Heuston - Application under Part 7 Crimes (Appeal & Review) Act 2001

[2009] NSWSC 1045

CITATION:	Heuston - Application under Part 7 Crimes (Appeal & Review) Act 2001 [2009] NSWSC 1045
HEARING DATE(S):	On written submissions
JUDGMENT DATE :	2 October 2009
JUDGMENT OF:	McClellan CJatCL
DECISION:	Application rejected.
CATCHWORDS:	CRIMINAL LAW - appeal - application for an inquiry - application rejected
LEGISLATION CITED:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 (previously entitled Crimes (Local Courts Appeal and Review) Act 2001) Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006
CASES CITED:	R v Heuston [2003] NSWCCA 172 Varley v Attorney-General (1987) 8 NSWLR 30
PARTIES:	Neil Heuston (Applicant) The Crown
FILE NUMBER(S):	SC 2006/72016
COUNSEL:	L Babb SC/C Morris (Crown Advocate) D Barrow (Solicitor for applicant)
SOLICITORS:	Legal Aid Commission of NSW Crown Solicitors Office of NSW

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

FRIDAY 2 OCTOBER 2009

2006/72016 HEUSTON, Neil

APPLICATION UNDER PART 7 OF THE CRIMES (APPEAL AND REVIEW) ACT

DECISION

1 HIS HONOUR: This is an application by Neil Heuston for an inquiry under s 474D of the Crimes Act 1900 into his conviction for various offences. The applicant seeks a reference of the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the CriminalAppeal Act 1912 pursuant to s 474E(1)(b).

2 On 23 February 2007, the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 commenced. Amongst the amendments effected by this Act was the transfer of Divisions 2, 3, 4 and 5 (ss 474B-474N) of Part 13A of the Crimes Act 1900 concerning review of convictions and sentences to become Divisions 2, 3, 4 and 5 (ss76-88) of Part 7 Crimes (Appeal and Review) Act 2001 (previously entitled Crimes (Local Courts Appeal and Review) Act 2001).

3 A petition or application made before 23 February 2007 (such as the present application) under Part 13A Crimes Act 1900, that had not been finally determined under that Part immediately before its repeal, is taken to be a petition or application under the corresponding provision of Part 7 Crimes (Appeal and Review) Act 2001: cl 13, Schedule 1, Crimes (Appeal and Review) Act 2001.

4 The test to be applied in considering any application is whether or not on the material provided a doubt arises as to the guilt of the applicant. A doubt is an unease in allowing the conviction to stand: see Varley v Attorney General (1987) 8 NSWLR 30 per Hope JA at 48.

5 Barr J considered a similar application, made by the applicant in respect of this and another conviction, on 29 August 2000. His Honour refused each application. The present application is in large part in the same terms as an application previously made in June 2002 pursuant to section 474B and refused in February 2003. It is submitted that, for various reasons, despite the earlier refusals, it is not appropriate to refuse the present application pursuant to section 474E(3)(a)(ii) of the Crimes Act 1900. (See now s 79 (3)(a)(ii) of the Crimes (Appeal and Review) Act 2001).

6 The applicant was convicted of various offences being:

A. On 18 March 1994 the applicant was found guilty by a jury of having committed the following offences on 15 September 1992 at Bowraville -

1. Being armed with an offensive weapon, namely a firearm, robbing Stephen Randall Mulholland and Deborah Yvonne Mulholland of a sum of money, a quantity of cannabis leaf and a number of firearms; and

2. Having sexual intercourse with Deborah Yvonne Mulholland without her consent and knowing that she was not consenting.
B. On 22 September 1995 the applicant was found guilty by a jury of having committed the following offences on 29 November 1991 at Kinchela Creek -

1. Using offensive weapons, namely pistols, with intent to commit an indictable offence, namely assault;

2. Assaulting Ronald Craig Goodwin;

3. Assaulting James Goodwin;

4. Assaulting Rachael Crisp;

5. Assaulting Ronald Craig Goodwin, thereby occasioning actual bodily harm.

7 I shall call the first trial the Mulholland trial and the second trial the Goodwin trial. This application is made in respect of the applicant’s conviction at the Goodwin trial.

8 The history of proceedings relating to the applicant is as follows:

20 June 1995:
Court of Criminal Appeal dismissed the applicant’s appeal regarding the Mulholland convictions.

23 December 1996:
Court of Criminal Appeal (Gleeson CJ, James and Simpson JJ) dismissed the applicant’s appeal (2-1) regarding the Goodwin allegations. (The applicant’s son Shane Heuston was tried jointly with the applicant and the applicant’s brother in the Goodwin trial and was convicted on four of the counts. His appeal was allowed and a new trial ordered).

12 August 1997:
Application for inquiry lodged on behalf of the applicant regarding the Mulholland convictions pursuant to s 474B of the Crimes Act 1900.

12 May 1999:
Shane Heuston’s retrial listed to commence. Craig Goodwin tells the Crown Prosecutor that he has given perjured evidence in the earlier trial.

9 June 1999:
A fresh application is filed on the applicant’s behalf with the Supreme Court pursuant to s 474D of the Crimes Act 1900 regarding the Mulholland and Goodwin convictions.

10 June 1999:
The applicant’s application pursuant to s 474B of the Crimes Act 1900 (lodged on 12 August 1997) is withdrawn.

29 August 2000:
Barr J refused each of the applications made on 9 June 1999.

November 2001:
Police Integrity Commission hearings into Major Crime Squad North commence.

10 June 2002:
A further application pursuant to s 474B of the Crimes Act 1900 is lodged on the applicant’s behalf regarding both convictions.

January 2003:
The Mulholland conviction is referred to the Court of Criminal Appeal.

February 2003:
The Goodwin conviction application is refused.

30 June 2003:
The Court of Criminal Appeal (Hodgson JA, Simpson and Greg James JJ) allows the appeal against the Mulholland convictions and orders a retrial.

6 August 2003:
DPP “no bills” the Mulholland retrial and the applicant is released from custody.

9 The applicant raises eight grounds in relation to the Goodwin conviction. They are as follows:-

A. The decision of the NSWCCA on 30 June 2003 to quash the applicant's convictions in related proceedings that were commenced at the same time involved the same group of corrupt police officers and relied on complainants who, like Craig Goodwin and Ronald Goodwin, were known drug dealers.

B. Failure of police adequately to investigate the complaint or to investigate whether the guns and balaclavas found at the Goodwin's residence may have been linked to the offences alleged by Stephen Mulholland and Deborah Mulholland that were subsequently quashed on appeal and then no billed by the New South Wales DPP.

C. Fresh evidence that Craig Goodwin has admitted to a Crown prosecutor that his statement to the police in relation to this matter contained fabrications, suggesting that he gave perjured evidence against the applicant.

D. Fresh evidence that police officers involved in this matter, Detectives King and Fabris, were involved in the fabrication of evidence against the applicant and Eric Heuston and fresh evidence from the Police Integrity Commission of corruption on the part of investigating police.

E. The manner in which the Goodwins and Rachael Crisp identified the firearms allegedly used in this incident.

F. Possible perjury of James Goodwin at the Taree Local Court.

G. The effect on the applicant's prospects following the obviously false alibi run at the trial by Eric Heuston.

H. The unsatisfactory nature of the case.

10 I shall deal with each of these in turn.

Ground A

11 In the appeal to the Court of Criminal Appeal decided on 30 June 2003 (R v Heuston [2003] NSWCCA 172) the applicant relied upon the material that had been put before Barr J, and also upon material from a subsequent investigation by the Police Integrity Commission into the Major Crime Squad North, relating to all members of that squad, and in particular Detective Fabris and Detective Minehan. Reference to this material is to be found in the detailed summary contained in pars 29 to 37 inclusive of the decision. It is unnecessary to repeat it here. Bearing in mind that the Court of Criminal Appeal was only dealing with the Mulholland trial, the opinion expressed at par 41 of the judgment is instructive. It is as follows: -

41. In my opinion, the effect of this new material would have been to permit a very powerful challenge to the police evidence. It would have been possible for the appellant to make out a strong case that the police officers involved in the Major Crime Squad North had taken weapons to Coffs Harbour with a view to planting them on the appellant, and a strong case that at least Detective Fabris was a person prepared to give perjured evidence, and to invent verbals and plant evidence. Although the signature by the appellant of the notebook, and Sergeant Smith's evidence, and also the identification evidence of the Mulholland's, would still have amounted to strong evidence against the appellant, in my opinion there is a significant possibility that a jury, acting reasonably, would not have been prepared to rely at all on the police evidence, and would have been more sceptical of the other evidence; and for those reasons, would not have convicted the appellant. The possible severe discrediting of the police principally involved in the investigation and the arrest, coupled with the circumstance that the Mulholland's gave evidence by arrangement with the same police in return for an immunity for prosecution, would have been powerful considerations in the appellant's favour.”

12 At par 42 of the judgment, Hodgson JA, with whom Simpson and Greg James JJ agreed, expressed the opinion that the appeal should be allowed on that ground.

13 In submissions filed on behalf of the applicant in the present application, it is argued that a similar position exists regarding the allegations made by the Goodwins. The following reasons are given in support of that argument: -

(a) The same group of police were involved and have subsequently been discredited as corrupt.

(b) The Goodwins gave evidence by arrangement with the same police in return for immunity from prosecution.

(c) Actual evidence exists regarding the improper conduct of officers involved in the trial, as detailed in the memorandum of Wayne Creasey, Crown prosecutor.

(d) Evidence exists linking the Goodwin brothers to the offences allegedly committed against the Mulhollands, providing a powerful motivation to fabricate evidence against the applicant, his brother and his nephew.

14 The reasons listed in the preceding paragraph do not, in my opinion, amount to arguments in support of the ground presently being considered. That is not to say, however, that the matters that they bring forward are unmeritorious. It is perhaps therefore unsurprising that the same arguments are raised in one form or another either as grounds in their own right or as arguments in support of other grounds which I am required to consider. However, the decision of the New South Wales Court of Criminal Appeal on 30 June 2003 allowing the applicant's appeal against conviction in the Mulholland matter does not of itself cause me any relevant sense of unease.

15 With respect to reason (a), the Crown submitted in my view correctly that the police evidence given at the Goodwin trial had little or no impact on the outcome of the trial or the subsequent convictions of the applicant. The police evidence was confined to procedural matters only. It related to taking photographs of guns and arranging for Craig Goodwin, James Goodwin and Rachel Crisp to identify the resulting photographs of those weapons. The police officers gave statements recording this procedure: O’Toole (T650-658), King (T658-712), Fabris (T712-731), Minehan (T732-737) and Lenon (T738-745).

16 A similar claim was made in the previous application and rejected by Barr J. His Honour stated in his reasons for judgment (at paras 95 and 100):

“A more serious difficulty relates to the function in the trial of the evidence of the police officers under attack. In fact none of them did any substantial damage to the applicants. Detective Senior Constable King gave evidence about inviting the second applicant [Mr Heuston] to take part in a formal interview and about the exercise of the second applicant of his right of silence. That evidence was uncontentious. He showed photographs of target pistols to Goodwin, Ms Crisp and Jamie Goodwin. They picked one or more photographs out as being of firearms similar to those used by the applicants in the hold up. All agreed about a particular photograph as being of a gun the same as or similar to one they said was used by the first applicant and Shane Heuston or either of them. Two of them agreed about a photograph of a gun like the one used by the second applicant, but Crisp was only able to say that it was like the guns in three of the photographs she identified .

…

In all the circumstances, the submissions under this ground exaggerate the effect of the police evidence in the case. None of these matters raises in my mind any doubt about the convictions or any unease that they should stand”.

17 In relation to (b), the Crown submits that the jury at the Goodwin trial was made fully aware that the evidence of Craig Goodwin was given under an indemnity, as demonstrated by the following exchange between Mr Heuston’s counsel and Craig Goodwin during the latter’s cross-examination (at T179, 01/09/95):

“Q. In relation to the indemnity you agree that you were given that indemnity from prosecution on the basis of you giving evidence against the Heustons?
A: That’s correct.
Q: Once again you are in a situation where you are in trouble with the police and you are prepared to lie, aren’t you, to improve your position?
A: No I’m not.”

18 The previous application similarly alleged that Craig Goodwin had lied in order to obtain an indemnity. Barr J considered and rejected that claim. His Honour stated in his reasons for judgment (at paras 86 and87):

“Goodwin was cross-examined at the trial for two days and for part of a third day. Many instances of alleged dishonesty were put to him, especially about his cultivation and use of marijuana and about accounts he had given to the police on unconnected matters. His criminal record was exposed and it alone showed that he could have made no claim to be of good character. He admitted lying to the police when he was being interrogated about a stabbing that had taken place at South West Rocks in 1987.

Notwithstanding these matters, the jury believed him, and I think that they were entitled to do so. In my opinion the material now pointed to would be incapable of producing any different result.”

19 One of the grounds of the applicant’s appeal to the CCA in 1996 was that Twigg DCJ failed to give an appropriate warning in relation to the evidence of Craig Goodwin as an indemnified witness. In this regard, Gleeson CJ stated that “[l]eave is required for this ground of appeal to be pursued. Leave should be refused. Furthermore, the directions given to the jury were sufficient” (at 32).

20 Claim (c) relies on Craig Goodwin’s admission to the Crown Prosecutor, that “[t]hey are bad boys, they can make it worse for me than the Heustons can. There are fabrications in here. I can’t remember anyone coming out about the guns, I can’t remember what is in this statement.” Mr Creasey also stated that “I took him to be referring to the statement made by him on 29 August 1995 wherein he referred to the day upon which Detectives King, Lenon and O’Toole came to his place to show him photographs of pistols” (at paras 8 and 9, Annexure G to the Application).

21 The Crown submitted that the assertion that Craig Goodwin’s admissions to Wayne Creasey amounted to “actual evidence” of police corruption is unsubstantiated. Craig Goodwin was extensively cross-examined at the Goodwin trial about the contents of his statement, during which he confirmed his identification of the weapons used during the attack, his description of the weapons given to police and his identification of the photographs (T153-163). Detective Fabris interviewed Craig Goodwin and typed up his statement regarding the guns used during the Goodwin Offences from notes taken by Detective King (T304). Both officers gave evidence before Twigg DCJ regarding the Goodwin Offences (T675-731).

22 It is apparent that the process undertaken by the police to obtain photographs of the weapons and undertake identification of the photographs was closely scrutinised in cross-examination by defence counsel. Although the reputation of some of the police involved is now seriously compromised I have no sense of unease or disquiet about this evidence.

23 In relation to (d), the assertion that there is evidence linking Craig and James Goodwin to the Mulholland offences is based upon the fact that when the police executed a search warrant on Craig Goodwin’s property in March 1993, they found weapons and balaclavas which fitted the description given by the Mulhollands of the weapons used during that robbery. However, the police made no attempt to link these with the Mulholland robbery.

24 Barr J examined these allegations in great detail in considering the previous application and concluded that they did not cause unease about Mr Heuston’s convictions for the Goodwin Offences. His Honour stated (at para 73):

“The Crown did not adduce evidence of the police search of the Goodwin premises on 25 March 1993 in which had been found a Boito shotgun, balaclavas, “camouflage clothing” and the like. No doubt the Crown was aware of the explanation given by Goodwin as to the purchase of the shotgun at a time before the Mulholland offences and unconnected with the applicants and of the balaclavas being kept for the second applicant [Eric Heuston] but from a date preceding the Mulholland offences.”

25 In my opinion the matters relied on in support of Ground A do not support the claim that the reasons for judgment of Hodgson JA in relation to the Mulholland Offences have equal application to the applicant’s convictions for the Goodwin Offences. Although as I have indicated the reputation of some of the police involved has been discredited I am not for that reason left with any sense of unease about the convictions.

Ground B

26 Barr J appears to have dealt with an identical ground commencing at par 73 of his report. So much is apparent from the opening words of that paragraph, which commence "The first ground raises again what is said to be the failure of the police adequately to investigate whether the guns and balaclavas found at Goodwin's premises may have been linked to the Mulholland offences". His Honour considered this argument in detail at pars 73 to 77 inclusive. (It should be noted as well that His Honour dealt with what was, in effect, the same ground in relation to the Mulholland offences at pars 55 to 61 inclusive of the same report). At par 77 his Honour concluded, "The circumstances do not cause me to have any doubt about the correctness of the convictions or to entertain any sense of unease".

27 The matters raised in respect of this ground do not cause me to have any doubt about the correctness of the convictions or to entertain any sense of unease.

Ground C

28 Similarly, Barr J appears to have dealt with an identical ground commencing at par 78 of his report. As his Honour noted, the "ground relies on a statement by Goodwin to a Crown prosecutor that a statement he gave to the police contained fabrications". His Honour also noted "[t]he suggestion is that he must have given false evidence at the trial of the applicants".

29 At par 84 of his report Barr J concluded that nothing in what Goodwin said to the Crown prosecutor caused him any unease about the convictions. In arriving at that conclusion his Honour dealt with precisely the same material that the applicant contends is material relevant to the present application. He concluded, "that the bag itself and its ownership were of no importance at all to the trial". His Honour went on to say that "[e]ven evidence of its contents was of questionable relevance and had an importance appreciated only by defence Counsel".

30 Nothing in my review of this material, including a consideration of the reasoning and conclusions of Barr J, causes me any unease about the conviction.

Ground D

31 A significant part of the application before Barr J included an attack upon the honesty and integrity of Detective Sergeant Fabris and Senior Constable King. However, unlike the attacks made upon these men in the application dealt with by his Honour, the present ground relies upon material that was not before his Honour, but which emerged from evidence given subsequently before the Police Integrity Commission Operation Florida. In addition, the applicant seeks to impugn the honesty and integrity of Dennis Peter O'Toole, M5 (a former police officer who gave evidence under a pseudonym) and the Major Crime Squad generally upon the basis of other material that emerged in the same way.

32 The written submissions of the applicant refer to this material as "fresh evidence". It will be necessary to examine this material in detail in the precise way that it is said to relate to each person or group of persons.

33 The role of Detective Fabris at the Goodwin trial was concerned with his finding of firearms, clothing and balaclavas at the Goodwin residence. He is criticised because he did not, so it was alleged, investigate any link the items had with the Mulholland offences and that he arrested the applicant and interviewed other witnesses.

34 In relation to Detective Fabris, some of the fresh evidence is said to consist of the following: -

· He has committed perjury in criminal trials and given false evidence since before 1988.

The Police Integrity Commission transcript of 27 May 2002 which is said to support this allegation consists in part of the following: -

Q. Putting aside the matter relating to Let’s Dance, have you ever embellished your evidence in any other criminal case, whether at trial, committal or in a summary matter?

A. Yes.

Q. Did that involve you in giving false evidence?

A. Yes.

. . .

Q. So is this the situation, that in other matters you have, in fact, committed perjury?

A. Yes.

. . .

Q. This is the situation, isn't it, that you are prepared to tell lies when it suits you?

A. I was.

Q. You still are, aren't you?

A. I am not telling lies at present - I am telling the truth.

Q. But, in terms of your preparedness to resort to deceit and dishonesty, you are prepared to do that to suit your purposes; is that not correct?

A. I was in the past.

· He has "verballed" and "loaded" suspects.

The Police Integrity Commission transcript of 5 June 2002, which is said to support this allegation, consists in part of the following: -


Q. And you have admitted your activities, corrupt and criminal, throughout your service with the Police Service?

A. Yes.

Q. And that includes instances of what are termed load-ups or loads?

A. Yes.

Q. Verbals?

A. Yes.

Q. False admissions?

A. Yes.

Q. False statements for use in judicial proceedings?

A. Yes.

Q. Perjury?

A. Yes.

Q. You have also admitted lying to the PIC on a previous occasion?

A. Yes.

· He participated in the arrest of A2 and in his verballing and the planting of a gun. He knowingly prepared false statements on the case for other police.

The Police Integrity Commission transcript of 5 June 2002, which is said to support this allegation, consists in part of the following: -

Q. What I would like to do is just show you . . . a copy of the statement apparently prepared by you on 14 April 1994 . . . That's the statement that you made with respect to those proceedings?

A. Yes.

Q. And, in so far as it deals with the purported admissions, that is untrue?

A. Yes.

Q. That did not take place?

A. That's correct.

Q. And, in so far as there is reference as to the apparently legitimate finding of the pistol under the seat of the car at the time, you were aware that was not correct?

A. Yes.

Q. And that it was a load-up?

A. Yes.

35 The applicant also relied upon other material in relation to Detective Fabris to which it is not presently necessary to refer.

36 The role of Detective King at the Goodwin trial was that he arranged for the three complainants to see a group of photographs of various guns, and he prepared statements from each of them to the effect that they all identified the same guns as looking like the guns used by the applicant and others during the robbery.

37 In his case, some of the fresh evidence is said to consist of the following: -

· Detective King maintained in evidence before the Police Integrity Commission that he had never acted corruptly. The Police Integrity Commission heard evidence from other witnesses that Detective King had:

(a) Been a party to the theft of $27,000 from A1;*
(b) Assaulted a suspect known as D6 during an interview;*
(c) Loaded A4 with a gun known as an Uzi and participated in his verballing and prosecution;*
(d) Been involved in the planting of a gun on A2;
(e) Stated on a taped conversation to M5 that he was aware of the cache of weapons held by the Major Crime Squad North and of their disposal in the Hawkesbury River;*
(f) Participated in a conspiracy to pervert the course of justice regarding his own prosecution for drink driving.

*Supporting transcript not supplied.

38 The role of Detective O'Toole at the Goodwin trial was that he was the officer in charge of the investigation. He gave evidence about attending the Goodwin’s home regarding the identification by witnesses of photographs that depicted the types of weapons allegedly used by the Heustons in the incident.

39 Detective O'Toole gave evidence on a number of occasions before the Police Integrity Commission. He denied that he was a corrupt officer or that he was aware of corrupt conduct committed by other officers.

40 In his case, some of the fresh evidence is said to consist of evidence given before the Police Integrity Commission by others that he:

(a) Received stolen cash in the A1 matter; *

(b) Told N1 that he was there to look after the interests of the squad when it came to the division of stolen money and that he had said similar things on other occasions;

(c) Had a cache of weapons used to load suspects;
(d) Would discuss which exhibits to use to load suspects, depending upon the content of the victim's statement;
(e) Was involved in the decision to plant a gun on A2;
(f) Told M5 to plant a gun in a case against M11;
(g) Was a participant in loading M11 with a gun and verballing him.*
* Supporting transcript not supplied .

41 The role of M5 at the Goodwin trial was, in summary, that he gave evidence about attending the Goodwin’s home regarding the identification by the witnesses of photographs that depicted the types of weapons allegedly used by the Heustons in the incident.

42 In his case, some of the fresh evidence is said to consist of the following: -

· M5 acted as an informant for the Police Integrity Commission for several years, accumulating evidence adverse to the integrity of his colleagues in the Major Crime Squad North. The applicant contends that the transcript currently available to him reveals that M5:

(a) Admitted that he had participated in verbals, load ups and perjury between 1987 and 1996;
(b) Helped remove and dump the squad's cache of weapons;
(c) Helped Officer Dowding plant a gun in A2’s car;
(d) Loaded A3;
(e) Made a false statement in the prosecution of A2;
(f) Participated in the loading of M11 at the direction of Officer O'Toole;
(g) Fabricated M11’s confession together with Officer Vicary; *
(h) Was present when Officer Vicary assaulted M11 in order to pressure him to sign the confession; *
(i) Lied in evidence at M11’s committal because he was told to do so; *
(j) Assisted an arrested drug dealer to produce a record of interview that provided him with a defence; *
(k) Received a portion of the money stolen by police from L17’s premises. *
* Supporting transcript not supplied .

43 As will be apparent from the material referred to in the preceding paragraph, not all of the submissions made in support of the application under this ground can be checked against the relevant transcripts, even though references to the location of the relevant material in the transcripts have been provided.

44 In summary, the Crown accepted that it is apparent from this material that Detective Fabris admitted to the PIC that he had given false evidence in other criminal cases at trial and at committal, committed perjury, tampered with evidence and loaded accused persons with guns. In his conversation with the Crown prosecutor just before the retrial of Shane Heuston, Craig Goodwin implied that Detectives King, Fabris and O’Toole had caused false evidence and fabrications to be made in Craig Goodwin’s statement of evidence against the applicant for the Goodwin Offences.

45 However, the Crown emphasised that the police evidence given at the Goodwin trial related only to the identification of weapons. In rejecting this claim in considering the previous application, Barr J stated that “this evidence [by police] was uncontentious” and “[i]t was never the Crown case that any of the photographs selected was of either of the guns used by the attackers” (paras 95 and 96). The police evidence did not seriously impact on the defence.

46 The most important evidence in relation to the Goodwin Offences was that of Craig Goodwin, James Goodwin and Rachel Crisp. This evidence was extensively tested in cross-examination in the trial before Twigg DCJ and its reliability was available to be considered by the jury. A report from the Crown Prosecutor, Mr Wayne Creasey records that when interviewed before trial Mr Craig Goodwin said to him pointing to his statement “you have not been told everything.” He also apparently admitted that at least in one respect his statement was false being an issue related to Eric Heuston and not the applicant.

47 The Crown submitted that, while this ground was of significance in relation to the Mulholland conviction – which has now been quashed – it has little relevance to the police evidence given at the Goodwin trial. I am satisfied this submission should be accepted. The matters raised under this ground do not raise any doubt about Mr Heuston’s convictions for the Goodwin Offences, nor do I have for that reason any unease that his convictions should not stand.

Ground E

48 Once again, Barr J dealt with this ground at pars 101 to 103 inclusive. In support of this ground, the applicant has made detailed submissions.

49 It is submitted that the contention that the photographs of firearms shown to the witnesses were alleged at the trial to be photographs of the actual firearms used in the commission of the offences. However, as Barr J notes in par 101 of his report, "[t]he ground displays a fundamental misunderstanding of the use of the evidence in the Crown case. The Crown did not assert that these were photographs of firearms possessed by the applicants or Shane Heuston."

50 Complaint was made at the trial and is repeated both in the submissions before Barr J and in submissions in support of the present application about the manner in which Detective Senior Constable King displayed the photographs to the witnesses. At the heart of the complaint is the proposition that witnesses who identified firearms shown to them in the photographs were asked to sign the back of those photographs, and that the same set of photographs, including the photographs which had been signed, were subsequently shown to later witnesses. As Barr J noted, evidence was given at trial, which the jury might well have accepted, that subsequent witnesses did not see the backs of the photographs before they identified any photograph in particular. Barr J concluded that there was no substance in this ground, which he noted, "may well explain why it was not raised on appeal." It caused Barr J no unease. It causes me no unease either.

Ground F

51 This ground draws attention to what is described as the possible perjury of James Goodwin when giving evidence at the Local Court at Taree on 6 September 1996. Barr J dealt with precisely this ground in pars 104 and 105 of his report where his Honour said:

“The next ground draws attention to what is described as possible perjury by James Goodwin when giving evidence at the Local court, Taree on 6 September 1996. In March 1996, James Goodwin was charged over his possession of cannabis. The prosecution alleged that he intended to supply it but he was convicted in the end only for its possession. Comparison is drawn between evidence he gave there and evidence he gave at the trial about his use of cannabis. At the trial he said that he had smoked cannabis a couple of times, probably three or four times, over a period between 1984 and 1988, whereas he told the Local Court that the cannabis he possessed was intended for his own use. He said that he had about a year’s supply and that he smoked about one gram a night.
I will assume that the difference is significant and that on one occasion or other Jamie Goodwin lied about the amount of cannabis he smoked. I would not consider such a lie significant in view of the issues raised at the trial or that it would throw any significant doubt on the evidence he gave. This matter causes me no unease.”

52 I agree with the conclusion expressed by Barr J. The matter causes me no unease.

Ground G

53 Barr J, commencing at par 106 of his report, dealt with this ground in some detail. In addition, it was one of the applicant’s grounds of appeal dealt with by the Court of Criminal Appeal on 23 December 1996. The court dismissed the applicant’s appeal, although Simpson J would otherwise have allowed it on a ground directly connected to the applicant’s alibi upon which he relied at the trial. In particular, the applicant complained on appeal about the stage at which the Crown called evidence in reply on this issue and about whether the resulting trial had been unfair.

54 The applicant and his brother were tried together. The applicant's brother raised an alibi defence, which was persuasively demonstrated to have been false. The applicant contends, in effect, that the jury could have concluded that the applicant was merely mistaken about the matters giving rise to the alibi defence raised by him, whereas his brother's alibi defence was demonstrably and obviously fabricated. That was said, in combination with the other matters raised in the application, to give rise to a sense of unease about the conviction.

55 As Barr J pointed out in his report, no complaint was made concerning directions given to the jury about treating the cases separately. As his Honour noted, the ground of the application was little more than an attempt to re-litigate a matter dismissed on appeal. It caused his Honour no unease, and I am of the same view.

Ground H

56 The applicant submitted that on any view of the evidence there had been a criminal association between Craig Goodwin and the Heustons and the relationship was not close in late 1991. Eric Heuston alleged that Craig Goodwin was a large supplier of cannabis from 1989 onwards when he was living in Marrickville. Craig Goodwin denied this in cross- examination. It was common ground that he purchased cannabis from Eric Heuston and subsequently grew it. On the evidence of Craig Goodwin, he had ceased purchasing cannabis from Eric Heuston by November 1991 and had ceased an association with him altogether. It was the case of the applicant and Eric Heuston that there had been a falling out between Eric Heuston and Craig Goodwin because of Goodwin's use of heroin.

57 The applicant further submitted that Eric Heuston said that the Drug Enforcement Agency began an investigation called Operation Greengrocer. Craig Goodwin rang him to say that he was being watched and he and Rachael Crisp moved to Eric Heuston's property. He allowed him to stay there as long as he did not use heroin. When he found him using heroin, Eric Heuston threw Craig Goodwin off the property. The applicant said that he was present when his brother did this.

58 Craig Goodwin sought to explain the delay in complaint because of fear. However, James Goodwin and Rachael Crisp visited Eric Heuston the following day to recover the telephone and cannabis plants allegedly taken. It is submitted that Craig Goodwin in particular had a powerful motive to make false allegations against the Heustons. The applicant contends that the circumstances in which the complaint was made and the indemnity from prosecution granted to Craig Goodwin are matters of concern.

59 Furthermore, Craig Goodwin did not seek medical treatment for the alleged injury to his hand. The applicant contends that the evidence from Dr Stone, called in the applicant's case, suggested that the scar on Craig Goodwin's hand was not consistent with the manner in which he stated the injury was caused.

60 None of these matters give me cause for concern. Barr J dealt with the issue of the injury to Craig Goodwin’s hand in some detail in his report commencing at par 115.

61 The delay in complaint does not cause me concern. The incident that ultimately led to the applicant’s conviction is said to have occurred on 29 November 1991. Craig Goodwin did not report the incident until 25 March 1993. He did so in circumstances in which he was himself charged with firearms and drug offences in respect of which he sought, and was granted, an indemnity from prosecution.

62 It is submitted that the events of 29 November 1991 are inconsistent with a visit the following day by Rachael Crisp and James Goodwin to the home of their alleged assailant. Although this would suggest they may not have any fear of assault on that occasion the concern which allegedly caused them to delay their complaint was of a different character. That concern arose from the risks which they perceived if they reported the incident to police. It was a threat which was dependent on them taking some action to cause problems for the applicant.

63 I have no sense of unease having regard to the matters raised by the applicant under this ground.

Conclusion

64 For the reasons set out above I have concluded that this application must be rejected. The matters raised by Mr Heuston do not cause me any sense of unease or to have any doubt about the relevant convictions.

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