Application of Michael Anthony Gleeson under the Crimes Act 1900 s 474D Crimes (Appeal and Review) Act 2001 s 78 [2008] NSWSC 200

New South Wales Supreme Court

CITATION : Application of Michael Anthony Gleeson under the Crimes Act 1900 s 474D Crimes (Appeal and Review) Act 2001 s 78 [2008] NSWSC 200

JUDGMENT DATE : 17 January 2008

JUDGMENT OF : Price J at 1

DECISION : Application refused.

CATCHWORDS : Application for judicial inquiry into conviction - fourth application - matter fully dealt with previously - no special facts or special circumstances.

LEGISLATION CITED : Crimes Act 1900 s 61E (1A), s 61D, s 76, s 474D, s 474E Crimes (Appeal and Review) Act 2001 s 78, s 79,

CATEGORY : Principal judgment

CASES CITED : Varley v The Attorney General in and for the State of New South Wales (1987) 8 NSWLR 30

PARTIES : Michael Anthony Gleeson

FILE NUMBER(S) : SC 72017/06

SOLICITORS : Mr Abadee for Director of Public Prosecutions. Michael Anthony Gleeson

LOWER COURT JURISDICTION : District Court

LOWER COURT DATE OF DECISION : 13 August 1993

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PRICE J

17 January 2008

72017/06 THE APPLICATION OF MICHAEL ANTHONY GLEESON CRIMES ACT S.474D, CRIMES (APPEAL AND REVIEW) ACT S.78

DETERMINATION 1 HIS HONOUR: This is the fourth application by Michael Anthony Gleeson under s 474D of the Crimes Act 1900 into his convictions in the District Court of New South Wales on 13 August 1993. 2 The applicant on 12 May 1993 was indicted on nine counts of sexual assault against his stepdaughter. He pleaded not guilty to counts three, and five and the Crown accepted pleas of guilty to the remaining counts in full discharge of the offences charged in the indictment. 3 Counts one and two were charges of indecent assault under the now repealed s 76 of the Crimes Act. Count one involved the applicant having a shower with his stepdaughter, rubbing oil on her, masturbating and ejaculating onto her stomach. Count two involved the applicant rubbing oil on her, rubbing her vagina and masturbating in her presence. At the time of these offences she was eight years old. 4 Counts four, six and seven were charges of sexual intercourse without consent under the now repealed s 61D of the Crimes Act. Count four involved the applicant rubbing his stepdaughter with oil, inserting his finger into her vagina and masturbating in her presence. She was then eight years old. The offending conduct in count six involved rubbing oil on his stepdaughter's breasts and his own penis, inserting his finger in her vagina and masturbating in her presence. She was then aged nine or ten years. Count seven involved the applicant inserting his penis into his stepdaughter's mouth. She was then ten years old. 5 Count eight which was a charge of indecent assault under authority pursuant to the now repealed s 61E(1A) of the Crimes Act involved the applicant putting his penis on her back. She was then fourteen years old. Count nine was also a charge under s 61E(1A). The offence involved placing a hand on her breast. 6 On 13 August 1993, Newton DCJ sentenced the applicant in relation to each of the fourth, sixth and seventh counts in the indictment to four and a half years penal servitude. A minimum term of three years was set. In relation to counts one, two, eight and nine, the applicant was sentenced to a fixed term of imprisonment of two years. All sentences were to be served concurrently. The applicant was to be eligible for release on 12 August 1996. 7 During the sentencing hearing, a document which Newton DCJ referred to as "a useful summary of the dates, places, charge/sections, penalties (in some cases) and actions/evidence of the seven counts" was admitted by consent and marked exhibit E. The applicant was legally represented during the proceedings on sentence. His Honour went on to remark: " The facts, of course, are also clearly and fully set out in other exhibits" (ROS at p2). 8 In Regina v Michael Anthony Gleeson (Court of Criminal Appeal, 21 February 1996, unreported) an application for extension of time in which to appeal against the convictions was granted but leave to appeal was refused. The applicant had argued that had the matter proceeded to trial he may not have been convicted principally for the reason that he claimed the police record of interview was not voluntary. Ireland J (with whom Gleeson CJ and Meagher JA agreed) described the prosecution case as being "extremely strong" even if the record of interview was ignored. His Honour had earlier set out the applicant's evidence before Newton DCJ when he was asked by his counsel how he now felt about the offences to which he had pleaded and towards his stepdaughter (the victim) who was present in Court. His answer was: "A. Well, I'd like to firstly apologise before the Judge and the court and the girl, that I'm very sorry that it happened. And there is nothing I can do to take back what's happened. I've apologised to her before. But I just want to make it public now that I'm very sorry it happened." 9 In cross-examination he was asked did he accept complete responsibility for his actions against the victim and he said "A. Yes, I do. I do":