GILLIES, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001

[2021] NSWSC 1392

Supreme Court

New South Wales

Medium Neutral Citation:

GILLIES, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392

Hearing dates:

Review on the papers

Date of orders:

29 October 2021

Decision date:

29 October 2021

Jurisdiction:

Common Law

Before:

Beech-Jones

Decision:

Application refused

Catchwords:

CRIMINAL LAW – review of conviction – allegation that plea of guilty was improperly procured – allegation that trial transcript doctored – no factual basis for contentions – no question of principle – application dismissed.

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2008] NSWSC 251

Application of Rendell (1987) 32 A Crim R 243

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

Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339

Gillies v District Court of NSW [2014] NSWCA 357

Gillies v Legal Aid Commission of New South Wales [2020] NSWSC 836

Loury v R [2010] NSWCCA 158

Meissner v R (1995) 184 CLR 132; [1995] HCA 41

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

Category:

Principal judgment

Parties:

Max Perry Gillies (Applicant)

File Number(s):

2020/351892

Judgment

Introduction

1. Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (the “Review Act”), Mr Max Gillies seeks an inquiry into his convictions for two sexual offences, one entered in 1990 (“the 1990 conviction”), and the other entered in 2006 (“the 2006 conviction”).

2. The 1990 conviction was entered following the applicant’s plea of guilty on 7 February 1990 to a charge of sexual intercourse without consent, contrary to former s 61D(1) of the Crimes Act 1900. In March 1990, he was sentenced to 3 years and 4 months imprisonment with a non-parole period of 2 years and 6 months. The 2006 conviction was entered following a jury finding the applicant guilty of one count of sexual intercourse without consent contrary to former s 61I of the Crimes Act after a jury trial. For that offence he was sentenced to a term of imprisonment comprising a non‑parole period of 5 years commencing 17 July 2006 and expiring on 16 July 2011 with an additional term of 1 years and 8 months.

3. In his application filed 11 December 2020, Mr Gillies submits that with the 1990 conviction he was pressured into pleading guilty. He contends that he was maliciously prosecuted when further allegations were made and that resulted in the 2006 conviction. [1] With regard to the 2006 conviction, Mr Gillies makes a number of submissions most of which concern or relate to an allegation that the court transcripts of his trial were tampered with. Mr Gillies contends that that these circumstances raise the appearance of doubt or question as to his guilt.

   1. Applicant’s submissions (“MG subs”) at [19].

Statutory context

4. Sections 78 and 79 of the Review Act provide:

“78 Applications to Supreme Court

(1)   An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2)   The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

79 Consideration of applications

(1) After considering an application under section 78 or on its own motion:

(a)   the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b)   the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2)   Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3)   The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a)   it appears that the matter:

(i)   has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii)   has previously been dealt with under this Part or under the previous review provisions, or

(iii)   has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv)   has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b)   the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A) The Supreme Court may defer consideration of an application under section 78 if:

(a)   the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b)   the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c)   the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(3B)   …

(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).”

5. Subsection 78(1) of the Review Act enables, inter alia, a “convicted person: to apply to the Court for an “inquiry into the conviction or sentence.” Subsection 79(1) confers on the Court a discretion to order that an inquiry be conducted by a judicial officer into either or both of Mr Gillies’ conviction or sentence, or to refer the whole case to the Court of Criminal Appeal. Mr Gillies has fully served his sentence for both convictions. This application pertains only to his convictions.

6. The discretion conferred by ss 79(1) may only be exercised where 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” (the Review Act; s 79(2)). Subsection 79(3) specifies various bases on which the Court may refuse to deal with the application, including that the matter has been fully dealt with in the proceedings (s 79(3)(a)(i)) and the Court is not satisfied there are special facts or circumstances that justify the taking of further action.

7. Three matters should be noted about these provisions.

8. First, an application under s 78 does not initiate a judicial proceeding but instead an exercise of administrative power (Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 to 50; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [124]). In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2008] NSWSC 251 (“Holland”), Johnson J noted that s 78 is not intended to provide a convicted person with another avenue of appeal after the appeal process has been exhausted, nor an opportunity to run their trial again on the papers (Holland at [9]). Instead, his Honour observed that these applications are engaged where the criminal justice system has “run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence” (Holland at [10]).

9. Second, the test to be applied in proceedings of this nature is whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case (s 79(2)). Under the now-repealed, but similarly phrased s 475 of the Crimes Act 1900, it was said that the requisite view may be formed where the material submitted creates an "unease or a sense of disquiet" in allowing the conviction or sentence to stand (Holland at [6], citing Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245). This requires available material which "as a matter of practical reality" gives rise to the sense of unease or disquiet (Holland at [8]). That formula has been applied in applications made under s 79(2) (Holland at [6]).

10. Third, there is a degree of flexibility regarding the "materials" which may be considered and the basis on which they are considered.

11. Consistent with this, I have determined the matter on the papers. I have considered all the submissions and documents provided with Mr Gillies’ and the submissions of the Attorney-General (“the AG”).

Procedural history

12. To determine the application, it is necessary to briefly outline the circumstances of the convictions and the procedural history that followed.

1990 Conviction

13. The dates of Mr Gillies’ entry of a plea and sentence are noted above. The fact sheet upon which he was sentenced states the following. On 20 January 1989 at around 2.30am, the applicant met the complainant at a nightclub. They were casual acquaintances and the applicant offered to walk the complainant to his flat so that she could call a taxi. While they were walking through Civic Park, Newcastle the applicant made sexual advances towards the complainant which she rejected. The applicant then had forced anal and vaginal intercourse with the complainant and attempted to force her to perform oral intercourse on him. The complainant escaped and flagged a taxi. She reported the incident to police and was taken the Rape Crisis Centre at the Royal Newcastle Hospital where an examination confirmed that vaginal and anal intercourse had occurred.

2006 Conviction

14. The second conviction the subject of this application arises from events on the night of 9 to 10 July 2004 at the applicant’s home in Warners Bay. At the time of the offence the applicant and the complainant were in an intimate relationship. The following is taken from the judgment of the Court of Criminal Appeal (the “CCA”) dismissing Mr Gillies’ appeal from his conviction and sentence (Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339 (at [11] to [12]; “Gillies CCA”):

“On the night of 9 July 2004 the appellant and the complainant had consumed alcohol and argued. The complainant said that her recollections of the latter part of the night and the early morning were blurry and confused. She remembered getting out of a taxi at the appellant’s house, but nothing of what happened thereafter until she woke up feeling not right and a bit nauseous. At that stage words were exchanged between her and the appellant. The appellant left to go on his trip. The complainant went back to sleep. When she subsequently awoke she saw a wine bottle next to the bed and a jar of Vaseline on the bedside table. In another bedroom she saw a carrot on a bed. She noticed what looked like Vaseline on the top of the bottle. She pressed buttons on a VCR recorder and saw images of herself and the appellant involved in sexual activity on the screen. She took the video (Exhibit A) and another video that had cartoons or something similar written on it. On 11 July 2004 she contacted police.

On 13 July 2004 police executed a search warrant at the appellant’s premises. They located and took possession of, inter alia, the wine bottle and six videotapes. One of these (Exhibit B) also depicted sexual activity involving the appellant and the complainant.”

15. On 31 July 2006, the appellant was charged on indictment on four counts of having sexual intercourse with the complainant knowing that she was not consenting contrary to s 61I of the Crimes Act (Counts 1, 3, 4 and 5) and one count of assault and commit an act of indecency (Count 2).

16. The applicant pleaded not guilty to all five counts and the matter proceeded to trial. On 24 August 2006, the jury found the applicant guilty of one count under s 61I, namely, Count 5. He was found not guilty of Counts 2 and 3. The jury was unable to reach a verdict on Counts 1 and 4. [2]

    2. CCA judgment at [19].

2008 Appeal

17. The applicant sought to appeal his conviction and sentence on Count 5 at the 2006 trial. The appeal considered of 24 grounds of appeal, which the CCA grouped into four categories. [3] These were: the conduct of the applicant’s solicitors and counsel during the trial; the authenticity of the videotapes; admission of certain items of evidence and instructions to the jury regarding this evidence, and finally that the verdict was unsafe and unsatisfactory. [4] In the appeal, the applicant gave evidence of the instructions he gave to his lawyers, the steps taken by them and himself and the advice he received. [5] The applicant was granted leave to appeal against conviction however the appeal against conviction and sentence was dismissed.

    3. Gilles v Director of Public Prosecutions [2008] NSWCCA 339 (“CCA judgment”).

    4. CCA judgment at [4] to [7].

    5. CCA judgment at [12].

2009 Retrial

18. In 2009, the applicant was retried on Count 1 and found not guilty. Count 1 involved conduct that occurred at a different time to the other counts and was recorded on a different videotape to the other four counts.

Civil Proceedings

19. The applicant has brought three further proceedings in connection with the 2006 conviction. In all cases the proceedings were summarily dismissed.

20. The first proceeding was commenced by a statement of claim filed on 9 December 2013 seeking damages against the State of NSW for, inter alia, malicious prosecution and false arrest. A motion for summary dismissal was heard on 6 November 2014, by Schmidt J. Mr Gillies did not appear. On 13 November her Honour dismissed the proceedings. Her Honour found that the pleading did not comply with the basic requirements of the Uniform Civil Procedure Rules (“UCPR”). It was found that the statement of claim did not provide a proper basis for which the case could be understood, responded to or determined by the Court. [6]

    6. Gillies v State of NSW (No 2) [2014] NSWSC 1598.

21. The second proceedings were brought by Mr Gillies against his trial lawyers on 15 August 2014 seeking recovery of the expenses paid for his trial. Rothman J dismissed the proceedings due to a failure of the applicant to disclose a reasonable cause of action, the proceedings being statute barred and the defendant’s immunity from suit. [7] Mr Gillies did not appear.

    7. Darius Michael Gillies v William Brewer [2014] NSWSC 1198.

22. The third proceeding was a summons filed in the Court of Appeal seeking various orders concerning the transcript and exhibits from the trial. It was summarily dismissed on 26 September 2014. [8]

The 1990 Conviction

8. Gillies v District Court of NSW [2014] NSWCA 357

Guilty Plea

23. The applicant raises two complaints regarding the 1989 offence. The first is that he was pressured into pleading guilty. The applicant states that on the Friday prior to the start of the trial he was offered a “plea deal” whereby, if he pleaded guilty to the offence, he would receive a discount on sentence. [9]

    9. MG subs at [28].

24. Mr Gillies submits that he “had to consider everything that was occurring” when deciding to plead guilty. [10] This includes the “embarrassment” over the allegations and the cost of paying counsel to represent him at the trial. The applicant also makes a number of allegations that he was facing ongoing police intimidation, that he feared for his life and that his barrister was attempting to secure rights to the applicant’s workers compensation. [11] Beyond his own assertions, the applicant does not provide any supporting evidence of these accusations.

    10. MG subs at [28].

    11. MG subs at [28] and [34].

25. The submissions of the Attorney-General contended that a guilty plea may be validly entered for reasons other than a belief in one’s own guilt. Even if the applicant did not believe himself to have committed the offence at the time of his plea that need not render his guilty plea liable to be set aside. [12] Hence, in Meissner v R (1995) 184 CLR 132; [1995] HCA 41 at [22] it was observed:

“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty …) when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.”

12. Attorney-General’s submissions (“AG subs”) at [69].

26. In Loury v R [2010] NSWCCA 158 at [99] Whealy J (with whom Hodgson JA and Kirby J agreed) concluded:

“ …a plea of guilty may be entered for reasons other than a belief in one’s own guilt. As noted by Dawson J in Meissner v The Queen (1995) 184 CLR 132, the accused person’s exercise of free choice may “extend beyond that person’s belief in his guilt” and includes situations such as the avoidance of worry or inconvenience, the protection of one’s family and even “the hope of obtaining a more lenient sentence than [the accused] would if convicted after a plea of not guilty” (at 157). However, as Howie J made clear in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at [33], there will be no miscarriage of justice in situations where a plea of guilty has been entered for the purpose of gaining some perceived advantage, despite maintaining one’s innocence, so long as the plea was entered in the exercise of a person’s free choice or in his or her own interests.”

27. The complaint raised by the applicant were was the subject of a right of appeal[13] which was not exercised.

    13. AG subs at [71].

28. Nothing in the material raised by the applicant’s suggests any basis for enabling him to traverse his plea. The entry of his plea of guilty did not constitute a miscarriage of justice and the circumstances in which it was entered do not raise a question or doubt as to his guilt.

Assertion of Innocence

29. The second complaint the applicant raises is that he is innocent of the offence. He assets he had consensual sexual intercourse with the victim. [14] There is no need to address this assertion given the conclusion above,above; however for the sake of completeness it suffices to state the following. The evidence against the applicant was very strong and there was a highly likelihood that a jury would have convicted him if he had not pleaded guilty. The police brief included a statement from the victim setting out the facts noted above. It also included a statement from the taxi driver who picked her up after the offence and which was consistent with the complainant’s account. According to both the complainant and the taxi driver, the complainant told the taxi driver upon entering the taxi that she had been raped. [15] The brief also included a statement from a doctor who examined the complainant on the night of 20 January. The examination showed that her underwear was soiled with blood and dirt, that there was grass and dirt in her pubic hair and that she had suffered some anal tearing. The doctor concluded that the examination was “quite consisted with the history as given by the patient.”[16] The doctor concluded that it was “hard to doubt that rectal intercourse took place”. [17] In his record of interview on 23 January 1989, the applicant said they had consensual sex but denied they had anal intercourse. [18] Given the victim’s injuries, his denial of anal intercourse casts serious doubt on his credibility.

    14. MG subs at [26].

    15. Statement of Robert Sutherland at [4]; AG subs at [76].

    16. Statement of Dr Bistis at [96]; AG subs at [77].

    17. AG subs at [78].

    18. ROI, Q49; AG subs [79].

Submissions in Reply

30. The applicant’s submission in reply maintain his version of events, including his assertion that he was offered a “6 month plea” by the Crown. [19] Nothing in those submission raises any basis to warrant a traversal of his plea or raises a doubt about his guilt.

    19. Applicant’s submissions in reply (“MG subs in reply”) at [141].

Conclusion in Relation to the 1990 Conviction

31. Nothing raised by the applicant suggests that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case (s 79(2)).

Consideration – 2006 Conviction

32. In his extensive written submissions in chief and reply, the applicant raises various grounds by way of challenge to his 2006 conviction. The Attorney-General’s submissions identified these by reference to various grounds which for convenience I will adopt. Many of these have already been fully explored in the appeal from his conviction.

33. At the outset, it is necessary to note the principal evidentiary basis for his conviction on Count 5. Thus, the CCA noted:

“22 In relation to count (5), Exhibit M was played in court. In evidence at trial the appellant agreed with the following description of what was depicted: just before he inserted the wine bottle he was touching the genitals of the complainant, she moved away from him, he picked up a dildo or vibrator and touched her genitals, she moved away from him, she uttered the word “don’t” a number of times. He was masturbating, was looking at the television screen, he lifted the doona to expose her lower body and he looked at the camera when he did that. He accepted at that point of time the doona was over the complainant’s head. At one time he was sucking on the carrot. He agreed the complainant then said “don’t” quite forcefully. The appellant agreed it could be suggested the complainant tried to kick out with her foot when he tried to put the bottle near her. He agreed she said “don’t” again. He inserted the bottle and she cried out very loudly “ouch”. He agreed he pushed the bottle in hard. He said that in his mind he was giving the complainant pleasure.”[20]

20. CCA judgment at [22].

34. The CCA later concluded at [115], “[t]he jury may well have entertained no doubt on the question of consent in relation to count 5 because of what they saw and heard on the videotape. The jury may well have concluded that it was clear that the complainant was not consenting and that the appellant knew it. The complainant’s actions and noises indicated clearly that there was no consent.”

Transcript Tampering (AG grounds 6, 8 and 9)

35. In his submissions, the applicant describes the “thrust” of his argument as being based on “fresh cogent metadata evidence” that is said to demonstrate that the trial and appeal transcripts were tampered with. [21] The applicant claims that the trial judge and his associate conspired to tamper with the transcript in order to conceal evidence that the police had doctored the videotape evidence used to convict him. [22] He claims that, contrary to what the transcript records, he made no concessions during the trial as to what could be seen and heard during the videos. [23]

    21. MG subs at [40].

    22. MG subs at [42].

    23. MG subs at [161].

36. The applicant points to the fact that a section of the transcript, namely p 397, which related to 10 August 2006, was amended. [24] The applicant wrote to the Attorney General in relation to this and a review was undertaken. A letter from the Deputy Secretary, Communities and Justice to the applicant on 3 November 2020 [25] advised that “[t]he results of that that review showed that a section was omitted from the daily transcript prepared on 10 August 2006. The transcript was amended and emailed to all of the parties, including the defendant’s legal representative on 11 August 2006.” The letter added that “[t]here is no evidence that these changes, along with the preparation of all other transcripts from your 2006 proceedings, were made outside the errata process”. The applicant submits that it is “not believable” for the omission to have occurred in that manner. [26] He contends that that the Deputy Secretary made a “false allegation” that the transcript had not been doctored as evidence of a large-scale attempt to cover-up the destruction of evidence by police and the prosecution. [27]

    24. MG subs at [225].

    25. AG subs at [151]; Exhibit 39 to application.

    26. MG subs in reply at [45].

    27. MG subs in reply at [49] and [52].

37. The applicant relies on a report by Dr Allan Watt, an independent digital forensics expert. The applicant states that this report “irrefutably” demonstrated that the transcripts were “illegally modified during and after the trial had finished.”[28] The applicant also states that the report was obtained to refute any allegation that the applicant was responsible for “doctoring of the relevant transcripts”. [29] Dr Watt’s report records that he was asked to examine the metadata of an MS Word Document with the file name “10 August 2006 Thursday Pg393 - 461”. [30] The report relevantly states:

“1.6   I have reviewed and extracted the metadata for the document and there is nothing to suggest on the face of it that it is not genuine nor is there anything in the metadata that reflects that it is not genuine. A copy of the metadata report in included as Annexure C.

1.7   This document is lengthy and would have taken a while to type, however the creation date/time and last modified date/time are the same with zero edited minutes.

1.8   This therefore indicates a new document was created and the body of the original document transcript was copied into it, on 10 August 2006.

1.9   It is assumed this would have been, as this is an extract only of an entire transcript.

1.10   Whether this is an exact replica of the original entire text of the transcript cannot be determined, as the original transcript has not been viewed.”

28. MG subs at [230].

29. MG subs at [231].

30. MG subs at [153].

38. Contrary to the applicant’s submissions, nothing in that report provides evidence that the transcript was altered. His submissions’ reference to the difference in the metadata record for 10 August 2006 compared to 11 August 2006 is that the latter records an editing time of 28 minutes. [31] This simply reflects the matter noted in [36].

    31. MG subs at [236].

39. The applicant also alleges that page 525 of the trial transcript was altered to change the number in a question that he was asked, and again at page 539 and 548, where he alleges that evidence was “unlawful[ly] cut and paste[d]” from the transcript. [32] The applicant raises a complaint that this transcript was utilised by the CCA in reviewing his conviction and therefore a miscarriage of justice occurred. There is no evidentiary basis for the allegation. The AG noted that the applicant and his counsel had opportunities to review the transcript and challenge any alleged errors during the 2006 trial. [33] In reply, the applicant contends that this review of the transcript occurring during the trial, before the alleged doctoring of the transcript occurred. [34] However, as was made clear by the letter from the Deputy Secretary, the applicant’s lawyers were also given the opportunity to review the errata process that occurred in relation to the 10 August transcript.

    32. MG subs at [152] – [153]; Exhibit 30 to application at [1.6].

    33. AG subs at [160].

    34. MG subs in reply at [87].

40. The applicant also contends that there was a “gross miscarriage of justice in the trial by virtue of the inadmissible evidence of Detective Abbott”. [35] This is a reference to a point in the trial where the detective said in front of the jury that his answer to a question “may prejudice the accused” and a voir dire was subsequently held. [36] An application was then made for the discharge of the jury, which was rejected. [37] The applicant claims that, as a result of this, the transcript of the proceedings was edited to insert “material into the body of the transcript at T397 that was not the evidence that [was adduced] during the course of the trial.”[38] The applicant claims that these doctored transcripts then influenced the outcome of the appeal with regards to the ground of appeal in relation to the discharge of the jury. [39] Two matters should be noted. First, there is nothing in the application that suggests the transcripts were edited beyond the official errata process. Second, the application to discharge the jury was considered by the CCA at [89] to [95]. There is nothing raised by this aspect of the application that causes a doubt or question as to the CCA’s decision in relation to this topic or concerning the applicant’s guilt generally.

    35. MG subs in reply at [79].

    36. Trial transcript at p 394.10.

    37. Trial transcript at p 394ff.

    38. MG subs at [130].

    39. MG subs at [131].

41. The applicant also contends that the transcript of the CCA proceedings was doctoredtampered with. He alleges that the appeal transcript was altered to delete references he made during the appeal to the transcript tampering he contends occurred during the trial. [40] The applicant contends that the Registrar doctored altered the transcript in February 2010, two years after the appeal. [41]

    40. MG subs at [185].

    41. MG subs at [203].

42. The applicant calls for a “demonstration of the metadata of the CCA. [42] In particular, the applicant called for the Court to “perform a demonstration of the ‘metadata’ evidence with response to all of the doctored transcripts… pursuant to s 53(1) and (3)…of the Evidence Act 1995 NSW”. He contends that this will prove the evidence of doctoring of the transcripts. [43] These provisions are not enlivened on this application as this is not a trial. Even if they were enlivened by this application, there is nothing in this application that would warrant such a demonstration. The submissions in reply also contain an extensive review of the correspondence sent by the applicant about the errata process and complaints that his correspondence has not been replied to. [44] None of that advances his contention that there was a conspiracy. The position on the errata changes was made quite clear, even if the applicant did not accept it. He also makes submissions based on his own analysis of the metadata which advances the matter no further than [36].[45] As there is no evidence that the transcript was altered beyond the errata process, the balance of his complaint falls away. Ultimately there is no evidence to suggest that either the transcript of the 2006 trial or the appeal to the CCA was improperly altered in the manner alleged. Nothing raised by the applicant on this suggests that there is a doubt or question as to the applicant's guilt.

    42. MG subs in reply at [94].

    43. MG subs in reply.

    44. MG subs in reply at [51ff].

    45. MG subs at [60] to [70].

Video tapes: (AG grounds 4 and 12)

43. In his application, Mr Gillies alleges that the videotape recording the assault had been doctored in some way. [46] He states that “the video tape used to wrongly convict the applicant at trial was in fact created by Constable Abbott…”[47] . The applicant alleges he instructed his legal representatives to have the tape examined to ascertain its authenticity. [48] The authenticity of the tapes was considered during the trial and extensively on appeal.

    46. MG subs at [95].

    47. MG subs at [95].

    48. MG subs at [82].

44. The applicant relies on the expert report of Dr Joanne Tibbitts of 27 June 2005 which concluded that the tape was not an authentic recording. [49] During the appeal, the applicant’s solicitor gave evidence that Dr Tibbitts was not prepared to give evidence on the applicant’s behalf at the trial. [50] The applicant also relies on the expert report of Dr Storey-Whyte as proving that the videotape was not authentic. He contends that Dr Storey-Whyte’s report was never put before the trial judge. [51] However, the applicant’s solicitor also gave evidence during the 2008 appeal that Dr Storey-Whyte said that she was unable to give evidence that would support the applicant’s case. [52] Further, the respondent points that two reports prepared by David Mr Ringrose of the AFP were tendered at trial and rebutted the assertion that the tapes were doctored. [53]

    49. MG subs at [85]; Exhibit 10 to application.

    50. CCA judgment at [47]

    51. MG subs in reply at [99], [139] – [140].

    52. CCA judgment at [47].

    53. CCA judgment at [44].

45. During his trial, the applicant’s counsel made a concession as to the authenticity of the videotapes which was followed by a written document to that effect. [54] The applicant states that his counsel at the trial made the concession without his consent and that he made it “quite clear that he did not agree with that concession.”[55] At the appeal, the applicant’s trial counsel gave evidence that he advised the applicant it was a waste of time to contest the authenticity of the tapes and that he should focus on the issue of consent. He said the applicant was initially reluctant to accept this advice however eventually instructed his counsel to do so. [56]

    54. CCA judgment at [17].

    55. MG subs at [133].

    56. CCA judgment at [46].

46. The applicant gave evidence before the CCA that he signed the s 191 admission to “get the judge on side”. [57] The applicant also says that he was not of sound mind when he signed the document. However, the CCA found that, “[h]e said that he signed it in the belief that it would get the judge on side and that the discharge of the jury would come and the trial would be re-run.”[58]

    57. CCA judgment at [61].

    58. CCA judgment at [61].

47. The applicant clearly made an express concession at his trial that the authenticity of the tapes was not in question during the trial. The CCA concluded that no miscarriage of justice arose from the repeated assurances given as to the tape’s authenticity. There is nothing raised in this application that would detract from this conclusion. Nothing raised by the applicant on this topic suggests that there is a doubt or question as to the applicant's guilt.

Chain of Custody of the Videotapes (AG ground 14)

48. The applicant makes various claims regarding the chain of custody of the impugned videotape including that there was a conspiracy between the ODPP and Crown Prosecutor to destroy the chain of custody document. [59] It suffices to repeat the findings of the CCA on this topic (at [87] to [88]):

“87 At trial the prosecutor opposed the production of material demonstrating the continuity of custody of the exhibits on the basis that the continuity was a question of fact for the jury. It was implicit in that position, the appellant submitted, that evidence of the continuity would be led before the jury during the trial.

88 However, ultimately there was no issue about the videotape and it was tendered and went into evidence without objection. Continuity of custody had ceased to be an issue. Furthermore, during the stay application the prosecution had tendered a document setting out the chain of custody of the video. It has not been demonstrated that a copy of that document was not given to those representing the appellant. No miscarriage is apparent having regard to the manner in which the case was run.”

59. MG subs at [106] to [107], [199].

49. The applicant contends that a transcript of an interlocutory hearing on 28 July 2006 reveals that a Crown Prosecutor misled the Court on this topic. [60] It demonstrates no such thing. In any event, as the Court was repeatedly advised by the applicant or his representative that there was no issue concerning the authenticity of the tape, and the applicant accepted the accuracy of the tape in his evidence, any issue about the chain of custody falls away.

    60. MG subs at [107]; Exhibit 17 to application.

50. Nothing raised by the applicant on this topic suggests that there is a doubt or question as to the applicant's guilt.

Destruction of Evidence by Police (AG ground 5)

51. The applicant also complains about the police destroying a second videotape[61] . At the 2006 trial, the officer who destroyed the tape gave evidence that this videotape only contained footage of cartoons and was destroyed due to its irrelevance. [62] Again, this was considered both at the trial and by the CCA. At the trial, the officer who viewed the tape was cross examined and stated that it only contained cartoons. The CCA concluded (at [82]):

“There was no evidence that the material on the videotape was exculpatory or relevant in any sense. It was not put to the witness that the videotape had contained relevant material nor was any evidence led that it had contained relevant material. Counsel for the appellant was not stopped from pursuing that line of cross-examination. No miscarriage of justice has been demonstrated.”

61. MG subs at [132].

62. MG subs at [132]; CCA judgment at [81].

52. Nothing raised by the applicant warrants any departure from this finding.

Destruction of Triple-0 Document

53. The applicant also alleges that the Crown perverted the course of justice by withholding from the jury a document that recorded a Triple-0 call the applicant made on the night of 24 April 2004. [63] The applicant claims that this document formed part of Exhibit O along with some receipts but ultimately only the receipts were shown to the jury. [64] He also alleges that the Crown removed this document from the appeal books. [65] Two matters should be noted about this allegation. First, the transcript and the appeal book clearly record Exhibit O as consisting of “invoices” only. [66] Second, the application provided the document with his submissions. It is a COPS entry referring to the applicant claiming he had just been assaulted by his ex-partner’s father. It is irrelevant to the 2006 conviction. Nothing in this ground raises a doubt as to the applicant’s guilt.

    63. MG subs at [31].

    64. MG subs at [149]; Exhibit 3 to application.

    65. MG subs at [149].

    66. Trial transcript p 625; Exhibit 4 to application p 330 to 332 (Exhibit O).

Destruction of Subpoenas (AG ground 17)

54. The applicant asserts that he issued five subpoenas to “Crown agencies” after discovering the alleged transcript tampering and that the subpoenas were destroyed by the agencies. [67] There is no evidence to support this assertion. [68]

    67. MG subs at [169ff].

    68. AG subs at [191].

Denial of Access to Audio Recordings (AG ground 18)

55. The applicant states that he attempted to access the audio recordings of his 2006 trial and the denial of access to those recordings reveals a “cover up on the part of the Crown authorities” and members of the judiciary. [69] This complaint was part of the complaint raised in the Court of Appeal proceedings noted above. The Court concluded ([2014] NSWCA 357 at [44]):

“It was our view that there was no reason why the respondents' written submissions should not be accepted. They demonstrated that the summons was misconceived in that it failed to disclose any relevant or reasonable cause of action. The prospects of the applicant establishing otherwise was unrealistic to the point of non-existence. In these circumstances, it was appropriate for the summons to be summarily dismissed as manifestly groundless.”

69. MG subs [214].

56. In his submissions in reply, the applicant refers to an application he made to the District Court on 30 January 2012 to access the tapes from his trial in 2006 which he obtained in 2021. [70] That transcript suggests that the judge who heard that application noted that the trial judge had expressed views and indicated that she would speak to the trial judge. It seems that the trial judge had refused to provide access to duplicate CDs of the trial. [71] Based on this, the applicant contends that the trial judge knew the original transcript had been doctored and advised the judge hearing the application in January 2012 the same. These are specious inferences. They have no evidentiary support.

    70. MG subs in reply at [28ff].

    71. MG subs in reply at p 57.

Crown (AG ground 19)

57. The applicant also claims that the ‘metadata’ from the Crown appeal books for the 2008 appeal indicates they could not have been served on him as claimed and thereby contravened an order relating to the preparation of his appeal. [72] There is nothing to support this claim. If the applicant had concerns about his receipt of material for his appeal, he could have raised them with the CCA. [73]

    72. MG subs at [180] – [181].

    73. AG subs at [197].

Instruction by the Trial Judge to Find the Applicant Guilty (AG ground 16)

58. The applicant contends that the trial judge directed the jury to find the applicant guilty. In particular he contends that the trial judge “imbed[ed] specific words in his sentences when directing the jury” and that unlawful changes were made to conceal this. [74] It is also alleged by the applicant that the trial judge made certain gestures that were intended to influence the jury. The applicant’s allegations regarding transcript tampering have already been addressed. The balance of the allegations have no evidentiary support. Otherwise the CCA addressed and rejected complaints about the summing up (at [99] to [106]).

    74. MG subs at [165].

Lawyers’ Misconduct

59. The applicant submits that his legal representatives “operated under the control [of] the prosecution in the course of the 2006 trial.”[75] The basis for this contention appears to be a passage in the cross‑examination of the victim which the applicant contends reveals she was forewarned of what might be in a statement of a defence witness. [76] The transcript demonstrates no such thing. The applicant provides no other evidence of this allegation. Further, the conduct of the applicant’s trial lawyers was considered extensively by the CCA at [38ff] and [69ff]. The Court concluded that there was no evidence of collusion between the prosecution and the defence to conduct the case to his disadvantage. [77]

    75. MG subs at [259].

    76. MG subs at [111].

    77. CCA judgment at [71].

Complainant Lied

60. The applicant submits that, “there is sufficient evidence [to] demonstrate that [the complainant] lie[d] to the police of her lack of knowledge of the CCTV system, drug use, ownership of vibrators and memory loss. [78] This was the subject of extensive cross examination during the trial. [79] No further evidence was provided by the applicant. Further, any concerns about this should have been raised in the appeal. They do not raise a doubt or question about the applicant’s conviction.

    78. MG subs at [259].

    79. AG subs at [126ff]; Trial transcript p 94 to 95, 113 to 114, 121.

Complainant Drugged the Applicant

61. The applicant claims that he was drugged by the complainant and that his intoxication at the time of the offending was not self-induced. [80] However, at the 2006 trial the applicant admitted that the complainant had given him ecstasy. [81] Otherwise this complaint was capable of being raised at the appeal and was not.

    80. MG subs at [259].

    81. AG subs at 130; Trial transcript p 583.2.

2009 Retrial

62. The applicant claims that evidence revealed in the 2009 retrial consists of fresh and compelling evidence. [82] There is no specification of what that evidence is and why it reveals his innocence on the count on which he was convicted. The retrial relates to events on a different occasion to those the subject of this application and therefore do not reveal inconsistent verdicts. [83]

    82. MG subs at [49].

    83. AG subs at [173].

Denial of Legal Aid

63. The applicant claims that a miscarriage of justice has occurred due to his being denied legal aid firstly for his appeal and secondly for this application. An application for judicial review of the rejection of his application for legal aid for this application was rejected in Gillies v Legal Aid Commission of New South Wales [2020] NSWSC 836. In any event, I must address the application as formulated and it does not raise any doubt about this conviction. As for his being denied legal said for his appeal, I do not accept that there is any connection between that and any suggested doubt or question arising in relation to his guilt. If the applicant had obtained a grant of legal aid for his appeal then it seems also inevitable that any lawyer retained would have been obliged to decline to appear because they could not, consistent with their ethical duties, pursued most, if not all, of his grounds of appeal.

Other Proceedings

64. The applicant’s submission raise other issues affecting the proceedings he conducted in the Supreme Court in 2020, including making further complaints about the inaccuracy of transcript and how various changes were “deliberate and unlawful”. [84] Once again, there is no evidence to support these contentions. If anything, they confirm that he has embarked on a process of denying the validity of any record of a judicial proceeding that does not yield the result he wants.

    84. MG subs at [248].

Wrongful Conviction

65. The applicant also raises the ground that “the Applicant is innocent of the wrongful conviction which has been demonstrated based on [the application].”[85] The conviction of the applicant for Count 5 was thoroughly examined by the CCA in 2008. The Court concluded then that that it was open to the jury to convict the applicant of Count 5. Given the videotape evidence described above, that is not surprising.

    85. MG subs at [259].

Conclusion

66. There is no reason to doubt that in 1990 the applicant freely and voluntarily pleaded guilty to a rape charge in the face of a strong prosecution case. In 2006, he was convicted of a sexual offence which was effectively proven by a videotape, the authenticity and accuracy of which was and can be accepted.

67. None of the matters relied on raise a doubt or question as to Mr Gillies’ guilt in respect of either conviction.

68. The application is refused.

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Endnotes

Decision last updated: 05 November 2021