R v DOYLE

• 34 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NO: 70063/98 Friday, 9 June 2000 HULME J APPLICATION OF Edward Emmett DOYLE APPLICATION FOR AN INQUIRY UNDER S474D OF THE CRIMES ACT

1��� HIS HONOUR: On 14 July 1998, Edward Emmett Doyle made application under Section 474D of the Crimes Act 1900 (NSW) seeking that this Court direct that an inquiry be conducted into "the facts pertaining to my conviction" at the Castlereagh Street Local Court on 7 February 1985. Mr Doyle sought also a number of other orders directed to limiting publicity.

2��� So far as is presently relevant, sections 474D and associated sections provide:- "474A (3) In this Part, a reference to a review of, or enquiry into, a conviction or sentence includes a reference to a review of, or enquiry into, any aspect of the proceedings giving rise to the conviction or sentence. 474D (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person… 474E (1) After considering an application under Section 474D or on its own motion: (a) The Supreme Court may direct that an inquiry be conducted by a prescribed person 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on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the repealed provisions, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.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 474D if: (a) … (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

474F An inquiry is to be conducted as soon as practicable after a direction for it has been given under section 474 C or 474E

474G An inquiry under this Division is to conducted by: (a) … (b) a prescribed person appointed by the Chief Justice, if the conduct of the inquiry was directed by the Supreme Court 474H (1) On completing an inquiry under this Division, the prescribed person must cause a report on the results of the inquiry … to be sent to: (a) the Governor, in the case of … (b) the Chief Justice, in the case of an inquiry held on the direction of the Supreme Court

(2) The prescribed person may also refer the matter … to the Court of Criminal Appeal: "(a) for consideration of the question of whether the conviction should be quashed (in any case in which the prescribed person is of the opinion that there is a reasonable doubt as to the guilt of the convicted person), or (b) for review of the sentence imposed on the convicted person (in any case in which the prescribed person is of the opinion that there is a reasonable doubt as to any matter that may have affected the nature or severity of the sentence). (3) After considering a report furnished to the Chief Justice under this section, the Supreme Court must cause its own report on the matter … to be sent to the Governor.

(4) the Governor may then dispose of the matter in such manner as to the Governor appears just. 474L On receiving a reference under Section 474C(1)(b) or 474E(1)(b), the court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly.

3��� It is unnecessary to recount all of the provisions of the Criminal Appeal Act. However, there is merit in recording the terms of Sections 5 and 6:-

5(1) A person convicted on indictment may appeal under this Act to the court: (a) Against the person's conviction on any ground which involves a question of law alone; and (b) With the leave of the Court, or upon the certificate of the Judge of the court at trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal; and (c) With the leave of the court against the sentence passed on the person's conviction. 6(1) The Court on any appeal under Section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court at trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the Court may notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) Subject to the special provisions of this Act the Court shall, if it allows an appeal under Section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered."

4��� Under s8 of the Criminal Appeal Act, the Court of Criminal Appeal may, in some circumstances, also order a new trial.

5��� I was unsure from Mr Doyle's original petition precisely what the offence was to which his petition related. In subsequent correspondence Mr Doyle has stated that he wishes the inquiry to be held in respect of all charges on which he was convicted. These appear to be four offences under the Commonwealth Crimes Act of imposition upon the Commonwealth and of one offence of having goods in custody to which Mr Doyle pleaded guilty. What I take to be a copy of Mr Doyle's criminal record contains in respect of 7 February 1985 reference to only these five offences. However, the transcript of proceedings on that day in fact suggests that Mr Doyle may have been also convicted of another offence involving having in his possession drivers' licences (presumably in circumstances where he should not have). By letter of 28 October 1998 Mr Doyle asserted that "at the same time and hearing of these Commonwealth offences I was also convicted of a series of offences including Goods in Custody".

6��� However there seems to have been only one charge of having goods in custody and on this Mr Doyle was fined $100.00 or 4 days' imprisonment. In respect of each of the four charges of imposition under the Commonwealth Crimes Act, Mr Doyle was placed on a recognisance for 5 years conditioned upon, inter alia, on performing 150 hours community service and paying compensation in amounts of:- Robert John Poole $5,110.98 Kevin Michael Roberts $5,429.02 Donald William Matley $1,910.50 Adam Scott Richardson $7,288.10

7��� The penalty imposed on Mr Mahoney and the amounts of compensation payable by Mr Mahoney were of similar order.

8��� It seems to me that the better conclusion is that there was no sixth offence relating to the drivers' licences.

9��� The first questions which arise are whether the sections to which I have referred embrace convictions or sentences in matters dealt with summarily and whether they apply to offences arising under Commonwealth law. During last year Wood CJ at CL dealt with these questions in a matter of Pearson (unreported, 4 March 1999) wherein the issues were fully argued. As a matter of comity I propose to follow His Honour's decision that both of these questions should be answered in the affirmative. However, it must be noted that His Honour also concluded that, in the case of Commonwealth offences, it is only a reference under s474E(1)(b) that is permissible, not an inquiry under paragraph (a) of that sub-section.

10��� In any event, the circumstances relied on by Mr Doyle in support of his application are circumstances which seem to me to bear equally on his convictions for both the Commonwealth and State offences and even had I taken the view that S 474E had no application to convictions for Commonwealth offences, that would not have limited consideration of much of the factual matters upon which Mr Doyle relies.

11��� The material with which I have been furnished by Mr Doyle or by the Crown Solicitor's office, shows the following:- 1. According to what purports to be a copy of an unsigned and undated Statement by Detective Sergeant Donald Kennedy MacMillan, in May 1983 he received information into the activities of Mr Doyle and a Mr Mahoney. On 3 June 1983 Detective MacMillan attended a briefing with other police. Later that morning he went to the Paddington area where he saw Messrs Doyle and Mahoney in a motor vehicle. He then spoke to them, inter alia asking Mr Doyle if he had any identification on him. The latter handed Mr MacMillan a wallet which, on inspection was seen to contain a driver's licence in the name of a Mr Richardson. Saying that he believed the licence was either stolen or unlawfully obtained, Detective MacMillan than arrested Mr Doyle. The Statement indicates that this occurred not long after 9.40 am.

2. The Statement goes on to say that at the police station Detective MacMillan told Mr Doyle that he had been making a lot of inquiries about him and Mr Mahoney and believed that they were both involved in a number of false pretence and fraud matters: Reference is made to the administration of the usual caution and further conversation occurring. Inter alia, according to the statement, Mr Doyle told Detective MacMillan that he was welcome to search a number of premises which Detective MacMillan identified. Such searches then occurred in Mr Doyle's presence and Detective MacMillan took possession of a large number of papers found. In the statement, some of these are described in detail in terms which indicate relevance to the imposition charges on which Mr Doyle was convicted.

3. The Statement also purports to record a number of admissions by Mr Doyle following which Detective MacMillan informed him that he would be charged with "Goods in Custody of the drivers licence that you had in your possession, and Conspiracy in respect of the fraud matters.".

4. In the Statement Detective MacMillan says that following this interviewing of Mr Doyle and Mr Mahoney and visits to the premises relevant to the police investigation he then attended to other matters concerning Mr Doyle and later in the evening Mr Doyle was charged.

5. A document in the form of Form 7 under the Bail Act entitled "Reasons for Bail Decision by an Authorised Officer" purporting to have been signed by a Sergeant Second Class A.W. McDonald at Central Police Station on 4 June 1983 records that Mr Doyle had been charged with "goods in custody" and "conspiracy" and that bail was refused. The document notes as the reasons for that decision:- "The Accused has convictions for 18 offences from 1950 to 1981 for Assault and Rob, Rape, Larceny, Assault, Aid and Abet False Pretences and it is felt that he could be regarded as a person who would not comply with his bail undertaking and attend court." 6. A document in the form of Form 8 under the Bail Act, 1978 entitled "Reasons for Bail Decision by Court" indicates that bail was refused at the Waverley Court of Petty Sessions on 4 June 1983. The document records that the offences charged were "goods in custody" and "conspire to cheat and defraud.". The reasons for that decision are stated as:- "Serious nature of allegations. Allegedly in possession of forged passport which could be indicative of flight (not contradicted by defence). 7. A similar document records that bail was granted on 8 June 1983 at the Waverley Court of Petty Sessions on conditions. The reasons recorded are:- "1. Record. 2. Nature of charges - serious allegations. 3. Possessed forged passport."

12��� There seems then to have been some delay. At some stage the proceedings came before Mr Leader SM. Mr Chris Murphy, a solicitor, wrote to Mr Leader on 17 January 1985 and on 24 January 1985, the clerk of the Local Court at 302 Castlereagh Street replied. That reply observed that Mr Leader had misgivings concerning the summary disposition of the matter, that these were recorded in the transcript and suggested the topic be raised on 25 January 1985 when the matter was next listed. A letter apparently from the Clerk of the Court at the Downing Centre (but not on letterhead and bearing only a stamped imprint of a signature) indicates that no transcript of proceedings for 1 February 1985, when the matter was mentioned, is available. No transcript of 25 January has been provided to me.

13��� Mr Doyle has however supplied a transcript of 7 February 1985. The transcript indicates that proceedings were sound recorded but is not completely clear in some respects. It does note that Mr Doyle and a co-accused, Mr Mahoney were then dealt with by Mr K S Anderson SM. It is recorded that the "Defendant" (sic) had pleaded guilty before Mr Leader, who was away sick. Later the transcript records that both had pleaded guilty before another magistrate. Mr Anderson raised the question of whether the pleas were adhered to and the prosecutor indicated that they were. The transcript contains no reference to Mr Leader's misgivings although, given the matter was listed on 25 January, these may have been finally dealt with then.

14��� The transcript records that Sergeant West appeared for the informant and that "Mr Borden, Public Solicitor", appeared for the "Defendant" - again the singular is used. There was no other appearance recorded and in correspondence to me Mr Doyle has asserted on a number of occasions that he was unrepresented "except by the police prosecutor". One unusual feature is that, if the transcript is taken at face value, only the prosecutor and Mr Borden addressed the Court and virtually all of the remarks attributed to Mr Borden concern Mr Mahoney. At one stage he refers to "my client" and compares him with "his co-accused". However, on page 5 of the transcript, Mr Borden is recorded as saying "Your Worship, I think I did indicate that Mr Doyle is now in employment, the nature of which he is likely to earn, a not inconsiderable about of money in the long run…"

15��� The only earlier passage in the transcript which accords with that statement is one attributed to the prosecutor where, on page 3A, the following appears:- "Now, Your Worship, subjectively, Mr Doyle is now in employment… He does stand to make a considerable sum of money in the endeavour which he is now engaged…"

16��� That correlation suggests that the words attributed to the prosecutor may in fact have been made by Mr Borden. Some support for this conclusion is indeed afforded by the whole of the passage from near the bottom of page 2 to about half way down page 3A which is attributed to the prosecutor because, completely, it reads as a plea in mitigation on behalf of Mr Doyle. On the other hand, the passage concludes with the words "thank you, sir", after which Mr Borden is recorded as commencing his plea on behalf of Mr Mahoney. Another possibility is that there may have been a third unidentified person appearing for Mr Doyle.

17��� Immediately before the lengthy passage attributed to the prosecutor commencing towards the bottom of page 2, the transcript records:- BENCH: Material, and who wants to go first. I think Fred might go first." (sic)

18��� Whether this is an accurate transcription I do not know. That the Magistrate should use a Christian name seems surprising but the passage might give some indication of who commenced to speak thereafter. It may be noted that the Law Almanacs for 1985 and 1986 do refer to a "J. C. Bordon" as a city solicitor but I have not found any "Borden".

19��� Mr Doyle has, as I have said, asserted that the police prosecutor made the remarks attributed to him but, faced with the matters to which I have referred, it is impossible for me to form any concluded view as to the author of the remarks attributed to the prosecutor. Although in this report I have reached some conclusions adverse to members of the police force, it strikes me as in the highest degree unlikely that the police prosecutor would so obviously plead on Mr Doyle's behalf as the transcript suggests.

20��� Within those remarks is a reference to a pre-sentence report and I have been provided with one dated 21 December 1984 apparently from a Chris Hart described as a probation and parole officer, Bondi Junction District Office, which seems to accord with at least one passage referred to on page 2 of the remarks attributed to the prosecutor. That report refers to, but does not identify, Mr Doyle's previous convictions. In the passage attributed to the prosecutor, however, the following appears:- "… the antecedents indicate that from 1953, I think, to 1978, his (i.e. Mr Doyle's) conduct was exemplary."

21��� Included with the papers with which I was supplied is a photocopy of a handwritten piece of paper bearing Mr Doyle's name and date of birth and purporting to set out his criminal record. As I understand it, Mr Doyle asserts that this, or the original of it, was compiled by the prosecutor and given to the magistrate. I have no way of knowing whether this is so but the document obviously accords with the passage quoted from the transcript of proceedings before Mr Anderson. The courts, dates and offences noted in it are as follows:-

Waverley PS 07.03.78 GIC False pretences x 9 counts Metro CC 16.3.53 Illegal use x 7 counts. Do do Steal. Do do Unlicensed.

22��� In fact Mr Doyle's record as more recently supplied by the police service, (albeit without a fingerprint check) reveals the following matters in respect of which he was convicted prior to his appearance on 7 February 1985. Illegally use (7 charges) 15.2.53 Metropolitan CC Stealing (2 charges) Unlicensed driver (7 charges) 4.5.54 Central PS Malicious injury Take and use panel van w/o consent, Unlicensed driver Suspected person 4.10.54 Paddington PS Stealing Breach of recognisance

30.9.55 Paddington PS Stealing (2 charges) 12.6.57 Sydney QS Larceny of motor car 24.4.57 Paddington PS Offensive behaviour (Interfering with police while making arrest) 24.4.57 Sydney QS Breach of recognisance 18.5.60 Central PS Stealing 28.7.60 Central PS False pretences (not before court - recognisance forfeited) 18.2.61 Oakleigh PS Larceny (failed to appear - warrant issued) (2 charges) 14.3.61 Ryde PS Stealing False pretences (9 charges) 13.6.61 Paddington PS 3 traffic offences (not before court - recognisance forfeited) 8.9.61 Brisbane PS Stealing (remanded for return to NSW) 15.12.61 Paddington PS Traffic offence 11.10.62 Parramatta PS Stealing (remanded for return to Victoria) 27.10.62 Melbourne PS Larceny 3.12.62 Oakleigh PS Larceny 4.6.63 Central PS Stealing (not before court - recognisance forfeited) 6.7.63 Central PS Consorting (not before court recognisance forfeited) 6.7.63 Central PS Stealing Consorting 3.11.77 Waverley PS Goods in custody False pretences (9 charges)

23��� On the assumption that this criminal history is correct - and for present purposes, I would infer that it was - the references to convictions for "assault and rob" "rape" and "assault" in the Form 7 signed by Sergeant McDonald are incorrect. Indeed, written submissions by the Crown Solicitor to me conceded as much.

24��� The criminal history indicates that the information given to Mr Anderson on 7 February 1985 also was incorrect.

25��� No innocent explanation of these disparities occurs to me.

26��� The references to a forged passport in two of the bail documents are unsupported by any mention of a charge to that effect in Mr Doyle's criminal history. It strikes me as unlikely that if Mr Doyle had been found in possession of a forged passport, no charge would have been preferred. It is however appropriate to record that the note "not contradicted by defence" in the Form 8 of 4 June 1983 does provide some support for the allegation and indicates that Mr Doyle was willing to go along with what he now says is a false allegation. Of course, the pressure of which he now complains may have been a reason for doing so.

27��� In his application to the court and in letters written in support, Mr Doyle makes a number of further claims. These include:- (i) He was arrested for the purposes of interrogation, (ii) After his arrest he was held incommunicado for in excess of 24 hours, (iii) He was refused access to a lawyer and a telephone, (iv) A request to go before court at the earliest practicable time was refused, (v) He was given access to alcohol and encouraged to drink until he was intoxicated, (vi) While he was intoxicated a false record of interview was constructed by Sergeant MacMillan, this record being undated, not witnessed and not signed by either Mr Doyle or Sergeant MacMillan, (vii) No officer superior to Sergeant MacMillan made any notation of Mr Doyle's refusal to participate in such a sham record of interview, (viii) At the time of his appearance in Court on the day after his arrest, he was still intoxicated, (ix) At the hearing before Mr Leader SM, Mr Doyle was induced and threatened to plead guilty by Sergeant MacMillan promising a suspended sentence if Mr Doyle did plead guilty and threatening Mr Doyle's exposure as an informer if he did not, (x) This threat was so great "as to compel me (Mr Doyle) to plead guilty to things I had not done, softened by a guarantee of a suspended sentence", and (xi) The threat is still extant.

28��� Mr Doyle has also asserted:- (a) that both senior officers in charge of his case, one of whom was Detective Sergeant MacMillan, were adversely named in the Wood Royal Commission. The other officers who may come within this criticism were Detective Sergeant Ross Beatty and Sergeant A.W. McDonald; (b) all official court documents pertaining to the hearing at which he pleaded guilty have disappeared; (c) that the police record of interview states:- * Mr Doyle did not want to speak to a solicitor; * did not want to ring his home to tell his family or friends of his situation; * did not want to go before a Magistrate at the earliest possible opportunity; and * answered all questions quickly, courteously and without compliant. (d) Mr Doyle withdrew an appeal to the District Court lodged on or about 26 February 1985 because he was reminded by Sergeant MacMillan of his threat of exposing Mr Doyle as an informer still existed.

(e) Mr Doyle's delay in complaining about what occurred arises from the fact that he is a police informer and has feared exposure. Risks in that regard still exist but Mr Doyle has been induced to come forward now because of the evidence given at the recent Police Royal Commission and Sergeant MacMillan is no longer in the police force and in a lesser position to do Mr Doyle harm.

(f) Mr Doyle is able to have his allegations of being an informer corroborated by a former assistant commissioner of police.

(g) That the charges preferred against him are less than the evidence adduced by the police warranted,

(h) The charges were dealt with summarily when, if they were to be dealt with at all, their nature meant that they should have been dealt with on indictment.

(i) That his arrest was originally on a specious charge, (j) The actions of Detective MacMillan were inspired by some desire on his part to exercise some control over Mr Doyle, possibly to have the latter become one of Detective MacMillan's informers. 29��� Before I proceed, I should say a little more concerning letters Mr Doyle has forwarded to me or my associate in support of his application. Originally, being unsure from Mr Doyle's original application precisely what the offence was to which his petition related, I had my associate write to him inquiring. Later, on 15 March 1999, I provided Mr Doyle with the opportunity to furnish evidence additional to that originally provided, my associate's letter observing that "you have provided little material bearing either directly on the question of whether you were guilty or (sic) all or any of the offences involved or on the topic of participation in any of the actions alleged against you as constituting the commission of these offences". There followed a plethora of letters from Mr Doyle, in excess of 15 in number, dealing with what Mr Doyle saw as the issues. Finally I had my associate return one of 19 July 1999 and advise Mr Doyle that as all correspondence had to be sent to the Crown to provide an opportunity for response, and then time found to deal with the matter I was disinclined to read more. However Mr Doyle was also advised that if he insisted and returned that letter I would read it and any other letter he sent at the same time but that I would not read any received thereafter.

30��� The letter of 19 July was returned and Mr Doyle also wrote on 22 and 23 July, and copies of these were forwarded to the Crown. Mr Doyle has written since but in accordance with the advice to him, I have not perused any of his letters later than that of 23 July. That remark is subject to one exception - a letter of 27 April 2000 referred to below.

31��� Included with Mr Doyle's letters have been a number of documents including extracts from textbooks and authorities but, to a very great extent, the letters were repetitious. Almost wholly they were concerned with what Mr Doyle contended were improprieties on the part of the police in general and Detective MacMillan in particular and the need for an investigation into police conduct. The letters gave little attention to the topic of guilt or innocence in respect of the charges brought against him.

32��� Nevertheless, in Mr Doyle's original petition, Mr Doyle did say that "the threat of exposure was so great as to compel me to plead guilty to things I had not done, softened by a guarantee of a suspended sentence" and in his letter of 24 March 1999 did say "I am not guilty of these crimes but was 'loaded' by the police in order to compel me to be an informer for them." Although I would have expected more from Mr Doyle on the topic of guilt or innocence, in light of these statements, it seem to me that I should proceed on the basis that Mr Doyle does maintain that he was innocent of all charges.

33��� It is convenient to consider the various matters in the sub-paragraphs numbered (i) to (xi) and (a) to (j) generally seriatim. The account contained in what I take to be the statement of Detective Sergeant MacMillan and the delays to which I referred in the preceding paragraph certainly give cause for suspicion that the claim in paragraph (i) is correct. However, if Mr Doyle did, when arrested, have possession of a licence stolen or unlawfully obtained, there would be difficulties in concluding that the arrest was wrongful.

34��� Subject to one matter, there is no corroboration of Mr Doyle's statements concerning the matters I have numbered (ii) to (iv). That qualification is within a limited compass but it is significant. It arises from the evidence as to the times when certain events occurred. The copies of apparently unsigned statements of Sergeant MacMillan and a Detective Senior Constable Ross indicate that the time of arrest was soon after 9.40 am on 3 June. The Form 7 signed by Sergeant McDonald indicates the refusal of bail on 4 June and it seems likely that, at the earliest, formal charging occurred very late on 3 June. Absent further evidence, the timing of these events leads me to the view that the obligation on the police to bring Mr Doyle before a court as soon as reasonably possible - see Williams v R (1986) 161 CLR 278 at 300, 313; Michaels v R (1995) 184 CLR 117 at 122 et seq, 129. - was breached.

35��� Nor is there any corroboration of the matter referred to in paragraph (v). Mr Doyle has suggested that during the Wood Royal Commission evidence was given by, at least detectives Haken and Swan, concerning access to, and use of, alcohol by Detectives but I have not seen this evidence nor any indication that the use about which they spoke was the use Mr Doyle alleges.

36��� Turning to paragraph (vi), neither Mr Doyle nor anyone else has provided me with anything which I would regard as a "record of interview" as that expression is usually understood. It would seem that Mr Doyle's references to such a document are references to the unsigned copies of unsigned statements to which I have referred and which do purport to record interviews with, or questioning of, Messrs Doyle and Mahoney although the matters referred to when dealing below with paragraph (c) argue against this. The documents I have are photocopies. On some pages there are indications that the tops and bottoms of pages have been cut off in the copying process and it is impossible to tell whether the original documents were signed. With the possible exception of the last page of Constable Ross's statement where the typing finishes in the middle of the page but there is no signature below, I am thus not able to form any view whether the originals bore any signatures. Enough of some pages exists however to suggest that each page contained provision for signature and that at least some pages were not signed.

37��� On raising with Mr Doyle the question of what he meant by a "record of interview", he forwarded under cover of a letter of 27 April 2000 further copies of the unsigned statements purporting to be by Detectives MacMillan and Beattie.

38��� There is no corroboration of any aspect of the of the matters I have numbered (vii) and (viii). It is convenient to defer consideration of the matters the subject of paragraphs (ix) to (xi).

39��� I turn to paragraph (a). I was not provided with any extract from the reports of the Royal Commission which contain comments adverse to Detective Sergeant MacMillan. Mr Doyle provided me with a document headed "Extremely Important" which gave the impression that it was from one of the Commission's reports but further inquiry of Mr Doyle by my associate revealed that the document was an extract of a submission prepared by someone. That document does contain statements to the effect that various named witnesses, some of notorious reputation, had given evidence of improprieties, not obviously involving Mr Doyle, by Detectives MacMillan and Beattie and by the Consorting Squad of which they were members. The Crown Solicitor has asserted that examination of the transcript of the Royal Commission revealed that Detective Sergeant MacMillan's name was mentioned but not adversely. The Crown Solicitor has also said that Detective Sergeant MacMillan has been interviewed and denies the allegations raised by Mr Doyle but does not recall any of the details put before the Court.

40��� In a report such as this, it does not seem to me that any weight should be given to such denials. Admitting the allegations would be calculated to lead to punishment. On the other hand, nor am I in a position to do more than recognise that allegations of impropriety have been made. Since the Royal Commission the Court of Criminal Appeal has had to consider evidence of such improprieties on a number of occasions. It is unnecessary for me now to attempt to summarise the approaches which have been taken. It is sufficient to say that such information as I have concerning the improprieties is not obviously admissible should Mr Doyle's convictions be set aside and there be a new trial of the charges against him.

41��� Paragraph (b) - I would not readily see anything suspicious in the loss or destruction, prior to 1998, of records of Mr Doyle's case in 1985. That view is reinforced by information my associate received from the registry of the Downing Centre Local Courts to the effect that the practice is that Local Court records (except for exhibits) are kept for 3 years at the Local Court, then for a further 9 years at the Government Records Repository and then destroyed. Exhibits are returned to the parties after 21 days if no appeal is lodged. My associate was also informed that the Castlereagh Street Local Court was closed some years ago and its records transferred to the Downing Centre Local Courts.

42��� Within the copies of the statements of the police to which I have referred, there are no statements in the terms set out in paragraph (c) albeit some of the responses attributed to him are suggestive of those matters. As I have said, I have seen no other "record of interview".

43��� Documents provided by Mr Doyle indicate that his appeal referred to in paragraph (d) was in respect of the imposition charges. The document I have taken as recording his criminal history records that Mr Doyle appealed "against conviction and sentence of 070285 (False Representation (4 counts)"and that the result was:- "Appeal withdrawn and dismissed Conviction confirmed Order and Term of recognisance confirmed in all respects Quash order for community service work No order as to costs"

44��� Mr Doyle has explained that the Notice of Appeal was prepared by another person and he was not aware it omitted the goods in custody charge.

45��� There is no corroboration of Mr Doyle's statement of further threat and the reason for withdrawing the appeal referred to in paragraph (d). The quashing of the community service orders, or at least the recording of an order to this effect was, according to a letter of 23 March 1987 from the office of the Director of Public prosecutions, a mistake. It may be remarked that it is uncommon for there to be an appeal against a conviction founded on a guilty plea. The penalty imposed on Mr Doyle by Mr Anderson was low and thus the lodging of the appeal provides some contemporaneous indication of dissatisfaction on the part of Mr Doyle.

46��� It might be mentioned also that on 29 October 1996 Mr Doyle seems to have lodged an application to the Court of Criminal Appeal for an extension of time within which to appeal from his convictions in which notice he asserted that threats by the police were the reason the appeal had not been lodged within time.

47��� If the substance of what Mr Doyle says concerning his treatment is correct, the matters referred to in paragraphs (e) are plausible but I am not in a position to assess them. I am prepared to proceed on the assumption that the statement in paragraph (f) is correct.

48��� It is convenient to consider the matters the subject of paragraphs (g) and (h) together. Detective MacMillan's statement records that at the time of Mr Doyle's arrest, he was in the company of Mr Mahoney and that, when asked for identification, both produced false drivers' licences. They were then placed in a police vehicle and taken to a police station. There Detective MacMillan told Mr Doyle that he had been making a lot of inquiries about Mr Doyle and Mr Mahoney, believed that both were involved in a number of false pretences and fraud matters and had been using a number of addresses. Detective MacMillan said that he intended to search a number of nominated premises. Detective MacMillan made similar statements of Mr Mahoney.

49��� According to the statement, searches were carried out and a number of papers in different names found. To take one group by way of example, those in the name of Robert John Poole were a motor vehicle driver's licence, a health benefit card, a Savings bank book and a sickness benefit review form. There were similar groups of documents in the names of 5 other persons.

50��� Documents of June 1983 show that the initial charge against Messrs Doyle and Mahoney arising in connection with these documents was conspiracy to cheat and defraud. By June 1984 the charges seem to have taken the form:- "That Edward Emmett Doyle between the 10th day of March 1982 and the 29th day of April 1983 … did impose upon the Department of Social Security, a Department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim Sickness Benefits for the single rate in the name of Robert John Poole, which representation he knew to be untrue, with a view to obtaining money."

51��� There were similar charges alleging the use of the names Kevin Michael Roberts (between 25 February 1982 and 13 July 1983), Donald William Matley (between 25 January and 27 June 1983) and Adam Scott Richardson (between 2 December 1981 and 12 July 1983). Mr Mahoney was the subject of similar charges alleging the use of the names Barry Cooper and John Mitchell.

52��� The offences charged were those provided for by s29B of the Commonwealth Crimes Act. In light of the fact that money was obtained by Messrs Doyle and Mahoney, there is no obvious reason why charges were not brought under s29A instead. The two sections provided:- 29A (1) Any person who, with intent to defraud, by any false pretence obtains from the Commonwealth or from any public authority under the Commonwealth any chattel, money, valuable security or benefit, shall be guilty of an offence. (2) Any person who, with intent to defraud, by any false pretence, causes or procures any money to be paid, or any chattel, valuable security or benefit to be delivered or given, by the Commonwealth or by any public authority under the Commonwealth to any person, shall be guilty of an offence. Penalty: Imprisonment for five years. 29B Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence. Penalty: Imprisonment for two years. 53��� It is appropriate to recognise that the courts have taken a fairly stern view of deliberate defrauding of the social security system - see R v Luu (unreported, CCA, 7 December 1984) which refers to that having been the view of the courts for some time. For more recent examples, see R v Purdon (unreported, CCA, 27 March 1997) and R v Mears (1991) 53 A Crim R 141.

54��� As the recitation of events at the beginning of this report makes clear, a charge of conspiracy was also in the mind of Detective MacMillan in the early stages. Section 86 of the Commonwealth Act dealt with that offence. So far as is presently relevant it provided that the penalty for an offence of conspiring against a law of the Commonwealth was imprisonment for the greater of 3 years or the penalty for the substantive offence. Again, there is no obvious reason why a charge of conspiracy against s29A was not proceeded with.

55��� Section s 12 and 12A of the Commonwealth Act dealt with the summary trial of offences. Under the sections the maximum period of imprisonment that could be imposed if a matter was dealt with summarily was one year.

56��� In light of the penalties provided under the Commonwealth Act, it is unnecessary for me to refer to provisions of the NSW Crimes Act which, if the statement of Detective MacMillan is taken at face value, was also breached in significant respects.

57��� Consideration of the matter encompassed by paragraph (i) requires some further reference to the contents of Detective MacMillan's statement. He said that the driver's licence he found in the wallet handed to him by Mr Doyle was in the name of Scott Richardson of an address different from that where Mr Doyle said that he was living. Detective MacMillan's statement also records that among the documents he seized from an office opened by Mr Doyle during the searches that were conducted on the day of his arrest were two bank books in the name of Adam Scott Richards. The photocopy I have of that statement indicates that there has been some cutting off or inadequate copying of the right hand side of the page and there is a mark following "Richards" which could well be - and I would infer that it was - part of the "0" in "Richardson". The statement also attributes to Mr Doyle admissions to the effect that he had assumed the identity of Adam Scott Richardson and had applied for a duplicate licence (by inference in the name of Mr Richardson). The statement also contains reference to admissions of similar actions and to the possession of similar documents in the name of other persons.

58��� Without coming to a concluded view it seems to me that if the admissions attributed to Mr Doyle in the statement of Detective MacMillan were true, Mr Doyle must have committed numerous offences of having goods in custody which might reasonably be suspected of being stolen or otherwise unlawfully obtained within s527C of the Crimes Act. The question of whether the allegation on which Mr Doyle was arrested is specious is thus intimately tied up with the question of whether he did commit at least some of the offences with which he was charged or, on the other hand, the substance of Detective MacMillan's statement is false.

59��� In addressing those issues and also those raised by paragraphs (ix) to (xi) above, it is desirable to recapitulate some of the matters which do seem to be established. * There are the erroneous statements as to Mr Doyle's record given or recorded when bail was refused by Sergeant McDonald on 4 June 1983 and when Mr Doyle was sentenced on 7 February 1985. * There is the suggested possession of a forged passport but the absence of any charge referable to it. * There is the long period of custody before Mr Doyle was brought before a court. * There is the long period between charge and sentence. * There is the fact that there was only one goods in custody charge when the statement of Detective MacMillan supported more. * There was the bringing of charges under s29B of the Crimes Act Commonwealth when the circumstances described in the statement of Detective MacMillan and apparently not contradicted supported a charge under s29A, a section carrying a substantially higher penalty. * There was the decision to proceed summarily when the degree of criminality was substantial. * There was Mr Doyle's appeal against a sentence which was both light and one a man with his record very probably knew to be light.

60��� On the other hand, there is Mr Doyle's plea and the withdrawal of his appeal although, as the point of this application is that these matters were induced by threats against him, it may not be appropriate to give more than limited weight to these matters. There is no doubt that, in an appropriate case, a plea entered in these circumstances will be allowed to be set aside and a conviction entered on the basis of such a plea regarded as a miscarriage of justice and quashed - R v Laberti (1991) 55 A Crim R 120, R v Sagiv (1986) 22 A Crim R 73, R v Murphy (1965) VR 187, R v Chiron (1980) 1 NSWLR 218.

61��� There is also, as I have indicated, less denial by Mr Doyle of his guilt than I would have expected. Recognition must also be given to the fact that it is not unusual for the police to proceed summarily when proceeding on indictment is an option. Thus the course taken in this respect does not, of itself, provide an indication of impropriety on the part of the police.

62��� The last of the paragraphs to which I need refer is (j). The motive advanced in that paragraph provides a possible explanation for the conduct of Detective MacMillan of which Mr Doyle complains if that conduct occurred. Without a decision on the latter issue, it is unprofitable to seek to attribute reasons for it.

63��� Against this discussion of the evidentiary material before me, I return to the statutory provisions. Although the references in s474A(3) to "any aspect of the proceedings giving rise to the conviction or sentence" and in S 474E(2) to "a doubt or question as to guilt, mitigating circumstances and evidence" indicate that no narrow approach is to be taken in deciding whether an inquiry is to be directed or reference made to the Court of Appeal, some recognition must be given to the overall scheme of the group of statutory provisions within part 13A of the Crimes Act including s 474D. Except where the Court refused to deal with or defers an application or declines to direct an inquiry, the penultimate outcomes of an application which the group of sections contemplate are either a reference to the Court of Appeal or a report to the Governor. In the first of these situations, the matter is then to be dealt with an appeal under the Criminal Appeal Act: In the second, the question will be whether the Royal prerogative to pardon should be exercised. It may be, though I do not have to decide this, that an alternative is for the Governor to himself refer the matter to the Court of Appeal Criminal Appeal.

64��� The sections within Part 13A are concerned with providing a review of outcomes in criminal cases, adverse to an accused, where the normal procedures of appeal are inappropriate or have been exhausted. The sections are not directed to the investigation of criminal behaviour by police except insofar as that investigation may be an incident of an inquiry into a conviction or sentence. Considered in totality the sections to which I have referred make it clear that there is no occasion for use of them unless it appears that there is at least some doubt of a convicted person's guilt or that the sentence imposed is higher than it might have been or, possibly, that there may have been some other miscarriage of justice.

65��� Although the scarcity of evidence from Mr Doyle as to his innocence has caused me concern, the material before me as to the conduct of Detective MacMillan and the of the prosecution generally has led me to the view that "there is a doubt or question " as to Mr Doyle's guilt. Accordingly, I regard it as appropriate to exercise one or other of the discretions conferred under s474E(1) of the Crimes Act.

66��� Mr Doyle has sought the holding of an inquiry. However, as I have indicated, that cannot be ordered in the case of the 4 offences against the Commonwealth with which Mr Doyle was charged although most, perhaps all, of the matters of concern to which I have referred could be canvassed in the course of an inquiry into the offence of goods in custody.

67��� In the circumstances of this case, even if an inquiry was directed and held, it is not unlikely that the matter would ultimately be referred to the Court of Appeal. This fact and the fact that no reference of the Commonwealth matters can be made except to the Court of Appeal leads me to the view that this is the course which I should adopt. There, although there has not been a conviction on indictment or by a jury, the matter will be dealt with, in the terms of s 474E - see Pearson (supra), "as an appeal under the Criminal Appeal Act" and it will be a matter for Mr Doyle to establish before that Court that he should not be held to his pleas of guilty and that his convictions should be quashed. The Crown will be able to call Detective MacMillan and such other appropriate evidence as it desires and cross-examination can be had.

68��� Accordingly, I refer to the Court of Criminal Appeal the following convictions of, and sentences imposed upon, Mr Edward Emmett Doyle: 1. Those made and imposed by Mr K S Anderson SM on 7 February 1985 in respect of charges that: (i) That Edward Emmett Doyle between the 2nd day of December 1981 and the 12th day of July 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a Department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Adam Scott Richardson, which said representation he knew to be untrue, with a view to obtaining money. (ii) That Edward Emmett Doyle between the 25th day of February, 1982 and the 13th day of July 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a Department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Kevin Michael Roberts, which said representation he knew to be untrue, with a view to obtaining money. (iii) That Edward Emmett Doyle between the 10th day of March, 1982 and the 29th day of April 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a Department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Robert John Pool, which said representation he knew to be untrue, with a view to obtaining money. (iv) That Edward Emmett Doyle between the 25th January 1983 and the 27th day of June 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a Department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Donald William Matley, which said representation he knew to be untrue, with a view to obtaining money. (v) Having goods in custody reasonably suspected of being stolen or otherwise unlawfully obtained.

2. Those made and imposed by Judge Sudano on 14 October 1985 in respect of charges that: (i) That Edward Emmett Doyle between the 2nd day of December 1981 and the 12th day of July 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a Department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Adam Scott Richardson, which said representation he knew to be untrue, with a view to obtaining money. (ii) That Edward Emmett Doyle between the 25th day of February, 1982 and the 13th day of July 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a Department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Kevin Michael Roberts, which said representation he knew to be untrue, with a view to obtaining money. (iii) That Edward Emmett Doyle between the 10th day of March, 1982 and the 29th day of April 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a Department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Robert John Pool, which said representation he knew to be untrue, with a view to obtaining money. (iv) That Edward Emmett Doyle between the 25th January 1983 and the 27th day of June 1983, at Sydney in the State of New South Wales, did impose upon the Department of Social Security, a Department of the Commonwealth, by means of an untrue representation, to wit, that he was entitled to claim sickness benefits for the single rate in the name of Donald William Matley, which said representation he knew to be untrue, with a view to obtaining money. 69��� The only other matter to which it is necessary to refer is Mr Doyle's application for orders limiting publicity to aspect of these proceedings. The basis of that request is what he says is his position as a police informer. There is no independent material before me which corroborates this assertion but neither is there any reason for me to disbelieve what Mr Doyle has said. The identity of police informers is not readily disclosed to the public. The nature of the application before me and the orders I have made which will expose the topic to public gaze unless the Court of Criminal Appeal makes further orders for confidentiality, are such that I do not see any significant disadvantage to the public or the interests of justice generally if, I deliver these reasons in closed court. Accordingly, I further order that:- Subject to further order of the Court or of the Court of Criminal Appeal, there be no publication of these reasons or of my orders beyond the Court and the parties and their legal advisers and persons who may be witnesses in the proceedings in the Court of Criminal Appeal.

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