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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cheney

Details

AGLC: R v Cheney [2004] NSWSC 104
Case: [2004] NSWSC 104
Decision Date: 10 March 2004

CaseChat Overview and Summary

The parties involved in this case were the appellant, Cheney, and the respondent, the Director of Public Prosecutions. The dispute arose from an application by Cheney to have his conviction reviewed due to the introduction of new evidence, specifically DNA evidence, which was not available at the time of his trial. The case was heard in the New South Wales Court of Criminal Appeal.

The primary legal issues before the court were whether the new DNA evidence was indeed fresh evidence as defined under section 474D of the Crimes Act 1900 (NSW) and whether such evidence warranted a review of the conviction. The court had to determine if the new evidence had the potential to undermine confidence in the outcome of the trial. Additionally, the court needed to assess the reliability and admissibility of the DNA evidence, considering it had not been available at the time of the original trial.

The court examined the nature of the DNA evidence and its potential impact on the conviction. It found that the DNA evidence was indeed fresh, as it was not available at the time of the original trial and could reasonably be expected to have an impact on the conviction. The court emphasised the importance of ensuring that the evidence was reliable and admissible. After a thorough analysis, the court concluded that the new DNA evidence was compelling and had the potential to significantly undermine confidence in the original conviction. Consequently, the court allowed the application for a review of the conviction.

The court ordered a re-trial, directing that Cheney be brought before a different jury to reconsider the charges against him based on the totality of the evidence, including the newly available DNA evidence. This decision underscored the importance of ensuring the integrity of the criminal justice system and the need to consider new evidence that may emerge post-conviction.

Orders