Supreme Court New South Wales Medium Neutral Citation: Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260 Hearing dates: On written submissions Decision date: 17 March 2016 Jurisdiction: Common Law Before: Button J Decision: (1) The application of Dragan Cvetkovic of 25 June 2015 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused, except in accordance with order 2. (2) Pursuant to s 79(3A)(c) of the Crimes (Appeal and Review) Act 2001 (NSW), the application is deferred for further consideration by me, but only with regard to the issue of whether a "Muldrock error" affected the sentence at first instance. Catchwords: CRIMINAL LAW - application for inquiry into conviction and sentence following conviction - Pt 7 of the Crimes (Appeal and Review) Act 2001 – whether Muldrock error at first instance – application with regard to sentence deferred with regard to a specific aspect Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 78(1), 79(3)(a)(i), 79(3A)(c) Criminal Appeal Rules (NSW), r 23C(c) Cases Cited: Aldous v R [2012] NSWCCA 153 Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342 Application of Ivan Robert Marko Milat under s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Cvetkovic v R [2010] NSWCCA 329 Cvetkovic v R [2013] NSWCCA 66 Cvetkovic v The Queen [2011] HCASL 133 Cvetkovic v The Queen [2013] HCASL 131 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 Kentwell v The Queen [2014] HCA 37 M'Naghten's Case [1843] 8 ER 718 Muldrock v R [2011] HCA 39 Pfitzner v R [2010] NSWCCA 314 R v Porter (1933) 55 CLR182 R v Youssef (1990) 50 A Crim R 1 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Ryan v R [1967] HCA 2; (1967) 121 CLR 205 Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Dragan Cvetkovic (Applicant) Attorney-General of New South Wales (Respondent) Representation: Counsel: T Hammond (Respondent) Solicitors: Self-represented (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2015/191159 Judgment Introduction 1. This is an application brought by Mr Dragan Cvetkovic (the applicant) for an inquiry into a conviction and sentence, pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act). It relates to an offence of wounding with intent to murder that is said to have occurred on 6 June 2007. The applicant was found guilty of that offence by a jury in the District Court of New South Wales at Sydney on 22 July 2009; convicted of it on 7 August 2009 by her Honour Judge Sweeney; and, on the same date, sentenced by her Honour to a head sentence of imprisonment for 17 years and 4 months, with a non-parole period of 13 years, each to date from 6 June 2007. Legislation 1. It is convenient first to set out the relevant portions of the Act: Division 3 Applications to Supreme Court 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. (3A) The Supreme Court may defer consideration of an application under section 78 if: … (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. … (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. … 80 Inquiries An inquiry is to be conducted as soon as practicable after a direction for it has been given under section 77 or 79. … Division 5 Court of Criminal Appeal 83 Definitions In this Division: Court means the Court of Criminal Appeal. … 86 Reference to Court under section 77(1)(b) or 79(1) (b) following petition to Governor or application to Supreme Court On receiving a reference under section 77(1)(b) or 79(1)(b), the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly. … Test to be applied 1. With regard to the test that I am to apply to the material placed before me, in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251, Johnson J said at [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]. 1. I respectfully adopt that formulation. I have therefore approached my task on the basis that, having read all the material with which I have been provided, I should ask myself whether I feel a sense of unease or disquiet about the conviction entered, or the sentence imposed, or both. Grounds of application 1. The applicant prepared the documents upon which he relies himself. Indeed, he has been, as I understand it, unrepresented throughout all of the litigation to do with this matter. 2. The following grounds were set out in Part 3 of the written application of 25 June 2015 (some bolding has been deleted, but otherwise the passages are verbatim): 3.1 On Conviction [1] Ground 1: The prosecutor did not prove its case beyond reasonable doubt. Both expert witnesses in psychiatry allowed for possibility that my act in stabbing my wife and myself was involuntarily. The evidence of my behaviour (i) immediately before the incident, (ii) during the incident, (iii) immediately after the incident, (vi) in the week before the incident, (v) on the day of the incident and (vi) shortly after the incident substantially supports lack of guilt even on the balance of probabilities standard. The state of evidence and the law warrant acquittal. [2] Ground 2: Nine false or misleading exhibits admitted in to evidence in the trial and the actual bias of the trial judge amount to substantial miscarriage of justice and warrant retrial. 3.2 On Severity of Sentence [3] Ground 3: The sentence imposed by the trial judge was manifestly excessive and unduly harsh as it could be inferred from: [a] 10 specific mitigating factors: s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 NSW; [b] 6 additional objective or subjective factors that affect the relative seriousness of the offence; Section 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999 NSW; [c] Severity of sentences given in 6 similar cases. [4] Ground 4: General deterrence: The trial judge erred in law and fact by including, or not excluding, general deterrence as it has little, if any, weight, as I was suffering from the major depressive illness at the relevant time and as such I was not an appropriate medium for making an example to others. [5] Ground 5: Standard non-parole period imposed by the trial judge was too excessive: Muldrock's Case (Muldrock v The Queen [2011] HCA 39). 1. As well as that, although not identified as a ground, the applicant also sought to rely upon "new evidence", as follows: PART 4: SUBMISSIONS ON NEW EVIDENCE [6] Victims compensation: Provisional Order for Restitution issued by the Commissioner of Victims Rights, Victims Services, file No. RT 145136, Debt No Do80574 dated 11/05/2015, enclosed as Annexure at page 34. For relevance see paras [84] and [85] below. Material placed before me 1. The applicant relied upon the following filed material. 2. First, the document entitled "Application for an Inquiry into Conviction and Sentence" to which I have already referred. This consisted of 43 pages. It included the grounds, extensive written submissions, and an overview of the transcripts and exhibits of the trial (that document seemed in truth to be a certificate pursuant to r 23C(c) of the Criminal Appeal Rules (NSW). 3. Secondly, a document entitled "Provisional Order for Restitution". 4. Thirdly, a statement of an ambulance officer of 11 July 2007. 5. Fourthly, photocopies of a number of photographs, showing a woman in a hospital bed (whom one can infer is the victim), a damaged piece of clothing (which one can infer was the victim's), and a large number of sutured wounds to the back and shoulders of a person (whom one can infer is also the victim). 6. Fifthly and finally, the submissions previously made by the applicant in an unsuccessful appeal against conviction to the New South Wales Criminal Court of Appeal. 7. I received the following from the Attorney-General of New South Wales in opposition to the application. 8. First, written submissions prepared by counsel, pursuant to s 79(4) of the Act. 9. Secondly, copies of the following authorities referred to in those submissions: Cvetkovic v R [2010] NSWCCA 329; Cvetkovic v The Queen [2011] HCASL 133; Cvetkovic v R [2013] NSWCCA 66; Muldrock v R [2011] HCA 39; Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342; and Kentwell v The Queen [2014] HCA 37. 10. It is immediately noteworthy that the applicant has not provided me with a transcript of the trial, the summing-up, or copies of the exhibits tendered in the trial. It is true that he has provided me with an overview of the transcript, but it contains no useful detail. 11. As well as that, the overview certifies that the transcript and exhibits are available from the Registrar of the District Court at Sydney. Contrary to the position seemingly adopted by the applicant, I do not consider it my role to pursue those documents that may be relevant to the application. Pursuant to the legislation, it is the role of the applicant to place material before me in support of the application, and the role of the Attorney-General to place written submissions to the contrary before me, if the Attorney-General wishes to do so. 12. Nor have I been provided by the applicant with a transcript of the proceedings on sentence, copies of the exhibits on sentence, or a copy of the remarks on sentence. The written submissions of counsel do quote a number of portions of the remarks on sentence, but by no means the entirety of them. Procedural background 1. This relatively simple matter has been the subject of a great deal of litigation. I now set out a summary of that litigation, bearing in mind that I do not have the materials to which I have referred above. 2. As I have said, the offence leading to the conviction was committed on 6 June 2007. 3. It seems that a pre-trial hearing of six days' duration was conducted in the District Court at Sydney in March 2009. It seems there were further pre-trial proceedings on 18 May 2009, and that a jury was empanelled on 19 May, but discharged on 20 May 2009. 4. On the latter date, the trial that led to the conviction commenced. The applicant was arraigned on three counts, on two of which he was acquitted. Because those acquittals do not form any part of the application, I shall not discuss them further. 5. As I have said, a verdict of guilty on the count of wounding with intent to murder was returned on 22 July 2009, and the applicant was sentenced on 7 August 2009. 6. From 19 to 22 July 2010, an appeal against conviction was heard in the Court of Criminal Appeal of New South Wales. It was unanimously dismissed on 21 December 2010: see Cvetkovic v R [2010] NSWCCA 329. 7. On 8 June 2011, an application for special leave to appeal to the High Court of Australia against that conviction was refused on the written submissions: see Cvetkovic v The Queen [2011] HCASL 133. 8. On 23 November 2011, the applicant made a written application to the Governor of New South Wales petitioning for the exercise of the Royal prerogative of mercy. Her Excellency declined the application. 9. On 1 October 2012, the applicant made a further written application to the Governor, which was treated as an application under Pt 7 of the Act. That was deferred until a pending application for leave to appeal against sentence was dealt with fully. 10. On 5 March 2013, an application for leave to appeal against sentence was heard in the New South Wales Criminal Court of Appeal. On 3 April 2013, it was unanimously dismissed: see Cvetkovic v R [2013] NSWCCA 66. 11. On 14 August 2013, the High Court refused special leave with regard to the application for leave to appeal against sentence on the written submissions: see Cvetkovic v The Queen [2013] HCASL 131. Thereafter, the second petition to the Governor was declined. 12. I interpolate to say that the history that I have summarised above sharply raises whether s 78(3) applies. In particular, if it be the case that the applicant is seeking simply to reagitate a matter that has already been agitated and rejected in the appeals against conviction and sentence, and the applicant cannot point to any special facts or circumstances, there must be a real question whether I should refuse to consider some or all of the application: see Application of Ivan Robert Marko Milat under s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 at [19]-[22]. Evidential background 1. I turn now to set out the understanding of the trial and proceedings on sentence that I have been able to develop from the material placed before me, bearing in mind the absence of the materials to which I have referred. 2. According to the judgment of the Criminal Court of Appeal in 2010, it was undisputed at trial that, on 6 June 2007, the applicant stabbed his wife repeatedly whilst the two of them were sitting in a motor vehicle in a car park, he in the driver's seat and she in the front passenger seat. The "defence" relied upon at trial was sane automatism. To express that concept more correctly, the applicant submitted to the jury that they would have a reasonable doubt about whether the Crown had proven that the stabbing had been committed voluntarily; that is, by way of willed movements of his muscles: see generally Ryan v R [1967] HCA 2; (1967) 121 CLR 205. 3. The defence that he was not guilty on grounds of mental illness was not relied upon by the applicant. That meant that he was contending that he should be acquitted outright, and not detained indefinitely in a mental hospital. It also meant that the evidence upon which he relied to raise a reasonable possibility that his acts were not voluntary could not encompass a defect of reason, arising from a disease of the mind, that led him to fail to understand the nature and quality of his act, or fail to appreciate that it was wrong: see M'Naghten's Case [1843] 8 ER 718; R v Porter (1933) 55 CLR 182; and R v Youssef (1990) 50 A Crim R 1. If it did, he would be not guilty on the ground of mental illness, and subject to indefinite detention. 4. The Crown case included a number of powerfully probative pieces of evidence that the stabbing was indeed voluntary. 5. First, it was not disputed that, on the day of the stabbing, the applicant had been told that his marriage was definitely at an end, in a context of longstanding acrimony. That provided evidence of motive. 6. Secondly, it was not disputed that the applicant had stabbed the victim with a "gyprock saw" that he had brought with him to the meeting with the victim. It was secreted in a bag that was in his possession. He had purchased it the day before. Those undisputed facts provided evidence of premeditation and planning. 7. Thirdly, it was not disputed that, after inflicting injuries to the victim, the applicant inflicted injuries upon himself in a purported suicide attempt. Those events provided evidence that the mind of the applicant was engaged with his actions, in that murder/suicide in the context of relationship breakdown is, regrettably, not particularly rare. 8. Fourthly, it was not disputed that, after the stabbing, the applicant started the motor vehicle, engaged its gears, and drove it, thereafter hitting a police officer in the leg and colliding with several vehicles whilst driving towards the exit of the car park. That was powerful evidence that, immediately after the events in question, he was not acting as an automaton. 9. Fifthly, the applicant was apprehended at the scene, and shortly thereafter examined by an ambulance officer. He was assessed as having a Glasgow Coma Score of 15; that is, a completely uncompromised state of consciousness. 10. Sixthly, in a recorded interview later that evening, the applicant said "I wanted to cut pain and suffering that we exposed for years [sic] and terminate our lives. I do realise that this probably from someone else's perspective is wrong but I felt that this is only option for my life". That recorded statement of the applicant was powerful evidence that, at the time of the stabbing (and subsequent suicide attempt) he was acting with the intention of bringing about the results that he desired: namely, the death of the victim and thereafter himself. That admission was completely contrary to the proposition that the stabbing was involuntary. 11. Seventhly, the eminent forensic psychiatrist Dr Nielssen was called in the Crown case. He expressed the opinion that, although the applicant was suffering from depression on the day in question, he did not have available to him the defence of mental illness. Nor did Dr Nielssen consider that the applicant was affected by sane automatism on the day of the stabbing. 12. Turning to the defence case, the applicant gave evidence. He also called as a witness another eminent forensic psychiatrist, Dr Westmore. Dr Westmore gave evidence (despite the fact that it was not the case for the applicant) that the applicant did indeed have available to him the defence of mental illness. On the other hand, Dr Westmore did not consider that the applicant was subject to sane automatism at the time of the stabbing. 13. In other words, no psychiatrist gave evidence in the trial that he or she was of the affirmative opinion that, at the time of the stabbing, the applicant was subject to sane automatism. And there is no material to suggest that, before or after that time, any psychiatrist has ever expressed that opinion. Ground one - conviction 1. It is in that context of a number of separate aspects of the evidence that spoke powerfully of a voluntary, indeed pre-meditated and motivated stabbing, that the applicant made a number of written submissions in support of ground one. 2. First, he submitted that, in cross-examination, both Dr Nielssen and Dr Westmore allowed for the possibility that the stabbing may have been automatic. 3. Secondly, an offer to drive the victim some distance, made by the applicant shortly before the stabbing, suggests that he was not intent on doing her any harm. 4. Thirdly, the fact that he picked up the saw with his left hand, even though he is right-handed, suggests that he was not acting voluntarily. 5. Fourthly, evidence from the victim and others that he said nothing during the stabbing supports the proposition that he was acting involuntarily. 6. Fifthly, evidence that, whilst onlookers were seeking forcefully to stop him stabbing the victim, the applicant did not resist or even flinch, suggests that he was in an automatic state. 7. Sixthly, his manner of driving after the stabbing, including the engine of the car being revved very loudly, supports the same proposition. 8. Seventhly, detailed analysis of the presentation of the applicant that led to him being given the highest score on the Glasgow Coma Scale shows that that assessment is open to question. 9. Eighthly, the behaviour of the applicant in the week before the incident (which included visiting a number of law firms with regard to some pending litigation, completing a sailing course, and booking a hotel room in the city of Sydney) was not supportive of an intention to commit murder and thereafter suicide. 10. Ninthly, the behaviour of the applicant on the day in question (in a nutshell, making various preparations for the future) was not suggestive of an intention to murder his wife and then kill himself. 11. Tenthly and finally, the fact that, when spoken to by police after the stabbing, the applicant expressed surprise at what he had done, openly incriminated himself, and expressed remorse for his actions suggests that he had been acting involuntarily. 12. Turning to my determination of this ground, there are a number of reasons why I do not propose to remit the question of the conviction to the Court of Criminal Appeal, or to order an inquiry, on the basis of it. 13. The first is because I have not been provided with a transcript of the evidence at trial (along with other necessary materials). Without those, it is very difficult to make an assessment of the evidence at the trial. 14. The second and wholly separate reason is because consideration of the compendious judgment of the Court of Criminal Appeal of 21 December 2010 in the conviction appeal reveals that the arguments that have been made to me were made to the Court of Criminal Appeal. They were painstakingly dealt with in the judgment of Campbell JA, which extended over 429 paragraphs. The application simply seeks to repeat those arguments, all of which were rejected years ago by three judges of that Court. No special facts or circumstances have been shown. In the circumstances, I propose not to deal with that portion of the application, pursuant to s 79(3)(a)(i) of the Act. 15. Thirdly, and assuming that I am wrong with regard to the two factors above, the material placed before me raises no sense of disquiet or unease in my mind about this conviction. To the contrary, I consider that the summary that I have provided shows that this was an extremely strong Crown case of a voluntary act. 16. In that regard, I turn to deal briefly with the matters relied upon by the applicant. 17. First, on the extracts with which I have been provided, the two forensic psychiatrists spoke of sane automatism as being a mere or hypothetical possibility; as one knows from experience, most expert witnesses will eventually concede in cross-examination an answer along the lines of "well, anything is possible". It may be that each of them was accepting that sane automatism could not be ruled out as a mere possibility. But that is not the same as either witness accepting that sane automatism was a reasonable possibility, upon which a reasonable doubt could or should be founded. 18. Secondly, whether the applicant offered to drive the victim somewhere shortly before the stabbing is not significant, let alone determinative, as to whether the stabbing itself was a willed act. Indeed, the fact that his mind was fully engaged at that earlier stage may suggest the contrary. 19. Thirdly, the fact that the applicant may have picked up the weapon with his left hand rather than his right is of no great moment to the question. 20. Fourthly, the fact that the applicant stabbed the victim repeatedly without screaming or shouting may well indicate grim determination, and is not very significant with regard to automatism. So is the fact that he was unflinching and silent when others sought to stop him. 21. Fifthly, the manner of driving of the applicant is suggestive of a person who wished to leave the scene urgently, thereby demonstrating a consciousness of guilt. It says very little in favour of the proposition that the stabbing was involuntary. Again, the fact that the applicant was able to engage in driving a motor vehicle very shortly after the stabbing argues firmly to the contrary. 22. Sixthly, as for the Glasgow Coma Scale result, detailed analysis of the material underpinning it cannot persuasively detract from its simple force: the expert opinion was that there was nothing wrong with the consciousness of the applicant when he was assessed. 23. Seventhly, as for the behaviour of the applicant in the week preceding the stabbing and earlier on the day itself, none of those actions supported in the slightest the proposition that he was prone to automatic states; yet again, quite the contrary. 24. Separately, the mere fact that, in the hours or days prior to the stabbing itself, the applicant may not have possessed a firm intention to murder his wife and kill himself is of very little weight with regard to the real question. I repeat that that question is whether I experience a sense of doubt or unease about whether, at the time when he repeatedly stabbed his wife, there is a reasonable possibility that the applicant was acting involuntarily. 25. Eighthly, it is impossible to interpret the things recorded as being said by the applicant to the police as anything other than a cogent admission of guilt, including an admission of premeditation and motive ("I wanted to…terminate our lives"). 26. To summarise: there was a very strong circumstantial case that the applicant was acting voluntarily when he stabbed the victim repeatedly. The matters that he has raised are unpersuasive. They have been dealt with comprehensively by the court entrusted with reviewing convictions for serious offences. And overarching the whole matter is an almost insuperable difficulty for the applicant: he seeks to raise a reasonable possibility of sane automatism without any psychiatric evidence, proffered either at trial or in the seven years since its conclusion, to support it. 27. Finally, leaving aside the evidence at trial for the moment, and bearing in mind that I am making a determination based upon all of the material placed before me, it is noteworthy that, at p 4 par 20 of the application dated 25 June 2015, the applicant himself has written, with regard to the gyprock saw, "I bought it with thoughts that I may use it to stab myself and my wife". 28. That statement is surely a recent acceptance that, at the time of the purchase of the implement that was used to stab the victim, its subsequent use in precisely that way was, at the least, foreseen by the applicant as a distinct possibility. That statement of the applicant, made eight years after the event, argues powerfully in favour of the stabbing having been a voluntary act. 29. In short, reflecting upon all of the material placed before me (as against the contingency that I am wrong in my belief that I require the transcript, and also wrong in my exercise of discretion pursuant to s 79(3)(a)(i) of the Act), nothing that the applicant has raised in support of ground one causes me to have any disquiet or unease about this conviction. Ground two - conviction 1. As can be seen, the first part of this ground focuses upon nine allegedly false or misleading exhibits in the trial. I have not been provided with any of them, or even photographs of all of them. 2. To give but one example, the applicant has written verbatim the following about clothing of the victim (or photos thereof) that I presume was tendered in the Crown case (again, some bolding has been deleted): [73] Exhibits "D", "E", "AE" and "AF": 17 cuts on my wife's right side of the jacket (9 cuts) and jumper (8 cuts) where she sustained no injury: All injuries, which my wife sustained during the incident, are on the left-hand-side of her body. The most of them are scattered on the left side of her back, and the top and front part of her left shoulder. The issue how the cuts on the jacket and jumper can be on the opposite side, the prosecutor explained as if the jacket was pulled from the right to the left side, hence the cats on the right side (T:1966-7;43-7). Issue: This explanation is out of sense for the following reasons. First, my wife was not wearing the jacket at the time of the incident (T:142;33); she took it off before entering the car and placed it on the back seat. Second, the jacket in no circumstances could be pulled from the right to the left side so much to align cuts on the right side with the stabbing marks on the left side of my wife's body. Third, if hypothetically the jacket and jumper would be pulled from right to left, then the hand pulling the clothes would be holding the sites where the cuts were made preventing the alleged cuts to be made. To understand this see the position of the cuts on the jacket and the jumper (exhibit "AE", Jacket front, photos 121 and 122, Jacket, back, photos 124 and 125, Jumper front, photos 96 and 97, Jumper back, photos 101,102 and 105) and the injuries on my wife (to her front, Exhibit H, photos 13 and 14 and back photos 16 and 17); see 6 photographs enclosed as Annexure, pages 38-43. Forth, my wife sustained 1st and all injuries (21) 1st to her back.26 However, on the back of the jacket (Annexure, page 42) there are only 4 cuts, 2 in the middle and 2 on the right shoulder, where my wife did not sustain any injury. In addition there are no cuts at the right back side of the jumper (Annexure, page 43). Fifth, the cuts on the outer layer (the jacket, all 10-15 mm in length, Exhibit "AE" photos 122 and 125 Detective Windas T: 1242-43) are significantly smaller than those on the inner layer (the jumper, 60,40, 25, 25,10,20,15 and 20 mm in length, Exhibit "AE" photos 96,97 and 105, Detective Windas T:1243-47). Argument: The cuts on the outer layer cannot be smaller than those on the inner layer. Those cuts, on the jacket and the jumper right side, were made by police after the incident and the jacket was blood-drenched. The effect of the added evidence: by putting additional cuts on and blood-staining of my wife's jacket and jumper my wife's injuries and the whole incident seemed much more revolting to the jury. My endeavours to prove these discrepancies during the trial put me in even more disadvantageous position in the eyes of the jury. [footnote omitted] 1. There are a number of reasons why the first part of ground two does not lead me to refer the conviction to the Court of Criminal Appeal, or order an inquiry. 2. The first is that, having neither the benefit of the trial transcript, nor photographs of the exhibits, nor the summing-up, it is very difficult for me to assess the merits of this ground properly. 3. The second is that it can be seen that this complaint about the exhibits was also made in the appeal against conviction to the Court of Criminal Appeal. It was dealt with at length in the Court of Criminal Appeal: see Cvetkovic v R [2010] NSWCCA 329 at [184]-[187]. There is nothing to suggest that any new material is contained in what has been placed before me. Nor is anything special established. Pursuant to s 79(3)(a)(i) of the Act, I decline to reconsider the question of these exhibits. 4. The third is as follows. As Simpson and Whealy JJ (as their Honours then were) remarked in the Court of Criminal Appeal, the issue at trial was in truth extremely simple: had the Crown proven beyond reasonable doubt that the applicant was acting voluntarily (in the sense of performing willed movements of his muscles) when he repeatedly stabbed the deceased? There was never the slightest dispute that it was the applicant who stabbed the victim, and who inflicted multiple wounds upon her person. For that reason, detailed analysis of (for example) photographs of the clothing of the victim, in an effort to discern whether there is some discrepancy between the description of the location of her injuries and damage to her clothing, is irrelevant to the issue that has been litigated over many years between the Crown and the applicant. 5. The fourth is because the mere fact that, at trial, an accused person asserts that a relevant exhibit is misleading, or has been tampered with, or indeed is wholly false, is not a basis for objection, and for the tender of the exhibit being rejected. Commonly enough, accused persons dispute the Crown case, including exhibits that are tendered as part of it. In that sense, the complaint of the applicant that some exhibits should have been ruled inadmissible because of their falsity is misconceived. Rather, it was a matter of the applicant at trial disputing the authenticity of the exhibits before the jury, and making submissions to the jury as to why they would not accept their accuracy. 6. For those reasons, the first basis of ground two does not lead me to refer the conviction to the Court of Criminal Appeal or order an inquiry. 7. The second basis of ground two is the assertion that the trial judge was actually biased against the applicant. For a number of reasons, I decline to refer the conviction or order an inquiry on the basis of that submission. 8. The first is that I have no transcript of the pre-trial hearings, or of the proceedings after arraignment. 9. The second is that precisely the same submission was made to, and rejected by, the Court of Criminal Appeal over five years ago. Indeed, more extensive complaints were made in that forum about the conduct of the trial by her Honour. A ground asserting wrong interlocutory decisions was dealt with between [197] and [374] of the judgment of Campbell JA. A ground asserting that there had been a miscarriage of justice, including as a result of the alleged unfairness of the conduct of the trial judge, was dealt with between [375] and [419]. In particular, a complaint of misconduct or actual bias was dealt with at [376] to [385] of the judgment of his Honour. Again, no special fact or circumstance is relied upon that would cause me to revisit those questions. 10. For that reason, I would exercise my discretion pursuant to s 79(3)(a)(i) of the Act to decline to deal with this aspect of ground two. 11. Thirdly, it is well-established that procedural or legal failings in a trial or proceedings on sentence can found a referral pursuant to the Act: see Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 and Sinkovich v Attorney General of New South Wales [2013] NSWCA 383. Nevertheless, the circumstances of this matter include that the trial took place approaching seven years ago. There has been a fully litigated conviction appeal, along with a rejected application for special leave to the High Court. In those circumstances, I consider that my focus must surely be upon whether I have a doubt or a sense of unease about the correctness of the conviction – in the sense of whether or not the applicant is actually guilty of the offence of which he was convicted – rather than upon asserted legal or procedural failings in the trial that led to that conviction. 12. In short, nothing in the second basis of ground two leads me to experience unease or a sense of disquiet and refer the matter to the Court of Criminal Appeal or order an inquiry. Conclusion with regard to conviction 1. In summary then, with regard to the application for referral of the conviction, nothing placed before me, either individually or in combination, leaves me with a sense of unease or disquiet about the fact that the applicant has been convicted of the offence of wounding with intent to murder. For that reason, I do not propose to refer the conviction to the Court of Criminal Appeal or order an inquiry. 2. I turn now to discuss the grounds for referral of the sentence. Ground three - sentence 1. It can be seen that this ground is, in a nutshell, an assertion that the sentence imposed upon the applicant was manifestly excessive, in that 10 mitigating features and 6 "additional objective or subjective" features were given either inadequate weight or no weight by her Honour. It is also said that a comparison of the sentence imposed upon the applicant with sentences imposed upon other offenders for the same offence supports the same proposition. 2. There are a number of problems with this ground. 3. The first is that, as I have said, I have neither the proceedings on sentence nor the remarks on sentence. 4. The second is that, as the judgment of the Court of Criminal Appeal of 3 April 2013 demonstrates, the following grounds of appeal against sentence were notified and pressed: Ground 1 The trial judge erred in finding that the objective seriousness of the offence was of high range. Ground 2 The trial judge erred in fact by: (a) placing insufficient weight on the fact that the Applicant also harmed himself seriously; (b) placing too much weight on premeditation, when the premeditation was just background thought, and the Applicant was extensively endeavouring to get on with his life; (c) placing insufficient weight on the evidence that 30 hours before the incident the Applicant was in 2 states of mind, one thinking of harming himself and his wife and second extensively reorganising his life to get on with it; (d) placing insufficient weight on the evidence that immediately before the incident the Applicant offered to drive, which is inconsistent with the harm which happened only minutes thereafter; (e) failing to recognise that the injury, emotional harm, loss or damage caused by the offence was not substantial: the incident with the victim lasted less than 2 minutes, the wounds on the victim, whilst being many in number, the most of them were superficial, scattered at the top left side of the back and the left shoulder. The victim did not sustain any permanent injury, was discharged from the hospital 8 days after the incident, and was back to work 11 days thereafter. The seriousness of the injury and emotional harm is of low to mid range. (f) placing to much weight on the victim's impact statement and ignoring the fact that the victim did not sustain any permanent injury, was discharged form the hospital 8 days after the incident, and was back to work 11 days thereafter; (g) placing insufficient weight on the fact that the Applicant did express his remorse for the incident in his interview with police shortly after the incident, using words "/ am really sorry that I caused a public disaster." (h) placing insufficient weight on the evidence that during the incident the Applicant was in a dazzling state of mind and in shock, barely aware and in control of what was happening; (i) placing insufficient weight on the psychiatric evidence on depression and that both psychiatrists agreed that it was the depression which caused loss of control and was the underlying cause of the incident. Ground 4 The trial judge erred in including, or not excluding, general deterrence as it has little, if any, weight, as the Applicant was suffering from the major depressive illness at the relevant time and as such was not an appropriate medium for making an example to others. Ground 5 The sentence imposed by the trial judge was manifestly excessive and unduly harsh. The trial judge erred in ignoring or not considering length of sentence given in other similar cases ranging from full term 7 to 10.8 years, non-parole 5 to 8 years. The applicant relies on 6 such cases. 1. As for ground 3, although not quoted in the Court of Criminal Appeal judgment or otherwise provided in verbatim form to me, one can reconstruct it from that judgment as follows: Ground 3 alleges that the trial judge erred in not allowing a discount to the sentence for a series of alleged mitigating factors. Ground 3(a) alleges that the injury, emotional harm, loss or damage caused by the offence was not substantial. Ground 3(b) alleges that the offence was not part of a planned or organised criminal activity. Ground 3(c) alleges that the applicant was acting under duress. Ground 3(d) relies upon the fact that the applicant does not have any record of previous convictions. Ground 3(e) alleges that the applicant was a person of good character. Ground 3(f) alleges that the applicant is unlikely to re-offend. Ground 3(g) is that the applicant has good prospects of rehabilitation. Ground 3(h) relies on the remorse allegedly shown by the applicant. Ground 3(i) alleges that the applicant was not fully aware of the consequences of his actions because of his major depressive illness. Ground 3(j) is the degree of the pre-trial disclosure by the applicant and assistance to law enforcement authorities. 1. In other words, it can be seen that the applicant has already litigated, in great detail, this very question of aggravating and mitigating features in the Court of Criminal Appeal. He has also litigated the question of comparative sentences. He points to no special circumstances or facts. In the circumstances, I would exercise my discretion under s 79(3)(a)(i) of the Act not to deal with that again. 2. The third is that, assuming I am wrong in my approach above, and should contingently consider the mitigating factors and additional objective or subjective features to which the applicant refers at pp 21 to 23 of his submissions, they are hardly persuasive. To give but one example, he has submitted that the effects of his crime upon the victim were "not substantial". In the circumstances that I have outlined, not least of which is the photograph of the injuries to the victim that the applicant himself placed before me, that submission must be peremptorily rejected. 3. The fourth is that it was inevitable, in all of the circumstances that I have briefly summarised, that the applicant would be sentenced to a very long period of imprisonment. Neither the factors to which the applicant invites attention nor the decisions of the Court of Criminal Appeal in other matters to which the applicant refers create in me the requisite mental state with regard to whether the sentence was manifestly excessive. 4. In short, nothing in the third ground leads me to the view that I should have a sense of doubt or disquiet about the sentence imposed, and I would not refer the matter on the basis of it, nor order an inquiry. Ground four - sentence 1. As can be seen, this is an assertion that, because of the depressive illness from which the applicant claims he was suffering at the time, general deterrence had "little, if any weight". Again, there are a number of problems with this submission. 2. The first is the absence of the proceedings on sentence, and especially the remarks on sentence, from the filed material. 3. The second is that this contention has been comprehensively and explicitly litigated before the Court of Criminal Appeal in 2013, which rejected it: see Cvetkovic v R [2013] NSWCCA 66 at [44] - [53], and ground 2(i) extracted above. Neither a special fact nor special circumstance is established. For that reason, I exercise my power under s 79(3)(a)(i) of the Act not to deal with the question. 4. The third is that, assuming I am wrong in the above approach, I reject the proposition that, merely because the applicant was suffering from a depressive illness at the time he stabbed his wife 30 times with the intention of murdering her, general deterrence had "little if any" role to play in sentence. 5. For those reasons, I do not propose to refer the sentence to the Court of Criminal Appeal or order an inquiry on the basis of ground four. Ground five - sentence 1. It can be seen that this ground is founded upon the well-known decision in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. 2. In his written submissions, the applicant has simply said this: [107] The trial judge erred in setting up standard non-parole period for my alleged offence within the mining of the HCA Muldrock's case. I did not pursue that claim in my appeal with the NSWCCA on 05 March 2013 as I did not know what meaning would it have on my case. Today I still do not know what effect it would have on my case, I kindly appeal to the court to consider my case in line with the Muldrock's case. 1. As I have said, neither party has provided me with the entirety of the remarks on sentence. Counsel for the Attorney-General has, however, extracted what her Honour said about the question in the remarks on sentence. At par 94 of the written submissions it is said: 94. On 7 August 2009, during the District Court sentence proceedings, Judge Sweeney said the following: "Having assessed the offence as in the high range of seriousness, and noting the standard non-parole period prescribed at 10 years for an offence in the mid range of seriousness after trial, and there being no reasons which have been advanced to me or are apparent from the circumstances of the offence or offender to depart from the standard non-parole period, the non-parole period I fix must be more than the standard non-parole period of 10 years." [footnote omitted] 1. On its face, that portion of the remarks on sentence is strongly suggestive of a "Muldrock error". Counsel for the Attorney-General does not submit otherwise. 2. Counsel goes on, however, to submit that one can see that the Court of Criminal Appeal dealt with that question, despite the fact that (as can be seen from the grounds of the sentence appeal that I have extracted) "Muldrock error" did not form the basis of any ground of appeal. The written submissions point to [74] of the judgment of McCallum J (in which Price and Schmidt JJ agreed), where the following was said: The six cases identified by the applicant in support of this ground must be considered with those principles in mind. Each was a case of wounding with intent to murder, carrying a maximum penalty of 25 years imprisonment. It may be noted, however, that five of the six were determined prior to the introduction of standard non-parole periods, which came into force on 22 November 2002: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, schedule 1[4]. The standard non-parole period of 10 years for the offence of wounding with intent to murder now stands as a second legislative guidepost (in addition to the maximum penalty of 25 years) to which the court must have regard among the full range of factors to be taken into account in determining the appropriate sentence for the offence: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [27]. 1. In short it was said for the Attorney-General that, although there was a "Muldrock error" at first instance, it has already been determined to have been of no moment by the Court of Criminal Appeal. 2. To my mind, that submission is open to serious question. Reading [74] as a whole and in the context of the entire judgment of the Court of Criminal Appeal, it does not appear to be a reference to what the learned sentencing judge at first instance said about standard non-parole periods; indeed, the passage of the remarks on sentence to which I have referred is not quoted in the judgment of the Court of Criminal Appeal. Rather, I consider that [74] could well be making the point that a comparison of a sentence that was subject to the regime of standard non-parole periods with other sentences imposed for the same offence before that regime commenced must be undertaken cautiously; such an approach is uncontroversial, and has often been adopted by the Court of Criminal Appeal: see Pfitzner v R [2010] NSWCCA 314 at [43]. 3. On the material placed before me, I consider that there is a possibility that a "Muldrock error" occurred with regard to this sentence, which was, it should be noted, imposed after a trial in 2009, and therefore after the judgment in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, and before the judgment in Muldrock v The Queen. 4. I also consider that there is a possibility that the Court of Criminal Appeal has not considered that potential error (that could not be the subject of any complaint by the applicant, because "Muldrock error" was neither notified nor argued by the self-represented applicant as a ground of appeal against sentence). 5. I do not believe, however, that I can be determinative about the question. That is for the simple reason that I do not have the entirety of the remarks on sentence. It is well established that, in order to determine whether a "Muldrock error" has indeed occurred, it is essential for one to have regard to the entirety of the remarks on sentence: see, for example, Aldous v R [2012] NSWCCA 153 at [31]; and Zreika v R [2012] NSWCCA 44 at [43]. 6. In short, on the material provided to me, I am not prepared to refer the matter to the Court of Criminal Appeal on the basis that an uncorrected "Muldrock error" occurred at first instance. Although I think that that is possible, I decline to burden that court when an analysis of the complete remarks on sentence may show that there was no such error at all. 7. Instead, I defer this aspect of the matter, and only this aspect, pursuant to s 79(3A)(c) of the Act. I invite counsel for the Attorney-General to provide both my Associate and the applicant with a complete copy of the proceedings on sentence and the remarks on sentence. Thereafter, I invite brief written submissions from both parties within four weeks of the provision of those materials, focused only on the question of "Muldrock error" at first instance, and whether it has been determined by the Court of Criminal Appeal. Further ground - sentence 1. This submission relies upon a document entitled "Provisional Order for Restitution" on the letterhead of "Victims Services", which is expressed to be within the Department of Attorney-General & Justice. In short, it is a letter from the Acting Commissioner of Victims Rights to the applicant dated 11 May 2015 showing that the victim received victims support payments in a total sum of $10,000. 2. The applicant relies upon the document in support of the proposition that "it throws a different light on circumstances which existed at the time of sentence". In written submissions he submits that the victim was only awarded $10,000, out of a maximum available of $50,000. He submits that one can therefore infer that the harm done to the victim must have been in the "low range". 3. Turning to my determination of this submission, it will be appreciated that I have been told nothing of the background to that document, or the statutory structure, or other payments that may have been made to the victim, or any other sources of recompense or support that she may have had. Shorn of context, the document falls a long way short of leading me to possess a sense of unease or disquiet about the sentence imposed. 4. Separately, as I have said, one is entitled to reject without lengthy consideration the proposition that a woman who was stabbed thirty times by her husband with an intent to murder her suffered harm that was "low range". 5. For those reasons, I do not intend to refer the sentence to the Court of Criminal Appeal, or order an inquiry, on the basis of that document. Conclusion - sentence 1. On the entirety of the material placed before me so far, I have no sense of disquiet or unease about the sentence imposed. 2. As part of that, I am unable to come to any settled view about the possibility of an uncorrected "Muldrock error", not having had the benefit of the entire proceedings on sentence and remarks on sentence. Conclusion - both aspects 1. Accordingly, I do not propose to refer either the conviction or the sentence to the Court of Criminal Appeal, or to order an inquiry. 2. I do consider, however, that the question of "Muldrock error" allegedly affecting the sentence should be deferred, pending receipt of further material. To be clear: I defer no other aspect of the matter. Orders 1. I make the following orders: 1. The application of Dragan Cvetkovic of 25 June 2015 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused, except in accordance with order 2. 2. Pursuant to s 79(3A)(c) of the Crimes (Appeal and Review) Act 2001 (NSW), the application is deferred for further consideration by me, but only with regard to the issue of whether a "Muldrock error" affected the sentence at first instance. ********** 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: 24 March 2016