GAR - Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734

GAR - Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1734

Neither RM's affidavit nor the page of Dr Sterrett's report gave rise to any doubt or question as to the applicant's guilt. The unchallenged evidence of ER's report to police was powerful complaint evidence, and whether ER told RM about the sexual assault could not materially affect the assessment of guilt or the credibility findings in the review appeal. The medical report issue had not been overlooked at trial, was used in cross-examination and closing address, and did not mislead the jury or the Court of Criminal Appeal. The statutory threshold for an inquiry or referral was not met.

Jurisdiction
Australia
Judgment Date
04 December 2014
Procedural Posture
Application Under Division 3 of Part 7 of the Crimes (appeal and Review) Act 2001 (nsw) for an Inquiry Into Conviction or Referral to the Court of Criminal Appeal / On the Papers
Outcome
Application dismissed
Legal Topics
['inquiry Into Conviction' 'sexual Intercourse Without Consent' 'fresh Evidence' 'complaint Evidence' 'medical Evidence' 'credibility']
['criminal Law' 'criminal Procedure' 'evidence'] ['inquiry Into Conviction' 'sexual Intercourse Without Consent' 'fresh Evidence' 'complaint Evidence' 'medical Evidence' 'credibility']

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Procedural Posture

Application Under Division 3 of Part 7 of the Crimes (appeal and Review) Act 2001 (nsw) for an Inquiry Into Conviction or Referral to the Court of Criminal Appeal / On the Papers

Legal Issues

  1. 1 ["Whether RM's affidavit that ER did not say anything to him about the applicant sexually assaulting her gave rise to doubt or question as to the applicant's guilt." "Whether a page from Dr Sterrett's medical report, said to show the medical evidence did not corroborate scratches to ER's face, gave rise to doubt or question as to the applicant's guilt." 'Whether the matters relied upon justified an inquiry under s 79(1)(a) or referral to the Court of Criminal Appeal under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).']

Ratio Decidendi

Neither RM's affidavit nor the page of Dr Sterrett's report gave rise to any doubt or question as to the applicant's guilt. The unchallenged evidence of ER's report to police was powerful complaint evidence, and whether ER told RM about the sexual assault could not materially affect the assessment of guilt or the credibility findings in the review appeal. The medical report issue had not been overlooked at trial, was used in cross-examination and closing address, and did not mislead the jury or the Court of Criminal Appeal. The statutory threshold for an inquiry or referral was not met.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']