Application by TDP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 1698

Application by TDP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 1698

Although it was open to refuse to consider the application under s 79(3), the Court considered the grounds and was not satisfied that any doubt or question arose as to the applicant's guilt, any mitigating circumstance, or any part of the evidence. The indictment complaint was misconceived and raised no special facts or circumstances; the green tablet and related evidentiary complaints had been dealt with in detail by the Court of Criminal Appeal and did not advance the applicant's case; the applicant's post-trial admissions reinforced the absence of any doubt or question as to guilt; and no material showed that the sentencing proceedings miscarried or caused unfairness to the applicant.

Jurisdiction
Australia
Judgment Date
09 November 2018
Procedural Posture
Application Under S 78(1) of the Crimes (appeal and Review) Act 2001 (nsw) for an Inquiry Into Conviction and Sentence / Decision on Written Submissions
Outcome
The application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.
Legal Topics
['inquiry Into Conviction or Sentence' 'child Sexual Assault Offences' 'doubt or Question as to Guilt' 'special Facts or Special Circumstances' 'defective Indictment' 'admissibility of Evidence' 'forensic Toxicology Evidence' 'crown Appeal Against Sentence' 'post Trial Admissions']
['criminal Law' 'criminal Procedure' 'appeal and Review' 'sentencing'] ['inquiry Into Conviction or Sentence' 'child Sexual Assault Offences' 'doubt or Question as to Guilt' 'special Facts or Special Circumstances' 'defective Indictment' 'admissibility of Evidence' 'forensic Toxicology Evidence' 'crown Appeal Against Sentence' 'post Trial Admissions']

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Procedural Posture

Application Under S 78(1) of the Crimes (appeal and Review) Act 2001 (nsw) for an Inquiry Into Conviction and Sentence / Decision on Written Submissions

Legal Issues

  1. 1 ['Whether the Supreme Court should refuse to consider or otherwise deal with the application under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW).' "Whether it appeared that there was a doubt or question as to the applicant's guilt, any mitigating circumstances in the case, or any part of the evidence in the case under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW)." 'Whether the trial and conviction were nullities because the matter proceeded on an invalid or defective indictment.' 'Whether evidence concerning green tablets and the complainant falling asleep after taking them gave rise to a miscarriage of justice, prosecutor misconduct, unreasonable verdict, or should have been excluded.' 'Whether the sentencing proceedings miscarried because the applicant was allegedly sentenced on the basis of administering an intoxicant or otherwise contrary to principle.']

Ratio Decidendi

Although it was open to refuse to consider the application under s 79(3), the Court considered the grounds and was not satisfied that any doubt or question arose as to the applicant's guilt, any mitigating circumstance, or any part of the evidence. The indictment complaint was misconceived and raised no special facts or circumstances; the green tablet and related evidentiary complaints had been dealt with in detail by the Court of Criminal Appeal and did not advance the applicant's case; the applicant's post-trial admissions reinforced the absence of any doubt or question as to guilt; and no material showed that the sentencing proceedings miscarried or caused unfairness to the applicant.

Court Disposition

The application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.

Orders

  • ['The application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.']