R v Johnson and Olivieri [2002] NSWCCA 348

New South Wales Court of Criminal Appeal

CITATION : R v Johnson and Olivieri [2002] NSWCCA 348 FILE NUMBER(S) : CCA 60693/01; 60694/01 HEARING DATE(S) : 28 June 2002 JUDGMENT DATE : 28 June 2002

R (NSW) PARTIES : Raymond Richard Johnson (Appellant) Tony Olivieri (Appellant) JUDGMENT OF : Giles JA at 42; Dunford J at 1; Adams J at 43

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0577 & 01/11/0283 LOWER COURT JUDICIAL Davidson DCJ OFFICER :

DML Woodburne (Crown) COUNSEL : P Byrne SC (Johnson) P Hamill (Olivieri) SOLICITORS : SE O'Connor (Crown) Ford, Gaitanis Lawyers (Johnson & Olivieri) CATCHWORDS : CRIMINAL LAW - conspiracy - to prevent, obstruct or dissuade witnesses from attending trial - circumstantial evidence - evidence of agreement - other possible illegal acitivity - object of conspiracy not established - verdicts of guilty unreasonable. LEGISLATION CITED : Crimes Act 1900, s 325(1A) CASES CITED: M v The Queen (1994) 181 CLR 487 DECISION : Appeals upheld, convictions quashed and judgments and verdicts of acquittal entered.

IN THE COURT OF CRIMINAL APPEAL 60693/01 60694/01

GILES JA DUNFORD J ADAMS J

Friday, 28 JUNE 2002 R v Raymond Richard JOHNSON R v Tony OLIVIERI Judgment 1 Dunford J: The appellants, Raymond Richard Johnson and Tony Olivieri, have appealed against their convictions for conspiracy to prevent, obstruct or dissuade witnesses from attending a judicial proceeding contrary to s 325(1A) Crimes Act 1900, following their trial before his Honour Acting Judge Davidson QC in the District Court at Sydney. Following their convictions, each appellant was sentenced to imprisonment for concurrent terms of 2 years with non-parole periods of 18 months. 2 The substance of the charges was that the appellants agreed that one of the appellants, Tony Olivieri, or both of them, would go to Toowoomba in Queensland and there prevent, obstruct or dissuade Barry O'Donnell and Vicky Robertson from attending the trial of the appellant, Raymond Richard Johnson, in the District Court at Sydney. The overt acts relied on to prove the conspiracy were the presence and activities of the appellant Olivieri and, possibly another man, in Toowoomba, on the evening of Sunday 8 February and the morning of Monday 9 February 1998. The evidence in the Crown case may be summarised as follows. 3 In February 1998, Vicky Robertson and Barry O'Donnell had been living at 50 Joyce Street, Toowoomba, Queensland for almost 4 years. Previously they lived in Sydney where they had known the appellants Olivieri and Johnson. They had socialised with Olivieri on one or two occasions but had had more frequent contact with Johnson. O'Donnell often trained at the gym with Johnson. 4 In 1995 O'Donnell and Robertson had a falling out with the appellant Johnson, and as a result Robertson and O'Donnell provided statements to the police as complainants in respect of an alleged serious criminal offence. Johnson's trial in respect of such serious criminal offence was pending as at 9 February 1988 and was scheduled to commence on 30 November 1998 in the District Court at Sydney. Robertson and O'Donnell as complainants were required to appear as witnesses for the Crown at such trial. 5 On 3 February 1998 a Toyota Camry with number plates 138-EAT was rented from Network Rentals in Seven Hills, Sydney by a person using the name Peter Watts. Peter Watts was not able to be otherwise identified and the assistant manager of Network Rentals who arranged the rental of the vehicle to the person using that name was unable to identify him in a video array containing photographs of a number of men including the two appellants. 6 At about 11 or 11.30pm on Sunday 8 February 1998, David Parry and his wife Kayelene who lived at 9 Sheehan Street, Toowoomba observed a white vehicle parked in Searle Street nearby. They later heard the sound of three car doors slamming, and about 5 to 10 minutes later, Mr Parry observed that the white vehicle had moved from Searle Street to Sheehan Street, being parked on the same side of the road as his house and pointing towards Short Street. Armed with a torch, Mr Parry went and had a look at the vehicle and saw that there was no-one in it. He suspected that the vehicle might have been involved in the buying or selling of drugs, and as a result he telephoned the police. 7 At about 12.51am the following morning (Monday, 9 February) police received a call to attend Sheehan Street. Upon their arrival they observed a white Toyota Camry bearing registration plates 244-PZE parked at the western side of Sheehan Street facing east, approximately 24 metres from Searle Street. A registration check of the vehicle showed that the number plates on it were stolen and had been stolen between 17 May and 4 June the previous year. 8 Using a torch Constable Greenwood looked into the vehicle and observed a number of objects. The boot was locked. Other police arrived and took up surveillance positions. 9 At approximately 4.10am, Constable Cox saw a male person, later identified as the appellant Olivieri, walk from the Short Street end of Sheehan Street towards the white Camry. He was wearing black tracksuit pants, a tan chequered flannelette-type jacket, dark sneakers and was clutching a black backpack to his chest. He entered the driver's side of the white Camry. Constable Cox ran from his position towards the Camry, flashed his torch at the appellant Olivieri inside the vehicle and shouted for him to get out. Olivieri started the vehicle, whereupon Constable Cox used his torch to smash the driver's window, he reached into the car and removed the keys from the ignition. Olivieri was removed from the car whereupon Constable Lear, who was also present noticed, that Olivieri's sneakers and lower portions of his tracksuit pants were partially covered in red mud. He also appeared to be wet, although it had not rained since before 3am. 10 Constable Greenwood looked into the vehicle and saw a black backpack with a torch in it and a balaclava and a pair of gloves. Constable Cox unlocked the boot with the keys and saw a wallet sitting on top of a black sports bag. The wallet was located in the rear quarter of the vehicle on the driver's side. The bag appeared to be closed. On opening the wallet, Constable Cox observed that it contained a large bundle of hundred dollar notes and a credit card in the name of RR Johnson. 11 Olivieri was conveyed to Toowoomba Police Station where he declined to be interviewed. Subsequently, the white Camry vehicle was taken to Toowoomba Police Station where it was searched, largely in the presence of Olivieri, and the following items were recovered from the vehicle: 1. a black wallet containing $1,590 in cash containing the identification of the appellant Johnson; 2. a blue Nikko back pack; 3. 20 plastic cable ties (in the back pack); 4. a pair of scissors (in the back pack); 5. silver tape (also described as duct or Gaffa tape – in the back pack) 6. a pair of pink rubber gloves (in the back pack); 7. a pair of black gloves; 8. a black balaclava; 9. 3 torches (2 of which were in the back pack and one in the front of the car); 10. 2 Tasco binocular cases; 11. $6,000 in cash in a pillowcase in the back seat of the vehicle; 12. a TEAC AM/FM cassette Walkman; 13. 2 Digitor handheld receivers (walkie-talkies); 14. 3 earpieces with 2 adaptors and a transmitter; 15. a listening device in silver tape; 16. 1 black case containing another listening device, 2 antennae, 2 receivers and an earpiece; 17. a box of Normison (later identified as belonging to the appellant Johnson) and a box of Mersyndol tablets. 12 A latent fingerprint on the face of the Eveready 9 volt snap-on battery from one of the walkie-talkies was later developed and identified as being from the right thumb of the appellant Johnson. 13 On 11 March 1999, the two Digitor receivers (walkie-talkies) were tested and were found to operate satisfactorily at a range of approximately 50 metres, whilst on 25 March, police went to 50 Joyce Street (the home of Vicky Robertson and Barry O'Donnell) and conducted testing on the two listening devices. The wall bug kit was adhered to the outside of a window and it was found to be operating and able to be received by the FM receiver within a proximity of 20 metres but the quality and stability of the reception was not very good. They then tested the boxed set by placing the transmitter on a cabinet in the lounge room of 50 Joyce Street and clear reception from the lounge room and adjacent rooms was detectable over a distance of 150 metres. 14 Evidence was given by Sergeant Lojek that when he received all the listening device objects they were all in working order, although the batteries had to be replaced, but there was no evidence that any of the listening devices were ever used in or around 50 Joyce Street. 15 Whilst the search of the Camry car was being conducted in the presence of the appellant Olivieri, his comments were recorded using a micro cassette recorder. In relation to the $1,590 found in the wallet, he stated that the money was his and that he received it as proceeds from selling copper which had been stolen in Esk, but inquiries by police established that there had been no report of any copper being stolen in Esk. 16 In relation to the false number plates on the white Camry, the appellant Olivieri stated that he did not know where they came from. He said that he borrowed the car from someone for a cost of $800 up front, and was required to pay the sum of $1,000 upon the cars return. 17 In relation to the $6,000 found in a pillowcase in the vehicle, he stated that he did not know anything about the money, but said that it could have been left in the vehicle by one of the two hitchhikers which he had picked up. 18 He was shown the backpack which was found in the vehicle and a number of other items and stated that he used the plastic ties and the pink rubber gloves in his scaffolding business, that he had not been wearing the black leather gloves on the night of his apprehension, that he used the three torches to see in the dark, and that he used the scissors to cut mesh or his toenails whilst at work. He denied knowledge of the black balaclava and stated that he had never worn it. 19 Meanwhile, between 2.30 and 3am other witnesses, Nathan Chaloner and Anthony Hughes, who were walking towards the Robertson/O'Donnell home at 50 Joyce Street for the purposes of getting a lift to their employment, saw a male person standing on the corner of Joyce and Diagonal Street facing towards 50 Joyce Street, but when he heard them he ran away. He was described as 170 to 175 cm tall with a slim to medium build wearing black shoes, long trousers, long black sleeved top and a black beanie, possibly a balaclava, which was worn pulled up at the front and back covering his head and ears, and he appeared to have something on his back like a back pack. 20 Shortly afterwards, Vicky Robertson saw a person dressed in dark clothing standing on the property of the house across the road from her own, but she only saw him for a couple of seconds. About 20 minutes after Olivieri was taken to Toowoomba Police Station, Constable Greenwood saw a male person walking along Searle Street at a quick pace but he lost sight of him and was unable to locate him. He described the person as a Caucasian male aged between 35 and 45, about 175 cm tall with a medium to solid build with short hair wearing dark coloured slacks and a dark coloured top. 21 On 9 February police examined the house at 50 Joyce Street, the surrounding streets and the railway line cutting area, noticing in particular an area of flattened grass near the railway line on its northern side near the chain mesh fence from Diagonal Street. It was located about 50 metres to the east of 50 Joyce Street, and there was also a larger area of flattened grass measuring 15 metres by 5 metres directly behind the residence. 22 Sergeant Keck also noted three individual shoe impressions in the red soil and made yellow stone casts of these impressions. Later examination concluded that the partial shoe sole impressions on the three casts showed similar class characteristics to the left out-sole of the black sneakers worn by Olivieri at the time he was arrested, that is, they showed similar, but not identical patterns to the impressions on the casts. 23 The appellant Olivieri did not give evidence and called no evidence in his case. 24 The appellant Johnson gave evidence denying any involvement in the case against him, and gave and led alibi evidence as to his movements on Saturday 6 to Monday 9 February 1998, to the effect that he was in Sydney that whole time. He also gave evidence of meeting Olivieri at the Squashlands Gymnasium in Sydney on Thursday 5 February which it was claimed could provide an explanation for some of his possessions such as his wallet and the Normison tablets being in the car driven by Olivieri. 25 He said he had never been to Toowoomba and did not know the whereabouts of Vicky Robertson or Barry O'Donnell in 1998 having last seen them in 1995. He did not find out that Olivieri had been in Toowoomba until the latter called him on 11 or 12 February and told him that he had been arrested there over the weekend and that the police had taken possession of his (Johnson's) wallet. 26 The Amended Grounds of Appeal relied on by the appellant Olivieri are as follows: 1. The trial Judge erred in failing to direct a verdict of not guilty to be returned in respect of the appellant. 2. The verdict is unreasonable, cannot be supported having regard to the evidence and/or otherwise represents a miscarriage of justice. 3. The trial Judge erred in admitting into evidence a taped conversation between the appellant and the police. 4. The trial Judge erred and the trial miscarried in that the Crown was permitted to put its case on an alternative factual basis when the trial, on behalf of both accused, had been run on a particular basis, namely that it was the Crown case that the two accused were together in Toowoomba, Queensland at the relevant time, that is 8-9 March 1998. 5. The trial Judge erred in his direction to the Jury in relation to circumstantial evidence. 6. The trial Judge erred in his directions to the Jury in relation to the "co-conspirators'" rule. 27 The Grounds of Appeal filed on behalf of the appellant Johnson are as follows: 1. The trial Judge erred in not granting the appellant a separate trial. 2. The trial Judge erred in his directions to the Jury in relation to circumstantial evidence. 3. The trial Judge erred in his summing up to the Jury. 4. The learned trial Judge erred in failing to direct verdicts of acquittal at the conclusion of the evidence for the Crown. 5. The change in the Crown case. 6. That having regard to the evidence in the case as a whole the verdict of the Jury is unreasonable in that it should have had a reasonable doubt as to the appellant's guilt of the two counts alleged against him. 28 However, at the hearing of the Appeal Mr. Byrne SC, on behalf of the appellant Johnson, indicated that he relied on grounds similar to those numbered 1 to 2 in the Amended Grounds of Appeal relied on by the appellant Olivieri, and it is convenient to deal firstly with those grounds. 29 The Crown case was that the appellants conspired with each other to commit an offence contrary to s 325(1A) of the Crimes Act 1900, which provides as follows: "A person who without lawful excuse wilfully prevents, obstructs or dissuades another person who the person believes may be called as a witness in any judicial proceeding from attending the proceeding is liable to imprisonment for 5 years." 30 It was therefore necessary not only to prove the agreement or conspiracy and that both appellants were parties to such conspiracy, but also to prove that the agreement was to prevent a breach of that subsection, that is, to "prevent, obstruct or dissuade" each of the complainants in the case against the appellant Johnson from attending his trial. 31 Although complaint has been made about his Honour's directions in relation to circumstantial evidence and the co-conspirators' rule, I am prepared to accept for present purposes that there was sufficient circumstantial evidence from which it could be inferred beyond reasonable doubt that there was an agreement between the two appellants which could amount to a conspiracy to do something unlawful. This is based on the established friendship between them and the presence in the motor vehicle which the appellant Olivieri was driving of a number of items belonging to the appellant Johnson, including his wallet, credit card, address book, motor driver's license and $1,590 which the appellant Johnson claimed belonged to him. There were also two walkie-talkies in the vehicle, which the appellant Johnson claimed were his, and which suggested that two or more people were intending to communicate with each other, and also two sets of binocular cases (although no binoculars). 32 These matters all indicated the presence of both appellants together in Toowoomba pursuant to some form of agreement, and having regard to the nature of the items in the motor vehicle, e.g. the crow bar, the walkie-talkies, listening devices, gloves and balaclava (in Toowoomba in February) that they were there for some unlawful purpose. 33 Although the Crown's primary case was that Johnson was present in Toowoomba with Olivieri, its case was also put in the alternative that the conspiracy having been entered into in Sydney between the two appellants, only Olivieri went to Toowoomba to carry out its purpose, and in this way the Crown sought to avoid the effect of Johnson's alibi evidence. The alternative case was objected to at the trial and his Honour permitting the Crown to run such alternative case is also the subject of grounds in this appeal. 34 Putting that aside for the moment, it was in my opinion open to the Jury to either reject the alibi evidence and find both appellants were present in Toowoomba over the weekend of 8/9 February 1998, or to have a doubt on that point but nevertheless still be satisfied beyond reasonable doubt that there was a conspiracy between the appellants (even if Johnson remained in Sydney) to effect an unlawful purpose in Toowoomba. 35 However, having said all that, one looks to see what evidence there was as to the object of the conspiracy. Mr O'Donnell and Mrs Robertson were the complainants in the pending Court case against Johnson, and as complainants it would be expected that they would be called to give evidence in that trial. Olivieri was not involved in that trial but the Jury could easily and legitimately infer that he could have been told about it by Johnson. 36 But given all these circumstances, one looks for evidence, direct or circumstantial, as to what it was the appellant Olivieri or both appellants were intending to do to Mr O'Donnell and Mrs Robertson pursuant to the agreement between them. 37 Division 3 of Part 9 (ss 320-326) of the Crimes Act contains a number of offences relating to interference with judicial officers, witnesses, jurors, etc including corruption of witnesses (s 321), threatening or intimidating witnesses (s 322), acting with intent to influence a witness to give false evidence (s 323), as well as s 325. In the present case it was necessary for the Crown to prove that the agreement or conspiracy between the appellants was to "prevent, obstruct or dissuade" the persons named from attending the trial. 38 In my view there was no evidence from which the Jury acting reasonably could be satisfied beyond reasonable doubt that this is what Olivieri (and possibly Johnson) were there for. The presence of the crowbar, torches and balaclava was consistent with an intention to burgle or rob, the listening devices could have been used in a number of ways, e.g. eavesdropping, seeking material to discredit the complainants as witnesses at the trial, and the $6,000 cash is consistent with an intention to bribe them, or consistent with an intention to purchase drugs. Another possibility is that it was intended by force, or persuasion, to induce the complainants to change the evidence which they intended to give at Johnson's trial, either by withdrawing their original statements or otherwise. If that was the object of the conspiracy, it was a conspiracy to commit an offence under s 322 or 323, or if it involved the payment of money or other benefit, an offence under s 321, but not an offence under s 325(1A). 39 Alternatively the objective may have been to bug the premises in an effort to obtain material for cross-examination, which could be used in an attempt to discredit the complainants as witnesses at the trial. 40 Whilst in the circumstances of the case, particularly the co-incidence that Olivieri (alone or with Johnson) was outside 50 Joyce Street, Toowoomba where the complainants lived, I believe it was open to the Jury to be satisfied that his or their presence (and therefore the conspiracy) was related to the appellant Johnson's pending trial and the complainants' position as witnesses, I do not see how it was open to the Jury to be satisfied beyond reasonable doubt that the intention was to prevent, obstruct or persuade them not to attend contrary to s 325(1A), as opposed to one of the other activities prohibited by the sections I have referred to. 41 It follows that it does not matter whether his Honour should have directed verdicts of acquittal at the end of the Crown case, because on the whole of the evidence the verdicts of the Jury are unreasonable and cannot be supported: M v The Queen (1994) 181 CLR 487. I therefore propose that in respect of each appellant, the appeal be upheld, the convictions quashed and judgments and verdicts of acquittal entered. 42 Giles JA: I agree. 43 Adams J: I also agree. **********