Allison v Lowe

[1988] TASSC 85

Serial No B17/1988

List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:             Allison v Lowe [1988] TASSC 85; B17/1988

PARTIES:  ALLISON
  v
  LOWE

FILE NO/S:  LCA 149/1987
DELIVERED ON:  16 May 1988
JUDGMENT OF:  Nettlefold J

Judgment Number:  B17/1988
Number of paragraphs:  18

Serial No B17/1988

List "B"

File No LCA 149/1987

ALLISON v LOWE

REASONS FOR JUDGMENT  NETTLEFOLD J

16 May 1988

1. The grounds of appeal which must now be determined are grounds 13, 14 and 15 which are as follows:–

"13     There is now fresh evidence available, which was not available at the time of hearing, namely an admission by a Police Officer involved in the raid on the 31st day of July, 1986 that he was aware that the applicant had been 'set up' by another Police Officer.

14      THAT there is now fresh evidence available, which was not available in time at the hearing, namely an admission made by Senior Constable Raymond Muller in about November 1986 to Sally Irene Broughton that he had set up Paul Francis Allison.

15      THAT there is now fresh evidence available, which was not available at the time of the hearing, namely evidence that Police Officers were still endeavouring to set up Paul Francis Allison at the time of the hearing of this Appeal to this Honourable Court in March 1988 by attempting to induce one Ian Ross Carney to assist in setting up Paul Francis Allison in that Police Officers Maxwell, Thompson and Morrison agreed and arranged not to oppose bail when Carney had been charged with forgery on the 17th March 1988."

1. It is convenient to deal first with ground 15.

1. Ian Ross Carney is a witness whose evidence should not be accepted unless it is corroborated by other acceptable evidence. On his own admission he is prepared to lie for gain: his record provides eloquent testimony of the truth of that admission.

1. Carney's allegation against the police is not corroborated. It is rejected.

1. But a positive ground for the rejection of his allegation can be given. The police officers concerned gave evidence denying his allegation. They were impressive witnesses. I accept the substance of their evidence.

1. What happened was that Carney offered to supply information which would incriminate the appellant. Sergeant Maxwell decided to let Carney have bail hoping that Carney would supply the information and believing that, on balance, any risks involved should be taken. In retrospect it can be seen that the Sergeant was wrong. But I have no doubt that he acted in good faith and did what he thought was right.

Ground 14

1. Having studied carefully the whole of the evidence on this matter, I find that Sally Irene Broughton is a witness whose evidence should not be accepted unless it is corroborated by other acceptable evidence. The clear conclusion is that she has given false testimony on a number of points concerning her dealings with the police on the night in question.

1. Her allegation against Senior Constable Muller is not corroborated.

1. There are stark conflicts between the evidence of Mrs. Broughton on the one hand and that of First Class Constable Wilkinson and First Class Constable Chambers on the other. It is sufficient to refer to the following by way of example:–

(1)      The officers swear that, at her home, she was told that her vehicle was seen in the immediate area of the theft and was shown Poppy Security Report No. 1001, following which she admitted having been involved. She denies the admission.

(2)      The officers swear that she took them to where she had hidden a bag containing 90 poppy capsules. And a bag containing 98 poppy capsules was located nearby. She told them that the bag containing 90 capsules was hers. She denies that she went on this journey.

1. Wilkinson and Chambers were impressive witnesses and I have no doubt that on each of the above points of conflict their evidence is true and her evidence is false.

1. Mrs Broughton's allegation that Senior Constable Muller made the remark about his dealings with the appellant which she attributes to him is rejected.

1. It should be noted that in a long, sustained, hostile and bitter attack on Senior Constable Muller it was not suggested that he was a fool and plainly he is not a fool. It is inherently unlikely that a sensible man in Senior Constable Muller's position would make the remark attributed to him to a person he was about to question at the Drug Bureau Office concerning a drug offence. The remark attributed to him amounts to an admission of a grave crime.

Ground 13

1. Before dealing directly with ground 13 reference must be made to the incident at the Good Woman Inn. I accept the evidence of a number of police officers to the effect that on that occasion, on 11 December 1987, the appellant made, inter alia, the following statements:–

(1)      To Inspector McCreadie he said:

"I hope there's no hard feelings about the things I have been saying. I would have done the time but I only get my kids from Queensland twice a year. They're coming down this week for Christmas. I had to be out for them. I had to appeal and keep the pressure on."

(2)      To Inspector McCreadie:

"I would not have appealed if they were not coming down. You know it's all a game cockey."

(3)To Senior Constable Muller, while extending his hand to shake hands with the Senior Constable, something the Senior Constable declined to do:

"No hard feelings cockey, she's just a game. I had to keep the pressure on and do my best. The kids are coming home for Christmas and I had to make sure I was out for them."

1. I specifically reject the evidence of the appellant that he said to Inspector McCreadie "I would have done the time but you know I was set up".

1. I do not accept the appellant as a witness of the truth. On the incident at the KGV Oval I accept the substance of the evidence of First Class Constable Paul and First Class Constable Pearce. I do not accept that First Class Constable Pearce made the statement attributed to him by the appellant.

1. The target of the appellant's attack in these proceedings is Senior Constable Muller. That being so I have considered that officer's evidence carefully and over a long period of time. I find him to be a witness of the truth.

1. The proceedings on these three grounds of appeal have not disclosed anything which casts any doubt on the correctness of the decision of the learned senior magistrate.

1. The appeal is dismissed.