R v Rix

[2004] NSWSC 422

CITATION:	R v RIX [2004] NSWSC 422
HEARING DATE(S):
JUDGMENT DATE:	21 May 2004
JUDGMENT OF:	Hulme J at 1
DECISION:	See paragraph 27
PARTIES :	Regina Mark Edward RIX
FILE NUMBER(S):	SC 70050/03
COUNSEL:
SOLICITORS:	W Abadee Crown Solicitor's Office M Schneider Legal Aid Commission

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IN THE SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL DIVISION

NO: 70050/03

Friday, 21 May 2004

HULME J

APPLICATION OF Mark Edward RIX

APPLICATION FOR AN INQUIRY UNDER S474D OF THE CRIMES ACT

1 HULME J: On 25 August 1988 Mark Edward Rix, (hereinafter referred to as “the Applicant”) was convicted of an offence:-

“That he on 20 June 1986 at Zetland, being then armed with an offensive weapon, namely a .22 rifle, did assault Barbara Anne Thrush and rob her of certain property namely $5,215 cash the property of the Australian & New Zealand Banking Corporation.”

2 On the same day Judge Herron sentenced the Applicant to imprisonment for 10 years, such term to include a non-parole period of 7 years.

3 On 29 June 1989, an appeal to the Court of Criminal Appeal was dismissed.

4 The Applicant now seeks the referral of his conviction to the Court of Criminal Appeal pursuant to s474E of the Crimes Act. That section and s474D, so far as is relevant, provide:-

474D (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person…

474E (1) After considering an application under Section 474D or on its own motion:
(a) the Supreme Court may direct that an inquiry be conducted by a prescribed person into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act, 1912.
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:
(a) it appears that the matter:
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the repealed provisions, or
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

5 Putting aside evidence of the robbery itself, an event which was not the subject of dispute, the evidence against the Applicant at his trial may be categorised as follows:-

(i) Descriptions of the offender by eye-witnesses.
(ii) Evidence that, after the robbery, the offender was seen to enter a street some distance away and apparently disappear and that soon afterwards a white utility emerged from that street.
(iii) Evidence that the Applicant was the owner of, or at least possessed, a white utility.
(iv) Evidence of police officers of finding in the Applicant’s possession 2 pairs of joggers and one pair of sunglasses, which items were said to be similar to those worn by the offender.
(v) Photographs of the offender taken by bank security cameras during the course of the robbery.
(vi) Photographs of the Applicant taken shortly after his arrest.
(vii) Evidence by a police officer that the photographs were of the Applicant.
(viii) Evidence of 2 police officers that, during and after being interviewed, the Applicant had confessed to them of being the offender.
(ix) Evidence of another police officer that the Applicant, during the course of adoption of a record of the earlier interview, had admitted to his involvement.

6 Over a period of about 3 days during the trial, the jury also had available to them the opportunity of seeing the Applicant in Court and comparing him with the photographs of the offender.

7 While much of the evidence referred to in paragraph (i) was consistent with the Applicant’s appearance, it also fitted numerous other persons. None of it purported to identify the Applicant. Having regard to the number of white utilities in the community, the evidence referred to in paragraphs (ii) and (iii) was also of limited use to the Crown. A similar comment may be made in relation to the joggers referred to in paragraph (iv). The joggers had been found during a police search of the Applicant’s premises. Detective Peattie said that they looked the same as those apparent in one or more photographs of the offender and bearing the white leather Dunlop insignia. The search did not reveal anything which matched other clothing, at least one item of which was distinctive, worn by the offender.

8 The evidence of the finding of the sunglasses was given by Detective Mark Messenger. He said that he had found them behind the bench seat on the passenger side of the Applicant’s vehicle and then handed them to Detective Peattie. A Detective Robert Moran corroborated the evidence of the search of the vehicle and said that at the time Detective Messenger had showed him the glasses.

9 Detective Senior Constable Peattie said that after he had received the sunglasses from Detective Messenger he showed them to the Applicant who identified them as his. According to Detective Peattie, the Applicant confirmed this in the interview later.

10 The photographs taken of the Applicant shortly after his arrest included photographs of his hands. The jury were able to make a comparison between the bank photographs of the offender on the one hand (including at least one striking photograph of his left hand) and, on the other the photographs of the Applicant’s hands and his actual appearance in Court. Clearly if the similarities are sufficient these matters alone are sufficient to justify his conviction and to make any reference of the matter to the Court of Criminal Appeal pointless.

11 The evidence referred to in paragraph (vii), that he recognised the Applicant as the person depicted in the bank photographs of the robbery in progress, was given by Detective Peattie and is of the same nature as that which was ruled by the High Court, some time after the trial and the determination of the Applicant’s appeal, to be inadmissible – see Smith v R [2001] 206 CLR 650.

12 The evidence that the Applicant had made confessions, referred to in paragraph (viii) above, which implicated him in the robbery was given principally by Detectives Peattie and Nimmo. Detective Peattie’s evidence was to the effect that the Applicant had denied involvement in the robbery when spoken to at his residence and in a police car while being taken to the police station. At the police station the Accused was shown 6 of the photos taken by the bank security cameras and responded by saying that “It could be anyone”. Detective Peattie said that he then asked the Applicant to look at photograph numbered 3 again, remarking “Have a go at the fingers on the left hand; same joints; same as your hand”. The Applicant looked again at the photo, looked at his own hand and “in a low muttered voice, he said, ‘Alright, alright that’s me”.

13 Detective Peattie said that the Applicant then participated in an interview during which questions and answers were recorded by Detective Nimmo on a typewriter, the Applicant read what was recorded but said that he was “not signing anything”. The Applicant also refused to sign an account of the conversation which had been recorded in Detective Peattie’s note-book. Detective Peattie then read to the jury the questions and answers as recorded. Included in them were unequivocal admissions of having committed the robbery.

14 Detective Nimmo gave evidence to similar effect of that given by Detective Peattie. Both also said that after the interview and the Applicant’s expressed intention not to sign the document on which questions and answers were recorded, they left the room while Detective Senior Sergeant O’Hagan spoke to the Applicant. Detective O’Hagan said that after being introduced to the Applicant, he asked the Applicant a series of questions and the latter replied. The questions and answers may be summarised as providing an adoption of the record of the interview by the Applicant. One of the question and answer exchanges was said to be:-

“Q. Do you wish to tell me why you did not sign this document?
A. I have been told that if you don’t sign police papers you can keep your options open.”

15 As has been said, at his trial the Applicant made an unsworn statement. He denied participation in the robbery and denied the admissions attributed to him. He denied also ever having previously seen the sunglasses.

16 Judged by the reasons given at the time, in the Court of Criminal Appeal, an attack was made on the admission of the evidence of identification of the Applicant by Detective Peattie, references in the summing-up to Detective Peattie’s expertise in the matter of photographic identification, and what was said to be inadequacy in warnings to the jury about the dangers in identification evidence and in the evidence of admissions – matters which inspire no, or no further reference here. However some remarks of Clarke JA, with whom the other members of the court agreed, bear repetition. His Honour said:-

Before proceeding to examine the grounds of appeal, it is pertinent to point out that the court had available to it a large number of photographs which in the main constituted photographs taken by the bank security photographic system during the robbery. In addition, there were available photographs, which were taken by a police officer of the Appellant’s hands. Although I have some difficulty in understanding the significance which was attached to the Appellant’s hands during the course of the trial, I am bound to observe that the photographs of the robber were quite clear and despite the fact that he was wearing a beanie and dark glasses, depict a man with rather distinctive facial features. The photographs indicate a profile of the robber when he was looking to his left; a profile when he was looking to his right and other views which, although not fully frontal, were close to it. The significance of these photographs could not have been lost on the members of the jury, in the light of their clarity and the facial characteristics of the man depicted in them. Although the Crown did not and, indeed, may not have been able to rely on these photographs, as alone justifying the conviction of the appellant, they undoubtedly provide cogent evidence in support of such a conviction. The appellant (and I interpose the observation that he was in court during the whole of the hearing) is a man of a similar physique to the man shown in the photographs and has particular facial characteristics which bear a striking resemblance to those characteristics shown on the face in the photographs. I would make particular reference to the nose and the lips of the person who was shown by the photographs to have been robbing the bank. I make particular mention of those features of the evidence because, as I have indicated, they provide powerful support, to put it at its lowest, for the Crown case and they serve as indicating the background against which the submissions advanced in the appeal should be considered.

17 Unfortunately the following page of the Reasons of the Court of Appeal supplied in support of this application have been imperfectly copied. The Supreme Court file and library copies of the Reasons suffer from a similar deficiency so I set out the relevant remarks as well as possible:-

D who argued his case with skill and attention to
That the Crown case relied on six particular
of evidence. They were the disputed oral admissions
tie, the detective’s identification of the appellant
nk security photographs, the photographs themselves,
nt’s association with a white utility motor vehicle,
nt’s possession of two pairs of Dunlop “Volley”
and the finding of a pair of sunglasses, which the
was said to have admitted owning, in the white
That categorisation of the Crown case appears to me
stantially accurate. I should observe, however, that
three mentioned categories of evidence were of
insignificance for it was the bank photographs which,
idered together with the admissions and the
ation evidence, provided the Crown’s substantive case.

18 Against this background I come to consider the material upon which the application seeking referral of the conviction to the Court of Criminal Appeal is based.

19 It should be recorded that all the police officers mentioned were, at the time, part of the Armed Hold-up Section of the Regional Crime Squad at Chatswood. Subsequently Detective Peattie, in admissions made by him given to the Police Integrity Commission, has acknowledged that during a period which extended from 1984 to 1991 he engaged in the practice of “verballing”, including the preparation of what purported to be records of question and answer interviews with suspects. Detective Peattie also admitted to preparing false statements and sometimes giving evidence to the effect of the “verbals” and false statements. He acknowledged stealing money which he came across in the course of his police duties.

20 Detective Nimmo has acknowledged to the Police Integrity Commission that on 3 different occasions he was with the Armed Hold-Up Unit, CIB”. On 8 February 2002, he gave the following evidence before the Commission:-

“Q. You made mention that, is it fair for me to say that throughout those three different periods, you were involved in a number of incidences concerning corruption, misconduct and/or criminal activity?
A. I was involved in, as we’ve spoken about before, fabricating evidence, fabricating verbal admissions, fabricating records of interview, the planting of evidence and the stealing of monies that were proceeds of robberies.”

21 Transcripts of evidence given by Detective Nimmo on 30 April 2002 contain admissions of giving untruthful answers and lying to the Commission on prior occasions.

22 On 19 July 2002 Detective Messenger pleaded guilty to charges of being an agent and receiving a corrupt reward on 4 occasions between June and October 2000 and to a charge of giving false and misleading evidence to the Commission on 18 May 2001. There is no evidence before me to Detective Messenger having committed offences or been dishonest prior to June 2000 although the circumstances of the offence of June 2000 would make it surprising if he had not.

23 Detective Sergeant O’Hagan was mentioned during the course of the Royal Commission into the NSW Police Service by a number of witnesses. Transcripts of evidence supplied to me indicate that he was suspended at one stage in 1995 but otherwise contain nothing to indicate any participation in criminality. In the Application made by the Legal Aid authorities on behalf of Mr Rix it is stated, “My instructing solicitor has been informed that the PIC has some material with regard to the witness, but it is not relevant to this inquiry”.

24 Although there is no fresh direct evidence that the admissions said by Detectives Peattie and Nimmo at the Applicant’s trial were fabricated, the evidence of those detectives to which I have recently referred provides strong grounds for concluding that they may have been. Had that fresh evidence been before the jury at the time of the Applicant’s trial, it is highly unlikely, despite the evidence of Sergeant O’Hagan, that the jury could have positively believed that the admissions were genuine. Thus the fresh evidence would have greatly weakened the Crown case.

25 As I have previously implied, it would also have been weakened if the law, as laid down in Smith v R, had been applied and Detective Peattie’s identification of the Applicant excluded.

26 However, as has been pointed out, there remained available to the jury the bank photographs of the offender and the photographs of the Applicant’s hands and his actual appearance in Court. As to this I would make 3 remarks. Firstly, the passage which I have quoted from the judgment of Clarke JA suggests that the similarities may well not have been sufficient to prove the Applicant’s guilt beyond reasonable doubt. Secondly, I have not seen the Applicant or photographs of his facial features and can myself make no judgment as on the topic of such similarities in that area. Thirdly, although the reason may be the angle at which the post-arrest photographs of the Applicant’s hands were taken, there seem to me to be more difference than similarity between the Applicant’s hands and that depicted in the bank photographs as the left hand of the robber.

27

While it would clearly have been preferable for evidence of the Applicant’s appearance to have been placed before me, and it may be necessary for this to occur or the Applicant actually appear before the Court of Criminal Appeal, the circumstances to which I have referred clearly raise a doubt or question as to part of the evidence in the case and make it appropriate that I refer the whole of the case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act, 1912.

28 I so order.

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Last Modified: 06/10/2004