The Queen v Stead[1997] QCA 236

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 162 of 1996

P. No. 1492 of 1996

Brisbane

[R. v. Stead; ex p. A-G]

THE QUEEN

v.

NOEL JOHN STEAD

(Applicant) (Petitioner)

Appellant

REFERENCE BY ATTORNEY-GENERAL OF QUEENSLAND

UNDER SECTION 672A OF THE CRIMINAL CODE

Fitzgerald P.

Davies J.A.

Fryberg J.

Judgment delivered 8 August 1997

Separate reasons for judgment of each member of the Court.  Davies J.A. and Fryberg J. concurring as to the orders made; Fitzgerald P. dissenting in part.

THE CONVICTIONS ON COUNTS 8, 13, 15-19 AND 21-24 ARE QUASHED.

ALL OTHER RELIEF SOUGHT BY THE APPELLANT IS REFUSED.

A WARRANT FOR THE APPREHENSION OF THE APPELLANT IS TO ISSUE IF HE DOES NOT SURRENDER HIMSELF FORTHWITH ON DELIVERY OF JUDGMENT IN THESE PROCEEDINGS.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 8 August 1997

On 12 September 1991, Noel John Stead (the “appellant”) was convicted of 23 counts of unlawful possession of a motor vehicle with circumstances of aggravation, three counts of unlawful possession of a motor vehicle and four counts of official corruption.  The first six counts of unlawful possession of a motor vehicle with circumstances of aggravation occurred between 26 April and 5 September 1989.  The appellant was sentenced to imprisonment for six years in respect of each of those counts and imprisonment for four years in respect of each of the other counts; the sentences in respect of the first six offences were ordered to be served concurrently with each other, and the sentences in respect of the other counts were ordered to be served concurrently with each other but cumulatively upon the sentences in respect of the first six offences.

The appellant’s appeal to this Court was dismissed on 12 June 1992,^[1] and an application for special leave to appeal to the High Court was refused on 14 October 1992.  The appellant has now petitioned for a pardon, and the Attorney-General has referred his case to this Court pursuant to s. 672A of the Criminal Code; in accordance with that section, the case is to be “determined by the Court as in the case of an appeal” by the appellant.  At the hearing before this Court, the appellant effectively conceded that his convictions in respect of counts 1-7, 9, 11, 14, 20 and 25-30 should stand.  However, he submitted that his convictions in respect of the other counts should be set aside and that, in that event, his sentences should be reduced to an effective sentence of less than ten years because his total criminality was less than that acted on by the trial judge.

On 14 May 1993, the appellant was convicted of a further offence of unlawful possession of a motor vehicle with circumstances of aggravation and sentenced to imprisonment for four years to be served concurrently with the sentences imposed in 1991.  He has applied for an extension of time within which to apply for leave to appeal against that sentence on the basis that the sentencing judge did not intend to add to the appellant’s effective sentence, and that the 1993 sentence should be reduced accordingly if the sentences imposed in 1991 are reduced.  An application for an extension of time to appeal against the 1993 conviction was abandoned.

The appellant’s argument can be briefly summarised.  It was submitted that the only evidence against him in respect of the convictions which he says should be set aside was the testimony of an indemnified accomplice, R.  All of the appellant’s conduct to which those offences related occurred between 1 October 1989 and 29 December 1989, during the period of a covert police operation, “Operation Trident”.  The appellant gave evidence at his trial denying his guilt and it was submitted that the essential issue for the jury was whether it was satisfied beyond reasonable doubt of the veracity and reliability of R’s evidence against the appellant.  According to the appellant, a Commission of Inquiry, subsequent to the appellant’s trial in 1991, into Operation Trident revealed cogent reasons for the jury to disbelieve, or at least doubt, R’s material evidence.  It was submitted that the information revealed by the Commission of Inquiry could not have been discovered with reasonable diligence before the appellant’s trial in 1991, and that, if evidence of the matters which impugned R’s credibility had been known to the jury which convicted the appellant in 1991, there is a significant possibility that he would have been acquitted of counts 8, 10, 12, 13, 15-19 and 21-24,^[2] each of which involved an offence of unlawful possession of a motor vehicle with circumstances of aggravation^[3] in respect of each of which he was sentenced to imprisonment for four years.  It was also argued that R’s evidence should not have been received, at least in relation to counts for which his evidence formed the sole basis of the appellant’s convictions.  While this Court previously rejected that argument, at that time the argument was based solely on the invalidity of R’s indemnity, and the Court proceeded on the basis that his evidence was cogent, and that neither he nor police acted “in deliberate or reckless disregard of the law”.^[4]

By way of elaboration, the appellant argued that the prosecution case at his 1991 trial was that he was a professional car thief who was engaged in stealing cars, breaking them down and selling the parts, and that R had infiltrated the dishonest operation and participated under the supervision of police only for the purpose of obtaining evidence against the appellant.  According to the appellant, the differences between the prosecution case at his 1991 trial and what was revealed by the Commission of Inquiry into Operation Trident were that:

“1.At [the appellant’s] committal and trial R contended that after Operation Trident had closed he bought ‘one or two’ cars and later said ‘two or three’ when in fact he bought 14. ...

2. At [the appellant’s] trial R said he made a ‘small profit’ after Operation Trident closed.  In fact he made a profit of over $40,000.00 on one transaction alone, ...

3. R knew that it was important to portray himself at [the appellant’s] trial as a person engaged in Operation Trident solely for motives of public concern but agreed [at the Commission of Inquiry] that he made ‘a very good profit out of Operation Trident’. ...

4. At [the appellant’s] committal R was asked whether any police had purchased any cars after Operation Trident had closed and he said ‘Not that I can remember’.  At the inquiry it was revealed that police officers Pearce, McDermott & Matthews had purchased cars with the assistance of R. ...

5. R bid for a car that was purchased by Matthews and Matthews at the inquiry admitted bidding on cars in which R was interested so as to fix a price. ...

6. At the end of Operation Trident R was in a position to buy a large number of body shells.  At [the appellant’s] trial he said that he had made the purchases from ‘bank cheques or cash from his bank account’.  At the inquiry it was revealed that he had made the purchases from stashes of cash kept in the bait section of his freezer and in the leg of a pair of discarded shorts.  This clearly raises the inference that the cash was from [illicit] sales of Operation Trident car parts by R. ...

7. The inquiry revealed that there was little record of where the parts eventually went and R was unable to explain where all the parts went.  This cast doubt over police supervision of the operation and raises the suggestion that R was dealing in parts himself. ...

8. Some parts were sent to Melbourne with [the appellant] who said at his trial that he was acting innocently.  When they were returned to Queensland the parts were sold to a person Bushell.  Bushell told the inquiry that he purchased these from R ... .  R said Bushell purchased them from Pearce ... .  Pearce denied this at the inquiry ... .  Therefore it must necessarily follow that either R was dealing in parts himself (unknown to the police) or Pearce is corrupt.

9. R at the inquiry gave evidence of a conversation he had with an offender Cull.  Cull said to R ‘At the prices [the appellant] was charging you might as well buy them retail’.  This is consistent with [the appellant’s] case that he was acting innocently. ...

10. After Operation Trident had closed R defrauded a complainant Sparnon (and insurance companies) by telling them that storage was owing on his car when in fact it wasn’t.  Further R did not disclose to Sparnon that some of the parts that had been recovered. ...

11. A Mrs Kelly (a complainant) was (with the assistance of McDermott) told a story by R about how another victim of car theft had a legal right to $8,000.00 from Mrs Kelly whose car now consisted (in part) of parts from this other person’s car.  In fact, R had purchased the salvage rights to the parts.  Mrs Kelly paid $8,000.00 to Reisenweber. ...

12. Evidence was fabricated by R (and probably police) in a trial against persons Ferguson and Saunders where incriminating conversations were manufactured. ...”

Elsewhere, the appellant summarised the effect of the information revealed by the Commission of Inquiry into Operation Trident as follows:

1. R was a police informant who made large profits from his activities in Operation Trident by dealing in stolen car parts that had been recovered through the operation;

2. By a system of artificial bidding some of the police had helped R purchase some of the recovered cars at insurance auctions;

3. Police involved in Operation Trident had themselves purchased vehicles the subject of the operation;

4. R and some of the police had sold stolen parts which were not their parts to sell;

5. R and at least one of the police had conspired to fabricate evidence against a person Sanders, against whom a criminal prosecution was launched;

6. R defrauded insurance companies by obtaining payment for storage of motor vehicle parts;

7. R and one of the police (McDermott) fabricated a story which fraudulently induced a Mrs Kelly (whose car had been stolen in the operation) to pay R $8,000.00.

The Director of Public Prosecutions did not dispute that the Commission of Inquiry revealed additional information concerning the conduct of R and some of the police involved in Operation Trident which was generally to the effect asserted by the appellant.  That being so, it is instructive to notice how the case against the appellant was understood on the previous occasion when the appellant appealed to this Court.  Ground 4 involved an attack on the trial judge’s decision to admit R’s evidence.  The Court said:^[5]

“... That  leaves  for consideration ground 4, which is in substance that the trial judge should have excluded evidence of a paid police informer and indemnified witness, one R, because ‘the methods adopted by the police authorities in Operation Trident set too high a price to pay for the administration of justice and such methods should not be countenanced by or have the approval of the Courts’.

Operation Trident was a plan developed in 1989 and put into effect by police for infiltrating the ranks of persons engaged in stealing cars in and around Brisbane for the purpose of resale.  The object of the operation was to find out who was receiving and selling the stolen cars, which were usually stripped or broken down into parts and then rebuilt so as to prevent subsequent identification.  The plan was devised in September 1989 after R was approached by the appellant Stead about disposing of the shell of a stolen vehicle that had been stripped.  R later spoke to two detectives, who urged him to find out from the appellant the identities of persons to whom the stolen vehicles or parts were being sold.  This he was reluctant to do without some protection for himself against possible prosecution, and he agreed to participate only after he was promised he would receive an indemnity against prosecution for his part in the activities that were to follow.  This was the genesis of what came to be known in police circles as Operation Trident.

A formal written instrument of indemnity dated 5 October 1989 and signed by the then Attorney-General, Hon. P.J. Clauson, was provided to R. ...

...

The indemnity was admitted as Ex. 14 at the trial.  By the time of its delivery to R he had already accompanied the appellant on their first joint expedition to steal a vehicle, which was broken into by Stead and stolen on about 20 September 1989 from the Sunnybank Shopping Centre.  It is the subject of count 7 in the indictment.  The stolen vehicles that were the subject of the first six counts were already in the appellant’s possession at the time R came on the scene.  The appellant needed a secure place at which to strip the vehicles down, and for this purpose R provided a shed in the backyard of his premises at Yatala.  However, before the first vehicle was stripped in that shed the police, with R’s assistance, secretly installed a video camera in the shed and the stripping of that and subsequent vehicles was recorded on film.

The vehicles the subject of counts 8 to 25 were stolen by the appellant in circumstances similar to those described.  R was present on each occasion.  He was not present when the vehicle the subject of count 26 was taken.  However, he helped to dispose of it.  With the assistance of R, the police had in the meantime also insinuated into the operation a policeman named Carmont.  He had mechanical skills, and was employed to drive stolen vehicles back to the shed, where he assisted in the process of stripping them down and obliterating identification marks.  He worked mainly with another car thief named Partridge, but was able to give some evidence of the appellant’s part in events.

From time to time the appellant found he had more shells of vehicles than he could comfortably accommodate.  On such occasions R would arrange to have the shells removed from the shed overnight by the police, informing the appellant that he was disposing of them.  So matters continued until the operation was terminated on 2 April 1990 with the arrest of the appellant.  The offences charged in counts 27, 29 and 30 related to attempts by the appellant to bribe police officers to destroy evidence intended to be used as exhibits in prosecuting him; that in count 28 related to another bribery attempt directed to gaining false registration of one of the vehicles.

As mentioned, the vehicles the subject of counts 1 to 6 had already been stolen before the arrangement in September 1989 that led to Operation Trident.  As to those the subject of counts 7 to 25, it is clear that the case against the appellant at trial was one in which the acts in question had been carried out under the cover of Operation Trident, in which police and police agents had participated extensively by assisting, directly or indirectly, in the unlawful activities of stealing, stripping down, and disposing of vehicles. ...”

At p. 45, the Court continued:

“The consequence in law is that for acts carried out in the course of Operation Trident R derived no immunity from the purported indemnity.  The indemnity did not affect to deprive any of the acts to be done of their criminal character.  It simply promised, although invalidly, that R would not be prosecuted for what he did in the course of the police ‘operation’.  It is said that, as a result, his evidence about those matters ought not to have been admitted at the trial.  Apart from his testimony there is evidence that is capable of sustaining the appellant’s convictions on the first six and the last four counts.  Nevertheless, R was obviously an important witness for the prosecution at the trial, and the exclusion of his evidence would probably have led to a different result in most if not all the other charges involved. ...”

At pp. 48-49, the Court said:

“We turn now to the factors which, in our view, were relevant to the exercise of the court’s discretion to exclude R’s evidence.

The first of these is that in no sense could it have been said that the conduct of the Attorney-General, the police, or R was in deliberate or reckless disregard of the law.  The Attorney granted the indemnity upon advice and there is no suggestion that any of those who acted under it had any doubt as to its legality.  Its illegality having been established, it could not be suggested as even a remote possibility that, with knowledge of that illegality, a future Attorney may purport to grant a similar indemnity.  Exclusion of the evidence will therefore have no useful deterrent function.

Secondly, R’s evidence here was undoubtedly cogent.  Without it, a guilty man will probably go free of the majority of the offences for which he was tried and convicted.  Whether it would have been possible to obtain evidence against the appellant in respect of those or similar offences without R’s involvement is a matter of speculation; but, given the professionalism of the appellant, there can be no doubt that, without having someone like R involved with and trusted by the appellant, the task of the police in detecting and then proving commission of the offences by the appellant would undoubtedly have been very much more difficult.  The prevalence of such offences and the obvious difficulty of detecting professional organised crime supports this conclusion.

Thirdly, the seriousness of the offences having regard both to their prevalence and their effect upon the community is itself a factor.  Illegality should be more readily excused in the detection of serious crime.

Fourthly, this is not a case of entrapment in the sense of the appellant having been induced to commit a crime.  He was engaged in the criminal activity of stealing cars in a business-like way before R became involved.  The first five counts attest to this.  There is no consideration of fairness to the appellant that dictates exclusion of the evidence under challenge.

It is difficult to see any public benefit in excluding the evidence in the present case.  None of those whose cars were stolen by the appellant will feel any satisfaction in seeing him go free.  Nor, we imagine, would any other car owners or indeed any right-minded citizens.  On the other hand, civil remedies for authorising the tortious conversion of so much valuable property are available to those who choose to use them.

In our opinion, therefore, his Honour rightly admitted R’s evidence.”

In the passage quoted from p. 45, the Court referred to Reisenweber’s importance as a witness for the prosecution at the 1991 trial, and said that “the exclusion of his evidence would probably have led to a different result in most if not all the ... charges involved”; counts expressly excepted were 1 to 6 and 27 to 30.  It is consistent with that view that the appellant’s present challenge is effectively confined to his convictions on some of the remaining counts, namely counts 8, 10, 12, 13, 15-19 and 21-24.  To understand the prosecution’s attempt to sustain those convictions despite the Court’s earlier opinion, it is necessary to understand that the appellant did not merely put the prosecution to proof at his 1991 trial; he advanced a positive case that - to use the words of his written submission on this occasion - “R was the culprit who was benefitting from the sale of the car parts” and  the appellant “was innocently assisting R in the conduct of R’s business which the [appellant] believed was legitimate”.  In his report, the trial judge has stated that there was “audible mirth from the jury” on a number of occasions, both when the appellant’s trial counsel put his instructions to prosecution witnesses and when the appellant gave evidence.  His Honour added: “I have seldom observed a jury to display such open derision of the accused and the defence case as occurred during this trial.”

The prosecution submitted that the appellant told lies at his trial and was disbelieved by the jury.  His attitude to his convictions on counts 1-7, 9, 11, 14, 20 and 25-30 at least implicitly accepts that that is so in relation to those counts.  The prosecution also sought to demonstrate in this Court that the appellant had lied to police prior to his trial, most obviously in relation to counts 9, 11 and 14, each of which was the basis of a conviction which is not challenged.  In his statements to police, the appellant sought to justify his possession of parts taken from the vehicles the subject of those counts on the footing that he had purchased the parts from Reisenweber.  He produced forged receipts which he had received from R, to whom they had been supplied by police.  Nonetheless, the issue whether the appellant had, as he claimed, purchased the vehicle parts from R substantially depended on a credibility contest between them.  I do not think that the prosecution can improve its position by an argument which effectively assumes that such a contest would necessarily be resolved by a jury in favour of R if the matters revealed by the Trident Commission of Inquiry were known.

However, the appellant’s contention that the convictions now challenged were entirely dependent on R’s evidence is overstated.  Apart from the appellant’s blatant lies in relation to the offences of which his guilt is acknowledged, the evidence against him plainly demonstrated that he was involved in a large scale car stealing operation.

Counts 1-6 related to offences prior to the commencement of Operation Trident.  Further, counts 27-30 related to the appellant’s attempts to bribe police officers to cause prosecution exhibits relating to counts 1-6 to “disappear”.  The evidence in relation to those offences included a large quantity of stolen car parts and a number of stolen cars found at the appellant’s house and another property on 4 and 5 September 1989; some of the stolen cars were partly stripped, all had their chassis numbers ground off and three had the engine numbers ground off; equipment such as grinders were also found.  Evidence was also given of a number of tape recorded conversations between the appellant and police officers representing themselves as corrupt, in the course of which the appellant made statements:

1. acknowledging that he had made a mistake having “so much gear” at his house;

2. referring to the “ploy” he was “going to use” at his trial; and

3. referring to metal stamps (of a type used to stamp engine numbers on Ford motor vehicles) which were found behind the appellant’s bed when police searched his house on 4 September 1989.

Other evidence included a video tape of the appellant stripping a two to three year old undamaged Ford LTD in a shed at Yatala on the day after the car had been stolen; the appellant could be seen removing the ignition lock and door locks etc.  Another video tape showed the appellant stripping a two to three year old Ford Fairmont Ghia in the bush about two kilometres from the shed at Yatala.  A witness, one Warren Critchley, gave evidence that he responded to an advertisement published in The Courier-Mail newspaper on 8 July 1989 advertising Ford seats, carpets and trims for sale, and that he purchased such items from the appellant who told him “that he could get any Ford part that I wanted”.  Another large quantity of stolen car parts was also found at a house leased by the appellant.  Evidence was given by an undercover police officer with mechanical aptitude, Carmont, that he was introduced into the appellant’s operation by Reisenweber on or about 5 January 1990 as a mechanic who had “been on the wrong side of the law” and could be interested in working “on his [the appellant’s] side”; thereafter on 12 January 1990, Carmont went to the leased house and helped the appellant to unload car parts.  During the period to 2 April 1990, Carmont worked with another offender, stealing and stripping cars, and saw the appellant on four or five occasions.  On 1 April 1990, the appellant took Carmont to a car which had recently been stolen.

It is unnecessary to repeat every detail, and I will refer to only two additional matters.  On 16 January 1990, the appellant was detained as he attempted to flee from a stolen car that he had been driving, and, on 18 January 1990, a panel van was found at the appellant’s house which had been built from the back of the stolen vehicle the subject of count 9, the front of the stolen vehicle the subject of count 11, and parts from the stolen vehicle the subject of count 14.

There seems to me no real possibility that the appellant was innocent of any offence of which he was convicted, and in that sense the convictions challenged are not unsafe and unsatisfactory.^[6]  However, that is not the issue.  The question for this Court is different;^[7] namely, whether there has been a substantial miscarriage of justice.  At least when the Court is acting, as here, under s. 672A of the Code, the test for the reception of fresh evidence is whether the absence of the evidence involved a miscarriage of justice.^[8]  An affirmative answer is required unless the jury would inevitably have found the appellant guilty^[9] of the offences^[10] which are the subject of the challenged convictions even if R’s evidence had been excluded or the jury had known of the additional matters revealed by the Trident Commission of Inquiry when considering the credibility and reliability of R’s evidence.  In my opinion, it is not possible to reach such a conclusion notwithstanding my view that there is no real possibility that the appellant was innocent.  Despite the strength of the prosecution case against the appellant, I consider that it would involve impermissible speculation to conclude that the jury would have convicted without R’s evidence or with his evidence plus the additional matters revealed by the Trident Commission of Inquiry, especially having regard to the reasons given by this Court for its earlier decision,^[11] referred to above.^[12]

Further, to the knowledge of police involved in the investigation and proof of the appellant’s offences, a false case was presented at his trial and persevered in before this Court on the occasion of the appellant’s prior appeal.  Decisions were made by the trial judge, for example in relation to the admission or rejection of R’s evidence, the jury, for example in relation to the truth or otherwise of R’s evidence, and by this Court - as is manifest in the passages quoted from the previous decision - while R’s character and activities were being misrepresented to the knowledge of law enforcement personnel.  These factors support a conclusion that there has been a substantial miscarriage of justice.  It would be contrary to the public interest for the Court cannot implicitly condone such flagrant misconduct by police officers, or permit the administration of criminal justice to be sullied in that manner.^[13]

In my opinion, the appellant’s convictions on the challenged counts should therefore be quashed.  However, there is no basis for verdicts of acquittal.  The possibility of his conviction at a retrial is clearly open.  While it is for the prosecution to decide whether to retry the appellant, there is probably little purpose in doing so.  A reconsideration of the sentences imposed in respect of the offences of which the appellant remains convicted leads me to conclude that those sentences remain appropriate.  I can see no justification for any reduction in sentence by reference to the circumstance that, for present purposes, the appellant’s total criminality is reduced by the exclusion of his convictions on counts 8, 10, 12, 13, 15-19 and 21-24.  His convictions on the remaining counts amply support the sentences imposed for those offences.

In summary, therefore, I would order that the appellant’s convictions on counts 8, 10, 12, 13, 15-19 and 21-24 be quashed and that all other relief sought by the appellant be refused.  The appellant is on bail, and a warrant for his apprehension should issue if he does not surrender himself forthwith on delivery of judgment in these proceedings.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 8 August 1997

I have had the advantage of reading the reasons for judgment of the President and Fryberg J.  The relevant facts are set out at some length in the judgment of Fryberg J.  Subject to what I say below about the admissibility of R’s evidence I agree with his analysis of them and their effect on the result of this appeal.

It is plain from the reasons for judgment of both of their Honours that the convictions on counts 1 to 6 and 27 to 30 were unaffected by any question of R’s credibility or any other possible aspect of the fresh evidence now relied on.  Of the others, I agree with Fryberg J., for the reasons he gives, that counts 7, 9 to 12, 14, 20, 25 and 26 were counts upon which not only was there other evidence which implicated Stead but also in respect of which there was no significant possibility that the jury acting reasonably would have acquitted the appellant if the new evidence had been before them at the trial.

As to the other counts, 8, 13, 15 to 19 and 21 to 24, I would, with some hesitation, agree with Fryberg J. that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant on these counts if the new evidence had been before it at the trial.

As Fryberg J. has mentioned, the appellant submitted in the alternative that, even on those counts where there was evidence, other than that of R, which implicated Stead, R’s evidence should have been excluded by the Court, in the exercise of its discretion in the light of the new evidence.  I do not accept that submission.

The question involves the balancing of two public interests; the first that a guilty person should be convicted and the second that a court should not approve or even encourage unlawful conduct by those whose task it is to enforce the law.  The second of these is the basis of the discretion to exclude evidence illegally obtained or evidence of an offence procured by illegal conduct on the part of law enforcement officers.^[14]

The question in this case is whether "applicable considerations of 'high public policy' relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty".^[15]  That question must be looked at now with the knowledge of what has taken place since Stead's trial and appeal.  Evidence given to the Commission of Inquiry into Operation Trident disclosed that R, contrary to an assumption made by this Court in Stead's appeal,^[16] acted on a number of occasions in deliberate disregard of the law and became dishonestly involved in dealing in stolen cars or parts thereof.

There were also a number of other factors, some of them referred to in this Court's judgment in Stead's appeal,^[17] which were relevant to the admission of R’s evidence.  The extent of Stead's operation disclosed a high degree of criminality;^[18]  he was carrying on a substantial business of stealing cars, stripping or breaking them up and selling rebuilt cars with false identification or parts from stolen cars.  None of these activities was procured by any of the conduct of R or police officers now complained of.  Nor could it be suggested that any of that conduct was encouraged or tolerated by those in higher authority in the police force or by those responsible for the institution of criminal proceedings.^[19]  In those circumstances I could not be satisfied that, if the trial Judge had had the benefit of the information disclosed to the Commission of Inquiry, he would have or should have excluded R’s evidence on any of the counts now challenged.

I would accordingly allow the appeal constituted by the reference only to the extent of quashing the convictions on counts 8, 13, 15 to 19 and 21 to 24.  I agree with what the President has said about sentence.

REASONS FOR JUDGMENT - FRYBERG J

Judgment delivered 8 August 1997

By a petition to the Governor dated 24th August 1995, Noel John Stead prayed "that Your Excellency will exercise the Royal Prerogative of Mercy and pardon the Petitioner in respect of his convictions on each count".  He referred to ss. 18 and 672A of the Criminal Code.^[20]  The Attorney-General has referred "the whole of Mr Stead's case" to this court pursuant to s. 672A.  The petition has reference to thirty convictions^[21] recorded on 12th September 1991 by a District Court, and the consequential sentences.  The hearing proceeded as though the Attorney had referred all thirty cases, as undoubtedly was his intention:  all thirty counts were heard together on the one indictment.  Under s. 672A, the cases must be heard and determined by this court "as in this case of [appeals] by a person convicted."

The principal witness for the prosecution was one R.  According to the prosecution case, Stead approached R in 1989 about disposing of the shell of a stolen vehicle that had been stripped.  R informed the police of the approach.  The outcome was "Operation Trident", an undercover police operation designed to identify the persons involved in large scale car stealing.  The history of the matter is recorded in the judgment of the court in Stead's appeal.^[22]  For present purposes it is sufficient to say that R was presented to the jury as an honest and disinterested witness who was acting as an undercover agent at the request of police and with nothing to gain himself.  As late as June 1992, in dismissing Stead's appeal, this court said:

". . . in no sense could it have been said that the conduct of  . . . the police, or R was in deliberate or reckless disregard of the law . . . . Secondly, R’s evidence here was undoubtedly cogent . . . ."^[23]

By Order in Council dated 24th February 1992, the Honourable WJ Carter QC was appointed under the Commissions of Inquiry Act 1950 to inquire into Operation Trident.  He took evidence from a considerable number of witnesses from April 1992 until October 1993.  Those witnesses included R and police officers named McDermott and Matthews, both of whom had given evidence at Stead's trial.  Apparently, evidence was given at the Inquiry of Stead's involvement with R in the theft of many more cars than were the subject of charges at his trial.  In particular, two car owners who were not witnesses at the trial, Mr Sparnon and Mrs Kelly, gave evidence of dealings which they had with R and (in the case of Mrs Kelly) McDermott after the termination of Operation Trident.  The petitioner identified parts of the evidence of these five witnesses at the Inquiry as fresh evidence demonstrating that his convictions constituted a miscarriage of justice.  He submitted (and the Crown did not contend otherwise) that this evidence was cogent and was not reasonably available to him at the time of his trial.

The fresh evidence relied upon has a noteworthy feature.  As counsel for Stead pointed out, none of it relates directly to the particular counts of which he was convicted.  The only basis relied upon was that it damaged the credit of R and of the "operational police".  It seems to be well established that evidence directed solely to the issue of credibility is governed by the rules relating to fresh evidence,^[24] although there have been suggestions that the rules will be applied only in clear cases.^[25]

The court must allow an appeal against conviction if it is of the opinion that on any ground whatsoever there was a miscarriage of justice.^[26]  As Gibbs CJ expressed it:

"In a case such as the present, when there was no wrong decision of any question of law or other irregularity at the trial, and the verdict of the jury was not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court of Criminal Appeal can allow the appeal only if it considers that a miscarriage of justice has occurred by reason of the fact that the evidence now adduced was not called at the trial. . . . it is important to remember that the fundamental question is whether a miscarriage of justice has occurred . . . ."^[27]

In that case His Honour observed that the authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred in this way.  The first and second of these are not in issue in the present proceedings.  There is no suggestion that the evidence could with reasonable diligence have been produced by Stead at the trial; and there is no challenge to the cogency or credibility of the fresh evidence.  It is the third consideration which matters in the present case.  Expressed in general terms, it is whether, if believed, the fresh evidence might reasonably have led the jury to return a different verdict.  In this regard, while there has been some difference of opinion regarding the precise mode of expression of the test, the better view now seems to be that separately enunciated by Gibbs CJ and by Mason and Deane JJ in Gallagher v. The Queen:

"The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial."^[28]

Two matters are implicit in that formulation of the test.  First, the view that it is necessary for the appellant to show that the fresh evidence was "likely" to have produced a different result is rejected.  Second, it is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a different verdict.^[29]

The same test should be applied in determining a petition referred to the court under s. 672A of the Criminal Code.  That is required by the words of the section and was the approach adopted by the court in R. v. Condren.^[30]

In the present case, it is helpful to categorise the thirty counts.  The first six counts were described as "the Marsden offences", apparently because they were the outcome of a raid on Stead's property at Marsden.  They were all alleged to have been committed before Operation Trident began and related to stolen vehicles found intact or stripped in Stead's possession - in one case, carrying his fingerprints.  The second category comprised the Operation Trident offences.  This category can most helpfully be considered as comprising offences (counts seven to twenty-six inclusive) of unlawful possession of motor vehicles[31]  committed during the course of Operation Trident.  Finally, there were the official corruption offences.  These four arose out of attempts by Stead to bribe police officers after the conclusion of Operation Trident.  It is unnecessary to describe these four further.  At the hearing before us, counsel for Stead, while not abandoning the argument for the convictions to be quashed, made no submissions.  Plainly there was nothing which could have been said in Stead's favour on these counts.  No relief can be granted in respect of them, and I need not consider them further.

I turn now to a consideration of the content of the fresh evidence.  Because there was no issue as to its cogency, the evidence was not called before us.  Rather, we were provided with extracts from the transcript of proceedings of the Commission of Inquiry.  The evidence was identified by reference to the page numbers in the Record before us.

Pages 1608-1617.  By way of background, it seems that after the end of Operation Trident, a number of recovered cars (or shells of cars) were sold by sealed tender or private negotiation by the insurance companies which had become entitled to them.  It seems to have been implied that the prices achieved at these sales were low, i.e., advantageous to the buyers.  In the course of committal proceedings against Stead, the following exchange occurred:

"You said you bought the salvage rights to a vehicle from which you'd replaced an engine?-- That's right.

Any other vehicles out of operation trident that you purchased or acquired the salvage rights to?-- Yes, one or two.

Well, can you be more precise for me?-- I can't remember exactly."

At the Petitioner's trial the following exchange occurred:

"You bought other items from insurance companies, didn't you?-- Yes, I did.

What was the story there?-- Well, when the insurance assessors would come to the police station, I would be there doing statements and as I was a panel beater I asked him if I could put a tender on the vehicles and I subsequently bought some vehicles, yes.

But you had closed down your panel-beating business some time earlier, hadn't you?-- That's right.

So what was the point of buying the vehicles back?-- Well, I could rebuild them.  I still hadn't lost my talent or expertise you could say.

So you were to buy back the shells and the parts from the insurance company, is that correct?-- I bought back parts from the insurance company, yes.

And you rebuilt cars?-- No, I never rebuilt any of them.

So what did you do with the parts?-- I sold them.  The parts that I did buy back, I sold them to a friend of mine, a panel beater.

For a profit, obviously?-- Small profit, not much.

And how many parts did you buy?-- Three to four cars.

So this is really quite an involvement, isn't it?  I mean, getting money off Stead during the course of the operation itself; more money off other people after Stead leaves; money from the police; buying cars that you helped in the stealing and stripping of from the insurance company and sell them on again.  I mean, it is quite a little business, isn't it?-- We are not talking about large amounts of money."

At the Inquiry R admitted that he bought three whole cars and eleven cars in the form of shells and/or parts.  He said he did not know what he could have been thinking of when he gave his earlier answers, but denied deliberately lying.  He admitted that he did not want Stead's barrister to know how many cars he had bought.

Pages 1584-1597.  At the Inquiry, R further admitted that he had made a profit on those transactions exceeding $40,000, a profit which he agreed was "a very good profit".  The contrast with the passage quoted above is obvious.

Counsel for Stead also submitted that the Inquiry revealed that R knew it was important to portray himself at Stead's trial as a person engaged in Operation Trident solely for motives of public concern.  That submission was apparently based upon this question and answer:

"[I suggest] that it was important to you that you portray yourself as one whose only motive was that of a public spirited citizen?--  I believe it was."

As I read that answer in context it meant that R was repeating his assertion that his only motive was that of a public spirited citizen, not agreeing that portraying himself as such was important to him.

Pages 1617-1619.  At Stead's committal proceedings, R answered the question, "Did [any of the other police officers] take any of the cars or obtain any salvage right to any of the cars" with the words, "Not that I can remember."  At the Inquiry, he admitted that he knew that two police officers, Matthews and McDermott had purchased shells from insurance companies.  Asked about his answer at the committal proceedings, he responded, "Well I mightn't have remembered it at that time."  He did not suggest that he did not understand the question to cover such dealings.

Pages 1474-87 (Matthews); pages 1623-4 (R).  Matthews agreed that when the insurance companies were selling the recovered cars (either as rebuilt cars or as shells), he, McDermott and R submitted collusive bids.  He had purchased one vehicle by such a transaction.  The purchase of the vehicle, but not the nature of the transaction, was disclosed at Stead's trial in Matthews' evidence.  R was evasive at the Inquiry on this subject, but admitted putting in bids on a number of vehicles and buying a number knowing that others had put in lower bids.

Pages 1631-5.  At Stead's trial, R said that the money for the purchases of cars came from his bank account.  In the Inquiry he admitted that the money came either from a security box or from cash which he kept on hand in the freezer and in the bottom of a drawer.  It was submitted that this raised an inference that the cash was from illicit sales of Operation Trident car parts by R, but I do not see how the evidence at the pages cited is sufficient to support that inference.

Pages 1592-5.  At the Inquiry R admitted that he did not maintain records of where all the parts from vehicles ended up, and he was unable to explain where they all went.  It was submitted that this fact cast doubt over police supervision of the operation and raised the suggestion that R was dealing in parts himself.  I do not think that that evidence was sufficient to support the latter inference.

Pages 1489 (Pearce); 1490-2 (R); 1493-4 (Bushell).  R denied selling parts to Bushell, but Bushell said he did purchase parts from R.  R claimed that Pearce (a policeman) had sold them to Bushell.  Pearce denied this.  None of the parts were related to the vehicles the subject of the charges against Stead and neither Bushell nor Pearce was a witness at his trial.  It is difficult to see how any of this evidence (apart from R’s denial) could have been admitted at Stead's trial.  No argument on admissibility was advanced to us.

Pages 1673-4.  At the Inquiry R said that another offender, one Cull, said to him on one occasion that at the prices Stead was charging, "You might as well buy them retail".  It was submitted to us that this was consistent with Stead's case that he was acting innocently.  Again, I cannot see how this piece of hearsay could have been admitted at Stead's trial for this purpose.

Pages 1495-1500 (Sparnon) 1676-7 (R); 1544-6 (R).  Mr Sparnon told the Inquiry that a person whose name he could not remember but who claimed to be a panelbeater contacted him after the police had told him that the parts of his car had been found.  He said that this person told him that monies were owing for storage on the car.  R denied telling Mr Sparnon any such thing.  R also denied failing to tell Sparnon of the recovery of parts of his vehicle.  It was submitted that this evidence would have showed that R defrauded Mr Sparnon.  It does not seem to me that the evidence cited to us establishes this fact, and it is difficult to see how Mr Sparnon's evidence could have been led at Stead's trial.

Pages 1503-33 (Kelly); 1552-1583 (R).  A summary of these lengthy passages of evidence by counsel for Stead is set out in the judgment of the President in the paragraph numbered eleven.  I do not think that summary accurately reflects the effect of R’s evidence at the Inquiry, as he denied wrongdoing.  I do not see how Mrs Kelly's evidence would have been admissible on Stead's trial.

Pages 1636-1649.  After the end of Operation Trident, R gave evidence against a man named Sanders and another man.  He testified to an incriminating conversation which was not included in his police statement.  He denied fabricating the conversation.  Again, I do not see how this can assist Stead.

The prosecution case in relation to the Marsden offences (counts one to six) was very strong.  This was true even disregarding the evidence of R.  It is true that he gave evidence which (as counsel for Stead expressed it) "touched upon" the Marsden offences.  However his evidence related to events occurring after the police raid and was of marginal importance.  Stead claimed in evidence that R was the source of the vehicles the subject of the Marsden charges, but it is difficult to see how this allegation advanced his case.  I cannot see how any of the evidence referred to above could possibly have affected the verdict in relation to these charges.  It is fair to say that although counsel did not expressly abandon this category, he did not regard it as constituting his best case.

Of the remaining twenty charges, counsel for Stead submitted that there were thirteen counts on which the only evidence to implicate Stead was that of R.  I do not agree.  There were however, eleven counts^[32] where convictions could not be sustained without R’s evidence.  In my view counts 7 and 10 should be grouped with the remainder of the Trident charges^[33] as counts upon which there was other evidence to implicate Stead.  In the former case, a concealed video camera recorded him stripping a car and apparently wiping his finger prints off parts of it.  This took place in a shed provided to him by R.  In relation to count 10, photographs were taken of the stolen car in the shed by police on the night it was stolen.  Stead's use of the shed was not denied.  This evidence, together with the evidence that Stead was engaged in a large scale car stealing operation, and his lies in relation to the offences, could sustain convictions.

What is the significance of the foregoing evidence in relation to these twenty convictions?  In all probability a considerable portion of it would not have been admissible at Stead's trial.  Other portions of it might, if coupled with additional evidence, have cast some doubt on R’s credibility; but we were not shown what additional evidence existed to complete the points sought to be made.  There is, however, some evidence which does have a significant impact on R’s credibility and which could have been adduced at the trial.  That evidence is the evidence referred to under the first three page-number headings above.  It is important in two or perhaps three respects.  First, it supports an inference that R was prepared to lie on oath at Stead's committal and trial.  Second, it supports a possible inference that R had a significant pecuniary interest in the theft of cars in the course of Operation Trident.  Third, it suggests that R could have been an accomplice^[34] of Stead.  If that were the case, the jury ought to have been given the warning required by s. 632 of the Criminal Code.  This did not occur.

Stead gave evidence at his trial.  He was plainly a poor witness and some of his evidence was fantastic.  There is every likelihood that even with fresh evidence, he would still have been convicted on all counts.  But that is not the test.  The question is whether there is a significant possibility he would have been acquitted.  In my judgment, such a possibility does exist in relation to those counts where, without R’s evidence, a conviction was not open.  I do not think that such a possibility exists in relation to the other counts.  Whatever doubts the fresh evidence might have engendered in the minds of the jury regarding R’s credibility, I see no significant possibility of a different result.

On Stead's behalf, an alternative argument was advanced to us.  It was submitted that there was at least a significant possibility that R’s evidence would have been excluded on all counts in the exercise of the trial judge's discretion.^[35]  This matter, it was submitted, was not concluded by the decision in Stead's original appeal^[36] because that decision assumed that there was no basis for saying that R had acted in deliberate or reckless disregard of the law.  It also assumed that R’s evidence was "undoubtedly cogent".  I agree that the fresh evidence warrants reconsideration of this question.

I do not propose to set out at length the factors involved in that reconsideration.^[37]  They were extensively canvassed in the judgment in the appeal.  I am not satisfied that the fresh evidence demonstrates that R was acting in deliberate or reckless disregard of the law during the course of Operation Trident.  It does demonstrate that he made a financial gain of some significance after the conclusion of the operation, but I am not satisfied that this was a result which he had in mind in the course of the operation.  More evidence would be needed to persuade me of that fact.  It remains true that the offences were serious.  I do not view this as a case of entrapment.  Although the fresh evidence impacts on the cogency of R’s evidence at the trial, there is not sufficient reason to exclude it on the basis submitted.  This submission therefore fails.

Finally, it was submitted that even if only some of the convictions were to be set aside, there should be some reduction in the period of imprisonment imposed on Stead.  For the reasons advanced by the President, I would reject that submission.

In my judgment, the court should order that the convictions on counts 8, 13, 15-19 and 21-24 be quashed.  I agree with the other orders proposed by the President.