R v CLARK

LOWER COURT District Court JURISDICTION : LOWER COURT 97/21/2023 FILE NUMBER(S) : LOWER COURT O'Reilly DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60147/03

O'Keefe J Hidden J Barr J

Monday, 27 October 2003 R v Wayne Scott CLARK Judgment 1 O'KEEFE J: I have read the draft judgment of Barr J and agree with his conclusions and the reasons for such conclusions. 2 HIDDEN J: I agree with Barr J. 3 BARR J: On 12 March 1998 the applicant Wayne Scott Clark was found guilty by a jury of certain offences, namely- (a) On 25 February 1996 at Smithfield stealing a certain motor vehicle; (b) On the same day at Parramatta stealing a certain motor vehicle; (c) On 5 March 1996 at Casula robbing Leonie Catherine Pettiford of about $510,000; and (d) At the same time and place maliciously wounding Edward Emerson with intent to prevent his lawful apprehension. 4 On 3 April 1998 concurrent sentences were imposed, the longest of which had a total term of 16 years with a minimum term due to expire on 2 April 2010. The applicant signed a notice appealing against the convictions and seeking leave to appeal against the sentences. The notice was dated 4 April 1998 but not filed until 5 May 1998, after the expiry of the period of 28 days then allowed for the filing of an appeal. According to the notice, the grounds of appeal were to be advised. No grounds of appeal were ever filed in spite of many mentions of the matter before the Registrar. On 25 July 2000 a notice of abandonment was filed, dated 23 July 2000. On 31 July 2000 the Court dismissed the appeal. On 30 April 2003 the applicant filed a second notice of appeal against the convictions. 5 It seems to me in the circumstances that the purported second appeal must be dealt with in the first place as an application for leave to withdraw the notice of abandonment and for an extension of time within which to file a notice of appeal. 6 On 5 March 1996 two men broke into a bank at Casula. They wore balaclavas. They were armed with loaded pistols. They threatened staff and took the bank's money. During the robbery the alarm was raised and Mr Edward Emerson, an off-duty police officer, ran from nearby premises to the bank in an attempt to stop the robbery. One of the robbers shot and wounded him. They got away, using first one stolen car and then another. They were the two cars dealt with in the first two counts. It was the Crown case that the applicant was the robber who shot Mr Emerson. 7 On 8 May 1996 police from the Tactical Operations Unit arrested the applicant and took him to Picton police station. They had made no prior arrangement to take him there and had not alerted local police about their intention to arrest the applicant because they wanted their investigation to be secret. At the police station the audio-visual recording equipment was broken but there was an audio tape recorder. The arresting officers decided to use that equipment to record the interview which they hoped to have with the applicant. So it turned out. 8 Before the interview began, however, there was a significant conversation between the arresting police and the applicant during which he told them that he had been involved in the robbery with a man called Robert Charles Wood, that each had been armed with a revolver, that he, the applicant, had shot Mr Emerson, that Wood had received $180,000 and that the applicant had received the rest of the proceeds of the robbery. He also told the officers where they would find the sum of approximately $100,000 hidden in his house. 9 When the interview was recorded these matters were confirmed and the applicant went on to make a full confession of the part he played. 10 Police searched the applicant's house and found about $100,000 in the place nominated by the applicant. 11 Police arrested Wood, who confessed, pleaded guilty and promised to give evidence for the Crown at the applicant's trial. He fulfilled that promise. 12 There were three bodies of evidence against the applicant, namely the admissions recorded at the police station, the evidence of Wood and a body of circumstantial evidence. That evidence included the applicant's having spent $125,000 in cash between 7 March and 8 May 1996 on a car, a motorcycle, a lounge suite, a large-screen television set, a billiard table, a holiday and jewellery, the finding of the $100,000, a significant part of which was in sequentially numbered notes, in the place nominated by the applicant, the finding of other substantial sums of money among the property of the applicant and his wife and at their house, evidence of telephone contact between the applicant and Wood on the morning of the robbery and afterwards and the finding of a number of firearms at the applicant's house as well as .357 calibre ammunition. The bullet that shot Mr Emerson was of that calibre. 13 The applicant objected to the tender of the evidence of what he had told the police in the recorded interview. He had been tried in the previous November but the jury had been unable to agree. At that trial O'Reilly QC, DCJ had, after a lengthy voir dire, admitted the evidence following an objection on identical grounds. His Honour presided at the second trial as well, so at the commencement of that trial the voir dire evidence from the first trial was formally tendered and received and his Honour's decision to admit the evidence formally repeated. 14 Six grounds of appeal were filed with the second notice of appeal, namely- 1. His Honour erred in allowing evidence to be given indicating that the appellant had not complained to the Magistrate at Campbelltown Local Court of misconduct by police officers who interrogated him. 2. His Honour erred in directions he gave concerning the fact that no complaint was made to the Magistrate at Campbelltown by the Appellant about improper police conduct. 3. His Honour erred in failing to direct the jury in relation to the appellant's right to silence. 4. His Honour erred in admitting over objection disputed confessional material. 5. The trial miscarried by reason of the absence of evidence now available as to sounds encoded on tape recordings containing alleged confessional material obtained from the appellant during his interview by police officers. 6. The conviction of the appellant was unsafe and involved a miscarriage of justice. 15 Although written submissions were filed in support of all grounds counsel for the applicant took the view at the hearing that the first three grounds would fail and did not press them. Counsel acknowledged that the sixth ground depended on the success of the fourth and fifth grounds. Accordingly, submissions on the merits were confined to those two grounds.

16 An application for leave to withdraw a notice of abandonment or to file a notice of appeal after a delay of five and one-half years since conviction is not a formality. When the first notice of appeal was filed s.10 Criminal Appeal Act was in the following terms- (1) Any person convicted on indictment desiring to appeal to the court, or to obtain the leave of the court to appeal from any conviction, or sentence, shall give notice of appeal or notice of application for leave to appeal, in such manner as may be prescribed, within 28 days of the date of such conviction or sentence.

(3) The court may, at any time, extend the time within which notice of appeal or notice of an application for leave to appeal, is required to be given to the court. 17 Substantial changes were made in 2001 to the procedure for initiating appeals. Now section s.10(1) provides as follows- (1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person's conviction or sentence:

(a) The person is required to give the court, in accordance with the rules of court, notice of intention to appeal, or notice of intention to apply for leave to appeal, within 28 days after the conviction or sentence. (b) The court may, at any time, extend the time within which the notice under paragraph (a) is required to be given to the court. (c) The appeal, or application for leave to appeal, is to be made in accordance with the rules of court, which may include: (i) provision with respect to any statement of grounds of appeal, transcripts, exhibits or other documents or things to accompany the appeal or application, and (ii) provision with respect to the timely institution and prosecution of the appeal or application, and (iii) provision with respect to the period during which the notice under paragraph (a) has effect.

18 The rules say nothing about the manner in which the Court should exercise its discretion whether to extend time. 19 I take it that the principles governing the exercise of the discretion whether to extend time or permit withdrawal of a notice of abandonment have not changed. 20 The law about the exercise of the discretion was reviewed by Smart AJ in R v Young [1999] NSWCCA 275. The matters to be considered are whether there may have been a miscarriage of justice at trial (which depends on the substance of the grounds of appeal desired to be argued), the reasons for abandoning the appeal and for seeking to withdraw the abandonment, the length of time which has elapsed since the conviction appealed from and, at any rate where it is desired to argue new trial grounds, any particular reason why the passage of that time may have prejudiced the other side.

21 In R v Jeffrey Court of Criminal Appeal, New South Wales, 16 December 1993 unreported the applicant sought to go behind his notice of abandonment. Badgery-Parker J, with whom the other members of the Court agreed, said- The power of the court to grant leave to withdraw a notice of abandonment is a discretionary power. The circumstances in which it should be exercised are the subject of authority. In Regina v Stubbs (1970) 92 WN 9NSW) 768 it was held that leave should be granted only if it appears on the face of the application that some ground exists for supposing that there may have been fraud or at least bad advice given by a legal adviser which has resulted in an unintended and ill-considered decision to abandon the appeal.

The present did not appear on the face of it to be such a case for the applicant had made a considered decision upon advice from senior counsel which advice does not appear to have been fraudulent, ill-considered, incompetent or obviously mistaken. However, the court retains an inherent jurisdiction to go behind a notice of abandonment in a case where it appeared likely that there had been a miscarriage of justice which would go uncorrected if the notice of abandonment were allowed to stand: R v Bell (1987) 8 NSWLR 311, 314. Consequently, in such a case as the present, a decision as to whether the notice of abandonment should be set aside and the applicant allowed to proceed with his appeal is inextricably entwined with the question whether the appeal has real merit - ibid at 314.

22 The applicant relied on the affidavit of his solicitor Patricia Gaye White sworn 23 May 2003 to explain the delay. There is no need to deal with the detail of the events which have taken place since conviction as recounted in that affidavit and it is sufficient for present purposes to say that the applicant and his advisers appear to have acted reasonably and with appropriate despatch at all times. 23 The principal remaining considerations are the merits of the proposed grounds of appeal and, if they have merit, the probable effect of delay on the Crown's chances of a fair trial if the conviction were quashed and a new trial ordered. It is unnecessary to consider the second of those matters in view of the conclusion I have reached about the first. 24 The fourth and fifth grounds of appeal may be considered together. The audio-taped interview began at 9:36am and ended at 10:32am. The principal interrogating officer, Detective Sergeant Moss, gave evidence on the voir dire and before the jury about his interrogation of the applicant, his admissions before the commencement of the tape-recorded interview, his confirmation of them during the interview and the other admissions made on that occasion. A tape recording and a typed transcript of what was said were tendered through him. It was suggested to him in cross-examination that he had behaved inappropriately before and during the interview. It was suggested that the applicant had asked him immediately upon arrest for an opportunity to telephone his solicitor and that the officer had denied him such an opportunity, that he had told the applicant that his de facto wife, who had been arrested, would be refused bail and would thereby lose the care of her twelve year old girl, that he had told the applicant that if he did not co-operate he would be placed in the mainstream section of the gaol, not on protection, a dangerous place for the applicant, who had served a period of imprisonment on protection. Detective Sergeant Moss denied those assertions. 25 The applicant gave evidence of threats issued by Detective Sergeant Moss in much the same terms as counsel had used in cross-examining the officer. The evidence continued- Q. Was there anything said to you by Mr Moss or shown to you by Mr Moss or any of the police prior to the interviews commencing? A. Yeah the facts, what he wanted me to say. Q. How did that happen, how did that take place physically? A. Well he would say to me, what do you mean physically, what? Q. Well I mean you were at Picton police station, you're in a room, what happened after that between you and Mr Moss and the other police when you say he showed you the facts? A. Well the other two sat there and Moss sat next to me and he was saying this and telling me that I was going to say that. Q. What was he going to say to you? A. That I was going to do what I was told. … Q. When you got to the Picton police station and the car was parked in the car park and you saw the tapes and then you went into an interview room, what happened in that interview room if anything before the tape was tuned on? A. I was told what I was going to do.

Q. Right now what did he say you were going to do? A. What I was told.

Q. Well what was it that you were told? A. That I was going to admit to whatever he wanted me to admit to. Q. Yes, now insofar as the robbery at Casula, what did he tell you if anything about that? A. He told me all about it, he said "you're going to be doing what you're told". Q. Yeah but what did he tell you all about it? A. The way it happened. Q. Would you please tell me what he said to you,, to the best of your recollection the way it happened, tell me what he said? A. I don't understand how, it's like he said this and I said that. Q. Yes for a start your instructions have been that you repeated in your interview things that he had told you? A. Yeah. Q. And that you didn't commit the robbery, is that correct? A. Yeah. Q. And that you didn't shoot the police officer? A. Yeah. Q. Well we've heard the recording and we've seen a a copy and you've for some time had a copy of a transcript of the record of interview in which he puts certain things to you and asked you whether you agree as to the offences at Casula? A. Yeah. Q. How did you come to have the knowledge about the matters that you set out in the interview on the tape-- A. Because he had the paper work there. Q. What would he do about the paper work in relation to you? A. He would say to me that I'm going to admit to this and I'm going to admit to that. 26 The applicant denied having made any admission before the commencement of the tape recorded interview. All the admissions made during the interview, he said, were made at the direction of Detective Sergeant Moss and were untrue. In cross-examination the applicant said this- Q. Now can you tell us how, before the first interview started, how did Moss give you the information that you were then to tell during the course of the taped interview, how did he give you the information? A. He was telling me. Q. So he just spoke to you and said "this is what I want you to say"-- A. He had papers there. Q. But did you have access to the papers? A. Yeah he showed me the papers. Q. Did you read them? A. Yeah. Q. And do you know, in relation to Casula how many pages were there? A. I don't know.

Q. Well you read them didn't you? A. Well I wasn't counting the pages. Q. Was it one? A. No there was a lot of papers.

Q. And were they outline of facts or were there statements, you know what statements are don't you? A. Yeah.

Q. Were there statements? A. No they were just facts, they were just blatant "you did this you did that".

Q. They were "you did this and you did that"? A. He was telling me you're going to admit this and you're going to admit to that you know.

Q. What was it that you read? A. What I just said, the answers that I gave.

Q. And as you gave the answers was the paper in front of you? A. When I was making the tape thing?

Q. Can you tell me as best you can how many pages were in the document that you had in front of you-- A. I couldn't tell you how many pages.

Q. Was it more than two? A. Yeah. Q. More than three? A. There was a lot of pages but I can't tell you how many you know. Q. And did you have to look for answers to the questions that were being asked of you in the pages that were in front of you? A. No Moss told me that I would - it was yes, no, you know it was - when I listened to that yesterday I thought most of it yes, no.

Q. So you say you didn't have to look for answers to the questions that Moss was asking of you? A. Yeah.

Q. Well did you look at the document at all when you were giving your answers? A, Yeah. Q. But you weren't looking for answers to particular questions? A. The answers were on the - they were there. 27 There was other evidence in which the applicant said that he had read answers from papers provided by Detective Sergeant Moss, but it is unnecessary to set it out in full. 28 His Honour was invited to reject the evidence on a number of legal bases, but they really all depended upon his Honour's impression of the reliability of the evidence of the police officers and the applicant respectively. His Honour did not believe the applicant. The submissions have not been transcribed and it is not apparent whether counsel made any submission about whether sounds audible from a playing of the tape supported the applicant's evidence about the use by the police officers of pieces of paper with model answers written on them. At any rate, his Honour said this in giving reasons for judgment- I should have added by now that having listened carefully to the audio-tapes, they just do not seem to me to bear any of the stigmata that they would bear if Mr Clark's story is true or any of it is true. It just does not come over that way to my ear. 29 Police suspected the applicant of having committed a number of other offences. Ten minutes after the conclusion of the interview they began to ask him formally about those matters. As before, the conversation was recorded on audio-tape. At the conclusion of the interview the applicant was charged with a number of other robberies and attempted robberies. He was called for trial on those charges on 5 March 2001. The Crown relied on the audio-tape and a transcript of the words recorded on it and the applicant objected to their tender on grounds like those raised three years previously before O'Reilly DCJ. The improper conduct attributed to the investigating police officers, particularly Detective Sergeant Moss, was the same as before. 30 The trial judge, Sides QC, DCJ, presided over a voir dire which occupied eight days. Evidence was received about the applicant's admissions over the Casula robbery in addition to the admissions Sides DCJ was being asked to exclude. That, his Honour said, was because an examination of the circumstances in which they were made was relevant to matters to be decided, the Casula admissions having being made shortly before the others. No oral evidence was received from the applicant, however, and a transcript of the evidence he had given before O'Reilly DCJ was admitted into evidence.

31 Sides DCJ made findings about the audio-tapes concerning the Casula robbery and the other robberies. This passage appears in his Honour's judgment- At some stages on the audio cassette tapes non metallic tapping sounds can be heard. At some stages to my ear they sounded very like a finger tapping a hard surface. At other times they sounded like a hard non metallic object being brought into contact with a hard surface. Examples of these sounds can be heard at significant points in the interview. Also sounds like a creaking chair and sniffs can be heard. These sounds at times appear in close proximity to one another. For example: · Page 7 of the transcript of the interview Ex C. This was soon after the interview resumed following a suspension during which a drink was obtained. During that portion of the tape I heard sniffing or a sniff on a number of occasions and a number of pauses in the Accused's answers or before he commenced an answer. These tapping sounds are consistent with someone pointing out where the Accused was to read. Noises consistent with a sheet of paper sliding across a hard surface can also be heard on occasions a stage of the tape. The note taker or the interviewer shifting through papers he was working from may have made them. But in light of the pauses and the tapping sounds they are also capable of another explanation: a piece of paper being moved closer to the Accused so he could read from it; · Question 61 Ex C asked the Accused: "Can you tell me how you were dressed?" He responds with a question: How was I dressed?" At the end of this response a non metallic sound and paper movement sounds can be heard before Q62 is asked: "Yeah, what were you wearing?" There is then a pause before the Accused answers: "Tracksuit pants and a jumper, from memory". A sound like a creaking chair can be heard at the end of Q63. Similar sounds can be heard before Q67 is answered. Paper movement sounds can be heard during the answer to Q67 and non metallic tapping sounds at the end of that answer. Creaking of a chair on its own is of no particular significance but occurring in combination with other sounds it could be consistent with a move of a person forward in the chair as they brought something on the table to the attention of the Accused; · In the questions leading up to and including Q99 Det. Moss's voice is very soft. I detected an increase in the volume of his voice when he commenced asking Q1000. The increase was not great but it was detectable. At the end of Q99 there is a creaking sound like a movement in a chair and a trump (sic) like a cup being put on a table. These drown out the answer. The two sounds suggest a movement forward to put a cup on the table. The significance of it is that during the asking of Q102 another creak can be heard and a non metallic tapping sound can be heard just after that. There is a pause during the answer after the longest word in the answer [electrician's]. This combination of sounds and words is consistent with someone leaning forward and pointing out where the Accused is to read from and his pausing as he reads aloud. 32 This Court was informed that before he made his findings Sides DCJ listened to the audio-tape with which this appeal is concerned using equipment superior to that used by O'Reilly DCJ. The evidence was not offered in order to ground any submission that the opinion of Sides DCJ had any bearing on the matter, of course, but to support a submission that if O'Reilly DCJ had had available to him equipment like that available to Sides DCJ the result might have been different. 33 In this way there was introduced on appeal evidence of Dr Wolfgang Nicholas Garwoli, a chartered professional engineer. Dr Garwoli swore an affidavit on 15 June 2003 which was read on the appeal. He was examined in chief and cross-examined. Dr Garwoli has extensive professional and technical qualifications and experience, including experience in recording, analysing and reporting upon sounds produced in various ways. He has conducted a number of tests for government institutions which require the application of such techniques and has written a number of papers dealing with them. It was established to my satisfaction that he had the specialised knowledge based on his training, study or experience sufficient to entitle him to give evidence of his opinion. 34 Dr Garwoli's opinion was requested by the applicant's solicitor, who by letter informed him of the background to the matter and enclosed the audio-tapes used at both trials together with transcripts thereof, the judgment of Sides DCJ and a section of the transcript of evidence taken before his Honour recording the cross-examination of Detective Sergeant Moss. The letter continued- We allege as instructed, that the Police scripted the interviews of Mr Clark on 8 May 1996 relevant to his current convictions. That is, the Police read the questions and Mr Clark read answers prepared by the Police. We refer you to the judgment of Justice Sides at pages 11-19 and evidence provided by Detective Sergeant Moss in cross-examination. We request that you undertake an analysis of the audiotapes and prepare a report as to your opinion whether sounds appear on the audiotapes including but not limited to: 1. Writing; 2. Non-metallic tapping sounds; 3. Paper sliding across a hard surface; 4. Creaking chairs; 5. Thumps; 6. Coughing and sniffing; 7. Fingers sliding across paper; 8. Shuffling paper. 35 Dr Garwoli listened to the tapes and had them digitised and examined by means of a computer program. He had models produced by the same means in order to compare sounds with sounds. He listened to so many of the sounds as implied the hitting of a table, the movement of paper across the surface and writing. 36 Dr Garwoli observed that the poor quality of the recording significantly limited the information that could be derived from the tapes. He observed that it was essential, as in any scientific experiment, to conduct a gross error check and an authentication of the basic process before drawing conclusions from the data processed, but that it was not possible to conduct a meaningful authentication in the matter. He observed that the physics was simple but that the interpretation of the results covered new ground and was exceedingly complex. 37 Dr Garwoli's conclusion was that the noise on the tape was "totally" consistent with someone tapping the table, dragging paper over a surface and writing. I understood that by that expression he meant consistent throughout. He went on to say that it had to be clearly understood that there was no authentication of his processes and that that meant that there could well be entirely different explanations for the sounds on the tape and that the tapping, dragging and writing sounds could have been due to entirely different physical effects. Dr Garwoli was asked about this and mentioned as other possible sources of the sounds something dropping, something outside the room and something in the roof. 38 The report continued- Here we have one set of data which is limited. From this data, as far as the case is concerned, it is possible to derive two opposite conclusions: the sounds are due to the matters proposed or the sounds are due to an entirely different set of events. 39 There was no evidence to explain why evidence of the kind now available from Dr Garwoli was not available at the trial. It was not suggested that the technology used by Dr Garwoli had been developed since 1998. Counsel conceded that the evidence was not fresh but justified it by a submission that it was new and ought to be received because if it were not a serious miscarriage of justice would go uncorrected. The Crown objected to the evidence and it was received subject to that objection. However, it is convenient to deal with the evidence as though it were admissible on the basis put forward. 40 This Court is obliged to consider whether in the light of the proposed evidence there appears to have been a miscarriage of justice at the trial: Gallagher v The Queen (1985) 160 CLR 392 at 395. Where the evidence is not fresh there will only be a miscarriage of justice if the appellant satisfies the court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt, so that the verdict cannot be allowed to stand: Ratten v The Queen (1974) 131 CLR 510 at 520; Mickelberg v The Queen (1989) 167 CLR 259 at 301. See also R v Bikic [2002] NSWCCA 227. 41 It seems to me that the proffered evidence is equivocal. It shows no more than that the sounds Dr Garwoli was able to detect were consistent with someone tapping on the table, someone dragging paper over a surface and someone writing. As such, it is incapable of making the applicant's contention more probable in the eyes of the tribunal of fact. It seems unsurprising to me that there should appear upon a sound recording of an interview which took place over an hour across a table in a confined space the sounds of tapping, movement of paper and writing. They are exactly the sort of sounds one would expect to hear in such circumstances.

42 In my opinion the evidence falls far short of the standard of cogency which is necessary to entitle it to be received on appeal. It does not favour the version of the applicant, whom the trial judge disbelieved. It is consistent with the truth of the version put forward by the interrogating police officers, whom the trial judge believed. I would reject the evidence. 43 I have considered the evidence as though this were an appeal properly so called in which the evidence otherwise qualified for admission. No question of an appeal arises, of course, because the applicant must fail to obtain the leave he needs to withdraw his notice of abandonment. 44 I propose that the Court make the following orders- 1. Refuse leave to withdraw the notice of abandonment filed on 25 July 2000; 2. Refuse to extend the time within which the applicant may file an appeal against conviction.

Last Modified: 10/31/2003 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.