R v McCormack

[2003] NSWCCA 340

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v McCORMACK [2003]  NSWCCA 340

FILE NUMBER(S):
60455/02

HEARING DATE(S):            29 October  2003

JUDGMENT DATE: 29/10/2003

PARTIES:
Regina  (Crown)
Tyrone Mark McCormack  (Appellant)

JUDGMENT OF:      Spigelman CJ O'Keefe J Greg James J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        93/31/0098

LOWER COURT JUDICIAL OFFICER:     McGuire DCJ

COUNSEL:
D Yehia  (Appellant)
M Grogan  (Crown)

SOLICITORS:
D Barrow  (Appellant)
Director of Public Prosecutions  (Crown)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900 s 474C

DECISION:
Conviction quashed, verdict of acquittal entered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60455/02

SPIGELMAN CJ
O’KEEFE J
GREG JAMES J

Wednesday 29 October 2003

REGINA  v  Tyrone Mark McCORMACK

Judgment

1. SPIGELMAN CJ:  On 25 October 1993 the Appellant was found guilty of knowingly taking part in the supply of cannabis resin in a trial before McGuire DCJ and a jury.  The Appellant was sentenced to a minimum term of one year, six months from 25 October 1993 with an additional term of six months.

2. The Appellant appealed to this Court against this conviction.  His appeal was dismissed - Regina v Tyrone Mark McCormack (unreported, NSW Court of Criminal Appeal, 28 July 1994).

3. In 1996 evidence was led to the Royal Commission into the New South Wales Police Service that, apart from one police officer, all the police officers who gave evidence at the Appellant’s trial were corrupt.  Each was a member of the Gosford Drug Squad.

4. On 6 June 2002 the Appellant petitioned her Excellency Professor Marie Bashir AC, Governor of New South Wales, for a referral of these proceedings to this Court. 

5. On 23 September 2002 the Attorney General of New South Wales referred this matter to this Court pursuant to s474C(2) of the Crimes Act 1900.

6. The evidence called by the Crown and by the Appellant is summarised in the affidavit of the Appellant’s solicitor, Mr David Barrow.  There is no need to set out the evidence in detail. 

7. It is quite clear that, at the trial, the crucial issue in the case was whether or not the police were giving honest testimony.  This appears from the summing-up.  It also appears from the reasons for judgment in this Court dismissing the appeal.

8. Evidence was led at the Royal Commission into the New South Wales Police Service to the effect that officers Ison, Vicary, Whittaker and Eade were corrupt and, in particular, there was evidence that these officers fabricated evidence against suspects.  It is significant that evidence of this character was the critical issue in the Appellant’s trial.

9. In the circumstances, I am satisfied that there has been a miscarriage of justice and that, accordingly, the conviction must be quashed.

10. The orders I propose are that the Appellant’s conviction is quashed and direct a verdict of acquittal.

11. O’KEEFE J:  I agree.

12. GREG JAMES J:  I also agree.

13. SPIGELMAN CJ:  The orders are as I have indicated.

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LAST UPDATED:            25/11/2003