Honeysett v Director of Public Prosecutions

Case •

[2023] NSWCCA 215

•

28 August 2023

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Honeysett v Director of Public Prosecutions [2023] NSWCCA 215
Hearing dates: 2 August 2023
Date of orders: 28 August 2023
Decision date: 28 August 2023
Before: Beech-Jones CJ at CL at [1]
Fagan J at [64]
Dhanji J at [65]
Decision:

(1)   Appeal allowed.

(2) Set aside the convictions entered on 15 October 1987 against the appellant for offences under s 33B(1)(a) of the Crimes Act 1900 (NSW) and s 32(1)(a) of the Poisons Act 1966 (NSW).

(3)   In lieu thereof, acquittals be entered.

(4) Grant a certificate to the appellant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), specifying that, in the opinion of this Court:

(i) if the prosecution had been in possession of all of the relevant facts prior to commencing proceedings for an offence under s 33(2) of the Crimes Act 1900 (NSW) and supplying heroin, both offences allegedly committed on 23 December 1983, it would not have been reasonable to institute the proceedings; and

(ii)   any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

Catchwords:

CRIMINAL LAW — appeals — appeal against conviction — miscarriage of justice — appellant arraigned on 6 October 1987 to counts of maliciously wounding a police officer with intent to prevent his lawful apprehension and supplying a prohibited drug — appellant pleaded not guilty — police officer gave evidence consistent with crown case — appellant pleaded guilty on 7 October 1987 to lesser charge of using offensive weapon to prevent his lawful apprehension and supply charge — agreed facts tendered on sentence record appellant stabbed police officer during police pursuit, fled and was arrested in possession of heroin — Royal Commission into New South Wales Police Force revealed police had colluded and fabricated evidence — appellant entered pleas after concluding he would be convicted — whether circumstances established a miscarriage of justice — fresh evidence adduced at Royal Commission overwhelmingly demonstrated that evidence of appellant stabbing police officer and supplying drugs was concocted — actions of police were a form of “fraud” or sufficiently analogous to concept of “fraud” to warrant reversal of plea of guilty — whether appellant should be granted a costs certificate for costs of proceedings at first instance — Costs in Criminal Cases Act 1967 (NSW) in its current form applicable — ss 2(1)(b) and (3) satisfied — appeal allowed — convictions set aside and in lieu acquittals entered — costs certificate granted

Legislation Cited:

Costs in Criminal Cases (Amendment) Act 1971 (NSW)

Costs in Criminal Cases Act 1967 (NSW)

Courts Legislation Amendment Act 1998 (NSW)

Courts Legislation Amendment Act 2001 (NSW)

Courts Legislation Further Amendment Act 1997 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Justices Act 1902 (NSW)

Poisons Act 1966 (NSW)

Royal Commissions Act 1923 (NSW)

Royal Commission (Police Service) Act 1994 (NSW)

Supreme Court (Criminal Appeal) Rules 2001 (NSW)

Cases Cited:

Allerton v DPP (1991) 24 NSWLR 550

DAO v R (No 3) [2016] NSWCCA 282

R v Terry Michael Inns (1974) 60 Cr App R 231

Kearns v R [2011] NSWCCA 103

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41

O’Sullivan v R [2002] NSWCCA 98; (2002) 128 A Crim R 371

R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196

R v Liberti (1991) 55 A Crim R 120

R v Maltese [2004] NSWCCA 98; (2004) 150 A Crim R 97

Rodden v R [2023] NSWCCA 202

R v Rodden (Costs) [2022] NSWSC 1230

White v R [2022] NSWCCA 241

Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371

Category:Principal judgment
Parties: Eric Honeysett (Appellant)
Director of Public Prosecutions (Respondent)
Representation:

Counsel:
J Stratton SC; D Woodbury (Appellant)
M Millward (Respondent)

Solicitors:
Melinda Griffiths Lawyers (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/43858
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Criminal
Date of Decision:
15 October 1987
Before:
Enderby J
File Number(s):
86/09/0034; 84/01/0409

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 6 October 1987, the appellant, Eric Honeysett, was arraigned before a jury on an indictment charging him with maliciously wounding (Detective Sergeant) Richard Paynter on 23 December 1983 with intent to prevent his lawful apprehension contrary to s 33(2) of the Crimes Act 1900 (NSW) and supplying a prohibited drug (heroin). He pleaded not guilty. A police officer gave evidence that, during a surveillance operation, the appellant stabbed Detective Paynter as he was absconding but was later apprehended in possession of a small quantity of heroin. On 7 October 1987, the appellant pleaded guilty to using an offensive weapon to prevent his lawful apprehension contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) (a less serious version of the malicious wounding charge) and supplying a prohibited drug contrary to (former) s 32(1)(a) of the Poisons Act 1966 (NSW). The sentencing judge was a provided with a set of agreed facts that were consistent with the evidence given by the police officer on the first day of the trial. The sentencing judge imposed a custodial sentence.

On 13 May 1994, the Hon Justice Wood was authorised to investigate various matters relating to the New South Wales Police Force, which included the apprehension, charging and prosecution of the appellant (the Royal Commission). The Royal Commission received evidence from most of the police officers involved, including Detective Paynter and the appellant, which was put before this Court. The preponderance of evidence revealed that the police had colluded and fabricated evidence concerning the wounding of Detective Paynter and the supply of heroin. The appellant said he entered his pleas after calculating that the combined weight of the actual and likely perjury of the police officers would inevitably see him convicted.

The appellant applied to the Attorney-General of New South Wales for a pardon on 3 May 2022. The appellant’s case was referred to this Court by the Attorney-General of New South Wales pursuant to s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). The referral is treated as though it were an appeal under the Criminal Appeal Act 1912 (NSW). The appellant sought to quash his convictions on the ground that there was a miscarriage of justice in that the “guilty plea entered by the appellant was not made with free choice”. The appellant also sought a costs certificate for the costs of the proceedings at first instance.

The principal issues on appeal were:

1. whether the circumstances of the appellant’s entering of pleas established a miscarriage of justice (the miscarriage of justice issue); and

2. whether the appellant should be granted a costs certificate (the costs issue).

The Court held (per Beech-Jones CJ at CL, Fagan and Dhanji JJ agreeing), allowing the appeal, setting aside the convictions, entering acquittals and granting a costs certificate for the appellant’s costs at first instance:

As to the miscarriage of justice issue

  1. The evidence adduced before the Royal Commission demonstrated that the evidence in support of the allegation that the appellant stabbed Detective Paynter was concocted, and that Detective Paynter was not in fact stabbed. The actions of the police in planting a knife at the scene, preparing statements that knowingly and falsely accused the appellant of stabbing Detective Paynter and supplying drugs, laying and maintaining charges and, in the case of one police officer, perjuring themselves at the appellant’s trial were a shocking perversion of the course of justice: [44] per Beech-Jones CJ at CL (Fagan J agreeing at [64]; Dhanji J agreeing at [65]).

  2. Where a convicted person appeals a conviction entered following the entry of a plea of guilty the test to be applied is whether they have established a miscarriage of justice. Notwithstanding that a plea of guilty was entered with a proper understanding of the nature of the charge and in full knowledge of the facts admitted by the plea, it can be set aside in cases of fraud. The actions of the police were sufficiently analogous to the concept of “fraud” to establish a miscarriage of justice. In any event, the appellant’s innocence was established by fresh evidence being the evidence given by various police officers at the Royal Commission: [37], [41], [44] per Beech-Jones CJ at CL (Fagan J agreeing at [64]; Dhanji J agreeing at [65]).

White v R [2022] NSWCCA 241; Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, applied. R v Liberti (1991) 55 A Crim R 120; R v Terry Michael Inns (1974) 60 Cr App R 231; O’Sullivan v R [2002] NSWCCA 98; (2002) 128 A Crim R 371; R v Maltese [2004] NSWCCA 408; (2004) 150 A Crim R 97, considered.

As to the costs issue

  1. The fact that the power and occasion for this Court to grant a costs certificate do not arise until the convictions are quashed and the appellant is acquitted suggests that the form of the Costs in Criminal Cases Act 1967 (NSW) (the “Costs Act”) to be applied is its current form. A review of the history of the Costs Act does not alter that conclusion: [51]−[52], [58]−[59] per Beech-Jones CJ at CL (Fagan J agreeing at [64]; Dhanji agreeing at [65]).

  2. Evidence of the police fabricating evidence are additional “relevant facts” for the purposes of s 3(1) of the Costs Act. There can be no doubt that if the prosecution had, before the proceedings were instituted, been in possession of those facts, it would not have been reasonable to institute the proceedings against the appellant. It followed that ss 2(1)(b) and 3 of the Costs Act had been satisfied and a certificate should issue: [60] per Beech-Jones CJ at CL (Fagan J agreeing at [64]; Dhanji agreeing at [65]).

Rodden v R [2023] NSWCCA 202, applied. R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196; DAO v R (No 3) [2016] NSWCCA 282; Allerton v DPP (1991) 24 NSWLR 550, cited.

JUDGMENT

  1. BEECH-JONES CJ at CL: This is a referral from the Attorney-General of New South Wales pursuant to s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the “Review Act”). The referral is treated as though it were an appeal under the Criminal Appeal Act 1912 (NSW). The ultimate orders sought are the quashing of convictions entered against the “appellant”, Eric Honeysett,[1] following his pleading guilty on 7 October 1987 to a charge of using an offensive weapon to prevent his lawful apprehension contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) and a charge of supplying a prohibited drug (heroin) contrary to s 32(1)(a) of the now repealed Poisons Act 1966 (NSW). The appellant also seeks a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (the “Costs Act”).

    1. On 4 August 2023, the Chief Commissioner of the Law Enforcement Conduct Commission varied a suppression order made under s 26(1) of the Royal Commission (Police Service) Act 1994 (NSW) so as to permit the disclosure of the appellant’s name in the Court’s written judgment.

  2. To all outward appearances, the circumstances in which Mr Honeysett entered his pleas of guilty suggest there was a firm adherence to due process. Both the Crown and appellant were represented by experienced counsel. Mr Honeysett entered his pleas of guilty in full knowledge of their meaning and consequences. Yet the entire process of criminal justice was corrupted by the conduct of the police. They fabricated evidence and colluded in such numbers that Mr Honeysett entered his plea having calculated that the combined weight of their actual and likely perjury would inevitably see him convicted. Convictions procured in these circumstances cannot stand and must be set aside. They are an affront to justice.

The Trial and the Pleas of Guilty

  1. On 6 October 1987, the appellant was arraigned in the Supreme Court before a jury panel presided over by Enderby J on an indictment containing two counts. The first count charged him with maliciously wounding (Detective Sergeant) Richard Paynter on 23 December 1983 with intent to prevent his lawful apprehension (contrary to s 33(2) of the Crimes Act). The second count charged him with supplying heroin on the same day.

  2. The appellant pleaded not guilty to both counts. The trial proceeded. On the following day (7 October 1983), the appellant entered pleas of guilty to the two charges noted above (at [1]). They are less serious versions of the charges upon which he was arraigned. On 9 October 1987, a set of agreed facts was prepared and provided to his Honour. The agreed facts recite that, from June 1983, the Joint Commonwealth State Task Force (JTF”) was investigating an importation of heroin. From at least September 1983, the appellant was being sought by the JTF with repeated inquiries being made of his solicitor. The agreed facts further record:

“Information was received on 21 December 1983, that the [appellant] would be at the Camelia Grove Hotel, Alexandria, on the night of 23 December 1983, to supply a person with heroin. As a result surveillance was maintained in the area of that hotel. About 11.15pm that evening the [Appellant] was observed on the corner of Henderson Lane and Alexander Street, Alexandria, in the near vicinity of the hotel. The [appellant] was then observed to walk up Henderson Lane where he met Terrence GRANT and handed him a plastic bag containing 1.4 grammes of white powder which contained a quantity of heroin – percentage not determined. Together with other Police, Detective Sergeant PAYNTER entered the lane and called on the [appellant] and GRANT to stop. They both commenced running. GRANT was arrested by other Police. Detective PAYNTER pursued the [appellant] and took hold of him by the back of his shirt and again called on him to stop. The [appellant] immediately spun around and stabbed Detective PAYNTER in the upper right arm with a medium sized flick knife. Detective PAYNTER let go and the [appellant] jumped the rear fence of 94 Henderson Road, Alexandria, and broke the back door of the premises and ran through the house, however he was stopped by the occupants of the house and subsequently arrested by Police.

The [appellant] was then taken to the Criminal Investigation Branch and interviewed.

The knife used to stab Detective PAYNTER was located in the backyard of 94 Henderson Road, Alexandria. Detective PAYNTER attended St Vincents Hospital where he had five sutures inserted in the wound. He was allowed to leave.”

  1. On the first day of the appellant’s trial and prior to him entering pleas of guilty, a police officer and two lay witnesses gave evidence-in-chief and were cross‑examined. A Detective Sergeant (later known as “JTF14”) told the Court that, at around 11.15pm, he conducted surveillance of the appellant and saw him supply something to Mr Grant. He said Detective Paynter and another Detective (later known as “JTF9”) called out to the appellant and yelled, “Stop Honeysett. Police”, but the appellant and Mr Grant ran. At one point, he saw Detective Paynter grab the back of the appellant’s shirt before Detective Paynter “clutch[ed] his right arm” and called out, “[t]he bastard stabbed me, watch him”. He said that the appellant then jumped a fence and Detective Paynter discharged two shots. JTF14 then assisted JTF9 to climb over the fence. JTF9 unlocked the fence for JTF14 and Detective Paynter and JTF9 then went into the house at 94 Henderson Road, Alexandria. They disappeared from JTF14’s view. JTF14 said he followed them to the house and saw the appellant lying down on the front porch in the company of JTF9, Detective Paynter and other police.

  2. JTF14 said that he returned to Henderson Lane where two other Detectives showed him a small plastic bag “which contained a quantity of a white powdered substance”. JTF14 said he left the scene but returned at around 12.40am and conducted a search of the house and its surrounding area. He said he found a knife “in the garden area adjacent to the gate over which the [appellant] had previously climbed”. In cross‑examination, it was suggested to JTF14 that his evidence of witnessing the wounding of Detective Paynter was false. It was also suggested to JTF14 that he had the knife around the time the appellant was arrested and that blood from Detective Paynter was deliberately placed on the knife. JTF14 denied both suggestions.

  3. The Crown also called a resident of the house at 94 Henderson Road, Alexandria, to give evidence. He said he heard a “loud bang” and saw a man (i.e. the appellant) running through his house. He said that he and his brother caught the appellant and held him until the police arrived. He recalled that the police returned to the house later that evening and asked to “look around”. He recalled the police saying they had “found a knife in the back garden” and asking if it belonged to him.

The Sentence

  1. On 15 October 1987, Enderby J sentenced the appellant to two years imprisonment for the supply offence with a non-parole period of 12 months. For the offence of using a weapon to avoid apprehension, the appellant was sentenced to three years imprisonment with a non-parole period of two years. Both sentences were fixed to commence on 23 December 1983. Thus, they both ran concurrently and expired prior to the time they were imposed.

  2. The rationale for the sentences being fixed in this manner was somewhat convoluted. In short, the appellant had been in custody since his arrest after the above incident in December 1983. In May 1987, Enderby J had sentenced the appellant to a term of imprisonment for conspiring to import heroin. That sentence was fixed to commence from the time of the appellant’s release on a sentence the appellant served for an affray committed in custody. However, in October 1987, this Court ordered that an acquittal be entered on the affray offence. His Honour accepted this meant that in effect the appellant’s sentence for conspiring to import heroin was commenced too late. His Honour observed that, absent the affray offence, the sentence for conspiring to import heroin would have been fixed to commenced on 23 December 1983 but there was apparently no statutory power to address that circumstance. Instead, allowing for totality, the sentence for the two offences the subject of this application was to be backdated. His Honour also noted that, between 23 December 1983 and the time of sentence, the appellant had been convicted and sentenced for perverting the course of justice and then acquitted on appeal.

  3. His Honour also recounted the course of the trial that resulted in the appellant entering pleas of guilty. His Honour noted that the pleas were entered following the Crown determining not to lead evidence concerning “some alleged oral admissions that, if accepted, would have proved the necessary malice in the malicious wounding charge” which were said to be “strenuously denied”. It seems that it was anticipated that the evidence of those admissions would be adduced from Detectives Paynter and Southwell, as described below (at [25]−[26]).

The Royal Commission

  1. By letters patent dated 13 May 1994, the Hon Justice James Wood was authorised by the Royal Commissions Act 1923 (NSW) to investigate various matters relating to the New South Wales Police Force, including “the existence, or otherwise, of systemic or entrenched corruption within the New South Wales Police Service” (the “Royal Commission”).

  2. One of the matters investigated by the Royal Commission was the circumstances surrounding the apprehension, charging and prosecution of the appellant. The Royal Commission received evidence from most, if not all, of the police officers involved, including Detective Paynter and JTF14 as well as the appellant. Their evidence before the Royal Commission, along with their original statements relating to the subject charges, were tendered in this Court. [2] With the exception of one officer, all of the officers who gave evidence in the Royal Commission to the effect that the charges against the appellant were a fabrication did so under a pseudonym, but all those who adhered to the above version of events (at [4]) did not. [3] The one exception was former Detective Trevor Haken.

    2. The Chief Commissioner also made a non-publication direction relating to that evidence for the purposes of the publication of these reasons.

    3. The Chief Commission did not vary any directions or orders concerning the identity of those officers who gave evidence under a pseudonym.

  1. Section 12(1) of the Criminal Appeal Act enables this Court to receive further evidence on appeal “if it thinks it necessary or expedient in the interests of justice”. This is not a free-standing power to receive evidence, but instead must be exercised having regard to the particular ground of appeal (Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [437]). The grounds of appeal are elaborated upon below, but in short, they contend that the evidence given to the Royal Commission demonstrated the appellant’s pleas of guilty were procured in circumstances where the evidence in support of the charges was fabricated. To the extent that this material is that procured from the police officers by the Royal Commission, it is “fresh evidence [that was] not available to the appellant at the trial” (O’Sullivan v R [2002] NSWCCA 98; (2002) 128 A Crim R 371 at [45] per Sheller JA with Grove ad Simpson JJ agreeing; “O’Sullivan”; see also R v Maltese [2004] NSWCCA 408; (2004) 150 A Crim R 97 at [18] per Buddin J with Bell and Simpson JJ agreeing). Otherwise, the evidence given by the appellant to the Royal Commission (and in this Court) about how and why he entered his plea is evidence usually received on an appeal such as this, that is, where a plea of guilty is sought to be reversed as part of a conviction appeal.

Trevor Haken’s Evidence

  1. In (former) Detective Haken’s evidence to the Royal Commission, he stated that he undertook surveillance of the appellant but left the area of the Camelia Grove Hotel shortly after receiving information that the appellant was in the rear lane. He said he was present when the appellant was taken from the front of the house at 94 Henderson Road to a police vehicle. He said that the appellant was taken to the “Drug Squad office at the CIB” (i.e. the Criminal Investigation Branch) and “all police present” at the apprehension of the appellant were “involved” in a “decision… that the injury [to Detective Paynter] would be related to an assault with a knife rather than in the manner that it had been caused”, namely when Detective Paynter cut his arm on a fence. Detective Haken said that he did not know where the knife came from, “but it certainly didn’t come from [the appellant] or from the locale where the incident took place”.

JTF14’s Evidence

  1. JTF14’s statement dated 27 December 1983 was tendered in the Royal Commission. The statement was not relevantly different to the evidence he gave on the first day of the appellant’s trial (see above at [5]−[6]). However, in his evidence at the Royal Commission, JTF14 said that he saw the appellant jump over the fence at around the time he heard two gunshots. JTF14 denied seeing any close physical contact between Detective Paynter and the appellant. He denied ever hearing Detective Paynter state, “[t]he bastard stabbed me, watch him”. JTF14 said that when he returned to the police station, Detective Paynter showed him an injury to his arm and said, “I’ll claim I was stabbed by [the appellant]”. JTF14 said that shortly afterwards, Detective Paynter provided him with a knife with some of Detective Paynter’s blood on it and he (i.e. JTF14) “agreed to take the knife back to the premises in Henderson [Road] and… find the knife and make a statement appropriately”. JTF14 said that he then took the knife back to Henderson Road, threw it over a fence, entered the premises with another police officer and “located” the knife in a garden bed before waiting “until the scientific people arrived”. JTF14 said he returned the knife to Detective Southwell, who was not told of its true origins.

JTF9’s Evidence

  1. A statement made by JTF9 dated 27 December 1983 was tendered at the Royal Commission. JTF9 he said he saw the appellant run down Henderson Lane, that he was pursued by Detective Paynter, and then heard Detective Paynter yell, “The bastard's stabbed me, watch him”. He said he saw the appellant climb over the back fence of premises facing Henderson Road. He said that he climbed over the fence and heard Detective Paynter call out and fire two shots. He said that he ran through the house and found the appellant being restrained by the two occupants of the house. He said he searched the appellant and found a handkerchief in the right pocket of his jeans. In his statement, JTF9 said that in the handkerchief he found three small packets containing a “light coloured substance”.

  2. In his oral evidence to the Royal Commission, JTF9 said that that he heard Detective Paynter fire two shots around the time Detective Paynter had told the appellant to stop. He said that he and Detective Paynter climbed over the fence to try and catch the appellant. After the appellant had been arrested, JTF9 said he saw that Detective Paynter had a cut to his arm that was “bleeding fairly profusely”. However, JTF9 said that at the police station, he participated in a conversation with Detectives Haken, Southwell and Paynter in which it was suggested that “they could drop a malicious wound” charge on the appellant, which he understood would be a “made up charge”. He agreed that that part of his statement in which he said that the appellant stated, “[w]atch him. The bastard’s just stabbed me”, was false. JTF9 also agreed he verified a report by Detective Paynter about the injuries he received on duty which falsely recounted that he was stabbed with a knife.

  3. In relation to the drugs said to have been found on the appellant, JTF9 was taken to that part of his statement in which he recounted removing items from the appellant, examining a handkerchief and finding three small packets containing a light-coloured substance. JTF9 said he had recalled locating handkerchiefs and keys but “never made any examination of anything.” JTF9 confirmed he did not find three small plastic packages.

JTF10’s Evidence

  1. JTF10 was conducting surveillance on 23 December 1983 when the appellant was apprehended. In his oral evidence to the Royal Commission, he said that he did not witness the events surrounding his apprehension as he was “a couple of streets away”. However, he told the Royal Commission that he spoke to another JTF member, JTF16, who was responsible for obtaining a statement from the doctor who treated Detective Paynter’s arm to confirm his injuries were consistent with having been stabbed. JTF10 recounted the following:

“[H]e (JTF16) had some trouble in getting the doctor to say that the wound was consistent with a knife wound. I couldn't recall until just recent times exactly what it was that was said to get the doctor to agree, but I now know that it was the fact that he told the doctor that - she initially said that it wasn't consistent with a knife wound, and he said, ‘Well, that's a bit of a shame. This guy's got 63 convictions, including rape and assault of females’, and the doctor was a lady and she virtually said, ‘Well, where do you want me to sign’, type of thing.”

JTF16’s Evidence

  1. JTF16 participated in surveillance duties on the evening of 23 December 1983 in the Alexandria area. His statement dated 27 December 1983 was tendered to the Royal Commission. The statement recounted observing the appellant being searched and the purported finding of three plastic bags containing a “white powdery substance”. The statement then recounted JTF16 overhearing an alleged conversation with the appellant in a police vehicle on return to the police station with Detectives Paynter and Southwell in which the appellant supposedly said to Detective Paynter, inter alia, “[t]hat fat cunt [referring to Detective Southwell] would have got the same as you [i.e. stabbed] but I dropped the fucking thing.”

  2. JTF16’s statement then set out what is said to be the commencement of an interview with the appellant at the police station by Detective Southwell and JTF16 when Detective Paynter was present. During that part of the interview, the appellant supposedly refused to have his solicitor contacted or present in emphatic terms (“If you bring him in here I’ll break the cunt in two”). The statement recorded Detectives Paynter and Southwell leaving the room, during which the appellant supposedly stated to JF16, “I am fucked for 20 years because of fucking Paynter”. The statement recorded that Detective Southwell returned to the room and the appellant was supposedly asked about the drug importation noted at [4]. The alleged questions and answers on that topic are not of present relevance. The statement suggested that the questioning then concerned the matters the subject of this application. Amongst other alleged admissions, JTF16’s statement asserted that the appellant stated he had the knife “in case it was a [drug] rip-off”, but lost it in when he “jumped the fence”, and also that Detective Paynter “was fucking lucky I only nicked him” and that “I stuck him so he would let go before the others helped him”. There is no suggestion that any of the admissions are recorded.

  3. In his oral evidence to the Royal Commission, JTF16 said the appellant refused to be involved in any record of interview. JTF16 said the appellant answered “a number of questions, but only of a limited nature” which did not address any alleged criminal activities. He said the appellant attempted to escape from the interview room, a struggle ensued and the appellant was taken to the hospital. JTF16 agreed that his statement was false. He said it was produced after he, Detective Southwell “and other members of the task force sat down in a scrum format and devised our statements”. JTF16 agreed that “devised” meant “fabricated” in at least some respects.

  4. JTF16 also gave evidence to the Royal Commission of his conversation with the doctor who examined Detective Paynter as follows:

“The best recollection I have is that the doctor was not 100 per cent certain that the wound was consistent with a knife wound. I said to her words to the effect of, ‘Oh well, that's a bit of a shame. We would have liked to have locked this bloke up. He's a really bad criminal and he's been charged about 60 times with offences, including rape and the like.’ She then seemed to change her mind and agreed to the fact that it was consistent with a knife wound, but it didn't require a great deal of pressure to be put on her.”

JTF12 and JTF15’s Evidence

  1. JTF12 and JTF15 were involved in the surveillance of the appellant on the evening of 23 December 1983. Each of them made a statement on 27 December 1983 which was tendered to the Royal Commission. Both statements recounted Detective Paynter telling the appellant to stop and then yelling out, “[t]he bastard’s stabbed me, watch him”. They each said that the appellant, followed by another investigator, climbed a fence. JTF12 gave oral evidence before the Royal Commission confirming he did not hear Detective Paynter say that nor saw anyone go over the fence but included them in his statement because he was told to. JTF15 said that he did not hear Detective Paynter say he was stabbed, but believed he saw the appellant climb the fence. He said the statement was prepared for him and he signed it.

Detectives Paynter and Southwell’s Evidence

  1. Detective Paynter’s statement dated 27 December 1983 was tendered to the Royal Commission. His statement was largely consistent with the evidence given by JTF14 on the first day of the appellant’s trial, including the allegation that he was stabbed and the finding of three plastic bags on the appellant containing a “white powdery substance”.

  2. As with JTF16’s statement, Detective Paynter’s statement also recounted an alleged conversation in a police vehicle on return to the police station in which the appellant suggested he would have stabbed Detective Paynter if he had not supposedly dropped the knife (see [20]). The statement also recounted what was said to be the commencement of an interview with the appellant at the police station by Detective Southwell in which the appellant supposedly refused an invitation to have his solicitor present in emphatic terms (see [21]). Detective Paynter said that he left the interview room at that point.

  3. In his oral evidence to the Royal Commission, Detective Paynter maintained that his statement was correct. He denied having fabricated any evidence. He could not nominate any reason why the other officers would confess to having done so.

  4. No statement from Detective Southwell was tendered to the Royal Commission, although there is no doubt that he prepared one which was not relevantly different to the corresponding parts of Detective Paynter’s and JTF16’s statements. In his oral evidence to the Royal Commission, Detective Southwell denied fabricating any part of his evidence and maintained that Detective Paynter was stabbed. The cross‑examination of Detective Southwell was sceptical of the likelihood that a “hardened criminal” like the appellant would apparently make full admissions to all the elements of the offence.

The Appellant

  1. The appellant gave evidence before the Royal Commission under the pseudonym “JTF4”. He said that on the evening of 23 December 1983, he met Mr Grant in a lane near Alexandria before he saw a gun aimed in his direction and heard a gunshot. He said he ran down the laneway and jumped a fence into the back garden of a house. He ran through the house but was grabbed by the people that lived there. He said that, shortly afterwards, Detective Paynter grabbed him by the hair, pointed a gun at his head and said, “[y]ou’re lucky, you black cunt, there’s people around”. He denied having a knife or stabbing Detective Paynter. He denied having drugs on him that night or having sold drugs to Mr Grant.

  2. The appellant was asked why he pleaded guilty to the charges described above as follows:

“Q.   Why was it, then, that on the second day of your trial you entered a plea of guilty in relation to the heroin offence and you pleaded guilty to the lesser offence, when it was offered, of use an offensive weapon with intent to prevent lawful apprehension?

A.   Well, at this point in time, it was just a matter of doing some arithmetic and I worked out that, if l took the task force on and so forth with this stabbing charge on a section 33 if I'd got found guilty or looked like going down on it in some way, I could have received a big sentence out of it, and when the lesser charge was offered and, as I said, I done some arithmetic, it worked that if I would have pleaded guilty and stopped the fight there and then, I would have done much longer, at the very worst, and things had worked out for me in relation to getting out of gaol, you know as far as that goes.

The sentence I was given by your Honour, I assume would cover - I had three years or something I'd served; say, 12 months of one sentence would have expired. That would have made it three years or something, what do they call it, in credit, that would have come immediately off whatever sentence I would have been given from - say, off 10 years would have given me seven years; I would have got three years off that for a start at the most for the lesser charge of the wounding, rather than take the might of the task force on.”

The Appellant’s Affidavit

  1. The appellant affirmed an affidavit in this Court addressing the circumstances of his arrest on 23 December 1983 and the circumstances in which he entered pleas of guilty on 8 October 1987, as well as his efforts since then to take action in relation to his convictions. There was no material difference between his affidavit and his oral evidence to the Royal Commission. In relation to the entry of pleas of guilty, the appellant described the offer made by the prosecution to enter pleas to lesser charges on the second day of his trial. He then stated:

“13.   Though I was innocent of both charges, I considered the number of officers who had been listed at trial to testify against me and was certain that there was not the necessary evidence available to me to successfully defend the charges.

14.   It was my understanding that given my criminal history, the evidence of the police officers would have been preferred to my own.

15.   I considered the impact that a guilty plea to ‘using an offensive weapon’ would have on me, in comparison to pleading ‘not guilty’. I had already accumulated three years in credit for any custodial sentence imposed. It was explained to me that if pled ‘not guilty’, I ran the risk of being found guilty of ‘malicious wounding’, the maximum penalty for which was life imprisonment.

16.   I decided to plead guilty to mitigate the risk that I would spend a long time in prison. I felt there was a high chance of this occurring because there were so many prosecution witnesses with evidence contrary to my own and I had already heard one of the police witnesses give false evidence on the first day of the trial. I fully expected each police officer would give false evidence against me.

17.   I didn’t think I had a real choice in the circumstances because the evidence against me was fabricated.”

  1. In this Court, there was no challenge to this evidence.

The Appeal

  1. Section 76 of the Review Act enables a petition for a review of a conviction or sentence, or the exercise of the Governor’s pardoning power, to be made to the Governor by or on behalf of a convicted person. In this case, such a petition was made to the Governor, although it is not clear whether it was for a review of the convictions, the exercise of the pardoning power, or both. Section 77(1)(b) provides that, after consideration of the petition, the Attorney General “may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912”. On 3 May 2022, the Attorney General referred the “whole case” to this Court to be dealt with as an appeal.

  2. Section 86 of the Review Act provides that “[o]n receiving a reference under section 77 (1) (b)… the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction… under the Criminal Act 1912, and that Act applies accordingly.”

  3. In Kearns v R [2011] NSWCCA 103 at [19], Giles JA indicated a preference for construing these provisions as overcoming any necessity for a grant of leave to raise a ground of appeal falling within any of the limbs of s 6(1) of the Criminal Appeal Act, although his Honour held no final view. Even if such leave was required, the deeming (by s 77(1)(b)) of the referral being dealt with as an appeal would obviate any necessity to obtain an extension of time to bring the appeal. This is put beyond doubt by r 3.12 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), which provides as follows:

These Rules apply to a Part 7 matter [i.e. a matter under Part 7 of the Review Act] with the following modifications—

(a)   a reference to an appeal is to be read as a reference to proceedings concerning the matter,

(b)   a reference to an appellant is to be read as a reference to a convicted person,

(c)   the Court is taken to have given leave for anything requiring its leave,

(d)   other necessary modifications. (emphasis added)

  1. The ground of appeal relied on by the appellant is that there has been a miscarriage of justice in that the “guilty plea entered by the appellant was not made with free choice”.

  2. Where a convicted person appeals a conviction entered following the entry of a plea of guilty and they did not apply to reverse their plea before the sentencing judge, then, consistent with s 6(1) of the Criminal Appeal Act, the test to be applied is whether the appellant has established a miscarriage of justice (White v R [2022] NSWCCA 241 at [58] and [62]−[63]). Such applications are approached with “caution bordering on circumspection” given the “high public interest in the finality of legal proceedings” and “the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence” (R v Liberti (1991) 55 A Crim R 120 at 122 per Kirby P with Grove and Newman JJ agreeing).

  1. In Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 (“Meissner”), Brennan CJ, Toohey and McHugh JJ observed (at 141):

“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.” (citations omitted)

  1. Their Honours then cited (at 142) the judgment of Lawton LJ in R v Terry Michael Inns (1974) 60 Cr App R 231 at 233 as follows:

“If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person's own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.”

  1. To similar effect, Dawson J stated in Meissner (at 157):

“It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.” (emphasis added; citations omitted)

  1. I do not understand there to be any difference in substance between the judgments in Meissner. These judgments admit of exceptions to the principle that a plea entered with a proper understanding of the nature of the charge and in full knowledge of the facts admitted by the plea will ordinarily not be set aside, even if the convicted person did not accept their guilt or was not in fact guilty. Examples of such exceptions include where the plea is entered by reason of intimidation, improper inducement or fraud.

  2. In O’Sullivan, two convictions for supplying and self-administering a prohibited drug which were entered after pleas of guilty were set aside on appeal in circumstances where the only evidence against the appellant was an alleged confession to police (at [19], [46]−[47] and [51]−[52]). Based on evidence given to the Royal Commission and in this Court, this Court was satisfied the appellant had signed a confession because of threats made by the arresting police. It was also established that the appellant in O’Sullivan pleaded guilty in the Local Court in circumstances where his protestations were frustrated by indications from the Bench that such protests were useless and maintained his plea in the District Court because he had been advised that the judge would accept the evidence of police (O’Sullivan at [42] per Sheller JA with Grove and Simpson JJ agreeing). Similarly, in Maltese, this Court upheld an appeal against a conviction for conspiracy to commit an armed robbery which was entered following a plea of guilty (at [20]−[22]). The plea had been entered in circumstances where the appellant had concluded he had no prospects of successfully challenging a signed record of interview. Evidence given at a Police Integrity Commission later demonstrated the record of interview was fabricated (Maltese at [13] per Buddin J with Simpson and Bell JJ agreeing).

  3. In this Court, the Crown properly accepted that the preponderance of evidence given at the Royal Commission supports the conclusion that the evidence relating to the allegation that the appellant stabbed Detective Paynter was fabricated. [4] The Crown submitted that the evidence was less persuasive that the charge of supply heroin was fabricated, but accepted it would be open to the Court to conclude that a miscarriage of justice was occasioned in relation to that conviction. [5]

    4. Crown written submissions at [51].

    5. Crown written submissions at [53] and [57].

  4. If all that was involved this case was that the appellant entered his pleas of guilty by the process of reasoning described in his evidence to the Royal Commission and his affidavit and there was a mere denial of guilt then, consistent with Meissner, no miscarriage of justice would be demonstrated. However, the evidence adduced before the Royal Commission overwhelmingly demonstrated that the evidence in support of the allegation that the appellant stabbed Detective Paynter was concocted and that Detective Paynter was not in fact stabbed. I take the same view in relation to the charge of supplying heroin. The actions of the police in planting a knife at the scene, preparing statements that knowingly and falsely accused the appellant of stabbing Detective Paynter and supplying drugs, laying and maintaining charges and, in the case of JTF14, perjuring themselves at the appellant’s trial were a shocking perversion of the course of justice. For the purposes of the above statements in Meissner, those actions were a form of “fraud” or were sufficiently analogous to the concept of “fraud” to establish a miscarriage of justice. In any event, the fresh evidence given by various police officers at the Royal Commission establishes the appellant’s innocence (O’Sullivan at [45] per Sheller JA with Grove and Simpson JJ agreeing).

  5. It follows that I would allow the appeal, set aside the convictions and enter acquittals.

Costs of the Proceedings

  1. At the hearing of the appeal, an application was made for a certificate under the Costs Act concerning the costs of the appeal. In written submissions filed after the hearing, the appellant conceded that s 17 of the Criminal Appeal Act precluded the granting of such a certificate in respect of the costs of the appeal (see R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [19] per Wood CJ at CL; “Manley”; DAO v R (No 3) [2016] NSWCCA 282 at [100] per Meagher JA with whom Hall J agreed; “DAO (No 3)”).

  2. However, the appellant sought a certificate in relation to the costs at first instance. Given that the proceedings at first instance commenced in December 1983 and concluded in October 1987, this raises an issue as to what version of the Costs Act is applicable.

The Applicable Form of the Costs Act

  1. The operation of the Costs Act was recently reviewed by this Court in Rodden v R [2023] NSWCCA 202 (“Rodden”). Relevantly, ss 2 and 3 in its current from provide:

2 Certificate may be granted

(1)   The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may—

(a)   where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b)   where, on appeal, the conviction of the defendant is quashed and—

(i)   the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii)   the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2)   For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3)   In this section, trial, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health and Cognitive Impairment Forensic Provisions 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

3 Form of certificate

(1)   A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate—

(a)   if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b)   that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

  1. Section 3A(1) specifies that “all the relevant facts” include the relevant facts established in the proceedings and such facts established on the application for the certificate.

  2. Section 4(1) of the Costs Act provides that a person to whom such a certificate has been granted may apply to the “Director-General [of the Attorney-General’s Department] for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates”. (The functions of the Director-General are now performed by the Secretary of the Attorney-General’s Department: see Rodden at [10]). The balance of s 4 addresses various matters relevant to the Director-General’s assessment of the amount payable from the Consolidated Fund (see Rodden at [40]).

  3. The fact that the power and occasion for this Court to grant a costs certificate do not arise until the convictions are quashed and the appellant is discharged on his indictment (i.e. acquitted: DAO v R (No 3) [2016] NSWCCA 282 at [33]) suggest that the form of the Costs Act to be applied in this matter is its current form.

  4. A review of the history of the Costs Act does not alter that conclusion. The appellant’s written submissions traced that history. As enacted in 1967, ss 2 and 3(1) were not substantially different to the provisions set out above, save that the opening words to s 2 referred to the “Court or Judge or Justice or Justices” as the entities or persons that granted the certificate and s 2(1)(a) referred to a defendant being “acquitted or discharged as to the information then under inquiry” after a hearing on the merits. This provision was interpreted so as to embrace an acquittal on trial on indictment (Allerton v DPP (1991) 24 NSWLR 550 at 550F). Further, s 3(2) provided that any certificate granted by a “Justice or by Justices” had to specify the amount of costs that would be paid. The reference to a “Justice or Justices” was to those exercising authority under the now repealed Justices Act 1902 (NSW) to either conduct a summary hearing or a committal hearing (see DAO v R (No 3) at [14]−[15] per Meagher JA). The Justices Act was amended by s 7 of the Costs Act to empower a “Justice or Justices” to make an order for the payment of a defendant’s costs where they were discharged following a committal hearing.

  5. Section 4 of the Costs Act as enacted in 1967 provided that the certificate would be presented to the Under Secretary of the Department of the Attorney General and of Justice (s 4(1)). In turn, the Secretary would present the certificate to the Treasurer and specify any amount set out in the certificate provided under s 3(2) or, if that had not occurred, the amount that “in the opinion of the Under Secretary, would reasonably have been incurred for costs by the applicant in the proceedings to which the certificate relates” as well as “any amounts which, in the opinion of the Under Secretary, the applicant has received or is entitled to receive or would, if he had exhausted all relevant rights of action and other legal remedies available to him, be entitled to receive, independently of this Act, by reason of his having incurred those costs” (s 4(3)). The Treasurer was authorised to pay from Consolidated Review the amount of costs, or part thereof, that the Treasurer determined (s 4(5)).

  6. The Costs Act was amended in 1971 by the Costs in Criminal Cases (Amendment) Act 1971 (NSW). This inserted s 3A, which addressed further “relevant facts” for the purposes of applying s 3(1)(a). Of present relevance is that such facts included “such of the relevant facts as were established… on the application for the certificate”.

  7. The next relevant amendments were made with effect from 3 August 1998 by the Courts Legislation Further Amendment Act 1997 (NSW) [6] and the Courts Legislation Amendment Act 1998. [7] The former Act removed s 3(2), which provided for Justices to specify the amount of costs payable. The latter Act effectively amended s 4 to its present form, which provides for the Director-General to receive the certificate and assess how much was payable. There were transitional provisions addressing how a certificate previously granted under the Act would be administered after the amendment depending on whether the application had been made to the Under Secretary or Director-General before or after the commencement of the amendments (s 6B(1)−(3)). Those transitional provisions did not address the circumstance where an application was made after the amendment in respect of a trial conducted before the amendment, although they appear to assume that such an application would be dealt with in accordance with the Costs Act as amended.

    6. Sch 1 item 1.4.

    7. Sch 5.

  8. With effect from 18 January 2002, the Costs Act was further amended by the Courts Legislation Amendment Act 2001 (NSW) (the “2001 Amendments”). [8] Section 2(1)(a) was amended to its current form, save that it did not make reference to the Director of Public Prosecutions (“DPP”) directing that no further proceedings be taken. Section 2(1)(b) was not amended (see DAO (No 3) at [24]). Section 3A was amended to its current form. Various other amendments were made to the Costs Act since 2001, including the reference in s 2(1)(a) to the DPP directing that no further proceedings be taken (DAO (No 3) at [25]), but none are of present relevance. [9]

    8. Sch 1.

    9. Justices Legislation Repeal and Amendment Act 2001 (NSW); Courts Legislation Miscellaneous Amendments Act 2002 (NSW); Statute Law (Miscellaneous Provisions) Act (No 2) 2003 (NSW); Crimes Legislation Amendment Act 2004 (NSW); Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (NSW); Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

  9. The only possibly relevant transitional provision is s 7, which was inserted into the Costs Act by the 2001 Amendments. It provides:

7 Savings and transitional provisions relating to Courts Legislation Amendment Act 2001

(1) Sections 2 and 3A, as amended by the Courts Legislation Amendment Act 2001, apply to and in respect of proceedings not finally determined before the commencement of the relevant amendment.

(2) Sections 2 and 3A, as in force immediately before their amendment by the Courts Legislation Amendment Act 2001, continue to apply to and in respect of proceedings finally determined before the relevant amendment commenced.

  1. So far as this matter is concerned, this provision does not preserve the operation of any form of the Costs Act in force prior to the 2001 Amendments, including those operative at the time of the appellant’s trial in 1987. In this case, the power to issue a certificate is sought to be exercised by this Court and arises “where, on appeal, the conviction is quashed” and the defendant is “discharged on the indictment” (s 2(1)(b)). As noted, where an appellant has their convictions quashed and acquittals entered, they are discharged on the indictment that was presented against them at trial (DAO (No 3) at [33]). The acquittal on appeal takes place “in any proceeding relating to any offence” in that the appeal is a proceeding relating to the offence. Hence, on a number of occasions this Court has issued certificates in respect of the costs of a trial where the appellant has been acquitted on appeal (see, eg, DAO (No 3); Manley).

  2. It follows that, so far as the power of this Court to issue a certificate under s 2 of the Costs Act is concerned, the “proceedings” for the purposes of s 7 is, or at least includes, the appeal to this Court and not the proceedings at trial, to the extent they may be different. Thus, on any view, the present proceedings in this Court were not “finally determined” before the passage of the 2001 Amendments and thus s 7(2) is not engaged. As noted, the applicable version of the Costs Act is the current one.

Application of the Costs Act (in its current form)

  1. As noted, I accept that the appellant has established that the police fabricated evidence that he stabbed Detective Paynter and supplied heroin and that the appellant did neither. They are additional “relevant facts” for the purposes of s 3(1) of the Costs Act. There can be no doubt that if the prosecution had, before the proceedings were instituted, been in possession of evidence of those facts, it would not have been reasonable to institute the proceedings against the appellant. It follows that each of ss 2(1)(b) and 3 of the Costs Act have been satisfied.

  2. The Crown did not submit to the contrary. However, it contended that, as it was not known whether or not the appellant was legally aided before Enderby J or had incurred any costs in doing so, then the Court should apply the reasoning at first instance in Rodden (R v Rodden (Costs) [2022] NSWSC 1230) and exercise the “residual discretion” in s 2 to refuse to grant a certificate because it was inevitable that the Director-General would exercise the discretion in s 4 to refuse to grant it. The short answer to that contention is that, in Rodden, this Court held that even if the potential recipient of the certificate is legally aided, it is not a basis to refuse the grant of a certificate (at [121]−[125]). Ordinarily, the exercise of the discretion conferred by s 2 does not extend to considering how the power conferred on the Director-General might be exercised under s 4 (Rodden at [117]).

  3. There being no other matter suggested that warrants the refusal of a certificate, I consider it should be granted.

Proposed Orders

  1. I propose the following orders:

  1. Appeal allowed.

  2. Set aside the convictions entered on 15 October 1987 against the appellant for offences under s 33B(1)(a) of the Crimes Act 1900 (NSW) and s 32(1)(a) of the Poisons Act 1966 (NSW).

  3. In lieu thereof, acquittals be entered.

  4. Grant a certificate to the appellant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), specifying that, in the opinion of this Court:

  1. if the prosecution had been in possession of all of the relevant facts prior to commencing proceedings for an offence under s 33(2) of the Crimes Act 1900 (NSW), and supplying heroin, both offences allegedly committed on 23 December 1983, it would not have been reasonable to institute the proceedings; and

  2. any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

    1. FAGAN J: I agree with the orders proposed by the Chief Judge. I agree with his Honour’s reasons and have nothing to add.

    2. DHANJI J: I agree with Beech-Jones CJ at CL.

**********

Endnotes

Amendments

28 August 2023 - [19] - Name of officer replaced with pseudonym.

28 August 2023 - Coversheet - names of Counsel representing the Appellant amended.

Decision last updated: 28 August 2023

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