AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 10 June 1999

R v Brittain

[1999] NSWSC 559

Drugs
CRIMINAL LAW PRACTICE & PROCEDURE REVIEW OF CONVICTION

Citation: R v Brittain [1999] NSWSC 559
Court: Supreme Court of New South Wales (Criminal Division)
Date: 10 June 1999
Judge(s): Kirby J

Background

Denis Allen Brittain was convicted in 1993 in the District Court at Narrabri of knowingly taking part in the cultivation of a commercial quantity of cannabis plants at Pilliga State Forest in New South Wales. He was sentenced to a minimum term of four years and eight months, with an additional term of one year and nine months. His appeal to the Court of Criminal Appeal was dismissed in 1994.

The Crown case against Brittain was entirely circumstantial. There was no direct evidence linking him to the cannabis plantations. The case rested on items found at his Victorian home during a search warrant, photographs comparing a campsite to the plantation site, and evidence of alleged lies told by Brittain to two detectives, Cohen and Clout.

Following the Police Royal Commission into the New South Wales Police Service, material emerged raising serious questions about the conduct of those two detectives. Brittain subsequently applied under section 474D of the Crimes Act 1900 for a review of his conviction, seeking referral of his case to the Court of Criminal Appeal.

  • Whether the fresh material arising from the Police Royal Commission constituted "a doubt or question as to any part of the evidence in the case" within the meaning of section 474E(2) of the Crimes Act 1900
  • Whether the case should be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Court of Criminal Appeal Act 1912

Decision

Kirby J considered the application and the material identifying at least fifteen instances of corrupt conduct attributed to Detectives Cohen and Clout. Those instances included verballing suspects, planting drugs, confiscating and sharing seized cash and drugs, and accepting money to "go easy" in records of interview. None of those instances directly concerned the Brittain investigation, but they spoke directly to the character and reliability of the officers whose evidence was central to his conviction.

The Crown, having obtained advice from junior counsel and the Crown Advocate, declined to oppose the application. The Crown accepted that the fresh material was of a character capable of satisfying the statutory test, particularly as it raised a doubt or question about part of the evidence in the case.

Kirby J was satisfied that a doubt or question existed as to part of the evidence against Brittain, specifically the evidence given by Detectives Clout and Cohen. His Honour referred the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal.

Orders Made

  • The whole of Brittain's case referred to the Court of Criminal Appeal to be dealt with as an appeal under the Court of Criminal Appeal Act 1912, pursuant to section 474E(1)(b) of the Crimes Act 1900.

Key Takeaways

  • Under section 474D of the Crimes Act 1900, a convicted person may apply to the Supreme Court for a review of their conviction where fresh material raises a doubt or question as to any part of the evidence in the case.
  • Evidence of systemic corrupt conduct by police officers who gave key evidence at trial can constitute fresh material capable of satisfying the section 474E(2) test, even where the specific corrupt acts did not directly involve the applicant's case.
  • Where a conviction rests substantially on the evidence of officers whose credibility has been seriously undermined by Royal Commission findings, the statutory threshold for referral to the Court of Criminal Appeal may be met.
  • The Crown's position is relevant to the exercise of the court's discretion: its concession that the fresh material satisfied the statutory test was noted and reflected in Kirby J's determination.
  • Referral under section 474E(1)(b) does not itself overturn a conviction; it directs the Court of Criminal Appeal to deal with the matter as a fresh appeal under the Court of Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 474D, 474E(1)(b), 474E(2)
- Court of Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)

Cases:
- R v Brittain (Court of Criminal Appeal, unreported, 15 August 1994)