Application by Tony Olivieri pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 1394

Supreme Court New South Wales

Medium Neutral Citation: Application by Tony Olivieri pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 1394 Hearing dates: On the papers Decision date: 13 October 2017 Before: Latham J Decision: The application is dismissed Catchwords: CRIMINAL LAW - application for inquiry into conviction - s 78 Crimes (Appeal and Review) Act 2001 - Applicant convicted of murder - appeal dismissed by Court of Criminal Appeal - matters raised by Applicant previously dealt with on appeal - application refused under s 79(3) Crimes (Appeal and Review) Act Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Evidence Act 1995 Cases Cited: Olivieri v R [2016] NSWCCA 169 Category: Principal judgment Parties: Tony Olivieri (Applicant) Attorney General in and for the State of New South Wales (Respondent) Representation: File Number(s): 2017/00103859

Judgment 1. The applicant, Tony Olivieri, was convicted of murder on 28 August 2006 before Hidden J and sentenced on 5 March 2007 to a term of imprisonment of 33 years, comprising a non-parole period of 28 years. 2. In March 2016, the applicant sought to appeal his conviction on a number of grounds. The Court of Criminal Appeal (Leeming JA with whom Johnson and Harrison JJ agreed) extended the time for filing the appeal, heard the appeal, and in August 2016 dismissed the applicant's appeal: Olivieri v R [2016] NSWCCA 169. 3. On 6 April 2017 the applicant lodged this application which seeks to re-agitate some of the grounds that he argued before the Court of Criminal Appeal and which were comprehensively rejected by that Court. 4. The Crown case at trial was based upon an agreement between the applicant and his co-accused, Mr Norman, that the deceased (a solicitor) would be killed by the applicant in order to prevent the deceased from exposing a fraud on the part of Mr Norman. Whilst there was no direct evidence that the applicant was the person who shot the deceased four times in his home office on the evening of 6 April 2004, there was a powerful circumstantial case against him: Olivieri v R, per Leeming JA at [179]. 5. The grounds of appeal before the Court of Criminal Appeal included the following; 1. Pretext calls - unnamed civilian participant (police informant) making pretext calls on 10 June 2004. 2. Fresh evidence - Prof. Barry Boettcher DNA report. 3. New evidence - unused evidence; the evidence that was not used in trial would help the defence to contradict the Crown's case.