JB - Application for inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001
[2014] NSWSC 1714
•20 November 2014
Supreme Court
New South Wales
Case Title: JB - Application for inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 Medium Neutral Citation: [2014] NSWSC 1714 Hearing Date(s): On the papers Decision Date: 20 November 2014 Before: R A Hulme J Decision: Pursuant to Part 7, refer whole of the case to the Court of Criminal Appeal
Catchwords: CRIMINAL LAW - application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for murder - child at time of alleged offence - material discovered after all avenues of appeal were exhausted relating to prosecution witness at trial, prosecution duty of disclosure and whether applicant's solicitor at trial had conflict of interest - sense of unease or disquiet about conviction Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)Cases Cited: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
JB v R [2012] NSWCCA 12; 83 NSWLR 153
JB v The Queen [2013] HCATrans 28Category: Principal judgment Parties: JB (Applicant) Representation - Counsel: Counsel:
Mr T Game SC and Ms G Bashir SC (Applicant)
Ms N Adams SC and Ms A Bonnor (Attorney General)- Solicitors: Solicitors: File Number(s): 2014/233453
DECISION
R A HULME J: An application has been made pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into the conviction of JB (the applicant) for murder. He seeks referral of the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) pursuant to s 79(1)(b).
JB cannot be named because he was a child at the relevant time: s 15A Children (Criminal Proceedings) Act 1987 (NSW).
JB was found guilty by a jury on 10 September 2009 of the murder of Edward Spowart in the early hours of 21 April 2008. He was unsuccessful in appealing against his conviction to the Court of Criminal Appeal: JB v R [2012] NSWCCA 12; 83 NSWLR 153. He was unsuccessful in seeking special leave to appeal to the High Court of Australia: JB v The Queen [2013] HCATrans 28.
The statutory and procedural aspects attending an application under Part 7 of the Crimes (Appeal and Review) Act were conveniently set out in detail by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [2]-[19].
The present application is based upon material discovered subsequent to the exhaustion of the avenues of appeal ("the material"). It relates to the evidence of an important prosecution witness in the applicant's trial; raises questions about compliance with the prosecution's duty of disclosure; and raises questions about whether the applicant's solicitor at trial, and on appeal had a conflict of interest.
The application was supported by detailed written submissions by Mr Tim Game SC and Ms G Bashir SC filed on 8 August 2014. The Attorney General has provided written submissions in reply prepared by the Crown Advocate, Ms N Adams SC, and Ms A Bonnor filed on 4 September 2014. The matter was referred to me for consideration on 13 November 2014.
There is no need to review in any detail the evidence in the trial or the manner in which the Crown and defence cases were put. It is sufficient to say that a significant aspect of the Crown case was the contention that the applicant made admissions at a police station following his arrest. The admissions were said to have been made to a support person, Shawn Clayton, who was present because the applicant was a vulnerable person because of his age (he was 15). The Crown relied upon other aspects arising from the evidence but its case was put to the jury on the basis that a verdict of guilty could be returned on the evidence of the alleged admission alone.
The Attorney General concedes there should be a referral. The written submissions succinctly set out three broad issues revealed by the material:
[Quotation from paragraphs five to eight of Attorney General's written submissions redacted]
As the written submissions make clear, within each of those issues there are quite a number of subsidiary issues. I have come to the view that the matter should be determined with some urgency in the light of further submissions that were filed by senior counsel for the applicant on 5 September 2014. Accordingly I do not propose to provide detailed reasons which are not generally required in relation to this administrative task and certainly not in this case where there is no controversy as to the outcome.
I confirm that I have read and considered the entirety of the material provided in support of the application. There are a number of questions about the integrity of the trial process that led to the jury's verdict. I am left with a sense of unease or disquiet about the applicant's conviction.
I refer the whole of the case to the Court of Criminal Appeal pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act.
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