Regina v Sydney Thomas FINNIE [1999] NSWCCA 329

New South Wales Court of Criminal Appeal CITATION : Regina v Sydney Thomas FINNIE [1999] NSWCCA 329 FILE NUMBER(S) : CCA 60334/97 HEARING DATE(S) : 19 October 1999 JUDGMENT DATE : 19 October 1999

PARTIES : Regina Sydney Thomas Finnie JUDGMENT OF : Sully J at 1; Hulme J at 24; Hidden J at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/11/0801 LOWER COURT JUDICIAL OFFICER : Hosking DCJ

COUNSEL : R. D. Ellis - Crown In person - Appellant SOLICITORS : S. E. O'Connor - Crown CATCHWORDS : DECISION : Appeal against conviction dismissed.

IN THE COURT OF CRIMINAL APPEAL

60334/97

SULLY J HULME J HIDDEN J

19 October 1999

REGINA v Sydney Thomas FINNIE

JUDGMENT 1 HIS HONOUR: On 11 June 1997, Mr Sydney Thomas Finney, the appellant, was presented for trial in the District Court at Sydney before his Honour Judge W Hosking QC. The appellant was so presented upon an indictment charging that he had, on or about 19 July 1991 at North Sydney, obtained for himself a cheque with intent to obtain it, and that in the course of obtaining the cheque he had made statements particularised in the charge and being false statements. The appellant pleaded not guilty and he was put accordingly upon his trial. 2 After a trial lasting for a few days the jury found the appellant guilty as charged. He was sentenced thereupon to imprisonment for nine months to be served by way of periodic detention. No present application is made respecting the sentence thus imposed, and no more need be said about it. 3 The appellant's present challenge is to his conviction. Four grounds of appeal have been notified and it will be necessary to return to each of them presently. Before doing that it is expedient to say something about the relevant facts. They fall within a small compass and are, put simply, as follows. 4 An application was made to a finance company for finance in connection with the purchase of a motor vehicle. The application was supported by a statutory declaration. The declaration contained statements which were manifestly false; and the contrary was not asserted at trial. The signatory of the declaration purported to be the appellant. The real issue at trial was whether the signature on the declaration was indeed the authentic signature of the appellant, or whether it was a forgery placed there by a man named Fowler. Various other matters were canvassed during the course of the trial, but in the end that was the issue of substance that was left, and in my opinion correctly left, to the jury. 5 In the opening paragraphs of the summing-up the learned trial Judge put to the jury this direction: "In a nutshell, if the Crown cannot satisfy you beyond reasonable doubt that they are the accused's two signatures on the right-hand side of exhibit 3, you go no further. You would stop there and then and you would acquit the accused. On the other hand, if you are satisfied beyond reasonable doubt that those signatures were put there by the accused, it would of course be open to you to convict." 6 Central to the case made by the Crown at trial on that particular issue was evidence given by a witness named Eastman. The first two grounds of appeal have to do with Mr Eastman's evidence. The grounds are expressed in the notice of appeal as follows: "1. His Honour erred in holding that the evidence of Mr Eastman be accepted as an expert and that his evidence was not contradicted. 2. His Honour misunderstood the nature of Mr Eastman's evidence as being an expert in his field of alleged expertise without the witness explaining his methodology and calculations." 7 The first thing to be said about Mr Eastman's evidence is that no application was made to test on a voir dire, or indeed at all, his status as a witness having expertise in the relevant field, which was that of handwriting identification. Mr Eastman was called; gave in the usual way details of his relevant experience, which was considerable in the field of handwriting identification; explained in the usual way, and by reference to charts and like materials, the method by which he had compared authentic signatures with the disputed signatures on the statutory declaration; and expressed in the form of an exposed process of logical reasoning how he arrived at his conclusion, which was that the questioned signatures were those of the appellant. 8 Mr Eastman was cross-examined carefully and at length, but his cross-examination, as I have understood it, did not question his expertise. His cross-examination questioned, rather, the correctness of the conclusion at which he had arrived by applying to the facts in hand an expertise not challenged as to the fact that it existed. 9 The learned trial Judge, in his charge to the jury, and in dealing with the evidence of Mr Eastman, was careful to explain with complete clarity to the jury, and that more than once, that the jury was not to be overborne by the fact that Mr Eastman had expertise as a handwriting identification expert. The jury was warned clearly, more than once and with complete clarity, that it was a matter for the jury to decide what weight it would give to the evidence of Mr Eastman, and to decide what conclusions, in the jury's view, were rationally open on that evidence insofar as it might be accepted by the jury. All of those directions seem to me to have been, with respect to his Honour, unexceptionable. 10 I do not perceive any other basis upon which grounds 1 and 2 may properly be upheld. In my opinion grounds 1 and 2 have not been made good. 11 The third ground of appeal moves to a different topic which concerns evidence given by two other witnesses, Mr Fowler and Mr Everingham. The Complaint is made as to the summing-up of the evidence of Mr Everingham, the nub of the complaint being that the Judge told the jury, as indeed his Honour did tell them, that Mr Everingham was "the odd man out." The complaint made about that aspect of the summing-up is, I think, met by the consideration that his Honour was asked by counsel appearing for the appellant to recharge the jury with regard to Mr Everingham; and he did so, in passages that appear at page 47 of his Honour's summing-up. It is not, I think, necessary to repeat the entirety of what his Honour said to the jury; but it is sufficient to say that his Honour told the jury with complete clarity that it was for them to decide about the credibility of Mr Everingham, and that they were not to be overborne by any view which they might think that the Judge himself had formed on that question. 12 Mr Fowler, as would be apparent from what has been said about him earlier in these reasons, was a significant witness in the trial. He gave evidence, the effect of which was, put simply, that he himself had indeed forged the signatures on the statutory declaration, and upon which in every real sense the Crown case against the appellant depended. Mr Fowler was, on any view, what might be described as a problem witness. He had given, in other proceedings, evidence on oath which was directly to the contrary of what he was telling the jury at the appellant's trial. He had, as well, a demonstrated record which, to say the least, cast a significant shadow over anything to do with his essential credibility. 13 The Crown case was simple enough. It was that Mr Fowler was so manifestly unreliable that the jury could not believe, to put the point colloquially, a word he said. The attitude of the defence, insofar as one can judge it from the material now available, was that Mr Fowler could not be put forwarded in any way as a person of general good credit; but that in respect of the particular matter as to which he had given evidence, he might well be accepted, for the reason precisely that he was so dishonest that he was exactly the kind of person who might have done the very thing attributed to him by the defence. 14 The learned trial Judge approached that matter in a number of ways. First of all, his Honour summarised, - and so far as I can see, summarised correctly and fairly, - for the jury, the competing submissions that had been put by the Crown Prosecutor and by counsel appearing for the appellant. Secondly, his Honour invited the jury to consider whether, in the events that had happened at the trial, they might not be better served simply to set Mr Fowler aside and to concentrate on the other available evidence and, in particular, upon the expert handwriting identification evidence the substance of which, as his Honour correctly reminded the jury, had not been contradicted by other qualified evidence. 15 Of course, it is impossible for anybody to know after the event how the jury in fact dealt with Mr Fowler and the relevant parts of his evidence. All that one can say is that it was certainly open to the jury to refuse to accept the evidence given by Mr Fowler; and it is, I think, the sensible inference to draw from the verdict of the jury that that is precisely what the jury did. I do not see that anything that was put to the jury by the learned trial Judge in the course of summing up the evidence, either of Mr Fowler or of Mr Everingham, that calls for the intervention of this Court. In my opinion ground 3 has not been made good. 16 Ground 4 is expressed as follows: "The appellant now has new forensic evidence which has come into existence in recent months as concerns handwriting analysis attributed to various documents alleged to have, in whole or in part, been under the hand of the appellant and that this analysis and further evidence itself suggests that there has been a mistrial." 17 Evidence has been put on by the appellant in connection with this ground of appeal. It is, so far as concerns new material, evidence of Mr John Gore, who describes himself as a document examiner; and who deposes to academic and practical experience relevant to the question of examination of documents, although not, as I read his affidavit, in any particular sense having regard to handwriting identification. Mr Gore's evidence is that he has previously examined the questioned signatures and reported in writing on them to the appellant's legal representatives at the time of the trial. Mr Gore says that his opinion was then, as it is now, that the questioned signatures are, put simply, false. There is some doubt, on the face of the available documents, as to quite when it was that Mr Gore made such an examination; but it would be fair to the appellant to proceed upon the basis that it was about 1998: that is to say, after the conclusion of the trial here in question. 18 It is not, I think, necessary to go through in fine detail the relevant principles of law that have to do with the reception by this Court of what is conventionally called "fresh evidence." It is, I think, more to the present point to focus upon the question whether the appellant has demonstrated that there was a miscarriage of justice at his trial by reason of the way in which the question of expert handwriting evidence was dealt with at the trial. In that regard it is beyond doubt that counsel then appearing for the appellant sought and was granted access to the documents in question in order that they might be examined by an independent handwriting expert retained for the defence. It appears to be the case that at trial a handwriting expert was present in Court, for some time at least, while Mr Eastman gave evidence for the Crown. We are wholly uninformed, in connection with the present appeal, whether in fact an independent assessment of the handwriting was made by an expert retained by the defence; and, if so, what the result was, and why that result, if available during the course of the trial, was not in fact used in aid of the defence at the trial. 19 There is no point in speculating about possible answers to any of those questions. It is sufficient to understand that they are real questions that arise in this Court, and they are wholly unanswered. 20 In those circumstances I do not see that a case has been made for this Court to take the view that there has been a demonstrated miscarriage of justice such as to entail a new trial. 21 It should, in fairness, be added that the appellant appears for himself, and in person, before this Court. It would be fair to understand that he cannot be held to the same precise standards of advocacy as would be appropriate to somebody legally qualified. That is relevant because the appellant has, during the course of presenting his submissions to the Court, had critical comments to make about this and that aspect of his representation at trial, that representation having been made available to him by the Legal Aid Commission. This Court, it must be pointed out with emphasis, is in no position to take a view one way or the other about those complaints as raised by the appellant during the course of his submissions. 22 Two things I think ought to be said with regard to that part of the submission put by the appellant. The first is that this is not, as I would understand the material put forward, a case manifestly within the principles enunciated by this Court in Birks. The second is that the Court has not had the benefit of hearing any contradictory version of what has been put by the appellant with regard to his representation at trial. As I say, I think that in those circumstances this Court cannot, for the purposes of the present appeal, give any effect or substance to what has been said by the appellant in criticism of his representation at trial. 23 For the whole of those reasons I am of the opinion that the appeal against conviction has not been made out and should be dismissed. 24 HULME J: Subject to one matter I agree with the orders proposed and his Honour's reasons. One reservation I have is a matter which was not the subject of appeal. I cannot forebear from saying that the sentence imposed on the appellant strikes me as extraordinarily lenient. 25 HIDDEN J: I agree that the appeal should be dismissed for the reasons given by the presiding Judge. 26 SULLY J: The order of the Court is that the appeal against conviction is dismissed. The appellant is ordered to report to the Metropolitan Periodic Detention Centre on 29 October 1999 to commence serving the unexpired portion of his sentence.