JAMES J: Christopher Hasenkamp has applied for an extension of time in which to appeal and, if an extension of time is granted, appeals against his conviction on one count of cultivating between July 1989 and February 1990 not less than a commercial quantity of cannabis plants, an offence under s23(2) of the Drug Misuse and Trafficking Act 1984 .

The trial at which the appellant was convicted was conducted in May 1993 in the District Court at Narrabri before his Honour Judge Hosking and a jury. The appellant stood trial with a co-accused named Brittain, who was charged with having knowingly taken part in the cultivation of the same cannabis plants. Each of the appellant and the co-accused was found guilty by the jury. The appellant was sentenced by Judge Hosking to a sentence of imprisonment for six years two months, consisting of a minimum term of four years five months, commencing on 26 May 1993, which was the day when during the trial the appellant was taken into custody, and an additional term of one year nine months. His Honour explained in his remarks on sentence that he had arrived at these unusual periods for the minimum term and the additional term, after making certain deductions from a provisional sentence of seven years, which he considered to be an appropriate sentence, for a discrete period of pre-sentence custody and for a long period during which the appellant while on bail had been subject to a condition of daily reporting. On a minor charge of cultivating a small number of cannabis plants at a different site, to which the appellant had pleaded guilty, the appellant was sentenced to the rising of the court.

No appeal against his conviction was brought by the appellant within the time allowed after conviction for bringing an appeal, and indeed the present appeal was not brought until 1 October 1997. Accordingly, the appellant is obliged to seek an order extending the time for appealing. The Court ruled that it would defer deciding whether it should grant an extension of time for appealing, until after it had heard the appeal on its merits.

The late appeal was lodged by the appellant after the Royal Commission into the New South Wales police service by Mr Justice Wood had been held and had published its reports. The only ground of appeal is that "there is now available fresh evidence such that the appellant's conviction is shown to be a miscarriage of justice". The fresh evidence consists of evidence given at the Royal Commission about a police officer, Detective Sergeant Conrad Clifford Moores, who gave evidence for the Crown at the appellant's trial.

There was no issue at the trial that on 5 February 1990 a number of police had gone to an isolated area in the Pilliga State Forest and had found a large plantation containing not less than a commercial quantity of cannabis plants. However, there was no one at the plantation when the police went to it and the issue at the trial, so far as the appellant was concerned, was whether the Crown could establish that the appellant was implicated in the cultivation of the cannabis plants.

At the trial Detective Sergeant Moores gave evidence that on 4 May 1990 he, another police officer Detective Sergeant Cheers, and other police went to the appellant's home outside Coonabarabran. A warrant to search the appellant's property had been obtained by the police.

Counsel for the appellant at the trial objected to Detective Moores giving evidence of the finding of various objects at the appellant's property, submitting that the evidence should be excluded in the exercise of his Honour's discretion on the grounds that its prejudicial effect exceeded its probative value. However, Judge Hosking held that the evidence was admissible. Detective Moores then gave evidence of the finding at the appellant's property on 4 May 1990 of a number of items, including piping, a gas bottle, a water pump, hose fittings, a plastic drum and a gas primer. The possible significance of these items included that some of them could have been used in the cultivation of cannabis plants and that some of them were painted with a green camouflage paint, similar to paint which had been used to paint some objects found at the plantation. However, as his Honour stated during the argument as to the admissibility of the evidence of the finding of these items, possession by the appellant of these items could not by itself have established the guilt of the appellant. It was not alleged by the appellant at the trial that the items which Detective Moores said had been found at the appellant's property, had not been at the property or that they had been "planted" at the property by the police. It was, however, alleged by the appellant that there was an innocent explanation for his possession of the items and that evidence by Detective Moores of things allegedly said by the appellant when asked by police about the items, which could be reasonably regarded as tending to link the items with the plantation in the Forest, had been fabricated by Moores.

After the police had searched the appellant's property the appellant was taken to Coonabarabran police station.

At the trial the Crown sought to lead evidence that at the Coonabarabran police station the appellant had been interviewed by Detective Moores in an interview in which the questions asked by Detective Moores and the answers given by the appellant had been typed by a police officer named Williams so as to produce a record of the interview and that Detective Sergeant Cheers had also been present at the interview. The typed record of the interview had been signed on every page by the appellant and the appellant had then adopted the interview before Sergeant Burton, a police officer independent of the investigation, who was the senior officer on duty at the police station that day.

It was the appellant's case that he had participated in an interview at the police station, only as a result of threats made by Detective Moores in the police vehicle on the way to the police station and at the police station, to the effect that the appellant's wife would be charged and go to gaol and that the appellant would lose his children because they would be sent away to an institution. The appellant accepted that the first forty or so questions and answers set out in the signed record of interview had in fact occurred but he claimed that most of the rest of the questions and answers in the record of interview, which contained admissions by him of participating in the cultivation of the plantation in the Forest, had been fabricated by the police.

Counsel for the appellant at the trial objected to evidence of the interview and of the record of interview being admitted, on the grounds that the appellant had been induced to take part in the interview by threats made by Detective Sergeant Moores and that the answers given by the appellant in the interview had not been given voluntarily.

A voir dire inquiry was held to determine the admissibility of evidence of the interview. On the voir dire inquiry Detective Moores, Detective Williams, Sergeant Burton and a police officer named Lingier gave evidence for the Crown. In his evidence Detective Moores denied making threats and said that all of the questions and answers as set out in the record of interview had indeed been asked and given. Detective Williams gave evidence supporting Detective Moores' evidence. Detective Sergeant Cheers did not give evidence in the voir dire inquiry; he was on long service leave at the time of the trial.

The appellant gave evidence in his own case in the voir dire hearing. He said that in the police vehicle on the way to the police station Detective Moores had said to him:-

"If he didn't get what he wanted my wife will go to gaol and my kids would go away and I wouldn't see them for a long time and I would have a hard time getting them back".

The appellant said that at the police station Detective Moores had said:-

"I'll get the answers that I want in this interview because we have still got your wife and your kids are just at school".

The appellant alleged that similar threats had been made by Detective Moores before the appellant signed the record of interview. The appellant gave evidence that questions in the early part of the interview had been asked and had been answered by him as set out in the record of interview but that other questions and answers set out in the record of interview had been fabricated by the police.

At the conclusion of the voir dire inquiry the trial judge gave a judgment in which he concluded that the typed record of the interview was admissible. In his judgment the trial judge said that if the police had said anything even remotely resembling what was alleged by the appellant, the evidence of the alleged admissions by the appellant at the police station would have to be rejected. In his judgment the trial judge regretted the absence of any evidence from Detective Sergeant Cheers, who had been the only other police officer in the police vehicle which brought the appellant to the police station. However, his Honour accepted that the absence of any evidence from Detective Cheers was "devoid of any sinister overtones". His Honour noted that Detective Williams had not been in the police vehicle which had brought the appellant to the police station and found that the evidence given by Detective Lingier "added nothing" on the question of the admissibility of the record of interview.

In his judgment his Honour gave some weight to the evidence of Sergeant Burton, particularly because Sergeant Burton had been independent of the investigation, Sergeant Burton had spoken to the appellant while the investigating detectives were not present, the appellant had not made any complaint to Sergeant Burton and there had been little challenge to Sergeant Burton's evidence when he was cross-examined on the voir dire inquiry. However, his Honour described the claim, which he thought had inferentially been made by the appellant that there was no point in complaining to one police officer about the conduct of other police officers, as being "not unreasonable or illogical".

In his judgment his Honour also referred to the initialling by the appellant of an alteration to question 64 in the typed record of interview. An involved explanation had been given by Detective Moores in his evidence on the voir dire inquiry, about the circumstances in which the alteration had been made and initialled but it is unnecessary to go into the details of this explanation.

However, notwithstanding the other evidence which had been given in the voir dire inquiry, his Honour concluded his judgment by saying:-

"The fact of the matter is that, at the end of the day, I simply prefer the evidence of Detective Sergeant Moores and Detective Williams where it conflicts with that of the accused".

Detective Moores and Detective Williams then gave evidence in the presence of the jury that the appellant had been interviewed at the police station. They denied that any threats had been made and they denied that any of the contents of the record of interview had been fabricated. The record of interview was admitted and became an exhibit before the jury.

In his unsworn statement at the trial the appellant denied that he had had any involvement in the cultivation of the plantation in the Forest. He said that the items which police had found at his property had been left there by a man named Purnell and his partner. He told the jury that on the way to the police station Detective Moores had said:-

"Well, we've got your wife and we've got your kids and if we don't get everything we want out of you, whether you like it or not, I'll take your wife and she will go to gaol and I'll put your children into an institution and it will take a lot to get them back out again even when your wife is released".

The appellant said in his statement that he had answered the first forty questions or so as set out in the record of interview, that he had then demanded to see his wife who was at the police station and had been allowed to see his wife, that after he had returned to the interview room he had refused to answer any further questions, that the subsequent questions and answers in the record of interview, with one or two exceptions, had been fabricated by the police and that when he initially refused to sign the record of interview, the threats of what would happen to his wife and children had been repeated. The appellant told the jury that he could not see any point in complaining to Sergeant Burton about the behaviour of the other police.

In his summing up to the jury the trial judge referred to the claims made by the appellant that he had been threatened by the police and that the apparently incriminating answers in the record of interview had not been given by him but had been fabricated by the police. His Honour said to the jury:-

"It was put to police, Sergeant Moors in particular, it could not be put to Detective Cheers because he was not produced as a witness, that Mr Hasenkamp had been threatened that his wife would be charged unless they got their way with him. Well, members of the Jury, there is no halfway house here, if Mr Hasenkamp was threatened in that way the police conduct was disgraceful and the record of interview is not worth the paper it's written on".

Later in the summing-up the trial judge said to the jury:-

If you are not satisfied beyond reasonable doubt that the accused gave the answers of a confessional nature, or at all, in the record of interview but for one or two questions in the 70s about the purchase of the pump, if you were not convinced beyond reasonable doubt, not satisfied beyond reasonable doubt, that the record of interview, exhibit 194, is a genuine document, well, you would stop there again and you must acquit the accused Hasenkamp".

There was filed in support of the appeal an affidavit by a solicitor from the Legal Aid Commission, to which was annexed twenty-seven extracts from transcripts of evidence given in 1996 in the Royal Commission into the New South Wales police service. These extracts show that witnesses before the Royal Commission, who were police officers, said in their evidence that Detective Moores had engaged, in conjunction with other police officers, in conduct of the following types:-

(i) Seizing sums of money in premises being searched by the police and participating in a distribution of the money among police officers.

(ii) Stealing other property found during searches of premises.

(iii) "Loading" persons with drugs, charging them with possession of the drugs and "verballing" them.

(iv) Seizing drugs, not recording the seizure and participating in a distribution of the drugs, or the proceeds of a sale of the drugs, among police officers.

(v) Seizing drugs and cash, not charging the offender with any offence but participating in a distribution of the cash among police officers.

(vi) Soliciting and accepting bribes not to lay criminal charges.

None of the evidence which has been extracted is about the present case. None of the evidence contains any allegation that on any other occasion Moores made threats in order to induce a person suspected of a crime to take part in a recorded interview. The evidence does contain allegations that on other occasions Moores was a party to fabricating false evidence, including alleged oral admissions. Although two of the transcripts include evidence given by Moores himself, there are no, or only very limited, admissions by Moores of any improper conduct on his part. However, notwithstanding the qualifications I have expressed in this paragraph, the extracts contain detailed evidence of many improper acts by Detective Moores, which could form the basis for cross-examining him on his credibility and which could have formed the basis for cross-examining him on his credibility at the appellant's trial.

On this appeal the Court was referred to a number of previous decisions of this Court, where an appeal against conviction has been based on fresh evidence consisting of evidence given before the Police Royal Commission about one or more of the police officers who gave evidence for the Crown at the appellant's trial. We were particularly referred to the decision of this Court in R v Vastag (unreported 20 June 1997) in which Levine J gave the principal judgment.

It would appear from Levine J's judgment in R v Vastag that the Crown relied in that case on a passage in my judgment in R v Beattie (1996) 40 NSWLR 155 at 162-3 "as providing authority for a general test that if the material in the Royal Commission relates merely to complaints or allegations, presumably unconnected with the subject matter of the particular trial, the matter would not be admissible".

As this part of my judgment in R v Beattie has apparently given rise to some misunderstanding, I would like to say that in my judgment in R v Beattie I did not intend to lay down any such general test. A point I was seeking to make in my judgment in R v Beattie was that, where a witness at the Royal Commission (for example, in that case Mr Bayeh or witness KX11) has said in his evidence before the Royal Commission that a police officer has engaged in some discreditable activity such as could rationally be regarded as having a substantial probative value in assessing the police officer's credibility as a witness, then in a trial in which that police officer gives evidence and is cross-examined, a question in cross-examination based on evidence given about that police officer in the Royal Commission should not be in the form "did Mr Bayeh (or witness KX11) say in his evidence before the Royal Commission that you engaged in (that discreditable activity)". I remain of the view that a question in this form is objectionable, unless it can be brought within one of the exceptions to the hearsay rule of exclusion in Pt32 of the Evidence Act. I was not suggesting in R v Beattie that evidence given by a witness at the Royal Commission tending to show that a police officer has acted discreditably could not provide a foundation for asking questions in proper form based on that evidence, in cross-examination of that police officer at a trial.

Adopting what was said by Levine J in R v Vastag and by Gleeson CJ in R v Hastings (unreported Court of Criminal Appeal 29 September 1997), the question in the present appeal is whether there is a significant possibility that the appellant would have been acquitted if the new evidence had been before the trial court, the onus lying on the appellant to demonstrate a miscarriage of justice resulting from the absence of that evidence. In my opinion the question should be answered affirmatively in favour of the appellant.

As the trial judge directed the jury in his summing-up, the admissions allegedly made by the appellant in the interview at the police station were an essential part of the Crown case. If evidence of the alleged admissions had not been admitted by the trial judge or if, evidence of the alleged admissions having been admitted, the jury had considered that it was reasonably possible that the appellant had been threatened as he alleged or that the alleged admissions had been fabricated by the police as he alleged, then the appellant would have been entitled to an acquittal.

There is a significant possibility that if the evidence about Detective Moores' many improper acts as a police officer had been before the trial judge in the voir dire inquiry, the trial judge would have reached a different conclusion in the voir dire inquiry and would have ruled that evidence of the interview and of the record of interview was inadmissible. Detective Moores was the principal Crown witness in the voir dire inquiry. Detective Sergeant Cheers, the only other police officer present when the appellant said that threats had been made to him in the police vehicle, did not give evidence in the voir dire inquiry. Although the trial judge gave some weight to the evidence of Sergeant Burton, his Honour thought it was not unreasonable or illogical for the appellant to have adopted the attitude that there was no point in complaining to Sergeant Burton about the conduct of the other police officers.

It is true that Detective Williams gave evidence in the voir dire inquiry, supporting Detective Moores' evidence. However, Detective Williams was not present when the appellant said that threats had been made to him in the police vehicle. Detective Williams was present, when the appellant said that threats had been made to him at the police station. However, Detective Williams was junior to Detective Moores and subject to the authority of Detective Moores. Detective Williams' role in the interview was limited to acting as the typist. Detective Williams is himself adversely mentioned in one of the extracts of evidence annexed to the affidavit by the solicitor from the Legal Aid Commission.

Even if evidence of the interview and of the record of interview had been admitted, there is a significant possibility, Detective Moores having been the principal Crown witness not only in the voir dire inquiry but in the trial itself, that the jury, if the additional evidence about Detective Moores' many improper acts as a police officer had been before them, would have concluded that it was reasonably possible that the appellant had been threatened as he alleged and that his alleged admissions had been fabricated by the police as he alleged and, indeed, that his earlier alleged admissions at his home about the items found there had been fabricated by the police, and that in these circumstances the jury would have acquitted the appellant.

In my opinion, the time within which to appeal should be extended to 1 October 1997 and the appeal against conviction should be allowed.

The question arises whether the verdict of guilty should be quashed absolutely or whether a new trial should be ordered. In upholding the appeal I have held only that, if the additional evidence had been before the trial court, there is a significant possibility that the appellant would have been acquitted. Ordinarily, I would have been of the opinion that an order should be made for a new trial. However, in the present case the appellant, when he was released on bail on 15 October 1997 pending the hearing of this appeal, had served all but ten days of the minimum term under the sentence imposed by Judge Hosking and in these special circumstances I am of the opinion that the verdict of guilty should be quashed absolutely and that no new trial should be ordered.

Since preparing this judgment I have had the advantage of reading in draft the judgment of Simpson J, who agrees that the appeal should be allowed but considers that a new trial should be ordered. However, after having read and considered her Honour's judgment, I remain of the view that the circumstance that the appellant served all but ten days of the minimum term of four years five months is a compelling reason for not ordering a new trial. In my opinion the verdict of guilty should be quashed absolutely and no new trial should be ordered.

GROVE J: I agree with James J. I have also had the opportunity to read in draft form the judgment of Simpson J and have noted her reasons for concluding that a new trial should be ordered.

The Court is unanimous that the appeal should be allowed. Section 6(2) of the Criminal Appeal Act operates:

"6(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."

The proviso to that subsection attracts reference to s 8(1) namely:

"8(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make."

I do not consider that the existence of prosecutorial discretion is a relevant factor to be taken into account in the exercise by this Court of the discretion vested by s 8(1). It is after this Court orders a new trial (if it does) that the prosecutorial discretion will be exercised in determining whether such a trial does in fact take place.

It has been a longstanding practice of the Court not to exercise discretion to order a new trial where the sentence imposed as a result of the quashed conviction has been served. I would adopt a similar approach if substantially all of a sentence has been served or substantially all of the custodial portion of any such sentence. The appellant has served all but ten days of the minimum term element of the sentence imposed on him in the District Court: cf Regina v Piazza unreported CCA 16 June 1997. It was long ago said that the Court ought not lay down any general proposition to govern each class of case: R v Murphy (1913) 30 WN (NSW) @ 173 and my observation as to practice is not intended to suggest that discretion is not to be exercised to meet each case individually. However I am unpersuaded that the interests of justice require a new trial to be had in the present circumstances: DPP (Nauru) v Fowler [1984] HCA 48; 154 CLR 627; R v Ward 1989 42 A Crim R @ 77.

I am unable to share the view that a discrete approach (whether or not directed towards a goal of a segregated consistency) should be developed to accommodate any apprehended influx of appeals deriving from investigations by the Royal Commission into the New South Wales Police Service. I would not see it as inappropriate if a particular appellant in such a case who had served or substantially served the custodial portion of a sentence consequent upon a now quashed conviction should have an order as contemplated by s 6(2) whereas an appellant, again in such a case, who had not so served may be ordered to undergo new trial.

SIMPSON J: I have read in draft the judgment of James J and agree that the time within which to appeal should be extended, the appeal allowed and the conviction quashed. I am, however, of the view that the consequential order that ought be made by this court is for a new trial rather than a direction for the entry of a verdict of acquittal. Such an order is not necessarily conclusive that a second trial will proceed; whether a trial so ordered is to take place is a matter within the discretion of the Director of Public Prosecutions.

Apart from the power conferred on this court to direct the entry of a verdict of acquittal or to order a new trial following a successful appeal, the prosecutorial discretion is, as I have previously observed (R v Peters and Heffernan (1995) 83 A Crim R 142, R v Crisologo, unreported, CCA, 12 December 1997) an administrative one entrusted to the Director of Public Prosecutions and to the Attorney General: Director of Public Prosecutions Act 1986, ss 7, 30.

While there are many cases in which the interests of justice will best be served by the decision of this court to direct a verdict of acquittal as opposed to ordering a new trial (as, for example, where the evidence adduced by the Crown at the trial the subject of the appeal is inadequate to sustain a conviction), where there are competing considerations tending either way there is, in my view, considerable value to the administration of criminal justice in retaining the clear division of functions between this court and the Office of the Director. The most persuasive factor tending against ordering a new trial in the present case is the fact that the appellant has served all but ten days of the minimum term previously imposed. It is unlikely that conviction following a second trial would result in his further incarceration. The costs of a second trial are likely to be high, both for the Crown and for the appellant.

There are, however, other factors to be taken into account. In determining whether or not to order a new trial the court is obliged to take into account the public interest in the administration of justice: Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627. One relevant consideration in that respect is the public interest in the conviction of those engaged in illegal activity, whether or not, as in the present circumstances, the recording of a conviction results or is likely to result in a further term of imprisonment. Further, conviction has the capacity to trigger the use of the procedures provided for by the Confiscation of Proceeds of Crime Act 1989. Whether the authorities would wish to avail themselves of those procedures is not known to this court, but is, in my opinion, a legitimate matter to be taken into account.

One potentially countervailing factor is the strength (or otherwise) of the Crown case, given the circumstances now known to surround the evidence of a significant, if not principal, Crown witness. This is not a matter about which this court can be confident that it is in possession of all relevant information. James J has referred to the absence in the trial of the evidence of Detective Sergeant Cheers. It may be that any deficiency now perceived in the Crown case by reason of doubt cast upon the credibility of Detective Sergeant Moores could be rectified by the simple expedient of adducing evidence of the relevant facts through Sergeant Cheers. To take this approach is not to transgress the injunction against giving the Crown an opportunity to make a new case that is to be found in Gerakiteys v R [1984] HCA 8; (1984) 153 CLR 317, 321 and 330 and King v R [1986] HCA 59; (1986) 161 CLR 423 at 433. All the Crown would be doing would be seeking to prove the case it originally sought to prove through additional or alternative witnesses. The strength of the Crown case as it stands in the light of current information is best assessed by the Director. I am of the opinion that the Crown should have the opportunity to proceed on that basis if it so wishes.

To repose the determination whether or not to proceed to trial in one officer, the Director of Public Prosecutions, who has the power to issue guidelines to those to whom the prosecuting authority may be delegated (DPP Act s 13) is likely to be conducive to desirable consistency in the exercise of the prosecutorial discretion. The Director, or his delegates, may have access to other relevant information not available to this court.

There is a further consideration relevant to the present circumstances that militates in favour of leaving the final decision with the Director. This is not the first, and is unlikely to be the last, case in which this court allows an appeal and quashes a conviction as a consequence of evidence given to the Royal Commission into the NSW Police Service. It is a matter of notoriety that the credibility of a number of police officers who have given evidence in criminal trials in this State over the years is now questionable. It is inevitably for this court to decide, in each case that comes before it, whether the material that was before the Royal Commission is sufficient to warrant the quashing of the conviction. But it is desirable that a consistent approach be developed and adopted in relation to the consequences that follow. This is best achieved by leaving the decision whether the whole of the circumstances warrant further prosecution of the offence charged in the hands of the Director.

I would grant leave to appeal out of time, allow the appeal, quash the conviction and order a new trial.