opposite the figure $2,500.
52 Underneath the column of figures totalling $8,000 appeared the words -
These might be enough if they will do it. The (sic) don't talk (?) about being paid for it.
53 Then appeared the words -
unless you can get them cheaper but if we go too low Scotty might not be in it.
54 Exhibit UU was a two-page typewritten document with handwritten insertions. It included the following. The handwriting is shown in italics.
Theo.
Detective Edlund arrested me on for
When we arrived at the Goulburn Police Station he said "Do you know a guy called Patrick Hudd". I said "No".
Edlund said "If you make a statement claiming you do know him, and that he sold you heroin, even if it's only a $50. shot, I won't charge you with this". I said "No, I won't be in it".
Edlund always says PATRICK.
Explain to the others that the ones named in the police statements, the cops are trying to get us together. Once they write it out and sign it, the cops are up for harrassment if they try to question them on it, as they are defence witnesses.
Explain how Regie got charged after giving Miro up. Charged on his own addmissions. HE GOT 6 MONTHS. If not signed up they leave it open for police to subpoena them and if one slip up, charge them. Once signed up they are my witnesses and can't be questioned on this by Police. It's Harrassment.
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Scotty 2. Theo 1.. Vicki 2½.. the other chick 2½… McF 500 or 1000. If the other chick is right then tell 40 I don't really trust him now and I have 2 other people who are doing it for 2½ each. If he wants to do it with them then all he gets is 2½ too, he brought it on himself. Yes or No and we'll be in touch that's less the $550 I gave him. Leaves $1950 or he repays the $550 at $50 pw otherwise you'll pull the bail. He would have been IN FRONT OF them ( or following them as long as they get it right) , they were taking Henry's car back to him, unless Vicki has a car of her own. 40 in yellow car Vicki in Henry's right behind him. The number of Henry's ford. It's best we have 2 people in Lambs Lane . What names are these women going to use.
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Wayne McFarlane adds to his note if he'll do it. Julie Dunlea was going to the Astor Hotel, I dropped her off in the Telecom Carpark. SHE walked straight past the ute about 5 to 6 feet behind it and kept going, she never stopped. Pat Hudd was talking to a guy who was leaning in the window of the ute (Driver's Side) It wasn't Allan Dell. Pat Hudd followed me out of the carpark to Sloan Street, I turned right and Pat Hudd turned left at Sloan St. I could see him in the rear view mirror.
…
Would the person who drove past (Not Passed) 2 Hwy Patrol cars, a Blue HQ Utility and 2 other vehicles, parked each side of the road, approx 500 metres along Lambs Lane from the Grabben Gullen Road, 16 Kms from Goulburn, between 9.15.and 9.30.am on Saturday 27-5-89, please contact (If Rory says Bolzan is right when you contact him) Mr. John Bolzan of Bolzan & Dimitri, Solicitors, Leichardt. on 02-560 0011.
We could forget Theo if Scotty is definitely doing it.
We would want Wayne McFarlane though in case Julie Dunlea turns up for the cops. If we have to we give him 500 or 1, 000 .
The chick or chicks will have to be taken up there so they see the Lane and the road to Bredalbane. The right road this time. Rory would need to speak to them within the next 2 weeks so the notes would need to be given to them A.S.A.P. who has the map the guy in the Ford Laser drew. o nly one of them has it.
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Glenn Martin 6604503 Joanne 5977343.. Can he get snake to whisper in Whitey's ear about giving evidence at my trial.
The date 40 was bailed in case I have to use these statements. If we don't use him contact him tell him whats on page 1 then he has to repay you the $550. $50 pw or you will pull his bail. say I don't trust him now and mention the statements the guys here made about him.
55 There were attempts to recruit others into the conspiracy. Mr Allan Dell said that in August 1989 a woman calling herself Julie visited his flat in Goulburn. He identified her as the accused Dufty. She handed him a document which he identified as one of the car documents, marked 3 for identification. It became exhibit N.
56 It comprised a handwritten account of an alleged meeting between Mr Dell and Detective Sergeant Edlund in Goulburn on 21 July 1989. In the account Detective Sergeant Edlund asked Mr Dell whether he knew the appellant and Mr Dell said that he did not. Detective Sergeant Edlund said that the appellant had upset a colleague of his, who wanted him gaoled. He offered to give Mr Dell a ten-weight bag of heroin and get a certain detective off his back if he would make a statement saying that the appellant had sold him heroin. The letter contained considerable detail about what was supposed to have happened.
57 Mr Dell told Ms Dufty that he wanted nothing to do with it.
58 In August 1989 Ms Diane Miller had been visiting her cousin Mr Thorn at Goulburn prison for some time. During her visits there she had met the appellant and a woman who called herself Julie. She identified Julie as Ms Dufty. There was an occasion when Julie came to the front door of her house and asked whether if she were placed under subpoena she would be willing to give evidence for them. She said that she would not.
59 Julie called at her house again in November 1989. She had papers and told Ms Miller that she would fill her in on how the case was going. Ms Miller identified the document marked 27 for identification as a paper shown her by Julie. That document, which came from the car documents, became exhibit 0. It was a two-page handwritten draft, the first page of which set out the movements of someone who met the appellant at a particular place in Goulburn at 10.08 am on 23 May 1989 and at 11 or 11.10 am on 25 May 1989, four and two days respectively before the appellant's arrest. It is not altogether clear how, but the document may have had something to do with what the appellant thought the police might say he was doing at those times. The draft states and repeats that the person it concerns never bought drugs from the appellant and did not know him to be involved with drugs.
60 Ms Miller said that she was not interested.
61 The woman Julie made a final attempt about six weeks afterwards and asked her if she had changed her mind. Ms Miller said that she had not.
62 The appellant called no evidence and gave an unsworn statement. Dealing with evidence in the Crown case other than that of Sergeant Nomchong, he denied knowing or ever speaking to Mr Worthington. He denied making any admissions to police officers. He admitted that he had picked up papers that Detective Inspector Casey had handed him because he was curious and wanted to know what police were trying to frame him with. That explained how his fingerprints got onto the cell documents. He denied typing or writing any of the conspiratorial documents. He admitted that there was a typewriter in his cell, denied ever having touched it and commented that there was no evidence of his fingerprints on it. He denied that documents were taken from his cell. He denied that the Judges Notes notebook was his but he did not deny that Mr McCrudden had asked for its return.
63 Notwithstanding the warning the jury would have to be given about the caution with which they should treat the evidence of Mr Worthington as a co-conspirator, the Crown case was overwhelming, even without the evidence of Sergeant Nomchong. There was a consistent correspondence between the documents tendered. The jury would be entitled to regard them as having common authority because the writing on them looked the same and because they carried common themes. They were linked to the appellant in several independent ways. Some were shown by the appellant to Mr Worthington. Others bore the appellant's fingerprints. Others were written in the same hand as the selected pages of the Judges Notes notebook, which was found at the appellant's house. The appellant admitted writing others.
64 The evidence independent of the documents showed that the appellant and Ms Dufty systematically tried to recruit whoever they could to concoct evidence by supplying them with draft statements of evidence and offering them money.
65 There was no sworn evidence to contradict the evidence adduced in the Crown case, so it might be the more readily accepted.
66 Counsel for the appellant was invited in this Court to analyse the evidence independent of Sergeant Nomchong so that it might be ascertained to what extent, if at all, the Crown case might be weakened if he were discredited. Counsel submitted instead that there was no contested evidence that could be regarded as independent of Sergeant Nomchong because he had contrived and conspired to have the appellant falsely accused by devising a scheme, recruiting police officers and other witnesses and forging such documents as were necessary to support the charge of conspiracy. It was acknowledged that such a submission required that Sergeant Nomchong had not only recruited and organised the witnesses whose evidence was likely to be contentious and persuaded them to give false evidence, but had also himself written all the documents said to be in the hand of the appellant.
67 Of the documents tendered, forty-six comprised handwritten pages, and there were in addition typed pages bearing handwritten insertions, annotations and emendments. Besides, there were twenty-four car documents and twenty-three cell documents that were not tendered.
68 None of the pages of the Judges Notes notebook was tendered. The book itself was not tendered. It is not known how many pages it contained, but it is known that pages 72, 105, 106, 115, 117 and 127 contained handwriting. There seems no reason why blank pages should have been left in the book as it was filled up.
69 The Judges Notes notebook was in court at trial. Given that it was connected to the appellant because it came from his briefcase, defence counsel would have been at pains to reveal, if it were the fact, that it contained handwriting apparently different from that on the pages selected for comparison with other documents. That was not done. The proper inference is that at least 127 pages of that book were apparently written in the same hand.
70 The forty-six handwritten pages tendered and the typed pages which bear handwriting all appear to bear the same handwriting.
71 Altogether over two hundred pages were identified, and it fairly appears that one person apparently wrote them all.
72 It seems an extraordinary proposition that Sergeant Nomchong was that person. If an experienced police officer like him wished to concoct evidence and have the appellant falsely convicted and sentenced, there must have been many easy ways for him to do so. The appellant suggested no reason why Sergeant Nomchong should have gone to such lengths or how he might have been capable of producing so many documents of such apparent consistency. Heracles himself could not have laboured longer.
73 There was no evidence that Sergeant Nomchong was at the centre of the case, forging all the documents and organising and corrupting the many witnesses he would have had to influence. All there was was a bare submission from the bar table about his alleged role. In my opinion there is no proper basis for a submission that the jury's impression of the evidence other than that of Sergeant Nomchong should rise or fall according to their impression of him.
74 It seems to me in any case that there are sound reasons for regarding Sergeant Nomchong's evidence as reliable. He was not stationed at Goulburn and had nothing to do with the investigation which gave rise to the arrest of the appellant.
75 He said that his mother and the appellant lived together as though married between 1970 and 1980 and that he used to visit them during that time. Most of the visits were to a property near Boorowa which they were managing. When he visited he would stay with them. Sergeant Nomchong's younger brother Anthony was living with them for part of that time, as was the appellant's son Wayne.
76 When Sergeant Nomchong visited them, he would spend time with the appellant. He saw him writing on a number of occasions. The appellant would make notes in a notebook. He would leave notes for Sergeant Nomchong's mother, sometimes to indicate his comings and goings to and from Boorowa and sometimes concerning the management of the property. Sergeant Nomchong used to read those notes and in that way became able to recognise the appellant's handwriting.
77 The relationship between the appellant and Sergeant Nomchong's mother came to an end in 1980 and she moved away from the district. She wanted nothing more to do with him and did not give him her address. The appellant knew the address of Sergeant Nomchong's brother and began to send him letters intended for his mother. He handed them unopened to Sergeant Nomchong. Sergeant Nomchong opened the envelopes and read the letters. He recognised from the writing that they were from the appellant. He did not pass the letters on to his mother but kept them.
78 Five envelopes became exhibit CC. The five letters which they had contained became exhibits DD, EE, FF, GG and HH. Two of the envelopes bore 1980 postmarks. A third bore an advertisement for Australian National Stamp Week 1980. It was not suggested on appeal that the date stamps were not genuine or that the Australian National Stamp Week stamp was not genuine.
79 If the appellant's argument were correct it would follow that Sergeant Nomchong must have received the envelopes in 1980, kept them by some fortunate chance and used them again in 1989 in order to concoct evidence against the appellant by copying the writing on them and forging more than two hundred handwritten pages. Alternatively, he must have forged the envelopes themselves in 1980 and posted them. Both propositions are untenable.
80 There are other reasons why the letters produced by Sergeant Nomchong appear authentic. They, their envelopes and the other two hundred or so documents appear to have been written in the one hand, something a reasonable jury would probably conclude. Sergeant Eastman said nothing to the contrary. He said that two of the letters, exhibits DD and EE, could have been written by the person who wrote exhibits E, F, G, N, O and UU, which were car documents, and exhibits XX and ZZ, which were cell documents, as well as cell documents numbers 12 and 28.
81 Nor do I think that the proposed fresh evidence would be capable of informing a jury's view about the credibility of Sergeant Nomchong. If he trumped up a case against the appellant he must have decided to do so in 1989, for that is when many of the police officers prepared their statements and took other steps which could not be changed. The offence of which Sergeant Nomchong was found guilty was committed in November 1994, about five years later. In a judgment of this Court in a Crown appeal against his sentence McInerney J remarked that when he committed the offence Sergeant Nomchong had been a police officer for some thirty years and that the material before the sentencing judge indicated that in many respects his police service had been outstanding and meritorious, with the exception of one minor episode, which had been dealt with administratively. A number of senior police officers gave evidence at the trial testifying to his good character, about which there was no dispute by the Crown.
82 This Court has previously remarked on the difficulty that arises when a jury is asked to infer dishonesty in a witness at one time by reference to later events, especially where the witness appears generally to have been of good character. R v Robinson [1999] NSWCCA 186; R v Johns [1999] NSWCCA 206. In my opinion it would not be open to a jury to infer from Sergeant Nomchong's dishonest conduct in 1994 that he was dishonest in 1989.
83 Counsel for the appellant conceded that Mr Haken's allegations had little substance taken by themselves. I think that that was a proper concession to make. It is not easy to see how the evidence could be adduced from Mr Haken, since it would go not to any issue at the trial but only to the credibility of Sergeant Nomchong. There was some suggestion that it might be admissible as tendency evidence. However, I think that the material has such little weight as not to justify a resolution of such evidentiary problems.
84 In my opinion it is not reasonably possible that a jury having the benefit of the fresh evidence might acquit the appellant. I would dismiss the appeal.