R v Saleam

[1999] NSWCCA 342

CITATION:	R v Saleam [1999] NSWCCA 342
FILE NUMBER(S):	CCA 60719/97
HEARING DATE(S):	12 October 1999
JUDGMENT DATE:	12 October 1999
PARTIES :	Regina James Saleam
JUDGMENT OF:	Newman J; Studdert J; Hulme J

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

COUNSEL:	LMB Lamprati - Crown Appellant in person
SOLICITORS:	SE O'Connor - Crown Appellant in person
CATCHWORDS:
DECISION:	Extension of time within which to appeal refused; Appeal dismissed as incompetent

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IN THE COURT OF
CRIMINAL APPEAL
No: 060719/97

NEWMAN J
STUDDERT J
HULME J

Tuesday, 12 October 1999
REGINA -v-James SALEAM
JUDGMENT

1    NEWMAN J: I would ask Mr Justice Hulme to deliver the first judgment.

2    HULME J: On 28 September 1994 the appellant was charged before Judge Viney:-

“For that he between 1 June 1990 and 9 July 1990 did conspire with John Rex Anderson to maliciously damage, by means of fire, a motor vehicle, the property of Peter Coleman”.

3    The appellant pleaded not guilty and the trial, with the consent of the appellant, was by Judge alone. The evidence adduced by the Crown consisted of a number of statements, one by Mr Anderson, one by Mr Coleman and a number by police officers. It also included two affidavits by the appellant and some evidence he had given previously and also included two publications written at least partly by him entitled “We Accuse” and “You’ve Got to be Joking”. There was no cross-examination and no challenge to this evidence. If accepted, it established that the appellant had made an arrangement with Anderson whereby for the sum of $400 the latter would create a “little fire” to cause some damage, but not destroy, Mr Coleman’s car.

4    The appellant made an unsworn statement in which he admitted committing the offence but said he was trapped into doing so by his former wife and, he believed, a fourth person. Not surprisingly, both on the basis of the information contained in the material tendered by the Crown, and on the basis of the appellant’s unsworn statement, he was convicted on 6 October 1994 and sentenced to a minimum term of imprisonment for six months to date from 29 July 1994 and to an additional term of eighteen months during which period he was to be released on parole and supervised by the probation service. In backdating the sentence his Honour took into account approximately two months pre-sentence custody referable only to the subject offence.

5    His Honour found special circumstances, in particular that at the time of sentence the appellant was serving a sentence of a minimum term of three years and six months dating from 9 April 1991 and an additional term of one year for offences of malicious injury to property and possession of a firearm. The appellant was indeed on bail for those offences at the time he committed the offence presently under consideration.

6    The appellant had earlier convictions recorded against him. In 1984 he was convicted of stealing. In 1985 he was convicted of defacing walls. In 1986 he was convicted of possession of a prohibited article and, on appeal, sentence was deferred upon him entering into a recognisance to be of good behaviour for three years. In 1987 he was sentenced to two years’ imprisonment with a non-parole period of twelve months on charges of receiving and obtaining money by a false statement. With this record, the sentence imposed on the appellant was not obviously excessive.

7 I have referred to him as “the appellant”. In fact the notice of appeal was lodged on 30 December 1997, some three years later than the 28 days allowed for by section 10 of the Criminal Appeal Act. He thus needs the Court to grant an extension of time to pursue his appeal.

8    The grounds originally advanced in support of this leave are:-

1. I understood in 1994-1995 that the essential witness was under implicit threat of Police Special Branch and anonymous assailants. I was in custody until May 1995 and could offer no protection. The witness was psychologically incapable of giving evidence. The witness was suborned in September 1994 against giving evidence.
2. I deliberately awaited proceedings of the New South Wales Royal Commission into the Police Service which in March 1997 held certain hearings which revealed information and otherwise discredited the police officer whose behaviour lies at the centre of this appeal.
3. The witness is prepared to give evidence and - statement will soon be taken.”

9    Additional grounds were advanced in later documents including one dated 9 October. The witness referred to is the appellant’s former wife, now apparently resident in the United States of America. In summary her affidavit asserts that Detective Ireland of the New South Wales Special Police Branch put her up to suggesting to the appellant that he arrange with Mr Anderson to damage Mr Coleman’s car and that she did so.

10    The latter statement, of course, echoes what the appellant had said on the occasion of his trial. Shortly before that, an application had been made on his behalf to stay the proceedings against him. What was said to be the unavailability of his former wife to give evidence was advanced as a reason for a temporary stay but a permanent stay was sought on the ground that the commission of the appellant’s offence was as a result of entrapment and, in any event, the upholding of a claim for public interest immunity against the production of various Crown documents precluded the effective mounting of the appellant’s defence.

11 At the time of the events which led to the charge against the appellant, he was involved in a political organisation known as the Australian National Action. Mr Coleman had earlier also been involved in that organisation but had left to join what the appellant has referred to as a neo-Nazi organisation. It may be that these involvements led to the Police Special Branch taking an interest in the two, but be that as it may, the written argument of the appellant presented to the Court makes it clear that he feels aggrieved by the activities of that branch and in particular of Detective Ireland. The appellant has directed the Court’s attention to evidence before and findings of the recent Royal Commission concerning Detective Ireland and the branch has indicated that he wishes “to ventilate every aspect of this case, such that it may retain assorted doubts or questions as would satisfy the criteria for Crimes Act Inquiry” (sic).

12    In my view the Court should refuse the appellant an extension of time within which to appeal. Firstly, it is clear on his own admissions that he was guilty of the offence charged. Secondly, the sentence imposed expired prior to the institution of his appeal. Thirdly, the grounds advanced by him do not provide an adequate basis for the indulgence which he seeks, his delay in part being a simple matter of choice between competing demands on his time. Fourthly, the principal legal basis which he has advanced in support of his appeal is not sound.

13 In essence, the appellant relied upon the principle exemplified in Ridgeway v The Queen (1994-5) 184 CLR 19. He submitted that it was an officer of the State in the person of Detective Ireland who was the principal instigator and inspiration for his offence and therefore evidence of it should have been excluded. What, in the circumstances of this case, the submission ignores is that, even if the facts are as the appellant asserts, the Court has a discretion in the matter. Although the application to stay the proceedings had been made, when the evidence relied on by the Crown was tendered, it was not objected to. The appellant in his most recent submissions says that was for the sake of expedition of the trial. The appellant was represented by experienced counsel and, in that situation, it would be unusual for this Court to interfere. Given the appellant’s subsequent admission, I can see no ground for this Court to do so. Thus, even if an extension of time to appeal was granted, the appeal would have been dismissed.

14    It remains only to say this: This Court exists to hear appeals against convictions or sentences. It is not its function to supervise those bodies charged with the obligation to investigate illegal or improper conduct on the part of the citizens of the State, whether or not they are police officers.

15    I propose that the Court refuse the appellant an extension of time within which to appeal and that the appeal be dismissed as incompetent.

16    NEWMAN J: I agree.

17    STUDDERT J: I agree.

18    NEWMAN J: The orders of the Court will be those as espoused by Justice Hulme.