37 Counsel for the State subjected the plaintiff's account of the interview to close scrutiny in cross-examination.
38 One of the matters identified by counsel for the State as being of significance was the lack of cross-examination at committal or trial of Hannay and Eastwood that the plaintiff had told them that Gollan 'chucked a fit and blood flew out of his nose and mouth and splattered on the wall' and the omission of that material from the unsworn dock statement made at trial.
39 The blood splatter in cell 210 'B' in which Gollan was assaulted was a circumstance relied upon by the Crown to prove that the plaintiff with Nicholson rammed Gollan's head against the cell wall. The staining of the cell wall assumed early significance in the investigation of the crime. Hough, went with Hannay to the cell on the same day as the assault and gave evidence in the present proceedings that he saw just above the pillow area of the bottom bunk blood splatter going up the wall to about 600 millimetres. It was spreading out in almost a 'fan shape' and went almost, to the next bunk, up the wall (T331). He discussed with Hannay that the impact of the head on the wall would need to be "very, very significant to cause that amount of blood to splatter up that far up the wall" (T332). Detective Sergeant Johnson (Johnson) of the scientific investigation section photographed the staining on the cell wall on the next day which in his statement he described as appearing to be similar to a "splash pattern". The photocopies of photographs tendered in the present proceedings (exhibit 2) regrettably are of poor quality and were described by Hough as not representing the full extent of the blood splatter on the wall.
40 Hannay and Hough interviewed the plaintiff on the 28 August 1986 (the first interview). The running sheet (exhibit C volume 1 at 85) records that "Thomas was shown photographs of the blood splatter on the wall next to the pillow on the bottom bunk where he agreed he had placed his head and would not give any explanation as to how this blood got there." The plaintiff agreed in cross-examination that during the interview he explained that he would not give the police any explanation as to how the blood splatter came to be on the wall (T 132).
41 Mr Peluso of counsel represented the plaintiff at trial. A perusal of the transcripts of the trial and committal does not reveal any questions being asked of Hannay or Eastwood of the plaintiff's revelation to them of the expectoration of blood from Gollan's nose and mouth onto the wall nor did the plaintiff make express reference to it in his dock statement.
42 Counsel for the plaintiff points, however, to the inclusion in the dock statement by the plaintiff that he lifted Gollan onto the bed gently, that "Mr Gollin (sic) was still having troubles, he was making gargling (sic) sounds". The plaintiff had earlier referred to "choking sounds" coming from the person lying on the floor (see exhibit C volume 2 at 111). The plaintiff contends that the blood splatter is consistent with these statements.
43 It seems to me to be surprising that if the plaintiff had provided at the interview on 26 September 1986 an explanation of the blood splatter on the cell walls consistent with innocence that this matter was not put by his counsel to Hannay or Eastwood and was not expressly referred to by the plaintiff during his statement from the dock.
44 This is to be contrasted with the plaintiff's description in evidence given on 1 June 1998 in proceedings by Gollan for personal injury damages, of Gollan starting to "fit and blood started spattering all over the walls from his nose and mouth………" (T 93 L 48-50). There were inconsistencies, in the plaintiff's evidence given before this Court and in the Gollan civil proceedings. The plaintiff described himself as a hostile witness in Mr Gollan's action and egregiously said he "could have said I believe in the man in the moon" (T 96 L 2 - 3).
45 The credibility of the plaintiff's evidence of $10,000 being mentioned was subjected to attack by counsel for the State as it had not been referred to in his dock statement or cross-examination at the criminal trial. The plaintiff initially explained he did not tell Mr Peluso until after the criminal trial which was subsequently changed to his thinking he might have told him before the trial. He explained it was not referred to in the dock statement as he did not feel it was important at the time. The plaintiff said that Hannay threatened to bash him (at the first interview) and someone gave him a 'bit of a clip'. He did not report it because it was a waste of time. Hannay, he agreed, was not challenged at the trial about his being bashed.
46 Snell, the plaintiff said, in the first interview said to Hannay "Let's fit him up. We know he's done it" (T 125). He agreed not one word along those lines emerged during the committal, trial or dock statement. In further cross-examination he conceded that Snell was not present at the first interview. A concession had been previously made that his earlier nomination of Eastwood as being present was incorrect.
47 Without dilating further on the cross-examination, it was evident that the plaintiff's recollection of events was in a state of confusion. Inconsistencies and changes in position undermined his credibility. He was not an impressive witness. In making this assessment, I have made due allowance for the substantial lapse of time since the Gollan assault and state of his health. The plaintiff in particular described serious injuries sustained in 1991 and his current bad health.
48 I do not accept the plaintiff's allegations in the present proceedings of police violence and corruption not raised during his criminal trial. The assertion that he, a regular inmate of the prison system, would be asked for a substantial sum of money as a bribe is plainly implausible. These allegations, in my view, were made to enhance the perception of police misconduct.
49 Although the plaintiff was an unimpressive witness he has constantly denied (save for the alleged admissions) involvement in the attack upon Gollan. During the first interview, he told police he saw Gollan lying on the cell floor with a large amount of congealed blood under his head. Gollan was gargling and urinating. With Nicholson's assistance, he lifted Gollan from the floor and placed him on the bed facing out. He then informed a prison officer that Gollan needed assistance. The plaintiff's denial was maintained throughout the committal and trial. He has consistently denied making admissions during the second interview. In the course of the dock statement he said that "he told Mr Hannay the truth from the very start but he wasn't interested in that". (Exhibit C volume 2 at 116).
50 Thomas Ross Eastwood is the fountainhead of the assertion that the oral admissions said to have been made by the plaintiff on 26 September 1986 were fabricated. It was his evidence which triggered the events leading to the appeal to the Court of Criminal Appeal. His affirmative answer before the Commission to the question, "Did you verbal Mr Thomas?" could only be understood to mean that he was representing that he had falsified an oral confession by the plaintiff. The only interview of the plaintiff he had participated in was that conducted by Hannay at Parramatta police station on 26 September 1986. His credit is of significance in this case. Either Eastwood told lies at the plaintiff's trial or to the Commission.
51 Copies of the relevant evidence are exhibits D and 10 in the present proceedings.
52 Eastwood presented as a diminished man. It appears he has been on witness protection for a number of years. He had no recollection of the interview conducted on 26 September 1986, nor of the evidence he gave to the Commission involving the plaintiff. In cross-examination he agreed that pressure had been exerted upon him by Royal Commission investigators to provide information and had formed the view if he did not co-operate he would almost certainly go to gaol. He was suffering from depression at the time and had attempted to commit suicide shortly prior to giving evidence on 8 March 1996.
53 Eastwood, however, was resolute as to the use of his duty book to jog his memory before the Commission. Counsel assisting the Commission would have gone, he said, to a particular page in the duty book because he would have indicated it to the Commission's investigator at an earlier time.
54 He was referring to counsel assisting the Commission's request for document 1711747 to be brought up "on the screen". This document was a copy of Eastwood's duty book for Friday 26 September 1986. The entries in the book for that day include:
"…….then with Det Hannay interview Bruce Malcolm Thomas born 19.9.47……" (exhibit C volume 1 at 020).
55 He was asked (T 563):
"Q. And if the evidence was there would you agree that on your understanding of the verballing process back in 1986 there would be no need to verbal; was that your understanding?
A. Well, if the evidence was there there would be no need to verbal."
56 He agreed he had no recollection of how strong the prosecution case was before he gave evidence to the Commission. He was subsequently asked (T 568 - 569):
"Q. And would you agree that in terms of your admitted involvement in verballing suspects up to 1996 when you were a police officer, you may have in fact simply got it wrong as to who was verballed on what day and who was with you?
A. No.
Q. When you say no, the reality is you're not in a position today to be able to even deny that last question I asked you, are you?
A. I don't believe I'm wrong.
Q. You're not in a position to deny it, are you?
A. I said I don't believe I am wrong."
57 It is clear that Eastwood was not mistaken in his recollection who it was he was saying to the Commission was verballed. He was asked by the Commissioner (see exhibit 10 p 21616):
"Q. Was Mr Thomas convicted?
A. Yes, he was, your Honour.
Q. To your recollection, would he have served that sentence by now?
A. Possibly, your Honour.
Q. I take it he was already serving a sentence?
A. He was serving a sentence at the time and, like, the bashing happened in gaol and he was convicted some time after this incident and I think he was given seven years, I think.
Q. On top of the existing sentence or concurrent?
A. I'm not certain of that.
Q. I take it was a fairly serious assault?
A. Yes. He made the fellow a vegetable, yes."
58 Gollan suffered extensive brain damage in the assault.
59 Eastwood had told the Commissioner that there were more cases in which his evidence had been more untruthful than truthful (T 563). How he came to identify in 1996 by the use of his duty book that Thomas had been verballed was not explored before the Commission nor does it appear that his evidence was challenged. He agreed in this Court that he had been involved in numerous matters in which he had verballed suspects or persons of interest and there was nothing exceptional in his mind which stood out as to what occurred on 26 September 1986 (T 586).
60 Notwithstanding Eastwood's revelations to the Commission, Hannay was neither advised by representatives of the Commission of the evidence nor was he provided with the opportunity to challenge what Eastwood had said.
61 Hannay in the present proceedings gave evidence that on the 25 September 1986 after the interview of Mitchell Winefield (Winefield) he, Snell, Brown and Eastwood discussed the appropriate charges that would be preferred against the plaintiff, Winefield and Nicholson the next day. He said:
"Regardless of what was going to be done, whether they partook in an interview or not, they would have been charged with those offences as of the 25th" (T 636).
62 Snell supported this evidence. He said on the evening of the 25th, he conferred with Hannay and Brown and they all agreed that they had sufficient information to charge the three offenders with attempt murder regardless of what might be said the following day by the plaintiff and Nicholson (T 520). A charge of malicious wounding was to be a back up charge.
63 Winefield had participated in a record of interview conducted by Snell in the presence of Brown on the evening of the 25 September 1986. The interview was recorded by Brown on a typewriter. During the interview Winefield said that "Thommo" told him they grabbed Gollan and "through (sic) him up against the wall." And "One held the top half of him and another held him by the legs, they threw him head first into the wall." (see exhibit C volume 1, Q 44 at 143 and Q 63 at 147).
64 Hannay said that on the 25th he knew that Winefield was going to plead guilty and was to give evidence against the plaintiff and Nicholson. He had formed the view that it was significant that Winefield had said that when he left the cell there was no skin broken, there was no blood and from the blood in the cell, it was "easy to deduce that a massive assault had taken place after the initial assault by Winefield on Gollan" (T 629).
65 Hannay was aware that Bell had identified the plaintiff as being the person at cell 210 who told him not to be in the cell when his mate got back.
66 Nicholson had been interviewed by Snell and Brown at Parramatta police station at 1.15pm on the 26 September. During the interview Nicholson had told the police officers that the "cunt [Gollan] was still breathing. Thommo and I grabbed him and rammed his head into the wall to finish the cunt". Hannay prior to commencing the second interview was informed that these admissions had been made.
67 The extent of the evidence which had been marshalled against the plaintiff prior to the second interview raises the question as to why Hannay and Eastwood would be motivated to fabricate confessional material by the plaintiff. Hannay acknowledged, however, in cross-examination that he believed at the time of the second interview that the Crown case would be improved if he was able to obtain an admission from the plaintiff (T 683). He was asked:
"Q. And you certainly believed at that time, that is on the day when you were going to interview Mr Thomas, that day, 26 September 1986, you believed that the case against him would be improved if you were able to obtain an admission from him, didn't you?
A. Most probable.
Q. Most definitely, isn't it?
A. Yes, it would have been far better and as it turned out is far better to have direct evidence or oral evidence from the perpetrator or from whoever has created the crime to have a confession of course."
68 The working relationship between Hannay and Eastwood does not indicate a likelihood that they would conspire to give false evidence. It was not close. Hannay said he had little knowledge of Eastwood prior to the Gollan investigation and Eastwood recalled that the investigation was the only time he worked with Hannay. Hannay left the police force in 1988 having been offered a job in Queensland and has lived in that State since that time.
69 The interviewing procedure Hannay said he used during the second interview was that he would write down a question in his official note book, ask the question and then write down the answer. Eastwood was present and did not take notes.
70 Hannay's adoption of this procedure was challenged by Mr Peluso during the criminal trial. It is evident that Hannay was aware that the procedure of a formal record of interview could have been adopted with questions and answers, the movements of police and the suspect being recorded by typewriter with the time of the conclusion of the interview being noted at the end. Hannay when asked by Mr Peluso why this procedure was not used replied that he "chose not to use it" (exhibit C, volume 2 at 077).
71 Hannay gave similar evidence before this Court but when asked:
"Q. Were there any reasons for that particular choice that come to mind?"
Replied:
"A. Only if the typewriter or documentation weren't in the room or if it was more convenient to use the notebook that I had that I always carried with me in a simple record of interview, if there was going to be a large amount of questions or we prepared a large amount of questions to put to an offender or somebody else we may have chosen to type them then go through a pre - with a - you might say if we had a lot of information already gathered and we had prepared questions we wanted to ask, we may have typed them but in an off-the-cuff interview it would normally be done just in a notebook and that was a process that was normally adopted, regularly adopt in those days" (T 685).
72 Hannay had earlier agreed that a typewriter and paper was standard equipment in the interviewing rooms. Parramatta police station was one of the largest in the State. The procedure of a formal record of interview had been adopted by Snell and Brown when Winefield had been interviewed the previous night. A large amount of information implicating the plaintiff in the commission of the offences had been gathered prior to the second interview. There were a large number of questions which could have been put to the plaintiff. It seems to me in those circumstances to be extraordinary that "an off-the-cuff" interview would be conducted. After all, exculpatory statements had been made by the plaintiff in the first interview.
73 Mr Peluso closely questioned Hannay about his familiarity with a procedure of a senior police officer independent of the investigation being called in to enquire of the person being interviewed whether he had any complaint to make and as to the truth and voluntariness of the statements said to have been made in the interview. He was further questioned as to his failure to adopt this procedure at the conclusion of the interview. It was, Hannay said, most probable that there would have been a senior officer available at the time. When asked why he did not call in a senior independent officer, Hannay replied that "he chose not to adopt that procedure". (Exhibit C vol 2 at 078).
74 In this Court, Hannay was asked by senior counsel for the plaintiff (T 686):
"Q. But an aspect of doing interviews with the assistance of notebooks in those days was that when the interview was over you would go and get a senior officer to come and talk to the person, confirm that that was the interview, wasn't it?
A. Yes, but - yes, that could happen but it wasn't generally a process that happened all the time.
Q. It didn't happen all the time but it was available, wasn't it?
A. Yes.
Q. And it was a very good process for one reason certainly, wasn't it, that it made it much harder for the person after the event to have second thoughts and say: That's not what I said?
A. I don't understand what you're saying.
Q. You had had the experience as an investigator of having people sometimes tell you that something happened or they had done something and then trying to wriggle out of that later and say that's not what they said exactly or they didn't say it at all?
A. Yes.
Q. People backing out was not an unusual phenomenon?
A. It would be very unusual for someone to partake of an interview and then come back and say: That's not right" (emphasis added).
75 The rationale proffered by Hannay for not calling in an independent officer is, in my view, implausible. Hannay's account of the second interview included the plaintiff being asked if he wished "to sign these notes" to which he responded:
"You're kidding." (Exhibit C vol 2 at 068)