Citation: [2017] NSWSC 1394
Court: Supreme Court of New South Wales
Date: 13 October 2017
Judge(s): Latham J
Background
The applicant was convicted of murder in August 2006 and sentenced to 33 years' imprisonment with a non-parole period of 28 years. The Crown case rested on a powerful circumstantial case: the applicant had allegedly agreed to kill a solicitor to prevent him from exposing a fraud perpetrated by the applicant's co-accused. Although no direct evidence placed the applicant as the shooter, telephone intercepts, travel records, banking records, and witness evidence formed a substantial prosecution case.
The applicant appealed to the Court of Criminal Appeal in 2016, raising grounds relating to the admissibility of telephone intercept evidence, fresh DNA evidence, and additional unused evidence. The Court of Criminal Appeal dismissed the appeal comprehensively in August 2016.
In April 2017, the applicant lodged an application under s 78 of the Crimes (Appeal and Review) Act 2001 seeking an inquiry into his conviction. The grounds relied upon in this application substantially mirrored those already rejected on appeal.
Legal Issues
- Whether the telephone intercept evidence was improperly admitted, on the basis that the applicant was allegedly under the influence of drugs during the intercepted calls, rendering his statements unreliable
- Whether the trial judge erred in admitting the evidence of a witness (Mr Whitehouse), which placed the applicant near the crime scene and connected him to a firearm
- Whether fresh DNA evidence from a metal part found at the crime scene raised a doubt or question as to the applicant's guilt
- Whether any of these grounds, individually or collectively, gave rise to the appearance of a doubt or question sufficient to justify an inquiry under s 78
Decision
On the first ground, Latham J found no basis for the drug-use argument. The applicant had not raised this issue during the voir dire at trial, nor during his evidence before the jury, despite his defence prominently featuring a narrative that the intercepted conversations related to drug supply. The intercepts themselves recorded the applicant expressing concern that police were seeking him in connection with the murder and disclosing an intention to flee the jurisdiction, which he then did. Nothing in this ground raised the appearance of a doubt or question as to guilt.
On the second ground, concerning Mr Whitehouse's evidence, Latham J noted that the trial judge had been aware of the weaknesses in that evidence, including imprecision about timing and a discrepancy in the colour of the described firearm. The trial judge had admitted the evidence on the basis of its considerable probative force and directed the jury on its weaknesses. This issue had already been dealt with by the Court of Criminal Appeal, which confirmed the jury was properly directed. No error was established.
On the DNA ground, the Court noted that by the end of trial, the DNA dispute had been resolved in the applicant's favour and defence counsel had told the jury that the applicant's DNA had not been found anywhere. The Crown had not relied on DNA evidence at all. The jury's verdict rested on circumstantial evidence unrelated to DNA, and the ground had already been dismissed on appeal.
Latham J observed that although she addressed the substance of each ground because this was the applicant's first s 78 application, the application was essentially an attempt to re-run a dismissed appeal. The Court would have been justified in refusing to consider the application at all under s 79(3) of the Act.
Orders Made
- The application was dismissed.
Key Takeaways
- Under s 78 of the Crimes (Appeal and Review) Act 2001, an application for an inquiry into a conviction will be refused where it does not raise the appearance of a doubt or question as to the applicant's guilt.
- Grounds that have already been comprehensively rejected by the Court of Criminal Appeal on appeal are unlikely to succeed in a subsequent s 78 application, and s 79(3) of the Act provides an express basis to refuse to consider such applications without engaging with their merits.
- No error was established in admitting witness evidence about a firearm and a phone call placing the applicant near the crime scene, where the trial judge had acknowledged the evidence's weaknesses and directed the jury accordingly.
- Resolving a DNA dispute in an applicant's favour before the verdict does not undermine a conviction where the Crown did not rely on DNA evidence and the jury's findings rested on other circumstantial evidence.
- A fresh argument that an applicant was drug-affected during intercepted calls will not raise a doubt as to reliability where that argument was never raised at trial or on appeal, and where the content of the intercepts independently supports the prosecution case.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(3)
- Evidence Act 1995 (NSW), ss 90, 137, 138
Cases:
- Olivieri v R [2016] NSWCCA 169