De Souza, R. v

Factual and Procedural Background

The opinion was delivered by Judge [Last Name]. In September 1972 the Appellant was tried at The Court on charges relating to an alleged attempt to rob a passenger on a transit train. The Appellant was convicted of attempted robbery and sentenced to six months' detention. In March 1973 the Appellant's application for leave to appeal against conviction was refused by a single judge and was not renewed.

The case returned to the court on a Reference by Commission A (the Criminal Cases Review Commission). The Reference operates as an appeal against conviction. The Appellant had been acting in person in the proceedings and, shortly before the hearing, made two applications for an adjournment which were refused. The Appellant had also suggested (without clarity in the filed materials) that the court lacked jurisdiction and that the appeal should be adjourned "pending rectification." The court concluded that those contentions were mistaken or unsupported and that there was no matter requiring rectification before the appeal could be heard.

At the substantive trial the Appellant (then aged 17) and a number of co-accused were travelling together on a transit train after boarding at Transit Station A. A member of Police Force A (referred to below as Officer A) gave evidence that he was on that train as a member of an "anti-mugging" squad and that the group had assaulted and attempted to rob him. The defendants denied the prosecution account and alleged they had been set up by police, subjected to violence, and coerced into making statements. One defendant at trial was acquitted on grounds of illiteracy preventing him from understanding a statement he had signed.

The anti-mugging squad was disbanded in 1973 after concerns were expressed about the conduct of Officer A and other officers in that team. Officer A was later moved to a senior role investigating offences at Depot A. In May 1978 Officer A was arrested for conspiracy to steal; in January 1980 Officer A pleaded guilty to that offence and was sentenced to seven years' imprisonment. That conspiracy, which involved two other officers and two civilians, concerned the theft of parcels from Depot A. Officer A died in custody in December 1982.

Many years elapsed before cases dependent on Officer A's evidence were reviewed. Commission A subsequently investigated and referred a number of cases to this court; earlier referrals had led to successful appeals (one in 2018 and others thereafter). Commission A referred the Appellant's case on the basis of fresh evidence indicating that Officer A's evidence at trial was unreliable. The grounds advanced by Commission A operate as the Appellant's grounds of appeal.

Legal Issues Presented

1. Whether the court could properly proceed to hear and determine the Appellant's Reference (appeal) in the Appellant's absence.
2. Whether the fresh evidence regarding the conduct and conviction of Officer A is admissible under section 23 of the Criminal Appeal Act 1968 and, if admitted, whether it renders the Appellant's conviction unsafe.
3. Whether the Reference by Commission A takes effect as an appeal against conviction and provides the court with jurisdiction to determine the appeal on the basis of those grounds.

Arguments of the Parties

Appellant's Arguments

• The Appellant acted in person. He indicated there had been earlier uncertainty about whether a firm of solicitors represented him and complained that documents had been sent to those solicitors rather than to him personally.
• Shortly before the hearing the Appellant applied on two occasions for an adjournment. He suggested that the court lacked jurisdiction to hear the appeal and that the matter should be adjourned "pending rectification." The opinion records that these reasons did not emerge clearly from the documents provided by the Appellant.
• The Appellant did not notify abandonment of the appeal and did not attend the hearing, but he had not communicated with the court in the hours immediately before the hearing.

Respondent's Arguments

• The Respondent did not oppose the appeal. Attorney Robertson accepted that the Appellant's case is materially indistinguishable from the cases of the other co-accused whose convictions have previously been quashed following referrals by Commission A.
• Attorney Robertson accepted that, as in those earlier cases, the fresh evidence demonstrating the dishonesty of the police officers involved is admissible under section 23 of the Criminal Appeal Act 1968 and renders the Appellant's conviction unsafe.
• Attorney Robertson indicated that, if the court quashed the conviction, there would be no application for a retrial.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court addressed the threshold procedural matter of hearing the appeal in the Appellant's absence. Although the Appellant was entitled to be present, the court concluded it had the power to hear the appeal in his absence. The court explained that the appeal was not opposed by the Respondent and that it was plainly in the interests of justice, and in the interests of the Appellant, for the matter to be considered as soon as possible. The court observed that the Appellant knew of the hearing date (as evidenced by his applications for adjournment) and had not given notice of abandonment. The reasons for the Appellant's applications for adjournment were not set out with sufficient clarity in the materials. The court therefore proceeded but recorded the conventional practice that, after judgment, a letter would be sent to the absent Appellant inviting any matter he wished to raise which he suggests would have materially affected the outcome; the court would consider any such communication and arrange a further hearing if required.

On the substantive appeal the court accepted the factual and evidential basis for the Reference by Commission A. Commission A had identified fresh evidence revealing the unreliability of Officer A's trial evidence. The court recounted the chronology: the anti-mugging squad was disbanded amid concerns about conduct; Officer A later pleaded guilty to conspiracy to steal in relation to thefts from Depot A; and subsequent investigations and referrals by Commission A produced an accumulating body of evidence undermining Officer A's integrity.

The Respondent conceded that this fresh evidence was admissible under section 23 of the Criminal Appeal Act 1968 and that it rendered the Appellant's conviction unsafe. The court agreed. It emphasised that Officer A's evidence had been central to the prosecution case at trial and that the fresh evidence showed that evidence to be wholly unreliable. The fresh evidence also provided positive support for the accounts given by the Appellant and his co-accused.

Having formally received the fresh evidence, and in light of the Respondent's concessions and the court's own assessment, the court concluded that the Appellant's convictions were unsafe. The court noted that the initial jury and the single judge who refused leave to appeal in 1973 could not have been aware at the time of the corruption and dishonesty which emerged many years later, and expressed regret for the long injustice suffered by the Appellant. The court recorded Attorney Robertson's indication that there would be no application for a retrial if the conviction were quashed.

Holding and Implications

APPEAL ALLOWED; CONVICTION QUASHED

Holding: The court allowed the Appellant's appeal, formally received the fresh evidence relied upon by Commission A, and quashed the Appellant's conviction on the basis that the conviction was unsafe.

Implications and practical effects:

• The Appellant's conviction from 1972 has been quashed. That is the direct and immediate effect of the court's decision.
• The Respondent has indicated there will be no application for a retrial following quashing of the conviction.
• The court will instruct the Registrar to write to the Appellant informing him of the outcome and inviting any representations he wishes to make that he would have raised had he been present. Any such submissions will be considered and, if necessary, a further hearing will be arranged.
• The opinion does not purport to create or announce a new legal precedent; its effect is to redress the Appellant's conviction on the facts and evidence now available.

Note: This summary is strictly confined to the content of the provided opinion and has been anonymised to replace personally identifying information with consistent generic placeholders.