R v Goonan [2000] NSWCCA 25

New South Wales Court of Criminal Appeal

CITATION : R v Goonan [2000] NSWCCA 25 FILE NUMBER(S) : CCA 60744 of 1999 HEARING DATE(S) : 8 February 2000 JUDGMENT DATE : 8 February 2000

PARTIES : Regina Patrick Michael Goonan JUDGMENT OF : Spigelman CJ at 1; Hulme J at 2; Carruthers AJ at 42

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 89/11/0486 LOWER COURT JUDICIAL McDevitt DCJ; McGuire DCJ OFFICER :

COUNSEL : Crown: DR Frearson Appellant: GP Craddock SOLICITORS : Crown: SE O'Connor Appellant: TA Murphy

DECISION : See paragraph 39

IN THE COURT OF CRIMINAL APPEAL No: 60744/99 SPIGELMAN CJ HULME J CARRUTHERS AJ Tuesday, 8 February 2000 REGINA -v-Patrick Michael GOONAN

JUDGMENT 1 SPIGELMAN CJ : I invite Justice Hulme to deliver the first judgment. 2 HULME J : On 14 December 1989 the appellant was convicted by a jury of committing an armed robbery on 1 November 1988. A verdict of not guilty was found in respect of the second charge of participation in an armed robbery on 13 October 1988. 3 On 15 December 1989 the appellant was sentenced to penal servitude for a minimum term of ten years and an additional term of three years and four months. The appellant appealed. The appeal was heard on 19 March 1993 and dismissed and the judgment was handed down on 13 April of that year (see Goonan [1993] 69 ACrimR 338). 4 Recently the appellant lodged a petition under section 474 of the Crimes Act 1900 seeking a review of his conviction, and on 22 November last the Attorney General referred the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. 5 The principal foundation for the appellant's petition arises from the fact that two of the police officers who gave evidence at his trial or in the course of his appeal - one of the grounds of which was that fresh evidence had become available - has been shown to be guilty of dishonesty. To appreciate the significance of this it is necessary to recount some of the events which occurred in a little detail. 6 When apprehended shortly after the robbery on 1 November 1988 the appellant was driving a motor vehicle in which there were some passengers and in the boot of which were weapons, one of which was proved to have been used in the robbery, balaclavas and a bag of money. The appellant's case at trial was that, at least so far as the subject offence was concerned, he was innocent and had merely acted as a driver of the bank robbers, without knowing of any relevant intentions or activities on their part. So far as the appellant was concerned they had gone off to purchase drugs and then returned. 7 The report of the earlier appeal records that the Crown case against the appellant at his trial relied solely upon admissions alleged to have been made by the appellant to police officers and admissions recorded in a signed record of interview. Of course, the matters to which I have referred, existing at the time of his apprehension, provided some corroboration. 8 The appellant's case was that he had made no admission but had signed the record of interview because the police had told him that if he did not do so, they would charge him with a number of other robberies, and charge his wife with being an accessory to them. 9 Most of the grounds of appeal previously relied on by the appellant are of no present relevance and may be ignored. 10 The ground which is of present relevance was a claim that there had been a miscarriage of justice because one of the robbers, a man Sing, who had pleaded guilty, had not been available to give evidence at the appellant's trial. His unavailability was explained by evidence in this Court to the effect that two police officers, a Detective Sergeant McDonald and a former Detective Emmett had threatened to "load him" with another armed robbery if he gave evidence on behalf of the appellant. 11 The report of the appeal records (pages 341-342) that in the view of Hunt CJ at CL, with whose reasons the other members of the court agreed: "Sing was cross-examined on those affidavits before this Court. His evidence was not impressive. ... It is difficult to conclude that, had this evidence been before the jury in addition to that of the Appellant and that of Segwick" (another robber who had given evidence at the trial) "the result would have been any different." … For myself, I did not accept Sing's evidence as to the threats made to him by the police officers - which were denied by them on oath. Whatever may be said as to the likelihood that those officers would have visited Sing after it was learnt that he proposed to give evidence for the Appellant in order to find out what he would say, there was no suggesting made before this Court that those two officers were involved with the prosecution against the Appellant. There was thus no sensible motive for them to have made those threats. It is true that the two officers denied having even visited Sing, but even a scepticism in relation to that denial does not by itself establish the truth of these further denials that they made those threats; nor does it assist me in accepting the unimpressive evidence of Sing that they did." 12 At the appellant's trial Detectives McDonald and Emmett gave evidence as to the interviewing of Mr Sing. In chief Detective McDonald also gave evidence as to the presence of items in the boot of the car at the time of the appellant's apprehension. Detective Emmett would seem to have been called solely for the purposes of cross examination. 13 The police witnesses who gave evidence as to the making of admissions and a signed record of interview in respect of each offence, were Detectives Hawley and Irwin of the Armed Hold Up Unit at the Regional Crime Squad, South, Detective Hawley being in charge of the matter. 14 Another witness, Mr Thompson, who at the time of the interviews was the detective senior sergeant in charge of that unit, gave evidence of having confirmed with the appellant that the interviews were properly conducted and the statements recorded of the appellant's own free will. 15 In February 1999 Detective Irwin pleaded guilty to two charges, one that between July and December 1997, he incited a person to tamper with items seized by police with intent to pervert the course of justice, and one that on 9 December 1997 he gave false evidence to the Police Integrity Commission. The person Detective Irwin incited was Detective McDonald. The activity was at the instigation of a drug dealer who was concerned that his fingerprints might have been found on drugs seized by the police. A somewhat fuller account of these events is to be found in the judgment of this Court in R v Irwin [1990] NSWCCA 361. 16 In response to Detective Irwin's request, Detective McDonald then approached another police officer and sought that he tamper with the evidence. In due course Detective McDonald pleaded guilty to charges of the same nature as those referred to in the immediately preceding paragraph. 17 A report of October 1998 by the Police Integrity Commission to Parliament entitled "Operation Jade" described Detective McDonald as "a close personal associate of Irwin". 18 Evidence was also placed before this Court that the Director of Public Prosecutions has commenced proceedings against Detective Irwin and others (not involved in the case against the appellant) alleging that on 7 March 1991 they "framed" someone by attributing oral admissions and an unsigned record of interview to him and, in the case of Detective Irwin, that he falsely alleged the finding of certain evidence in that person's premises. Detective Irwin has been committed for trial. 19 In reliance upon the evidence referred to in the last three paragraphs, it was submitted that, had that evidence been available at the appellant's trial it might have led to the acquittal of the appellant. Gallager v The Queen [1985] 160 CLR 392 was cited in support. However, the test for which that decision stands as authority is somewhat higher than the submission recognises. 20 The test, where a Court of Criminal Appeal is asked to allow an appeal upon the basis of fresh evidence, is whether, if that evidence had been available at trial, there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant. The application of that test requires an examination of the facts and circumstances of the individual case. 21 That one witness is dishonest is not evidence and does not tend, by itself, to show that other witnesses are. And this is so, even if the witnesses be police officers who have participated jointly in an investigation or the interviewing of a suspect. 22 In the case of the appellant the evidence of his having confessed to participation in the offence of which he was convicted was given, not only by Detective Irwin but also by Detective Hawley and, to a somewhat lesser extent, Detective Thompson. Within the fresh evidence placed before this Court there is nothing to show that these officers participated in the misdeeds of Detectives Irwin or McDonald. 23 At the appellant's trial there was, in addition, as I have said, the evidence that when apprehended, implements used in, and the proceeds of the robbery were found in the car he was driving. This last mentioned evidence was referred to when the matter was dealt with by this Court in 1993 as a point of distinction between the offence of which the appellant was convicted and that of which he was acquitted and a reason why the jury's failure to be satisfied of the appellant's guilt in the case of one charge was insufficient to indicate that the appellant should have been acquitted on both, even though, in the case of each, there was similar evidence given by the same witnesses that the appellant had confessed. (See [1993] 69 ACrimR 349). 24 The jury's failure to convict on the second charge where the only evidence was that of Detectives Thompson, Hawley and Irwin does, however, limit the weight which this Court should give to the fact that Detectives Thompson and Hawley are not tainted with the evidence against Detective Irwin presented in this appeal. 25 But before I pursue that matter further, it is appropriate to refer to other matters. It was submitted on behalf of the Crown that the conduct of Detectives Irwin and McDonald in 1997 would have no probative value as to the probity of those officers in 1988. As was pointed out in R v Robinson [1999] NSWCCA 186, a jury may have no difficulty in concluding that a witness who has been dishonest in the past continues to be dishonest, nor in inferring that a witness who is dishonest on one day was dishonest the day before or the week before. However, it is common experience that honest people may become dishonest under the influence of external events and, in the case of many police officers that is what has occurred, and the longer the period between one event and a later one of dishonesty, the harder it is to draw an inference that the person was dishonest at the earlier time. 26 In R v Robinson it was held that evidence of events in 1984 would have no substantial probative value as to events in 1972 and, in the circumstances of that case, could not be relied on, even though evidence of some, if otherwise relevant, came within section 106(e) of the Evidence Act. 27 In this case, the period between the events involving the appellant and Detective Irwin and those the subject of Detective Irwin's conviction, was nine years. If there was nothing more to cast doubt on his credibility, I would incline to the view that the period was too great for those later events, despite their gravity, to have any significant impact upon the appellant's situation. However, I do not need to decide that issue. 28 Although at this stage the proceedings against Detective Irwin concerning the events of 1991 have not advanced beyond the committal, it may be inferred from the matters to which I have referred above, that there is evidence in the possession of the Director of Public Prosecutions to the effect that Detective Irwin "has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law ... to tell the truth". 29 The preparation of statements to be used in the court involves such an obligation and thus, if otherwise relevant, such evidence is admissible under section 106(e) of the Evidence Act. Although the details of this evidence and the witnesses themselves have not been presented to this Court, given that Detective Irwin has been committed for trial and there is no suggestion to the contrary, it seems to me that the court should proceed on the basis that the evidence of offence by Detective Irwin in 1991 is, prima facie, credible. 30 Even putting aside the events of 1997 I would not regard the three year period between 1998 and 1991 as so long as to preclude the events of 1991 being regarded as of relevance in assessing Detective Irwin's credibility in 1988 particularly given the similarity between the events the subject of the criminal proceedings and what is said to have occurred in the case of the appellant. 31 Thus, it seems to me that this Court should take that evidence of the 1991 events into account in judging whether the test for which Gallager v R stands as authority has been met. Once that view be adopted, it seems to me that the evidence of events in 1997 is also relevant. 32 In judging whether there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant, this Court should also take account of the jury's reservations implicit in the acquittal of the appellant on one charge - reservations which, as I have indicated, apply not only to the evidence of Detective Irwin, but also to that of Detectives Thompson and Hawley. 33 When account is taken of all of these matters, in my view the test set out in Gallager v R has been met. 34 I should, however, add something concerning the prior appeal to this Court. Firstly, the Crown called in the appeal Detective McDonald, whose honesty has since been discredited. The Court of Appeal, of course, had no knowledge of McDonald's misdeeds and although the remarks concerning the credibility of Mr Sing did him no credit, one must recognise the possibility that the evidence which was given by Detective McDonald may have had some impact in the result. 35 Secondly, one cannot read the report of the appeal without arriving at the conclusion that the result was close. Again, one cannot know whether, had that court had before it the evidence which is before the court on this occasion, the result would have been the same. 36 The next question which arises is what order this Court should make. Having regard to the passage of time since 1988, together with the extent to which he appellant has served his sentence - he has served more than the minimum term - in my view the court should, in the exercise of its discretion, enter a verdict of acquittal and not order a new trial. Counsel appearing for the Crown accepted that this would be the appropriate order. 37 More recently, however, namely on 17 April 1996, the appellant was sentenced in respect of two other offences. One was of escaping from lawful custody, for which the fixed term of one year and nine months penal servitude commencing on 3 January 2000 and expiring on 2 October 2001, was imposed; and a second of possessing a shortened firearm, for which a penalty comprising a minimum term of three years and nine months, to commence on 3 January 2000 and to expire on 2 October 2003, and an additional term of two years and nine months commencing on 3 October 2003 and expiring on 3 July 2006, were imposed. 38 Application for leave to appeal out of time has been made in relation to those offences. In my view the proper order which should be made in relation to them is to leave the terms as they were but, in light of the order which this Court has made, to change the commencing date of the sentences to the date upon which they were imposed, namely 17 April 1996. 39 On that approach the orders which the court should make are to allow those appeals, to quash the orders made and in respect of the sentence of escaping from lawful custody, to impose a sentence of a fixed term of one year and nine months penal servitude, commencing on 17 April 1996 and expiring on 16 January 1998, and in respect of the offence of possessing a shortened firearm, impose a sentence of three years and nine months by way of minimum term, commencing 17 April 1996 and expiring on 16 January 2000, and an additional term of two years and nine months commencing on 17 January 2000 and expiring on 16 October 2002. 40 Those are the orders I would propose. 41 SPIGELMAN CJ: I agree. 42 CARRUTHERS AJ: I also agree. 43 SPIGELMAN CJ: The orders are as indicated by Mr Justice Hulme.