R v McVittie [2005] NSWCCA 267

New South Wales Court of Criminal Appeal

CITATION: R v McVittie [2005] NSWCCA 267

HEARING DATE(S): 1 August 2005

JUDGMENT DATE: 1 August 2005

JUDGMENT OF: Simpson J at 1, 11; Johnson J at 2; Rothman J at 9

DECISION: (i) appeal allowed; (ii) each conviction quashed; (iii) judgment of acquittal in each case entered.

CATCHWORDS: petition to the Governor of New South Wales - review of convictions - referral to Court of Criminal Appeal to be dealt with as an appeal - 2000 New South Wales Police Integrity Commission inquiry - 2003 Royal Commission investigation of corrupt conduct by police in Western Australia - concession by Crown - convictions a miscarriage of justice

LEGISLATION CITED: Crimes Act 1900, s474B, s474C(1)(b)

CASES CITED: R v Rix [2005] NSWCCA 31, unreported, 18 February 2005

Crown - Respondent PARTIES: Leslie John McVittie - Appellant

FILE NUMBER(S): CCA 2004/2296

J Bennett SC - Crown COUNSEL: Ms R Burgess - Appellant

S Kavanagh - Crown SOLICITORS: Steve O'Connor (LAC) - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 88/11/0715

LOWER COURT JUDICIAL OFFICER: Gallen DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2296

SIMPSON J JOHNSON J ROTHMAN J

Monday 1 August 2005 REGINA v Leslie John McVITTIE Judgment 1 SIMPSON J: On 5 December 1998, Leslie John McVittie was convicted following a trial by jury of two counts of armed robbery. He was sentenced to two terms of imprisonment. He unsuccessfully appealed against the convictions. 2 Pursuant to s474B of the Crimes Act 1900, Mr McVittie petitioned the Governor of New South Wales for a review of the convictions pursuant to s474C(1)(b). The Attorney General of New South Wales referred the whole case to this Court to be dealt with as an appeal. The ground upon which Mr McVittie seeks intervention is there exists fresh evidence that demonstrates his convictions were a miscarriage of justice. 3 Since the Crown has very fairly conceded that Mr McVittie's convictions ought to be set aside, and the Court agrees that that concession is properly made, it is possible to be very brief. 4 Mr McVittie was arrested in Western Australia on 8 December 1987 by Western Australia police officers Garry Higgins, Nigel White and Terence Fitzgerald and was extradited to New South Wales. Evidence was given in the trial by, inter alia, two New South Wales police officers, a detective whose identity was protected in the subsequent proceedings to whom I will come, by his giving evidence under a code, F1, a code I will continue to use, and Detective Dennis O'Neil. The evidence included evidence of a confessional statement said to have been made by Mr McVittie to Western Australian and New South Wales police, and that on his arrest, Mr McVittie had been found to be in possession of a firearm. 5 In 2000 the New South Wales Police Integrity Commission conducted an inquiry into the activities of certain police officers. Evidence was given of corrupt practice on the part of F1 and Detective O'Neil. The corrupt conduct included the fabrication of evidence, the planting of guns on suspects, and assaulting the suspects. 6 At about the same time the New South Wales Crime Commission conducted a separate inquiry which concerned, inter alia, the prosecution of Mr McVittie. F1 admitted that on his arrival in Perth to extradite Mr McVittie, he had been told by Western Australia detectives that they had planted the firearm on Mr McVittie and had fabricated confessional material. 7 In 2004 in Western Australia, a Royal Commission investigated corrupt conduct by police. It conducted a review of the prosecution of Mr McVittie. Evidence of fabrication and confessional material, and of the planting of the firearm was there given. It is unnecessary to provide more detail. It is quite plain that although the tainted evidence was not the only evidence led in the trial against Mr McVittie, it contaminated the proceedings beyond repair. The convictions which resulted from the contaminated trial are a miscarriage of justice. They should be set aside. In all the circumstances it would be inappropriate to order a new trial. 8 The orders I propose are: