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[2013] NSWCCA 240
Court of Criminal Appeal (NSW)
2013-05-06
Bathurst CJ, Fullerton J, Campbell J
Original judgment source is linked above.
Judgment 1BATHURST CJ: Michael Anthony Timmis (the applicant) was arraigned on 8 February 2010 on the following five counts: (i) Between 27 February and 30 March 2009 at Campbelltown and elsewhere in the State of New South Wales did conspire with Dean Michael Rose and Ronald Edwin Goulding, to rob the manager of the Campsie RSL Club Limited, of a sum of money, the property of Campsie RSL Club Limited and to do so while armed with a dangerous weapon. (ii) On 30 March 2009 at Campsie in the State of New South Wales was armed with a weapon, namely, an imitation Colt self loading pistol with intent to commit an indictable offence, namely, robbery while armed with a dangerous weapon. (iii) On 30 March 2009 at Campsie in the State of New South Wales did possess a prohibited weapon, namely, an imitation Colt self loading pistol without being authorised to do so by a permit. (iv) On 30 March 2009 at Campsie in the State of New South Wales had in his possession, without lawful excuse, an implement of housebreaking, namely a jemmy bar. (v) On 30 March 2009 at Campsie in the State of New South Wales had in his possession the means of disguising his face, namely a balaclava, with intent to commit an indictable offence, namely robbery armed with a dangerous weapon. 2Following a trial at which the applicant was represented by counsel, he was convicted by a jury on Counts 1, 2, 3 and 5. He was sentenced on 13 August 2010 to a total effective sentence of seven years with an effective non-parole period of five years and three months. 3The applicant appeals against his conviction. 4As the grounds of appeal involve questions of mixed fact and law, leave of the Court to appeal is required and has not been sought. However, no point is taken by the Crown and in the circumstances leave should be granted.
The trial 5The case presented by the Crown at trial relied on the evidence of an informer, electronic surveillance and ultimately physical surveillance. The Crown filed a summary of trial which summarised the evidence. I have checked the summary against the transcript of evidence in the Court below and the transcripts of the electronic surveillance which were tendered in evidence and I am satisfied that the summary is generally accurate. 6On 2 March 2009 a person identified only as the informer attended Campbelltown Police Station and told police that he wished to speak to detectives about an armed robbery that he was aware was being planned. The informer gave evidence that he socialised and played poker with the applicant and a Mr Ronald Goulding at venues including the Wests Leagues Club in Campbelltown. Mr Goulding had been a sub-manager of the Campsie RSL Club but had lost his job in about late August 2008. 7The informer gave evidence that during a conversation around six months prior to March 2009, Mr Goulding stated that the Campsie RSL Club would be an easy location at which to commit a robbery and that he was a past manager. However, the informer said that the conversation was not taken seriously and no plans were put in place to carry out a robbery at that time. 8The informer gave evidence that on the last Friday in February 2009 he was contacted by the applicant by phone. The applicant said that he was desperate for money and the informer suggested that he should rob an ATM or the Campsie RSL Club. The applicant replied "Yeah, that's a great idea" and within 10 minutes arrived at the informer's house. The informer and the applicant then attended Mr Goulding's house at Bradbury where the proposed robbery was discussed in further detail. 9The informer gave evidence that Mr Goulding explained that the best time to rob the RSL Club was 5.00am on a Monday. This was because there would be more money as a result of the takings from the weekend. Mr Goulding told them that there would be a minimum of about $120,000 and closer to between $300,000 and $500,000 if there was a public holiday. 10Later on 2 March 2009 the informer again met with police. The informer gave evidence that following his first meeting with police he had contacted Mr Goulding via SMS text message and had gone to Mr Goulding's house and met with the applicant and Mr Goulding. The informer said that Mr Goulding provided a sketch of the floor plan of the Club. Detective Senior Constable Benjamin Walsh gave evidence that the informer showed him the handwritten sketch during the latter meeting on 2 March 2009. 11As a consequence police conducted a surveillance operation commencing on 3 March 2009. Detective Senior Constable Walsh gave evidence that he participated in a surveillance operation in which the applicant, Mr Goulding and the informer were covertly followed from the Campbelltown area to the Campsie RSL Club. The informer also gave evidence that he, Mr Goulding and the applicant travelled in a Land Cruiser to view the RSL Club so that Mr Goulding could point out the manager's office. They did a number of laps of the Club in the vehicle and then parked in the car park. 12Later on 3 March 2009 Detective Senior Constable Walsh met the informer at Campbelltown Police Station. A statement was obtained from the informer who also provided Mr Goulding's handwritten sketch of the RSL Club. Detective Senior Constable Walsh gave evidence that the informer had not provided the map during their meeting on the previous day as the informer believed that it might be used when they attended the RSL Club. 13Detective Senior Constable Walsh gave evidence that on 4 March 2009 a surveillance device warrant was granted authorising police to use a number of listening and surveillance devices. Variations of the warrant were applied for and granted on 19 March and 27 March 2009. In addition, Detective Senior Constable Walsh gave evidence that on 2 and 3 March 2009 he compiled an application for authority to conduct a controlled operation pursuant to s 5 of the Law Enforcement (Controlled Operations) Act 1997. The application was granted on 4 March 2009. 14On 5 March 2009 the informer travelled with the applicant to the RSL Club where they had lunch and conducted observations of the interior layout. Electronic surveillance captured conversations during which the applicant and the informer discussed the plan to commit the robbery. The listening device recording was admitted at the trial as Exhibit C. Detective Senior Constable Walsh gave evidence that when he met the informer later that day to remove the device, the informer gave him a sign in slip and meal receipt from the RSL Club. These documents were admitted as Exhibit D. 15On 6 March 2009 the informer had a telephone conversation with the applicant in which the applicant said "I've spoken to one bloke about drive, (sic) um doing a bit of driving for us". A recording of the conversation was admitted at the trial as Exhibit E. 16On 9 March 2009 the applicant and the informer met at Mr Goulding's residence where Mr Goulding showed them a further sketch of the RSL Club which was admitted as Exhibit F. The informer gave evidence that later that evening he saw the applicant at the Campbelltown Catholic Club where the applicant told him that he had secured a driver. The informer's memory was refreshed by his statement that the applicant told him that the driver's name was Dean. He later came to know the man as Dean Rose. 17The informer gave evidence of a meeting at a later date in the backyard of his property with the applicant and Mr Rose. The informer reviewed his statement but was unable to identify the date the meeting occurred. The informer gave evidence that he and the applicant were in his backyard. Mr Rose arrived in his car and the applicant said "Here's our driver". The informer said that this was the first occasion on which he met Mr Rose. 18On 20 March 2009 a further telephone conversation took place between the informer and the applicant. A recording of the conversation was admitted at the trial as part of Exhibit E. In the recording the informer stated that he was "still down at Melbourne". During the call the applicant stated "Nah not this Sunday, it's the following Sunday". He also stated "I went there last night" and shortly after, "I got there at three thirty" and "I sort of sat around that to around four". In his evidence the informer was unable to identify when he arrived back in Sydney from Melbourne. 19Detective Senior Constable Walsh gave evidence that at about 2.00am on 25 March 2009 he and a number of other officers attended the Leumeah area and met with the informer. He gave the informer a bag containing two black balaclavas and a listening device was attached to the informer. 20The informer gave evidence that at about 3.30am on 25 March 2009 the applicant and the informer travelled to the Campsie RSL in the applicant's car where a further reconnaissance of the RSL Club was conducted. The informer gave evidence that he and the applicant parked the vehicle and went to a few bushes to look at the entry to the back door of the RSL Club. Electronic surveillance captured the conversation and the recording was admitted at the trial as Exhibit G. 21The informer gave evidence that on 26 March 2009 he met with Mr Goulding and the applicant at the Leumeah Hotel. Earlier that day he had met with police who fitted another listening device. They travelled to a property belonging to a friend of the applicant and then the applicant dropped Mr Goulding and the informer back at the Leumeah Hotel. Mr Goulding and the informer then returned to the informer's residence. 22Shortly after the informer returned home, the applicant arrived and parked his truck in the driveway. The informer gave evidence that the passenger side of his truck was opened and a gun was on the floor in a plastic bag. The informer stated that it was black and "just looked like a police gun". An electronic recording of events was admitted at the trial as Exhibit H. 23The informer gave evidence that on 28 March 2009 at the request of the applicant he drove to the applicant's son's workshop in Minto. The applicant was cleaning what appeared to be the same gun that he had seen the previous day. The informer could not recall the nature of their conversation and his memory was refreshed by his statement. The informer stated that 30 per cent of the total was to go to Mr Goulding but there was a suggestion about telling him that there was only $80,000. 24Detective Senior Constable Walsh gave evidence that he and another officer obtained a Holden Commodore Sedan from a police complex located in Zetland. The vehicle was equipped with a listening device and electronic surveillance equipment. On 29 March 2009 Detective Senior Constable Walsh drove the vehicle to the Whitlam Leisure Centre in Liverpool. He parked the vehicle as he had arranged with the informer. 25On the evening of 29 March 2009 Mr Rose attended the informer's home. Discussions between Mr Rose and the informer were captured by electronic surveillance. They travelled to Liverpool in the informer's car where Mr Rose and the informer collected the white Holden Commodore. Mr Rose drove the Commodore back to the informer's house where they parted company. 26At 3.30am on 30 March 2009 the applicant met the informer and they drove in the applicant's truck. At some stage they parked on the side of the motorway and transferred materials from the applicant's vehicle into the Holden Commodore. The applicant returned to his vehicle and Mr Rose and the informer travelled in the Commodore. At a point closer to the RSL Club the applicant parked his vehicle and joined the Commodore. The informer gave evidence that Mr Rose was in the driver's seat, the applicant the passenger's seat, while the informer was in the back. They travelled to the rear of the Campsie RSL Club. The informer was fitted with a listening device the recording of which was admitted as Exhibit J. 27Members of the Tactical Operations Unit arrived while the applicant, Mr Rose and the informer were in the Holden Commodore. Detective Senior Constable Walsh gave evidence that he was in an adjacent street and listened to the arrests as they occurred. When he arrived at the scene the informer, the applicant and Mr Rose were handcuffed outside the vehicle. 28A Detective Sergeant Andrew Forster was involved in the search of the Holden Commodore and gave evidence at the trial. He gave evidence that he took photographs of items including balaclavas, gloves, a black coloured pistol, cable ties and a jemmy bar. A cable tie was also found in the front passenger seat of the applicant's Land Cruiser. 29A Mr Clinton Cochrane, senior forensic biologist at the Department of Analytical Laboratories, gave evidence regarding DNA testing conducted in relation to the pistol. He stated that DNA on the pistol grip originated from an unknown male and could not have originated from either Mr Rose or the applicant. The remaining tests on the pistol were unsuccessful. 30The applicant participated in an electronically recorded interview on 30 March 2009. During the course of this interview the applicant was asked this question and gave this answer: "Q Are you prepared to tell us what yourself and Dean were doing in the vicinity of the RSL? A Well, it was Mick organised and um, you know, you know what, so I'm not going to explain anything. I don't need to because you already know it. If you got your informants going around setting people up why do I have to say anything? You know what's, you know what went down." 31It should be noted that at a later point in the interview the applicant suggested it was a case of entrapment and that he was approached by the informer. 32The Crown's submissions state that Mr Goulding entered a guilty plea on 2 September 2009 to conspiracy to commit armed robbery. Mr Rose was arraigned on the same day as the applicant and entered a plea of guilty to the charge that between 27 February and 30 March 2009 at Campbelltown and elsewhere in the State of New South Wales he did conspire with Dean Michael Rose and Ronald Edwin Goulding, to rob the manager of the Campsie RSL Club Limited, of a sum of money, the property of Campsie RSL Club Limited and to do so while armed with a dangerous weapon. 33The applicant filed a Notice of Appeal on 28 September 2011. Grounds of appeal were filed on 24 February 2012 and further grounds of appeal were filed on 11 February 2013. It is convenient to deal with the matters raised in the grounds of appeal filed on 24 February 2012 before addressing the matters raised in the further grounds of appeal filed 11 February 2013.
Ground 1 - The Crown failed to call Ron Goulding because it was aware of his statement dated 30 March 2009 34Mr Goulding did not make a statement on 30 March 2009. However, he participated in a record of interview on that date. He stated in that interview that the applicant and the informer approached him to obtain information about the Campsie RSL Club in late February 2009. He said he became involved because of his financial problems. He claimed he told the applicant and the informer that he did not want to be involved in the robbery itself. He said he knew a firearm was to be used but that the applicant and the informer had promised him no one would be hurt. 35That evidence would have been of no assistance to the applicant. At the time of the trial of the applicant Mr Goulding had entered a plea of guilty to a charge of conspiracy and was awaiting sentence. Unsurprisingly, the applicant's counsel at the trial did not request Mr Goulding to be called. There was in those circumstances no miscarriage of justice: see R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 at [39]-[40]. 36The ground of appeal is not made out.
Ground 2 - Improper conduct and abuse of power 37This ground asserts that the evidence of the informer was false and misleading. The informer was called and was cross-examined. The jury was entitled to accept his evidence supported as it was by the surveillance evidence to which I have referred above. 38This ground of appeal is not made out.
Ground 3 - "Abuse of power to aid and abet" 39The informer was registered after he supplied the information to the police on 2 March 2009 and a Certificate was subsequently obtained under the Law Enforcement (Controlled Operations) Act 1997. However, it was submitted that the Certificate did not extend to the supply of the balaclavas or the motor vehicle to the informer. In those circumstances it was submitted that the evidence of discussions about the vehicle, conversations recorded whilst the applicant and the informer were in the vehicle and the existence of items found in the vehicle should have been excluded as illegally obtained. It was argued at the trial that Detective Senior Constable Walsh had aided and abetted the commission of the offences the subject of Count 1 and Count 5 on the indictment. 40Whilst doubting whether it was possible to aid and abet a conspiracy, R v Lanteri (1985) 4 NSWLR 359 at 360, the trial judge exercised his discretion under s 138 of the Evidence Act 1995 to admit the evidence. This ground does not challenge that decision. 41However, Detective Senior Constable Walsh declined to give evidence unless he was granted a Certificate under s 128 of the Evidence Act to protect himself from the consequences of giving evidence which might have incriminated him. No objection was taken to Detective Senior Constable Walsh being given such a Certificate. 42The applicant submitted that there was no power to grant such a Certificate as Detective Senior Constable Walsh was a defendant in the proceedings and by virtue of s 128(10) of the Evidence Act there was no power to grant the Certificate. The basis for this submission apparently was that Detective Senior Constable Walsh was a party to the offences. However, whether or not his conduct involved a criminal offence, he was not a defendant in the proceedings and thus s 128(10) had no application. 43The applicant made the same submission in relation to the Certificate granted to the informer. The informer was not a defendant in the proceedings and the submission is misconceived for the same reason. 44It follows that this ground of appeal is not made out.
Ground 4 - "Misleading statement" 45The applicant claimed that the jury was misled in that a recording of a conversation between him and the informer of 20 March 2009 was not played in full and, consequently, the jury would have been left with the impression that he rather than the informer had initiated the call. 46The transcript of the conversation was tendered in full. It was described as an incoming call with V1 being the applicant and V2 the informer. The tape of the conversation was also tendered without objection and, as set out above, became Exhibit E in the proceedings. 47In these circumstances there was no misleading conduct by the Crown at the trial. Further, there was in any event no significance in the question of who instigated the call. The applicant did not identify any such significance. 48It follows that this ground of appeal also is not made out.
The amended Grounds of Appeal 49Before dealing with these grounds it is convenient to provide some additional background. 50The applicant was sentenced on 13 August 2010. He lodged a Notice of Intention to Appeal which was extended on a number of occasions ultimately expiring on 15 October 2011. As set out above, the Notice of Appeal in fact was lodged on 28 September 2011. 51On 26 April 2012 R S Hulme J made orders for the production of various documents to the applicant. On 3 May 2012 a bundle of documents were forwarded to the applicant by the Office of the Director of Public Prosecutions. They included documents described as "Police Statements in our possession", "Intercept transcripts in our possession" and "Listening Device transcripts in our possession". Subsequently a letter was sent on 31 October 2012 enclosing transcripts of 40 SMS text messages intercepted between 7 March 2009 and 30 March 2009. 52The Crown in its submissions acknowledged that a number of documents were destroyed in December 2010. The Crown asserted that the material included additional telephone calls captured under the warrants but whose contents had no relevance to the trial. 53It is these matters which form the subject matter of Grounds 1 and 3 of the Amended Notice of Appeal. It is convenient to deal with them together.
Ground 3 - Destruction of evidence in an attempt to pervert the course of justice 54The applicant referred to the fact that there were some 761 telephone calls for the telephone services the subject of intercepts. He complained that he was provided with copies of 28 calls prior to the trial and none after it. He also complained that although there were 12 listening device recordings, he was only provided with five of the recordings prior to the trial. Further, the applicant asserted that the records in his possession show that in the period that telephone intercepts were taking place there were 423 SMS messages for the telephones in question. He stated that he was only provided with one SMS message prior to the trial and 40 thereafter. 55The applicant asserted that in these circumstances the destruction of telephone intercepts and listening device recordings was a destruction of material evidence. The applicant stated that all of the material evidence was not provided to him prior to his trial. 56The difficulty with this submission is that there was nothing to suggest that the destroyed material had any relevance to the proceedings. It was not suggested by the applicant that the 40 SMS messages with which he was supplied after the trial would have affected its course or outcome and absent any evidence that the other material would be relevant, there is nothing to support the allegation of non-disclosure or an attempt to pervert the course of justice by the prosecution authorities. 57In these circumstances these grounds of appeal are not made out.
Ground 2 - Miscarriage of justice by false, misleading and tampered evidence being presented to the jury
Ground 5 - Error in allowing altered material to go to the jury
Ground 6 - The conviction was obtained by fraud 58These grounds relate to the editing of tape recordings obtained as a result of the electronic surveillance prior to the tapes being played to the jury. The applicant claimed that the tapes were not only edited to omit possibly prejudicial material but also cut and spliced. 59The difficulty with this submission is that unedited versions of the electronic material were presented to representatives of the applicant at the trial and a direction made on 3 December 2009 that the applicant's representatives supply all edits of electronic material by 15 January 2010. Although there was non-compliance with this direction, the transcript of the trial of 4 February 2010 reveals that the editing was completed on that day. 60Thus it appears that editing was carried out at the request of the applicant's counsel and there seems no basis for the present complaint. 61Further objection not having been taken at the trial, r 4 of the Criminal Appeal Rules applies and there has not been shown to be any miscarriage of justice. 62It follows that this ground of appeal has not been established.
Ground 4 - The judge erred in allowing evidence to the jury from the police and informer as a consequence of the Controlled Operations Certificate being invalid 63I have set out the background to this ground in dealing with Ground 3 of the original Notice of Appeal. In this ground, however, complaint is made in relation to the admission of the evidence. However, apart from asserting that the evidence in question was inadmissible, the applicant does not make any submission as to whether and in what manner the exercise by the trial judge of his discretion to admit the evidence under s 138 of the Evidence Act 1995 miscarried. 64The trial judge delivered a judgment on the admissibility of the material on 5 February 2010. In concluding that the evidence should be admitted his Honour took into account all matters required by s 138 and having done so his conclusion, in my opinion, that the desirability of admitting the evidence outweighed the undesirability of admitting it does not demonstrate any error. 65It follows that this ground of appeal also is not made out.
Ground 7 - Unreliable and perjured evidence of the informer 66This ground is repetitive of Ground 2 in the original Notice of Appeal and should be dismissed for the same reasons. 67The applicant suggested there was a failure by his counsel to follow instructions in cross-examination of the informant. However, somewhat inconsistently, he also submitted that the claimed inconsistencies in the evidence of the informer only came to light after the trial. The applicant declined to waive privilege to allow a statement to be obtained from his counsel and did not seek to give evidence to support the assertions made in this submission. 68I have reviewed the transcript and in my opinion the applicant was competently represented in what, having regard to the surveillance evidence, was a compelling case. 69This ground of appeal is not made out.
Conclusion 70In the result, leave to appeal should be granted but the appeal dismissed. 71FULLERTON J: I agree with the Chief Justice. 72CAMPBELL J: I agree with the Chief Justice.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2013
TIMMIS, Michael Anthony
R