P Hudd (Application under s 474D Crimes Act 1900)

[1999] NSWSC 590

CITATION:	P Hudd (Application under s 474D Crimes Act 1900) [1999] NSWSC 590
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70022/99
HEARING DATE(S):	Not applicable
JUDGMENT DATE:	18 June 1999
PARTIES :	Applicant: Patrick Hudd
JUDGMENT OF:	Sperling J

COUNSEL :
SOLICITORS:	For Crown Solicitor: W Abadee For Applicant: C Farnan (Legal Aid New South Wales)
CATCHWORDS:
ACTS CITED:	Crimes Act 1900, ss 474D, 474E
DECISION:	Proceedings be referred to Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SPERLING J

Friday, 18 June 1999

70022/99 Patrick Hudd - Application pursuant to s 474D of Crimes Act 1900
JUDGMENT
HIS HONOUR:

1 This is an application pursuant to s 474D of the Crimes Act 1900 which provides that an application for an inquiry into a conviction may be made to the Supreme Court by the convicted person. Section 474E provides that, after considering an application under s 474D, the Supreme Court may direct an inquiry or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

2    The application was made by Legal Aid New South Wales on behalf of the applicant, Patrick Hudd, by letter dated 9 March 1999. The letter sets out the circumstances of the case and the grounds on which the application is made.

3    There is a need for urgency in dealing with this matter. The applicant was convicted in the District Court on 26 August 1993. On 1 November 1993 he was sentenced to a minimum term of two years and six months dating from 27 September 2000, with an additional term of ten months. The date for commencement of the sentence was fixed by reference to a sentence being served. On 5 December 1995, the applicant was re-sentenced by the Court of Criminal Appeal to a minimum term of one year and four months commencing on 10 March 1999 and expiring on 9 July 2000, with an additional term of two years commencing on 10 July 2000. Accordingly, at the time when the application was lodged, the relevant sentence was about to commence and the applicant has now served about three months of that sentence.

4    An adequate reason for the delay in making the application has been provided in a letter from Legal Aid New South Wales dated 25 March 1999.

5 Notwithstanding the need for urgent attention to the application, I thought it was necessary to give the Crown the opportunity of making submissions pursuant to s 474E(4). Correspondence between the registrar and the Crown Solicitor’s Office culminated in a letter dated 1 June 1999 as follows:

“My officer has considered the application lodged on behalf of the abovenamed dated 9 March 1999 and the material referred to therein. Having received the advice of junior counsel and the Crown Advocate, the Crown does not wish to file written submissions in opposition to the course suggested by the applicant (that is, to refer the matter to the Court of Criminal Appeal). The Crown would regard it as quite inappropriate to order an Inquiry.
It is accepted that the fresh material sought to be relied upon by the applicant is of a character that could satisfy the relevant test propounded by s 474E(2), particularly insofar as it relates to the words ‘a doubt or question as to …any part of the evidence in the case.”

6    As at 1 June 1999, I was engaged in a heavy criminal trial and was unable to give attention to this application. No other judge was available.

7    I agree with the submission made by the Crown Solicitor that it would be inappropriate to order an inquiry in this matter.

8 I note the observation by the Crown Solicitor that the fresh material sought to be relied upon by the applicant is of a character that could satisfy the relevant test propounded by s 474E(2), particularly insofar as it relates to the words “a doubt or question as to …any part of the evidence in the case”. Having regard to the matters stated in the letter of 9 March 1999, I am satisfied that there is such a doubt or question.

9 In terms of s 474E(1)(b) I order that the proceedings be referred to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

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Last Modified: 09/03/1999