Regina -v- Kevin Sean Ryan [2000] NSWCCA 184

New South Wales Court of Criminal Appeal

CITATION : Regina -v- Kevin Sean Ryan [2000] NSWCCA 184 FILE NUMBER(S) : CCA 60538/99 HEARING DATE(S) : 09/05/2000 JUDGMENT DATE : 9 May 2000

PARTIES : Crown Kevin Sean Ryan JUDGMENT OF : Spigelman CJ at 24; James J at 33; Ireland J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0628 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : Crown - D C Frearson App - R Burgess SOLICITORS : Crown - S E O'Connor App - T A Murphy CATCHWORDS : Criminal Law - S 5F Criminal Appeal Act, 1912 - charge of demanding money with menaces in contravention of S 99 Crimes Act 1900. - Whether permanent stay of proceedings available due to delay of trial. - Reluctance of court on appeal to interfere with exercise of trial judge's discretion to refuse stay. Nicholson (1998) 102 A Crim R @ 459 considered. LEGISLATION CITED : S 5F Criminal Appeal Act, 1912. S 99 Crimes Act, 1900. CASES CITED: House -v- The King (1936) 55 CLR 499 BF Nicholson (1998) 102 A Crim R 459 DECISION : Leave granted.; Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60538/99

SPIGELMAN CJ JAMES J IRELAND J

Tuesday, 9 May, 2000 REGINA -v- Kevin Sean RYAN

JUDGMENT 1 SPIGELMAN CJ: I invited Ireland J to deliver the first judgment. 2 IRELAND J: This is an application for leave to appeal under s 5F of the Criminal Appeal Act 1912. 3 On 6 February 1995 the applicant was charged with demanding money with menaces in contravention of s 99 of the Crimes Act 1900. The offence allegedly occurred on 27 January 1995. He was committed for trial on 29 August 1995 and on 1 September 1999 Judge Gibson in the District Court refused an application that the proceedings be permanently stayed. 4 It is alleged that on 27 January 1995 the victim, Raymond Henry Page, received a typed letter at his home. The author of the letter stated that he had video and photographic evidence of the victim committing homosexual acts in a public toilet in the Fairfield area. He demanded $6000 not to disclose this and instructions were given as to where the money was to be delivered. 5 On 3 February 1995 the victim delivered a parcel to the designated location. Surveillance by police was carried out and on 4 February 1995 a co-accused, Peter Spinks, was arrested in possession of that parcel. 6 Mr Spinks was interviewed and admitted his involvement in the offence in an ERISP. He made a statement adopting his interview and a further statement in June and July 1995. He also gave evidence at the committal hearing. 7 He stated that the applicant, whom he had known for several years, was the instigator of the offence and had asked him to pick up the money. He also said that prior to the letter of demand being given to the victim, Mr Page, the applicant asked him to pick up the applicant's typewriter from an acquaintance, Mr Leonard Gould. Mr Spinks initially gave the applicant his own typewriter. The applicant said it did not work properly and asked again if he would obtain his typewriter from Mr Gould. Mr Spinks did this and gave it to the applicant. He was to receive $2000 for his part in the offence. 8 On the first day of the committal hearing, a witness known as WS14 in the Royal Commission into The New South Wales Police Service, a former detective said that an identification of the applicant had been made in the foyer of the court by the victim. 9 It is apparent that this aspect of WS14's evidence is the only significant part of the police evidence relied upon in the Crown case. WS14 gave evidence before the Royal Commission as a protected witness and the need for his protection and also his ill health are matters which have contributed to the unfortunate delays in the history of this matter. 10 In his judgment of 1 September 1999, Judge Gibson set out the chequered history of appearances in the matter and, for convenience, I will relate them from his judgment, there being no issue as to the sequence of events he refers to, although the precise detail has been expanded in the careful and comprehensive written submissions made by Ms Burgess on behalf of the applicant. At page 1 his Honour said:- "… the accused was charged on 6 February 1995 at Parramatta Police Station and it was first listed for trial on 20 November 1995, a period of some eight months, the committal proceedings having finished on 29 August 1995. There then followed a number of occasions on which the matter was before the Court, originally at Campbelltown on 20 November 1995, when the matter was not reached. It was then listed for trial on 13 March 1996 and on 14 March the person known as WS14 was found to be involved as a witness in this trial and before the Royal Commission and a medical certificate was produced and that trial was aborted. Now, up until that time I think it is fair to say that it proceeded fairly swiftly and that it was in the middle of proceeding to trial when this incident with the witness and the Royal Commission occurred." 11 I continue to cite from his Honour's judgment:- "Now, it has taken from 14 March 1966 until 7 June 1999 before the matter was again ready to proceed. On 9 August 1996 there was a joint application that the trial date which had been set for 23 September 1996 be vacated at Parramatta District Court and the matter be stood over for mention to Sydney District Court due to security facilities needed for WS14, so that the matter was then moved to Sydney. On 30 August 1996 it was listed for trial. On 18 November the hearing was to take place. On that date a Crown witness had gone overseas. She was a witness who had been subpoenaed and served with a subpoena to appear. The application for the adjournment was opposed but the Court, in the circumstances, allowed the application. It was stood over to a date to be fixed. It was listed for trial. There was then no date available until early 1997. It was called over on 29 May 1997 and there was in fact no date available between that date and 20 April 1998. On 8 April 1998 the trial date of the 20th was confirmed and then it was mentioned again on 17 April in which witness WS14 had had a heart attack and was unavailable to give evidence. He was a witness that was quite naturally required by the defence to be cross-examined and an application was made, whether it was by the defence or by consent or by both parties, that the trial date be vacated because he was unavailable, and it was. It was later stood over to a date when there was no appearance by the accused, which appears to have been some sort of mistake because he had appeared on all these other occasions and apparently the appropriate document had not reached him and on 5 June there was a call-over and it was once again adjourned, due to the uncertain health of the witness WS14, to 3 August 1998. It was stood over on that date to 7 August 1998 by consent, as I understand it, for mention to fix a trial date, as still waiting for the prognosis and a list of available dates for this witness WS14 and on 17 August it was in the list where, as I understand it, a defence application to stand over and it was stood over to 10 October to fix a trial date. On 5 June at Sydney District Court the Court was still waiting for a prognosis in regard to WS14 so it went over until 3 August 1998 and then to 17 August and then to 10 September, for call-over on each occasion. On 10 October it was listed for trial an estimate of 10 days and it was listed for mention on 28 May 1999 to confirm the trial date. On that day the accused appeared unrepresented and there was a notice of motion to vacate the trial and stay proceedings which was stood over until 7 June 1999. On that day the accused was represented by counsel. An adjournment was applied for because a witness who was missing had gone overseas, not being the witness mentioned before but a different one. The Crown were wanting to, as I understand it, use the provisions of the Evidence Act in relation to his evidence. The accused's representatives said they wanted the witness so that he could be cross-examined, as they were entitled to do, and that, they said, there was also a stay application. So on that call-over the trial date was stood over for mention to 16 July 1999 and the stay application was listed for today (1 September 1999) and on 16 July the trial was listed for 22 November 1999, subject to the stay application in the list before me." 12 His Honour went on to say that he would accept the fact that the delays and the length of time in which the proceedings had been on foot had caused the applicant to be depressed in relation to the problems that he was suffering, being frustrated by the delays of this trial coming on, and he recognised that, in fairness to the Crown, not all of the delays had been brought on by the Crown not being prepared to carry out the duty of prosecution but for other reasons. 13 He also made reference to the fact that the death of the applicant's grandmother was not without some significance because of the intention to call her concerning a phone call and the non-connection of an answering machine at a relevant time, which was said to be of some significance. His Honour noted it was unfortunate that this lady was not available to give evidence and that there was no way of proving whatever admissible evidence she could give. 14 That, with respect, is not necessarily the situation. It may be possible, for example, to establish the evidence which this lady would have given by other means. It is perhaps significant that she was seventy-nine years of age at the time of her death and that at the time she died the matter had been listed on at least four occasions. Whether or not there is some documentation of her intended evidence is a matter of which we know nothing. 15 His Honour noted that the applicant is a person who is not eligible for legal aid, and that is a matter which has since been resolved in his favour on the documentation which is placed before this Court. His Honour was referred, as we have been, to the similarities which are said to exist with regard to the case of Bradford Fegan Nicholson (1998) 102 A Crim R 459. Those similarities in some regard parallel those in the present case and in that case Smart J, with whom Grove and McInerney JJ agreed, reviewed the principles relevant to a case such as the present and gathered together much of the relevant authority. 16 There are certainly a number of similarities. There are, however, some matters of distinction which are significant, apart from the commonality of delay. In Nicholson's case there were five not reached markings, on each occasion the parties being ready to proceed. That in itself is a most unusual circumstance and does not really have application to the present case, where the adjournments invariably were made by consent with, I think, one exception, where the matter was actually marked not reached when everyone was prepared to proceed. 17 Significantly, in Nicholson's case, there was loss of an eye witness to the criminal activity, there was a doubtful unsigned record of interview and there was the factor of the impact upon two children, although that did not seem to be a really serious matter. 18 At p 463 in the judgment of Smart J, his Honour said:- "It is incorrect to regard this case one of mere effluxion of time. I have already indicated some matters which show that more is involved." 19 At p 469 his Honour observed:- " ... the accused may face more difficulties than the Crown especially having regard to the position with Radovan and McInerney." 20 Radovan was the deceased eye witness and McInerney was another witness who was ill and may have been unable to give evidence. His Honour went on to say:- "What has weighed heavily with me is the oppressive conduct to which the accused has been subjected by the District Court and its system. Over a lengthy period the accused has had to prepare for a trial on no less than five occasions and been subjected to 'not reached' markings. The dates of the further trials were fixed a long time ahead. There was no finality. The strain was considerable and it had an adverse effect on the whole family, especially the elder child. The funds of the accused were exhausted and he ended up having to rely on legal aid. He has been put to considerable expense because of the fixing of the trial dates and the 'not reached' markings. The situation was made worse by the accused having to travel from the far North Coast to appear and to answer bail. It is not surprising that there is no reported case in which the facts even remotely resemble those in the present case. It is rare for the course of proceedings in a court to give rise to oppressive conduct. The additional evidence placed before this Court has highlighted the oppressive conduct which the accused has had to bear. The evidence before the primary judge was not so complete and he did not have as full a picture as we have. Nor did he have the evidence as to the position of McInerney. The offence charged is serious and a permanent stay should only be granted in exceptional circumstances." 21 It is essential to recognise, of course, that this appeal is an appeal against the exercise of a discretion on the part of the primary judge. It is trite law that this Court will not interfere with the exercise of a discretion in the absence of error. The error stated to have been exhibited is, firstly, the failure of his Honour to make reference to the strength of the Crown case. Secondly, the unreasonableness of the result itself within the principle enunciated in House v The King (1936) 55 CLR 499 and more recent decisions. 22 As to the first matter, it is fair to say that in his judgment Judge Gibson did not specifically make reference to the strength of the Crown case. But to say that a judge of the experience of Judge Gibson, because he did not mention it, had not taken it into account is another thing altogether. For my part, I am not persuaded that his Honour did not have this aspect fully in mind. Nor am I able to accept that the result was so unreasonable as to amount to the degree of unreasonableness identified in House v The King. 23 I do not in fact identify any error in the exercise of discretion in the Court below as to warrant interference by this Court. I would grant leave but I would dismiss the appeal. 24 SPIGELMAN CJ: I agree with the order proposed by Ireland J and with his Honour's reasons. I wish, however, to add some brief observations with respect to his Honour's analysis of the case of Nicholson (1998) 102 A Crim R 459. 25 It is important to recognise that there were a number of significant reasons entitling the Court of Criminal Appeal to interfere with the exercise of discretion by the trial judge in Nicholson, reasons which are not present in the current proceedings, as Ireland J has shown. 26 First, his Honour Smart J, when delivering the principal judgment of the Court, identified at p 463 an extract from the trial judge's reasons, in which the trial judge appeared to regard the case as one involving "mere effluxion of time". As Ireland J has already indicated in his judgment, Smart J was of the view that that was incorrect with respect to the facts of that case. 27 Second, as his Honour Smart J set out at pp 469.10 to 470.1, the evidence before the Court of Criminal Appeal was much more complete and provided what Smart J described as a more "full picture", with respect to the events that had occurred. 28 Third, there was evidence before the Court of Criminal Appeal in Nicholson, with respect to the position of a co-offender, McInerney, that was not available to the trial judge in that case at all. McInerney, as appears from pp 460-461 of the judgment, was, if anything, more closely associated with the receipt and delivery of the prohibited substances than was the accused Nicholson himself. No doubt McInerney had been dealt with for the offence, probably in the Australian Capital Territory, where he was arrested. The precise detail of McInerney's treatment does not appear from the judgment. 29 What does appear, however, from p 464 is that he was ill. He had a form of cancer and had had radiotherapy and chemotherapy. There was a medical opinion to the effect he should not attend court in Sydney as a witness. Of particular significance was the fact that the Crown had approached McInerney with a view to obtaining a statement or record of interview from him only shortly before the appeal was heard in the Court of Criminal Appeal. As the judgment of Smart J points out at p 464.6, the accused had not determined what he would do in case there was any such interview, because he had only been advised of the position with regard to McInerney as a potential witness on the afternoon of the day before the day the appeal was heard in the Court of Criminal Appeal. 30 As his Honour went on to say at p 464 McInerney, together with the other participant in the crime, Radovan, who was by that stage deceased, were the most significant potential witnesses as to the precise participation of Nicholson in the events of that day. 31 These are matters of significance which arose for the first time in the Court of Criminal Appeal. In Nicholson they are three matters which have no parallel in the present proceedings. 32 For the reasons Ireland J has given, I agree that the circumstances are not such as to warrant this Court interfering in the exercise of the discretion by the primary judge. 33 JAMES J: I agree with the judgment of Ireland J and I agree with the remarks made by the Chief Justice. 34 SPIGELMAN CJ: The order of the Court is leave is granted but the appeal is dismissed.