Application by Serge Zhura pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2024] NSWSC 198

Supreme Court New South Wales

Medium Neutral Citation: Application by Serge Zhura pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2024] NSWSC 198 Hearing dates: Application determined on the papers Date of orders: 5 March 2024 Decision date: 05 March 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) Decline to direct an inquiry under section 79(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW). (2) Refuse to refer the whole case to the Court of Criminal Appeal pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). (3) Dismiss the application for review of the convictions and sentences. Catchwords: CRIMINAL LAW – application for review of conviction and sentence – sexual touching – common assault – "groping" – three separate victims – offences committed on the dancefloor of nightclub – associated offences of assaulting security staff and resisting police – two separate incidents – second incident occurred when applicant on bail for the first incident – applicant with psychological issues – no previous convictions – offences out of character – whether case should have been diverted under mental health legislation – whether convictions should have been recorded – where matter considered carefully by Magistrate – where appeal to District Court succeeded in part – rejection of ambitious submission made by lawyer in District Court that objective seriousness less because nightclubs "sexually charged arenas" – where solicitor "struggled to find the words" to articulate submission – whether appearance of doubt or question around conviction or sentence – nature of jurisdiction – whether Court should refuse to consider application because issues fully considered in courts below – discretionary decision to consider case on its merit – application dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 58, 61, 61KC(a) Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 ss 78, 79, 79(1)(a), 79(3), 79(3)(a), 79(3)(a)(i), 79(3)(a)(iii), 79(3)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 10A Liquor Act 2007 (NSW), s 77(4) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, Div 2 ss 12, 14, 15 Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 (Repealed) Cases Cited: Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623 Application by Paul Scott Howes pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2023] NSWSC 418 Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1) [2015] NSWSC 291 Buttrose v Attorney General of NSW (2015) 324 ALR 546; [2015] NSWCA 221 Clark v Attorney General of New South Wales [2020] NSWCA 70 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 GAR v Attorney General for the State of New South Wales (No. 3) [2020] NSWCA 179 GIBSON, Scott — Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577 Huynh v R (2021) 105 NSWLR 384; [2021] NSWCCA 148 Khoury v R (No 1) [2021] NSWDC 434 Li v Attorney General for New South Wales [2018] NSWSC 674 Li v Attorney General for New South Wales (2019) 99 NSWLR 603; [2019] NSWCA 95 Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061 Preston v R [2023] NSWDC 362 Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 Category: Principal judgment Parties: Serge Zhura (Applicant) Attorney-General for New South Wales (Respondent) Representation: Serge Zhura (Self-represented) Crown Solicitor's Office (Respondent) File Number(s): 2023/0082530