Application by Alarn Scott McCormick pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2015] NSWSC 708

Supreme Court New South Wales

Medium Neutral Citation: Application by Alarn Scott McCormick pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2015] NSWSC 708 Hearing dates: On the papers Decision date: 04 June 2015 Jurisdiction: Common Law Before: Adamson J Decision: Application refused. Catchwords: CRIMINAL LAW – application pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), s 78 – applicant convicted by a jury of one offence against Crimes Act 1900 (NSW), s 61I and two offences against Crimes Act, s 319 – whether applicant has demonstrated that there is a doubt or question as to his guilt, as to any mitigating circumstance or as to any part of the evidence in relation to any of the three offences – no question of principle – application refused Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 319 Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79 Cases Cited: Application of Peter James Holland under s.78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Demirok v The Queen (1977) 137 CLR 20 Texts Cited: --- Category: Principal judgment Parties: Alarn McCormick (Applicant) Crown Solicitor's Office (NSW) (Respondent) Representation: Unrepresented (Applicant) Crown Solicitor's Office (NSW) (Respondent) File Number(s): 2014/325863-1 Publication restriction: ---

Judgment

Introduction 1. Alarn Scott McCormick (the applicant) applies under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for an inquiry into his convictions after a trial by jury of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) and two counts of doing an act to pervert the course of justice contrary to s 319 of the Crimes Act. 2. In respect of the first count the applicant relies on four statements of Vanessa Evans dated 14 November 2003, 12 January 2004, 17 March 2006 and 28 March 2006. 3. In respect of the second and third counts the applicant relies on what he contended was the diminished credibility of Leanne Ormiston, on whose evidence the Crown case depended. Applicable law 1. Part 7 of the Act relevantly provides: "78 Applications to Supreme Court (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. … 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that 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. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. ... (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application..." 1. The principles applicable to the consideration of applications under s 79 were reviewed by Johnson J in Application of Peter James Holland under s.78 of the Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251: "[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore [2000] NSWSC 364; 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. [8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. [9]The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat [2005] NSWSC 920; 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result." Factual background