Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Perish v R; Perish v R; Lawton v R [2014] NSWCCA 233 Hearing dates: 21/10/2014 Decision date: 27 October 2014 Before: Hoeben CJ at CL at [1] Justice R A Hulme J at [1] Justice Adamson at [1] Decision: (1) Hearing date of 31 October 2014 be vacated. (2) Matters to be placed in the Registrar's list for 6 November 2014 so that a timetable can be fixed and a hearing date allocated. Catchwords: PRACTICE AND PROCEDURE - Notice of Motion by Crown to vacate hearing date - fresh evidence ground raised by appellants - need for Crown to make further inquires - effect of delay - hearing date vacated. Cases Cited: R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 Category: Procedural and other rulings Parties: Anthony John Michael Perish - Appellant Andrew Michael Perish - Appellant Matthew Robert Lawton - Appellant Regina - Respondent Crown Representation: Counsel: Mr H Dhanji SC - Appellant Anthony John Michael Perish Mr B Archbold (Solicitor) - Appellant Andrew Michael Perish Mr P Lange - Matthew Robert Lawton - Appellant Ms S Dowling SC/Mr F Veltro - Respondent Crown Solicitors: SE O'Connor, Legal Aid NSW - Appellant Anthony John Michael Perish Mr B Archbold - Appellant Andrew Michael Perish Matouk Joyner Lawyers - Appellant Matthew Lawton J Pheils, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2009/148002; 2009/150111; 2009/145260 Judgment 1THE COURT: Nature of application By Notice of Motion dated 16 October 2014 the Crown sought the following orders in respect of the above appeals: (1)That the hearing date of 31 October 2014 be vacated. (2)That the matters be returned to the Registrar's list to set a new hearing date and fix timetables for the filing of submissions and evidence. 2The legal representatives of Anthony Perish and Andrew Perish did not oppose the application. Matthew Lawton, who was represented by Mr Lange of counsel did. 3The motion came before the Court for hearing on 21 October 2014. The Court made the orders sought by the Crown with reasons to follow. These are the reasons. Factual background 4The following would appear to be uncontroversial. 5On 14 September 2011, after a 36 day trial before Price J and a jury, the appellants, Anthony Perish and Matthew Lawton, were convicted of the murder of Terrence Falconer and conspiracy to murder Terrence Falconer. The appellant, Andrew Perish, was convicted of conspiracy to murder Terrence Falconer. 6On 13 April 2012 the appellants were sentenced by Price J as follows: Anthony Perish - Imprisonment for 24 years with a non-parole period of 18 years. Andrew Perish - Imprisonment for 12 years with a non-parole period of 9 years. Matthew Lawton - Imprisonment for 20 years with a non-parole period of 15 years. 7On 17 April 2014 Anthony Perish filed a notice of intention to appeal. Ground 2 of that notice asserted that a miscarriage of justice occurred by reason of the absence at trial of evidence that had since become available. 8The asserted fresh evidence was a statement from a Crown witness, [E]. Between the committal and the trial [E] was diagnosed with colon cancer. Following the trial, [E's] cancer became terminal and he died on 18 March 2014. 9On 27 January 2014 [E] swore a statement (the January 2014 statement) in which he claimed that, contrary to a recorded interview with police, and his evidence at committal and on sentence, the appellants were not involved in the murder of Terrence Falconer (the "fresh evidence" ground). 10On 28 August 2014 Anthony Perish filed amended grounds of appeal adding a ground which asserted that a miscarriage of justice was occasioned as a result of the prosecution's failure to disclose information relevant to the eligibility and intention of a prosecution witness or witnesses to claim reward moneys from the State (the "non-disclosure" ground). 11On 16 December 2013 Matthew Lawton filed a notice of appeal. On 2 October 2014 he filed an amended notice of appeal adding grounds in substantially the same terms as Anthony Perish's fresh evidence ground and "non-disclosure" ground. 12On 18 June 2014 Andrew Perish filed a notice of appeal. That notice does not presently raise any grounds relating to the fresh evidence or the asserted non-disclosure. Crown submissions 13The basis for the Crown's application to vacate the hearing date was that more inquiries needed to be made by it relating to both the "non-disclosure" ground and the "fresh evidence" ground and that these inquiries could not be carried out before the date fixed for the hearing of the appeals, i.e. 31 October 2014. The non-disclosure ground 14On 1 July 2014, on the application of Anthony Perish, an order to produce was directed to the NSW Police Department for the production of documents relating to the payment of rewards in relation to the murder of Terrence Falconer. 15On 22 August 2014 the NSW Commissioner for Police filed a notice of motion seeking to have the order to produce set aside on the basis that the order lacked a legitimate forensic purpose and that any such material was subject to public immunity privilege. 16On 28 August 2014 Anthony Perish filed submissions in response to the notice of motion to set aside the order to produce. The notice of motion has not yet been listed for hearing. 17On 10 October 2014 submissions were filed in the appeal by Anthony Perish in relation to the non-disclosure ground. In those submissions, it was noted that further submissions might need to be filed if additional information was produced pursuant to the order to produce. Submissions in support of the non-disclosure ground (relying on the submissions made by Anthony Perish on the notice of motion) have been filed in the appeal by Matthew Lawton. 18The Crown submitted that the non-disclosure ground raised important factual issues of significance to the resolution of the appeal. Until the outstanding question of production is resolved, the Crown submitted that it was not in a position to adequately respond to the non-disclosure ground. The fresh evidence ground 19The Crown submitted that [E] was an integral part of the conspiracy to murder and the killing of Terrence Falconer and a very important Crown witness. Following his arrest in January 2009, [E] provided a recorded interview to police in which he made full admissions to having abducted Falconer for the purpose of delivering him to Anthony Perish for interrogation. 20[E] told police that, acting on Anthony Perish's instructions and for reward, he and two associates abducted Falconer from his place of work at Ingleburn and drugged him with chloroform, or a similar substance. [E] said that Anthony Perish provided a NSW Police uniform shirt and the chemical. [E] and his two associates put Falconer into a large galvanised metal box and drove him to Perish's home at Turramurra. [E] told police that when they arrived at Turramurra, the box was opened and Falconer was alive. [E] said that Anthony Perish saw Falconer in the box and that he had slammed Falconer's head down into the box, which he then closed again. 21[E] told police that Anthony Perish directed him and Matthew Lawton to transport Falconer to a property at Girvan in the Hunter Valley. The journey took a number of hours. When they arrived at Girvan, Anthony Perish was not there but arrived some time later and the box was opened. When they opened the box, Falconer was dead. 22[E] told police that Anthony Perish provided him and Lawton with a light fabric coverall, similar to those worn for fibreglassing. He instructed [E] and Lawton to assist him in dismembering Falconer's body. After the body was dismembered, the three men wrapped the body parts in plastic which they loaded into a ute which was later removed by Anthony Perish. Anthony Perish and Lawton washed the premises down with chemicals. E's evidence was corroborated by numerous items of independent evidence. 23[E] pleaded guilty in the Local Court to multiple serious offences, including detaining Terrence Falconer for advantage and accessory after the fact to his murder by Anthony Perish and Matthew Lawton. On 25 May 2010 [E] was sentenced to a total head sentence of 20 years with a total non-parole period of 15 years. He received a combined discount of 50 percent for assistance and his plea of guilty. 24In oral evidence in the sentence proceedings, both in chief and in cross-examination, [E] adhered completely to the evidence which he gave in his recorded interview. He confirmed in evidence that he had reviewed his recorded interview with police and that it was true. 25In those proceedings, [E] confirmed that his wife and children had been relocated as a result of the perceived risk to them flowing from the assistance he had given to police. Asked why he did not try to escape during the drive to Girvan with Matthew Lawton on the day of Falconer's death, he said: "I think the Crown needs to appreciate it's not just about my safety, it's about the safety of my family and how many criminal associates they had at the time. Andrew Perish wasn't in gaol, he was in the Rebels. They had their network of criminals who purchased drugs from them. They were powerful, they weren't what they are now. How long it was going to be before I had a fatality - just say if I did get away how long was it going to be before my girlfriend or before one of my family was murdered or worse abducted and tortured. It's not just about my own life." 26At his sentence proceedings, evidence was led that [E] had no substance abuse problems, or mental health issues. From the date of his arrest to his death, [E] was held in protective custody. 27In June 2010 [E] gave evidence at the committal proceedings against Anthony and Andrew Perish and Matthew Lawton. In both evidence in chief and cross-examination, he adhered to his record of interview and gave evidence consistent with the sworn evidence he gave in the sentence proceedings. [E] referred to the fact that he considered his family to be vulnerable to harm from Anthony Perish. 28Before the commencement of the trial, [E] was diagnosed with cancer. At the trial, [E] gave evidence that was unfavourable to the Crown in that he claimed not to remember the events, the subject of the offences. An application by the Crown to cross-examine [E] was granted and his record of interview was adduced in evidence. 29The January 2014 statement was served on the Crown on 17 April 2014. In it [E] claimed that the evidence in his recorded interview and that he gave at committal was untrue and that the Perish brothers and Matthew Lawton had "nothing to do with the preparation, planning or execution of any kidnapping of Terry Falconer" and that Falconer "died by accident in [E's] care". [E] also claimed to have given his recorded interview and committal evidence as a result of having been threatened by police. 30In the course of providing this background information, the Crown wished it to be noted that [E's] position in the January 2014 statement was contrary to the position taken at trial by Anthony Perish. At trial Anthony Perish conceded that he was responsible for the planning of Falconer's kidnapping and was prepared to plead guilty to manslaughter on the basis that he recruited [E] to abduct and interrogate Falconer, that he envisaged force would be used and that injury would be inflicted upon Falconer. 31The Crown noted that [E] died on 18 March 2014 and that the January 2014 statement was not served until 17 April 2014, seven weeks after it was signed, and four weeks after he died. The Crown submitted that because the statement was not served until after [E's] death, it was not given the opportunity to interview [E] about the matters raised in the statement. 32The Crown then set out in its submissions the steps taken to investigate the 2014 statement by [E] to date and the steps which it envisaged would be needed for the future. 33The Crown noted that in the January 2014 statement, [E] claimed to have contacted the Police Integrity Commission in relation to recanting his evidence and reference was made to a document marked "Annexure "A"". The statement served on the Crown did not include "Annexure "A"". The solicitor for Anthony Perish has advised the Crown that "Annexure "A"" would not be produced and that Anthony Perish did not propose to rely upon it. 34Police inquired of the Police Integrity Commission as to whether they had a record of any application or contact by [E] in relation to the Perish brothers and Matthew Lawton. As yet, that inquiry has not been answered. 35The January 2014 statement was witnessed by a solicitor named Evan Bongarzoni. The Department of Corrective Services' records of [E's] prison visits indicate that Mr Bongarzoni visited [E] on 17 and 27 January 2014. On both those occasions, he appears to have been accompanied by a barrister, Dymphna Hawkins. 36Ms Hawkins acted for Anthony Perish in proceedings before the NSW Crime Commission. Department of Corrective Services' records of Anthony Perish's visits indicate that from February 2013 until 17 January 2014 Ms Hawkins visited him on eight occasions. Ms Hawkins also visited [E] on 15 March 2014, three days before he died. Department of Corrective Services telephone records indicate that on that day, fifteen minutes before the meeting with [E], Ms Hawkins spoke to Anthony Perish. 37At the hearing of the motion, the Court was advised that Mr Bongarzoni and the principal of his firm have refused to be interviewed by the police, but would of course be compellable to attend to give evidence at the hearing of the appeal. No information was provided as to the attitude of Ms Hawkins. 38Police have been informed by the Department of Corrective Services that in December 2012 Anthony Perish wrote to Andrew Perish. The letter appears to request Andrew Perish to arrange to have a third person threaten Daniel Perish (a brother) in relation to obtaining new evidence for a retrial. The Crown noted that so far the only ground of appeal that raises fresh evidence is the one that involves [E] recanting. The Department of Corrective Services has indicated that it would not release the letter without an order to produce. (During the hearing of this motion, the Court made that order.) 39Police obtained from the Department of Corrective Services the telephone records for each of the appellants and [E] from the date of conviction. There are approximately 7500 calls. Police have also obtained the visiting records of the appellant and witness [E] from the date of conviction. There are records of approximately 650 visits. 40The Crown submitted that a key question for the Court in relation to the fresh evidence ground would be whether the evidence was cogent and credible (R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at [63]). In that regard, the Crown noted that [E] repeatedly stated that he feared for his life and that of his family and that Anthony Perish had threatened to kill him. It was only when diagnosed with terminal cancer so that he could no longer obtain the benefit of the discount on sentence for his assistance, that [E] recanted. 41The Crown submitted that the following matters had to be investigated to enable it to adequately challenge the cogency and credibility of the January 2014 statement: (a)The circumstances in which the January 2014 statement came to be made and witnessed. (b)The circumstances following the swearing of the January 2014 statement and the reasons why it was not served until after [E's] death. (c)Whether "Annexure "A" of the January 2014 statement exists. (d)The matters raised in the letter from Anthony Perish to Andrew Perish. 42The Crown submitted that the investigation of these matters would involve: (a)Interviewing Ms Hawkins and the examination of the files of Mr Bongarzoni and of his principal. (b)Listening to and if required transcribing any relevant recorded telephone calls of the appellants and E. (c)Analysing the records of visits to the appellants. (d)Interviewing the third person referred to in Anthony Perish's letter and Daniel Perish. 43The Crown estimated that those inquiries would take at least four weeks. 44The Crown submitted that it could not adequately prepare the appeal in the absence of the evidence in support of the non-disclosure ground. It submitted that investigations to date suggested that the January 2014 statement lacked the cogency and credibility that fresh evidence required before this Court would consider it. The Crown submitted that without time to conduct the further investigations which it had identified, it could not adequately respond to the fresh evidence ground. 45The Crown submitted that it was in the interests of justice that these very important factual matters be properly investigated before the appeal was heard. Submissions on behalf of Matthew Lawton 46Mr Lawton submitted that the application for adjournment should be dismissed because the evidentiary basis underlying it was unsatisfactory. 47He submitted that the submissions in relation to the "non-disclosure ground" were premature and would depend upon the outcome of the NSW Commissioner for Police's notice of motion. Since the outcome of that motion could not be accurately predicted, that issue was essentially neutral. 48He submitted that the problem for the Crown in advancing the fresh evidence ground as a reason for an adjournment, was that the Crown had failed to explain the substantial delay which had occurred after 17 April when the 2014 statement was served on the Crown. He submitted that nothing appeared to have been done by the Crown between that date and mid September at the earliest. 49He submitted that all of the investigations identified by the Crown as needing to be carried out could have been carried between 17 April and the present time and that no explanation was offered by the Crown for why this had not taken place. 50Mr Lawton submitted that his appeal had been filed in January and was originally to be heard in July 2014. It had been adjourned to 31 October 2014 so that it could be heard with the appeals brought by Anthony and Andrew Perish. He submitted that it would be unfair for the hearing of his appeal to be further delayed. This was particularly so when he would continue to be incarcerated pending the hearing of the appeal. Consideration 51The complaint made by Matthew Lawton as to delay is a valid one. There is simply no explanation for the Crown's inaction during the six months between the date when the 2014 statement was served and the present time. In many cases, that consideration alone might be fatal to an application for adjournment. This, however, is not such a case. 52The convictions, which are the basis for the appeal, involve very serious crimes. Even without the further investigations which the Crown has foreshadowed, there are sufficient anomalies in the late recantation by [E] of the contents of his original statement to the police and evidence subsequently given by him, to raise real questions as to the reliability of the January 2014 statement. It is very much in the interests of justice that the circumstances surrounding the creation of that statement be fully investigated before the appeals are heard. 53There is a further matter which impacts on this application. This is not like adversarial litigation in civil proceedings where the interests of the parties are the principal concern. These proceedings involve very serious criminality and the community has an interest and an expectation that matters such as these be fully investigated so as to provide the Court with all relevant information and enable it to correctly resolve the issues raised in the appeal. 54It is for these reasons that the Court made the orders which it did on 21 October 2014. ********** 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. Decision last updated: 27 October 2014