Owen James Salmon v Regina

Conviction grounds Ground 1: That the trial miscarried as a result of hearsay evidence being admitted. Ground 2: That the trial miscarried as a result of the Crown Advocate putting to the jury that the appellant had lied in relation to twelve matters, none of which had been put to him in cross-examination. Separately the 12 lies appear substantially to have been fabricated by the Crown Advocate. Ground 3: The trial miscarried when the learned judge allowed inadmissible police statements into evidence in breach of s33. Ground 4: Justice miscarried when her honour allowed 'prejudicial' information to be continually stated to the jury. Ground 5: A miscarriage of justice occurred when a police interview obtained under significant duress was admitted into evidence in breach of s84 of the Evidence Act. Ground 6: A miscarriage of justice occurred when both the defence solicitor and counsel failed to take any direction before or during the trial. Ground 7: A substantial miscarriage of justice occurred when Her Honour continually allowed the Crown to misconduct himself in the trial. Ground 8: Justice miscarried when Her Honour prevented crucial evidence being adduced by the accused and defence counsel in breach of s79 of the Evidence Act, Ground 9: Justice miscarried when Her Honour revoked the accused's bail mid trial and prevented a fair trial being run. Ground 10: In relation to a claim of right, that the convictions are unreasonable in the circumstances. Ground 11: The trial miscarried when the learned judge failed to give adequate directions to the jury on real issues throughout the trial. Ground 12: The trial miscarried when evidence contradictory to the Corporations Act 2001 was given to the jury by the Crown. Ground 13: Based on 'new' evidence from ICAA, the convictions are unsafe having regard to all the evidence. Ground 14: For count 3, the verdict is unsafe given new evidence and correct direction on the elements of the offence. Ground 15: In the context of the previous 14 appeal grounds, the verdicts in this matter are unsafe and unreasonable.

Sentence grounds Ground 1: That the learned trial judge erred in failing to have regard to the fact that the said offending conduct could have been dealt with in the local court, where the maximum penalty of 12 months imprisonment would apply. Ground 2: That the learned judge erred in failing to reflect her finding as to the low objective seriousness of the robbery in the sentence. Ground 3: That the learned trial judge erred in her application of the principles of totality by partially accumulating the sentences and for effectively "double punishing" the offender for the assault charge. Ground 4: That the learned judge erred in that discounts for protective custody were not applied to this offence. Ground 5: That material errors, fabrications and misunderstandings of fact influenced the sentencing of the appellant. Ground 6: That the sentence is manifestly excessive. 20The applicant also relied on a new ground described as "Ground 11". This alleged that "justice miscarried when her Honour failed to give a direct ruling on spent or old convictions." 21The applicant argued that there were "certain to win" grounds of appeal in the list he provided. We shall deal with the new sentence appeal grounds first. The applicant argued that, on the sentence appeal, there was a ground that he did not obtain an appropriate diminution of his sentence because he has been, throughout, in protective custody. Secondly, he argued that there had been "material errors, fabrications and misunderstandings" during the sentence proceedings which would entitle him to succeed on the "manifestly excessive" ground. 22In our opinion, however, each of these matters plainly demonstrates that, while there may be an argument that can be presented, it could not be said that the ground is by any means certain or likely to succeed. For example, it appears that the sentencing court was aware (through the evidence of a character witness) that the applicant had been placed in protective custody at his own request. The evidence before her Honour had indicated that this was so because of the applicant's fears that he might need protection on general grounds from other inmates. Secondly, there was no evidence before the sentencing court as to the conditions under which any such protective custody might be served. Thirdly, there was no evidence as to whether that process would continue and, if so, for how long. Fourthly, it does not seem any submissions were made by experienced counsel then appearing for the applicant that such a matter should be taken into account on the sentencing exercise. Fifthly, there was no evidence that he required protection for any reason other than his concerns relating to his safety in the environment in which he found himself. 23I should stress that this court is not sitting as the court hearing the appeal against sentence. We do not have the advantage that the ultimate Appeal Court will have of fully developed submissions and materials in support of those submissions. But clearly, by way of example, it may be said that the particular ground under discussion, although perhaps arguable, cannot be said to have any certainty of success. 24The same point may be made in relation to the ground relying upon material errors, etc. Two examples will suffice. The applicant argued that, during the sentencing hearing, the prosecutor had made reference to the fact that in his first bail hearing, the applicant had claimed to be a "protected witness". The prosecutor then queried a character witness called on sentencing to show that this was not correct. To show that he was indeed a "protected witness", the applicant in this present hearing pointed (in the bundles of material before us) to a letter from the Assistant Commissioner of the Police Integrity Commission dated 19 th March 2008 that demonstrated, he claimed, his status as a protected witness. 25The cross-examination to which the applicant referred elicited from the character witness (Senator Williams) the response that the senator had spoken to Mr Vic Russel of the Police Integrity Commission, and had been told that, while the applicant could apply to be placed under police protection, he was not in fact a protected witness. 26Our conclusion from the material placed before us is that the applicant is under a complete misapprehension. The letter from the Police Integrity Commission of 19 th March 2008 does not confirm that he is a protected witness under any program maintained by the Commission. It does no more than recite the fact that he had given information to the Commission, pursuant to his obligation to do so, following service of a notice upon him, under s 26 of the Police Integrity Commission Act 1996 . A person who complies with such a requirement is "protected from liability". The letter refers to s 137 of the legislation. This gives a person who provides evidence or information to the Commission "the same protection as a witness in proceedings in the Supreme Court". Secondly, it does not seem that the particular matter elicited by the prosecutor in cross-examination played any part in any submission to the sentencing judge. Thirdly, it does not appear that the sentencing judge herself took the matter into account as any part of the sentencing exercise. 27Once again, it can be safely said that this ground of appeal would provide no certain prospect of success on the sentencing appeal. 28The second example mentioned by the applicant may be dealt with briefly. He maintained that, at one point, the trial advocate had cast doubt upon the fact that the applicant had completed a Master of Business Administration's course. It may be that the prosecutor was inaccurate in the precise comment he made, but this appears to have played no part in the sentencing exercise. If there were an error, it was not corrected by the applicant's counsel, and the trial judge made no adverse mention of the matter. Indeed, in her remarks on sentence, she appears to have accepted the applicant's qualifications. It appeared in every aspect of the trial to be a matter of little, if any, consequence. 29We turn then to the new "certain to win points" relied upon by the applicant in the conviction appeal. 30The first relates to a submission made by the prosecutor at trial. In his closing address, the prosecutor said that the applicant had told a number of lies. These lies were relied upon as credibility lies. The trial judge gave a specific direction that they could only be used in that way. One of the lies was said to be in connection with whether the applicant was a director of companies which had charges over his principal business company. The applicant accused the prosecutor of "fabricating the evidence". We have read the prosecutor's submission to the jury. We would not, however, be satisfied that the submission can be categorised in the way the applicant seeks to do. Moreover, experienced trial counsel for the applicant took no objection to this passage and no request was made to the trial judge in connection with it. The applicant went so far as to call this "a perversion of the course of justice". We would not regard this matter as providing any certain prospects of success. The submission made by the prosecutor would have been unlikely to have had any impact on the critical issues at trial. 31Next, the applicant referred to the use of hearsay evidence in his trial. It seems that the victim of the assault gave evidence at trial that she had a conversation with a computer technician when her stolen laptop was returned. Without objection, she gave evidence of what had been said to her by the technician. The applicant argues that this hearsay conversation was used against him to prove an element of the robbery offence, namely "an intention to permanently deprive". He said that this was the only evidence to support that element. A fair reading of the submissions made at the conclusion of the trial, and the directions given by the judge, show this not to be so. Substantial reliance was placed by the Crown upon the fact that the applicant told the police that the equipment was his, and that he proposed to sell it on eBay to recover the monies he thought were owing to him. In any event, there was no objection to the evidence from the victim, including the hearsay statements. Once again, this ground could not, by any means, be said to raise certain prospects of success. 32Additionally on a related point, the applicant said that he would seek to adduce further evidence on his appeal to demonstrate that he was not within the Lane Cove district at the time the events described by the technician took place. He referred to this as "alibi evidence". An application to call fresh evidence is not bound to succeed, even assuming the evidence has some relevance to the issues at trial. 33The next illustration given by the applicant related to the fact that, at some stage during the trial, his counsel (in the absence of the jury) raised with the judge the prospect of a favourable character direction. It seems the discussion was prompted by the fact that the prosecutor suggested that the accused had convictions of dishonesty, although these apparently related to events when he had been a teenager. The applicant's complaint is that, as these were "spent" convictions within the meaning of s 579 of the Crimes Act 1900 , he should not have been precluded from raising his good character before the jury. Now, whether he was precluded from doing that, or whether it was simply his counsel's tactical decision to proceed, does not clearly appear from the material that has been filed. At least, it may be said it does not satisfactorily appear from that material. There does not appear to be any ruling on the matters by the trial judge, nor was she, in the end, requested to give such a ruling. The applicant submits that the circumstances of this ground constituted a miscarriage of justice. 34Now, it may be that an arguable point arises, but, once again, we could not be satisfied that it has a particularly high level of certainty of success. 35Because of the need to give a judgment promptly in this matter, the court has not attempted to analyse each and every ground of appeal sought to be relied on by the applicant. Nor have we endeavoured to analyse the lengthy submissions that underpin each of the grounds. Many of them relate to allegations concerning the conduct of the applicant's own counsel at trial. Some related to the conduct of his new counsel during the sentencing hearing. Others relate to the conduct of the prosecutor. A number of grounds accuse the trial judge of unfairness and making inappropriate rulings. However, a reading of the trial and sentencing transcripts does not suggest that there are certain prospects of success, by any means, in any of either the old or new grounds of appeal. There were very few objections taken during the trial to the evidence given by Crown witnesses. The written directions by the trial judge were settled after discussion with counsel. There were no applications for any re-directions by the trial judge. Police statements were read to the jury by consent, and there was no suggestion at trial of duress in relation to the ERISP interview which was, by agreement, played to the jury. All of these matters, and many more not raised at trial, it will be seen, have now been elevated into grounds of appeal against conviction. As has been said on numerous occasions throughout these reasons, it may be that some arguments can be raised in connection with some of the grounds, although we should not be taken to bind the court that hears the appeal in any of those regards. Many of the complaints, however, seem dubious in the extreme. Whatever be their merit, it cannot possibly be said that there is anything approaching a high prospect of success in relation to any of the grounds. 36The applicant's written submissions rely on a number of other matters. These include the fact that the custodial component of the sentence will shortly be completed; that a successful appeal will give him a hollow victory in those circumstances, and that he has experienced difficulties in preparing for his appeal during his time in custody. There is also a complaint that the appeal will not, in the normal course, be heard for a number of months. 37As to this last matter, it is clear that the earlier vacations of hearing date have been at the instigation of the applicant himself. Secondly, his release from custody in a little over two weeks' time will give him ample opportunity and facility to prepare his appeal, including obtaining any further evidence, should fresh evidence be sought to be tendered on the appeal. We have given consideration to these matters and to others raised by the applicant but none of them, in our view, constitutes special or exceptional circumstances. 38For the reasons given, there has been nothing advanced in this review application that would warrant the court finding that there are special or exceptional circumstances justifying a grant of bail. 39The order of the court is: (1)Application for review is dismissed; (2)Bail is refused.

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