Solicitors Office arranged for a private investigator to interview Mr West to ask whether he witnessed the signatures of E and ER on the typed document and signed the bottom right hand corner of the handwritten document. Mr West signed a statement dated 15 June 2016 which the Crown has attached to its submissions.

37   Mr West’s statement reads as follows:

‘1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.

2. I am a registered Justice of The Peace within NSW.

3. My JP number is 134279.

4. I have examined the attached document marked Annexure 'A' [the document that contains the typewritten “induced” statements of E and ER dated 2 December 2015]. The Justice of Peace details and signatures written on the document are legitimate and were signed by myself.

5. I have examined the attached document marked Annexure 'B' [the document which contains the handwritten statement of ER dated 2 October 2015]. I do not remember previously sighting the document.

6. I do not remember the documents or the persons mentioned within the documents.

7. I sign all documents relating to Justice of Peace at my residential address.

8. I do not read the contents of documents prior to witnessing the signatures.”

...   

Consideration

41   The particular factual matrix presented by the new material relied on by the applicant is new, in that, previously, he relied on oral statements made by E to himself and to third parties to the effect that her evidence at trial was false. This matter was extensively investigated in the course of the Review Appeal, in which E gave evidence and was not believed for the reasons extracted from the Court’s judgment set out above. Although E’s statement dated 2 December 2015 is typewritten, whereas the earlier statements were oral, the effect of several statements made by E since the applicant’s conviction is to undermine the evidence she gave at the trial and concessions she made in the Review Appeal. Although there are some differences between the recent statement and earlier statements, they are substantially similar in that they support the applicant’s innocence and are inconsistent with E’s evidence at trial.

42   The Court of Criminal Appeal in the Review Appeal had an opportunity to hear and see E’s evidence and assess her credibility. Its finding that she was not to be believed because she was prepared to say anything that would advance the applicant’s position reflected that advantage.

43   What is apparently new is the statement by ER that E’s statement was true. This statement is inconsistent with ER’s evidence at trial and her evidence at the Review Appeal. It is also, in some respects, inconsistent with the handwritten statement dated 2 October 2015 although the inconsistency is not direct (since the earlier statement relates to the incident itself whereas the typed statement relates to what ER said to E).

44   In my view, the question whether E and ER were telling the truth about the incident and its immediate aftermath has already been fully investigated both at the trial and on the Review Appeal. That a witness or victim might, after an offender has been released from custody, appear to recant from evidence given at a trial or on an appeal, does not necessarily create a doubt about the offender’s guilt. Such recanting could also be explained by other factors. In the case of E, her relationship with her father, the applicant, is likely to be substantially affected by what E says or said about his conduct. ER, too, might be inclined to say other than the truth in order to assist E, or in the belief that nothing is to be gained by not providing a statement that the applicant has requested, since he has already served his sentence. Nonetheless, whatever ER said in the “induced” statement, she adhered to her evidence that the offence occurred, as appears from her handwritten statement dated 2 October 2015.

45   That E and ER were apparently prepared to sign these statements in the presence of Mr West, as a Justice of the Peace, does not make their statements credible. It merely tends to prove that there were not fabricated by the applicant. The statements appear to have been made by E and ER, after their having received an “inducement that the evidence will not be used to prosecute any offence” against either one of them.

46   It does not appear to me that there is a doubt or question as to the applicant’s guilt, or any doubt as to the evidence of E and ER in the trial. Any doubt which existed prior to the Review Appeal has, in my view, been removed by that appeal. I am not persuaded that it is necessary to consider the application further. Accordingly the application is dismissed.”

38. GAR applied for judicial review of Adamson J’s refusal to order an inquiry into his 2002 conviction.

39. On 12 December 2017 the Court of Appeal by majority (Beazley ACJ and Payne JA, Simpson JA dissenting) dismissed that application (GAR v Attorney General New South Wales (No 2) [2017] NSWCA 314). (It was accepted in the Court of Appeal that Adamson J was mistaken in reading the date in the handwritten statement as being 2 October rather than 2 December 2012 (at [182]). This was not significant.)

40. Simpson JA would have made a declaration that in considering GAR’s application under s 78, the judge failed to address whether it appeared that there was a doubt or question as to a particular part of the evidence in the applicant’s trial in October 2002 and accordingly fell into jurisdictional error (at [93]). Her Honour considered that although it may have been open to Adamson J to order, as Barr J had previously done, that the whole case be referred to the Court of Criminal Appeal to be dealt with as an appeal, the more appropriate course was for an inquiry to be conducted by a judicial officer who had had the opportunity, sitting as a single judge, to make necessary and appropriate findings of fact, following which the judicial officer could report the results of the inquiry to the Chief Justice or refer the matter to the Court of Criminal Appeal for consideration whether the conviction should be quashed (at [87]).

41. Simpson JA observed (at [60]) that contrary to the view expressed by Adamson J (at [43]) there was no inconsistency in ER’s having admitted to procuring false corroboration and her complaint being true. Her Honour emphasised that an inquiry under s 79 encompassed an inquiry into “any part of the evidence in the case” which reflected the importance placed by the criminal justice system on the integrity of the process by which the outcome of criminal proceedings is reached (at [62]-[66], [76]). Simpson JA said that to the extent Adamson J addressed this question, she did so on the basis that ER’s veracity had been accepted and therefore established by the conclusions in the 2010 Court of Criminal Appeal judgment that E’s evidence in those proceedings was not credible, cogent or plausible, that the Court of Criminal Appeal had rejected E’s evidence in those proceedings (and accepted her evidence given at trial) and the Court of Criminal Appeal had accepted the credibility of ER. But those findings were made in the absence of the apparent confirmation by ER of the evidence that E gave before the Court of Criminal Appeal (at [77]-[80]). Simpson JA considered that the judge had fallen into jurisdictional error.

42. Simpson JA was in dissent.

43. Payne JA held that Adamson J did not commit jurisdictional error. He summarised the inquiry (at [155]) as follows:

“The relevant inquiry for present purposes is whether the primary judge’s opinion, that the fresh evidence of E and ER did not give rise to a ‘doubt or question as to the applicant’s guilt … or as to any part of the evidence in the case’, was formed according to law. That inquiry has five parts: first, whether the primary judge directed herself to ask the appropriate question required by s 79(2) of the CAR Act; secondly, whether the primary judge constructively failed to exercise jurisdiction by failing to consider the substance of an applicant’s case; thirdly, whether the primary judge took into account legally irrelevant matters under s 79(2); fourthly, whether the primary judge’s decision in dismissing the application was one that was reasonably open to her; and fifthly, whether the primary judge’s decision was one for which there was no evidence.”

44. As to the second question, Payne JA said (at [158]):

“As to the second question, the primary judge did not constructively fail to exercise jurisdiction by failing to consider the substance of the applicant’s case. As I have set out above at [156]–[157], the primary judge addressed the question in terms about whether a doubt or question existed as to the evidence in the case, and identified her Honour’s reasons for failing to be satisfied that there was a doubt or question about the evidence in the case. The applicant’s real complaint is that no reasonable decision maker could have come to the conclusion that was reached by the primary judge about the evidence in the case, based on the fresh material. I will address that submission below.”

45. As to the fourth question, Payne JA noted that although the unreasonableness ground of judicial review is no longer limited to what is in effect an irrational, if not bizarre, decision, that no reasonable person could have arrived at (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68]), nonetheless, Li does not go so far as to permit the court to substitute its subjective sense of reasonableness for that of the decision-maker (at [153], [162]). His Honour concluded (at [168]):

“168   In my view the primary judge provided an evident and intelligible justification for her conclusion that this evidence did not satisfy her that there was a doubt or question about the applicant’s guilt or any part of the evidence. In particular, the primary judge reasoned:

(1) the question of whether E and ER were telling the truth had been examined at length by the CCA in response to the first s 78 application;

(2)   the timing of the statements of E and ER, after the expiry of the applicant’s sentence, was relevant in determining whether the state of satisfaction about a doubt or question existed;

(3)   in the same document, in handwriting, ER had adhered to her evidence that the sexual assault occurred;

(4)   the ‘inducement’ contained in the statements affected their credibility; and

(5)   her Honour did not have a doubt or question about the applicant’s guilt or any part of the evidence.

169     The question is not whether I would have reached the same conclusion as the primary judge about the existence of a doubt or question or whether I disagree, even strongly, with her Honour’s process of reasoning about an issue of fact. The primary judge’s decision contained a justification which I regard as both ‘evident’ and ‘intelligible’. The primary judge’s decision was not for this reason unreasonable and she did not fall into jurisdictional error.”

46. Payne JA observed that dismissal of the application would not prevent GAR from bringing a further application if he had further information sufficient to support it (at [192]-[193]).

47. Beazley ACJ said:

“2   In my opinion, the primary judge, Adamson J, dealt with the evidence comprising the statutory declarations of GAR’s former wife and his daughter and the other evidence that related to those statutory declarations. Accordingly, I do not consider that the applicant has established jurisdictional error, including any constructive failure to exercise jurisdiction.

3   I am also of the opinion that there was no error in the primary judge not finding sufficient credibility in the new evidence adduced by way of the statutory declarations to warrant the making of an order pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), for the reasons given by Payne JA.”

48. These were conclusions. Her Honour’s reason for those conclusions was her agreement with the reasons of Payne JA (at [1]).

49. The majority’s reasons are not an endorsement of Adamson J’s reasons. Rather they find that Adamson J’s reasons were not “legally unreasonable” for the purposes of judicial review of an administrative decision.

50. GAR made a further application under s 78 that included new material.

51. GAR’s further application (filed on 25 February 2019) consisted of a submission of some 80 pages which largely recounted the history of the matter and extracted relevant portions of the evidence given at different hearings. The submission annexed the documents of 2 December 2015 that provided the basis for the application before Adamson J discussed above. It also annexed two affidavits, and one from a Mr Greg Schumer, solicitor, who stated that he was acting as “amicus” to assist GAR with aspects of his matter, and one from E.

52. In his affidavit of 8 February 2019, Mr Schumer deposed that he attended at the home of E on 1 November 2018 for the purpose of assisting her with a family law matter. ER was present to provide information in relation to that matter. At some point, E left for about 30 minutes. Mr Schumer deposed that he told ER that E had made an affidavit to assist the appeal inquiry and asked ER if she would consider making an affidavit. He deposed that:

“[ER] immediately responded to me in a raised voice to the effect ‘after what that man has put me through, I want nothing to do with him. I have been dragged through so many court cases which has taken a huge toll on me over the years. I will never do anything to help him.’”

53. E’s affidavit is dated 30 January 2019. E expands on her previous statement that ER asked her to corroborate her evidence that she had called out “Please don’t, [G], please don’t” or similar, and that when she made her statement to the police and gave evidence it was false. E deposed to her memory of events that occurred on the evening of 13 January and the morning of 14 January 2002. She deposed that before falling asleep she remembered hearing her parents getting along and laughing.

54. E deposed that her next memory was at around 8.00am on the morning of 14 January 2002 and that as soon as her mother saw her she burst into tears and said (speaking of GAR), “He’s gone. He raped me”. She deposed that ER said: “I’m terrified. I’m so worried they’re not going to believe me. Did you hear anything?”. She deposed that she said “No”, and remembered ER then saying:

“Darling girl, I need you to help me. I will need you to say you heard me crying out in the middle of the night ‘Please don’t, please don’t [G] ...’. I can’t remember the exact words she said to me. Mum told me the police wouldn’t believe her on her word alone and made me rehearse this several times before the police arrived. I was terrified for my mum. I had seen my parents fight before and I believed her.”

55. E said that she used to threaten her mother on a daily basis that she was going to the police to tell them the truth, but her mother used to panic and fluster and cry and beg her not to go to the police. She deposed that once she got to 14 or 15 years old, “it got unbearable” and she decided she would tell the truth. She referred to giving evidence before judges of the court (which she apparently recalled taking place in the Downing Centre). She described her giving evidence, evidently before the Court of Criminal Appeal in 2010, as follows:

“15.   After about 40mins we went into the court. I remember them calling me up. One of the judges said to me something about perjury and the consequences if I’m lying. They made me swear [an] oath on the bible that everything I was going to say was true and I felt physically sick and an overwhelming feeling came over me I started to stutter and was shaking and I kept saying ‘I don’t understand. Can you explain that to me again.’

16.   The judge explained it to me again and then they asked me questions of the night, asking me if everything I said was true. I was asked if my mother told me to lie. I panicked and was trying to tell the truth, but anything to do with my mum made me think she would get into trouble and go to jail for telling me to lie and so I said ‘No she didn’t make me lie. I did it myself.’ I told them that my evidence isn’t true but my mum didn’t make me say that, because I was terrified for her that she would go to jail if I told them the truth about her making me lie to the police about dad.”

56. She said:

“23   Also, my mum made it clear to me all the time that she could go to jail if I told the police that she made me lie to them. That placed a tremendous amount of weight on me for the rest of my life, but I know that as much as I hated my mum for everything I would never have wanted her to suffer in jail. I had already lost one parent. There was no way I was going to lose the second.”

57. E described the circumstances in which ER signed the declaration of 2 December 2015 as follows:

“32.   About a year ago [sic], I went with mum to a JP at aberglasson maitland nsw where she currently lives. I had asked mum to tell the truth about what she told me to say that morning the day dad got arrested. For the first time ever, she was willing to do it and she did. After the JP had witnessed our signatures, mum scribbled on the back saying words to the effect that she did tell me to lie to the police, but that the events of the night involving dad still happened.”

58. In his submissions in support of his application of 25 February 2019 GAR submitted that Mr Schumer’s affidavit showed ER’s antipathy towards him and her resolve to have him incarcerated. He submitted that her position in this regard remained the same today as it was when she complained of rape in 2002.

59. Adamson J had said (at [44]) that:

“ER ... might be inclined to say other than the truth in order to assist E, or in the belief that nothing is to be gained by not providing a statement that the applicant has requested, since he has already served his sentence.”

60. GAR challenged this reasoning by submitting that it was not for the Supreme Court on an administrative review:

“to seek out possibilities ... to explain away troublesome inconsistencies which the accused has been denied an opportunity to explore and exploit forensically” (citing Mallard v R (2005) 224 CLR 125; [2005] HCA 68).

61. It may be taken that the same submission was made before the Court of Appeal in 2017. But GAR also submitted that Mr Schumer’s affidavit showed that there was good reason to think that ER was not motivated to say something other than the truth in the statement that she signed on 2 December 2015 because of a belief that nothing was to be gained by not providing a statement that the applicant had requested.

62. E’s affidavit went much further. First, it provides an explanation as to how ER came to sign the statement of 2 December 2015. That explanation is inconsistent with ER’s having provided the statement at GAR’s request.

63. It also provided for the first time an explanation as to why E did not say at the Court of Criminal Appeal hearing in 2010 that ER had asked her to lie in support of ER’s complaint. That evidence was contrary to her statement on 2 December 2015 that ER had asked her to corroborate falsely ER’s evidence.

64. In her reasons of 29 August 2016 Adamson J had said that it did not appear to her Honour that there was a doubt or question either as to the applicant’s guilt or as to the evidence of E and ER in the trial (at [46]). Her reason for that view was that the question whether E and ER were telling the truth had been fully investigated, both at the trial and on the Review Appeal.

65. The Court of Criminal Appeal on the review appeal in 2010 did not have E and ER’s statements of 2 December 2015. Adamson J, in 2016, did not have E’s explanation as to how those statements came to be made, nor E’s explanation as to why she did not say at the hearing in 2010 that her mother had asked her to provide false corroboration.

66. Next, unlike the typed statements of 2 December 2015, E’s affidavit was not expressed to be made having received an “inducement that the evidence will not be used to prosecute any offence” against her, a matter which Adamson J considered significant in assessing the credibility to be given to those statements.

67. In his reasons for decision (GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 982) Harrison J acted under s 79(3)(a) in refusing to consider or otherwise deal with GAR’s application.

68. Harrison J’s dispositive findings for concluding that he should refuse to consider or otherwise deal with the application in accordance with s 79(3)(a) were as follows:

“7   The issue of whether or not E was telling the truth at the trial, whether ER told her falsely to say that she heard ER crying during that night, whether the circumstances in which E came to resile from her evidence were significant or credible, as well as a series of closely related issues of varying degrees of difference, have all been thoroughly, not to say exhaustively, examined and re-examined in the several determinations and decisions listed earlier in these reasons.

8   In the understandable nature of things, GAR’s lengthy submissions reproduce much of what has been said by some of the judges who have dealt with his various appeals and applications. He is not to be criticised for that. I mention it here in order to emphasise that I have not been able to identify any issue or contention that even comes close to raising a new issue, or a significant variation of an old issue, that causes me to pause and reflect upon the question of GAR’s guilt.

9 The burden of GAR’s approach has always been that ER was herself lying and that E was asked by her to lie as well. E has since admitted that she lied, although it is fair to say that her retraction remains attended by doubt and controversy. However, that can for present purposes be put to one side. ER has never changed her evidence that GAR had sexual intercourse with her to which she did not consent. Nothing in the material to which GAR’s detailed submissions refer suggests any departure by ER from her previous evidence or her 2015 statement considered in GAR’s third s 78 application. GAR is seeking no more than that these matters be looked at again, but with no relevantly new material to support an inference that a different result or conclusion might then emerge. The position would be quite different if GAR could demonstrate that ER’s own evidence at his trial was false, not merely that ER may have suborned their daughter to support her. The question whether ER’s admission in her 2015 statutory declaration that she procured E falsely to corroborate her version of events is true or not true has been dealt with by Adamson J in dismissing GAR’s third s 78 application and by the Court of Appeal in reviewing that decision.

...

11   A review of GAR’s persistent attempts to review his conviction serves to highlight what I perceive him to say is the enduring contradiction, namely, that the jury’s acceptance of ER as a witness of truth at his trial may well have been cast into doubt if ER’s alleged influence upon her daughters’ evidence had been revealed as an issue for them to decide. As far as I am able to determine, however, GAR has been unable in this application to point to anything that suggests why that issue should now be looked at again.”

69. GAR attacks the merits of that reasoning. He correctly submits that the circumstances in which E came to resile from her evidence have not been thoroughly or exhaustively examined (J[7]). The Court of Criminal Appeal’s judgment in 2010 found that the evidence E gave in 2010 was neither credible, nor reliable, in contrast to the evidence of ER. But that finding was made without knowledge of ER’s subsequent apparent acknowledgment that she had suborned her daughter to give false evidence at the trial. If she did, that would affect the credibility of both E and ER. The statements made by E and ER on 2 December 2015 cast doubt on the Court of Criminal Appeal’s findings. But they threw up a further inconsistency in E’s evidence. At trial E had given evidence of hearing ER saying “Please don’t [G], please don’t”. She resiled from that evidence at the hearing in 2010, but did not say that her mother had put her up to making a false statement. Then on 2 December 2015 E did make that accusation. The new material, being her affidavit of 30 January 2019, explained why she had not done so in 2010.

70. As to para [8] of his Honour’s reasons, the question under s 79(2) would not merely be whether there was reason to pause and reflect upon the question of GAR’s guilt, but whether there was cause to pause and reflect upon the evidence upon which the guilty verdict had been obtained.

71. For the same reasons, the observation in [9] of his Honour’s reasons that “ER has never changed her evidence that GAR had sexual intercourse with her to which she did not consent” does not address the inquiry that would be directed by s 79(2), if that inquiry were embarked upon, as to whether there was a doubt or question as to the evidence on which GAR was convicted.

72. The primary judge’s statement (at [9]) that:

“the position would be quite different if GAR could demonstrate that ER’s own evidence at his trial was false, not merely that ER may have suborned their daughter to support her”,

again presupposes that the only question that would arise under s 79(2) is whether there was doubt about GAR’s guilt, rather than doubt about the evidence upon which the guilty verdict was obtained.

73. As explained further below, GAR submits that there is other evidence that ER’s own evidence at trial was false. Indeed, in what is apparently ER’s handwritten statement, after she said the words “G, please don’t”, ER now says that GAR waited for her daughter to be asleep before the assault occurred. That does not appear to be consistent with the evidence she gave at trial as to the course of events as recorded by the Court of Criminal Appeal in its 2003 reasons quoted above at [4]. Her evidence, as there recorded, rather suggested that the assaults followed immediately. [1]

    1. This court was provided with the transcript of the trial, but it was not before Harrison J and was admitted only for the purpose of checking excerpts quoted by GAR in his submissions before Harrison J. The judgments were before Harrison J.

74. In the reasons of the Court of Criminal Appeal in 2010 (GAR v R (No. 1) [2010] NSWCCA 163) the Court stated (at [114] and [117]) that ER gave evidence before that court that she did not know what her daughter heard or did not hear and she believed her daughter was asleep.

75. Harrison J said that whether ER’s admission in her 2015 declaration that she procured E falsely to corroborate her version of events was true or not true had been dealt with by Adamson J in dismissing GAR’s third s 78 application and by the Court of Appeal in reviewing that decision.

76. The Court of Appeal’s review of Adamson J’s dismissal of GAR’s third s 78 application did not endorse her Honour’s reasoning. The basis of the decision of the majority was that her Honour’s decision contained a justification which was both “evident” and “intelligible” and was accordingly not “legally unreasonable” (at [166] and [169]). Payne JA stressed that the question was not whether he would have reached the same conclusion as the primary judge about the existence of a doubt or question, or whether he disagreed, even strongly, with her Honour’s process of reasoning about an issue of fact (at [169]).

77. The power under s 79(3) for the Supreme Court to refuse to consider or otherwise deal with an application is conferred by the first sentence of that subsection. Paragraphs (a) and (b) provide circumstances in which the Supreme Court may refuse to consider or otherwise deal with the application, but they are not exhaustive. In the present case, Harrison J said that his order was made under s 79(3)(a). That is to say, the judge was not exercising any wider discretion to refuse to consider or otherwise deal with the application other than as described in para (a).

78. The exercise of the power under s 79(3) because one of the matters in s 79(3)(a) is satisfied is dependent also upon para (b) being satisfied. Harrison J did not address para (b). That is, his Honour did not say he was not satisfied that there were special facts or special circumstances that justified the taking of further action.

79. If a judge declines to act under s 79(3) only on the basis of a ground specified in s 79(3)(a) he or she is bound to consider whether under s 79(3)(b) there are special facts or special circumstances that justify the taking of further action.

80. It follows that it is unnecessary to consider the extent of the power of the Supreme Court to refuse to consider or otherwise deal with an application under s 79(3) in circumstances which do not fall within s 79(3)(a) and (b). No doubt that power is to be exercised having regard to the purpose of s 79 as a whole described by Basten JA in Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 at [52] and by Simpson JA in GAR v Attorney General of New South Wales (No. 2) at [65] as being a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, or to avoid an irremediable miscarriage of justice, or which raises doubt about the integrity of the process by which a guilty verdict has been arrived at.

81. There are cases (of which Li v Attorney-General for New South Wales [2019] NSWCA 95; (2019) 368 ALR 242, Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 and Clark v Attorney-General of New South Wales [2020] NSWCA 70 are examples) where the fresh application contained no new material that had not previously been considered and the material that had already been considered did not raise any doubt or question as to the applicant’s guilt or any mitigating circumstance or as to any part of the evidence in the case. In such a case the judge to whom an application under s 78 is referred can refuse to consider the application without elaborate reasons.

82. In Clark Basten JA (with the agreement of Macfarlan and McCallum JJA) said:

“5 The purpose of s 79(3) is tolerably clear: it is to ensure that the court has appropriate powers to dispose summarily of applications which might otherwise be described as frivolous, vexatious, misconceived or lacking in substance. Satisfaction as to such matters would be sufficient to warrant a refusal to refer an application for an inquiry under s 79(1). ...

...

8    There is much to be said for transparency in dealing with applications seeking an inquiry into criminal convictions and sentences. However, that value can be overstated in circumstances where an application should be summarily dismissed on the grounds that it is, for example, repetitive and raises no new matter. ...”

83. The power to refuse to consider or otherwise deal with an application under s 79(3) might not be confined to the summary dismissal of a repetitive application that raises no new material or is frivolous, misconceived or lacking in substance. Nonetheless, the standard of reasonableness required must have regard to the purpose of s 79 referred to at [80] above.

84. Harrison J did not say whether he was proceeding under s 79(3)(a)(i) or (ii) or both. A conclusion that the matter had been fully dealt with in the proceedings giving rise to the conviction or on proceedings on appeal from the conviction (s 79(3)(a)(i)) would be legally unreasonable in the sense of Li and disclose a constructive failure to exercise jurisdiction. Neither the Court of Criminal Appeal on appeal from conviction, nor the Court of Criminal Appeal on its review hearing in 2010 following the referral of the case to that Court by Barr J on 12 February 2009, dealt with the matter that ER had apparently confessed to suborning her daughter to give false evidence (s 79(3)(a)(i)).

83. Expressed in generalities, the matter of whether there was doubt or question as to GAR’s guilt or as to any part of the evidence in the case (s 79(2)) had been previously dealt with by Adamson J in 2016 (s 79(3)(a)(ii)). But, as GAR’s submissions pointed out, Adamson J had relied on the findings of the Court of Criminal Appeal of 2010 as establishing ER’s credibility when ER’s statements of 2 December 2015 raised questions or unease about her evidence given before the Court of Criminal Appeal in 2010. As GAR’s submissions pointed out ER was asked at the hearing on 29 April 2010 whether she gave false evidence in GAR’s trial. She said she did not. She was asked whether she procured E to give false evidence in that trial. She said she did not. Her apparent statement of 2 December 2015 is contrary to that evidence.

84. Adamson J gave no reason as to why ER’s statement did not give rise to a doubt about the evidence on which GAR was convicted, except for her Honour’s hypothesis that ER’s recanting might be explained by an inclination to assist E, or to assist GAR, or because her statement was “induced”.

85. E’s affidavit of 30 January 2019 and Mr Schumer’s affidavit of 8 February 2019 at least raises questions about those grounds.

86. That material was fresh. The judge could only have refused the application under s 79(3)(a)(ii) if he were not satisfied that the fresh material contained special facts or circumstances that would justify the taking of further action. His Honour did not address this consideration. That consideration had to be addressed if his Honour were to rely on s 79(3)(a) as the ground for refusing to consider the application.

87. If Harrison J exercised the general discretion under s 79(3), and if that discretion is unconstrained by the requirements of s 79(3)(b) applicable to the exercise of discretion under s 79(3)(a), nonetheless his reasons demonstrate legal unreasonableness for the reasons at [69]-[76] above.

88. The judge did not address these matters. This amounted to a constructive failure to exercise jurisdiction, a failure to consider relevant considerations and was legally unreasonable in the sense described in Li.

89. This was clearly not a case that could warrant summary dismissal on the basis that the application was frivolous, or vexatious, or repetitive with no new material, and disclosed no arguable ground for thinking there was a doubt or question as to the evidence on which GAR was convicted.

90. Since writing the above, I have had the advantage of reading in draft the reasons for judgment of McCallum JA. I maintain my view that the matters in s 79(3)(b) are mandatory relevant considerations if the judge exercises his or her discretion under s 79(3) on the basis of the matters in s 79(3)(a). That follows from the text.

91. But the decision in this case does not depend upon that question. It may be accepted that there is a general discretion under s 79(3) to refuse to deal with an application which is not constrained by, although it will be informed by, s 79(3)(a) and (b). An example could be an application under s 79, after the dismissal of an appeal against conviction or sentence, where the matter relied on was peremptorily and not fully dealt with on appeal because it was hopeless.

92. But the decision of Harrison J was legally unreasonable whether it was made under s 79(3)(a) (as his Honour said) or under the general discretion under s 79(3). For the reasons at [69]-[76], Harrison J’s reasons for refusing the application reveal that this Honour did not address GAR’s complaints.

93. I also do not accept that the judge addressed the question whether he should be satisfied or not satisfied of the existence of any special facts or circumstances that justified the taking of further action (s 79(3)(b)). If his Honour had done so he would have had to address the matters relied on by GAR.

94. As was explained in this Court’s 2017 judgment, no appeal lies under s 101 of the Supreme Court Act 1970 (NSW) from the decision because the judge was exercising an administrative function, not judicial power. The decision is at least reviewable for jurisdictional error. Whether it is reviewable on any other available administrative law ground, for example error of law on the face of the record (Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343 at [35] (Basten JA), does not arise.

95. In Minister for Immigration and Citizenship v Li, Hayne, Kiefel and Bell JJ said (at [65]-[68]) that whether an administrative decision made in the exercise of a statutory power or discretion can be impugned on the ground that it is unreasonable depends upon what, on the true construction of the statute, is the standard of reasonableness the decision maker is required to observe. Their Honours stated that the Wednesbury formulation of unreasonableness on the basis of which an administrative decision can be impugned can be:

“taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, [(1936) 55 CLR 499; [1936] HCA 40] before Wednesbury was decided.” (at [68])

98. The plurality also said (at [76]):

“76   As to the inferences that may be drawn by an appellate court, it was said in House v The King [(1936) 55 CLR 499 at 505] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

99. In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1, the Full Federal Court (Allsop CJ, Robertson and Mortimer JJ) said (at [47]) that:

“... where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The ‘intelligible justification’ must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved.”

100. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Nettle and Gordon JJ said (at [84]):

“Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”

(See also Gageler J at [57] and Edelman J at [132]-[133])

101. In Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7 Gleeson J and Colvin J in their separate reasons considered the scope of review for legal unreasonableness where the reasons for the decision do not admit of an intelligible justification for the decision. Gleeson J said (at [35]):

“… If the reasons do provide an intelligible justification for the exercise of the power, legal unreasonableness is unlikely to be found, unless the ultimate exercise of the power itself is legally unreasonable, but that will be rare. Having regard to the approach of the three Justices in SZVFW High Court, where the reasons do disclose an intelligible justification for the exercise of the power, the judicial review court may point to additional reasons which were not relied upon by the primary decision‐maker as reinforcing the court’s finding that there was no unreasonableness in the legal sense. A court exercising judicial review jurisdiction is not, however, entitled to replace a primary decision‐maker’s reasons which do not disclose an intelligible justification for the exercise of the power with reasons which were not relied upon by the decision‐maker. That would involve a transgression of the proper limits of judicial review.”

102. Colvin J said (at [91]):

“… where the reasons of a decision‐maker exercising a statutory discretion, upon due examination, are shown to be illogical, irrational or insufficient, a different quality of unreasonableness error is demonstrated, namely an exercise of discretion for explicit reasons that provide no reasonable support for the way the discretion has been exercised. In such cases, the reasons might also be characterised as a failure to properly deliberate in the exercise of the discretion and therefore a failure to discharge the statutory task to properly consider the facts and circumstances and then make the discretionary decision required by the statute. However, what is significant in such cases is that the complaint is not that the result is unreasonable in the sense that it is outside of those outcomes that might have been justified by a reasonable decision‐maker, but rather that the result was reached by a process of reasoning that was so unreasonable that it lacked the quality necessary to support the exercise of discretion that the statute required.”

103. Colvin J’s approach was subsequently affirmed by the unanimous court in Tsvetnenko v United States of America (2019) 269 FCR 225; [2019] FCAFC 74 at [83].

104. In determining whether the judge committed jurisdictional error through legal unreasonableness the reasons for the decision will be the focal point for determining whether an intelligible justification for the exercise of the power exists. Focusing on whether the reasons for the decision admit of legal unreasonableness means that legal unreasonableness can be found even if another path could be taken to the same conclusion that did not involve legal unreasonableness (Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287] (Bathurst CJ)). Where the conclusion reached by the judge is within a range of legally permissible outcomes but the process taken fails to provide an intelligible justification it would be impermissible to re-exercise that discretion by taking another path on which the judge may not have necessarily reached the same conclusion, even though it may have been open, if he or she had taken that path.

105. Most of GAR’s oral submissions in support of the summons were directed to his challenge to findings made by various courts in respect of the evidence given by ER at trial that in the course of his assault of her, GAR had dug his fingernails into her face when he had his hand over her face to stop her calling out. She gave evidence at the trial that after she said “Please, please don’t hurt me, please don’t hurt me, please don’t do this to me, please don’t [G] ...”, he lunged towards her, grabbed both her arms very tightly, squeezed his fingernails into her upper arm just above her elbow, threw her onto the bed, pushed his hand over her mouth and nostrils and dug his fingers into her face so that she could not scream and could not breath. At the trial she was shown a photograph which she recognised as being a photograph taken of her. She could not recall when it was that the photograph was taken. She was shown another photograph, which she said showed scratches on her lower cheek on the left side. She was asked how extensive were the scratches and answered:

“My face was sore, it was more internally than the scratches. The scratches were there and they were pointed out to me at the hospital, but my face internally was very sore.”

106. GAR contended that this evidence was false. He submitted that when ER made her complaint to the police on 14 January, she made no reference to any scratches on her face. He referred to the medical report of Dr Sterrett who examined ER on 14 January and made no finding of any scratches to her face. His certificate dated 12 February 2002 (only parts of which were before Harrison J, but which included the following) recorded ER’s complaint that GAR threatened her life, held her down with physical force with his hand on her face and throat and that she was vaginally raped with penile penetration and, she believed, ejaculation. His certificate stated that:

“Physical evidence consistent with her history of assault included:

Tenderness of neck muscles, contusions (bruises) to inner aspects of knees, abrasions to both elbows.

... the findings on her physical examination may be consistent with the history of sexual assault but neither confirm nor refute it.”

107. Dr Sterrett’s report included pages showing a stylised drawing of a person’s body with space to indicate the injuries shown on different parts of the body. Page 5 of the report which provided for a description of injuries to the face included no reference to injury.

108. Photographs of ER presented by the Crown at trial were included in the Court Book on the present application. GAR contended that they showed no injury to ER’s lower cheek on her left side, although he conceded that they showed a mark, which he contended was not a scratch.

109. GAR complained about how the evidence as to ER’s having been scratched on her face had been dealt with in the various hearings. In the appeal from conviction, Miles AJ who gave the leading judgment, said (at [14]):

“... the report of Dr Sterrett was admitted into evidence. Apart from the history given by the complainant, it reported scratches to the left side of the complainant’s face and fingernail marks on the left arm and bruising.”

110. His Honour erred in saying that Dr Sterrett’s report included a report of scratches to the left side of the complainant’s face.

111. This point was taken up, as would be expected, on the appeal in 2010. GAR said that the Crown at the hearing conceded that it was not possible to tell from the photographs tendered whether there was a scratch on ER’s face. In dismissing the appeal the Court of Criminal Appeal said (at [151](i)) that the complainant’s evidence “as well as the medical evidence” would have been more than sufficient to justify the jury in accepting the reliability of ER’s evidence and so being satisfied of GAR’s guilt beyond reasonable doubt. As to the medical evidence, the court referred to Dr Sterrett’s evidence that was consistent with the complainant’s history of assault quoted at [106] above, and continued (at [37]):

“37    Annexed to Dr Sterrett’s report (WB 130–131) are diagrams where he indicated the location of two abrasions, one to each elbow posteromedially and each about 1cm long and 3cm wide and contusions to the inner aspect of the legs at the position of ER’s knees. Accordingly, it is clear that the physical evidence of the injuries to ER as described by Dr Sterrett is entirely consistent with the injuries ER said she sustained during the struggle with the appellant. For completeness we should add that the appellant’s submission was that those injuries were also consistent with the consensual sex that he had with ER and which the appellant described in his evidence in some detail and to which we shall further refer below.

112. In her reasons of 4 December 2014 Adamson J concluded (at [49]):

“In my view, a fair reading of this paragraph indicates that the Court was relying upon the consistency between Dr Sterrett's report of injuries to ER's elbows and the inner aspect of her legs and her evidence of those injuries. The absence of reference to scratches on ER's face showed, in my view, that they did not form part of the Court's conclusion about the consistency between ER's description of her injuries and Dr Sterrett's report.”

113. GAR referred to exchanges in the course of submissions before the Court of Criminal Appeal which suggested that the court might not have had before it page 5 of Dr Sterrett’s report showing no injuries to the face. In any event, the injuries reported by Dr Sterrett quoted above and quoted by the Court of Criminal Appeal made no reference to any such injury.

114. GAR complains that Dr Sterrett’s report was not “entirely consistent with the injuries ER said she sustained during the struggle with the appellant”. He made no reference to injury to ER’s face.

115. GAR also complains that Dr Sterrett’s report was that the injuries observed neither confirmed nor refuted ER’s account.

116. This court was informed that Dr Sterrett was not called at the trial. GAR said that he was overseas at the time of the trial.

117. GAR then complained about how his application for review which raised this ground was dealt with by Adamson J in her judgment of 4 December 2014. In particular, GAR submitted that ER gave evidence at the trial that the scratches on her face had been pointed out to her in the hospital. He said that that statement was not credible, given the absence of any reference to such injuries in Dr Sterrett’s report. He complained that Adamson J did not deal with that point in her reasons of 4 December 2014.

118. Harrison J did not deal with these matters. If this had been the only point available to GAR I think Harrison J would have been justified in proceeding under s 79(3).

119. Because a declaration should be made, the effect of which will be that GAR’s application should be further considered, I express no view on the cogency of GAR’s submission.

120. As Basten JA explained in Sinkovich, there is an unresolved question or doubt as to whether an order in the nature of certiorari and mandamus can be issued to a superior court judge even though the judge is acting in an administrative, and not judicial, capacity. As in that case, and as proposed by Simpson JA in GAR v Attorney General of New South Wales (No 2), and by Brereton JA in Li v Attorney General of New South Wales the appropriate course is to make a declaration pursuant to s 75 of the Supreme Court Act.

121. I propose the following order:

1. Declare that in considering the applicant’s application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), the primary judge acted legally unreasonably and fell into jurisdictional error in refusing to consider or otherwise deal further with the applicant’s application under s 78 of the Crimes (Appeal and Review) Act 2001 for a review of his conviction and his decision is void.

122. McCALLUM JA: I have had the benefit of reading the judgment of White JA in draft. I respectfully disagree with the conclusion his Honour has reached, for the following reasons.

123. My different conclusion is founded primarily upon a different understanding of the nature of the discretion under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW) to “refuse to consider or otherwise deal with” an application under s 78 and perhaps also a different understanding of the basis on which the exercise of that discretion is amenable to judicial review. According to my understanding of those matters, the applicant has not established a basis for the relief sought.

The nature of the discretion under s 79(3)

124. The nature of the discretion must be considered in the historical and procedural context in which the opportunity to seek an inquiry into conviction or sentence exists. The relevant legislative history is set out in the judgment of Heydon J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [64]-[75]. As there explained, legislation conferring authority on a judge of the Supreme Court (then only by direction of the Governor) to conduct an inquiry after the conviction of a prisoner in order to resolve a doubt or question as to the prisoner’s guilt was first introduced in 1883, well before the existence of any right of appeal against conviction. That is not to say that the possibility of seeking an inquiry has become redundant; on the contrary, as noted by Basten JA in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [52], when appeals became available, the mechanism for resolving doubts or questions as to the soundness of a conviction or sentence “was not removed but was, indeed, improved upon and made more readily accessible”.

124. Basten JA made those remarks in the context of a discussion of the potential conflict, in the argument for such an inquiry, between the demands of finality and the demands of justice. The whole of the relevant passage at [52] warrants repeating:

“History and statutory language demonstrate that the overriding purpose of Pt 7 is, consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles. Historically, the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention. When appeals became available, that mechanism was not removed but was, indeed, improved upon and made more readily accessible.”

126. It may be accepted, in accordance with those remarks, that the availability of an accessible mechanism for resolving a doubt as to the basis for infringement of a person’s liberty that emerges after conviction and sentence remains important. However, the introduction of appeals necessarily repositioned that mechanism in the hierarchy of appeal and review. So much is plain from the scheme of s 79, which contemplates that the appeal process should first be exhausted before an application for an inquiry will be considered.

127. In that context, s 79 authorises three courses that may be taken by the judge to whom an application under s 78 is referred. The judge may:

1. consider the application and then either take action of the kind allowed under s 79(1) (subject to satisfaction of s 79(2)) or dismiss it;

2. refuse to consider or “otherwise deal with” the application under s 79(3); or

3. defer consideration of the application under s 79(3A) pending the finalisation of any appeal proceedings or the provision of further information (this gives content to the power to refuse to “otherwise deal with” an application under s 79(3): cf Clark v Attorney General of New South Wales [2020] NSWCA 70 at [5] per Basten JA).

128. Where the judge decides to consider an application, he or she may take action of the kind identified s 79(1). However, such action may only be taken if the “gateway” in s 79(2) is passed. Section 79(2) provides:

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.

129. By contrast, s 79(3) is self-contained. In Clark, I noted that the discretion conferred by that section is not conditional upon the establishment of any particular matter and, while the matters stated in pars (a) and (b) serve as a guide to the proper limits of that power, its exercise is not conditional upon their being satisfied: at [39], Basten and Macfarlan JJA agreeing at [3] and [11] respectively; see also the additional remarks of Basten JA at [7]. It may be accepted that the proper exercise of the discretion to refuse to consider an application will require some consideration of the material on which the application is based and the circumstances in which it is brought: Clark at [6] per Basten JA. The consideration to be given to those matters will of course be informed by the content of the task the judge is considering whether to undertake, which in turn calls attention to the terms of the gateway provision in s 79(2).

130. As White JA has noted, the gateway provision does not put the bar so high as to require an applicant to establish the appearance of a doubt or question as to the convicted person’s guilt; it is enough (to satisfy the gateway) if the application concerns the evidence in the case. However, it does not follow that action under s 79(1) is required in every case in which any aspect of the evidence is impugned. As Basten JA explained in Sinkovich, the section is concerned with the soundness of the conviction (or sentence). The statute does not confer an entitlement to an inquiry, only an entitlement to seek one. Where the application relies on new evidence said to give rise to the appearance of doubt as to the evidence in the case, some evaluative judgment must be undertaken as to the cogency of the matters relied upon and their materiality to the soundness of the conviction.

131. White JA holds that Harrison J “could only have refused the application under s 79(3)(a)(ii) if he were not satisfied that the fresh material contained special facts or circumstances that would justify the taking of further action”. White JA considers that it was necessary for Harrison J to address that issue “if his Honour were to rely on s 79(3)(a) as the ground for refusing to consider the application”.

132. In my respectful opinion, that analysis misconceives the breadth of the discretion to refuse to consider an application. I accept of course that an application under s 78 has to be considered in good faith and that the scope of the discretion is otherwise confined at least by the subject matter, scope and purpose of the legislation under which it is conferred, as I said in Clark at [44]. My point is that the lawful exercise of the power is not conditional upon satisfaction as to the matters listed in s 79(3)(a) and (b), even though those matters strongly guide the proper exercise of the discretion.

133. Harrison J recorded his decision in the following terms: “I consider that in all of these circumstances I should refuse to consider or otherwise deal further with this application in accordance with s 79(3)(a) of the Act”: at [12]. The use of the phrase “in accordance with” does not suggest that his Honour put all else out of his mind, nor could those words constrain an otherwise unconstrained discretion. As already explained, it is not the case that the discretion may only be exercised if the matters identified are established or if a “ground” in s 79(3) is made out.

134. Further, as observed by Basten JA in Clark at [7], with respect to the consideration in s 79(3)(a)(ii), the purpose of the reference in s 79(3)(b) to “special facts” and “special circumstances” is obscure. To have spelled out such a matter in the statute may be taken to reflect cautious legislative drafting. Ex hypothesi, a judge acting in good faith who was satisfied that there were special facts or special circumstances that justified the taking of further action would do so. Rather than viewing that as a mandatory consideration to which his Honour failed to have regard, I would take it to be a necessary implication of his Honour’s exercise of the discretion to refuse to consider the application that he was not satisfied as to the existence of any special facts or special circumstances that justified the taking of further action.

135. Furthermore, that conclusion is implicit in his Honour’s reasons at [11]. Having identified the substantial issue to which GAR’s application was directed as being “the jury’s acceptance of ER as a witness of truth” in the face of her alleged influence upon her daughter’s evidence, his Honour was not satisfied that there was “anything that suggests why that issue should now be looked at again”.

The basis on which the exercise of the discretion is amenable to review

136. The scope of the discretion not to consider an application informs the content of the grounds on which its exercise is amenable to judicial review. It is uncontroversial that the determination of an application under s 78 is amenable to review for jurisdictional error. The more difficult question is to determine what that means in the case of an (almost) absolute discretion. In a delightful discussion of that topic, ‘The Return of the (Almost) Absolute Statutory Discretion’ in Janina Boughey and Lisa Burton Crawford (eds), Interpreting Executive Power (Federation Press, 2020) 129 at 129, Professor Matthew Groves refers to Ronald Dworkin’s explanation of the notion of discretion:

“Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’ or ‘Discretion under which authority?’”

137. Professor Groves notes that this reasoning defines discretion by the absence of other things (restrictions). An important consideration in determining the tightness of the belt around the discretion under s 79(3) is the repository of the power (a judge exercising non-judicial power) and the context in which it falls to be exercised (after a trial and after the opportunity to exercise all rights of appeal).

138. Section 79(4) is also significant. That section provides:

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.

139. The designation of the proceedings as “not judicial proceedings” is a necessary corollary of the existence of the authority conferred by s 79(3) not to consider an application; a judge exercising a judicial function could not refuse to exercise the court’s jurisdiction properly invoked.

140. The new material relied upon in the present case consisted of the affidavit of Mr Schumer dated 8 February 2019 deposing to words said to him by ER (“after what that man has put me through, I want nothing to do with him. I have been dragged through so many court cases which has taken a huge toll on me over the years. I will never do anything to help him”) and an affidavit of E dated 30 January 2019 expanding on her most recent account of the events of the night and her reasons for giving different accounts in the trial and before the Court of Criminal Appeal. There is no new direct evidence from ER.

141. White JA notes that Harrison J’s reasons at [8] fastened on the question of guilt and did not address the question of any doubt as to the evidence in the case. His Honour holds at [91] that Harrison J’s failure to address the issues raised by the evidence “amounted to a constructive failure to exercise jurisdiction, a failure to consider relevant considerations and was legally unreasonable in the sense described in [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18].”

142. I respectfully disagree. The statute authorises the court to refuse to consider an application. That discretionary power is not unconstrained; none is: Li at [23]. But nor is it to be construed so narrowly as to leave no scope for the exercise of judgment on the part of the judge to whom an application is referred. The Act does not disclose an intention that every application that raises a doubt as to any aspect of the evidence in the case must necessarily be considered. It is rare for there to be no doubt as to any aspect of the evidence in a criminal case. Part 7 finds its place within a suite of protections in the Crimes (Appeal and Review) Act and the Criminal Appeal Act against miscarriage of the processes of the criminal justice system. The object of providing “a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence” referred to by Basten JA in Sinkovich is not unilaterally for the benefit of convicted persons. Just as a potentially unsound conviction should properly be the subject of inquiry or referral to the Court of Criminal Appeal, a sound conviction should stand, at some point finally so. The existence of the discretion not to consider a Part 7 application is an important and valuable aspect of the function conferred on the court by the Act.

143. For my part, I do not think s 79(3) is to be construed as being subject to a limitation requiring the court to consider and address any application based on new evidence that contradicts or undermines other evidence in the case. The discretion not to consider an application (beyond considering it to the extent necessary to form a view as to whether to exercise the discretion under s 79(3)) calls for an evaluative assessment which will ultimately be guided by fairness.

144. For the same reasons, I would respectfully doubt the correctness, in the present context, of White JA’s analysis at [87] that “focusing on whether the reasons for the decision admit of legal unreasonableness means that legal unreasonableness can be found even if another path could be taken to the same conclusion that did not involve legal unreasonableness (Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287] (Bathurst CJ))”. The Chief Justice’s remarks in that case were directed to the reasoning in support of a decision on factual matters essential to the making of a finding of corrupt conduct.

145. A decision under s 79(3) is of a different kind. The section permits the judge to decline to consider an application including where he or she is satisfied of certain matters and not satisfied of certain matters. If it could be concluded, without legal unreasonableness, that it was open to refuse to consider an application, the availability or appropriateness of declaratory relief might be doubted.

The applicant’s grounds for review

146. The applicant specified three grounds for review, as follows:

“(1)   His Honour Harrison J made an error in law in not assessing the credibility of the 2018/2019 fresh evidence of ER, E, and Solicitor Greg Schumer upon the view most favourable to an applicant which in the Court’s view a reasonable jury may properly take.

(2)   The Supreme Court was wrong in law to dismiss the application, because in its view ER and E’s fresh evidence of 2018/2019 did not overcome 79(3)(a) of the Crimes (Appeal and Review) Act 2001.

(3) Declare that the Supreme Court acted ultra-vires to the statutory requirements of the Supreme Court Rules in Part 7 Crimes (Appeal and Review) Act 2001 by refusing to consider ER and E’s credibility at trial and the Court of Criminal Appeal against the 2018/2019 fresh evidence.”

147. Ground 1 asserts the existence of a requirement, when a judge is considering an application under s 78, to assess the credibility of any fresh evidence on the view most favourable to an applicant. The very same ground for review was rejected in GAR (No 2) at [177]-[179] (Payne JA, with whom Beazley P agreed). No authority to the contrary was cited by the applicant. This ground should be rejected.

148. Ground 2 asserts error in reaching the view that the fresh evidence did not “overcome” s 79(3)(a) of the Act. The applicant submitted:

“Harrison J was wrong in law in not accepting that the 2019 affidavit of E (attached as annexure (B)) coupled to ER’s 2018 exchange with Mr Schumer (affidavit of Greg Schumer attached as annexure (C)) was fresh evidence that (1) undermines the evidence relevant to the applicant’s conviction, (2) represents a direct challenge to the findings of her Honour Adamson J in GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205 and (3) overcomes the issues surrounding s 79(3)(a)(ii), of the Crimes (Appeal and Review) Act 2001.”

149. The submission misconceives the nature of the discretionary power to refuse to consider an application, for the reasons already explained. As submitted on behalf of the Attorney General, it was open to Harrison J, in the exercise of his discretion, to refuse to consider or otherwise deal with the applicant’s fourth s 78 application on the basis that the matter had previously been dealt with. The affidavit material relied upon in support of the application did not include anything new from ER. The applicant relies on the evidence of Mr Schumer to undermine the hypothesis posited by Adamson J that ER might have signed the statutory declaration in 2015 because she had nothing to lose in assisting GAR after he had served his sentence. Adamson J said at [44]:

“That a witness or victim might, after an offender has been released from custody, appear to recant from evidence given at a trial or on an appeal, does not necessarily create a doubt about the offender’s guilt.”

150. The applicant noted in his written submissions that her Honour’s reasoning has no relevance in the present case because he “is in custody and has been in custody, essentially based on the evidence of ER since 2002 and is not due for release until 2021 earliest and 2027 fulltime.” So much was clear from the applicant’s evidence before the Court of Criminal Appeal when the matter was referred by Barr J. In an interlocutory judgment of McColl JA in the earlier proceedings for judicial review, her Honour recorded that the applicant is presently serving lengthy terms of imprisonment for two armed robbery offences in respect of which ER gave “what was clearly important evidence for the Crown” at two separate trials: GAR v Attorney General of New South Wales and Supreme Court of New South Wales [2017] NSWCA 47 at [7].

151. It may be accepted that Mr Schumer’s evidence appears to refute one of the reasons postulated by Adamson J as to why ER might have been inclined to provide the 2015 statutory declaration supporting E. However, that is not material to the soundness of the conviction. Taking the evidence at its highest (which is generous, given that it consists of a single, untested statement shorn of any context), it goes no further than to indicate an attitude that is entirely consistent with the offence having been committed exactly as ER described.

152. So far as E is concerned, her affidavit does elaborate upon the content of the 2015 statutory declaration considered by Adamson J. However, in my view, it was open to conclude that the affidavit did not take the matter any further than the position as it stood before Adamson J. The matter raised by that application was an assertion by E that she had been asked by her mother to give false corroboration of what she evidently believed to be a true complaint of sexual assault together with an admission by ER that what E said in that respect was true. That matter went to the general credibility of ER. The new material does not take that issue any further. The essence of the fourth application was to cavil with the reasoning of earlier decisions without providing any new basis for doubting the soundness of the conviction.

153. It is important in that context to recall the scope of this Court’s jurisdiction. This is not a review of the merits of the decision of Harrison J, let alone of the merits of the decision of Adamson J. The single question for this Court is whether Harrison J’s decision entailed jurisdictional error. I am not persuaded that it did.

154. Ground 3 raises no further issue beyond those raised by grounds 1 and 2.

155. For those reasons, I am of the view that the summons should be dismissed with an order that the applicant pay the respondent’s costs.

**********

Endnote

Decision last updated: 19 August 2020