Application of Andrew Peter Kalajzich

[2003] NSWSC 1233

CITATION:	Application of Andrew Peter Kalajzich [2003] NSWSC 1233
HEARING DATE(S):	On written submissions.
JUDGMENT DATE:	19 December 2003
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Studdert J
DECISION:	Application for inquiry refused.
LEGISLATION CITED:	Crimes Act, ss 13A, 474D, 474E, 475
CASES CITED:	The Application of Pedrana (2000) 117 A Crim R 459 R v Baartman (unreported, NSWCCA, 30 June 1997) R v Brittain [1999] NSWSC 599 R v Hasenkamp (unreported, NSWCCA, 24 February 1998) R v Hemsley (unreported, NSWCCA, 29 November 1995) R v Jones 110 A Crim R 149 R v Kalajzich & Orrock (1989) 39 A Crim R 415; (1989) 169 CLR 694 R v McLaren (unreported, 22 October 1996) R v Miller (unreported, 3 May 1996) R v Marsala (unreported, 31 May 1996) R v Rendell (1987) 32 A Crim R 243 R v Selewski (unreported, 19 June 1996) R v Vastag (unreported, NSWCCA, 20 June 1997) Varley v The Attorney General (1987) 8 NSWLR 30
PARTIES :	Application by Andrew Peter Kalajzich pursuant to s 474D of the Crimes Act
FILE NUMBER(S):	SC 70059/03
COUNSEL:	Crown: D. Norris (Sol) Applicant: In person
SOLICITORS:	Crown: Crown Solicitor's Office

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT J

Friday 19 December 2003

70059/03 APPLICATION BY ANDREW PETER KALAJZICH PURSUANT TO S 474D OF THE CRIMES ACT

JUDGMENT

1 HIS HONOUR: Andrew Peter Kalajzich (to whom I shall refer as “the applicant”) makes application pursuant to s 474D of the Crimes Act for an inquiry into his conviction for the murder of his wife, Megan Kalajzich.

2 At the outset I record the following chronology:

25 May 1988 The applicant was convicted following his trial with a man named Orrock of the murder of Megan Kalajzich. He was also convicted on two other counts, of conspiracy to murder and of attempt to discharge a loaded gun with intent to murder.

27 May 1988 The trial judge sentenced the applicant to life imprisonment for the murder and to lesser terms of imprisonment concerning the other two charges that led to convictions. The sentences in respect of the lesser charges have been served.

13 April 1989 An appeal to the Court of Criminal Appeal was dismissed.

8 November 1989 An application for leave to appeal to the High Court was refused.

May 1997 The applicant’s sentence for the crime of murder was redetermined, and Hunt CJ at CL set a minimum term of twenty-five years and an additional term of three years. In consequence the applicant will be eligible for release on parole in December 2011.

18 September 1992 Grove J refused to direct an inquiry pursuant to s 475 of the Crimes Act.

3 December 1992 The applicant petitioned the Governor, and an inquiry was directed.

30 May 1995 Following a lengthy inquiry, occupying 117 days and during which 116 witnesses were called and 1315 exhibits were tendered, The Honourable John Slattery AO, QC reported “that there are no doubts or questions about the guilt of [the applicant].”

October 1999 Further submissions prepared by the applicant were forwarded by Mr Alagich to the Attorney General. It was claimed that the report of 30 May 1995 was “seriously flawed in its conclusions”. It was further contended that the commissioner and counsel assisting at the inquiry had “acted maliciously” and that both had “committed an obscene crime”.

12 November 1999 Mr Alagich was informed that pursuant to s 474C(3) of the Crimes Act the Attorney General had refused to consider or otherwise deal with the petition that had been presented as it appeared the matter had been fully dealt with in the inquiry that had culminated in the report of 30 May 1995.

2001/2002 A further application was made to the Attorney General. I draw upon the applicant’s submission in recording that in December 2002 the applicant’s fourth application was refused “following advice and a report by the Crown Solicitor and the Crown Advocate”.

1 July 2003 The applicant formulated the present application under s 474D and the application and supporting material was received by the court on 4 August 2003.

3 Apart from the application with supporting material filed on 4 August 2003, further communications have since been received by my associate from the applicant. Submissions on behalf of the Crown in relation to the application were received under cover of a letter from the Crown Solicitor dated 22 July 2003. The applicant has responded to those Crown submissions by letter dated 16 October 2003.

4 I have taken time to consider all the material that has been placed before me on this application, which material I have placed with the court file. I have also considered the judgment of the Court of Criminal Appeal in the appeal of Kalajzich and Orrock (1989) 39 A Crim R 415; special leave to appeal was refused by the High Court: (1989) 169 CLR 694. I have also considered the report of the inquiry held under s 475 of the Crimes Act presented by The Honourable John Slattery, AO, QC.

5 The relevant legislation is to be found in Pt 13A of the Crimes Act.

6 Section 474D, pursuant to which the application is made, is in these terms:

“(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.
(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.”

7 Section 474E provides:

“1) After considering an application under section 474D or on its own motion:
(a) the Supreme Court may direct that an inquiry be conducted by a prescribed person into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 .
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:
(a) it appears that the matter:
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the repealed provisions, or
(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
(3A) The Supreme Court may defer consideration of an application under section 474D if:
(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or
(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or
(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.
(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).”

8 It is to be observed that the Court should act under s 474E(1) only

“if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”: s 474E(2).

9 It is further to be observed that the Court may refuse to consider or otherwise deal with an application in any of the circumstances specified in s 474E(3)(a), and if the Court is “not satisfied that there are special facts or special circumstances that justify the taking of further action”: s 474E(3)(b).

10 The test as to whether to order an inquiry is whether the available material occasions the Court unease or a sense of disquiet in allowing the conviction to stand: R v Rendell (1987) 32 A Crim R 243; Varley v The Attorney General (1987) 8 NSWLR 30; and The Application of Pedrana (2000) 117 A Crim R 459.

11 I do not propose to canvass the facts in detail. The nature of the Crown case appears sufficiently in the judgment of the Court of Criminal Appeal in Kalajzich and Orrock (supra).

12 This is, in effect, the fifth application which the applicant has made since his appeal to the Court of Criminal Appeal was dismissed, as the chronology of events in para 2 above reveals. Hence the Crown has submitted that the Court should refuse to consider this application, particularly when the matters sought to be raised have previously been considered. The Crown submission cannot be properly weighed without some analysis of what the applicant is now advancing and of what was put forward in support of the earlier applications.

13 The applicant now relies upon two matters:

(a) the evidence available from Ms Jan Windser;

(b) the alleged corruption of Detective Peattie.

14 The evidence of Ms Windser is identified in one of the attachments to the application of the applicant as a statement dated 23 March 1988. The statement reads:

“I have been working at the Manly Pacific International Hotel for about three years. At the beginning of 1986 I had been there for about 10 months having commenced in May of 1985. I knew Andrew Kalajzich as to the owner of the Hotel. I remember a weekend in January of 1986, it was the night, in fact, that Mrs Kalajzich was killed and I saw him about one hour or so before she was killed, it would have been about 11.00 p.m. (I finished work at 11.30 p.m.).
I remember Andrew Kalajzich coming into the back office to check on the Hotel, he came in to check on the Hotel whenever he was out for the night, this was his general practise.
On this night he was very happy, laughing and joking with us like he normally did. He was a friendly happy person with staff. He knew the staff by name, it was like a family business. I remember someone began to clean up and Mr Kalajzich said ‘You will never make a wife in Yugoslavia.’
You could laugh and joke with him provided you did your job, he was happy about it – if he was not happy with you he would tell you. He did not hold grudges, if you had a problem he preferred you to come to him personally to discuss it. He was a marvellous boss as far as I was concerned, if he thought you were wrong he would say so. If he thought you were right he would try to do something about it.
On the night in question he stayed about half an hour, I remember that he left the back office while I was there. He went from the back office to the foyer, I did not see him go out the back door of the Hotel. I have no recollection of seeing Elkins on that night.
If Mr Kalajzich was involved in the death of his wife he must be the world’s greatest actor.”

15 For reasons which I shall shortly consider, the applicant submits that the evidence available from Ms Windser that she finished work at 11.30 pm was very important evidence.

16 In his application the applicant states that the statement from Ms Windser above set out was discovered by him in February 2001. The Crown has questioned the reliability of that assertion, although in response the applicant says that the statement and other material were collected by Philippa Kalajzich from “various sources” and transferred to a CD-Rom disc provided to the applicant. It seems to me that it would indeed be surprising if the applicant was unaware of what Ms Windser was in a position to say earlier than February 2001, particularly having regard to the course of the inquiry that was conducted under s 475 of the Crimes Act. The Crown has observed, in my view correctly, that Ms Windser’s evidence could not properly be regarded as fresh evidence. The rosters for employees at the hotel and the evidence that employees of the hotel could give were matters that could have been ascertained with the exercise of due diligence for the purposes of the applicant’s trial.

17 Be that as it may, what is the importance that the applicant seeks to attach to the evidence of Ms Windser? It was part of the fabric of the Crown case that the applicant telephoned the hotel on the morning of the killing before he dialled 000. Vandenberg, who shot the deceased, was, on the prosecution case, the applicant’s accomplice and it was part of Vandenberg’s evidence that the applicant had told him when the killing was being planned that he would give him a few minutes start after the shooting before raising the alarm. It was the Crown’s contention that if indeed the applicant delayed raising the alarm, this corroborated Vandenberg’s evidence. The Court of Criminal Appeal considered this contention to be correct, and I refer to the judgment of that court (at 451):

“We think that the conduct of Kalajzich, according to his own evidence, immediately after the shooting was capable of corroborating Vandenberg's evidence — if the jury were minded to so treat it. It was open to them to accept evidence that, by five or six minutes after 1 am Mr Taylor had been asked to proceed from the hotel to the premises at Fairlight, but it was not until about 1.17 am that the police were called. These times are not affected by the difficulty in determining upon the evidence the actual time at which the shooting took place. If the jury concluded — as it could well have done — that Kalajzich deliberately delayed for a significant time before calling the police, this would plainly be capable of corroborating the evidence of Vandenberg and implicating the appellant in the commission of the crime. It is no answer to say that the significance of the alleged delay depended entirely upon the evidence of that accomplice. In any event, we do not accept the submission made. The delay of at least 11 or 12 minutes was independently established and its significance, in the context of the surrounding circumstances, was a matter for the jury.”

18 According to a security officer called at the applicant’s trial, James Taylor, he spoke with the switch operator at the hotel no later than 1.05 am and was informed that the applicant had called saying there had been trouble at his home and that he wanted the hotel security assistance there as soon as possible. If Ms Windser is correct, then the evidence that the security officer, James Taylor, gave was not correct. The call to 000 was logged at 1.17 am and it was the evidence of the applicant at trial that he first telephoned the hotel after he had called 000.

19 The Crown has drawn attention in its submissions to the feature that there was a deal of evidence given at the inquiry before Mr Slattery concerning what happened immediately after the shooting. The evidence is reviewed in the report of the inquiry dated 30 May 1995 in a section headed “Five to Seven Minutes Start”. I shall refer to that presently.

20 The hotel night manager was a Mr Hedenik. He did not give evidence at the trial, nor did he make a statement to the police, but he made a statement to the applicant’s investigator in March 1991. He gave evidence at the inquiry on 4 August 1994. He confirmed that he was the night manager on the evening of the murder and he said at the relevant time there was no receptionist on duty; it was the job of the night clerk to answer the telephone. Mr Hedenik did not remember Jan Windser when her name was put to him. At the inquiry he placed the time of the call from the applicant as being after 1.00 am and about 1.05 am but not later than 1.15 am. He said it was one David Lyle, not James Taylor, who was on duty as security.

21 At the inquiry, a private investigator retained by the applicant, Duncan McNab, said that the applicant told him that he did call the hotel before calling the police. He did so to speak to Mr Elkins. In his evidence at the inquiry, the applicant denied that he had said what Mr McNab attributed to him.

22 It is clear from the above review that there were inconsistencies in the evidence before the inquiry as to the applicant’s telephone call to the hotel. Under the heading “Five to seven minutes start”, the commissioner said this:

“Mr Vandenburg said in his record of interview of 16 February 1986 that following the shooting he was to be given five to seven minutes to leave the area. He also said that when the lights went out in the Fairlight home at about 12.50am he waited approximately 15 minutes before entering the house, that is about 1.05am. Although Mr Vandenberg agreed during his examination in chief that the murder occurred about 1.15am he said in cross examination it was not that late.
The petitioner denied at the trial and at the Inquiry that there was any arrangement for the murderer to be given seven minutes to leave the house. He said that after hearing the 1am time signal on the radio he went to bed and turned off his bedside lamp which he claimed the deceased had switched on. He said he went to sleep quickly. His movements and actions following upon hearing two thuds into his pillow are dealt with above.
The petitioner gave evidence at the trial and the Inquiry that he telephoned the Hotel after he had made his first call to the emergency number (which was just after 1.17am). He also said at the trial that he thought he telephoned the Hotel after the second call to the emergency number (which was just after 1.25am). This latter version was clearly not the case as police officers arrived outside the house at 1.24 am and then entered and saw the petitioner beside the deceased.
Willibald Hedenik who was the night manager of the Hotel in January 1986 gave evidence at the Inquiry that when he answered a telephone call shortly after 1am on 27 January 1986 the petitioner was the caller and his voice was shaky and broken. The petitioner asked for Neil Sowerby. When questioned about the time of the call he thought it was about 1.05am and it was certainly not after 1.15am. He also said that Mr Sowerby had left the Hotel about five minutes before this call. He did not then tell anyone about the call from the petitioner.
James John Taylor who was employed as a security officer at the Hotel in January 1986 gave evidence at the trial that he was on duty there between 6pm on 26 January 1986 until 2am the next day. At about midnight he saw Mr Elkins and the petitioner enter the latter’s office. He saw Mr Elkins later at Dalleys. He did not see the petitioner again that evening. About five or six minutes after 1am when Mr Taylor was in Nell’s Bar of the Hotel he received a message through a beeper to contact the switch operator which he did. He was informed by the operator that the petitioner had telephoned asking for security to go to his home as soon as possible. He judged the time because it was usually the time he took up a position near Nell’s Bar because an employee was counting money there. He then spoke to Mr Elkins and obtained his help to go to the petitioner’s home with two other men. They arrived at the Fairlight home at the same time as Mr Sowerby.

Mr Sowerby who did not give evidence at the trial or the Inquiry made a statement on 27 January 1986 in which he said he finished his work as duty manager at the Hotel at about 1am on 27 January 1986. He then travelled to his home unit at Queenscliff taking between three to five minutes to do so. After being home for about five minutes he received a telephone call from the Hotel. He then drove to the petitioner’s home at Fairlight.
As the shooting of the deceased occurred between the petitioner’s retirement to bed shortly after 1am and his call to the emergency number at about 1.17am, the maximum time span was about 17 minutes. After this telephone call another seven minutes elapsed before the first police officer arrived at the house. On the evidence the petitioner did not telephone police immediately on getting out of bed. He inquired first whether Andrew junior and Mrs Carmichael were all right before making the first emergency telephone call. The petitioner was confused as to when he telephoned the Hotel. He was uncertain whether it was between the two emergency calls or after the second one.
The evidence of Mr Taylor is inconsistent with that of Mr Hedenik unless the petition made two telephone calls to the Hotel (something which he has denied). However their evidence supports a call being made to the Hotel at about 1.05am.
A view could be taken on the evidence that the deceased was shot between 1.05am and 1.10am with the first call to the emergency number at about 1.17am. On this approach it could be argued that the murderer was given about seven minutes start.
However it is not necessary to establish the precise time of the shooting and how much time elapsed between the shooting and the first telephone call. On any view it was at least a few minutes before the petitioner made the first call to the emergency number.
After a consideration of all the relevant evidence I am satisfied that nothing has emerged in this aspect of the Inquiry to create any doubt about Mr Vanderberg’s evidence at the trial.”

23 The Crown has drawn attention to these matters:

(i) the applicant gave evidence at the inquiry that Ms Windser had finished duty at 11.30 pm (although what the applicant asserts is that he informed the inquiry he did not speak to Ms Windser);

(ii) counsel for the applicant cross examined Mr Taylor as to his conversation with “Jan”, but it was not suggested to him that he could not have spoken to her because she was not on duty. Counsel, of course, would have been aware of the applicant’s instructions as to this;

(iii) Mr Hedenik’s evidence was that there was no receptionist on duty.

24 The commissioner did not consider it necessary to establish the precise time of the shooting or just how long a period went by between the shooting and the first telephone call, but considered what was important was that there was some delay before the first call to 000.

25 A detailed inquiry preceded the report of 30 May 1995. The commissioner had available evidence that Ms Windser was not on duty at the time that Mr Taylor said he spoke to “Jan” and the commissioner did not regard that as casting doubt upon the applicant’s conviction.

26 In the Court of Criminal Appeal, the court had occasion to remark upon the strength of the prosecution case. At 452 the court said:

“The case against Kalajzich was indeed a strong one, notwithstanding that it depended upon the evidence of accomplices. No reason of any cogency has been advanced, whether at the trial or on the appeal, as to why the accomplices should fabricate their evidence or, indeed, why Vandenberg should kill the deceased, unless it was her husband who desired her death and was responsible for the steps taken to bring it about. We have earlier referred to the case which the Crown sought to make. We should emphasise that it is the combined weight of all the circumstances relied upon, in a case where corroboration depends upon circumstantial evidence, which is to be considered, rather than just the various circumstances looked at in isolation.”

27 The assessment of the commissioner following the later inquiry warrants reference here: having remarked at p 160 that the applicant’s evidence “lacked credibility and was unconvincing” the commissioner went on to say:

“The evidence which has been adduced at this inquiry not only confirms that the petitioner was a party to the contract murder of the deceased but has also established a stronger case against him than at the trial.”

And later, at pp 160-161:

“Having considered all the evidence presented at the Inquiry, I am satisfied:

· the petitioner requested Mr Elkins to locate a person who was prepared to commit a murder (see chapter 11);

· the petitioner gave instructions to Mr Elkins to organise the murder of the deceased (see chapter 11);

· Mr Elkins arranged with Mr Vandenberg for the murder to be committed and he passed on the petitioners’ instructions about how and when it was to be committed (see chapters 9, 11 and 12);

· Mr Vandenberg committed an assault on the deceased on 11 January 1986 after attempting to murder her (see chapters 8 and 12);

· Mr Vanderberg murdered the deceased whilst she slept in her bed on 27 January 1986 (see chapters 10 and 12);

· the weapon used by Mr Vandenberg to murder the deceased was the weapon tendered at the trial as the murder weapon (see chapter 10);

· the petitioner was not asleep at the time of the murder (see chapter 10);

· after the murder the petitioner delivered a briefcase to Mr Elkins which contained money for payment for the murder (see chapter 11);

· thereafter Mr Elkins paid Mr Vandenberg money for committing the murder (see chapters 11 and 12);

· police officers did not act improperly in their dealings with Mr Canellis or in relation to evidence they obtained through him (see chapter 13);

· police officers did not manufacture evidence, tamper with evidence, plant silencers or otherwise act improperly in the investigation (see chapters 9, 13 and 17);

· whilst in gaol the petitioner induced Mr Orrock to co-operate in fabricating events to assist him in obtaining an inquiry (see chapter 15);

· Mr Orrock was untruthful in statements he gave to investigators and initially to the Inquiry including his story about Mr Elkins attending the Crest Hotel at Kings Cross in January 1986 (see chapters 8, 9, 10 and 15);

· police officers did not tamper with the slim briefcase tendered at the trial in order to frame the petitioner (see chapter 14);

· the tender of the slim briefcase at the trial and its use by the jury was not irregular or improper (see chapter 14);

· the criticisms made by the petitioner of the conduct of his trial were unfounded (see chapter 17);

· no person, other than the petitioner, has been shown to have arranged the murder of the deceased (see chapter 17)…

At the completion of the Inquiry, I report that the conclusion to be drawn from the evidence and the material presented to the Inquiry is that there are no doubts or questions about the guilt of the petitioner.”

28 This brings me to the applicant’s fourth application. Ms Windser’s statement formed part of the material considered in relation to that application, having been forwarded by the applicant to the Attorney General on 1 March 2001. In the material provided by the applicant in support of the present application were letters from the Attorney General’s Department to the applicant from which I quote:

Letter dated 27 May 2002 -
“I refer to your letter of 10 May 2002 inquiring about the statement of Ms Jan Windsor which was attached to your letter to the Attorney General of 1 March 2001. This material was furnished to the Crown Solicitor in April 2001…
Nevertheless, all of the material you have supplied, including the letter from Ms Windsor, has been considered and the Crown Solicitor has now furnished his advice. Given the amount of material the Crown Solicitor has had to consider, you will appreciate that the advice is quite long and thorough. That advice is presently with one of the State’s most senior Crown law officers for him to examine and provide his advice to the Attorney General. After the Crown Advocate’s advice has been received, the Attorney General will consider your petition and advise the Governor as to the action that should be taken.”
Letter dated 17 December 2002 -
“I wish to inform you that on 4 December 2002, Her Excellency the Governor with the advice of the Executive Council determined to refuse your petition on the grounds that there is no question or doubt as to your guilt nor is there any sense of unease or disquiet in allowing the convictions recorded against you to stand. The decision to refuse your application was made by the Governor. Accordingly, I am limited to providing you with details as to what reasons the Governor might have considered relevant to her decision based on the information provided to her by the Attorney General.
The decision was taken having regard to comprehensive advice received which, in addition to dealing with the various matters you raised in the letters you wrote to the Attorney General and his predecessor from March 2000 to October 2001, had regard to the matters dealt with in the inquiry carried out before the Hon John Slattery QC and the petition submitted on your behalf by Mr Alagich which was determined in November 1999.
Many of the matters you raised had been previously settled at the inquiry before Mr Slattery. Where the material was new, careful consideration was given to the allegations you made. As well, an examination was undertaken with regard to the input of police officers about whom you did not complain but who have since had their credit impugned to ensure that there was no suggestion that they might have behaved improperly.”

29 My conclusion, having considered the competing submissions, is that the content of the statement of Jan Windser does not occasion me unease or any sense of disquiet in allowing the conviction of the applicant to stand, but that in any event the circumstances in which this application is brought enliven s 474E(3)(a)(ii) of the Crimes Act. The matter here raised has previously been dealt with under Pt 13A of the Crimes Act, and I am not satisfied that there are special facts or special circumstances such as would now warrant the taking of further action.

30 I must, however, address the second of the matters here raised, again not for the first time, namely the alleged corruption of Detective Peattie.

31 The applicant has submitted that Detective Peattie was involved in the investigation into his case and that he was involved in the gathering of the most significant evidence in the Crown case, namely the evidence of Warren Elkins. Further, he submitted that the corruption of that former police officer warrants an inquiry. As the applicant has expressed it: “Det Peattie should be given the opportunity [to] come forward and deny that he was not corrupt in carrying out his duties during the relevant investigation” (para 65 of applicant’s response to Crown submissions).

32 In advancing the application upon the basis of Detective Peattie’s involvement, the applicant referred to decisions of the Court of Criminal Appeal in Jones 110 A Crim R 149, Vastag (unreported, NSWCCA, 20 June 1997), Brittain [1999] NSWSC 599 and Pedrana (2000-2001) 117 A Crim R 459.

33 The Crown has again submitted that this ground was considered before and the Court should not act on it now. In short, it is put that the application of s 473E(3) is attracted.

34 Just as with the first of the grounds advanced by the applicant, the Crown’s primary submission cannot be properly considered without analysis of what the applicant is here putting, and without identifying the occasion of earlier reliance upon the same ground.

35 The Crown acknowledges the fact of the detective’s corruption and evidence of it goes back to a time prior to the events giving rise to the applicant’s conviction. The ready acknowledgement of the detective’s corruption and the evidence of it is recorded in paras 71-76 of the Crown’s written submissions.

36 Following the Police Royal Commission conducted by Wood CJ at CL, there were many cases that came before the Court of Criminal Appeal where the significance of established corruption of a police officer upon a prior conviction fell to be considered. A number of such cases were referred to in Vastag (supra). See also R v Baartman (unreported, NSWCCA, 30 June 1997) and R v Hasenkamp (unreported, NSWCCA, 24 February 1998). The question in cases before the Court of Criminal Appeal essentially is whether, had the evidence of corruption been available in a particular case, there would have existed a significant possibility that the jury at the original trial would have acquitted. In R v Hemsley (unreported, NSWCCA, 29 November 1995) Hunt CJ at CL said (at p 4):

“As stated by the majority in Gallagher v The Queen what must be established in support of the claim that there is fresh evidence is that the absence at the trial of the evidence upon which reliance is placed by the appellant resulted in a miscarriage of justice; an appellate court will so conclude in favour of the appellant only if it considers that there is a significant possibility that the jury at his original trial, acting reasonably, would have acquitted the appellant if that evidence had been before them.”

37 As the judgment of Levine J made clear in Vastag, the particular circumstances of the particular case have to be considered: see also the judgments of the Court of Criminal Appeal in R v Miller (unreported, 3 May 1996); R v Marsala (unreported, 31 May 1996); R v Selewski (unreported, 19 June 1996); R v McLaren (unreported, 22 October 1996); and R v Baartman (supra). In Vastag, Levine J said (at p 24):

“It cannot be stated as a general proposition that merely by reason of a police officer, who has given adverse evidence in a trial, being himself the subject of adverse examination or other adverse reference in the Royal Commission, is sufficient in every case. In most cases of course the revelation of material in the Royal Commission concerning the conduct of a police officer involved in a given trial, more probably than not, would be ‘fresh’ material. The real difficulty that arises is how that ‘material’ could become ‘evidence’ in a trial. A short answer as exemplified by the current appeal is the desire on the part of the appellant to use the ‘adverse material’ in the cross-examination of the police officer as to his credit, subject of course to the operation of Part 3.7 (the Credibility Rule) of the Evidence Act as discussed above. This itself focuses upon another difficulty which at the appellate level may more often than not be incapable of being articulated, namely, the precise manner in which the material from the Royal Commission, will be structured and used in the cross-examination of a given police officer. In Beattie the Court had the benefit of an actual cross-examination. Here we do not. What is clear is that every appeal of this kind will have to be considered carefully on its merits bearing in mind the continuing application of the fundamental principles as to ‘fresh evidence’ appeals.”

38 Of course, in Vastag Levine J was considering the situation where the corrupt police officer had given adverse evidence at the appellant’s trial.

39 The applicant has referred to the case of Brittain (supra) where a successful application was made under s 474D of the Crimes Act arising out of the corruption of police officers. That was again a case, however, in which the prosecution case depended upon the evidence that the corrupt police gave. In part the case was based upon lies allegedly told by the applicant, but the proof of those lies depended upon the evidence as to what the corrupt police claimed the applicant had said to them.

40 Then reference has been made to Pedrana (supra). This was another case in which a corrupt police officer gave evidence at the trial which bore upon the guilt of the accused. The application before Greg James J in Pedrana was an application under s 474D. As Greg James J pointed out in this context, the test for reference to the Court of Criminal Appeal or for the conduct of an inquiry pursuant to s 474E(1) of the Crimes Act is not the test referred to by Hunt CJ at CL in Hemsley in the passage I cited earlier; rather it is the test defined by s 474E(2) of the Crimes Act. What Greg James J said in point in Pedrana was this (para 28):

“Under s 474D of the Crimes Act, the court may direct an inquiry or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). The test for reference of a case to the Court of Criminal Appeal is not the same as that which applies on the hearing of that appeal and which is set out in Vastag and Johns. Section 474E(2) provides that a referral to the court may only be made ‘if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case’. The case law establishes the test for reference of the case or the directing of an inquiry. It is necessary merely that the new material raise ‘a sense of disquiet’ or ‘unease’ in allowing the conviction to stand: Moore (2000) 112 ACrimR 331.”

41 It is of fundamental importance to consider the extent of Detective Peattie’s involvement in the investigation concerning the crime for which the applicant has been convicted. The extent of that involvement is recorded in the Crown submissions to which I now refer.

42 Detective Peattie gave no evidence either at the committal proceedings or at the trial of the applicant. There was, hence, no evidence from him incriminating the applicant.

43 What was his role in the investigation? It has been pointed out by the Crown that he is mentioned only in two connections in the transcript of the inquiry conducted by Mr Slattery, and this was in relation to the witness Elkins, who the Crown acknowledges was a vital Crown witness.

44 A record of interview was conducted on 14 January and 23 January 1987. The interview was conducted by Detective Sergeant Inkster in the presence of Elkins’ solicitor. On 14 January 1987 it was Detective Peattie who typed the record up. On 23 January 1987 it was another police officer. Elkins did not challenge the accuracy of the content of the record of interview. On the contrary, he affirmed the truth of those responses.

45 The only other involvement of Detective Peattie, according to the Crown analysis, was that he took a short statement from Elkins in relation to a telephone answering machine tape and transcript that recorded a message from the applicant as to when “brochures” would be ready. In that short statement which the corrupt officer took, it was recorded that Elkins asserted the word “brochure” was a code word for money. Once again, Elkins gave evidence consistent with that at the trial and affirmed that statement at the inquiry. The applicant said at the inquiry that it could have been his voice on the tape, but he denied that the word “brochures” was a reference to money. Rather, he said, this was a reference to brochures for the coffee shop at the hotel. The issue then on the significance of the telephone answering machine tape was an issue between Elkins and the applicant on their respective versions, and the credibility of Detective Peattie was not involved.

46 I accept the Crown’s submissions that in the absence of any incriminating evidence given by Detective Peattie against the applicant, and having regard to the limited involvement of the detective as pointed out by the Crown, the evidence of this former officer’s corruption is not an occasion for disquiet about the applicant’s conviction.

47 I referred earlier to the matters the subject of consideration in the applicant’s fourth application. The significance of Detective Peattie’s corruption required consideration on that application and I accept the submission by the Crown that on this issue also s 474E(3)(a)(ii) is attracted. Moreover, for the purposes of s 474E(3)(b), I am not satisfied that there are special facts or special circumstances that justify the taking of further action.

48 For the reasons expressed, I conclude that the Court should refuse to consider this application further. The application for an inquiry is therefore refused.

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Last Modified: 12/22/2003