R v Heuston

R v Heuston - [2009] NSWSC 1045 - NSWSC 2009 case summary — Zoe

[36]

11 In the appeal to the Court of Criminal Appeal decided on 30 June 2003 (R v Heuston [2003] NSWCCA 172) the applicant relied upon the material that had been put before Barr J, and also upon material from a subsequent investigation by the Police Integrity Commission into the Major Crime Squad North, relating to all members of that squad, and in particular Detective Fabris and Detective Minehan. Reference to this material is to be found in the detailed summary contained in pars 29 to 37 inclusive of the decision. It is unnecessary to repeat it here. Bearing in mind that the Court of Criminal Appeal was only dealing with the Mulholland trial, the opinion expressed at par 41 of the judgment is instructive. It is as follows: - 41. In my opinion, the effect of this new material would have been to permit a very powerful challenge to the police evidence. It would have been possible for the appellant to make out a strong case that the police officers involved in the Major Crime Squad North had taken weapons to Coffs Harbour with a view to planting them on the appellant, and a strong case that at least Detective Fabris was a person prepared to give perjured evidence, and to invent verbals and plant evidence. Although the signature by the appellant of the notebook, and Sergeant Smith's evidence, and also the identification evidence of the Mulholland's, would still have amounted to strong evidence against the appellant, in my opinion there is a significant possibility that a jury, acting reasonably, would not have been prepared to rely at all on the police evidence, and would have been more sceptical of the other evidence; and for those reasons, would not have convicted the appellant. The possible severe discrediting of the police principally involved in the investigation and the arrest, coupled with the circumstance that the Mulholland's gave evidence by arrangement with the same police in return for an immunity for prosecution, would have been powerful considerations in the appellant's favour." 12 At par 42 of the judgment, Hodgson JA, with whom Simpson and Greg James JJ agreed, expressed the opinion that the appeal should be allowed on that ground. 13 In submissions filed on behalf of the applicant in the present application, it is argued that a similar position exists regarding the allegations made by the Goodwins. The following reasons are given in support of that argument: -

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(d) Evidence exists linking the Goodwin brothers to the offences allegedly committed against the Mulhollands, providing a powerful motivation to fabricate evidence against the applicant, his brother and his nephew. 14 The reasons listed in the preceding paragraph do not, in my opinion, amount to arguments in support of the ground presently being considered. That is not to say, however, that the matters that they bring forward are unmeritorious. It is perhaps therefore unsurprising that the same arguments are raised in one form or another either as grounds in their own right or as arguments in support of other grounds which I am required to consider. However, the decision of the New South Wales Court of Criminal Appeal on 30 June 2003 allowing the applicant's appeal against conviction in the Mulholland matter does not of itself cause me any relevant sense of unease. 15 With respect to reason (a), the Crown submitted in my view correctly that the police evidence given at the Goodwin trial had little or no impact on the outcome of the trial or the subsequent convictions of the applicant. The police evidence was confined to procedural matters only. It related to taking photographs of guns and arranging for Craig Goodwin, James Goodwin and Rachel Crisp to identify the resulting photographs of those weapons. The police officers gave statements recording this procedure: O'Toole (T650-658), King (T658-712), Fabris (T712-731), Minehan (T732-737) and Lenon (T738-745). 16 A similar claim was made in the previous application and rejected by Barr J. His Honour stated in his reasons for judgment (at paras 95 and 100): "A more serious difficulty relates to the function in the trial of the evidence of the police officers under attack. In fact none of them did any substantial damage to the applicants. Detective Senior Constable King gave evidence about inviting the second applicant [Mr Heuston] to take part in a formal interview and about the exercise of the second applicant of his right of silence. That evidence was uncontentious. He showed photographs of target pistols to Goodwin, Ms Crisp and Jamie Goodwin. They picked one or more photographs out as being of firearms similar to those used by the applicants in the hold up. All agreed about a particular photograph as being of a gun the same as or similar to one they said was used by the first applicant and Shane Heuston or either of them. Two of them agreed about a photograph of a gun like the one used by the second applicant, but Crisp was only able to say that it was like the guns in three of the photographs she identified .

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Notwithstanding these matters, the jury believed him, and I think that they were entitled to do so. In my opinion the material now pointed to would be incapable of producing any different result." 19 One of the grounds of the applicant's appeal to the CCA in 1996 was that Twigg DCJ failed to give an appropriate warning in relation to the evidence of Craig Goodwin as an indemnified witness. In this regard, Gleeson CJ stated that "[l]eave is required for this ground of appeal to be pursued. Leave should be refused. Furthermore, the directions given to the jury were sufficient" (at 32). 20 Claim (c) relies on Craig Goodwin's admission to the Crown Prosecutor, that "[t]hey are bad boys, they can make it worse for me than the Heustons can. There are fabrications in here. I can't remember anyone coming out about the guns, I can't remember what is in this statement." Mr Creasey also stated that "I took him to be referring to the statement made by him on 29 August 1995 wherein he referred to the day upon which Detectives King, Lenon and O'Toole came to his place to show him photographs of pistols" (at paras 8 and 9, Annexure G to the Application). 21 The Crown submitted that the assertion that Craig Goodwin's admissions to Wayne Creasey amounted to "actual evidence" of police corruption is unsubstantiated. Craig Goodwin was extensively cross-examined at the Goodwin trial about the contents of his statement, during which he confirmed his identification of the weapons used during the attack, his description of the weapons given to police and his identification of the photographs (T153-163). Detective Fabris interviewed Craig Goodwin and typed up his statement regarding the guns used during the Goodwin Offences from notes taken by Detective King (T304). Both officers gave evidence before Twigg DCJ regarding the Goodwin Offences (T675-731). 22 It is apparent that the process undertaken by the police to obtain photographs of the weapons and undertake identification of the photographs was closely scrutinised in cross-examination by defence counsel. Although the reputation of some of the police involved is now seriously compromised I have no sense of unease or disquiet about this evidence. 23 In relation to (d), the assertion that there is evidence linking Craig and James Goodwin to the Mulholland offences is based upon the fact that when the police executed a search warrant on Craig Goodwin's property in March 1993, they found weapons and balaclavas which fitted the description given by the Mulhollands of the weapons used during that robbery. However, the police made no attempt to link these with the Mulholland robbery. 24 Barr J examined these allegations in great detail in considering the previous application and concluded that they did not cause unease about Mr Heuston's convictions for the Goodwin Offences. His Honour stated (at para 73): "The Crown did not adduce evidence of the police search of the Goodwin premises on 25 March 1993 in which had been found a Boito shotgun, balaclavas, "camouflage clothing" and the like. No doubt the Crown was aware of the explanation given by Goodwin as to the purchase of the shotgun at a time before the Mulholland offences and unconnected with the applicants and of the balaclavas being kept for the second applicant [Eric Heuston] but from a date preceding the Mulholland offences." 25 In my opinion the matters relied on in support of Ground A do not support the claim that the reasons for judgment of Hodgson JA in relation to the Mulholland Offences have equal application to the applicant's convictions for the Goodwin Offences. Although as I have indicated the reputation of some of the police involved has been discredited I am not for that reason left with any sense of unease about the convictions.

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A. Yes. 35 The applicant also relied upon other material in relation to Detective Fabris to which it is not presently necessary to refer. 36 The role of Detective King at the Goodwin trial was that he arranged for the three complainants to see a group of photographs of various guns, and he prepared statements from each of them to the effect that they all identified the same guns as looking like the guns used by the applicant and others during the robbery. 37 In his case, some of the fresh evidence is said to consist of the following: - · Detective King maintained in evidence before the Police Integrity Commission that he had never acted corruptly. The Police Integrity Commission heard evidence from other witnesses that Detective King had: (a) Been a party to the theft of $27,000 from A1;* (b) Assaulted a suspect known as D6 during an interview;* (c) Loaded A4 with a gun known as an Uzi and participated in his verballing and prosecution;* (d) Been involved in the planting of a gun on A2; (e) Stated on a taped conversation to M5 that he was aware of the cache of weapons held by the Major Crime Squad North and of their disposal in the Hawkesbury River;* (f) Participated in a conspiracy to pervert the course of justice regarding his own prosecution for drink driving. *Supporting transcript not supplied. 38 The role of Detective O'Toole at the Goodwin trial was that he was the officer in charge of the investigation. He gave evidence about attending the Goodwin's home regarding the identification by witnesses of photographs that depicted the types of weapons allegedly used by the Heustons in the incident. 39 Detective O'Toole gave evidence on a number of occasions before the Police Integrity Commission. He denied that he was a corrupt officer or that he was aware of corrupt conduct committed by other officers. 40 In his case, some of the fresh evidence is said to consist of evidence given before the Police Integrity Commission by others that he: (a) Received stolen cash in the A1 matter; * (b) Told N1 that he was there to look after the interests of the squad when it came to the division of stolen money and that he had said similar things on other occasions;

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· M5 acted as an informant for the Police Integrity Commission for several years, accumulating evidence adverse to the integrity of his colleagues in the Major Crime Squad North. The applicant contends that the transcript currently available to him reveals that M5: (a) Admitted that he had participated in verbals, load ups and perjury between 1987 and 1996; (b) Helped remove and dump the squad's cache of weapons; (c) Helped Officer Dowding plant a gun in A2's car; (d) Loaded A3; (e) Made a false statement in the prosecution of A2; (f) Participated in the loading of M11 at the direction of Officer O'Toole; (g) Fabricated M11's confession together with Officer Vicary; * (h) Was present when Officer Vicary assaulted M11 in order to pressure him to sign the confession; * (i) Lied in evidence at M11's committal because he was told to do so; * (j) Assisted an arrested drug dealer to produce a record of interview that provided him with a defence; * (k) Received a portion of the money stolen by police from L17's premises. * * Supporting transcript not supplied . 43 As will be apparent from the material referred to in the preceding paragraph, not all of the submissions made in support of the application under this ground can be checked against the relevant transcripts, even though references to the location of the relevant material in the transcripts have been provided. 44 In summary, the Crown accepted that it is apparent from this material that Detective Fabris admitted to the PIC that he had given false evidence in other criminal cases at trial and at committal, committed perjury, tampered with evidence and loaded accused persons with guns. In his conversation with the Crown prosecutor just before the retrial of Shane Heuston, Craig Goodwin implied that Detectives King, Fabris and O'Toole had caused false evidence and fabrications to be made in Craig Goodwin's statement of evidence against the applicant for the Goodwin Offences. 45 However, the Crown emphasised that the police evidence given at the Goodwin trial related only to the identification of weapons. In rejecting this claim in considering the previous application, Barr J stated that "this evidence [by police] was uncontentious" and "[i]t was never the Crown case that any of the photographs selected was of either of the guns used by the attackers" (paras 95 and 96). The police evidence did not seriously impact on the defence. 46 The most important evidence in relation to the Goodwin Offences was that of Craig Goodwin, James Goodwin and Rachel Crisp. This evidence was extensively tested in cross-examination in the trial before Twigg DCJ and its reliability was available to be considered by the jury. A report from the Crown Prosecutor, Mr Wayne Creasey records that when interviewed before trial Mr Craig Goodwin said to him pointing to his statement "you have not been told everything." He also apparently admitted that at least in one respect his statement was false being an issue related to Eric Heuston and not the applicant. 47 The Crown submitted that, while this ground was of significance in relation to the Mulholland conviction - which has now been quashed - it has little relevance to the police evidence given at the Goodwin trial. I am satisfied this submission should be accepted. The matters raised under this ground do not raise any doubt about Mr Heuston's convictions for the Goodwin Offences, nor do I have for that reason any unease that his convictions should not stand.

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Ground G 53 Barr J, commencing at par 106 of his report, dealt with this ground in some detail. In addition, it was one of the applicant's grounds of appeal dealt with by the Court of Criminal Appeal on 23 December 1996. The court dismissed the applicant's appeal, although Simpson J would otherwise have allowed it on a ground directly connected to the applicant's alibi upon which he relied at the trial. In particular, the applicant complained on appeal about the stage at which the Crown called evidence in reply on this issue and about whether the resulting trial had been unfair. 54 The applicant and his brother were tried together. The applicant's brother raised an alibi defence, which was persuasively demonstrated to have been false. The applicant contends, in effect, that the jury could have concluded that the applicant was merely mistaken about the matters giving rise to the alibi defence raised by him, whereas his brother's alibi defence was demonstrably and obviously fabricated. That was said, in combination with the other matters raised in the application, to give rise to a sense of unease about the conviction. 55 As Barr J pointed out in his report, no complaint was made concerning directions given to the jury about treating the cases separately. As his Honour noted, the ground of the application was little more than an attempt to re-litigate a matter dismissed on appeal. It caused his Honour no unease, and I am of the same view. Ground H 56 The applicant submitted that on any view of the evidence there had been a criminal association between Craig Goodwin and the Heustons and the relationship was not close in late 1991. Eric Heuston alleged that Craig Goodwin was a large supplier of cannabis from 1989 onwards when he was living in Marrickville. Craig Goodwin denied this in cross- examination. It was common ground that he purchased cannabis from Eric Heuston and subsequently grew it. On the evidence of Craig Goodwin, he had ceased purchasing cannabis from Eric Heuston by November 1991 and had ceased an association with him altogether. It was the case of the applicant and Eric Heuston that there had been a falling out between Eric Heuston and Craig Goodwin because of Goodwin's use of heroin. 57 The applicant further submitted that Eric Heuston said that the Drug Enforcement Agency began an investigation called Operation Greengrocer. Craig Goodwin rang him to say that he was being watched and he and Rachael Crisp moved to Eric Heuston's property. He allowed him to stay there as long as he did not use heroin. When he found him using heroin, Eric Heuston threw Craig Goodwin off the property. The applicant said that he was present when his brother did this. 58 Craig Goodwin sought to explain the delay in complaint because of fear. However, James Goodwin and Rachael Crisp visited Eric Heuston the following day to recover the telephone and cannabis plants allegedly taken. It is submitted that Craig Goodwin in particular had a powerful motive to make false allegations against the Heustons. The applicant contends that the circumstances in which the complaint was made and the indemnity from prosecution granted to Craig Goodwin are matters of concern. 59 Furthermore, Craig Goodwin did not seek medical treatment for the alleged injury to his hand. The applicant contends that the evidence from Dr Stone, called in the applicant's case, suggested that the scar on Craig Goodwin's hand was not consistent with the manner in which he stated the injury was caused. 60 None of these matters give me cause for concern. Barr J dealt with the issue of the injury to Craig Goodwin's hand in some detail in his report commencing at par 115. 61 The delay in complaint does not cause me concern. The incident that ultimately led to the applicant's conviction is said to have occurred on 29 November 1991. Craig Goodwin did not report the incident until 25 March 1993. He did so in circumstances in which he was himself charged with firearms and drug offences in respect of which he sought, and was granted, an indemnity from prosecution. 62 It is submitted that the events of 29 November 1991 are inconsistent with a visit the following day by Rachael Crisp and James Goodwin to the home of their alleged assailant. Although this would suggest they may not have any fear of assault on that occasion the concern which allegedly caused them to delay their complaint was of a different character. That concern arose from the risks which they perceived if they reported the incident to police. It was a threat which was dependent on them taking some action to cause problems for the applicant. 63 I have no sense of unease having regard to the matters raised by the applicant under this ground.

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