R v Hudd
[1999] NSWCCA 382
•16 December 1999
CITATION: R v HUDD [1999] NSWCCA 382 FILE NUMBER(S): CCA 60567/99 HEARING DATE(S): 30 November 1999 JUDGMENT DATE:
16 December 1999PARTIES :
REGINA v Patrick HUDDJUDGMENT OF: Sheller JA at 1; Barr J at 2; Bell J at 85
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 93/11/0393 LOWER COURT JUDICIAL OFFICER: Flannery DCJ
COUNSEL: Crown: R A Hulme
Appellant: S J Odgers/I AsuzuSOLICITORS: Crown: S E O'Connor
Appellant: T A MurphyCATCHWORDS: Criminal Law - appeal - fresh evidence - whether the unavailability at trial of evidence of the dishonesty of a Crown witness led to a miscarriage of justice. Held: no ACTS CITED: Crimes Act 1900 s 474D, s 474E(1)(b) CASES CITED: Gallagher v The Queen (1986) 160 CLR 392
Mickelberg v The Queen (1989) 167 CLR 259
R v Robinson [1999] NSWCCA 186
R v Johns [1999] NSWCCA 206DECISION: Appeal dismissed
IN THE COURT OF
CRIMINAL APPEAL
60567/99
SHELLER JA
BARR J
BELL JThursday, 15 December 1999
REGINA v Patrick HUDD
JUDGMENT1 SHELLER JA: I agree with Barr J.
IN THE COURT OF
CRIMINAL APPEAL
60567/99Thursday, 16 December 1999
SHELLER JA
BARR J
BELL J
REGINA v Patrick HUDDJUDGMENT
2 BARR J: The appellant was convicted by a District Court jury of conspiring to pervert the course of justice and was sentenced to serve a term of imprisonment. His co-accused, who was also convicted and sentenced, was Julianne Kay Dufty. The appellant’s appeal to this Court against the conviction was dismissed on 9 December 1994, though his sentence was reduced. On 9 March 1999 the appellant applied under the provisions of s 474D Crimes Act for an inquiry into his conviction and on 18 June 1999 an order was made in accordance with s 474E(1)(b) that the proceedings be referred to this Court to be dealt with as an appeal under the Criminal Appeal Act. There was one ground for the application, and that became the sole ground of appeal, namely that the conviction of the appellant constituted a miscarriage of justice due to the unavailability at the trial of certain fresh evidence concerning a Crown witness, Sergeant Nomchong.3 The Crown case was that on 27 May 1989 the appellant was stopped by police in Lamb’s Lane, Goulburn. They carried out a search but found nothing. They took him to his house, which was nearby, and there found a considerable quantity of heroin, among other things. They charged the appellant with the supply of the heroin.
4 The appellant, who knew that he had no answer to the charge, set about recruiting people to give false evidence at his trial in order to make his activities at the time of his arrest and at other relevant times appear innocent and to make it look as though the police had falsely accused a man they knew was innocent. In doing so he engaged the assistance of Ms Dufty. One prospective witness they recruited was Darren Worthington, a man the appellant met in gaol.
5 During their endeavours the appellant produced and he and Ms Dufty distributed a number of typed and handwritten documents containing model witnesses’ statements and draft questions and answers for use in court, together with much written explanatory material.
6 It was important for the Crown to put such documents before the jury and to prove that the writing in them was the appellant’s. It set about doing so in various ways, one of which was to have a handwriting expert look at documents proved to have been written by the appellant and to say whether the conspiratorial documents were in the same hand.
7 For this comparison the expert used two sets of documents said to be in the appellant’s handwriting. One was a series of letters identified by Sergeant Nomchong as having been written by the appellant some years earlier than the events giving rise to the trial.
8 The appellant denied that any of the documents were in his handwriting. At the trial the credibility of police officers was strongly attacked. It was put to Sergeant Nomchong that he had had the opportunity himself to write the letters he attributed to the appellant.
9 The fresh evidence concerning Sergeant Nomchong is as follows -
2. During the Royal Commission into the New South Wales Police Service one, Trevor Haken, gave evidence that on an unspecified day before May 1989 Sergeant Nomchong received a share of a $3,000 bribe paid to police to secure the dropping of charges against a defendant.
1. On 28 June 1996 he was convicted of attempting in November 1994 to influence a member of the New South Wales police force in the exercise of his function as a member of that force with intent thereby to pervert the course of justice.
10 The submission was that the evidence that would establish these things would discredit Sergeant Nomchong and was capable of bearing on his probity at the time he prepared and gave his evidence in the appellant’s trial. So there is a reasonable possibility that a jury having the benefit of the evidence might have acquitted the appellant: Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259.
11 It is necessary in order to determine whether there is such a reasonable possibility to assess the importance of the evidence of Sergeant Nomchong to the Crown case and the effect, if any, the fresh evidence might have on a jury’s assessment of Sergeant Nomchong in particular and on the Crown case in general.
12 The events the Crown relied on and the evidence for their occurrence was as follows. I will summarise first the evidence apparently independent of Sergeant Nomchong.
13 Detective Inspector Casey, Detective Sergeant Edlund and Detective Senior Constable Whatmough were in Lamb’s Lane, Goulburn when the appellant was arrested and searched. They and other police officers were present when the appellant’s house was searched. A number of other police officers were engaged in the search but were not named in the evidence. A notebook called Judges Notes was found in a briefcase at the house. A firearm was found as well. The appellant was taken to Goulburn police station, where Detective Sergeant Edlund spoke to him in the presence of Detective Senior Constable Whatmough. The appellant was asked about entries on certain pages of the notebook and said that he had written or drawn diagrams on pages 72, 105 and 106. According to Detective Senior Constable Whatmough the appellant said that he had written numbers which appeared in entries throughout the notebook.
14 Detective Sergeant Edlund gave evidence about an event that happened as the appellant’s committal hearing concluded in the Local Court Goulburn on 21 July 1989. The notebook was in Court, though not in evidence. The appellant’s barrister, Mr McCrudden, applied to the magistrate for its return. It was not returned but remained in the custody of the police.
15 Mr Worthington said that in August 1989 he was arrested and charged with a number of property and other offences. He obtained a grant of bail, but it required his surety to deposit $2,000 in cash, and he could not find anyone who could meet that condition, so he was held in custody. One day he was in the dining room at the Metropolitan Remand Centre when the appellant went up to him, introduced himself as Pat and asked him whether he were interested in giving evidence at his trial. Only the two men were present at the conversation. Mr Worthington said that he was interested but that he needed bail, and had to go to court to have the conditions of bail changed so that his security need only promise to forfeit money, not deposit it.
16 The appellant had a bag, out of which he took papers, maps, typed copies of papers and photocopies of written documents. The documents contained plans of Lamb’s Lane, Goulburn and a photograph of Inspector Casey. The appellant said that that was the detective who had “busted” him at Goulburn.
17 The appellant showed Mr Worthington questions and answers on a typed paper and said that he would have to learn them because the prosecution would probably ask him those questions.
18 In evidence, Mr Worthington identified the document the appellant had as the one that had been marked 2 for identification during the evidence of Constable Garth, to which I shall refer. The document became exhibit E. It comprised a two-page, typed, draft statement, a set of fifteen typed questions and answers and a set of identical handwritten questions and answers, followed by four additional questions and answers. Following the last question and answer were instructions to Mr Worthington to write out the questions and answers himself, to photocopy them and to destroy the original and that document, exhibit E. On the reverse of the last page was a sketch representing bags of heroin and silver packages and showing how far they were supposed to have been filled.
19 The appellant told Mr Worthington that he would receive $5,000 after he had given his evidence. He said that it would be good if he could have his bail condition changed so that the surety might promise to forfeit a sum of money rather than lodge it in cash.
20 On the following morning the appellant saw Mr Worthington again. Only the two were present when they spoke. The appellant showed him some more papers and said that he would have to remember all they contained. There was a picture of a firearm the police had said they had found at the appellant’s house. There were further facts for Mr Worthington to study and a photograph of Lamb’s Lane, Goulburn. In evidence, Mr Worthington recognised the document marked 28 for identification. It became exhibit F. It contained a sketch showing the positions of police cars and officers at the time of the arrest of the appellant.
21 Mr Worthington said the same about a document marked 26 for identification, which became exhibit G. It contained a more closely annotated diagram of Lamb’s Lane, showing the position of cars and personnel.
22 The documents exhibits E, F and G were all later found in Ms Dufty’s car.
23 Broadly, the appellant asked Mr Worthington to tell a false story that he had missed a turnoff during a journey between Griffith and Wollongong and happened to be driving along Lamb’s Lane when he saw a number of police cars and officers and a man, the appellant, under arrest. One of the officers was holding a bag containing something like sugar. The purpose of the evidence was to give the Court the impression that the police had the heroin before they went to the appellant’s house, enabling the appellant to assert in his defence that they had planted the heroin there.
24 The appellant told Mr Worthington that an advertisement would be placed in a newspaper asking for the person who was driving a yellow Cortina station sedan in Lamb’s Lane to come forward. Mr Worthington would answer the advertisement and his story would thereby come to the notice of a solicitor retained by the appellant.
25 By the end of their conversation they had made an arrangement by which the appellant would try and obtain bail for Mr Worthington.
26 The appellant and Ms Dufty were in frequent contact with each other at relevant times. According to Mr Patrick Farrell, Senior Assistant Superintendent of the Department of Correctional Services Internal Investigation Unit, Ms Dufty visited the appellant at Goulburn Training Centre and the Remand Centre at Long Bay Prison one hundred and eighteen times between 30 May 1989 and 4 September 1991.
27 According to Mr Worthington, he applied successfully for an order varying the condition of his bail which required the deposit of $2,000. Instead, the surety had to promise to forfeit a similar amount. Mr Worthington returned to his custody to await developments.
28 He received a telephone call to say that he was going to be released on bail and that there was someone waiting to pick him up. He went to the prison office and was handed a form of undertaking to sign. He did so. Present in the office was Ms Dufty, who was calling herself Toni Gibson. She was Mr Worthington’s surety. He only ever knew her by the name she had given.
29 Formalities completed, they left the prison and went to Central railway station. Ms Dufty paid Mr Worthington’s fare and they took a train to Goulburn and travelled to Ms Dufty’s house in Faithfull Street. Mr Worthington then described the house otherwise shown in evidence to have been Ms Dufty’s house.
30 At the house they spoke about the exercise in which they were taking part. Ms Dufty asked Mr Worthington whether he thought that they would get away with it and he said that he thought they would. Ms Dufty said that the appellant’s son would come on the following day and take them to Lamb’s Lane.
31 On the next morning the appellant’s son came to the house and took Ms Dufty and Mr Worthington to a point on the Hume Highway where he was supposed to have missed the turnoff. After that they went to Lamb’s Lane where Ms Dufty pointed out particular spots on the map. Various points of reference were noted as Mr Worthington’s story was rehearsed.
32 They left the area and eventually returned to Ms Dufty’s house. There Mr Worthington met Wayne, the appellant’s son. He stayed the night there and on the following morning asked Ms Dufty for $500, which the appellant told him she would give him. She did so. He and Ms Dufty caught the train back to Sydney.
33 Ms Dufty told Mr Worthington that there would be an advertisement in a newspaper then being published and that he was to telephone the solicitor at the number listed in the advertisement. He returned to Wollongong, bought the newspaper and found the advertisement. He spoke by telephone to someone he thought was called Turkey and told him that he was the person who had been driving in Lamb’s Lane. They had a conversation. Mr Worthington identified a Daily Telegraph advertisement, exhibit K.
34 Mr Peter Turvey gave evidence that he was a law clerk employed by his wife, who was the solicitor practising under the name Dollin Wong and Turvey. On 19 November 1989 he took instructions from the appellant at the Metropolitan Remand Prison. On 9 December 1989 somebody told him on the telephone that there was going to be an advertisement in the Daily Telegraph on 11 December 1989. He purchased a copy of the newspaper. On 12 December he received a telephone call from a young man calling himself Darren Worth. He told Mr Turvey that he had been in Goulburn on his way home from visiting friends in Griffith. He said that he was in the area of Lamb’s Lane when he saw a blue utility and some unmarked police cars. There were eight or nine people there and he saw a man handcuffed near the rear of one of the cars and a plain clothes policeman, who waved him through. He described one of them as a big man with black hair, about six feet tall, who had a plastic bag over his right arm. (Detective Inspector Casey was of that general build.) There was something that looked like white powder in the bag. It could have been sugar or something like that. That was the only conversation he had with the man. Shortly afterwards the appellant withdrew his instructions from the firm. His firm had nothing to do with the placing of the advertisement.
35 About one month after his conversation with Mr Turvey Mr Worthington was at his father’s residence at 5/4 Allen Street, Port Kembla when the appellant and Ms Dufty arrived in a yellow Datsun car. The appellant said he would give Mr Worthington a large map which showed the route he was supposed to have taken from Griffith to Wollongong. The appellant and Ms Dufty had a map already drawn and Ms Dufty screwed it up and rubbed it on the ground to make it look used and dirty. They left after half an hour and took it with them. Mr Worthington identified the map as the document marked 1 for identification, one of the car documents. It became exhibit L.
36 Mr Worthington said he had previously given the appellant his grandmother’s, grandfather’s and girlfriend’s addresses in Warrawong and Port Kembla. He was shown one of the car documents, marked 24 for identification, and identified on it those addresses as well as his grandmother’s telephone number. That document became exhibit JJ.
37 About one month later the appellant and Ms Dufty called on Mr Worthington again and collected all documents they had left with him. By that time he had decided to take no further part in the scheme.
38 On 18 January 1990 Ms Dufty’s car broke down on the Hume Highway. Mr Nicastri, the manager of a tow truck business, saw her stranded on the road and towed her car back to his yard at Marulan. On the following morning an off-duty police officer, Senior Constable Garth, who was stationed at Marulan, called in at the yard and looked inside the car. There were papers on the dashboard and in the glove box, some in the names of Ms Dufty and Toni Gibson. He began to read them and saw references to Detective Senior Constable Edlund, who was then stationed at Goulburn, and who was known to Senior Constable Garth. Senior Constable Garth became interested in the contents of the documents and took some of them away.
39 He went to Goulburn, spoke to Constable Trevallion and showed him the documents he had found. Constable Trevallion went to the yard at Marulan and searched Ms Dufty’s car. In the glove box he found a bankbook in the name of Julianne Dufty. In the boot he saw envelopes containing letters and photocopies of letters relating to various police stations at Goulburn.
40 On 19 January 1990 Detective Sergeant Edlund went to Marulan and spoke to Constable Garth. He examined documents that Senior Constable Garth showed him. He placed them in plastic envelopes and tagged them. They became known as the car documents. Ms Dufty was arrested.
41 On the following day Detective Senior Constable Whatmough and Detective Senior Constable Murray went to the appellant’s cell at the remand unit at Long Bay Prison with a search warrant. They took possession of a number of documents which became known as the cell documents.
42 On 9 April 1990 Detective Inspector Casey and Detective Senior Constable Whatmough went to Maroubra police station and spoke to the appellant. They showed him some of the cell documents and the car documents. The appellant said that he did not wish to speak to police and that his solicitors were going to send them a letter to that effect. Detective Inspector Casey asked him if he would like to look at any of the documents. The appellant said that he did not and that he knew what documents the police had. Detective Inspector Casey said that it looked like the appellant’s handwriting and he replied -
Well, you know it’s my handwriting but I am not going any further with this.
43 Constable Boak took the appellant’s fingerprints. Constable Mooney took Ms Dufty’s fingerprints. Constable Arroyo took Mr Worthington’s fingerprints.
44 Sergeant John Smart was stationed at Goulburn police station and was attached to the New South Wales Fingerprint Bureau. He was an expert in the identification of fingerprints. He identified prints of the appellant’s left and right ring fingers on cell document number 12, his left middle fingerprint on cell document number 11, his left palm print on cell document number 9, his left middle and ring fingerprints on cell document number 8 and his left thumbprint and right ring fingerprint on cell document number 5.
45 He examined a number of the car documents but did not find any of the appellant’s fingerprints on them. He found prints of Ms Dufty’s right thumb on car document number 6 and of her left index finger on car document number 36.
46 He found prints of Mr Worthington’s left and right thumbs on car document number 21.
47 Sergeant Eastman was a handwriting expert. As at 1990 he had been attached to the Document Examination Unit of the Physical Evidence Section of the police service for about eight and a half years. He had received training in the examination and comparison of handwriting, comprising a program of approximately five years during which he worked with four accredited experts. He was constantly assessed during the course. During that time he worked under the personal direction of Detective Inspector Chivers, a handwriting expert with about twenty-seven years’ experience. Sergeant Eastman had been accredited to give evidence about the comparison of handwriting and had given such evidence in the courts of New South Wales.
48 Sergeant Eastman studied the handwriting and figures on pages 72, 105, 106,115, 117 and 127 of the Judges Notes notebook, marked 7 for identification. He concluded that four of the car documents, exhibits F, JJ, NN and UU, were written in the same hand.
49 Exhibit F comprised two sketch plans, one of roads in the vicinity of the Hume Highway and the other of Lamb’s Lane, showing vehicles and other features. On the first was the notation -50 Exhibit JJ was a handwritten memorandum bearing the name “Darren” and the telephone number of Mr Worthington’s grandmother as well as the address 5 Allen Street and the addresses of Mr Worthington’s girlfriend and grandmother. The text included the following -
YOU WILL HAVE TO
DRAW A MAP
FOLD IT AND DIRTY IT
SO IT LOOK (SIC) LIKE IT WAS
KICKED AROUND THE FLOOR
OF A CAR FOR AWHILE.51 Exhibit NN was a partly typed, partly handwritten document. The typed part rehearsed events of Friday 26 May 1989. In the handwritten part of the document, under the heading -
We have to go to Wollongong tomorrow. Will see him as we have the notes with us for him.
The Solicitor needs to see him but not till we put the add in the paper and he’s had time to go over the notes again.52 Underneath the column of figures totalling $8,000 appeared the words -
If these people do this at the trial I have to pay them after the trial
appeared a list of names of persons and sums of money. There were two columns, one totalling $11,000 and the other $8,000. The persons’ names were Vicki, other chick, Scotty, Theo and McFarlane. Under the last name appeared the words -
If we have to use Darren for ½
opposite the figure $2,500.
53 Then appeared the words -
These might be enough if they will do it. The (sic) don’t talk (?) about being paid for it.
54 Exhibit UU was a two-page typewritten document with handwritten insertions. It included the following. The handwriting is shown in italics.
unless you can get them cheaper but if we go too low Scotty might not be in it.
Theo.
Detective Edlund arrested me on for
When we arrived at the Goulburn Police Station he said “Do you know a guy called Patrick Hudd”. I said “No”.
Edlund said “If you make a statement claiming you do know him, and that he sold you heroin, even if it’s only a $50. shot, I won’t charge you with this”. I said “No, I won’t be in it”.
Edlund always says PATRICK.
________________________________________________________
Explain to the others that the ones named in the police statements, the cops are trying to get us together. Once they write it out and sign it, the cops are up for harrassment if they try to question them on it, as they are defence witnesses.
Explain how Regie got charged after giving Miro up. Charged on his own addmissions. HE GOT 6 MONTHS. If not signed up they leave it open for police to subpoena them and if one slip up, charge them. Once signed up they are my witnesses and can’t be questioned on this by Police. It’s Harrassment.
_______________________________________________________
Scotty 2. Theo 1.. Vicki 2½.. the other chick 2½… McF 500 or 1000. If the other chick is right then tell 40 I don’t really trust him now and I have 2 other people who are doing it for 2½ each. If he wants to do it with them then all he gets is 2½ too, he brought it on himself. Yes or No and we’ll be in touch that’s less the $550 I gave him. Leaves $1950 or he repays the $550 at $50 pw otherwise you’ll pull the bail. He would have been IN FRONT OF them ( or following them as long as they get it right) , they were taking Henry’s car back to him, unless Vicki has a car of her own. 40 in yellow car Vicki in Henry’s right behind him. The number of Henry’s ford. It’s best we have 2 people in Lambs Lane . What names are these women going to use.
Wayne McFarlane adds to his note if he’ll do it. Julie Dunlea was going to the Astor Hotel, I dropped her off in the Telecom Carpark. SHE walked straight past the ute about 5 to 6 feet behind it and kept going, she never stopped. Pat Hudd was talking to a guy who was leaning in the window of the ute (Driver’s Side) It wasn’t Allan Dell. Pat Hudd followed me out of the carpark to Sloan Street, I turned right and Pat Hudd turned left at Sloan St. I could see him in the rear view mirror.
…
Would the person who drove past (Not Passed) 2 Hwy Patrol cars, a Blue HQ Utility and 2 other vehicles, parked each side of the road, approx 500 metres along Lambs Lane from the Grabben Gullen Road, 16 Kms from Goulburn, between 9.15.and 9.30.am on Saturday 27-5-89, please contact (If Rory says Bolzan is right when you contact him) Mr. John Bolzan of Bolzan & Dimitri, Solicitors, Leichardt. on 02-560 0011.
We could forget Theo if Scotty is definitely doing it.
We would want Wayne McFarlane though in case Julie Dunlea turns up for the cops. If we have to we give him 500 or 1, 000 ._______________________________________________________
The chick or chicks will have to be taken up there so they see the Lane and the road to Bredalbane. The right road this time. Rory would need to speak to them within the next 2 weeks so the notes would need to be given to them A.S.A.P. who has the map the guy in the Ford Laser drew. o nly one of them has it.
Glenn Martin 6604503 Joanne 5977343.. Can he get snake to whisper in Whitey’s ear about giving evidence at my trial.
The date 40 was bailed in case I have to use these statements. If we don’t use him contact him tell him whats on page 1 then he has to repay you the $550. $50 pw or you will pull his bail. say I don’t trust him now and mention the statements the guys here made about him.
55 There were attempts to recruit others into the conspiracy. Mr Allan Dell said that in August 1989 a woman calling herself Julie visited his flat in Goulburn. He identified her as the accused Dufty. She handed him a document which he identified as one of the car documents, marked 3 for identification. It became exhibit N.
56 It comprised a handwritten account of an alleged meeting between Mr Dell and Detective Sergeant Edlund in Goulburn on 21 July 1989. In the account Detective Sergeant Edlund asked Mr Dell whether he knew the appellant and Mr Dell said that he did not. Detective Sergeant Edlund said that the appellant had upset a colleague of his, who wanted him gaoled. He offered to give Mr Dell a ten-weight bag of heroin and get a certain detective off his back if he would make a statement saying that the appellant had sold him heroin. The letter contained considerable detail about what was supposed to have happened.
57 Mr Dell told Ms Dufty that he wanted nothing to do with it.
58 In August 1989 Ms Diane Miller had been visiting her cousin Mr Thorn at Goulburn prison for some time. During her visits there she had met the appellant and a woman who called herself Julie. She identified Julie as Ms Dufty. There was an occasion when Julie came to the front door of her house and asked whether if she were placed under subpoena she would be willing to give evidence for them. She said that she would not.
59 Julie called at her house again in November 1989. She had papers and told Ms Miller that she would fill her in on how the case was going. Ms Miller identified the document marked 27 for identification as a paper shown her by Julie. That document, which came from the car documents, became exhibit 0. It was a two-page handwritten draft, the first page of which set out the movements of someone who met the appellant at a particular place in Goulburn at 10.08 am on 23 May 1989 and at 11 or 11.10 am on 25 May 1989, four and two days respectively before the appellant’s arrest. It is not altogether clear how, but the document may have had something to do with what the appellant thought the police might say he was doing at those times. The draft states and repeats that the person it concerns never bought drugs from the appellant and did not know him to be involved with drugs.
60 Ms Miller said that she was not interested.
61 The woman Julie made a final attempt about six weeks afterwards and asked her if she had changed her mind. Ms Miller said that she had not.
62 The appellant called no evidence and gave an unsworn statement. Dealing with evidence in the Crown case other than that of Sergeant Nomchong, he denied knowing or ever speaking to Mr Worthington. He denied making any admissions to police officers. He admitted that he had picked up papers that Detective Inspector Casey had handed him because he was curious and wanted to know what police were trying to frame him with. That explained how his fingerprints got onto the cell documents. He denied typing or writing any of the conspiratorial documents. He admitted that there was a typewriter in his cell, denied ever having touched it and commented that there was no evidence of his fingerprints on it. He denied that documents were taken from his cell. He denied that the Judges Notes notebook was his but he did not deny that Mr McCrudden had asked for its return.
63 Notwithstanding the warning the jury would have to be given about the caution with which they should treat the evidence of Mr Worthington as a co-conspirator, the Crown case was overwhelming, even without the evidence of Sergeant Nomchong. There was a consistent correspondence between the documents tendered. The jury would be entitled to regard them as having common authority because the writing on them looked the same and because they carried common themes. They were linked to the appellant in several independent ways. Some were shown by the appellant to Mr Worthington. Others bore the appellant’s fingerprints. Others were written in the same hand as the selected pages of the Judges Notes notebook, which was found at the appellant’s house. The appellant admitted writing others.
64 The evidence independent of the documents showed that the appellant and Ms Dufty systematically tried to recruit whoever they could to concoct evidence by supplying them with draft statements of evidence and offering them money.
65 There was no sworn evidence to contradict the evidence adduced in the Crown case, so it might be the more readily accepted.
66 Counsel for the appellant was invited in this Court to analyse the evidence independent of Sergeant Nomchong so that it might be ascertained to what extent, if at all, the Crown case might be weakened if he were discredited. Counsel submitted instead that there was no contested evidence that could be regarded as independent of Sergeant Nomchong because he had contrived and conspired to have the appellant falsely accused by devising a scheme, recruiting police officers and other witnesses and forging such documents as were necessary to support the charge of conspiracy. It was acknowledged that such a submission required that Sergeant Nomchong had not only recruited and organised the witnesses whose evidence was likely to be contentious and persuaded them to give false evidence, but had also himself written all the documents said to be in the hand of the appellant.
67 Of the documents tendered, forty-six comprised handwritten pages, and there were in addition typed pages bearing handwritten insertions, annotations and emendments. Besides, there were twenty-four car documents and twenty-three cell documents that were not tendered.
68 None of the pages of the Judges Notes notebook was tendered. The book itself was not tendered. It is not known how many pages it contained, but it is known that pages 72, 105, 106, 115, 117 and 127 contained handwriting. There seems no reason why blank pages should have been left in the book as it was filled up.
69 The Judges Notes notebook was in court at trial. Given that it was connected to the appellant because it came from his briefcase, defence counsel would have been at pains to reveal, if it were the fact, that it contained handwriting apparently different from that on the pages selected for comparison with other documents. That was not done. The proper inference is that at least 127 pages of that book were apparently written in the same hand.
70 The forty-six handwritten pages tendered and the typed pages which bear handwriting all appear to bear the same handwriting.
71 Altogether over two hundred pages were identified, and it fairly appears that one person apparently wrote them all.
72 It seems an extraordinary proposition that Sergeant Nomchong was that person. If an experienced police officer like him wished to concoct evidence and have the appellant falsely convicted and sentenced, there must have been many easy ways for him to do so. The appellant suggested no reason why Sergeant Nomchong should have gone to such lengths or how he might have been capable of producing so many documents of such apparent consistency. Heracles himself could not have laboured longer.
73 There was no evidence that Sergeant Nomchong was at the centre of the case, forging all the documents and organising and corrupting the many witnesses he would have had to influence. All there was was a bare submission from the bar table about his alleged role. In my opinion there is no proper basis for a submission that the jury’s impression of the evidence other than that of Sergeant Nomchong should rise or fall according to their impression of him.
74 It seems to me in any case that there are sound reasons for regarding Sergeant Nomchong’s evidence as reliable. He was not stationed at Goulburn and had nothing to do with the investigation which gave rise to the arrest of the appellant.
75 He said that his mother and the appellant lived together as though married between 1970 and 1980 and that he used to visit them during that time. Most of the visits were to a property near Boorowa which they were managing. When he visited he would stay with them. Sergeant Nomchong’s younger brother Anthony was living with them for part of that time, as was the appellant’s son Wayne.
76 When Sergeant Nomchong visited them, he would spend time with the appellant. He saw him writing on a number of occasions. The appellant would make notes in a notebook. He would leave notes for Sergeant Nomchong’s mother, sometimes to indicate his comings and goings to and from Boorowa and sometimes concerning the management of the property. Sergeant Nomchong used to read those notes and in that way became able to recognise the appellant’s handwriting.
77 The relationship between the appellant and Sergeant Nomchong’s mother came to an end in 1980 and she moved away from the district. She wanted nothing more to do with him and did not give him her address. The appellant knew the address of Sergeant Nomchong’s brother and began to send him letters intended for his mother. He handed them unopened to Sergeant Nomchong. Sergeant Nomchong opened the envelopes and read the letters. He recognised from the writing that they were from the appellant. He did not pass the letters on to his mother but kept them.
78 Five envelopes became exhibit CC. The five letters which they had contained became exhibits DD, EE, FF, GG and HH. Two of the envelopes bore 1980 postmarks. A third bore an advertisement for Australian National Stamp Week 1980. It was not suggested on appeal that the date stamps were not genuine or that the Australian National Stamp Week stamp was not genuine.
79 If the appellant’s argument were correct it would follow that Sergeant Nomchong must have received the envelopes in 1980, kept them by some fortunate chance and used them again in 1989 in order to concoct evidence against the appellant by copying the writing on them and forging more than two hundred handwritten pages. Alternatively, he must have forged the envelopes themselves in 1980 and posted them. Both propositions are untenable.
80 There are other reasons why the letters produced by Sergeant Nomchong appear authentic. They, their envelopes and the other two hundred or so documents appear to have been written in the one hand, something a reasonable jury would probably conclude. Sergeant Eastman said nothing to the contrary. He said that two of the letters, exhibits DD and EE, could have been written by the person who wrote exhibits E, F, G, N, O and UU, which were car documents, and exhibits XX and ZZ, which were cell documents, as well as cell documents numbers 12 and 28.
81 Nor do I think that the proposed fresh evidence would be capable of informing a jury’s view about the credibility of Sergeant Nomchong. If he trumped up a case against the appellant he must have decided to do so in 1989, for that is when many of the police officers prepared their statements and took other steps which could not be changed. The offence of which Sergeant Nomchong was found guilty was committed in November 1994, about five years later. In a judgment of this Court in a Crown appeal against his sentence McInerney J remarked that when he committed the offence Sergeant Nomchong had been a police officer for some thirty years and that the material before the sentencing judge indicated that in many respects his police service had been outstanding and meritorious, with the exception of one minor episode, which had been dealt with administratively. A number of senior police officers gave evidence at the trial testifying to his good character, about which there was no dispute by the Crown.
82 This Court has previously remarked on the difficulty that arises when a jury is asked to infer dishonesty in a witness at one time by reference to later events, especially where the witness appears generally to have been of good character. R v Robinson [1999] NSWCCA 186; R v Johns [1999] NSWCCA 206. In my opinion it would not be open to a jury to infer from Sergeant Nomchong’s dishonest conduct in 1994 that he was dishonest in 1989.
83 Counsel for the appellant conceded that Mr Haken’s allegations had little substance taken by themselves. I think that that was a proper concession to make. It is not easy to see how the evidence could be adduced from Mr Haken, since it would go not to any issue at the trial but only to the credibility of Sergeant Nomchong. There was some suggestion that it might be admissible as tendency evidence. However, I think that the material has such little weight as not to justify a resolution of such evidentiary problems.
84 In my opinion it is not reasonably possible that a jury having the benefit of the fresh evidence might acquit the appellant. I would dismiss the appeal.
IN THE COURT OF
CRIMINAL APPEAL
60567/99
SHELLER JA
Thursday, 16 December 1999
BARR J
BELL J
85 BELL J: I agree with Barr J.REGINA v Patrick HUDD
JUDGMENT
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