R v Pedrana - [2001] NSWCCA 66

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Pedrana [2001] NSWCCA 66

FILE NUMBER(S):
60835/00

HEARING DATE(S): 14/03/01

JUDGMENT DATE: 23/03/2001

PARTIES:
Regina v Raymond Grant Pedrana

JUDGMENT OF: Ipp AJA Wood CJ at CL Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 88/21/0993

LOWER COURT JUDICIAL OFFICER: Urquhart DCJ

COUNSEL:
(Appellant): R Burgess
(Crown): P G Berman SC

SOLICITORS:
(Appellant): D J Humphreys
(Crown): S E O'Connor

CATCHWORDS:
CRIMINAL LAW - conviction for armed robbery - inquiry pursuant to s 474G Crimes Act 1900 - referral to Court of Criminal Appeal (s 474H(2)(a) Crimes Act 1900) - fresh evidence - whether conviction should be quashed - miscarriage of justice - entitlement to acquittal as of right - whether new trial should be ordered - exercise of discretion not to order a new trial.

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Appeal upheld. Conviction quashed and a verdict of acquittal entered.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60835/2000

IPP AJA
WOOD CJ AT CL
SIMPSON J

Friday 23 March 2001

REGINA v Raymond Grant PEDRANA

JUDGMENT

IPP AJA: On 21 May 1990 the appellant was charged with one count of armed robbery contrary to s 97 of the Crimes Act 1900. He pleaded not guilty. He was convicted on 24 May 1990 after a trial. He was sentenced by Urquhart DCJ to a minimum term of imprisonment of five years and an additional term of one year and eight months. The minimum term was to commence in January 1992. The sentence was specified to expire on 8 September 1988.
The appellant appealed against his conviction but his appeal was dismissed: R v Pedrana, unreported, CCA NSW, 11 June 1992.
In April 2000 the appellant applied under s 474D of the Crimes Act for an inquiry into his conviction. On 20 October 2000, James J made an order in terms of s 474E(1) for an inquiry by a prescribed person into the conviction. That inquiry was undertaken by Graham DCJ. After conducting the inquiry his Honour referred the matter to this Court pursuant to s 474H(2)(a) for consideration of the question whether the conviction should be quashed.
The sole ground of appeal before this Court is that “there is now available fresh evidence that demonstrates the appellant’s conviction was a miscarriage of justice”. In argument, counsel for the appellant submitted, as her primary position, that the conviction should be quashed and a verdict of acquittal should be entered. In the alternative, she submitted that the conviction should be quashed and there should be an order that no new trial be held, or that there should be no order for a new trial (without a verdict of acquittal being entered). In the final alternative she submitted that the conviction be quashed and a new trial ordered.
Counsel for the appellant sought separate relief concerning other sentences imposed on the appellant for various different offences. On 15 May 1992 the appellant was sentenced by Viney DCJ for a series of armed robberies. These offences were unrelated to the offences the subject of this appeal. The learned judge sentenced the appellant to concurrent terms of eight years penal servitude which were divided into minimum and additional terms of four years each. The sentences were directed to commence at the expiry of the five year minimum term for the armed robbery committed on 21 May 1990 (the offence the subject of this appeal). The sentences imposed by Viney DCJ deferred the appellant’s eligibility date for parole to 8 January 2001.
Counsel for the appellant submitted that, should the conviction the subject of this appeal be quashed, the date of commencement of the sentences imposed by Viney DCJ should be varied by ordering them to commence in January 1992, that is, on the date that the sentence imposed by Urquhart DCJ was ordered to commence.
At the outset, it is to be noted that the respondent did not dispute that the new evidence on which the appellant relied was fresh evidence and the appeal was argued on that basis.
As the sole ground of appeal concerns the effect of fresh evidence, the principles laid down Ratten v The Queen (1974) 131 CLR 510 apply. In that case Barwick CJ (with whom McTiernan, Stephens and Jacobs JJ agreed) said that the use that may be made of fresh evidence differed, depending upon whether the appellant claims a verdict of acquittal as of right, or seeks merely the ordering of a new trial.
Barwick CJ referred (at (518) firstly to the situation where an appellant seeks orders that the verdict should be set aside outright, a verdict of acquittal entered, and the appellant discharged. The learned Chief Justice said:
“If the Court is considering whether the verdict should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the Court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the Court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged.”
Later cases have made it clear that the Court is to have regard to the view which a reasonable jury must have reached, and not the view of the Court itself: see, for example, Whitehorn v R (1983) 152 CLR 657 at 687, Mickelberg v The Queen (1989) 167 CLR 259 and M v The Queen (1994) 181 CLR 487.
Where the Court concludes that, as a result of fresh evidence, it has a reasonable doubt as to guilt, the appellant is entitled to an acquittal as of right: King v The Queen (1986) 161 CLR 423 at 427 and cases cited there.
In Ratten v The Queen, Barwick CJ went on to deal with the situation where an appeal is brought on the grounds of fresh evidence and the appellant, instead of seeking the quashing of the conviction and the entering of a verdict of acquittal as of right, claims only orders that the conviction be quashed and a new trial be ordered, or, in the alternative to an order that a verdict of acquittal be entered, seeks the ordering of a new trial.
In regard to this situation, Barwick CJ (at 519) said:
“[T]he Court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the Court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The Court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the Court’s view a jury of reasonable men may properly take.”
Where, on this basis, a Court of Criminal Appeal determines that an appellant is entitled to a new trial, it may then be required to address the discretionary question whether an acquittal should be ordered. This would depend on whether any circumstances exist that might render it unjust to the appellant to make him or her stand trial again (remembering, however, that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused): King v The Queen at 427 and 433; Director of PublicProsecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630. Should the interests of justice require that an appellant not stand trial again, the Court, as a matter of discretion, will enter a verdict of acquittal: Spies v The Queen (2000) 74 ALJR 1263 at 1283
In Mickelberg v The Queen at 273 Mason CJ said the following concerning the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence:
“It is established that the proper question is whether the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five justices in Gallagher v TheQueen (1986) 160 CLR 392. Deane J and I (at 402) considered that the test was best expressed in those terms …”
In Gallagher v The Queen (1986) 160 CLR 392 at 402 Mason and Deane JJ were dealing with the second situation referred to by Barwick CJ in Ratten v The Queen, that is, where the issue is whether the conviction should be quashed and a new trial ordered (and not whether a verdict of acquittal should be ordered as of right). This, indeed, was the relief that was sought by the appellants in Mickelberg v The Queen.
It is to be borne in mind, therefore, that the comments of Mason CJ in Mickelberg v The Queen (at 273), which have often been cited as the test applicable when an appellant appeals on the ground of fresh evidence, are only applicable when the Court is considering whether or not to order a new trial, and do not apply when the Court is considering whether a verdict of acquittal should be entered as of right.
I now turn to the relevant factual circumstances. Those have been fully recorded in the judgment of this Court in R v Pedrana, unreported, CCA NSW, 11 June 1992. They are also fully described in the report of Graham DCJ. There is no need to repeat them in detail once more. I shall refer only to the essential matters.
On 12 May 1998 Edward Pracy and Alan Piper were at the home of Glenda Norris in Dharruk. Two men entered the premises armed with flick knives and wearing balaclavas over their heads. They confronted Pracy and Piper and demanded money from them. Pracy gave them his wallet which contained $300 in cash. They demanded more. They made Pracy and Piper lie on the floor and they kicked Pracy about the head and upper body area several times.
One of the men said by the prosecution to be the appellant, was dressed in a white padded sloppy joe. He went to the main bedroom where he found Ms Norris. He put the knife to her throat, hit her in the face, threatened to hurt her young children who were asleep in another bedroom and demanded money from her. She took $100 in cash out of her wallet and gave it to him. The man left the room and his co-offender entered. The co-offender also hit Ms Norris in the face, demanded money and made threats towards his children. He then sexually assaulted her.
Ms Norris was taken to the lounge room and made to lie on the floor with Pracy and Piper. The offenders then removed coins from a money jar or tin and stole other goods.
Fingerprints of the appellant were located on the money tin from which the coins were removed.
On 1 June 1988 the appellant was arrested in a motel room. Amongst his property a white padded sloppy joe was found.
The appellant was taken to Mt Druitt Police Station and questioned by Detectives Fluke and Mainstone. There he was said to have made an oral admission and he provided the police with a confession, written in his own hand, but which he did not sign.
At the commencement of the trial an issue arose as to the admissibility of the admissions allegedly made by the appellant. A voir dire was accordingly held.
Fluke testified that the appellant had made and signed three handwritten statements concerning amongst other things a different armed robbery. These statements were not tendered when the officers later gave evidence before the jury.
Fluke testified that, when he asked the appellant to comment on the fact that two men had entered the premises, stolen money and other goods and had sexually assaulted Ms Norris, the appellant replied:
“Yeah, I didn’t sexually assault anyone, anyway she was giving Pracy head”.
It was open to the jury to infer from this reply that the appellant was admitting that he was a participant in the armed robbery while denying that he took part in the sexual assault.
Fluke testified that the appellant wrote out a statement in his own hand, admitting that he participated in the offences. He was asked to sign the statement but declined to do so, saying that he didn’t sexually assault anyone, that he would speak with his solicitor, and if the latter agreed he would sign it.
When cross-examined, Fluke denied any impropriety in regard to the circumstances under which the appellant had made these admissions. It was put to Fluke that he had seen Mainstone assaulting the appellant, that the appellant had stated that he wanted to speak to a solicitor before speaking to the police, that Fluke had dictated the handwritten statements to the appellant, that the appellant had told Fluke that he (the appellant) had been to the house at Dharruk on a number of occasions, that the oral admissions had not been made by the appellant and that the appellant had told Fluke that he could explain his fingerprints on the box where the case was found because he had been to Ms Norris’ residence on a number of occasions. Fluke denied all these propositions. He admitted, however, that he did not, in his official police notebook, record his conversation with the appellant wherein the latter impliedly admitted guilt.
Mainstone was the corroborating officer as to the oral admission and the making of the unsigned statement. He gave, in effect, the same evidence as Fluke, and when cross-examined to similar effect as Fluke, gave similar replies.
Detective Senior Constable Rupp (who did not give evidence before the jury) testified in the voir dire as to the arrest of the appellant, his placement in an interview room and an occasion when he saw the appellant through the glass in the door, seated on a chair in the interview room. Graham DCJ described the cross-examination of Rupp as “benign”. No allegations were put to him about his conduct or that of any other police involved in the arrest and interview of the appellant.
Detective Senior Sergeant O’Connell was the adopting officer for the handwritten statement. He was called on the voir dire and later before the jury. He gave evidence which broadly speaking supported that of Fluke and Mainstone. He testified that the appellant had no complaints about the manner in which he had been interviewed or in the way in which he had been treated. He said that the appellant had agreed that he had made his unsigned statement of his own free will. He denied that when he drew the appellant’s attention to the fact that the statement was unsigned, the appellant told him that he wanted a solicitor present. He denied that the appellant had frequently said that he wanted a solicitor present.
The appellant testified in the voir dire. He said that detectives from Penrith assaulted him in the presence of Fluke and Mainstone. He said that his requests for a solicitor were ignored. He said that he was punched and threatened by Fluke. He said the contents of the handwritten statement were dictated to him by the police. He was effectively cross-examined by counsel for the Crown.
The issue before the trial judge on the voir dire involved only the voluntariness of the handwritten statement. His Honour held that the statement had been voluntarily made.
As Graham DCJ pointed out, the trial judge must have treated the evidence of O’Connell as being reliable and preferred the evidence of O’Connell to that of the appellant. His Honour relied on the veracity of O’Connell in deciding on the credibility of the allegations made by the appellant as to his treatment by the police.
At the trial Fluke and Mainstone gave evidence as to the admissions made by the appellant and, as I have mentioned, O’Connell also testified.
In R v Pedrana, the first appeal to this Court, the appellant relied on two grounds. The first challenged the trial judge’s directions on the confessional material. The second asserted that the verdict was unsafe.
In the course of his reasons, Abadee J held that the trial judge had adequately directed the jury in relation to the principal issues in the matter, including the evidence of the various police witnesses. His Honour noted:
“His Honour told the jury that the Crown had presented its case based on two independent bases, firstly, upon admissions and secondly, upon circumstantial evidence.” He said “it is common ground that the Crown case relied substantially and very heavily upon the admissions evidence.”
The second ground of appeal was that the verdict of the jury was unsafe and unsatisfactory. In this regard, Abadee J said:
“It seems to me that unless the appellant can made good his claim in relation to the admissions argument, this ground must fail.
True, without the admissions the Crown case was perhaps not very strong. With the admissions in evidence the case was a strong one.”
As Abadee J pointed out, the disputed confessional material was not the only material on which the Crown relied. There were other circumstances that tended to support the inference that the appellant was guilty of the offence. Abadee J noted that these:
“included the relationship between the appellant and the premises including with Pracy, that the appellant had been to the premises prior to the robbery, the fingerprint on the money tin which was in the bedroom from which a sum had been taken, and in respect of which the jury could find no satisfactory explanation had been given, together with the actual observations and conversations between the appellant and Detective Flood in Maryborough and Detective Flood’s observation at Pialba”.
I shall comment on these particular matters.
Pracy knew the appellant well enough to regard him as a “sort of a friend”. The appellant had been to Ms Norris’ house on a number of occasions and according to Pracy the appellant had the run of the house and was allowed to remain in the house while Pracy was outside. I do not think that these matters advanced the Crown’s case significantly. Indeed, it may be thought that the appellant would have been recognised, even with a balaclava. He was not.
In fact, Pracy admitted that he had told the appellant’s solicitor that, as far as he was concerned, the appellant was not one of the offenders. He said that the taller of the two offenders was taller and bigger than the appellant while the shorter offender was much fatter than the appellant. He said that the offenders called him “Ed” whereas “everybody calls me Eddie”. He said that he would clearly have recognised the voice of the appellant, but did not do so. I would add to this the fact that the Crown witnesses described the sloppy joe worn by the offender as having a distinctive diamond pattern which the appellant’s sloppy joe did not have.
As regards the fingerprint on the money tin, Abadee J, in his reasons, noted that at the trial the appellant did not seek to explain “why he would have touched the money tin on any alleged prior visit, irrespective of whether such had been kept by Ms Norris in a kitchen, in the dining room or in her bedroom, where she said it was located at the time of the robbery”. The particular significance of the money tin arose from the fact that money had been taken from it during the robbery.
Flood was a detective from Maryborough in Queensland. He gave evidence about a conversation he had with the appellant on 11 May 1988 when the appellant told him that he was leaving that day for Sydney. Later that day he went to a house in Pialba, about thirty five kilometres from Maryborough, where the appellant was apparently living and saw that clothing had been removed from the room. The evidence of Flood was dealt with at trial as establishing an intention on the part of the appellant to be in Sydney on 12 May 1988, and this tended to refute the appellant’s alibi.

Abadee J was of the view that the appeal against conviction should be dismissed. Clarke JA agreed with Abadee J.
Allen J agreed that the appeal should be dismissed but said that he did so with some “misgiving”. His Honour considered that, although he was not persuaded that there had been any substantial risk of miscarriage of justice, Urquhart DCJ should have given the jury greater assistance in evaluating the evidence as to the oral admissions and the unsigned handwritten statement.
Allen J did not regard as entirely satisfactory the Crown evidence that the appellant’s explanation for not signing the statement was that he first wanted to see his solicitor as he was concerned with the suggestion that he was involved in a sexual assault. His Honour pointed out that the statement did not refer to any sexual assault.
Allen J referred to the descriptions of the offenders given by those in the house that positively excluded the appellant and indicated that he regarded this as evidence that tended to point to the innocence of the appellant.
Allen J was of the opinion that the case was one which “comes close to the borderline the crossing of which would have required this Court to interfere”, but nevertheless, in the end, was not persuaded that the court should interfere.
Since then, fresh evidence has emerged in relation to O’Connell and Rupp. The fresh new evidence emanates from certain findings by the Independent Commission Against Corruption (ICAC) in connection with O’Connell and the inquiry undertaken by Graham DCJ. It is now necessary to examine the fresh evidence.
O’Connell pleaded guilty in the District Court to seven counts of giving false evidence before the Independent Commission Against Corruption (ICAC) and two of conspiracy to bribe. He was sentenced to two years imprisonment with a minimum term of nine months. The offences involved O’Connell selling confidential information to private inquiry agents. When called to give evidence before ICAC he admitted his own corruption but lied about those to whom he sold information. According to the judge who sentenced O’Connell:
“In admitting his own corruption he lied about those to whom he had sold this information. Five days later he admitted those lies and told the truth. He subsequently resigned from the Police Force. These are serious matters and deserving of a prison sentence.”
At the inquiry before Graham DCJ, documents from the Police Internal Affairs were produced. These documents disclosed three other areas of complaint against O’Connell. Two were regarded by Graham DCJ as significant and I shall describe them.
The first concerned a complaint by a person who asserted that, when arrested in 1991 for armed robbery, he was assaulted by detectives in an interview room at Mt Druitt Police Station. O’Connell was the adopting officer for his disputed confession. The complainant’s allegation was that O’Connell ignored his complaints of assaults, merely replying, “that’s nice”, when the person assaulted told him what had occurred. As Graham DCJ pointed out, this complaint has a number of features similar to the allegations made by the appellant in this case.
The second complaint against O’Connell was that in March and April 1988 he improperly contacted Detective Senior Constable Wilding and asked him to exert pressure on an alleged drug dealer, who had been charged by Wilding, to repay the sum of $28,000 to a friend of O’Connell. Internal investigation found that these allegations were not sustained on the basis that O’Connell denied the communications with Wilding and it was thought that there was insufficient evidence to show that the caller was actually O’Connell. Support, nevertheless, was lent to Wilding by contemporaneous notes taken by him and the fact that he immediately reported those calls to his superior.
Unfortunately, Graham DCJ did not, in the course of his inquiry, summons O’Connell to attend before him (pursuant to the powers set out in s 474G of the Crimes Act) so as to question him about the two significant complaints against him. Accordingly, it is not now known whether O’Connell will admit the allegations, the subject of the complaints, or not. Unless they are admitted by O’Connell, they are not likely to be admissible in any new trial: R v Richards, unreported, CCA NSW, 3 April 1998 per Simpson J.
Nevertheless, the fact that fresh material exists which could form the basis for cross-examining a witness as to his credibility is of some relevance in determining whether a conviction should be quashed: R v Hasenkamp, unreported, CCA NSW, 24 February 1998 (albeit that the relevance is remote, depending as it does on the prospect of the witness admitting the allegations against him: R v Richards, cf the dissenting judgment of Meagher JA in R v Vastag, unreported, CCA NSW, 20 June 1997).
It is to be emphasised that, in a case where there may be a reference to this Court under s 474H(2) on the basis of fresh evidence involving collateral allegations against Crown witnesses, it would ordinarily be desirable for the person conducting the inquiry to ascertain, in the course thereof, the attitude of the Crown witnesses to those allegations. Otherwise, should the matter eventually be referred to the court, the admissibility of the allegations concerned will be left in a state of considerable uncertainty.
The other fresh evidence was also produced in the inquiry conducted by Graham DCJ. This evidence concerns Rupp and relates to seven complaints made against him. One, in particular, was regarded by Graham DCJ as being of some significance. These were complaints by the Petrinovic brothers concerning their arrests and interrogations in May 1987. Frank Petrinovic complained that Detective Rudd, with whom Rupp had a close working relationship, acted improperly in many respects. These included denying Petrinovic access to a solicitor, threatening him, allowing him to inject heroin as an inducement to sign certain photographs, assaulting him and forging his signature on the photographs.
I accept the submission made on behalf of the Crown that it is highly unlikely, in all the circumstances, that Rupp would admit to any of the Petrinovic complaints. On that basis, I consider that these complaints have little significance, if any, to the present inquiry. This conclusion underlines the consequences of the omission to question Rupp.
I turn now to the submission of counsel for the appellant that the appellant is entitled, as of right, to the conviction being quashed and a verdict of not guilty being entered. This requires the application of the principles laid down by Barwick CJ in Ratten v The Queen at 518.
The principal evidence against the appellant is that of Fluke and Mainstone. Their evidence is not directly affected by any of the fresh evidence. Only corroborative evidence is tainted. A reasonable jury might readily believe Fluke and Mainstone once more at any new trial. For that reason, when regard is had to all the material, I do not have reasonable doubt as to the appellant’s guilt and I am unable to conclude that a verdict of not guilty should be entered.
I now proceed to the next question that arises, namely, did the absence of the fresh evidence result in a miscarriage of justice such that, in the absence of any other discretionary considerations, the Court would order a new trial. This question requires the application of the principles set out in Ratten v The Queen at 519 and Mickelberg v The Queen at 273.
There is little doubt that the evidence of O’Connell was of importance in the trial judge’s decision to admit the written statement at the conclusion of the voir dire proceeding. The absence of the fresh evidence at the trial would have made it far easier for the jury to believe O’Connell and, in turn, the other police witnesses.
I agree with Abadee J that the admissions allegedly made by the appellant to the police were of considerable significance to the results of the trial. This underlies the serious misgivings of Allen J. The matters that troubled his Honour now loom large in the light of the fresh evidence. In particular, the evidence of identification that excludes the appellant and the failure of Pracy to recognise the appellant gain considerably in weight once doubt is caste on the confessional evidence. Also now of particular importance is the unconvincing evidence as to the explanation given by the appellant (according to the police) for failing to sign the statement. This has to be taken with the fact that the appellant was prepared to sign three other statements but not the incriminating one.
I appreciate that the fingerprint testimony must carry some weight. But a jury might consider that the appellant might have handled the money tin in his other visits to the house.
Regard must be had to the evidence of Flood, but I do not think that his evidence is conclusive, even when taken with all the other prosecution evidence.
It is also necessary to bear in mind that, as I have mentioned, the evidence of Fluke and Mainstone is not directly affected by the fresh evidence.
Taking into account all the material, and approaching the evidence in accordance with the principles expressed in Ratten v The Queen at 519, that is, “upon that view most favourable to an appellant”, I consider that the matters tending to establish the appellant’s innocence give rise to a significant possibility that a jury would acquit the appellant.
In the circumstances, I consider that the fresh evidence, on its own, entitles the appellant to orders quashing the conviction and granting a new trial. It remains to have regard to any discretionary factors which may establish that it would be contrary to the interests of justice to order a new trial. In that event, as I have explained, the appellant would be entitled to an order for acquittal on discretionary grounds.
It is first necessary, however, to deal with the argument raised by counsel for the appellant that it would be open to the Court merely to quash the conviction, not make an order for the entry of a verdict of acquittal, but order that there be no re-trial (or make no order that there be a re-trial). This was put as an alternative submission in the event of the court concluding that the appellant was not entitled to a verdict of acquittal as of right.
The starting point in considering this submission is s 6(2) of the Criminal Appeal Act 1912, which provides:
“Subject to the special provisions of this Act, the court shall, if it allows an appeal under s 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered”.
The relevant “special provision” is s 8(1), which provides:
“On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such a manner as it thinks fit, if the Court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make”.
Section 6(2) empowers this Court to quash the conviction, direct a judgment and verdict of acquittal to be entered. Section 8(1) empowers this Court, in the alternative, if it considers that a miscarriage of justice has occurred, to quash the conviction and to order a new trial. In my opinion, the sections do not empower the Court to order that no new trial should be held. Nor do they empower the Court to quash the conviction and make no other order.
Counsel for the appellant relied on the following remarks of Grove J (with whom James J agreed) in R v Hasenkamp:
“It has been a long-standing practice of the Court not to exercise discretion to order a new trial where the sentence imposed as a result of the quashed conviction has been served”.
His Honour did not make any reference to the entering of a verdict of acquittal and no order was made to that effect. The Court merely ordered that the verdict of guilty should be quashed and noted that a new trial should not be ordered.
In the course of his reasons, Grove J referred to Director of Public Prosecutions (Nauru) v Fowler where the High Court held that the legislation concerned (the Nauru equivalent of s 6(1) and s 8(1) of the Criminal Appeal Act) empowered the Supreme Court of Nauru, if it allowed an appeal against conviction, to quash the conviction and either direct a judgment and verdict of acquittal to be entered or, if the interests of justice so required, to order a new trial. Accordingly, the remarks of the High Court in that case were predicated on the assumption that, if the Court allowed an appeal against conviction, quashed the conviction and considered that the interests of justice did not require a new trial, it would “direct a judgment and verdict of acquittal to be entered”. The reliance by Grove J on this authority, and his Honour’s conclusion that the interests of justice did not require a new trial, indicate, in my view, that it was implicit in his reasons that a verdict of acquittal was to be the result of the orders made, and the omission to make an express order to that effect was an oversight. In my view, the reference by Grove J to the “long-standing practice of the Court” was solely directed to the discretion to be exercised “where the sentence imposed as a result of the quashed conviction has been served”, namely, in that event, to order that a verdict of acquittal be entered and no new trial ordered.
R v Bruno, unreported, CCA NSW, 7 July 1997 is similar to R v Hasenkamp. In this case, the appeal against conviction was allowed, the conviction was quashed, the Court determined that a new trial should not be ordered, and made no order entering a verdict of acquittal. The appeal succeeded because of a defect in the directions to the jury concerning identification evidence. Hence, a miscarriage of justice occurred. The reason why a new trial was not ordered was because of the length of the period the appellant had been in custody and the fact that he had stood trial on the charges in question three times. Thus, on the grounds of the interests of justice, no new trial was ordered. The Court’s reasoning was typical of that exemplified in cases such as King v The Queen at 427, 432 to 433, Gerakiteys v The Queen (1984) 153 CLR 317 at 330 and 331, and Spies v The Queen at 1283. Those cases treat a verdict of acquittal, in effect, as being a corollary to a decision not to order a new trial. Again, it seems to me, with respect, that it was implicit in the reasoning of the Court in R v Bruno that the appellant was entitled to a verdict of acquittal, and it was merely by oversight that an order to that effect was not made.
There are many cases where this Court has upheld an appeal against conviction, refused on discretionary grounds to order a new trial, and ordered that a verdict of acquittal be entered. Examples are R v Honeysett (1987) 10 NSWLR 638, R v Gilbert, unreported, CCA NSW, 10 December 1998 and R v Robinson [1999] NSWCCA 172.
R v Gilbert, unreported, CCA NSW, 10 December 1998 is a graphic illustration of the correct approach. This Court upheld an appeal against convictions on two counts, described as the second and third counts. Grove J (with whom Levine and Dowd JJ agreed) considered that a new trial should be ordered in respect of the second count, and such an order was made. His Honour came to a different conclusion as to the third count but explained that this was “because the sentence is already served and not because of any finding as to the quality of the verdict”. Thus, he proposed that a verdict and judgment of acquittal be entered on the third count and those were the orders of the Court.
Accordingly, I do not uphold the submission that the Court is empowered to uphold an appeal against conviction, quash the conviction, decline to order that a verdict of acquittal be entered, and order that no new trial be held, or decline to order a new trial.
I turn now to the question whether, on discretionary grounds, a verdict of acquittal should be entered.
It was common cause that, were the conviction, the subject of this appeal, to be quashed, the date of commencement of the overall term of eight years imprisonment imposed by Viney DCJ would have to be varied. That is because that term was directed to commence at the expiry of the five year minimum term for the sentence imposed by Urquhart DCJ. It was also common cause that, were the conviction to be quashed, it would be necessary to direct that the overall sentence imposed by Viney DCJ be regarded as having commenced on the date that the appellant commenced serving the term of imprisonment imposed by Urquhart DCJ.
Were the conviction so to be quashed and the overall sentence imposed by Viney DCJ so to be regarded, the appellant would have been eligible for parole in respect thereof in January 1996 and the full term of aggregate imprisonment imposed by Viney DCJ would have expired on 8 January 2000.
Accordingly, were the conviction to be quashed and the overall sentence imposed by Viney DCJ to be so varied, it would follow that the appellant would have served some fourteen months in excess of the full term of that sentence and would have lost the opportunity of being released on appeal more than five years earlier than the date on which he would be released by reason of the quashing of the conviction.
Were a new trial to be held and the appellant convicted, the sentence that would then have to be imposed would have to take into account the extra period of approximately fourteen months which the appellant has spent in prison and the opportunity for earlier release that he has lost.
That being so, it is likely that, were a new trial to be held, and the appellant convicted afresh, the sentence imposed would not involve a further term of imprisonment. Put another way, the appellant has, in effect, served all (or at least a substantial portion) of the sentence likely to be imposed if, at some future time, he were lawfully convicted of the offence the subject of this appeal. In those circumstances, as a matter of discretion, I would not order a new trial and would direct that a verdict of acquittal be entered.
In the circumstances, I propose that the appeal be upheld, the conviction quashed and a verdict of acquittal entered.
WOOD CJ AT CL: I have had the advantage of reading in draft the reasons for judgment of Ipp AJA. I agree with his reasons and the orders he proposes.
SIMPSON J: I agree that the conviction must be quashed. I adhere to the views I expressed in R v Hasenkamp, unreported, NSWCCA, 12 December 1997, that, in the ordinary course it is preferable that the consequential order be for a new trial rather than judgment of acquittal. That view applies where the grounds for quashing the conviction involves some error in the conduct of the trial, or the availability of fresh evidence. It does not, of course, apply where the reason for quashing the conviction is that the evidence was insufficient to support a conviction. My views so expressed are reinforced by the passage in the decision of the High Court in Spies v R [2000] HCA 43; 74 ALJR 1263 at para 104, per Gaudron, McHugh, Gummow and Hayne JJ.
Application of that principle, in the present case, is complicated by the need to adjust the commencement date of the applicant’s subsequent sentence. For that reason I agree that the appropriate order in this case is to enter a verdict of acquittal.
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LAST UPDATED: 23/03/2001