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 Count 1: sexual intercourse without consent 1. The Crown case was that on 5 June 2003 the applicant had sexual intercourse with Cassie Kennedy without her consent at his home at Bradbury. Ms Kennedy, who had a mild learning disability, had been staying with the applicant for the preceding three days. According to Ms Kennedy, the applicant pulled her to the floor by the hair, asked her to suck his penis, pulled her onto the bed, put his penis inside her and asked if he could ejaculate in her mouth or on her stomach. 2. There was an issue in the trial about how long they were alone together at the applicant's house. The Crown case was that they were alone from 2pm until 4.30pm. The applicant's case was that he and Ms Kennedy were alone for only about five minutes before Ms Evans, the applicant's girlfriend, arrived. 3. The applicant was arrested and interviewed on 24 June 2003. Counts 2 and 3: attempting to pervert the course of justice 1. It was the Crown case that on 2 July 2003 the applicant called a friend, Ms Ormiston, and told her of Ms Kennedy's allegations. He asked Ms Ormiston to say that she was with him all day on 5 June 2003 (Count 2). She refused. The Crown alleged that he reiterated the request on 17 July 2003, explaining that it would make it easier for him in court (Count 3). Again she refused, as a result of which the applicant made threats against her and her family. The basis for the application The application in respect of Count 1 1. The applicant alleged that "significant fresh evidence" has come to light that raises a doubt about the credibility of Ms Evans. He said: "My Ex-partner gained permission to still live with me during the trail [sic] despite being a Crown Witness in the trial due to her being pregnant with our child. This can be seen as a motive to lie in her statements to the court, as she gained Fully Custody of My daughter after I was imprisoned. On the 14th of November 2003, 12th January, 17th and 28th of March 2006 different statements all of which were sent into me by her, via the mail during my incarceration, each of these statements have varying stories as to her part of the case. Within these statements that my Ex-partner sent into me she has stated that her and her mother were 'disallowed' by the Police to put evidence forward to prove my innocence at my trial and that the police harassed her mother into making statements while not being well enough in her health to make clear and accurate statements as well as stating that I wasn't read my rights when I was arrested and that evidence was 'Omitted' by the Police in regards to her evidence that she gave them." 1. In order to assess the application in respect of Count 1 it is necessary to address the four statements of Ms Evans relied upon as constituting grounds to make an order under s 79(1). The first statement of Vanessa Evans dated 14 November 2003 1. In her statement of 14 November 2003 Ms Evans referred to her statement to police made on 24 June 2003 and said (at [6]): "In paragraph 6 I stated that [sic] could not recall whether my mother had picked me up form [sic] mission employment and returned home or I caught a bus back to Alarn's house. In conversation with my mother since, my mother definitely recalls that she did not pick me up from the Mission employment office that day. I must have returned to Alarn's house as I recall having coffee that afternoon with Alarn, Bernie, Cassie and John. To the best of my knowledge I recall having sex with Alarn that afternoon the 5th June 2003 prior to Bernie arriving." 1. In her sworn evidence at the trial in June 2004 Ms Evans said that she could not recall whether she had gone to Mission Employment that day. That being so, the passage set out above amounts to no more than speculation as to what occurred, and when, on 5 June 2003. 2. Furthermore, at [8] of the statement of 14 November 2003, she said: ". . my father advised me to have no more to do with the police and we would continue to have the solicitor representing Alarn introduce this statement to the court." 1. It is reasonable to infer from that passage that the applicant's legal representatives had access to the statement of 14 November 2003. The accused's counsel could have used it to cross-examine her at trial had there been any forensic advantage in so doing. The second statement of Vanessa Evans dated 12 January 2004 1. In her statement of 12 January 2004, Ms Evans refers to occasions, all of which pre-dated the trial, on which Ms Kennedy is said to have approached the applicant. The applicant necessarily knew of these occasions, which could, accordingly, have been put to Ms Kennedy in cross-examination with a view to impugning her credibility. The importance of Ms Evans' evidence was to establish these occasions, if they were denied by Ms Kennedy. The statement itself, or at least the substance of the events recorded in it, can be taken to have been available to the applicant at the time of the trial. The third statement of Vanessa Evans dated 17 March 2006 1. In this statement (at [12]) Ms Evans said that when her mother, Valerie Evans, was first interviewed by NSW Police, Mrs Evans made it clear that "she could not verify any details, as she was suffering ill health and had been undergoing radiation treatment for a form of cancer. This had affected her memory and overall functioning." Ms Evans also said that her mother felt "harassed" by Police to make a statement that would help convict the applicant. According to Ms Evans, her mother said that "even though she did not like Alarn she would not lie for anyone". 2. Mrs Evans' evidence at trial was that she was Vanessa's mother and that Vanessa would usually but not always sleep at her place in June 2003. She recalled collecting Vanessa from the applicant's place on occasions when Vanessa asked her to, but did not recall dates on which this occurred. In these circumstances the evidence of Mrs Evans was of limited weight. It was neutral in that it did not advance either the Crown or the applicant's case. There is no basis for inferring that Mrs Evans' evidence was other than true or that her evidence assisted the Crown to establish the applicant's guilt. The fourth statement of Vanessa Evans dated 28 March 2006 1. In her statement dated 28 March 2006 Ms Evans said that, despite repeatedly approaching the Police, she was not permitted to make further statements about the matter and that Detective McGarry omitted these further matters from her original statement. Because Ms Evans gave oral evidence at the trial she had both an opportunity and an obligation to tell the truth as she saw it, irrespective of what was contained in her statements. Because of the constraints imposed by the laws of evidence, the Crown would not, without the consent or acquiescence of the applicant's counsel, have been permitted to adduce her evidence by leading questions. Accordingly, I would not infer that she had given other than truthful evidence at the trial, regardless of whether her statements to Police incorporated all that she told them. 2. I note that the applicant has adopted inconsistent positions with respect to Ms Evans' evidence. On the one hand, he contended that she could not say what she wanted to say because of the conduct of Police. On the other hand, he argued that she had a motive to lie about him to assist in obtaining a conviction so that she could get sole custody of their daughter. These positions are irreconcilable. Other matters 1. The applicant has raised other matters in support of his application but I do not propose to address them since they amount to a reiteration of the matters relied on in his case at trial, which included that that there was no forensic evidence to corroborate Ms Kennedy's allegation that she had been forced to have sex and that her evidence, being uncorroborated, ought not to have been accepted. This aspect of her evidence was covered by a direction by the trial judge which the jury must be taken to have followed: Demirok v The Queen (1977) 137 CLR 20 at 22 per Barwick CJ. 2. Another matter raised was the alleged physical impossibility of the act, having regard to his then erectile dysfunction. The applicant relied on a report of Dr McCroary dated 4 June 2004 in which its author described the applicant's penis. This was relied on as a basis for comparison with the sketch Ms Kennedy made. These were matters which were raised at trial and accordingly do not arise for consideration as part of this application. Conclusion with respect to count 1 1. In respect of the first count, I do not consider the applicant has raised any doubt or question about his guilt or any mitigating circumstances as to any evidence in the case for the purposes of s 79(2) of the Act. Accordingly, there is no basis for this Court to take action under s 79(1). The application in respect of counts 2 and 3 1. The applicant contended that there is a doubt or question that arises in relation to Ms Ormiston's evidence. He said: "Another ground for this appeal against my conviction is the fact that the alleged victim of the 2 counts of Perversion Of The Course of Justice, who was also a crown witness to the Sexual Assault Without Consent of An Adult, was found guilty of False Accusation when a week after I was released from prison, she tried to accuse me of assaulting her and it was found that I was in a parole ordered appointment with my Psychologist and that I was NOT present at the time. She was found GUILTY of False Allegations against myself and the arrest was by the same Detective that arrested me in regards to the charges I am Appealing against, Detective Dean McGarry" (application at [6]." 1. As I understand this submission it is that Ms Ormiston made a false allegation against the applicant after his trial, as a result of which it can be concluded that her evidence at the trial ought not to have been accepted by the jury. There is no evidence before me to support the applicant's assertion that Ms Ormiston made a false allegation. However, if she did, the applicant alleged that it was made a week after his release, which was at least three and a half years after his trial. Even if such an allegation had been made and was false this would not retrospectively affect the evidence she gave or her credibility at the trial. Moreover, her evidence at trial was corroborated by telephone records which can be assumed to have been taken into account by the jury in its assessment of whether the Crown had proved counts 2 and 3 beyond reasonable doubt. Conclusion with respect to counts 2 and 3 1. In respect of the second and third counts, I do not consider the applicant has raised any doubt or question about his guilt or any mitigating circumstances as to any evidence in the case for the purposes of s 79(2) of the Act. Accordingly, there is no basis for this Court to take action under s 79(1). Conclusion 1. I am not satisfied that any of the facts or circumstances relied upon by the applicant justify the taking of further action under s 79. Accordingly, the application is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2015