Citation: Regina v McCormack [2003] NSWCCA 340
Court: NSW Court of Criminal Appeal
Date: 29 October 2003
Judge(s): Spigelman CJ, O'Keefe J, Greg James J
Background
In October 1993, the appellant was convicted by a District Court jury of knowingly taking part in the supply of cannabis resin. He received a minimum term of one year and six months, with an additional term of six months. His initial appeal to the Court of Criminal Appeal was dismissed in July 1994.
The case was later reopened following evidence led at the Royal Commission into the NSW Police Service. That evidence established that, with one exception, every police officer who gave evidence at the appellant's trial was corrupt. All were members of the Gosford Drug Squad.
In 2002, the appellant petitioned the Governor of NSW for a referral of the proceedings back to the Court of Criminal Appeal. The Attorney General referred the matter to the court in September 2002 under section 474C(2) of the Crimes Act 1900.
Legal Issues
- Whether the subsequent Royal Commission evidence of police corruption constituted a miscarriage of justice warranting the quashing of the conviction.
- Whether a verdict of acquittal should be entered.
Decision
The central question at the original trial was whether the police witnesses were giving honest testimony. That credibility issue was identified both in the trial judge's summing-up and in the Court of Criminal Appeal's earlier reasons for dismissing the appeal.
Royal Commission evidence established that officers Ison, Vicary, Whittaker and Eade were corrupt and had fabricated evidence against suspects. Spigelman CJ noted that evidence of fabrication went directly to the critical issue in the appellant's trial.
On that basis, Spigelman CJ was satisfied that a miscarriage of justice had occurred. O'Keefe J and Greg James J both agreed. The court quashed the conviction and directed a verdict of acquittal.
Orders Made
- The appellant's conviction was quashed.
- A verdict of acquittal was entered.
Key Takeaways
- Where post-conviction evidence establishes that police witnesses were corrupt and had fabricated evidence, and credibility of those witnesses was the central issue at trial, a miscarriage of justice is made out.
- The Court of Criminal Appeal confirmed that a referral by the Attorney General under section 474C(2) of the Crimes Act 1900 provides the mechanism for re-examining convictions in light of fresh evidence of this kind.
- A quashed conviction can be followed by a directed verdict of acquittal, rather than an order for retrial, where the circumstances warrant it.
- Findings made at the Royal Commission into the NSW Police Service provided the evidentiary foundation for overturning a conviction that had already survived an earlier appeal.
- No single corrupt officer is required for a miscarriage of justice to arise; here, the court acted on evidence that multiple officers who gave evidence at the trial were corrupt.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 474C(2)
Cases:
- Regina v Tyrone Mark McCormack (unreported, NSW Court of Criminal Appeal, 28 July 1994)