Citation: R v Curry [2002] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 26 July 2002
Judge(s): Heydon JA; Levine J; Adams J
Background
Two appellants were convicted in 1987 following a trial before Wood CJ at CL in the Supreme Court. The convictions related to the importation and supply of heroin, with the alleged offences occurring in 1984 and 1985 during a joint task force investigation known as Operation Bing.
After their initial convictions, the Crown successfully appealed against the sentences on grounds of inadequacy, and the appellants' own leave applications to appeal against sentence were refused. A subsequent appeal against the convictions also failed.
In 1995, the Royal Commission into the NSW Police Service heard evidence from a number of witnesses concerning the investigation and prosecution that had arisen from Operation Bing. That evidence later formed the basis for a fresh application to the Supreme Court under s 474D of the Crimes Act 2000, which was then referred to the Court of Criminal Appeal to be dealt with as appeals under the Criminal Appeal Act 1912.
Legal Issues
- Whether new evidence emerging from the NSW Police Royal Commission raised a significant possibility that a jury acting reasonably would have acquitted the appellants, such that their convictions could not stand
- Whether the convictions and sentences should be quashed and verdicts of acquittal entered
Decision
The Crown did not concede that the prosecution case was entirely fabricated. Former Detective Deaves, who made extensive admissions of criminal and corrupt conduct during his time as a police officer, gave evidence that some portions of the records of interview he conducted with one of the appellants accurately reflected what had actually occurred.
Notwithstanding that partial qualification, the Crown accepted that the new evidence raised a significant possibility that a reasonably acting jury would have returned acquittals had that evidence been placed before them at trial. On that basis, the Crown agreed the convictions could not stand.
Both appellants had already served the non-parole period imposed upon them. The Court accordingly quashed the convictions and sentences and entered verdicts of acquittal.
Orders Made
- Convictions of both appellants quashed
- Sentences of both appellants quashed
- Verdicts of acquittal entered for both appellants
Key Takeaways
- The Court of Criminal Appeal confirmed that where new evidence raises a significant possibility that a jury acting reasonably would have acquitted an accused, a conviction cannot stand, even if that evidence does not establish the prosecution case was entirely fabricated.
- A referral by a single judge under s 474D of the Crimes Act 2000 to the Court of Criminal Appeal allows the matter to be dealt with as an appeal under the Criminal Appeal Act 1912.
- Evidence of corrupt and criminal conduct by investigating police officers, accepted at a Royal Commission, can provide the evidentiary foundation for a successful post-conviction appeal many years after the original trial.
- The Crown's concession that the new evidence met the relevant threshold was itself significant, demonstrating that prosecutorial acceptance of the impact of fresh evidence can be determinative of the outcome.
- Where appellants have already served their non-parole periods by the time an appeal is heard, that circumstance is noted by the court in making orders for acquittal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 2000 (NSW), s 474D
- Criminal Appeal Act 1912 (NSW)
Cases:
No cases were cited in the text provided.