Application by Sean Fennell pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2016] NSWSC 307

Supreme Court New South Wales

Medium Neutral Citation: Application by Sean Fennell pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2016] NSWSC 307 Hearing dates: On the papers Date of orders: 29 March 2016 Decision date: 29 March 2016 Jurisdiction: Common Law - Criminal Before: Fagan J Decision: Pursuant to s 79(3) Crimes (Appeal and Review) Act 2001 (NSW) the Court refuses to consider or otherwise deal with the application. Catchwords: CRIMINAL LAW – appeal and review – application for review after full hearing and appeal withdrawn – no special facts or circumstances – refusal of Court to deal with application under ss 78, 79(3) Crimes (Appeal and Review) Act 2001 (NSW) Legislation Cited: Companion Animals Act 1998 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Cases Cited: Re Cheney (No 1) [2015] NSWSC 291 Texts Cited: Nil Category: Principal judgment Parties: Sean Fennell (Applicant – self represented) Regina (Respondent) Representation: Solicitors: Sean Fennell (Applicant – self represented) Crown Solicitor's Office (Respondent) File Number(s): 2015/048164 Publication restriction: Nil

Judgment 1. On 24 July 2012 Sean David Fennell was convicted in the Local Court at Sutherland of an offence against s 16(1)(b) of the Companion Animals Act 1998 (NSW). Namely, that on 21 June 2011 he was the owner of and the person in charge of a Rottweiler dog which on that date attacked and injured Mr John Fischer at Glenn McGrath Oval, Carringbah. A fine of $400 was imposed and court costs of $83 were ordered to be paid. 2. Sean Fennell appealed his conviction to the District Court but withdrew the appeal on 14 December 2012. His father David Edward Fennell now applies on behalf of Sean Fennell under ss 78 and 79 Crimes (Appeal and Review) Act 2001 (NSW) to have the Court direct an inquiry by a judicial officer into the conviction and sentence. 3. By force of subs (2) of s 79 such an inquiry may only be directed "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". Subsection (3) of s 79 is as follows, so far as relevant to the circumstances of David Fennell's application: "79 Consideration of applications … (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 … (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." 1. The operation of subs (3) is attracted to the circumstances of this case by facts which satisfy sub paras (i) and (iv) of para (a). As to (i), the hearing of the charge in the Local Court took place over two days. The prosecutor, Sutherland Shire Council, and the defendant were both legally represented. Full opportunity for cross-examination of prosecution witnesses was afforded and the opportunity was used. The defendant gave evidence in his own case and called two witnesses. Both legal representatives were permitted to address the learned magistrate at length and her Honour gave detailed reasons for her decision on criminal liability. This was followed by ample opportunity for submissions to be made with respect to penalty, which submissions were considered and expressly taken into account by her Honour in fixing the level of the fine. 2. The hearing occupied the whole of 8 May 2012 and was not completed that day. It continued part-heard on 24 July 2012 and occupied the whole of that day as well. The entire proceeding is recorded in slightly over 200 pages of transcript which show that the case was conducted competently by both legal representatives and was managed fairly and efficiently by her Honour. I will return to a summary of the evidence later in these reasons. 3. As to sub para (iv) of s 79(3)(a), this provision is satisfied by the circumstance that Sean Fennell lodged an appeal to the District Court and subsequently withdrew it, as referred to above. 4. In these circumstances, by virtue of subs (3)(b) of s 79, there is reposed in the Court a discretion to "refuse to consider or otherwise deal with" Sean Fennell's application if I am "not satisfied that there are special facts or special circumstances that justify the taking of further action". For reasons which I will shortly give, I am not so satisfied and I refuse to consider or deal with the application. 5. The Crimes (Appeal and Review) Act 2001 (NSW) contains no explicit guidance as to what might constitute special facts or special circumstances for the purposes of subs (3)(b). As a starting point for applying that test to this application, I regard it as necessary to set out a summary of the evidence in the proceedings which led to the conviction and sentence in respect of which the application is made. That summary will expose the relative simplicity of the case and identify the issues which arose.