Patsalis - Application for Inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001
[2012] NSWSC 1597
•20 November 2012
Supreme Court
New South Wales
Medium Neutral Citation: Patsalis - Application for Inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2012] NSWSC 1597 Hearing dates: On the papers Decision date: 20 November 2012 Before: R A Hulme J Decision: Application refused
Catchwords: CRIMINAL LAW - application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - applicant convicted in 1999 for murder - prior petition to Governor rejected - asserted fresh and new evidence - re-agitation of matters raised at trial - no doubt or question as to guilt Legislation Cited: Crimes (Appeal and Review) Act 2001
Criminal Appeal Act 1912
Evidence Act 1995Cases Cited: Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
New South Wales Bar Association v Amor-Smith [2003] NSWADT 239
Patsalis v The Queen [2007] HCATrans 651
R v Spathis; R v Patsalis [2001] NSWCCA 476
R v Patsalis & Spathis (No 3) [1999] NSWSC 718
R v Patsalis & Spathis (No 22) [1999] NSWSC 1320Category: Principal judgment Parties: Michael Patsalis (Applicant)
Regina (Respondent)Representation: Solicitors:
Nyman Gibson Stewart
Crown Solicitor's Office
File Number(s): 2012/84208
Judgment
HIS HONOUR: Michael Patsalis has applied pursuant to Part 7 (specifically s 78) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Act") for an inquiry into his conviction on 24 September 1999 for murder. He seeks a referral of his conviction to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): s 79(1)(b) of the Act.
The Crown alleged that Mr Patsalis and a co-accused Alexios Spathis were jointly responsible for the murder of Mr Klaus Ludwig on 11 April 1996. The applicant was arrested on the evening of 12 April 1996. He and Spathis were jointly tried before Kirby J and a jury in 1999. The trial was relatively lengthy. They were both found guilty. On 23 February 2000 the applicant was sentenced to imprisonment for 21 years 6 months with a minimum term of 16 years. The minimum term is due to expire on 22 May 2015: R v Patsalis & Spathis (No 22) [1999] NSWSC 1320.
Appeals by both Mr Patsalis and Mr Spathis against conviction and sentence were dismissed: R v Spathis; R v Patsalis [2001] NSWCCA 476. An application by Mr Patsalis for special leave to appeal to the High Court of Australia was also dismissed: Patsalis v The Queen [2007] HCATrans 651.
The terms of s 79 of the Act insofar as they are presently relevant are:
79 Consideration of applications
(1) After considering an application under section 78 or on its own motion:
(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:
(a) it appears that the matter:
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the previous review provisions, or
(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
(3A) ...
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.
(5) ...
A summary of principles that apply to the consideration of applications of this nature was usefully set out in detail in the judgment of Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [4]-[19]. I have had regard to those principles.
The applicant previously petitioned the Governor pursuant to s 76 of the Act. It was whilst consideration of that petition was pending that the present application was forwarded to this Court. It would seem from the applicant's correspondence that he decided to make the present application when he became dissatisfied with the time it was taking to receive a response to his petition. The material provided in support of the present application is largely the same as, although not identical to, the material the subject of the petition.
On 16 April 2012 the Governor wrote to the applicant informing him that upon the recommendation of the Attorney General, through the Executive Council, his petition had been declined.
Submissions were made on behalf of the Attorney General in relation to the application. The first submission is that the Court should refuse to deal with the application because there has been a previous application under Part 7 of the Act (the petition) and that there are no "special facts or special circumstances" that justify the taking of further action: s 79(3)(a)(ii) and s 79(3)(b).
An alternative submission on behalf of the Attorney General was that for the most part the matters raised in the application were fully dealt with at trial and on appeal, and that this was another basis upon which the Court could refused to deal with the application: s 79(3)(a)(i).
A useful summary of the trial and appeal proceedings and the nature of the Crown case, largely drawn from the judgment of the Court of Criminal Appeal, was set out in the written submissions for the Attorney General as follows:
On 6 July 1999 Mr Patsalis and his co-offender Alexios Spathis were indicted before Kirby J and a jury in the Supreme Court on a charge that they on 11 April 1996 at Sydney in the State of New South Wales did murder Klaus Peter Ludwig. Dr Patrick Power appeared on behalf of the Crown. Mr Patsalis was represented initially by Mr M MacGregor QC and, upon the withdrawal of those instructions, by Mr J Amor-Smith. Towards the end of the trial, Mr Patsalis also dismissed Mr Amor-Smith and represented himself. On 24 September 1999, after a trial lasting 55 days, a jury of ten returned a verdict of guilty in relation to both accused.
...
The Crown case was that Mr Patsalis met Mr Ludwig (the deceased) and made an arrangement to supply him a large quantity of cheap cigarettes in exchange for $58,500 cash. Mr Patsalis' purpose, however, included robbing Mr Ludwig of the cash, in order to satisfy a debt owed to his friend, Mr Spathis, incurred by Mr Patsalis in the context of a gambling addiction.
Before meeting with Mr Ludwig, Mr Patsalis and Mr Spathis purchased two pairs of gloves, two knives, a tarpaulin and a tin of petrol. Arrangements were thereafter made to meet Mr Ludwig at Bankstown. Two vehicles were driven from Bankstown to the Marrickville RSL. Mr Spathis drove his car [POZ-344]. Mr Patsalis was a passenger in the truck driven by Mr Ludwig. Once at Marrickville, Mr Spathis parked his car. He then entered the truck, sitting alongside Mr Ludwig, with Mr Patsalis on the other side, nearest the door. Mr Spathis then drove to Botany.
At some point the vehicle parked by the side of the road at Botany. Whilst parked, Mr Ludwig was stabbed. Mr Patsalis and Mr Spathis each blamed the other for the stabbing. Each asserted ignorance of each other's purpose. Both acknowledged that money was removed from Mr Ludwig's jacket after the stabbing by Mr Spathis. Mr Spathis asserted (and Mr Patsalis denied) that he did so at the direction of Mr Patsalis.
Mr Spathis drove the truck back to Marrickville with Mr Patsalis as a passenger. Mr Ludwig's body remained in the cabin. Mr Patsalis then alighted. He thereafter drove Mr Spathis' vehicle. Mr Patsalis was covered with blood. The car seat was protected by the plastic tarpaulin purchased earlier in the day.
The two vehicles were driven to Terrey Hills by a circuitous route. Each asserted the other led the way. At Terrey Hills the body was removed from the cabin by Mr Spathis, and left by the side of the road. It was doused in petrol. Further money was removed from the jacket of the deceased. The body was then set alight. There were differences as to who removed the money, and who set fire to the body. The vehicles then left the scene in a somewhat chaotic manner. The burning of the body, and the rapid exit from the area, were witnessed by the occupants of a number of vehicles that were in the area. Mr and Mrs Jeffries were in a vehicle behind them and noted their erratic behaviour. They took down the number plate and provided it to police after learning that a body had been found.
The vehicles proceeded to Mr Patsalis' flat at Homebush. Mr Spathis drove the truck, whilst Mr Patsalis remained in Mr Spathis' car. Having met at Homebush, the two vehicles were then driven to Chester Hill, where the truck was set alight. Mr Patsalis placed his bloodstained clothes inside the truck, so that they were also destroyed.
As to what happened next, the trial judge described as follows ...:
"There is no question in my mind that Mr Patsalis recognised that the crime, in its execution, had gone badly wrong. It appears that Mr Spathis may have panicked when at Terry Hills, so that Mr Ludwig's body was left by the side of a suburban road, where it was then set alight. However it came about, Mr Patsalis appreciated that they had been seen. I accept that account of Mr Spathis, given to the police the day following the murder, where he attributed to Mr Patsalis these words, spoken as they were about to part company: 'He said, 'Don't say anything ever, you know even if, even if, you know, you get caught, you know, if, if your name, 'cause they seen your car.'
Either shortly before, or shortly after, saying these words, Mr Patsalis determined that he would go to the police. He went to the Hilton Hotel at 4.00am the morning following the murder. He began to write out his story. He presented himself at the Bankstown Police Station shortly after 6.00pm. His motive was entirely self interest. It had nothing to do with assisting the authorities to solve the crime. It was a pre-emptive strike against Mr Spathis. Nonetheless, Mr Patsalis provided the police with important information concerning Mr Spathis, and the crime. Because it served his purpose (in that he was less likely to slip up), he substantially related events as they occurred. However, he omitted entirely his role in these events. The information provided by Mr Patsalis could hardly be described as full and frank. It did, however, contribute to the success of the prosecution against Mr Spathis, and also, ironically, against Mr Patsalis himself. In blaming Mr Spathis, Mr Patsalis unwittingly incriminated himself."
The Crown case was put in three ways: a joint attack by both accused, a joint criminal enterprise to either rob and/or murder Mr Ludwig or felony murder. Both Mr Patsalis and Mr Spathis relied on a "cut-throat" defence; that is, they each pleaded innocence and blamed the other. Both were convicted.
An appeal by My Patsalis and Mr Spathis against their respective convictions for murder was dismissed unanimously by the CCA. Similarly, applications for leave to appeal against the sentences imposed by Kirby J were dismissed. In dismissing the appeal against conviction by Mr Patsalis, Heydon JA (as his Honour then was) remarked that it was a "very strong Crown case" and that:
"the factual issues to which Patsalis' complaints go, however they were to be decided, would not affect the Crown case as proved before the jury and as set out in the trial judge's remarks on sentence" (at [3]).
The applicant has filed voluminous documentary material in support of his application. The submissions for the Attorney General have sought to distill the great many submissions and various proposed "grounds" into logical categories. They also provided a description of the nature of the application; it is one with which I respectfully agree:
[Mr Patsalis] contends that by reason of the above three matters the investigative and prosecuting processes were "corrupted" and the trial was "unfair" and therefore miscarried. He argues that the Crown case rested almost entirely on "corrupt evidence and inadmissible evidence". A large number of people involved in both the investigation and trial committed criminal offences, in his view, including the Crown Prosecutor and police officers. His main complaint is that this resulted in evidence of admissions being wrongly admitted.
Further, he states that his counsel were flagrantly incompetent and that errors made by the trial judge on an interlocutory ruling and in summing up carried over to his appeals in the CCA and the High Court and infected the judgments of those courts. (page references omitted)
Evidence of admissions wrongly admitted
A significant part of the Crown case against the applicant at trial concerned his attendance at the Bankstown Police Station at about 6.30pm on the day after the murder, when he purported to be a witness to the murder. He answered certain questions and later signed a detective's handwritten record of the conversation and confirmed in a recorded interview that his earlier answers had been correctly recorded.
The applicant also handed over to the detective some notes that he had written. It was common ground that at the time of the initial conversation with police and the handing over of the notes he had not been cautioned (s 139 of the Evidence Act 1995). There was a voir dire examination of the circumstances in which the police received the evidence and ultimately the trial judge concluded that there was no impropriety and no occasion had arisen for the applicant to have been cautioned: Regina v Patsalis & Spathis (No 3) [1999] NSWSC 718. The notes were admitted and became Exhibit G at trial.
On appeal the applicant sought to pursue the issue to establish that he should have been cautioned before he handed over the notes to police, that there had been an impropriety, and that as a result the evidence should have been excluded pursuant to s 138 of the Evidence Act. He sought an indulgence of the Court in order to permit him to take steps to obtain further evidence to show that the evidence of various police officers and of two civilian witnesses was untrue. This was declined. Heydon JA (with whom Carruthers and Smart AJJ agreed) said in R v Spathis; R v Patsalis:
[123] Further, even if further police records would reveal that Exhibit G was handed in by Patsalis at a time when one of the circumstances described in s 139(1)(a) or (5)(a), (b) or (c) of the Evidence Act 1995 existed, it is inconceivable that the trial judge would have exercised his discretion under s 138 against reception of the evidence. All the material factors bearing on the problem pointed towards admission.
I can well understand how his Honour could have formed that view.
Section 138 provides (in part):
"(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."
In s 138(3) there is a non-exhaustive list of matters a court is required to consider in determining whether evidence which falls within s 138(1) is to be admitted.
Section 139, briefly, provides that a statement made or an act done by a person during questioning is taken to have been obtained improperly if the person was under arrest and had not been informed of their right to silence. The concept of a person being under arrest is extended by s 139(5) which provides that it includes a reference to a person who an investigating official believes is the subject of evidence establishing that they have committed an offence; a person who the official would not allow to leave if the person wished to; or a person who the official has given to believe that they would not be allowed to leave if they wished to.
In this case, the applicant had voluntarily attended the police station, after having consulted with his solicitor. He brought the notes with him, undoubtedly for the purpose of either providing them to police or relaying to the police their contents. He went there for the purpose of giving the police his version of the events that occurred the previous day. Even if the police believed that he had committed an offence, or that one of the other matters in s 139 applied, it is inconceivable that a failure to caution would result in this evidence being held to be inadmissible.
A considerable amount of the purported "fresh" or "new" evidence, and the submissions made in support of the application, concern this issue. I have considered all the material that has been put forward and do not have the slightest doubt as to the correctness of the trial judge admitting into evidence the notes and admissions made by the applicant.
Fresh evidence concerning the conduct and character of the Crown Prosecutor, defence counsel and certain prosecution witnesses
The applicant provided a body of additional material which he described as "fresh evidence" relating to police officers, his own counsel and the Crown Prosecutor. All of the material relates to matters unconnected with the trial. It is unnecessary to refer to all of it; it will suffice to refer to two examples.
One example is evidence of the conviction of the Crown Prosecutor many years after the trial for his possession of child pornographic material. His misconduct in relation to that has no bearing whatsoever upon his conduct at the applicant's trial.
Another example relates to a claim made on appeal, unsuccessfully, that counsel who appeared for the applicant at trial were flagrantly incompetent. For part of the trial the applicant was represented by Mr Amor-Smith of counsel. He was subsequently found guilty of professional misconduct and removed from the roll of legal practitioners: New South Wales Bar Association v Amor-Smith [2003] NSWADT 239. There were two informations laid by the Council of the Bar Association against the barrister. They related to cost disclosures, overservicing and overcharging.
None of that material provides any support whatsoever for the claim that Mr Amor-Smith's representation of the applicant was anything other than competent. Indeed, with all of the record of the trial before him, Heydon JA was moved to observe that there was no doubt that Mr Amor-Smith provided nothing less than professional and capable service to the applicant. He added that there were grounds for thinking that he did more than that: R v Spathis; R v Patsalis at [192]. (These comments applied equally to the applicant's previous counsel, Mr MacGregor QC).
Those are but two examples of the "fresh evidence" upon which the applicant relies. Other examples concern various police officers. I have considered the evidence he has provided in relation to all of the issues raised and the personalities involved. Nothing in any of that material causes me to think that there is any basis to consider that the prosecutor, police officers, or counsel misconducted themselves in the various ways alleged by the applicant.
Revisiting issues determined adversely to the applicant at trial
Another broad category of material and submissions put forward by the applicant involves re-agitation of matters that either were, or could have been, raised at trial. One notable example is what the applicant describes as the "mainstay" of his case.
This "mainstay" is to the following effect. The deceased left behind a letter to be opened only in the event that he did not return from his meeting with the applicant and Spathis. The applicant was aware that the deceased had done this. In short the argument is that, being aware that the deceased had left behind this letter in which he had identified the applicant as a suspect (at least) if anything untoward occurred, it was inconceivable that the applicant would involve himself in a robbery, let alone a murder. There is nothing new in this argument. It is precisely the argument put before the jury by Mr Patsalis at trial. In his evidence before the jury, which was obviously rejected, he said things such as:
"I knew that I could not in any way, shape or form hurt him or do anything to him because he, if I can use the term, had something on me. And if anything was to happen to him it was all going to come back into my direction" (T1487.29).
An application under Part 7 of the Act is not an occasion to reconsider matters already heard and determined. But a considerable proportion of the material in support of the application is devoted to such issues.
Forensic pathology evidence
Another point sought to be advanced by the applicant, more so in his submissions in reply to those on behalf of the Attorney General and in subsequent correspondence to the Registrar, is the possibility that it could be established by expert evidence that the stab wounds inflicted upon the deceased were all inflicted by Mr Spathis and could not have been inflicted by the applicant. The forensic pathologist's evidence at the trial was, broadly speaking, to the effect that the directional force with which the stabbing occurred could not be definitively stated in respect of each and every wound.
Assuming that this could be established, it would not deny the force of the other bases upon which the Crown put the case of murder (ie joint criminal enterprise murder and felony murder). For this reason there is no purpose to be served by exploring this issue further.
Conclusion
The relative brevity of these reasons belies the time that has been required to read and consider the volume of material put forward in support of the application. The applicant has continually filed additional material and submissions, even as recently as that received by the Registrar under cover of a letter dated 13 November 2012. But as it is so lacking in merit, and has in large part been considered previously in the context of his petition to the Governor, and the original trial and appeal, I do not believe that it is appropriate to address each and every point sought to be raised. I have briefly addressed above what appear to be the broader issues upon which most reliance was placed.
I do not have the slightest sense of unease or disquiet about the applicant's guilt. In the terms of s 79(2), I am not persuaded that there is any doubt or question as to his guilt, or as to any mitigating circumstances in the case, or as to any part of the evidence in the case.
The application is refused.
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Decision last updated: 20 December 2012
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