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Court of Criminal Appeal 22 August 2016

Olivieri v R

[2016] NSWCCA 169

Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTION CIRCUMSTANTIAL CROWN CASE WHETHER CONTROLLED OPERATION UNLAWFUL WHETHER TRIAL COUNSEL INCOMPETENT

Citation: Olivieri v R [2016] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 22 August 2016
Judge(s): Leeming JA (primary judgment); Johnson J and Harrison J (agreeing)

Background

The appellant was convicted of the murder of a Petersham solicitor on 6 April 2004. The Crown alleged that a co-accused accountant, who had defrauded the deceased of approximately $83,500 in tax cheques, arranged for the appellant to kill the deceased after the fraud was discovered. Both men were convicted at trial in August 2006.

The appellant was sentenced to 33 years' imprisonment with a non-parole period of 28 years. He filed his notice of appeal approximately eight years after conviction, requiring an extension of time, which the Crown did not oppose in substance.

The Crown's case was entirely circumstantial. There was no fingerprint, forensic, or DNA evidence directly linking the appellant to the scene. The prosecution relied instead on travel records, mobile phone records placing the appellant near the deceased's home the evening before and on the night of the murder, rental car records, and post-offence conduct including use of false names, flight from the jurisdiction, and intercepted telephone conversations.

  • Whether an extension of time to appeal should be granted, given the eight-year delay
  • Whether a controlled operation authorising police surveillance was unlawful, and whether evidence obtained through it should have been excluded under s 138 of the Evidence Act 1995 (NSW)
  • Whether fresh evidence of the absence of the appellant's DNA on certain items should be admitted and whether it warranted a new trial
  • Whether trial counsel was incompetent in the conduct of the defence, resulting in a substantial miscarriage of justice
  • Whether the verdict was unsafe and unsatisfactory under the test in M v The Queen (1994), in that no reasonable jury could have been satisfied beyond reasonable doubt of guilt

Decision

Extension of time and leave: The Court granted the extension of time. Given the severity of the offence, the length of the sentence still to be served, the comprehensive submissions filed by both parties, and the Crown's concession, the Court was satisfied the matter should be resolved on its merits. Leave to appeal was also granted to the extent necessary for grounds that were not questions of law alone.

Controlled operations ground: The appellant challenged the lawfulness of a controlled operation conducted by police, arguing that it had not been properly authorised under the Law Enforcement (Controlled Operations) Act 1997 (NSW) and that evidence derived from it should have been excluded. The Court rejected this ground, finding the authorisation was valid and that no basis for exclusion under s 138 of the Evidence Act arose.

Fresh DNA evidence: The appellant sought to adduce evidence that DNA testing of items from the crime scene had not yielded a match to him. The Court declined to receive this evidence. Its absence was not fresh in any meaningful sense, it was not cogent enough to have affected the verdict, and the circumstantial case did not depend on any positive DNA finding.

Incompetent counsel: The appellant argued that his trial counsel made a series of errors that rendered the trial unfair. The Court examined each alleged failing and concluded that none, individually or cumulatively, constituted incompetence of the kind that would produce a substantial miscarriage of justice under the principles established in Nudd v The Queen and TKWJ v The Queen.

Unsafe and unsatisfactory verdict: Applying the test from M v The Queen and SKA v The Queen, the Court assessed the whole of the evidence and concluded the jury was amply entitled to be satisfied beyond reasonable doubt. The appellant's presence near the deceased's home immediately before the killing, his use of a false name when travelling, the phone calls to the co-accused from a base station near the deceased's home on the evening before the murder, post-offence conversations showing awareness of police interest, payments of money, and subsequent flight to remote locations all formed a cohesive and compelling circumstantial case. The appellant's explanations, including that he was in the area to purchase illicit drugs, were characterised by the Court as implausible in the extreme.

Orders Made

  • Time within which to commence the appeal extended to 30 September 2014
  • Leave to appeal granted to the extent necessary
  • Appeal dismissed

Key Takeaways

  • A purely circumstantial murder conviction can be upheld on appeal where the cumulative weight of travel records, telephone records, hire car records, and post-offence conduct places an accused beyond reasonable doubt, even without fingerprint, forensic, or DNA evidence linking the accused to the scene.

  • The Court of Criminal Appeal confirmed that the absence of DNA evidence does not, of itself, constitute cogent fresh evidence warranting reception on appeal where the Crown's case never rested on any positive DNA link.

  • In dismissing the incompetent counsel ground, the Court applied the established principle that counsel error must produce a substantial miscarriage of justice: criticism of tactical or forensic choices at trial will not, without more, establish that ground.

  • Under the Law Enforcement (Controlled Operations) Act 1997 (NSW), an authorisation for a controlled operation must meet the statutory requirements in ss 6, 7, 8, 16 and 27; where it does, evidence derived from the operation will not ordinarily be excluded under s 138 of the Evidence Act 1995 (NSW).

  • Significant delay in filing a notice of appeal does not automatically defeat the application for an extension of time where the offence is serious, a substantial portion of the sentence remains unserved, and the Crown does not oppose the grant of an extension on its merits.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 176A
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), ss 128, 138
- Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 6, 7, 8, 16, 27

Cases
- Alkhair v R [2016] NSWCCA 4
- Gedeon v NSW Crime Commission [2008] HCA 43; 236 CLR 120
- Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Morgan v R [2011] NSWCCA 257; 215 A Crim R 33
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- R v Olivieri; R v Norman [2006] NSWSC 882
- Shepherd v The Queen (1990) 170 CLR 573
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124