Gillies, In the matter of an application for leave to issue or file [2022] HCATrans 3 (9 February 2022)

Last Updated: 11 February 2022

[2022] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S204 of 2021

In the matter of -

an application by MAX PERRY GILLIES for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON WEDNESDAY, 9 FEBRUARY 2022, AT 9.29 AM

Copyright in the High Court of Australia
HIS HONOUR: By application filed on 13 December 2021 the applicant seeks leave to issue or file an application for special leave to appeal. For the reasons that I now publish I would dismiss the application.

The orders are:

1. The application for leave to issue or file an application for special leave to appeal filed on 13 December 2021 be dismissed.

I publish those orders. I direct that the reasons as published be incorporated into the transcript.

The applicant, Mr Gillies, sought to file an application for special leave to appeal in this Court. On 29 November 2021, Gageler J directed the Registrar to refuse to issue or file the application without Mr Gillies first obtaining the leave of a Justice of this Court. Mr Gillies now seeks that leave.

The special leave application which Mr Gillies seeks leave to issue or file is from a decision of Beech‑Jones J in the Supreme Court of New South Wales. His Honour refused an application by Mr Gillies, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), for an inquiry into his convictions for sexual offences in 1990 and 2006.

As Beech‑Jones J explains, prior to the application under s 78, an appeal by Mr Gillies from his 2006 conviction, on 24 grounds, had been dismissed in 2008^[1]. Mr Gillies had also brought three further proceedings with respect to his 2006 conviction: a claim for damages against the State of New South Wales for matters including malicious prosecution and false arrest; a claim against his trial lawyers to recover the expenses he paid for his trial; and a claim for various orders concerning the transcript and exhibits from his trial. In all cases, the proceedings were summarily dismissed^[2].

In the s 78 application before Beech‑Jones J, Mr Gillies submitted that he was pressured into pleading guilty to the offence that resulted in the 1990 conviction and that the 2006 conviction arose after he was maliciously prosecuted when further allegations were made. He also alleged that court transcripts of his trial were tampered with. Beech‑Jones J concluded that there was no reason to doubt that in 1990, Mr Gillies had “freely and voluntarily pleaded guilty to a rape charge in the face of a strong prosecution case” and that in 2006, “he was convicted of a sexual offence which was effectively proven by a videotape, the authenticity and accuracy of which was and can be accepted”. Mr Gillies’ application under s 78 was refused on the basis that none of the matters relied on raised a doubt or question as to his guilt in respect of either conviction^[3].

Mr Gillies’ application for special leave to appeal makes ten separate allegations of error by Beech‑Jones J, including alleged failures by Beech‑Jones J to appreciate or give sufficient weight to various matters and to take into account other matters. His supporting affidavit for leave to issue or file contains numerous submissions including reliance upon, and reference to, the rule of law, Mr Gillies’ Constitutional and human rights, and alleged errors in the reasons of Beech‑Jones J and the Court of Criminal Appeal.

An appeal to this Court, and therefore an application for special leave to appeal to this Court, can only be brought from an order that involves an exercise of judicial power within the meaning of that term in s 71 of the Constitution^[4]. As Beech‑Jones J correctly observed, an application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) initiates an exercise of administrative power^[5]. That power is exercised under s 79. It does not involve the exercise of judicial power^[6]. The predecessor provision to s 78 originated at a time when there was no common form criminal appeal statute in New South Wales and thus there was a limited ability to challenge a conviction based on factual errors. The provision created a power for the Executive government to inform itself of miscarriages of justice arising from deficiencies in evidence at a trial^[7]. Section 79(4) also relevantly provides that proceedings “under this section are not judicial proceedings”.

Although Mr Gillies’ proposed application in this Court seeks a writ of certiorari to quash the decision of Beech‑Jones J and a writ of mandamus directed to the New South Wales Attorney‑General requiring consideration of Mr Gillies’ application according to law, the proposed application is neither in form nor in substance an application for Constitutional writs. Such an application would face further, and different obstacles^[8] but it is unnecessary to consider those matters because even if the application were treated as one for Constitutional writs in the original jurisdiction of this Court, it would have no reasonable prospects of success.

There is no possibility that any oral submissions could provide any prospect of success for this application. It is appropriate that it be determined on the papers without an oral hearing pursuant to r 13.03.1 of the High Court Rules 2004 (Cth). The application for leave to issue or file is dismissed.

Please adjourn the Court.

AT 9.30 AM THE MATTER WAS CONCLUDED

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^[1] GILLIES, Max Perry – Application Under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 at [17].

^[2] GILLIES, Max Perry – Application Under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 at [19].

^[3] GILLIES, Max Perry – Application Under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 at [66]‑[68].

^[4] Mellifont v Attorney‑General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 300, 312.

^[5] GILLIES, Max Perry – Application Under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 at [8].

^[6] Varley v Attorney‑General (NSW) (1987) 8 NSWLR 30 at 48‑50.

^[7] Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 324 [8].

^[8] R v Murray and Cormie; Ex Parte the Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at 452, 464, 471; Dimitrov v Supreme Court (Vic) [2017] HCA 51; (2017) 263 CLR 130 at 143‑145 [29]‑[33].