Citation: [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 jury in the District Court of knowingly taking part in the supply of cannabis resin. He was sentenced to a minimum term of eighteen months with an additional term of six months. A subsequent appeal to the Court of Criminal Appeal was dismissed in July 1994.
The case turned significantly on the credibility of the police officers who gave evidence at trial. All but one of those officers were members of the Gosford Drug Squad.
In 1996, evidence presented to the Royal Commission into the NSW Police Service established that those officers were corrupt and had fabricated evidence against suspects. The appellant petitioned the Governor in 2002, and the Attorney General referred the matter back to the Court of Criminal Appeal under section 474C(2) of the Crimes Act 1900.
Legal Issues
- Whether the evidence of police corruption emerging from the Royal Commission constituted a miscarriage of justice warranting the quashing of the appellant's conviction.
- Whether, in those circumstances, a verdict of acquittal should be entered.
Decision
Issue 1: Miscarriage of justice arising from corrupt police testimony
The central issue at the original trial was whether the police witnesses were giving honest evidence. That finding was confirmed both by the trial judge's summing-up and by the earlier Court of Criminal Appeal judgment dismissing the appeal.
Royal Commission evidence established that Officers Ison, Vicary, Whittaker and Eade were corrupt and had fabricated evidence against suspects. Spigelman CJ found it significant that the honesty of these same officers was the critical question the jury had been asked to determine at trial. Given that the conviction rested on the jury accepting police testimony now discredited by Royal Commission findings, the Court was satisfied that a miscarriage of justice had occurred.
Issue 2: Appropriate remedy
The Court did not order a retrial. Instead, it quashed the conviction and directed a verdict of acquittal. All three judges agreed on this outcome.
Orders Made
- The appellant's conviction was quashed.
- A verdict of acquittal was entered.
Key Takeaways
- A conviction that rested critically on the credibility of police witnesses who were subsequently found by the Royal Commission into the NSW Police Service to be corrupt and to have fabricated evidence constituted a miscarriage of justice.
- The Court of Criminal Appeal exercised its power under section 474C(2) of the Crimes Act 1900, which permits the Attorney General to refer matters to the Court following a petition to the Governor, to reopen a concluded appeal.
- Where police corruption was the very matter the original jury was required to assess, and that corruption was later established by Royal Commission findings, the link between the tainted evidence and the conviction was sufficient to ground a miscarriage of justice.
- Rather than ordering a retrial, the Court directed a verdict of acquittal, reflecting the nature of the injustice and the circumstances of the case.
- Findings from external inquiries such as royal commissions can provide a basis for revisiting convictions even after an initial appeal has been dismissed, provided the appropriate referral mechanism is engaged.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated