R v Reardon (No 2)
[2004] NSWCCA 197
•23 June 2004
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R. v. REARDON, Michael Leonard [2004] NSWCCA 197
FILE NUMBER(S):
60419/99
HEARING DATE(S): 2 April 2004
JUDGMENT DATE: 23/06/2004
PARTIES:
Regina - respondent
Michael Leonard Reardon - applicant
JUDGMENT OF: Hodgson JA Simpson J Barr J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 98/11/0269
LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace, DCJ
COUNSEL:
Mr. Roberts SC with Mr. G. Farmer for Crown
Mr. H.K. Dhanji for applicant
SOLICITORS:
G. Drennan (CDPP) for Crown
S. O'Connor for applicant
CATCHWORDS:
CRIMINAL LAW - Appeal - Application to re-open after disposal of appeal - Perfection of order - Whether there is jurisdiction to re-open where grounds of appeal not dealt with, or procedural fairness denied
CRIMINAL LAW - Crown's duty of disclosure - Principles governing duty - Consequences of breach of duty - Whether onus on Crown to show no real chance of acquittal lost.
LEGISLATION CITED:
DECISION:
Application to re-open dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CA 60419/99
HODGSON JA
SIMPSON J
BARR JWednesday 23 June 2004
REGINA V. Michael Leonard REARDON (No.2)
HEADNOTE
FACTS
On 4 June 2002, the Court as presently constituted dismissed an appeal by Mr Reardon against his conviction (R v Reardon, Michaels and Taylor [2002] NSWCCA 203). In that judgment the Court dealt with all issues raised by the grounds of appeal of all appellants, and all issues identified in a previous judgment of 1 March 2002. However, the judgment did not deal with a suggestion, advanced by Mr. Ramage QC for Mr. Reardon, that certain running sheets were relevant to Mr. Reardon’s defence that he never intended to import cocaine, but rather intended to defraud the witness W of the money that W was to provide for the supposed importation of cocaine (the “rip-off” defence).
By written submission dated 29 July 2003, Mr. Reardon applied to re-open the appeal against conviction on the ground that he was denied procedural fairness, as one of his arguments had not been dealt with by the Court.
This submission argued that entries in running sheets kept by the National Crime Authority (NCA) should have been disclosed by the Crown prior to the trial; and that the Crown’s failure to do so caused a miscarriage of justice, because Mr. Reardon was denied support to his “rip-off” defence that those running sheets could have provided.
Two broad issues were argued on the application to re-open the appeal. First, could and should the Court re-open the hearing of the case? Second, if so, had a miscarriage of justice occurred as a result of the Crown’s breach of its duty of disclosure to the appellant.
The first issue gave rise to three main questions. Was the order of the Court perfected? Can the Court of Criminal Appeal re-open the hearing of an appeal after an order has been perfected? Can and should it do so in this case?
The second issue gave rise to four main questions. What is the Crown’s duty of disclosure? Was it breached in this case? If so, what use could have been made at the trial of the material that should have been disclosed? Has there been a miscarriage of justice?
HELD
1. The orders of the Court of Criminal Appeal in this case were perfected by reason of entries made in the records of the Court of Trial by 10 July 2002;
2. The principle in Grierson v. The King (1938) 60 CLR 431 is binding. The Court of Criminal Appeal has no jurisdiction to re-open an appeal once it has heard and determined the appeal on its merits and the order has been perfected. This is subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud.
3. There was no jurisdiction to re-open Mr. Reardon’s appeal.
4. (per Hodgson JA) Subject to the question of privilege and public interest, the prosecution must disclose documents which are material. A document is material if it can be seen, on a sensible appraisal by the prosecution to: (a) be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case; or (c) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence going to either (a) or (b): R v. Keane [1994] 2 All ER 478. An issue in the case must be given broad interpretation; and category (c) indicates that the duty is not limited to admissible evidence: R v. Brown (Winston) [1998] AC 367 at 376-7.
5. (per Hodgson JA) Unless disclosure is excused because of legal professional privilege or public interest considerations, contemporary documents created by the police in the course of surveillance or undercover operations should be disclosed if they fall within the Keane/Brown principles. Accordingly, it would seem that the NCA running sheets should have been disclosed.
6. (per Hodgson JA and Simpson J) However, having regard to the limited use to which the undisclosed material could have been put, there was no miscarriage of justice. There was no real chance that the jury would have acquitted Mr. Reardon, had the material been available.
ORDER
Application to re-open appeal dismissed.
**********
IN THE COURT OF
CRIMINAL APPEAL
CCA 60419/99
HODGSON JA
SIMPSON J
BARR JWednesday 23 June 2004
REGINA V. Michael Leonard REARDON (NO.2)
Judgment
HODGSON JA: On 4 June 2002, the Court as presently constituted gave judgment in respect of appeals against conviction and sentence brought by Messrs. Reardon, Michaels and Taylor ([2002] NSWCCA 203). Those appeals had first been argued on 25 October 2001, but in order to allow Mr. Michaels to put on submissions based on documents in respect of which production had been ordered by the Administrative Appeals Tribunal, leave was given to Mr. Michaels to put on further written submissions after that hearing. He did so, and on 1 March 2002, the Court gave the following judgment:
The appeal in this matter was heard last year. When the appeal was called on, Mr Michaels applied for an adjournment. The adjournment was refused, but leave was given to Mr Michaels to put on additional material after the hearing. He did provide that material to the court and that material raised three issues in relation to which the court would be assisted by a further short hearing.
The three issues are these: Firstly, material was provided that on its face suggests that a sum of $375,000US was sent from Australia to South America. If that was indeed the case, then there is a strong argument to the effect that prosecution witnesses lied about this. That in turn may affect the safety of the conviction. It may be that there are other documents that show that $375,000 was not sent, but at this stage we do not have any such documents.
The second matter is that there appear to be running sheets kept by persons monitoring the alleged conspiracy that were not disclosed to the defence at the time of the trial, which may give some credence to the allegation that pressure was put on the alleged conspirators to continue with the alleged conspiracy.
The third matter is that it is alleged that the true criminal record and psychiatric history of a prosecution witness was not disclosed. The court would be assisted if the appellants can have legal representation in the argument concerning these matters.
It may be that the prosecution would wish to put on some evidence and if so, that evidence should be provided within 14 days. So the orders that I make are these:
The matter is set down for further hearing on 5 April. The court directs that any further material to be provided by the Crown be filed and served on or before 15 March.The further hearing of the appeal took place on 5 April 2002. All three appellants were represented, and submissions were advanced on behalf of Mr. Michaels and Mr. Reardon concerning the running sheets mentioned in connection with the second issue referred to in the judgment of 1 March 2002.
Mr. Ramage QC for Mr. Reardon made submissions concerning the matter of pressure referred to in the judgment of 1 March 2002. He also added a suggestion that the running sheets would have been relevant to Mr. Reardon’s defence that he never intended to import cocaine but rather intended to “rip-off” money to be provided for a supposed importation of cocaine; but he did not indicate how the running sheets could have been used for that purpose. Mr. Reardon’s rip-off defence is referred to at pars.[55] and [137] of the Court’s judgment of 4 June 2002.
That suggestion was outside the issue mentioned in the judgment of 1 March 2002, was outside Mr. Reardon’s grounds of appeal, and no application was made to amend Mr. Reardon’s grounds of appeal.
In the reserved judgment of 4 June 2002, the Court dealt with all issues raised by the grounds of appeal of all appellants, and all issues identified in the judgment of 1 March 2002; but it did not deal with the suggestion that the running sheets may have supported Mr. Reardon’s “rip-off” defence. By written submissions dated 29 July 2003, Mr. Reardon has applied to re-open the appeal, on the ground that he was denied procedural fairness in that one of his arguments was not dealt with by the Court.
Following receipt of submissions from the Crown and submissions in reply, the Court caused the Registrar to send a letter dated 11 December 2003 to the solicitors for Mr. Reardon and the Crown, in the following terms:
Justices Hodgson, Simpson and Barr have now considered the submissions of the Crown dated 14 November 2003, and the submissions in reply dated 21 November 2003, and have noted the renewed request on behalf of Mr. Reardon that the matter be listed for oral submissions. They now consider that they would be assisted by oral submissions on the matter generally, and in particular on the following questions:
1.Should the principles applied in UK cases such as McIllkenny (1991) 93 CrimAppR 287, R v. Ward [1993] 2 AllER 577, R v. Davis [1993] 2 AllER 643, R v. Keane [1994] 2 AllER 478, R v. Brown (Winston) [1998] AC 367 and R v. Mills [1998] AC 382 be applied in New South Wales? Cf. R v. Reci (1997) 70 SASR 78, R v. Garofalo [1999] 2 VR 625 at [58]-[63], Easterday v. R [2003] WASCA 69 at [194], [390], article “Unused Material and the Prosecutor’s Duty of Disclosure” (2001) 25 (3) Criminal Law Journal 121.
2.What use could have been made of the undisclosed material, particularly the running sheets referring to a police fear of a “rip off”, at the trial?
3.How do the principles concerning disclosure apply where there is a vast quantity of records such as running sheets, and where a subpoena for such material is served by the defence and not pressed?
4.When was it first made known to the Crown that Reardon’s defence was that he never intended to import cocaine but intended to defraud the witness W of money provided for this purpose? Is there any reason to think that the prosecution did not advert to the existence of the running sheets referring to police fear of a “rip off” at or after this time and before the conclusion of the trial?
5.In the light of answers to Questions 1-4, was there a breach of the Crown’s duty of disclosure in relation to the running sheets, especially those referring to police fear of a “rip off”?
6.Is the test concerning the lost chance of acquittal less demanding in cases of Crown non-disclosure than in fresh evidence cases generally, and if so, to what extent and where does the onus lie? See Gallagher v. The Queen (1986) 160 CLR 392, Grey v. The Queen [2001] 75 ALJR 1078, Bradshaw v. The Queen (Western Australian Court of Criminal Appeal, 13/5/97), Button v. The Queen (2000) 25 WAR 382 at [14]-[16], Easterday at [200]-[201] and [389]-[397].
Further written submissions were received, and there was a further hearing of the matter on 2 April 2004. The Court reserved its decision.
THE MATERIAL
The submissions sought to be advanced on behalf of Mr. Reardon were to the effect that entries in running sheets kept by the National Crime Authority (NCA) should have been disclosed by the Crown prior to the trial; and that the Crown’s failure to do so has caused a miscarriage of justice, because Mr. Reardon thereby lost a reasonable chance of acquittal by not having the support to his “rip-off” defence that access to some entries in those running sheets would have provided.
There are in fact a substantial number of entries in running sheets that were not disclosed prior to the trial but have now been disclosed, pursuant to freedom of information applications and otherwise. Mr. Reardon’s submissions have focussed on four entries in particular.
First, there is an entry dated 5 August 1997, recording a conversation between Commissioner Cubillos, from the Chilean Anti-Narcotics Police, to an NCA officer in Sydney, in the following terms:
Cubillos, from Chilean Anti-Narcotics Police: Commissioner Cubillos was advised that CC463 provided $350 to Sharon, REARDON's wife and that Sharon is aware of what REARDON is involved in Santiago. Surveillance keeps monitoring REARDON's comings and goings out of the hotel. US$ 375K has been effectively transferred to UC's undercover account. Police is disconcerted by REARDON's confidence in getting about in Santiago (as he supposedly has never been there and travels by public transport around Santiago without asking for directions) and the fact that he does not seem to be contacting anyone locally. Police are wary that REARDON may have planned a rip-off and may not proceed with a transaction (this based on REARDON's movements about the city and his non-contacting any locals). UC to start pressuring REARDON to proceed with transaction. UC to wear a wire on future meetings to allow police to charge REARDON on conspiracy charges under Chilean drug legislation, under a worse case scenario (no drugs on ground). REARDON is still guarded on conversations with UC and only talk about "Teddy Bears" not drugs. After arrest, Cubillos would try to quickly roll REARDON over in order to obtain information about other participants, drugs. FA Alan Hicks to be present during debriefing (if any). Cubillos concern that REARDON seems like the "hardened criminal type" and not likely to talk. Cubillos promised that all information ex-REARDON would be quickly passed onto the NCA. Cubillos advised Chilean legislation allows plea bargaining in exchange for reliable information and cooperation with authorities. Cubillos was advised about REARDON's fear of doing time in a Chilean prison.
Next, there is an entry for the 6 August 1997, again recording a conversation between an NCA officer in Sydney and Commissioner Cubillos, which included the following:
Cubillos was advised that NCA is confident that Reardon is not in Chile about a scam and will abscond with the money. Reardon is in Chile about drugs.
Thirdly, there is a record of a conversation on 7 August 1997 between a Chilean police officer known as Oscar and the same NCA officer in Sydney. That record is as follows:
Telephone conversation (1400 hrs) with UC Oscar, from Chilean Anti-Narcotics Police:
Oscar held a meeting with Reardon. Reardon very concerned and apologetic about the failure, concedes that the failure lies with him and the transport people/supply people. REARDON speaks with knowledge/propiety (sic) about a shipping company/organisation. REARDON very concerned about the loss of face and his criminal reputation in Australia as a professional. REARDON explained that transport people had not consolidated a full load and importation could not be carried through. Oscar pushed him hard to see if REARDON would show gear. Oscar told in repeated occasions that REARDON had no idea on the calibre of people he was dealing with (on financial side) and that his lack of professionalism reflected poorly on the group. Oscar told REARDON that "you do not treat a large creditable organisation like the one I worked for in that manner" Oscar ask "just what kind of (drug) suppliers are dealing with low-level people?" REARDON did not want to arrange a show of drugs. REARDON promised to "face the music" and explain the operation and the reasons behind the failure to the "financial" group upon return. REARDON explained that next time he'll return with (Aust-based) Chilean contact, as guarantee, to assure no mistakes. (The Chilean contact never did arrive). UC's assessment: REARDON probably has a Chilean contact whom he met in Sydney and who talked REARDON into the business, REARDON went to Santiago believing that pulling off this operation would be far easier. His inexperience in dealing with sophisticated South-American/international groups is evident. UC believes that making a second call is not effective at this stage, as there is nothing to be gained, REARDON is committed to returning to Australia, and there is nothing that REARDON can do locally anyway. UC believes best thing is for syndicate to "debrief” REARDON upon arrival at Sydney. Oscar left REARDON in (sic) good friendly terms in case he returns to Chile. REARDON feels comfortable dealing with Oscar.Finally, there is a record of a conversation on 8 August 1997 between the same NCA officer and Commissioner Cubillos, which is as follows:
Telephone conversation (1015 hrs) with Comisario Antonio Cubillos, from Chilean Anti-Narcotics Police:
Commissioner Cubillos advise that REARDON departed in LANCHILE flight 033 at 1700 hrs (Chile), Departing Santiago Easter Island-Pappete. REARDON was observed purchasing a map of Santiago and a map of Chile, prior to departure. Cubillos advised that on the last meeting with UC REARDON gave assurances to return with a Chilean contact and that business would be conducted in 2-3 days. Cubillos said that the normal M.O. in the Chile is an on-site exchange of drugs and money not the pay after embarcation (sic) arrangement REARDON's group proposed. Police and magistrate involved in the investigation feared that REARDON planned a rip-off. UC advised that on first meeting REARDON inquired about obtaining a gun in the Chile. Police to maintain $375 K undercover account for 20-30 days in case REARDON returns.GROUNDS OF APPEAL AND ISSUES
The grounds of appeal against conviction relied on by Mr. Reardon, prior to an application to amend those grounds made in written submissions dated 30 April 2004, were as follows:
1The trial miscarried.
2The trial judge erred in:
(a)failing to temporarily adjourn the jury panel;
(b)discharging a juror from the jury on 24 March 1999;
(c)failing to discharge the balance of the jury and continuing with a jury of eleven;
(d)failing to comply with the provisions of the Jury Act 1977 (NSW).
3The trial judge erred in failing to discharge the jury on 29 March 1999.
4The trial judge erred in failing to give the jury a section 165(2) [Evidence Act 1995] direction in respect of the evidence of the witness [W].
5.The trial judge erred in failing to comply with the provisions of s165(3) Evidence Act.
In written submissions dated 30 April 2004, leave is now sought to add two further grounds of appeal, as follows:
6.A miscarriage of justice occurred as a result of the Crown’s breach of its duty of disclosure to the appellant.
7.A miscarriage of justice occurred as a result of the unavailability of fresh evidence in the form of evidence of police surveillance of the appellant.
Two broad issues have been argued on the application to re-open this appeal:
1. Could and should the Court re-open the hearing of the case?
2. If so, has either of the additional grounds of appeal been made out?
Under the first issue, three main questions were debated. Was the order of the Court perfected? Can the Court of Criminal Appeal re-open the hearing of an appeal after an order has been perfected? Can and should it do so in this case?
Under the second issue, the following matters were debated. What is the Crown’s duty of disclosure? Was it breached in this case? If so, what use could have been made at the trial of material which should have been disclosed? Has there been a miscarriage of justice?
I will deal with these matters in turn.
WAS THE COURT’S ORDER PERFECTED?
The law appears to draw a distinction between the making of a Court order, and its being perfected by some formal entry. This distinction is reflected in the Criminal Appeal Rules, especially rules 50A, 51 and 53, which are in the following terms:
50A Determination of appeal or application
An appeal or application for leave to appeal is determined on the making of orders disposing of the appeal or application.51 Notice of determination of appeal etc
The Registrar shall send a notice (Forms Nos XI and XII) of the determination of any appeal, or of any application incidental thereto, to the appellant, if he was not present when the matter was determined, to the proper officer of the Court of Trial, to the Director-General of Corrective Services and to the Sheriff, if the appeal is against a conviction involving a sentence of death or is against a sentence of death.53 Records of Court of Trial to be noted
(1)Such proper officer shall thereupon enter the particulars of such notification on the records of the Court of Trial.
(2)Such entry shall be made in conformity with the administration of the Court of Trial on:
(a) the indictment,
(b) the appropriate Court file, or
(c) the appropriate computer record.In these rules, the Court (as distinct from the Court of Trial) is the Court of Criminal Appeal, and the Registrar is the Registrar of the Court of Criminal Appeal: cf. Criminal Appeal Act 1912 s.4. In the present case, r.50A took effect when the judgment was delivered and orders were made on 4 June 2002. Records from the District Court show that r.53 had been complied with by 10 July 2002. Although it may seem odd that the perfection of an order of the Court of Criminal Appeal occur by reason of entries made in the records of the Court of Trial, that appears to be what is contemplated by the Criminal Appeal Rules: cf. Stephens (1990) 48 ACrimR 323. In any event, in my opinion it seems clear that the orders of the Court of Criminal Appeal in this case were perfected by 10 July 2002; and the contrary was not submitted on behalf of Mr. Reardon.
Before proceeding to consider the other issues, I would comment that it does seem unsatisfactory that very serious consequences should depend upon administrative action in the District Court, which may at the choice of some administrative officer in the District Court occur quickly, or in a matter of weeks (as in this case), or not for very many months (as in the case of Lapa, which is referred to later). It would be far more satisfactory if the perfection of an order occur upon expiry of a specified time, perhaps 14 days or 28 days, so that the parties know that they have a limited time in which they may, on sufficient cause, apply to the Court to reconsider its judgment; and that after that time no such application can be made. That would have the merit of ensuring that legitimate applications can be brought promptly, and of preventing what occurred in this case, namely an application made over a year after judgment was delivered. Unless and until the rules are amended to provide for that result, it could be useful in some cases for a court delivering a reserved judgment to direct that the judgment not take effect for a period of 14 days or 28 days.
CAN THE COURT OF CRIMINAL APPEAL RE-OPEN A CASE AFTER ITS ORDERS HAVE BEEN PERFECTED?
In Grierson v. The King (1938) 60 CLR 431, the High Court of Australia held that the jurisdiction of the Court of Criminal Appeal of New South Wales is confined within the limits of the Criminal Appeal Act 1912, and that therefore the Court has no jurisdiction to re-open an appeal which it has heard upon the merits and finally determined. At pp.436-7, Dixon J (with whom McTiernan J agreed) said this:
Under the Judicature system an action may be brought to set aside a judgment obtained by fraud, but it is an independent proceeding equitable in its origin and nature (Ronald v. Harper [1913] VLR 311 at 318, per Cussen J.; Halsbury's Laws of England, 2nd ed., vol. 19, p. 266 and the cases there collected, particularly Jonesco v. Beard [1930] AC 298). But under that system no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up (In re St. Nazaire Co. (1879) 12 ChD 88). If the prisoner has abandoned his appeal, the Court of Criminal appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal (Halsbury’s Laws of England, 2nd ed., vol.9, p.273, and the cases cited in note o). But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained.
However, it was submitted for Mr. Reardon that there are qualifications to that principle.
Before considering the most directly relevant cases, I would note that in State Rail Authority of New South Wales v. Codelfa Construction Pty. Limited (1982) 150 CLR 29 at 38, Mason and Wilson JJ said they had no doubt that the High Court had jurisdiction to entertain an application to vacate orders which had been perfected. However, they referred to the cases of Rajunder Narain Rae v. Bijai Govind Singh (1839) II Moo Ind App 181, 18 ER 269 and Venkata Narsimha Appa Row v. Court of Wards (1886) 11 App Cas 660; and these cases suggest that there is a special exception to the rule against re-opening perfected judgments “to prevent irremediable injustice being done by a Court of last resort” (Rae’s Case at 220, 18 ER at 284). That is, the exception being referred to in this case does not apply to intermediate courts of appeal.
The possibility of a qualification to the principle stated in Grierson was raised in Jones v. The Queen (1989) 166 CLR 409. In that case, on an appeal against conviction to the Court of Criminal Appeal in Tasmania, an appellant advanced a number of grounds. The Court upheld two grounds, quashed the conviction and directed that there be a new trial; but did not deal with other grounds the acceptance of which would have entitled the appellant to a verdict of acquittal. The High Court of Australia held that the Court of Criminal Appeal had failed to dispose fully of the appeal, and ordered that the matter be remitted to that court to complete the hearing and determination of the appeal. At pp.414-5, Mason CJ and Brennan, Dawson and Toohey JJ said this:
The order of the Court of Criminal Appeal has been perfected. Counsel for both parties in this Court approached the application for special leave on the footing that it is now too late for the applicant to move the Court of Criminal Appeal to hear and determine the grounds left undetermined. If that be right – and in this case we should assume but not decide that it is – it is regrettable that when the omissions from the reasons for judgment in the Court of Criminal Appeal become known and before the formal order of the Court was perfected such an application was not made to the Court. Now, in order to ensure that the applicant’s appeal to the Court of Criminal Appeal is fully determined, it is necessary to vary that Court’s judgment and to remit the matter for further hearing and determination.
Thus the majority in that case left open the possibility that, even after an order has been perfected, a Court of Criminal Appeal may be able to re-open the case to hear and determine grounds of appeal left undetermined.
The question was adverted to again in Pantorno v. The Queen (1989) 166 CLR 466. That was a case where special leave to appeal to the High Court was sought on a ground raised for the first time in that Court. It was argued that this was a point that emerged only when the Court below pronounced its judgment.
At pp.474, Mason CJ and Brennan J said this:
Failure to argue a point before a court of criminal appeal presents a considerable obstacle to an applicant who seeks special leave to argue it in this Court. Even if the point emerges clearly only when a court pronounces its judgment, it should be appreciated by counsel who receive judgment that they are under a duty to draw the court's attention to issues which, in the light of the judgment, require further consideration by that court and to move the court to consider any such issues before the formal order of the court is perfected. On occasions, a court of criminal appeal may have to give further consideration to issues which were relegated to the margin of attention during the argument, though it is not required to consider new grounds which counsel abstained from raising on the appeal. In the present case, the failure of counsel to seek further consideration of the natural justice issue once Bridges was overruled by the Full Court is a factor which counts against the grant of special leave. However, as there seems to have been an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a court of criminal appeal once its judgment is pronounced, it is not a fatal objection to the grant of special leave in this case. In this case, as a denial of natural justice appears from the concession made in this Court, as the point was covered by the grounds of appeal in the Court of Criminal Appeal and as argument in this Court proceeded upon the tacit assumption that the formal order of the Court of Criminal Appeal had been perfected so that there are now no means of remedying the position save an appeal to this Court, special leave should be granted.
At p.484, Deane J, Toohey J and Gaudron J said this:
There is one further matter which should be mentioned. It is that the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that Court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court. In view of the shortness of the minimum sentence to be served by the applicant, however it would be inappropriate for this Court now to relist the matter for further argument so that the validity of the assumption (about which we express no view) that the Court of Criminal Appeal now lacks jurisdiction could be examined.
There was further reference to this question in Postiglione v. The Queen (1997) 189 CLR 295 at 300, per Dawson and Gaudron JJ:
If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione's first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King (9). It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to re-open an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal (10). Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected (11). Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected.
The reference in note (11) was to the passages from Pantorno set out above. At p.327, Gummow J expressed his agreement with this passage. However, at p.315, McHugh J appeared to consider that the matter was foreclosed by Grierson.
In Lapa (No.2) (1995) 80 ACrimR 398, the Court of Criminal Appeal had delivered judgment on 8 August 1994, and the appellant’s solicitors had written to the Court on 27 October 1994 claiming that the Court had not determined one of the grounds of appeal. The Court found in that case that the order of 8 August 1994 had not been formally entered when the application was made on 27 October 1994, it gave judgment on the application on the assumption that the order was perfected thereafter before this judgment was given. The Court of Criminal Appeal held that it could review, correct or alter its judgment at any time until its order or judgment had been perfected; and that power was not lost by the administrative act perfecting the order taking place after the application to re-open had been made. Clarke JA (with whom Handley JA and Sully J agreed) referred to Jones and Pantorno, but nevertheless concluded that once an order has been perfected, subject to rules of court and possible exceptions concerning subsidiary matters, a court has no power to reconsider its decision and the judgment can only be reviewed on appeal, referring to Bailey v. Marinoff (1971) 125 CLR 529. This case was decided before Postiglione.
In R. v. McNamara (No.2) [1997] 1 VR 257, it was argued before the Court of Appeal of the Supreme Court of Victoria that an appeal could be re-opened after it had been fully heard and disposed of on the merits, in circumstances where one of the grounds of appeal had not been argued on the appeal and thus had not been determined. The Court (Winneke P, Charles JA and Southwell AJA) held that the principle in Grierson applied; and held that, even if there were jurisdiction to re-open the appeal, it should not be exercised in this case because there had not been any denial of procedural fairness or error of a nature which might entitle an applicant to relief. The Court referred to Pantorno; but again, this case also was decided before Postiglione.
Thus, it would seem that, at least until after this decision, the weight of authority was to the effect that while a denial of procedural fairness would be a ground for re-considering a decision that had been delivered, if application was made before the order was perfected, there was no jurisdiction to do so if the application was made subsequently. However, there are two later cases in the New South Wales Court of Criminal Appeal suggesting the contrary.
First, there is Saxon (1998) 101 ACrimR 71. In that case, the appellant had been convicted, and a previous appeal against conviction had been dismissed, and the order of the Court perfected. The appellant sought to bring a further appeal on the basis that a co-accused had now given a statutory declaration which exculpated him. The Court of Criminal Appeal (Wood, Smart and Sperling JJ) dismissed this attempted further appeal, relying on Grierson. However, at p.76, Wood J, which whom Smart and Sperling JJ agreed, said this:
Unless Grierson has been qualified in some fashion this Court has no option other than to follow it: Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 200 at 207 per Barwick CJ. Far from having been questioned, its authority has been recognised in a number of subsequent decisions in New South Wales and in those states where a similar point has arisen for decision.
Some exceptions have been noted, including:
(a)the discretion to allow a fresh appeal after abandonment of an earlier appeal, on the ground that the earlier appeal had not been the subject of any final determination - per Dixon J in Grierson and see Cartwright (1989) 17 NSWLR 243 at 246;
(b)the discretion to reconvene and entertain further argument in respect of a submission or ground of appeal which had not been dealt with, if the application to consider the outstanding matter had been made before the judgment of the court was perfected: Lapa No 2 (1995) 80 A Crim R 398;
(c)the discretion to look at the matter afresh where there had been a denial of procedural fairness in a Court of Criminal Appeal: Pantorno (1989) 166 CLR 466; 38 A Crim R 258 and McNamara (No 2) [1997] 1 VR 257; (1996) 86 A Crim R 339.
The submission that these exceptions rest upon a more general discretion to intervene, in the interests of justice, is not borne out by an examination of the decisions relied upon by the appellant.
At p.82, Sperling J said this:
It does not seem to me that the later cases cited by the appellant are true exceptions. An abandoned appeal is not an appeal heard and determined Cartwright. A jurisdiction to entertain a further appeal is at the time when the further appeal is instituted is not taken away by entering the prior order: Lapa (No 2). Where there has been a denial of procedural fairness, the matter has not been heard and determined according to law and entry of the prior order does not therefore perfect a determination: Pantorno and McNamara.
In R. v. Gust [2000] NSWCCA 287, an appeal was dismissed, and judgment perfected; and the appellant then sought leave to re-open the hearing of the appeal on the ground that he was denied procedural fairness in the dismissal of the appeal. Dunford J (with whom Hidden J and Smart AJ agreed) was not satisfied that there had been any denial of procedural fairness and dismissed the application. However, he expressed the view that the Court did have power to grant the application if the applicant could show that he had been denied procedural fairness:
4 It has been clearly established since Grierson v The King (1938) 60 CLR 431 that when this Court has heard an appeal on its merits and given its decision, the appeal cannot be re-opened. This principle has been reasserted by the High Court as recently as 1997 in Postiglione v The Queen (1997) 189 CLR 295 at 300, 315, 326; although it would appear that it is still open to this Court to entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected: Pantorno v The Queen (1989) 166 CLR 466, see Postiglione at 300, 327.
5 In R v Lloyd Saxon (1998) 101 A Crim R 71 this Court reaffirmed the authority of Grierson but noted some exceptions to the principle including "the discretion to look at the matter afresh where there has been a denial of procedural fairness in a Court of Criminal Appeal" and Pantorno and R v McNamara (No. 2) 1997 1 VR 257 (1996) 86 A Crim R 339 were cited.
6 Accordingly, I am satisfied that this Court has power to grant the application if the applicant can show that he was in fact denied procedural fairness in the hearing and determination of his appeal.
Finally, in DJL v. Central Authority (2000) 201 CLR 226, there is the following passage in the judgment of Callinan J at [189]:
The decisions of the majority in Bailey and Gamser confirm that intermediate appellate, and certainly other statutory courts (absent clear provision to the contrary) lack inherent power to re-open perfected orders disposing of proceedings. Those authorities have not been doubted in this Court. The stated exceptions to this general rule are few and rarely found in practice. On the current authorities they are confined (statute apart) to the correction of formal errors and the like, fraud, or failure to give a party a hearing (299). This case is not an occasion for any extension of this narrow, and properly so, category of exceptions.
Note (299) refers to the correct way to impeach a judgment procured by fraud as being in independent proceedings, and does not elaborate on failure to give a party a hearing.
The authorities make it clear that, if an application to re-open an appeal is made before the judgment dealing with the appeal has been perfected, the Court has jurisdiction to re-open its consideration of the appeal, and that denial of procedural fairness will be a ground on which the Court may take that course. However, the situation is not so clear where the application to re-open is made after the order of the Court has been perfected. Grierson is direct authority to the effect that the Court of Criminal Appeal has no jurisdiction to re-open an appeal once it has heard and determined the appeal and the order has been perfected. Jones suggests that this principle might not apply if a purported determination of an appeal in fact does not amount to a determination of the appeal because there has been a total failure to determine some of the grounds of the appeal. Pantorno and Postiglioni suggests the possibility that there might be jurisdiction to re-open an appeal where procedural fairness has been denied. In the Court of Criminal Appeal, Lapa suggests that there is no jurisdiction to re-open an appeal once the order is perfected, even where there is a denial of procedural fairness; but it could be said that that view is expressed obiter. The contrary view is expressed in Saxon and Gust, but again it could be said that the view is expressed obiter.
In my opinion, what was said in Jones, Pantorno and Postiglioni is insufficient to displace the binding authority of Grierson to the effect, once an appeal has been heard and determined and the order perfected, there is no jurisdiction to re-open the appeal. This is subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud. However, it is to be noted that this principle applies when an appeal has been heard and determined; and leaves open the possibility that if there are grounds of appeal which are not determined at all, it could be said that the appeal has not been determined. That is a possibility adverted to by Sperling J in Saxon; but in my opinion, it is not any denial of procedural fairness which would have the result that it could be said that an appeal has not been heard and determined. In my opinion, it is only if there is some ground of appeal which was argued but not determined by the Court that one might be able to say that a purported determination does not, in relation to that ground of appeal, amount to a determination of the appeal. Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson. To that extent, I prefer the view expressed in Lapa to the contrary view expressed in Saxon and Gust.
CAN AND SHOULD THE COURT RE-OPEN THE APPEAL IN THIS CASE?
As submitted for Mr. Reardon, an argument was suggested on 5 April 2002 on behalf of Mr. Reardon, which was not dealt with in the Court’s judgment of 4 June 2002. That argument was not within Mr. Reardon’s grounds of appeal, or within the points specified in the judgment of 1 March 2002. If objection had been taken at the time on the basis that it was not within the grounds of appeal or the issues specified in the judgment of 1 March 2002, it is likely that application would have been made to amend the grounds of appeal, as application is now made; and it seems likely that an amendment would have been permitted.
The fact is, however, that no such application was made, and the grounds of appeal remained the five grounds originally raised by Mr. Reardon. Accordingly, in my opinion there is no basis on which it can be said that the judgment given on 4 June 2002 did not determine Mr. Reardon’s appeal: in fact, it determined all the grounds of appeal relied on by Mr. Reardon. In circumstances where no application was made to amend these grounds of appeal, and thus the Crown was not put squarely on notice of an addition to the grounds of appeal, I do not think it can be said that Mr. Reardon was denied procedural fairness. All his grounds of appeal were in fact dealt with, so that the case is not one of which, on my view of the effect of Grierson, it could be said that the appeal had not been determined.
For those reasons, in my opinion there is no jurisdiction to re-open Mr. Reardon’s appeal, and his application to do so should be dismissed.
However, there was full argument on the other issues, and I think it is appropriate to express my views on those other issues.
CROWN’S DUTY OF DISCLOSURE
It has been said that the inequality of resources as between the Crown and the accused “is ameliorated by the obligation on the part of the prosecution to make available all material which may prove helpful to the defence”: McIlkenny (1991) 93 Cr.App.R 287 at 312. The content of that obligation has been considered in a number of English cases.
In R v. Ward [1993] 2 All ER 577, the Court of Appeal asserted that, if in a criminal case the prosecution wished to claim public interest immunity for documents helpful to the defence, the prosecution is in law obliged to give notice to the defence of the asserted right so that if necessary the Court can be asked to rule on the legitimacy of this claim. This view was upheld and elaborated by the Court of Appeal in R v. Davis [1993] 2 All ER 643, where it was qualified to the extent that it was said that in certain exceptional case an ex parte application could be made by the prosecution to the Court to rule on the question of public interest immunity.
In R v. Keane [1994] 2 All ER 478, the Court of Appeal held that, subject to the question of public interest, the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v. Brown (Winston) [1998] AC 367 at 376-7, with the comment that “an issue in the case” must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence.
However, in Brown it was also held that the duty did not extend to disclosing material relevant only to the credibility of defence (as opposed to prosecution) witnesses.
In R v. Mills [1998] AC 382, it was held that the duty extended to disclosure of statements taken by the prosecution authorities from witnesses not called by the prosecution, and not merely to the disclosure of the identity of such witnesses.
The obligation of disclosure has been considered by the High Court of Australia in Grey v. The Queen [2001] 75 ALJR 1708, but in circumstances where the Crown conceded that disclosure should have been made, it was not necessary for the Court to say anything about the content of the obligation. This question is adverted to only in footnote 20 to par.[30] of the judgment of Kirby J. In the dissenting judgment of Simpson J in this Court ((2000) 111 ACrimR 314), which was upheld by the High Court, reference is made to prosecution guidelines and Bar Rules rather than to the principles stated in the English cases.
There has been some discussion of the English cases in other States of Australia. R v. Mills was distinguished in R. v. Reci (1997) 70 SASR 78, and its statement of principle was not adopted. However, in other respects the few Australian cases that have commented on the English cases have not suggested they are not applicable in Australia: see in particular R v. Garofalo [1999] 2 VR 625 at [58]-]63], Easterday v R. [2003] WASCA 69 at [194], [390].
It was stated by the Victorian Court of Appeal in Cannon v. Tahche (2002) 5 VR 317 that a prosecutor’s duty of disclosure is ethical in nature and is a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be; and that it is a duty owed to the court and not one enforceable at law at the instance of the accused. However, this was said in rejecting a claim for damages for misfeasance in public office; and the Court acknowledged (at [58]) that a breach of that duty may amount to a material procedural irregularity producing a miscarriage of justice and a setting aside of a conviction. Accordingly, this case does not amount to any dissent from the English cases.
It is not necessary in the present case to determine whether all the principles stated in the English cases should be adopted here; but in my opinion, the principles stated in Keane and Brown should be taken as applying in New South Wales.
I note that we were referred to an argument against a wide interpretation of the Crown’s duty of disclosure to the effect that such disclosure may induce an accused to tailor a false but convenient defence. In relation to that argument, I agree with the following passage from the judgment of Sopinka J of the Supreme Court of Canada in R v. Stinchcombe 68 CCCA (3d) 1, at 7-8, quoted with approval by Lord Hutton in Mills, at 403:
Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown's possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.
In my opinion, this argument does not justify a narrow approach to the duty of disclosure.
WAS THE CROWN’S DUTY BREACHED IN THIS CASE?
It was submitted for the Crown that running sheets of this kind are not generally disclosable as part of the Crown’s duty of disclosure, especially where they merely record communications between police officers of their understanding of what was happening at the time. In effect, such documents are merely a collation of information; and even if the information is such as could fall within the Keane/Brown categories, it is only necessary to disclose the information and not all documents in which such information may be contained. It was submitted that, especially in large cases such as this one, it would be an enormous task to disclose every piece of paper created in the investigation which contains information in one form or another, particularly where the document could not itself amount to evidence. It could be that some material might suggest that one police officer had a different view of what had happened to that of a person who is to give evidence in the case; but that would not make it disclosable, because the witness could not be cross-examined on the basis of a different understanding, perhaps gained at second or third hand, of some other person.
Accordingly, it was submitted for the Crown, this material was not subject to the Crown’s duty of disclosure. Even if it might have been disclosable had the Crown known that Mr. Reardon’s defence was to the effect that he did not intend to import drugs but merely to rip-off the people proposing to pay for the drugs, the Crown did not know this until after the close of the Crown case, when Mr. Reardon began to give his evidence.
It was accepted for the Crown that there is no onus on the defence to demonstrate a forensic purpose in relation to material said to be subject to the Crown’s duty of disclosure. This is clearly correct: the defence is simply not in a position to know what this material is. It seems to me that the correct view is that a decision by the Crown concerning what to disclose should take a broad view of relevance and of what are the issues in the case. The Crown has all the material available to it, and one basis of the rule about disclosure is that it is to ameliorate the inequality of resources as between the Crown and the accused. In those circumstances, it would seem inappropriate for the prosecution authorities to take a narrow view as to what the defence might be or as to what might prove useful to the defence, as to what might open up useful lines of enquiry to the defence. See generally the article “Unused Material and the Prosecutor’s Duty of Disclosure” by Martin Hinton in (2001) 25 (3) Criminal Law Journal 121.
In my opinion, the circumstance that contemporary documents created by the police in the course of surveillance or undercover operations contain information which is otherwise disclosed is not of itself a ground for not disclosing such documents. All such documents, in my opinion, have to be assessed according to the Keane/Brown principles and, unless disclosure is excused because of legal professional privilege or public interest considerations, should be disclosed if they fall within those principles.
If such documents merely repeat in second or third hand ways information which is otherwise disclosed, it seems likely that they would not fall within the Keane/Brown categories. But if they do fall within those categories, and if they are not protected by legal professional privilege or public interest considerations, then they should be disclosed, even if the information they contain has been otherwise disclosed.
In the present case, taking what I think is the appropriate broad view, it is arguable that the particular material fell within the Keane/Brown categories, firstly in suggesting a conceivable basis for submissions based on the principles discussed in Ridgeway v. The Queen (1995) 184 CLR 19; and secondly, in suggesting the existence of material that could be helpful to a possible defence that Mr. Reardon was not intending to import drugs but only to rip-off those proposing to provide money for that purpose. However, it is also arguable that it could not be expected of the Crown that it should have recognised the possible relevance of the material in these respects, particularly when neither issue had been raised by Mr. Reardon before he gave evidence at the trial. Another possible approach, which would spare the Crown the difficult task of discerning parts of possible relevance to conceivable defences in masses of documents, is to say that the Crown should at least offer for inspection on behalf of the accused contemporary records like running sheets, withholding only those protected by legal professional privilege or public interest considerations.
Because of the view I take concerning the use that could have been made of the material and its possible impact on the trial, it is not necessary for me finally to resolve these questions. I will proceed on the assumption that the material should have been disclosed.
HOW COULD THE MATERIAL HAVE BEEN USED?
It is certainly not the case that the undisclosed material is plainly such that one can say that non-disclosure has given rise to a clear miscarriage of justice. Having regard to all the circumstances of the case, it is clear that a Ridgeway submission could not have been successful, and there is no suggestion to the contrary made now. The essential question is what difference the material could have made by way of assisting Mr. Reardon’s “rip-off” defence. Consideration of that question requires consideration of how the material could have been used.
If this material had been disclosed prior to the trial, one might have expected the legal advisers of Mr. Reardon to have asked the prosecution to find out from Commissioner Cubillos which police he was referring to when he talked about police fearing that Mr. Reardon planned a rip-off, and also the name of the magistrate who also feared this. If the prosecution had not provided that information, one might have expected the defence to have requested that Commissioner Cubillos be called as a witness.
It seems likely that one of the police concerned was the officer Oscar, who gave evidence at the trial. However, it is probable that an opinion held by Oscar, and/or some other police officer or investigating magistrate, that Mr. Reardon may have planned a rip-off would not have been admissible as an expert opinion. Nor would it have been admissible under s.78 of the Evidence Act, which is as follows:
78 Exception: lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if:(a)the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
At best, the material could have been of assistance in cross-examination of Oscar, and/or of any other person taken to hold the opinion who gave evidence at the trial.
The cross-examination would presumably have been directed to putting before the jury the observations of the witness which based the witness’s opinion that Mr. Reardon may have planned a rip-off. The cross-examiner may have sought to get before the jury the opinions of the person being cross-examined; but that may have been precluded by the device of having the opinion in question being written down on a piece of paper to be shown to the witness, this piece of paper being marked for identification and not admitted into evidence. If the opinion itself did get before the jury, one would expect a direction from the trial judge that the opinion was irrelevant, and was before the jury only as a step in questions designed to elicit the relevant observations. I think this Court should assume that the jury would have heeded that direction.
It was submitted for the Crown that the second of the four running sheet records, to which I have referred, would have supported the Crown case. However, in my opinion there is no possible basis on which that record could have got before the jury, it simply being a statement of an opinion of NCA officers; and there is no reason to suppose that it would have been used in any way in cross-examination as a step to obtaining relevant evidence from any NCA officer.
It seems to me therefore that the difference this material could have made is essentially the chance that it would have provided of getting Oscar, and perhaps other Chilean police officers, to give an account in cross-examination of matters concerning Mr. Reardon’s conduct which rationally supported the view that Mr. Reardon was planning a rip-off rather than the actual importation of cocaine.
It is to be noted however that this material related only to Mr. Reardon’s first visit to Santiago in Chile, for about two weeks in late July and early August 1997. Mr. Reardon returned to Chile on about 3 October 1997, and remained there until about 18 November 1997. Most of the evidence concerning Mr. Reardon’s activities in Santiago concerned events on the later visit.
WAS THERE A MISCARRIAGE OF JUSTICE?
The first question to be addressed is the test to be applied where what is relied on is not merely the existence of fresh evidence, but also the circumstance that there was a breach of the Crown’s duty of disclosure. I note that one of the grounds of appeal sought to be added by Mr. Reardon is a ground relying on fresh evidence. However, it is clear in my opinion that, where there has been a breach of the Crown’s duty of disclosure, the appellant will not succeed on the basis of fresh evidence in circumstances where the appellant does not succeed on the basis of breach of the Crown’s duty of disclosure.
If this application was purely on the basis of there being fresh evidence, I do not think that the evidence would satisfy the requirements for such evidence as discussed in Gallagher v. The Queen (1986) 160 CLR 392. I do not think that it could be said that, by not having this evidence, Mr. Reardon lost a “significant possibility” of acquittal. However, in relation to material that should have been disclosed by the Crown but was not, Grey shows that the test is a less demanding one.
I note that Bradshaw v. The Queen (Western Australian Court of Criminal Appeal 13/5/97) and Button v. The Queen (2000) 25 WAR 382 at [14]-[16] appear to treat breaches of the prosecutor’s duty of disclosure as just one category of case where fresh evidence is relied on, with appellate intervention generally requiring a conclusion that there was a “significant possibility” that the jury acting reasonably would have acquitted the accused. That view is also expressed by Steytler J in Easterday at [200]; although at [201] he refers to Grey and what I consider to be the less demanding test of a “real chance of acquittal”. The distinction is supported in the same case by Roberts-Smith J at [389]-[397]. In my opinion, in so far as what was said in Bradshaw and Button assimilate the test in breach of duty of disclosure cases to the test in fresh evidence cases generally, they are inconsistent with Grey.
In order to determine whether or not Mr. Reardon has lost a real chance of acquittal, I have found it necessary to return to consider the evidence given in the case, although there have been no detailed submissions on the evidence. I do not think it is necessary to delay the matter by seeking further submissions on the evidence: the final disposition of this case has already been long-delayed, and in any event, by reason of my view that this Court does not have jurisdiction to re-open the matter, the views I form on this question are not determinative.
One significant aspect of Oscar’s evidence in the matter concerned Mr. Reardon’s dealings with an alleged conspirator Ian Cox (who was not tried along with Mr. Reardon). Oscar gave evidence that Mr. Reardon told him in about July 1997 that the drugs were to be concealed in boxes of wine to be sent from Chile to Australia; that Mr. Reardon told him on 10 October 1997 that the person who was to run the shipment to Australia was about to arrive in Santiago; that at about that time he went with Mr. Reardon to Centra Apartments in Santiago and saw on a computer screen there that Ian Cox had a reservation there from 13 to 17 October; and that through Mr. Reardon he had contact with a winery from which Mr. Cox was to import wines to Australia.
Mr. Reardon’s evidence was that, as part of the proposed rip-off, he had told the witness W that the drugs would be imported into Australia in a container of wine; that he met Mr. Cox by chance in Santiago in October 1997; that the visit to see Mr. Cox’s reservation occurred after he had met Mr. Cox; that Mr. Cox told him he was a wine importer; that this was a coincidence; and that the contact with the winery arose from this coincidental meeting with Mr. Cox. Mr. Reardon was also cross-examined concerning his use of a false identity in his contact with the winery.
As Mr. Reardon’s case was put before the jury, it was an essential part of that case that his meeting with the wine importer Mr. Cox in October was coincidence. The jury’s verdict meant that the jury considered that there was no reasonable possibility that this could be true.
Having regard to the limited use to which the undisclosed material could have been put, and the relative insignificance in the case of the precise activities undertaken by Mr. Reardon on his first visit to Santiago, I am satisfied there is no real chance that the jury would have acquitted Mr. Reardon had this material been available. In my opinion there is no real chance that use of the material could have caused the jury to consider that there was a reasonable possibility that Mr. Reardon’s version of events, involving a coincidental meeting with Mr. Cox in October 1997, could be true.
CONCLUSION
For those reasons, in my opinion the Court does not have jurisdiction to re-open Mr. Reardon’s appeal in the circumstances of this case. In any event, in my opinion there has been no miscarriage of justice because Mr. Reardon has not lost a real chance of acquittal by reason of the Crown’s non-disclosure of material.
Accordingly, the application to re-open Mr. Reardon’s appeal should be dismissed.
SIMPSON J: This is an application by Michael Leonard Reardon (“the applicant”) for leave to reopen an appeal in which this Court (as presently constituted) delivered judgment (dismissing the appeal) on 4 June 2002 (R v Reardon, Michaels and Taylor [2002] NSWCCA 203). I should record at the outset that, having read in draft the judgment of Hodgson JA, I agree, for the reasons given by his Honour, that this Court lacks the jurisdiction to make the order sought. However, even if that were wrong, I agree that the application should be dismissed. What follows are my reasons for coming to that view.
The basis for the application is stated in written submissions filed on behalf of the applicant as:
The applicant has been denied procedural fairness.
In the written submissions reference is made to “the events leading to the making of this application” as set out in an affidavit affirmed by the applicant’s solicitor. In this affidavit the solicitor deposed that, following delivery of the 4 June judgment, consideration was being given to, and advice sought as to, the potential merit of an application for special leave to appeal to the High Court, in the context of which senior counsel had advised:
that an application should be made to the Court of Criminal Appeal to reopen the appeal as an argument advanced by Mr Reardon in the appeal had not been addressed in the judgment.
This was what was said to constitute the denial of procedural fairness. In order to make clear the issues raised in this application, it is necessary to recount, in a little detail, what has preceded it.
A short history of the proceedings
On 22 March 1999 three men (the applicant, Edgar Hernando Michaels and Clifford Barry Taylor) were arraigned in the District Court on an indictment charging each with conspiracy to import into Australia cocaine in not less than the commercial quantity. In short, the prosecution alleged that the applicant, Michaels, Taylor and a fourth man, Ian Cox (who was subsequently tried separately on a similar charge) and others had agreed to obtain cocaine in Chile for the purpose of importing it into Australia, and that the applicant had twice travelled to Chile where he had involved himself with other conspirators. Unknown to the applicant, one of the individuals with whom he was dealing (identified as “W” in the 4 June judgment) was an informer of the National Crime Authority (“the NCA”); another was a Chilean police undercover operative. The conspiracy was subject to constant monitoring and surveillance, in a cooperative operation by NCA officers and Chilean police. Records of the surveillance operation were maintained. The operation was code-named “Opaline”. The records included a series of documents known as “running sheets”, which were maintained electronically.
The trial which followed the arraignment of the three concluded on 11 May 1999 with a verdict of guilty against each accused. The prosecution evidence included a substantial volume of recordings of intercepted telephone conversations, which, it was accepted, appeared to incriminate the applicant. His defence was that, although he had given the appearance of participating in the conspiracy, he in fact had had no intention of doing so, and had intended to defraud the other participants. This came to be known as “the rip-off defence”.
The three men were sentenced on 22 June 1999. Each appealed against his conviction (and applied for leave to appeal against sentence). The appeals were fixed for hearing on 25 October 2001 in this Court. On that date counsel for Michaels sought an adjournment on behalf of his client, advancing two bases. One was the unavailability of senior counsel who had previously been retained. The other was the non-production of documents that Michaels had made considerable efforts to obtain from the NCA, which he believed would or might assist him in his appeal. There is a somewhat complicated, and still not entirely clear, history of Michaels’ attempt to obtain access to the NCA documentation which, while peripheral to the applicant’s claim, needs to be understood. One category of documents thus sought by Michaels was the Operation Opaline running sheets. In an affidavit sworn on 15 March 2002, Christopher Bonnici, a solicitor employed by the NCA, deposed that, prior to the trial, a subpoena had been served on the NCA on behalf of all four then accused men, seeking production of a wide variety of documents that included the running sheets. There followed some discussions between Mr Bonnici and the solicitor representing the then accused, in which Mr Bonnici conveyed the intention of the NCA to made a claim, in respect of certain of the documents, for dispensation from compliance with the subpoena, either on the ground that no legitimate forensic purpose in seeking access to the documents had been established, or, in relation to others, on the ground that they were protected by public interest immunity. Mr Bonnici did not identify, in this affidavit, which documents specified in the subpoena were said to fall into either of these categories. “Running sheets” in fact constituted only one item of a lengthy catalogue of items sought in the schedule to the subpoena. In his affidavit Mr Bonnici claimed that a number of documents (being parts of the running sheets) had in fact been produced to the legal representatives of the three accused and that the judge was never called upon to rule on the NCA’s claim and the trial proceeded.
After the trial Michaels made an application to the NCA, pursuant to the Freedom of Information Act 1982 (Cth) (“the FOI Act”), for access to certain documents. Whether or not any of the documents he then sought had been released to him in response to that application is not clear; what is clear is that a series of documents, in eleven categories, was the subject of a claim by the NCA for exemption from production on various of the bases provided for in the FOI Act. Michaels accordingly applied to the Commonwealth Administrative Appeals Tribunal, pursuant to the FOI Act, for the release of the documents. In a decision dated 3 August 2001 (Edgar Michaels v National Crime Authority, number VOO/1251) Deputy President McDonald held that certain of the documents were not exempt but affirmed the NCA decision in respect of others. The running sheets were among those in which Deputy President McDonald upheld the NCA’s claim for exemption. By 25 October, the date that the appeals were listed for hearing, those documents to which he had been granted access had not been provided to Michaels. It was for this reason that the application on his behalf for adjournment was made. No corresponding application was made by or on behalf of Reardon. There is no evidence that Reardon had taken steps similar to those taken by Michaels.
Notwithstanding the refusal of Deputy President McDonald to order the NCA to provide the running sheets to Michaels, it seems that additional extracts from them were subsequently produced. How and why this came about was not disclosed in the evidence. In a later affidavit (26 March 2002) Mr Bonnici deposed that, at the applicant’s trial, some parts of the running sheets were, and other parts were not, disclosed; but that a call on the subpoena in relation to the withheld entries was not pressed. In his second affidavit Mr Bonnici distinguished three groups of running sheet entries. These may be categorised as:
(i) entries that were disclosed prior to trial;
(ii)entries that were not disclosed at or prior to trial, but that have subsequently been disclosed; and
(iii) entries that have never been disclosed.
The appeals of all three men were heard on the date fixed, 25 October 2001. The grounds of appeal against conviction pleaded and argued on behalf of the applicant fell into two categories: matters concerning the jury, and issues under s165 of the Evidence Act 1995. No issue concerning access to the running sheets arose. Having considered Michaels’ adjournment application, this Court concluded that, while his appeal should proceed, he should also be given the opportunity of obtaining the documents production of which to him had been ordered by the Deputy President, and, if he perceived any comfort from them, to put further submissions to the court. This he did in writing. On 1 March 2002 the court reconvened and delivered a judgment relevantly in the following terms:
The appeal in this matter was heard last year. When the appeal was called on, Mr Michaels applied for an adjournment. The adjournment was refused, but leave was given to Mr Michaels to put on additional materials after the hearing. He did provide that material to the court and that material raised three issues in relation to which the court would be assisted by a further short hearing.
The first and third of those issues are presently immaterial. The second was identified as “running sheets” which, it had been intimated to the Court, had potential relevance as possibly:
giving some credence to the allegation that pressure was put on the alleged conspirators to continue with the alleged conspiracy.
For the purpose – and the only purpose – of further hearing Michaels in relation to the three identified issues, the court reconvened on 5 April 2002. No application had at any time been made on behalf of the applicant in respect of the NCA documents. He had never sought adjournment of his appeal, and, up to 5 April, he had never sought to present evidence, or submissions additional to those he had made at the original hearing. The three issues identified were entirely remote from the grounds of his appeal against conviction.
It is, however, clear that the additional extracts supplied to Michaels were also supplied to the applicant, although when that happened does not emerge from the evidence. He, however, and Taylor, were also represented on 5 April and his counsel was permitted to make some submissions to the Court. These related to the content of the previously undisclosed running sheets. I will shortly return to the substance of those submissions.
Before doing so, it is convenient to identify that part of the material in the running sheets that had not been disclosed prior to trial, and upon which the applicant now seeks to rely. This, essentially, consisted of four entries in the running sheets over a four day period in August 1997. The entries relevantly read as follows:
040897 [4 August 1997]: Second telephone conversation (1045 hrs) with Comisario Antonio Cubillos, from Chilean Anti-Narcotic Police. Commissioner Cubillos was advised of the contents of telephone conversation between REARDON and CC463 ... Cubillos was advised that from Tuesday we will start pressuring REARDON through CC463. Cubillos advised that UC will start putting pressure on REARDON as well, after $375K is transfered (sic) into UC’s account.
...
“050897 [5 August 1997] Telephone conversation (1200 hrs) with Comisario Antonio Cubillos ... Police is disconcerted by REARDON’s confidence in getting about in Santiago (as he supposedly has never been there and travels by public transport around Santiago without asking for directions) and the fact that he does not seem to be contacting anyone locally. Police are wary that REARDON may have planned a rip-off and may not proceed with a transaction (this based on REARDON’s movements about the city and his non-contacting any locals). UC to start pressuring REARDON to proceed with transaction ...”
...
“060897 [6 August 1997] Telephone conversation (0915 hrs) with Comisario Antonio Cubillos ... Commissioner Cubillos was advised that NCA is confident that REARDON is not in Chile about a scam and will abscond with the money, REARDON is in Chile about drugs. ... UC to apply pressure on REARDON, whilst CC463 to apply pressure REARDON from Australia.”
...
“070897 [7 August 1997] Telephone conversation (1115 hrs) with Comisario Antonio Cubillos ...OSCAR to apply heavy pressure to REARDON, if possible to force REARDON into making a call to local contacts in front of Oscar to allow Oscar to sight gear. ...”
...
“080897 [8 August 1997] Telephone conversation (1015 hrs) with Comisario Antonio Cubillos ...Cubillos said that the normal M.O. in Chile is a on-site exchange of drugs and money, not the pay after embarcation (sic) arrangement that Reardon’s group proposed. Police and magistrate involved in the investigation feared that REARDON planned a rip-off. UC advised that on first meeting REARDON inquired about obtaining a gun in Chile. ...”
(It was accepted that “UC” and “Oscar” were references to the undercover Chilean police operative and “CC463” to “W”, the NCA informant.)
In written submissions initially filed in support of the application to reopen the appeal, counsel for the applicant contended that the running sheets were relevant to the appeal in two ways: firstly, in disclosing evidence of pressure brought to bear on the applicant by the authorities to continue in the scheme; and secondly, in the entries suggesting that the applicant may have been engaged in a “rip-off”. Counsel acknowledged, however, that the question of pressure had been dealt with in the judgment of 4 June 2002 at [201]ff; counsel also acknowledged that this was in the context of Michaels’ appeal and not that of the applicant. This is of some importance because the applicant had never raised the issue of pressure in relation to his appeal against conviction. To do so would have been quite incompatible with the defence he did pursue, which was, in essence, that he lacked the necessary mens rea to be guilty of conspiracy. To the extent that he raised the question of pressure in his application for leave to appeal against sentence, it was dealt with in the judgment of Barr J at [232], in which judgment Hodgson JA and I concurred. Counsel did not suggest that the additional material in the previously undisclosed running sheet entries would have had any bearing upon the outcome of the sentence appeal, or have enhanced the applicant’s position in any identifiable way.
It is in relation to the applicant’s “rip-off” defence that he now seeks to rely upon the undisclosed running sheets. A number of issues arise. The present application is brought on the basis that the issue was not dealt with in the judgment of the court, and that the failure of the court to deal with the issue constitutes a denial of procedural fairness to the applicant. That, of course, depends upon the establishment of an anterior fact – that is, that the issue was raised on behalf of the applicant during the hearing on 5 April 2002. It also presupposes that the running sheets were documents of a class to which the applicant was entitled to access.
The first issue for determination is whether the running sheets were documents of a kind which ought to have been disclosed by the prosecution. Although there is no doubt that the prosecution is under a duty to disclose relevant material in its possession, just what is encompassed in that duty is not clearly defined and is, in my opinion, still evolving. I am conscious that there is something of an amalgamation of two separate issues: one is the prosecution duty of disclosure as a matter of fairness to an accused person, a duty which exists independently of any active procedures instigated on behalf of that person to obtain access to documents; and the other is the duty of the prosecution, under subpoena, to produce documents which might not otherwise fall into that class. This latter matter is, in this case, complicated by the negotiations between the parties of which Mr Bonnici gave evidence, which resulted in an agreement, apparently satisfactory to the applicant’s legal advisors, that no call on the subpoena would be made. Further, it may be possible to distinguish between the prosecution’s duty to provide copies of documents, as part of the prosecution brief, and its duty to disclose the existence of documents, and to make them available to the legal representatives of an accused person to inspect should they choose to do so. It should not be overlooked that an extravagant supply of material may be oppressive, and as productive of unfairness as improper non-disclosure. Having said that, and without wishing to be definitive, it is my view that, in the normal course (and subject to legitimate and properly considered claims for privilege or public interest immunity) running sheets fall into the category of documents the existence of which ought to be disclosed, and which ought at least to be made available for inspection. My tentative view, further, is that it is going too far to suggest that it is part of the prosecution’s function to anticipate any defence that might be raised, examine its documents for reference or entries or items that might be of assistance in pursuing that defence, and make an evaluation as to their potential usefulness in that respect. Yet that is what at one point was her put on behalf of the applicant – that is, that the prosecution ought to have anticipated the “rip-off” defence, and disclosed those two entries recording corresponding suspicions on the part of unidentified Chilean police.
Given my expressed provisional view that running sheets are documents of a kind that ought, ordinarily, be made available to the defence, it is unnecessary finally to rule on this issue. Again tentatively, I would express the view that the “rip-off” defence was not one which the prosecution ought reasonably to have been anticipated, and that, if the documents were otherwise properly withheld, then there is no reason why that (then) potential defence should have provoked the prosecution to search for supportive material in its documents. In this regard it is of some significance that counsel for the applicant declined directly to answer the questions put by the court as to when that defence was first signified. I would draw the inference that that occurred no earlier than when the applicant came to give his evidence.
The next issue to be determined is whether it could fairly be said that this matter was indeed raised on behalf of the applicant on 5 April or at any other time. That involves examination of the transcript of the argument that took place on 5 April, by which time the additional extracts from the running sheets had been disclosed, not only to Michaels, but also to the applicant. Senior counsel who then appeared for the applicant read an affidavit affirmed by the applicant’s trial counsel, the salient paragraph of which is as follows:
... The material [in the running sheets] ... was not made available to me at trial and I have been unaware of that material until now. Had I been aware of that material I would have attempted to use it in furtherance of the defence case.
There was no further explication, either in the affidavit, or in written or oral submissions, of the manner in which trial counsel perceived that the material may have been of utility.
Counsel who appeared for Michaels on 5 April declined to make any further submissions in relation to the question of pressure so far as that appellant was concerned. (He did, however, draw attention to the running sheet entry of 7 August 1997, extracted above.) He also referred to pressure in the context of the sentence in a manner that does not call for further examination on this application.
Senior counsel who then appeared for the applicant criticised the format of the running sheets, as lacking “sequential numbers” and being provided only in chronological order. His criticism was that this format had the potential to enable the exclusion of any inconvenient (to the prosecution) entries, without that exclusion being apparent to a recipient. In answer to a question from the bench he acknowledged that there was little use that could be made of that submission. He made a number of references to the entries concerning pressure, and also to the 5 August entry expressing police suspicion that the applicant may have been planning a “rip-off”, and to the 8 August entry re-stating that suspicion.
Having referred to the entries concerning both pressure and police suspicion of the extent of the applicant’s commitment to the conspiracy, senior counsel submitted:
So those are some of the entries which would go to supporting the proposition that the pressure was being certainly applied both on the - -
The presiding judge then asked senior counsel if he contended that the reference to “rip-off” would also have been relevant to the applicant’s defence in another way, to which senior counsel replied:
Absolutely. If he was acting in a way that the authorities over there believed consistent with him being a rip-off merchant rather than national drug smuggler, that would have been relevant.
He did not specify in what way the perception of some unidentified contributor of information that went into the running sheets that the applicant was behaving in a manner consistent with perpetuating a fraud on the other participants might have been “relevant”. I would accept, however, that, if the observation had been capable of leading the applicant’s legal representatives to evidence of something concrete in the applicant’s behaviour that might have strengthened his claim to have been engaged in such a fraud, then that evidence may well have been both relevant and useful. Senior counsel then went on to question the basis on which those parts of the running sheets had been withheld, and then returned, with the prompting of the presiding judge, to the issue of pressure.
That is the high point of the contention made on behalf of the applicant that, during the proceedings of 5 April 2002, his senior counsel raised on his behalf an issue in the appeal with which this court failed to deal. It is to be observed that the question of pressure is in no way relevant to any of the grounds of appeal pleaded and argued on behalf of the applicant in the appeal: see the grounds of appeal fully set out at [68] of the judgment of 4 June 2002.
For the present contention to be accepted, it would be necessary that the applicant establish that, had those entries in the running sheets been available to him at the time of the trial, they may have provided some basis of support for his defence, which was rejected by the jury, that his mind was not engaged in the conspiracy and that his purported involvement was no more than a charade. Further, he would have to establish that this material was of itself of probative value, or such as to give rise to lines of enquiry that may have produced material of such probative value, that, by reason of its non-disclosure, he was deprived of a reasonable chance of acquittal. No such ground of appeal was ever formulated and no such contention was ever made in the course of the rather diffuse argument. The references to the “rip-off” suspicions could not be said to have been more than glancing. The most that was said was that the material “would have been relevant”; and that counsel who appeared for the applicant at the trial would have “attempted to use it in furtherance of the defence case”.
I am quite satisfied that no such ground of appeal was ever raised and that the submissions made on behalf of the applicant on 5 April cannot reasonably be interpreted as having raised such an issue. Some support for that view can be obtained from the absence of any application to amend, or reformulate, the grounds of appeal. For this reason I would reject at the threshold the argument that the applicant was denied procedural fairness by the failure of this Court to deal with an issue raised on his behalf.
The next question is whether, if the issue had been raised, the material in the running sheets could have been used in any practical way. The contentions made on behalf of the applicant on this issue are, like so much else, elusive.
Of one thing I am satisfied: the entries in question would not, if tendered, have been admissible. I can see no possible basis under the Evidence Act 1995 on which they could have been admissible. First, they express, at most, opinion (more accurately, suspicion or speculation) drawn, presumably, from observations of one or more of the surveilling police. No facts on which the opinions are based are stated. The individuals who expressed, or held, the opinions are not identified.
In argument it was suggested by counsel for the applicant that the material may have been put to use by trial counsel in cross-examination. He acceded to a suggestion made by the presiding judge that a witness might have been asked to describe the applicant’s conduct that led to the formation of the opinions. That was not further explored during argument, but it should now be analysed. A number of questions might be posed. To whom would the questions be put? That could only be to the police officer or officers who made the observations, or, possibly, to others in possession of information from that officer or those officers. Identification of that person or those persons would not be a simple matter.
Commissioner Cubillos was not called to give evidence. It may be postulated that, in advance of the trial, the applicant’s legal advisers may have requested that the prosecution call Commissioner Cubillos, but, in the circumstances, the basis for doing so would be so flimsy that if the prosecution declined, the defence could hardly have had any avenue of complaint. In any event, a trial judge has no power to direct the prosecution to call any particular witness, and, in this case, the prosecution almost certainly had no coercive powers to force his attendance if he declined to attend voluntarily. Had the prosecution declined to call Commissioner Cubillos, no comment could have been made, and the jury could not have been invited to draw any inferences of the kind envisaged in Jones v Dunkel (1959) 101 CLR 298; see Dyers v The Queen [2000] HCA 45; 210 CLR 285.
The Chilean undercover operative, Oscar, was called, and could have been cross-examined about his own observations. But that was in fact the case. Defence counsel had access to the applicant’s own account of his behaviour whilst he was in Chile. There was no reason that Oscar could not have been cross-examined on that information, and he may well have been. To go further would have been to invite Oscar to give evidence, not of the applicant’s behaviour, but of the opinions or suspicions of the anonymous sources of the entries.
In my opinion, the benefits that may have accrued to the applicant by having had timely access to these entries are, on analysis, illusory. The mere fact that some anonymous person at some time held a suspicion which, it is now known, coincides with the defence raised by the applicant, does not establish that those suspicions could have been used to bolster the defence.
For these reasons I am satisfied that no miscarriage of justice has occurred, and I would dismiss the application.
BARR J: I have had the advantage of reading the draft judgments of Hodgson JA and Simpson J. I agree, for the reasons given by Hodgson JA, that the application should be dismissed because the Court has no power to reopen the appeal.
I agree, for the reasons given by Simpson J, that the applicant could not have demonstrated that he had been denied procedural fairness. In my opinion he was not entitled to have this Court consider his postulated ground of appeal because he never squarely raised it.
I do not consider it appropriate in the circumstances to deal with the obligations of the Crown to produce documents.
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