GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205

Supreme Court New South Wales

Medium Neutral Citation: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205 Hearing dates: On the papers Decision date: 29 August 2016 Jurisdiction: Common Law Before: Adamson J Decision: Application dismissed. Catchwords: CRIMINAL LAW – application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for sexual intercourse without consent – no doubt or question as to the applicant's guilt Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79 Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), s 177 Cases Cited: Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 252 GAR v R [2003] NSWCCA 224 GAR v R (No 1) [2010] NSWCCA 163 GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734 M v The Queen (1994) 181 CLR 487 Category: Principal judgment Parties: GAR (Applicant) Regina Representation: Counsel:

Solicitors: Crown Solicitors Office (Respondent) File Number(s): 2016/77528

Judgment

Introduction 1. By application dated 2 March 2016 and submitted on 14 March 2016, the applicant sought, pursuant to Division 3 of Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), a further inquiry into his conviction in 2002 for the offence of sexual intercourse without consent. The applicant was sentenced in respect of that offence to imprisonment for a term of six years commencing on 5 April 2002 and expiring on 4 April 2008, with a non-parole period of four years and six months. The present application was lodged 7 years and 11 months after the applicant had served his sentence. 2. The applicant's appeal against his conviction was dismissed and leave was refused to appeal against his sentence: GAR v R [2003] NSWCCA 224 (the Original Appeal). In February 2009, Barr J referred the case pursuant to s 79 of the Crimes (Appeal and Review) Act to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal dismissed the appeal: GAR v R (No. 1) [2010] NSWCCA 163 (the Review Appeal). 3. The applicant seeks a further direction under s 79(1)(a) of the Crimes (Appeal and Review) Act that an inquiry be held, or in the alternative, an order under s 79(1)(b) that the matters be referred to the Court of Criminal Appeal to be dealt with as an appeal pursuant to the Criminal Appeal Act. The Court's discretion to make a direction under s 79(1) arises only "if it appears that there is 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". 4. The present application is based on what is said to be "fresh evidence", being statements apparently made by the applicant's former wife, ER, and their daughter, E. The statements appear on a single page which reads as follows: IN THE MATTER OF [GAR] "Under the inducement that the evidence will not be used to prosecute any offence against me I [E] state the following:- My mother, [ER] did ask me to falsely corroborate her evidence that she had called out. "Please don't, [GAR] please don't," or similar. When I made my statement to police and gave evidence, it was false. Signed by: [E] [Signature appears] Drivers Licence [number given] sighted [signed] Ian West JP [number given] 2.12.15 E Dated 2/12/15 Under the inducement that this evidence will not be used to prosecute any offence against me ER. STATES THE FOLLOWING:- "The statement made by my daughter E above is TRUE." Signed by: ER Dated 2.12.15" 1. There is another page relied upon on which the following appears in handwriting: "I, ER state. The words "[GAR] please don't" were my first words uttered as [GAR] placed his hand over my mouth & nose – he then said "you make one fucking sound, I will snap your f…. neck – he waited for my daughter to be asleep – the crime did occur – I stand by my statement. ER 2/10/15" 1. Mr West's signature appears on the bottom right hand corner of this page. 2. The applicant contended that the effect of the typed statements was to undermine the credibility of both E and ER, who gave evidence for the prosecution. He contended that the handwritten statement, dated 2 October 2015, was, in effect, superseded by the later typed statements. 3. In order to assess the relative importance of these items it is necessary to consider the factual background, what occurred at the trial and subsequently. As I have already addressed these matters in a previous application under s 78 of the Crimes (Appeal and Review) Act, I propose to reproduce the summary from my reasons for refusing that application: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734.