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Court of Criminal Appeal 8 February 2000

R v Goonan

[2000] NSWCCA 25

Theft & propertyFirearms & weapons

Citation: Goonan v R [2000] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 8 February 2000
Judge(s): Spigelman CJ, Hulme J, Carruthers AJ

Background

The appellant had been convicted by a jury in December 1989 of armed robbery committed on 1 November 1988. He was acquitted of a second, related robbery charge. The trial proceeded principally on the basis of admissions the appellant allegedly made to police officers and a signed record of interview, which the appellant maintained had been procured by threats that police would charge him and his wife with further offences if he refused to sign.

A prior appeal in 1993 was dismissed. One ground of that appeal concerned a co-offender, Sing, who had been willing to give evidence for the appellant but claimed he was threatened by police officers not to do so. The 1993 court did not accept Sing's account, partly because there appeared to be no sensible motive for the officers involved to have made such threats.

Following the 1993 dismissal, the appellant petitioned the Attorney General under section 474 of the Crimes Act 1900 for a review of his conviction. The Attorney General referred the matter to the Court of Criminal Appeal to be dealt with as a fresh appeal, based on new evidence of dishonesty by police officers who had been involved in the original proceedings.

  • Whether fresh evidence of police officers' dishonesty, emerging after the original trial and first appeal, was sufficient to establish a significant possibility that the jury would have acquitted the appellant had that evidence been available at trial.
  • Whether the Court of Criminal Appeal should enter a verdict of acquittal or order a new trial, having regard to the time elapsed and the extent of the sentence already served.
  • How sentences imposed for separate later offences (escaping lawful custody and possessing a shortened firearm) should be adjusted in light of the quashing of the original conviction.

Decision

The central question was whether the fresh evidence met the applicable legal test: that there be a significant possibility that a jury, acting reasonably, would have acquitted the appellant had the evidence been available at trial. The court was careful to note that proof of one witness's dishonesty does not, by itself, establish dishonesty in another, even where the witnesses are police officers who worked together.

The fresh evidence centred on Detective Irwin, who had given evidence at the original trial about the appellant's admissions. Irwin had since pleaded guilty to inciting the tampering of evidence and giving false evidence to the Police Integrity Commission. Detective McDonald, who was implicated in the same conduct and had given evidence in the earlier appeal proceedings, had also pleaded guilty to similar charges. Additionally, Irwin faced separate proceedings alleging that he had "framed" a different person by fabricating admissions, suggesting a pattern of misconduct beyond the isolated events.

The court noted that two features made the fresh evidence significant. First, the admissions forming the core of the Crown case were given not only by Irwin but also corroborated by Detective Hawley and Detective Thompson. The evidence against Irwin and McDonald was therefore most directly relevant to the credit of those officers rather than creating direct doubt about all witnesses. However, the court accepted that Irwin's discredited evidence at the 1993 appeal had meaningfully influenced the outcome. Second, the court observed that the result of the 1993 appeal had been close, and could not exclude that, had the fresh evidence been before the court then, the outcome would have differed.

On the question of remedy, the court exercised its discretion to enter a verdict of acquittal rather than order a new trial. The appellant had already served more than his minimum term, and the Crown accepted that acquittal was the appropriate course. The sentences imposed in 1996 for the separate offences of escaping lawful custody and possessing a shortened firearm were then restructured so they ran from the date they were originally imposed (April 1996) rather than from the later date they had previously been set to commence.

Orders Made

  • The appeal against the armed robbery conviction was allowed and a verdict of acquittal entered; no new trial was ordered.
  • Leave to appeal out of time was granted in respect of the 1996 sentences.
  • The sentence for escaping from lawful custody was restructured as a fixed term of one year and nine months, commencing 17 April 1996 and expiring 16 January 1998.
  • The sentence for possessing a shortened firearm was restructured as a minimum term of three years and nine months commencing 17 April 1996 and expiring 16 January 2000, with an additional term of two years and nine months commencing 17 January 2000 and expiring 16 October 2002.

Key Takeaways

  • The test for allowing an appeal on the basis of fresh evidence requires a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the evidence been available at trial; a mere possibility is not sufficient.
  • Evidence that one police officer has been dishonest does not, without more, constitute evidence that other officers involved in the same investigation were also dishonest, even where those officers worked closely together.
  • Where fresh evidence of a witness's misconduct emerges after both conviction and a first failed appeal, its significance must be assessed by reference to the role that witness actually played in the original proceedings and the extent to which the outcome turned on their evidence.
  • In determining whether to order a retrial or enter an acquittal, the Court of Criminal Appeal may exercise its discretion to enter an acquittal where the time elapsed since the offending and the extent of the sentence already served make a new trial inappropriate.
  • Consequential sentences imposed for separate offences may require restructuring of their commencement dates where the quashing of an earlier conviction changes the custodial timeline to which they had been anchored.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 474 (petition for review of conviction)
- Criminal Appeal Act (NSW)

Cases
- Goonan [1993] 69 ACrimR 338 (the earlier failed appeal)
- Gallagher v The Queen (1985) 160 CLR 392 (fresh evidence test)
- R v Irwin [1999] NSWCCA 361 (background on Detective Irwin's offending)