Olivieri v R

[2016] NSWCCA 169

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Olivieri v R [2016] NSWCCA 169

Hearing dates:

14 March 2016

Decision date:

22 August 2016

Before:

Leeming JA at [1];
Johnson J at [184];
Harrison J at [185]

Decision:

1. Extend the time within which to commence this appeal to 30 September 2014.

 

2. To the extent necessary, grant leave to appeal.

 3. Appeal dismissed.

Catchwords:

CRIMINAL LAW – murder – appeal against conviction – circumstantial Crown case – whether controlled operation unlawful – whether fresh evidence of absence of DNA should be received – whether trial counsel incompetent – whether verdict unsafe and unsatisfactory – no ground established – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 176A
Criminal Appeal Act 1912 (NSW), s 5
Evidence Act 1995 (NSW), ss 128, 138
Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 6, 7, 8, 16, 27

Cases Cited:

Alkhair v R [2016] NSWCCA 4
Gedeon v NSW Crime Commission [2008] HCA 43; 236 CLR 120
Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Morgan v R [2011] NSWCCA 257; 215 A Crim R 33
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
R v Olivieri; R v Norman [2006] NSWSC 882
Shepherd v The Queen (1990) 170 CLR 573
SKA v The Queen [2011] HCA 13; 243 CLR 400
TKWJ v The Queen [2002] HCA 46; 212 CLR 124

Category:

Principal judgment

Parties:

Tony Olivieri (Applicant)
Crown (Respondent)

Representation:

Counsel:
Applicant in person
PG Ingram SC (Crown)

  Solicitors:
Solicitor for Public Prosecutions (Crown)

File Number(s):

2005/3441

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Date of Decision:

28 August 2006

Before:

Hidden J

File Number(s):

2005/2314

Judgment

1. LEEMING JA: Mr Tony Olivieri and a co-defendant, Mr Mark Edward Norman, were tried together before the trial judge and a jury of 12 between 26 July and 28 August 2006. The indictment charged a single count against Mr Olivieri, namely that “[o]n 6th April 2004 at Petersham in the State of New South Wales [Mr Olivieri] did murder Thomas Williams”.

2. The indictment also charged two counts against Mr Norman, namely that Mr Norman was an accessory before the fact to that murder, and that Mr Norman, being a director of M&R Norman Pty Ltd, cheated and defrauded the deceased in his dealings with M&R Norman Pty Ltd, contrary to s 176A of the Crimes Act 1900 (NSW) (now repealed). Both men pleaded not guilty. On 28 August 2006, the jury found both Mr Olivieri and Mr Norman guilty of the counts charged against them in the indictment.

3. Both men were sentenced on 5 March 2007: R v Olivieri; R v Norman [2006] NSWSC 882. Mr Olivieri was sentenced to imprisonment for a term of 33 years comprising a non-parole period of 28 years commencing on 3 August 2004 and expiring on 2 August 2032 with a balance term of five years expiring on 2 August 2037. Mr Norman was sentenced for a fixed term of three years commencing on 17 August 2004 for the count of cheating and defrauding, and was sentenced on the count of being an accessory before the fact to murder to a term of 35 years comprising a non-parole period of 29 years commencing on 17 August 2006 and expiring on 16 August 2035 with a balance term of six years expiring on 16 August 2041.

4. Mr Olivieri seeks to appeal from his conviction for murder. There is no appeal as to the sentence.

Extension of time

5. Mr Olivieri requires an extension of time in order to bring his conviction appeal, his notice of appeal having been filed on 30 September 2014, some eight years after his conviction. In an affidavit sworn 4 September 2014, Mr Olivieri pointed to his lack of legal representation, delays in his having received documents, and delays in receiving advice from senior counsel on the merits of his proposed appeal, as the explanation for his belated notice of appeal.

6. The Crown conceded that:

“if there is any proper basis upon which the appeal ought to be upheld, then the Court would not decline to extend time for leave to appeal merely on the basis that the Applicant is so far out of time”.

7. Given the nature of the offence for which Mr Olivieri has been convicted, and the significant sentence that was imposed (the bulk of which is yet to be served, despite the substantial delay in filing a notice of appeal), the comprehensiveness of the submissions exchanged, and the attitude of the Crown, there should be an extension of time.

8. Most of the matters which Mr Olivieri wishes to raise are not questions of law, and therefore require leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Once again, there should to the extent necessary be a grant of leave, so that these matters may be addressed on their merits.

Crown case

9. For present purposes, it suffices to set out in general terms the Crown case against Mr Olivieri and Mr Norman at trial. Further details of the facts as established by the evidence will be given when dealing with Mr Olivieri’s submissions on appeal.

10. The deceased was a solicitor, practising from an office in a detached building at his home in Petersham in inner-western Sydney. Mr Norman, an accountant, was a director of M&R Norman Pty Ltd, which carried on an accountancy practice at Burwood, also in inner-western Sydney. The deceased was a client of the practice, where his personal and professional tax returns were prepared.

11. In early November 2003, the deceased drew a number of cheques on the account of his solicitor’s practice made out to the Taxation Office in amounts totalling roughly $83,500. These were delivered to Mr Norman’s office at Burwood for the purpose of meeting outstanding tax liabilities. In fact, Mr Norman deposited them into a trust account, from which he withdrew the funds for his own purposes. This gave rise to the charge of cheating and defrauding.

12. By March 2004, the deceased had discovered Mr Norman’s fraud and confronted him about it. On the Crown case, instead of repaying the funds, Mr Norman arranged for Mr Olivieri to kill the deceased.

13. Mr Olivieri had known Mr Norman for some years, and they were friends. He was employed as a maintenance worker on a property in Queensland which was conducted as a racehorse stable, and in which Mr Norman had an interest with his brother, Mr Grant Norman. (In fact, at least $15,000 of the funds Mr Norman received from the deceased were used in connection with this Queensland property.)

14. On the Crown case, Mr Norman arranged for the deceased to be in his home office on the evening of 6 April 2004 by making an appointment with him which Mr Norman did not intend to keep. Instead, Mr Olivieri was said to have entered the deceased’s office that evening and shot him four times, killing him. It was this conduct that gave rise to the charges of murder and accessory before the fact.

Circumstantial case presented by the Crown

15. There was no direct evidence presented by the Crown implicating Mr Olivieri; the case was entirely circumstantial. There was no fingerprint evidence, or forensic evidence, or DNA evidence linking Mr Olivieri to the scene of the crime.

16. The deceased’s wife had been in the kitchen when her husband was shot and saw the gunman briefly running towards her from her husband’s office. She prepared two images of the gunman she had seen, using the COM-FIT and FACE systems (Exhibits B and C). She said that she was not happy with either picture. She said that she had not been involved in any identification parade or other form of photographic identification.

17. In the Crown case, two witnesses walking home from a restaurant in Petersham gave evidence that they saw a man walking quickly at around 9:15-9:30pm. Neither had a good view of the man. Both said that he was relatively short, one said about 5 foot 6 inches, the other about 5 foot 3 inches to 5 foot 5 inches.

18. Even so, there was a deal of evidence unequivocally linking Mr Olivieri to the scene of the crime.

Travel records

19. Mr Olivieri had travelled to New South Wales on 31 March, returned to Queensland on a flight in his own name on 3 April 2004, and then returned to Sydney from Queensland under a false name on 4 April 2004. He stayed at the Sunnybrook Hotel at Warwick Farm until 7 April 2004. The duty manager said that he checked out at around 10.30am that morning. Mr Olivieri said that he stayed with his mother on the night of 7 April 2004.

20. Mr Olivieri returned to Brisbane on 8 April 2004, using a ticket booked in the name of Mr Norman. Virgin Blue Airlines records showed that the person booking the ticket had supplied a mobile phone number ending in 5625. (I return to the significance of this number below.) Mr Olivieri accepted that, despite the name under which the ticket was issued, it was he who was travelling.

21. Mr Norman had a “Master Rental Agreement” with a hire car company which permitted him to obtain a rental vehicle without producing identification. A vehicle was hired from Granville in western Sydney on 1 April 2004 pursuant to that agreement and returned on 7 April 2004.

22. As will be seen below, Mr Olivieri accepted that he had been in Sydney in the period leading up to the death of the deceased. The false name under which he travelled, and the alibi evidence to be referred to below, are consistent only with his not wishing it to be known that he was in Sydney. On the Crown case, that was because he had undertaken to kill the deceased. According to Mr Olivieri, that was because he was dealing in illicit drugs.

The telephone records of 5 and 6 April 2004

23. Mr Olivieri’s mobile phone records were in evidence. His phone number ended in 9419. (That phone had originally been subscribed to in a different name; how Mr Olivieri came to be using it is not clear.) Calls were made from or to that number on each of 5 and 6 April 2004.

24. On the evening of 5 April (the day before the deceased was killed), Mr Olivieri’s number made calls of 45 seconds, 29 seconds, 5:02 minutes and 5:32 minutes between 6:42pm and 7:36pm to a number ending in 5625. In each case the call was transmitted by a base station at Petersham located around 400m from the deceased’s house. There was expert evidence (based on the time of day and apparent lack of congestion in the network) that the handset was located in the vicinity of that station when those calls were made.

25. Each of those four conversations was between Mr Norman and Mr Olivieri. Each man accepted that the telephone calls were made. When asked what was discussed, over four calls on the same evening, Mr Olivieri said: “Just talking about, mostly about work, the last two conversations.” Mr Norman said that he was asking Mr Olivieri questions about work that was being done on the property in Queensland.

26. The Crown case was that it had been intended that Mr Olivieri kill the deceased on 5 April. Mrs Williams gave evidence that her husband had been expecting Mr Norman that evening, but that at around 7.30pm the deceased told Mrs Williams that Mr Norman “had a flat tyre, so he can’t make it tonight”. The deceased’s secretary also said that he had made a comment about a flat tyre and was seeing Mr Norman on the evening of 6 April. A solicitor employed by the deceased gave evidence that the deceased had been expecting to see Mr Norman on 5 April, and had been told that the latter had had a flat tyre but was expected to meet him that night. Their recollection of the conversation was not put in issue by either accused. Mr Norman accepted that he cancelled the planned meeting saying that he had a flat tyre.

27. Mr Olivieri was granted a certificate under s 128 of the Evidence Act 1995 (NSW) and said that on 5 April 2004 he had travelled to Leichhardt (a suburb adjoining Petersham) from Cabramatta, by taxi, “[t]o score drugs”. Mr Olivieri said that he told his contact what he needed, “he said he’d be back in half an hour, he went and picked it up, delivered it, I gave him money and I left”. He said he had bought an ounce of “speed” to be sold later that evening, for a profit, in Cabramatta.

28. Mr Norman’s telephone records were also in evidence. On the evening of 5 April 2004 he was in Richmond in far western Sydney attending a course. At 7:42pm he made a short call of 23 seconds from his handset (whose number ended in 5625) to the deceased’s office number. He accepted that it was in that call that he cancelled the meeting for that evening, saying that he had a flat tyre. It will be noted that that call was made a mere 26 seconds after the last of the four calls made by Mr Olivieri to Mr Norman that evening.

29. Later that evening, at 9:08pm and 9:11pm, further calls (of 22 seconds and 1:02 minutes) were made to Mr Olivieri’s mobile phone from the same number ending in 5625. Those two calls were transmitted by a base station at Warwick Farm in south-western Sydney. Mr Norman said that he had “absolutely no idea” why he made those calls.

30. The following day was the day on which the deceased was killed. Three telephone calls were made to triple 0 that evening. The first was made by an unidentified person, commencing at 9.14.30pm, lasting for 40 seconds. The second was made by a neighbour who heard shots. Although the time that call commenced is not disclosed in the appeal materials, it concluded at 9.15.40pm and the transcript suggests it too was a short call. The third call was made by the deceased’s 12 year old son, and commenced at 9.17.00pm. These calls establish that the deceased was shot shortly before 9.14pm, a time which was, as will be seen below, an important element of the Crown case.

31. There was a public phone box in Charles Street, Petersham, near the deceased’s house. Two calls from that phone box were made to Mr Norman on the evening of 6 April 2004, at 8:43pm and 8:47pm, for around 70 and 78 seconds respectively. Mr Norman said that there was someone who rang him that evening asking about horses he had for sale. The coincidence was put to him in cross-examination:

“Q: And that was just an extraordinary coincidence that you happened to get a phone call from what happens to be the nearest public phone box to Tom Williams’ place?

A: I didn’t know it was near Tom Williams’ place.

Q: It wasn’t Mr Olivieri ringing when he was just up the street in Norton Street, was it?

A: Definitely not.”

32. Mr Olivieri was, once again, in the Petersham area that evening. At 9:08pm on 6 April 2004, Mr Olivieri’s phone received a call from a Queensland landline in the name of David Whitehouse. The signal was transmitted, again, from the Petersham Millers base station. The call lasted 30 seconds. Mr Olivieri said he could not remember receiving a call from Mr David Whitehouse on that evening. One submission prominent in Mr Olivieri’s appeal relates to the timing of that call, some five minutes before the deceased was killed.

33. Mr Whitehouse gave evidence that he was an acquaintance of Mr Olivieri who used to call him frequently (he variously said “three or four times a week and “ten or twenty times over a period of a couple of months”). Mr Whitehouse also gave evidence, admitted over the objection of counsel for Mr Olivieri, but subject to a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573, that when he met Mr Olivieri in around March 2004, he saw the butt of a pistol in Mr Olivieri’s belt (“It was a grey colour, like a square, like, being similar to the Glock pistol that the police wear”). He said that in around May 2004, Mr Olivieri said the pistol was “a piece of shit” and “it fell apart”. He was cross-examined vigorously on this aspect of his evidence. However, the cross-examiner did not dispute that the call had been made at 9.18pm from Mr Whitehouse’s landline to Mr Olivieri on 6 April 2004. There was evidence that in addition to two spent bullets and four fired cartridge cases found at the scene, there were two pieces of metal identified as a “holding open device” and a “retaining clip” of a pistol. (This is relevant to the grounds below dealing with DNA evidence and the evidence of Mr Whitehouse.)

34. Mr Olivieri said that on 6 April 2004, he caught a taxi from Warwick Farm to Norton Street in Leichhardt, where (according to Mr Olivieri) he was once again travelling to enter into a drug transaction. This time he said he had arranged to buy two ounces of “speed”. Mr Olivieri said he went to the same coffee shop in Leichhardt, met the same man, waited for him to supply the drugs, and returned to Cabramatta.

35. Mr Olivieri was confronted with the coincidence that he had received a telephone call, transmitted from the Petersham Millers base station, just minutes after the deceased’s death as follows:

“Q: And the fact that you were in the Petersham Millers area, phone call area, at 8 minutes past 9 on the night the man died, and the fact you are there the night before, is just a terrible coincidence?

A: It was not a coincidence. I had to be there to get some drugs, I told you that already.”

36. Mr Olivieri changed his phone number shortly after 6 April 2004. According to him, that was because “I lost my phone”.

37. Mr Olivieri maintained that he never met the deceased, and denied that he saw him and killed him on 6 April 2004 because Mr Norman had asked him to do so.

The controlled operation

38. On and after 10 June 2004, police conducted a controlled operation, monitoring and recording telephone calls from services being used by Messrs Olivieri and Norman. The evidence obtained is important in this appeal, and much of Mr Olivieri’s submissions complain about aspects of this operation and the evidence obtained from it.

39. On 9 June 2004, a Deputy Commissioner of Police gave approval to undertake a controlled operation. The authorisation appears not to have been before the jury, but was tendered on appeal. Pursuant to ss 6 and 8 of the Law Enforcement (Controlled Operations) Act 1997 (NSW), a number of police officers were authorised to conduct the following controlled activities:

“Conversations and any act or omission concerning the making of false statements and/or false images, the publishing or offering for publication of those false statements and/or false images to any New South Wales based media outlets including radio, television and print media in relation to the murder of Thomas Leonard WILLIAMS”.

40. The authority was subject to a number of conditions, including, relevantly for present purposes:

“Conduct is NOT authorised for release in Brisbane or outside NSW (ie media releases are to be made to Sydney based outlets only).”

41. Further, the certificate includes the following text, with the words struck-through:

“In so doing

(i) the following authorised law enforcement participants may operate under an assumed name”.

42. There followed the list of the authorised officers. The form also made provision for “authorised civilian participants”, and for identifying which civilian participants could operate under an assumed name and which could not. The entirety of that section was struck through.

43. It is plain that no civilian participants were authorised. Mr Olivieri made submissions in relation to the struck-through words in relation to authorised law enforcement participants, and of the restriction to Sydney based media outlets.

44. A photograph and a print media article were released and published in the Daily Telegraph on 10 June 2004, under the title “Face in the frame over a murder”. The photograph that was released was one of Mr Olivieri (taken from the RTA database) but altered to make it look like a computer-generated image. The article appears not to have been tendered at the trial, but was tendered on the appeal. It stated:

“Detectives hunting the killer of solicitor Tom Williams yesterday released an image of a man they want to find.

The bald-headed man was seen acting suspiciously in the area at the time the 41-year-old father-of-two was gunned down.

...

Police yesterday released this image of a man acting suspiciously in Charles St – close to Petersham TAFE – shortly before the murder. They are keen to identify him.”

45. The police obtained a series of warrants to monitor the telephone services of Mr Norman and Mr Olivieri: two on 18 May 2004, a further warrant on 11 June 2004 and a fourth warrant on 2 July 2004. Further warrants were obtained for other telephone intercepts and the installation of listening devices. It was not suggested that the warrants were invalid, as opposed to the controlled operation itself.

46. A police officer gave evidence in relation to the controlled operation:

“Q: And your intention in doing that was to precipitate conversation about this offence which could be picked up by way of telephone intercept or a listening device that was already in place, that is right?

A: That is right.”

Conversations between Mr Olivieri and Mr Ray Johnson on 10 June 2004

47. Two conversations were recorded between Mr Olivieri and an acquaintance, Mr Ray Johnson, on 10 June 2004, the day the article was published. Mr Johnson initiated the first call, at 12.22pm. After exchanging greetings, the conversation continued (V1 is Mr Olivieri):

“V1: What are you up to mate?

V2: You don’t get the Sydney papers up there do you?

V1: No.

V2: Mm.

V1: Why?

V2: Ah, (Laughs) I think your photo is in it. (Pause) Also I mean – look, try to get today’s Sydney paper and have a look through there, you know.

V1: Mm.

V2: All right mate?

V1: (Pause) Does it look like me?

V2: Oh, it’s – well yeah, spitting image, yeah.

V1: Hey?

V2: Spitting image mate.

V1: Dead set?

V2: Yeah.

…

V1: Do you think I’m in trouble mate?

V2: Ah, you’d have to read the thing, but it just says that – it says that – it just says, ‘a man answering this description is wanted for questioning...’ was seen acting, ‘this person was seen acting suspiciously near a high school.’ On that – you know about the time of this thing that happened down there and ah, whoever saw it mate, it was just like a photo, photo – you know fuckin’ unbelievable you know.

V1: Exactly like me?

V2: Yeah, bloody oath.

V1: Shit.

V2: But it’s only wanted to be spoken to about you know being in the area at the time type thing, you know.

V1: Mm. On that day?

V2: Yes, yeah at that time. Ah – well mate you weren’t there and that’s it, you know.

V1: Mm.

V2: Ah, yes.

V1: That’s bad eh (sounds like) Ray?

V2: Well you know yeah, yeah I reckon it is, yeah. But ah, but you got hair – this guy’s got – like he’s got his hair shaved, you know, head shaved, otherwise it’s the spitting image of you, you know.

V1: Oh right.

V2: Okay mate?

V1: Mm hm.

V2: See if you can get it and have a look anyway.

V1: Yeah, I will.

V2: Yeah.

V1: Okay, catch you mate.

V2: Okay, see you mate, see you later mate. (Call concluded)”

48. The second conversation commenced at 12:35pm on the same day, and was initiated by Mr Olivieri. He said that he couldn’t get a copy of the paper. After some exchanges about the possibility of sending the page by fax, there was the following:

“V2: You might be better off just going and buying one mate, at the airport.

V1: Yeah.

V2: I reckon, don’t you?

V1: Yeah, but it’s too – I can’t get there. That’s the only problem mate.

V2: You can’t, I’d hire a car mate, I’d do anything, you know.

V1: Is it that bad is it mate?

V2: I reckon it is, yeah.

V1: Ah.

V2: It’s just you, you know it’s the photograph, it just looks like your photo, you know. But as I said to everyone, you’ve got hair. Like this guy’s got his hair shaved you know.

V1: Yeah.

V2: You got me? Yeah.

V1: Yeah. Fuckin’ hell.

V2: Mm, it’s on page nineteen.

V1: Eh?

V2: Page nineteen of today’s paper.

V1: Oh right mate. Is it a big picture?

V2: Oh, it’s about three by three you know.

V1: Oh right.

V2: Three inches by three inches probably.

V1: Oh, I think I’m gone then eh, Ray?

V2: Well no, I wouldn’t – well no I (unintelligible) just ‘cause it’s some photo that looks like you doesn’t mean that it’s you, you know.

...

V1: Mm, fuckin’ hell. Ah, which paper is it mate?

V2: Ah, the Tele.

V1: Fuck me dead. I can’t believe this mate.

V2: A bloke came in and said, ‘Tony’s in the paper’. (Laughs) So I got the paper and I looked. And I thought well it does look a bit like you, except you’ve got hair and this guy’s got his hair shaved you know.

V1: Oh fuck. People are going to be fuckin’ recognising me aren’t they mate?

V2: Oh, yeah. It’s unbelievable the likeness mate. I – it’s like they’ve got – found your photo and put it straight on there, you know.

V1: Oh for fuck’s sake.

V2: Mm.

V1: I’m – you know what I was worried – all I’m worried about mate um, the motel, you know what I mean, mate.

V2: Mm.

V1: You know what I’m saying don’t you, Ray?

V2: No, not really, no.

V1: Where I stayed.

V2: Well yeah, it wasn’t near there was it?

V1: Eh?

V2: When you saw your mum, that – it’s nowhere near there though?

V1: No, that’s true.

V2: Mm. Oh, yeah, mm. Anyway mate, look just take it easy, you know, you know it wasn’t you and that’s all you got to remember, you know.”

Conversation between Mr Olivieri and Mr Norman on 10 June 2004

49. Later that evening, at 6:16pm, there was a conversation between Mr Olivieri (V1) and Mr Norman, initiated by Mr Norman. Very early on, Mr Olivieri said, “I know all about it”. When asked by Mr Norman “I wasn’t sure if you got any phone calls today or not” Mr Olivieri responded “Yeah, I got a phone call mate”. The conversation proceeded:

“V1: Listen, I’m going to have to go away for a while mate.

V2: I think so.

…

V1: No, ah, yeah just don’t want to um, you know what I mean?

V1: Yeah, yeah. Um, I’m (Laughs) I don’t know how to say this, but I’m going to need a little bit of money mate, you know what I mean?

V2: Yes, I know.

V1: Okay buddy.

V2: Yeah. I’ll have to – see at the moment I’m sort of fairly skint, but I’ll – yeah, we’ll get some and sort of have to fix something up.

V1: Yeah, well see I – me mate’s going to give me a ring, in about half an hour or so, he’s going to give me a phone number, then I’ve got to go see this bloke and he’s going to um, take me somewhere, you know what I mean?

…

[V2]: Yeah. Did they actually – did they actually tell you, read the article (sounds like) to you?

V1: I didn’t read it, no. I got it.

V2: Okay.

V1: I saw it, and then I burned it mate, you know what I mean? ‘Cause I didn’t want to (unintelligible)…

V2: Is it up there as well?

V1: Eh?

V2: Is it up there as well?

V1: No, I had to go to the airport and grab it.

V2: Yeah, okay, all right.

V1: So yeah.

V2: I was actually – I actually had one, I was going to see if you wanted it or not, that’s all.

V1: No, no, no. I actually went and got it mate, but I didn’t read it.

V2: Yeah.

V1: Why? Is it bad?

V2: No, no, just that it said, ‘acting suspiciously in the area’, that’s all.

V1: Yeah. Mate, well you know I mean just the similarity doesn’t mean nothing mate, you know what I mean?

...

V2: Just thinking – are you on your phone or a ...

V1: Yeah.

V2: ... Okay, that’s all right.

V1: Yeah, but it’s a new one, you know what I mean, mate?

V2: Yeah, that’s okay. So is this.

V1: Oh, okay.

V2: Um, yeah, you’ll just have to have um, slightly longer hair mate.

V1: I have.

V2: Mm?

V1: I have

V1: Okay, good.”

50. Six days later, on 16 June, there was another conversation recorded between Mr Olivieri (V2) and Mr Norman at 2:42pm. After mentioning that two of Mr Olivieri’s acquaintances had been interviewed by police, there was the following exchange:

“V2: Did they um, get a statement off Pete?

V1: No they didn’t, they spoke to him on the phone.

V2: What, that I was working that week and he told ‘em I was, which I was mate.

V1: Mm hm.

V2: ‘Cause we were painting, remember?

V1: Yep, yeah.

V2: So what’s the fuckin’ problem?

V1: I don’t know, I don’t know. You know. Look, to be quite honest I’m not overly concerned about it, ‘cause it’s just going to show well yeah, you were up there, that’s all there is to it.

V2: Yeah, I know, I got witnesses mate to say I was up here.

V1: Mm hm. That’s all you need to do.”

Mr Olivieri in Queensland and Western Australia

51. On the morning of 18 June 2004 there was a further telephone conversation recorded between Mr Olivieri (V2) and Mr Norman. Mr Olivieri gave Mr Norman details of a Suncorp Bank Account in the name of Ms Dorothy Kapor. The men then discussed what they were aware of the ongoing police investigations, and then there was the following exchange:

“V1: So as far as I’m concerned and as far as – you know as far as I know and you say to me that – you’re in Queensland. That’s all I need to know about it.

V2: Yeah, well I was mate.

V1: Yeah, that’s exactly right and I…

V2: And I got witnesses.

V1: Exactly right. And we’ve got people up there to say, no, you were in Queensland at the time.

V2: I was working. (Laughs)

V1: Exactly right.

V2: And I even got one from Sydney to say I was up there.

V1: Yeah, exactly.

V2: Mm. When you go – can you go put it in now for me? Um, Mark?

V1: Yep, okay. How much do you need.

V2: How much can you put in for me mate?

V1: I don’t know, I’ll have to go and find some money. I got – mate I’m talking about finding anything I can at the moment.

V2: Oh.

V1: So it’ll be next hour or so probably a gorilla, maybe fifteen hundred.

V2: Oh, can you make it at least two please, I’m – ‘cause I’ve wanted to um, keep something going, you know what I mean, mate?

V1: Okay. I’ll try and see what I can do buddy.

V2: Okay, so what, in an hour it will be there will it?

V1: Yeah, in the next hour or so.

V2: Yeah, ‘cause I got to go, I want to go get it out mate, you know what I mean?

V1: Righto buddy.”

52. Later on 18 June, an administrative assistant in Mr Norman’s firm deposited $2,000 into an account in the name of Ms Dorothy Kapor. Ms Kapor gave evidence that she knew Mr Olivieri, that she gave him details of a bank account that she was not using that he could use, that he then gave the details of the bank account to a friend, and that he and she withdrew $2000 for him on 18 June. Ms Kapor was not cross-examined about the transaction involving the $2,000 given to Mr Olivieri, and the deposit and withdrawal slips were in evidence.

53. On 21 June, Mr Norman is recorded in an intercepted telephone conversation with Mr Olivieri as saying that the police were likely to arrest Mr Olivieri and bring him to New South Wales, but then said:

“I think that’s what they’ll do, and then you know we’ve got the – we’ve got all the people that have got witnesses that say you went up there. You did testimony to say you were up there. So I don’t see how they’re going to be able to do that. But anyway. The problem is that um, ah, it’s a good possibility they’ll sort of take you in and then you’ll have to wait until they decided to um, run a case.”

54. Mr Olivieri then added:

“V2: (Unintelligible) you know what I think I should do, I think I should leave the country for a while.

V1: Yeah, it mightn’t be a bad idea. But, you know how are you going to do that?

V2: Mm, that’s a good question isn’t it?

V1: You know? And where are you going to go? Oh, I know where you can go, you’ve got relatives over there haven’t you?

V2: I wasn’t going to go over there, but yeah, still ...”

55. Later that evening, Mr Olivieri rang Mr Norman to say that police had taken all of his clothes and shoes and bank statements. Mr Olivieri then said “Geez I – did I get rid of – I hope I got rid of all the soaps and that that I had in there”. He then said “no, I don’t think it’s got the name of the motel or anything, no”. The men then said (Mr Olivieri is V2):

“V2: ... oh a sewing kit might be in there.

V1: Mm hm.

V2: I had a couple of sewing kits I used to (unintelligible).

V1: Yep yep.

V2: But I – yeah I just can’t remember now mate.

V1: Yeah.

V2: If I threw all them – all that sewing thing away or not.

V1: Yeah, I think you would have [done] that.

V2: Hey?

V1: I think you would have in this instance.

V2: Did I throw ‘em away?

V1: I think you probably would have in this instance, you know you wouldn’t have kept anything.

V2: Yeah, I think I did keep a sewing kit, but it’s just got – it’s got – it hasn’t got their name, it’s just got a pattern on it, you know what I mean, mate?”

56. On 12 July 2004, Mr Olivieri was seen at a motel in Mount Isa in central Queensland. On 2 August 2004, Mr Olivieri was arrested at Kununurra in remote Western Australia and extradited to New South Wales. When Mr Olivieri was taken into custody at Kununurra, he had a backpack containing an amount of personal property including a sewing kit.

Grounds 1(i) and 4 – the Controlled Operation

57. Grounds 1(i) and 4 of the appeal challenge the validity of the controlled operation authority. In support of these grounds, Mr Olivieri relied upon some 14 single spaced pages of submissions (apparently prepared by him): written submissions filed 30 September 2014, pp 1-11, 21-23. In what follows, I will attempt, as best I can, to identify all aspects of the complaints advanced by Mr Olivieri. Save in relation to the involvement of Mr Johnson (whose 10 June call with Mr Olivieri is set out above), Mr Olivieri did not wish to elaborate this aspect of his appeal orally.

58. Mr Olivieri’s first submission was that the controlled operation certificate was invalid because it had been produced for an improper purpose. He submitted that its dominant purpose was to abrogate established rules. In particular, Mr Olivieri maintained that there was clearly sufficient evidence for his arrest (the identification evidence from Mrs Williams and the information from Mr Johnson) and in not arresting him there was a “deliberate failure to adhere to statute”. Secondly, Mr Olivieri complained of a failure to disclose the role of Mr Johnson at trial. Thirdly, he pointed to a “disregard for the safety of participants in the operation, of Olivieri and … of third parties”. Fourthly, he submitted that the controlled operation deliberately induced a “guilty state of mind” in him, designed to elicit ambiguous utterances capable of being construed as admissions.

59. The operation of the Act is authoritatively stated by the High Court in Gedeon v NSW Crime Commission [2008] HCA 43; 236 CLR 120. It will not be necessary for present purposes to summarise comprehensively the legislation or the body of law relating to it. It suffices to state that the authority authorises law enforcement participants to do something which would otherwise be unlawful. Section 16 states:

“Despite any other Act or law, an activity that is engaged in by a participant in an authorised operation in the course of, and for the purposes of, the operation is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in in accordance with, the authority for the operation.”

60. Relevantly, s 8(2) requires that an authority:

“(c) must identify each person who may engage in controlled activities for the purposes of the operation, and

(d) must state whether or not any such person may operate under an assumed name”.

61. Section 7(1)(b) (coincidentally, the critical provision in Gedeon) provides that:

“An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation:

...

(b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property”.

62. Although he did not frame the submissions as such, it may be accepted that if Mr Olivieri could establish an invalidity in the authority, or a non-compliance with any of its conditions, then at least in principle there would be scope for a submission that evidence should have been excluded, including pursuant to s 138 of the Evidence Act. However, even though Mr Gedeon succeeded in the High Court, the subsequent litigation shows that invalidity of the authority does not mean that evidence will necessarily be excluded: see Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326 at [179]-[181].

63. The primary judge heard argument over three days in the second week of the trial and ultimately, on 8 August 2006, admitted over the objection of counsel for Mr Olivieri some 12 recordings and transcripts of intercepted telephone calls, subject to the excision by consent of some material which was, in his Honour’s view, “clearly prejudicial”. His Honour gave reasons for that ruling on 4 September 2006 (after the jury had returned a guilty verdict): R v Olivieri; R v Norman [2006] NSWSC 882. In light of the importance of the intercepted telephone transcripts to the trial, and to Mr Olivieri’s appeal, I reproduce his Honour’s reasons at [3]-[19], despite their length:

“All the calls were made after the publication of an article about the shooting of the deceased in the Sydney Daily Telegraph on 10 June 2004. That article followed a press release by the police, together with the release of an image said to be that of a man seen acting suspiciously in the area near the deceased’s home at the relevant time. The clear implication of the press release, and of the article, was that that man was suspected to have been the gunman. I received the press release, the article, and an article to the same effect in the Sydney Morning Herald of 11 June 2004, as exhibit G on the voir dire.

After the shooting the deceased’s widow had helped police compile a COMFIT image and a FACE image of the gunman, whom she had seen running from the office where her husband had been shot. The image released by the police for publication on 10 June was neither of those. It was a photograph of Mr Olivieri, modified to give the appearance of a computer generated image. What the newspaper articles conveyed to the reader was that that image had been able to be compiled by a witness or witnesses who had seen such a man in the area at the time of the shooting.

This was false, to the knowledge of the investigating police. It was a subterfuge for which they sought and obtained authority under s 8 of the Law Enforcement (Controlled Operations) Act 1997. I received a copy of that authority as exhibit F on the voir dire. Telephone intercepts on the mobile phones of Mr Olivieri and his co-accused, Mr Norman, were in place before the issue of the press release. The purpose of the subterfuge, no doubt, was to engender phone conversations in which the accused made statements implicating themselves in the murder.

On 10 June Mr Olivieri, then in Queensland, had two telephone conversations with a friend, Ray Johnson, in Sydney: calls D and E of exhibit CC. Mr Johnson told him about the Telegraph article and, in particular, of the publication of an image bearing a startling resemblance to him. Mr Olivieri expressed concern a number of times about this development, even saying (in call E) that he thought that he was ‘gone’. Later that same day there was a call between the two accused (call F), in which the matter was discussed and Mr Olivieri said that he would ‘have to go away for a while …’.

The remaining calls were made over the period of about two weeks thereafter. There is no need to refer to each of them. They contain further references to the newspaper article and disclose a continuing interest in the development of the investigation into the murder. Mr Olivieri on several occasions asserted that he was in Queensland at the time of the shooting, and he and Mr Norman discussed witnesses who might have given evidence to that effect. However, he also expressed concern that police who searched the property in Queensland where he had been living might find items from a motel in Sydney at which he had been staying at the time of the shooting.

Put briefly, the Crown Prosecutor relied on the calls as evidence of knowledge on the part of Mr Olivieri of the murder such as to suggest that he was involved in it, and a concern about the newspaper article and the continuing police investigation born of a fear that his involvement might be detected. She proposed to put to the jury that his apparent protestations of innocence on the basis that he was in Queensland at the time were in fact part of a process of concocting with his co-accused a false account to be given to the police.

Some of the calls contain discussions between the two accused about the payment of money by Mr Norman to Mr Olivieri. Mr Austin did not object to that material, accepting that it was admissible as evidence of their continuing relationship. Otherwise, the first basis of his objection was that the calls were irrelevant because they contained no statement by Mr Olivieri which could constitute an admission of involvement in the murder. He relied upon s88 of the Evidence Act, and I accept that that section extends to the question whether a representation is capable of constituting an admission. I would respectfully adopt the view of Greg James J in R v Hall & Ors [2001] NSWSC 827 at [27] – [29].

True it is that no explicit admission of involvement in the murder is to be found in any of the calls. Indeed, as already referred to, some of Mr Olivieri’s statements amounted on their face to protestations of innocence. Otherwise, Mr Austin argued, what was said was at most ambiguous and was consistent with the state of mind of a man wrongly suspected of a serious crime. However, I took the view that the significance of the calls was a matter for the jury and that they were fairly open to the interpretation for which the Crown Prosecutor had contended. That being so, they could be said to contain admissions, being representations adverse to the accused’s interest in the outcome of the proceeding: see the definition of ‘admission’ in Part 1 of the Dictionary to the Evidence Act. In any event, however they might be classified, I considered that the calls were relevant as part of the Crown’s circumstantial case.

Mr Austin’s second and alternative argument was that, if the calls did contain admissions, they should be rejected upon the basis that to admit them would be unfair to the accused, within the meaning of s 90 of the Evidence Act, or for reasons of public policy under s 138. Thirdly, he argued that, even if the evidence were found to be admissible otherwise than as admissions, it should still be rejected under s 138.

He submitted that the situation was analogous to that of police making a false or misleading representation to a suspect in the course of an interview, in the hope of inducing an admission: cf s 138(2)(b) of the Evidence Act. It was said that the evidence should not be allowed as admissions because it would be unfair to the accused to do so and because, in any event, the balancing act required by s 138(1) should lead to its rejection. Mr Austin emphasised that the argument was only by way of analogy, acknowledging that the evidence was not the product of a police interview (or of ‘official questioning’, as that expression is used in Part 3.4 of the Evidence Act).

The arguments are related, and both require consideration of the fact that the misleading article in the Telegraph was published pursuant to an authority under the Law Enforcement (Controlled Operations) Act. This is not the occasion to consider the rationale and legislative history of that Act, or to examine its provisions in any detail. Section 16 provides that an activity engaged in under an authority under s 8 ‘is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in in accordance with, the authority for the operation’. ‘Corrupt conduct’ is defined as bearing the meaning it has in the Independent Commission Against Corruption Act 1988.

Whether the issue of the misleading press release in the present case was ‘unlawful’, or could constitute ‘an offence or corrupt conduct’, is far from clear. No basis on which it might be considered to be unlawful or to amount to corrupt conduct was articulated in argument. The question remains whether it might amount to an ‘impropriety’ within the meaning of s 138 of the Evidence Act and, if so, whether an authority under the Law Enforcement (Controlled Operations) Act is effective to deprive it of that character.

Another provision of the Law Enforcement (Controlled Operations) Act which might have a bearing in the present case is s 3A, relevant parts of which are as follows:

3A Act not to affect certain matters

(1) This Act does not affect, and is taken never to have affected, the existence or exercise of any discretions (including any administrative or judicial discretions) that, apart from this Act, may lawfully be exercised in relation to the commencement, conduct or conclusion of legal proceedings.

(2) Without limiting subsection (1), the discretions referred to in that subsection include the following:

(a)…

(b) any discretion as to whether or not evidence should be admitted in legal proceedings,

(c) …

The ambit of s 3A and s 16 was raised, but not developed, in argument. The matter was not the subject of research and full argument, and it would be inappropriate for me to express any concluded view about it. I took the view that the evidence should not be rejected under s 90 or s 138 even if it were assumed, without deciding, that the publication was improper and that it was not validated by its authority as a controlled operation.

The view I took of the balancing exercise under s 138 was the same, whether or not the evidence was relevant as a series of admissions or otherwise as part of the Crown’s circumstantial case. Having regard to the matters set out in s 138(3), I assessed the evidence as important and as having substantial probative value. I did not consider any impropriety to be grave, noting that it was neither deliberate nor reckless. Indeed, there was nothing to suggest other than that the investigating police, and the senior authorising officer, saw the issue of the press release as a legitimate investigative tool, appropriately authorised as a controlled operation.

As to s 90, I saw no relevant unfairness to the accused. There is no true analogy with a misrepresentation by police to a suspect under interrogation. Certainly, the evidence might be seen as the product of a subterfuge but, like it or not, subterfuge is an accepted part of police investigation, particularly of serious crime. It is, for example, an inherent part of every undercover operation. To the extent that it led to relevant and significant evidence in the present case, it was not unfair to use it against Mr Olivieri.

Mr Austin also relied upon s 137 of the Evidence Act but, for the reasons I have already given, it could not be said that the probative value of the evidence was outweighed by the risk of unfair prejudice to his client. I should add that that argument was directed primarily to a particular matter which, in the event, was not pressed because Mr Austin decided not to adduce evidence on the voir dire about it.”

64. First, it was entirely understandable that investigating police chose not to arrest Mr Olivieri and have him participate in an identification parade. It was clear that the only witness who might be able to identify him was Mrs Williams. She had only seen the gunman briefly. Because Mrs Williams regarded the images she had prepared as being poor, she herself might have failed to identify Mr Olivieri. Alternatively, even if she did identify Mr Olivieri as the gunman, her identification might not have been regarded as sufficiently reliable, given her own expressions of doubt. It follows that Mr Olivieri’s first complaint, that the purpose of the controlled operation was improper by reason of the availability of the conventional approach of arrest, caution, and offer of opportunity to participate in an identification parade, is not well founded.

65. The purpose of the operation was precisely that anticipated by the Act. No differently from any other controlled operation, the effect of a certificate under s 27 of the Act is to authorise something which otherwise would be unlawful. The primary judge plainly appreciated the purpose of the operation (“This was false, to the knowledge of the investigating police. It was a subterfuge ... The purpose of the subterfuge, no doubt, was to engender phone conversations in which the accused made statements implicating themselves in the murder”). No error is thereby shown.

66. In relation to Mr Johnson, Mr Olivieri relied on an affidavit of Mr Alec Shalala made on 8 January 2012. Mr Shalala was, when he swore that affidavit, in custody at Lithgow Correctional Centre. He deposed to a conversation he said he had had some five years earlier, in the Bandido Clubhouse at Leichhardt, with Mr  Johnson. Mr Johnson told Mr Shalala that a police officer had told him that Mr Olivieri was a person of interest in a murder of a solicitor in Leichhardt, and had said:

“I want you to ring Tony Olivieri and tell him to get today’s Sydney newspaper as it has a[n] identikit picture of him in it, and if [Mr Johnson] done that his charges would be dropped.”

67. Mr Shalala then said that Mr Johnson told him:

“I rang Tony Olivieri about lunch time that day and asked him had he seen the Sydney newspaper as it had a[n] identikit picture of him with a shaved head and that he was wanted for questioning in relation to a murder blue in Leichhardt.

…

I thought I was doing Tony Olivieri a favour by ringing him in Queensland as he might not receive the Sydney newspaper and be aware of his predicament in relation to the Leichhardt murder investigation.”

68. That affidavit was read as fresh evidence on the appeal. The Crown observed that it was second hand hearsay but maintained that it was not necessary to determine the credibility of Mr Shalala (who was not required for cross-examination). The Crown called evidence in response, from a police officer personally involved in the controlled operation who said of the conversations between Mr Johnson and Mr Olivieri:

“This conversation was at no time solicited by the investigators, the person Ray Johnson was not known to police until this telephone call was made. Johnson was never a participant in any controlled operation activities, as alleged by Olivieri. Johnson was later approached to provide a statement regarding these conversations, however he refused.”

69. In a later affidavit, the police officer said that on 14 July 2004, he and two other detectives spoke with Mr Johnson on a hands-free speaker telephone. He said that Mr Johnson was advised that Mr Olivieri was a suspect and that he was in fact wanted for the murder of the deceased. He was also warned about the offence of accessory after the fact to murder. The police officer said:

“This call was made to Johnson after he was identified from a telephone intercept on Olivieri’s mobile telephone, following the publication of Olivieri’s photograph in the Daily Telegraph newspaper. Johnson was not known to the investigation prior to this. I do not recall the exact conversation. The investigation records indicate that Johnson agreed to attend the Marrickville Police Station on 15 July 2004 to speak with police. I have never met Johnson to date.”

70. The affidavit annexed a contemporaneous record titled “Raymond Johnson spoken to re Olivieri wanted by police”, created 14 July 2004.

71. The police officer was made available by the Crown for cross-examination. Mr Olivieri did not seek to cross-examine him. This took place in a way which was transparent, and reflected an appreciation by the Crown of its responsibilities to deal fairly with an unrepresented litigant, and included the following:

“CROWN: ... I am cautious that the applicant is unrepresented. If he is absolutely certain he doesn’t want to cross-examine them then that’s fine. Otherwise I won’t make an application.

LEEMING JA: Mr Olivieri I am not sure if you understood what was said then?

APPLICANT: I did.

LEEMING JA: My understanding is that apart from Professor Boettcher you don’t wish to cross-examine any of the witnesses who have sworn affidavits that the Crown has relied upon?

APPLICANT: No, your Honour, no.

LEEMING JA: What the Crown is then saying is rather than having these people waiting in court they should be free to go. That would be what would happen in the normal course and having identified the evidentiary matter before us we then move on to making submissions on the substance of the appeal.

APPLICANT: It sounds good to me.”

72. Given the direct evidence of the police officer personally involved, corroborated by the contemporaneous record, and the inherently unreliable second-hand hearsay of Mr Shalala recalling what he said Mr Johnson had told him five years earlier about something which had happened in 2004, I accept the Crown submission that no cross-examination of Mr Shalala was necessary in order to find the primary facts in accordance with the officer’s account.

73. The consequence is that, contrary to Mr Olivieri’s submission, Mr Johnson is not shown to have been acting as an “agent of the State” or otherwise at the request of investigating police. Instead, it is to be inferred that Mr Johnson initiated the telephone conversation on 10 June 2004 acting independently, having seen the picture and story placed in the newspaper by police.

74. As the Crown submitted, while by issuing the false media release the police created an environment in which Mr Olivieri might make self-incriminatory remarks on the telephone, it was no part of that operation that Mr Johnson would speak to Mr Olivieri on behalf of the investigating police. Mr Johnson was not acting as an agent of the police.

75. Neither the extracts of the conversations reproduced above, nor the balance of those two conversations, suggest that either Mr Johnson or Mr Olivieri was aware that the publication was false and that the calls were being monitored.

76. Mr Olivieri submitted that on 14 July 2004 at 3:20pm, Mr Johnson called the office telephone number of the police officer in charge of the murder investigation. That takes the matter no further, save to corroborate the police record of the telephone conversation with Mr Johnson on that date.

77. In relation to Mr Olivieri’s submissions based on a disregard for public safety, which rely on s 7(1)(b) of the Law Enforcement (Controlled Operations) Act, Mr Olivieri’s primary focus was upon danger to Mrs Williams. His submission was that the publication would have alerted the gunman to the fact that her observation of him had enabled a good likeness to have been provided to the police. However, the media release referred to the man having been seen in Charles Street before the shooting, and gave no connection between Mrs Williams and his identification. To the extent that Mrs Williams was in danger because the gunman must have been aware that she had seen him while escaping, that was not a consequence of the controlled operation.

78. Further, I accept the Crown’s submission that the controlled operation would, if anything, have served to reduce the risk to Mrs Williams, by deflecting attention away from her to a (non-existent) witness in Charles Street.

79. To the extent that Mr Olivieri relies upon the controlled operation creating a risk to a member of the public seeking himself or herself to apprehend Mr Olivieri, I reject the submission. There is no reason to think that the controlled operation would lead a member of the community to attempt to apprehend Mr Olivieri.

80. Mr Olivieri submitted that the controlled operation was intended to “elicit ambiguous utterances capable of being construed as ‘admission’”. I do not agree. The matters reproduced above are not ambiguous; to the contrary, I regard them as highly probative of Mr Olivieri’s guilt. But in any event, there is no sound basis for suggesting that the operation was designed to elicit ambiguous statements by Mr Olivieri, as opposed to unambiguous admissions.

81. Mr Olivieri then advanced a series of submissions criticising the argument made on his behalf at trial and the ruling by the primary judge in respect of the admissibility of the telephone conversations. I deal with each in turn.

82. In relation to the submissions advanced at trial, the gravamen of Mr Olivieri’s submission may be seen from his conclusion:

“It is the combination of inadequate argument by counsel and the lack of the most basic of forensics (Johnson call records, Detective Byrne call records which unveil Johnson’s role) together with the counsel’s failure to call Olivieri on voir dire that created the problem. Olivieri should have been called on voir dire:

(a) To establish Olivieri’s experience of being set up by police,

(b) The extent of his dealings in an unrelated matter with the police informant Johnson, and

(c) Collateral issues adverted to in the recorded calls adduced.”

83. The reference to Mr Johnson’s call records and the need to “unveil Johnson’s role” is a reference to Mr Olivieri’s submission that Mr Johnson was an agent of the State, which has been dealt with above.

84. A basal difficulty with the submission based on the evidence Mr Olivieri might have given, had he been called on the voir dire, is that he did not give such evidence when called to give evidence before the jury. Mr Olivieri’s submissions are to the effect that the seemingly incriminating conversations were in fact references to other criminal conduct. That was not the explanation given in 2006 by Mr Olivieri to the jury.

85. When Mr Olivieri addressed the jury, and was asked about the two telephone conversations he had had with Mr Johnson on 10 June 2004, he gave the following evidence in chief:

“Q: And do you recall that the first of those involved Mr Johnson referring to the need for you to get the Sydney papers?

A: That’s right, yes.

Q: Now can you tell us how Mr Johnson came to call you in relation to that particular matter?

A: Mark Norman had been to the property just about at the end of I think it was April for the auction, and he told me that the police were investigating him for Mr Williams, questioning him over it, and he said my name had been mentioned. So then when I went to Ray’s wedding in the middle of May I told Ray about it.

Q: When you said ‘my name had been mentioned’, do you mean Mr Norman’s name or your name?

A: My name.”

86. That is to say, in answer to an open-ended question which Mr Olivieri must have anticipated would be asked on the 13th day of a trial where the intercepted conversations were of immense importance, rather than explaining that the references were to unrelated criminal activity, he gave an explanation that turned upon earlier conversations he had had with Mr Norman and Mr Johnson (the first when he had come to Queensland, the second at Mr Johnson’s wedding the previous month).

87. In his submissions on appeal, Mr Olivieri states:

“Olivieri did get confused by this (at the time) but thought it safer (at trial after not being called on [the voir dire]) not to admit to the unrelated activity as it could well have been seen by the trier of fact as ‘being involved with others (Johnson in this case) in unrelated matter’. Clearly this would have been highly prejudicial (and not outweighed by its negligible probative value).”

88. As the Crown points out, Mr Olivieri sought and obtained a certificate under s 128 of the Evidence Act in relation to the drug dealings he claimed to have participated in in Leichhardt on 5 and 6 April 2004. The jury was given appropriate directions concerning that evidence, and no complaint is made in relation to them. There was no reason for Mr Olivieri not to have explained the context of the intercepted conversations.

89. Further, it is plain from the course of the trial that counsel appearing for Mr Olivieri was conscious of the need to obtain instructions about any evidence to be given on the voir dire, during the objection to the tender of the transcripts of the intercepted telephone calls. Counsel was offered and accepted an opportunity to confer with his client (transcript 8 August 2006, p 427). Following that adjournment, counsel said:

“AUSTIN: I don’t seek to call any evidence on the voir dire after those instructions, and your Honour has my submissions in relation to the overall issues in terms of s 90, 137 and 138 in relation to this material.”

90. I return below to address Mr Olivieri’s complaints against his representation at trial. For present purposes, the plain inference from the above is that the decision was made on instructions.

91. Mr Olivieri’s written submissions criticise each of paragraphs 4-19 of the judgment delivered on 4 September 2006. None of those critiques amounts to the demonstration of any appellable error. I mean no disrespect, but much of the submission is difficult to understand, and reiterates material already addressed. By way of example, the dispositive paragraphs of his Honour’s reasons for the ruling are [9]-[10] and [16]-[17]. Mr Olivieri’s written submissions directed to those paragraphs were as follows:

“Points (9 & 10): Hall differentiates; a cold case where the procured admissions were the only evidence on which the conviction could stand. In the appellants matter there was a mosaic of circumstantial evidence available, but police set out to circumvent rules and procedures designed to protect citizens from such conduct by police (However it is noted that Olivieri should have been called on voir dire regarding such ‘admissions’: R v Singh-Bal (1997) 92 A Crim R 397: to assess if it was ‘reasonably open’ (s88)). Note also that the failure to adduce such calls would not be to deprive the crown of a prima facie case (R v Arvidson [2008] NSWCCA 135). Police set out to create a fiction in order to precipitate utterances which could be said ‘to go against interest’ in the proceeding.

…

Point (16 & 17): As above Evidence Act (NSW) s90 argument would turn upon evidence of Olivieri on voir dire. He was advised not to take part in voir dire. [Section] 138 was not considered in terms of the intended purpose of such conduct by police i.e. it was a deliberate attempt at circumventing rules (supra) which an argument of ‘good faith’ or ‘reasonable excuse’ could not save.”

There is nothing in these paragraphs, or the other submissions made by Mr Olivieri criticising the reasons of the primary judge, which gives rise to appellable error.

92. Ground 4 supplemented the submissions advanced in support of ground 1(a). Mr Olivieri makes six points. They are:

1. the conduct authorised by the authority was not authorised for release outside New South Wales;

2. there was no authority given for any of the authorised participants to operate under an assumed name, making the authority incomplete;

3. a constable used the name “Wendy” contrary to the authority;

4. “[l]aw enforcement participants of controlled operation fabricating evidence”;

5. the image in the Daily Telegraph was an “illegal image” because it was a true likeness, not a false image; and

6. the conduct of the operation endangered lives.

I deal with each point in turn.

93. Mr Olivieri points to the fact that the Daily Telegraph (a New South Wales based paper) could be bought in Queensland, and that articles were published in the Queensland Times in July. However, there is nothing to suggest that any media outlet received any information other than in New South Wales. The authority referred in terms to “Sydney based” media outlets, which plainly extended to the Daily Telegraph. There is nothing to suggest that there was any connection between the police and the article published in the Queensland Times.

94. Section 8(2)(d) of the Act provides that an authority “must state whether or not any [authorised person] may operate under an assumed name”. Those words are struck out in the authority dated 9 June 2004. It is not entirely clear what significance is to be given to the striking through of the words. My own view is that there has been an administrative error in the document, because although the words “the following authorised law enforcement participants may operate under an assumed name” have been struck through, the names of the various officers appearing immediately below have not (as noted above, the position is different in relation to “authorised civilian participants”, for all of that section has been struck through). The legal meaning of the document is perhaps debatable, but the preferable view is to construe the authority narrowly, so that none of the law enforcement participants is permitted to operate under an assumed name. I will proceed, favourably to Mr Olivieri, on that basis.

95. Mr Olivieri appears to submit that the striking out of those words means that the authority is invalid for not complying with s 8(2)(d). That submission cannot be accepted. The striking out of those words merely indicates, consistently with the obligation to do so in s 8(2)(d), that no authorised person may operate under an assumed name.

96. One of the authorised persons, a constable, used the name “Wendy” on 13 June 2004. The uncontested evidence on appeal was that this was for voice identification and/or verification purposes after Mr Olivieri had purchased a new mobile phone: affidavit of Mr Bryan Downie, sworn 2 March 2016 at paragraph 17. So far as I can see (there are six volumes of materials, and the index is less than ideal) the transcript of that conversation is not included in the appeal papers. It was not before the jury. A statement prepared by that officer (who was not called as a witness) records that on 8.12pm on 13 June 2004 the officer made a call to Mr Olivieri’s new number (ending in 6340). She states:

“Utilising the caller name ‘Wendy’ I engaged in conversation regarding a meeting with ‘Gary’ at the Caxton Hotel, Brisbane. I made this call in conjunction with the monitoring of a listening post located at xxxxx Booval and a lawfully intercepted telephone warrant.”

97. The unchallenged evidence of Detective Downie was that this call was not made pursuant to a controlled operation. On an issue such as this, his opinion cannot be determinative, but in any event I am of the same view. The controlled activities were linked, by the definition in the approval, to conversations concerning the false statements made to the New South Wales based media outlets. The call made by “Wendy” concerned a meeting with “Gary”.

98. The fact that I have concluded that there is no breach of any condition on the controlled operation means that it is unnecessary to examine the consequences of any such breach. In order that there be no doubt about it, I should say that it would by no means follow that a breach on 13 June 2004, if there were one in relation to a conversation not placed in evidence, would have any impact upon the admissibility of any of the conversations which were placed in evidence, especially those on 10 June 2004, which are the critical ones for the purposes of this appeal.

99. Mr Olivieri’s submission about fabricating evidence is as follows:

“False statements of law enforcement participants … allegedly observing me at Roma Street Railway Station on the 11th June 2004 at 9:53am heading to the Gold Coast”.

100. Mr Olivieri here disputes that he was depicted in photographs taken by police at Roma St Railway Station. In this, he appears to be correct, having regard not merely to the images themselves but also to the telephone records. But there is nothing in this point. Assuming as Mr Olivieri maintains that the photographs were distributed to the defence, they were not tendered at trial, they were not mentioned to the jury, they were not in any way relied on by the Crown, and the Crown’s case on flight did not turn on these materials. They were not mentioned in the summing up.

101. If as Mr Olivieri asserts the photographs were handed to the defence by the Crown Prosecutor, there was a mistake on which absolutely nothing turns. It is not shown that the photographs were fabricated; it is far more likely that there was an innocent misidentification in the course of a factually intensive trial. But in any event, the photographs were not tendered at the trial, and cannot give rise to the possibility of a miscarriage of justice.

102. The “illegal image” of which Mr Olivieri complains was a photograph of Mr Olivieri, altered to make it appear to be a computer-generated FACE image. As the Crown submissions (paragraph 487) observe, the image distributed was false in a number of respects. First, it was not a computer-generated FACE image. Secondly, it had not been produced by an eyewitness. Thirdly, there was no witness who had seen the man at the phone box. That is sufficient to dispel Mr Olivieri’s submissions concerning an obligation to distribute a false image.

103. Mr Olivieri’s complaint about endangering lives has been addressed above, save that Mr Olivieri’s submissions under this heading make one further point (p 22), namely, that police knew of his drug dealing at the time, and so believed that he would more likely be evasive in his phone conversations. As the Crown observes, there is no evidence that the police knew this, the submission was not put to the police witnesses called at trial or at the committal, and it is difficult to see how the evasiveness in the intercepted telephone calls could have been attributed to drug dealings.

104. I would dismiss these grounds. The primary judge was correct to permit the conversations obtained following publication of the false story and picture of Mr Olivieri to be adduced into evidence.

Ground 1(ii) – pretext calls

105. This ground is described as follows:

“A miscarriage of justice was occasioned by the erroneous reception of a number of ‘pretext calls’ said to contain utterances capable of being construed as ‘admissions’ and ‘[consciousness] of guilty evidence’. These utterances were determined by an agent of the state, and would not have been elicited if it were not for the actions of the agent.”

106. No separate submissions were advanced in support of this sub-ground. For reasons already given, I do not accept that Mr Johnson was an agent of the State. This ground falls away.

Ground 2(a) – fresh evidence, Prof Barry Boettcher DNA report

107. Mr Olivieri’s written submission in support of this ground is as follows:

“There is no DNA, no fingerprints; the shoe impressions taken from the crime scene do not match Olivieri’s shoes, the description, age or height given by Ms Williams does not match Olivieri, and the person she described was wearing NO gloves. No physical evidence puts Olivieri at the crime scene.”

108. Mr Olivieri was given leave to rely upon recent reports obtained by him from Professor Barry Boettcher AM, whose expertise includes DNA profiles, including one prepared recently, dated 10 March 2016. The gravamen of that evidence was that there was nothing to conclude that the DNA found at the crime scene was linked to Mr Olivieri. So much may readily be accepted.

109. The position in relation to DNA test samples obtained from a part of the gun at the crime scene was that there had been a dispute as to whether the DNA corresponded to that of Mr Olivieri. Expert DNA evidence ultimately was not adduced. In her closing address, the Crown Prosecutor made no mention of DNA evidence. Defence counsel submitted to the jury that Mr Olivieri’s DNA had not been found anywhere. The judge made no mention of DNA evidence when summing up. The dispute as to whether the DNA corresponded to that of Mr Olivieri was resolved after the conclusion of the trial favourably to Mr Olivieri.

110. In oral submissions, Mr Olivieri said that there was evidence of a scuffle and that Mrs Williams had claimed that the gunman she saw had no gloves. He then said:

“[T]he DNA that was found on the piece of the gun belongs to somebody, and the point is that it’s not me. I mean, if the person using the gun has a scuffle has to leave fingerprints or some sort of forensic evidence there.”

111. Although Mr Olivieri submitted that the absence of DNA evidence exonerated him, that is, of course, not the case. At all times, the onus lay upon the Crown to prove beyond reasonable doubt that Mr Olivieri was the gunman. That could be done with, or without, DNA evidence. But the fact that the DNA material recovered from the gun is not shown to have been that of Mr Olivieri in no way exonerates him. As it was put by the Crown orally:

“It might be that they are not guilty but the absence of DNA does not establish or demonstrate that they are not guilty, because of course there can be a number of reasons why they might not have left their DNA there apart from the fact that they were not the gunman in this case.”

112. There is nothing in this ground.

Ground 2(b) the evidence of Ms Kirkpatrick

113. Ms Kirkpatrick was a Queensland government officer with whom Mr Olivieri had an appointment on 7 April 2004. She said that he had rung on 6 April 2004 to say that he would not be able to attend. She said that her office number would divert to a number ending in 1814 if she was not able to pick up the call, and indeed Mr Olivieri’s handset made a call at 5:22pm on 6 April 2004 to that number in Queensland (the call was transmitted from a receiver at the Cabramatta Bowling Club base station, consistently with his being at or near the Sunnybrook Motel). She said that in May she was told by Mr Olivieri that he had a new mobile phone number. She said that he had supplied Grant Norman as his next of kin.

114. Ms Kirkpatrick was cross-examined very shortly. The entirety of her evidence at trial occupied two pages of transcript and took 5 minutes. She was not challenged as to her evidence of next of kin at all.

115. Mr Olivieri submitted in respect of ground 2(b):

“Ms Kirkpatrick’s created a false document of the Offenders Profile dated 22nd October 2003 stating that Grant Norman as next of kin given to her by the appellant was false, as the appellant had been in custody from the 17th September 2003 to 10th December 2003. The offenders Profile has been amended by the Queensland Corrective Services (QCS) because it was proven to be misleading and inaccurate. The Offenders Profile was amended to the appellant’s mother who the QCS has a record of only her being next of kin, it was also stated by QCS that there is no record in the parole case file that the appellant or anyone has put G[r]ant Norman as next of kin” [emphasis in original].

116. In support of this ground, Mr Olivieri relies on a letter dated 18 January 2010, which accedes to a request made by him in 2009, after his conviction, to amend the records of Queensland Corrective Services, to replace Mr Norman as his next of kin by his mother.

117. There is nothing in this ground. The alteration in the Queensland government records was made after conviction, and on Mr Olivieri’s application. There is nothing to suggest that the evidence given by Ms Kirkpatrick was wrong at the time it was given.

118. Moreover, the same evidence had been led at the committal in November 2005. Let it be assumed, favourably to Mr Olivieri and consistently with what occurred in 2010, that the Queensland government records were incorrect. There is no explanation why steps were not taken in the following months to correct this.

Ground 2(c) – Mr Damon Miller

119. Mr Olivieri asserts that the deceased was, together with Mr Damon Miller, involved in a fraud, in connection with which Mr Miller was charged. The gravamen of the submission is that there was another person with a motive to kill the deceased which had not been disclosed by the Crown to the defence.

120. So far as I can see, Mr Olivieri gives no evidence of these matters. He says, in his submission, that he was informed of the fact by an (unnamed) solicitor.

121. Even so, the Crown read an affidavit by a police officer, who had been involved in investigations of Mr Miller, including his arrest in January 2005, and ultimately his conviction for fraud in September 2007. He gave evidence that he recalled speaking to detectives investigating the deceased’s death as to whether there was a link with Mr Miller, and being told that Mr Miller’s name had not come up. He said that in 2008, in connection with an appeal by Mr Miller, the deceased’s name had, again, come up in connection with the fraud, but that “the allegation was dismissed out of hand”.

122. The evidence of the police officer was unchallenged, and contradicted Mr Olivieri’s submissions. There is nothing in this ground of appeal.

Ground 2(d) – the person seen near Petersham TAFE

123. Mr Olivieri submitted that the person seen by the two Crown witnesses exiting Petersham Public School between 9.15pm and 9.30pm on 6 April 2004 may have been a student, rather than the gunman. The basis of this submission was that there were said to be “language classes being held at the TAFE which ran until 9.00pm”. Mr Olivieri maintained that “I have a document from the West Petersham TAFE with the information about what classes and the time it finished”, on which he seeks to rely as fresh evidence in support of this ground.

124. This is not fresh evidence, as the substance of the evidence was available at the time of the trial. In any event, the Crown witnesses did not purport to identify the person they had seen as the killer, still less did they identify Mr Olivieri. Accordingly, the evidence of the witnesses was not a substantial part of the Crown’s case at trial. As the Crown submitted on appeal:

“[T]he Crown submission made to the jury was that the man seen by Ms Edwards and Mr Middleton was the gunman[.] …

However, to arrive at such conclusions the jury was required to draw the necessary inferences from the available evidence that it had been the gunman who was involved in the near collision with Ms Edwards and Mr Middleton. The evidence relevant to that issue that was available at the time of the trial was not particularly strong and was entirely circumstantial.

The tenuous nature of the evidence available to support the inference that the man had been the gunman may readily be assessed by reference to the competing submissions made upon the evidence in the final addresses by the Crown, Defence Counsel and to the remarks made by the learned trial Judge in the summing up.”

125. When considered in context, as the Crown submitted, there was no miscarriage of justice occasioned by the absence of evidence at trial of the classes running at the Petersham TAFE on the evening of 6 April 2004, as the absence of that evidence has not deprived Mr Olivieri of any chance of an acquittal that might legitimately have been available had that evidence been led at trial. The evidence of the witnesses in question was not a material part of the Crown’s case, and the rejection of the inference sought to be drawn by the Crown would not have necessitated an acquittal.

Ground 3

126. Mr Olivieri submitted that “[t]he following evidence needed to be presented at trial to show reasonable doubt to the Crown’s case. Crown did not present a whole case”. Mr Olivieri thereafter identified 14 matters which, so it was said, should have been presented to the jury. The matters are addressed in 6 single-spaced pages of submissions.

127. The first item is that there was evidence that the deceased had come back from a trip to the Gold Coast early. Mr Olivieri submitted that the timing made it most unlikely that he had been asked by Mr Norman to murder the deceased. He submitted that the appointment between Mr Norman and the deceased was made at 4:40pm on 5 April 2004. He then said:

“I had contacted Mr Norman on the 5th April 2004 at 16:35 pm. There was no contact between Olivieri and Mr Norman from 16:35 pm until Olivieri contacted Mr Norman at 18:42 pm from Norton Street Leichhardt, now you would believe that Mr Norman would have contacted Olivieri to inform him that Mr Williams had returned from his trip after the appointment was made at 16:40 pm for 7:00 pm, if Olivieri was to murder Mr Williams. It shows reasonable doubt in the Crown’s alleged series of events for the 5th April 2004; this doubt would also go the jury.”

128. There is nothing in this. Mr Olivieri’s submission ignores the calls made between Mr Norman and Mr Olivieri at 9:08pm and 9:11pm on 5 April 2004. There was ultimately no contest about the facts that a meeting was scheduled on the evening of 5 April 2004, that Mr Olivieri made four calls while in the Petersham area to Mr Norman, and that immediately following the fourth, Mr Norman cancelled the meeting saying that he had a flat tyre.

129. Item 3(b) concerns a statement given by Mr Sharp, who gave evidence at the committal that he had seen the deceased on the day of the murder. Mr Sharp was not called at the trial. His witness statement to police was to the effect that Mr Norman had a “huge gambling problem”, and had been “fleecing clients”, and that the deceased was nervous and preoccupied in the afternoon before he was killed. Mr Sharp gave evidence about another fraud trial, of which he said “I don’t think there is any connection between Tom’s death and this fraud”. He also said that he knew Mr Olivieri through a common friend, with whom Mr Olivieri had leased a house from Mr Norman which was full of a hydroponic marijuana crop, and that he was told by a friend that “‘Toni’ was selling many hand guns to the Asians and Lebanese, he fancied himself as a gangster” and that he had been told that “‘Toni’ stood over people and shot at people”.

130. Mr Olivieri’s submission under this item seems to be that Mr Sharp’s evidence should have been put to the jury, as he had a motive to commit the murder. However, Mr Sharp’s evidence would have been obviously and devastatingly damaging to Mr Olivieri’s case. There is nothing in this item.

131. Item 3(c) concerns the police photographs said to have been of Mr Olivieri taken on 11 June 2004 at Roma Street Railway Station, which has been addressed above. The photographs were not in evidence and cannot give rise to a miscarriage of justice.

128. Item 3(d) is a submission that the telephone records of a neighbour of the deceased who did not give evidence at trial, but who said that he texted friends in Japan and London on the evening of 6 April 2004 immediately prior to hearing screaming from the Williams’ residence, might shed light on the precise time of death. Mr Olivieri says that:

“This piece of evidence would bring us closer to the time Mr Williams was murdered, I believe this would show that I was on the phone talking to Mr Whitehouse at the time Mr Williams was [being] shot”.

133. There is nothing in this ground. Mr Olivieri has caused orders for production to be made, but nothing has been produced. It is far from clear that even if there were records, they would produce any useful information. The critical weakness of this aspect of Mr Olivieri’s scenario is that his very short call with Mr Whitehouse of 30 seconds was some 6 minutes before the triple 0 call at 9.14pm.

134. Item 3(e) is as follows:

“There were three phone calls between the appellant and Raymond Richard Johnson on the 10 June 2004 the third call was not used in evidence, this call was crucial to defence case.”

135. Mr Olivieri does not elaborate in his submissions on how the call was crucial, but addresses it in his affidavit sworn 21 April 2015 (which is lengthy and in large measure duplicates the principal written submissions). The handwritten notes by officers monitoring the electronic surveillance of Mr Olivieri’s mobile phone record him receiving another call from Mr Johnson in the early evening of 10 June 2004, when he said he was not “too fussed” about it all but was “nervous naturally” and would “play it as it happens”.

136. I cannot see how that call could be crucial to Mr Olivieri’s case. Even if it supported an inference that Mr Olivieri was less concerned than he had been when Mr Johnson first called him to advise of the publication, what matters is what Mr Olivieri said to Mr Norman a few minutes later.

137. Item 3(f) is to the effect that the transcripts of the intercepted calls “shows that I was not fleeing”. Mr Olivieri refers to the remarks made by the primary judge in the course of dealing with the objection to the records. However, the transcripts do include Mr Olivieri saying on 10 June 2004:

“[Mr Olivieri]: Listen, I’m going to have to go away for a while mate.

[Mr Norman]: I think so.

[Mr Olivieri]: You know what I mean?

[Mr Norman]: Yeah, yeah, actually I just – yeah, I mean I was looking at it, yeah, you can see the similarities but I don’t think it’s currently, but then again the…

[Mr Olivieri]: No, ah, yeah just don’t want to um, you know what I mean? … I don’t know how to say this, but I’m going to need a little bit of money mate, you know what I mean?

…

[Mr Norman]: Yeah, I’ll have to – see at the moment I’m sort of fairly skint, but I’ll – yeah, we’ll get some and sort of have to fix something up.

[Mr Olivieri]: Yeah, well see I – me mate’s going to give me a ring, in about half an hour or so, he’s going to give me a phone number, then I’ve got to go see this bloke and he’s going to um, take me somewhere, you know what I mean?

…

[Mr Norman]: Will they be able to pay you or give you just board and keep?

[Mr Olivieri]: Oh, no, no, nothing mate, you know what I mean? It’s all up to me, you know what I’m saying?

[Mr Norman]: Yeah, I understand.

[Mr Olivieri]: You know they’re just going to put me there, sort of thing. I’m not…

[Mr Norman]: Yeah. Just be out there for a while?

[Mr Olivieri]: Yeah.”

138. In a conversation between Mr Norman and Grant Norman on 15 June 2004, the following exchange took place:

“[Mark Norman]: … So where’s, where’s [Mr Olivieri] now?

[Grant Norman]: Hiding.

[Mark Norman]: Mm hm. Yeah.”

139. Mr Olivieri also refers to having left town two intercepted conversations with Mr Norman on 16 June 2004, and again says “I’m not – I’m around sort of kind of thing” in an intercepted conversation with Mr Norman on 17 June. Later in the evening on 17 June, Mr Norman asks Mr Olivieri: “All right mate, so you could – you haven’t got anywhere you can sort of go to for a while?” Mr Olivieri responds: “Ah, I have, I have…”

140. The transcripts thus do show that Mr Olivieri left his ordinary place of residence following the publication of his photograph in the media on 10 June 2004. Mr Olivieri does not identify anything in the transcripts which shows that he left his ordinary place of residence in Queensland first for remote Mount Isa and then for remote Western Australia for any purpose other than avoiding the police. In any event, when he gave evidence at trial, he conceded that he had been trying to avoid police whom he believed were trying to set him up. There is nothing in this item.

141. Item 3(g) is a reference to evidence that the DNA profile from cigarette butts at the scene “is unsuitable for entry on the database but is suitable for comparison with a nominated subject”. The submission was not developed any further, either in writing or orally. There is nothing to suggest that this evidence could exonerate Mr Olivieri.

142. Item 3(h) concerns the constructed FACE image identified by a computer search as the closest match to Mr Olivieri. Mr Olivieri submitted that because his own face was on the database, it was essential that the failure on the part of Mrs Williams and the computer search to identify him be brought to the jury’s attention. However, the jury heard evidence from Mrs Williams that the image constructed by her bore a poor resemblance to the gunman.

143. Item 3(i) is a more elaborate submission dealing with the expert evidence concerning which base stations would transmit signals to mobile phones. Mr Olivieri queries the expertise of the technical experts, whether a mistake had been made in identifying his handset, refers to a criticism made by the primary judge concerning a different expert in a different criminal appeal (Morgan v R [2011] NSWCCA 257; 215 A Crim R 33 at [115]). It is, with respect, difficult to identify what point or points are being made. Mr Olivieri appears to challenge the expertise of one of the telecommunications experts, what can be drawn from the evidence as to which base stations transmitted a signal, and says there is a discrepancy in the IMEI information. Doing the best I can, I can see nothing in any of this. I accept that there are real limitations on what may be inferred from which station transmits a signal (principally, because that is dependent upon the level of activity throughout the network at the time). But those limitations had no application in this trial, because Mr Olivieri accepted that he participated in each of the calls on 5 and 6 April 2004, and was in the vicinity of Petersham when each of those calls were made and received by him.

144. The last six sentences of this ground (pp18-19 of the written submissions) return to a different topic: DNA found on the metal gun components at the scene. This has been addressed under ground 2(a) above.

145. Item 3(j) concerns the evidence of Mr Whitehouse that he had seen Mr Olivieri with a gun, and had heard him describe it as “a piece of shit” and that it had “fallen apart”. Mr Olivieri’s submissions were to the effect that the conversation could not have happened, because he “had changed his phone and number as from the 8 April ‘04 so as from this date there was no contact between the appellant and Mr Whitehouse”. He also submitted that Mr Whitehouse was a drug user with a criminal record including obtaining money by deception, which, according to Mr Olivieri, “shows he is known to lie”. Finally, he submitted that although Mr Whitehouse said that Mr Olivieri was angry and upset, Ms Kapor (who had provided her bank account details to Mr Olivieri) saw nothing unusual; he submitted that “Ms Kapor was not recalled to give evidence about that day”.

146. There is nothing in this item. The critical evidence from Mr Whitehouse was his call to Mr Olivieri’s mobile phone at 9:08pm on 6 April 2004, which places Mr Olivieri at Petersham on that evening. The fact that Mr Whitehouse and Ms Kapor had different recollections of Mr Olivieri’s mood is neither here nor there, and certainly provides no basis for her to have been recalled. Mr Whitehouse was cross-examined vigorously, and apparently effectively, on his recollection as to what Mr Olivieri had said about the gun. The judge in summing up gave a strongly worded caution about any use by the jury of such evidence. His Honour said (transcript 24 August 2006, pp 66-67) that the jury would have to be satisfied beyond reasonable doubt first that Mr Whitehouse did see the butt of a gun, secondly that the conversation between him and Mr Olivieri did happen, and thirdly that it happened after 6 April 2004. His Honour then said:

“Now I remind you that the evidence was strongly challenged. Mr Olivieri said in evidence that what Mr Whitehouse saw was a mobile phone, not the butt of a gun, and that no such conversation took place. And Mr Austin strongly challenged that evidence in his address to you.”

That was the very last direction given before the jury retired.

147. There is nothing in this item.

148. Item 3(k) asserts that the police never contacted Mr Olivieri but “tried to make it look like he was fleeing”. This item is misconceived. Mr Olivieri gave evidence himself that he was seeking to avoid arrest. There was no obligation on the police to arrest him, even if the police knew his location. This item falls away.

149. Item 3(l) asserts that the police had in their possession an Ericsson phone box which, he says, was mistaken for the butt of a gun by Mr Whitehouse. This aspect is related to, and takes the matter no further than, item 3(j).

150. Item 3(m) queried why police took “more notice of Ms Edward[s] and Mr Middleton” than a statement by witness who said that he observed a suspicious car on the evening of the murder. However, the witness could not identify the vehicle by its registration number or any other identifying features. Mr Olivieri gave no explanation of what useful evidence could have been given by this witness. There is nothing to suggest that the absence of this witness gave rise to any miscarriage of justice.

151. Item 3(n) was a complaint that a solicitor was not called to give evidence that he had advised Mr Olivieri that he was under no obligation to present himself to police. It is plain that any such communication would have been privileged. It was open to Mr Olivieri to waive privilege and call the solicitor in his case if he chose, but it cannot be a failure on the part of the Crown to fail to do so. He also submitted: “How could I be fleeing when there is no arrest warrant for me?” But flight, and the inferences capable of being drawn by suddenly relocating to remote Queensland, and then to remote Western Australia, are available irrespective of whether a warrant exists.

152. Mr Olivieri concluded by stating:

“Individually the above points mean nothing; collectively they show the Crown’s case in a new light. It shows the Crown never presented a whole case; there was too much evidence left out by both Crown and defence, which would have shown reasonable doubt to the jury.”

153. I am conscious that I have dealt with each of the items individually. I have done so for clarity of exposition, in light of their number. It is clear from a close examination of all of the complaints that Mr Olivieri’s basic submission that there were substantial matters which the Crown was obliged to expose to the jury but did not is unfounded.

154. I would dismiss this ground of appeal.

Grounds 1(iii) and 5 – Incompetence of counsel

155. Ground 1(iii) is articulated as follows:

“The failure of counsel to call Olivieri on voir dire to expunge inadmissible evidence (the calls in point (2) supra), and then to call him to give evidence (on those calls) in the trial itself, amounted to ‘flagrant incompetence’.”

However, most of the submissions in support of the alleged incompetence of Mr Olivieri’s representation at trial are contained within ground 5.

156. Mr Mark Austin, an experienced Public Defender, appeared for Mr Olivieri at trial. He swore an affidavit which was read without objection in the appeal dealing with whether Mr Olivieri was called on the voir dire. He stated that there was no evidence that the intercepts had been unlawfully or improperly obtained, leaving an argument only that Mr Olivieri’s statements in the intercepts were ambivalent and did not amount to an admission against interest which should have been admitted. Mr Austin said in those circumstances that “there was nothing that any evidence given by the applicant could contribute” and “[i]t was not up to the trial judge to determine what the applicant actually meant by the words”.

157. Both those statements are, with respect, correct. That is by itself a complete answer to complaint insofar as it was based on a failure to call Mr Olivieri on the voir dire.

158. There is a further matter. If Mr Olivieri was called on the voir dire in relation to the intercepted conversations, he would have been subject to cross-examination early in the course of the Crown case. It is easy to see that that was apt to involve a very significant forensic disadvantage to him. And I find it impossible to see how there could have been any different outcome to the decision to admit the transcripts of the intercepted conversations had he been called.

159. Turning to the decision to call Mr Olivieri before the jury, Mr Olivieri’s explanation of his presence in the vicinity of Petersham on 5 April 2004, and on 6 April 2004 minutes before the deceased was killed, namely, that he was dealing in drugs, was entirely unfounded in any other evidence in the case. Mr Olivieri thus needed to give testimonial evidence to support this explanation. I cannot conclude that there was any negligence, let alone the requisite flagrant incompetence, in giving whatever advice was given in relation to presenting that explanation to the jury.

160. In the formulation of this ground, Mr Olivieri recognises, correctly, that it is necessary for him to demonstrate something amounting to “flagrant incompetence” (or “egregious error”, “extreme conduct” or “significant fault”: see TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [29]). Further, ordinarily it is not appropriate for an appellate court to review the decisions made by counsel at trial: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [8]. The ultimate question is whether the failure to call Mr Olivieri on the voir dire occasioned a miscarriage of justice.

161. It is not necessary to say anything as to the extent to which evidence from Mr Olivieri’s former counsel can be received and considered (as to which issue no submissions were made): see the authorities reviewed in Alkhair v R [2016] NSWCCA 4 at [27]-[31]. In my view, Mr Olivieri has not come close to establishing that there has been a miscarriage of justice in this regard.

162. In large measure the 24 single spaced pages of submissions in support of this ground reproduce extracts from the transcript, or interlocutory judgment, in support of submissions that both counsel and solicitor acting for Mr Olivieri were so incompetent that there has been a miscarriage of justice. Although I have read all of this (as well as paragraphs 506-842 of the Crown’s written submissions in response), it is unnecessary to respond in detail.

163. A recurring theme is the fact that the primary judge overruled the objection to the intercepted conversations with Mr Olivieri within the controlled operation. As explained above, there was no error in the primary judge taking that course, and his Honour’s decision to do so does not for a moment entail any lack of competence by counsel. Mr Olivieri focusses upon the failure to press that there was any impropriety in the controlled operation. Although I accept that Mr Olivieri is of the contrary view, no basis has been shown for any such submission. Indeed, far from demonstrating incompetence, it would have been improper for such a submission to have been made.

164. Again, Mr Olivieri complained, in relation to the photographs at Roma St Railway Station, that “this crucial matter was never challenged on admissibility or relevance”. Indeed, when he complained to his counsel, he was told “Leave it to me. I’ll fix it”. The photographs did not form part of the case against Mr Olivieri.

165. Again, Mr Olivieri complained about the officer who used the name “Wendy” (who did not give evidence): “It was essential for [that detective] to be summoned at my trial to be questioned about using the … false name of ‘Wendy’”. I disagree. This could have had, for the reasons already given, no material impact on any aspect of the trial.

166. Mr Olivieri submitted that his case was conducted contrary to his instructions. He gave three examples at pp 33 and 34 of his written submissions: the failure to cross-examine one detective concerning the Roma St Railway Station photographs, the failure to cross-examine the officer who used the name “Wendy”, and the failure to have a DNA expert give evidence. Those three examples well illustrate the weakness of Mr Olivieri’s complaint. The Roma St Railway Station photographs were not part of the Crown case, the officer who used the name “Wendy” was not called, and the DNA evidence was not part of the Crown case.

167. Finally, because of its centrality to the Crown case, and because it illustrates the nature of Mr Olivieri’s submissions, I reproduce verbatim what is stated in Mr Olivieri’s submissions concerning the mobile phone records of the 9:08pm call he received from Mr Whitehouse:

“The prosecution produced a document indicated that the call came from cell location of 606 Parramatta Road, Petersham (Millers Tower), please refer to provided and enclosed document outlining towers in the immediate, surrounding suburbs.

The issue of Millers Tower ought to have been fiercely challenged by Mr Austin because the ‘cell location’ possibly came from any number of different tower locations. This vital point was never adequately explored or developed by Mr Austin. If you view the time of the shooting of Mr Williams and compare the time I was on the phone speaking with David Whitehouse you will note it is the same time. It is impossible to be shooting someone with a phone in one hand and a gun the other.

For the prosecution’s purposes they had their own witness mention the Millers Tower simply because this location is the closest to the crime scene. From the very outset, I stated that I was in Norton Street, Leichhardt, at the time I received this phone call, at 9.08 pm (35 seconds duration) from Mr David Whitehouse.

Why the precise phone cell location becomes vital to my defence is this.

Retrieving weather forecasts for that night (and more importantly, that time period) was rain and cloud cover. I understand that this can affect the receiving signal and with so many cell location towers clustered so closely together it is more probable than not that the call hadn’t come from the Millers Tower and further away towards Norton Street, Leichhardt, where I in fact was.   

Mr Austin allowed the cell location to go unchallenged. This, obviously, suited the prosecution case being as close as they could physically get to the crime scene. This crucial point is equivalent to an independent alibi defence and conclusive evidence for it was established at my trial by phone records and Mr Whitehouse that it was in fact me on the phone at 9.08 pm on the 6th April, 2004. That has not been in dispute.

You can now understand if Mr Austin, on this point standing alone, was diligent and handled my defence with care he would have summoned our own expert to establish those aspects I have discovered after my conviction.

Irrespective of the Millers Tower location, according to the untested version of the prosecution’s witness, how can I be shooting Mr Williams at the same time I am speaking to David Whitehouse on the phone?

If Mr  Austin would have done his job and defended with my best interests at heart by calling our own telecommunication expert and it was, as I expect, the cell location was nearer the vicinity of Norton Street, Leichhardt, on this evidence alone would make it ‘impossible’ for me to have shot Mr Thomas Williams. Reasonable doubt wouldn’t enter the equation. His Honour, therefore, would have had no other alternative than to ‘direct a verdict’” [emphasis in original].

168. This is, with respect to Mr Olivieri, completely wrong. Mr Olivieri acknowledged in this submission, as he did in his evidence at trial, that it was he who was speaking into his handset at 9:08pm on 6 April 2004. The telecommunications records established beyond all doubt that that call was transmitted by the Petersham Millers base station. The records do not establish where the handset was when Mr Whitehouse’s call was transmitted to it, but they suggest it was in the vicinity of Petersham. Nothing turns on that, because the competing cases were either that Mr Olivieri was approaching the deceased’s house to kill him, or else he was in Leichhardt in the course of a drug transaction. Either way, nothing arises that could have been affected by cross-examination.

169. Secondly, I believe that Mr Olivieri misunderstands the expert evidence, and the references to “cells”. The references to “cells” in the expert evidence are references not to the location of the handset but to the base station sector transmitting the signal to the handset at that time. For example, part of the report from Optus stated:

“During the course of the call, it is possible for the call to move between different cells. An example is when a customer is travelling or driving then the call will also travel. The call may start at a particular base station and switch through several base stations during the course of the call. The Optus call records will only show the details of the cell that the call was setup on.

...

The ‘Dominant Cell Coverage’ plot indicates the predicted areas in which each base station sector (cell) is most likely to serve. Since mobile networks are designed to provide overlapping coverage, this area is slightly smaller than the total coverage. In instances of congestion, the ‘Directed Retry’ feature could result in a cell serving further away.”

170. Thirdly, Mr Olivieri submitted that the call exonerates him, because it coincided with the shooting of the deceased. That is not so. The call is some 6 minutes before the triple 0 call to the ambulance. It only lasted 30 seconds. There was ample time for Mr Olivieri to take the call, terminate it swiftly, and proceed to murder the deceased. Once again, this could not be affected by cross-examination.

171. There is nothing in this submission to establish any deficiency in the cross-examination or conduct of the defence, let alone something amounting to gross incompetence.

172. Unlike every other aspect of Mr Olivieri’s appeal, I do not propose to address each complaint made against his former lawyers. To do so would only increase the length of these reasons, and to no useful end. What has been reproduced and addressed above is representative, and well indicates that this ground is meritless.

Ground 6 – the verdict was unsafe and unsatisfactory

173. Mr Olivieri’s sixth and final ground of appeal invokes an “unsafe and unsatisfactory verdict”. As formulated in Mr Olivieri’s grounds of appeal, and on pp 48 and 49 of his submissions filed on 30 September 2014, the ground is principally based upon his conviction being unsafe and unsatisfactory in light of the material which was not before the jury. Mr Olivieri repeated the absence of DNA evidence linking him to the crime scene, the error in Ms Kirkpatrick stating that Mr Olivieri nominated Grant Norman as next of kin, the motive of Mr Miller, the fact that Mr Johnson was a police informer, the testimony that the deceased returned early from the Gold Coast, the evidence of Mr Sharp, the photographs said to be of him on Roma Street Railway Station, and the third call between him and Mr Johnson. All these matters have been addressed above.

174. I think it is possible that Mr Olivieri also intended by this ground to suggest that the verdict is unreasonable or cannot be supported having regard to the evidence, in accordance with what was said in MFA v The Queen [2002] HCA 53; 213 CLR 606 at [58] (which Mr Olivieri cites). If so, I nevertheless would reject the submission. In doing so, I have undertaken an independent assessment of the whole of the evidence, in accordance with what was said in M v The Queen (1994) 181 CLR 487 at 493 and SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11], whilst having regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and which has had the benefit of having seen and heard the witnesses: M v The Queen at 493; SKA v The Queen at [13]. I return to this below.

175. Mr Olivieri made one new submission, which was that manslaughter should have been put to the jury. He said:

“From the defensive wounds another scenario should be considered, that there was a scuffle, maybe from an argument, for whatever reason, and during the scuffle a gun was produced that led to Mr Williams being shot. It may be that there was no intention to murder Mr Williams, and only because of the fight that Williams was shot.”

176. This is fanciful. Four shots were fired hitting the deceased, who was unarmed. One was fired into the back of his head, at close range.

177. Mr Olivieri’s principal written submissions concluded (at pp 50-51) as follows:

“I am very disappointed that as an innocent person has been wrongly convicted and a miscarriage of justice has in fact occurred in this instance. The reason for this is quite apparent and I will go to great extremes to achieve the appropriate decision through the due process.

You will see that the Crown case leveled against the appellant is not as strong as the prosecution would have a Court believe. In fact, the Crown case exonerates, it does not convict appellant.

Note following:

1. There is no DNA evidence linking me to the crime. (Prof. Boettcher’s report)

2. There is no fingerprint evidence linking me to the crime.

3. There is no description by any witness as to me being the perpetrator of the crime. In fact, in truth the descriptions further exonerate me (eg the height, and description).

4. The shoe impressions at the crime scene are no match to me.

5. There is available clear evidence that the investigating police and others have committed perjury i.e. allegedly observing me at Roma Street Railway Station on 10/6/04 which the CCTV photos clearly show was false.

6. There is further clear evidence that the investigating police and others have committed a perversion of the course of justice.

7. There is available an abundant amount of evidence and other material to establish that defence counsel’s handling of my trial was both grossly incompetent and unprofessional.

8. That the Law Enforcement (Controlled Operations) Act 1997 (NSW) (and the authority of this Act), was used to falsify evidence, put forward misrepresentations, break the laws under the Crimes Act, Justices Act and contrary to what the Legislature intended, also blatantly abuse of Police Regulations. Johnson’s pretext phone calls, being a police informer, and as unnamed participant of controlled operation shows the great lengths the police went to have me convicted.

9. The prosecution’s departure from both her presented Indictment and her opening address to the jury is a clear breach of well established legal principles in law, and in itself, is a very strong appeal point (refer to R -v- HENRY & Others [2007] (unreported) CCA. NSW).

10. A good point in the trial proceeding is the phone call I received from David Whitehouse on 6th April 2004 at 9.08pm. This point by itself does not only exonerate me, but makes it IMPOSSIBLE for me to have committed the crime.

11. The parole officer Heather Kirkpatrick’s inaccurate and misleading evidence of me nominating Grant Norman as being my next of kin. This led the prosecution to say that the motive for me committing the murder was for loyalty to Mark Norman.

What I have stated above must show that the prosecution’s evidence against me was very weak at best, a complete case was not presented, and that the prosecution would clutch at anything to get a conviction” [emphasis in original, minor typographical corrections made].

178. Having considered the entirety of the evidence, I cannot agree. The first, second, third and fourth points are correct, but do not establish any reasonable doubt about Mr Olivieri’s guilt. The remaining points are incorrect. It has not been shown that there was any perjury, or perversion of the course of justice, or indeed any deliberate misconduct in relation to the photographs at Roma St Railway Station, which in any event were not tendered and played no part in the jury’s deliberations. There is nothing to suggest that there was any gross incompetence on the part of counsel who appeared for Mr Olivieri, or any breach by the prosecutor. It has not been shown that the Law Enforcement (Controlled Operations) Act was contravened, and it has not been shown that Mr Johnson was a police informer; the unchallenged evidence is that he was not known by police to be associated with Mr Olivieri at the time that he called him. Ms Kirkpatrick’s evidence was not inaccurate or misleading. The 30 second telephone call Mr Olivieri received some minutes before the murder does not make it impossible for him to have killed the deceased, and therefore does not exonerate him.

179. I regard the Crown case as overwhelming. Mr Olivieri came to Sydney from Queensland under a false name provided by Mr Norman. He left under a false name provided by Mr Norman. Mr Olivieri undoubtedly spoke numerous times to Mr Norman in the 24 hours before the victim was killed. Mr Olivieri was in the vicinity of the deceased’s home on the evening of 5 April 2004, when the latter had arranged a meeting with Mr Norman. While close by, Mr Olivieri spoke with Mr Norman four times, immediately following which Mr Norman cancelled the meeting. Mr Olivieri’s account that he was calling Mr Norman to talk about work related matters, four times that evening, while Mr Norman was attending a course at Richmond, immediately following which the scheduled appointment he had made to see the deceased was cancelled, is implausible in the extreme.

180. Mr Olivieri was undoubtedly in the vicinity of the victim’s home minutes before he was killed. Mr Olivieri’s conversations after the publication of his picture on 10 June 2004 confirm his concern that, despite the false name he had used and the witnesses he said could vouch for his being in Queensland, he could be identified in Sydney at the time of the murder. The three conversations on 10 June 2004, the day of the Daily Telegraph publication, in particular the opening words of the conversation between Mr Olivieri and Mr Norman, show both men to be aware of the story, and are inconsistent with Mr Olivieri’s account that he was buying drugs in Leichhardt that evening.

181. The subsequent conversations between Mr Olivieri and Mr Norman, the transfer of money, and Mr Olivieri’s subsequent departure for remote Queensland and then remote Western Australia have been outlined above.

182. After reviewing the evidence as a whole, I am satisfied that this is a case where the jury was, in my view, amply entitled to be satisfied beyond reasonable doubt that Mr Olivieri had killed the deceased. The appeal should be dismissed.

183. I propose the following formal orders:

1. Extend the time within which to commence this appeal to 30 September 2014.

2. To the extent necessary, grant leave to appeal.

3. Appeal dismissed.

184. JOHNSON J: I have had the advantage of reading the judgment of Leeming JA. I agree with the reasons and orders proposed by his Honour. Upon the unreasonable verdict ground, I record my own satisfaction that the jury was well entitled to convict the Appellant of the murder of Mr Williams.

185. HARRISON J: I have had the benefit of reading the draft reasons of Leeming JA. I have reviewed the whole of the evidence. I agree for the reasons given by his Honour that it was open on the whole of that evidence for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder.

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Amendments

22 August 2016 - [77] - "altered" replaced by "alerted"

[174] - "unreasonable of cannot" replaced by "unreasonable or cannot"

Decision last updated: 22 August 2016