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12
Court of Criminal Appeal 11 June 2002

R. v. GREGORY

[2002] NSWCCA 199

Drugs
CRIMINAL LAW PROCEDURE APPEAL EXTENSION OF TIME FRESH EVIDENCE WHETHER SUFFICIENT

Citation: R v Gregory [2002] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 11 June 2002
Judge(s): Hodgson JA; Levine J; Simpson J

Background

In November 1981, the applicant was convicted by a jury in the District Court of conspiracy to import heroin, following a trial before Shannon DCJ. The Crown case rested on police evidence of admissions made during a lengthy interview, a record of which the applicant allegedly acknowledged as accurate but declined to sign. The applicant denied the admissions, claiming the record of interview was a fabrication. He was sentenced to seven years' imprisonment with a two-year non-parole period, a sentence he had long since completed.

In February 1999, approximately 18 years after conviction, the applicant sought an extension of time to appeal. His stated ground was fresh evidence arising from the NSW Police Royal Commission. He subsequently added two further grounds: that the trial judge had failed to give an accomplice direction regarding a co-accused who gave evidence against him, and that the judge's direction to the jury about the unsigned record of interview was inadequate.

The applicant explained the lengthy delay by saying his solicitor at the time had advised that an appeal would not be heard before he was released on parole, and that he only became aware of potential grounds relating to corrupt police evidence in 1999 after seeing a public poster about wrongful convictions.

  • Whether the Court should grant an extension of time to appeal, more than 18 years after the conviction
  • Whether evidence and findings from the NSW Police Royal Commission constituted fresh evidence capable of supporting the appeal
  • Whether the trial judge erred in failing to give an accomplice direction regarding the evidence of a co-accused
  • Whether the trial judge's direction to the jury about the unsigned record of interview was inadequate in light of subsequent judicial decisions, particularly McKinney v The Queen

Decision

Fresh Evidence from the Royal Commission

The Royal Commission evidence the applicant sought to rely on concerned a different police officer (Detective Johnston) and a different matter involving another person (Wong), not the applicant himself. The Royal Commission evidence did not directly implicate Detective Sergeant Sweeney, who conducted the applicant's interview, or otherwise cast specific doubt on the integrity of the record of interview in the applicant's own case. The Court found this material insufficient to constitute fresh evidence warranting an extension of time.

Accomplice Direction

The Court accepted that the co-accused who gave evidence against the applicant at trial was likely an accomplice, and that a formal accomplice warning should ordinarily have been given. However, the trial judge had directed the jury to treat that witness's evidence with considerable caution. The Court assessed whether this fell short of the required direction, but ultimately weighed this in the broader context of whether the extension of time should be granted at all.

Direction on the Unsigned Record of Interview

The Court acknowledged that, following McKinney v The Queen and related decisions decided after the 1981 trial, a stronger direction about the dangers of unsigned records of interview would now be required. The trial judge's direction was therefore deficient by the standards later established. However, the Court noted that this kind of error, where a direction is found wanting only because the law developed after the trial, would ordinarily justify a new trial rather than an acquittal.

Extension of Time

Hodgson JA identified a range of factors relevant to the exercise of discretion on an extension of time application, including the length of the delay, the explanation for it, the strength of the proposed grounds, the fact that the sentence had been served, and any continuing prejudice to the applicant. After weighing all these considerations, the Court held that no exceptional case had been made out. A new trial after 21 years would be highly unsatisfactory and effectively impossible. There was no evidence of ongoing reputational damage, no claim for compensation was advanced, and the applicant had prior drug-related convictions. The general principle, drawn from R v Unger, is that once the time for appeal has passed the matter is regarded as concluded, and after many years have elapsed extensions should be granted only in exceptional circumstances. Those circumstances were not present here.

Orders Made

  • Application for extension of time to appeal dismissed.

Key Takeaways

  • Granting an extension of time to appeal a criminal conviction after a prolonged delay requires exceptional circumstances; the Court of Criminal Appeal confirmed that the general principle is that the matter is regarded as concluded once the appeal period expires.
  • Fresh evidence from the NSW Police Royal Commission will not automatically support a late appeal. The evidence must specifically and materially implicate the conduct of the police involved in the applicant's own trial, not merely demonstrate misconduct in related or different investigations.
  • A direction on an unsigned record of interview that was adequate by the standards prevailing at the time of trial may nonetheless be found deficient in light of subsequent High Court decisions, but this kind of retrospective error ordinarily warrants a new trial rather than an acquittal.
  • Where the applicant's sentence has been fully served, no compensation claim is advanced, and no evidence of ongoing reputational harm is put before the Court, those factors weigh against granting an extension even where a summing-up error is identified.
  • In assessing whether to grant an extension of time, the Court balanced multiple considerations: the length of and explanation for the delay, the apparent strength of each ground of appeal, the availability and fairness of a new trial after many years, and the nature of any continuing harm to the applicant.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 106

Cases
- McKinney v The Queen (1990) 171 CLR 468
- R v Unger [1977] 2 NSWLR 990
- Carr v The Queen (1988) 165 CLR 314
- Gallagher v The Queen (1986) 160 CLR 392
- Wilson v The Queen (1992) 174 CLR 313
- Webb v The Queen (1993) 181 CLR 41
- R v Black (1993) 179 CLR 44
- RPS v The Queen (2000) 199 CLR 620
- Davies v DPP [1954] AC 378
- R v Beattie (1996) 40 NSWLR 155
- R v Stewart (2001) 52 NSWLR 301
- R v Knight [1998] 1 NSWLR 583
- R v Brehoi [1999] 1 NSWLR 122
- Application of Moore (2000) 112 ACrimR 331
- Ratten v The Queen (1974) 131 CLR 510
- Piening v Wanless (1968) 117 CLR 498
- Various unreported NSW Court of Criminal Appeal decisions including R v Bartman, R v Hastins, R v Vastag, R v Miller, R v Hemsley, R v Marsala, R v Richards, R v Hasenkamp, R v Doney, and R v Young