Regina v ED [2003] NSWCCA 255 | Case summary

Thursday, 11 September, 2003 REGINA v ED JUDGMENT 1 HIDDEN J: It is not often that this Court is asked to review proceedings that are getting on to 50 years old. On 12 June 1957 the applicant was tried before the late Judge Clegg, sitting as a Chairman of Quarter Sessions, upon a charge of stealing a motor vehicle. On the same day the jury found him guilty and his Honour sentenced him to imprisonment for three years. He wishes to appeal against his conviction and sentence and seeks leave to do so out of time. He instituted the present proceedings, almost 46 years after his trial, by a notice of appeal filed on 8 April 2003 and a notice of application for extension of time filed a month later. 2 He was charged with the theft of an MG roadster from Edgecliff on or about 4 May 1956. The owner of the vehicle had parked it outside his residence on the evening of 4 May, only to find that it had disappeared the following morning. It was recovered about a month later at Coolangatta. 3 The applicant was charged with the offence about seven months later, on 16 January 1957. The Crown case against him was founded upon admissions he was alleged to have made that day to Detective Constable McEntee, in the company of Detective Constable Dooley, at Paddington Police Station. The effect of those admissions was that he was at the scene of the theft with an accomplice named William Coote, who took the car, while another accomplice, Roy French, was keeping watch down the road. The three men then travelled to Coolangatta, with Coote driving. They abandoned the car there and returned to Sydney by train. 4 The only witnesses in the Crown case were the owner of the vehicle and the two police officers to whom I have referred. The defence case consisted of a brief unsworn statement by the applicant in which he denied having been involved in the theft of the car and having made the admissions attributed to him. 5 The applicant was represented by a solicitor at his trial but is unrepresented in this Court. He has supplied some additional evidentiary material, together with lengthy written submissions. He has expanded upon those submissions in oral argument today. He requires leave to proceed not only because the present appeal is well out of time, but also because he lodged an appeal in 1957 but abandoned it. He has explained the circumstances of that abandonment. However, if that were the only obstacle to his obtaining leave, I find it unnecessary to decide whether I would have been minded to grant it. The real problem is the extraordinary delay and it is necessary, firstly, to examine his explanation for that. 6 The applicant has told us that public revelations in recent years about police corruption, and the notoriety of police on occasions fabricating confessions, caused him to re-examine some of the convictions which he had sustained in the past. In connection with the present matter this led him to an examination of papers relating to the co-offender, Coote. 7 William Coote was also arrested for the offence and made admissions to the police. He pleaded guilty at the outset and was committed to Sydney Quarter Sessions for sentence. After the applicant had been dealt with, Coote appeared before the late Judge Rooney, who gave him the benefit of a deferred sentence with a five year recognisance. (French was also charged and committed for trial but a no-bill application on his behalf was successful.) 8 In 2002 the applicant was granted access to Coote's file at the District Court Registry. On that file he found a brief report, dated 4 January 1957, by Constable Rex Waldron, then stationed at Murwillumbah. It records that in the late afternoon of 5 May 1956, the day on which the MG roadster was found to be missing, he stopped the vehicle for speeding on the Pacific Highway at South Murwillumbah. He spoke to the driver, who identified himself as Coote and produced a driver's licence in that name. He told Coote that he would be reported for speeding. On 25 November 1956 he was shown a number of photographs from which he selected a photograph of Coote as the driver of the vehicle. 9 The applicant says that he was unaware of this material until he inspected the file in 2002. He argues that it is significant because the report makes no reference to there being any passengers in the vehicle. If there had been, Constable Waldron would certainly have mentioned it, says the applicant, because the car was a two-seater and it would have been unsafe (and, no doubt, contrary to motor traffic regulations) for it to carry three people. 10 The applicant also extracted from Coote's registry file a statement by Detective Constable Englund, who interviewed Coote on 13 November 1956 and again on 10 January 1957. From that statement it is apparent that the police investigating the theft of the roadster were informed at an early stage about Constable Waldron's encounter with it. One would infer that it was those investigating police who, after the arrest of Coote, sent the photographs to Constable Waldron for the purpose of his identifying the driver of the vehicle, and who sought his report. 11 At that stage Coote had admitted stealing the car himself but had not implicated anyone else. Nevertheless, the applicant says that he and French were known to Detective Englund as criminal associates of Coote, and he argues that it is likely that their photographs were included in the selection sent to Constable Waldron. He relies upon the fact that Constable Waldron identified a photograph of Coote only, even though he must have known by then that police in Sydney were investigating the theft of the vehicle and that anyone in it might have been a suspect. 12 In effect, the applicant argues that this material constitutes fresh evidence of sufficient cogency to warrant his conviction being set aside. However, there is a real question whether the evidence is "fresh" in the relevant sense, even though the applicant now says that he knew nothing of it until 2002. 13 On 10 January 1957 Coote made a further statement to the police in which he implicated the applicant and French. In that statement he also said that on the afternoon of 5 May 1956 near Murwillumbah "we got pulled up for speeding by a traffic constable...". The evidence of the police officers who interviewed the applicant was that they had shown him that statement of Coote in the course of the interview, and it was produced and marked for identification at the trial. 14 It is most likely that the applicant's solicitor would have become aware of the statement in the course of preparing his client's case and, if he had, it would not have been difficult to have identified Constable Waldron as the officer who pulled the car over and to have interviewed him about the matter. It should be said that the applicant's solicitor at trial is now deceased and there is no way of knowing what information that solicitor had at the time of the trial. 15 However that may be, the principal difficulty which the applicant faces is that this new evidence is equivocal and, presumably, cannot now be tested. Given that he pulled the car over for speeding, the fact that Constable Waldron makes no reference to passengers in his report does not necessarily mean that there were none. Moreover, even if Coote were the only occupant of the vehicle at the time, it could be that he was driving in South Murwillumbah for some purpose of his own, having dropped off the applicant and French with the intention of picking them up later, to continue their journey northward. There is no evidence about which photographs, apart from that of Coote, were sent to Constable Waldron, and the applicant's suggestion that they included photographs of French and himself is no more than speculation. 16 As I have said, the applicant's solicitor at trial is now deceased. Not surprisingly, there is no evidence before us by way of affidavit from Constable Waldron or from any of the police officers involved in investigating the theft of the vehicle. Should any of them still be alive, it is most unlikely that he would now have any recollection of the events in question or have access to any records from which he might refresh his memory. In my view, this avenue of appeal has no prospect of success. 17 The applicant also complains about certain aspects of the conduct of the trial, including his Honour's summing-up, unrelated to the new evidence. Among other things, he asserts that his representation at trial by his solicitor was poor, that the admissibility of the evidence of admissions was not questioned, and that that evidence was not challenged to the extent it ought to have been. 18 It is unnecessary to recite these matters further, or to undertake the difficult task so long after the trial of determining whether, singly or in combination, they could have given rise to a miscarriage of justice. It is sufficient to say that it is now far too late to agitate them. If they had been raised in a timely fashion and resolved in favour of the applicant, the best he could have hoped for was an order for a new trial. At this late stage that course is no longer practicable. 19 In R v Gregory [2002] NSWCCA 199 the Court refused to extend time to appeal against a conviction after a trial which took place twenty one years earlier. In relation to proposed grounds of appeal which raised new trial points, Hodgson JA, with whom Levine and Simpson JJ agreed, said (at pars 41-2): "... an important factor in a decision as to whether an extension of time should be granted is whether the interests of justice require it; but the interests of justice must take into account not just the interests of the applicant, but also those of the Crown (and the community represented by the Crown), and of the administration of law generally. There are many factors relevant to those matters, including the powerful considerations supporting the finality of judicial decisions. In my opinion, one factor relevant to the interests of the applicant is whether the alleged error, if established, would mean that the applicant would be entitled to an acquittal as of right, or merely that the applicant would, as a matter of course, be entitled only to a new trial. If the latter is the case, then the question is raised whether such a new trial would be fair to both sides." His Honour went on to conclude (at par 43): "A new trial of the charge against the applicant, after a delay of twenty one years, would be highly unsatisfactory; and it is unlikely in the extreme that such a trial would in fact take place. The applicant's sentence has been completed, so there is no question of further punishment of the applicant." 20 As I have said, in the present case a new trial is out of the question. The fresh evidence ground is without merit and, even if it had merit, could have justified no more than an order for a new trial. The applicant has long since served the sentence imposed upon him. In all the circumstances, it would not be in the interests of justice to grant an extension of time in which to appeal against the conviction and I would refuse it. 21 The applicant wishes to pursue an appeal against sentence upon the basis of the marked disparity between the three years imprisonment visited upon him and the five year recognisance extended to the co-offender, Coote. As he has served his sentence, there would be no utility in entertaining the appeal. In any event, such material as the applicant has been able to supply about the sentencing of Coote is wholly inadequate to determine why Judge Rooney took the course he did, or to decide whether the applicant's sense of grievance about the sentencing disparity might be justified. 22 I would also refuse leave to appeal against the sentence. 23 SPIGELMAN CJ: I agree. 24 GREG JAMES J: I agree. 25 SPIGELMAN CJ: The orders are as indicated by Hidden J. **********

Regina v ED

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