R v Cheney

[2004] NSWSC 104

CITATION:	R v Cheney [2004] NSWSC 104
HEARING DATE(S):	N/A
JUDGMENT DATE:	10 March 2004
JUDGMENT OF:	Shaw J at 1
DECISION:	Petition Dismissed
CATCHWORDS:	Application pursuant to s474D of the Crimes Act 1900 (NSW) - Inquiry into conviction - Fresh evidence - DNA evidence
LEGISLATION CITED:	Crimes Act 1900 (NSW), s474D Criminal Appeal Act 1912 (NSW)
CASES CITED:	Application by Robert Scott Havell, Buddin J, 9 December 2003 Cheney v The Queen S286/2000 (14 December 2001) Douglas Harry Rendell (1987) 32 A Crim R 243 R v Button [2001] QCA 133 R v Cheney [1999] NSWCCA 312 R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362 R v Sing (2001) 545 NSWLR 31 Varley v Attorney-General [1978] 8 NSWLR 30
PARTIES :	Regina (Respondent) Roger David Cheney (Applicant)
FILE NUMBER(S):	SC 70047/2003
COUNSEL:	N/A
SOLICITORS:	Applicant - Self Represented Respondent - Crown Solicitor's Office

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Shaw J

10 March 2004

70047 of 2003


Regina

v

Roger David Cheney: Application Pursuant to 474D of the Crimes Act
JUDGMENT

1 Shaw J: Mr Roger David Cheney, who is incarcerated at Goulburn, has brought a petition to this Court which requires a judge to consider the terms of s 474D of the Crimes Act 1900 (NSW) and to exercise a discretion pursuant to that section. The applicant seeks an inquiry in relation to his conviction before his Honour Judge Kirkham and a jury on 8 June 1995 at the Coffs Harbour District Court.

2 An appellate review before the New South Wales Court of Criminal Appeal led to variation of the sentence on a number of counts although the appeal against conviction was dismissed by judgment of that Court delivered on 7 October 1999: R v Cheney [1999] NSWCCA 312 per Newman J, with whom Spigelman CJ and Sully J agreed. There was then an unsuccessful application for special leave to appeal to the High Court from parts of the judgment of the Court of Criminal Appeal: Cheney v The Queen S286/2000 (14 December 2001) per Gleeson CJ and Callinan J.

The Charges for which the applicant was convicted

3 The particular counts brought against the present applicant are helpfully summarised in the submissions by the Crown and I record them as follows:

Count 1: On or about 21 November, 1993 at Port Macquarie in the State of New South Wales, did take away M. with intent to hold M. to his advantage. On this count a minimum term of two years penal servitude commencing 22 June 2010 and expiring 21 June 2012 was imposed by the Court of Criminal Appeal. An additional term of eight years commencing 22 June 2012 and expiring on 21 June 2020 was also imposed.
Count 2: On or about 21 November, 1993 at Port Macquarie in the State of New South Wales, did assault M. and at time of such assault did commit act of indecency upon her, she then being aged ten years.

Count 3: On or about 21 November, 1993 at Port Macquarie in the State of New South Wales, did have sexual intercourse with M., she then being under the age of sixteen years.
Count 4: On or about 28 November, 1993 at Port Macquarie in the State of New South Wales, did enter a dwelling house of S. with intent to commit a felony therein, namely to assault a person or person thereon.
With respect to each of Counts 2, 3 and 4, on each charge a minimum term of penal servitude for two years commencing on 22 June, 2010 and expiring on 21 June, 2012 was imposed. An additional term of three years commencing 22 June, 2012 and expiring 21 June, 2015.

Count 5: On or about 28 November, 1993 at Port Macquarie in the State of New South Wales did assault M. A fixed term of penal servitude of twelve months commencing 22 June, 2010 and expiring 21 June, 2011 was imposed.
Count 6: On 7 December, 1993 at Port Macquarie in the State of New South Wales, did break and enter the dwelling house of Vacation Resorts P/L trading as “Vacation Village Resort” and therein did steal certain property, namely one lady’s handbag, one wallet, three credit cards, one purse, one silver pen, two sets of sterling silver earrings, cosmetics, one $10 note, the property of Julie Anne Cookson.
A fixed term of penal servitude for five years commencing on 22 June, 1995 and expiring on 21 June, 2000 was imposed with respect to this count.

Count 7: On or about 8 December, 1993 at Port Macquarie in the State of New South Wales, did use an offensive weapon, namely a revolver, with intent to prevent the lawful detention of himself.
A fixed term of penal servitude for seven years commencing 22 June, 1995 and expiring 21 June, 2002 was imposed.

Count 8: On or about 8 December, 1993 at Port Macquarie in the State of New South Wales, did take away A. with intent to hold A. for advantage to Roger David Cheney.

A fixed term of penal servitude for 15 years commencing 22 June, 1995 and expiring 21 June, 2010.
Count 9: On or about 8 December, 1993 at Port Macquarie in the State of New South Wales did have sexual intercourse with A., she then being under the age of ten years.
Count 10: On or about 8 December, 1993 at Port Macquarie in the State of New South Wales did assault A. and at time of such assault did commit an act of indecency on her, she then being under the age of ten years.
Count 11: On or about 8 December, 1993 at Port Macquarie in the State of New South Wales, did have sexual intercourse with A., she then being under the age of ten years.
Count 12: On or about 8 December, 1993 at Port Macquarie in the State of New South Wales, did have sexual intercourse with A., she then being under the age of ten years.
With respect to Counts 9, 11 and 12 a fixed term of penal servitude of ten years commencing 22 June, 1995 and expiring 21 June, 2002 was imposed.
With respect to Count 10, a fixed term of five years commencing 22 June, 1995 and expiring 21 June, 2000 was imposed.
Count 13: On 8 December, 1993 at Port Macquarie in the State of New South Wales, did assault Dennis Andrew Anning thereby then occasioning to him actual bodily harm.
Count 14: On 8 December, 1993 at Port Macquarie in the State of New South Wales, did assault John William Hurley thereby then occasioning to him actual bodily harm.
On each of Counts 13 and 14, the Petitioner was sentenced to a fixed term of penal servitude for three years commencing 22 June, 1995 and expiring 21 June, 1998.

4 Broadly speaking, the allegations against the petitioner fall into a number of categories. First there are incidents of sexual molestation, including forcible cunnillingus upon a nine-year-old girl. There were alleged to be other incidents involving touching of the vagina. Other allegations involved the theft of a handbag, which apparently contained a wallet, credit cards, a purse, a pen, earrings, cosmetics and a small amount of cash. Other incidents involved, it is alleged, kidnapping, indecent assault and penile penetration of the vagina, the mouth and digital penetration of the vagina.

5 The Crown relied upon alleged admissions at the time of arrest, which were not signed. The petitioner refused to participate in a record of interview or to acknowledge the accuracy of the record of the alleged admissions.

6 At trial, the petitioner alleged that police “verballed” him and/or that he was “loaded up”.

The applicant’s trial and appellate proceedings

7 There were certain concurrent criminal proceedings prior to the commencement of the trial at the Coffs Harbour District Court, in which the petitioner was indicted in March 1995. This was with respect of three counts involving maliciously inflicting actual bodily harm on a victim with intent to have sexual intercourse, alternatively an assault upon a victim occasioning actual bodily harm, and thirdly the assault of a constable occasioning actual bodily harm. The petitioner was tried by His Honour Judge Shillington sitting without a jury who found the offences to be proved, convicted the petitioner and sentenced him to a minimum term of four years and eight months penal servitude and, in relation to the third count, a fixed term of penal servitude of one year commencing on 24 March 1995.

8 Putting aside these concurrent criminal proceedings, the petitioner was sentenced on 22 June 1995 by His Honour Judge Kirkham. In the remarks upon sentence given by his Honour it was clear that the trial judge thought that there was a strong case against the petitioner. The judge characterised the petitioner as “a very resourceful criminal” and found that he had:

…committed evil crimes against these children, and that aspect of your character, combined with your resourcefulness makes you a person who might objectively be described as a very dangerous criminal.

The trial judge also found that there was a lack of repentance, or remorse, and that this meant that there was no realistic prospect of rehabilitation. In this respect, there is a concurrence between the views of Shillington DCJ and Kirkham DCJ in relation to the petitioner.

9 The petitioner has been through the hierarchy of courts in the criminal justice system and his conviction and penalty have been upheld by those superior courts.

Section 474D Crimes Act 1900 (NSW)

10 The relevant statutory provision, s 474D of the Crimes Act 1900, provides:

(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.

11 Although this matter was referred to me as an application for an inquiry into conviction in July 2003, submissions by the petitioner, in reply, were not completed until a letter dated 12 January 2004. It was obviously necessary to allow the petitioner to reply to the submissions put by the Crown Solicitor, dated 8 December 2003, against the granting of any inquiry.

12 The applicable principles in relation to the decision to grant or decline to grant such an inquiry are usefully stated by Sully J in R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362. As his Honour emphasised at [2], the statutory duty of a judge is to consider whether:

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.

13 The options are to refuse the application for an inquiry, to grant the application for an inquiry, and direct that it be conducted by a prescribed person, into the conviction or sentence, or refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). Sully J held that the guiding principles are well settled, and he said at [3]:

Put simply, the question for the judge is whether the material which has been put forward in connection with the application causes the judge unease or a sense of disquiet about allowing the relevant conviction(s) and sentence(s) to stand.

14 I accept the strength of the Crown’s submissions that the petitioner has a lengthy criminal history, and that many of the matters he seeks to advance were matters which were or should properly have been advanced at trial and on appeal. Some are matters of mere speculation and it is relevant that the petitioner was legally represented at trial and on appeal by counsel. I also accept that an application of this kind should not be used as an additional avenue of appeal: Douglas Harry Rendell (1987) 32 A Crim R 243 per Hunt J.

Applicant’s Grounds of Petition

The Police Notebooks

15 I turn now to examine the grounds upon which the petition is based. First, it is said that the police notebooks tendered at trial were fabrications. However, those notebooks were produced at trial, and were the subject of scrutiny and cross-examination by the petitioner’s legal representatives. The genuiness of the documentation was not challenged although there was a controversy about the alleged verbal admissions advanced in the Crown case. Subsequently, no appeal point was taken in relation to this issue. As the Crown submissions contend:

To accept this ground as having any credibility whatsoever would mean that one would be accepting of the fact that virtually each and every police officer who produced his notebook and/or duty book at the trial was producing false document which had not really been issued by the NSW Police to that officer.

In the application no additional material to suggest there might be any substance in the assertion has been put forward.

16 In particular, it is asserted that in 1993 the police issue notebooks were numbered on each page. However, there is force in the Crown submissions that virtually all such notebooks were produced and accessed at trial and that the legal representatives had appropriate opportunity to test the veracity of their contents. Neither at trial or appeal was there any challenge to the genuineness of the material.

Fictitious Police Officers

17 It is next said by the petitioner that certain specified police officers are “fictitious” police officers. It appears to be true that one police officer, a woman, changed her name at the time of marriage, but there is no credible evidence that the supposed fictitious officers, who in any event played a minor role in the investigation, were non-existent. I find that this submission is untenable.

18 It is next said that certain facts were not given to the defence prior to trial and that a specified officer of the Police Service was able to persuade witnesses to lie in the course of the trial. In the 1995 trial, these matters were agitated before the jury and, by reason of the conviction, one can assume that those contentions were rejected. The question as to whether the police officer in question was giving false evidence was dealt with during the trial and was expressly referred to by the trial judge who appeared to be satisfied that there was no such fabrication on the part of the police. I am unable to see any cogency in the argument that certain charges were withdrawn by the Director of Public Prosecutions, relating to five charges of break enter and steal, and it seems to me that the withdrawal of those charges was well within the discretion of the DPP given that the offences concerned allegations about events in 1993, and given the fact that a lengthy period of imprisonment had already been imposed on the petitioner.

19 Much of the “fresh evidence” relied upon by the petitioner I find unpersuasive, and insufficient to raise any doubt or unease about the conviction.

DNA Evidence

20 What is more troubling is the allegation that there is said to be fresh DNA evidence. The Crown submits that in substance and reality the petition is merely an attempt to re-agitate issues dealt with in the course of the trial and the appeal processes and that there is “no true fresh evidence disclosed.” In my view, if this Court can be persuaded that there is fresh evidence, then there is at least some arguable basis for a further inquiry.

21 I now turn to examine what the alleged fresh evidence is upon which the petitioner relies in relation to the DNA issue.

22 The petitioner asserts that DNA results he claims to be in the possession of the Police will prove his innocence. The Crown accepts that in the evidence tendered at trial there was no semen on the swabs and smears and no blood in the fingernail scrapings and, so it is said, that would explain the lack of any DNA evidence, given the state of technology in 1993. However, it seems that DNA tests were carried out prior to the trial and, accepting the limitations of DNA technology, as at the relevant time, it is nonetheless notorious that DNA material can either prove or disprove the guilt of an accused person.

23 Whilst I do not accept the petitioner’s allegation of “fabrication” in relation to the DNA evidence, there is a lack of clarity arising from the apparent controversy as to whether there was or was not DNA testing of specified persons and whether, if there was, that material was adequately available to the petitioner.

24 The petitioner asserts that the Freedom of Information officer of the relevant health service has said that she cannot release DNA results in the possession of the Department to him.

25 The material presented by the petitioner is somewhat difficult to follow, but the documents generally seem to indicate negative results from vaginal swabs with “no sperm seen.” They also indicate that certain forensic specimens relating to one of the alleged victims was handed to the police. On the other hand, a medical report of Dr Peter Bland, a specialist obstetrician and gynaecologist practising in Port Macquarie in relation to the same victim, dated 1 May 1995, indicates some form of (vaginal) penetration. The penetration (according to Dr Bland’s evidence at trial) was consistent with but not diagnostic of penetration by a penis.

26 As I have hoped to make clear, I think that much of what the petitioner says about the police evidence, the numbering of notebooks and the supposed fictitious nature of various police officers is spurious. I do see some possibility of an argument that there is fresh evidence arising from documents from the Division of Analytical Laboratories, Lidcombe Sydney and in particular from senior forensic biologist Robert Goetz. The material obtained by the petitioner subsequent to the criminal justice proceedings shows that DNA tests were performed on various items. It is asserted by the petitioner that the Crown obtained adjournments because they were waiting on DNA results. The transcripts of those proceedings are apparently unavailable.

27 By letter dated 30 January 2003, the Western Sydney Area Health Service indicated that that Service did have possession of certain documents in relation to the request by the petitioner for DNA samples produced by other Government agencies, such as the Police Service. The petitioner was referred to the Freedom of Information officer of the NSW Police Department for approval to access these documents. In a report dated 24 January 1994 Mr Goetz certified that in relation of some black track pants no blood was detected. On 1 March 2002, the petitioner wrote to Mr Goetz requesting the DNA documentation, but Mr Goetz said that he was unable to respond to the request and asked the petitioner’s legal representatives to instigate the correct procedures to access the documentation. He suggested that, in the absence of a solicitor, inquiry should be made of the Innocence Panel, an organisation established to investigate older cases. He indicated that he had passed on the petitioner’s request to the legal branch for further opinion.

28 The critical question is whether there is a doubt or question as to the petitioner’s guilt, that is, whether the court has a sense of “unease” in allowing the conviction to stand: Varley v Attorney-General (NSW) (1987) 8 NSWLR 30; Application by Robert Scott Havell, Buddin J, 9 December 2003.

29 The utility of DNA evidence to prove or disprove guilt remains a topic of some debate: see, for example, Graham Hazlitt, “DNA Statistical Evidence: Unravelling the Strands” (2002) Vol 14, No 9, Judicial Officers Bulletin, p 66. Some commentators argue that DNA profiling is of great assistance to crime investigations and the justice system generally: see, for example, R v Button [2001] QCA 133, although care needs to be taken in relation to such evidence, particularly as to the identification of samples which requires evidence from the those who carried out the procedures: R v Sing (2001) 54 NSWLR 31.

30 In the circumstances of the present application, I see a tangible difficulty in granting an inquiry without knowing any real or precise details about the DNA testing or, more importantly, the results of it. Because the relevance and nature of the DNA material is unknown to me, I am unable, to form the requisite unease or sense of disquiet in relation to the conviction.

31 I accept the Crown’s submissions that there is no real evidence of police corruption and that, in any event, there was a powerful circumstantial case against the petitioner. Moreover, there was, as the Crown argues, opportunity for the petitioner and his legal representatives to investigate and test the medical evidence, including the tendered report of Mr Goetz of 16 December 1993, tendered at trial.

Orders

32 Accordingly, having regard to the material before me, I decline to direct that an inquiry be conducted.

33 The petition is dismissed.

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Last Modified: 03/10/2004