R v Brittain

[1999] NSWSC 559

CITATION:	R v Brittain [1999] NSWSC 559
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70006/99
HEARING DATE(S):	21 January 1999, 1 June 1999
JUDGMENT DATE:	10 June 1999
PARTIES :	Regina Denis Allen Brittain
JUDGMENT OF:	Kirby J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	31/0749/90
LOWER COURT JUDICIAL OFFICER:	Hosking DCJ

COUNSEL :	P Sadie (Crown) T Game SC (Appl)
SOLICITORS:	W Abadee (Crown) D Barrow - LAC (Appl)
CATCHWORDS:	CRIMINAL LAW; Practice & Procedure; Application pursuant to s474 of the Crimes Act 1900; Review of Conviction
ACTS CITED:	Crimes Act 1900, s 474D, s474E(1)(b) Court of Criminal Appeal Act 1912 Drug Misuse & Trafficking Act 1985, s23(2)
CASES CITED:	R v Brittain (CCA, unreported, 15 August 1994)
DECISION:	See para 16

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

KIRBY J

Thursday 10 June 1999

70006/99 - REGINA v Denis Allen BRITTAIN

JUDGMENT

1 HIS HONOUR: On 21 January 1999, an application was made by Denis Allen Brittain under s 474D of the Crimes Act 1900. The application sought an order under s 474E(1)(b), that the whole of Mr Brittain’s case be dealt with as an appeal, pursuant to the Court of Criminal Appeal Act 1912.

Mr Brittain’s Conviction

2 On 4 May 1990, Mr Brittain was charged with the following offence under s 23(2) of the Drug Misuse and Trafficking Act 1985:

“For that he between 1 July 1989 and 5 February 1990 at Pilliga State Forest in the State of New South Wales did knowingly take part in the cultivation of a number of prohibited plants, namely cannabis plants, which number was more than the commercial quantity applicable to the prohibited plant”

3   Mr Brittain stood trial with a co-accused, Mr Christopher Hasenkamp, before his Honour Judge Hosking and a jury in the District Court at Narrabari. The trial began on 10 May 1993. Mr Brittain was found guilty (as was Mr Hasenkamp). On 2 June 1993, Hosking DCJ sentenced Mr Brittain to a minimum term of four years and eight months (expiring on 25 June 1998), and an additional term of one year and nine months (expiring on 25 October 1999).

4   An appeal was lodged against conviction. It was heard by the Court of Criminal Appeal on 15 August 1994 (Meagher JA, Studdert, Blanch JJ), and was dismissed.

The Basis of the Application

5   On 5 February 1990 the police discovered three plantations, containing cannabis, in the Pilliga State Forest. There were some five thousand plants. The only issue at the trial was whether Mr Brittain, and his co-accused, were involved in their cultivation.

6   There was no direct evidence implicating Mr Brittain. The case against him depended upon circumstantial evidence, and lies said to have been told by him to two detectives, Cohen and Clout.

7   I need not repeat the detail of the circumstantial case relied upon by the Crown. It is set out in the judgment of Studdert J in the Court of Criminal Appeal (R v Brittain (CCA, unreported, 15 August 1994)). It is enough to say that the circumstances included the recovery of certain property at Mr Brittain’s home in Victoria, upon the execution of a search warrant. The items found included documents which unmistakably connected Mr Brittain with the Coonabarabran area. The documents included the following:

(i) A driver’s licence in his name with the address “12 Hilton Estate, PO Box 114, Coonabarabran”.
(ii) An empty envelope, being date 28 July 1989, addressed to “Mr D Brittain” at the same address.
(iii) A Telecom account addressed to Mr D A Brittain at the same post office box number at Coonabarabran bearing date 20 November 1989.
(iv) A Commonwealth Bankcard statement addressed to Mr Denis Brittain identifying a transaction at Coonabarabran bearing date 14 May 1989.

8   The warrant was executed by, amongst others, Detectives Cohen and Clout. It is not immediately clear whether any complaint is made in respect of the property seized. That property included certain photographs. The photographs depicted Mr Brittain at a campsite. The campsite included a tent. The tent was distinctive, and said to resemble a tent which was found at the plantation in the Pilliga State Forest. Elaborate evidence was given by a police officer comparing the campsite depicted in the photographs with the campsite adjacent to the plantation.

9 The application by Mr Brittain under s 474D records the following matters, in the context of these photographs:

“Both Detectives gave evidence that when asked about the photographs and told of the plantation, Mr Brittain said ‘I went camping near Mudgee. I have never been to Coonabarabran.’”

10   The application also includes the following summary of evidence given by the detectives at the trial:

“Detectives Cohen and Arahill gave evidence that later on 4 May 1990 Mr Brittain had participated in an unsigned typed record of interview. They both maintained that Mr Brittain had said the photographs had been taken on a Victorian camping trip.”

11   Mr Brittain did not give evidence at the trial. He did make an unsworn statement. He denied having told police that he had never been to Coonabarabran. He stated that the photograph had been taken on a pig hunting expedition in the Pilliga State Forest. Mr Brittain denied having participated in a record of interview with Detectives Cohen and Arahill. He denied any involvement in the cannabis plantation.

The Police Royal Commission

12 Both Detectives Clout and Cohen came under adverse notice during the Royal Commission into the New South Wales Police Service. The application under s 474D identifies fifteen matters involving one or other, or both, detectives, in which it is said that they acted corruptly. Such matters do not include the investigation involving Mr Brittain. However, they do include the following:

(a) The confiscation of monies by Det Clout and others which were then not recorded as having been found (on 28.11.89).
(b) The receipt of monies by Det Clout and others in order to support an application for bail.
(c) The payment of money to Det Cohen and others in order to avoid being charged.
(d) The confiscation of money found at premises, and then not recorded, shared between Dets Cohen, Clout and others (19.02.90).
(e) The confiscation of money and drugs in the course of a search, which were then shared between Dets Cohen, Clout and others.
(f) On 13.07.91, a person was arrested at premises where several thousand dollars were found and some heroin. The detectives, including Det Clout, confiscated and shared the money. They recorded the seizure of only part of the heroin. The balance was “put back to work”.
(g) Det Clout and another police officer accepted a substantial sum for not verballing someone, and “going easy” in the record of interview (30.05.92).
(h) Det Clout prepared a “letter of comfort” for a prisoner about to be sentenced before Viney DCJ in return for money.
(i) Det Clout was said to have planted heroin in the overalls of a suspect in the course of a search (21.09.92).
(j) Dets Cohen and Clout on 20.02.92 searched premises at South Penrith, discovering five cannabis plants, $10,000 cash, and two pounds of cannabis. The person was charged simply with the five cannabis plants. The cash and cannabis were shared between those involved in the search, including Dets Clout and Cohen.

13   There are a number of other matters besides.

Attitude of the Crown

14   The matter was referred to the Crown Solicitor’s Office, in accordance with the usual procedure, to prepare submissions on the application. There was some delay in the preparation of those submissions. On 1 June 1999, a letter was received from the Crown Solicitor in these terms:

“ Denis Allen Brittain: Applicaton for Review of Conviction pursuant to s 474 of the Crimes Act 1900.
My officer has considered the application lodged on behalf of the abovenamed dated 21 January 1999 and the material referred to therein. Having received the advice of junior counsel and the Crown Advocate, the Crown does not wish to file written submissions in opposition to the course suggested by the applicant (that is, to refer the matter to the Court of Criminal Appeal).
It is accepted that the fresh material sought to be relied upon by the applicant is of a character that could satisfy the relevant test propounded by s 474E(2), particularly insofar as it relates to the words ‘a doubt or question as to … any part of the evidence in the case’.”

Determination and Order

15   Having considered the application, it appears to me that there is a doubt or question as to part of the evidence in the case against Mr Brittain, namely the evidence given by Dets Clout and Cohan.

16 In accordance with s 474E(1)(b), I therefore refer the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal under the Court of Criminal Appeal Act 1912.

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Last Modified: 06/10/1999