Reported Decision : [2000] 17 A Crim R 459 New South Wales Supreme Court CITATION : THE APPLICATION OF RAYMOND GRANT PEDRANA [2000] NSWSC 970 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70035 of 2000 HEARING DATE(S) : Friday 20 October 2000 JUDGMENT DATE : 20 October 2000 PARTIES : DIRECTOR OF PUBLIC PROSECUTIONS v. PEDRANA, Raymond Grant JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: W. Abadee (Sol) App: D. Barrow (Sol) SOLICITORS : Crown: Director of Public Prosecutions App: Legal Aid Commission CATCHWORDS : Criminal law - application for enquiry after conviction - possibility of evidence affecting credit of crucial witnesses - principles on consideration of directing enquiry. LEGISLATION CITED : Crimes Act 1900 McKinney & Judge (1990-91) 171 CLR 468 Chidiac & Asfour (1991) 171 CLR 432 CASES CITED : Vastag (CCA, unreported 20 June 1997) Johns [1999] NSWCCA 206 Hasenkamp (CCA, unreported 24 February 1998) The application of Bernard Lewis Moore [2000] NSWSC 364 DECISION : Application granted IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70035 of 2000 GREG JAMES, J. FRIDAY 20 OCTOBER 2000 THE APPLICATION OF RAYMOND GRANT PEDRANA JUDGMENT 1 HIS HONOUR: The applicant, Raymond Grant Pedrana, stood trial before the District Court at Penrith on 21 May 1990 charged that on 12 May 1988 at Bharruk, armed with an offensive weapon, namely a knife, did rob Glenda Norris and Edward Pracey of a television receiver, a cassette recorder and the sum of $100. He was found guilty of that crime and his Honour Judge Urquhart, QC. imposed a sentence of penal servitude for a minimum term of five years and an additional term of one year and eight months. 2 As a consequence of other sentences, the applicant is not eligible for parole until 8 January 2001. 3 The applicant appealed his conviction to the Court of Criminal Appeal. He now seeks a reference of his conviction to the Court of Criminal Appeal or an enquiry into it under the provisions of Part 13 A of the Crimes Act 1900. 4 At trial, in summary, it was the Crown case that the applicant and other male person, both armed with flick knives and wearing black balaclavas, entered the home of the victims where they then were with a friend. The female victim was in the shower. The male victim and his male friend were assaulted and a wallet demanded. One of the offenders, allegedly the appellant, dressed in a white padded sloppy joe, went to the bathroom and put a knife to the throat of the female victim, hit her, threatened her children and demanded money from her. She gave that person money. 5 It was alleged that the co-offender, after the appellant had left, also hit her, demanded money, made threats towards her children and sexually assaulted her by placing his fingers inside her vagina whilst holding a knife to her throat. 6 She was taken to the loungeroom and made to lie on the floor with the male victim and a friend. Money was removed from a money tin, a portable television and a video cassette recorder were taken, together with the wallet that had been obtained from the male victim and the money obtained from the female victim. 7 She gave evidence that after the robbery she had observed a tin of coins was missing, though it was observed by Abadee, J. in the Court of Criminal Appeal, to whose judgment I am indebted for this short summary, that there was some confusion in relation to the evidence concerning money tins as there was reference to two tins. But there was evidence from the female victim that she had thought both tins had been in her bedroom on the night of the robbery. She also gave evidence that after the robbery, the appellant had visited her at her home. When he had done so, he had asserted he was not the one who robbed her. 8 The female victim gave conflicting evidence on the issue of whether the appellant had or had not been to her home before the robbery, however, both versions were put to the jury. 9 The evidence tendered against the appellant included evidence of the fingerprints of the appellant asserted to have been located on one of the money tins, that is a silver coffee tin which had been used to keep coins. 10 After about a fortnight, the appellant was arrested at a motel where he had been, so it was asserted, since two or three days after the alleged robbery. At Mt. Druitt Police Station he was questioned by Detectives Fluke and Mainstone and it was alleged that he had made an oral admission and subsequently provided a handwritten statement admitting his involvement. 11 The evidence at the trial of the obtaining of the fingerprint from the coffee tin was not challenged and indeed there was an admission at trial that the print on the tin was that of the applicant. 12 Although there was evidence of the applicant having a white sloppy joe, his sloppy joe was not identified as being consistent with the one worn by the assailant, which had a distinctive pattern. Abadee, J. remarked that the Crown case was not advanced by the evidence relating to the sloppy joe. The male victim gave evidence that the appellant had been to the premises on a number of occasions including a day or two before the robbery, but had not been into the female victim's bedroom. He too had been approached after the event by the appellant who had denied the robbery. 13 The defence case was made by an unsworn statement denying involvement and asserting an alibi. The applicant claimed that on 12 May 1990 he was in Queensland with his sister and her family. He denied making the admissions and asserted he had been assaulted by the police, causing him to write the handwritten note which was tendered in evidence. He asserted that what he had said in that note was untrue and that the fingerprints on the money tin arose from his prior visits to the premises. 14 His sister and father confirmed his alibi in evidence. But there was evidence from Detective Fluke that he had been in Queensland on 9 May and 11 May, when Detective Fluke asserted the applicant had told him that he was "leaving for Sydney today to be in court tomorrow" and would drive straight through. It was put to Detective Fluke in cross-examination that the conversation was a fabrication. 15 The evidence of Detective Fluke as to the applicant's admissions notably contained reference to a statement made by the applicant evidencing knowledge that the female victim had been sexually assaulted. Detective Fluke gave evidence the applicant said he would not sign the statement because he hadn't sexually assaulted anyone. Such a reason seems peculiar as Allen, J. noted on the appeal, since the statement did not contain any assertion that anybody had been sexually assaulted. The statement was in the shortest possible form containing almost no potentially verifiable detail. It refers to the taking of the television, video and a small piggy bank. It refers to having a knife and black "bellaclava's" (sic). In essence, the applicant at his trial denied that he made an admission by writing the statement claiming he only did so at the direction of the police. 16 Detective O'Connell gave evidence of the usual kind of the adoption of the statement by the applicant and his lack of complaint about the police interview. 17 On appeal, Allen, J., having regard to the High Court's decision in Regina v. McKinney & Judge (1990-91) 171 CLR 468 was of the view that more assistance might have been given to the jury on the issue between the applicant and the police concerning the oral admissions and the unsigned statement. His Honour was of the view that the matter came close to crossing the borderline of a successful ground of appeal. His Honour was of the view that the presence of the fingerprints was not incompatible with the innocent explanation and that there was evidence which was not inherently incredible which pointed to the innocence of the accused. He said:- "This was a case in which, in my assessment, there was cause to be suspicious of the reliability of the police evidence as to what the accused said in relation to the confession and what they said to him and suspicious also of the reliability of the other remarkably convenient evidence of the police witness from Queensland as to what the accused told him about his intended trip to Sydney. The evidence tending to suggest positively that the accused is innocent was a material factor giving that cause for suspicion." 18 His Honour speculated that a question that arose was whether the finding of the fingerprints led the investigating police to jump to the conclusion they had found the offender, a known criminal, "and make them feel justified in 'stitching him up'". 19 His Honour was of the view, however, that the trial judge's instructions to the jury were adequate in accordance with the law as it then stood and that the conviction should be allowed to stand in the light of the trial judge's appreciation of the atmosphere at trial. 20 Abadee, J. with whom Clarke, JA. agreed, was of the view that as the law stood at the time of the trial, the directions as given were sufficient. The appeal was dismissed. No fresh evidence ground concerning matters which might go to the credibility of the police or any of them was advanced, although an unsafe and unsatisfactory ground was advanced but dealt with in the light of the High Court's then recent decision in Chidiac & Asfour v. The Queen (1991) 171 CLR 432. 21 In the Crown evidence against the applicant on the issue of admissions, it is to be noted that Detectives Fluke and Mainstone arrested the applicant and both gave evidence of the asserted oral admissions. Detective Michael O'Connell, as I have said, referred to the applicant's oral adoption of the unsigned handwritten statement and his alleged disclaimer of any complaints. 22 Subsequently, that detective, in 1996, was sentenced on seven counts of giving false evidence before the Independent Commission Against Corruption and two counts of conspiracy to bribe, to a minimum term of nine months imprisonment and an additional term of 15 months. It was disclosed that the former detective had been selling confidential information to private enquiry agents for money in breach of his obligation as a police officer for a considerable period of time, pre-dating the events of the applicant's arrest. He had also subsequently lied to the ICAC concerning those matters. 23 It is common ground on this application that Detectives Fluke and Mainstone had been the subject of a number of serious allegations but after investigation no adverse finding had been recorded against them. 24 The nature of those allegations, however, is quite important. In relation to Detective Fluke, it has been confirmed that he has been subject to allegations for assault, fabrication of evidence, improper association, conspiracy, dealing in drugs, accepting bribes and wrongful arrest. Detective Mainstone has been alleged to have been involved in assault, conspiracy, dealing in drugs, accepting bribes, failing to take appropriate action and failing to follow correct procedures in giving evidence. 25 No other information is forthcoming as to the timing, detail or circumstances giving rise to these allegations or the extent of the investigation. The general nature of the allegations are plainly such as might well have founded cross-examination at the trial subject to those matters to which I have referred being sufficiently established. 26 Following the Royal Commission into Police Services in New South Wales, there had been a number of matters come before the court in which fresh evidence concerning corrupt activities of police has founded a successful appeal where allegations of, in particular, oral confessions have been challenged at trial, as they were here on the evidence, and are supported only on the evidence of officers whose credit might be impugned. 27 A line of jurisprudence exemplified by the decision of the court in The Queen v. Vastag (CCA, unreported 20 June 1997) which poses a test as to the admissibility of such evidence and the course the court should take in regard to it on an appeal has grown up: see The Queen v. Johns [1999] NSWCCA 206; The Queen v. Hasenkamp (CCA, unreported 24 February 1998). 28 Under s.474D of the Crimes Act 1900, the court may direct an enquiry or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. The test for reference of a case to the Court of Criminal Appeal is not the same as that which applies on the hearing of that appeal and which is set out in Vastag (supra) and Johns (supra). Section 474E(2) provides that a referral to the court may only be made "if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case". The case law establishes the test for reference of the case or the directing of an enquiry. It is necessary merely that the new material raise "a sense of disquiet" or "unease" in allowing the conviction to stand: The application of Bernard Lewis Moore [2000] NSWSC 364. 29 If an enquiry is directed, on completion, the person conducting the enquiry must cause a report on the results of the enquiry to be sent to the Chief Justice in the case of an enquiry held on the direction of the Supreme Court. That person, under s.474H(2), may also refer the matter, together with a copy of the report, to the Court of Criminal Appeal:- "(a) for consideration of the question of whether the conviction should be quashed (in any case in which the prescribed person is of the opinion that there is a reasonable doubt as to the guilt of the convicted person)." 30 On such consideration the fresh or new evidence ascertained at such an enquiry may be considered applying the Vastag (supra) principles. An enquiry may be necessary to ascertain what substance or evidence there might be to which, on appeal, the Vastag principle might apply. 31 The submissions by the Crown Solicitor concede that if there were substance or evidence in support of the allegations, those matters might have been put to the police officers in cross-examination and that any evidence so obtained as a consequence would be likely to have substantial probative value. 32 If there is "a sense of unease or disquiet" in allowing the conviction to stand, one might expect an enquiry may be directed to see if there is evidence or substance to warrant the Court of Criminal Appeal acting. 33 It is submitted, however, that evidence of allegations which have been investigated and found not to be proved do not meet the requisite test. The Crown submissions contend the matter may only be dealt with on "the material presently available" for the purpose of ascertaining whether there is a sense of "unease" and that the material presently available does not, particularly in the light of the fingerprint evidence, have such significance as would warrant the Court of Criminal Appeal on the fresh evidence test acting on it. 34 I am, however, of the view that, having regard to the issues agitated at the trial, having regard to the issue having been submitted to the jury in the way in which it was, and having regard to the possibility that an enquiry will be able to ascertain the substance of and evidence for the allegations and what value they might be when considered on appeal, there is a doubt in the sense described in the case law to which I have referred as to the question of the applicant's guilt such that there should be an enquiry in this matter. 35 I therefore direct that an enquiry be conducted by a prescribed person into the conviction of the applicant. ******** Last Modified: 10/23/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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