Carr v The Queen

IN THE COURT OF CRIMINAL APPEAL 60029/01

HODGSON JA LEVINE J SIMPSON J

Tuesday 11 June 2002 REGINA v. David Matthew GREGORY Judgment 1 HODGSON JA: In November 1981, the applicant David Gregory stood trial, together with Michelle Heaney and Victor Hitchcock, on a charge that, between 1 August 1980 and 11 April 1981, he did conspire with his two co-accused, Peter Wong and diverse other persons to import a prohibited drug, heroin. A verdict of not guilty by direction was entered in relation to Heaney; and the applicant and Hitchcock were found guilty by the jury. Shannon DCJ sentenced the applicant to seven years' imprisonment with a non-parole period of two years. That sentence has now been fully served. 2 On 15 February 1999, the applicant applied for an extension of time to appeal against his conviction, on the stated ground "Fresh evidence from the Royal Commission into the NSW Police Service". In a statement of grounds of appeal dated 20 April 2001, this was expressed as follows: There now exists fresh evidence that demonstrates the Appellant's conviction was a miscarriage of justice. 3 At the hearing of the application for extension of time, the applicant sought to rely on two additional grounds as follows: 1. The trial judge erred in failing to give an accomplice direction about the evidence of Victor Hitchcock.

2. The trial judge erred by failing to direct the jury adequately concerning the unsigned record of interview allegedly made by the applicant.

CIRCUMSTANCES 4 In the 1981 trial, the Crown case was that the initial agreement to import heroin was made between the applicant and Wong while they were in prison together, and that later Hitchcock among others became a party to the agreement. Hitchcock carried the heroin into Australia, and Hitchcock and the applicant were arrested a week later. Police gave evidence that, on 10 April 1981, they entered premises occupied by the applicant, he was ordered to undress, and a small plastic bag containing heroin fell from his clothing. It was alleged that the applicant said it was "some of the dope that Vic brought in". 5 The applicant was taken to Remington Centre, where he was interviewed by Detective Sergeant Sweeney between 10am and 7.35pm. Detective Sergeant Johnston typed a record of interview, and handed it to the applicant. It was alleged that the applicant read it, agreed it was correct, but refused to sign it. Sergeant Chapman gave evidence that he asked the applicant formal questions about the interview, and that the applicant said that the record of interview was accurate, and made of his own free will, and he had no complaints. The record of interview was not admitted into evidence, but was used to refresh the memory of Sweeney and Johnston. According to their evidence, the applicant made admissions of guilt in that interview. 6 The Crown also relied on circumstantial evidence as corroborating the admissions claimed to have been made by the applicant to the Police. Hitchcock gave sworn evidence to the effect that he was coerced into participating by the applicant. The applicant made an unsworn statement in which he gave an explanation of the circumstantial evidence, and said that the record of interview was a fabrication.

FRESH EVIDENCE 7 On the application for extension of time, there was an affidavit from the applicant that he did not previously appeal because his solicitor advised him there was no point, because the appeal would not be heard before he was released on parole. In 1999, he saw a poster about people being wrongly convicted by evidence given by corrupt police, and he applied for legal aid to have his conviction reviewed. 8 There was also an affidavit from the applicant's solicitor David Barrow, asserting that the investigation that led to the arrest of the applicant and Hitchcock was an investigation by the Joint Task Force into Drug Trafficking (JTF); and that the Police Royal Commission had reviewed a number of these investigations. 9 The affidavit asserted that an officer JTF10 gave evidence at the Royal Commission that he accompanied Sergeant Johnston to Hong Kong in 1983 and was present during an interview between Johnston and Wong; and that when he returned to Australia, he prepared a statement. He gave the following evidence concerning these matters at the Royal Commission: Q. Let me just put in your hands what appears to be a copy of your statement in this matter of the police against Wong. It is a document dated 3 November 1983. Do you identify your signature at the bottom of each page of that statement? A. Yes, my signature is there on the right-hand corner of each page.

Q. And this was a statement to be prepared as part of the brief. Indeed, it was part of the brief of evidence against Mr Wong, was it not? A. Yes.

Q. And it was from that document that you gave your evidence, which was later disputed in court? A. Yes.

Q. I just want to take you to the portion that you say was fabricated. There is on page 9 and following a record of a lengthy conversation between Detective Johnston and Mr Wong with you present; do you see that? A. Yes.

Q. Was it to part of that conversation that you were referring? A. Yes, it is.

Q. Perhaps you might indicate by reference to the page. Then if you could read that portion of the statement which you say represents the fabrication? A. Yes. There's a section there where: Johnston spread some letters out on the table and Wong appeared to look at them and he shook his head and said, "Stupid, stupid, stupid, why has he kept these? Mr Johnston, why am I always surrounded by fools? Anyway, there is nothing here about conspiracy. It is jobs that I asked him to do for my court case. I don't write nothing about conspiracy. You show me where." From my recollection, that is part of what Wong disputed having said, and my memory is that he may well be correct there, that some of those things weren't said.

Q. When you say "he may well be correct", what do you mean by that? A. Well, it's been a long time, you know, it's 12, 13 years, and that particular conversation is quite lengthy. Parts of it, I believe, are correct and other parts are not correct. It's very difficult to pinpoint which category the conversation falls into. But I can recall his reply about, "Stupid, stupid, stupid" wasn't an answer he gave.

Q. How did it come about that a record of this conversation which was false was put together? A. Well, later on when we returned to Australia, the brief was put together and Johnston was responsible for putting this particular brief together and I discussed with him what our evidence would be and I think I even wrote up my notebook to include this conversation in my notebook.

Q. Did you do that after you got back to Australia? A. Yes, I'm pretty sure I did.

Q. Can you recall whether there are any other portions of this alleged conversation which are fabricated? A. Well, not specifically, no. I've had a look at the record of interview which followed this conversation and it doesn't appear to be that any of the conversation was repeated in the formal record of interview. But it's difficult now to recall which parts were correct and which one weren't.

Q. And can you recall whether or not there were other members of the task force involved in that fabrication, aside from you and him? A. No, I don't think there were.

Q. Again, this was a case, was it, where you believed that Mr Wong was properly accused of the matter? A. Yes.

Q. In fabricating this evidence, did you have any thought that you might have been contributing towards the conviction of a person who was innocent? A. That wasn't even a consideration, in my view. There was no doubt that Wong was guilty of these matters.

Q. So then why did you assist in fabricating this portion of the evidence? A. I think again it is simply a case of making a tighter brief of evidence.

Q. Mr Johnston was formerly - was, he still is - at that time a member of the New South Wales Police Service? A. Yes. 10 The affidavit also referred to evidence given at the Royal Commission by Detective Haken that money taken at a raid on a cocaine supplier Gomez was distributed among a number of officers including Sergeant Johnston. In an earlier statutory declaration given in connection with the Royal Commission, Haken stated that Johnston "put a verbal admission on Gomez to cover any possible allegation of theft of money". Haken also gave evidence at the Royal Commission of another occasion when a large amount of cash was stolen by arresting police, from which he gave $1,000.00 to Johnston. There was some corroboration of this from two other witnesses, though they did not give direct evidence concerning Johnston's involvement. 11 The affidavit also included a record of interview given for the purposes of the Royal Commission by Alan Takiac, who claimed to have replaced Sweeney on the JTF, in which he referred to Sweeney as a "notorious crook", and as having "a really bad reputation", and also said "like basically if you had Sweeney, Best and Bourke involved in the JTF, the JTF was always going to have problems with ah integrity". 12 The affidavit also referred to findings by the Royal Commission in relation to the JTF that "although it achieved a high conviction rate and not all of its members became involved in improper practices, the enquiries of this Royal Commission found that a large number of its operations were tainted by various forms of corruption". 13 By leave of the Court, after the hearing of the application, the applicant also provided an affidavit from Mr. Barrow to the effect that JTF10 was unwilling to swear an affidavit; and that, in any further trial of the proceedings, the applicant would seek to call JTF10 to give evidence, and if unable to do so, would rely on s.65 of the Evidence Act.

EVIDENCE FROM CROWN 14 The Crown relied on affidavit evidence from Sweeney and Johnston. 15 Sweeney gave evidence that the typed record of interview in the case against the applicant accurately recorded the conversation that took place. He gave evidence that he was not called to give evidence at the Police Royal Commission, or the subject of any adverse finding or comment by the Royal Commission. He said he was still employed by the Australian Federal Police, now as a Detective Superintendent. 16 Johnston gave evidence that the typed record of interview accurately recorded the conversation. He denied fabricating evidence concerning Wong. He denied corruptly receiving money or fabricating evidence. He said he was not called to give evidence at the Police Royal Commission, except in the paedophile enquiry, and that he was not the subject of any adverse finding or comment by the Police Royal Commission. He said he continued with the New South Wales Police Service to 5 July 2001, when he retired having the rank of Assistant Commissioner. 17 There was no cross-examination on these affidavits.

ORIGINAL GROUND OF APPLICATION 18 In written submissions for the applicant by Ms. Burgess, it was submitted that, had the fresh evidence been before the jury, there was a significant possibility that the jury would have acquitted: Gallagher v. The Queen (1986) 160 CLR 392, R v. Hemsley NSWCCA 8/12/95. 19 It was submitted that the impropriety alleged against Johnston was proximate in time and involved the fabrication of evidence against an alleged co-conspirator: cf. R v. Vastag NSWCCA 20/6/97, R v. Johns (1999) 100 ACrimR 149, R v. Beattie (1996) 40 NSWLR 155. It was sufficient that the material could be a legitimate basis for cross-examination of the relevant witness, and the fact that the witness might be unlikely to admit impropriety did not rob the material of cogency: see R v. Hasenkamp NSWCCA 24/2/98, R v. Richards NSWCCA 3/4/98. 20 It was submitted that the material concerning Sweeney and the findings of the Royal Commission would be a legitimate basis for cross-examination: see R v. Marsala NSWCCA 31/5/96. And it was submitted that the other evidence, apart from the evidence of the record of interview, was not such as to require conviction: R v. Baartman NSWCCA 30/6/97. 21 At the hearing, Mr. Berman SC for the applicant submitted that the fact that there was no evidence from JTF10 himself, and no admission by Sweeney or Johnston, did not matter. The content of JTF10's evidence before the Royal Commission could be put before the jury, pursuant to s.65 of the Evidence Act if the applicant were unable to secure the attendance of JTF10. 22 For the Crown, Mr. Bellew submitted that, to show a miscarriage of justice, the fresh evidence must be material, credible and cogent. It must be such that, had it been before the jury, there would have been a significant possibility that the jury, acting reasonably, would have acquitted: Gallagher v. The Queen (1986) 160 CLR 392. The Court must consider all the material available: Ratten v. The Queen (1974) 131 CLR 510, R v. Mickelberg WACCA 12/2/99, R v. Doney [2001] NSWCCA 463. Each case must be determined on its own merits: R v. Miller NSWCCA 3/5/96, R v. Hastings NSWCCA 29/9/97. It was also submitted that it had not been shown that JTF10 was "unavailable" within the meaning of s.65 of the Evidence Act, so that the transcript of his evidence was not admissible even in these proceedings. 23 In this case, Mr. Bellew submitted, the material included the unchallenged sworn evidence of Sweeney and Johnston. They made no admission at the Police Royal Commission. Neither were called or made the subject of any adverse finding or comment. Both continued in senior positions in the Police Service. Mr. Bellew submitted that it could be inferred that neither those conducting the Police Royal Commission nor the Police authorities considered that the allegations against them had any substance. The general findings of the Police Royal Commission concerning the JTF were insufficient to support an allegation of miscarriage: see Application of Moore (2000) 112 ACrimR 331. 24 In my opinion, the material concerning Sweeney was too vague and general to have been admissible evidence in proceedings involving the applicant. In my opinion also, the possibility of effective cross-examination of Sweeney, based on that material or upon the findings of the Police Royal Commission concerning other members of the JTF and the JTF itself, is too speculative to make this material or the proceedings of the JTF fresh evidence which could bear on the justice of the conviction. 25 Mr. Berman submitted that the following matters could have been put to Sweeney in cross-examination: that he served for many years with the JTF; that he accepted that the JTF had many operations in which corrupt activities took place; that he served with persons A, B, C and D; that A, B, C and D were found to be corrupt; and that he was aware of corrupt activities of the JTF and of A, B, C and D. In my opinion, the second and fourth of those questions would not be proper questions. They seek answers not concerning anything the witness has done or observed, but rather comments on statements made by other persons. I do not think that submission shows a realistic possibility of effective cross-examination based on the material. 26 In relation to Johnston there is specific material. If the material had been available at the applicant's trial, Johnston could have been cross-examined concerning fabrication of evidence in relation to Wong and in relation to corrupt acceptance of $1,000.00, and the fact that JTF10 asserted the fabrication could have been put before the jury, pursuant to s.106(e) of the Evidence Act and, if necessary, s.65 of the Evidence Act. (I do not think the requirements of s.65 had to be satisfied for the purposes of these proceedings: the issue here is what evidence is now available, and out-of-court statements are relevant to that issue directly and not merely by way of hearsay.) Section 106 of the Evidence Act is in the following terms: 106. The credibility rule does not apply to evidence that tends to prove that a witness: (a) is biased or has a motive for being untruthful, or (b) has been convicted of an offence, including an offence against the law of a foreign country, or (c) has made a prior inconsistent statement, or (d) is, or was, unable to be aware of matters to which his or her evidence relates, or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth, if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence. 27 I do not think Haken's allegation concerning $1,000.00 could have been put in evidence pursuant to s.106(e). A denial of the allegation in cross-examination is in my opinion not sufficient to satisfy that requirement. And I do not think that cross-examination concerning the $1,000.00, denied by Johnston, could affect what a jury acting reasonably would conclude. 28 As regards the alleged fabrication of evidence concerning Wong, the evidence of JTF10 on this matter was notably vague, and put at its highest, it suggests that, in a statement recording what are essentially denials of guilt by Wong, the words "stupid, stupid, stupid", which might possibly be interpreted as suggesting some consciousness of guilt, were inserted. The evidence is capable of explanation in terms of a different recollection of what was said, and falls far short of suggesting fabrication of a plain admission of guilt. 29 When one combines these considerations with the sworn denials of Sweeney and Johnston, not challenged before this Court, the lack of any action upon the allegations taken by the Police Royal Commission or the Police authorities, the circumstance that no material reflecting on Sergeant Chapman has been produced, and the circumstance that there is no effective attack on Sweeney's evidence, in my opinion the material does not justify a conclusion that, had the new material been available and used to best advantage before the jury, there is a reasonable possibility that the jury, acting reasonably, would have acquitted the applicant.

ADDITIONAL GROUNDS 30 Mr. Berman SC submitted that no accomplice direction was given concerning Hitchcock. Although such a direction may not have been mandatory where an accomplice is giving evidence on his own behalf (Webb v. The Queen (1993) 181 CLR 41), the jury should have been told that Hitchcock could have a reason to implicate an innocent person, may tend to exaggerate the role of another and to fabricate evidence to achieve this, and may do so in an effective manner because of his knowledge of the circumstances: Davies v. DPP [1954] AC 378, R v. Ware (1994) 73 ACrimR 17, R v. Stewart (2001) 52 NSWLR 301. 31 Next, Mr. Berman submitted that the trial judge directed the jury as follows in relation to the record of interview: ... it was put to (the police officers) that they had fabricated the record of interview. That is a very substantial and serious allegation to be made, but you have to investigate it. It was put to them, in the course of the cross-examination, that they each fabricated the evidence as to taking a type record of interview and as to the questions which they say they asked Gregory and the answers which he gave. You have heard the evidence; they gave the evidence in this Court and they were cross-examined in detail. The Crown says that you accept them as witnesses of the truth and Mr McDermott put on behalf of the accused that they had fabricated and lied and therefore lied completely about the whole episode. It is a matter for you. I am merely pointing out the contest.

He submitted that this direction contained two errors: first, the suggestion that the jury should investigate the allegation of fabrication, and secondly the suggestion that the jury should determine which version was correct: R v. Towner (1991) 56 ACrimR 221. 32 Furthermore, it was submitted that the jury were given no other assistance as to how to approach this issue. They were not told that comparison of demeanour is not necessarily a sound guide to comparative veracity, that experienced judicial officers have trouble in deciding whether a practiced witness is telling the truth or not, or that belief entertained by the Police of an accused person's guilt is a factor to be borne in mind in determining whether a confession has been made (Carr v. The Queen (1988) 165 CLR 314 at 330, 335); or that police witnesses are often practiced witnesses and it is not easy to determine whether a practiced witness is telling the truth, or that it is comparatively more easy for an accused person in police custody to have evidence available to support evidence of police evidence of confessions than it is for police evidence to be fabricated (McKinney v. The Queen (1990) 171 CLR 468 at 476). 33 Mr. Berman submitted that it was appropriate to extend time to enable these grounds to be relied on. The decisions of the High Court in cases such as RPS v. The Queen (2000) 199 CLR 620, Wilson v. The Queen (1992) 174 CLR 313 and R v. Black (1993) 179 CLR 44, all led to many successful appeals in cases where directions had been given in accordance with the law as understood prior to those decisions. Mr. Berman submitted that R v. Unger [1977] 2 NSWLR 990 was out of keeping with modern practice. Mr. Berman submitted that the prime consideration in deciding whether leave to appeal should be granted is whether a miscarriage of justice would occur in the event that the applicant was prevented from bringing the appeal: R v. Young [1999] NSWCCA 275, in which Unger was distinguished. 34 In relation to extension of time, Mr. Bellew submitted that none of the cases referred to by Mr. Berman involved more than a short delay; and that the proper approach was to consider whether there were exceptional circumstances that might warrant an extension of time: see R v. Sunderland (1928) 28 SR(NSW) 26 at 27, R v. Lawrence [1980] 1 NSWLR 122 at 148. R v. Unger is still good law, and was applied in R v. Brehoi [1999] NSWCCA 113 and followed in R v. Knight [1998] 1 NSWLR 583. It was referred to in El Asmar v. The Queen (1992) 122 FLR 84, although the facts were distinguished, and in Ashlin v. Barrett [1988] TasR 113. 35 Mr. Bellew also submitted that the direction concerning the record of interview in this case was plainly distinguishable from that given in Towner: in that case, the direction given suggested that the jury should determine which of the two versions they preferred. 36 In my opinion, no error is shown in relation to the first additional ground. It was the Crown's submission that Hitchcock's evidence was unreliable; and for the trial judge to give his authority to unreliability of Hitchcock's evidence would have been unfair to Hitchcock. 37 I am inclined to the view that there was an error in directions as suggested in the second additional ground, such that, if such directions were now given and the point taken at the trial, and unless the proviso were applied, a new trial would now normally be ordered in response to an appeal brought within time. However, there is a preliminary question whether an extension of time should be granted, and if so, whether r.4 leave granted. 38 I accept that an important consideration as to whether an extension of time for an appeal should be granted is the consideration of what justice requires in all the circumstances. However, plainly that question is not itself answered simply by the consideration that, if such a point were now taken at a trial and an appeal was now brought within time, the appeal would be allowed and a new trial ordered. As pointed out in Unger, there are many additional considerations. This is supported by three cases referred by Street CJ in Unger, namely (in the criminal field) R v. Ramsden (1972) Cr.LR 547 and (in the civil field) Re Berkeley [1945] Ch. 1 and Piening v. Wanless (1968) 117 CLR 498. In the last mentioned case, Menzies J said this (at 509-10): In my opinion the verdict in the trial which was conduced upon one basis cannot be set aside merely because the decision, upon which Counsel presumably relied in determining how he would conduct his case, has been overruled subsequently. It is for Counsel to determine whether or not he will challenge or accept a decision which stands in his way, and, having accepted, his mistaken acceptance cannot be made the basis for setting aside any verdict which is returned by the jury upon the case submitted to them in order that a new, and in some ways, an inconsistent case - as the course of argument would seem to indicate - can be submitted to another jury.

Of course, those comments have to be taken in the light of the overriding consideration that justice should be done to an accused in a criminal trial, irrespective of errors by counsel. 39 As pointed out by Street CJ in Unger at 995, a trial having concluded and the time for appeal having gone by, the general principle is that the matter is regarded as at end, and the effect of a conviction in a criminal court, no less than a verdict and judgment in a civil court, is to merge in that conviction or judgment all of the material upon which it was propounded: Victorian Stevedoring & General Contracting Co. Pty. Limited v. Dignan (1931) 46 CLR 73 at 106. 40 Street CJ went on to say this (at 995-6): This concept of merger is no blind, arbitrary proposition. It is founded deeply in the fabric of the philosophy of the common law. Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that legal principle is constantly evolving and being moulded in the light of the changing and developing social context. Recognizing this, there has always been an unwillingness to permit the re-opening of past decisions. Indeed the process of appeal, either civil or criminal, is a comparatively recent and statutory concept - it finds no basis in the common law itself. This finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved. The concept of merger in judgment, both in the civil and in the criminal field, to which Dixon CJ referred, equally with the doctrine of res judicata, serves this requirement of flexibility for potential development of the law. 41 As I have said, an important factor in a decision as to whether an extension of time should be granted is whether the interests of justice require it; but the interests of justice must take into account not just the interests of the applicant, but also those of the Crown (and the community represented by the Crown), and of the administration of law generally. There are many factors relevant to those matters, including the powerful considerations supporting the finality of judicial decisions. 42 In my opinion, one factor relevant to the interests of the applicant is whether the alleged error, if established, would mean that the applicant would be entitled to an acquittal as of right, or merely that the applicant would, as a matter of course, be entitled only to a new trial. If the latter is the case, then the question is raised whether such a new trial would be fair to both sides. Another relevant factor is the degree of future harm to the applicant from a wrongful conviction. If there is still future punishment from the conviction, notably a future period of imprisonment, that would be a factor generally in favour of the applicant, particularly if the alleged error would entitle the applicant to an acquittal as of right. Another possible element of future harm to the applicant if a conviction stands might be that the applicant is deprived of compensation for a wrongful conviction and past punishment; though again, if the error would only justify a new trial and a fair trial is no longer possible, there is the countervailing consideration that to allow the appeal might open up the possibility of an unjustified claim for compensation. A further possible element of future harm to an applicant concerns the damage to the applicant's reputation from the conviction; and the weight to be given to this consideration would vary according to the extent of the damage suggested by the material before the court dealing with the application for extension of time. 43 In the present case, the error in the direction concerning the record of interview would normally not justify a verdict of acquittal but at most justify a new trial. A new trial of the charge against the applicant, after a delay of twenty-one years, would be highly unsatisfactory; and it is unlikely in the extreme that such a trial would in fact take place. The applicant's sentence has been completed, so there is no question of further punishment of the applicant. There is no suggestion in the application that the applicant wishes to pursue a case for compensation or that the applicant might have reasonable grounds to claim compensation; and in any event, in circumstances where there would not be a new trial, to admit the possibility of compensation could be unfair to the Crown and the community. 44 As regards the damage to the applicant's reputation caused by the conviction, no evidence concerning such damage has been advanced. Before this conviction, the applicant had been convicted of possessing heroin, possessing Indian hemp, and conspiracy to steal. There appears to be no evidence one way or the other about any subsequent convictions, and there is no evidence as to the impact which this conviction has had on the applicant's life after release from imprisonment. 45 As stated in Unger, the general principle is that, once the time for appeal has gone by, the matter is regarded as at an end. After many years have elapsed, there are powerful considerations of justice against the granting of an extension, and this should happen only in exceptional cases. In all the circumstances, I do not think a case is made out to permit an extension of time for an appeal, after the lapse of so many years.

CONCLUSION 46 For those reasons, in my opinion the application for an extension of time to appeal should be dismissed. 47 LEVINE J: I agree with Hodgson JA. 48 SIMPSON J: I agree with Hodgson JA.

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