Court of Appeal Supreme Court New South Wales Medium Neutral Citation: GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 Hearing dates: 21 June 2017 Decision date: 12 December 2017 Before: Beazley A/CJ at [1]; Simpson JA at [4]; Payne JA at [95] Decision: (1) Application dismissed; (2) Applicant pay the respondent's costs as agreed or assessed. Catchwords: ADMINISTRATIVE LAW – judicial review – refusal to direct inquiry under Pt 7 of Crimes (Appeal and Review) Act 2001 (NSW) – decision by judge of a superior court – whether doubt or question as to any part of evidence in the case – whether primary judge misapprehended the nature of her power and thereby fell into jurisdictional error – whether primary judge's decision unreasonable – whether constructive failure to exercise jurisdiction Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), Pt 7, ss 75, 78, 79, 82 Criminal Appeal Act 1912 (NSW) Criminal Law Amendment Act 1883 (NSW), s 383 Interpretation Act 1987 (NSW), s 15 Supreme Court Act 1970 (NSW), ss 69, 75, 101 Criminal Appeal Rules (NSW), r 4 Cases Cited: Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088; [2003] HCA 26 Ewen v R (2015) 250 A Crim R 544; [2015] NSWCCA 117 GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205 GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734 GAR v Attorney General of NSW [2017] NSWCA 47 GAR v R (No 1) [2010] NSWCCA 163 GAR v R [2003] NSWCCA 224 Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Makarov v Attorney General for NSW [2016] NSWCA 35 Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343 R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 R v GAR [2003] NSWCCA 224 R v Murray (1987) 11 NSWLR 12 Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 The application of GAR (Supreme Court (NSW), 12 February 2009, unrep) Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 Texts Cited: Aronson, M, Groves, M, Weeks, G, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) Category: Principal judgment Parties: GAR (Applicant) Attorney General of New South Wales (Respondent) Representation: Counsel: GAR (In person) J Davidson (Respondent) Solicitors: Crown Solicitors Office (Respondent) File Number(s): 2016/336497 Publication restriction: Pursuant to Crimes Act 1900 (NSW), s 578A there is to be no publication of any matter that identifies or is likely to lead to the identification of the complainant in the matter which led to GAR's conviction in 2002 of the offence of sexual intercourse without consent. Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2016] NSWSC 1205 Date of Decision: 29 August 2016 Before: Adamson J File Number(s): 2016/77528 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] headnote [This headnote is not to be read as part of the judgment] In 2002 the applicant was convicted by a jury for one count of sexual intercourse without consent. The applicant appealed against his conviction and sentence. The Court of Criminal Appeal dismissed the applicant's conviction appeal and refused leave to appeal in his sentence appeal. The applicant, under s 78 of the Crimes (Appeal and Review) Act, made three subsequent applications (in 2007, 2014 and 2016) for an inquiry into his conviction. The first application was referred to the Court of Criminal Appeal to be dealt with under the Criminal Appeal Act. The Court of Criminal Appeal dismissed the appeal. The second and third applications were dismissed. The third application is the subject of this appeal. In that application, the applicant tendered two typewritten statements and one handwritten statement which he argued was fresh evidence which gives rise to a doubt or question as to his guilt or as to any part of the evidence in the case. The applicant seeks judicial review of the primary judge's decision dismissing his third application. The issues on appeal were: (i) whether the primary judge's opinion, that the fresh evidence did not give rise to a "doubt or question as to the applicant's guilt … or as to any part of the evidence in the case", was formed according to law; (ii) whether the primary judge made factual errors with respect to the date written on the handwritten statement; (iii) whether the primary judge failed to address evidence at trial of face scratches which the applicant alleged was fabricated in light of a missing page from a medical report concerning the complainant In relation to issue (i) per Payne JA (Beazley A/CJ agreeing) (1) the primary judge did not misapprehend the nature of the power conferred by s 79 of the Act: [156]-[157] (2) the primary judge did not constructively fail to exercise jurisdiction by failing to consider the substance of an applicant's case: [158] (3) the primary judge's decision in dismissing the application was one that was reasonably open to her: [162]-[169] per Simpson JA (dissenting) (4) the primary judge failed to address the question required of her under the Act, and accordingly fell into jurisdictional error: [88] In relation to issue (ii) per Payne JA (Beazley A/CJ agreeing) (5) the primary judge made a factual error as to the date on the statement however that error did not adversely affect the applicant's case or cause the primary judge to fall into jurisdictional error: [184]-[186] In relation to issue (iii) per Payne JA (Beazley A/CJ agreeing) (6) such evidence was already dealt with in a previous application under the Act and therefore no jurisdictional error was demonstrated: [190] Judgment 1. BEAZLEY A/CJ: Having had the advantage of reading in draft the reasons of Simpson JA and of Payne JA, I am in agreement with the reasons of Payne JA and with the orders his Honour proposes. My short reasons for my agreement, which assume a familiarity with the factual material and the legislation set out in the respective judgments of their Honours, are as follows. 2. In my opinion, the primary judge, Adamson J, dealt with the evidence comprising the statutory declarations of GAR's former wife and his daughter and the other evidence that related to those statutory declarations. Accordingly, I do not consider that the applicant has established jurisdictional error, including any constructive failure to exercise jurisdiction. 3. I am also of the opinion that there was no error in the primary judge not finding sufficient credibility in the new evidence adduced by way of the statutory declarations to warrant the making of an order pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), for the reasons given by Payne JA. 4. SIMPSON JA: Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (to which I will, in conformity with Payne JA, refer as "the CAR Act") provides a mechanism by which a person convicted of a criminal offence (and who has exhausted his or her rights of appeal) may apply to the Supreme Court for an inquiry into the conviction or the sentence imposed (s 78). The jurisdiction is exercised by the Chief Justice or by a justice of the Supreme Court authorised by the Chief Justice (s 75). After considering the application, the judge may either direct that an inquiry be conducted by a judicial officer (s 79(1)(a)) or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) (s 79(1)(b)) but may take either of these courses only 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 (s 79(2)). In certain circumstances (not here material) the Supreme Court may refuse to consider or otherwise deal with an application (s 79(3)). Determination of an application under s 78 is an exercise of administrative, not judicial, power: see s 79(4); Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343; Buttrose v Attorney General of New South Wales [2015] NSWCA 221; Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [12]. Such a determination is reviewable for jurisdictional error under s 69 of the Supreme Court Act 1970 (NSW): Patsalis at [3], [7], [25]-[41]. It is also subject to declaratory relied under s 75 of the Supreme Court Act. 5. As a matter of practice, an application under s 78 is ordinarily disposed of in chambers by the judge to whom it is allocated on such documentary material as is provided by the applicant, and supplemented by the Attorney General (the Minister administering the CAR Act: Interpretation Act 1987 (NSW), s 15). Although there is nothing in Pt 7 that precludes a judge "considering" (the language of s 79(1)) the application from conducting an oral hearing, that has not been the practice of the Court. 6. On 1 November 2002 the applicant was convicted, after jury trial, of an offence of sexual intercourse without consent. He was sentenced to a term of imprisonment of 6 years with a non-parole period of 4 years and 6 months, which expired on 4 October 2006. He appealed against the conviction and sought leave to appeal against the sentence. In August 2003 the appeal against conviction was dismissed, and leave to appeal against sentence refused: GAR v R [2003] NSWCCA 224. 7. In March 2016 the applicant applied under s 78 of the CAR Act for a review of the conviction. (As will be seen, this was his third such application.) On 29 August 2016 Adamson J ("the primary judge") dismissed the application: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205. 8. By Summons originally filed in this Court on 11 April 2017, and amended on 15 August 2017, the applicant seeks, pursuant to s 69 of the Supreme Court Act, judicial review of that decision; in the alternative, pursuant to s 75 he seeks declaratory relief, formulated in a variety of ways. The formulation of the orders and declarations sought, and the extensive written submissions filed in support, suggest that the documents have been prepared without the benefit of legal assistance. Payne JA, whose judgment I have had the advantage of reading in draft, would dismiss the application. 9. Although the relevant background to the application is set out in the judgment of Payne JA, for the convenience of the reader I will restate those facts that are necessary to facilitate an understanding of the reasons that I have come to a contrary view. That is best done chronologically. 10. Before doing so, however, it is appropriate to: (i) set out the relevant statutory provisions; and (ii) identify the source material. (i) Relevant statutory provisions 1. Sections 78 and 79 of the CAR Act relevantly provide: "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. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 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: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (3B) … (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. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)." 1. It will be necessary to return to examine some of these provisions more closely in due course. (ii) Source material 1. It is apparent that the applicant prepared and presented his s 78 application without legal assistance. The material put before this Court shows that he initially submitted his application on 14 March 2016, and provided a substantial written submission in support (which he subsequently amended and expanded). The Attorney General (to whom, pursuant to s 78(2), a copy of the application was given) also provided a lengthy written submission. The substance of the Attorney General's submission was that the applicant had established the necessary foundation for a conclusion that a doubt or question existed about the applicant's guilt of the offence, and it was therefore proposed that the matter be referred to the Court of Criminal Appeal to be dealt with as an appeal. 2. The applicant's initial submissions ran to more than 80 pages of typescript. His amended or supplementary submissions covered a further 38 pages. It is fair to comment that much of the content of these documents was of questionable materiality. It does however, contain a good deal of factual material, although not presented in a conventional evidentiary fashion. 3. As will appear below, this application is the culmination of a lengthy procedural history in the Supreme Court, the Court of Criminal Appeal, and this Court. Generally speaking, the primary material (such as records of interview and statements) were not provided to the primary judge, or to this Court. This is not an ideal way of ascertaining the relevant facts, but is the only way available. The judgments in various curial proceedings, as well as the submissions of the applicant and the Attorney General, provide the basis for much of the factual history that follows, much of which is not in dispute. I will indicate where the position is otherwise. Factual background 1. Until shortly before 13 January 2002, the applicant was married to a woman to whom it is convenient (for reasons of privacy) to refer as "ER". The applicant and ER were divorced at about that time. They had a daughter ("E"), who was, in 2002, 12 years of age. 2. On the evening of 13 January 2002, the applicant visited the home in which ER and E were living. Both ER and E were present in the home. The following day, 14 January 2002, ER reported to police that she had been involuntarily detained by the applicant the previous evening, and that he had subjected her to unlawful, non-consensual sexual intercourse. On 14 January E made a statement to police. That statement does not appear in the materials before this Court. 3. The applicant was charged that: "(1) … he on 13 January 2002 … did without consent detain [ER] with the intention of obtaining an advantage, namely to keep [ER] in his custody and under his control; and (2) … he on or about 14 January 2002 … did have sexual intercourse with [ER] without her consent and knowing that she was not consenting." 1. A trial took place in October 2002. Evidence in the Crown case was given by ER, E, and police officers to whom ER reported the events of 13 and 14 January 2002. The applicant gave evidence. The issue in the trial with respect to the sexual intercourse count was whether intercourse, which had admittedly taken place, was non-consensual. 2. ER's evidence included evidence that, on the morning of 14 January, she had telephoned a (male) friend (RM) and "told him what had happened". She gave no detail of what she had told RM, and RM was not called as a witness in the trial. 3. The evidence of E in the trial had essentially two components: first, she said that she had been in bed, but had woken at 2.00am. She had heard ER say: "Please don't [G…], please don't." She then gave somewhat conflicting evidence as to whether the applicant replied, saying, on the one hand, that she did not then hear him say anything, but did hear him say something two hours later, at 4.00am, and, on the other hand, that, at the time she heard the words she attributed to ER, she heard the applicant say: "I don't care what you call it but I call it revenge." 1. The second part of E's evidence was that she woke again at 4.00am, heard the applicant leave the house, and found her mother crying in an armchair. E's evidence was that: "I said 'Mum, I'm calling the police'. She said 'No, don't' and I said 'I know he raped you' and then she said 'Yes, he did', so I called the police straight away." 1. The applicant was acquitted of the count of detention but convicted of the sexual intercourse count. He was sentenced as set out above. The total sentence expired on 4 April 2008. (The applicant is, however, presently serving sentences in relation to other offences.) As also mentioned above, the applicant's appeal against conviction was dismissed. 2. In April 2005, in the company of a man named John Carroll, E visited the applicant in prison. There is evidence that, during the course of that visit, the following conversation took place: "Applicant: [E], in front of John, tell the truth about what you heard the night you said you heard me sexually assault your mother. E: I didn't hear anything, mum got me to say that I did because she said they wouldn't believe her by herself. Applicant: I saw you come up to [ER's] bedroom door in the early hours that morning and we were just sleeping. E: Yes, I saw you." 1. On 13 October 2006 the applicant deposed an affidavit in which he recounted this conversation. (So far as the evidence goes, the conversation has never been denied by E.) The affidavit appears to have sparked further inquiries, although it is not clear by whom the inquiries were made. At some stage police were involved. In any event, on 12 April 2007, the applicant's sister (referred to as "JC") swore an affidavit in which she deposed that, in October 2002, when E was staying with her, she (JC) had overheard a telephone conversation between E and ER. The conversation as recounted by JC went as follows: "E: Mum, you made me lie about dad. ER: You had to or no one would believe me, there wouldn't be a case. E: Mum you made me tell lies." JC said that she had recorded the conversation but had lost the recording. 1. At about this time, in circumstances not disclosed, inquiries were made by police, who interviewed a number of people. On 13 June 2007 JC was interviewed, and confirmed (in very slightly different terms) what she had said in her affidavit. 2. On 21 June 2007 E participated in such an interview. The following questions and answers were recorded: "Q7. Did you tell lies about your father in court? A. No. Q8. Did your mother ever ask you to lie about your father to police? A. No. Q9. Did your mother ever ask you to lie about your father to the court? A. No." That is, E effectively reaffirmed her trial testimony. 1. She denied the conversation attributed to her by JC. She said that, while staying with JC, she had had a conversation by telephone with ER and that the conversation was on speaker phone (explaining why, if JC's evidence were correct, she had been able to hear both sides of the conversation). She agreed that the conversation was probably recorded. She could not recall the content of the conversation other than that she had told ER something about RM. 2. E admitted to police that, in a gaol visit to the applicant with John Carroll in 2005, she had told the applicant that ER had got her to tell lies about him in court, and said that she did this "probably to keep the peace with my father and my mother". She said that what she had said to the applicant was not the truth. 3. On 29 November 2007, presumably on the basis of this material, the applicant applied under s 78 of the CAR Act for an inquiry into his conviction. (This was the first of three such applications.) 4. After considering the application, on 12 February 2009 Barr J ordered that the whole case be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act: The application of GAR (Supreme Court (NSW), 12 February 2009, unrep). [Despite efforts, his Honour's reasons have not been able to be located.] 5. The appeal was heard over three days in April 2010. The ground of appeal (as finally articulated) was that there was fresh evidence to the effect that E had, at the behest of ER, given false evidence implicating the applicant in the sexual assault of ER (and that, accordingly, the verdict of guilty should be set aside). 6. E and ER both gave evidence in the appeal. E was asked about the statement she had given to the police on 14 January 2002. She was asked whether the answers that she had given to the police officer were true, to which she answered "No". She was asked: "Was there anything in that interview that was the truth?" to which she answered: "No, I don't believe there was." 1. She maintained that ER had never asked her to lie to the police, and had never asked her to lie in court. She said, however, that she was "incredibly influenced" by what ER had told her had happened on that occasion, and had felt "peer-pressured" by ER's accounts of the events in question. 2. The following exchange then took place: "Q As I understand your evidence, you are not saying that your mother told you to lie to the Court? A No, no. Q. But you gave evidence in court which you thought supported your mother? A Yes. Q Because of the fact that she had indicated to you what had happened, and you were upset about that? A Yes. Q But as to what you had heard, what you had seen, but you are saying now that you neither heard nor saw that which you gave evidence about? A Yes. Q Would that be a fair summary? A Yes." (italics added) 1. E was specifically taken to the evidence she had given in the trial, and agreed that her answers were incorrect, and that she had not heard the applicant say the words she had attributed to him. 2. By this time, therefore, ER had: * given a statement to police on 14 January 2002, in which (it may be assumed) she recounted hearing ER say "Please don't [G…], please don't"; * given evidence in court to that effect; * told the applicant, in the presence of John Carroll, that she had not heard those words spoken by ER (but had given evidence that she had at the behest of ER); * in the police interview of 21 July 2007, denied telling lies in court about the applicant (the lies, obviously, being or including the words she attributed to ER (that is, E re-affirmed her trial testimony)); * admitted to police that she had told the applicant that she had told lies in court, but also told them that that was not the truth; * given evidence in the Court of Criminal Appeal that what she had told police in the 21 June 2007 interview was not the truth (that is, contradicting her trial evidence); * given evidence in the Court of Criminal Appeal that she had not heard the words she attributed to ER; * denied the allegation by JC that she had, in a telephone conversation, accused of ER of having her tell lies in the trial. 1. ER was also interviewed by police in June 2007. She denied having given false evidence in the trial. She agreed that, while E was staying with JC in 2002, E had, in a telephone conversation, said to her: "Mum, you made me lie about Dad." She said that while this conversation was taking place, she could hear JC and ER's niece "screaming in the background". 1. In her evidence on the appeal, ER again agreed that she had had a telephone conversation with E in 2002 in which E accused her of making her (E) lie in the trial, but said that she had responded by denying having done so. 2. For medical reasons, JC was not called to give oral evidence on the appeal. 3. There was also evidence in the appeal from a former friend of E (Tammy Toobey), with whom E had fallen out, to the effect that E had told her that she had lied about the applicant in court. 4. In a joint judgment (GAR v R (No 1) [2010] NSWCCA 163), the Court of Criminal Appeal accepted ER's evidence as "clearly true" and rejected JC's evidence as "not believable". It considered that E: "… was prepared to agree to anything that was put to her by her father's counsel." The Court said, inter alia: "95 As will be appreciated from the extract of E's evidence as recorded above, E was asserting in fact that her mother was aware that E had made a statement to the police indicating what she had heard her mother say to her father at 2am on the morning of 14 January and what her father said to her mother the same morning which was untrue; second, again to her mother's knowledge, that E had given evidence in accordance with that statement which was untrue; third, that E 'felt that [her mother] had made [her] tell lies' – a course she had adopted – being statements made by her mother and her father, which E knew were not true because she had not heard them. 96 Thus, although E accepted that her mother had not asked her to provide false evidence to support her own, nevertheless E knew that she had not heard anything that night and she knew that she was providing false evidence as to what she said she had heard." The Court made the following observation: "122 Further, as the Crown submitted, E had given a number of conflicting versions relating to her mother. The first, given to JC, the appellant, Mr Carroll and Ms Toobey, was that ER got her to lie in court as to what she heard passing between her parents in the early hours of the morning of 14 January and that she had in fact lied. The second, given to the police in her original statement, her evidence at trial and in her 2007 ERISP [sic], was that her evidence at trial was true. The third, given in her 2007 ERISP [sic] and her evidence before this Court, was that her mother had never asked her to lie about her father to the police or to lie at the trial." 1. The Court held that the evidence (in the appeal) of ER was "not only credible but also cogent" but that the evidence of E "was neither cogent, credible nor plausible". 2. Applying well established principles concerning the disposition of appeals founded on asserted fresh evidence (see R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356), the Court therefore dismissed the appeal. 3. On 2 March 2014 the applicant again applied under s 78 for an inquiry into his conviction. The bases for this application included an affidavit sworn by RM to the effect that, although he had had a conversation with ER on the morning of 14 January 2002, she had not made any complaint of sexual assault. (This contradicted the trial evidence of ER that she had told RM "what happened".) A second ground, which can be passed over, concerned a complaint about certain medical evidence in the trial. 4. On 4 December 2014 Adamson J dismissed that application: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734. It is unnecessary further to explore this application. 5. On 2 December 2015, in circumstances not disclosed in the evidence, E and ER, in the presence of a Justice of the Peace (Ian West) signed a document. On one side of the document, in typescript, the following appears: "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 [G…], please don't,' or similar. When I made my statement to police and gave evidence, it was false. Signed by [E] [E] Dated 2/12/15 Under the inducement that this evidence will not be used to prosecute any offence against me [ER]. [ER] STATES THE FOLLOWING:- 'The statement made by my daughter [E] above is TRUE.' Signed by [ER] Dated 2/12/15." Both signatures are witnessed by Ian West JP. 1. On the reverse side of the document, in handwriting, appears the following: "I, [ER] state The words '[G…] please don't' were my first words uttered as [G] placed his hand over my mouth and nose – he then said 'You make one fucking sound, I will snap your f…. neck – he wanted for my daughter to be asleep – the crime did occur – I stand by my statement." 1. This handwriting also appears to be signed by ER, and is dated 2 December 2015. I will refer to this document as "the 2015 document". 2. A statement by Mr West authenticates his signatures on the typescript. Mr West does not remember previously sighting the handwritten part of the document. He had no other recollection of the signatories or the documents. He said he did not read the contents of documents prior to witnessing signatures. 3. Since, for reasons outlined above, no oral evidence was given before the primary judge, there is no explanation of how the 2015 document came into existence, and no explanation of the references to "inducement". 4. On the basis of that document, on 2 March 2016, the applicant made a third application for inquiry into his conviction. This application was also allocated to Adamson J. 5. As mentioned above, on 29 August 2016, her Honour dismissed the application: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205. That is the determination the subject of the present application in this Court. The reasons of the primary judge 1. At the outset of her reasons, the primary judge set out in full the 2015 document, which was the foundation for the application. However, there is, as counsel for the Attorney General concedes, a factual error, the significance of which will be discussed below. Her Honour misread the date of the handwritten statement as "2.10.15". It is in fact dated 2 December 2015, the same date as the two typewritten statements on the reverse side of the document. Her Honour appears to have attributed some significance to what she then thought was a period of two months between the making of the handwritten statement by ER, and the making of the typewritten statement. She perceived an inconsistency (though indirect) between the two statements. 2. Her Honour then set out relevant circumstances to which it is not necessary to go, and, under the heading "Consideration", she said: "42 The Court of Criminal Appeal in the Review Appeal had an opportunity to hear and see E's evidence and assess her credibility. Its finding that she was not to be believed because she was prepared to say anything that would advance the applicant's position reflected that advantage. 43 What is apparently new is the statement by ER that E's statement was true. This statement is inconsistent with ER's evidence at trial and her evidence at the Review Appeal. It is also, in some respects, inconsistent with the handwritten statement dated 2 October 2015 although the inconsistency is not direct (since the earlier statement relates to the incident itself whereas the typed statement relates to what ER said to E). 44 In my view, the question whether E and ER were telling the truth about the incident and its immediate aftermath has already been fully investigated both at the trial and on the Review Appeal. That a witness or victim might, after an offender has been released from custody, appear to recant from evidence given at a trial or on an appeal, does not necessarily create a doubt about the offender's guilt. Such recanting could also be explained by other factors. In the case of E, her relationship with her father, the applicant, is likely to be substantially affected by what E says or said about his conduct. ER, too, might be inclined to say other than the truth in order to assist E, or in the belief that nothing is to be gained by not providing a statement that the applicant has requested, since he has already served his sentence. Nonetheless, whatever ER said in the 'induced' statement, she adhered to her evidence that the offence occurred, as appears from her handwritten statement dated 2 October 2015. 45 … 46 It does not appear to me that there is a doubt or question as to the applicant's guilt, or any doubt as to the evidence of E and ER in the trial. Any doubt which existed prior to the Review Appeal has, in my view, been removed by that appeal. I am not persuaded that it is necessary to consider the application further. Accordingly the application is dismissed." The application to this Court 1. At [131] Payne JA has extracted and paraphrased the grounds of the present application pleaded by the applicant in the Amended Summons. It is to be emphasised that, because the function being exercised by the primary judge was administrative, and not judicial, the applicant's entitlement to review of the primary judge's decision is limited; his entrée into this Court lies only under s 69 or s 75 of the Supreme Court Act, and not by way of appeal under s 101. He further limited his avenues by relying only on jurisdictional error, to the exclusion of error of law on the face of the record. 2. Nonetheless, I have come to the view that he has established grounds for relief. 3. The grounds advanced by the applicant may be further summarised as: (i) that the primary judge took into account extraneous or irrelevant considerations – those considerations being possible explanations for E or ER having recanted from their original evidence implicating the applicant (see [44] of the determination); (ii) error of principle in failing to accept a view (of the facts) most favourable to the applicant in assessing the credibility of the fresh evidence (the fresh evidence being the statements in the 2015 document); (iii) factual error in respect of the date of the handwritten statement on the 2015 documents; (iv) error in failing to take into account discrepancies between the evidence of ER (in the trial) concerning facial scratching, and the medical evidence. Analysis 1. There is one obvious construction to be placed on the 2015 document. That is that: E asserted: * that ER had asked E falsely to corroborate ER's evidence at trial; * that she had done so; * that the evidence she had given was false; ER: * confirmed that E's statements were true; * but, nevertheless, maintained (in the handwritten statement) that her complaint of sexual assault was true. 1. There may be other explanations for the statements in the document which are not immediately apparent and cannot at present be explored. What is now important is that, on that proposed construction, there is no inconsistency between ER's two statements (contrary to the view expressed by the primary judge in [43]). There is no inconsistency in admitting to procuring false corroboration of a true complaint. Jurisdictional error 1. I have concluded that it is unnecessary to dissect the grounds specified by the applicant. That is because I am satisfied that the primary judge failed to address the question committed to her, and, accordingly, failed to exercise the jurisdiction conferred: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088; [2003] HCA 26 at [32]; Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1; Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220 at [39]. 2. To reiterate, by s 79 of the CAR Act, the Supreme Court may direct that an inquiry be conducted into a conviction or sentence, (or may refer "the whole case" to the Court of Criminal Appeal) if (and only if) it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstance in the case, or as to any part of the evidence in the case. The task is not a composite one; it is tripartite. The section potentially calls for attention to three discrete and distinct issues. (I say "potentially" because not each issue will call for attention in each case. What is called for will depend upon the circumstances of the individual case.) There remain, however, three components to s 79, each of which is, as I have said, separate and distinct and needs, where it arises, to be addressed separately from the others. The three components are (in the sequence stated in the legislation): * the guilt of the convicted person; * any mitigating circumstances in the case; and * any part of the evidence in the case. In Sinkovich (at [27]) Basten JA also pointed out the tripartite nature of the exercise prescribed by s 29(4). 1. The second of the three heads prescribed for inquiry is peculiarly related to questions of sentence and can for present purposes be put to one side. The first and third relate to conviction, although the third could also relate to sentence. 2. In Sinkovich, Basten JA (with whom Bathurst CJ, Beazley P, and Price and Beech-Jones JJ agreed) likened the "overriding purpose" of Pt 7 to: "… the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt …" (at [52]) He added (reviewing the long history of the Pt 7 provisions and their predecessors) that: "… the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention." 1. To that I would add that the inclusion of "any part of the evidence" in the trio of issues that could warrant the further investigation of a conviction by inquiry or appeal reflects the importance placed by the criminal justice system on, not only the outcome of criminal proceedings, but the integrity of the process by which the outcome is reached. The legislature could have, but expressly did not, confine the circumstances that might give rise to further investigation of a conviction to doubts or questions about the guilt of the convicted person. 2. That there appears to the judge to be a doubt or question about any part of the evidence is sufficient to warrant directing an inquiry or referring the case to the Court of Criminal Appeal, even if it is unlikely that the evidence in question was determinative (although the importance of the evidence, as well as the extent of any concerns about its integrity, may well be relevant to the exercise of the discretion to take one of the steps provided by s 79(2)). Resolution 1. I begin by stating the proposition that the question committed to the judge to whom a s 78 application is allocated is not whether there exists, objectively, a doubt or a question as to the guilt of the convicted person, or as to any evidence in the case. The question so committed is whether it appears to that judge that there is such a doubt or question: Sinkovich at [26]; Buttrose at [16]. That is, I acknowledge, a substantial limitation on the extent to which this Court may intrude into the consideration. 2. Nevertheless, if the judge to whom an application is allocated fails to address his or her satisfaction that there exists a relevant doubt or question, jurisdictional error is established. In my opinion that is this case. 3. A further preliminary proposition is this. The foundation for the application was the 2015 document. In the absence of any evidence (other than that of Mr West) as to its provenance, it must be taken at face value – that is, an admission by E that she had, at the behest of ER, given false evidence at the applicant's trial, and a further admission by ER that that was the case. (ER's further assertion that her complaint of sexual assault by the applicant was true does not advance the question of the veracity of E's evidence at trial.) 4. Examination of the primary judge's reasons establishes to my satisfaction that she focussed exclusively upon the first question – whether it appeared to her that there was a doubt or question as to the applicant's guilt. So much is apparent from [44], which she commenced by considering whether E and ER were (at the trial) telling the truth about the incident and its immediate aftermath, and in which she went on, in the second sentence, to say that recanting by witnesses from evidence "does not necessarily create a doubt about the offender's guilt". Moreover, in [42] and [46] her Honour placed heavy reliance upon, and, indeed, adopted, the findings of the 2010 Court of Criminal Appeal as to the credibility of E, notwithstanding that the later statement by E, and, more particularly, the statement apparently by ER, cast considerable doubt on those findings, and put the credibility of E in a different light. Indeed, the primary judge paid little attention to the impact of what must for present purposes be taken to be an admission by ER that she had procured E to give false evidence. 5. Inherent in the approach taken by the primary judge was a paradox; she accepted the truth of E's evidence at trial (based on the assessment of E's credibility by the Court of Criminal Appeal) notwithstanding that, in the same decision, the Court of Criminal Appeal found E to be a witness lacking credibility, cogency and plausibility, and notwithstanding the apparent evidence in the 2015 document in which E reiterated her disclaimer of her trial evidence, and ER confirmed that disclaimer. The primary judge did not, in my opinion, give any real consideration to the impact of ER's part of the 2015 document, instead hypothesising about possible reasons for ER's apparent admission. It was not sufficient to say, as she did in [46], that "It does not appear to me that there is a doubt or question as to the applicant's guilt, or any doubt as to the evidence of E and ER in the trial", particularly as that was followed by unquestioning reliance on the factual findings of the Court of Criminal Appeal, which did not have available to it the evidence of the statutory declarations. 6. I accept also the applicant's contention that the balance of [44] contains no more than a hypothesis as to a potential reason why "a witness or victim" might "recant" from evidence given in the trial and was an irrelevant factor. Given that the entire consideration of the primary judge was (in accordance with usual practice) undertaken without any oral hearing, the hypothesis remains speculation, without any evidentiary foundation. 7. The primary judge failed to address her attention to the separate question whether it appeared to her that a doubt or question existed as to "any part of the evidence in the case". The relevant part of the evidence was, of course, the evidence of E that at about 2.00am she had heard ER say "Please don't [G…], please don't". 8. The significance of that evidence in the trial cannot be doubted. This was a case in which (apart from the evidence of E) the only direct evidence of the offence charged was that of ER, the complainant. In 2002, in those circumstances, a trial judge was obliged to give a direction in accordance with R v Murray (1987) 11 NSWLR 12, to the effect that, where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before a verdict of guilty could be found. (For completeness, it should be noted that such a direction is now not only not required; it is, in cases of sexual offences, prohibited: Ewen v R (2015) 250 A Crim R 544; [2015] NSWCCA 117.) In the applicant's trial, the corroborative evidence of E obviated the need or, indeed, the opportunity, for such a direction. 9. E's evidence must be taken to have carried considerable weight with the jury and to have been highly influential in his conviction. 10. The question therefore was whether it appeared to the primary judge that a doubt or question existed as to that evidence. Section 79(2) does not require that the doubt or question be such as to affect the assessment of the guilt of the convicted person; it is sufficient if the doubt or question exists as to any part of the evidence. If such a doubt or question appears, it is necessary to give consideration to what, if any, orders under s 79(1) ought to be made. 11. To the extent that the primary judge addressed this question, she did so on the basis that E's veracity had been accepted and therefore established by the conclusions in the 2010 Court of Criminal Appeal judgment, that E's evidence in those proceedings was not credible, cogent or plausible. 12. However, that conclusion was reached by the Court of Criminal Appeal in a different context, in which it was required to consider the impact of evidence that E had admitted to the applicant at the prison that she had given false evidence at the behest of ER, in the light of the evidence given by both E and ER in the appeal. 13. The issue concerning a doubt or question as to any part of the evidence in the trial could not be resolved by reliance on the credibility findings of the Court of Criminal Appeal in 2010. The issue before that Court was a different one. It was (perhaps because of the way the case was then presented) whether fresh evidence adduced on behalf of the applicant (the evidence of the conversation in the presence of Mr Carroll) cast doubt upon the reliability of the conviction. In rejecting the evidence of E as not credible, cogent or plausible, and accepting the evidence of ER as credible and persuasive, the Court of Criminal Appeal concluded that the conviction was soundly based. 14. By contrast, the question presented to the primary judge was whether there was (or appeared to be) a doubt or question as to one discrete part of the evidence that resulted in that conviction. Not only were there the conflicting accounts given by E: there was the apparent confirmation by ER that the evidence of E was, in a material respect, false. 15. In a sense, the real question has been confused by focus upon the role played by ER in the fabrication (if that is what it was) of evidence by E. The true question is whether there was a doubt or question about the veracity of E's evidence. The impetus for any such fabrication was peripheral, relevant to help establish that the evidence was fabricated, but otherwise tangential. 16. Further, and more importantly, the Court of Criminal Appeal reached its conclusions without the additional circumstance of the 2015 document, in which (at least on its face – neither its provenance nor its reliability could be determined in the absence of any investigation) ER admitted that she had procured false testimony from E. 17. That alone (as the Attorney General conceded before the primary judge) was sufficient to require a comprehensive examination of E's credibility. That could not be achieved "on the papers". It will be remembered that E (and ER) had agreed to the affidavit evidence of JC that E and ER had had a telephone conversation in which E had accused ER of asking her to lie in court about the applicant. 18. The apparent acknowledgement in 2015 by ER that she had procured E to give false evidence at the applicant's trial demanded a proper scrutiny of E's evidence, and the various statements she had made from time to time thereafter. 19. In failing to address their question, the primary judge fell into jurisdictional error. 20. Given these circumstances, there appears to be no reason why, without further inquiry, E's evidence at trial should be accorded more faith than her statements and evidence that contradicted it. 21. In my opinion, had the primary judge addressed the question concerning E's evidence as a discrete issue, she could not have avoided a conclusion that an inquiry should be directed. Although it may have been open to her to order, as Barr J had done previously, that the whole case be referred to the Court of Criminal Appeal to be dealt with as an appeal, in my opinion the more appropriate course was for an inquiry to be conducted by a judicial officer who would have the opportunity, sitting as a single judge, to make necessary and appropriate findings of fact. Should that course have been taken, the judicial officer could, under s 82(1)(b) of the CAR Act, report the results of the inquiry to the Chief Justice, or, under s 82(2)(a), refer the matter to the Court of Criminal Appeal for consideration whether the conviction should be quashed. 22. In my respectful opinion, the primary judge failed to address one of the questions which she was required to address. Jurisdictional error is established. 23. That leaves the question of what orders ought to be made. 24. The order primarily sought by the applicant was an order in the nature of certiorari quashing the determination of the primary judge. This, if granted, would be an exercise of the power conferred on this Court by s 69 of the Supreme Court Act. 25. Complex questions concerning the availability of relief of that kind in respect of determinations under Pt 10 of the CAR Act have been recognised, but not resolved: see Sinkovich at [66]-[76], Buttrose at [12]. 26. The same issues do not arise in relation to declaratory orders under s 75 of the Supreme Court Act. The justice of this case may be met by making a declaration along the lines of those made in those two cases. 27. I would, therefore: Declare that, in considering the applicant's application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), the primary judge failed to address whether it appeared that there was a doubt or question as to a particular part of the evidence in the applicant's trial in October 2002 and, accordingly, fell into jurisdictional error. 1. I appreciate, as Payne JA has pointed out in his additional observations, that, if the current application is dismissed, the applicant would nevertheless be entitled to bring a further application, with enhanced evidentiary material. That, in my opinion, is no answer to his entitlement to have his present application decided according to law. 2. PAYNE JA: By amended summons dated 15 June 2017 the applicant seeks judicial review of a decision of the primary judge refusing his application for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) into his conviction for sexual intercourse without consent: GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1205. 3. The nature of this application invokes the supervisory jurisdiction of the Supreme Court conferred by s 69 of the Supreme Court Act 1970 (NSW) in respect to the administrative function exercised by the primary judge. The applicant seeks orders in the nature of certiorari and mandamus. Alternatively, he seeks a range of declaratory relief. 4. Although the applicant's amended summons did not make clear whether any error of law on the face of the record was alleged, the applicant clarified in the course of his oral submissions that his complaints were limited to errors which allegedly constituted jurisdictional error. Accordingly, the only question before this Court is whether the primary judge fell into jurisdictional error in her failure to form the state of satisfaction required by s 79(2) to take one of the courses that would then have been open to her Honour under s 79(1) of the CAR Act. 5. It is convenient briefly to explain the background giving rise to this application for an inquiry into the applicant's 2002 conviction. Factual background 1. On 1 November 2002, a jury returned a guilty verdict on an indictment alleging that on or about 14 January 2002 at Doonside the applicant had sexual intercourse with his wife (ER), without her consent and knowing that she was not consenting. The applicant was sentenced to a term of imprisonment of 6 years, with a non-parole period of 4 years and 6 months. The term of imprisonment expired on 4 April 2008. The applicant is presently serving a term of imprisonment for two armed robbery offences, unrelated to those the subject of this appeal: GAR v Attorney General of NSW [2017] NSWCA 47 at [7]. The facts in relation to the applicant's sexual assault conviction may be summarised as follows: 1. On the morning of 13 January 2002, a few days after GAR and ER divorced, GAR went to the house in which ER and ER and GAR's daughter, then 12 years of age, resided (E); 2. The Crown case was that GAR remained in the house, contrary to requests from ER that he leave. The circumstances in which GAR remained in the house were the subject of a wrongful detention count in the indictment at the trial on which he was acquitted; 3. At about midnight, ER went to bed in her room, remaining fully dressed. About 15 minutes later, GAR came into the room and approached her. ER said, "Don't do this to me G. Please don't do this to me". GAR then had sexual intercourse with ER without her consent. Sometime later, he left the house; 4. ER showered, dressed and then telephoned a friend, RM. In the early morning, at about 6am, she had a conversation with E. A telephone call was made to the police. At about 11:20 am two police officers attended the house and had a conversation with ER. Later that afternoon, ER attended Westmead Hospital where a Dr Sterrett took a history, examined her and prepared a report; 5. ER was the main Crown witness at the trial. She gave evidence that her injuries included "scratches where [GAR had] dug his fingernails into the, on my face when he had his hand over my face"; 6. The two other Crown witnesses were, relevantly, E and Detective Senior Constable Peter Crampton. Detective Crampton gave complaint evidence with respect to taking ER's statement on 14 January 2002; 7. E's evidence corroborated her mother's evidence in a number of respects. She gave evidence that in the early hours of the morning of 14 January 2002, she overheard her mother pleading with GAR. She also gave evidence (relied on by the Crown as evidence of complaint) that in her morning conversation with ER, she had said to her mother "I know he raped you" and ER had replied "Yes he did", following which E called the police; 8. The defence case at trial was that during the afternoon of 13 January 2002, GAR and ER reconciled. GAR gave evidence that after E went to bed, consensual intercourse took place between ER and himself several times. 1. The applicant's oral submissions in this Court made clear that his belief is that if, following an inquiry under s 79 of the CAR Act, his sexual assault conviction is quashed, he would then be eligible for release from prison. The applicant's appeal to the CCA in 2003 1. On 19 August 2003, the applicant's appeal against his conviction was dismissed, and leave to appeal against his sentence was refused by the Court of Criminal Appeal comprising, Spigelman CJ, Bell J and Miles AJ: R v GAR [2003] NSWCCA 224. 2. One of the grounds in that appeal was that the trial judge erred in law in directing and/or failing to direct the jury adequately or properly as to ER's complaint. The Court referred to aspects of the evidence that the trial judge summarised, in his directions, as complaint evidence. This summary was set out by the primary judge in the present case at [19]: "1. ER's evidence in relation to ringing RM, and, in cross-examination, that she had 'told him what had happened.' 2. The evidence of the daughter, E, that after she woke and saw her mother in the dining room, she said 'Mum I'm calling the police.' ER replied 'No, don't.' The daughter responded 'I know he raped you.' ER replied 'Yes he did.' The daughter then rang the police. 3. Evidence about which his Honour said there was no dispute, namely that the police 'received a complaint from the complainant that morning she had been raped by the accused.' 4. Evidence of Constable White, who accompanied Constable Wharfe to the house at about 11.30 am on 14 January 2002 and heard ER say to Constable Wharfe, 'He wouldn't let us leave the house, and I couldn't call anyone, when I went to bed, he came in and raped me'. This evidence was also not challenged. 5. A certificate admitted under s 177 of the Evidence Act 1995 (NSW) signed by Dr Sterrett, recording that ER arrived at the Westmead Hospital on 14 January 2002 and gave a history of abuse by her ex-husband including 'threats against her life, holding her down with physical force (hand on face and throat) and vaginal rape with penile penetration and, she believed, ejaculation'." 1. The Court of Criminal Appeal concluded that the trial judge's directions in relation to the evidence of ER said to amount to a complaint to RM were inaccurate. Miles AJ referred to relevant authorities, and said at [47]: "evidence of complaint is no longer admitted in effect to bolster or strengthen the credit of the complainant, but as evidence of the facts intended to be represented". Miles AJ also noted at [47]-[48]: "[47] The fact of the telephone call in itself was irrelevant. Arguably it might have been relevant for her to say in evidence that she 'told him what happened', but the probative value of her telling RM 'what happened' was well outweighed by the likelihood of unfair prejudice, the jury being invited in effect to speculate upon what it was that she said to RM. Hence evidence that she told him 'what happened', if it had been objected to, was likely to have been rejected on discretionary grounds under s 135 or 137 of the Evidence Act." [48] Since the evidence went no higher than establishing that the complainant told RM 'what happened', the jury should not have been left in the situation where they had been instructed that the complainant had made a complaint to RM." 1. Notwithstanding Miles AJ's conclusion that the directions on the complaint evidence were inaccurate in so far as ER's statements to RM were concerned, leave to appeal was refused under r 4 of the Criminal Appeal Rules (NSW) as: 1. the evidence was not objected to; 2. ER was cross-examined about her statement to RM, presumably to impugn her credit by investigating possible inconsistency; and 3. no direction was sought at the end of the summing-up. E's evidence at trial 1. The relevant evidence that E gave at trial was identified by the Court of Criminal Appeal in GAR v R (No 1) [2010] NSWCCA 163 as follows: "49 At the time of the alleged offences, E was a few weeks short of her thirteenth birthday. By the time of the trial she was 13 years and 8 months. In chief she gave evidence relevant to the first count that corroborated her mother's evidence in a number of respects that are no longer relevant. 50 With respect to the second count, the following exchange took place between E and the Crown Prosecutor : 'CROWN PROSECUTOR: Q. Do you have any recollection of hearing your father at any other stage during this day or night? A. I heard noises early in the – in the morning. Q. When you say 'in the morning' do you mean in the Sunday morning when your dad arrived or the next morning? A. The next morning. Q. Can you tell us how early do you think it was? A. I think it was about 2 o'clock. Q. What could you hear at that time. A. I heard my mother saying 'Please don't [GAR], please don't'. Q. Did you hear your father say anything? A. No, but I heard him say something at 4 o'clock in the morning. Q. When your mother said these words, 'Please don't, please don't ', did you hear anything else at that time? A. Yes. Q. What did you hear? A. I heard my father say something about 'I don't care what you call it but I call it revenge'. Q. Did you hear anything else at that time, that is when your mother used those words? A. No, I don't think so.'" (Emphasis added) 51 E was then asked whether she then went back to sleep and she agreed that she did. She then said that she woke at about 4am and heard her father say 'Well I'm fucking going' and heard the front door slam. When she got up she found her mother 'in the dining room crying on the chair'. She then gave the following evidence : 'Q. Did you speak to your mother at that time? A. Yes. Q. And what did you say? A. I said 'Mum, I'm calling the police'. She said 'No, don't' and I said 'I know he raped you' and then she said 'Yes, he did', so I called the police straight away.' 52 E had given a statement to the police on 14 January 2002. In cross-examination it was put to her that in that statement she had stated that she went to sleep about 9pm and woke at 2am exactly. The following exchange then took place: 'Q. What happened when you woke up at 2 o'clock? I withdraw that. What happened when you woke up and looked at the clock and - - A. I heard my mother saying to my father '[GAR], please don't, please don't' and I tried to pretend I was dreaming and went straight back to sleep. Q. What do you mean you tried to pretend you were dreaming? A. I knew what my father was doing to my mother. I was scared. I just tried my hardest to go back to sleep.' 53 A little later on in her cross-examination E said that she awoke at about 4am and heard her father say "Well I'm effing going". The following exchange then occurred : 'Q. And you can't remember any other words being used by your father, apart from 'I'm fucking going' and that's it? A. Yeah I do. I remember him saying 'I don't care what you call it, but I call it a square up' or something or revenge or something.' (Emphasis added) This last answer was consistent with the answer which we have last emphasised in E's evidence-in-chief extracted at [50] above. 54 It was put to E that she went down the hallway to see how her mother was, which she denied. She said that she was concerned about her mother being raped but had done nothing about it as it was the norm as GAR and her mother always used to fight and argue and she had gotten used to it. 55 The appellant's counsel then cross-examined E with respect to what had occurred after she woke up that morning. The following exchange then occurred : 'Q. So when you woke up, what happened? A. What do you mean when I woke up? Q. When you woke up in the morning – I'm sorry, I wasn't clear there – when you woke up finally before you got up, what happened? A. I went out to the – like the back room of my house and I told my mum. I said 'I know what happened to you. I know dad raped you'. She said – I said 'I'm calling the police'. She said 'No'. I said 'I know he raped you' and she said 'Yes he did' and I went and called the police. Q. Now you made a false allegation, didn't you, when you said that, didn't you? A. No. Q. Because when you woke up, you were thinking that maybe your mother and father had got back together again? A. Yeah. Q. So are you saying that you said to your mother that you heard something during the night and you were calling the police. A. Yes. Q. What was your mother's response? A. Yes he did. Q. Didn't you say a moment ago your mother said 'No' when you said 'I'm calling the police'? A. Yeah, first of all she said 'No' when I said - - Q. Right okay, if I could just hold you there – so when you first started talking to her, your mother didn't want you to call the police, is that right? A. Yeap. Q. But you decided you would anyway? A. Yeah. Q. What phone did you call the police on? A. Home phone. Q. What did you say when you rang the police? A. I don't remember.' 56 Two observations may be made with respect to the evidence recorded in the preceding paragraph. The first is that it is to a degree consistent with ER's evidence which we have extracted at [42] and [44] above. However, ER was adamant that she did not tell her daughter that she had been raped. Second, although E said to her mother 'I know what happened to you. I know dad raped you', she did not give evidence that she had told her mother that she had heard her say 'Please don't [GAR], please don't'. Furthermore, the appellant's trial counsel did not suggest to her that she had not heard her mother saying those words: on the contrary, E repeated that she had heard her mother say those words in the exchange referred to at [52] above." The first s 78 application 1. On 29 November 2007, the applicant made his first application under s 78 of the CAR Act for an inquiry into his conviction (the first s 78 application). 2. On 2 February 2009 Barr J determined the first s 78 application and referred it under s 79(1)(b) to the Court of Criminal Appeal comprising Tobias JA, Johnson and Rothman JJ, as if it were an appeal under the Criminal Appeal Act 1912 (NSW). The basis for his Honour's referral of the matter was a statement that E was said to have made to her father, on a visit to Long Bay Gaol (in the company of a friend of her father's, John Carroll), that she had not heard anything that night and that her mother had told her to say that she had. It is convenient to reproduce this evidence from the Court's judgment (at [57]), which was contained in an affidavit tendered by the applicant sworn on 13 October 2006: "He said to her 'E in front of John, tell the truth about what you heard the night you said you heard me sexually assault your mother'. E responded, 'I didn't hear anything, mum got me to say that I did because she said they wouldn't believe her by herself'. The appellant said 'I saw you come up to ER's bedroom door in the early hours that morning and we were just sleeping'. E said 'Yes, I saw you'." 1. It was also alleged that E had made a similar statement to the applicant's sister, JC, and to a former friend of ER. In an affidavit sworn on 12 April 2007 JC recounted a conversation she observed E have with ER on the telephone (reproduced at [60] of the CCA judgment): "During the conversation [E] started arguing with her mother. [E] said words to the effect, 'Mum you made me lie about dad'. [ER] said words, 'You had to or no one would believe me, there wouldn't be a case'. [E] said words to the effect, 'Mum you made me tell lies'." 1. E was interviewed by police on 21 June 2007. She denied lying in court about her father and addressed a number of questions asked by the interviewer about her visit to gaol in 2005 (reproduced at [76] of the CCA judgment): "Q31. … Did you visit your father in 2005 at Long Bay Gaol? A. Yes. Q32. And were you with John Carroll? A. Yes. Q33. Did you tell your father, during that visit, that your mother got you to tell lies about him in court? A. Yes. Q34. Why did you tell him that? A. Probably to keep the peace with my father and my mother - Q35. Right. A. --- it's very hard where I stand between them both, and just to give my dad hope, I guess. … Q37. What you told your father about lying in court, that was not the truth, is that correct? A. No. … Q40. Did you ever tell any other person that your mother had asked you to lie in court? A. No. Q41. So as far as you remember, it's just that one time when you visited your father? A. Just, and my auntie, probably. … Q42. OK. So you think you may have told [JC] at one point? A. At, yeah. Q43. And was that for the same reason? A. She's, yes. Most definitely. Q44. OK. All right. And this is, so just, just to clarify. So this is because you feel torn between them? A. I do. … Q46. Can you remember when you, when you actually spoke to your auntie about this lying in court stuff? A. Yes. … Q48. Was it around, around the 2002, when you stayed over? A. Around, yeah. Q49. Yes. How did that conversation happen? A. My auntie pressuring me about the whole situation. Just, I was meant to be going up there actually to get away from it all, but just my dad ringing and my aunt, it's just ongoing." 1. Both E and ER gave evidence at the hearing before the CCA. E was asked to reread her record of interview with the police about which the Court made the following observations: "81 However, E then said that she had not properly read her record of interview and she was then asked to read it and to indicate which answers she now said were incorrect. She did this and indicated that her answer to Q7 "Did you tell lies about your father in court?" and to which she had answered "No", was untrue and that the answer should have been "Yes". She was then referred to Q8 which was: 'Q8. Did your mother ever ask you to lie about your father to police? A. No.' When asked whether that answer was correct, she responded: 'Question 8 is fine. My mother never asked me to lie to the police. And question 9, my mother never asked me to lie in court. But I was incredibly influenced by whatever my mother had told me had happened on that occasion.'" 1. E was asked in cross-examination about her police interview where she discussed visiting her father in gaol in April 2005. The CCA reproduced at [83] the following exchange between counsel and E: "Q. The question you were asked in question 34 is why you told your father that your mother got you to tell lies about him in court? A. Because I felt like I was told to lie about my father in court. Q. In what way did you feel that? A. My mother constantly telling me what had happened, and what he had done to her, the police coming around and questioning and speaking to my mum. I felt like I was so peer pressured into believing what my mother had told me was – had gone on. Q. As I understand your evidence, you are not saying that your mother told you to lie in court? A. No, no. Q. But you gave evidence in court which you thought supported your mother? A. Yes. Q. Because of the fact that she had indicated to you what had happened, and you were upset about that? A. Yes. Q. But as to what you had heard, what you had seen, but you are saying now that you neither heard nor saw that which you gave evidence about? A. Yes. Q. Would that be a fair summary? A. Yes." 1. In the CCA, E eventually recanted the evidence she gave at trial about hearing or seeing anything, in particular evidence that: 1. she heard her mum say at 2am, "Please don't [GAR], please don't"; 2. she heard her father say to her mother: "I don't care what you call it but I call it revenge" or "Well, I'm fucking going" at 4am before slamming the front door; 3. she found her mother in the dining room, crying or told her mother that she was calling the police; 4. she heard her mother say: "No, don't" to which E responded, "I know he raped you", to which her mother responded, "Yes, he did". 1. E also gave evidence that she discussed the contents of her police statement with her mother and that she had felt pressured to help her mother at trial. 2. ER gave evidence before the CCA that she did not know what her daughter had, or had not, heard in the early hours of 14 January 2002 and denied having seen E's police statement or having discussed its contents with her. 3. On 5 August 2010, the CCA dismissed the appeal following the first s 78 application: GAR v R (No 1) [2010] NSWCCA 163. The CCA rejected the evidence of E described above and accepted the evidence of ER. 4. The Court made the following observations about the evidence of E and ER at [151]: "… (c) In our view, the evidence given before this Court by ER was not only credible but also cogent. On the other hand, that of her daughter, E, was neither cogent, credible nor plausible. In particular: (i) were it not for the fact that in her evidence before this Court she accepted, indeed practically volunteered, that her evidence at trial as to what she had heard in the early hours of the morning of 14 January was untrue, we would have regarded her admission to her father in April 2005 as well as her statements to her aunt and Ms Toobey that she had lied in giving that evidence as explicable by her desire to placate her father and, as she said, to give him 'some hope'; . . . (iii) as to the retraction by E of her answer to Q7 in her ERISP when, without warning, she said that that answer to Q7 was untrue, applying, as it did, to the answers in her evidence-in-chief at trial which we have emphasised at [50] above, we would not regard that retraction as plausible or capable of belief given our conclusion, referred to at [94] above, that it was clear from the evidence that she gave before this Court when cross-examined on behalf of the appellant, that she was prepared to agree to anything that was put to her by her father's counsel and which reflected in the appellant's favour; (iv) in any event, there were a number of inconsistencies or unsatisfactory aspects in her evidence given before this Court first, with respect to whether or not she had told her mother on the morning of 14 January that she had not heard anything in the early hours of that morning; and, second, with respect to her evidence that her mother was aware that the contents of her statement to the police, as well as the evidence that she proposed to give at trial, was false to her mother's knowledge. …" The second s 78 application 1. On 2 March 2014, the applicant made a further application under s 78 of the CAR Act for an inquiry into his conviction (the second s 78 application). 2. The second s 78 application was based on the following evidence: 1. an affidavit of RM sworn on 15 July 2012 in which he deposed that when he spoke to ER on the morning of 14 January 2002 she did not say anything to him about GAR sexually assaulting her; and 2. a missing page from the medical report of Dr Sterrett, who had examined ER on 14 January 2002. 1. Adamson J considered the second s 78 application. Her Honour held that the evidence of RM did not give rise to any doubt or question about the applicant's guilt. While her Honour accepted that RM's affidavit evidence demonstrated a lack of evidence of consistency of complaint, she rejected its ability to affect ER's credibility since the contents of her conversation with RM that morning were not explored at trial. Her Honour rejected the applicant's submission that RM's evidence bolstered ER's credibility on the Review Appeal, observing that the Court on the Review Appeal had excluded ER's evidence about RM from its consideration. 2. In relation to Dr Sterrett's report, the applicant contended that the medical evidence did not corroborate the entirety of ER's evidence, in particular, her evidence that the applicant scratched her face. Adamson J rejected this submission. Her Honour observed that the point had not been overlooked at trial as applicant's counsel had used Dr Sterrett's report to cross-examine ER about her injuries and had addressed the jury about its absence of reference to facial scratches. 3. On 4 December 2014, Adamson J dismissed the second s 78 application: GAR v Attorney General for the State of New South Wales [2014] NSWSC 1734. The third s 78 application 1. On 2 March 2016, the applicant made a further application under s 78 of the CAR Act for an inquiry into his conviction (the third s 78 application). 2. The third s 78 application was based on written statements apparently made by ER and E. Those statements, in full, provided 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 [signature appears] JP [number given] 2.12.15 IAN WEST 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] [signature appears] ORIGINAL LICENCE [number given] SIGHTED [signature appears] JP [number given] 2.12.15 IAN WEST ER Dated 2.12.15" 1. On the back of that statement 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. [signature appears] 2/12/15" 1. There was no evidence in the Court below and on appeal as to how these statements came into being. On the face of the statements, they were provided under the apparent "inducement" that the evidence would not be used to prosecute E or ER for any offence. There was no evidence about who, if anybody, provided this "inducement". It should be noted that during the hearing in this Court, the applicant stated that he was in possession of further information about the making of these statements: "APPLICANT: ….It is the applicant's understanding, and this is an understanding that I've been able to gather from my daughter, that the evidence will show that ER and E signed their 2015 statement in front of Mr West. ER then after leaving Mr West walked to the car with E and then in an attempt to justify her admitted fabrication of E's‑‑ BEAZLEY ACJ: No, you can't tell us matters that are not in evidence." 1. The Crown sought to investigate the origin of the documents in order to ascertain whether they were verifiable and argued that the purposes of ss 78 and 79 could appropriately be served by such an inquiry. To that end, the Crown Solicitor's Office arranged for a private investigator to interview the Justice of the Peace, Mr West, to ask whether he witnessed the signatures of E and ER on the typewritten document. Mr West signed a statement dated 15 June 2016 which the Crown attached to its submissions. 2. Mr West's statement provides as follows: "1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true. 2. I am a registered Justice of The Peace within NSW. 3. My JP number is 134279. 4. I have examined the attached document marked Annexure 'A' [the document that contains the typewritten "induced" statements of E and ER dated 2 December 2015]. The Justice of Peace details and signatures written on the document are legitimate and were signed by myself. 5. I have examined the attached document marked Annexure 'B' [the document which contains the handwritten statement of ER dated 2 October 2015]. I do not remember previously sighting the document. 6. I do not remember the documents or the persons mentioned within the documents. 7. I sign all documents relating to Justice of Peace at my residential address." 1. This leaves unresolved the questions of who provided the apparent inducement, under what circumstances it was given and how the handwritten statement came to be on the back of the final document. Decision of the primary judge 1. The primary judge considered the further evidence and the extent to which it was inconsistent with the evidence of E and ER at trial and the Review Panel. Her Honour was satisfied that the question of whether E and ER were telling the truth had already been investigated at both the trial and by the CCA as a result of the first s 78 application. The primary judge observed that merely to recant evidence given at trial or on appeal, does not necessarily create a doubt about the offender's guilt. Her Honour went on to state at [44]-[45]: "[44] ….Such recanting could also be explained by other factors. In the case of E, her relationship with her father, the applicant, is likely to be substantially affected by what E says or said about his conduct. ER, too, might be inclined to say other than the truth in order to assist E, or in the belief that nothing is to be gained by not providing a statement that the applicant has requested, since he has already served his sentence. Nonetheless, whatever ER said in the "induced" statement, she adhered to her evidence that the offence occurred, as appears from her handwritten statement dated 2 October 2015. [45] That E and ER were apparently prepared to sign these statements in the presence of Mr West, as a Justice of the Peace, does not make their statements credible. It merely tends to prove that they were not fabricated by the applicant. The statements appear to have been made by E and ER, after their having received an "inducement that the evidence will not be used to prosecute any offence" against either one of them." 1. The primary judge concluded that she was not satisfied that there was a doubt or question as to the applicant's guilt, or any doubt or question about the evidence of E or ER at trial. The primary judge dismissed the third s 78 application. The issues on appeal 1. The applicant, in his further amended summons, advanced six overlapping grounds of appeal, which can be summarised as follows: 1. the primary judge fell into error by identifying possibilities and making arbitrarily constructed findings of where the truth may lie to "explain away" the fresh evidence (grounds 1 and 3); 2. the primary judge failed to adopt a view most favourable to the applicant in assessing the credibility of the fresh evidence (ground 2); 3. the primary judge erred in not determining the application according to the truth of the facts and the truth of the applicant's submissions (grounds 4 and 5), and thus fell into error by making findings that; 1. ER's typewritten statement and handwritten statement were produced and written two months apart; and 2. ER's handwritten statement was "superseded" by her typewritten statement. 1. the primary judge erred by not to assessing ER's "fabricated face scratches" and the missing page five of Doctor Sterrett's report in the context of the 2015 fresh evidence (ground 6). Legislative framework 1. Section 78 of the CAR Act provides for applications for an inquiry into a conviction or sentence to be made to the Supreme Court by a convicted person or by another person on behalf of the convicted person. 2. Section 79 relevantly provides: "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." The test under s 79 of the CAR Act 1. Under s 79(1) the Court may either direct an inquiry by a judicial officer or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal. This power is only enlivened 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": s 79(2). 2. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [65] Basten JA, with whom Bathurst CJ, Beazley P, Price and Beech-Jones JJ relevantly agreed, said that use of language drawn from earlier cases seeking to explain the "doubt or question" required in terms of an "unease or a sense of disquiet…" about the convicted person's guilt, any mitigating circumstances in the case or any part of the evidence in the case was to be deprecated: "This language does not assist. There is no purpose served by adopting other words than the statutory language of "doubt or question". The "material" on which the judge may base an opinion is not improved or added to by a document setting out the subjective beliefs of the applicant. Nor is it necessary for the applicant to demonstrate subjective grievance, to establish an appropriate basis for seeking an inquiry. The form of the second proposed declaration is inapt." 1. In Sinkovich, Basten JA, after tracing the history, operation and development of Part 7 of the CAR Act and its predecessor, s 383 of the Criminal Law Amendment Act 1883 (NSW), which pre-dated by almost three decades the first general right of appeal in criminal cases in the State, said at [52] and [53]: "[52] History and statutory language demonstrate that the overriding purpose of Pt 7 is, consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles. Historically, the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention. When appeals became available, that mechanism was not removed but was, indeed, improved upon and made more readily accessible. [53] The fact that the gateway to an inquiry is now by seeking to satisfy a Supreme Court judge of a doubt or question as to a conviction or sentence reflects both the importance placed upon the procedure and an appropriate mechanism to ensure that it is exercised responsibly and, no doubt, sparingly. However, this mechanism militates against an unduly narrow construction of the statutory gateway." 1. The following observations may be made about the test required by s 79(2) of the CAR Act. First, that test is not a demanding one. I agree with Basten JA that the task is to be approached with a view to the overriding purpose of providing a means to address doubts as to compliance with the principle that liberty should only be infringed upon the commission of a criminal offence if commission of the offence has been established beyond reasonable doubt. 2. Secondly, the "doubt" or "question" the Supreme Court must harbour is one that applies to the finding of the applicant's guilt, as to any mitigating circumstances in the case or to any part of the evidence in the case. The breadth of those matters, where a "doubt" or "question" which enlivens the powers in s 79(1) may arise, tends to highlight the fact that no limitations should readily be implied into the statutory test. 3. Thirdly, the fact that the gatekeeper to either of the inquires provided for by s 79 is the Supreme Court itself emphasises the importance of the role and ensures, as Basten JA explained at [53] in Sinkovich, that it is exercised "responsibly and, no doubt, sparingly". Some matters relevant to the exercise of that gatekeeper role are identified in s 79(3) in the breadth of the considerations which may properly lead the Supreme Court to refuse to consider or otherwise deal with an application. Section 79(3)(b), in allowing for cases where the Supreme Court is "not satisfied that there are special facts or special circumstances that justify the taking of further action", throws further light on the breadth of the matters which may be taken into account in exercising this gatekeeper role. Review by this Court of the primary judge's decision 1. The determination of an application under s 78 of the CAR Act is administrative in nature and is open to review for jurisdictional error. In Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343 Basten JA (Bathurst CJ and Beazley P agreeing) stated at [22]-[24]: "[22] Section 79 in effect permits the following steps to be taken in the Supreme Court, namely that the Court may: (a) consider an application for an inquiry into a conviction or sentence; (b) on its own motion, consider whether there should be an inquiry into a conviction or sentence; (c) after (a) or (b) - (i) direct that an inquiry be conducted, or (ii) refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal. [23] The Supreme Court Act provides for an appeal from 'any judgment or order of the Court in a Division': s 101(1)(a). Similar language is found in s 73 of the Constitution ('judgments, decrees, orders and sentences'), in the Judiciary Act (ss2 and 35) and many other statutes conferring appellate jurisdiction. One point made in cases discussing these provisions is that a finding of fact or a ruling on a submission is not, of itself, an operative judicial act: Commonwealth v Mullane [1961] HCA 28; 106 CLR 166 (Dixon CJ); Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392 (Spigelman CJ). Another is that a reference to a 'judgment' may mean an operative order as distinguished from reasons for judgment: Driclad Pty Ltd v Commissioner of Taxation (Cth) [1968] HCA 91; 121 CLR 45 at 64 (Barwick CJ and Kitto J). Relevantly for present purposes, it has never been doubted that the language applies only to the exercise of judicial power. That is made clear by its context, namely a judgment or order 'of the Court in a Division'. In a passage cited with approval in this Court in Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; 62 NSWLR 309 at [30] (Spigelman CJ) and in Salter at [19] (Spigelman CJ), King CJ in Legal Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 stated: 'A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge.' [24] It follows that no appeal lay, whether by leave or otherwise, from the determination of R A Hulme J, rejecting the application for an inquiry. The only right of appeal arises pursuant to s 101 of the Supreme Court Act, which is limited to the exercise of judicial power, as opposed to administrative determinations." 1. In Sinkovich, Basten JA (at [26]-[27]) made the following observations about the scope of the inquiry in forming the requisite state of mind, that being a "doubt or question": "[26] The action is to be taken by the Supreme Court, which means a judge authorised by the Chief Justice pursuant to s 75(1). Action can be taken only if it 'appears' to the judge that the condition is satisfied. In other words, it is the satisfaction of the judge as to the relevant condition which is critical. (That does not, of course, mean that the judge's decision is for that reason unreviewable, although the grounds and basis of review involve questions which will be addressed below.) [27] The content of the condition as to which the judge must be satisfied is somewhat obscurely worded. The necessary state of mind requires a 'doubt or question' as to (i) the convicted person's guilt, (ii) any mitigating circumstances in the case, or (iii) any part of the evidence in the case. However, neither the syntax nor the nature of the various elements permits any precise identification of the scope of the condition. Thus, a doubt or question as to a person's guilt could involve a doubt or question as to the procedural steps in the trial, admission of evidence, rejection of evidence, weight of the evidence, directions to the jury or any other matter upon which a finding of guilt is dependent. That includes a doubt or question as to the fitness of the accused to plead: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [125] (Heydon J, with whom members of the Court other than McHugh J each agreed)." 1. More recently in Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221, Beazley P and Leeming JA stated at [4]: "[4] A Supreme Court judge has considered and refused an application made by Mr Buttrose in 2013 for an inquiry into his sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). His Honour considered the application on the papers, and refused it, giving reasons which have been given a media neutral citation: [2014] NSWSC 826. However, as the name 'Application by Richard William Buttrose pursuant to s 78 Crimes (Appeal and Review) Act 2001' suggests, the refusal of Mr Buttrose's application was not 'a judgment or order of the Court in a Division'. It is established that his Honour was not exercising judicial power, nor were the proceedings judicial in nature: Patsalis v Attorney General for New South Wales [2013] NSWCA 343; 85 NSWLR 463 at [2], [7] and [22]. Accordingly, no appeal lies pursuant to s 101(1)(a) of the Supreme Court Act 1970 (NSW). However, the determination is reviewable for jurisdictional error: Patsalis at [3], [7], and [23]-[24]." 1. In Buttrose at [16]-[17] their Honour's said: "[16] The question is whether the decision made by the judge is attended by jurisdictional error. That in turn depends upon the nature of the function his Honour was performing. The precondition to a direction that there be an inquiry or a referral to the Court of Criminal Appeal under s 79(1) is that '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'. The statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question. That is to say, as Basten JA said in Sinkovich at [26], 'it is the satisfaction of the judge as to the relevant condition which is critical.' [17] We regard that question as having been determined by what was said in Sinkovich at [26], and Mr Buttrose's submission to the contrary, which fell short of asking this Court to find that this aspect of Sinkovich was clearly wrong, as merely formal. In any event, unassisted by authority, we would readily reach the same conclusion, and not merely from the language of s 79, but also its context. The structure of s 79(1) is clear. Only if s 79(1) be satisfied will there be an inquiry or a referral to the Court of Criminal Appeal, in which case the later steps will take place with the benefit of full submissions from the parties. In that context, it is only natural that all that is required is the judge forming the view – ordinarily, on limited material only – that there is a doubt or question." Grounds 1 and 3 – explaining away the fresh evidence and making findings of where the truth may lie Applicant's submissions 1. These grounds address the applicant's complaint that the primary judge fell into error by identifying "possibilities" and by making findings about where the truth may lie. It was submitted that the primary judge made arbitrarily constructed findings of fact in relation to where the truth may lie, and as a result misapprehended her function under Pt 7 of the CAR Act and thus fell into jurisdictional error. As noted at the outset, the applicant did not press any complaint of error of law on the face of the record and it is thus unnecessary to consider whether the primary judge exercising an administrative function constitutes a "court or tribunal" within the meaning of s 69(4) of the Supreme Court Act 1970 (NSW). 2. In support of these submissions, the applicant directed the Court to statements made by the primary judge at [44], which I will set out in full: "[44] … That a witness or victim might, after an offender has been released from custody, appear to recant from evidence given at a trial or on an appeal, does not necessarily create a doubt about the offender's guilt. Such recanting could also be explained by other factors. In the case of E, her relationship with her father, the applicant, is likely to be substantially affected by what E says or said about his conduct. ER, too, might be inclined to say other than the truth in order to assist E, or in the belief that nothing is to be gained by not providing a statement that the applicant has requested, since he has already served his sentence…." 1. The applicant submitted that the primary judge fell into jurisdictional error by making findings as to why E and ER were motivated to recant the evidence they gave at trial. The applicant submitted that there was no evidence to support the primary judge's findings. The applicant also submitted that in paragraph [44] her Honour was attempting to "explain away" the 2015 statements made by ER and E. 2. In support of his submissions under these grounds, the applicant relied upon the decision in Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 where the High Court held (at [23]) that it was not the role of the Court of Criminal Appeal to: "…seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to exploit forensically." Consideration of grounds 1 and 3 1. The Court will interfere with an administrative decision if that decision is one that could not reasonably have been reached. As explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide." 1. The circumstances in which a court will interfere with an administrative decision were explained in Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 where Gibbs J made the following observations at 118: "Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it." 1. Gibbs J highlighted the potential difficulty posed in cases where the administrative decision maker was required to be satisfied of a particular matter as a matter of opinion at 118-119: "…where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts." 1. If an administrative decision maker fails to consider the substance of an applicant's case, there will be a constructive failure to exercise jurisdiction. Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81], after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, said: "[81] However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of 'refugee'." 1. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at 626 Gleeson CJ and McHugh J warned against equating a subjectively strong sense of disagreement with error: "The essence of the suggested illogicality or unreasonableness in the Tribunal's decision, as observed by Hill J, and accepted by Davies and Burchett JJ, although strongly contested by Whitlam J, is said to lie in the process of reasoning by which the Tribunal came to regard the information given by Mr Eshetu as to the December 1991 incident which led to his departure from Ethiopia as implausible. It was considered by Hill J that the Tribunal failed to give sufficient weight to certain information before it, especially information from EHRC, and attached unwarranted importance to the absence of any independent record of the alleged occurrences. Whitlam J was of the view that the reasoning displayed no error. Even if it did, however, there is a serious question whether the suggested error is of the kind to which the Wednesbury principle is directed. We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Tribunal's decision, even on Hill J's view of it, as an abuse of power. Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable', or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence." (italics added) 1. The unreasonableness ground of judicial review is no longer limited to what is in effect an irrational, if not bizarre decision – which is to say one that no reasonable person could have arrived at it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68] per Hayne, Kiefel and Bell JJ. 2. In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) it is suggested (at [6.450]), in my view correctly, that Li "invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge's subjective sense of reasonableness". 3. The relevant inquiry for present purposes is whether the primary judge's opinion, that the fresh evidence of E and ER did not give rise to a "doubt or question as to the applicant's guilt … or as to any part of the evidence in the case", was formed according to law. That inquiry has five parts: first, whether the primary judge directed herself to ask the appropriate question required by s 79(2) of the CAR Act; secondly, whether the primary judge constructively failed to exercise jurisdiction by failing to consider the substance of an applicant's case; thirdly, whether the primary judge took into account legally irrelevant matters under s 79(2); fourthly, whether the primary judge's decision in dismissing the application was one that was reasonably open to her; and fifthly, whether the primary judge's decision was one for which there was no evidence. 4. As to the first question, in the present case the primary judge was aware of the nature of the power she was exercising under Pt 7 of the CAR Act. Her Honour set out s 79 of the CAR Act in full, which sets out the relevant test for the consideration of applications made pursuant to s 78. The primary judge applied the test in s 79(2), that being when 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, she could direct that an inquiry be conducted or refer the whole case to the Court of Criminal Appeal. Her Honour recited as much in her written reasons in reciting the correct test (paragraphs [31] and [32]), addressing the evidence and the parties' submissions (paragraphs [34]-[40]), identifying what was new in the material relied upon (paragraph [43]), addressing the credibility of the new evidence (paragraphs [44]-[45]) and concluding, in terms, that "it did not appear [to her Honour] that there was a doubt or question as to the applicant's guilt, or any doubt as to the evidence of E and ER in the trial"(paragraph [46]). 5. The primary judge did not misapprehend the nature of the power conferred by s 79. Her Honour was well aware that she needed to satisfy herself as to the existence of a doubt or question as to the applicant's guilt or as to any part of the evidence in the case. The primary judge understood the correct question to be addressed and gave consideration to that question. Her Honour, having set out the evidence and her findings on that evidence did not form the requisite state of satisfaction required by s 79(2). The primary judge unequivocally concluded at [46]: "[46] It does not appear to me that there is a doubt or question as to the applicant's guilt, or any doubt as to the evidence of E and ER in the trial." 1. As to the second question, the primary judge did not constructively fail to exercise jurisdiction by failing to consider the substance of the applicant's case. As I have set out above at [156]-[157], the primary judge addressed the question in terms about whether a doubt or question existed as to the evidence in the case, and identified her Honour's reasons for failing to be satisfied that there was a doubt or question about the evidence in the case. The applicant's real complaint is that no reasonable decision maker could have come to the conclusion that was reached by the primary judge about the evidence in the case, based on the fresh material. I will address that submission below. 2. As to the third question, whether the primary judge took into account irrelevant considerations, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mason J explained at 40: "…. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act." 1. In my view there is no implication to be found in the subject matter, scope and purpose of the CAR Act to the effect that the primary judge was not permitted to have regard to the factors identified in paragraph [44] of her Honour's decision in determining whether she was satisfied about the existence of a relevant doubt or question about the applicant's guilt or any part of the evidence. In particular, the following were not irrelevant considerations in the determination of the relevant state of satisfaction: 1. the fact of the earlier review appeal and the issues explored in that appeal; 2. the credibility of the statements given the relationships between the various parties and the fact that the applicant had now served his sentence; 3. the credibility of the statements given the content of the "inducement" in ER's and E's statements; and 4. the credibility of the typewritten statements given the content of the handwritten statement on the back of those statements. 1. The primary judge did not err, as was alleged, in taking into account irrelevant considerations being mere "possibilities". What her Honour did was address the credibility of the typewritten statements. That was a matter open to her Honour in deciding whether she was satisfied that a relevant doubt or question arose. 2. As to the fourth question, whilst Li makes clear that the unreasonableness ground is no longer limited to a decision that no reasonable person could have arrived at, Li does not go so far as to permit this Court to substitute its subjective sense of reasonableness for that of the decision maker. 3. As I have earlier explained, the primary judge directed herself to the contents of the statements given by E and ER, and made a number of observations, including: 1. that "the effect of several statements made by E since the applicant's conviction is to undermine the evidence she gave at trial and concessions she made in the Review Appeal" (at [41]); and 2. the apparently new evidence was ER's statement that E's statement was true because it was inconsistent with ER's evidence at trial and the Review Panel (at [43]). 1. So far as E's statement is concerned, it is true that the allegation E made that ER asked her falsely to corroborate ER's evidence that she had called out "'Please don't [GAR], please don't,' or similar" went further than E's evidence before the Court of Criminal Appeal following the first s 78 application. The primary judge was aware of those differences but concluded that the evidence was substantially similar to that earlier given by E in that it supported the applicant's innocence and was inconsistent with E's evidence at the trial (at [41]). The primary judge concluded, at [42], that the Court of Criminal Appeal in the hearing following the first s 78 application heard and saw E's evidence and found "she was not to be believed because she was prepared to say anything that would advance the applicant's position". It may be accepted that E's statement for the first time actively asserted that she was asked by ER to lie at GAR's trial. It is also correct, however, that E had earlier given evidence in the Court of Criminal Appeal that she had lied at GAR's trial, that ER knew at the time of the trial that E was lying and that ER, by her conduct, had pressured E to lie at GAR's trial. 2. After a thorough investigation by the Court of Criminal Appeal of substantially similar allegations made by E, that Court had concluded that E was prepared to say anything to advance GAR's position. In those circumstances, the primary judge's conclusion taking into account the decision of the Court of Criminal Appeal and rejecting E's statement as appearing to give rise to any relevant doubt or question was not legally unreasonable. 3. ER's typewritten statement poses a more difficult issue. Whilst there was some attraction in the view urged by counsel for the Attorney General before the primary judge that ER's statement gave rise to a doubt or question about her evidence at the trial, the primary judge's determination that it did not appear to her Honour that there was such a doubt or question about the applicant's guilt or any part of the evidence was not legally unreasonable. That is, the primary judge's decision did not lack "an evident and intelligible justification": Li at [76] per Hayne, Kiefel and Bell JJ. 4. The important aspect of ER's typewritten statement was that she said that E's statement that she had asked E "to falsely corroborate her evidence that she had called out 'Please don't [GAR], please don't,' or similar" is "TRUE". 5. In my view the primary judge provided an evident and intelligible justification for her conclusion that this evidence did not satisfy her that there was a doubt or question about the applicant's guilt or any part of the evidence. In particular, the primary judge reasoned: 1. the question of whether E and ER were telling the truth had been examined at length by the CCA in response to the first s 78 application; 2. the timing of the statements of E and ER, after the expiry of the applicant's sentence, was relevant in determining whether the state of satisfaction about a doubt or question existed; 3. in the same document, in handwriting, ER had adhered to her evidence that the sexual assault occurred; 4. the "inducement" contained in the statements affected their credibility; and 5. her Honour did not have a doubt or question about the applicant's guilt or any part of the evidence. 1. The question is not whether I would have reached the same conclusion as the primary judge about the existence of a doubt or question or whether I disagree, even strongly, with her Honour's process of reasoning about an issue of fact. The primary judge's decision contained a justification which I regard as both "evident" and "intelligible". The primary judge's decision was not for this reason unreasonable and she did not fall into jurisdictional error. 2. As to the fifth question, the allegation that there was "no evidence" for the primary judge's conclusion, the allegation effectively repeats earlier submissions concerning taking into account irrelevant considerations. It is of course correct that a finding of ultimate fact or the drawing of inferences from intermediate facts for which there is no evidence is an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32. In the present case, however, the conclusion reached by the primary judge about the existence of a doubt or question was based on the evidence before the Court. The matters about which there was allegedly "no evidence" were those matters her Honour addressed in deciding whether she was satisfied that the written statements were credible. Her Honour reached no conclusions about those matters, save that she was not persuaded that the statements were sufficiently credible to satisfy her about a question or doubt. 3. The passage relied upon by the applicant from Mallard provides no assistance in resolving the present question. In that case the High Court was addressing the nature and scope of the Court of Criminal Appeal's appellate function. The decision of the primary judge was addressing a quite different administrative function. 4. Further, the applicant's reliance on M v R (1994) 181 CLR 487; [1994] HCA 63 in his written submissions is also inappropriate. The High Court in that case addressed the test to be applied by an appellate court when a verdict of guilty is said to be unreasonable or not supported by the evidence. 5. For the foregoing reasons, I would dismiss grounds 1 and 3 of this application. Ground 2 – failure to adopt the view most favourable to the applicant Applicant's submissions 1. The applicant submitted that the primary judge failed to consider the most favourable view a jury might take about the fresh evidence. Consideration 1. The critical question in forming the view required by s 79 of the CAR Act was identified in Sinkovich at [26]: "[26] Action can be taken only if it 'appears' to the judge that the condition is satisfied. It is the satisfaction of the judge as to the relevant condition which is critical." 1. The primary judge did not approach the task set by s 79(2) as requiring her to posit the most favourable view a jury might take towards the fresh evidence, assuming following an inquiry or appeal under s 79(1) of the CAR Act a new trial were ordered. 2. The primary judge here addressed the correct state of satisfaction required by s 79(2). Her Honour was not required by s 79 (or otherwise) to adopt the most favourable view a jury might take of the statements of E and ER in addressing her own state of satisfaction as to the existence of a doubt or question. 3. Whilst I do not suggest that her Honour acted to reject this application under s 79(3), the matters referred to in s 79(3) and in particular s 79(3)(b) make clear that her Honour was entitled to form a view about the credibility of the evidence the subject of the s 78 application. Section 79(3)(b) permits the Supreme Court to decline to act when it is "not satisfied that there are special facts or special circumstances that justify the taking of further action". That statutory language emphasises the breadth of the matters the Supreme Court may take into account in considering whether it appears that there is a doubt or question about any of the matters identified in s 79(2). 4. Assuming, in the applicant's favour, that ground 2 raises an alleged jurisdictional error, being a failure to identify and adopt the correct construction of the task required by the s 79(2), the primary judge did not fall into jurisdictional error. She was required to decide whether she was satisfied of the existence of a relevant doubt or question. In addressing that question her Honour was not required to adopt the most favourable view a jury might take of the statements of E and ER. I would reject ground 2. Grounds 4 and 5 – primary judge erred in fact by referring to ER's handwritten statement being dated "2 October 2015" Applicant's submissions 1. The applicant submitted that the primary judge erred in finding that: 1. ER's handwritten statement was dated 2 October 2015, that being two months prior to the first and second statements; and 2. ER's handwritten statement was "superseded" by her typewritten statement, the applicant having made no such submission. Consideration 1. The primary judge referred to the evidence supporting the application at [34]: "[34] The first apparently comprises statements by E and ER, both dated 2 December 2015, in which: E said that her mother asked her to falsely corroborate her evidence and that her statement to police and evidence was false; and ER said that E's statement is true. The second is ER's handwritten statement dated '2.10.15' which was apparently signed by Mr West in the bottom right hand corner." 1. Ms J Davidson, counsel for the Attorney General on the appeal, accepted that the primary judge made an error in referring to the handwritten statement as being dated "2.10.15". Her Honour did so by mistaking the second digit in the month as a "0" instead of a "2". The applicant and the respondent agreed that all three statements were dated 2 December 2015. So much appears to me, having now examined the original documents, to be correct. It is also the case that Mr West's signature does not appear on that part of the original document where the handwritten statement is found. Presumably Mr West's signature was on the copy of the handwritten statement provided to the primary judge as part of the Crown Solicitor's inquiry referred to at [126] above. 2. The applicant's written submissions explained that the original versions of the statements comprised of one (double-sided) document with the typewriting on the front and the handwritten statement on the back. The respondent informed the Court that the Crown Solicitor was not capable of receiving double-sided faxes. It is likely that the presentation of the statements to the primary judge as two separate documents contributed to what the Crown Solicitor accepts was a factual error by the primary judge regarding the dates. 3. The primary judge understood that the handwritten statement was superseded by the typewritten statements. This was an error of fact. Her Honour did not, however, thereby fall into jurisdictional error. 4. The error made by her Honour was favourable to the applicant. It appeared to her Honour that the typewritten statement had been made two months after the handwritten statement, although her Honour recognised that the inconsistency between the typewritten statements and the handwritten statement was only indirect. It appears to be the case, having examined the original document and having regard to Mr West's evidence that he does not recall ever having seen the handwritten statement, that the handwritten statement was made on the back of the typewritten statements sometime later the same day 2 December 2015. 5. The error of fact made by the primary judge did not adversely affect the applicant's case. The primary judge did not by reason of that error fail to address any substantial argument made by the applicant. 6. I would dismiss grounds 4 and 5. Ground 6 – the missing page of Dr Sterrett's report 1. Ground 6 concerned ER's evidence at trial of face scratches which the applicant alleged was fabricated in light of the missing page of Dr Sterrett's report. 2. As counsel for the respondent correctly pointed out, this evidence was explored in the second s 78 application before Adamson J in 2014. The primary judge concluded that the evidence on the third s 78 application did not give rise to a doubt or question as to any part of the evidence given at trial and such determination was final. 3. The evidence was already dealt with in a previous application and was not readdressed by her Honour in the third s 78 application. There was no jurisdictional error demonstrated. If her Honour had found a doubt or question about ER's evidence it may have followed that a similar doubt would have arisen about the evidence of scratches on her face. Her Honour found no such doubt or question. 4. I would dismiss ground 6 of the application. Conclusion and orders 1. Since preparing my draft reasons I have had the opportunity to consider the draft reasons prepared by Simpson JA. The declaration proposed by Simpson JA would have the effect that a Supreme Court judge must again consider the present application made by GAR. My conclusion that the application be dismissed would not prevent the applicant from bringing a further application although, as Basten JA explained in Sinkovich at [66]: "[66] …The refusal of the application for an inquiry did not preclude a further application, although, if a further application were made on the same grounds, it might well be refused simply on the basis that the complaint had previously been dealt with, pursuant to s 79(3)(a)(ii), which reflects a general principle which would operate absent any statutory basis…" 1. Whether the applicant has further information sufficient to support a subsequent application is not a matter which can be determined here. That will be a matter for a Supreme Court judge considering any further application. 2. For the foregoing reasons I propose the following orders: 1. Application dismissed; 2. Applicant pay the respondent's costs as agreed or assessed. ********** 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: 12 December 2017