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Court of Criminal Appeal 14 August 2002

REGINA v GIOVANNONE

[2002] NSWCCA 323

Also reported as 140 A Crim R 1
Public order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE PERVERTING THE COURSE OF JUSTICE CORRUPTION WHETHER INDICTMENT BAD IN LAW WHETHER DUPLICITY BETWEEN THE CHARGES

Citation: Regina v Giovannone [2002] NSWCCA 323
Court: NSW Court of Criminal Appeal
Date: 14 August 2002
Judges: Mason P, Hidden J, Carruthers AJ

Background

The appellant was the proprietor of a Kings Cross establishment who had an ongoing relationship with a NSW police officer, Trevor Haken. Haken had been receiving corrupt payments from the appellant for several years before he agreed to assist the Royal Commission into the NSW Police Service by gathering evidence of corruption.

On 16 November 1994, Haken met the appellant at a Sydney hotel while fitted with a concealed listening device. The recorded conversation, along with surveillance evidence and Haken's testimony, formed the basis of three charges: asking Haken to have the appellant's name removed from a Federal Police brief (count 1), asking Haken to provide protection for a drug dealer named "Rocky" (count 2), and corruptly paying Haken $200 as an inducement (count 3). The jury acquitted on count 1 and convicted on counts 2 and 3.

The appellant appealed against both conviction and sentence. Multiple grounds were raised, including challenges to the indictment, the admissibility and quality of the recording evidence, the directions given to the jury on prior-payments evidence, and the appropriateness of the custodial sentences imposed.

  • Whether the indictment was bad in law, including whether the charges were duplicitous
  • Whether the taped conversation and its enhanced version were admissible under the Evidence Act 1995, and whether a transcript admitted as an aide-memoire could be used to prove the contents of the conversation
  • Whether the requisite mental element (mens rea) and physical element (actus reus) for perverting the course of justice and corruption were open on the evidence
  • Whether the trial judge gave appropriate directions to the jury regarding evidence of prior corrupt payments between the appellant and Haken, specifically whether that evidence was properly characterised as "relationship evidence" or whether it should have been treated as tendency and coincidence evidence under Part 3.6 of the Evidence Act 1995
  • Whether the sentencing, including full-time incarceration and cumulative sentences, was appropriate

Decision

The Court dismissed the appeal against conviction and the application for leave to appeal against sentence on count 2 (seeking protection for "Rocky"). The evidence on that count, including the recorded conversation and corroborating surveillance observations, was sufficient to sustain the verdict.

On count 3 (the corrupt payment of $200), the Court quashed the conviction. The critical issue was the treatment of evidence of prior corrupt payments made by the appellant to Haken over several years. That evidence had been admitted without objection and directed to the jury as "relationship evidence," meaning the judge told jurors not to use it as proof of the elements of the offence charged. However, the Court found the Crown had led the evidence precisely to establish the nature and intent of the $200 payment, specifically to show it was made as a corrupt retainer in the usual manner the parties had adopted.

Mason P and Carruthers AJ (though differing in reasoning) agreed that the prior payments evidence was in substance tendency or coincidence evidence within Part 3.6 of the Evidence Act 1995. That characterisation attracted statutory notice requirements, restrictions under section 101, and discretionary exclusion considerations under sections 135 and 136. Specific jury directions on the use and the required standard of proof for such evidence should have been given. Because the jury received no such directions, there was a possibility of a miscarriage of justice.

The Court declined to order a new trial on count 3, noting that a significant portion of the custodial sentence for that count had already been served. Instead, it quashed the conviction and sentence on count 3, and adjusted the commencement date of the count 2 sentence accordingly.

Orders Made

  • Appeal allowed in part.
  • Conviction and sentence on count 3 quashed.
  • Appeal against conviction and application for leave to appeal against sentence on count 2 dismissed.
  • Commencement date of the 15-month sentence on count 2 varied to 20 September 2001, with a non-parole period of 6 months commencing that day and ending 19 March 2002.
  • Noted that the appellant was in custody from 20 September 2001 to 21 November 2001, then released on bail pending appeal; time on bail did not count toward the sentence.
  • Noted that the balance of the count 2 sentence (13 months less 2 days) resumed on 14 August 2002 and expired 12 September 2003, with the balance of the non-parole period expiring 12 December 2002, on which date the appellant was to be released on parole.

Key Takeaways

  • Evidence of prior conduct admitted as "relationship evidence" may in substance constitute tendency or coincidence evidence under Part 3.6 of the Evidence Act 1995, particularly where the Crown relies on it to prove an element of the charge rather than merely to provide context.
  • Where evidence is in reality tendency or coincidence evidence, the statutory notice provisions in section 99 and the restrictions in section 101 of the Evidence Act 1995 are engaged, and specific jury directions on its use and the applicable standard of proof are required.
  • A misdirection arising from the failure to give appropriate tendency evidence directions can constitute a miscarriage of justice even where the underlying evidence was led without objection and was not inherently unreliable.
  • In declining to order a new trial after quashing the count 3 conviction, the Court of Criminal Appeal took into account that a substantial portion of the relevant custodial sentence had already been served, illustrating the discretion available when a conviction is quashed on a directions ground rather than for insufficiency of evidence.
  • An enhanced version of a poor-quality listening device recording, and the use of a transcript as an aide-memoire, raised distinct admissibility questions under the Evidence Act 1995 concerning the definition of "copy" and "document," as well as the permitted use of aide-memoire material to prove the contents of a conversation.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), including ss 99, 101, 135, 136 and Part 3.6 (Tendency and Coincidence)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 59
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 24(1)
- Criminal Appeal Act 1912 (NSW), s 18

Cases:
- BRS v The Queen (1997) 191 CLR 275
- Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Eastman v The Queen (1997) 76 FCR 9
- Gipp v The Queen (1998) 194 CLR 106
- M v The Queen (1994) 181 CLR 487
- R v AH (1997) 42 NSWLR 702
- R v Birks (1990) 19 NSWLR 677
- R v BWT [2002] NSWCCA 60
- R v Cassar; R v Sleiman [1999] NSWSC 436
- R v Chan [2002] NSWCCA 217
- R v Dellapatrona (1993) 31 NSWLR 123
- R v Dillon and Riach [1982] VR 434
- R v Duong (1999) 109 A Crim R 60
- R v Karageorge (1998) 103 A Crim R 157
- R v Travers (1957) 58 SR(NSW) 85
- R v Webster and Jones, NSWCCA, unreported, 3 August 1992
- Shepherd v The Queen (1990) 170 CLR 573
- The Queen v Rogerson (1992) 174 CLR 268