R v Pollock - [2005] NSWCCA 316

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Pollock [2005] NSWCCA 316

FILE NUMBER(S):
2005/426

HEARING DATE(S): 3 August 2005

JUDGMENT DATE: 22/09/2005

PARTIES:
Crown - Respondent
Daniel Keith Pollock - Appellant

JUDGMENT OF: Simpson J Howie J Rothman J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
P Miller - Crown
A Haesler SC with R Burgess - Appellant

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Appellant

CATCHWORDS:
murder conviction 1990
application for review of conviction
Crimes Act 1901, Part 13A
whole case referred to Court of Criminal Appeal
to be dealt with as an appeal under Criminal Appeal Act 1912
evidence of admission by appellant given by police officer in trial
denied by appellant
appellant alleged confessional evidence fabricated
appellant alleged participation in interview not voluntary
admissibility of confessional material
other uncontested evidence of admissions by appellant
fresh evidence
evidence given to the Royal Commission into the NSW Police Service
credibility of police witnesses at trial
police officer charged with refusing to submit to breath analysis, proved but dismissed
whether capable of affecting credibility of police officer at trial
police officer alleged to have taken part in assault
whether capable of affecting credibility
alleged inadequate or corrupt investigation of different murder
whether capable of affecting credibility
whether fresh evidence meets established tests
impact of Evidence Act 1995 on admission of evidence relevant only to credibility
no doubt or disquiet about conviction
appeal dismissed

LEGISLATION CITED:
Crimes Act 1900 s6, s474E(1)(b), s474L, s556A
Criminal Appeal Act 1912 s6
Evidence Act 1995 Part 3.7, s102, s103

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/426
SIMPSON J
HOWIE J
ROTHMAN J
Thursday 22 September 2005

REGINA v Daniel Keith POLLOCK

Judgment

SIMPSON J: On 20 November 1990, after a jury trial, Daniel Keith Pollock (to whom it will be convenient to refer as the appellant) was convicted of a charge that, on 9 May 1988, he murdered Terrence Damien Ryan. Wood J (as the former Chief Judge at Common Law then was) sentenced the appellant to life imprisonment. The appellant appealed, unsuccessfully, against his conviction to this Court: R v Pollock NSWCCA 13 April 1992.
On 24 February 2005, after an application under s474B of the Crimes Act 1900, Johnson J referred the whole case to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912: see s474E(1)(b) of the Crimes Act. The appellant seeks orders that the “appeal” be allowed, that his conviction be quashed, and that a verdict of acquittal be entered. The basis on which he claims these orders is that fresh evidence exists that was not reasonably available at the time of the trial, and that it is of sufficient cogency to cast doubt upon the correctness of the jury’s verdict.
By s474L of the Crimes Act the matter is to be dealt with in this Court as though the appellant had appealed against the conviction under the Criminal Appeal Act 1912, and that Act applies to the determination of the appeal. S6 of the Crimes Act relevantly provides as follows:
“6 The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal...”
The sole ground of appeal formulated on behalf of the appellant is:
“1.There is now fresh evidence which demonstrates that the Appellant’s conviction was a miscarriage of justice.”
background facts and circumstances
What immediately follows is, generally, an account of the Crown case as presented at the trial.
In the early hours of 8 May 1988 Mr Ryan was found in a severely injured state at the bottom of a flight of fire stairs in Wollongong. He had suffered abrasions to the head, a fracture of the right orbital plate and a massive subdural haematoma, bruising and abdominal injuries and lacerations to his right wrist. He was taken to hospital but died the following day.
No witnesses to the events that gave rise to his injury and death were discovered.
Detective Geoffrey Beresford, then a detective senior constable in the Homicide Squad, took charge of the investigation into the murder. Detective Wayne Gordon, also then a detective senior constable of the Homicide Squad, was a member of the investigating team. Also involved was a Wollongong-based officer, Detective David Ainsworth.
Initially, the appellant does not appear to have been a suspect. He came under suspicion after a prison informant (who subsequently gave evidence under the pseudonym Mr X) gave information to police that, while the two men were incarcerated in the Protection Unit of the Metropolitan Remand Centre between May and June 1988, he had confessed to the killing.
Mr X gave an account of a conversation with the appellant in the course of which, according to Mr X, the appellant said that he had been responsible for Mr Ryan’s death, and that it had been accidental. According to Mr X, the appellant recounted that on the evening in question, he had been trying to sell some “dope” but was unable to do so, and decided to use it himself. He went to a nearby fire stair in a back lane, a location he usually used for that purpose. A man came up the fire stairs. The appellant punched him in the head causing him to fall backwards down the stairs, onto the concrete below. The appellant followed him down the stairs, and kicked him in the head and the body until he lost consciousness. Mr X said that the appellant was crying while recounting these events and repeated that it had been an accident.
Detectives Gordon and Beresford interviewed Mr X in the Long Bay Prison. They showed him a folder of photographs from which he selected a photograph of the appellant as the person with whom he had had the conversation.
On 21 March 1989 Detective Beresford conducted an interview with the appellant, which, in accordance with the procedures that prevailed at that time, was recorded on a typewriter by Detective Gordon and subsequently signed by the appellant. The record contained a good deal of incriminating and confessional statements attributed to the appellant. It was later described by this Court as “central” to the Crown case against the appellant.
At the trial, a voir dire was conducted into whether the record of the interview ought be admitted in the trial. The appellant maintained that it was largely a fabrication, recording answers not given by him, and that his signature on the document was brought about by duress and that his adoption of the record was therefore not voluntary. The appellant gave evidence in the voir dire, to the effect that, for a period of 30 – 45 minutes before the questioning by Detective Beresford commenced, he was alone with Detective Beresford, and that, during that time, Detective Beresford made threatening statements and gestures to him, assaulted him and sought to induce him to confess to the murder by offering, if he did so, to assist him by minimising the gravity of his crime. He also alleged that Detective Beresford refused his request to telephone his solicitor.
The various assertions put forward by the appellant to show that his participation in the record of interview was not voluntary were recorded by Wood J in a judgment of 12 November 1990.
Wood J took an unfavourable view of the appellant’s credibility, and an essentially favourable view of the credibility of the police officers, who also gave evidence and were cross-examined. He dealt briefly with the allegations made by the appellant that parts of the answers recorded in the document did not reflect anything he had said but reflected answers given on his behalf by the police officers. (The veracity or accuracy of the record of interview did not bear upon its admissibility. The issue then before his Honour was whether the appellant’s participation in the interview had been voluntary.)
In conclusion, Wood J said:
“I see no reason to disbelieve any of the police officers who have given evidence in this case and, as a consequence, I am satisfied upon the requisite balance that the record of interview was voluntary and was neither induced by threat, promise or offer or false representation.”
He therefore determined to admit the record of interview although he subsequently rejected certain individual questions.
On the Crown case, at the conclusion of the record of interview, the appellant was taken by two Wollongong police officers (Detectives Ainsworth and Davidson) on what was called “a run around” of the location where Mr Ryan had been found. According to the evidence given in the trial by Detective Ainsworth, the appellant made further incriminating statements during this time, for example, identifying where and demonstrating how he had been sitting when approached by Mr Ryan, and describing his attack on Mr Ryan. Some of this was recorded photographically. No challenge was made to the accuracy of this evidence. Indeed, the experienced senior counsel who appeared for the appellant did not cross-examine Detective Ainsworth at all. The appellant’s response was that, although he had said and done what was attributed to him by Detective Ainsworth, he had in fact been referring to a different event. His explanation for what he had said and done, given in an unsworn statement (as was then permitted by s404A of the Crimes Act), was that what he had described to Detective Ainsworth at the scene had nothing to do with Mr Ryan, but related to a different incident.
Evidence was also given in the Crown case by another prison informer, who gave evidence under the code name Mr Y. Mr Y claimed that the appellant had made admissions to him in February 1989 while both were incarcerated in the Long Bay Prison and were in fact sharing a cell. According to Mr Y, one night when the two were playing cards, the appellant gave him an account which appears to have been quite similar in detail to that alleged by Mr X.
Thus, the evidence at the trial consisted, essentially, of allegations of four separate occasions on which the appellant had made confessional statements. These were, in chronological sequence:
(i)the admissions said to have been made by the appellant to Mr X in Long Bay Prison;
(ii)the admissions said to have been made by the appellant to Detective Beresford and recorded by Detective Gordon in the record of interview;
(iii)the admissions said to have been made by the appellant to Detective Ainsworth on the “run around”;
(iv)the admissions said to have been made by the appellant to Mr Y.
It may here be noted that the admissions said to have been made to Mr X in particular, and also, to a lesser extent, to Mr Y, must have carried very little weight with the jury. Apart from the difficulties inherent in evidence of informers generally (see R v Pollitt [1995] HCA 35; 174 CLR 558), other specific issues casting doubt upon their evidence arose. For example, and perhaps most tellingly, custodial records showed that the appellant and Mr X had never been held in the Protection Unit at the same time. The Crown sought (without evidence) to explain this apparent flaw in Mr X’s evidence by hypothesising that the records were erroneous. Further, Mr X wrongly described the appellant, on one occasion saying that he had a distinctive tattoo on his right arm, an assertion which was readily shown to be incorrect.
Mr Y, like Mr X, had a long criminal record and was a regular police informer, hoping and expecting to obtain benefit for himself by providing assistance in relation to the charge against the appellant. Although he had shared a prison cell with the appellant and they had in the past been friends, they had had a significant falling out. His credibility could not have been rated highly by the jury.
In all likelihood, it was the evidence given by the police officers of the record of interview and the “run around” that persuaded the jury of the appellant’s guilt. The evidence of the record of interview involved an assessment of the credibility of Detectives Beresford and Gordon in two ways. Firstly, there was the assessment made by Wood J in determining that the answers recorded had been given by the appellant voluntarily, and that the record should therefore be admitted; secondly, it involved the jury’s assessment of the credibility of those police officers both in relation to the assertions by the appellant as to voluntariness, and also as to the fabrication of certain of the answers.
Detective Ainsworth’s evidence was in a different category. The appellant did not dispute that he had given the answers or made the statements attributed to him, nor that the photographs accurately depicted the specific locations he had pointed out. Accordingly, no issue as to Detective Ainsworth’s credibility arose. That, obviously, was why Detective Ainsworth was not cross-examined. The issue in the trial about Detective Ainsworth’s evidence was whether what the appellant had said concerned Mr Ryan, or was, as he claimed in his statement, about a different incident. That raised an issue about the appellant’s credibility.
the fresh evidence
It is the appellant’s case that fresh evidence bearing upon the credibility of each of Detectives Beresford, Gordon and Ainsworth is available. This is different evidence in the case of each detective. I will outline it as follows:
(a) Detective Gordon
The most comprehensive evidence is that related to Detective Gordon. The evidence now sought to be raised derives from the investigation of another murder, of a notorious criminal called Roy Thurgar, on 20 May 1991. Detective Gordon was the officer in charge of the investigation into that murder. On 24 July 1991 Garry Raymond Nye was charged with the murder and other related offences. Mr Nye was acquitted following a jury trial. Subsequently he sued, inter alia, Detective Gordon for malicious prosecution, wrongful arrest, and false imprisonment. The matter came before O’Keefe J who delivered judgment on 16 December 2003: Nye v State of NSW & Ors [2003] NSWSC 1212. I will refer to these proceedings as “the Nye proceedings”. The Nye proceedings occupied approximately 70 hearing days and involved a detailed examination of the investigation of Mr Thurgar’s murder and the prosecution of Mr Nye. The present application does not involve reliance upon O’Keefe J’s findings of fact. Rather, it is the evidence that emerged in that case upon which the appellant now seeks to rely.
It was argued that the evidence given in those proceedings supported inferences to the following effect:
(a)that Detective Gordon relied upon a demonstrably unreliable and untruthful informer as the basis for arresting Mr Nye;
(b)that Detective Gordon failed to investigate an alibi advanced on behalf of Mr Nye and failed to pass relevant material on to the Director of Public Prosecutions (“the DPP”);
(c)that Detective Gordon was involved in an attempt to induce Mr Nye’s wife to “forget” an alibi that favoured her husband.
This, it was put, was relevant fresh evidence because the progress of the Nye investigation and prosecution displayed significant parallels with the investigation of Mr Ryan’s murder and the prosecution of the appellant. The first matter, alleged reliance upon an unsatisfactory informer, was put as a direct parallel with Detective Gordon’s conduct of the present investigation, and such matters were indicative of a generally derelict attitude to his duty, and therefore indicative of a lack of credibility.
A second matter concerning the credibility of Detective Gordon involved evidence given to the Royal Commission into the NSW Police Service (“the Royal Commission”). There it was alleged that, in July 1995, Detective Gordon, in company with two other police officers, after an off-duty evening spent drinking, became involved in a fight with three young men on a train. Detective Gordon was alleged to have assaulted one of the young men. Although the young men wished to pursue criminal charges against the police officers, they were themselves charged. The preparation of the charges was deficient and the proceedings were eventually terminated by the DPP. It was not Detective Gordon, but another detective, who became the informant in the proceedings, and who assumed charge of the investigation. This too, it was argued, was suggestive of a dereliction of duty , a less than ethical attitude to his role, and therefore reflected upon his credibility.
(b) Detective Beresford
The fresh evidence concerning Detective Beresford arose out of an incident on 2 June 1993, when he was charged with refusing to submit to a breath analysis. Almost two years later, on 14 March 1995, the offence was found proved, but dismissed pursuant to s556A of the Crimes Act. He may, at the same time, have been charged with driving under the influence of alcohol, but the records are unclear as to this, and it appears, if he were so charged, that he was acquitted of that offence.
(c) Detective Ainsworth
The fresh evidence sought to be adduced against Detective Ainsworth is said to concern the investigation by him of allegations of offences of sexual misconduct on the part of a Catholic priest. The allegations were made by three complainants in 1990 and related to events said to have occurred in 1983 or early 1984. In short, it was argued that the investigation was deficient in significant respects.
These allegations were the subject of some inquiry at the Royal Commission. The evidence given by Detective Ainsworth to the Royal Commission was also questioned as to its accuracy and/or veracity.
determination of an appeal on the ground of fresh evidence
The tests to be applied by an appellate court in determining an appeal on the ground of fresh evidence have been variously stated: see, for example, Gallagher v The Queen [1986] HCA 26; 160 CLR 392. It is sufficient, for present purposes, to extract what was said by Mason CJ in Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 at 273. His Honour said:
“The final matter concerns 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 The Queen. Deane J and I considered that the test was best expressed in those terms. Gibbs CJ expressed his substantial agreement with the statement, although his Honour emphasised that ‘no form of words should be regarded as an incantation that will resolve the difficulties of every case’. Dawson J said that the court would need to conclude that ‘a jury might entertain a reasonable doubt about the guilt of the appellant’. His Honour went on to say that in his view the use of the expression ‘significant possibility’ did not involve a different standard. I am in agreement with those statements.” (internal references omitted)
Writing only a few months earlier than the High Court delivered judgment in Mickelberg, in R v Saleam (1989) 16 NSWLR 14 at 21, Hunt J (as his Honour then was) outlined the principles applicable to the determination of appeals on the ground of fresh evidence (in terms not inconsistent with those later stated by the High Court) and went on specifically to consider a situation where additional material is relevant only to the credit of Crown witnesses. His Honour wrote:
“Where the additional material goes only to impugn the credit of Crown witnesses, the test is no stricter. The test is whether that material is properly capable of acceptance, and if so accepted would so affect such credit that, having regard to the part played in the trial of the evidence of that witness, it is likely that a jury would have arrived at a different verdict ...”

It is useful here to draw attention to some relevant dates. Mr Ryan died on 8 May 1988. The appellant’s trial concluded with his conviction on 20 November 1990. The allegedly deficient investigation by Detective Ainsworth of the complaints against the priest related to complaints made in 1990, and, presumably, to conduct of Detective Ainsworth during that year, and perhaps subsequent years. Mr Thurgar was murdered on 20 May 1991 and Mr Nye was charged on 24 July 1991. Detective Beresford’s charge of failing to submit to a breath test was brought on 2 June 1993. The events which led to the assault allegations against Detective Gordon occurred in July 1995.
The mere fact that the events the subject of the fresh evidence had not occurred as at the date of the trial is not a bar to the evidence of those events being considered on a fresh evidence ground by this court: see R v Robinson [1999] NSWCCA 186, unreported, 14 July 1999. There Barr J, with whom Abadee and Ireland JJ agreed, after stating the test posed in Mickelberg, wrote:
“38Notwithstanding that way of putting the test, the evidence which may be considered on appeal is not restricted to matters which were in existence at the time of trial. It is well established that evidence of subsequent events is capable of being fresh (or new) evidence for these purposes. Gallagher v The Queen; Mickelberg v The Queen. Neither has any distinction been made in principle between evidence to be adduced in chief and evidence to be adduced in cross-examination.”
Perhaps the most obvious possible evidence to illustrate the proposition that post-trial events may be the subject of a fresh evidence ground of appeal is a later confession to the crime in question by a third party: see, for example, Gallagher v The Queen.
However, the exercise involved can become somewhat artificial. In this case, the court is asked to hypothesise that the jury, in 1990, was asked to assess the credibility of the three police witnesses, on the basis, inter alia, of events and occurrences said to have occurred in that year (Detective Ainsworth); in the following year (Detective Gordon in relation to the Thurgar/Nye murder and charge); three years later, in 1993 (Detective Beresford, in relation to the refuse breath test); and five years later, in July 1995 (Detective Gordon in relation to the alleged assault). In Robinson Barr J wrote:
“48 ... This case is to be distinguished from those in which juries are asked to infer present dishonesty of witnesses from their past dishonesty. A jury may have no difficulty in concluding that a witness who has been dishonest in the past continues to be dishonest. Such a conclusion may be informed by the impression the jury receive from seeing and hearing the witness.
49 However, the problem of assessment becomes less easy when the jury is asked to infer dishonesty at an early time by reference to later events. No doubt a jury might readily infer that a witness they consider to have been dishonest on one day was dishonest the day before or the week before. But the further apart the two events are, the more tentative the conclusion must become, not least because the jury know nothing about intermediate events and are denied the opportunity of seeing and hearing the witness at the time of the asserted dishonesty.
50It is common experience that honest people may become dishonest under the influence of external events. They may yield to sudden temptation. They may become influenced, especially when immature and impressionable, by the attitudes of those around them. Such things are known to have happened among members of the New South Wales Police Service...”
In Robinson, the crime in question had been committed in October 1971 and the appellant was convicted August 1972. The fresh evidence proposed as the basis for the appeal related to events said to have occurred in 1975, 1984, 1985, and 1994. Barr J concluded that the proposed evidence lacked the materiality and cogency necessary to justify this Court in setting aside the conviction. This was, in part, because of the lapse of time between the date on which the credibility of the police witnesses was relevant (that is, 1972, the date of the trial) and the date of the events the subject of the fresh evidence.
Obviously, the lapse of time in that case was very considerably greater than the lapse of time in the present case, at least so far as the Ainsworth evidence, and the Gordon fresh evidence concerning the Thurgar murder and the Nye trial, are concerned. Nevertheless, the lapse of time must be considered as a factor in the assessment of whether the evidence, if it had been available at the time of the trial, may have had the necessary bearing upon its outcome.
That is not the only relevant question. An anterior question concerns the use to which the evidence may, in the trial, have been put. In the submissions advanced on behalf of the appellant it was accepted that all evidence would have been relevant and admissible only in relation to the credibility of the police officers.
It is pertinent here to note that the appellant’s trial took place in 1990, and was conducted in accordance with the rules of evidence, both statutory and common law, that appertained prior to the enactment of the Evidence Act 1995. The determination of what use might then have been made of the proposed fresh evidence (or any of it) must be made in the light of the evidentiary regime then applicable.
It may be that greater latitude than now exists under the Evidence Act regime was (at least in practice) allowed where cross-examination was said to go “to credit”. Nevertheless, it was necessary that the subject matter of any such cross-examination be relevant to the issues in the proceedings; and the cross-examiner was bound by the answers he or she received. That is, collateral evidence to rebut answers given in response to questions asked in cross-examination on credit was prohibited.
As I have indicated, all of the evidence here proposed as fresh evidence was, it was accepted, relevant only to the credibility of one or more of the police officers (although senior counsel who appeared for the appellant was tempted, at times, to suggest that the evidence established a “propensity” in one or more of the police officers to behave in a particular fashion).
(i) fresh evidence – Detective Ainsworth
It is convenient to begin the examination of the fresh evidence with that relating to Detective Ainsworth.
The assertion was made in written submissions filed on behalf of the appellant that evidence given in the Royal Commission would permit an inference that Detective Ainsworth failed adequately to investigate complaints of sexual misconduct made against the Catholic priest. The submissions go so far as to assert a “cover up”. It was said that Detective Ainsworth gave evidence at the Royal Commission that, in the absence of admissions by him, he did not think the evidence was strong enough to prosecute the priest; that he interviewed the priest but did not caution him; that he made no notes of the interview and did not prepare a statement; that he left two or three messages for a bishop but that these calls were never returned; that he had discussed the matter with a senior sergeant from Police Legal Services who confirmed that, without admissions, they could not advance the case against the priest; that he had discussed the matter with the Crown Prosecutor who gave oral advice to similar effect. Some of this evidence was contested. For example, the bishop gave evidence that he had not received any message from Detective Ainsworth, and that had any such messages ever been left, his staff would have passed them on – clearly leaving open the inference that Detective Ainsworth had not only been derelict in his duty in the investigations, but also that he had given false evidence in the Royal Commission. Detective Ainsworth’s evidence that he had made the telephone calls was not supported by any written note or record. The senior sergeant from Police Legal Services nominated by Detective Ainsworth had no recollection of a conversation of the kind attributed to him; nor did the Crown Prosecutor nominated by Detective Ainsworth, and he gave evidence that his recollection was that the discussion did not take place. Detective Ainsworth had no note or record of this conversation.
All of this, it was submitted, cast serious doubt upon Detective Ainsworth’s credibility. The doubt about his credibility was in respect of an investigation proximate in time to when he gave evidence in the appellant’s trial. If his credibility were under suspicion, in respect of the allegedly inadequate investigation, then his credibility in the appellant’s trial would suffer as a result – so the argument ran.
The evidence in question concerning the inadequate investigation is really evidence of a generalised incompetence, un-professionalism, ineptitude, lack of diligence or lack of commitment to the task. Evidence of what Detective Ainsworth told the Royal Commission, and the reasons for doubting it, could be evidence directly going to his credibility in relation to a circumstance in which he was under an obligation to be frank with the Royal Commission – as he was, in 1990, under an obligation to be frank with the court.
It is worth taking a moment to examine some passages in the Royal Commission transcript upon which reliance was placed concerning Detective Ainsworth’s investigation of the allegations against the priest. This occurred in the cross-examination of Detective Ainsworth:
“QAnd having looked at the material earlier, if Brother Evans had told you that he had a problem and that he was receiving counselling for matters that occurred in the past, would you regard that in certain circumstances as matters that you should pursue as possible admissions?
AYes.
QHaving received that information from, you believe, X2, did you raise it then with Brother Evans?
ANo, I believe that was after, but I didn’t raise it with Brother Evans, no, I did not.
QWhy didn’t you go back to him - -
AYes, I should have.
Q... Why didn’t you go back to him and say, ‘I’ve been informed that you have, on one view of it, made an admission that you have had problems in the past and are receiving counselling for them. I would like to talk to you about it.’?
AYes.
QWhy didn’t you do that?
AI didn’t. I should have.”
Counsel for the appellant relied upon this and subsequent cross-examination it is not necessary to extract as an admission of deficiencies in the investigation of the sexual misconduct allegations.
Perhaps it is so, but I doubt if the evidence concerning the defective investigation could properly be thought to raise in the jury’s mind a doubt which did not otherwise exist about Detective Ainsworth’s credibility in relation to the evidence he gave in the trial of the appellant.
Evidence about his alleged untruthfulness in the Royal Commission may be in a different category and, subject to proximity in time, could be relevant to a jury’s assessment of whether his evidence ought to have been accepted in the trial. I am of the view that evidence raising doubts about Detective Ainsworth’s truthfulness when giving evidence in the Royal Commission in 1995 is a matter which could be relevant to the assessment of his truthfulness in 1990. However, it is necessary to analyse what evidence was available, and how it might have been used. And when that exercise is undertaken it becomes apparent that, at best, suspicions about Detective Ainsworth’s frankness when giving evidence in the Royal Commission were raised. This is by reason of the content of the evidence given by the Crown Prosecutor, and the bishop, not explicitly contradicting anything said by Detective Ainsworth, but disclaiming any recollection of the events Detective Ainsworth said had occurred.
The best that could have been done with this material, again assuming its relevance, would have been to cross-examine Detective Ainsworth about those matters. No countervailing evidence could have been called to rebut the answers. But the evidence to cast doubt on Detective Ainsworth’s answers could have come only from others – the bishop, the Crown Prosecutor, the sergeant. This would not have been admissible. For this reason, alone, I am satisfied that the evidence relied upon in this respect as fresh evidence could not have had a material bearing, if it had been available at the time of the trial.
But there are two more fundamental reasons why that result should follow. Firstly, I am satisfied that the cross-examination on this material, if embarked upon, would have been disallowed as being too remote from the issues in the trial of the appellant. Secondly, Detective Ainsworth’s evidence in the appellant’s trial was of the “run around” following the record of interview. It was supported by photographic evidence. His evidence was that the appellant identified to him various parts of the locale where certain things had occurred. This evidence was not contested. The appellant accepted that he had spoken and behaved as described by Detective Ainsworth. The appellant’s case in respect of Detective Ainsworth’s evidence was that he had been referring to a different incident. Thus, Detective Ainsworth’s credibility was not in issue. What was in issue so far as his evidence was concerned was what the appellant had been referring to when he said what he admittedly said, and did what he admittedly did. The proposed fresh evidence in relation to Detective Ainsworth does not give rise to a significant possibility that the jury acting reasonably would have acquitted the appellant had that evidence been before it. It would and could have had no impact whatever on the outcome of the trial.
The supposed issued concerning Detective Ainsworth’s credibility is a wholly illusory one. Senior counsel sought to avoid this by relying upon the need for the jury to assess the appellant’s credibility in relation to his assertion that, in giving his answers, he was referring to a different incident. Detective Ainsworth’s credibility had nothing to do with that assessment.
(ii) the Beresford fresh evidence
The evidence concerning Detective Beresford’s credibility is that of his conviction for an offence of refusing to submit to a breath test, two and a half years after the appellant’s conviction.
The charge proceeded on 14 May 1995 at the Downing Centre Local Court. The magistrate found the offence of refusing to submit to a breath test proven, but, pursuant to the then operative s556A of the Crimes Act, exercised his/her discretion to decline to proceed to a conviction. It is of some significance that the magistrate described the circumstances as having a number of “extraordinary” features, which took the case far outside the ordinary case of refusal to undertake a breath test. One factor that influenced the magistrate was that, although Detective Beresford had been advised by an independent officer that he was obliged to submit to the test, he had then received contrary advice from a more senior officer.
Counsel who appeared for the appellant sought not only to use the fact of Detective Beresford’s unlawful behaviour as evidence relevant to his credibility, which, if known to the jury on the appellant’s trial, might have affected the outcome of the trial, but also sought to draw comfort from what was said to be a finding, in the judgment of the magistrate, that Detective Beresford had offered violence to another police officer. This, it was contended, was of considerable significance, because of the appellant’s allegations that he had been assaulted by Detective Beresford prior to the commencement of the record of interview.
Counsel who appeared for the appellant sought to rely on passages in the magistrate’s judgment to establish that circumstance. Examination of the passages to which reference was made does not support the contention. What the magistrate said was that Detective Beresford had been, by coincidence, stopped in his vehicle by another police officer with whom he had a considerable history of animosity. The magistrate declined to explore which, if either, of the officers was at fault “or the rights and wrongs”. He/she then said:
“... the relationship between the officers deteriorated at least from Dec 1987 and there is evidence from that period of some evidence of direct conflict between the officers both verbally and one indication of a physical conflict at the Strawberry Hills Hotel in June 1988...”
On this material, it is quite impossible to draw any conclusions that, even apart from the reasons of the magistrate, there is evidence that Detective Beresford offered violence to any other person, including any other police officer. Even if it did, it is extremely remote, and too remote, from the allegations made by the appellant, to have any possible bearing upon the outcome of the trial.
I am of the view that that evidence could have no possible bearing on the assessment of Detective Beresford’s credibility in 1990, and, even if available and permitted to be the subject of cross-examination, could not have had any bearing on the outcome of the trial.
(c) the Gordon fresh evidence
The specific matters alleged in relation to Detective Gordon are twofold. They involve, firstly, the investigation into Mr Thurgar’s murder, and the charging of Mr Nye, both of which occurred in 1991 and were reasonably proximate to the time at which his credibility was in issue, and secondly, an alleged assault on three young men in July 1995. There are three aspects of the Thurgar/Nye investigation upon which reliance is placed. They have been set out above.
The first is in a different category from the second and third. What was suggested was that Detective Gordon was prepared to present a case based upon unreliable and probably untruthful evidence. Counsel for the appellant sought to draw a parallel with the reliance on that unreliable and untruthful informer and his reliance upon Mr X and Mr Y in his trial.
I doubt whether, even in the pre-Evidence Act regime, the cross-examination proposed would have been permitted. It is not insignificant that, while Detective Gordon was the officer in charge of the Thurgar/Nye investigation, he was not the officer in charge of the investigations into Mr Ryan’s death. That was Detective Beresford. In response to that, it was argued that the two worked closely together and that mala fides demonstrated by one might be taken to taint the other. I reject this.
It was also claimed that Detective Gordon had been provided with information concerning an alibi available to Mr Nye, but that he had not only failed to investigate this, but that he had been involved in an attempt to induce Mr Nye’s wife to “forget” about relevant evidence. Once again, on examination, the evidence in support of the claim does not support it. Evidence was given in the Nye proceedings by Mr Neil Laing, who was, it seems, the father-in-law of Mr Nye’s brother. A statement made by Mr Laing to police was tendered in the Nye proceedings as exhibit V, but that has not been put before this Court. What was put before this Court was the cross-examination of Mr Laing in the Nye proceedings. It emerges clearly from his answers in that cross-examination that he was, in fact, interviewed by police after, and as a result of, the statement he had made.
It does not appear which police officers interviewed him, but that is of no moment. The claim that there is evidence that Detective Gordon failed to investigate alibi material relevant to Mr Nye’s defence cannot, on the evidence put before this Court, be sustained.
Mr Laing gave evidence in the Nye proceedings to the effect that, when he told the officer (whom he could not identify) that Mr Nye could not have committed the murder because he was at his (Mr Laing’s) house at the time Mr Thurgar was murdered, the officer responded by saying: “He’s only a crim.”. It was suggested that this, if it had been known to the jury, could have cast doubt upon Detective Gordon’s integrity and credibility. How this could be so is difficult to see as it was never established that it was Detective Gordon who interviewed Mr Laing.

The evidence about the attempted suppression of alibi information was given by Mr Nye’s wife, Kerry Nye. The effect of her evidence was that, after her husband had been charged, she conducted some investigations into her own movements and was eventually able, by reference to some documents, to pinpoint her whereabouts on the day of Mr Thurgar’s death, and from that, to identify where her husband had been. She said she conveyed this to police and was visited by two police officers, neither of them Detective Gordon. She said that one of these officers asked:
“Kerry, what can we do so you will forget Garry’s alibi?”
She recounted some further conversation with both of the officers who were inviting her not to pursue her account of her husband’s whereabouts.
It was accepted that Detective Gordon was not directly involved in the events recounted by Mrs Nye, but it was put that, because he was the officer in charge of the investigation, it should be inferred that he was aware of and condoned any improper approaches by officers under his command and supervision.
Once again, I am satisfied that this, even if the evidence could establish the proposition that officers sought to interfere with alibi evidence, or suborn a witness, is too remote to attach to Detective Gordon’s credibility. It is unlikely that cross-examination of Detective Gordon would have been permitted along the lines now proposed; and it is unlikely that, had it been permitted, it would have had any impact on the approach taken by the jury.
Another aspect of the accusations made against Detective Gordon was that he deliberately withheld relevant alibi information from the brief of evidence forwarded to the DPP.
In my opinion, if there were evidence that Detective Gordon deliberately failed to investigate a potential alibi or deliberately failed to disclose statements of relevant evidence to the DPP in the course of this investigation it would have been capable of bearing upon his credibility in the trial. It would have been capable of exposing him as a police officer more concerned with obtaining a conviction than with conducting an investigation and prosecution of integrity. Like the statement attributed to him that Mr Nye was “only a crim”, it could be taken as an indication of a disposition to prejudge the guilt of a suspect or be dismissive of the possibility of innocence. This was put forward as suggesting an attitude of carelessness at best, irresponsibility, or other mala fides in the discharge of his duties. Such doubt about his credibility could have translated into questions about his credibility in the appellant’s trial. However, such doubts have to be seen in the light of all of the evidence. Balancing any doubts about Detective Gordon’s credibility in relation to the taking of the record of interview (and bearing in mind that he was the typist and not the questioner) was the uncontested evidence of Detective Ainsworth, to which I have already referred, and which the appellant sought to explain by claiming a misunderstanding as to the subject matter of his own statements.
It could not be established with any degree of certainty that it was Detective Gordon who took the statements from the alibi witnesses. He himself said he could not recall doing so. That, in my view, is immaterial. He was the officer in charge of the investigation, and if it could be established that either he had knowledge of deliberate withholding of information favourable to Mr Nye, or that he had himself deliberately and mala fides failed to include such information in the brief of evidence to the DPP, then that fact would inevitably reflect upon his integrity. But evidence before this court does not permit a comfortable finding that Detective Gordon either suppressed relevant statements, or knew of the suppression of relevant statements. No evidence was identified which would enable this court to conclude that Detective Gordon had been involved in withholding such information from the DPP.
In that light, and while recognising that there may be some force in the submission that, had the appellant had available to him evidence of Detective Gordon’s unsatisfactory attitude to a significant investigation and prosecution, he may have been able to make some use of that in cross-examination, I am not persuaded that there is any significant possibility that the jury, acting reasonably, would have acquitted the appellant of the charge.
I am confident that the evidence of the alleged assault in July 1995 could have had no bearing upon the outcome of the proceedings. I am dubious whether cross-examination would or should have been admitted as to that, but, if it were, it was not such as to cast doubt upon Detective Gordon’s credibility in relation to the record of interview. The circumstances in which the assault was alleged to have occurred were vastly different to the circumstances in which the appellant claimed to have been assaulted. This is, of course, another matter on which collateral evidence would not have been permitted. The cross-examination would have been bound by the answers given.
It may also be that, had that evidence been available at the time of the voir dire into the admissibility of the record of interview, Wood J may have taken a different view of the credibility of Detective Gordon. It was Detective Beresford who was said to have made the threats and assaulted the appellant prior to the recording of the interview. It was said that he did this at a time when Detective Gordon was not present. Thus, the evidence, even if cross-examination were permitted, could not have affected the decision of Wood J in respect of the admissibility of the record of interview.
I have concluded that none of the fresh evidence is such as to cause any doubt or disquiet about the conviction. I am satisfied that none of the evidence meets the established fresh evidence tests.
Implicit in what I have said above is that, where a conviction is sought to be set aside on the ground of fresh evidence, two discrete questions arise. One concerns the admissibility of the fresh evidence proposed to be tendered. The other involves an assessment of the possible impact of that evidence on the outcome of the trial.
In this case, these questions give rise to a peculiar complication, and to additional questions. However, on reflection, I am satisfied that the issue is illusory. Since counsel were requested to, and, helpfully, did, provide written submissions, it is appropriate that I record the issues which appeared to have arisen.
The applicant’s trial was conducted before the commencement of the 1995 Evidence Act. The questions which appeared to arise were:
(i)Which evidentiary regime governs the approach to be taken by this court to questions of the admissibility of the fresh evidence? Is it the rules of evidence as they existed at the time of the trial, or that which, by the commencement of the 1995 Evidence Act, currently applies?
Given that the evidentiary questions that arise in the present case all concern evidence relative to credibility, that is a not insubstantial question. On one view, at least, the Evidence Act has significantly altered the law (or the practice) of the admission of evidence relevant only to credibility: see, generally, Part 3.7, and, particularly, ss102 and 103.
(ii)In a case where it was determined that the evidence is/was admissible, and had the capacity to affect the outcome, such as to warrant ordering a new trial, under what evidentiary regime would the new trial be conducted?
The question is of importance because, even if it were determined that the evidence would, at the time the original trial was conducted, have been admissible (and admitted), if, under a new and applicable evidentiary regime, it would not be admissible (or would not be admitted), then there would be no utility in ordering a new trial. On the other hand, if it were determined that the evidence would have been admissible if available at the time of the original trial, but would not be admissible in a new trial, a separate question of discretion might also arise.
The Evidence (Consequential and Other Provisions) Act 1995 contained transitional provisions. By cl. 2 of Schedule 2, the provisions of the Act do not apply “in relation to a proceeding the hearing of which began before the commencement of the provision ..:” except as otherwise provided.
That raises a question of when a criminal proceeding begins. In R v Pearson, NSWCCA, unreported, 5 March 1996, Gleeson CJ (with whom Smart and Sully JJ agreed) held that a criminal trial begins upon arraignment. On that view, since the applicant would have to be re-arraigned, the provisions of the 1995 Evidence Act would apply to any new trial of the applicant.
As I have indicated, I have reached the view that this is not the occasion to resolve these questions. Having regard to the analysis of the evidence undertaken above, I am satisfied that, to the extent the evidence would be admissible (and that is a tenuous assessment), none of it is such as would or could have affected the outcome of the trial.
Accordingly, I would dismiss the appeal.
HOWIE J: I agree with Simpson J.
ROTHMAN J: I agree with Simpson J.

**********

LAST UPDATED: 12/10/2005