Application by Tony Olivieri pursuant to s 78 Crimes (Appeal and Review) Act 2001

[2017] NSWSC 1394

Supreme Court

New South Wales

Medium Neutral Citation:	Application by Tony Olivieri pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 1394
Hearing dates:	On the papers
Decision date:	13 October 2017
Before:	Latham J
Decision:	The application is dismissed
Catchwords:	CRIMINAL LAW - application for inquiry into conviction - s 78 Crimes (Appeal and Review) Act 2001 - Applicant convicted of murder - appeal dismissed by Court of Criminal Appeal - matters raised by Applicant previously dealt with on appeal - application refused under s 79(3) Crimes (Appeal and Review) Act
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Evidence Act 1995
Cases Cited:	Olivieri v R [2016] NSWCCA 169
Category:	Principal judgment
Parties:	Tony Olivieri (Applicant) Attorney General in and for the State of New South Wales (Respondent)
Representation:
File Number(s):	2017/00103859

Judgment

1. The applicant, Tony Olivieri, was convicted of murder on 28 August 2006 before Hidden J and sentenced on 5 March 2007 to a term of imprisonment of 33 years, comprising a non-parole period of 28 years.

2. In March 2016, the applicant sought to appeal his conviction on a number of grounds. The Court of Criminal Appeal (Leeming JA with whom Johnson and Harrison JJ agreed) extended the time for filing the appeal, heard the appeal, and in August 2016 dismissed the applicant’s appeal: Olivieri v R [2016] NSWCCA 169.

3. On 6 April 2017 the applicant lodged this application which seeks to re-agitate some of the grounds that he argued before the Court of Criminal Appeal and which were comprehensively rejected by that Court.

4. The Crown case at trial was based upon an agreement between the applicant and his co-accused, Mr Norman, that the deceased (a solicitor) would be killed by the applicant in order to prevent the deceased from exposing a fraud on the part of Mr Norman. Whilst there was no direct evidence that the applicant was the person who shot the deceased four times in his home office on the evening of 6 April 2004, there was a powerful circumstantial case against him: Olivieri v R, per Leeming JA at [179].

5. The grounds of appeal before the Court of Criminal Appeal included the following;

1. Pretext calls - unnamed civilian participant (police informant) making pretext calls on 10 June 2004.

2. Fresh evidence - Prof. Barry Boettcher DNA report.

3. New evidence - unused evidence; the evidence that was not used in trial would help the defence to contradict the Crown’s case.

The Grounds of the Application

6. The grounds upon which the applicant claims that a doubt or question appears to exist in respect of his conviction are:

1. Admissibility of telephone intercept; police, and the Crown did not take into account that the applicant was under the influence of drugs during the phone intercepts; any information supplied by a person under the influence of drugs is considered as unreliable evidence.

2. The learned judge erred in admitting Mr Whitehouse’s evidence.

3. Fresh DNA evidence on a piece of metal found at the crime scene, belonging to other suspects and excluding the applicant.

7. In relation to the first ground, the admissibility of the telephone intercept evidence occupied a significant part of the applicant’s appeal to the Court of Criminal Appeal (Ground (1)). The applicant also challenged the admissibility of the intercept material at trial on the grounds of relevance and pursuant to ss 90, 137 and 138 of the Evidence Act1995. The focus of the arguments at trial was the unfairness and/or impropriety arising from a covert operation which led to the publication of the applicant’s photograph.

8. The applicant did not give evidence on the voir dire at trial but did give evidence before the jury. Leeming JA noted in the course of the Court of Criminal Appeal’s decision at [89] that the applicant’s counsel at trial was conscious of the need to obtain instructions in relation to the telephone intercepts for the purpose of the evidence on the voir dire. Counsel at trial was given an opportunity to take instructions from the applicant, after which counsel informed the trial judge that he did not seek to call any evidence from the applicant on the voir dire.

9. It was also observed in the course of the Court of Criminal Appeal’s decision at [156] that counsel at trial was of the view that there was no evidence to suggest that the intercepts had been unlawfully or improperly obtained and that the only argument available to the applicant was that his statements in the course of the intercepts were ambivalent and did not amount to admissions. In those circumstances the construction of the telephone intercepts was left to the jury as matters of fact.

10. Accordingly, there is nothing to suggest that the applicant told his counsel at trial that he was affected by drugs in the course of the conversations. Moreover, there was evidence in the trial from the applicant to the effect that the telephone intercept conversations were referable to the applicant supplying drugs and, inferentially, using drugs. In spite of the prominence that this theme assumed in the applicant’s defence at trial, at no stage did the applicant suggest in the course of his evidence that the telephone intercept material was unreliable on the basis that he was relevantly affected by drugs.

11. Even were that the case, it does not follow that the intercept material is necessarily unreliable. The bulk of the intercept material records conversations between the applicant and other persons, during which there is discussion of the publication of a photograph of the applicant in a daily newspaper in connection with the commission of the murder. The applicant expresses concern that he is being sought by police and discloses an intention to leave the jurisdiction. In fact, the applicant did leave the jurisdiction and was arrested in Western Australia.

12. There is nothing in the applicant’s submissions that raises the appearance of a doubt or question as to the applicant’s guilt on this ground.

13. In relation to the second ground, the applicant alleges error on the part of the trial judge in admitting the evidence of Mr Whitehouse. His evidence went to two issues at trial, namely a telephone call from Mr Whitehouse placed the applicant’s mobile phone in close proximity to the premises of the victim at about the time of the murder and a conversation between Mr Whitehouse and the applicant referring to a pistol which Mr Whitehouse claimed he saw in the applicant’s pants.

14. The applicant claims that Mr Whitehouse’s evidence in respect of the alleged sighting of the pistol was unreliable on a number of bases. They include the inability of Mr Whitehouse to accurately recall the day or the month on which he saw the gun and upon which he had the conversation with the applicant in relation to it, that there was no reference to the time of these events in Mr Whitehouse’s statement, that there was no mention in his statement of a Ms Kapor being present on the occasion when Mr Whitehouse saw the gun, and the inability of the Crown to prove how the murder weapon was transported from Queensland to New South Wales given that the applicant travelled by plane.

15. The admissibility of Mr Whitehouse’s evidence was challenged at trial. The trial judge noted two matters which called Mr Whitehouse’s evidence into question, that is, the difference in colour between the gun described by Mr Whitehouse and the gun components found at the murder scene, and Mr Whitehouse’s inability to say precisely when his conversation with the applicant took place. His Honour admitted the evidence on the basis that it had “considerable probative force” and that the inherent weaknesses in the evidence were matters for the jury.

16. The applicant pursued this issue on appeal as part of Ground (3). Leeming JA noted at [146] that the trial judge directed the jury in relation to the inherent weaknesses of the evidence of Mr Whitehouse and the fact that the evidence was strongly challenged by the applicant. The credibility of Mr Whitehouse was not in issue insofar as the phone call to the applicant at 9pm on 6 April 2004 placed the applicant at Petersham.

17. There is nothing in this ground which raises the appearance of a doubt or question as to the applicant’s guilt.

18. The ground relating to the DNA evidence belonging to someone other than the applicant was also ventilated in the Court of Criminal Appeal (Ground (2)). Leeming JA summarised this ground at [109] in the following terms;

The position in relation to DNA test samples obtained from a part of the gun at the crime scene was that there had been a dispute as to whether the DNA corresponded to that of Mr Olivieri. Expert DNA evidence ultimately was not adduced. In her closing address, the Crown prosecutor made no mention of DNA evidence. Defence counsel submitted to the jury that Mr Olivieri’s DNA had not been found anywhere. The judge made no mention of DNA evidence when summing up. The dispute as to whether the DNA corresponded to that of Mr Olivieri was resolved after the conclusion of the trial favourably to Mr Olivieri.

19. Whether DNA belonging to another person was found on the gun or whether the applicant’s DNA was not found on the gun was of no significance to the Crown case. Ultimately the jury was satisfied beyond reasonable doubt that the applicant was the gunman, based upon the circumstantial evidence, comprising travel records, telephone records and intercepts and banking records. The ground of the application now pressed was pressed on appeal and dismissed by the Court of Criminal Appeal.

20. There is therefore nothing in this ground which raises the appearance of a doubt or question as to the applicant’s guilt of the offence.

21. Whilst I have dealt with the substance of the applicant’s grounds on the basis that this is the applicant’s first application under s 78 of the Crimes (Appeal and Review) Act, the applicant has essentially utilised this procedure as a re-hearing of an appeal that was dismissed. The Court would have been justified in refusing to consider or otherwise deal with the application pursuant to s 79 (3) of the Act.

22. The application is dismissed.

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Decision last updated: 13 October 2017