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Court of Criminal Appeal 28 August 2023

Honeysett v Director of Public Prosecutions

[2023] NSWCCA 215

Assault & violenceDrugsPublic order & justice offences

Citation: Honeysett v Director of Public Prosecutions [2023] NSWCCA 215
Court: Court of Criminal Appeal
Date: 28 August 2023
Judges: Beech-Jones CJ at CL; Fagan J; Dhanji J

Background

In October 1987, the appellant was arraigned before a jury in the Supreme Court on charges of maliciously wounding a police officer with intent to prevent his lawful apprehension, and supplying heroin. The prosecution case rested substantially on police evidence that the appellant had stabbed a detective during a surveillance operation and was later arrested in possession of heroin.

On the second day of trial, the appellant pleaded guilty to lesser charges: using an offensive weapon to prevent his lawful apprehension and supplying a prohibited drug. Agreed facts, consistent with the police account, were tendered on sentence. The appellant later stated he entered those pleas having calculated that the volume of actual and anticipated police perjury made conviction inevitable.

In 1994, a Royal Commission into the NSW Police Force was authorised to investigate, among other matters, the circumstances of the appellant's prosecution. Evidence gathered by the Royal Commission, including testimony from most of the officers involved, overwhelmingly indicated that the police had colluded and fabricated evidence: the stabbing of the detective did not occur, a knife had been planted at the scene, and statements falsely accusing the appellant had been knowingly prepared. The appellant applied for a pardon in 2022, and the Attorney-General referred the matter to the Court of Criminal Appeal under the Crimes (Appeal and Review) Act 2001 (NSW), where it was treated as a criminal appeal.

  • Whether the circumstances in which the appellant entered his guilty pleas established a miscarriage of justice warranting the quashing of his convictions.
  • Whether the police conduct, involving fabrication and collusion, was sufficiently analogous to "fraud" to permit a guilty plea to be set aside.
  • Whether, upon the convictions being quashed and acquittals entered, a costs certificate should be granted to the appellant under the Costs in Criminal Cases Act 1967 (NSW).
  • Which version of the Costs in Criminal Cases Act 1967 (NSW) applied, given the significant time elapsed since the original proceedings.

Decision

Miscarriage of justice. Beech-Jones CJ at CL, with Fagan and Dhanji JJ agreeing, held that the Royal Commission evidence overwhelmingly demonstrated that the stabbing allegation was entirely concocted. The detective was not stabbed, a knife was planted, false statements were prepared, charges were maintained on fabricated grounds, and at least one officer committed perjury at trial. The court described this conduct as a shocking perversion of the course of justice.

Guilty plea and fraud analogy. The court reaffirmed that a conviction following a guilty plea can be set aside on appeal where a miscarriage of justice is established. Although a plea entered with a proper understanding of its nature and consequences ordinarily stands, it may be displaced in cases of fraud. The court held that the police conduct was sufficiently analogous to fraud to warrant treating the plea as vitiated. The court also held that, independently, the fresh evidence adduced at the Royal Commission established the appellant's innocence, providing a further and self-sufficient basis for setting aside the convictions.

Costs certificate. The court turned to whether a costs certificate could issue under the Costs in Criminal Cases Act 1967 (NSW). It held that the current form of the Act applied, because the power and occasion to grant a certificate arose only upon the convictions being quashed and acquittals entered, both of which occurred now. The fabricated police evidence constituted additional "relevant facts" within the meaning of the Act. Had the prosecution possessed those facts before proceedings were instituted, it would not have been reasonable to commence them. Sections 2(1)(b) and 3 of the Act were therefore satisfied, and a certificate was granted.

Orders Made

  • Appeal allowed.
  • Convictions entered on 15 October 1987 under s 33B(1)(a) of the Crimes Act 1900 (NSW) and s 32(1)(a) of the Poisons Act 1966 (NSW) set aside.
  • Acquittals entered in lieu of those convictions.
  • Costs certificate granted under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), certifying that had the prosecution been in possession of all relevant facts prior to commencing proceedings it would not have been reasonable to institute them, and that any act or omission by the appellant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

Key Takeaways

  • A conviction entered following a guilty plea can be set aside for miscarriage of justice where the plea was procured by conduct sufficiently analogous to fraud, even if the plea was formally entered with an understanding of its nature and consequences.
  • Fresh evidence establishing an appellant's innocence, such as evidence uncovered by a Royal Commission, provides an independent basis for setting aside a guilty plea on appeal.
  • Police fabrication of evidence, collusion to maintain false charges, and perjury at trial constituted conduct the Court of Criminal Appeal treated as analogous to fraud, sufficient to vitiate the plea.
  • Under the Costs in Criminal Cases Act 1967 (NSW), the version of the Act in force at the time a costs certificate is granted (rather than at the time of the original proceedings) governs the application, where the power to grant the certificate only arises upon the entry of an acquittal.
  • Evidence of police fabrication that, if known before proceedings were commenced, would have made it unreasonable to institute those proceedings, qualifies as "relevant facts" for the purposes of the Costs Act, satisfying the threshold for a certificate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(2), 33B(1)(a)
- Poisons Act 1966 (NSW), s 32(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW), s 77(1)(b)
- Criminal Appeal Act 1912 (NSW)
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Royal Commission (Police Service) Act 1994 (NSW)
- Royal Commissions Act 1923 (NSW)
- Courts Legislation Amendment Act 1998 (NSW)
- Courts Legislation Further Amendment Act 1997 (NSW)

Cases:
- White v R [2022] NSWCCA 241 (applied)
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 (applied)
- Rodden v R [2023] NSWCCA 202 (applied)
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 (cited)
- R v Liberti (1991) 55 A Crim R 120 (considered)
- R v Terry Michael Inns (1974) 60 Cr App R 231 (considered)
- O'Sullivan v R [2002] NSWCCA 98; (2002) 128 A Crim R 371 (considered)
- R v Maltese [2004] NSWCCA 98; (2004) 150 A Crim R 97 (considered)
- DAO v R (No 3) [2016] NSWCCA 282 (cited)
- Allerton v DPP (1991) 24 NSWLR 550 (cited)
- Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 (cited)