Grey v The Queen [2001] HCA 65 15 November 2001 S2/2001
ORDER
1.Appeal allowed.
2.Set aside the order of the Court of Criminal Appeal of New South Wales dated 3 March 2000 and in lieu thereof order that:
a) the appellant’s appeal to that Court be allowed;
b) the appellant’s convictions be quashed and a new trial be had of each of the counts of which he was convicted.
On appeal from the Supreme Court of New South Wales
Representation:
P Byrne SC with P J D Hamill and T S Corish for the appellant (instructed by Legal Aid Commission of New South Wales)
N R Cowdery QC with A M Blackmore for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Grey v The Queen
Criminal law – Evidence – Crown witness with prior convictions – Accused unaware that Crown witness had received favourable treatment by the Crown in consideration of testimony against the accused – Whether absence of disclosure to the accused of the favourable treatment of the Crown witness caused the trial of the accused to miscarry – Substantial miscarriage of justice.
GLEESON CJ, GUMMOW AND CALLINAN JJ. The issue in this case is whether a criminal trial miscarried because the accused was not provided with a copy of a letter of comfort which had been given by an investigating police officer to a person who had had an involvement in the events giving rise to the charges against the appellant and was a key prosecution witness against him at his trial.
The facts
On 10 August 1998, the appellant was arraigned and pleaded not guilty to five counts of stealing a motor vehicle and four counts of dishonestly disposing of a motor vehicle. The indictment also contained alternative counts of receiving stolen motor vehicles. A trial before Rummery DCJ and a jury proceeded over the next 13 days. On 26 August 1998 the jury returned verdicts of guilty on each of the nine charges.
The facts in relation to each of five Ford motor vehicles the subject of the counts are essentially the same. A vehicle was stolen when it was left unattended. It was then "re-birthed", that is to say, it was, by the substitution of the identification number of a wrecked or otherwise unroadworthy vehicle, given a new and apparently different identity. Afterwards the appellant sold it.
Simpson J (dissenting) in the Court of Criminal Appeal of New South Wales to which the appellant subsequently appealed[1], described the role of a Crown witness, Mr Reynolds, in this way:
"Reynolds was an important, even critical, Crown witness in relation to each count in the indictment. His…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Grey v The Queen [2001] HCA 65
Case
[2001] HCA 65
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Mr Grey against his convictions for stealing and dishonestly disposing of motor vehicles. The central dispute concerned whether the trial of Mr Grey had miscarried due to the Crown's failure to disclose that a key prosecution witness, Mr Reynolds, had received favourable treatment from the police in exchange for his testimony. Mr Reynolds' credibility was a critical issue at trial, as defence counsel sought to suggest he was responsible for the criminal activities.
The legal issues before the High Court were whether the absence of disclosure regarding Mr Reynolds' cooperation with police, which had resulted in a significantly reduced sentence for him, constituted a miscarriage of justice. Specifically, the Court had to determine if this non-disclosure deprived the appellant of a fair trial and whether, under section 6(1) of the Criminal Appeal Act 1912 (NSW), the appeal should be allowed because of a miscarriage of justice, or dismissed if no substantial miscarriage had occurred.
The High Court reasoned that the non-disclosure of the "letter of comfort" given to Mr Reynolds by the investigating officer was a significant failing. This letter indicated that Mr Reynolds' assistance to the police in investigating widespread vehicle theft and conversion, which likely included the activities leading to Mr Grey's charges, had directly influenced his lenient sentence. The Court found that this information was crucial for assessing Mr Reynolds' credibility and that its absence from the defence meant the appellant was not in a position to fully challenge the prosecution's case. The Court also noted that the non-disclosure likely would have necessitated a warning to the jury under s 165 of the Act regarding the unreliability of Mr Reynolds' evidence, given his potential criminal involvement.
The High Court allowed the appeal, quashed Mr Grey's convictions, and ordered a new trial. The Court concluded that a miscarriage of justice had occurred because the defence was unaware of the special relationship between Mr Reynolds and the police, which had directly benefited him, and that reasonable diligence would not have uncovered this information during the trial.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of New South Wales dated 3 March 2000 and in lieu thereof order that:
a) the appellant’s appeal to that Court be allowed;
b) the appellant’s convictions be quashed and a new trial be had of each of the counts of which he was convicted.
Background
Background to the litigation
GLEESON The issue in this case is whether a criminal trial miscarried because the accused was not provided with a copy of a letter of comfort which had been given by an investigating police officer to a person who had had an involvement in the events giving rise to the charges against the appellant and was a key prosecution witness against him at his trial.The facts On 10 August 1998, the appellant was arraigned and pleaded not guilty to five counts of stealing a motor vehicle and four counts of dishonestly disposing of a motor vehicle. The indictment also contained alternative counts of receiving stolen motor vehicles. A trial before Rummery DCJ and a jury proceeded over the next 13 days. On 26 August 1998 the jury returned verdicts of guilty on each of the nine charges. The facts in relation to each of five Ford motor vehicles the subject of the counts are essentially the same. A vehicle was stolen when it was left unattended. It was then "re-birthed", that is to say, it was, by the substitution of the identification number of a wrecked or otherwise unroadworthy vehicle, given a new and apparently different identity. Afterwards the appellant sold it. Simpson J (dissenting) in the Court of Criminal Appeal of New South Wales to which the appellant subsequently appealed[1], described the role of a Crown witness, Mr Reynolds, in this way:"Reynolds was an important, even critical, Crown witness in relation to each count in the indictment. His evidence was to the effect that in 1992 he ran a motor vehicle wrecking yard in Yennora and that during that year he had sold a number of wrecked vehicles to the appellant. He said these were not in driveable condition at the time of sale. It was the Crown case that the appellant used parts from these vehicles to reconstitute the stolen vehicles.Reynolds was extensively cross-examined by counsel for the appellant at trial, apparently with the intention of establishing in the jury's mind the reasonable possibility that he, not the appellant, was responsible for the thefts and the conversions, and that the appellant had innocently acquired the vehicles from him and disposed of them.The lines of the dispute were therefore clearly drawn, and drawn in such a way that Reynolds' credibility was a serious and important issue. He himself had pleaded guilty in 1993 to a series of charges of a similar nature and had been sentenced to nine months imprisonment to be served by way of periodic detention. So much was known to the appellant's legal advisers, and was used by them in cross-examination on the issue of his credibility. What was not known to the appellant's legal advisers was that in his sentencing proceedings the officer in charge of the investigation, Det Bandouvakis, had provided to the court a letter outlining assistance that Reynolds had given, both in admitting his own guilt, but also, importantly, in relation to police inquiries into 'the activities of a group in the central west of this State, involving the theft and the conversion of Ford motor vehicles, on a widespread basis'. Detective Bandouvakis was the informant in the charges against the appellant. An available inference from the passage extracted above is that the investigation to which reference was made was the investigation which resulted in the present charges. Reynolds was sentenced by Judge Nield on 30 September 1993. Although his Honour's remarks on sentence have, apparently, never been transcribed and the tapes have been destroyed, the Crown prosecutor's note taken at the time of sentence records that the judge ordered that the Bandouvakis letter be placed in a sealed envelope and that, but for the contents of the letter, Reynolds would have been sentenced to a term of full-time custody. Plainly, therefore, Reynolds received, with the support of the prosecution authorities, a very significant benefit resulting from the information he gave Det Bandouvakis.[T]he Crown prosecutor at the trial [was unaware] of the letter … [He] said that if he had known of it he would have told the appellant's counsel about it. Detective Bandouvakis clearly knew of the letter, and he was the informant on the record in the appellant's trial …. "[1]Grey (2000) 111 A Crim R 314 at 319-320 [22]-[27]. The appeal was against both conviction and sentence. The appeal against sentence was abandoned.
Evidence
Evidence Before The Court
Not only would the trial judge not have commented as he did about Mr Reynolds had the appellant been apprised of the letter of comfort, but, also, his Honour would almost certainly have been asked and been probably obliged to give a direction to the jury in terms of s 165(1)(d) and (2) of the Act[7], which relevantly provide as follows:[7] Section 165(3) also provides:"Unreliable evidence(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:…(d)evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,…(2)If there is a jury and a party so requests, the judge is to:(a)warn the jury that the evidence may be unreliable, and(b)inform the jury of matters that may cause it to be unreliable, and(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it." Clearly, the letter could properly found a submission at the trial by the appellant that Mr Reynolds was a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the counts alleged against the appellant. And it is likely, although it is unnecessary to reach a conclusion in this respect, that the judge would have been bound to direct the jury in accordance with s 165(2) of the Act as there do not seem to be any good reasons for not doing so. For the reasons that we have given, there has been a miscarriage of justice in this case. It was not a miscarriage to which the fresh evidence rule applied. It is one thing to say that the defence knew or could have found out about various aspects of unsavoury behaviour on the part of Mr Reynolds but an altogether different thing to say that it knew of the special relationship between Mr Reynolds and the police. And although it might also be possible to say that a lucky (if extremely risky) question of him might have elicited an answer which revealed the existence of the letter of comfort and perhaps even its contents, there was no reason why the defence in a criminal trial should be obliged to fossick for information of this kind and to which it was entitled. Nor can we accept, in any event, as the Court of Criminal Appeal held, that reasonable diligence before or during the trial would have unearthed the letter. The outcome of the appeal depends upon the application of s 6(1) of the Criminal Appeal Act 1912 (NSW), which provides as follows:"Determination of appeals in ordinary cases(1)The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."The only question is whether, as the respondent submits, the appeal should be dismissed because no substantial miscarriage of justice has actually occurred.
In an affidavit read before the Court of Criminal Appeal, counsel who had appeared for the appellant at the trial declared that at no time prior to, or during, the trial was he aware that Mr Reynolds was a police informer. Counsel stated that it was only in August 1999 that he was given a copy of documents and discovered that Mr Reynolds had provided assistance to police as mentioned in Ex G. Counsel stated that, despite the representations made on the no bill submission which he had drafted, he had never been informed by police or the prosecutor of Mr Reynolds' role as a police informer. The Crown Prosecutor at the appellant's trial also prepared an affidavit that was read to the Court of Criminal Appeal. It deposed that he too had been unaware of the matters in Ex G. He stated that it was his belief that, had he been in possession of knowledge about the letter, he would have disclosed that knowledge to the defence.The decision of the Court of Criminal Appeal In the Court of Criminal Appeal, the presiding judge, Grove J (with whom Sully J agreed)[29], defined the "essential issue" as being "whether the absence of communication of the fact that assistance to police was one factor in gaining leniency for Reynolds demonstrates miscarriage of justice in the appellant's trial"[30]. The cross-examination of Mr Reynolds at the trial was, in Grove J's opinion, unmistakable in its suggestion that at the relevant time, he possessed implements that could be used for the purpose of stamping engine and chassis numbers; that such implements had not been produced to police; that at the time of the offences alleged against the appellant Mr Reynolds faced severe financial difficulties; that his car yard in Yennora, a Sydney suburb, was capable of holding a large number of vehicles; that there were discrepancies in logbooks that he was required to keep relating to the sale and disposal of the subject vehicles; and that during the time he had conducted the wrecking business Mr Reynolds had used the implements to place engine and chassis numbers upon certain vehicles, in particular Ford motor cars, and that this process was "not easy"[31].[29]Grey (2000) 111 A Crim R 314 at 315 [3].[30]Grey (2000) 111 A Crim R 314 at 315 [3].[31]Grey (2000) 111 A Crim R 314 at 316 [7]. In the context of this conduct of the appellant's trial, Grove J was of the opinion that the additional ammunition that knowledge of Ex G would have provided to the appellant was "limited". It was confined to Mr Reynolds' "general credit rather than to the facts of the case"[32]. Although the assistance that Mr Reynolds had given to police and its relevance to his gaining leniency in his own sentencing had not emerged during cross-examination at the appellant's committal[33], Grove J quoted part of the committal evidence to demonstrate that effectively, Mr Reynolds had already been questioned extensively as to his credit and as to evidence he had given in other cases[34].[32]Grey (2000) 111 A Crim R 314 at 316 [8].[33]Grey (2000) 111 A Crim R 314 at 316 [12].[34]Grey (2000) 111 A Crim R 314 at 317 [12].