R v RIX [2005] NSWCCA 31

New South Wales Court of Criminal Appeal

CITATION: R v RIX [2005] NSWCCA 31

HEARING DATE(S): 21 October 2004

JUDGMENT DATE: 18 February 2005

JUDGMENT OF: Hulme J at 1; Barr J at 28; Buddin J at 29

DECISION: The appeal is allowed;; The verdict entered and sentence imposed on 25 August 1988 are quashed;; Direct that in respect of the charge referred to in paragraph 1 above, a verdict of acquittal be entered.

CATCHWORDS: Referral under Section 474E of the Crimes Act

Regina PARTIES: Mark Edward Rix

FILE NUMBER(S): CCA 1811/04

Crown: Mr P Ingram COUNSEL: Appellant: Mr R Button

Crown: S Kavanagh SOLICITORS: Appellant: S O'Connor

LOWER COURT JURISDICTION:

LOWER COURT FILE NUMBER(S): 70050/03

LOWER COURT JUDICIAL OFFICER: Hulme J

- 9 - IN THE COURT OF CRIMINAL APPEAL No: 1811/04

HULME J BARR J BUDDIN J

Friday, 18 February 2005 Regina v Mark Edward RIX Judgment 1 HULME J: On 25 August 1988 Mark Edward Rix, (hereinafter referred to as "the Appellant") was convicted of an offence:- "That he on 20 June 1986 at Zetland, being then armed with an offensive weapon, namely a .22 rifle, did assault Barbara Anne Thrush and rob her of certain property namely $5,215 cash the property of the Australian & New Zealand Banking Corporation." 2 On the same day Judge Herron sentenced the Appellant to imprisonment for 10 years, such term to include a non-parole period of 7 years. 3 On 29 June 1989, an appeal to the Court of Criminal Appeal was dismissed. Earlier this year or late last year the Appellant sought referral of his conviction to the Court of Criminal Appeal pursuant to s474E of the Crimes Act. The matter came before me and I concluded that the circumstances to which my attention had been drawn raised a doubt or question as to part of the evidence in the case and I should refer the whole of the case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act, 1912. The matter was listed on 21 October 2004 to be so dealt with. 4 Putting aside evidence of the robbery itself, an event which was not the subject of dispute, the evidence against the Appellant at his trial may be categorised as follows:- (i) Descriptions of the offender by eye-witnesses. (ii) Evidence that, after the robbery, the offender was seen to enter a street some distance away and apparently disappear and that soon afterwards a white utility emerged from that street. (iii) Evidence that the Appellant was the owner of, or at least possessed, a white utility. (iv) Evidence of police officers of finding in the Appellant's possession 2 pairs of joggers and one pair of sunglasses, which items were said to be similar to those worn by the offender. (v) Photographs of the offender taken by bank security cameras during the course of the robbery. (vi) Photographs of the Appellant taken shortly after his arrest. (vii) Evidence by a police officer that the photographs were of the Appellant. (viii) Evidence of 2 police officers that, during and after being interviewed, the Appellant had confessed to them of being the offender. (ix) Evidence of another police officer that the Appellant, during the course of adoption of a record of the earlier interview, had admitted to his involvement. 5 Over a period of about 3 days during the trial, the jury also had available to them the opportunity of seeing the Appellant in Court and comparing him with the photographs of the offender. 6 While much of the evidence referred to in paragraph (i) was consistent with the Appellant's appearance, it also fitted numerous other persons. None of it purported to identify the Appellant. Having regard to the number of white utilities in the community, the evidence referred to in paragraphs (ii) and (iii) was also of limited use to the Crown. A similar comment may be made in relation to the joggers referred to in paragraph (iv). The joggers had been found during a police search of the Appellant's premises. Detective Peattie said that they looked the same as those apparent in one or more photographs of the offender and bearing the white leather Dunlop insignia. The search did not reveal anything which matched other clothing, at least one item of which was distinctive, worn by the offender. 7 The evidence of the finding of the sunglasses was given by Detective Mark Messenger. He said that he had found them behind the bench seat on the passenger side of the Appellant's vehicle and then handed them to Detective Peattie. A Detective Robert Moran corroborated the evidence of the search of the vehicle and said that at the time Detective Messenger had showed him the glasses. 8 Detective Senior Constable Peattie said that after he had received the sunglasses from Detective Messenger he showed them to the Appellant who identified them as his. According to Detective Peattie, the Appellant confirmed this in the interview later. 9 The photographs taken of the Appellant shortly after his arrest included photographs of his hands. The jury were able to make a comparison between the bank photographs of the offender on the one hand (including at least one striking photograph of his left hand) and, on the other the photographs of the Appellant's hands and his actual appearance in Court. Clearly if the similarities are sufficient these matters alone were sufficient to justify his conviction and to make any reference of the matter to the Court of Criminal Appeal pointless. 10 The evidence that the Appellant had made confessions, referred to in paragraph (viii) above, which implicated him in the robbery was given principally by Detectives Peattie and Nimmo. Detective Peattie's evidence was to the effect that the Appellant had denied involvement in the robbery when spoken to at his residence and in a police car while being taken to the police station. At the police station the Accused was shown 6 of the photos taken by the bank security cameras and responded by saying that "It could be anyone". Detective Peattie said that he then asked the Appellant to look at the photograph numbered 3 again, remarking "Have a go at the fingers on the left hand; same joints; same as your hand". The Appellant looked again at the photo, looked at his own hand and "in a low muttered voice, he said, 'Alright, alright that's me". 11 Detective Peattie said that the Appellant then participated in an interview during which questions and answers were recorded by Detective Nimmo on a typewriter, the Appellant read what was recorded but said that he was "not signing anything". The Appellant also refused to sign an account of the conversation which had been recorded in Detective Peattie's note-book. Detective Peattie then read to the jury the questions and answers as recorded. Included in them were unequivocal admissions of having committed the robbery. 12 Detective Nimmo gave evidence to similar effect of that given by Detective Peattie. Both also said that after the interview and the Appellant's expressed intention not to sign the document on which questions and answers were recorded, they left the room while Detective Senior Sergeant O'Hagan spoke to the Appellant. Detective O'Hagan said that after being introduced to the Appellant, he asked the Appellant a series of questions and the latter replied. The questions and answers may be summarised as providing an adoption of the record of the interview by the Appellant. One of the question and answer exchanges was said to be:- "Q. Do you wish to tell me why you did not sign this document? A. I have been told that if you don't sign police papers you can keep your options open." 13 At his trial the Appellant made an unsworn statement. He denied participation in the robbery and denied the admissions attributed to him. He denied also ever having previously seen the sunglasses. 14 All the police officers mentioned were, at the time, part of the same Armed Hold-up Section of the Regional Crime Squad at Chatswood. Subsequent to the Appellant's conviction and previous appeal, Detective Peattie, in evidence given to the Police Integrity Commission, has acknowledged that during a period which extended from 1984 to 1991 he engaged in the practice of "verballing", including the preparation of what purported to be records of question and answer interviews with suspects. Detective Peattie also admitted to preparing false statements and sometimes giving evidence to the effect of the "verbals" and false statements. He acknowledged stealing money which he came across in the course of his police duties. 15 Detective Nimmo has acknowledged to the Police Integrity Commission that on 3 different occasions he was with the Armed Hold-Up Unit, CIB". On 8 February 2002, he gave the following evidence before the Commission:- "Q. You made mention that, is it fair for me to say that throughout those three different periods, you were involved in a number of incidences concerning corruption, misconduct and/or criminal activity? A. I was involved in, as we've spoken about before, fabricating evidence, fabricating verbal admissions, fabricating records of interview, the planting of evidence and the stealing of monies that were proceeds of robberies." 16 On 18 February in an interview with officers of the New South Wales Crime Commission there were questions, and answers by Detective Nimmo as follows (I omit passages not presently relevant):- "A There's a fellow here… called Ricks. I think it was Stephen Ricks. I think we verballed him. I can't remember. A I haven't seen the matter in this book but it rings a bell that we actually verballed him.