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Court of Criminal Appeal 22 September 2005

Pollock v R

[2005] NSWCCA 316

Homicide
MURDER CONVICTION 1990 APPLICATION FOR REVIEW OF CONVICTION CRIMES ACT 1901, PART 13A DENIED BY APPELLANT ADMISSIBILITY OF CONFESSIONAL MATERIAL FRESH EVIDENCE

Citation: Pollock v R [2005] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 22 September 2005
Judge(s): Simpson J (primary judgment); Howie J and Rothman J (agreeing)

Background

In November 1990, Daniel Keith Pollock was convicted by jury of the murder of Terrence Damien Ryan, who died on 9 May 1988 after being found critically injured at the base of a fire stairwell in Wollongong. Wood J sentenced the appellant to life imprisonment. An earlier appeal to the Court of Criminal Appeal in 1992 was unsuccessful.

The prosecution case rested substantially on two categories of admissions: first, statements attributed to the appellant in a typewritten record of interview conducted by Detectives Beresford and Gordon in March 1989; and second, a confession the appellant allegedly made to a fellow inmate (referred to as Mr X) while both were held in the Protection Unit of the Metropolitan Remand Centre. The appellant disputed the record of interview at trial, alleging fabrication, duress, and denial of access to a solicitor. Wood J rejected those allegations, accepted the police officers' credibility, and ruled the interview admissible.

In February 2005, Johnson J referred the whole case to the Court of Criminal Appeal under Part 13A of the Crimes Act 1900, following an application for review of conviction. The appellant argued that fresh evidence, including material emerging from the Royal Commission into the NSW Police Service, demonstrated a miscarriage of justice and warranted quashing his conviction.

  • Whether fresh evidence existed that was not reasonably available at trial and that was sufficiently cogent to cast doubt on the correctness of the jury's verdict
  • Whether evidence about the conduct of police witnesses (including breathalyser refusals, alleged participation in an assault, and alleged involvement in a corrupt investigation of a separate murder) was capable of affecting the credibility findings made at trial
  • Whether the established tests for admitting fresh evidence were met
  • Which evidentiary regime applied to the fresh evidence: the rules in force at the time of the original 1990 trial, or the Evidence Act 1995 as it would apply to any new trial
  • Whether the Evidence Act 1995, particularly its provisions restricting evidence going only to credibility (ss 102 and 103), affected the admissibility analysis

Decision

The Court dismissed the appeal, with Simpson J delivering the principal judgment and Howie and Rothman JJ agreeing entirely.

The fresh evidence fell into several categories, all directed at undermining the credibility of the police officers whose evidence had been accepted at trial. These included: a charge against Detective Gordon for refusing to submit to a breath analysis (proved but dismissed without conviction); allegations that a detective had participated in an assault; and claims of inadequate or corrupt investigation of a separate murder. Simpson J examined each category and concluded that none of the material was capable of affecting the outcome of the trial, even if it had been available and admitted at the original hearing.

Critically, the Court noted the existence of other uncontested evidence of admissions by the appellant, principally the evidence of Mr X, which the jury had also received. Even setting aside the disputed record of interview, there was a substantial body of evidence supporting the conviction. The fresh evidence went only to the credibility of particular police witnesses and did not undermine the broader evidentiary foundation of the guilty verdict.

The Court identified but declined to finally resolve two subsidiary questions about the applicable evidentiary regime. These concerned whether the Evidence Act 1995 governed admissibility of the fresh evidence at a hypothetical new trial, and whether evidence relevant only to credibility would be admissible under that Act's more restrictive framework (Part 3.7, ss 102 and 103). Simpson J concluded that resolution of those questions was unnecessary because, in any event, the proposed fresh evidence lacked the cogency required to affect the verdict.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Fresh evidence tendered on a Part 13A review must meet established tests: it must not have been reasonably available at trial, and it must be sufficiently cogent to have affected the jury's verdict. The proposed evidence here failed on cogency.
  • Where a conviction rests on multiple independent categories of evidence, fresh material attacking the credibility of one set of witnesses may be insufficient to disturb the verdict if other uncontested evidence independently supports guilt.
  • The Court of Criminal Appeal identified an unresolved question about which evidentiary regime governs fresh evidence applications brought under Part 13A: the rules applicable at the time of the original trial, or those under the Evidence Act 1995 as it would apply to any new trial. The Court left this question open because it was unnecessary to decide it on the facts.
  • Under the Evidence Act 1995, evidence relevant only to credibility faces significant admissibility restrictions under Part 3.7 (particularly ss 102 and 103), a point the Court flagged as potentially material in future cases of this kind.
  • In dismissing the appeal, the Court confirmed it experienced no doubt or disquiet about the correctness of the 1990 conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 6, 474B, 474E(1)(b), 474L, 556A
- Criminal Appeal Act 1912 (NSW): s 6
- Evidence Act 1995 (NSW): Part 3.7, ss 102, 103
- Evidence (Consequential and Other Provisions) Act 1995 (NSW): Schedule 2, cl 2

Cases:
- Gallagher v The Queen [1986] HCA 26; 160 CLR 392
- Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
- Nye v State of NSW & Ors [2003] NSWSC 1212
- R v Pearson (NSWCCA, unreported, 5 March 1996)
- R v Pollitt [1992] HCA 35; 174 CLR 558
- R v Robinson [1999] NSWCCA 186 (unreported, 14 July 1999)
- R v Saleam (1989) 16 NSWLR 14
- R v Pollock (NSWCCA, 13 April 1992)