Citation: [1999] NSWCCA 211
Court: Court of Criminal Appeal, New South Wales
Date: 29 July 1999
Judge(s): Smart AJ, Dunford J, Hidden J
Background
The appellant had been convicted in the District Court at Parkes in February 1993 of supplying a traffickable quantity of amphetamines, an offence said to have occurred in November 1991. Judge Mahoney sentenced him to a minimum term of nine months with an additional term of thirteen months.
The conviction rested entirely on the evidence of three detectives who, the Court was told, had attended the appellant's premises at Forbes carrying amphetamines with them. The detectives weighed the drugs in front of the appellant and charged him with the offence, later giving evidence in support of that charge at trial.
During the Royal Commission into the New South Wales Police Service, those same detectives admitted that they had planted the drugs on the appellant and that the evidence they gave at trial was fabricated. The appellant then sought leave to appeal his conviction out of time.
Legal Issues
- Whether the appellant should be granted an extension of time to bring his appeal, given the conviction dated from 1993 and the admissions emerged later through the Royal Commission
- Whether the conviction could stand where the entirety of the Crown's case rested on police evidence subsequently admitted to be fabricated
Decision
The Court granted the extension of time to appeal. The delay in bringing the application was directly attributable to the fact that the police misconduct only came to light through the Royal Commission proceedings, which post-dated the original conviction.
On the substance of the appeal, the Crown conceded that its case had been built entirely on police evidence that the detectives themselves had since admitted was false. Smart AJ described the conduct as "wicked conduct and a serious abuse of power." With no untainted evidence remaining to support the conviction, the concession was plainly correct.
All three judges agreed that the conviction could not stand. The Court quashed the conviction and entered a verdict of acquittal in the appellant's favour.
Orders Made
- Extension of time to appeal granted to the date of hearing (29 July 1999)
- Appeal allowed; conviction quashed
- Verdict of acquittal entered
Key Takeaways
- The Court of Criminal Appeal confirmed that where the entirety of a Crown case rests on evidence subsequently admitted by police to have been fabricated, a conviction cannot stand and a verdict of acquittal is the appropriate remedy.
- An extension of time to appeal out of time will be granted where the grounds for appeal only became known after the conviction, such as through subsequent admissions made in the course of a Royal Commission.
- Fabricating evidence and "loading up" a suspect with prohibited drugs constitutes, in the Court's words, "wicked conduct and a serious abuse of power."
- No residual prosecutorial case existed once the Crown conceded the fabrication; the appropriate order in those circumstances was acquittal rather than a retrial.
- The decision illustrates the role the Royal Commission into the NSW Police Service played in exposing historic convictions obtained through police misconduct and enabling affected individuals to seek appellate relief.
Legislation and Cases Referenced
Legislation: None cited.
Cases: None cited.