DUNCAN, Paul Parepano - Application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 847

DUNCAN, Paul Parepano - Application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 847

The Court held that the material generated a real doubt or sense of unease not only about whether the trial judge was asleep during significant portions of the jury trial, but also about whether that conduct affected the jury's concentration and commitment to its task in a way that could constitute a miscarriage of justice. Because a miscarriage in the process of finding guilt can found a doubt or question as to guilt under s 79(2), and because no discretionary basis justified refusal under s 79(3), the statute required referral of the whole case to the Court of Criminal Appeal.

Jurisdiction
Australia
Judgment Date
26 June 2014
Procedural Posture
Application Pursuant to Part 7 of the Crimes (appeal and Review) Act 2001 (nsw) for Referral of a Conviction to the Court of Criminal Appeal / On the Papers in the Supreme Court of New South Wales After Prior Conviction Appeal, Petitions, and Special Leave Application
Outcome
Application allowed; the whole case was referred to the Court of Criminal Appeal to be dealt with as an appeal against conviction.
Legal Topics
['application for Inquiry Into Conviction' 'referral to Court of Criminal Appeal' 'doubt or Question as to Guilt' 'miscarriage of Justice' 'trial Judge Allegedly Asleep' 'jury Distraction' 'fair Trial']
['criminal Law' 'criminal Procedure' 'appeal and Review'] ['application for Inquiry Into Conviction' 'referral to Court of Criminal Appeal' 'doubt or Question as to Guilt' 'miscarriage of Justice' 'trial Judge Allegedly Asleep' 'jury Distraction' 'fair Trial']

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Procedural Posture

Application Pursuant to Part 7 of the Crimes (appeal and Review) Act 2001 (nsw) for Referral of a Conviction to the Court of Criminal Appeal / On the Papers in the Supreme Court of New South Wales After Prior Conviction Appeal, Petitions, and Special Leave Application

Legal Issues

  1. 1 ['Whether alleged failings in the process leading to conviction, rather than a question of actual guilt or innocence, can found a doubt or question as to guilt under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW).' 'Whether the material gave rise to a sense of unease or disquiet about whether the trial judge was asleep during substantial portions of the trial.' "Whether the material gave rise to a sense of unease or disquiet about whether the trial judge's sleeping distracted the jury and thereby occasioned a miscarriage of justice." 'Whether the Court should refuse to consider or otherwise deal with the application under s 79(3), given previous petitions under Part 7 of the Act.']

Ratio Decidendi

The Court held that the material generated a real doubt or sense of unease not only about whether the trial judge was asleep during significant portions of the jury trial, but also about whether that conduct affected the jury's concentration and commitment to its task in a way that could constitute a miscarriage of justice. Because a miscarriage in the process of finding guilt can found a doubt or question as to guilt under s 79(2), and because no discretionary basis justified refusal under s 79(3), the statute required referral of the whole case to the Court of Criminal Appeal.

Court Disposition

Application allowed; the whole case was referred to the Court of Criminal Appeal to be dealt with as an appeal against conviction.

Orders

  • ['Pursuant to s 79(1)(b) of the Crimes (Appeal And Review) Act 2001, the whole case is referred to the Court of Criminal Appeal, to be dealt with as an appeal against conviction under the Criminal Appeal Act 1912.']