CORRECTING MISCARRIAGES OF JUSTICE

A. M. BLACKMORE [1]

 

A miscarriage of justice identified

Miscarriages of justice do not always occur in dramatic circumstances. Injustice can also occur in societies that have a stable political climate with strong institutions to protect human rights and correct miscarriages. Miscarriages can occur when these very institutions are used in a corrupt fashion to bring about results, which appear, on their face to represent justice, when in reality they only represent a perversion of justice.

 

Examples were provided recently in Australia when the Royal Commission into the New South Wales Police Service uncovered a large number of corrupt practices used by the police. These practices were used to obtain acquittals for some guilty accused, to obtain convictions for accused who would otherwise have been acquitted (or never charged) and involved many other forms of perversion of process and duty. The underlying theme of the practices was that they were designed to advantage the individual police officer or officers at the expense of an accused or the community.

 

Where the Royal Commission revealed cases of corruption it was necessary for the government, the police force and ultimately the criminal justice system to deal with these cases and correct any miscarriages of justice arising.

 

This paper will briefly address the general issues arising from the Royal Commission but will also analyse the manner in which specific cases were dealt with following the taking of evidence at the Royal Commission in which it was said a miscarriage of justice had been occasioned.

 

My own background in these cases is as Counsel for the Crown in trials and appeals. In that role I have appeared in a number of trials and appeals in which police corruption (revealed in evidence at the Royal Commission) has been alleged to result in a miscarriage of justice. I propose later in this paper to briefly outline the facts and result in two such cases. In the first of those cases the Court of Criminal Appeal in NSW (hereinafter called “CCA”) agreed (with both the Crown and the appellant) that a miscarriage of justice had resulted. In the second case the appellant was unable to persuade the CCA that a miscarriage of justice had occurred.

 

Background to the Royal Commission

Terms of Reference

In 1994 an independent member of the NSW Parliament, Mr Hatton, moved a motion for a wide-ranging investigation in the form of a Royal Commission [2] into the NSW Police Service (hereinafter called the police). As much by force of argument and his personality he convinced a majority of members of Parliament, although not the Government of the day, to support his motion. The lengthy argument that proceeded the vote concluded with Mr Hatton noting that “(a) royal commission will lance the carbuncle and the rottenness will come out.” This set the theme for the scope and aim of the Royal Commission.

 

The terms of reference decided upon were in substance to investigate:

·        The existence, or otherwise, of systemic or entrenched corruption within the police;

·        The system of promotions in the police;

·        The impartiality, or otherwise, of the police in relation to the investigation and prosecution of criminal activities including, but no limited to paedophile activity; and

·        The efficacy of the internal informers policy of the police. [3]

 

These terms were expanded to later include a reference relating to the alleged protection paedophiles and pederasts from criminal investigation or prosecution.

 

Corruption defined

The corrupt conduct which the Royal Commission investigated was taken to comprise “deliberate unlawful conduct (whether by act or omission) on the part of a member of the Police Service, utilising his or her position, whether on or off duty, and the exercise of police powers in bad faith.” [4]

 

The forms of corruption the Royal Commission specifically looked for were the receipt of bribes;  “green-lighting” where police permit, whether implicitly or explicitly, criminals to commit offences; protecting criminals or agreeing to obstruct the activities of other criminals for reward; releasing confidential information; “gutting” or “pulling” prosecutions by minimising the evidence in the case; providing favours in respect of bail or sentencing; extortion; stealing and recycling drugs, money and property obtained during the course of otherwise legitimate police operations; various forms of direct participation in criminal activity and the misuse of office to procure an advantage (or disadvantage) in matters of promotion, discipline, transfer through patronage, friendship or prejudice.

 

Powers of the Royal Commission

In addition to the usual powers of the Royal Commission [5] further powers allowing for obtaining information, the arrest of witnesses, electronic and compulsory forms of disclosure by means of listening devices and search warrants, protection for certain witnesses, secrecy provisions for employees and witnesses at the Royal Commission were provided. [6]

 

These additional powers proved vital tools for the Commissioner, Mr Justice J Wood, and their use led to many instances of what became known colloquially as “rollovers”. In essence, as the term implies, a number of police, once confronted with electronic recordings made of their conversations, often with other police, either provided the Royal Commission with original evidence of corruption or, on occasions, changed their sworn testimony to subsequently admit corrupt conduct. Importantly those who rolled over also often nominated others with whom they had been involved in corrupt conduct. This led to further witnesses being called and confronted in a similar manner. On occasions as many as three or four officers would roll over and admit corrupt conduct leaving another one or more that would obstinately deny wrongdoing.

 

Prior to the commencement of the Royal Commission the police internal investigation division had identified a number of suspect corrupt officers. Unfortunately, due in no small part to the police culture, these internal inquiries did not produce sufficient evidence to enable the mounting of prosecutions. Once the Royal Commission commenced it had available to it, through the files of the police internal investigation unit, a ready set of cases and suspects to investigate. However it would be wrong to imagine that the Royal Commission only cleared up a number of outstanding police internal investigations. Its influence was far more wide ranging. As a result of an amnesty granted to police at the commencement of the Royal Commission a number of officers came forward and gave evidence providing the commission with useful information and admissions. Further, as the commission continued its operation both defence lawyers and accused persons themselves developed a confidence in the commission and were able to divulge instances of police corruption of which they were aware that were later thoroughly investigated.

 

As a result of this far ranging investigation the commission was able to make both specific findings in individual cases as well as suggestions for reform.

 

What the Royal Commission found

The Royal Commission was involved in hearings for approximately three years. The commission employed a large number of police taken from outside the NSW police service as well as accountants, computer and financial analysts, barristers and solicitors. In addition to Mr Justice Wood there was also appointed a number of assistant commissioners who conducted specific aspects of the inquiry. Running concurrently with the commission was an organisation established to provide legal assistance to witnesses required to appear at the Royal Commission.

 

The Royal Commission found evidence of various forms of corruption which, for convenience, are summarised under the following topic headings :

·        Process corruption, that is abusing the legal process in various ways including falsifying Court process in one manner or another;

·        Gratuities and improper associations;

·        Substance abuse ;

·        Fraudulent practices;

·        Assaults and abuse of police powers;

·        Compromised Prosecutions – compromising the prosecution or providing favourable treatment;

·        Theft and extortion;

·        Protection of the drug trade;

·        Protection of club and vice operators;

·        Protection of gaming and betting interests;

·        Drug trafficking;

·        Interference with internal investigations of corrupt police, enforcing the “code of silence”. [7]

 

In practice the most common form of corruption uncovered was that which is shortly described as “process corruption”. This conduct again consisted of various types of corruption which can be shortly described:

·        Perjury;

·        Planting of evidence on suspects;

·        Falsely claiming that an accused had provided police with verbal admissions, sometimes in the form of an unsigned “record” of interview with the accused;

·        Denials of basic rights in respect of matters such as the use of a caution, or detaining an accused for the purpose of interviewing him;

·        Assaults and pressure designed to obtain admissions;

·        Gilding or embellishing evidence to present a better case to the Court;

·        Posing as a solicitor to advise suspects to co-operate with police;

·        Tampering with the product of electronic interception to remove any mater that might prove embarrassing;

·        Unofficial and unauthorised practices such as putting suspected street drug dealers onto a train and “banning” them from an area; and

·        “taxing” of criminals who are seen by police to be beyond the power of the law. [8]

 

Often these forms of corruption were multiplied. For example when evidence was planted it was necessary that the police would provide perjured evidence to verify that the “planted” evidence had in fact been found on the hapless accused.

 

A legal remedy for a revealed miscarriage of justice

As a result of the Royal Commission many on-going cases were affected. The Director of Public Prosecution was given access to the transcripts generated by the Royal Commission and solicitors preparing cases for trial were instructed to review those transcripts to find any potentially damaging evidence relating to a witness proposed to be called against an accused person. If such evidence was located it was disclosed to the accused. In practice relatively relaxed procedures allowed for the introduction of this evidence in cross examing the police. No doubt a number of accused were acquitted following cross examination of this kind.

 

The principle concern of this paper however is the correcting of miscarriages of justice. In this regard potential miscarriages of justice occurred when evidence led before the Royal Commission was not available to an accused until after his trial. As a result it was necessary to attempt to admit this evidence at an appeal.

 

In New South Wales section 6 of the Criminal Appeal Act 1912 (NSW) provides inter-alia that the CCA may dismiss an appeal if the Court considers that no substantial miscarriage of justice has actually occurred. In Mraz v The Queen (1955) 93 CLR 493, in the High Court of Australia, Fullager J described the operation of the section in the following manner:

"The proviso to s 6(1) of the Criminal Appeal Act of 1912 does not mean that a convicted person on appeal must show that he ought not to have been convicted of anything. It should be read, and it has in fact always been read, in the light of the long tradition of the English law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried."

 

As a consequence of testimony given at the Royal Commission many appellants sought to admit the evidence obtained in appeals to the CCA. This evidence was capable of being considered by the Court despite the fact that it had not been led in the trial provided it met the test of “fresh evidence” for admissibility. [9] Generally this did not prove to be a hindrance to an appellant.

 

A potential further difficulty arose in considering whether any miscarriage of justice had occurred in some trials when the accused had already unsuccessfully prosecuted their appeals. These appeals exhausted the primary jurisdiction of the CCA. This is what in fact occurred in the two cases examined below. However in such cases there was a ready mechanism available. In 1993 the NSW Government amended legislation, already substantially in place, for the review of convictions and sentences. This legislation provided for, amongst other things:

-           An  application in the form of a petition to the Governor by or on behalf of a convicted person for a pardon or for a review of his or her conviction;

-           After considering the petition, a direction that an inquiry be conducted into the conviction or alternatively that the Attorney General may refer the case outlined in the petition directly to the Court of Criminal Appeal for the conduct a further appeal.[10]

In practice the mechanism of referring cases to the Court of Criminal Appeal for a further appeal was the one generally employed to deal with petitions filed by affected accused following the Royal Commission. In other cases (outside those covered by the Royal Commission) where a convicted prisoner is able to satisfy the Governor (who takes advice on the issue) that there is substance to an assertion that he or she has been wrongly convicted an inquiry is held. As the Royal Commission had already taken evidence which revealed the potential existence of a miscarriage of justice meant that a further inquiry was not required.

 

Whether the appeal was conducted as an original appeal or one initiated by the by the Attorney General referring the appeal back to the Court the questions remained the same. The manner in which the Court dealt with the evidence is outlined in a judgment of Levine J in a decision subsequently often followed. [11] He said:

“Just as the Court should not be quick to allow an appeal on a ‘fresh evidence’ ground merely because police officers involved in a given trial have been adversely referred to in the Royal Commission, nor, in my opinion, should the Court be quick to dismiss a ‘fresh evidence’ appeal by reason of the absence of coincidence between the adverse references in the Royal Commission and the specific subject matter of the trial under appeal. What can be no more than a guide may be stated thus: material from the Royal Commission should be considered to determine whether it is capable of disclosing conduct or, possibly a reputation therefor, pointing to a preparedness in the officer to act corruptly, at least by dishonesty, in his performance of his duties in criminal investigations. The closer the suggested adverse conduct is, in the Royal Commission material, to that which is relevant to the particular trial, the more persuasive will be the position of an appellant in an appeal of this nature.”

 

Cases

This leads on to consider the application of the law in practice.

Case 1 – The Facts

The police had been advised by an informant RY of the potential to buy a large quantity of heroin and cannabis from a drug dealer. The police arranged for RY to “show” $340,000 cash to be used in the buy/bust. Following the “show” which was closely monitored by the police but which did not reveal the name or identity of the drug dealer it was agreed to proceed with the buy. The location for the transaction involved the informant driving in a car with the money. Surveillance was available in the form of a police helicopter and 12 police in 9 unmarked vehicles. There were two listening devices fitted to the vehicle containing the money and to the informant.

 

As events turned out, RY drove to the designated meeting point where he was expected to remain in possession of the money, while the car supplied to him was taken away and returned with the drugs. Contrary to instructions, RY allowed himself to be blindfolded and driven away by two persons, but still in possession of the money. He was taken by a circuitous route to a position near a railway embankment. There RY left the vehicle that was then driven away by one man while the other man took the money from RY and escaped with it via a stormwater drain that ran under the railway embankment. The hired car was followed by the police helicopter and unmarked police vehicles but was later abandoned without arrest. No police officer saw the man escape under the embankment with the money.

 

The investigation

The investigation of the stealing of the money centred on the following factors. There was evidence identifying the voice of one of the two men in the car. There was evidence obtained from mobile telephone records which was able to show that the man identified in the car, CT, was in regular contact with RY, the informant, prior to the stealing taking place. In addition subsequent financial investigations turned up banking and other financial transactions by RY (who was himself a bankrupt) and CT and RY’s brother. Those investigations revealed that some bank notes with the same serial numbers as those allegedly provided by the police to RY for the operation. Those notes were allegedly found to have been, after the stealing, in the possession of RY and CT at some time. Finally there was evidence of the transfer of large sums of cash to an overseas destination together with evidence that CT had departed for that country with RY’s brother.

 

The combination of this evidence led to a strong case that RY had been involved with CT in stealing the money from the police and that they, together with RY’s brother, had attempted to lauder the money by sending it overseas. RY, CT and RY’s brother were convicted.

 

Royal Commission investigation

The Royal Commission was interested in a number of areas relating to the operation. Firstly, why did the police use RY as an informant when he had proved to be unreliable in the past? Further, the Commission was interested in the process developed by the police to protect the money, including the ineffective surveillance and the photocopying of the show money prior to the operation. It was this last area which provided the only evidence of actual police corruption (as opposed to a suspicion held that the police engendered the whole matter in order to obtain the money for themselves or to share it with RY). In this regard the Royal Commission noted that:

“shortly after the theft the Drug Enforcement Agency prepared a computer list of the serial numbers of the photocopied notes. In the course of doing this, many apparently innocent clerical mistakes were made including the entering of the same serial number twice and some numbers three times. In all, there were more than 100 wrong entries. With these mistakes the computer list of notes added up to $337,500. The police who were involved in the photocopying process all made their statements subsequent to the preparation of the DEA list. By an apparently remarkable coincidence the value of the notes photocopied in accordance with these statements was also $337,500.”

 

The Royal Commission concluded that there was reason to believe that the photocopy record of stolen notes had been falsified at least in relation to an amount of $30,000 and possibly as much as $145,000.

 

The Appeal

RY and CT appealed their convictions. Part of the grounds of appeal related to the alleged falsification of the photocopied money. The appellate court held that this ground was not made out because the issue was raised in the trial and importantly because it did not have any affect on the conviction for stealing. The only photocopied money relied upon by the Crown, the original of which was said to later be in the possession of the accused, was photocopied money about which there was no challenge. In other words there was no dispute on the evidence that the police prior to the operation had photocopied the money and that it formed part of the quantity of money given to RY prior to the stealing taking place. Therefore the offence of stealing had been made out as had the offence of money laundering, it only being necessary, as a matter of law, to establish that $1 of the money had been stolen or laundered for a conviction to be sustained. Given the evidence there was no doubt as to the involvement of the accused in the stealing and the laundering (no matter what the police’s involvement in the matter may have been).

 

The second appeal

After the first unsuccessful appeal one of the prisoners sought a pardon, by forwarding a petition to the Governor. This was sought on the basis that the Police were only able to show that approximately half of the $340,000 was stolen and that therefore the applicant should be acquitted or at least his sentence should have been significantly reduced. He relied upon the evidence taken at the Royal Commission to support this submission. However, he did not dispute that he was guilty of stealing the money. The Attorney General referred the matter back to the CCA.

 

The CCA held that the prisoner had not suffered any miscarriage of justice. The fact that the accused did not deny his involvement in the offence eliminated chance that a miscarriage of justice had occurred. Further the amount of money involved was only one of the factors involved in his sentence and that otherwise the Court was of the view that the sentence was appropriate.

 

The second trial

Three accused were charged with the manufacture of amphetamine. The police case was that they had observed the accused in attendance at a residence owned by one of the accused and that they had observed them bringing chemicals to the premises. It was inferred that they were in the process of manufacturing the drug. On a particular day the police raided the premises. It was alleged that a process of manufacture was under way and that all accused were present. An expert was called to the premises later in the evening and stated that the process would have required constant attention and that it had been under way for approximately 5 hours.

 

The accused were convicted. In essence the case was open and shut. The accused appealed however the appeal was unsuccessful. After the appeal evidence was given at the Royal Commission which placed the facts of the case in a rather different light. Evidence was given by some of the police involved in the raid that one of the accused was not present at the residence at all. He had been “arrested” elsewhere and taken to the premises. Moreover a considerable amount of evidence was manufactured by the police including the provision of fingerprints on various items, alleged admissions made by the accused, surveillance evidence invented, and the production of false documents. Whilst there may have been evidence that the accused were involved in the manufacture of amphetamine the items of evidence falsely manufactured by the police so inevitably lead to wrongful conviction that the Crown conceded that a miscarriage of justice occurred. The accused were all acquitted because the original evidence was so tainted with illegality that would not have been possible to identify which evidence was falsely concocted by the police as opposed to evidence which may have represented the true facts.

 

Even more disturbing than the fact that the Police had manufactured the evidence in attempt to obtain a conviction in this case was the suspicion that they had acted on the information of another large scale drug dealer who worked the same area as the convicted accused. Whilst this consideration formed no part of the CCA’s decision it was one of the factors considered by the DPP as to whether it should concede the appeal.

 

Conclusion

One of the effects of the revelations made at the Royal Commission was opportunity to thoroughly test the legislation in place designed to identify and correct wrongful convictions. The legislation proved to be effective in dealing with and correcting miscarriages of justice.

 

What was significant was that the criminal justice process was allowed to work without any political interference, despite the obvious potential disruption that the Royal Commission that system. The natural inclination when suggestions of corruption arise is to turn them into political capital of one sort or another. In this case however Mr Hatton was able through dogged persistence to persuade enough members of parliament to support him. It must also be acknowledged that once the Royal Commission was put in place the Government did adequately support it with resources so that it could carry out its role.

 

The effect of the Royal Commission has been cathartic on the police force. Many officers have or are being been prosecuted, even more have been forced to resign and others have simply left. The changes that have been brought about by the Commission have negatively affected morale however this is a minor, and perhaps inevitable, aspect of such a cleansing. Ultimately the police force will be able to move forward in positive way believing with some conviction that the corrupt police have been purged. In addition the Royal Commission, before completing its work, handed many of its files over to a new body known as the Police Integrity Commission, which will continue work commenced by the Royal Commission in looking for and weeding out corruption in the police force.