R v Giovannone

[2002] NSWCCA 323

Reported Decision: 140 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v GIOVANNONE [2002] NSWCCA 323
FILE NUMBER(S):	CCA 60644/01
HEARING DATE(S):	30 May 2002
JUDGMENT DATE:	14 August 2002
PARTIES :	REGINA v Philip GIOVANNONE
JUDGMENT OF:	Mason P at 1; Hidden J at 128; Carruthers AJ at 129

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0863
LOWER COURT JUDICIAL OFFICER :	Flannery ADCJ

COUNSEL :	Appellant: R A Bonnici Crown: D Woodburne
SOLICITORS:	Appellant: S Moran & Co Crown: Director of Pulbic Prosecutions
CATCHWORDS:	CRIMINAL LAW - appeal against conviction and sentence - perverting the course of justice - corruption - whether indictment bad in law - conduct which forms part of the course of justice - whether duplicity between the charges - whether the requisite mens rea and actus reus were open to the jury - summing up - EVIDENCE - admissibility - poor quality listening device recording - enhanced version of recording - whether enhanced copy is a 'copy' of a 'document' for the purposes of the Evidence Act 1995 - purported transcript of recording admitted on the basis of being an aide-memoire - whether admissible to prove the contents of the conversation - relationship evidence - tendency and propensity evidence - suitable directions to be given to jury - SENTENCING - subjective factors - whether full-time incarceration was appropriate - cumulative sentences - objective seriousness.
LEGISLATION CITED:	Confiscation of Proceeds of Crime Act 1989 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
CASES CITED:	BRS v The Queen (1997) 191 CLR 275 Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Eastman v The Queen (1997) 76 FCR 9 M v The Queen (1994) 181 CLR 487 R v Birks (1990) 19 NSWLR 677 R v BWT [2002] NSWCCA 60 R v Chan [2002] NSWCCA 217 R v Cassar; R v Sleiman [1999] NSWSC 436 R v Dellapatrona (1993) 31 NSWLR 123 R v Dillon and Riach [1982] VR 434 R v Duong (1999) 109 A Crim R 60 R v Karageorge (1998) 103 A Crim R 157 R v Travers (1957) 58 SR(NSW) 85 R v Webster and Jones, NSWCCA, unreported, 3 August 1992 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Rogerson (1992) 174 CLR 268
DECISION:	See par 127.

CCA 60644/01

MASON P
HIDDEN J
CARRUTHERS AJ

Wednesday 14 August 2002

REGINA v Philip GIOVANNONE

Judgment

1 MASON P: The appellant appeals against conviction and seeks leave to appeal against sentence.

2 He stood trial in the District Court in May 2001 before Flannery ADCJ and a jury. There were three counts in the indictment charging that he:

(1) On 16 November 1994, at Sydney in the State of New South Wales, did an act, namely did ask Trevor Haken to speak with a person at the Australian Federal Police with a view to removing Phillip Giovanone’s name from an Australian Federal Police brief with an intent thereby to pervert the course of justice.

(2) On 16 November 1994, at Sydney in the State of New South Wales, did an act, namely did ask Trevor Haken to provide protection from arrest for a man named “Rocky” with an intent thereby to pervert the course of justice.

(3) On 16 November 1994, at Sydney in the State of New South Wales, did corruptly give Trevor Haken, an agent of the Crown, a benefit, namely $200, as an inducement on account of Trevor Haken showing favour to Phillip Giovannone in relation to the affairs of the Crown.

3 The appellant pleaded not guilty to each count. The jury found a verdict of not guilty on the first count and verdicts of guilty on the second and third counts. On 20 September 2001 the judge imposed sentences of imprisonment together with a $200 pecuniary penalty pursuant to s24(1) of the Confiscation of Proceeds of Crime Act 1989. On 8 November 2001 the sentencing proceedings were reopened pursuant to s43 of the Crimes (Sentencing Procedure) Act 1999 (apparently only as regards the sentences of imprisonment). In consequence, the appellant was sentenced to imprisonment for a fixed term of 3 months to commence on 20 September 2001 and expire on 19 December 2001 in respect of count 3. In respect of count 2, the appellant was sentenced to imprisonment for a term of 15 months to commence on 20 December 2001 and expire on 19 March 2003, with a non-parole period of 6 months to expire on 19 June 2002.

4 Following institution of proceedings in this Court the appellant was on 21 November 2001 committed to bail pending the determination of his appeal.

Broad outline of issues at trial

5 Trevor Haken was a New South Wales policeman from 1969 to 1996. Having been exposed as an officer who engaged in corrupt activities, he agreed to meet the appellant with a view to obtaining evidence of corruption for the Royal Commission into the New South Wales Police Service. He knew the appellant as the proprietor of a Kings Cross establishment known as the Penthouse Pool Room.

6 Haken gave evidence that he and the appellant had known each other for at least two years prior to November 1994. There had been numerous meetings at Kings Cross, where Haken had been stationed since 1989, which involved the appellant making corrupt payments to Haken. Haken estimated that he received an average of $100 per fortnight from the appellant from June 1992 until mid 1994. Usually the appellant would slide a cigarette packet containing cash across the table. In return, Haken and other police would arrange protection or "cover" for the appellant.

7 On 15 November 1994 Haken, who was by then assisting the Royal Commission, telephoned the appellant and arranged to meet him the following day at the Hart Hotel in the Rocks. Haken was fitted up with a listening device that had been attached by Mr Miller who was an Australian Federal Police officer on secondment to the Royal Commission. The telephone conversation was recorded, as was the meeting in the hotel the following day.

8 Before he left for the meeting Haken was searched: the items recorded as being in his possession then included a total of $24.40 in cash. Haken arranged with Miller that if he received anything in a cigarette packet he would put it in his top pocket.

9 Haken met the appellant at the hotel. Their conversation was recorded through the concealed listing device. The tape was the primary item of evidence in the prosecution. There was also corroborative evidence from Haken including evidence explaining expressions used in the conversation. The meeting was also witnessed by two Royal Commission surveillance officers who were identified as surveillance officer 4 (SO4) and surveillance officer 6 (SO6).

10 The taped conversation did not itself prove the corrupt payment of $200 which was the subject matter of the third count in the indictment, but Haken gave evidence that payment was made in the usual manner. Naturally his credibility was strongly attacked at trial. S04 saw Haken pick up the appellant's cigarette packet from the table, open the packet, then move his right hand from the packet to his shirt breast pocket where later $200 was found when the police met Haken shortly after the meeting.

11 The gravamen of the first count (on which the appellant was found not guilty) was that the appellant had asked Haken to assist him in removing his name from a Federal Police brief. The Crown case turned upon the interpretation of some fairly ambiguous language in the intercepted conversation and the jury were obviously not satisfied that the appellant had made the relevant request and/or that in doing so he had acted with intent to pervert the course of justice.

12 The gravamen of the second count was that the appellant requested Haken to provide protection for a man named Rocky who was dealing in illegal drugs in King's Cross on the appellant's behalf. Among other things, the appellant said "I've got Rocky on the street" and he asked "will you get a bit of cover for Rocky?". During the conversation he said that Rocky was in trouble with Lebanese drug gangs who contacted the police whenever they saw him dealing in their area.

13 The third count involved proof that money was paid with the requisite criminal intent. At one point during the meeting, the appellant got up and went to the toilet. When he came back he placed a cigarette packet on the table and passed it to Haken. Haken said that he could see that there was money in the packet and that he removed the money and placed it in his shirt pocket where it was later located by police.

14 The appellant did not give evidence and no witnesses were called for the defence at trial. He tendered a short Agreed Statement of Facts (Ex 4) relating to his good character (a single marijuana possession conviction in 1987) and his absence overseas for various short periods between 1990 and 1994. He sought to establish through cross-examination that Haken's extensive involvement in corrupt activities meant that he was an unreliable witness with motives to give false evidence and to maintain his indemnity from prosecution.

15 As regards the Rocky portions of the conversation, it was submitted to the jury that the appellant had done no more than seek police protection for Rocky, an employee at his restaurant, from criminals in King's Cross. The appellant denied that anything was said in the conversation to the effect that Rocky was selling drugs on his behalf.

16 As regards the third count, there was no recorded conversation relating to the cigarette packets. The appellant's fingerprints were not found on either of the two $100 notes later found on Haken. It was put to Haken that he had hidden the money on his person or in the Hart Hotel and that he falsely told the police that it came from the appellant's cigarette packet. It was also suggested that Haken had invented the story about getting money in the cigarette packet in order to show Royal Commission investigators that he could obtain valuable evidence.

Grounds of appeal

17 One must resort to three separate documents to locate a mixed jumble of grounds of appeal. Each document uses a different numbering and lettering system. They are:

(A) Notification of Grounds of Appeal containing 10 grounds numbered 1 to 10, hereinafter referred to as A:1, 2 etc;

(B) Notification of Amended Grounds of Appeal containing six grounds numbered A to F, hereinafter referred to as B: A, B etc; and

(C) Notification of Further Grounds of Appeal containing four grounds of appeal directed at the remarks on sentence and numbered (i) to (iv), hereinafter referred to as C: (i), (ii) etc.

18 The written submissions do not follow the grounds of appeal and, in some cases, merely incorporate written submissions placed before the trial judge. There has been little and in some cases no attempt to relate submissions to the grounds of appeal. Key rulings of the primary judge are not referred to. The submissions also contain in their appendices a good deal of entirely irrelevant historical material.

19 I propose to group those grounds which obviously overlap and to address them in what seems to me to be a logical manner. The challenges to the conviction can be grouped thus:

• Indictment bad in law, lacking proper particulars and duplex (A: 5)

• Wrongful admission of listening device recording, enhanced CD version thereof and "purported transcript" thereof (A: 6,7 and 8; B:A)

• Miscarriage of justice "based on the history and prosecution of the matter", verdict "unsafe and unsatisfactory", erroneous refusal to direct verdict of acquittal (A: 1,2 and 3)

• Miscellaneous misdirections and omitted directions including absence of warning about proper use of past relationship evidence (B: B to F).

20 A ground challenging the trial judge's refusal to disqualify himself (A: 4) was not pressed.

Complaints outside the grounds of appeal and/or the appeal record

21 Some of the matters raised by Mr Bonnici, counsel for the appellant in his written or oral submissions fell clearly outside the grounds of appeal and, despite objection being taken on that account by the respondent, were never made the subject of an application for leave to amend the grounds of appeal. Others involved resort to material that was not in evidence, including material adduced in a former trial and/or in voir dire hearings in the first or second trials.

22 Within these various categories I would include: complaints about the Crown’s (lack of) response to no bill applications or proposed amendments to the draft indictment; the complaint as to the circumstances in which Mr Bonnici was jammed out of the second trial before Judge Flannery; and some broad brush complaints about the manner in which the counsel for the appellant at the second trial approached a difficult defence case (it was not suggested that there was any incompetence in the sense discussed in R v Birks (1990) 19 NSWLR 677).

23 I do not propose to address these submissions beyond indicating that none appeared to carry any weight in any event.

24 I would place in the same category various factual contentions that counsel raised to impugn the verdict, which were clearly matters upon which issue had been joined at trial and which were for the jury to determine. These included suggestions that the trial and conviction were “unfair” because Haken deliberately chose a noisy venue in order to create an ambiguous tape record (a rather stupid and self defeating piece of conduct one would think); parallel suggestions that difficulties which emerged with the video surveillance due to the poor lighting in the Hart Hotel were self-induced by the surveillance officers; the suggestion that Haken’s testimony was rendered more suspect than it deserved to be because he went to the meeting at the Hart Hotel with intent to gather evidence; and criticism of Haken’s conduct in interrupting answers from the appellant or assuming something akin to the role of a cross-examiner rather than an examiner in chief. I have not overlooked these matters in considering what was presented as a “catch all” ground of an “unsafe and unsatisfactory” verdict, but all of these were matters for the jury to assess.

25 The submission that the conviction is unreasonable for want of proof independent of the tape that “Rocky” really existed or that he had or might have come to the attention of the police in circumstances requiring the appellant to arrange “cover” must also be rejected. There was plenty of evidence on these matters by way of admissions coming from the intercepted conversation.

26 I now turn to the grouped grounds of appeal.

Indictment ( “That the indictment presented for the three bribery-type charges was bad in law and for lack of essential elements and proper particulars and duplicity and his Honour erred in law by not ruling so accordingly.”) (A:5)

27 No application was made to the judge in the present trial to rule that the charges were bad on these grounds. Rather, the defence applied to sever the third count, essentially on the basis that evidence of the payment of $200 alleged in the third count was highly prejudicial and not relevant to counts 1 and 2 (Tr p4). An additional application was made to sever counts 1 and 2 from each other (Tr pp10-12). In addressing these issues defence counsel at trial raised issues of tendency and relationship (Tr p27ff) to which it will be necessary to return.

28 Judge Flannery rejected the applications for separate trials in reasons for judgment given on 22 May 2001. He observed that the events giving rise to the three charges arose on the one day, between the same people, within a period of about one hour and at the same place. The learned judge recognised the importance of distinguishing between relationship, background or context evidence on the one hand and tendency evidence on the other. He said that if the Crown introduced evidence for relationship purposes alone, then it could not be used as tendency evidence. His Honour indicated that he would endeavour to give directions designed to prevent the jury eliding relationship evidence and tendency evidence or from using any conclusion as to guilt on one count in order to establish guilt or guilty intent on another.

29 It was not always easy to understand the bases upon which the appellant’s counsel pressed this particular ground of appeal. At times he tried to point the Court to discussions and submissions he had made on the appellant’s behalf with representatives of the Crown either before or after the appellant’s first trial (before Judge Coorey and a jury), being a trial at which Mr Bonnici himself represented the appellant. Alternative counsel was briefed at the trial before Flannery ADCJ which resulted in the conviction now under appeal. The fact that Mr Bonnici might have cast the indictment in different terms is not to the point, as he frankly conceded.

30 Putting these matters aside, his continuing complaints about the indictment appeared to boil down to three namely:

• the charges were bad in law in that they did not aver facts constituting offences
• the third count was too general and also duplicitous relative to the earlier counts
• the pleading should have been confined to the exact terms of the conversation and not its effect.

31 In my view the counts were good in law, the first two averring an offence contrary to s319 of the Crimes Act and the third an offence contrary to s249B(2) of the Crimes Act.

32 The requested assistance charged in counts 1 and 2 fell clearly on the right side (for the Crown) of the distinction drawn by the High Court in The Queen v Rogerson (1992) 174 CLR 268 between interference with police investigations which are not themselves part of the course of justice and conduct which had a tendency to deflect the police from prosecuting an offence, which do. Looking particularly at the second count, it charged that the appellant asked Haken “to provide protection from arrest for a man named ‘Rocky’”. The Crown case, based upon an available interpretation of the intercepted conversation was that the appellant was asking Haken (a police officer) to arrange cover in the sense of organising police at Kings Cross to refrain from arresting and charging Rocky for drug-related offences stemming from his possession of drugs and/or activities as a street “runner”. The trial was fought on this issue. This constituted an attempted interference in the curial jurisdiction that the police would invoke if Rocky were arrested (cf Rogerson at 277, 284, 294-5, 304-5, 311). Merely because the defence case sought to put a different, benign interpretation on the request for police “protection” did not render the charge bad in law. Nor does the fact that the charge sought to summarise the nub of the request rather than quoting specific passages of the conversation in direct speech.

33 It therefore becomes unnecessary to consider the Crown’s alternative submission (on appeal) that the conduct established in relation to the second count satisfied the latter part of s312 of the Crimes Act. That section provides (emphasis added):

A reference in the Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law .
The events giving rise to the charges in Rogerson clearly predated whatever change to the common law was effected by s312 when it was enacted in 1990. Its scope remains to be determined (see R v Karageorge (1998) 103 A Crim R 157). One difficulty with the Crown’s invocation of s312 is the very form of the indictment, which in its first two counts, pleaded conduct with intent to pervert “the course of justice” . The indictment does not refer to “the administration of the law” .

34 The trial judge told the jury that an act which constitutes a perversion of the course of justice is one which is an adverse interference with the proper administration of criminal justice (SU 12). I do not read this as invoking the latter part of s312.

35 The third count fell squarely within s249B(2)(a). The appellant’s real complaint seems to be based upon concerns about overlap with the other two counts and the issue of tendency evidence. There was no overlap, let alone “duplicity” as between the first two charges on the one hand and the third on the other, a fortiori once it became clear that the corrupt inducement charged addressed matters other than the specific actus reus and mens rea averred in the first two charges. I will deal with the tendency issues separately.

36 In my view a payment to a serving police officer “on account of [the officer] showing favour to [the payer] in relation to the affairs of the Crown” is a sufficiently pleaded corrupt inducement. Cf R v Dillon and Riach [1982] VR 434, R v Webster and Jones, NSWCCA, unreported, 3 August 1992.

Wrongful admission of listening device recording, enhanced CD version thereof and “purported transcript” thereof (A:6, 7 and 8)

37 The appellant’s several complaints touching the admissibility of the listening device material can be addressed together.

38 The Federal Police officer, Mr Miller, gave evidence at a former trial that resulted in a hung jury. He was cross-examined extensively. He was unable to give evidence in the present trial. The transcript of his earlier evidence was read to the jury by another police officer, Mr Russell, who interposed his reading with small bursts of explanatory evidence. Key exhibits were tendered during this process.

39 The original tape from the listening device for 16 November 1994 was of poor quality because of the loud background noise in the Hart Hotel.

40 A copy of the tape of 15 November 1994 was tendered and admitted without objection (Tr p110). It was then played to the jury. Then a transcript of that tape was tendered and admitted without objection on the basis of being a mere aide-memoire (Tr p110).

41 As regards the transcript of the critical intercepted conversation of 16 November 1994 there was evidence that it was first typed up not long after that date (Tr p107). The question of its admissibility was raised and discussed on 23 and 24 May 2001, apparently in response to a question from the jury. Counsel representing the appellant at trial agreed that it would be appropriate for the transcript to be given to the jury, but only as an aide memoire and only when they retired to consider their verdict (Tr p100). The jury were so informed (Tr p132).

42 In his evidence read to the jury in the present trial Mr Miller said that he had fitted Haken with a listening device which had the ability to record sound onto a small cassette tape known as a microcassette. Miller took possession of the microcassette and it remained in the custody of the Royal Commission. A copy was made onto a standard cassette and a transcript was prepared (Tr p139). The transcript was checked and amended on 9 March 1995, and again on 4 May 1995, by Haken. The amendments were typed on 23 May 1995 (Tr pp217-18). Mr Russell read a transcript of the recording and listened to the copy tape and found that the transcript accorded with his hearing of the words on the tape (Tr p139). A copy of the recording was made onto a compact disk (CD) by a sound engineer. The CD slightly reduced the background music noise, making the words clearer.

43 At trial, counsel objected to the tender of the CD on the grounds that it was not the best evidence, nor (having been enhanced) was it a copy within s48(1)(b) of the Evidence Act (Tr pp147-50). The CD (marked “Giovani, copy of 80/94 enhanced Nov 2000) was admitted into evidence on the basis of s47(2) as exhibit E (Tr pp151, 160).

44 One third of the CD was played to the jury while Haken was in the witness box; and the remainder played while he was in vicinity of the court. Four handwritten amendments were made to the transcript by agreement (Tr p167). The transcript was tendered and admitted into evidence over objection as Ex F (Tr p168). The jury were given specific directions as to the use of that transcript, to the effect that it was only to be used as an aid, yielding to the tape as the primary source (Tr p168).

45 Mr Russell gave further evidence that he had had access to MFI 6 which was the cassette case containing the microcassette. He broke the various seals on the cassette case and removed the microcassette case which contained the microcassette that had been worn on Haken’s body on 16 November 1994. The microcassette was tendered and admitted into evidence without objection (Tr p242) and it became exhibit H.

46 A portion of the microcassette was played and a player made available to the jury.

47 It is now appropriate to address the specific grounds in turn.

Listening device recording ( “That his Honour erred in fact by allowing the recording of the listening device conversation between Trevor Haken and the appellant on 16 November 1994 into evidence due to its inherent bad quality and indecipherability”) (A:6)

48 A variant of this ground was pressed as one of the specific reasons why the conviction should be set aside on the “unsafe and unsatisfactory” ground (cf A:2).

49 The appellant submits that the recording should have been rejected because of its poor quality and indecipherability.

50 As the respondent points out, one difficulty with ground A:6 was that the critical microcassette (Exhibit H) went into evidence without objection (Tr p242).

51 A second response by the Crown (which I would also accept) is that the poor quality of a tape recording does not render it inadmissible per se, at least in circumstances where parts of it can be heard and deciphered. These matters will generally be matters of weight for the jury (R v Travers (1957) 58 SR(NSW) 85 at 98, 108-9). As the Crown points out, the fact that a recording is indistinct or of poor quality has traditionally been the reason for the admission of a transcript into evidence (R v Dellapatrona (1993) 31 NSWLR 123 at 132, Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 187-8).

52 Counsel for the appellant invited the Court to hear the tape. I have listened to the tape, particularly those portions of specific relevance to the second count in the indictment. I am quite satisfied that the tape contains clearly discernible relevant and admissible material and that nothing about its quality calls for the exercise of any residual or discretionary power of rejection.

53 I would reject this ground.

Enhanced CD (“That his Honour erred in fact by allowing an enhanced CD version of the said listening device tape recording to be used in the trial proceedings as it was not a primary or secondary source of evidence.”) (A:7)

54 There is no merit in this ground.

55 The admissibility of the CD was not dependent upon it being “a primary or secondary source of evidence”, whatever that means. The “best evidence” rule never applied to copy tapes (Butera at 186-7) and it was in any event abolished by s51 of the Evidence Act 1995.

56 The tape recording contained evidence of a highly relevant conversation. That recording is a “document” for the purposes of the Evidence Act 1995 (see Dictionary). The contents of a document may be adduced inter alia by tendering a document that is or purports to be a copy of it (id s48(1)(b)).

57 The suggestion that the CD ceased to be a copy because it was enhanced by a production method that lessened the background noise must also be rejected. There was evidence of what had been done to produce it (Tr pp147-148) which the jury were able to evaluate. The admissibility of a copy of a document does not depend upon it being an exact copy (Evidence Act, s47(2)).

58 Merely because the level of background noise was reduced did not obliterate the recording of the conversation, in fact it enhanced the same. In principle what happened was the aural equivalent of the use of a magnifying glass to enhance an individual’s capacity to perceive the relevant record.

59 The procedure adopted is entirely consistent with that approved by the Full Court in Eastman v The Queen (1997) 76 FCR 9 at 112 with whose reasons I respectfully agree on this point.

Transcript ( “That his Honour erred in fact by allowing the purported transcript of the said listening device tape recording to be used as an aide memoire before it was verified by the translator, due to its inherent ambiguity and associated transcribing problems.”) (A:8)

60 In this case Mr Russell gave evidence that the transcript matched the CD and the tape recording (Tr p140). The CD was played. The transcript was tendered and copies were later provided to the jury. Following some cross-examination of Haken about the footnotes on MFI 9 (a transcript of the tape recording containing footnotes) (Tr pp217-8) the transcript was checked and amended on 9 March 1995, then checked and amended by Haken on 4 May 1995. The amendments were typed on 23 May 1995 (Tr pp217-8). The final transcript became exhibit F.

61 In my view, this evidence ensured that the transcript was admissible to prove the contents of the conversation in light of s48(1)(c) of the Evidence Act 1995 (cf Eastman at 112-3). There is indeed authority for the proposition that no oral or other evidence is necessary to validate such a transcript, it being sufficient that it purports to be a transcript of the words (see R v Cassar; R v Sleiman [1999] NSWSC 436). In the present case the transcript was in fact verified by its successive translators.

62 But there is a further reason why the ground advanced is without foundation. Despite the provisions of the Evidence Act, the transcript was admitted into evidence purely as an aide memoire and the jury were instructed to treat it in that manner (Tr p168, SU 11). This was in accordance with the common law as stated in Butera. Whether or not such directions were called for in a case, like the present, where there was a serious dispute about the accuracy of at least parts of the transcript (cf Eastman at 112-3), the appellant can scarcely complain about the manner in which the transcript was dealt with in the present trial. There was no error by the trial judge in admitting the transcript as an aid, nor was there any request for further direction in any event.

Haken’s interpretation of passages in tape (“That his Honour erred in allowing the Crown to call evidence of the listening device tape recording as being corroborative of Trevor Haken’s testimony in that the tape was the primary source of evidence and Haken’s testimony was not corroborative but self-serving and should have been disallowed as an interpretation of what was meant in the recording”) (B:A)

63 The appellant complained about evidence given by Haken interpreting the effect of the conversation and effectively asserting that it carried the malign and corrupt connotation involved in the Crown case. It was not ultimately suggested that Haken was incapable of speaking as to the accuracy of the transcript of the tape, which after all covered a conversation to which he had been party. It was also accepted that Haken, an experienced police officer, was able in effect to translate terms of art such as “caps” and to identify persons and places referred to in slang or shorthand terms. Rather, the nub of this complaint was directed at the following evidence by Haken:

Q. Not to put too fine a point on it, you are suggesting that your understanding was that Rocky was a person who was selling drugs in Kings Cross on behalf of Mr Giovannone. That’s what you were saying, wasn’t it?
A. That’s quite so. (Tr p250)


….
Q. And you had your suspicions about Rocky, you suspected he was a person who was dealing in drugs?
A. I think it went a little further than suspicion but certainly I did suspect he was dealing in drugs. (Tr p263)
….

Q. So Mr Giovannone was telling you about illegal activities of police officers, is that you’re understanding?
A. No, I don’t think that’s fair at all.
Q. Random searches, that’s what he was talking about, wasn’t he?
A. I think police with reasonable cause to believe that’s what the police were basing their searches on and that’s quite lawful.
Q. That wasn’t your understanding, was it?
A. Of police searching Rocky?
Q. Your understanding of the conversation was that Tony Ackmer would ring up somebody at the Kings Cross Police Station and get the police to harass this bloke called Rocky. That was your understanding, wasn’t it?
A. He would get the police to search the person Rocky, that’s right.
Q. I’m suggesting another way in which that could be described as harassing him?
A. I find it difficult to understand how you could be harassing a street drug dealer.
Q. You can do anything you like to somebody who has conviction for drugs, can you?
A. No, I’m not suggesting a conviction for drugs, that’s your interpretation. I’m suggesting a dealer of heroin and cocaine on the streets. It’s quite proper for the police to search him when and where they see him if he’s carrying about his craft.
Q. Particularly if the police have been tipped off by somebody like Tony Achmer, is that right?
A. The situation, as I have explained it before, there were factions and the police had been tipped off by their contact in one faction to take out the other faction so to speak.
Q. What does that mean “take them out”?
A. To search them, arrest them, to put them in gaol if the situation arises or if the evidence is located which facilitates that.
Q. To take them out so that they’re no longer competition to the other dealers. That was your understanding, wasn’t it?
A. That’s exactly the situation, yes. (Tr pp263-4).
…
Q. And your understanding of the stuff involving Rocky is that Rocky was being hassled by criminals or corrupt police acting on behalf of criminals. That was your understanding wasn’t’ it.
A. I don’t think that’s fair at all. My understanding was that Rocky was on the street dealing on behalf of the accused and that I’d been asked to see if I could arrange cover for him from police who I might still have some sort of influence over. Certainly the second – sorry, certainly your proposal is correct in the second half that proposal.
Q. In your discussion with Mr Miller in the debriefing afterwards you said, “In fact, I said to him that I’d make some inquiries about some … what was going on at the Cross and I’d get back to him, if not at later this week then next week”.
A. Yes, that’s quite so.
Q. So your final impression about the whole thing was that you’d find out what was going on at the Cross and get back to him, was it not?
A. And that’s exactly what I told him in the conversation that we had.
Q. It was yet another exchange of rumours then?
A. No, no, no. This is relative to the cover which was requested to be arranged for his man, Rocky. I said, in fact I said to him that I would make some enquiries about some….what was going on at the Cross and I’d get back to him”. I think that’s quite straightforward.
Q. What I’m suggesting is the whole of this trial depends on an interpretation that you place on the typewritten words of that transcript rather than what actually emerges from any tape recording. It’s your interpretation isn’t it?
A. No that’s totally incorrect.
Q. Mr Giovannone doesn’t say at any particular stage, “I’m selling drugs and Rocky’s selling them for me” does he?
A. In those precise words?
Q. In those precise words.
A. Not, in those precise words.
Q. You say that some words used by him are interpreted by him and should be interpreted by the jury as meaning that he, Mr Giovannone, was selling drugs?
A. I don’t think there’s any alternative interpretation.
Q. Let me suggest an alternative interpretation to you?
A. Mr Giovannone said that Rocky was now clean but he was still being hassled by criminals, what do you say to that?
A. Yes, he said that.
Q. That part of the interpretation is available?
A. Well the interpretation hasn’t been asked for. He said that.
Q. Well you were being paid, you say, money in order to exert your influence over the criminals to stop them hassling Rocky?

A. No, I was asked to exert influence over the police to stop them hassling Rocky. (Tr pp278-9)

64 There is no merit in this complaint, because the evidence was adduced by counsel for the defence at trial in cross-examination of Haken. It is clear that this was part of a tactic of endeavouring to paint the Crown case as a whole into a corner that depended upon acceptance of the credibility of Haken. Counsel was trying to tar the Crown case with Haken’s brush. At the end of the day the appellant’s submission descended to the contention that the present counsel would have made a better job of closing in on Haken in the concluding portion of cross-examination.

Miscarriage of justice ( “That in the overall proceedings against the appellant there has been a miscarriage of justice based on the history and prosecution of the matter.”) (A:1)

Unsafe and unsatisfactory (“That the two verdicts of guilty against the appellant are unsafe and unsatisfactory in that on the evidence available and presented no jury properly instructed could have been satisfied beyond reasonable doubt of the guilt of the accused.”) (A:2)

Verdict by direction (“That the learned trial judge erred in not acquiescing to the request to have the proceedings withdrawn from the jury by directing a verdict of acquittal on all counts in that the quality of the evidence available and permissible inferences to be drawn therefrom were not sufficient to have the matter decided by a jury”.) (A:3)

65 Ground A:3 may be addressed first. The only application for a directed verdict was in respect of counts 1 and 2. In any event, there was sufficient evidence capable of sustaining a verdict on counts 2 and 3 as I shall demonstrate in addressing the other two grounds. It is convenient to proceed this way because no evidence was led at the trial for the defence apart from an Agreed Statement of Facts with minimal relevance.

66 The difference between grounds A:1 and A:2 is quite illusory on the face of the appellant’s written submissions. Some of the matters sought to be advanced in relation to ground A:1 arise out of evidence that was not led in the instant trial or other extraneous submissions, including submissions based on how the trial might perhaps have been conducted differently by alternative counsel. For reasons given above I place these matters aside.

67 The nub of the appellant’s attack on the verdicts fell squarely within the familiar territory stemming from cases such as M v The Queen (1994) 181 CLR 487. To address that material it is necessary to examine separately the two counts on which the appellant was convicted.

The conviction on the second count

68 Once the appellant’s challenges to the admissibility of the tape and its related transcript are disposed of, the challenge falls into sharper and narrower focus. Subject to certain qualifications, the issue becomes one of determining whether it was open to the jury to be satisfied beyond reasonable doubt based upon the contents of the intercepted conversation.

69 The Crown case that went to the jury was to the effect that the appellant asked Haken, whom he knew to be a corrupt police officer, to “get a bit of cover for Rocky” by protecting him from being arrested for dealing in drugs. I have already indicated why such a case, if established, fell clearly within the concept of an attempted or intended interference with the course of justice as that concept is discussed in Rogerson.

70 It was not an essential part of the Crown case that the appellant was seeking protection for “Rocky” on the basis that he was the appellant’s street “runner” supplying drugs, but there was material capable of supporting that basis for the requested “cover”. Concern about Rocky’s welfare as a potential victim of violence from the Lebanese drug dealers was not inconsistent with the appellant attempting to make a corrupt arrangement for police protection for Rocky in the sense contended for in the Crown case.

71 The defence case on the other hand was that the appellant was doing no more than requesting Haken to use his best endeavours to obtain cover or protection for “Rocky” in the sense of protection from him being bashed or killed by Lebanese drug dealers at Kings Cross who wanted to see harm done to him for various reasons, including the fact that he knew too much. A variant of this case, one which I perceive emerged more sharply on appeal than at trial, was that any “cover” being sought for Rocky went no further than protection from improper or unnecessary hassling by police (at the instigation of Lebanese drug dealers). It was submitted that the requested cover went no further than protection from being stopped and searched, with the consequence (so the submission went) that there was no attempted or intended interference with the course of justice in the sense discussed in Rogerson.

72 According to the appellant, the jury should have inferred that the appellant was telling Haken that Rocky had emerged from a prison sentence free from an earlier drug dependency and a reformed man. However, Lebanese drug dealers, including a person identified as Tony Ackmer, were still trying to get at him because he “knew too much”. These Lebanese were themselves using corrupt police officers to hassle Rocky. The appellant merely wanted Haken to use his endeavours to stop this unlawful intimidatory conduct. Apart from the positive evidence indicative of the alternative Crown scenario, there were, to say the least, factual difficulties with such a defence case. Why was there discussion about Mr Brammer in the context of him being an honest and efficient police officer who was cracking down on the drug scene in Kings Cross? If the Lebanese were intent to harm or even kill Rocky, was it seriously suggested the police protection could have saved him? And in any event how would police protection from being “hassled” or searched contribute to this endeavour?

73 It can therefore be seen that the appellant contends that the material in the tape is not capable of sustaining the conviction on the second count both as regards proving the requisite actus reus and the requisite mens rea.

74 In my view there was ample material. The tape recorded conversation reveals a discussion about the new police boss Brammer at Kings Cross cracking down on the drugs and police “hitting” and “fucking” all the premises. The appellant, who runs a restaurant, tells Haken that he hasn’t “done anything to the place at all”. The appellant said, “I don’t know what’s going on I don’t know if I can do anything. But I’ve got … ah I’ve got Rocky on the street”. The appellant informed Haken that Rocky had come back to him and apologised. Rocky had explained to the appellant that he had got into a habit with “the gear” and been “hooked”, but that he was giving it up now (p8 transcript). The appellant told Haken that Rocky had said, “I’m done I’m clean, I’m fit I’ve been working out in the … ah gaol and I don’t want to touch the stuff and just I walked in here”. The appellant told Haken, “I just do the coke now, he’s on the street with a mobile”, and went on to assure Haken that Rocky was staying clean (p9). The appellant and Haken later discussed whether Haken was going to go back to Kings Cross and the advantages of controlled crime. The appellant said, “Which is the better of two evils, controlled crime or uncontrolled crime … with controlled crime you’ve got…everything in hand”. Haken commented on the decline of that control, following his departure from Kings Cross (p18). The appellant told Haken that Rocky had been threatened by John and Sam Abrahams who had teamed up with “Russell”. The appellant said, “I’ve got a couple of boys helpin’ … as (ui) they’re not fuckin’ not street smart as Rocky yet they don’t know the ropes so you know (ui)”. The appellant told Haken, “they’re checkin’ $20 bills and they’re markin’ $20 bills you know”. The appellant told Haken that Rocky had been caught by Detectives last week when he had taken caps out of his mouth and put them in his shirt pocket (p19-21). The appellant told Haken that the rumour was that “the Lebs” were going to get Rocky, and that everytime Rocky walked past “baldheaded Tony”, he (Tony) “gets on the phone straightaway rings the nick, cunt”. (p23). Later in the conversation Haken asked the appellant how his restaurant was going. The appellant informed Haken that the busiest nights were Friday and Saturday, and that a big clientele of nice people come in around 8 o’clock, but that he had been “a bit shy about usin’ the place”. Haken said that he could “understand that”. The appellant said, “I don’t know what’s going on…bit hard, bit hard to do anything”, and Haken agreed, “a bit dangerous too”. Haken commented that “if Rocky’s going the same as he used to, he had a pretty good bloody set up”. The appellant agreed, “he’s a good boy”, but explained that the Lebs had caught up with Rocky and punched him and bashed him. Haken commented, that they, (the Lebs), don’t want competition (p27). The appellant and Haken went on to discuss the dangers of mixing cocktails of cocaine and speed, in the bad sense of killing off customers (p28). The discussion returned to “Baldy Tony” known as “the Inspector”, and “the Lebs”, and the appellant’s idea to get a listening device and “hang the lot of ‘em” (pp35-36). When Haken said he was going to leave, the appellant asked Haken, “Will you get a bit of cover for Rocky”. He said, “Cause they’re hassling the fuck out of him, they take him in every day” (p29). Haken says he’ll go and “have a yarn to somebody up there” and give the appellant “a yell”. The appellant agreed it was alright to see him at the (Hart) hotel where they were having their conversation. Haken advised the appellant, “it’ll be up to him too he’s got to keep his head down, you know so…keep him off the main street and to the back and fuckin’ he he should be alright.” (p40).

75 Considering the transcript as a whole and these passages in particular it was in my view well open to the jury to conclude that the appellant was telling Haken that Rocky was his street runner, distributing drugs on his behalf; Lebanese drug dealers at Kings Cross resented the competition and were assisted by corrupt police who in turn were arresting or threatening to arrest Rocky; the appellant wanted Haken to pull back those police in the sense of them refraining from arresting and charging Rocky even though there might be evidence of his activities as a drug supplier.

76 One submission was that the tape did not satisfy some requirement stemming from cases such Chamberlain v The Queen (No 2) (1984) 153 CLR 521 and Shepherd v The Queen (1990) 170 CLR 573 that indispensable intermediate steps in reasoning towards inference of guilt had to be established beyond reasonable doubt. In my view these cases have nothing to do with the present situation, which does not involve a circumstantial case, but rather the inferences capable of being drawn from a single piece of direct evidence.

77 It is also necessary to address some of the specific arguments raised by the appellant.

78 First, it is submitted that “I just do the coke now” (Ex F p9) should have been read as Rocky’s words as recounted by the appellant to Haken whereas the jury were invited to construe them as a statement about the appellant’s own activities. Given that the entire sentence was “I just do the coke now, he’s on the street with a mobile and …”, it was in my view open to the jury to regard the first portion as a statement relating to the appellant’s own business. But even were it not so, the offence would be committed if it were established that the appellant was corruptly seeking “police cover” for an associate as distinct from an employee.

79 Secondly, it was submitted that the reference to “last week he takes caps out of his fuckin’ mouth puts them in his shirt pocket and in walks a couple of Detectives. Ooops, shit-caught” (Ex F p21) should have been seen as a reference to an event some years before when Rocky was arrested convicted and imprisoned for a similar event. In my view it was clearly open to the jury to give “last week” its normal meaning, especially in the context of the conversation read as a whole.

80 One matter that deserves closer attention is the impact of the “relationship” evidence that was placed before the jury. This issue has particular impact upon the third count of the indictment, but is also relevant to examining the conviction on the second count. I mention it here to indicate that this consideration does not lead me to doubt the conviction on the second count, but I shall give my reasons later in this judgment.

The third count

81 Section 249B(2) of the Crimes Act relevantly provides:

If any person corruptly gives or offers to give to an agent, or to any other person with the consent or at the request of any agent, any benefit:
(a) as an inducement or reward for or otherwise on account of the agent’s:
(i) doing or not doing something, or having done or not having done something, or
(ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person,
in relation to the affairs or business of the agent’s principal, or
(b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent’s principal,
the firstmentioned person is liable to imprisonment for 7 years.

82 The Crown case on the third count went to the jury with the following directions (SU 17-18):

The third count is a different count. I have already read it and you have it in front of you in the transcript. It involves proof of a payment of $200 by Giovannone to Haken. But that in itself would not be sufficient to prove a charge. It has to be, as framed in the indictment, as an inducement; a payment made as an inducement on account of Trevor Haken showing favour to Mr Giovannone in relation to the affairs of the Crown.
I do not propose to waste your time or anybody else’s by troubling myself or you by what is an agent for the Crown. It seems to me a matter of law that Haken was an agent of the Crown in 1994, and the conversation, if it happened, was in relation to the affairs of the Crown.
I should say something shortly about the offence. What is constituted by the offence? That is, ladies and gentleman, the Crown must prove beyond reasonable doubt for a verdict of guilty that the money was actually paid by Mr Giovannone to Mr Haken. If you have a reasonable doubt as to whether such a payment was made, then Mr Giovannone is not guilty of the charge in the third count. If, however, you are satisfied beyond reasonable doubt that there was a payment by the accused to Haken, then you must consider the purpose for which it was made. You can only find him guilty if you are satisfied beyond reasonable doubt that it was made as an inducement on account of Trevor Haken showing favour to Mr Giovannone in relation to the affairs of the Crown.
The way the Crown puts that case is it was – I will endeavour to quote the Crown on this – we know what it was not, you will remember, related to the Rocky or the rubber problem, and the Crown put it to you in his opening it was “by way of retainer to keep the relationship with Haken going”.

83 Earlier in the summing up the jury had been reminded that the tape did not mention money being handed over. Evidence to that effect was of course given by Haken. And Mr Miller gave evidence that Haken did not have $200 on his person when he left for the arranged meeting at the Hart Hotel whereas he had two $100 bills in his possession upon his return.

84 The surveillance officers (SO 4 and SO 6) never saw money passing hands at the hotel. This was the basis for the entirely appropriate comment by the trial judge to the effect that the surveillance evidence was “in one sense I suppose an each-way bet”. The appellant’s complaint about this comment (Ground B:B) lacks weight entirely, all the more so for not having been the subject of any comment or objection at trial.

85 The corroboration given to Haken’s evidence by SO 6 was that at about 2.40pm she saw Haken pick up the appellant’s cigarette packet from the table, saw Haken

open the packet and move his right hand from the open packet to his shirt breast pocket and place his hand inside the pocket, and then return his right hand to the packet of cigarettes and out of my sight. A short time later I saw Haken remove two cigarettes from the packet and appear to look into the packet.

She also saw Haken returning two cigarettes to the packet and closing it before replacing the packet on the table. (See Tr p135)

86 The defence case referable to the third count was put to the jury (SU 22ff). The jury were reminded that one surveillance officer (SO 4) had said nothing about a cigarette packet and nothing about a visit to the toilet by the appellant, as Haken had reported to Miller. The jury were also reminded that the other surveillance officer (SO 6) had not seen any money.

87 The defence case did not dispute that Haken had two $100 notes on his person when he returned from the hotel. Rather, the case was that Haken had picked up the money from somewhere or someone (not the appellant) in order to incriminate the appellant as he had always intended to do. Since this aspect of the Crown case depended very heavily upon Haken, the general attack on Haken’s credibility received particular focus in this context.

88 The money was fingerprinted, but there were no prints linking the money with the appellant.

89 It is clear that the principal, if not the sole issue fought at trial concerning the third count was whether or not the $200 changed hands. Going by the summing up there appears to have been no suggestion at trial that there would have been an innocent explanation for the payment had it been made. One can readily understand the forensic difficulty that such a defence case would have imposed. In my view, this explains why so little was said in the summing up as to the requirements that the payment be made “corruptly”; the matter of Haken being an agent of the Crown; and the question of proof of the averred inducement of showing favours in relation to the affairs of the Crown. Given these circumstances and the absence of any application for redirection I perceive no error or miscarriage in relation to these aspects of the summing up.

90 Before us, the principal attack on the verdict in relation to the third count was based upon Haken’s unreliability, his admitted history of corruption involving fabrication of evidence, and the absence of any directly corroborative evidence of the payment as well as the absence of the appellant’s fingerprints on the bank notes. Reference was also made to what I consider minor discrepancies between the evidence of Haken and that in the unchallenged statements of the two surveillance officers which were read to the jury.

91 Were these the only matters relied upon, I would have concluded that they were for the jury to assess and that it was open to the jury to be satisfied beyond reasonable doubt. I do not say, however, that the Crown case on the third count was anything like as strong as it was on the second. It is for that reason that I turn to the matter which troubles me which I have compendiously labelled “Tendency”.

Tendency

92 The Crown Prosecutor opened the case in terms that included the following:

You will accept Mr Haken’s evidence that the prior contacts were as frequent as 30 to 50, his estimate, whether he was paid money he says $100 each time, that they met and he didn’t get money. But what he will tell you, I anticipate, ladies and gentlemen of the jury, is that the money was paid to him, not as a payment for a particular favour or a particular request, but he was paid this money by way of retainer to maintain a relationship, which the Crown says, is clearly a corrupt citizen meeting a police officer and handing him money. Not just handing him money, I expect Mr Haken will tell you that the money was handed over in a surreptitious manner. This was in a cigarette packet and the money was tucked into a cigarette packet and the accused at these meetings had a cigarette packet on the table whenever they were meeting.
The modus operandi of the method of operating was that Haken would at some stage during the meeting pick up the cigarette packet and remove the money and give the cigarettes back. He will, Haken will say he wasn’t a smoker, he doesn’t smoke. The money was always that he received was in a cigarette packet. That is of some significance, the Crown would submit to you lades and gentlemen of the jury, but what I want to put to you now is I expect Mr Haken will tell that it wasn’t a case of $100 for a particular meeting or, sorry, $100 for a particular favour or a specific request, although he recalls he paid the $100 every time they met. I can’t recall any time he didn’t. The accused may have made one request, more than in this case it’s alleged he made two requests. It’s not suggested that the $100 was each time for each request but that the money, as I have said, was by way of retainer to keep the relationship with Haken going. And Mr Haken, for his part, provided information to the accused. Some of it on request with telephone number details about a telephone number. Mr Haken says that was a request on occasions.

93 Haken’s evidence, given without objection, was that there had been a large number of meetings with the appellant before 15 November 1994. Some were by chance, others by arrangement either on a fortnightly or monthly basis depending upon the appellant’s availability. This went on over a period from the middle of 1992 to the middle of 1994. The purpose of the meetings was:

… to maintain an association, as I understood it, between the two of us. The purpose, as far as I was concerned, was to receive a payment of money from him. (Tr p153)

94 He said that there may have been occasions when no payment was made. However payments were at the rate of $100 per fortnight which meant that if the two met monthly instead of fortnightly on a particular occasion then it was common that the appellant would pay $200 on the meeting (Tr p154). Haken said that the method of payment was that, while the two had coffee, the appellant would slide him $100 in a cigarette packet or in some form of disguise so that anybody who may have been watching wouldn’t see the money change hands (Tr p155).

95 Haken gave evidence of the type of things he did for the appellant in these meetings. They included provision of items of police intelligence (Tr p155-5).

96 The Crown made it clear that the third count stood independently from the first two. The payment allegedly made and received on 16 November was charged as “an inducement on account of Trever Haken showing favour to Philip Giovannone in relation to the affairs of the Crown”. That “favour” was the maintenance of an improper relationship in which Haken supplied police intelligence to the appellant in circumstances obviously having nothing to do with “the affairs of the Crown”. Haken’s evidence of the earlier meetings and of the pattern of regular payments was essential to put the events of 16 November in context and to explain what contract lawyers would call the “consideration” for the payment made that day. The evidence was admitted without objection. It is not to the point that earlier meetings could have been the subject of separate charges.

97 During submissions before us counsel for the appellant somewhat faintly submitted that this evidence should have been rejected because it was unfairly prejudicial. I do not agree. In any event no such objection was taken.

98 This however leaves the matter of continuing concern, namely the directions that were given or which should have been given designed to warn the jury against lapsing into propensity or tendency reasoning (Ground B:C). His Honour said this (SU 11):

Just before moving to the charges, there was a lot of evidence of background material of the relationship between Haken and Mr Giovannone. How do you utilize that evidence? It is not evidence of the ingredients of the offences. It is allowed for the purpose of placing the evidence which gave rise to the particular charges in their true context as relationship evidence.

No further directions were sought or given on this issue.

99 In my opinion the jury should have been told that they should not reason that, because the appellant had been involved before in corrupt payments, he therefore had a tendency to do so. The jury may well have been puzzled by the difference that excluding this method of ratiocination might have had in an otherwise strong case. However, recent authoritative decisions have emphasised the need for such a direction in many cases (BRS v The Queen (1997) 191 CLR 275, R v BWT [2002] NSWCCA 60 at [32]). This principle is not confined to sexual assault cases, but extends to all cases where there is a real risk that the jury may engage in inappropriate propensity reasoning. The directions must be given wherever necessary to avoid a perceptible risk of injustice (see generally BRS at 301 per Gaudron J, 310 per McHugh J, 329-30 per Kirby J).

100 Did the failure to give this unrequested direction cause a miscarriage of justice (cf R v Chan [2002] NSWCCA 217)? Should leave be given to the appellant under r4? Certainly not, as regards the conviction on the second count which rests securely upon the content of the intercepted conversation. However, as regards the third count, the proof of guilt rested substantially upon the shaky shoulders of Haken. The absence of clear guidance as to the proper limited use of the evidence about earlier dealings persuades me, in light of the authorities by which I am bound, to uphold the appeal in relation to the third count.

Various misdirections and omitted directions

101 The document entitled Notification of Amended Grounds of Appeal (B) contains four other grounds (B, D, E, & F) complaining about miscellaneous directions said to be misdirections and omissions to give particular directions. I have already dealt with B en passant.

102 Grounds D and F raise complaints about the summing up and suggest that the trial judge should have put to the jury alternative factual explanations of particular portions of the intercepted conversation. Rule 4 should be applied because it is far from clear that these detailed issues were ever raised at the trial. The jury had the benefit of counsel’s address and the summing up fairly put the contending positions. What is clear is that no redirections were sought.

103 As to the complaint about the direction that as a matter of law Haken was an agent of the Crown in 1994 (Ground B:E), it is not clear whether the appellant still presses this ground. There is however no merit in it given the fact that Haken was a serving police officer at the time of the conversation (cf Crimes Act, s249A) and that the appellant dealt with him as such, at least in one sense. No redirection was sought and rule 4 should be applied.

Application for leave to appeal against sentence

104 As indicated there was, in addition to a penalty forfeiting the $200 bribe, a sentence of imprisonment of three months commencing on 20 September 2001 imposed in respect of the third count. Two months of that sentence had been served by 21 November 2001 when the appellant was granted bail pending the determination of his appeal. This sentence must obviously be set aside in consequence of the quashing of the conviction on the third count.

105 As regards the conviction on the second count, the maximum sentence was 14 years imprisonment.

106 In his remarks on sentence, Flannery ADCJ referred to the facts, observing that he found that the appellant knew that Rocky was selling drugs in the streets of Kings Cross and that he was asking Haken to take steps to prevent Rocky being arrested by other police.

107 In his review of the subjective features, his Honour noted that the prisoner was 44 years old at the time of the offence, 51 years old at the time of sentencing. The appellant was residing with his mother, aged 76, and helping her around the house: she suffers from health problems which prevent her from walking.

108 The appellant’s employment history was reviewed down to the effective cessation of work in the mid-1990s consequent upon stress and major depression following adverse revelations at the Royal Commission relating to the New South Wales Police Service as well as the present charges. There were favourable character references obviously regarded by his Honour as deserving weight.

109 There was reference to a number of cases relating to attempting to pervert the course of justice, including cases relating to attempts to corrupt serving police officers.

110 His Honour considered the options of periodic detention, community service and a suspended sentence, each of which he rejected as inappropriate to the seriousness of the offence.

111 The learned judge acknowledged that not every case of attempting to pervert the course of justice or perverting the course of justice with the intent had resulted in a gaol sentence (RS 16). He also adverted expressly to s5(1) of the Crimes (Sentencing Procedure) Act 1999 which stipulates that a court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate.

112 It is not always clear whether his Honour’s general remarks and review of earlier authorities were directed at one other or both of the counts on which the appellant stood convicted. Nevertheless, the nub of his reasoning appears in the following passage (RS 18-19):

The many cases to which I have adverted on attempting to pervert the course of justice, when it involves police officers, drugs, the object of the exercise here was to avoid an arrest of Rocky for drug dealing, seem also to require a prison sentence. On the other hand, in terms of quantum of sentence, of the amount of sentence, Mr Giovannone, having regard to his background, his state of health, is entitled to receive a lesser sentence, in my view, than police officers, people such as Mr Bayeh and Mr Karageorge by reason of their situation in life, and the seriousness of the offences that they committed. Justice Wood in Duong , as I have said, suggested that the way to deal with the matter is by way of cumulative sentence, generally speaking. I think that the principle enunciated by Justice Wood applies to the facts of this case.

113 This last sentence is a reference to the remarks of Wood CJ at CL in Duong (1999) 109 A Crim R 60 at 64-5 where he said:

Save in the most exceptional circumstances it will call for a significant term of imprisonment to be imposed cumulatively, at least substantially cumulatively upon the sentence for the primary offence in respect of the detection or prosecution of which the bribe was offered.

114 His Honour sentenced on the basis of the prisoner having a criminal record which was “almost non-existent” (RS 22).

115 When the sentences were first imposed, on 20 September 2001, Judge Flannery sentenced the appellant on the perversion of justice charge (ie the second count) to 15 months penal servitude to date from that day and expiring on 19 December 2002. On the bribe charge (ie the third count) he sentenced to nine months imprisonment to commence on 20 December 2002 and to expire on 19 September 2003. He specified a non-parole period of nine months to expire on 19 June 2002.

116 As indicated, the sentencing proceedings were re-opened on 8 November 2001, pursuant to s43 of the Crimes (Sentencing Procedure) Act 1999. (The reason for this related apparently to the non-parole period: CCA Tr 30/5/02 p60.) In consequence, the appellant was sentenced to imprisonment for a fixed term of 3 months to commence on 20 September 2001 and expire on 19 December 2001 in respect of count 3. In respect of count 2, the appellant was sentenced to imprisonment for a term of 15 months to commence on 20 December 2001 and expire on 19 March 2003, with a non-parole period of 6 months to expire on 19 June 2002.

117 The grounds of appeal relevant to sentence raise four specific complaints and some general complaints.

118 Ground (i) contends that the judge misdirected himself in finding (a) that Rocky was a street dealer of drugs; and (b) that Rocky was actually being arrested by police and that “rival” dealers were causing this to happen for the reasons of eliminating drug competition. It is submitted that these findings were not open on the evidence. It will be apparent from what I have written earlier in this judgment that this complaint has no substance.

119 Ground (ii) contends that his Honour erred and misdirected himself in the following passage (RS 18):

The question is should I impose a suspended sentence? In my view, having regard to the authorities to which I have referred, albeit not the most serious types of offences of this public justice nature, it seems to me that I am obliged, if I understand the law correctly, to impose a prison sentence.

120 The appellant submits that the facts of the case did not call for an obligatory term of non-suspended imprisonment. This submission misconstrues the judgment which, read as a whole, makes it plain that his Honour regarded himself as having leeway in this regard (see esp RS 16). The particular passage quoted above represents his Honour’s conclusions on the matter.

121 In any event, I am unpersuaded of any error in the actual sentence on the third count.

122 Ground (iii) avers error and misdirection in the decision to make the sentences cumulative. The appellant contends that since the two offences arose out of one incident on 16 November 1994.

123 I disagree. This was a matter within his Honour’s sentencing discretion. The two offences involved separate acts of criminality and it was well open to his Honour to deal with them in the way he did.

124 Ground (iv) contends that his Honour erred in not deciding that the matter was an exceptional one requiring a non-custodial sentence. Similar complaints are effectively the subject of the general grounds A:10 and 12 which also contend that the imposition of a custodial sentence was too severe.

125 I disagree. The courts have many many times adverted to the seriousness with which the law regards conduct designed to interfere with the course of justice or involving the attempted corruption of public officers. The maximum penalty for the offence covered by the third count is compelling testimony to this. His Honour considered alternatives to a fulltime custodial sentence and rejected them for appropriate reasons set out at RS 11, 12, 17 and 18.

Disposition

126 The quashing of the conviction on the third count does not stem from any absence of evidence or inherent unreliability of the Crown case, but from the failure to give a particular direction. Normally a new trial would ensue. Since however a significant portion of the custodial part of the sentence imposed with respect to this count has been served it is appropriate in the circumstances not to order a new trial.

127 Accordingly, I propose the following orders:

1. Appeal allowed in part.

2. Quash the conviction and sentence referable to the third count in the indictment.

3. Appeal in relation to conviction and application for leave to appeal in relation to sentence on the second count dismissed.

4. Pursuant to s59 of the Crimes (Sentencing Procedure) Act 1999 vary the commencement date of the sentence on the second count so that the sentence of imprisonment of 15 months on that count commenced on 20 September 2001 with a non-parole period of 6 months commencing that day and ending on 19 March 2002.

5. Note that the appellant was in custody from 20 September 2001 to 21 November 2001 and was released on bail on 21 November 2001 pending his appeal and that pursuant to s18 of the Criminal Appeal Act 1912 the time which he has been on bail does not count as part of any term of imprisonment under the appellant’s sentence.

6. Note accordingly that the balance of the appellant’s sentence of imprisonment of 13 months less 2 days resumes on 14 August 2002 and expires on 12 September 2003 and that the balance of his non-parole period of 4 months less 2 days will resume on 14 August 2002 and expire on 12 December 2002 on which date the appellant is to be released on parole.

128 HIDDEN J: I agree with Mason P.

129 CARRUTHERS AJ: I have had the benefit of reading the judgment of Mason P in draft form. I agree that the appeal against conviction and application for leave to appeal against sentence in relation to the second count should be dismissed for the reasons given by the President.

130 I also agree that the appeal against conviction in relation to the third count should be allowed. Thus I agree with the orders proposed by the President for the disposition of the appeal.

131 My reasons for allowing the appeal on the third count differ, however, from those of the President. My reasons may be shortly stated. In my respectful opinion it is a misconception to categorise the evidence of prior meetings and payments by the appellant to Haken as pure relationship evidence. Relationship evidence is led for the purpose of placing the evidence which gave rise to the particular charge in its true context and, sometimes, to rebut a defence of accident. It cannot be used by the jury as direct evidence going to proof of the elements of the charge. However, that is the precise reason for which the Crown led the evidence of prior payments in the instant case. The evidence was led to establish firstly, that the payment of $200 was paid by the appellant to Haken on 16 November 1994 and that such payment was in the nature of a retainer on account of Haken showing favour to the appellant in relation to the affairs of the Crown.

132 Indeed this was made perfectly clear by the Crown Prosecutor in his opening address when he indicated that the evidence of prior conduct established the “modus operandi” of the appellant and Haken.

133 The evidence was therefore in reality tendency and coincidence evidence going to the guilt of the accused which must be established beyond reasonable doubt: see Gipp v The Queen (1998) 194 CLR 106.

134 As this evidence fell within Part 3.6 (Tendency and Coincidence) of the Evidence Act 1995, it attracted the notice provisions in s 99 and the restrictions contained in s 101 of that Act. The trial judge was also required to consider the discretionary provisions of ss 135 and 136 of the Act. Specific directions as to the use and standard of proof of tendency and coincidence evidence should have been given to the jury.

135 The question of the distinction between pure relationship evidence and tendency/coincidence evidence is discussed in R v AH (1997) 42 NSWLR 702.

136 For the above reasons the jury were denied appropriate directions and consequently there was, in my respectful opinion, the possibility of a miscarriage of justice in relation to the third count.

137 It should be noted however, as the President pointed out, the above mentioned evidence was led without objection as relationship evidence. This led His Honour to direct the jury that the evidence was not to be used by them as evidence of the ingredients of the offences. This was, however, the very purpose for which the Crown led the evidence.

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