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7
Court of Criminal Appeal 2 August 1999

REGINA v. JOHNS

[1999] NSWCCA 206

Also reported as (1999) 110 A Crim R 149
Assault & violenceHomicide
ATTORNEY GENERAL'S REFERENCE FURTHER APPEAL NATURE OF, LEAVE NOT NECESSARY APPEAL FOR ERROR OF FACT OR LAW BELOW ADMISSIONS

Citation: Regina v Johns [1999] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 2 August 1999
Judge(s): Dunford J, Greg James J, Smart AJ

Background

The appellant, Terrence Stanley Johns, was convicted in February 1977 of the murder and assault of Raymond Keith Morriss, an offence said to have occurred at Potts Point in April 1975. He was tried alongside a co-accused before O'Brien J and a jury in the Supreme Court. The original proceedings raised significant questions about accessorial liability and the doctrine of common purpose.

The appellant had already exhausted his ordinary appellate rights. Both his conviction appeal and sentence appeal to the Court of Criminal Appeal were unsuccessful, and the High Court dismissed a further appeal following the grant of special leave. Those earlier proceedings are reported at (1978) 1 NSWLR 282, (1978) 2 NSWLR 259, and (1979-80) 143 CLR 108.

In August 1998, more than two decades after conviction, the Attorney-General referred the whole case to the Court of Criminal Appeal under s 474C(1)(b) of the Crimes Act 1900. The reference required the Court to treat the matter as a fresh appeal, with particular attention to grounds including alleged police misconduct, the admissibility and treatment of admissions, and whether fresh evidence warranted reconsideration of the conviction.

  • Whether an Attorney-General's reference under Part 13A of the Crimes Act 1900 re-invests the Court with full appellate jurisdiction despite previous exhausted appeals, and without the need for leave
  • Whether the trial judge erred in admitting or failing to exclude the appellant's admissions, and what discretion applied to their reception under the former law
  • Whether the trial judge gave adequate directions regarding the appellant's allegation of a police conspiracy to fabricate those admissions
  • Whether general evidence of police corruption, or evidence of dishonesty specific to an individual officer, was admissible or relevant to that allegation
  • Whether fresh evidence tendered on the reference was sufficiently material and cogent to warrant a different verdict
  • Whether, taking all grounds cumulatively, there was a significant possibility that an innocent person had been convicted

Decision

The Court confirmed that a reference of the whole case under Part 13A of the Crimes Act re-invests the Court of Criminal Appeal with jurisdiction even after all ordinary appeal rights have been exhausted, and that no separate grant of leave is required. However, the Court is not required to re-adjudicate grounds already decided on the merits unless fresh evidence or some new matter makes reconsideration necessary or desirable. The applicable test remains that of a court of appeal for error, not a rehearing.

On the admissions, the Court found that the former discretion to reject confessional evidence did not apply to a dispute about whether admissions were made at all. That discretion was concerned with the conduct of the investigation, not with resolving contests about the fact of making. The Court considered that the trial judge had not erred in the approach taken to the admissions evidence in the circumstances of the original trial.

Regarding the allegation of a police conspiracy, the Court examined what directions were required and the extent to which general evidence of police corruption, as distinct from evidence of dishonesty by a specific individual officer, was relevant and admissible. The Court also assessed whether fresh evidence on this point was sufficiently material and cogent to affect the verdict, taking into account the remoteness of some of that material and its impact on probative value.

Applying the test from M v The Queen (1994) 181 CLR 487, the Court concluded it could not find that the jury should have had a reasonable doubt. The Crown's evidence retained powerful probative force, and considering the cumulative effect of all grounds argued, the Court found no basis on which the verdict should not stand. The appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • An Attorney-General's reference of a whole case under Part 13A of the Crimes Act 1900 re-invests the Court of Criminal Appeal with jurisdiction without requiring leave, even after all ordinary appeal rights have been exhausted and dismissed.
  • Under the former law and practice, the judicial discretion to reject confessional evidence was directed at the conduct of the investigation and did not extend to resolving a dispute about whether admissions were made at all.
  • Where an accused alleges a police conspiracy to fabricate admissions, the Court confirmed that proper jury directions are required, but distinguished between admissible evidence of dishonesty by an identified individual officer and more general evidence of police corruption.
  • Fresh evidence tendered on an Attorney-General's reference must meet the established test of materiality and cogency; remoteness in time is a relevant factor that may diminish probative value and weigh against admissibility or significance.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that its role on such a reference remains appellate, not curial: the question is whether the jury fell into error producing a significant possibility of wrongful conviction, not whether the appellate court would have reached the same verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including Part 13A (ss 474C, 474L)
- Criminal Appeal Act 1912 (NSW), including s 6(1)
- Evidence Act 1995 (NSW)

Key Cases
- Johns (1978) 1 NSWLR 282; (1978) 2 NSWLR 259; (1979-80) 143 CLR 108
- Mickelberg v The Queen (1989) 167 CLR 259
- M v The Queen (1994) 181 CLR 487
- McKinney & Judge (1991) 171 CLR 468
- Carr (1988) 165 CLR 314
- Duke (1988-89) 180 CLR 508
- Chidiac & Asfour v The Queen (1990-91) 171 CLR 432
- Davies v The King (1937) 57 CLR 170
- Regina v Gunn (No 1) (1942) SR (NSW) 23; Regina v Gunn (No 2) (1943) SR (NSW) 27
- Lee (1950) 82 CLR 133
- Driscoll (1977) 51 ALJR 731
- Gallagher (1985) 160 CLR 392
- Regina v Giam [1999] NSWCCA 53
- Thomas [1999] NSWCCA 68; Robinson [1999] NSWCCA 186