Citation: [2000] NSWSC 970
Court: Supreme Court of New South Wales (Criminal Division)
Date: 20 October 2000
Judge(s): Greg James J
Background
The applicant was convicted in the District Court at Penrith in 1990 of armed robbery of two victims at their home in 1988. The Crown case rested on fingerprint evidence, an oral admission and an unsigned handwritten statement said to have been made to police, and witness testimony from the victims. The applicant denied involvement, asserting an alibi placing him in Queensland at the time and claiming the fingerprints were explained by prior visits to the premises.
On appeal, the Court of Criminal Appeal (by majority) upheld the conviction. However, two of the three appeal judges expressed significant reservations about the reliability of the police evidence concerning the admissions and a Queensland detective's account of a conversation with the applicant. Those reservations were not sufficient at the time to quash the conviction.
The applicant subsequently sought either a referral of his conviction to the Court of Criminal Appeal or an enquiry under Part 13A of the Crimes Act 1900. New material had emerged suggesting that the detectives involved in obtaining the admissions had themselves been the subject of allegations of misconduct.
Legal Issues
- Whether the court should direct an enquiry into the applicant's conviction under Part 13A of the Crimes Act 1900
- Whether the possibility that new evidence could affect the credit of crucial police witnesses was sufficient to give rise to the necessary "sense of unease or disquiet" about the conviction
- Whether the threshold for directing an enquiry was met, given that the alleged misconduct by the officers had been investigated but not proved
Decision
Greg James J reviewed the history of the proceedings, noting the reservations expressed by two members of the Court of Criminal Appeal about the police evidence, particularly regarding the oral admissions and the Queensland detective's account. The court observed that one appellate judge had described the police evidence as giving cause for suspicion, and had speculated about whether the fingerprint evidence had led investigators to target the applicant and "make them feel justified in 'stitching him up'."
The Crown accepted that if the allegations against the detectives had substance, that evidence could have been put to them in cross-examination and would likely have carried substantial probative value. The Crown argued, however, that because those allegations had been investigated and not proved, the material currently available did not reach the threshold required.
The court rejected that argument. Greg James J held that the question was not whether the allegations had already been proved, but whether an enquiry might uncover evidence or substance that, when considered on appeal, could affect the outcome. Given the issues already identified at trial and on appeal about police credibility, there was a sufficient doubt about the applicant's guilt to warrant directing an enquiry.
The court applied the principle that a "sense of unease or disquiet" about allowing a conviction to stand is sufficient to warrant directing an enquiry, particularly where fresh evidence obtained through that enquiry might then be considered by the Court of Criminal Appeal under the principles in Vastag.
Orders Made
- An enquiry directed to be conducted by a prescribed person into the applicant's conviction.
Key Takeaways
- The threshold for directing a post-conviction enquiry under Part 13A of the Crimes Act 1900 is a "sense of unease or disquiet" about the safety of a conviction, not proof that the conviction is wrong.
- Where the credibility of key police witnesses was already in question on appeal, new material suggesting those witnesses may have engaged in misconduct in other matters can be sufficient to meet the enquiry threshold, even if that misconduct has not been formally proved.
- An enquiry serves a preliminary function: it is a mechanism to ascertain whether evidence exists that could warrant the Court of Criminal Appeal acting, not a determination of guilt or innocence.
- The Crown's concession that evidence of officer misconduct would have had substantial probative value if available at trial weighed in favour of directing the enquiry.
- Fingerprint evidence consistent with an innocent explanation does not, of itself, displace a broader sense of doubt arising from concerns about police credibility.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), Part 13A (including ss 474H(1) and 474H(2))
Cases:
- McKinney & Judge (1990-91) 171 CLR 468
- Chidiac & Asfour (1991) 171 CLR 432
- Vastag (CCA, unreported, 20 June 1997)
- Johns [1999] NSWCCA 206
- Hasenkamp (CCA, unreported, 24 February 1998)
- The Application of Bernard Lewis Moore [2000] NSWSC 364