R v Lewis [1992] QCA 223

R v Lewis [1992] QCA 223 - QCA 1992 case summary — Zoe

[28]

It was pointed out for the respondent that the publicity was by no means all adverse. The appellant, obtaining from time to time substantial help from the newspapers, had done his best to defend his reputation and publicly to condemn those who had accused him and, in particular, the witness Herbert. The bulk of the publicity was, however, undeniably adverse to the appellant. Examples from the newspapers should be given. On 28 October 1987, it was reported that one Burgess gave evidence to the Inquiry relating to his having accepted bribes during a period of service as a police officer in the Licensing Branch. When asked whether he thought this was risky, he replied: "I thought if the Commissioner was in on it, it would be o.k.". Burgess gave evidence at the appellant's trial. On 2 November 1987 it was reported that the appellant was referred to as a shark who takes a big bite, in connection with receipt of bribes. On 5 November 1987, one Parker, another corrupt police officer, was reported as having given evidence that he was sure the appellant was involved in corruption. On 9 November 1987, Parker told the inquiry, according to a report of that date, that the appellant had told him in connection with relevant matters that "if we all stick together everything will be all right". On 2 February 1988, a newspaper article reported that an ex-policeman told the Inquiry he believed the appellant sanctioned everything Parker did, including the payment of bribes. On 23 February 1988, a newspaper article referred to a police raid on illegal gambling premises in 1977; it mentioned that the appellant, then a relatively new Police Commissioner, said that the raids would continue, but they did not and illegal casinos flourished and multiplied with little hindrance from the police. On 11 March 1988, it was reported that a police officer said the appellant had ordered an investigation into the Licensing Branch, which led to its effective officers being transferred; the officer thought this had happened because the branch had been too successful against SP bookmakers. On 6 May 1988, an article referred to a remark by a senior officer to the effect that corruption allegations could not be taken into the Commissioner's office. On 6 July 1988, it was reported that an Inquiry witness said that one Rooklyn had paid the appellant $25,000 for an unfavourable report on the introduction of poker machines into Queensland. On 29 August 1988, an article reported that the Inquiry had been told that the appellant approved a system of corrupt payments soon after he became the Commissioner, in 1976. On 29 November 1988, one Sir Edward Lyons gave evidence that in 1985 the appellant had asked him how to invest $150,000 and that Lyons had described it as "one of the biggest shocks I have had in my life". On 5 February 1989, it was mentioned in the "Sunday Sun" that the witness Herbert had said he had paid the appellant more than $611,000 between 1979 and 1987, but that the claim was denied by the appellant. On 25 April 1989, there was reference to a claim by the appellant that he would not receive a fair trial if charges were brought against him as a result of the Inquiry. There was discussion of a special Act of Parliament declaring the Office of Commissioner vacant, which had allowed the government to withhold moneys which would otherwise have been due to the appellant.

[68]

In my opinion, it is not necessarily enough, in order to justify a permanent stay, to show that the offences alleged against the appellant have been thoroughly canvassed in the media and that a great deal of material prejudicial to the appellant has been published. If it is the law that, in extreme circumstances, the only proper exercise of discretion would be to grant a permanent stay, it does not appear that the circumstances of the present case are sufficiently extreme. The matter was argued in this Court as if it was the worst conceivable case of pre-trial publicity, but plainly it was not. One would expect the worst case to be one in which the crime alleged was one of horrendous kind, inciting universal revulsion (as in Murphy) and where the published material, perhaps pictorial evidence, was such as to be virtually conclusive of guilt. Even in circumstances of that kind, in which it might be difficult to induce a jury to take arguments on behalf of the accused seriously, it is not clear that the accused would be entitled to a permanent stay. In the present case, it could not I think fairly be said that one would expect the jury to have been intractably set on convicting. The Crown came to trial with a substantial difficulty, namely that its main witness - Herbert - was a man of such flawed character as to make it difficult to have him accepted. Some other important witnesses relied on by the Crown were also of limited credibility. The prosecution's problems were unlikely to be overcome by mere prejudice on the part of the jury and the case was one in which one could realistically expect the jury properly to scrutinise the evidence proffered - especially if, as occurred, the judge's directions strongly urged a cautious or sceptical approach to the Crown case. Nothing more could have been done by the judge to focus the jury's attention on the evidence before the Court and to induce them to ignore all prior knowledge. His Honour thought the proper response to the difficulty was to give directions and no ground has been shown to justify interference with this discretionary judgment.

[105]

According to Herbert, a code was agreed upon between Herbert and the appellant, numerals standing for places at which he and the appellant were to meet. Entries were found in the appellant's diary which were, to some extent, supportive of Herbert's evidence about the code. Herbert said that number 1 stood for the downstairs bar in the Crest Hotel and 2 for the corner of Elizabeth and Albert Streets and 3 for the Park Royal Hotel. In the diaries, 1 has beside it "A & E Sts", 2 has "PR" and 3 "C". Although Herbert's version of the code does not precisely correspond with the diaries, its degree of correspondence is surprising and there was no evidence other than that of Herbert to explain why the Commissioner of Police should have in his diary an apparent code for such meeting places. The appellant's diaries also refer, beside the number 9, to "Jack R" and beside the number 10 "Tony R". These were not, of course, necessarily references to Jack Rooklyn and Tony Robinson but there was independent evidence, in the diaries, of the appellant's having a connection with both these men. For example, the appellant's diary records that in 1978 A. Robinson introduced J. Rooklyn and the latter inquired about starting a "health studio" on the Gold Coast and that later in 1978 Rooklyn inquired if massage parlours were being legalised. The appellant's 1978 appointment book included Rooklyn's name, his Sydney address and his Sydney telephone number and also included a number (without any identification of a person) which was in fact Herbert's work telephone number. In 1978, there were references in the diaries to in-line machines and in 1979 an entry "To Crest Hotel re luncheon re machines in Police Club". Herbert said that he had told the appellant of an attempt to get in-line machines into that club and he (Herbert) told the appellant that the reaction was negative. Rooklyn then asked Herbert to arrange a meeting between Rooklyn and the appellant to discuss the matter and Herbert did so. The jury might well have thought it odd that the Police Commissioner was going to a hotel to discuss the subject.

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

Lewis \[1992\] QCA 223

Cases Cited (4)

IN THE COURT OF APPEAL [1992] QCA 223

The sections are concerned with matters which take place in the public domain in contrast, in this respect, with the topic of secret commissions which is dealt with in Chapter XLIIA of the Code. Section 87(1) is concerned with events not in the field of justice administration involving corruptly taking or asking for benefits for past or future actions done or refrained from in the discharge of the duties of an office holder, that is, for things which it is obviously contemplated may be improper. The phrase "in the discharge of the duties of his office" which appears in the subsection does not refer to those things which a culprit is obliged to do or refrain from doing in accordance with his duties or it is not restricted to this but bears a meaning more like what is conveyed by the phrase "within the scope of his responsibilities". His duties may give him scope to act but not compel him to act in the precise fashion. This construction emerges from the judgments in the case of Herscu (supra). This case has now been considered in the High Court [1991] HCA 40; (1991) 65 A.L.J.R. 677: see especially at 679.

From a procedural point of view it is obviously desirable to order amendment of an indictment in cases where, for example, the evidence varies from the charge or particulars are delivered which are inconsistent with the terms of the charge, that is, if the trial is to continue. There is a clear necessity to ensure that the Court's formal record remains correct. This is the position which the concluding sentence of s. 572 recognises. Whether there can properly be an amendment of an indictment after verdict and conviction is something to which we do not need to turn particular attention in this case. Section 572 does not seem to contemplate it and for other than formal defects this section is the only relevant source of power: see Maher v. The Queen [1987] HCA 31; (1987) 163 C.L.R. 221 at 230 and R. v. Phil Maria (supra) in the answer to question 3 in that case at 529. The form of the limited power conferred by s. 649 also seems to support this view. Accordingly, the suggestion made to the contrary in R. v. Lowndes [1938] Q.W.N. 11 may not be correct. Since the bringing in of verdicts lies within the prerogative of juries and the verdict will obviously be related to the form of the charge at the time it is pronounced there will be considerable difficulty in terms of principle in allowing any general amendment of the indictment after verdict. Section 649 allows for amendment after verdict but before sentence on application by the convicted person on a motion for arrest of judgment: see R. v. Baynes [1989] 2 Qd.R. 431 at 435.

The rule in question has some technical aspects but it is designed with the practical end in view of providing a measure of protection to accused persons. Evidence from an independent source which is merely consistent with the account of the witness who calls to be corroborated will not corroborate him. While evidence which is inconsistent with an allegation will tend to disprove it, evidence which is consistent may nevertheless not have the necessary tendency to implicate. It is not necessary that corroborative evidence should be so strong or complete that it will by itself be capable of proving the offence which is charged: R. v. Baskerville [1916] 2 K.B. 658 at 664 and Doney v. The Queen [1990] HCA 51; (1990) 171 C.L.R. 207 at 211. However, evidence which is corroborative within the meaning of the rule must, in my opinion, do more than simply lend some general support to the evidence coming from the source which calls for corroboration and directions customarily given to juries identify specific items of evidence with some potentially significant probative capacity. The independent evidence must actually tend to implicate the accused in the commission of the offence which is charged: R. v. Baskerville (supra). Thus, evidence which merely raises grounds for general suspicion of criminal behaviour of some kind or other will not ordinarily be capable of corroborating an allegation of a precise criminal offence which is charged. Further, it is apprehended that evidence which merely supports in a general way the testimony of the witness requiring corroboration perhaps by giving some limited support to the credit of that witness will not be corroborative within the meaning of the rule unless, going further, it supports the relevant central allegations: cf. Peacock v. The King (1911) 13 C.L.R. 692 at 638-9, Reg. v. Hester [1973] A.C. 296 at 325 and Attorney-General of Hong Kong v. Wong [1987] 1 A.C. 501 at 512 quoting with approval a passage from Reg. v. Turner (Bryan) (1975) 61 Cr.App.R. 67. To take an example, if it is alleged by an accuser that an accused committed a particular offence in Brisbane on a particular day, evidence from an independent source that the accused was present in Brisbane on that day will "support" one particular aspect of the accuser's testimony but it will not ordinarily be regarded as corroborating his claim that the accused committed the particular offence which is alleged against him. In Ridley v. Whipp ; it was declared that opportunity alone could not constitute corroboration.

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Judgment (180 paragraphs)

Parties

Cases Cited (4)