Garvey v The Queen

[2004] WASCA 153

GARVEY -v- THE QUEEN [2004] WASCA 153

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 153
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:172/2002	Heard:	8 APRIL 2004
Coram:	MURRAY J WHEELER J MILLER J	Delivered:	23/07/04
No of pages:	15	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
PDF Version

Parties:	MARK ERIC GARVEY THE QUEEN
Catchwords:	Criminal law and procedure Appeal against conviction Attempt to pervert the course of justice Turns on own facts
Legislation:	Nil
Case References:	R v Rogerson (1992) 174 CLR 268 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : GARVEY -v- THE QUEEN [2004] WASCA 153 CORAM : MURRAY J

WHEELER J
MILLER J

HEARD : 8 APRIL 2004 DELIVERED : 23 JULY 2004 FILE NO/S : CCA 172 of 2002 BETWEEN : MARK ERIC GARVEY

Applicant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GROVES DCJ

File Number : IND 869 of 2001

Catchwords:

Criminal law and procedure - Appeal against conviction - Attempt to pervert the course of justice - Turns on own facts

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Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : Mr B Fiannaca & Mr L M Fox

Solicitors:

Applicant : In person
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

R v Rogerson (1992) 174 CLR 268

Case(s) also cited:

Nil


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1 MURRAY J: I have had the advantage of reading in draft the reasons for decision published by Wheeler J. I am in entire agreement with them and could add nothing useful to them.

2 In my view also, leave to appeal should be refused in this case.

3 WHEELER J: Before dealing with the grounds of appeal, it is necessary to summarise the prosecution case at the trial of the applicant. As the applicant represented himself on the hearing of this appeal, I stress that what follows is a summary of the case as the prosecution presented it. Whether all of the assertions set out below were credible or should have been believed, and if so which of them, was an issue for the jury.

4 On 25 January 1995 the applicant was detected by a Multanova travelling at 76 kmph in a 60 kmph zone. An infringement notice was issued to his girlfriend, who was the registered owner of the vehicle. Approximately one month after the driving, she returned the notice to police with advice that the applicant was the driver and provided the police with an address in Dianella.

5 On 8 March 1995 an infringement notice was issued to the applicant directed to the Dianella address (the 1995 infringement). He wrote to the police traffic camera section requiring the matter be dealt with by a court. On 18 April 1995 police interviewed the applicant and confirmed that he was the driver of the vehicle. A prosecution brief was compiled and a summons prepared and issued. In the meantime, there was certain correspondence between the applicant and the police which I need not detail. On 9 May the applicant inspected the manual for the Multanova camera at the WA Police Radar Section.

6 A summons for this offence (the 1995 offence) was sent for service on the applicant at the Dianella address, but he no longer resided there. The summons was returned unserved and shortly thereafter a notation was placed on police records that there was an outstanding summons, pending a new address being ascertained.

7 In November 1998 the applicant was stopped, while driving a motorcycle, by Sergeant Colby. It was alleged that he was exceeding the speed limit (the 1998 offence) and he was issued with an infringement notice (the 1998 infringement). The applicant gave an Inglewood address.

8 By a letter dated November 1998, the applicant wrote to the Commissioner of Police complaining about Sergeant Colby's conduct, challenging the accuracy of the radar device, and seeking the withdrawal

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of the 1998 infringement. In early December 1998, the police replied to him, advising that they would not proceed with the 1998 infringement pending enquiry into the allegations he had made against Sergeant Colby.

9 However, in the course of processing the 1998 infringement, police records revealed the outstanding summons from 1995. It was despatched to the Inglewood police station for service on the applicant. It was served on 16 December 1998. The applicant then telephoned the police and spoke to Senior Constable Sofulak. In that conversation, he said that he had spoken to police in the Camera and Radar sections in 1995 and been told he would not be prosecuted, for a reason which he gave. He admitted that he was the driver at the relevant time but claimed that the speed recorded for his vehicle was wrong and he was assured he would not be prosecuted. He alleged that the only reason he was now being prosecuted for the 1995 offence was because he had complained about Sergeant Colby.

10 Senior Constable Sofulak sought out the file and after perusing it called the applicant and advised him that the brief appeared to be in order and that there was no record of a withdrawal of the 1995 infringement. He told the applicant that it appeared that it had not been pursued at the time as police were awaiting advice of a new address. He also advised the applicant that one of the officers connected with the 1995 offence was now living in Leinster and that police service policy in the case of witnesses in remote areas, was to assess whether a prosecution would be pursued for reasons of cost.

11 Senior Constable Sofulak reported his conversation with the applicant to his superiors, and drew their attention to the fact that one of the witnesses was not in the metropolitan area. The matter was referred to a more senior officer.

12 In December 1998 the police advised the applicant that they would proceed with the 1998 infringement. He required the matter to be determined by a court, and it was listed for hearing on 11 May 1999.

13 In February 1999, First Class Sergeant Seiler spoke to the applicant, who told him that the 1995 infringement had been withdrawn and told him that he had received written advice to that effect. Sergeant Seiler was unable to find any evidence that the infringement was to have been withdrawn, but informed the applicant that it would not be pursued due to the cost of making available the non-metropolitan witness. The 1995 infringement was then recorded on the police brief as being withdrawn on 23 February 1999.

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14 In approximately mid-April 1999 (that is, after speaking to Sergeant Seiler about the 1995 offence, and before the hearing date in relation to the 1998 offence) the applicant contacted the Anti-Corruption Commission (the "ACC") advising he wished to make a complaint. He attended the ACC office on 28 April 1999 with documents which included a summary of his complaint, copies of the infringement notices, and correspondence between himself and the police. Included amongst those documents was what purported to be a copy of a letter from the police bearing the date 10 May 1995 advising him of the withdrawal of the 1995 infringement. That document made reference to an earlier letter from the applicant to the police dated 1 May 1995 seeking the withdrawal of that infringement.

15 The matter was, in due course, referred to the WA Police Service for enquiry by the Internal Investigation Unit (the "IIU"). Officers of that unit interviewed the applicant in August 1999, and asked him to produce the original of the letter dated 10 May 1995, and a copy of his letter to the police dated 1 May 1995. After the request had been repeated a number of times, the applicant delivered that correspondence to the IIU in September 1999.

16 The 1998 infringement was dealt with by the court on 30 August 1999.

17 Meanwhile, police continued to search their records for correspondence reflecting that supplied by the applicant to the IIU. In January 2000, they executed a search warrant on the applicant's home and seized computer equipment. Analysis of the computers revealed that one tower unit still held on its hard drive a copy of the letter dated 1 May 1995, but that the document had been created in September 1999. Analysis of the contents of the hard drive of seized equipment revealed a deleted file which, when recovered, contained a copy of the letter dated 10 May 1995 (that is, a copy of the letter which the applicant had represented the police had created and sent to him). It was the prosecution's case that the applicant had fabricated the letters of May 1995 in order to support his allegation to police and the ACC that the 1995 infringement had been withdrawn.

18 It was in relation to this case, that the applicant was charged on indictment and convicted of the offence of attempting to pervert the course of justice. A perusal of the prosecutor's closing address demonstrates that the case was put on two bases. First, she alleged that the applicant's false information provided to the ACC alleged conduct on

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the part of police officers which could have led to those officers being charged with and convicted of official corruption. It was open to infer that when the applicant did those acts, he intended to bring about that result. Alternatively, it was put that the allegations of conspiracy were intended to deflect the police from prosecuting the speeding offences, and had the capacity to have that result. His Honour effectively directed the jury in that way.

19 The first of the applicant's grounds of appeal is that the indictment disclosed no offence, because the matters referred to "do not identify any course of justice that could be perverted by the act complained of …". This ground rests on a very narrow view of what is meant by the "course of justice". However, it is well settled that at whatever stage it may be done, an act which has a tendency to deflect law enforcement agencies from prosecuting a criminal offence, and which is done with intent to achieve that result, can amount to an attempt to pervert the course of justice. The position was summarised succinctly by Mason CJ in R v Rogerson (1992) 174 CLR 268 at 277:

"In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted …."

20 Here, there was more than merely a prosecution which the accused contemplated might be instituted. There had been an infringement and a summons had been served. The 1998 offence had been listed for hearing in May 1999. It is not to the point that the police were not in fact deflected from prosecution of the offence; what is relevant is the intention with which the act is done, and its tendency. In my view, a complaint of this kind, particularly if the applicant's letters had been accepted as genuine, could plainly have led to a decision not to pursue the 1998 offence.

21 Further, it is also settled that fabricating evidence with the intention that an individual should be wrongly charged and convicted can amount to an attempt to pervert the course of justice because it is conduct which impairs "the capacity of a court or competent judicial authority to do justice" (R v Rogerson at 280 per Brennan and Toohey JJ).

22 I should note, because it seemed to form part of the applicant's submissions, that the statutory basis of the 1998 offence, and its classification as an indictable or simple offence, is irrelevant. It is a

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perversion of the course of justice to deflect the prosecution of a simple offence, just as it is perversion of the course of justice to deflect the prosecution of an indictable offence.

23 Ground 2 of the applicant's grounds contains a number of particulars. The first is that his Honour failed to properly instruct the jury on the elements of the alleged offence. So far as perverting the course of justice is concerned, his Honour, in my view, adequately directed the jury that that could mean "an attempt to get somebody off a charge that he should be found guilty of or at least tried for" or attempting "to get somebody into trouble who shouldn't be got into trouble", in the justice system. His Honour told the jury that there must be a tendency by what is done to achieve one of those results or both of them and that there must be an intention that it happen. His Honour did not direct the jury in any detail about what constituted an attempt, separately from the concept of attempting to pervert the course of justice. However, this is hardly a case in which there was any need to explain in detail what is after all an ordinary English word. On the Crown case, the applicant had provided considerable information, together with the supporting documents, to the ACC. On the Crown case, the failure to complete the offence of perverting the course of justice was due only to the discovery by investigating officers that documents supplied by the applicant had been falsified.

24 It is alleged that his Honour wrongfully allowed the admission of "uncharged acts" and failed to explain to the jury the way in which they could be used. The "uncharged acts" arose in this way. As I have noted, the prosecution case was that the computer equipment seized from the applicant contained material which demonstrated that the documents he had supplied to the ACC were false. The applicant apparently claimed that the computer equipment was equipment which he was repairing for a client who had, in the applicant's understanding, purchased the computer at a police auction. However, the prosecution evidence was to the effect that the computer had been delivered to the Ministry of Justice in October 1998 and that the applicant was employed by the Ministry as an information technology officer from prior to that date until March 1999. There was evidence that in the course of his employment the applicant would have had access to Ministry computers. Evidence of the possession of the computer which had once been the property of the Ministry of Justice was directly relevant to the issue of whether the applicant had fabricated the letter of 10 May 1995. It was not led to prove the commission of an offence (such as theft or forgery), and no submission was made as to it constituting an offence, nor was any reference made by

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counsel or the Judge to the possibility that some other offence had been committed in relation to the computer. The evidence was plainly probative and admissible. In my view, his Honour was right to refrain from embarking on the exercise of explaining to the jury what other offences by the applicant might have been demonstrated by proof of the ownership of the computer.

25 The applicant alleges that his Honour failed to properly instruct the jury "on the inconsistencies in the evidence of Crown witnesses". He takes particular issue with alleged inconsistencies in the evidence of police witnesses Phillips and Ferguson concerning the two fabricated letters. However, issue is also taken by the applicant with the evidence of a number of other witnesses. Properly understood, in my view, the alleged inconsistencies in relation to Phillips and Ferguson, which relate to the manner in which they obtained the forged documents from the applicant, are not real inconsistencies at all. Phillips agreed that the applicant provided him with one of the documents but also agreed that he "provided" it by dropping it in to the IIU office. Phillips was not entirely clear about how it was dropped off, but said that "as far as he knew", he thought it had been delivered to the receptionist. Ferguson however, said that the applicant produced the documents to him. He was not challenged in cross-examination in relation to the question whether the documents were given to him personally. In my view, the evidence of Phillips is plainly based on his understanding of events in which he was not directly personally involved, and his evidence cannot therefore be seen as contradicting that of Ferguson on this point.

26 So far as all of the other alleged discrepancies or inconsistencies are concerned, none appears to be of a fundamental nature. It is common for inconsistencies and discrepancies to be encountered in the evidence of witnesses. It is a jury question whether discrepancies and inconsistencies which may have existed were consistent with the behaviour of an honest witness endeavouring to recall events which occurred a number of years before, or with falsification or reconstruction of evidence.

27 The applicant further alleges that his Honour, the learned trial Judge, failed "to properly instruct the jury on the disputed facts and circumstances". His Honour fully and clearly put the case for the Crown and the case put on behalf of the applicant to the jury. It was, of course, not his place to take the jury to every disputed fact, but to place adequately and fairly before the jury the respective contentions. In my view, his Honour did that.

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28 Allied with this particular is ground 3, which alleges that his Honour erred "in that he directs the jury that the applicant's version of the facts cannot be believed". His Honour did not direct the jury in those terms. He did tell the jury that that was the Crown's contention, as plainly it was. He also warned the jurors, in the conventional way, that they were not bound by the opinion of counsel or indeed by his opinion.

29 Ground 4 of the applicant's grounds is that his Honour erred in law "in that he failed to adequately direct the jury to the law on conviction relating to a verdict based on circumstantial evidence, hypothesis consistent with innocence". His Honour gave the jury a very full explanation of the concept of an inference, in the context of circumstantial evidence, and he summarised the position in relation to the drawing of inferences as follows:

"If the only rational explanation for the facts as you find them to be is the guilt of the accused, then you are entitled to draw that inference. If that is the only rational explanation for the facts as you find them to be, then you draw that conclusion, that is that the facts are only rationally or reasonably explained by the guilt of the accused. Then, as I say, if you get to that point your duty is to convict. If the facts point away from guilt or if the facts, as you find them to be, are capable of being explained innocently as well as by the guilt of the accused; if there are what lawyers call 'competing inferences' you give the benefit of the doubt to the accused."

30 In the light of his Honour's direction, the jury could have been in no doubt that if there was an hypothesis consistent with the innocence of the applicant, they were required to acquit him. There is therefore no substance in this ground.

31 I should note that under the heading of ground 4, in the applicant's written submissions, there is a very detailed recounting of various innocent explanations of certain matters put forward by him at trial, and there is a series of detailed allegations as to what he alleged to be the contradictory and inconclusive nature of the evidence of a number of the Crown witnesses. These are matters which were before the jury at trial and in relation to which, having been properly directed, it appears that the jury must have found that none of them was capable of giving rise to a reasonable doubt or to an hypothesis consistent with the innocence of the applicant.

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32 Ground 5 alleges that the trial miscarried as a result of his Honour's failure "to properly direct the jury in relation to the burden of the Crown to establish existence of a disputed fact or circumstance". His Honour did, of course, direct the jury plainly and clearly in relation to the onus and standard of proof. The gist of the applicant's complaint in relation to this ground appears to be that the documents dated 1 May 1995 and 10 May 1995 – that is, the documents alleged to have been fabricated by the applicant – were inadmissible in evidence. The reason for that seems to be in part directed to the inconsistencies between the evidence of Phillips and of Ferguson, to which I have already referred.

33 However, the applicant also reiterates in his submissions a number of matters which, in his view, establish that the document dated 10 May was plainly a fabrication, and a poor fabrication which could not have been created by him, due to his expertise in matters of information technology. That, of course, was not a matter which went to the admissibility of the document; rather, it was a matter which was for the jury to determine. The various factual issues relating to the allegedly fabricated documents were very fully canvassed at trial.

34 At trial, the applicant appears to have given at least two different accounts of the way in which the alleged fabricated documents came into existence. There was one rather complex account which involved his having decided to photocopy the letter dated 10 May 1995, and taking it to work for that purpose. Once he had taken it to work for that purpose, he used the document in order to test the scanning capacity of certain equipment which he was required to test as part of his duties. He thought at one stage that the document produced at trial was the document which he had scanned in that way. However, on closer examination during the course of the trial, he said that he had the opportunity to consider the document in more detail and noticed certain characteristics which suggested that it was not the document which he had produced during his test scanning process at all. Indeed, it was his opinion that it was a fabrication which had been produced by someone else altogether. There was also, as I have noted, some evidence given by him which suggested that the computer equipment which had been seized from him, upon which copies of the letters of 1 May and 10 May had been located, was not all his computer equipment at all, but was equipment being repaired by him for another person.

35 It is obviously difficult to fit all of these accounts together, and much was made by the prosecutor in her closing address of what she identified as the applicant's shifting position in relation to the letters of 1 May and

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10 May 1995. His Honour, in dealing with the defence case, did not go in detail to the evidence of the applicant in this respect, but rather pointed to his counsel's submissions which dealt with the need to take care with circumstantial evidence, and which pointed out to the jury that even if they rejected the applicant's account, they could not convict him unless the Crown's evidence satisfied them beyond reasonable doubt. Having regard to the nature of the applicant's evidence, portions of which certainly appear far-fetched when examined on the printed page, his Honour's manner of dealing with the defence case appears to me to have been one which was favourable to the applicant rather than the reverse.

36 Grounds 6 and 7 complain that the verdict of the jury was against the weight of the evidence and that the verdict was unsafe and unsatisfactory and ought to be set aside. The submissions in relation to these two grounds rehearse some of the submissions made in relation to other grounds with which I have already dealt, and do not raise any new material. They must fail, for the reasons given in relation to the earlier grounds.

37 Ground 8 contains a variety of unrelated allegations. I deal with them under their various headings below.

38 Prejudicial conduct of DPP/Refusal of adjournment. These issues revolve around the adjournment application foreshadowed by the applicant's counsel on 16 August 2002, the trial being listed for 19 - 21 August 2002. There were two issues of concern to counsel at that time. One was the unavailability of Sergeant Seiler, who was apparently unwell. The other related to a number of evidentiary issues. It was apparent from the transcript of the application that counsel for the applicant had advised the DPP some time previously of many evidentiary issues of concern to the defence. Some remained unresolved. Others had been resolved with the previous prosecutor but, upon a change of prosecutor, the prosecutor who was to conduct the trial had taken a different view. In relation to those evidentiary issues, it was not suggested that counsel for the applicant had any significant difficulty in understanding what the Crown case was. Rather, the concern was that the trial might be interrupted or prolonged by defence counsel's need to take objection to certain matters as they arose.

39 On 16 August, his Honour, the learned trial Judge, suggested that further enquiries should be made into the health of Sergeant Seiler, and that the prosecutor and counsel for the applicant should continue to consult with a view to resolving as many evidentiary issues as possible.

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On 19 August, counsel for the applicant advised his Honour that issues relating to Sergeant Seiler had been resolved, and his unavailability was no longer a basis of any application made on behalf of the applicant. Some of the other evidentiary issues had been agreed or narrowed, while others were left to be resolved as the trial proceeded. It was not suggested to his Honour that the trial could not proceed.

40 Lack of assertiveness by defence counsel. This issue is allied to that relating to the conduct of the DPP and the failure to adjourn the trial. It appears that at some stage the applicant became aware that a meeting took place between his counsel and the prosecutor in the prosecutor's office on the day preceding the trial, which the applicant describes as a meeting "discussing the case over coffee". The applicant describes this meeting as "collusion". It is not clear whether his concern is with the timing of the meeting, its location, the fact that coffee was consumed, or the fact that it took place at all. All that one can sensibly say about it is that, in the light of the comments of his Honour, the learned trial Judge, on 16 August suggesting that counsel further discuss the evidentiary issues raised by counsel for the applicant, it would be surprising if no conversation had taken place between the prosecutor and the applicant's counsel over the days immediately preceding the trial. A face to face meeting in a location where all relevant documents would be readily available, was obviously a sensible course to take. The fact of the meeting itself is of no significance. The applicant did not point to any change in attitude by his counsel following that meeting, and while he complains generally about a "lack of assertiveness of … defence counsel … through the entire trial", no instances are provided by the applicant. As I have already pointed out, on the printed page much of the applicant's evidence seems far-fetched. Defence counsel was faced with a difficult case and, on my review of the transcript, there is nothing to suggest that he did other than make the best of the materials with which he was faced.

41 Accused denied the opportunity to give crucial evidence. This is a complaint that the applicant was not permitted to give evidence relating to his examination of the Multanova operation manual. It appears that the evidence would have been directed to providing an explanation of the content of the letter which he alleged he wrote to the police traffic branch in May 1995. However, he did give evidence explaining the writing and content of that letter. His evidence as to what he observed on inspecting the Multanova operation manual could have added nothing of relevance to the evidence which he in fact gave.

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42 Trial publicity. Under this heading, it is submitted that the prosecutor "went to incredible lengths to create publicity throughout the trial by saturating all forms of media with her own conspiracy theories". It is submitted that the prosecutor went to the extent of "doing personal interviews each night" in which she "changed or exaggerated her story on each successive night". The applicant was invited to provide the Court with evidence in relation to this contention. It appears that in accordance with the disposal policy of the major television stations, most of the television coverage of the trial is now unavailable.

43 I have, however, viewed the copies of the clippings from newspapers provided by the applicant. There is nothing in that material which points to anything more than the normal reporting by journalists engaged by the newspapers, of the prosecutor's opening and submissions during the course of the trial. There is nothing in that material which points to any initiative taken by the prosecutor either to secure publicity or to place her own views before individual journalists.

44 I have also viewed the videotape provided of the Channel 10 coverage of the trial, which coverage was still available in recorded form. There are two news items contained on that tape. One is from the evening of the first day of the trial. In it, the reporter appears to be quoting from the prosecutor's opening submissions to the jury. There is film footage which includes shots of the applicant himself, of a Multanova camera, of the offices of the ACC, and of the prosecutor. In this last shot, the prosecutor appears to be walking in the vicinity of the Court building. She does not speak directly to the media. The second news item is after the conclusion of the trial, and relates to the sentencing of the applicant. It contains similar footage but contains in addition two very brief extracts during which the prosecutor, unrobed, comments directly to the reporter about the actions of the applicant. Channels 7 and 9 provided footage similar to this last item. Whatever the wisdom of the course taken by the prosecutor at that time, her comments were plainly made at a time when they could have had no impact upon a jury or even upon a sentencing court.

45 Finally, I note that the transcript does not reveal any complaint by the applicant's counsel, during the course of the trial, about publicity sought by, or interviews given, or comments made by the prosecutor. Putting together the inference to be drawn from the transcript together with my observations of those items of newspaper and television coverage which are available, I am able to form the view that nothing said or done

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by the prosecutor during the course of the trial improperly created any adverse publicity.

46 Fresh/new evidence. In addition to the material in his grounds of appeal, the applicant has filed affidavits dated 1 December 2003 and 5 April 2004 in support of an application for leave to adduce additional evidence. The evidence appears to fall into a number of categories. First, it is said by the applicant that he tape recorded all telephone conversations he had with police, particularly those involving IIU officers. He deposes that his counsel advised him against using them during the course of his trial but he deposes also that if allowed the tapes "would have substantially assisted … in his defence". In particular, it is asserted that the tapes would contradict certain evidence given by Inspector Phillips and Senior Sergeant Gasper. Since they were available at trial, the tapes obviously cannot be described as fresh evidence. Further, it is not possible from the applicant's affidavit to form any sensible view of the relevance, if any, of them. He has annexed no transcript of any relevant portion of the tapes to his affidavit, and has not attempted to produce the tapes themselves to the Court. While his affidavit deposes to his view that they would be relevant for the purpose which I have indicated, that is an expression only of the applicant's view. I am unable to form any view as to the relevance and cogency of these tapes, from the material in the applicant's affidavit.

47 The applicant also seeks to be permitted to obtain "independent expert forensic analysis and opinion". He does not identify what documents or other materials would be the subject of such analysis and opinion, nor does he identify what sort of expertise he has in mind, nor does he give any reason in his affidavit for believing that such analysis and opinion would shed any additional light upon any of the issues in the trial. It is obviously not possible to deal with an application made in such broad terms, with no identified basis.

48 Finally, he seeks to adduce evidence from experts in the operation of the Multanova camera which "would have proved the operation of Multanova speed cameras around January 1995 was not in accordance with the manufacturer's instructions and would subsequently have resulted in thousands of, not tens of thousands of, invalid and/or illegally issued speeding infringements". This matter, assuming that such evidence exists, does not appear to relate to anything in issue in the trial. The relevant issue in the trial was not whether the 1995 infringement was "valid" (in the sense of alleging an offence which was able to be proved), but

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whether there was an attempt by the applicant to interfere with the course of justice in the way alleged by the Crown.

49 For completeness, I should note that the applicant also sought the production of a variety of documents which were available at the time of trial. None of them appears to be relevant to any of the grounds of appeal, and there are no submissions made in respect of them. The applicant does generally seek an order that the Court appoint an independent person "with special expert knowledge of documents and printing processes to act as an assessor", and it may be that the documents were sought for examination by that person, but there is no indication of the type of expertise required, why such a person should be appointed, or what documents he or she should assess. In this respect, the appeal appears to be founded upon no more than the applicant's own firm conviction that something was wrong with the prosecution case and with the trial process and that a wide ranging enquiry might uncover material to support his belief.

50 For the reasons given above, it is my view that there is no substance in any of the grounds of appeal and leave to appeal should be refused.

51 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Wheeler J. I agree with those reasons and agree that leave to appeal should be refused.