R v Robinson

[1999] NSWCCA 186

CITATION:	R v ROBINSON [1999] NSWCCA 186
FILE NUMBER(S):	CCA 60588/98
HEARING DATE(S):	24 June 1999
JUDGMENT DATE:	14 July 1999
PARTIES :	Regina v James Allan ROBINSON
JUDGMENT OF:	Abadee J at 1; Ireland J at 2; Barr J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Robson DCJ

COUNSEL:	RA Hulme (Crown) T Molomby (Appellant)
SOLICITORS:	CK Smith (Crown) TA Murphy (Appellant)
CATCHWORDS:	Criminal Law - appeal - fresh evidence - whether evidence cogent
ACTS CITED:	Crimes Act s 330, s 474B, s 474C(1), (2) Evidence Act s 102, s 103(1), 106(e) Independent Commission Against Corruption Act s 87
CASES CITED:	Regina v Pederick, Court of Criminal Appeal 21.5.97 unrep Regina v Pohl, Court of Criminal Appeal 17.12.93 unrep Regina v Rendell, Court of Criminal Appeal 22.6.94 unrep Regina v O'Connor (1995) 80 A Crim R 214 Regina v Kevin Craig Hastings, Court of Criminal Appeal 29.9.97 unrep Gallagher v The Queen (1986) 160 CLR 392 Mickelberg v The Queen (1989) 167 CLR 259 Regina v Richard George Miller, Court of Criminal Appeal, 3.5.96 unrep Regina v Mustafa Marsala, Court of Criminal Appeal, 31.5.96 unrep Regina v Dean McLaren, Court of Criminal Appeal 22.10.96 unrep Regina v Geza Vastag, Court of Criminal Appeal 20.6.97 unrep Regina v John Leslie Baartman, Court of Criminal Appeal 30.6.97 unrep Regina v Peter Franks, Court of Criminal Appeal 11.12.97 unrep Regina v Christopher Hasenkamp, Court of Criminal Appeal 24.2.98 unrep
DECISION:	Appeal dismissed

IN THE COURT

OF CRIMINAL APPEAL

60588/98



ABADEE J
IRELAND J
BARR J


WEDNESDAY 14 July 1999


REGINA V James Allan ROBINSON


JUDGMENT

1   ABADEE J: I agree with the reasons of Barr J and the orders he proposes.

IN THE COURT OF
CRIMINAL APPEAL

60588/98

ABADEE J
IRELAND J
BARR J

Wednesday, 14 July, 1999

REGINA -v- James Allan ROBINSON

JUDGMENT

2   IRELAND J: I agree with Barr J and with the order proposed.

IN THE COURT OF
CRIMINAL APPEAL

60588/98

ABADEE J
IRELAND J
BARR J

Wednesday, 14 July 1999

REGINA v James Allan ROBINSON

JUDGMENT

3 BARR J: This is a reference by the Attorney General under Pt 13A Crimes Act. On 18 August 1972 the appellant James Allan Robinson was convicted by a Sydney Quarter Sessions jury of assault while being armed with intent to rob and malicious wounding with intent to prevent his lawful apprehension. Judge Robson sentenced him to fourteen years’ penal servitude on the first count and eight years’ penal servitude on the second. The appellant appealed to the Court of Criminal Appeal against his convictions. His appeal was dismissed on 26 April 1973.

4 The appellant petitioned the Governor under the provisions of s 474B Crimes Act for a review of his convictions. A number of things may happen after such a petition has been considered. One of them is that the Attorney General may refer the whole case to this Court to be dealt with as an appeal under the Criminal Appeal Act, as has happened here, but only if it appears that there is a doubt or question as to the convicted person’s guilt or as to any mitigating circumstances in the case or as to any part of the evidence in the case: s 474C(1), (2).

5   Once this Court is invested with jurisdiction by such a reference, the issue whether the appeal should be upheld is solely for this Court, notwithstanding of the perceived doubt or question that led to the reference. Regina v Pederick, Court of Criminal Appeal 21 May 1997 unreported; Regina v Pohl, Court of Criminal Appeal 17 December 1993 unreported; Regina v Rendell, Court of Criminal Appeal 22 June 1994 unreported; Regina v O’Connor (1995) 80 A Crim R 214 at 222.

6   At about 12.15 am on 19 October 1971 two men entered the office of the University Motor Inn at Forest Lodge. The night porter, Mr George Ryan, was behind the reception desk. One of the men was armed with a knife and the other with a sawn-off rifle. Both had stockings over their heads.

7   The man with the rifle announced that it was a hold up. The one with the knife tried to open the till. Mr Ryan called for help, rousing the manager, Mr Brain, and the assistant manager, Mr Disley. The two attackers fled. The one with the firearm climbed over a fence and reached the street. Whilst the other was trying to climb the fence, Mr Disley grappled with him and was stabbed. Mr Brain fired a shot from a pistol and the man in the street also fired. The man with the knife, whose name was Darrell Burrell, fell from the fence and hurt himself as he escaped.

8   Burrell thought he had been shot. He was admitted to St Vincent’s Hospital and gave a false story explaining how the shooting had happened. In fact his injury was a broken leg. He was arrested.

9   The appellant was arrested in Melbourne on 9 February 1972 and was extradited to New South Wales. Detective Harding accompanied him back to Sydney on 12 February 1972.

10   The appellant and Burrell were jointly tried. The Crown asserted that the appellant was the man with the rifle. The case against him relied heavily upon identification evidence from Mr Ryan and evidence of admissions made to investigating police officers.

11   Mr Ryan said that both men had stockings over their faces, though they were not tightly drawn or tied. The men’s faces were quite visible through the stockings, which did not distort their features. He had them in view for three or four minutes.

12   The man he identified as Burrell was the taller of the two and fair. He held the knife. He had a slight twist to his nose which was not caused by the stocking and which he noticed when he later saw him in court.

13   The man he identified as the appellant was the man with the rifle. He had dark hair and eyes. He had a prominent nose and side levers. He had sharp features with tightly wrapped nostrils and a mouth which Mr Ryan described as rather cruel.

14   Mr Ryan identified both accused from a series of photographs shown to him by police officers on the day after the robbery.

15   In his remarks on sentence the trial judge said this about the evidence of identification -

There was a great deal of cross-examination and criticism of Mr Ryan because he said he identified these two persons the following day from photographs given to him. I am satisfied on the evidence before me that he chose these photographs in a manner that was fair to the accused, and that that identification was powerful evidence and the jury was entitled to accept it, and I am certain that the jury did accept it.

16   The evidence about admissions by the appellant was as follows. Detective Harding first saw him at Prahran police station, Melbourne on 11 February 1972. He introduced himself and read to the appellant the warrant he had for his arrest. He told him that he was going to apply for an order for the appellant’s extradition to Sydney. The appellant said that he understood. He continued -

It was a bad blue. It should never have reached the stage that it did or happen.

17   Detective Harding then cautioned him and the appellant responded -

I know that. I realise you would not be here for nothing. I came down here after you got Darrell and I was told the heat was on.

18   There was further conversation which it is not necessary to relate.

19   The two men boarded a plane to Sydney and sat side by side. The appellant made to speak further about the matter and Detective Harding cautioned him a second time. The appellant said -

Well, I didn’t mean to fire at anyone. I’m not that bad. The gun went off accidentally. I was shitting myself.

20   The appellant and Detective Harding were met at the airport by Detective Sergeant Kelly and Detective Potter. The appellant was taken to police premises in the City of Sydney and a formal interview was conducted. Detective Harding asked the questions and Detective Potter typed them and the appellant’s answers. According to the evidence of Detective Harding, the appellant agreed that the transcript correctly recorded the conversation. The following conversation then took place -

HARDING Will you sign it?
APPELLANT No, I don’t think I should. It reads dreadful.
HARDING What do you mean by that?
APPELLANT Well, I have dropped myself right in for the stick up. What is going to happen about the shooting?
HARDING You will be charged with shooting at Mr Disley with attempt to avoid lawful apprehension.
APPELLANT Well, in that case I will not sign it.
HARDING You are not suggesting this, that your reason for refusing to sign this document is that it is an incorrect record of our conversation?
APPELLANT No.

21   The record of interview contained substantial admissions as to the appellant’s participation in the hold up. Question and answer number 18 were as follows -

Where did you go after the hold up?
After Darrell got to the hospital, I just went into smoke and then went to Melbourne.

22   After the interview was over, Detective Harding left the room and spoke to Detective Sergeant Kelly. He and Detective Sergeant Kelly returned to the room and according to them the following conversation took place -

KELLY I understand that Det Harding has told you that you need not say anything unless you wish and this still applies. Do you understand that?
APPELLANT Yes
KELLY I understand Detective Harding has just completed this record of interview with you
APPELLANT That’s right
KELLY Is it a true and accurate record of your conversation with him?
APPELLANT Yes
KELLY But I understand that you do not wish to sign it
APPELLANT That’s right
KELLY Would you care to give me your reason for not signing it
APPELLANT I have already told Mr Harding why

23   Further conversation followed.

24   The record of interview was received into evidence.

25   The appellant’s defence at trial was that Mr Ryan’s identification of him as the gunman was mistaken, that he had made no admissions to any police officer and that they had fabricated their evidence. He said that he was in Melbourne at the time of the attempted robbery.

26   It was proved at trial that the appellant had received a telegram in Melbourne during the morning of the day of the robbery. However, it would have been possible for anyone to fly from Sydney to Melbourne between the times of the robbery and the receipt of the telegram.

27   One of the attacks on the police evidence arose out of what they said the appellant had said about having gone to Melbourne. The appellant tendered evidence which tended to prove that he was resident in Melbourne at the time of the hold up. He told the jury that he went to Melbourne to reside on 25 September 1971 because he had recently been given a very lenient sentence for assault and feared that police, resentful of the fact, might work retribution upon him. He lived in premises in St Kilda and Richmond.

28   In order to show why the police might harbour such resentment he put his full criminal record before the jury. It included convictions for vagrancy, attempted stealing, breach of recognisance and several convictions for stealing. It showed that the appellant had been to gaol more than once and could make no strong claim to be honest.

29   The appellant called evidence from Mr Leitch, the proprietor of a boarding house, who had booked the appellant into a rented room in East Richmond on 4 October 1971. The appellant shared the room with another man. He left the room on 6 December 1971. Mr Leitch was not privy to the daily comings and goings of the appellant.

30   This attempt to raise a reasonable doubt about the guilt of the appellant required the jury to conclude both that the appellant was genuinely resident in Melbourne at the relevant time and that the words attributed to him before and during the formal interview were consistent only with the appellant’s then residing in Sydney.

31   It is not difficult to understand why this evidence and this argument did not raise a reasonable doubt in the minds of the jury.

32   The issues raised and rejected in the first conviction appeal concerned the trial judge’s directions about identification, confessional and alibi evidence and the admission of the unsigned record of interview.

33   There is a single ground of appeal in the present appeal, namely that there is now available fresh evidence which shows that the conviction was a miscarriage of justice.

34   The fresh evidence may be summarised as follows -

1. On 24 June 1975 Detective Potter accepted a bribe of $480 from some thieves.

2. In 1994 Arthur Stanley Smith, a notorious criminal, told the Independent Commission Against Corruption that in December 1984 he had paid $10,000 to Detective Harding to escape prosecution over a robbery.

3. In 1994 Detective Harding gave evidence at the Independent Commission Against Corruption. The Commissioner concluded that he had told lies to the Commission.

4. At a trial in 1985 Detective Harding and seven other police officers all gave evidence to the same effect about why a man had been treated in a certain way at a police station. In 1996, at the Royal Commission into the New South Wales Police Service, three of the officers said that that account was false.

35   The evidence about Detective Potter must be considered separately from that about Detective Harding because the discrediting of one officer will not affect the reliability of another. Regina v Kevin Craig Hastings, Court of Criminal Appeal 29 September 1997 unreported.

36   Our system of justice strives to achieve finality in the determination of issues between parties. Cases which have been decided and in which all available avenues of appeal have been exhausted will not be re-opened without good reason. However, the Court will re-open a concluded matter if it is shown that there has been a miscarriage of justice. Where fresh evidence is relied on it is for the appellant to establish that the absence at the trial of that evidence has resulted in a miscarriage of justice. Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259.

37   The evidence must be material, credible and cogent. An appellate court will conclude that there has been a miscarriage of justice only if it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before them. Gallagher v The Queen; Mickelberg v The Queen.

38   Notwithstanding that way of putting the test, the evidence which may be considered on appeal is not restricted to matters which were in existence at the time of trial. It is well established that evidence of subsequent events is capable of being fresh (or new) evidence for these purposes. Gallagher v The Queen; Mickelberg v The Queen. Neither has any distinction been made in principle between evidence to be adduced in chief and evidence to be adduced in cross-examination.

39   A more appropriate way of putting the test for present purposes might be whether there is a significant possibility that a reasonable jury, having before them the evidence adduced at the trial together with the proposed evidence, would acquit the appellant.

40   Assuming, as is appropriate here, that the fresh evidence is not sufficient to satisfy the appellate court that the appellant is innocent or that there ought to be a reasonable doubt about his guilt, and subject to the exercise by the Court of its discretion, a successful appeal on this ground ordinarily results in a new trial. If the Court were to conclude that there had been a miscarriage of justice in this appeal, however, a verdict of acquittal would have to be entered, because there could not be a fair trial in 1999 of a case in which the Crown depended in large measure on evidence of an identification made in 1971. The principal witness, Mr Ryan, was 57 years old at committal and nothing is now known of his history or his present circumstances. If he is still alive, he is 82 years of age.

41   The material upon which it was sought to rely was set out in considerable detail in statements and transcripts annexed to an affidavit sworn by David Phillip Barrow on 18 March 1999.

42   It is convenient to deal first with the evidence relating to Detective Harding. According to the report of the Commissioner of the Independent Commission Against Corruption, Mr Temby QC, Smith gave evidence about a robbery at an RSL Club on 28 December 1994 in which a doorman had been injured. The limited extract of transcript provided to the Court gives the impression that Smith considered himself and another well-known criminal, Graham John Henry, responsible. The next day Detective Harding telephoned Smith and told him that he had been foolish. He may also have told Smith that he was likely to be arrested. Smith asked what could be done, and a meeting was arranged at an hotel. Smith, Henry, Detective Harding and a police officer called Rogerson attended. Smith and Henry paid over $5,000 each and a further $2,000 was paid to Rogerson. Smith knew that the doorman would be paid and that Detective Harding would share the money with other police officers.

43   Detective Harding gave evidence and denied the meeting and the payment.

44   The Commissioner was not satisfied that Detective Harding had warned off Smith, though he found that he had involved himself in an investigation which was not his. The commissioner was not sure that Detective Harding was lying, but found that he had not behaved in the manner to which he had testified. The Commissioner found that with one exception none of the principal witnesses was credible. There was no finding that money had been paid as asserted by Smith.

45   The conversations between Detective Harding and the appellant, leading to the preparation of the unsigned record of interview, took place in February 1972. That was when Detective Harding concocted his evidence, if that is what happened. He gave his evidence at trial in August 1972. If he received a bribe from Smith and Henry, that happened at the end of 1984, more than twelve years later.

46   The questions which arise are to what extent if any a reasonable jury might make adverse findings about Detective Harding’s conduct at the end of 1984 and, if so, to what extent if any they might draw from them any inference adverse to his credibility in 1972. As I have already observed, there could not be another trial, but it is necessary to suppose what might happen if there were.

47 The credibility rule, made by s 102 Evidence Act 1995, would not permit evidence of the events of December 1984 to be adduced except by cross-examination of Detective Harding, and then only if it had substantial probative value: s 103(1). It is proper to assume, I think, that if Detective Harding were required to answer questions he would deny meeting Smith and receiving money as he did before the Independent Commission Against Corruption. In that event, the jury would be told that there was no evidence of the asserted bribe. In the result, they would be unable to be influenced by any such matters in forming a view about Detective Harding’s credibility at any time.

48   There is a further reason why this evidence lacks the necessary quality. This case is to be distinguished from those in which juries are asked to infer present dishonesty of witnesses from their past dishonesty. A jury may have no difficulty in concluding that a witness who has been dishonest in the past continues to be dishonest. Such a conclusion may be informed by the impression the jury receive from seeing and hearing the witness.

49   However, the problem of assessment becomes less easy when the jury is asked to infer dishonesty at an early time by reference to later events. No doubt a jury might readily infer that a witness they consider to have been dishonest on one day was dishonest the day before or the week before. But the further apart the two events are, the more tentative the conclusion must become, not least because the jury know nothing about intermediate events and are denied the opportunity of seeing and hearing the witness at the time of the asserted dishonesty.

50   It is common experience that honest people may become dishonest under the influence of external events. They may yield to sudden temptation. They may become influenced, especially when immature and impressionable, by the attitudes of those around them. Such things are known to have happened among members of the New South Wales Police Service. See generally chapter 2 - Policing and Corruption - of the final report of the Royal Commission into the New South Wales Police Service, May 1997. It is significant to note the Commissioner’s conclusion (at 31) that very few if any police officers enter the job with corruption on their mind.

51   A number of appeals have come before this Court in recent times relying on fresh evidence which has emerged in the Royal Commission into the New South Wales Police Service which, though unrelated to the issues raised at trial, has tended to impugn the credibility of police officers who gave significant evidence at the trial. They include Regina v Richard George Miller, 3 May 1996 unreported; Regina v Mustafa Marsala, 31 May 1996 unreported; Regina v Dean McLaren, 22 October 1996 unreported; Regina v Geza Vastag, 20 June 1997 unreported; Regina v John Leslie Baartman, 30 June 1997 unreported; Regina v Peter Franks, 11 December 1997 unreported and Regina v Christopher Hasenkamp, 24 February 1998 unreported. All these cases seem to refer, expressly or impliedly, to circumstances tending to affect the credibility of the relevant police officers at the time of the events giving rise to the trial.

52   However, the Court was informed that in Hasenkamp two of the incidents which tended to impugn the credibility of a police officer took place about three months after the trial. I think that that fact has no significance for the present appeal, however, because many instances of dishonest conduct were relied on as fresh evidence in that appeal and by implication most of them would have been contemporary with the events at trial.

53   It appears that there is no decided case in this Court in which the fresh evidence has related only to credibility and has been of events which happened significantly later than the time at which the credibility of the relevant witness fell to be examined.

54   In my opinion, even if the evidence were available I do not think that a trial judge would admit it. The desired cross-examination of Detective Harding would not be permitted because it would not be proper to use findings about the conduct of Detective Harding in 1984 to draw conclusions about his probity in 1972, so long was the time that elapsed between the two dates. The evidence about the events of 1984 would have no substantial probative value.

55   The next body of evidence relating to Detective Harding concerns his receipt on 8 April 1993 of a summons to give evidence at the Independent Commission Against Corruption. A fellow officer called Bowen received a similar summons at about the same time. Each summons contained a warning that the person to whom it was directed should not disclose any information about the summons which was likely to prejudice the investigation to which it related. Disclosure was permitted only to obtain legal advice and for certain other limited purposes. As the Commissioner observed at page 132 of his report, one object of the warning was to discourage a rehearsal of the evidence and to avoid any inference that any witness had colluded with others and concocted evidence to tally with their evidence.

56   Detective Harding and Mr Bowen were personal friends. After they received their summonses they spoke to each other in guarded terms on the telephone. Their conversations were lawfully listened to. Detective Harding admitted them but put an innocent explanation on them.

57   His evidence was not accepted and the Commissioner concluded as follows -

My conclusion is that Harding repeatedly lied to the Commission and that he did so deliberately … Harding shifted his position in a clever attempt to accommodate the undeniable. Even under pressure he has a fine functioning intelligence and his performance in the witness box really belies the proposition that significant events of recent happenings had simply dropped out of memory.

58 Detective Harding was subsequently charged with four offences under s 87 Independent Commission Against Corruption Act and four offences under s 330 Crimes Act. The former offence is committed by a person who at a hearing before the Commission gives evidence that is to the knowledge of the person false or misleading in a material particular. The latter offence is committed by any person who makes a false statement on oath which does not amount to perjury knowing it to be false or not believing it to be true.

59   Detective Harding was acquitted of all those charges.

60 If the proposed evidence were admissible the appellant would be entitled to introduce evidence of it in chief, as well as by cross-examining Detective Harding about it. See Evidence Act s 106(e). However, the events which took place at the Independent Commission Against Corruption occurred so long after the time at which Detective Harding’s credibility had to be considered that in my opinion evidence of them was not capable of bearing upon it. Such evidence would therefore lack the necessary substantial probative value and would be inadmissible.

61   The final body of evidence proposed in relation to Detective Harding concerns the arrest in June 1984 of a man who was codenamed YM1 in the Royal Commission into the New South Wales Police Service. After his arrest he was taken to Sutherland police station. The officers who seemed to have most to do with him were called Davidson and McGann. YM1 was not giving the police the co-operation they would have liked. He was withholding consent to be fingerprinted and refusing to tell them his real name. He was taken into a small room and seated upon a chair. He was handcuffed. An officer discharged three jets or sprays of mace into his face. One of the effects of the spray was to break down his resistance to being identified and to permitting his fingerprints to be taken. He asserted that the investigating detectives trumped up admissions or confessions, on the strength of which he was convicted of a series of offences and ordered to serve prison sentences.

62   Detective Harding was not directly concerned with the case but seems to have been present at the time of the events related by YM1. The common evidence of eight police officers who made statements or gave evidence about the matter in court was to the effect that it was necessary to use the spray on YM1 because he had escaped within the police station and had barricaded himself in a room.

63   At the Royal Commission three of the eight police officers said that the original account was false. The other five, including Detective Harding, continued to assert the truth of the original version.

64   It is asserted that Detective Harding gave false evidence at the trial in 1985 and false evidence at the Royal Commission in 1996.

65 If on a new trial the appellant were permitted to prove these matters, he could call evidence to prove that Detective Harding had knowingly or recklessly made a false representation whilst under an obligation to tell the truth: Evidence Act s 106(e).

66   However, I do not consider that any such matter would be capable to bearing upon the credibility of Detective Harding in 1972. The evidence would lack substantial probative value and would be inadmissible.

67   It follows from what I have said that in my opinion none of the proposed fresh evidence is capable of bearing upon the credibility of Detective Harding at any relevant time.

68   The material relating to the conduct of Detective Potter comprises a transcript of evidence taken before Mr Reason, Stipendiary Magistrate, on 9 September 1975 and of his Worship’s remarks in imposing sentence. As appears from that material, Detective Potter was on 24 June 1975 a plain clothes Detective Constable First Class. His work colleague and superior officer was Detective Senior Constable Hobson. Potter was attached to the Bankstown police station and Hobson had recently been transferred from that station to another posting.

69   One, Mr Wilson, was in charge of the security staff at David Jones Limited, Bankstown Square. During the afternoon of 24 June 1975 four thieves were in the Bankstown store of David Jones trying to steal goods and to obtain a cash refund on a stolen item, pretending that it had been purchased. A member of the staff realised what was happening and alerted Mr Wilson, who was in his office. Detectives Hobson and Potter, who were off duty at the time, were with him.

70   Realising that they had been found out, the thieves ran to a car and drove off. Detectives Hobson and Potter and Mr Wilson followed them in Detective Potter’s car. They caught up with them and a conversation took place between the seven people, as a result of which the thieves paid $480 to Detectives Hobson and Potter and Mr Wilson. The thieves were allowed to leave. They paid a further $120 on the following morning, though Detective Potter was not present on that occasion.

71   Detective Potter was then 27 years old and had been a police officer for almost eight years. He had an excellent departmental record. This was his only offence. The learned magistrate found that this was an isolated incident in which he gave way to temptation that suddenly presented itself.

72   The time which elapsed between the investigation and these events - about three years - is much less than in the complaints about Detective Harding. Even so, it 1`is significant in my opinion, especially where the evidence if adduced would show that Detective Potter was in 1975, as he had been for the whole of his police career, a man of excellent character who succumbed to a sudden and unsought temptation in the presence of a senior officer.

73   I do not think that a jury could properly draw any conclusion from that evidence about the credibility
74   of Detective Potter in 1972.

75   In my opinion the proposed evidence lacks the materiality and cogency necessary to justify this Court in setting aside the convictions. I would dismiss the appeal.

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