REGINA v. SUEY [2001] NSWSC 543

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: The applicant Ronald James Suey was convicted, having been found guilty by a jury after a trial in the District Court of New South Wales, of some nine indictable offences. Counts one and two were charges, first, that he possessed an offensive weapon with intent to commit an indictable offence, and, second, that he committed the specially aggravating break and enter offence provided for by s.112(3) of the Crimes Act 1900. Counts three to nine involved charges firstly of abduction, and otherwise of aggravated sexual intercourse without consent. All of such charges were said to have been committed in relation to a young person who for the purposes of this judgment and later proceedings, shall be described only by the initials LT. 2 The barest summary of the events said to have given rise to the applicant's conviction, is that he and three others had gone one night in November 1996, to a remote country community household with a shotgun, either, on his account to buy drugs, or on the Crown case, to commit armed robbery of the householder, a person who it was believed, to be a drug dealer. On their arrival, the householder was not present, a person Steven Canfell was. 3 It appears to be the case that at one or other door of the house, a person said to be the applicant gave his name and sought entry to effect some sort of dealing with the householder. It was the Crown case that a shotgun was discharged from outside the house causing injury to Steven Canfell, who fired a .22 rifle. An issue has been raised about whether there was one shot from the rifle or two, and whether the shotgun was ever fired. 4 On the Crown case, two of the men who had arrived outside the house entered the house, one with the shotgun. That person in the Crown case was the applicant. In circumstances of severe violence, it is the Crown case that the applicant seized round the neck the complainant LT, and dragged her from the house in circumstances which did not admit of any lack of knowledge on his part that she was being abducted, that she was placed in the vehicle by which the four men had come to the premises, and driven off. Thereafter she was sexually assaulted in circumstances in which provide the basis for the last six of the counts. The applicant's actions toward her founded an alleged direct and principal responsibility in him for the sexual behaviour charged in certain of the counts, and as to other counts, he was alleged to be complicit in the sexual behaviour of the others. All of this behaviour was plainly on the Crown case, such that she was not consenting to it. 5 The vehicle was in due course the subject of police attention, and the various accused and the complainant removed from it. The applicant was arrested, taken to the police station, questioned, photographed, and his possessions and clothing photographed. 6 At trial he gave evidence, denying the charges and the complainant's account. He asserts that in some aspects at least of the conduct of the trial, his counsel and prosecution and the police officers acted in such a way as to deny him a fair trial, or so as to produce evidence falsely created or so as to conceal true evidence. He had appealed not only in respect of his conviction on each count, but also in respect of the sentences imposed upon him which in total, resulted in a sentence of some 20 years penal servitude, comprising 15 years minimum term, and five years additional term, within which total sentence is embraced, the sentences for all the counts I have referred to. 7 On the appeal to the Court of Criminal Appeal he filed a large number of leverage folders comprising affidavit evidence said to be fresh evidence and provided one large lever arch folder comprising submissions. As well, there are the three volumes of appeal book containing transcript, summing up and so forth and the Crown has filed substantial affidavits in response. 8 The grounds of appeal have been on a number of occasions amended. Those grounds of appeal as filed, at the commencement of the preparation of the appeal, were a nine page document which embodied some 12 grounds of appeal, the first of which contained numerous sub-grounds and which was devoted to assertions of impropriety on the part of the police and the prosecution, the second of which raised questions of competence and propriety on the part of the applicant's legal representatives, and which also contained numerous sub-grounds. 9 In addition, amongst the grounds then raised were grounds that the verdict should be set aside as unreasonable or unable to be supported, that the informant interfered with the jury, that one of the witnesses to the presence of the applicant in the premise was improperly permitted to give evidence, she being 10 years of age, that the trial judge failed to exclude certain evidence, and failed to have regard to certain matters affecting other evidence that should have resulted in different directions in the summing up. There was a ground asserting, as far as the second count was concerned, and inadequacy at least in the trial judge's summing up concerning the facts, and an assertion was made of the trial judge's summing up being unfair or biased. 10 One further ground related to DNA evidence tendered at the trial, and it was asserted that the trial had miscarried in that a defence expert who gave evidence that the absence of the applicant's DNA in certain swab samples taken after the event from the complainant, meant that the applicant should be excluded as having been involved in the offences charged. It was asserted as a corollary that this matter was not adequately explained to the jury in the summing up, and a further ground was asserted, which I apprehend is now no longer persevered with, that there should have been a discharge of the jury because of what appears to be an otherwise inconsequential remark. 11 On the appeal, the grounds have been amended some what. The second amended grounds of appeal which I will not refer to in detail, were filed on 7 February 2001. Those grounds however, persevere with the general nature of the criticisms made in the original grounds of the appeal of the prosecution, of the defence representation, and of the conduct of the trial. When the matter came before the Court of Criminal Appeal, it was set down to be heard over one week, that in consequence of the large number of affidavits filed by both sides, dealing with matters of fact raised by these various grounds of appeal. 12 A preliminary question arose as to those matters of fact which might be relevant to the decision on appeal, as to what affidavits might go to those matters, and as to whether the application of the fresh evidence test would exclude certain of the evidence sought to be tendered. It became apparent that a substantial enquiry would be necessary to refine and define the issues such as to be able to sustain admissibility and to determine the application of the fresh evidence test to the material. 13 In consequence, after hearing from the parties, the Court of Criminal Appeal exercised its discretion to remit to a single judge of a court of trial, those issues of fact thrown up by the affidavits to the intent that the issues would be ascertained and what evidence might relate to those issues ascertained, and the questions of fact as far as possible resolved. The matter was complicated some what by the unavailability of the deponents of some of the affidavits including counsel who eventually appeared for the applicant at the trial who was in a coma in hospital, and the Crown's instructing officer who also, but for other reasons, was hospitalised. 14 The matter was remitted to me, in that I was the judge assigned, and that course I was told had the approval of the parties since I had read the material, as it was filed on the appeal for the purposes of the appeal. When the matter came before me in consequence of the listing of that remitter to ascertain how the matter might be conducted and for directions, the applicant had taken up the suggestion that had fallen from the bench during the examination of the proposal to remit, and had applied for an enquiry pursuant to s.474D of the Crimes Act 1900. It was agreed between the parties that I should consider that application in conjunction with the remitter. I have been authorised by the Chief Justice to exercise the jurisdiction of the court under s.474O in that regard. 15 I have subsequently received written submissions from both parties, and there have been a number of hearings seeking further clarity in what might be the issues to be examined on the remitter and on any such enquiry. I turn to consider whether there should be an enquiry. 16 It is not necessary in this short judgment that I review in detail the law applicable to deciding whether I should or should not direct an enquiry. I have set out the applicable legislation and case law in such other of my decisions as The Application of Bernard Lewis Moore [2000] NSWSC 364 (4 May 2000)and The Application of Raymond Grant Pedrana [2000] NSWSC 975. 17 The Court of Criminal Appeal has had regard recently to matters referred to that court following enquiries in the burgeoning jurisprudence (as it has been referred to) following the recent report of the Royal Commission into the Police Service. That case law is to be found discussed in those two decisions, in the decision of Court of Criminal Appeal, Regina v. Pedrana [2001] NSWCCA 266 and the decision of Regina v. Johns [1999] NSWCCA 206. These are only some of the authorities that of recent years have set forth the principles to be looked at when considering whether an enquiry should be directed. 18 The question is whether I am of the view that there is a doubt or question as to the accused person's guilt, as to any matter of mitigation, or as to any part of evidence in the case (s.474E). It has been long held in relation to s.464E and its predecessor s.475, that if there is a sense of unease or disquiet concerning some such matter at the trial as is material to the issue of the applicant's guilt, that an enquiry should be directed. That formulation comes from the test considered by Hope, JA. in Varley v. Attorney General (1986) NSWLR 30 at 48, and Kirby, P. at 35 (see The application of Harry Rendell (1987) 32 A. Crim. R. 243). 19 In Canellis v. Slattery, (1994) 33 NSWLR 104, Clarke, JA. raised the issue of whether or not an enquiry should be confined to a discrete area of the evidence about which a doubt or question might exist. As I have said Pedrana (supra) at paragraph 28, and in Moore (supra) at paragraphs 4 to 6, I consider that the better construction of the section is that it is to apply to parts of the evidence which have some real material substance as effecting the conclusion of guilt for the reasons I gave in those paragraphs. 20 A document comprising some 138 topics for investigation was provided by counsel for the applicant. Upon such analysis of that material as I have been able to make, and after some degree of debate as to the appropriateness of that document, some five or six general areas of issue were propounded. On those, I have received written submissions from both counsel, although as to those there are some submissions by the Crown that it is not appropriate that they be dealt with on an enquiry but rather on an appeal. It turns out after further examination of the issues today, that those matters are embraced by matters appropriate for a factual enquiry. 21 Initially, the Crown seemed to suggest to me, that it would be appropriate to proceed if there were to be an enquiry and my being appointed to conduct the enquiry at the same time dealing with the remitter. Later, it seemed to be suggested that proceeding initially with the enquiry was the more appropriate course. 22 Section 474E(1)(a) confers upon the Supreme Court in considering an application, the power to defer that consideration, until after an appeal is finally determined. Still later in those written submissions most recently filed, the Crown had appeared to suggest that the appeal should proceed to be finally determined prior to there being an enquiry. During however the submissions that were put to me orally today, it seems to be accepted that were I of the view on the material as it now stands and which I have read in preparation for the appeal, and on the application for the enquiry, that I have a doubt or sense of unease about major aspects of the evidence so far as they might undermine the conviction. I should at this stage and without deferring until an appeal is finalised, direct an enquiry and have regard to the materials filed on the appeal for the purposes of the remitter, if it should be necessary to do so. I say that because counsel for the applicant has confirmed today that which he had said to me on a prior occasion, and which he has undertaken to confirm in writing by way of a document signed by his client, that it is his client's intention that the factual matters that might otherwise have had to be investigated on the appeal should there be an enquiry, will not be persevered with, otherwise than as might be the subject of a report to the Court of Criminal Appeal, under Part 13A of the Crimes Act. 23 Having regard to those matters, the Crown has not persevered with any opposition to the enquiry, if it is to be ordered, proceeding now. I have read the Crown's submissions that the appellant's evidence that he was wearing a black beanie, should dispose of any doubt or unease or sense of disquiet that might of existed as to the identification of the appellant, as the man that entered the premises with the shotgun, as the man that was the principal in a number of the sexual misbehaviour counts, and as the man who was complicit in the balance of the sexual misbehaviour counts. 24 There is however sufficient in what has been raised concerning the presence of a black beanie, and in what has been raised by way of assertion as to the asserted incompetence or improper defence of the applicant such as in my view to warrant investigation of those matters. It is not the case when considering whether or not there should be an enquiry, that one would only direct there to be an enquiry if persuaded that the convictions would or might be overturned. That is to give far too much significance to the concept of there being a sense of unease or disquiet, and to adopt that approach would mean that even where evidence has unsatisfactory features, and which yet might result in an undermining of the adequacy of the material on which the conviction was based, no enquiry be made into those features. 25 Here, real questions it seems to me worth looking at, though not necessarily answering in favour of the applicant, arise concerning whether he was or was not the person that entered the premises with the gun, whether he was at the premises with the pleaded intent to rob, whether he was the person who abducted the applicant, whether he did participate personally in the sexual behaviour, and whether he was complicit in the sexual misbehaviour of the others. 26 These are such large questions, the latter group of which are particularly likely to be affected by the credit of the complainant and how the DNA evidence might relate to that credit, that it seems to me that the appropriate course is to direct an enquiry into whether a doubt or question arises as to the guilt of the applicant, or as to any mitigating feature such as might go to the question of sentence. Such an enquiry would look at the guilt of the applicant in relation to each of the counts of which the applicant was convicted, although it would seem to be the case that the latter group of counts, counts three to nine involving the abduction and the sexual misbehaviour, may be capable of being dealt with discretely from the other counts. 27 It is not necessary in this regard that I review in detail the Crown's submission, that the account given in evidence by the applicant was such nonsense that no rational jury would have entertained any doubt of his guilt having heard it. Nor need I review in detail the Crown's submissions that there are adequate explanations for the evidence concerning the taking of the high vaginal swabs, and the absence of any of the applicant's DNA, or anything but a trace of the applicant's DNA on those swabs that were taken. It is not necessary for the purposes of deciding whether there should be an enquiry into the matter to examine the rival contentions as to the significance of the absence of a bum bag and money the applicant asserted he had with him that evening, in order to buy drugs from the householder, nor as to whether there has been some substitution of one sawn off shotgun for another. These are questions that it would seem on the affidavit material and the submissions put to me, might have to be dealt with on the enquiry. 28 On the enquiry of course, it is accepted by both counsel that it is open to the Crown to call further evidence, including evidence of co-accused, more modern evidence concerning DNA, and evidence of further testing of the swabs that were taken. This list is not exhaustive. It is accepted by the applicant's counsel that the conviction might be supported on further evidence, the Crown might now make available. It is accepted by the Crown that the enquiry may go so far as to examine issues of whether there has been a procedural miscarriage in that that would mean that the relevant convictions did not establish guilt. 29 Given those matters, the applicant's decision not to persevere with the appeal in so far as the subject matter of any grounds of appeal might be covered by the enquiry is entirely understandable, and the Crown's acceptance that the enquiry should not be deferred to await an appeal is also entirely understandable. I have those matters in mind when I publish these short reasons for the decision which I now express. 30 Since I am of the view that on the material raised a doubt or question in the sense referred to by the authorities arises as to the convicted person's guilt, as to mitigating circumstances in the case, and as to parts of the evidence in the case, I direct that an enquiry be conducted by a prescribed person in accordance with s.474E(1)(a), and that that enquiry be conducted in accordance with s.474G. Is there anything further?

(Discussions relating to abandoning certain grounds of appeal that have been duplicated). 31 HIS HONOUR: I will have the Chief Justice notified of the order or direction that I have made, and I have already indicated to you that he has intimated that I should be appointed to conduct the enquiry. Neither of you have any objection to that course as I understand it. I would then ask whoever is appropriately handling such a matter in the department, as opposed to the office of Director of Public Prosecutions, to contact me on the morning of 23 or 24 July so that we can work out the questions of who needs to come and so forth. 32 I formally request assistance at the enquiry. I am not sure whether my own views as to appropriate assistance or as to any particular person to be asked to assist have direct relevance to this or not. I will have made some short enquiries to see who might be available, skilled in this area, and particularly skilled in the area of what is said to be police planting evidence and so forth, with experience from the Royal Commission and the experience in assisting with enquiries. I will have counsel assisting contact the parties. *********

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