R v O'Sullivan - [2002] NSWCCA 98

No judgment structure available for this case.

Reported Decision:
(2002) 128 A Crim R 371

New South Wales

Court of Criminal Appeal

CITATION: O'SULLIVAN v THE QUEEN [2002] NSWCCA 98

FILE NUMBER(S): CCA 60781/01

HEARING DATE(S): 27 February 2002
28 February 2002

JUDGMENT DATE:
28 March 2002

PARTIES :

Michael John O'Sullivan - Applicant
Crown - Respondent

JUDGMENT OF: Sheller JA at 1; Grove J at 48; Simpson J at 52

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : Gosford 1992

LOWER COURT JUDICIAL
OFFICER : McGuire DCJ

COUNSEL : E Conditsis - Applicant
D Woodburne - Crown

SOLICITORS: Conditsis & Associates - Applicant
S E O'Connor - Crown

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - whether confession was voluntary - plea of guilty - fresh evidence - Police Royal Commission - miscarriage of justice - convictions quashed - acquittal

LEGISLATION CITED: Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Criminal Appeal Act 1912
Royal Commissions Act 1923

CASES CITED:
Johns (1999) 110 A Crim R 149
Mickelberg v The Queen (1989) 167 CLR 259
R v Boyd [2000] NSWCCA 110
R v Liberti (1951) 55 A Crim R 120
R v Murphy [1965] VR 187
R v Forde [1923] 2 KB 400
Davies (NSWCCA, 16 December 1993, unreported)
Cincotta (NSWCCA, 1 November 1995, unreported)
Maxwell v The Queen (1996) 184 CLR 501
Vastag (NSWCCA, 12 May 1997, unreported)
R v Pavic (1998) 151 ALR 98
R v Fernando (NSWCCA, 14 April 1999, unreported)
R v Turner [1970] 2 QB 321
McKinney v The Queen (1991) 171 CLR 468)

DECISION: 1 Appeal upheld; 2 Conviction on each charge quashed; 3 Direct that a judgment and verdict of acquittal be entered on each charge.

60781/01

SHELLER JA
GROVE J
SIMPSON J

O’SULLIVAN v THE QUEEN

The appellant was convicted in 1992 in the Local Court on charges of supplying a prohibited drug and self administering a prohibited drug. The only evidence on which the convictions were based was the appellant's confession.

The appellant pleaded guilty to the charges in the Local Court and then lodged an all grounds appeal. In the District Court he ultimately abandoned his appeal against conviction and proceeded only against the severity of his sentence. Judge McGuire confirmed the convictions but set aside the sentences and re-sentenced the appellant.

In July 2001 the appellant filed an application under ss474D and 474E of the Crimes Act 1900. Section 474D(1) enables a convicted person to apply to the Supreme Court for an inquiry into his conviction or sentence. The matter was referred to the Court of Criminal Appeal in order to address fresh evidence which arose from the Police Royal Commission.

The integrity of the two police officers who arrested and charged the appellant was challenged in the Police Royal Commission. One of the officers was later convicted of inciting, soliciting and procuring the supply of prohibited drugs and knowingly giving false evidence. The appellant claimed that he had been coerced by the officers into making a confession, and his conviction depended upon the acceptance of that confession.

The appellant argued that his conviction on each charge resulted in a miscarriage of justice. He claimed that he had only pleaded guilty after determining that the confession, although given under threat, could not effectively be challenged. The pleas of guilty were made in the hope of receiving a reduced sentence. The basis of the appellant's argument was that on the balance of probabilities the alleged confession leading to the convictions was so tainted that there was a significant possibility that an innocent person had been convicted.

HELD (per Sheller JA, Grove and Simpson JJ concurring):

1. The fact that the appellant pleaded guilty to the charges was a matter of significance: see R v Boyd [2000] NSWCCA 110. If the appellant had not pleaded guilty partly, if not wholly, through a consciousness of guilt, then the Court will entertain an appeal against a conviction, notwithstanding the plea of guilty: R v Liberti (1991) 55 A Crim R 120.

2. A legal practitioner advising the accused is bound to emphasise that the accused must not plead guilty unless he has committed the acts constituting the offence charged. Having considered the advice, the accused must have a complete freedom of choice whether to plead guilty or not guilty. The judge or magistrate should never tell the accused that on a plea of guilty he or she would impose one sentence but on a conviction following a plea of not guilty a more severe sentence would be imposed. This can place undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential.

3. This case can be distinguished from R v Boyd on two bases. First, because the evidence from the Police Royal Commission was fresh evidence not available to the appellant at trial and second, because the confession was not unequivocal and was given under threat.

4. The test for determining an appeal where a guilty plea had previously been entered is whether the circumstances reveal a miscarriage of justice. The appellant bears the onus of showing the existence of that miscarriage: Davies (Court of Criminal Appeal, 16 December 1993, unreported); Cincotta (Court of Criminal Appeal, 1 November 1995, unreported).

5. The plea of guilty was induced not by a consciousness of guilt but by a recognition that the confession, although given under threat, could not effectively be challenged and that conviction was inevitable.

6. The evidence disclosed that at least one of the arresting police officers was prepared to act corruptly in the performance of his duties in criminal investigations. Thus, the Court could not be satisfied beyond a reasonable doubt that the confession was given voluntarily. The appeal was upheld, the convictions on each charge quashed and a verdict of acquittal on each charge entered.

Per Grove J:

7. A basic requirement of the criminal justice system is that no one is to be convicted except for specific offence. The law does not permit conviction by deduction that a person must have committed an offence of category, some time and/or somewhere.

Legislation
Crimes Act

1900

Drug Misuse and Trafficking Act

1985

Criminal Appeal Act

1912

Royal Commissions Act

1923

Cases Cited
Johns

(1999) 110 A Crim R 149

Mickelberg v The Queen

(1989) 167 CLR 259

R v Boyd

[2000] NSWCCA 110

R v Liberti

(1951) 55 A Crim R 120

R v Murphy

[1965] VR 187

R v Forde

[1923] 2 KB 400

Davies

(NSWCCA, 16 December 1993, unreported)

Cincotta

(NSWCCA, 1 November 1995, unreported)

Maxwell v The Queen

(1996) 184 CLR 501

Vastag

(NSWCCA, 12 May 1997, unreported)

R v Pavic

(1998) 151 ALR 98

R v Fernando

(NSWCCA, 14 April 1999, unreported)

R v Turner

[1970] 2 QB 321

McKinney v The Queen

(1991) 171 CLR 468)

ORDERS

1. Appeal upheld;

2. Conviction on each charge quashed;

3. Direct that a judgment and verdict of acquittal be entered on each charge.

**********

60781/01

SHELLER JA
GROVE J
SIMPSON J

Thursday, 28 March 2002

O’SULLIVAN v THE QUEEN

Judgment

1 SHELLER JA:

Introduction

Crimes

Drugs Misuse and Trafficking Act

2 When the appeal was called on for hearing in the District Court the appellant, who had pleaded guilty to both charges in the Local Court, abandoned his appeal against conviction and proceeded only against the severity of his sentence. Judge McGuire confirmed the convictions but set aside the sentences and re-sentenced the appellant on the first charge to a sentence deferred on condition that the appellant entered into a recognizance for a period of two years in the sum of $1,000 and in respect of the second charge to imprisonment of ten months by way of periodic detention. The deferred sentence was presumably in substitution for that imposed by the Magistrate of six months imprisonment. The appellant has served the sentences imposed.

Referral to the Court of Criminal Appeal

3 On 4 July 2001 the appellant filed an application under ss474D and 474E of the Crimes Act. Section 474D(1) enables a convicted person to apply to the Supreme Court for an inquiry into his conviction or sentence. Section 474E provides, so far as presently material:

“(1) After considering an application under section 474D or on its own motion:

(a) the Supreme Court may direct that an inquiry be conducted by a prescribed person into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.”

4 The appellant’s application came before Hulme J, who was satisfied that there was a doubt or question as to the appellant’s guilt and that it was appropriate to refer the case to the Court of Criminal Appeal. His Honour referred to the Court of Criminal Appeal the following convictions and sentences imposed upon the appellant:

Those made and imposed by Mr Butler LCM on 17 January 1992 in respect of [the two charges and]… those made and imposed by Judge McGuire on 5 June 1992 in respect of [those] charges.

5 In the course of his reasons for judgment Hulme J noted that by letter of 10 August 2001 the Crown Solicitor had indicated that the Attorney-General supported the application that the relevant convictions be referred to the Court of Criminal Appeal.

Appeal to the Court of Criminal Appeal

6 Before this Court the appeal is to be dealt with in the same way as if the convicted person had appealed against the conviction under the Criminal Appeal Act 1912 and that Act applies accordingly; s474L. In Johns (1999) 110 A Crim R 149, Greg James J, with whose judgment Dunford J and Smart AJ agreed, explained the historical emergence of and the Court’s practice in dealing with the statutory power to review convictions and sentences now found in the form of ss474D and 474E.

7 Greg James J referred to Mickelberg v The Queen (1989) 167 CLR 259. At 311 Toohey and Gaudron JJ considered the function which was imposed upon the Court of Criminal Appeal by the Attorney-General’s reference of the “whole case” as against the appellant. Their Honours said:

Ratten

R v Gunn [No 1]

Allen, Allen & Winter

R v Gunn [No 2]

R v Chard

Re Mathews and Ford

R v Chard

R v Gunn (No 2)

‘In a case in which there has already been an appeal which has been disposed of on the merits ….the court, in the case of a reference such as the present, is not called upon to re-adjudicate upon any ground of appeal which has been already heard and disposed of, unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable.’

The words of s21(a) of the Code, so far as they require ‘the whole case…..[to] be heard and determined’, permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings.”

8 In this appeal it is significant that the appellant pleaded guilty to the charges both in the Local Court and in the District Court and was sentenced on that basis. In R v Boyd [2000] NSWCCA 110 Powell JA, who gave the judgment with which Hulme and Dowd JJ agreed, referred to R v Liberti (1991) 55 A Crim R 120 where Kirby P, with whom Grove and Newman JJ agreed, said at 121-2:

Forde

Gower v Ross

Stewart

Foley

(a) that the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or

Caruso

O’Neill

Sagiv

Forde

9 In R v Murphy [1965] VR 187, Sholl J referred to the principles stated in R v Forde, which Powell JA summarised, and said at 190-191:

R v Forde

.

In the present instance, the applicant’s case is that she pleaded guilty because of considerations irrelevant to the actual question of her guilt or innocence, and that she is in fact not guilty. Mr Neesham, in his admirable address on her behalf, put it that it would be sufficient if the question of her guilt or innocence was an issuable matter. I should be disposed to agree that if she pleaded guilty through a misapprehension of the law, eg a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial.”

10 In Boyd, Powell JA, after considering the relevant authorities, was not persuaded there had been a miscarriage of justice.

11 In Davies (Court of Criminal Appeal, 16 December 1993, unreported), Badgery-Parker J said:

“The test is whether the circumstances revealed a miscarriage of justice…. If the integrity of the plea is bona fide questioned because it appears that the person who entered the plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Sholl J, ‘an issuable question of guilt’ – to put it more simply, if there is a real question to be tried …[Ii]f the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial.”

12 In Cincotta (Court of Criminal Appeal, 1 November 1995, unreported) Hunt CJ at CL, with whom Grove and Allen JJ agreed, said:

“A person who has pleaded guilty will be permitted to withdraw that plea where it has been shown that a miscarriage of justice has occurred. The applicant for such permission bears the onus of showing the existence of that miscarriage. It will be shown to exist where, for example, the plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty. There must be shown to be some circumstances which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt.”

13 In Maxwellv The Queen (1996) 184 CLR 501 at 511, Dawson and McHugh JJ said:

“The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake, or even the desire to gain a technical advantage.”

14 On this appeal the appellant has put before the Court and relies upon fresh evidence. In Mickelberg at 273 Mason CJ said:

Gallagher v The Queen

15 On other occasions the Court has been called upon to consider fresh evidence in the form of transcripts of evidence of witnesses before the Police Royal Commission. Sometimes that evidence directly contradicts or casts doubt upon evidence given at a criminal trial. Sometimes the evidence goes to the credit or credibility of witnesses who gave evidence at the trial. In Vastag (Court of Criminal Appeal, 12 May 1997, unreported) Levine J, with whom Studdert J agreed, said at p26:

“Just as the Court should not be quick to allow an appeal on a ‘fresh evidence’ ground merely because police officers involved in a given trial have been adversely referred to in the Royal Commission, nor, in my opinion, should the Court be quick to dismiss a ‘fresh evidence’ appeal by reason of the absence of coincidence between the adverse references in the Royal Commission and the specific subject matter of the trial under appeal. What can be no more than a guide may be stated thus: material from the Royal Commission should be considered to determine whether it is capable of disclosing conduct or, possibly a reputation therefore, pointing to a preparedness in the officer to act corruptly, at least by dishonesty, in his performance of his duties in criminal investigations. The closer the suggested adverse conduct is in the Royal Commission material to that which is relevant to the particular trial the more persuasive will be the position of an appellant in an appeal of this nature.”

16 Meagher JA dissenting described three categories of appeal which might come under the heading ‘Fresh Evidence – Police Royal Commission Material appeal”: (a) the first where the police evidence in the Royal Commission actually involved an admission by police officers concerning the very facts of the case under appeal; (b) where the police evidence does not involve any admissions concerning the facts of the case but does involve admissions of misconduct in other matters; and (c) where there was no question of any admission about anything but that the police officer had been made the subject of adverse cross-examination or adverse reference in the Royal Commission. In the first two categories if the admissions were of any substance or sufficient gravity the appeal should be upheld and a new trial ordered. In the third, the appeal should not be allowed.

Evidence in Support of Appeal

17 This appeal is supported by an affidavit by the appellant of 7 February 2002. According to that affidavit the appellant was arrested on 15 November 1991 by two police officers, Eade and McClelland. The police facts sheet shows the informant as McClelland, with the rank of Detective Sergeant, and one of the arresting officers as Eade, with the rank of Detective Sergeant. Under the heading “Full Facts” appears the following:

“The defendant admitted that he was the person in question and that he had been selling small amounts of heroin over the past three weeks to support his heroin addiction. He was later interviewed at the Gosford Drug Squad and further stated that he had been sacked from his employment as a laundry driver because he went off sick with a sore knee. It was from then he started to sell small deals of heroin. Admitted selling 3 x $50 deal and 1 x $100 deal to friends on the 14/11/91 and last using heroin himself on the same day. When Police searched the premises there was no more heroin left and once a week he would buy about half a gram for $150 and divide it into the small deals.”

18 In his affidavit, paras 5-8, the appellant set out conversations that he had with Eade and McClelland during the course of which he was told that unless he wrote a statement he was going to “wear some heroin”. At one point Eade threw a bag on the kitchen table in front of him and said: “That is 10 grams of heroin. You’re going to wear it if you don’t write a statement.” Later when asked by the appellant what he had to write on the statement Eade replied, “You’ve got to write that you sold 2 $50 foils and a $100”. The appellant was told he could write it any way he wanted to as long as he put in the two 50’s and 100. The appellant wrote the following statement:

“At lunchtime today I was visited by the police and questioned by them. I was asked if my name was Michael I said yes. They asked if I was selling smack. I told them that I sold sum [sic] to a friend, 3-50s and a 100 to another friend yesterday

Normally I buy ½ a gram for $150.00 and sell some, and use the rest for myself. But this only happens about once a week for about 3 weeks

(Sgd) M. O’Sullivan

Witness:……………. Signature: (Sgd) M. O’Sullivan”

19 The evidence against the appellant on both charges was the confession. The appellant’s conviction depended on an acceptance of this confession. The appellant told the Police Royal Commission that he only made the signed statement because of the threats made repeatedly to him by the police officers who had arrested him.

20 The appellant annexed transcript of the evidence he gave before the Police Royal Commission on 22 January 1996 in which he recounted the events leading up to and the circumstances in which the confession was made.

“A. Two people, a lady and a man, walked down, coloured T-shirts and shorts on, walked down past me – I was working on my car so I didn’t take any notice – walked in the house and then later came back out and said who she was and said come inside. I then came inside. By then they were raiding the house – had about six or eight detectives there. I sat down, they took Valerie [his wife] upstairs.

COMMISSIONER: Q. Before we go any further I want to understand the situation. These two people you said came down past you wearing T-shirts, one of them came and spoke to you? A. Yes.

Q. I think that person had been inside the house, did you say, before that? A. Yes, she came back out and asked me to come back into the house.

Q. Did she introduce herself at that point and say A. No.

Q. What did she say to you? A. Just, ‘Come inside.’

Q. You didn’t know whether at that stage she was police or not? A. Oh, I knew.

Q. You knew she was police? A. By then I did, yes.

Q. How did you know that? A. She looked like a copper.

Q. You said you went into the house and she and this other person were there along with a lot of other police? A. Yes, they all came in. As soon as them two walked in, then just police came from everywhere.

Q. I want to get back to see how this happened. You said you were working on your car and these two people came past? A. Yes. I didn’t take any notice of them. I had me head down in the engine of the car.

Q. You say they were accompanied by other police when they came down past you? A. No, they came by themselves and then the woman came back out and said, ‘Come inside’, and I looked up and then there was other detectives coming down and then we walked in.

COMMISSIONER: Thank you. All right.

MS BELL: Q. Once you walked inside your house what happened? A. I was told to sit down. I sat down while they searched the house. They found a few grams of hashish; that was all they could find.

….

Q. All right. Did you remain in this area of the living room where you say there was the table and the few grams of hash? A. Yes.

Q. What happened? A. Well, they just kept looking around, they searched around me, around the lounge room area. When they couldn’t find anything a Detective McClelland asked me to go into the kitchen with him, because at that time Val had gone upstairs – was taken upstairs by Detective Eade and Wendy had came downstairs. I went into the kitchen. He started asking me questions about drug dealing.

Q. This is Detective McClelland? A. Yes.

Q. What sort of questions was he asking you? A. Just saying, ‘You’re dealing a lot of heroin up here.’ I said I wasn’t. I said, ‘All we do is a bit of smoko’ and he said ‘I’ve heard otherwise, that you’re doing heaps’, and I just denied it.

Q. By the way, if I could just stop you there for a moment: What factually was the position? Were you dealing in heroin at that time? A. I was scoring for myself and two other people at the time. I wasn’t actually going around selling. I was just getting people’s money, we were going down to Sydney and getting on, just coming back and splitting it, selling maybe one foil or two foils out of it. But mainly it was just me and me mate.

Q. You were part of a small group? A. Yes.

Q. You purchased heroin jointly? A. Yes, and then we split it.

Q. For the needs of yourself and your friends? A. Yes.

Q. You might be the one who travelled to Sydney to pick it up? A. No, we all went down.

Q. You might sell some in excess of the amount that you purchased in Sydney? A. I’d sell, if anything, I’d sell 50 out of it, but most of it would be for myself, yes.

Q. When you say, ‘I’d sell 50’, you’re talking of a $50 deal?

Q. Now if I could take you back to your conversation in the kitchen with Detective Sergeant McClelland on the day of your arrest, you say that Detective Sergeant McClelland put to you that he had information that you were dealing in a quite substantial way in heroin? A. Yes.

Q. You denied that, did you? A. Yes.

Q. Did you tell him you were dealing at all in it? A. No.

Q. What happened next? A. He kept on asking – saying – what did he say? He just put it to me that I’d be arrested if I didn’t admit to it. Then he called Detective Eade. Detective Eade came down and said if you didn’t ‘write a statement you’re going to wear some heroin’ and I said, ‘I’m not writing a statement’ and Detective Eade then pulled out, out of his right-hand pocket, what he said was 10 grams of heroin, it looked to me like about half an ounce, threw it on the table and said, ‘You’re going to wear it if you don’t write a statement.’ He then sent me back out into the lounge room to think about it.

Q. Just directing your attention to this object that Detective Sergeant Eade produced from his right-hand pocket, what was it wrapped in? A. It was in sealable lunch bag.

Q. Could you see through the sealable bag to its contents? A. Yes, yeah.

Q. It appeared to you to be heroin? A. Yes, white powder.

Q. You say that Detective Eade told you that it was 10 ounces? A. Yes. 10 grams, sorry.

Q. Sorry, 10 grams? A. Yes.

Q. And to your mind it looked as though it were half an ounce? A. Yes.

Q. You considered yourself capable of distinguishing -- A. Oh, yes, yes.

Q. – a packet with 10 grams from a packet with half an ounce?

Q. You were told to think about it and told to go out into the lounge room? A. Yeah, ‘Sit back down’.

Q. What happened then? A. They then continued to search the house. Then when they’d finished, when they couldn’t find anything, they all just packed up, brought Val back down, said they were taking Val and they told Val that they were taking me, and Val looked and said, ‘Why are you taking Michael for?’ and Detective Eade said, ‘He knows what we’re doing, what it’s all about.’ And I was placed in one car and Val was placed in another car and we were taken down to be charged.

Q. To which police station? A. Gosford.

Q. You say that the police found nothing in your home that day apart from the few grams of hashish? A. Yes.

Q. Did you have any heroin on you at all? A. Yes, it was in me sock.

Q. How much heroin did you have on you? A. I had about $100 foil.

Q. Was that discovered by the police at any time that day? A. No, I was never searched.

Q. What happened when you got to Gosford police station? A. I went upstairs with three detectives, Detective McClelland and Detective Eade and some other detective. We walked up, went into a room. I said, just to see what was going on, I said, ‘Well, what can be done about this?’ and they said, ‘What information have you got in’ and they said, ‘We want you to load someone up, personally load them up.’ I said, ‘Yeah, no thanks, I’ll take me chances.’ Detective Eade then left and he was talking to Valerie at the time and this other detective, I don’t know his name, said, ‘Are you going to write a statement?’ I said, ‘No, I’m not going to write a statement’. Then Detective Eade came back into the room, shut the door, then pulled out the half ounce again and said, ‘I’m only doing this once more. If you don’t write a statement now you’ll be charged with the 10 weights.’ I then asked him what I had to write on the statement and he said, ‘You’ve got to write you sold two $50 foils and 100, I think it was, or something like that. I said, ‘Can I write it, I want to write it’. He…….. and then he went back out.

Q. At the time when Detective Eade then produced this package with the white powder, that is in the interview room at Gosford police station, who else was present in the room? A. Detective McClelland and one other detective I don’t know of.

…

Q. You agreed to write out a statement whilst you were in the interview room at the police station? A. Yes.

….

Q. Do you see before you a copy of the statement that you prepared at the police station on the day of your arrest? A. Yes.

Q. You say that before making that statement you asked Detective Sergeant Eade what you should include in the statement and he gave you, as it were, an outline? A. Yes.

Q. Do you suggest that he dictated this statement or did you use your own words in formulating the statement? A. No, he just said I had to put the three 50s and the 100 in the statement; I could write the statement any way I wanted.

Q. All right. Do you agree that at the bottom of the statement there are some typed questions and answers and included amongst those is a question:

Has any inducement, threat or promise been held out to you to make this statement?

And you answered, ‘No, no’? A. Yes.

Q. Who was present in the room when you answered no to that question? A. The three detectives.

Q. What led you to make the statement? A. The half ounce. I didn’t want to spend five years in gaol, which I would have spent.

Q. Once you had made out that statement what happened? A. I was charged. Oh, no, first Detective Eade found 1200 upstairs in one of my closet drawers. He then found that. He said if I made the statement I’d get the money back. When I made the statement he came back and said, ‘I keep my deals’ and pulled the money out in an envelope and handed it to me and I was charged.

Q. Was the full sum of $1200 in the envelope? A. Yes.

Q. Where did you say that cash had been secreted in the home? A. Up in the wardrobe in one of the drawers, in the sock drawer.

Q. What did that money represent? A. Sorry.

Q. What did that money represent – where did you get it from? A. That was my money for the drugs.

Q. Were any questions asked of you about where you got that money from? A. No.

Q. When did you first learn that the police had found the money in the course of their search? A. Downstairs in the kitchen.

Q. How did you come to learn that they’d found it? A. Detective Eade said he’d found it.

A. Did he show it to you then? A. No, I don’t think so. I don’t remember.

Q. Did he say how much money he’d found? A. No, not that I know of.

Q. But in any event the money that Detective Sergeant Eade handed to you in the envelope at the Gosford police station represented the full amount of money that you had had stored in the sock drawer? A. Yes.

Q. About how long were you at the police station before you made that handwritten statement? A. About half an hour.

Q. Then after you had made it, Detective Eade handed you back your money. Were you then charged? A. Yes.

Q. And were you released on bail? A. Yeah, taken downstairs, that was the other part; I was worried – I had a lot of fines – and I wouldn’t get out on the fines and he said, ‘No, no worries, just go downstairs be charged and let straight out’ and I went down and I was given seven days on the fines and let out.

Q. What about your wife? A. Yeah, I met her downstairs; she got processed before me. That’s when I told her what had happened downstairs.

Q. When you say – A. Then she left.

Q. When you said you told her what had happened, what did you tell her? A. I said, ‘They tried to load me and got me to write a statement saying I was dealing’. ”

21 The appellant went on in his evidence before the Police Royal Commission to deal with the manner in which the charges subsequently came before the Local Court at Gosford where he was sentenced on 17 January 1992 to six months imprisonment. He gave the following evidence:

“Q. You pleaded guilty before the magistrate? A. I didn’t want to, but the Legal Aid solicitor was supposed to say that I wasn’t dealing, that I was just scoring for friends and she just didn’t say a word and just sent me down the river and told me not to say a word, otherwise I wouldn’t get out on bail. So I didn’t say a word, I didn’t say much and I didn’t get bail either, so it didn’t matter.

Q. You lodged an appeal against your conviction? A. Yes. The magistrate, though, said in front of everyone he didn’t care how the police tricked me into signing a statement, he said I was a drug dealer and that was it and sentenced me, or words to that effect.

Q. When you say that the magistrate said that he didn’t care how you’d been tricked into signing the statement, you say he actually said words to that effect in the open court? A. Yes, he just said I was a drug dealer, that was it.

Q. Do you remember what led to the magistrate saying words to that effect? A. Because I was saying that the statement was false and he said, ‘Well, we’ll get the police in to verify it’ and I said, ‘That’s no use’ and he just rambled on and said that and then I was sentenced, I was out of the place.

Q. Do you remember saying those things about the statement to the magistrate on the day that you were sentenced to six months imprisonment? A. Yes.”

22 In his affidavit the appellant said that at the time he formed the view that the evidence of the police would be preferred to his evidence and that he did not have any prospects of successfully defending the charges in the Local Court. He had signed the statement of confession after Eade made threats against him. He had obtained legal advice and formed the view that the signed confession and the corroborated evidence of the police would negate any chance he had of defending the charges. In 1998 he instructed his then solicitor, David Barrow, to obtain a transcript of the proceedings in the Local Court on 17 January 1992. Apparently it has not been possible to locate that transcript.

23 The appellant lodged an all grounds appeal to the District Court pursuant to the former s122 of the Justices Act and applied for bail which was ultimately granted in the Supreme Court. His appeal came for hearing before Judge McGuire on 5 June 1992. He said that Eade was present at the District Court at Gosford on that date when his matter was listed for the appeal hearing. “Mr Eade did not say anything to me at that time but he was staring at me outside the court.” The appellant abandoned his appeal against conviction and proceeded with an appeal against the severity of the sentence only. In his affidavit he deposed:

“My then solicitor, Mr Bruce Brown advised me, that I didn’t have any chance of succeeding in the appeal against the conviction. He said that the Judge hearing the appeal would not accept my version of events because the police officers would give evidence disputing my version of the events surrounding my arrest and charging.”

24 According to the transcript of 5 June 1992 in Gosford District Court the appellant gave the following evidence:’

“B [Mr Brown, solicitor appearing for the appellant] Now you admitted to the police that you obtained heroin which you had shared with friends upon their approach to you?

MO [Michael O’Sullivan] Yes.

B Just to be clear about the facts in that so there’s no confusion. Would you tell his Honour what the circumstances under which you supplied this heroin?

MO Yes. There was myself and two other friends, we put money together and then we go down to Sydney and buy it. I’d see the person and I’d come out and we’d share it up And that way we were obtaining more heroin at a cheaper price.

B Were you acting at any time as a purchaser to supply to unknown persons?

MO No, I wasn’t.

B You certain of that?

MO Positive.

B Alright. Now, you informed the police that this had occurred over a three week period?

MO Yes.

B And by the way did the police ever ask you where you got it?

His Honour: I don’t understand that. What? You all went down to Sydney did you, or …?

MO No. Just me.

His Honour: Yeah, just…

MO Or sometimes two of us would go if I needed a lift.

His Honour: When did you last go down to Sydney before the police picked you up?

MO It would have been a couple of days before.

His Honour: Before that?

MO Yes

His Honour: And before that?

MO Oh…probably a week before that. I went down altogether about three times.

His Honour: Yes Mr Brown.

B Now, the police found no drugs at the premises?

MO No they didn’t.

B But you nonetheless admitted your offence?

MO Yes.

B Oh by the way, you pleaded guilty at the Local Court before the Magistrate?

MO Yes.

B And the appeal originally was based on, on all (ui)

MO Yes.

B And that’s a mistake as you’ve always intended to plead guilty to the matter?

MO Yes.

B And your appeal at the first opportunity was asked to be changed the severity?

MO Yes.”

25 There are annexed to the affidavit the notes of the solicitor Mr Bruce Brown which included: “admit that had obtained heroin which had shared with friends upon their approach to me”; “police found no drugs at premises but I’d admitted offence.”

26 Before the Police Royal Commission the appellant gave the following evidence:

“MS BELL: Q. Mr O’Sullivan, you appear to have lodged an appeal to the District Court against conviction, not merely the severity of the sentence? A. Yes.

Q. Did you do that intentionally? A. Yes, I was going to fight it.

Q. Did you change your mind about that? A. Yes. After talking with my solicitor and reading in the paper that these detectives had gotten medals from the Prime Minister or someone, a couple of weeks beforehand we just thought it was a waste of time trying and it would just lead to a bigger sentence.

Q. You gave instructions to plead to -- A. Plead guilty, yes.

Q. To change your appeal to one of severity only? A. Yes.

Q. You appeared before the Gosford District Court? A. Yes.

Q. And what was the outcome of your appeal? A. I was given 10 weeks – 10 months weekend detention, and a two-year bond or something, yeah.

Q. By the time the judge substituted that penalty for that imposed by the magistrate, you had already served some full-time custody? A. A month, yeah.

Q. And then you had been released on bail granted by the Supreme Court? A. Yes, yeah.

…….

Q. Do you recall giving evidence before the District Court on 5 June 1992 on the hearing of your appeal, Mr O’Sullivan? A. Yes.

Q. Before the District Court on that occasion did you tell the court that it had always been your intention to plead guilty to the matter and, in other words, that the circumstance that your appeal had been marked as an appeal against conviction was an error; was that the account that you told the judge? A. Yes.

Q. But indeed that wasn’t the truth? A. No.

Q. The correct situation, you say, is that when you lodged the appeal following your conviction before the magistrate, you had it in mind to appeal against your conviction? A. Yes.

Q. At that stage who was represent you? A. Bruce Brown.

Q. When did you first go to Mr Brown? A. I’m not sure when. Some time after I was out on bail I went to him.

Q. Had you already lodged your appeal before you went to see Mr Brown? A. No, no, he gave me some dates, but when I went – I lodged me appeal in gaol, though.

Q. Yes. A. Yes, so, yeah, I hadn’t seen him before that, no.

Q. When you lodged the appeal form, you obtained a copy of the document at the gaol itself, did you? A. Yes.

Q. And you -- A. Oh, no, downstairs at the courtroom I lodged the appeal. Yes, and then I was taken to gaol, yeah.

Q. When you completed that form at the court, did you have any legal adviser with you? A. Yes, Legal Aid staff.

Q. Is that the solicitor you said had sold you down the river? A. Yes.

Q. Now at that time did you go through the form and tick off the fact that you wanted to appeal against conviction? A. I can’t remember now, but I know I always was going to appeal the sentence, yes, the conviction.

Q. And then after you had some discussions with Mr Brown you changed your mind? A. Yes. He said Judge McGuire would not believe me, that I had no chance and he was right.”

27 The appellant referred to evidence given on 16 January 1996 by Mr Wolfgang Puntigam to the Police Royal Commission. Amongst other things, Mr Puntigam gave evidence that Eade and another officer, Ison, forced him to write a statement confessing to the supply of hashish. The Police Royal Commission examined a range of alleged misconduct on the part of Eade and other officers within the Gosford Drug Squad. Eade was adversely referred to in a wide range of areas of misconduct, including (a) the theft of money from suspected drug dealers, (b) the fabrication of evidence, (c) the planting of drugs on drug suspects, and (d) perjury. Eade gave evidence to the Police Royal Commission on 24 January 1996. He denied the allegations made by the appellant and others as to his improper and illegal conduct. Eade was convicted on 18 May 2001 on charges of (a) inciting, soliciting and procuring the supply of prohibited drugs (s27 of the Drug Misuse and Trafficking Act) and (b) knowingly giving false testimony (s21 of the Royal Commissions Act 1923). The false testimony charge was Eade’s acceptance of the statement that he had never been engaged in any form of corrupt or illegal conduct. The falsity of this evidence was demonstrated by video and audio tapes of his conduct in August and September 1995 and had nothing to do with his part in the arrest of the appellant. The charge of inciting was also based on an event of September 1995. Eade was sentenced to twenty-two months custodial sentence on these charges.

28 The appellant annexed an extract of evidence given by District Commander Jarratt to the Police Royal Commission on 28 November 1995. He referred to a complaint investigated by the Independent Commission Against Corruption that Eade and Ison had solicited a $30,000 bribe from an individual in relation to his arrest in connection with drug offences and said that he had allegations concerning Eade coming from all quarters.

29 In an interim report (para 2.59) the Police Royal Commission said:

“There have been rumours suggestive of corrupt practices by certain police attached to the Gosford Drug Unit, for a number of years. When Assistant Commissioner Jarratt was the District Commander, Gosford, he became aware of persistent rumours of this kind. He reported these to Assistant Commissioner Parsons, and to Superintendent Moeller, the then Commander of the North Region Crime Squad. They were discounted as lacking in substance, in the aftermath of the arrests of those involved in Operation Hurricane.

In the following years, complaints relating to the conduct of the Drug Unit continued to be made.”

30 In Chapter 4 of the Commission’s final report referring to Central Coast Detectives it was said:

“While there was material supportive of the existence of corrupt relationships and of serious police misconduct, with the exception of one officer, the police concerned denied all wrongdoing. In these circumstances, final resolution will be left to the criminal justice process, and this Report will not elaborate on the matters noted in the First Interim Report.”

31 In a letter dated 15 February 1999 from Detective Inspector Champion of the Special Crime and Internal Affairs Command of the New South Wales Police Service to Mr David Barrow, a solicitor with New South Wales Legal Aid, it was said that McClelland had been medically discharged from the police service on 9 July 1999. Detective Inspector Champion was unaware of any criminal charges against him. At the time of his discharge he was not subject to departmental charges though he was mentioned during the Police Royal Commission. No action emanated from those proceedings. There were allegations additional to the Police Royal Commission made about his conduct but no adverse findings were made.

32 The appellant said that given the coerced confession, the circumstances in which he pleaded guilty in the Local Court and subsequently withdrew his all grounds appeal in the District Court, he considered any prospects of further appeal against his convictions hopeless. It was not until adverse evidence was given to the Police Royal Commission against Eade and other former detectives from the Gosford Drug Unit that he gave any thought whatsoever to lodging an appeal. Even then he took the view that the evidence against Eade and other detectives would be “whitewashed” and that nothing would eventuate from the Police Royal Commission. In 1998 he sought legal advise as to whether or not he might be able to appeal and instructed Mr Barrow, to advise him on his rights to appeal. A draft petition to the Minister pursuant to s100G [sic 100B], of the Justices Act was prepared. That was supported by Detective Inspector Champion’s letter which confirmed that Eade had been dismissed from the New South Wales Police Service on 9 January 1996 on the grounds of misconduct. In November 1999 the appellant lodged a petition for review and that was referred to the Local Court where Mr Swanson LCM determined that he did not have jurisdiction to overturn the conviction because of the appellant’s appeal to the District Court in 1992.

33 The appellant gave oral evidence in this Court and was cross-examined by the Crown. The appellant gave the following evidence in chief:

“Q. In your affidavit, and indeed what you said to the Royal Commission was – and I am just paraphrasing now – that Mr Eade had told you to put in this statement that you had sold either two or three 50s, that is $50 deals, and a $100 deal, is that correct? A. That’s correct.

Q. Your handwritten statement has a paragraph after that saying, ‘Normally I buy half a gram for $150 and sell some and use the rest for myself but this only happens about once a week for about three weeks.’ Do you remember writing that in your statement? A. I do.

Q. Where did that come from? A. From Mr Eade.

Q. Would you tell their Honours what is the case? Was the whole document dictated to you, that is your statement, or how did the words in the statement come about? A. Mr Eade said I had to write three $50s and a $100 in the statement and I said, ‘Can I write that any way I want?’ He said, ‘Yes.’ I started writing that I sold the three $50s and a $100 to a friend. He said that I had to put in it happened yesterday, I went and got down to there and then he just added that I bought some and used that.

….

Q. …Mr O’Sullivan, you recall giving evidence in the District Court? A. Yes.

….

Q. Just to put this in context, you had previously lodged an all grounds appeal, correct? A. Correct.

Q. But according to your affidavit, because of certain legal advice given to you, you withdrew the all grounds appeal and the appeal proceeded on severity only? A. That’s right.

Q. In the District Court you were put into the witness box by your then solicitor, Mr Brown? A. Yes.

Q. He asked you certain questions? A. Yes.

Q. Do you recall saying this: Mr Brown asked you this question, ‘Just to be clear about the facts, so there is no confusion, would you tell his Honour about the circumstances under which you supplied this heroin?’ You are recorded as responding this way: ‘Yes, there was myself and two other friends, we’d put money together and then we’d go down to Sydney and buy it. I would see the person and I would come out and we would share it up and that way we were obtaining more heroin at a cheaper price.’ Do you remember that question and answer? A. Yes, I do.

Q. Firstly, when you said, ‘I would see the person and I would come out and we would share it up,’ was that the truth? A. No, we would all go in and share it and pay money out.

Q. When you say ‘we would all go in’, what do you mean by that? A. Well, none of us trusted each other and we would all go in and do the business and come out with ours and then we would go home.

Q. Are you able to tell their Honours why you used the words, ‘I would see the person and I would come out’? A. That was just the way I was thinking at the time.

Q. At that time were you mindful of the statement that you had already made that was before the Court when you gave this evidence? A. I am sorry, I don’t understand.

Q. At the time you were giving this evidence were you mindful of the fact that you already had signed a confession? A. Yes.

Q. You were aware of that? A. Yes.

Q. That was in your mind? A. Yes, it was.

Q. Can I take you towards the bottom of the page, you were asked this question in fact by his Honour Judge Maguire and this was in relation to you having just explained what you did, how you purchased the heroin. His Honour asked you this, ‘I don’t understand that. What, you all went down to Sydney, did you, or? And you answered, ‘No, just me.’ Do you recall that exchange? A. Yes, I do.

Q. His Honour then said, ‘Yeah just’ you then said ‘or sometimes two of us would go if I needed a lift.’ Do you recall that exchange? A. Yes, I do.

Q. Now, what was the case? Would you all go down or sometimes you would go down, sometimes two would go down? Can you tell their Honours what do you say was the factual position? A. Ninety-five per cent of the time we would all go down together.

Q. And the ‘we’ is this the same, the three people? A. The same three people over a long period of time.

Q. You say to their Honours that was 95 per cent of the time? A. Yes.

Q. What about the other five per cent of the time? A. There would be two of us because one would be working.

Q. Do you say to their Honours in relation to the two of you that two would go into the premises and you would come out, or would it just be you, or the other? A. No, we would both go in and we would both come out.

Q. Again, are you able to explain to their Honours why it was that you said to his Honour, ‘No, just me or sometimes two of us would go if I needed a lift’? A. Because of the statement I had written.

Q. By that are you saying to their Honours that you were seeking to make the evidence you were giving in the District Court consistent with the statement you had written? A. Yes.

…

Q. Mr O’Sullivan, you told the Royal Commission in response to a question, ‘Were you a heroin addict as at 15 November 1991?’ your response was, ‘Yes, all my life mostly, yes.’ Do you remember saying that? A. I do.

Q. As at November 1991 – I appreciate you said ‘mostly all my life’, but are you able to be a little bit more specific about that? Approximately how many years were you a heroin addict before 1991? A. 1991 I was 25 years a heroin addict. No, sorry, 20 years.

CONDITIS: Yours Honours, at page 64 at about .6 of the same document, ‘Do you remember being asked this question at the Royal Commission and putting this in context you were asked about what was actually happening in relation to purchasing heroin, do you understand that? A. Yes.’

Q. You were asked this question at about .5, ‘By the way, if I could just stop you there for a moment, what factually was the position? Were you dealing in heroin at that time?’ Your answer was, ‘I was scoring for myself and two other people at the time. I wasn’t actually going around selling it. I was just getting people’s money, we were going down to Sydney and getting it, just coming back and splitting up heroin, mainly one foil or two foils out of it, but mainly it was just me and me mate.’ Do you remember that response? A. Yes, I do.

Q. Again, having regard to the confession that you wrote out yourself, you say at the request of Mr Eade, where there is a confession in there that you sold some heroin, right? A. Yes.

Q. In that confession you signed there is a reference to ‘yesterday’ and ‘in the past few weeks’? A. Yes.

….

Q. Mr O’Sullivan, in relation to the passage I just took you to, that is, the evidence given in the Royal Commission? A. Yes.

Q. You are certainly prepared to voluntarily and freely give the evidence that you are about to give? A. Yes.

Q. When you said to the Commission, ‘Selling may be one foil or two foils out of it,’ are you able to say to their Honours when was the last time prior to November 1991 you had sold one foil or two foils out of it, as you told the Commission? A. I was speaking as an addict and I wasn’t talking about yesterday or the day before, I was speaking about the last few years, the last couple of years.

Q. Can I just ask you to direct your attention to my question. A. Yes.

Q. When was the last time prior to November 1991 – and I appreciate you may not be able to give the precise date, but approximately when was the last time prior to that time you had sold any foils at all out of what you had purchased? A. A couple of years ago before that.

Q. When did you stop being on the methadone program or, indeed, are you still on it? A. No, I have been clean for six years now.

Q. So, do I take it that until about 1995 or 1996 you were on the methadone program? A. Yes, until 1996.

Q. Lastly this, towards the bottom of that page you were asked this question, ‘You might sell some in excess of the amount that you purchased in Sydney? A. I would sell, if anything I would sell $50 out of it, but most of it would be for myself, yes.’ Again, ‘I would sell, if anything I would sell $50 out of it’ – when you gave that answer to the Commission, when were you referring to? A. To years back.

SHELLER JA: Q. Years? A. Two years ago.

CONDITIS: Q. When you say ‘ago’, do you mean prior to November 1991? A. Yes, prior to November 1991.

Q. Lastly this: you said in your affidavit that you say someone from the Legal Aid Commission in 1998 about what could be done about what you say was the injustice caused to you, correct? A. Correct.

Q. You gave evidence in the Commission in 1996, correct? A. Correct, yes.

Q. Why was it that it was not until 1998 that you sought legal advice about what you could do about your position? A. After the Royal Commission I left and I never heard from anyone again. No one told me I could appeal and it was not until 1998 I read it in the paper that others from the Royal Commission were appealing and it mentioned Legal Aid in the paper, so I rang them and started from there.

Q. Prior to giving evidence at the Royal Commission you had obviously spoken to investigators from the Commission? A. Yes.

Q. That was about what you could tell them or what you could tell the Commission? A. Yes, what I could tell the Commission.

Q. Was there ever any discussion about your rights, as they may have been, about what you could do about your position, with those investigators? A. None whatsoever.”

34 In cross-examination he was taken through his previous convictions and acknowledged that he had been an addicted heroin user for some twenty years before 1991. He rejected the suggestion that in November 1991 he not only used heroin but gave small amounts from time to time to his friends who were users. Asked about the confession he signed, he said:

“Q. The police had asked you if you were selling smack, hadn’t they? A. No, they said I was selling smack.

Q. So they suggested it to you? A. Yes.

Q. You say in this handwritten statement that you sold some to a friend ‘three $50s and a $100 to another friend yesterday’? A. Yes.

Q. Could it be that what you have written there is in fact correct? A. No. That is what Mr Eade asked me to write, told me to write and if I didn’t write it I would laden with half an ounce.

Q. He said half an ounce? A. He said 10 grams and threw it out and showed me and I looked it; to me it was half an ounce.

Q. So what you are saying is that having half an ounce in his hand he asked you to admit to basically four deals of heroin? A. Yes.

Q. Which would amount to about just over one gram? A. Yes. I think roughly, yes.

Q. Could it be that that is not what happened, that is, he did not threaten you with that half ounce bag? A. He did threaten me. There is no question about that. He threw it on the table in front of me and two other detectives.

Q. In this handwritten statement, of course, you have written, ‘Normally I buy half a gram for $150 and sell some and use the rest for myself.’ Do you see that there? A. Yes, I do.

Q. Could it be that the reason you wrote that was because in fact it was the truth? A. No, because he also asked me to write, when I was writing it he just added pieces to it as I wrote.

Q. Half a gram would have been $150 worth, wouldn’t it? A. Half a gram?

Q. Yes. A. Yes.

Q. You were certainly using at that stage, weren’t you? A. I never bought half grams in my life.

Q. If you went down to Sydney with one or more friends, could I suggest that you would not have just bought a $50 deal or a $100 deal? A. No, we bought larger amounts, yes.

Q. And that it would be likely that you would buy an amount for $150, which is half a gram? A. No I would not, no.

Q. Well, it would not take many friends to put in money to get $150, would it? A. That’s what street addicts might do, yes, but no, I wouldn’t do that. $150 would be a waste of time.

Q. So you would get larger amounts, is that what you are saying? A. Yes.”

35 The appellant said: “I did everything I did to get heroin. Heroin was my life and I would do anything to get it”. Asked if in fact in November 1991 he was selling from time to time, he said:

“No, because heroin was my life. It was my life and to me I would never sell heroin. Heroin was everything I could have. I could have a pile of money there, it would be of no use to me. If I had a pile of heroin there, that’s all I ever needed. To give it away, to sell it, was sacrilegious.”

“You have got to understand, if you are desperate and you have got $150 left of heroin, you will use that heroin and then rob a house or whatever, you will not sell that heroin and then go and get some somewhere else.”

“Q. Can I suggest to you that a common way for a heroin user to fund their habit is to sell small portions of their heroin? A. No, if you look in the prison system, they are all thieves, 90 per cent of them are thieves, in there for stealing. A heroin addict finds it very hard to sell because he uses too much.

Q. Your contention is that you wrote that document, MO2, [his handwritten confession] because the police threatened you? A. Yes.

Q. Just to make it clear, could it have been you wrote that document out because it was a fairly accurate picture of what you were doing at the time? A. No, if I wrote out what I was actually doing it would not have been selling heroin.”

36 It was suggested to the appellant that he pleaded guilty on both occasions he went before the Local Court which he denied. The questioning continued:

“Q. I suggest you are not telling the truth about that? A. I got up in that court room. My solicitor pleaded me guilty. I said, ‘No, I am not guilty of them charges.’ I don’t remember the exact words. The Magistrate said, ‘Well, get the – no, he said – I said the statement was they were lies. He said, ‘I don’t care how they got you to write the statement. You are a drug dealer,’ and also he said, ‘Bring in the detectives.’ I said, ‘That’s of no use,’ and I grumbled away and stood there and knew then that I had no chance in fighting with Magistrate Butler, so then I pleaded guilty and I was sentenced knowing that I was going to appeal.

Q. On 2 December 1991, the first occasion which you were at the Local Court, can I suggest to you you pleaded guilty? A. I don’t really remember that one. I only remember the one on the 17th, sorry.”

37 The appellant said that he could not tell the truth to the Judge in the District Court. The following interchange took place:

“Q. Do you say you lied to the District Court Judge? A. I was told to.

Q. Who told you to lie? A. I was told that the truth wouldn’t stand up against the police, that the New South Wales Police he would believe at all times.

Q. Are you suggesting your solicitor told you to lie? A. He told me I had a choice and that is the choice I had to take.

Q. You saw it was to your advantage to give this information to the Court? A. No, it wasn’t to my advantage at all.

Q. The purpose of what you had done was so the Judge could understand the size of your criminal behaviour? A. The only reason that was ever told was so I could get out of the hole Detective Eade and his fellow detectives put me in.”

38 The visits to Sydney he explained as ones made by himself and either one or two others together each purchasing and being supplied with a separate packet by the dealer. He reiterated that he pleaded guilty in the District Court for the one reason that the Judge would not believe him over the police.

Submissions on appeal

39 Submissions have been filed to support the appellant’s claim that his convictions resulted in a miscarriage of justice and for an order that the time for appealing be extended. The nub of the argument is that on the balance of probabilities the alleged confession of the appellant leading to his convictions was so tainted that there was a significant possibility that an innocent person had been convicted.

40 The appellant stressed that his confession was the only basis for his conviction. There was no direct evidence of either of the offences charged. He intended to plead not guilty in the Local Court. He did so and sought to explain that he was forced to sign a confession and that the confession was false. In response the Magistrate said to him, “Alright we will get the police in to verify it” or words to that effect. He got the impression that the police evidence would be preferred to his uncorroborated evidence and he could not succeed at a hearing even if he gave evidence of the threats and forced confession. He was overborne by the threats of Eade.

41 The appellant submits that the material from the Police Royal Commission should be admitted as fresh evidence and that his evidence about the confession should be accepted. If so, it fell within the category of evidence “bought at a price which is unacceptable, having regard to contemporary community standards” R v Pavic (1998) 151 ALR 98 at 121. R v Fernando (Court of Criminal Appeal, 14 April 1999, unreported).

42 The appellant was an impressive witness. Having heard his evidence I accept that he signed the statement of confession because of the threat made to him by Eade. I do this with more confidence because the Crown called neither Eade nor McClellan. I accept that in November 1991 all the heroin that he bought he used himself. Thereafter I accept that he wished to protest his innocence in the Local Court and in the District Court but was frustrated in that endeavour by indications given to him in the Local Court that such protests would be useless and in the District Court by advice from his solicitor that the judge would accept the police evidence.

43 A legal practitioner advising the accused is bound to emphasise that the accused must not plead guilty unless he has committed the acts constituting the offence charged. Having considered the advice the accused must have a complete freedom of choice whether to plead guilty or not guilty. The judge or magistrate should never tell the accused that on a plea of guilty he or she would impose one sentence but that on a conviction following a plea of not guilty he or she would impose a more severe sentence. This can place undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential; see generally R v Turner [1970] 2 QB 321 at 326-7.

44 The present case points out the difficulty in which accused persons found themselves when there was no audio visual recording of interviews. It is appropriate to quote from the joint majority judgment in McKinney v The Queen (1991) 171 CLR 468 at 475-6:

Wright v The Queen

Carr v The Queen

Carr

45 The present case can be distinguished from Boyd. First, because the evidence from the Police Royal Commission which was admitted without objection was fresh evidence not available to the appellant at the trial and secondly, because the confession was not unequivocal and was given under threat. The appellant was a heroin addict with a long criminal record. The assessment the appellant and those acting for him made, that his evidence would not be accepted over the police evidence that his confession was voluntary, was a sound assessment. In the context of that time and in the absence of anything to undermine the credit of the police officers who apparently were regarded as exemplary officers, the appellant had no chance of avoiding conviction either in the Local Court or the District Court. This is a sad reflection on the way criminal justice was then administered. The plea of guilty was, I am satisfied, induced not by a consciousness of guilt but by a recognition that the confession although given under threat could not effectively be challenged and that conviction was inevitable. The only hope for the accused was to gain some advantage by having the sentence reduced, it was hoped, to a non-custodial sentence if the appellant pleaded guilty.

Conclusion

46 If at the trial Eade’s reputation and McClelland’s reputation had been known and particularly if it had been known that Eade was a police officer prepared to incite, solicit and procure the supply of prohibited drugs and knowingly to give false testimony on oath there is no possibility that his evidence or that of McClelland as to the writing of the confession would have been accepted. Careful scrutiny of the evidence, as required by McKinney in the passage I have quoted, properly undertaken by the magistrate or judge would inevitably have led to its rejection and the prosecution case on both counts would have collapsed. To adopt the guide suggested by Levine J in Vastag, the evidence discloses that at least one of the police officers was prepared to act corruptly in the performance of his duties in criminal investigations. Taking account of the evidence of the appellant and Mr Puntigam, this Court could not be satisfied beyond reasonable doubt that the confession was given voluntarily. In my opinion, the appellant’s plea of guilty in the Local Court, or ultimately in the District Court, were not induced by consciousness of guilt and do not stand in the way of this Court intervening. The conviction in the District Court on each charge resulted in a miscarriage of justice.

47 The appellant’s appeal should be upheld, his conviction on each charge quashed and a direction given that a judgment and verdict of acquittal on each charge be entered.

48 GROVE J: I have read in draft form the judgment prepared by Sheller JA. I concur with that judgment and wish to add only a brief observation. His Honour has set out significant transcript extracts of evidence in the earlier proceedings in the Local and District Courts, the Royal Commission and before this Court. The offences charged were, in short, supplying and self administering a prohibited drug. The evidence recites the appellant’s former heroin addiction and there is abundant material which could demonstrate that he had self administered that drug on many occasions and, there is fair evidence which might support a charge of supply if the “deeming” provisions of the statute were applied.

49 It is therefore important in my opinion to emphasize a basic requirement of the system of criminal justice, namely, that no one is to be convicted except for specific offence. The law does not permit conviction by deduction that a person must have committed an offence of category, some time and/or somewhere.

50 It is because of this requirement for precision that care must be taken not to stretch focus beyond the two offences which were evidenced solely by the now discredited “confession”. Once it is shown that that material should be excluded from evidence then there remains none to support the charges and acquittal is demanded.

51 I agree with the orders proposed.

52 SIMPSON J: I agree with Sheller JA.

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Citations

R v O'Sullivan [2002] NSWCCA 98

Most Recent Citation

Beqiri v The Queen [2013] VSCA 39

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CITATION:	O'SULLIVAN v THE QUEEN [2002] NSWCCA 98
FILE NUMBER(S):	CCA 60781/01
HEARING DATE(S):	27 February 2002 28 February 2002
JUDGMENT DATE:	28 March 2002
PARTIES :	Michael John O'Sullivan - Applicant Crown - Respondent
JUDGMENT OF:	Sheller JA at 1; Grove J at 48; Simpson J at 52

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	Gosford 1992
LOWER COURT JUDICIAL OFFICER :	McGuire DCJ

COUNSEL :	E Conditsis - Applicant D Woodburne - Crown
SOLICITORS:	Conditsis & Associates - Applicant S E O'Connor - Crown
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - whether confession was voluntary - plea of guilty - fresh evidence - Police Royal Commission - miscarriage of justice - convictions quashed - acquittal
LEGISLATION CITED:	Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Criminal Appeal Act 1912 Royal Commissions Act 1923
CASES CITED:	Johns (1999) 110 A Crim R 149 Mickelberg v The Queen (1989) 167 CLR 259 R v Boyd [2000] NSWCCA 110 R v Liberti (1951) 55 A Crim R 120 R v Murphy [1965] VR 187 R v Forde [1923] 2 KB 400 Davies (NSWCCA, 16 December 1993, unreported) Cincotta (NSWCCA, 1 November 1995, unreported) Maxwell v The Queen (1996) 184 CLR 501 Vastag (NSWCCA, 12 May 1997, unreported) R v Pavic (1998) 151 ALR 98 R v Fernando (NSWCCA, 14 April 1999, unreported) R v Turner [1970] 2 QB 321 McKinney v The Queen (1991) 171 CLR 468)
DECISION:	1 Appeal upheld; 2 Conviction on each charge quashed; 3 Direct that a judgment and verdict of acquittal be entered on each charge.