Sinkovich v Attorney General of New South Wales

The case of *Sinkovich v Attorney General of New South Wales* was heard by the Court of Appeal of New South Wales, comprising Bathurst CJ, Beazley P, Basten JA, Price and Beech-Jones JJ. The dispute concerned the applicant's attempt to seek a judicial review of a decision by a judge of a superior court to refuse to direct an inquiry under Part 7 of the *Crimes (Appeal and Review) Act 2001* (NSW). The applicant sought to quash this refusal and compel the judge to determine the application according to law, or alternatively, sought declaratory relief.

The central legal issues before the Court of Appeal were whether the Supreme Court had the power to review the administrative function of a judge in refusing to direct an inquiry under the *Crimes (Appeal and Review) Act 2001* (NSW), and if so, what form of relief was available. This involved considering the scope of the Supreme Court's supervisory jurisdiction, particularly in relation to decisions made by judges in their administrative capacity, and the interpretation of the provisions within Part 7 of the Act concerning the grounds for directing an inquiry. The court also had to determine whether an error of law made by a sentencing judge or the Court of Criminal Appeal could constitute a "doubt or question" as to circumstances having the potential to mitigate the sentence, thereby triggering the power to order an inquiry.

The Court of Appeal reasoned that an error of law on the part of the sentencing judge or the Court of Criminal Appeal, which may have led to a more severe sentence, could indeed form the basis of a doubt or question as to mitigating circumstances for the purposes of an inquiry under s 78 of the *Crimes (Appeal and Review) Act 2001* (NSW). The court clarified that the definition of "inquiry" and the circumstances giving rise to a "doubt or question" should be interpreted expansively. Consequently, the Court made a declaration to this effect, affirming that such errors of law are relevant to the consideration of an application for an inquiry under the Act.