Eastman v Director of Public Prosecutions

Background of Case

1. A useful summary of the case is contained in the judgment of Heydon JA, Carruthers J and Smart AJ in the Court of Criminal Appeal at [3]. It would be remiss of me not to give a brief summary of the facts. These facts are an extract from the Remarks on Sentence of the trial judge, Kirby J.
2. Kirby J described the facts of the case in the following way: "The Common Ground [5] Mr Patsalis and Mr Spathis were friends, although not of long standing. Mr Spathis had a business serving food at the Three Swallows Hotel. Mr Patsalis was a patron of that hotel. They shared certain interests. In the year or so before Mr Ludwig's murder, Mr Spathis advanced $16,500 to Mr Patsalis by way of loan. They gave strikingly different accounts of the circumstances in which the debt accumulated. It was, however, acknowledged by Mr Patsalis that certain advances had been made in circumstances where he had deceived Mr Spathis. The money was used for gambling, and lost. Mr Patsalis was not in a position to repay the loan. And so the friendship soured. It was in the context of that debt, that Mr Patsalis became acquainted with Mr Ludwig. [6] Mr Ludwig had a small business restocking cigarette vending machines. One such machine was located in a small coffee house at Restwell Parade, Bankstown. The coffee house was frequented mainly by persons of Greek origin. They included Mr Patsalis. Mr Patsalis was attracted by a card game in which patrons played for money. Mr Patsalis met Mr Ludwig. He discussed with him the prospect of obtaining cheap cigarettes, which was a matter of interest to Mr Ludwig. Although Mr Patsalis may describe it otherwise, I am satisfied that he persuaded Mr Ludwig that he was able to arrange the supply of cheap cigarettes through contacts he had. Mr Ludwig, on the evening he met his death, believed that he was travelling to a warehouse at Botany where he would exchange the cash he was carrying ($58,500) for a large consignment of contraband cigarettes. [7] The accounts given by Mr Patsalis and Mr Spathis as to the events before and after the stabbing of Mr Ludwig were not remarkably different. They met at 3.00 pm at Mr Patsalis' flat. Thereafter a number of purchases were made. There were two pairs of gloves, two knives, a tarpaulin, and one tin of petrol. Mr Patsalis and Mr Spathis differed from each other as to the circumstances in which the purchases were made, and their knowledge of the items purchased. They both denied having any appreciation of the sinister purpose of these items, as revealed by the events of that evening. I will return to this issue shortly. [8] Arrangements were thereafter made to meet Mr Ludwig at Bankstown. Two vehicles were driven from Bankstown to the Marrickville RSL. Mr Spathis drove his car. Mr Patsalis was a passenger in the truck driven by Mr Ludwig. It was common ground that Mr Spathis, having left first, doubled back in order to follow the truck, and thereby ensure that the truck was not being followed. This fact was communicated to Mr Patsalis. Both, therefore, knew that Mr Ludwig was alone. [9] Once at Marrickville, Mr Spathis parked his car. He then entered the truck, sitting alongside Mr Ludwig, with Mr Patsalis on the other side, nearest the door. Mr Spathis then drove to Botany. [10] At some point the vehicle parked by the side of the road at Botany. Whilst parked, Mr Ludwig was stabbed. Mr Patsalis and Mr Spathis each blamed the other for the stabbing. Each asserted ignorance of the sinister purpose of the other. Both acknowledged that money was removed from Mr Ludwig's jacket after the stabbing by Mr Spathis. Mr Spathis asserted (and Mr Patsalis denied) that he did so at the direction of Mr Patsalis. [11] Mr Spathis drove the truck back to Marrickville with Mr Patsalis as a passenger. Mr Ludwig's body remained in the cabin. Mr Patsalis then alighted. He thereafter drove Mr Spathis' vehicle. Mr Patsalis was covered with blood. The car seat was protected by the plastic tarpaulin purchased earlier in the day. [12] The two vehicles were driven to Terrey Hills, although by a circuitous route. Each asserted the other led the way. At Terrey Hills the body was removed from the cabin by Mr Spathis, and left by the side of the road. It was doused in petrol. Further money was removed from the jacket of the deceased. The body was then set alight. There were differences as to who removed the money, and who set fire to the body. [13] The vehicles then left the scene, although in circumstances which were somewhat chaotic. The burning of the body, and the rapid exit from the area, were witnessed by the occupants of a number of vehicles which were in the area. [14] The vehicles proceeded to Mr Patsalis' flat at Homebush. Mr Spathis drove the truck, whilst Mr Patsalis remained in Mr Spathis' car. Having met at Homebush, the two vehicles were then driven to Chester Hill, where the truck was set alight. Mr Patsalis placed his bloodstained clothes inside the truck, so that they were also destroyed."

Relevant Principles and Legislation

1. Proceedings under this Act are administrative in nature. Applications made under this legislation are designed to be remedial and operate outside the usual course of appellate review in the criminal justice system: Eastman v Director of Public Prosecutions (DPP) (ACT) [2003] HCA 28; (2003) 214 CLR 318; Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251.
2. The test to be applied in determining an application is whether it appears 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: s 79 (2) of the Act. An application will be ordered by the Court when purported "fresh" or "new" evidence relied upon causes unease or sense of disquiet in allowing the applicant's conviction or sentence to stand: Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001; Varley v Attorney-General (NSW) (1987) 24 A Crim R 413; R v Rendell (1987) 32 A Crim R 243; Eastman v Director of Public Prosecutions (DPP) (ACT) at [9]-[15]; Re Application of Esposito (Hunt J, 14 July 1988, unreported); Re Application of Visser (Newman J, 27 June 1994, BC9402667); Re Application of Dunn [2005] NSWSC 857.
3. As articulated by Johnson J in Application of Peter James Holland, s 78 of the Act is not intended to provide a convicted person with another avenue of appeal after the appeal process has been exhausted. Nor is this legislation an opportunity to run the trial on paper, with the applicant's primary motive to seek an immediate acquittal: Re Application of Dunn; Re Application of Milat (2005) 157 A Crim R 565.
4. Section 79 of the Crimes (Appeal and Review) Act relevantly provides: "s 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)."
5. As earlier stated, the Court may refuse to consider or otherwise deal with this application if it were previously dealt with either at trial or on appeal: s 79(3)(a)(i)-(ii) of the Act. In other words, where the matter raised in such an application has been fully dealt with in the proceedings giving rise to the conviction, whether on appeal or otherwise, the Court may refuse to consider or otherwise to deal with the application. It seems to me, most of the matters raised by the applicant in this application have been adequately dealt with at trial and subsequently on appeal.
6. However, because some of the applicant's points are put higher or more clearly in this application than in previous times, I will consider certain aspects of the current application.

The 2012 Application

1. The applicant relied upon the following three matters in his 2012 Application. The major issue is that the Crown Prosecutor and police officers in charge of the matter conducted the investigation and trial in a corrupt, unfair and unjust manner. The applicant's grounds are primarily founded, or are dependent, upon the circumstance that he was unaware that he was a suspect at the time he gave handwritten notes to the police officer, and thus, his notes were improperly obtained, and should be inadmissible as evidence as he had not been informed of his right to silence.
2. The three grounds are summarised in the following way: 1. The Crown Prosecutor and police officers in charge of the case deliberately concealed and fabricated a number of documents, including Annexure A, which prevented the applicant relying upon them in the proceedings. This led to evidence of admissions being wrongly admitted; 2. New evidence concerning his defence counsel, Crown Prosecutor and certain police officers subsequent misconduct, which he alleges, impugned the integrity of the applicant's trial; 3. Material that has been raised in his trial and appeal, such as the victim's letter, which was supposed to be opened if he did not return from his meeting with the applicant and his co-accused.
3. In the reasons for judgment of the Court, RA Hulme J concludes that: "[32] I do not have the slightest sense of unease or disquiet about the applicant's guilty. In the terms of s 79(2), I am not persuaded that there is any doubt or question as to his guilt, or as to any mitigating circumstances in the case, or as to any part of the evidence in the case."
4. I agree with RA Hulme J. Having read the material, I have no doubt as to the guilt of the applicant. Nor am I in any doubt as to any mitigating circumstance or evidence. Further, a large number of issues relied upon by the applicant involve the re-agitation of matters that were raised at his trial or subsequent appeals.

The 2014 Application

1. The applicant's main submission is that the Crown Prosecutor and police officers in charge of the matter acted corruptly and deliberately supressed, concealed and fabricated evidence during his trial before Kirby J. This allegation of complicity is based upon the applicant's impression that the police officers in charge of his case strongly believed in the applicant's guilt.
2. The Court of Appeal summarised the basis of the applicant's main argument in the following way: "[43] …The applicant had attended Bankstown Police Station at about 6.30pm on the day after the murder. He answered certain questions and signed a handwritten record of the conversation in the notebook of a police officer. He also handed over some written notes which he had prepared and which became Exhibit G at the trial. He contended that he should have been cautioned and that police officers had led in their evidence as to what they knew at the time he made his statement and handed over the notes. [44] Before the Court of Criminal Appeal he complained that there had not been produced to him copies of police computer records of the time in question…"
3. The evidence on which the applicant's submissions are based was about the deliberate concealment, suppression, and subsequent "cover-up" of Annexure A. Annexure A is a printout of a computer record entitled NSW Police Service "Enquiries Monitoring Report" for the period of 12 April 1996 and 13 April 1996. This document contains a Road and Traffic Authority computer search made by police with respect to a car with the registration POZ-344 for the period of 12 and 13 April 1996. This car was registered to the applicant's co-accused to the offence, and was one of the two cars driven to Terry Hills to dispose of the victim's body.
4. The applicant relies heavily on this part of the evidence being excluded from his trial. The applicant argues that Annexure A was not disclosed by the Crown Prosecutor and Detectives Jacob, Jubelin and Hall during the trial and the late emergence of this evidence on the 48th day of his trial hurt his case.
5. Furthermore, the applicant asserts that the document was only produced after it was created and/or fabricated by the above detectives by inducing or forcing the Road and Traffic Authority (RTA) employees to falsify the registration record. The applicant's submission continues by identifying the criminal offences that the Crown Prosecutor and police officers have consequently committed. Such a conspiracy is unlikely.
6. The Court of Criminal Appeal (Heydon JA with whom Carruthers J and Smart AJ agreed) considered the possible outcome had the applicant obtained the police records (Exhibit G): "[122] Leaving aside the wholly unsatisfactory failure to bring this matter before the Court with appropriate speed and the fact that Patsalis evidently and unacceptably contemplated that the appeal could be adjourned as often and for as long as he desired, no substantive ground was made out for an adjournment of the appeal or for an order to be made under s12 of the Criminal Appeal Act 1912. That is because the matter of whether Exhibit G was admissible was thoroughly investigated at trial. Even if the production of the documents sought might have showed that some part of the relevant police officers' evidence was mistaken, it was not shown how any part of the trial judge's reasoning in support of the admission of Exhibit G was flawed in such a way as to raise any reasonable possibility that the conclusion was wrong. [123] Further, even if further police records would reveal that Exhibit G was handed in by Patsalis at a time when one of the circumstances described in s 139(1)(a) or s139(5)(a), s139(5)(b) or s139(5)(c) of the Evidence Act 1995 existed, it is inconceivable that the trial judge would have exercised his discretion under s 138 against reception of the evidence. All the material factors bearing on the problem pointed towards admission."
7. Moreover, the applicant asserts that numerous police and civilian witnesses committed perjury while giving evidence. For example, on the night of 12 April 1999, Mr and Mrs Jeffries witnessed a car, with the registration POZ-344. Subsequently, Mr Jeffries telephoned Mona Vale police station and reported the vehicle's registration number to the police officer on duty at the time, Ms Leo. Mr Patsalis arrived at Bankstown police station later that night, and gave his handwritten notes to the officer.
8. Mr Patsalis alleges that the police officers could only have discovered his co-accused's vehicle registration number from his notes and conversations with police. Therefore, the applicant argues that he was a suspect in the murder investigation at that point in time and was not given the requisite warning by police.
9. The applicant relies upon the judgment of RA Hulme J and the subsequent appeal to the Court of Appeal as special facts and circumstances that have arisen since his first application. This primarily concerns the following allegations: RA Hulme J omitted to fulfil his legal obligation and duty as a judge by failing to consider the "substantial quantity and significant part" of the application; made findings of fact that were wrong; gave improper and inadequate reasons; and failed to address the probative value of Annexure A's existence. It is also suggested, by the applicant, that the Court of Appeal made errors of law based on findings of fact and conclusions of RA Hulme J. Further, the Court of Appeal erred by finding that the applicant did not identify an appropriate legal error, dismissing his application as incompetent.
10. The admissibility of the handwritten notes (Exhibit G) had been the subject of a six-day voir dire and two interlocutory rulings in the applicant's initial trial: R v Patsalis & Spathis (No 3) [1999] NSWSC 718 and R v Patsalis & Spathis (No 4) [1999] NSWSC 715; the Court of Appeal judgment; and the decision relating to the 2012 s 78 Application.
11. In relation to Exhibit G, RA Hulme J considered the findings of the six-day voir dire and on appeal, taking into account s 138 and s 139 of the Evidence Act 1995 and concluded: "[19] In this case, the applicant had voluntarily attended the police station, after having consulted with his solicitor. He brought the notes with him, undoubtedly for the purpose of either providing them to police or relaying to the police their contents. He went there for the purpose of giving the police his version of the events that occurred the previous day. Even if the police believed that he had committed an offence, or that one of the other matters in s 139 applied, it is inconceivable that a failure to caution would result in this evidence being held to be inadmissible. [20] A considerable amount of the purported 'fresh' or 'new' evidence, and the submissions made in support of the application, concern this issue. I have considered all the material that has been put forward and do not have the slightest doubt as to the correctness of the trial judge admitting into evidence the notes and admissions made by the applicant."
12. The applicant challenged the determination of RA Hulme J in the Court of Appeal in which judgment Basten JA (with whom Bathurst CJ and Beazley P agreed) said: "[51] …The applicant sought to contend, for reasons which need not be explored, that this evidence was false and that the police in fact got the details of the vehicle from the applicant himself. (Why Mr and Mrs Jefferis would be involved in a fabrication of evidence was not explained.) The allegation against them appears to have been part of a more general complaint as to fabrication of the prosecution case, rather than as part of the basis upon which the applicant's statement and notes should be been excluded. However, the submissions on this relationship were confused. [52] Enough has been said to make it clear that the issues sought to be raised before RA Hulme J were matters of fact… [53] Secondly, whilst it is true that RA Hulme J did not explore the details of the allegations with respect to the state of knowledge of the police at the time the applicant attended Bankstown Police Station to make a statement, he approached the matter on the assumption that the officer who took the statement had reason to suspect the applicant and yet did not caution him before taking his statement. His conclusion that the statement would not in any event have been excluded was clearly open as a matter of fact and rendered it unnecessary to consider the basis on which the assumptions rested and therefore demonstrated no error of law."
13. The applicant's submission in this application has been sufficiently dealt with in earlier applications, proceedings and appeals.
14. The applicant raises, again in this application, the "precaution" letter to Mr Rolfs. I will not go into this submission any further. The submission has been fully dealt with at trial, on appeal, and in his application to RA Hulme J.
15. Lastly, the applicant submits in this application that at the time of preparing his petition, s 78 application and Court of Appeal submissions, he was suffering from a mental illness, inter alia, schizophrenia. His mental illness has little or no relevance to these proceedings. It is not suggested that he was not fit to be tried. Nor is it suggested that a defence of mental illness was open. Rather, the submission in this respect seeks to qualify his ability during previous post-trial and post-appeal challenges to the verdict. The current application is not allegedly affected by the applicant's alleged previous mental illness. Yet the submissions are almost identical.

Conclusion

1. In all of those circumstances stated above, the applicant does not raise the necessary sense of unease or disquiet required for an inquiry to be ordered and I have no doubt or question as to the applicant's guilt, as to any mitigating circumstance in the case, or as to any part of the evidence in the case.
2. Further, no special facts or circumstances justifying the further inquiry sought have been established.
3. The application is refused.

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: 20 March 2015