Brian James Steer v The Queen

Supreme Court of NSW|2020-05-26|Before: Hamill J, Whealy J

REASONS FOR DECISION UNDER S 78(1) OF THE CRIMES (APPEAL AND REVIEW) ACT 2001 (NSW)

Brian Steer applies under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act") for an inquiry into his conviction in relation to one count of attempting to escape lawful custody. The conviction was recorded on 22 August 2011 following a judge alone trial before Judge Colefax SC in the District Court sitting in Bathurst. It was confirmed by the Court of Criminal Appeal on 23 December 2014. [1] The applicant sought to appeal to the High Court but special leave was refused on 3 September 2015.
The applicant has been in custody since 2006 serving a sentence imposed by Whealy J for offences of murder and armed robbery. For the murder, the applicant was sentenced to a non-parole period of 22 years with a balance of term of 7 years and 4 months. That non-parole period is due to expire on 22 February 2029. The applicant was sentenced to 4 years imprisonment for the armed robbery and that sentence expired on 22 February 2009.
On 4 March 2009, the applicant was serving his murder sentence at Lithgow Correctional Centre. He went missing for a number of hours and was located hiding in a ceiling cavity in the Industries Area of the prison. He was charged with attempting to escape from lawful custody contrary to s 310D(b) of the Crimes Act 1900 (NSW). Following a three day hearing in August 2011, Judge Colefax found the applicant guilty. On 21 January 2012, the applicant was sentenced to a fixed term of 13 months imprisonment, to be served cumulatively on the murder sentence. The applicant is eligible for release to parole on 22 March 2030.
The factual background was summarised by Judge Colefax in his reasons for verdict: [2] "Amongst other things, the Lithgow Correctional Centre has an area known as the 'Industries Area'. One side of that building is available for inmates to work in the textiles industry. On the other side of the building the area is set aside for inmates to work on the repair of car bumper bars. Between those two areas there is a raised area for officers to observe the inmates' activities. The Centre (at least insofar as the bumper bar area was concerned) had equipment capable [of] cutting metal. Between 8.30am and 9am on a daily basis inmates are released from their cells. On 4 March 2009 Mr Steer was an inmate in cell unit 3/2. Later in the morning of 4 March [2009] Mr Steer was observed by CCTV camera to enter the Industries Area. Although the entry to and exit from the Industries Area is monitored by continuous CCTV camera, there is no film footage of Mr Steer leaving that area. The Industries Area was closed down between 1.30 and 2pm. At approximately 3pm there was a muster, (in effect a head count) for unit 3. After this muster it was determined that Mr Steer was missing. Steps were then taken within the Lithgow Correctional Centre for a thorough search to be conducted for Mr Steer. In the course of that search the CCTV footage of the correctional centre was reviewed and in particular it was noted that there was CCTV footage showing Mr Steer entering but not leaving the Industries Area. He was last seen at approximately 1.35pm. Two correctional officers (Mr Bradford and Mr Handley) searched the Industries Area later that evening. They went to an electrical switchboard cupboard, opened the door and saw a gap within the cupboard into the ceiling. Whilst in that position they heard a noise coming from the ceiling directly above the cupboard. These officers then communicated with the Western Security Unit which is a unit within the Department of Corrective Services especially dedicated to provide security for correctional centres. Two officers from this unit (Mr Crisafi and Mr Dean) by means of a ladder then entered the roof cavity of the Industrial Area through the hole in the ceiling discovered by Mr Bradford and Mr Handley. They did this at approximately 8.45pm. The ceiling area was not illuminated and consequently was in pitch darkness. Mr Crisafi and Mr Dean had one torch with them. Upon entering the roof cavity these two officers discovered Mr Steer. Mr Steer must have been there from at least 3.30pm to 8.45pm but more likely was there from the time that the Industries Area closed at about 1.30pm. Assuming that he was in the roof from 3.30pm, he was therefore in that dark place for at least five-and-one-quarter hours. Mr Steer was arrested and handcuffed and subsequently charged with the present offence. He was interviewed by Mr Horan, a senior officer. Before being interviewed Mr Horan gave Mr Steer a caution. Mr Steer did not agree to be interviewed and exercised his right to silence."

The appeals

On 17 October 2014, the Court of Criminal Appeal heard the applicant's appeal against conviction and sentence. Hidden J (with whom Hoeben CJ at CL and Davies J agreed) summarised the applicant's grounds of appeal against the conviction as follows: [3] "[F]irstly, that the trial judge erred in law in holding that the evidence of the applicant concealing himself in the roof cavity was more than merely preparatory without first finding whether his conduct was sufficiently proximate to the commission of the complete offence; and, secondly, that his Honour erred in finding to the requisite standard that the evidence of the applicant hiding himself in the roof cavity for a period in excess of five hours constituted an attempt to escape from lawful custody. However, as refined in oral argument, [counsel's] contention was that his Honour's factual finding that the applicant's conduct was more than merely preparatory, and was proximate to the realisation of the offence, was not open."
At the trial and in the appeal proceedings, the applicant advanced four alternative hypotheses consistent with innocence. It was not for him to establish any of those alternatives. The alternative scenarios were: [4] 1. The applicant was attempting to secrete material in the ceiling (by reference to a resealable bag of some unknown substance which was never tested and found in the ceiling location the following day); 2. The protection of himself from attacks from other inmates (for which it was conceded there was no evidence); 3. Simple mischief; and 4. Pursuit of privacy.
In the Court of Criminal Appeal, Hidden J (with whom Hoeben CJ at CL and Davies J agreed) held at [15]-[16]: "…The applicant entered the Industrial Area and managed to gain access to the roof cavity. There he remained, in darkness, for a lengthy period, missing the afternoon muster in the process. What he then proposed to do to get out of the prison complex is anyone's guess. It may be, as his Honour postulated, that he hoped to secrete himself in a vehicle which was leaving the Centre. No doubt, it would have been difficult to achieve his purpose, but that is not to the point. It was clearly open to his Honour to conclude, adopting the language from Reg. v. Eagleton cited in D.P.P. v. Stonehouse, that the steps he did take were more than 'remotely leading towards the commission of the offence', but were 'immediately connected with it.' Accordingly, the challenge to the conviction is not made out." [5]
The applicant also submitted on appeal that the sentence imposed by Judge Colefax was manifestly excessive. On 23 December 2014, the Court of Criminal Appeal refused the application for leave to appeal against conviction and sentence. [6]
On 3 September 2015, the applicant sought special leave to appeal against his conviction. The High Court (Nettle and Gordon JJ) refused special leave on the basis that the "decision of the Court of Criminal Appeal applied established principles to the facts and circumstances" and that "an appeal to this court would enjoy no prospect of success". The High Court also noted that the applicant's special leave argument "concerning the correct application of the proximity test in the law of inchoate offences was not raised below" and that the application was "not an appropriate vehicle for consideration of this issue". [7]
The present Part 7 application concerns a specific evidentiary issue not raised in the earlier appeal proceedings. It concerns the evidence of two Corrective Services officers who gave evidence of their investigation including descriptions of the Lithgow facility and some of its practices and, in one case, an opinion postulating the manner in which the applicant might have been attempting to escape.

STATUTORY FRAMEWORK FOR APPLICATIONS UNDER S 78 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001 (NSW)

The application was lodged on 2 July 2019 and is brought pursuant to Part 7 of the CAR Act. Sections 78-79 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) This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from: (a) the fact that the convicted person was: (i) questioned under section 24 of the Crime Commission Act 2012, or (ii) required under section 24 or 29 of that Act to produce a document or thing, or (b) either or both of the following: (i) evidence obtained directly from that questioning or requirement, (ii) any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing. (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).
The jurisdiction of this Court in exercising the powers conferred by ss 78-79 is of an administrative and not judicial nature. [8] The Attorney General (or respondent) in this application noted that the "sparing" exercise of those powers is "consistent with the principle of finality". [9] However, the provisions provide an important safeguard against wrongful convictions and, if the statutory requirement in s 79(2) is satisfied, the power should be exercised. It has been held that the test in s 79(2) is not a demanding one.
I described the operation of Part 7 in the Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1) [2015] NSWSC 291 at [18] - [22]: "It was said In Varley (at 48) that in deciding to initiate an inquiry: 'a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry.' This element of doubt was discussed in R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362 at [3] as: '3. Put simply, the question for the judge is whether the material which has been put forward in connection with the application causes the judge unease or a sense of disquiet about allowing the relevant conviction(s) to stand.' The test was adopted by Johnson J in Holland at [6]: '6. The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48;Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].' Beech Jones J analysed the development of this test in SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 at [21; 24]: '21.… the test to be applied in proceedings of this nature is whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case (s 79(2)). Under the now-repealed, but similarly phrased s 475 of the Crimes Act 1900, it was said that the requisite view may be formed where the material submitted causes the person considering the matter 'unease or a sense of disquiet' in allowing the conviction or sentence to stand (Holland at [6], citing Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245). This requires available material which 'as a matter of practical reality' gives rise to the sense of unease or disquiet (Holland at [8]). That formula has been applied in applications made under s 79(2) (Holland at [6]). … 24. Further, I note that s 79(2) of the Review Act refers not only to a doubt or question about the convicted person's guilt but also 'as to any part of the evidence in the case'. It is possible for there to be a doubt or question about such evidence even if there is no doubt or question about the convicted person's guilt (Varley at 46 per Hope JA; Eastman [2003] HCA 28; 214 CLR 318 at [123] per Heydon J). The example given in Varley concerned the ordering of an inquiry to redress unjustified attacks on a particular Crown witness. However in this case I would not exercise the power conferred by s 79(1) to either order an inquiry or refer the matter to the Court of Criminal Appeal unless any question or doubt that might be raised about the evidence or part of it against Bilal Skaf was such as to give rise to 'unease or [a] sense of disquiet' about his convictions.' Finally, as noted by Johnson J in Holland at [9]: 'The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.'"
However, in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, the Court of Appeal at [65] abjured reliance on language such as "unease and disquiet" in applying s 79(2) because: "There is no purpose served by adopting other words than the statutory language of 'doubt or question'."
Subsequently, in GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314, the Court of Appeal considered the operation of s 79(2): "137. The following observations may be made about the test required by s 79(2) of the CAR Act. First, that test is not a demanding one. I agree with Basten JA that the task is to be approached with a view to the overriding purpose of providing a means to address doubts as to compliance with the principle that liberty should only be infringed upon the commission of a criminal offence if commission of the offence has been established beyond reasonable doubt. 138. Secondly, the 'doubt' or 'question' the Supreme Court must harbour is one that applies to the finding of the applicant's guilt, as to any mitigating circumstances in the case or to any part of the evidence in the case. The breadth of those matters, where a 'doubt' or 'question' which enlivens the powers in s 79(1) may arise, tends to highlight the fact that no limitations should readily be implied into the statutory test. 139. Thirdly, the fact that the gatekeeper to either of the inquires provided for by s 79 is the Supreme Court itself emphasises the importance of the role and ensures, as Basten JA explained at [53] in Sinkovich, that it is exercised 'responsibly and, no doubt, sparingly'. Some matters relevant to the exercise of that gatekeeper role are identified in s 79(3) in the breadth of the considerations which may properly lead the Supreme Court to refuse to consider or otherwise deal with an application. Section 79(3)(b), in allowing for cases where the Supreme Court is 'not satisfied that there are special facts or special circumstances that justify the taking of further action', throws further light on the breadth of the matters which may be taken into account in exercising this gatekeeper role."
The respondent also referred to the High Court decision of Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 where the Court held at [134] that a "question" carries a lesser standard than a "doubt" and that information can stimulate a question without any particular answer being pointed to. [10]
In determining Mr Steer's application, I must consider whether it appears that there is a doubt or question as to Mr Steer's guilt or any part of the evidence in his case. This is a low threshold and the mere appearance of any doubt or question is sufficient to enliven the power under the relevant provisions. As Johnson J said in Further Application by Gil Bum Yun Pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 825 at [40]: "It is necessary to keep in mind that the test in s.79(2) involves the appearance of a doubt or question, not satisfaction that there is a doubt or question. It is this distinction which was emphasised in Buttrose (see [21] above)." (Emphasis added.)

The issues and an overview of the evidence relevant to the present application

I have taken into account the submissions and material provided by both parties. Mr Steer submits that his conviction was based on "hearsay, conjecture and speculation". [11] He contends that the decision of Judge Colefax resulted from his Honour's erroneous reliance on the "false" and "misleading" evidence of Matthew Horan and Simon Berry.
This issue was not raised in the appeal proceedings and the factual findings made at first instance were not challenged. Even so, the applicant contends that: "The true evidence in the trial is not enough to support the conviction and sentence, if my counsel in the appeals had have been aware of the false evidence and had used it in the appeals. Then I believe that my appeal would have been successful." [12]
Because the concerns now raised by Mr Steer were not considered in the earlier appeal proceedings, there is no statutory impediment to my dealing with the issues on their merit: cf CAR Act, s 79(3)(a). A number of issues now arise including: 1. Whether Mr Horan and/or Mr Berry had the relevant knowledge or expertise to give evidence concerning: 1. The physical layout or "workings" of Lithgow Correctional Centre. 2. Vehicular access to the Industries Area. 3. Access to tools and security procedures surrounding the tool-shed. 4. The "most likely scenario" or possible avenues of escape. 1. Whether the evidence of Mr Horan and Mr Berry was inadmissible, as hearsay or otherwise. 2. Whether the trial Judge placed too much reliance on, or was unduly influenced by, the evidence of Mr Horan and Mr Berry. 3. Whether a fresh consideration of this evidence, along with the rest of the evidence in the case, gives rise to an appearance of doubt or question over the appellant's conviction.
The impugned evidence falls into four general areas: 1. The physical layout and construction of relevant parts of the Lithgow Correctional Centre. 2. Vehicular access to the Industries Area. 3. The presence of tools and procedures surrounding access to the same. 4. A case theory as to how Mr Steer might have intended to escape from the gaol.

The witnesses and their source of knowledge of the matters deposed to

At the time of the offence, Matthew Horan was the Senior Assistant Superintendent of Investigations for Corrective Services NSW. [13] He was based in Sydney and arrived at Lithgow Correctional Centre at around 7:40pm with Simon Berry. [14] Mr Berry was a Principal Investigator with Corrective Services NSW at the time and conducting an investigation into the incident. [15] Both officers were at the Correctional Centre before they received information that noises were emanating from a roof cavity in the Industries Area of the Centre. [16] Both were present when the applicant was located and escorted from the ceiling area of the industry section. [17]
Back in 2004-2005, Mr Horan held the position of Assistant Superintendent Intelligence Officer at Lithgow Correctional Centre. He said he was familiar with the layout of the Correctional Centre by virtue of that role. [18] He acknowledged that this was "prior to the bumpers coming in". [19] That was a reference to an area of the Correctional Centre where inmates repaired car bumper bars. The applicant submits that Mr Horan had "no direct [firsthand] current knowledge of the workings of Lithgow CC or the industries workshops". [20]
As a Principal Investigator, Mr Berry attended "significant events such as deaths in custodies and escapes". [21] His evidence indicated some knowledge of the Lithgow Correctional Centre and in particular, the Industries Area where the applicant was found. [22] When questioned by trial counsel for the applicant about the source of his knowledge, Mr Berry gave evidence that he familiarised himself with the Correctional Centre during the course of his investigation. [23]
The evidence of Mr Horan and Mr Berry was also informed by a "walk-through" inspection of the Lithgow Correctional Centre a few months after the incident. This was conducted with Mr Parnell, the Manager of Industries. This was the only time that Mr Horan had been through the loading dock of the Industries Area during the investigation. [24]
Mr Horan gave the following evidence concerning the walk-through: [25] "Q. Is it somewhere that you went again in the context of your involvement in this investigation? A. I've been there once since, yes. Q. When was that? A. We did a walk around it's mentioned in the investigating assessment report or sometime after the incident I did a walk around with the investigator Simon Berry and Bill Parnell who was the manager of industries. Q. Was that on 4 March when this incident actually occurred? A. No, it wasn't. Q. It was sometime thereafter and your walk around included, did it, this loading dock area of the industries section? A. We did a walk around of all the - from the section room, both sides of industries, where the kitchen is and behind one unit. Q. When you say both sides of industries, you mean the road area there as well? A. What I mean is there's bumpers and there's technology which - sorry, textiles and technology which is technology is for bumpers referred to. Textiles is the big sewing area. The reception room is the building as I am looking at it immediately towards the left which also have a vehicle bay."
Mr Berry also agreed that "on 3 September 2009… with an officer by the name of Mr Parnell, [he] walked around the perimeter of that industries building". [26]

Evidence of the layout of Lithgow Correctional Centre, security features and the construction of the roof where the applicant was found

The applicant submits that "Mr Horan had no direct [firsthand] current knowledge of the workings of Lithgow CC or the industries workshops. Circumstances had changed since Mr Horan had worked there, any information Mr Horan gave of the current workings of Lithgow CC had to have been gleaned from other sources. Which is hearsay!" [27]
At trial, Mr Horan's evidence in chief was extremely brief. None of the evidentiary matters raised on the present application were elicited by the Prosecutor. His evidence in chief merely described his attendance at the facility and observations of the applicant being located in the ceiling cavity of the Industries Area. [28]
However, he was cross-examined about his knowledge of the centre based on his previous employment there and familiarity with its layout. He was asked about his knowledge of the Industries Area including whether there were any high fences, alarms or sensors. He gave the following evidence: [29] "Q. The next line which would appear to be the middle line running around Exhibit A, do you understand what I am talking about now? A. Yes. Q. That is a fence is it not? A. That's what we refer to as a Macin fence it is M-A-C-l-N it is just a brand name of the steel that is used to make it. Q. And that is again a very high fence? A. That would be of equal height to the underside of the roll I am guessing or from memory. Q. Something approaching ten metres or- A. Between eight and ten metres or six and ten metres. Q. And then along the top of that is razor wire is that right? A. From memory yes. Q. And the area between the fence you have just described and the wall, that's call the sterile area is it? A. Yes it is, yes. Q. And both the fence you've just described and the wall are clearly indicated on that photograph? A. Yes they are. … Q. Just a couple of other questions Officer Horan, to your knowledge is the fence that you have described fitted with sensors? A. They are sensors on the Macin fence which is the - and also from my memory there is a microwave or sensors within the sterile zone as well. Q. And those sensors are designed that if a fence is touched, talking about the sensors on a fence, if a fence is touched alarms go off? A. It is two fold, an alarm will go off, or may go off and also a camera will be diverted to that area. Q. And is it a similar situation with the sensors you described in the sterile zone? A. Yes that is the same."
It is clear enough that the purpose of this cross-examination was to establish the difficulties that would have confronted Mr Horan in escaping. During re-examination, Mr Horan was asked: [30] "Q. The photograph if I may your Honour, exhibit 1. Mr Horan, the photograph that I have exhibit 1, you made reference to the concrete wall and to the Macin fence within that going further into the complex itself there appears to be somewhat of an oval shape, can you tell me what that is please, if I just show it to you? A. With the turning circles at the end that's a driveway."
Mr Berry also gave evidence regarding the physical layout of the Industries Area and the construction of the roof where the applicant was found: [31] "Q. Just very briefly, you're aware that the industries area is divided into two sections, one being the bumper area and another being the textile area? A. That is correct, yes. Q. And again just very briefly, you saw that those two areas are divided by a raised section, two offices really in that raised section where Corrective Services staff conduct administrative duties and also they are in a position to observe the inmates in either the bumper or the textiles area or both, all right? A. Yeah that's correct, very much so. … Q. And just returning to paragraph 19 and the last sentence on 3 September 2009 you observed that the roof was made from a metal construction similar to corrugated iron? A. Correct. Q. And that was an observation you made from the ground? A. Yes."
None of this evidence was hearsay. It was based on the witnesses' own observations. Judge Colefax properly considered this evidence and it was relevant to his Honour's consideration of the case. His Honour made specific reference to Mr Horan's evidence at p.4 of his judgment: [32] "The Industries Area is one of a number of buildings in the Lithgow Correctional Centre. The Centre is surrounded by two perimeter fences. The outer most perimeter fence is a high concrete wall possibly ten metres high on top of which is a roll. The next perimeter fence is a mason steel fence also somewhere between six to ten metres high on top of which is razor wire. Between the mason steel fence and the concrete wall is an area known as the 'sterile area'. Entry into that area alerts sensors and cameras as does the touching of the mason steel fence."
Even if it is accepted that this evidence in some instances was based on quite limited observations, this does not give rise to the appearance of doubt or any question surrounding the applicant's conviction. Both witnesses had sufficient knowledge of the physical layout of the Correctional Centre, the construction of the Industries Area and the roof where the applicant was found to provide relevant evidence. The fact that Mr Horan had worked at the centre "prior to the bumpers coming in" did not render inadmissible the evidence he gave in cross-examination.
The concerns now raised about the evidence do not give rise to any appearance of doubt or question under s 79(2).

Evidence concerning delivery vehicles and access to the Industries Area

The applicant submits that the evidence of Mr Horan and Mr Berry regarding delivery vehicles was hearsay and "gleaned from other sources". The applicant noted that "no other witnesses with true [first] hand knowledge gave evidence to support this". [33] Mr Berry did not give any evidence at trial of vehicular access to the Industries Area. Accordingly, I will consider the evidence of Mr Horan in this regard.
Mr Horan gave evidence in re-examination that certain vehicles "definitely" would have had access to the Industries Area. After the answer set out at [31] above, the following evidence was adduced: [34] "Q. A driveway is it? A. A solid concrete driveway for vehicle accesses into the centre and where the turning circle is at the end there is also a fence that runs across the back of the gaol which separates the activities oval to the main part of the gaol. Q. Could I have that back again, that oval shape together with those turning circles looks something like a set of earphones? A. Yes similar yes. Q. Now do you see the activities section in that photograph, again I will hand it back to you? A. Yes the activities is at the rear of the photograph in between two and three units. Q. Is there any need for vehicles to go to the activities unit? A. I am guessing the only need would be, if an ambulance would need to access that location or if they had to do any maintenance on the oval itself, relaying turf or something like that, but there is a fence that goes across. Q. I am talking about the industry section now? A. Industries or activities? Q. I beg your pardon, I misled you, I meant industries, would there be any need for vehicles to go to the industries? A. Definitely. Q. And would they use that road that you've taken? A. Yes they would. Q. And where would a vehicle park if it needed to stop? A. It would reverse into the vehicle bay which is within that location. Q. I will give you a biro and I will ask you please if you would mark that location? A. I have a pen on me. Q. You have a pen all right. Could I see that? A. That is for industries there is also- Q. Just industries that's all I am interested in okay. What sort of vehicles would go into that area? A. Anything. … Q. What type of vehicles? A. A Pantec truck or bigger from memory I've never seen a semi trailer enter the centre, but definitely a big Pantec truck would enter the centre, they also drop off the meals into that location or just further up there's the inmate kitchen, so trucks would enter for the delivery of meals, for the delivery of the inmate buy ups and also the need to deliver product to the industry areas. Q. How frequently would Pantec trucks pull into that area? A. If not daily every second day. Q. And so I think I know what you mean by a Pantec, but would you please explain what you mean by a Pantec? A. A Pantec truck is a truck with a cab over the engine and a storage area on the back similar to that in lengthways of a shipping container but possibly double the height or as big as can fit into the Lithgow Correctional Centre gate as well. Q. How close would a Pantec truck get to the roof of that industry section? A. It would back in underneath it to go into the area."
No objection was taken to this evidence, which arose from the cross-examination about the structure and layout of the area and the implication that this would have made escape difficult or impossible. Defence counsel was permitted to undertake further cross-examination in which Mr Horan acknowledged that he worked at the Centre "prior to the bumpers coming in". He then was asked about the regulation of vehicles in the Industries Area: [35] "Q. Are you familiar, sir, with the vehicle access to the industries building? A. I am familiar with vehicle accesses to the centre, yes. Q. Well, I am specifically asking you about vehicle access to the - A. I'm not sure of times. Q. Right, but you worked there when? A. In 2004 and 2005. Prior to the bumpers coming in. Q. If I could just have access to Exhibit 1. HIS HONOUR Q. Did you say prior to the bumpers coming in? A. Yeah, prior to -- Q. I understand what that means, I just didn't hear you? A. Sorry, your Honour. [COUNSEL] Q. So you've marked on Exhibit 1 there the area where vehicles enter the industries area and there is effectively a loading dock there, isn't there? A. Yeah, a dock of types. Q. That is somewhere that you have been before? A. Yes, I have been, yeah. Q. Is it somewhere that you went again in the context of your involvement in this investigation? A. I've been there once since, yes. Q. When was that? A. We did a walk around it's mentioned in the investigating assessment report or sometime after the incident I did a walk around with the investigator Simon Berry and Bill Parnell who was the manager of industries. … A. What I mean is there's bumpers and there's technology which - sorry, textiles and technology which is technology is for bumpers referred to. Textiles is the big sewing area. The reception room is the building as I am looking at it immediately towards the left which also have a vehicle bay. Q. Perhaps the witness, your Honour, could have access to Exhibit C. You see that? A. Yes. … Q. You gave some evidence about vehicle access and you said that it was quite common I think for Pantec trucks and similar vehicles to come into the gaol, is that right? A. Yes. Q. Vehicle access is very strictly regulated in and out of the gaol, is it not? A. All entry and exit of vehicle is strictly regulated. Q. The overriding policy is that vehicles should not come into the centre unless it is absolutely necessary? A. Yeah, I would agree with that, yes. Q. So that if a vehicle is delivering something that can be left at the front gate and hand delivered or delivered on a trolley that should occur? A. Yes, that's correct. Q. It is the position too that if a vehicle has been allowed in then on exit it is very thoroughly searched? A. Entry and exit is searched. Q. Thank you and that if the vehicle is large enough to have any unsecured or loose cargo inside it, those items of unsecured or loose cargo are themselves searched? A. Yes, I agree with that, yes. Q. And in the case of rubbish trucks and the like, the policy includes, does it not, spiking with long metal poles the rubbish that cannot easily be searched itself? A. Yes, I've seen that happen, yes. Q. And it would be the position, wouldn't it, that if there had been an incident in the gaol and there was concerns about the whereabouts of someone, then vehicle access would even be more strictly regulated, would it not? A. On most occasions vehicle access and entry from the centre is stopped. Q. Is stopped? A. If we have that availability on some of our bigger complexes. Like the Long Bay complex we stop all vehicles exiting the complex, not just this centre. Q. Other than emergency vehicles, or police vehicles, things of that nature, everything is stopped in and out correct? A. And searched, yes."
Mr Horan was then asked in further re-examination: [36] "Q. What about the roof of a Pantec? A. From - I can't recall whether or not Lithgow has a camera located on the roof space above but many do. It's also a matter of - there are mirrors set up so the staff can watch the vehicle driving through to check the roof spaces."
Based on this evidence, the applicant puts in issue the following portion of Judge Colefax's reasons for verdict and submits there was insufficient "true" evidence to support his conviction: [37] "Obviously enough, vehicular access can be gained to the centre. In particular, vehicular access can be gained to the Industries Area of the centre. That vehicular access includes large semi-trailers and other vehicles. Access to the Industries Area is on a daily basis or at most every two days. Obviously these vehicles are a potential method of escape and therefore there is high security and searches for both entry and exits to the centre."
The applicant contends this reasoning: [38] "[C]learly shows that the influence of both witnesses Horan and Berry's evidence. This material was clearly from the hearsay, conjecture and speculation evidence of Horan and Berry. The judge's words are from their evidence, no other witness evidence supported those comments. Thus that proves my point, that the judge's decision was influenced by their fake evidence. The true evidence from all the other witnesses, was insufficient to support the conviction."
The respondent submitted that Mr Horan's evidence concerning vehicle access to the Industries Area was based on "his prior work at the Lithgow Correctional Centre as a senior intelligence officer". The lack of extensive cross-examination on the knowledge and reliability of both Mr Horan and Mr Berry's evidence was, on the respondent's submissions, a "calculated forensic decision based on the contested issues in the case". The respondent refutes the assertion that the lack of extensive cross-examination was a result of "any misapprehension of the truthfulness or admissibility of the witnesses' evidence." [39]
The respondent is correct in submitting that "it was not part of the defence case that vehicles did not have access to the Industries Area, or did not have access daily or at least every second day." [40] Some of the evidence may have been based on things that the witnesses learned in the course of the investigation and was, technically, of a hearsay nature. It is true that some of Mr Horan's evidence was based on his observations from a time "prior to the bumpers coming in". However, there is nothing to suggest that, if objection had been raised, this kind of evidence could not have been given by other witnesses (with direct and recent knowledge) or in the form of documents if any serious issue had been taken to the evidence at trial. The defence did not contest the evidence and it was open to the trial Judge to accept it.
In some respects, the evidence was elicited and embraced by the defence at the trial. The objective was to establish the difficulties confronting Mr Steer if he had been attempting to escape. Counsel submitted it was "possibly impossible" for him to escape from his position in the roof cavity. [41] While it was accepted that this did not give rise to any defence at law, the submission was that the difficulties confronting a potential escapee hiding in the roof cavity would lead the Court to doubt that the only reasonable inference was that Mr Steer was attempting to escape. [42]

The evidence about cutting tools and the like

The applicant submits that the evidence of Mr Berry and Mr Horan concerning tools was "gleaned from other sources and they could not even give proper descriptions of tools or tool shed". The applicant further submits that "their evidence in this was hearsay and no other witnesses with true [first] hand knowledge gave evidence to support this". [43] Mr Horan did not give any evidence about tools.
Mr Berry gave the following evidence regarding the tools available to inmates in the Industries Area and the associated security procedures: [44] "Q. What means, if any, would have been available to an inmate to force his way through a corrugated iron surface? A. Within the industries area, I'm - I'm of the knowledge that that particular area has tin snips, cutters and other working tools of the like, that like. Q. Where were they kept? A. They are kept in the actual bumper shop area, there's certain lockable cupboards or areas where they are kept. Q. Did you make some inquiry as to when it was that the accused commenced working in the industries area? A. I believe I did, yes. Q. Just have a look at this document if you would, first of all do you recognise that document? A. I believe it's a document I obtained during my investigation. Q. What is the document called? A. It's an inmate movement and work history. Q. An inmate movement work history? A. Correct. Q. Does that document refer to the accused? A. It appears to be, yes. Q. And it indicates some dates? A. Yes it does. Q. Does it indicate a date upon which the accused commenced working in the industry section? A. Yes. Q. What's that date? A. 16/4/07."
During cross-examination, he also gave evidence that: [45] "Q. I think you said in your evidence-in-chief that the tools that are available or are usually available in the industry section are kept in a lockable cupboard? A. Yes I believe they're kept in a lockable cupboard. Q. And they are the subject aren't they of a fairly strict and rigorous policy to ensure that they are kept securely? A. There is indeed a policy. Q. And that policy requires doesn't it that at the beginning of every shift, all the- that there be a check done to ensure that all tools are accounted for and in good working condition? A. Yes the spirit of the policy is to keep a check of the tools that's correct. Q. And just in response to my question, the policy requires does it not that at the beginning of every shift there is a check of tools done to ensure that they are all there and in good working condition? A. I believe you're correct sir. Q. And that throughout the day corrective services officers are required to ensure that the tool and chemical store are kept locked and that things in them are accounted for throughout the day? A. Yes. Q. And indeed that at the end of every shift, the four prisoners that go to the industry section are let go back to their units, a check of the tools are done again so that they are all accounted for before prisoners are let go? A. Yes I believe that's a correct understanding of the policy. Q. And isn't it the position that in the course of your investigation into this incident you spoke to corrective services officers that were responsible for that policy on 4 March 2009? A. Responsible for enforcing the policy, yes. Q. You spoke to those officers? A. Yes I did. Q. You obtained log books for the industry's area? A. Correct. Q. And it was the position wasn't it that the records showed that those checks of tools had been done? A. Correct. Q. And that all the tools were present and accounted for before prisoners were let go? A. To my recollection you are correct. Q. It is also - there is a specific policy that in addition to governing procedures with respect to tools governs the operations of the industry's area? A. Perhaps you could be more specific. Q. Well the industry's area is called F block at Lithgow Correctional Centre isn't it? A. I only know it as the industry's area. … "Q. I just have a couple of other questions about the tools. You said that most tools were kept in the lockable cupboard in the industries area? A. Yes, as far as I understand that's where they're stored. Q. Are you aware that particular care was taken in respect of tools that were capable of cutting? A. When you say particular care, could you elaborate on that? Q. Well, there was a line in the policy that said, 'All cutting tools that are considered high security equipment are to be operated by overseers only'? A. To my recollection, no I don't remember that part. Q. Overseers is a reference to the Corrective Services staff that works specifically in the industry section? A. Yes, that's correct."
In re-examination, Mr Berry indicated that he was not in a position to describe the procedure by which tools are secured in lockable cupboards: [46] "Q. Can you explain just if you are able to, the means by which these tools are secured in these lockable cupboards, I mean can you describe the cupboards and how they are locked. Are you in a position to do that? A. No, sorry, I'm not."
The respondent concedes (correctly) that some of Mr Berry's evidence that the Industries Area had particular tools which were subject to various security procedures must have emanated from his investigation and, accordingly, may have constituted hearsay evidence. [47] Mr Berry acknowledged that in the course of the investigation he "spoke to corrective services officers" and "obtained log books" which related to policies concerning the security and safety of tools. [48] However, the respondent submits that there was no extensive cross examination of Mr Berry on this evidence because it was not a contested issue in the case. Rather, the focus was on whether or not "the applicant's acts amounted to an attempt to escape, and whether he had the requisite intention".
Further, his Honour made limited reference to the existence of tools "capable [of] cutting metal" in the "bumper bar area" of the Lithgow Correctional Centre. [49] Judge Colefax made no reference to the security procedures attached to that equipment. There was independent evidence, namely the policy concerning cutting tools and high security equipment, which established by necessary inference that there were cutting tools and similar equipment in the Industries Area. During the cross-examination, counsel took Mr Berry to the policy. The objective was to establish that the cutting equipment was to be "operated by overseers only" and that, by reference to the policies, Mr Berry was "aware generally though that tools capable of cutting had a particularly careful regime of security attached to them." [50]
The question marks raised on this application as to the hearsay nature of this evidence do not give rise to any appearance of doubt or question surrounding the applicant's conviction.

Evidence concerning an "alleged escape plan" and Mr Berry's "most likely scenario"

The applicant submits that the evidence of Mr Horan and Mr Berry regarding "an alleged escape plan using alleged delivery vehicles" amounted to "conjecture and speculation." The applicant specifically refers to Mr Berry's evidence on the "most likely scenario" available to an inmate in attempting to escape Lithgow Correctional Centre: [51] "Q. I think on 3 September 2009 you, with an officer by the name of Mr Parnell, walked around the perimeter of that industries building, is that right? A. I did indeed. Q. Beg your pardon? A. I did indeed. Q. Did you form a view yourself as to what means might have been available to an inmate if that inmate had succeeded in getting through the roof section of that particular industries section, did you form a view of what might have been available to him thereafter? A. Yes I did. Q. What was the view that you formed? A. Most likely scenario was that there is vaned dock area within the industries building, if an inmate had made his way to the top of the roof he may have been able to jump or land on top of the truck as it was passing through that area and secrete himself on that truck, that would be one particular view. Q. What substance was the roof made of? A. I believe it's a corrugated iron."
The respondent submits that Mr Berry's evidence as to the "most likely scenario" was an admissible opinion based on his "work and specialised knowledge as an investigator" pursuant to ss 78 or 79 of the Evidence Act 1995 (NSW). [52] Further, it was put that the opinion amounted to a "commonsense view comfortably open to the trial judge by the drawing of inferences from other admissible evidence as to the access and presence of vehicles." [53]
The respondent relied on the fact that the reasons of Judge Colefax do not expressly refer to the evidence of Mr Berry on the "most likely scenario". Rather, "his Honour identified the uncontroversial facts established by the tested evidence, and independently applied his mind to the assessment of what inferences could be drawn. In that assessment, his Honour was expressly mindful of the requirements of proof in a circumstantial case in the absence of any admissions." [54]
The respondent's submission accords with the judgment of Hidden J in the Court of Criminal Appeal. In the context of analysing whether the steps taken by the applicant were immediately connected with an attempt to escape, Hidden J said at [15]-[16]: "…What he then proposed to do to get out of the prison complex is anyone's guess. It may be, as his Honour postulated, that he hoped to secrete himself in a vehicle which was leaving the Centre."
Mr Steer submitted in reply: "A scenario and opinion are not true factual evidence that is clearly conjecture and speculation. The Crown seems to be confusing the courts role as a court of law. Imagined scenarios and opinions may rule in the world of the tabloid press and social media. But, that is not what a court of law is it is not a tabloid court. The court of law is required to look at true evidence, not fake evidence of hearsay conjecture and speculation." [55]
No objection was taken to this evidence at the trial. No suggestion was made on appeal that it was not an admissible opinion. In view of the approach taken by the defence at trial - emphasised in the cross-examination of Mr Horan and in the address - it was open to the prosecution to adduce evidence of the possible means of escape. Insofar as this involved an expression of an opinion, it was admissible under ss 78 or 79 of the Evidence Act. Mr Berry had specialised knowledge by virtue of his role as a Principal Investigator and his evidence was based wholly or substantially on that knowledge.
Further, part of the defence case was that the difficulties in escaping made the inference that this was Mr Steer's intention an unattractive one. In answering that argument, it was open to the prosecution to adduce evidence from the investigator as to the means of escape that the applicant may have employed.
Even if the evidence of Mr Berry's opinion of the "most likely scenario" is disregarded altogether, there is no appearance of doubt or question of Mr Steer's guilt. The possibility that the applicant, having secreted himself in the roof cavity, could potentially have escaped - or tried to escape, or intended to escape - via a vehicle that entered and exited that area of the gaol was a logical and real one. The fact (assuming it to be) that such an escape plan was unlikely to succeed did not render the evidence inadmissible.
Section 310D(b) of the Crimes Act does not require proof of the method of escape. As Hidden J said in dismissing the appeal, what the applicant "proposed to do to get out of the prison complex is anyone's guess." [56] The trial Judge properly noted the requirements of proof in a circumstantial evidence case and concluded that there was no reasonable hypothesis consistent with innocence.

Reliance of Judge Colefax on Matthew Horan and Simon Berry's evidence

The applicant submitted that the decision of Judge Colefax to convict shortly after the "false evidence of both Horan and Berry" demonstrates that his Honour placed a strong reliance on it. [57] This submission is not borne out by a review of the record of trial or his Honour's reasons for judgment.
The transcript of proceedings reported the following exchange on the first day of the trial: [58] "HIS HONOUR: Can we have Mr Steer back? Mr Crown whilst we're waiting for Mr Steer to return what's your best estimate now of the length of the trial having had a chance to talk to Mr Nash? CROWN PROSECUTOR: Your Honour I did receive a telephone call from one of my witnesses at lunchtime and he's informed me that he cannot be here tomorrow because of family difficulties. I'm hopeful that he will be the only witness that I need to call on Monday your Honour. HIS HONOUR: Okay. CROWN PROSECUTOR: I have three here this afternoon and the balance I hope to call tomorrow with one on Monday."
The evidence in the trial was heard over three days. Nothing can be inferred from the fact that Judge Colefax delivered judgment on the same day as he heard the evidence of Mr Berry and Mr Horan. The reasons for judgment do not suggest that the evidence of these two witnesses was given undue weight or played a particularly significant part of his Honour's reasoning process.

CONCLUSION

Based on a review of all of the evidence and the record of the proceedings, and considering the questions now raised as to the evidence of Mr Horan and Mr Berry, there does not appear to be a doubt or question as to Mr Steer's conviction.
The circumstantial case presented by the prosecution at trial was a strong one. The applicant hid in the roof cavity of the Industries Area for something like five hours before being located by Corrective Services staff. Judge Colefax was satisfied beyond reasonable doubt that he did so in an attempt to escape. His Honour applied the correct legal test; that is, he was satisfied there was no other reasonable explanation for Mr Steer's actions.
It was open to his Honour to rely on the evidence of Matthew Horan and Simon Berry. They were both present at the scene when the applicant was located by Corrective Services staff and were actively involved in the investigation of the incident. The evidence was admitted without objection and in some instances elicited in cross-examination with the intention of undermining the prosecution's case theory. The most controversial aspect of the evidence was Mr Berry's opinion of the "most likely scenario". The trial Judge made no reference to this opinion in his judgment and the opinion was not very much more than a statement of the obvious. It was a conclusion to which the tribunal of fact was entitled to come without specific evidence from the chief investigator.
My review of the evidence leads to the conclusion that the only reasonable inference arising from Mr Steer hiding in the roof is that he was attempting to escape. Given the onus of proof and requirements of circumstantial evidence in a criminal case, it was not for Mr Steer to raise, let alone establish, reasonable hypotheses consistent with his innocence. However, the alternatives raised at trial were properly rejected by the trial Judge. [59]
I have considered the complaints now made as to the cogency and admissibility of the evidence of Mr Horan and Mr Berry. It does not appear that there is a doubt or question over Mr Steer's guilt. Nor does there appear to be any doubt or question as to that part of the evidence in the case.
Accordingly, I decline to exercise the powers in s 79(1). That is, based on the statutory requirements in s 79(2), I will not direct an inquiry into the applicant's conviction or refer the case to the Court of Criminal Appeal to be dealt with on appeal pursuant to the Criminal Appeal Act 1912 (NSW).

Endnotes

Steer v R [2014] NSWCCA 338.
Court Book ("CB") pp. 231-233.
Steer v R [2014] NSWCCA 338 at [8]-[9].
Respondent's written submissions at [16].
Steer v R [2014] NSWCCA 338.
Steer v R [2014] NSWCCA 338.
Brian James Steer v The Queen [2015] HCASL 149, S 35/2015.
Section 79(4); Application by Brian Wayne Coles pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 797 at [12].
Respondent's written submissions at [40]-[41]; D'Orta-Ekenaide v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34].
Respondent's written submissions at [36].
Applicant's submissions at p.3.
Applicant's submissions at p.3.
Transcript ("T"). 80; CB p.198.
T. 82 at [4]-[5]; p.200; T. 92; CB p.210.
T. 93; p.211.
T. 92; p.210.
T. 80, 92; CB p.198, 210.
T. 82; p.200.
T. 86; p.204.
Applicant's submissions in reply dated 11 September 2019, p.1.
T. 92; p.210.
T. 93-94; CB, pp.211-212.
T. 99, p.217.
T. 87.
T. 87, p.205.
T. 92, 95,101; CB pp.210, 213, 219.
Applicant's reply to Crown submissions at p.1.
T. 80-81, CB 198-199.
T. 83-85; CB 200-203.
T. 85; CB p.202.
T. 92-93, 95; CB p.311.
CB p.233.
Applicant's submissions at p.1.
T. 85-86; CB pp.203-204.
T. 86-90; CB pp.204-208.
T. 90; CB p.208.
Reasons for verdict, 22 August 2011, pp.4-5; CB pp.233-234.
Applicant's submissions in reply dated 11 September 2019, p.2.
Respondent's written submissions at [59].
Ibid.
T. 22/8/11, p.4; CB p.224.
Supra.
Applicant's submissions at p.1.
T. 94; CB p.212.
T. 95-96,101; CB pp.213-214, 219.
T. 102; CB p.220.
Respondent's written submissions at [56].
T. 96; CB p.214.
Reasons for verdict, p.2; CB p.231.
T. 101; CB p.219.
T. 93-94; CB pp.211-212.
Respondent's written submissions at [61].
Respondent's written submissions at [60]-[61].
Respondent's written submissions at [64].
Applicant's submissions in reply dated 11 September 2019, p.1.
Steer v R [2014] NSWCCA 338 at [15].
Applicant's submissions at pp.2-3.
T. 18/08/11 p.4.
See pp.5-6 of the verdict judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2020

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