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. Q Where were you attached to at the time? A Major, the Regional Crime Squad North. Q Do you recall what he was charged with? A It was armed robberies. Q And what was the armed robbery related to? A No, I can't remember. I know he lived out in the southern suburbs but… not Maroubra… Eastgardens, that sort of …, that sort of way." 17 Transcripts of evidence given by Detective Nimmo on 30 April 2002 contain admissions of giving untruthful answers and lying to the Commission on prior occasions. 18 On 19 July 2002 Detective Messenger pleaded guilty to charges of being an agent and receiving a corrupt reward on 4 occasions between June and October 2000 and to a charge of giving false and misleading evidence to the Commission on 18 May 2001. There is no evidence before me to Detective Messenger having committed offences or been dishonest prior to June 2000 although the circumstances of the offence of June 2000 would make it surprising if he had not. 19 Detective Sergeant O'Hagan was mentioned during the course of the Royal Commission into the NSW Police Service by a number of witnesses and he seems to have been suspended at one stage. Although the information concerning him raises questions, there is no evidence of him being dishonest or of having participated in criminality or other relevant impropriety. The Appellant's solicitor has been informed by the Police Integrity Commission that that organisation has some information concerning Detective Moran that it is not prepared to release. There is thus no evidence of him having been dishonest or of having participated in criminality or other relevant impropriety. 20 However, despite the matters referred to in the 2 immediately preceding paragraphs and the evidence of Sergeant O'Hagan as to the Appellant's adoption of the interview, there can be no doubt that had it been before the jury, the fresh evidence would have greatly weakened the Crown case. Indeed, although theoretically the jury was entitled to believe Sergeant O'Hagan even if they placed no weight on the evidence of Detectives Peattie and Nimmo, realistically the jury could not possibly have had a positive belief that the admissions were genuine. In this Court, both counsel accepted that the Court should approach the appeal by looking at the practicalities. 21 The evidence referred to in paragraph (vii), that he recognised the Appellant as the person depicted in the bank photographs of the robbery in progress, was given by Detective Peattie and is of the same nature as that which was ruled by the High Court, some time after the trial and the determination of the Appellant's appeal, to be inadmissible – see Smith v R [2001] 206 CLR 650. Before this Court the Crown submitted that, applying the law as it was understood at the time of the Appellant's trial the evidence was admissible and in any event the trial had been conducted in a way which left open the inference that Detective Peattie was well acquainted with the Appellant and did not disclose that the Detective was "in no better position to make a comparison between the Appellant and the person in the photographs than the jurors or, for that matter, some member of the public who had been sitting in court observing the proceedings …" – Smith v R at [9]. 22 However, I do not need to embark on this question. Given, as this evidence of identification was by Detective Peattie, it would suffer the same problems of credibility as the evidence of confession. 23 However, as has been pointed out, there remained available to the jury the bank photographs of the offender and the photographs of the Appellant and his actual appearance in Court. As to these matters I would make the following remarks. 24 While as a group the photographs of the robber are clearer than many taken by security cameras, most cannot be described as very clear. In most the robber's face is at an angle to the camera. He was wearing a cap, or cap and beanie, well pulled down, a somewhat bulky coat and large sunglasses. Much of his face was obscured. 25 During the hearing of the appeal the Court was taken to these photographs at some length. The Court was invited to compare these with photographs of the Appellant taken at the time of his arrest and on other occasions and, he being present during the hearing of the appeal, with his appearance in court (recognising that it is now 18 years since the offence). Subsequent to the hearing I have again studied and compared all of the photographs. These studies lead me to the conclusion that it is not possible to say from a comparison of them or between the photographs of the robber and the Appellant that he was the offender. 26 Thus once, for the reasons I have given, one rejects the evidence of Detectives Peattie and Nimmo as providing credible evidence of the Appellant's guilt, there remains no evidence upon which a jury could reasonably be satisfied beyond reasonable doubt of the Appellant's guilt. He is entitled to a verdict of acquittal. 27 Accordingly, I propose the following orders:- 1. The appeal is allowed. 2. The verdict entered and sentence imposed on 25 August 1988 are quashed. 3. Direct that in respect of the charge referred to in paragraph 1 above, a verdict of acquittal be entered. 28 BARR J: The parties approached the appeal upon a joint understanding that the evidence of confessions would be put aside. Apart from the photographs of the robber there was no evidence capable of proving beyond reasonable doubt that the Appellant was the robber. It was agreed that the appeal should succeed or not on that evidence alone. I agree with Hulme J that the photographs are not capable of proving beyond reasonable doubt that the Appellant was the robber. I agree with the orders proposed by his Honour. 29 BUDDIN J: I agree with Hulme J. I also agree wit the additional observations of Barr J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.