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Court of Criminal Appeal 1 August 2005

R v McVittie

[2005] NSWCCA 267

Theft & propertyPublic order & justice offences
REVIEW OF CONVICTIONS CONCESSION BY CROWN CONVICTIONS A MISCARRIAGE OF JUSTICE

Citation: R v McVittie [2005] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 1 August 2005
Judges: Simpson J, Johnson J, Rothman J

Background

The appellant, Leslie John McVittie, was convicted by jury in December 1988 of two counts of armed robbery in the District Court of NSW. He was sentenced to imprisonment and an earlier appeal against conviction was unsuccessful.

The case against McVittie at trial rested in part on a confessional statement said to have been made at the time of his arrest and on a firearm allegedly found in his possession. Western Australian police had arrested him in Perth in December 1987 before he was extradited to NSW. Two NSW detectives, one of whom gave evidence under the pseudonym "F1" to protect his identity, also gave evidence at trial.

Following a petition to the Governor of NSW under the Crimes Act 1900, the Attorney General referred the whole case to the Court of Criminal Appeal to be dealt with as a fresh appeal. The appellant contended that newly available evidence established that his convictions were a miscarriage of justice.

  • Whether fresh evidence arising from subsequent investigations into police corruption constituted a miscarriage of justice warranting the quashing of the convictions
  • Whether, if the convictions were quashed, a new trial should be ordered or judgments of acquittal should be entered

Decision

Two separate investigative bodies uncovered evidence that the prosecution's key evidence had been fabricated. In 2000, the NSW Police Integrity Commission inquired into the conduct of detectives F1 and Dennis O'Neil, finding evidence of corrupt practices including fabrication of evidence, planting of firearms on suspects, and assault. Separately, the NSW Crime Commission investigated the prosecution of McVittie, and F1 admitted he had been told by Western Australian detectives, upon his arrival in Perth for the extradition, that they had planted the firearm on McVittie and fabricated confessional material.

A Western Australian Royal Commission in 2004 also reviewed McVittie's prosecution and received further evidence of fabricated confessions and a planted firearm. Simpson J, with whom Johnson J and Rothman J agreed, concluded that although the tainted evidence was not the only evidence led at trial, it contaminated the proceedings beyond repair.

The Crown fairly conceded that the convictions should be set aside, and the Court agreed that the concession was properly made. Given the extent of the contamination, the Court determined it would be inappropriate to order a new trial. Johnson J noted similarities with the Court's earlier decision in R v Rix [2005] NSWCCA 31, in which comparable orders had been made.

Orders Made

  • Appeal allowed
  • Each conviction quashed
  • Judgment of acquittal entered in each case

Key Takeaways

  • Where prosecution evidence has been fabricated and tainted by corrupt police conduct, convictions resulting from those proceedings can constitute a miscarriage of justice even where the tainted evidence was not the only evidence led at trial.
  • A petition to the Governor of NSW under s474B of the Crimes Act 1900, followed by a referral under s474C(1)(b), provides a mechanism for review of convictions and a pathway to the Court of Criminal Appeal when fresh evidence emerges after all ordinary appeal avenues have been exhausted.
  • The Court of Criminal Appeal confirmed that, in appropriate circumstances where contamination is so pervasive as to be beyond repair, the entry of judgments of acquittal rather than the ordering of a new trial is the proper remedy.
  • Findings made by external investigative bodies, including royal commissions and integrity commissions, can form the basis of "fresh evidence" sufficient to ground a conviction review.
  • The decision is consistent with the Court's earlier approach in R v Rix [2005] NSWCCA 31, suggesting a similar framework applies in cases involving comparable police corruption affecting the integrity of criminal proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 474B, 474C(1)(b)

Cases:
- R v Rix [2005] NSWCCA 31 (unreported, 18 February 2005)