R v HUDD [1999] NSWCCA 382

New South Wales Court of Criminal Appeal CITATION : R v HUDD [1999] NSWCCA 382 FILE NUMBER(S) : CCA 60567/99 HEARING DATE(S) : 30 November 1999 JUDGMENT DATE : 16 December 1999

PARTIES : REGINA v Patrick HUDD JUDGMENT OF : Sheller JA at 1; Barr J at 2; Bell J at 85

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/11/0393 LOWER COURT JUDICIAL OFFICER : Flannery DCJ

COUNSEL : Crown: R A Hulme Appellant: S J Odgers/I Asuzu SOLICITORS : Crown: S E O'Connor Appellant: T A Murphy CATCHWORDS : Criminal Law - appeal - fresh evidence - whether the unavailability at trial of evidence of the dishonesty of a Crown witness led to a miscarriage of justice. Held: no ACTS CITED : Crimes Act 1900 s 474D, s 474E(1)(b) Gallagher v The Queen (1986) 160 CLR 392 CASES CITED: Mickelberg v The Queen (1989) 167 CLR 259 R v Robinson [1999] NSWCCA 186 R v Johns [1999] NSWCCA 206 DECISION : Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL 60567/99

SHELLER JA BARR J BELL J

Thursday, 15 December 1999

REGINA v Patrick HUDD

JUDGMENT

1 SHELLER JA: I agree with Barr J.

IN THE COURT OF CRIMINAL APPEAL 60567/99

SHELLER JA BARR J BELL J

Thursday, 16 December 1999 REGINA v Patrick HUDD JUDGMENT

2 BARR J: The appellant was convicted by a District Court jury of conspiring to pervert the course of justice and was sentenced to serve a term of imprisonment. His co-accused, who was also convicted and sentenced, was Julianne Kay Dufty. The appellant's appeal to this Court against the conviction was dismissed on 9 December 1994, though his sentence was reduced. On 9 March 1999 the appellant applied under the provisions of s 474D Crimes Act for an inquiry into his conviction and on 18 June 1999 an order was made in accordance with s 474E(1)(b) that the proceedings be referred to this Court to be dealt with as an appeal under the Criminal Appeal Act. There was one ground for the application, and that became the sole ground of appeal, namely that the conviction of the appellant constituted a miscarriage of justice due to the unavailability at the trial of certain fresh evidence concerning a Crown witness, Sergeant Nomchong. 3 The Crown case was that on 27 May 1989 the appellant was stopped by police in Lamb's Lane, Goulburn. They carried out a search but found nothing. They took him to his house, which was nearby, and there found a considerable quantity of heroin, among other things. They charged the appellant with the supply of the heroin. 4 The appellant, who knew that he had no answer to the charge, set about recruiting people to give false evidence at his trial in order to make his activities at the time of his arrest and at other relevant times appear innocent and to make it look as though the police had falsely accused a man they knew was innocent. In doing so he engaged the assistance of Ms Dufty. One prospective witness they recruited was Darren Worthington, a man the appellant met in gaol. 5 During their endeavours the appellant produced and he and Ms Dufty distributed a number of typed and handwritten documents containing model witnesses' statements and draft questions and answers for use in court, together with much written explanatory material. 6 It was important for the Crown to put such documents before the jury and to prove that the writing in them was the appellant's. It set about doing so in various ways, one of which was to have a handwriting expert look at documents proved to have been written by the appellant and to say whether the conspiratorial documents were in the same hand. 7 For this comparison the expert used two sets of documents said to be in the appellant's handwriting. One was a series of letters identified by Sergeant Nomchong as having been written by the appellant some years earlier than the events giving rise to the trial. 8 The appellant denied that any of the documents were in his handwriting. At the trial the credibility of police officers was strongly attacked. It was put to Sergeant Nomchong that he had had the opportunity himself to write the letters he attributed to the appellant. 9 The fresh evidence concerning Sergeant Nomchong is as follows -