Michael Patsalis – Application for enquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2)

1. [1]

   HIS HONOUR: Mr Michael Patsalis (the applicant) has made his second application, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act), for an inquiry into his conviction on 24 September 1999 for the offence of murder. The applicant seeks a referral of his conviction to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW), pursuant to s 79(1)(b) of the Act.

2. [2]

   The applicant, and his co-accused Mr Alexios Spathis, were found guilty of the murder of Klaus Peter Ludwig, following a trial before Kirby J and a jury. On 23 February 2000, his Honour sentenced the applicant to prison for a total term of 21 years and 6 months, with a minimum term of 16 years non-parole period: R v Patsalis & Spathis (No 22) [1999] NSWSC 1320. The applicant may be eligible for parole on 22 May 2015.

History of Proceedings

1. [3]

   The applicant has exhausted all avenues of appellate review. In 2001, the applicant and his co-accused, appealed to the Court of Criminal Appeal against their convictions and sentences. This appeal was dismissed: R v Spathis; R v Patsalis [2001] NSWCCA 476. In 2007, the applicant applied for special leave to appeal to the High Court of Australia. This application was refused: Patsalis v The Queen [2007] HCATrans651.

2. [4]

   Thereafter, the applicant petitioned the Governor of New South Wales, attempting to seek a review of his conviction and referral to the Court of Criminal Appeal, pursuant to s 76 of the Act. While the applicant’s petition to the Governor was pending, presumably because the applicant became dissatisfied with the process, he made a further application to the Supreme Court. It must be noted that very similar material was submitted and considered on each occasion. Both of these applications were unsuccessful: Patsalis, Application for Inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2012] NSWSC 1597.

3. [5]

   On 10 December 2012, the applicant filed a Notice of Intention to appeal to the Court of Appeal the decision of RA Hulme J and was granted leave to file an Amended Summons. On 16 October 2013, the Court of Appeal (Basten JA with whom Bathurst CJ and Beazley P agreed) dismissed his application for leave to appeal as incompetent and dismissed the Amended Summons: Patsalis v Attorney General for NSW [2013] 85 NSWCA 343. Basten JA states at [37], while it is possible for the applicant to make a further application, “if there was no change in the circumstances, it might be unlikely to succeed”.

4. [6]

   In the current application before me (the 2014 application), Mr Patsalis submits that there are thirty seven grounds and seven special factors or special circumstances that have arisen since his 2012 Application that justify the taking of further action: s 79(3)(b) of the Act. In order for such an application to be considered, the applicant must identify relevant material that gives rise to the necessary doubt or question, before an inquiry may be ordered.

5. [7]

   The 2014 application is again opposed by the respondent, the Attorney-General of New South Wales.

6. [8]

   I have considered the application with reference to the extensive and lengthy submissions made on behalf of the applicant and respondent. Further, I have read the applicant’s voluminous, handwritten submissions in reply. I have considered the above material together with the Remarks on Sentence of Kirby J; the Court of Criminal Appeal judgment of Heydon JA, Carruthers J and Smart AJ; the 2012 decision of RA Hulme J in relation to a s 78 Application; and the Court of Appeal judgment of Bathurst CJ, Beazley P and Basten JA, dealing with the purported appeal therefrom.

Background of Case

1. [9]

   A useful summary of the case is contained in the judgment of Heydon JA, Carruthers J and Smart AJ in the Court of Criminal Appeal at [3]. It would be remiss of me not to give a brief summary of the facts. These facts are an extract from the Remarks on Sentence of the trial judge, Kirby J.

2. [10]

   Kirby J described the facts of the case in the following way:

Relevant Principles and Legislation

1. [11]

   Proceedings under this Act are administrative in nature. Applications made under this legislation are designed to be remedial and operate outside the usual course of appellate review in the criminal justice system: Eastman v Director of Public Prosecutions (DPP) (ACT) [2003] HCA 28; (2003) 214 CLR 318; Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251.

2. [12]

   The test to be applied in determining an application is whether it appears there is a doubt or question as to the convicted person’s guilt; as to any mitigating circumstances in the case; or as to any part of the evidence in the case: s 79 (2) of the Act. An application will be ordered by the Court when purported “fresh” or “new” evidence relied upon causes unease or sense of disquiet in allowing the applicant’s conviction or sentence to stand: Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001; Varley v Attorney-General (NSW) (1987) 24 A Crim R 413; R v Rendell (1987) 32 A Crim R 243; Eastman v Director of Public Prosecutions (DPP) (ACT) at [9]-[15]; Re Application of Esposito (Hunt J, 14 July 1988, unreported); Re Application of Visser (Newman J, 27 June 1994, BC9402667); Re Application of Dunn [2005] NSWSC 857.

3. [13]

   As articulated by Johnson J in Application of Peter James Holland, s 78 of the Act is not intended to provide a convicted person with another avenue of appeal after the appeal process has been exhausted. Nor is this legislation an opportunity to run the trial on paper, with the applicant’s primary motive to seek an immediate acquittal: Re Application of Dunn; Re Application of Milat (2005) 157 A Crim R 565.

4. [14]

   Section 79 of the Crimes (Appeal and Review) Act relevantly provides:

5. [15]

   As earlier stated, the Court may refuse to consider or otherwise deal with this application if it were previously dealt with either at trial or on appeal: s 79(3)(a)(i)-(ii) of the Act. In other words, where the matter raised in such an application has been fully dealt with in the proceedings giving rise to the conviction, whether on appeal or otherwise, the Court may refuse to consider or otherwise to deal with the application. It seems to me, most of the matters raised by the applicant in this application have been adequately dealt with at trial and subsequently on appeal.

6. [16]

   However, because some of the applicant’s points are put higher or more clearly in this application than in previous times, I will consider certain aspects of the current application.

The 2012 Application

1. [17]

   The applicant relied upon the following three matters in his 2012 Application. The major issue is that the Crown Prosecutor and police officers in charge of the matter conducted the investigation and trial in a corrupt, unfair and unjust manner. The applicant’s grounds are primarily founded, or are dependent, upon the circumstance that he was unaware that he was a suspect at the time he gave handwritten notes to the police officer, and thus, his notes were improperly obtained, and should be inadmissible as evidence as he had not been informed of his right to silence.

2. [18]

   The three grounds are summarised in the following way:

   1. (1)

      The Crown Prosecutor and police officers in charge of the case deliberately concealed and fabricated a number of documents, including Annexure A, which prevented the applicant relying upon them in the proceedings. This led to evidence of admissions being wrongly admitted;

   2. (2)

      New evidence concerning his defence counsel, Crown Prosecutor and certain police officers subsequent misconduct, which he alleges, impugned the integrity of the applicant’s trial;

   3. (3)

      Material that has been raised in his trial and appeal, such as the victim’s letter, which was supposed to be opened if he did not return from his meeting with the applicant and his co-accused.

3. [19]

   In the reasons for judgment of the Court, RA Hulme J concludes that:

4. [20]

   I agree with RA Hulme J. Having read the material, I have no doubt as to the guilt of the applicant. Nor am I in any doubt as to any mitigating circumstance or evidence. Further, a large number of issues relied upon by the applicant involve the re-agitation of matters that were raised at his trial or subsequent appeals.

The 2014 Application

1. [21]

   The applicant’s main submission is that the Crown Prosecutor and police officers in charge of the matter acted corruptly and deliberately supressed, concealed and fabricated evidence during his trial before Kirby J. This allegation of complicity is based upon the applicant’s impression that the police officers in charge of his case strongly believed in the applicant’s guilt.

2. [22]

   The Court of Appeal summarised the basis of the applicant’s main argument in the following way:

3. [23]

   The evidence on which the applicant’s submissions are based was about the deliberate concealment, suppression, and subsequent “cover-up” of Annexure A. Annexure A is a printout of a computer record entitled NSW Police Service “Enquiries Monitoring Report” for the period of 12 April 1996 and 13 April 1996. This document contains a Road and Traffic Authority computer search made by police with respect to a car with the registration POZ-344 for the period of 12 and 13 April 1996. This car was registered to the applicant’s co-accused to the offence, and was one of the two cars driven to Terry Hills to dispose of the victim’s body.

4. [24]

   The applicant relies heavily on this part of the evidence being excluded from his trial. The applicant argues that Annexure A was not disclosed by the Crown Prosecutor and Detectives Jacob, Jubelin and Hall during the trial and the late emergence of this evidence on the 48th day of his trial hurt his case.

5. [25]

   Furthermore, the applicant asserts that the document was only produced after it was created and/or fabricated by the above detectives by inducing or forcing the Road and Traffic Authority (RTA) employees to falsify the registration record. The applicant’s submission continues by identifying the criminal offences that the Crown Prosecutor and police officers have consequently committed. Such a conspiracy is unlikely.

6. [26]

   The Court of Criminal Appeal (Heydon JA with whom Carruthers J and Smart AJ agreed) considered the possible outcome had the applicant obtained the police records (Exhibit G):

7. [27]

   Moreover, the applicant asserts that numerous police and civilian witnesses committed perjury while giving evidence. For example, on the night of 12 April 1999, Mr and Mrs Jeffries witnessed a car, with the registration POZ-344. Subsequently, Mr Jeffries telephoned Mona Vale police station and reported the vehicle’s registration number to the police officer on duty at the time, Ms Leo. Mr Patsalis arrived at Bankstown police station later that night, and gave his handwritten notes to the officer.

8. [28]

   Mr Patsalis alleges that the police officers could only have discovered his co-accused’s vehicle registration number from his notes and conversations with police. Therefore, the applicant argues that he was a suspect in the murder investigation at that point in time and was not given the requisite warning by police.

9. [29]

   The applicant relies upon the judgment of RA Hulme J and the subsequent appeal to the Court of Appeal as special facts and circumstances that have arisen since his first application. This primarily concerns the following allegations: RA Hulme J omitted to fulfil his legal obligation and duty as a judge by failing to consider the “substantial quantity and significant part” of the application; made findings of fact that were wrong; gave improper and inadequate reasons; and failed to address the probative value of Annexure A’s existence. It is also suggested, by the applicant, that the Court of Appeal made errors of law based on findings of fact and conclusions of RA Hulme J. Further, the Court of Appeal erred by finding that the applicant did not identify an appropriate legal error, dismissing his application as incompetent.

10. [30]

    The admissibility of the handwritten notes (Exhibit G) had been the subject of a six-day voir dire and two interlocutory rulings in the applicant’s initial trial: R v Patsalis & Spathis (No 3) [1999] NSWSC 718 and R v Patsalis & Spathis (No 4) [1999] NSWSC 715; the Court of Appeal judgment; and the decision relating to the 2012 s 78 Application.

11. [31]

    In relation to Exhibit G, RA Hulme J considered the findings of the six-day voir dire and on appeal, taking into account s 138 and s 139 of the Evidence Act 1995 and concluded:

12. [32]

    The applicant challenged the determination of RA Hulme J in the Court of Appeal in which judgment Basten JA (with whom Bathurst CJ and Beazley P agreed) said:

13. [33]

    The applicant’s submission in this application has been sufficiently dealt with in earlier applications, proceedings and appeals.

14. [34]

    The applicant raises, again in this application, the “precaution” letter to Mr Rolfs. I will not go into this submission any further. The submission has been fully dealt with at trial, on appeal, and in his application to RA Hulme J.

15. [35]

    Lastly, the applicant submits in this application that at the time of preparing his petition, s 78 application and Court of Appeal submissions, he was suffering from a mental illness, inter alia, schizophrenia. His mental illness has little or no relevance to these proceedings. It is not suggested that he was not fit to be tried. Nor is it suggested that a defence of mental illness was open. Rather, the submission in this respect seeks to qualify his ability during previous post-trial and post-appeal challenges to the verdict. The current application is not allegedly affected by the applicant’s alleged previous mental illness. Yet the submissions are almost identical.

Conclusion

1. [36]

   In all of those circumstances stated above, the applicant does not raise the necessary sense of unease or disquiet required for an inquiry to be ordered and I have no doubt or question as to the applicant’s guilt, as to any mitigating circumstance in the case, or as to any part of the evidence in the case.

2. [37]

   Further, no special facts or circumstances justifying the further inquiry sought have been established.

3. [38]

   The application is refused.