Honeysett v Director of Public Prosecutions [2023] NSWCCA 215

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Honeysett v Director of Public Prosecutions [2023] NSWCCA 215 Hearing dates: 2 August 2023 Date of orders: 28 August 2023 Decision date: 28 August 2023 Before: Beech-Jones CJ at CL at [1] Fagan J at [64] Dhanji J at [65] Decision: (1) Appeal allowed. (2) Set aside the convictions entered on 15 October 1987 against the appellant for offences under s 33B(1)(a) of the Crimes Act 1900 (NSW) and s 32(1)(a) of the Poisons Act 1966 (NSW). (3) In lieu thereof, acquittals be entered. (4) Grant a certificate to the appellant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), specifying that, in the opinion of this Court: (i) if the prosecution had been in possession of all of the relevant facts prior to commencing proceedings for an offence under s 33(2) of the Crimes Act 1900 (NSW) and supplying heroin, both offences allegedly committed on 23 December 1983, it would not have been reasonable to institute the proceedings; and (ii) any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. Catchwords: CRIMINAL LAW — appeals — appeal against conviction — miscarriage of justice — appellant arraigned on 6 October 1987 to counts of maliciously wounding a police officer with intent to prevent his lawful apprehension and supplying a prohibited drug — appellant pleaded not guilty — police officer gave evidence consistent with crown case — appellant pleaded guilty on 7 October 1987 to lesser charge of using offensive weapon to prevent his lawful apprehension and supply charge — agreed facts tendered on sentence record appellant stabbed police officer during police pursuit, fled and was arrested in possession of heroin — Royal Commission into New South Wales Police Force revealed police had colluded and fabricated evidence — appellant entered pleas after concluding he would be convicted — whether circumstances established a miscarriage of justice — fresh evidence adduced at Royal Commission overwhelmingly demonstrated that evidence of appellant stabbing police officer and supplying drugs was concocted — actions of police were a form of "fraud" or sufficiently analogous to concept of "fraud" to warrant reversal of plea of guilty — whether appellant should be granted a costs certificate for costs of proceedings at first instance — Costs in Criminal Cases Act 1967 (NSW) in its current form applicable — ss 2(1)(b) and (3) satisfied — appeal allowed — convictions set aside and in lieu acquittals entered — costs certificate granted Legislation Cited: Costs in Criminal Cases (Amendment) Act 1971 (NSW) Costs in Criminal Cases Act 1967 (NSW) Courts Legislation Amendment Act 1998 (NSW) Courts Legislation Amendment Act 2001 (NSW) Courts Legislation Further Amendment Act 1997 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Justices Act 1902 (NSW) Poisons Act 1966 (NSW) Royal Commissions Act 1923 (NSW) Royal Commission (Police Service) Act 1994 (NSW) Supreme Court (Criminal Appeal) Rules 2001 (NSW) Cases Cited: Allerton v DPP (1991) 24 NSWLR 550 DAO v R (No 3) [2016] NSWCCA 282 R v Terry Michael Inns (1974) 60 Cr App R 231 Kearns v R [2011] NSWCCA 103 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 O'Sullivan v R [2002] NSWCCA 98; (2002) 128 A Crim R 371 R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 R v Liberti (1991) 55 A Crim R 120 R v Maltese [2004] NSWCCA 98; (2004) 150 A Crim R 97 Rodden v R [2023] NSWCCA 202 R v Rodden (Costs) [2022] NSWSC 1230 White v R [2022] NSWCCA 241 Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 Category: Principal judgment Parties: Eric Honeysett (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel: J Stratton SC; D Woodbury (Appellant) M Millward (Respondent)