JINDAL, Charulata – Application under Part 7 Crimes (Appeal and Review) Act 2001

[2022] NSWSC 40

Supreme Court

New South Wales

Medium Neutral Citation:

JINDAL, Charulata – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 40

Hearing dates:

Review on the papers

Date of orders:

4 February 2022

Decision date:

04 February 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

Application dismissed

Catchwords:

Purported application for review – applicant’s convictions set aside – no jurisdiction

Legislation Cited:

Child Protection (Working with Children) Act 2012

Crimes (Appeal and Review) Act 2001

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Williams v The King (No 2) (1934) 50 CLR 551

Category:

Principal judgment

Parties:

Charulata Jindal (Applicant)

File Number(s):

2021/313037

Judgment

1. By a document filed on 2 November 2021, Ms Charulata Jindal, sought to “review/reopen Case No. 2016/588801”. From reading that document and her submissions it appears that she seeks review of that “case” under Part 7 of the Crimes (Appeal and Review) Act 2001 (the “Review Act”).

2. The “case” to which Ms Jindal refers commenced in February 2016 when Ms Jindal was charged with assaulting her daughter on 9 March 2013 and stalking/intimidation towards her husband on or about 25 July 2015. Both incidents were alleged to have occurred during the course of a relationship breakdown.

3. After a contested hearing, on 13 December 2016 Ms Jindal was convicted of both offences in the Local Court. An apprehended domestic violence order (“ADVO”) was made against her on the same day. On 23 January 2017, she was sentenced to a term of imprisonment of seven months for the assault offence but this was suspended under former s 12 of the Crimes (Sentencing Procedure) Act 1999 (“Sentencing Act”). For the stalk/intimidate offence she was made subject to a bond pursuant to s 9 of the Sentencing Act.

4. In the meantime, Ms Jindal appealed her convictions to the District Court. On 14 February 2017, her appeal was allowed and her convictions were quashed. The ADVO was not set aside at that time as it was not the subject of the appeal. According to the Respondent, Ms Jindal has since provided a copy of court orders indicating that the ADVO was set aside on 24 March 2017.

5. From the material that has been filed by Ms Jindal it appears that since then she has filed an application for a “Working with Children Check Clearance” (“WWCCC”) under Part 3 of the Child Protection (Working with Children) Act 2012 (the “CP Act”). The material indicates that the Children’s Guardian has been inquiring into the circumstances surrounding the charges (and acquittals) noted above.

6. Until recently all of the material filed by Ms Jindal suggested that she is seeking some form of review under Part 7 of the Review Act. Within Part 7, ss 78 and 79 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).”

7. It is evident that this Court’s function under Part 7 is predicated on there being a request for an inquiry into a “conviction or sentence”. The meaning of “conviction” is extended by s 74 to include a verdict under the mental health legislation to the effect that a person found unfit to be tried committed the offence charged, or an acquittal on the ground of mental illness where the mental illness was not set up as a defence by the person acquitted. Section 74 defines "sentence" as including a sentence or order imposed or made by any court following a conviction. It is unnecessary to consider these concepts or the common law discussion of them any further (see for example Williams v The King (No 2) (1934) 50 CLR 551 at 560). On any view of their meaning, in this case there is no conviction or sentence to be reviewed. All of Ms Jindal’s convictions and sentences have been set aside. This Court does not have any jurisdiction under the Review Act to consider the circumstances of her charging and ultimate acquittal.

8. As noted, Ms Jindal’s real concern appears to be with the inquiry by the Children’s Guardian into the circumstances that resulted in charges being laid against her and the delay in the issue of a WWCCC certificate. The issue of those certificates and review of the Children Guardian’s decision is governed by the CP Act. Ms Jindal must pursue her rights under that legislation.

9. It follows that the application for review under Part 7 of the Review Act is dismissed.

10. In recent email correspondence Ms Jindal stated that her application should also be treated as an application “under s 49 of [the] Criminal Procedure Act [1986]”. This provision deals with the issue of court attendance notices at the time of the commencement of private prosecutions by a common informer. Nothing in Ms Jindal’s materials amounts to such an application and, in any event, such applications are not filed in the Supreme Court.

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