R v Grey [2000] NSWCCA 46

Reported Decision : [2000] 111 A Crim R 314

New South Wales Court of Criminal Appeal

CITATION : R v Grey [2000] NSWCCA 46 FILE NUMBER(S) : CCA 60803/98 HEARING DATE(S) : Wednesday 9 February 2000 JUDGMENT DATE : 3 March 2000

PARTIES : Regina v Anthony Stephen Grey JUDGMENT OF : Grove J at 1; Sully J at 18; Simpson J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/61/0159 LOWER COURT JUDICIAL Rummery DCJ OFFICER :

COUNSEL : L.M.B. Lamprati (Crown) P.J.D. Hamill (Appellant) SOLICITORS : S.E. O'Connor (Crown) T.A. Murphy (Appellant) CATCHWORDS : Criminal Law and Procedure - New Evidence - Crown Witness - Disclosure of Prior Convictions - Defence Aware That Witness Was Police Informer But Not That He Had Received Consideration For Such In His Own Sentencing Proceedings - Whether Absence Of Cross Examination Led To Miscarriage R v Birks 1990 19 NSWLR 677 CASES CITED: Mickleberg v The Queen 1988 167 CLR 259 R v Mraz (No 1) 1955 93 CLR 493 R v Taranto (1999) NSW CCA 396 DECISION : By majority, appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60803/98

GROVE J SULLY J SIMPSON J

Friday 3 March 2000

REGINA v ANTHONY STEPHEN GREY

JUDGMENT 1 GROVE J : I have had the advantage of reading the judgment in draft form of Simpson J and gratefully adopt her sketch of the background to this appeal. I do not wish to add to what she has written concerning the alternative ground of appeal which was sought to be supported by reference to s 165 of the Evidence Act and R v Birks 1990 19 NSWLR 677. 2 Grounds 1 and 2 are inter-related in the sense that both focus upon the omission to disclose that the witness Reynolds received a benefit by way of leniency in sentencing proceedings deriving from assistance which he had rendered, and was rendering to police. That benefit flowed from the content of a "letter of comfort" signed by two detective sergeants (one of whom was Detective Sergeant Bandouvakis, the informant in the case against the appellant) dated 23 September 1993 and tendered as Exhibit G before Nield DCJ who dealt with Reynolds for his offences. Reynolds was on 30 September 1993 sentenced to imprisonment for nine months to be served by way of periodic detention. Although the recording of his Honour's remarks on sentence has since been destroyed, a notation probably made by the Crown representative present in Court at the time has survived and reads: "Save for prior good character, rehabilitation and Exhibit G would have imposed full time gaol". 3 It is plain from unchallenged affidavit material presented in this Court that, had the Crown Prosecutor at the appellant's trial, which did not commence until 10 August 1998, been aware of the content of the letter of comfort he would have disclosed it to the defence. The essential issue now is whether the absence of communication of the fact that assistance to police was one factor in gaining leniency for Reynolds demonstrates miscarriage of justice in the appellant's trial. 4 An affidavit by counsel who appeared for the appellant at trial (who did not appear in the appeal) referred to reading documents in August 1999. About this he affirmed: "It was only when I received these documents that I first became aware that Mr Reynolds was in fact a police informer, and had provided assistance to the police and that Detective Bandouvakis had prepared a letter to the presiding judge to assist Mr Reynolds in relation to his sentence proceedings." 5 Whilst that evidence is accepted, and without debating whether Reynolds as a primary witness was a police informer in respect of whom the guidelines issued by the Director of Public Prosecutions explicitly applied, it was obvious that Reynolds was assisting police in the current matter in the sense that he was giving evidence against the appellant. Reynolds' record of convictions was disclosed to the defence. 6 In written submissions on behalf of the appellant it was stated: "In short, the defence case was that each car had been acquired from Reynolds in the condition in which it was sold. If the vehicles had been converted or 'rebirthed' the conversion occurred prior to the transfer of the property from Reynolds to the appellant. By implication (at least) it was the defence case that Reynolds was the true villain." 7 It was acknowledged that it was never directly put in cross examination that Reynolds had performed the conversions but there were unmistakably sinister implications in cross examination suggesting that, at the relevant time, he possessed stamps which could be used for the purpose of stamping engine and chassis numbers; that such stamps were never produced to police; that at the time of the offences alleged against the appellant he had severe financial difficulties; that his car yard was capable of holding a number of vehicles; that there were discrepancies in log books he was required to keep relating to the sale and disposal of the cars; and that during the time he conducted the wrecking business he had used the stamps to place engine and chassis numbers upon certain vehicles, in particular Ford motor cars, and that this process was "not easy". The vehicles involved in the charges against the appellant were Ford motor vehicles. 8 The perception of possible miscarriage is confined to a limited aspect of cross examination of Reynolds referrable to general credit rather than to the facts of the case. The possible significance of such cross examination should be assessed in the context of the overall evidence. 9 The five subject vehicles were stolen in the western part of the State at or near Dubbo. The appellant lived at Dubbo. Reynolds operated his car yard at Yennora in Sydney. Although the cross examination of Reynolds conveyed the implications referred to above, the challenge to Reynolds' evidence as to fact lay essentially in a contradiction between his testimony that all but one of the cars supplied to the appellant were in undriveable condition; and in the appellant's unsworn statement that they were all driveable when he received them. 10 It was common ground however that no vehicle was in registration when it passed from Reynolds to the appellant, but all five "reborn" vehicles were in fact registered by the time they were sold to purchasers. (Four vehicles were sold by the appellant and the fifth vehicle was sold by his wife). 11 The pattern of movement from non-registered status to registered vehicle in each case is supportive of the conclusion that the metamorphoses involved in the rebirth of the vehicles were simultaneous with the changes in registration status, i.e. when they were in the possession of the appellant. 12 As has been pointed out, trial counsel had also appeared for the appellant at committal proceedings when Reynolds was cross examined. It is true that it did not emerge in the evidence at committal proceedings that the assistance to police had been a factor in gaining leniency for Reynolds. There was nevertheless extensive cross examination about the relationship between Reynolds and investigators. That cross examination took place on 23 June 1994. It included exploration of matters in these terms: "Q. And when did the police first speak to you in relation to the matters of Mr Grey? A. I was brought in for a statement in January this year. Q. In January of this year? A. This year yes. Q. Did they speak to you about Mr Grey's matters before January 1994? A. They had, I couldn't give you dates on, on when it had happened and not specifically Mr Grey they had asked me matters of the vehicles certainly before then. Q. About the vehicles? A. Yeah the vehicles that were tagged in the police book. Q. Was it only in relation to the five vehicles that the prosecutor has referred you to in evidence today or were you asked by police about a whole host of vehicles? A. Yes I have been asked about many vehicles, there were vehicles that I was charged with, that happened in between February '92 and March '92. Q. They were the vehicles you were charged in relation to? A. Yes. Q. Well now how many vehicles were involved in the matters that you were charged with? A. There were eight vehicles. Q. Eight vehicles? A. Mm." 13 And later in his cross examination: "Q. Were you spoken to by the police in respect of any other matters where you may have been charged but you were not charged? A. Where I may have been charged? Q. Yes, there were other instances where involving motor vehicles or breaches of regulations that, that you breached that you could have been charged but you weren't charged you were only charged with the matters that you've appeared before the court for? A. I don't quite understand the question, if you're saying have I done other things that were wrong? Q. Yes? A. I'm sure I have in relation to my books but -- Q. In relation to other motor vehicles? A. I've been a police witness on other occasions, I've had basically in a similar situation someone else had done something and I was just a -- Q. A witness as you are now? A. As I am now. Q. So how many times have you been a witness and how many cases have you been involved in? A. Well I was involved in one in Goulburn when I first started, I was involved in my own case where I was convicted and this one. Q. Any other cases in the future that you've anticipated with-- A. I certainly hope not. Q. You see I put this to you that in relation to the silver Fairlane that Mr Grey went down to collect that vehicle and buy it off you and there were no number plates fitted to the vehicle? A. That's right yep the number plates were at that time held by the police. Q. For the silver Fairlane? A. Mm. Q. Why was that? A. Because those number plates were on one of the vehicles that I was charged with. Q. There is when Mr Grey went down to purchase it? A. There were no number plates on the vehicle that's right." 14 Insofar as the material upon which it is desired that Reynolds be cross examined as to credit is fresh or new evidence the tests articulated in Mickelberg v The Queen 1988 167 CLR 259 are relevant. In the joint judgment of Toohey and Gaudron JJ @ 301 their Honours said: "The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see e.g. Gallagher v The Queen 1986 160 CLR 392 @ pp 395, 402, 410. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen 1974 131 CLR 510 @ pp 516-517, per Barwick CJ noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen 1979 142 CLR 659, at pp 666, 675-677. There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be 'credible', 'cogent', 'relevant', 'plausible': see e.g. Gallagher 1986 160 CLR at pp 395-396, 401-402, 408-409; Craig v The King 1933 49 CLR 429 at p 439; Ratten 1974 131 CLR at pp 519-520; Lawless 1979 142 CLR at pp 671, 676-677. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher 1986 160 CLR at p 410 per Brennan J) or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the [accused]' ( Gallagher 1986 160 CLR at p 399 per Gibbs CJ and per Mason and Deane JJ) 1986 160 CLR at p 402." 15 Given the availability of Reynolds to be cross examined at committal proceedings and the examples of the thrust of cross examination set out above; to which might be added the explicit knowledge that Reynolds had been charged, convicted and sentenced; with great respect to the contrary view, I find it hard to postulate that reasonable diligence would not have detected that Reynolds had sought and obtained some favourable consideration for his assistance to authority in his own sentencing proceedings. The precise detail of the content of the letter of comfort may have required a judicial order in order to enable access, but the circumstance that benefit for assistance was granted was not subject to any inhibition from disclosure. 16 Whether ground 2 be regarded as made out or not, it remains to consider whether the inability to utilize the relevant information because of its non disclosure has led to miscarriage. In the context of the factual evidence pointing towards the guilt of the appellant, I am unable to conclude that the addition of one additional factor to the many others addressed to the central Crown witness gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant. 17 The appeal should be dismissed. *********