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Petition to Governor for Geoffrey Edelsten Pardon Proves Wrongful Conviction

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PDF:  Petition to Governor for Geoffrey Edelsten Pardon Proves Wrongful Conviction

Petition to the Governor for the exercise of the pardoning power pursuant to s76 Crimes (Appeal and Review) Act 2001 in respect of the convictions of Geoffrey Walter Edelsten

  1. Introduction

1.1. Geoffrey Walter Edelsten, (the Petitioner) petitions the Governor for the exercise of the pardoning power pursuant to s76 of the Crimes (Appeals and Review) Act 2001 or alternatively to review the convictions entered against him in respect of two charges on 27 July 1990, by a jury, in a Trial presided over by Sharpe J:

  1. That between 1 January 1984 and 30 April 1994 he solicited Christopher Dale Flannery to assault Stephen William Evans.
  1. That on 31 January 1994 he perverted the course of justice in that he improperly obtained an adjournment of the trial of Flannery that was fixed for that day in the Supreme Court by certifying that Flannery was unfit to stand his trial on that day, and the said Geoffrey Walter Edelsten having rendered medical treatment to the said Christopher Dale Flannery with the intention that the said Christopher Dale Flannery avoid his said trial.

1.2. The Petitioner was sentenced to and has served a period of six months imprisonment for each conviction solicit to assault (charge 1) and Pervert the course of justice (charge 2). The sentences were served cumulatively, that is the Petitioner served a term of imprisonment for 12 months.

1.3. The Petitioner has run an appeal to completion (R v Edelsten (1990) 21 NSWLR 542) and is not entitled to further appeal (Grierson v The King (1938) 60 CLR 431). The appeal did not proceed on the basis that the verdict and convictions were unsafe or unsatisfactory.

1.4. In summary, the petitioner relies on the following grounds:

  1. The Trial Judge misdirected the jury on the acceptance of competing theories. That is, the Trial Judge failed to direct the jury that if there was any rational hypothesis consistent with innocence the jury ought to acquit the accused or otherwise provide a direction in accordance with Knight and/or Peacock;
  2. The Trial Judge misdirected the jury as to the use of circumstantial evidence in that he failed to direct that the jury could only convict if the only rational inference of the telephone conversations of 3 March 1984 and 15 April 1984 was consistent with the guilt of the Petitioner; 
  3. The Trial Judge misdirected the jury that the Petitioner had more than a casual acquaintance with former Detective Sergeant Duff, such direction was not supported by the evidence;
  4. The Trial Judge misdirected the jury in that he made prejudicial remarks to the jury about the “friendship” between Detective Sergeant Duff and the Petitioner to the effect that “We are not to know what the basis of that friendship was. We do not know why people in our community sometimes try to cultivate senior police officers, but it happens” prior to repeating the Crown’s submissions that “just how that sort of association can sometimes lead to criminal activity,”
  5. The Trial Judge misdirected the jury to the effect that the jury should convict on the count of soliciting assault if the Petitioner’s words of “get him off my bacK’ included persuasion by means other than assault. The offence required an intentional persuasion to commit the assault i.e. the assault must be intended. To leave what is an essential element of the offence is a grave misdirection;
  6. There is additional and fresh evidence that, if it were received by the jury, properly directed, would have provided a rational hypothesis consistent with the innocence of the Petitioner that the jury could not exclude beyond a reasonable doubt. The evidence is provided from the following deponents:

i. Kathleen Flannery;

ii. Dr Geoffrey Scarlett;

iii. Dennis John Keane;

iv. Graham Rogers;

V. Ian vandlmeer;

vi. Mick O’Brien;

vii. Roger Hodge;

viii. Professor Crank;

ix. Caroline Alice Hall.

1.5. An examination of all the above grounds indicates that the convictions were unsafe or unsatisfactory leading to a miscarriage of justice at worst and, at best, a sense of disquiet or unease in allowing the convictions to remain.

1. 6. The petition has the support of the advices several members of the inner bar with significant repute namely, former NSW Supreme Court Justice the Hon. Mr Greg James AM QC, former Queensland Supreme Court Justice, the late, Mr Peter Connolly QC, Mr Patrick Tehan QC, Mr BT Stratton QC and Mr Maurice Neil QC.

  1. Crimes (Appeals and Review) Act 2001

2.1. Under s76 of the Crimes (Appeals and Review) Act 2001 a petition may be made to the Governor for the exercise of the pardoning power or for a review of a conviction. s77 contains the relevant considerations for a petition under s76;

77 Consideration of petitions

( 1) After the consideration of a petition:

         (a) the Governor may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

         (b) the Minister may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912, or

         (c) the Minister may request the Court of Criminal Appeal to give an opinion on any point arising in the case.

(2) Action under subsection

         (a) may only be taken if it appears that 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.

(3) The Governor or the Minister may refuse to consider or otherwise deal with a petition. Without limiting the foregoing, the Governor or the Minister may refuse to consider or otherwise deal with a petition if:

(a) it appears that the matter:

         (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

        (ii) has previously been dealt with under this Part or under the previous review provisions, or

       (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

      (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b) the Governor or the Minister is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A) The Governor or the Minister may defer consideration of a petition if:

          (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

         (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

        (c) the petition fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(4) The Minister must cause a report to be given to the registrar of the Criminal Division of the Supreme Court as to any action taken by the Governor or the Minister under this section (including a refusal to consider or otherwise deal with a petition).

(5) A petition (however described) that does not expressly seek a review of a conviction or sentence or the exercise of the Governor’s pardoning power may be dealt with as if it did if the Minister is of the opinion that it should be so dealt with

2.2. The relevant test for whether there is “a doubt or question” as to the Petitioner’s guilt is set out in Varley v Attorney-General in and for the State of New South Wales ( 1987) 8 NSWLR 30 ( approved in Re Rendell {1987) 32 A Crim R 243} as causing a Judge a sense of “unease” or a “sense of disquiet” in allowing a conviction to stand. This is stated more fully by Hope JA (with whom Samuels JA agreed):

       “To initiate an inquiry in the present case, a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be we/I-founded; that is a matter for the enquiry. To adopt the language of Nagle CJ at CL in Varley v Attorney-General in and for the State of New South Wales (at 12) “The section envisages the placing of any material before a Judge of the Supreme Court (Supreme Court Act 1970, s40) … or, in a petition, before the Governor … which might cause him, for want of a better word ‘unease’ in allowing a conviction to stand.” The court or Governor will then, upon this material, decide (in the case of the Governor presumably upon advice) whether the discretion to direct and inquiry which the section confers should be exercised or not.

If an inquiry is directed, the question for consideration and report by the justice is, in the words of Lee J in his report on the conviction of Alexander McLeod Lindsay (at 9), “whether the doubt predicated is well founded or not. “

2.3. This also informs the test for how the evidence is to be considered. A stringent application of the rules of evidence is not required and should not be pursued. It is submitted that the petition should be considered on the view of the evidence most favourable to the 3 Petitioner.

2.4. The test is not as stringent as a the requirement in the proviso for an appeal under s6(1) of the Criminal Appeal Act 1912 as it does not require a substantial miscarriage of justice (Application of Robert Minniti [2011] NSWSC 835 at [54]). However, it is submitted that this Petition, taken as a whole, demonstrates that a substantial miscarriage of justice has in fact occurred.

2.5. A ‘miscarriage of justice’ is said to occur according to Barwick CJ (with whom McTeiman, Stephen and Jacobs JJ agreed) in Ratten v the Queen (1974) 131 CLR 501 at 516 where: ” … the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor.”

2.6. The more recent decision of Eastman v the Queen (2003) 214 CLR 318 has indicated in relation to a predecessor section that the equivalent s76 process can be used to refer to doubt underlying a finding of guilt arising from procedural issues as well as from the evidence itself. The rationale behind this decision is evidence in the statement of Heydon J in Eastman at 363:

         “To put it another way a s475{1) enquiry could have been ordered where there was a question or doubt about an element in procedure at the trial which the law insists on as a means of ensuring that convictions are soundly based in substance. If the function of a particular element in criminal procedure is to ensure that a conviction is soundly based, in the sense that the accused in fact carried out the conduct charged, a doubt or question as to whether that element operated properly is capable of being a doubt or question as to guilt in fact… the question arises: “How can we be sure that the accused was guilty on the basis of the jury finding of guilt if there is a doubt of question as to whether that element, seen as important to efficient jury fact finding, operated properly in this case?”

2.7. The conviction has been the subject of a previous inquiry by Findlay J under a predecessor section. However, the previous inquiry did not consider issues of misdirection that are elucidated in the present petition, Findlay J misapplied the test relating to the further evidence in that application in particular in considering admissibility of evidence and, finally, there is further fresh evidence in this petition that was not considered previously.

  1. The Crown Case

3.1. The crown case can be extracted from the summary of facts provided in the Court of Appeal judgment of R v Edelsten (1990) 21 NSWLR 542 at 545-546:

The appellant was a medical practitioner whose activities included the conduct of a clinic for removal of tattoos by laser. He, allegedly, became the victim of a vicious and sustained nuisance campaign which included abusive telephone calls, the delivery of unsolicited goods, the attendance of unwanted tradesmen and seNicemen and the publication of advertisements that he was ceasing to practice. The campaign, it was alleged, culminated in a death threat. The appellant suspected that Mr Evans was behind the campaign against him and reported that suspicion to the police. The police, at that stage, according to the appellant, were unconvinced as to Evans’ involvement. The Crown case, the subject of the first count in the indictment, was that the appellant contacted Flannery, a former patient, and solicited him to assault Evans to persuade him to discontinue the nuisance campaign. In his statement to the jury the appellant acknowledged that he did speak to Flannery about the nuisance campaign but claimed that all that he asked Flannery to do was to find out who indeed it was who was behind the campaign so that he, the appellant, could take proper steps to have it stopped. The appellant stated to the jury that when he approached Flannery he was aware that Flannery was a professional killer and standover man. He had learned that, he said, from Flannery himself, when Flannery had thanked him for furnishing a medical certificate which resulted in the adjournment of the trial which Flannery faced on a murder charge. But, the appellant stated, all that he wanted Flannery to do was to use his contacts to verify who it was who was behind the nuisance campaign.

Critical to the Crown case in respect of the first count. the charge that the appellant solicited Flannery to assault Evans. were tapes which were received in evidence, despite objection. of two telephone conversations which the appellant had over his car telephone. The first took place an 3 March 1984. In that conversation the appellant said that he had telephone a “hit man” whom he recently had “helped out” and that he had said to the hit man “I want this guy and found and got off my back”. The second conversation took place on 15 April 1984. In that conversation the appellant said that, at the request of certain police, he had helped a professional killer who would ”bash people for $10,000″. He continued:

“He’s got a chance of beating the rap. But if he had faced a particular judge … the judge has got a reputation of er, er, accepting evidence blindly and putting people away – and he felt that he’s got a better chance if he got in front of another judge. So when he knew he had to go in front of this particular judge he had to be out of action for a few days, to miss that judge, to get into another judge’s list. And as it happened, they got it adJourned for a year.

The relevance of the telephone conversations to the first count, namely that the appellant solicited Flannery to assault Evans, is manifest. But the telephone conversations were of critical importance also to the charge of perversion of the course of justice. The evidence as to the manner of the obtaining of the adjournment was as follows. The trial was fixed for Tuesday, 31 January 1984. On the Thursday prior thereto, namely on 26 January 1984, the appellant gave laser treatment to Flannery for tattoo removal. He followed that treatment up with further

treatment by laser on Saturday, 28 January 1984. Later on the same day he admitted Flannery to a private hospital. On the next day, the Sunday, he examined Flannery at that hospital and on the Tuesday morning, the day of the trial, he gave a medical certificate at the request of Flannery’s solicitor. The certificate was in the following terms:

“To Whom It May Concern

Re: Christopher Flannery

The above consulted me several weeks ago re removal of tattoos. On Thursday 26/1/84 he had his first treatment with the laser in my Georges Hall surgery, and on Saturday 28 he had a further treatment to completely treat one tattoo on his forearm.

On Saturday evening I received a call at home from the receptionist at my after hours surgery at Liverpool. She stated that Mrs Flannery had rung saying that Mr Flannery was in considerable pain and \ vomiting and shivering and shaking. I considered that he was probably suffering from septicaemia and admitted him to Bigg Street Hospital. He was given pethidine for pain and maxalon for vomiting and commenced on antibiotic therapy.

When I reviewed him on Sunday morning I commenced him on intravenous antibiotics and he has been maintained on them until the present.

His hand and forearm are grossly swollen and he remains in a good deal of pain. I consider that he will be in hospital for at least the next week and will require a convalescent period of 1-2 weeks thereafter before he would be fit to undertake daily court appearances.”

The certificate was placed before the trial judge on that day and the trial was adjourned. Flannery was discharged from the hospital on Thursday, 2 February 1984 – that is two days after the certificate was given.

3.2. Much of the hearing itself concerned a fair deal of testimony from various medical experts concerning whether Flannery, in fact, suffered from Septicaemia or not. As noted elsewhere, the crown case was that it did not matter whether Flannery suffered from the symptoms alleged, but rather that the treatment was rendered for the purposes of avoiding the 31 January 1984 hearing date.

4. Misdirection as to Circumstantial Evidence and the use of

Competing Theories

4.1. The jury would be directed to acquit the Petitioner on charge 2 if the Crown case was based solely on the evidence concerning hospitalisation.

4.2. However, the Crown case on that charge relied on alleged admissions in the telephone conversations between the Petitioner and then receptionist and fiance on 3 March 1984 and 15 April 2984 respectively. An unrelated third party, perhaps aptly named Beaver, used a scanner to listen to various mobile telephone conversations using electronic equipment and recorded these conversations. The admissibility of telephone recordings was strongly contested at the hearing and on appeal. Ultimately, the issue was determined against the Petitioner and the tapes were admitted over objection and that decision was confirmed on appeal.

4.3. Similarly, and perhaps more strongly, there was no crown case on solicit to assault without the telephone conversations.

4.4. It is worth reviewing the text of the telephone conversations. The first conversation occurred on 3 March 1984 between the petitioner and his then receptionist Ms Kristine Bissaker:

R: What else are they what are they going to do about it, nothing?

E: Oh well I don’t know, I’ve just had some homicide squad ah squad detectives two pretty heavy guys that ah both have killed men in the last few weeks ah and the police you know that hostage drama at

R: Yeah

E: Home Homebush?

R: Yeah.

E: That guy that killed him, he’s a patient of mine a Georges Hall. Ah, oh, quite a few of them actually and ah, I rang a guy who I helped out recently, who’s a hit-man and I said I want this guy found and got off my back and ah, he said, oh, ah, if he could find him he would, but he said I’ll get in touch with these two detectives who are friends, ah, in the homicide squad and they both happen to be patients of mine at George’s Hall and ah, I do their pilot’s medicals. And ah, they both came over to see me and reassured me that ah, they’ll get the guy before he does anything

4.5. The Crown submitted that this conversation supported the inference that the Petitioner said to Flannery words to the effect of ” … and got off my back” was a request by the Petitioner for Flannery to assault Mr Evans.

4.6. In this particular conversation only 6 seconds of a 10 minute and 7 second conversation that was intercepted was recorded by Mr Beaver.

4.7. The Petitioner in explaining this conversation noted (at p199 of the

transcript):

” … all I was trying to do was to make my fiance, Leanne, and my dear friend Kristine Bissaker feel better when they were concerned for my welfare and safety.

I never asked Flannery to harm Evans nor did I seek to persuade him to harm Evans.”

4.8. The Petitioner continued on at page 209:

“As you’ve been told by the Crown, the harassment by a person I later knew was Steven Evans, commenced on 1 March 1984. It is important for you to know that Evans was never a patient of mine, personally. He never attended me. Certainly he had attended a clinic that I had an involvement with, at Bankstown, but he was never a personal patient of mine. The first time I ever saw him was later in 1984 when I gave evidence for the Crown at his committal proceedings where he was committed for trial on charges of demanding money with menaces from me.

When this harassment started on 1 March, I reported it immediately to the police. As I told Kristine Bissaker in my conversation of 3 March the police told me that they were unsure who it was. They told me it couldn’t be Evans because he was overseas. It was only then that I remembered the patient that I had treated at Bigge Street, namely Flannery and the suggestion that he may have had some connection with the underworld and so, I rang him. I asked him if he could find out who it was that was harassing me at the time. I used an expression, ‘get him off my back’, the same as I think we all do when we want an annoyance to stop, to get him off me, that was the only way. If I could find out who was behind the harassment, then I could get the police to stop it.

I did not ask him to do anything else except to find out who it was. I specifically never asked him to harm Evans as it is obvious, on the tape recording, as you will hear. that I did not know it was Evans.

Flannery told me that he didn’t know anything but that he would get in touch with the police. As I have mentioned in sworn evidence that is before you that the police he mentioned were McNamara and Duff If may well be that McNamara’s name was parroted back to me and I would have said that I was speaking to McNamara at Castle Hill police station when I reported the harassment. The evidence reads that the mention of McNamara’s name may have been unsolicited but on reflection this may be incorrect.

I was astonished that the revelation of the connection between Flannery and the police, that they would have such a relationship that would enable him to just pick up a phone and ring the police. I told him Detective Sergeant Duff I already knew, he was a patient at Georges Hall. As I said ‘don’t you bother calling Duff, I will ring him directly’.

I had absolutely no idea of the relationship between Flannery and Duff prior to 3 March. I never spoke to Flannery after the phone call on 3 March and the last time I saw him, as I just mentioned, was on 4 February, when he attended the Georges Hall surgery.

I was still stunned at hearing about the relationship between Flannery and Duff but I rang Duff, who was at Wollongong. He then said to me that he would catch up with me later and it turned out that he did come to the Georges Hall surgery later in that day on Saturday, 3 March. When he came he told me that Flannery had rung him, as well as me. He then said to me that he was pretty glad that I had given Flannery the certificate and he felt that Flannery was not guilty of the charges and he wasn’t looking forward to giving evidence against Flannery at the adjourned trial.

At that time I was absolutely dumbfounded and shocked at the relationship between Duff and Flannery. Flannery had already told me, on 31 January, well before the harassment started. that he was glad his trial had been adjourned because he didn’t want to face a particular judge who, in his words, would accept evidence blindly and had a reputation of putting people away. He said he regarded my treatment of him and the certificate as a favour.”

4.9. And at page 212, the Petitioner continued on regarding the above

conversation:

“On the illegally taped conversations with Kristine Bissaker I was big-noting myself. When I told her that there two police officers that came and seen me, in fact there was only one. But once I started using the plurals in this conversation I continued with it and Kristine was a close friend, she was worried about me and I was just trying to lesson her worry by making it sound that there were more substantial defences on me than there were at the time.

I exaggerated when I said ‘quite a few of them are patients of mine’ referring to detectives when, in fact, there were only two and the two that I did pilot medicals for. I exaggerated again when I said they had both killed men recently when, in fact, it was only one that had.

When I told Kristine that I’d helped Flannery, that was true. I did. I helped him with his tattoo removal, helped him get better in hospital, helped him with his certificate, which was justified, because he was sick. All of this of course was long before the harassment with Steven Evans’ started.

The actual words on the tape with Kristine Bissaker surmises certain things that transpired between Flannery and myself. They were not the actual words used. My overall aim was to get Flannery to find out who it was harassing me. I then wanted the police to stop the harassment, to get him off my back.

It is quite clear on the tape that at the time I spoke to Flannery, on 3 March, I didn’t know who it was. All I told the Tribunal in relation to these matters is true and correct. I was only asking Flannery’s help in identifying who it was who was trying to harass me. I didn’t actually want him to find the person, just to identify him.

I also, when speaking to Kristine Bissaker in this casual conversation, told her Flannery’s response but I concentrated on the part that had got me concerned, was the relationship between Flannery and the police, that he had suggested that he would call the police. The bit about if he could find him he would was my shorthand for saying if he could find out who it was, who was harassing me he would.,,

4.10. At first blush. the difficulty with the petitioner’s explanation is the evidence that as early as 1981 the Petitioner had provided a statement in respect of harassment received by Evans. That was relied upon by the Crown to suggest that the Petitioner knew who was harassing Mr Edelsten and it did not commence as at 1 March 1984.

4.11. Of course it is corre . o say that the first time the Petitioner was harassed was pri to 1 March 1984. however, the harassment re- commenced on at day with, inter alia, receipt of some pornographic material and most alarmingly a telephone death threat. Moreover, while there may have been a history of bizarre harassment including the sending of unsolicited pornographic material and the like, the telephone death threat is a very different circumstance. It is plausible that the Petitioner did not know who was the man on the other end of the phone threatening the Petitioner’s life. It is also plausible, and even understandable that someone who had their life threatened may wish to confirm who was making such threats in order to prevent further threats. The telephone conversation with Flannery as recounted by the Petitioner is therefore rational and ought to have been accepted by the jury.

4.12. The inference that the Petitioner did not know who was behind the threat or hts location and that the Petitioner was referred to the police by Flannery is amplified by the contemporaneous record of the actual threat itself to the Police by the Petitioner. According to the statement of the Petitioner to the Police, the threat went as follows:

“My name is Graves, I am from the Police Public Relations, No. 20966 ext 31, get a pen, I have an important message for you. In relation to Steven Evans. he wishes to have the legal matter settled out of Court. You are to send compensation for payment of damages, sustained to him at Bankstown to Box 76, Redfern Post Office. If it is not received in 30 days your business will be ruined and you will be killed and I will repeat, you will die.”

4.13. The statement referred in the second paragraph to an investigation into the abovementioned post office box number as being registered to Steven Evans. and continues on in the third paragraph to indicate that the street address for Evans. That street address was the residential address for Evans and in fact contained a further threat to the Petitioner being a .38 calibre bullet with the word “Edelsten” taped on the case.

4.14. It is clear that there needed to be some investigations into who exactly was responsible for the threats. Whilst Evans is a candidate, it was not clear where he was located or if it was him or someone else {possibly on his behalf) that conducted the threat It was not clear if the Petitioner would be able to have the harassment stopped. The logical way to do this would be to have the police arrest Mr Evans for his criminal conduct in harassing the Petitioner. Again, this in fact occurred. (This is also discussed below in the “fresh evidence” section of the Petition).

4.15. When one considers the text of the 3 March 1984 conversation there are several meanings that may be inferred. Firstly, the words al said I want this guy found and got off my back” could mean that both requests were made in the same sentence. Alternatively, the sentence is a summary of that conversation wherein the Petitioner asks for assistance in finding his harasser in order to get the harasser off his back. Flannery’s alleged response clarifies the position. The fact that Flannery referred Dr Edelsten to the police is inconsistent with his known profession of being a contract hitman and contract basher of people (this reputation was so much that Flannery was also known by the moniker “Mr.Rent-a-kill”). It is submitted that it is unlikely that a man of Flannery’s background would have responded to a request for him to assault someone, which would entail Flannery being paid, with a response that Flannery would get in contact with police officers. The fact that no harm came to the alleged harasser Evans and that Evans was eventually charged by police supports this contention.

4.16. In particular, in this conversation the words “but he said I’ll get in touch with these two detectives who are friends. ah, in the homicide squad and they both happen to be patients of mine at Georges Hall and ah, I do their pilot medicals” are indicative of the Petitioner’s state of knowledge at that time. One of the central tenants of the Crown case was that the police officers at “introduced” (as noted in the below conversation) Flannery to the Petitioner. That introduction, so the argument ran, was to facilitate this treatment that would have the effect of perverting the course of justice. The quoted section in this paragraph of the 3 March conversation indicates that the Petitioner only recently discovered the associate between Flannery and the police officers. The words “happen to be patients of mine” suggest that upon being told by Flannery to contact the police officers that the Petitioner registered that these police officers were also patients of his at Georges Hall. It is inconsistent, entirely, with the suggestion and submission by the Crown that the Petitioner was introduced to Flannery by Duff and/or McNamara prior to the tattoo removal on 26 January 1984.

4.17. As will be discussed below, the word “introduction” is equivocal and may refer to knowledge subsequently acquired by the Petitioner in relation to how Flannery came into contact with his surgery. That does not impugn the conduct of the Petitioner in administering treatment to Flannery in January 1984, nor does it suggest any impropriety in contacting Flannery regarding the harassment.

4.18. The Crown also relied on the words”/ rang a guy who I helped out recently” being words in reference to Flannery as supporting the pervert the course of justice charge. It was suggested that the word “helped” indicated that the Petitioner had provided the treatment and medical certificate to Flannery for the purpose of Flannery avoiding his trial on 31 January 1984. The word “helped” is certainly equivocal and the Petitioner’s explanation of what he meant by “helped” is a rational hypothesis consistent with innocence that should not, necessarily, be excluded. Particularly when one considers the new and fresh evidence, to be discussed below, regarding the use of the “gunpowder trick”, the innocent explanation provided by the Petitioner must certainly be accepted.

Further, the reference to “helped” is also consistent with the explanation that Flannery spoke to the Petitioner after the 31 January 1984 trial was adjourned and told the Petitioner that he considered the providing of the certificate a “favour”. Again, combined with the gunpowder trick evidence and the Petitioner’s explanation, the innocent interpretation of that conversation is rational and ought to have been accepted by a jury properly instructed.

4.19. Further, as is noted in the advice of PD Connolly QC at page 7 the phrase “got off my back” is equivocal and could mean persuaded by any means including calling the police and as far as the inflicting of injury and/or death. As I have noted above, the response of Flannery as noted in those conversations does not indicate that Edelsten requested his “services”. Again, it is unlikely that a request for services would be met with a response that utilises legitimate means of dissuading someone from a course of harassment, in particular, in this case, death threats, that is by contacting certain police officers. This is further supported as no harm ever came to Evans and Evans was prosecuted in respect of the harassing conduct he committed upon the Petitioner.

4.20. Taken as a whole, the evidence is consistent with the explanation that the Petitioner contacted Flannery for assistance in finding out who was responsible for the threat and identifying him for the purpose of “getting him off my back.” That interpretation is consistent with the Petitioner’s unsworn statement and is a rational hypothesis consistent with innocence. As it is clear that the precise manner and order in which words were put to Flannery by the Petitioner is important in determining the intended meaning and, relevantly to the present purposes, whether the Petitioner intended to solicit Flannery to assault Evans.

4.21. The other telephone conversation relied upon by the Crown occurred on 15 April 1984 between the Petitioner and his then fiance Leanne. The following text appears after a conversation that seems to refer to Flannery:

E: Yeah, I helped him and, he just said he doesn’t drop his price for anybody and that’s it. He said I’m a professional – it’s my livelihood

L: Beats people up … ? Is that all he does?

E: He kills people.

L:  Does he!

E: Yeah. Nice young fella.

L: Yeah.

E: But, um, I think he’s a professional killer.

L: Has he got a nice house?

E: Pardon?

L: Has he got a nice house?

E: I don’t know, I’ve never been to his house … he was just a patient and the police introduced him to me

L: When?

E: Oh, a few months ago.

L: Over this guy?

E: No, No. No … they needed a favour. He was on a

murder charge and they wanted him not to face …

L: Who did he kill?

E: Pardon. I can’t hear you.

L: Who did he kill?

E: A standover man. Someone who was standing over a restaurant owner, trying to extort money from him and um.

L: You’re kidding?

E: He was hired to com up from Melbourne and kill

him.

L: Oh, that’s all right . . . (laughs) What and the coppers wanted to let him go?

E: No, the coppers just didn’t want, you know he got a good chance of beating the rap … but if he had faced a particular judge . . . the judge has got a reputation for er, er accepting evidence blindly and putting people away – and he felt that ne·s got a better chance if he got in front of another judge, so when he knew that he had to go in front of this patticu/ar judge he had to be out of action for a few days . . . to miss that judge to get onto another

judge’s list. And as it happened they got it adjourned for another year.

4.22. In respect of the above conversation, in addition to the matters quoted above, the Petitioner provided this explanation:

“In my conversation with my then fiance Leanne, I said Flannery was just a patient. This was true. Certainly I exaggerated and I admit embellished the story a little bit. In fact, I had told her I had bought the Cronulla Sharks Rugby League team. I am embarrassed to say that this was an exaggeration.

In my conversation with Leanne on 15 April, you hear me talk of an introduction to Flannery. On 3 March Duff informed me that he referred Flannery to me for tattoo removal and I used the term ‘introduction’ in that sense when speaking to Leanne in that conversation. We hadn’t been formally introduced, but he had been referred. When I said on the tape again that he was professional and doesn’t drop his price for anyone I was just extrapolating from the punch line in the joke that I put paid to any idea, remote as it might be, that Leanne would contact him directly. I didn’t want her to contact him, so I said that was the end of the conversation.

When I told her also that the police wanted a favour I was just telling her in more dramatic terms exactly what Duff had told me on 3 March when he told me he was pleased that I had given the certificate to Flannery, that he was pleased that the trial was adjourned and he thought Flannery was innocent.

Agam, when I said that he needed to be out of action for a little while, I was just paraphrasing the words that Flannery had used to me in hospital. One doesn’t have to be an Einstein to do that.

One has to take all of this into account, that I was really stunned by finding out that this close relationship between Flannery and the police. It is very easy then, using a poetic licence, to relate this story the way I did to Leanne on this private conversation.”

4.23. Firstly, certainly the word “introduced”, as noted above, is equivocal. It is not specifically referred to an introduction by the police in person of Flannery to the Petitioner. Whilst it certainly encompasses such an introduction, it also encompasses an interpretation that the police referred Flannery to the Petitioner. As noted above, the “introduction” is critical to the pervert the course of justice charge. If the latter interpretation is accepted by a jury, it is a rational hypothesis consistent with innocence and would lead to the acquittal of the Petitioner to a jury properly instructed.

4.24. The final portion of the conversation that is quoted is quite clearly incriminating information had the Petitioner known of this information before administering the treatment to Flannery on 26 January 1984. It is of critical importance could easily have been obtained by the that Petitioner this knowledge at the conversation he alleges to have had with Detective Sergeant Duff on 3 March 1984 when discussing potential action as against Evans rather than the sinister interpretation advanced by the Crown. This knowledge could also have been obtained by the Petitioner in the conversation he says he had with Flannery after Flannery’s trial was adjourned on 31 January 1984. This is echoed in the opinion of Connolly QC at page 3.

4.25. Further, the text used appears to be an amalgamation of knowledge obtained from various sources. While at the beginning of the last statement he referred to the “coppers just didn’t want,” the statement further referred to “and he felt that he’s got a better chance if he got in front of another judge, so when he knew he had to go in front of this particular judge he had to be out of action for a few days … to miss that judge to get onto another judge’s list”. In this part of the conversation who was “he”? Was the Petitioner referring to the Police officers, or was it Flannery? If it is a reference to the police officers then there is a change in who the word “he” refers to in the conversation. If it is Flannery alone it makes more sense. It is submitted that the words are indicative of the type of conversation the Petitioner had with Flannery at the hospital on 31 January 1984 as indicated in the abovementioned unsworn statement. That is to say, the contents of the conversation with the Petitioner’s then fiance is an amalgamation of the knowledge he has obtained since 31 January 1984, that is his conversation with Flannery on 31 January 1984 and his conversation with Duff on 3 March 1984. The combination of these two conversations appears melded into one in this statement and is a plausible and rational interpretation consistent with the innocence of the Petitioner.

4.26. Leaving aside any issues of misdirection, or, the new and fresh evidence stated below, it is submitted there were rational inferences consistent with innocence that could have been drawn from the two telephone conversations, viewed in light of all the surrounding evidence, that, we submit, a jury ought to have acquitted the Petitioner upon and which, alone, ought to raise the relevant sense of unease in allowing the convictions to stand.

4.27. Notwithstanding this, it is now of critical importance to consider the direction given by the Trial Judge on the interpretation of the tapes. The Trial Judge gave the following direction at p22/23 of the transcript:

“There is a further direction of law that I have to give you and that is that if there are two competing theories, one of which is  consistent with the accused’s innocence, then you must give him the benefit of doubt. That does not mean to say that just because you’ve heard some explanation or two other explanations you have to weigh the effect of those explanations. Is it a valid theory? Is it one that is plausible in all the circumstances because it is all the evidence that you have to consider before you in deciding whether you find one way or the other.”

4.28. As is noted above, there are several interpretations of the conversations of 3 March and 15 April 1984. The availability of such interpretations calls for a proper direction for the jury as to the use of such competing theories and the manner in which the jury ought to determine which theory to accept. The above direction indicates, in effect, that the benefit of the doubt should only be applied where the two inferences are equally open. That is not the correct manner such a direction should be given as stated by the High Court in Knight v The Queen [1992] 1975 CLR 495 at 503.

4.29. Simply put, the direction that ought to be given to the jury was that they should only convict if they are satisfied that the only rational explanation for the conduct and evidence is one that is consistent with guilt. This is a similar direction to that in Peacock v The King [1911] 13CLR619 at 634 to the effect that:

” … that the case was made up in circumstances entirely; and that, before they could find the prisoner guilty they must be satisfied, ‘not only that those circumstances were consistent with his having committed the act, but also they must be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person”‘.

4.30. Clearly the whole direction falls shy of both the direction in Peacock and, moreover, the law as stated in Knight. The Trial Judge has misdirected the jury in this regard and, in combination with the matters detailed below, has led to a miscarriage of justice that ought to give rise to a sense of disquiet or unease about allowing the conviction to stand.

4.31. Further, the comments of Dixon J in Martin v Osborne [1936] 55 CLR 367 at p375 as approved in Knight at 502-503 are particularly apposite:

If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with established from which the conclusion the main issue follows as a rational  inference. In the inclupation of an accused person the evidentiary circumstances must be no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability of the occurrence of  their facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.”

4.32. This moves on to a similar but equally important issue that is that the jury ought to have been directed as to the specific inferences available for each charge and that, in particular, the Trial Judge ought to have directed the jury that they must not convict the Petitioner unless they were satisfied that the only rational inference and interpretation of the telephone conversations of 3 March 1984 and 15 April 1984 together were consistent with the guilt of the Petitioner. That is to say, they must be satisfied on each charge from their review of the telephone conversation that:

a. On charge 2, the Petitioner knew before 26 January 1984 or 31 January 1984 that Flannery was to stand trial for murder on 31 January 1984 and conducted the treatment in order to allow Flannery to adjourn the hearing of his murder trial; and

b. On charge 1, the Petitioner asked Flannery to find his intimidator and “get him off my back” as a request for Flannery to assault Evans to dissuade him from conducting any further harassment, threats or extortion.

4.33. The Trial Judge did not make any such direction to the jury and m fact, as will be seen below, made a number of inflammatory remarks that, it is submitted, were prejudicial to the Petitioner. On a review of the whole of the evidence (including the new and fresh evidence referred to below) with such direction in mind it is strongly arguable that the alternative rational hypothesis could not be excluded.

4.34. For this alone, the verdict would be unsafe or unsatisfactory.

  1. Prejudicial Remarks Concerning Senior Police Officers and Misdirection on Association Between Petitioner and Former Detective Sergeant Duff

5.1. Simply put, there was no evidence for the learned Trial Judge to state that the Petitioner had more than a casual acquaintance with Duff. The degree of familiarity with Duff was a matter for the Jury to determine in their deliberations.

5.2. The Trial Judge’s comment was a misstatement of the evidence and a serious one and laid a platform for both convictions to be made by the Jury. Such that, if the jury had found that there was only a mere casual acquaintance between the Petitioner and Duff the jury would have more difficulty accepting that there was an intention of the Petitioner as at 26 January 1984 to pervert the course of justice.

5.3. Further, this issue is compounded when the learned Trial Judge made a number of prejudicial statements that: “We are not to know what the basis of that friendship was. We do not know why people in our community sometimes try to cultivate senior police officers, but it happens.”

5.4. In addition, the learned Trial Judge continued on with the above quote to say “however, what the Crown asserts in this case, there has been demonstrated just how that sort of association can sometimes lead to criminal activity”.

5.5. By adding the first statement directly from the Trial Judge as a prelude to the Trial Judge’s reference to the Crown case, it is submitted, gives a level of legitimacy to the Crown’s submission by way of prejudicial slur, which would clearly taint the mind of any juror listening to that summary.

5.6. That characterisation by the learned Trial Judge gives a flavour to the evidence that simply was not open. While there may have been undertones of this, there was no direct evidence nor basis to infer any such “cultivation” or “criminal activity” other than was the subject of the charges before the jury.

5.7. Further, it is submitted that the Trial Judge’s summation at page 7 in reference to the Crown’s case that “so the Crown has sought to establish each case by reference to a great deal of circumstantial evidence and, as I say, to what amounts to the accused’s own admissions.” It is that final sentence of the accused’s own admissions which gives a flavour to the evidence which, it is submitted, is prejudicial. The Trial Judge need not make reference to the evidence being an admission or not, it is for the jury to give the Petitioner’s evidence that interpretation. The negative tone of this statement indicated a consciousness of guilt by the Petitioner which, we submit, was not apparent on the evidence and is not available to this day. Further, the reference to a “great deal” of evidence is also suggestive of a strong Crown case which may lead a potential juror to consider that the Trial Judge believed the Crown case against the Petitioner to be a strong case. Again, this would taint the mind of a juror when considering the guilt of the Petitioner.

5.8. The directions were prejudicial, not supported by the evidence and render the verdict unsafe or unsatisfactory.

  1. Solicit Assault Misdirection

6.1. On this point, the relevant issue is the sentence: “In fight of what the accused’s explanation is, that is as a conversation after the certificate was given and Flannery only then telling him of his profession, were the words, “get him off my back” an attempt to induce or incite Flannery to use persuasion. assault, etc. to stop that harassment. That is the basic question you have. If you are convinced beyond reasonable doubt, then he should be convicted. ” Directly after that direction there was a short adjournment.

6.2. The adjournment following those words amplifies the importance and significance of same to the jury. The jury is left pondering those precise words before an adjournment where, one would suspect, the jury considers the evidence in light of His Honour’s summation.

6.3. The direction given completely misstates the question for the jury. Persuasion could mean something very innocent, which includes simply talking to a person. The direction given encompasses that innocent explanation in the question for the jury to decide. Accordingly, a juror armed with this direction may determine that the Petitioner wanted Flannery to talk to Evans and this would satisfy the question put to the juror as to the Petitioner’s guilt, but would not be consistent with the Petitioner’s guilt for the crime charged.

6.4. In effect, the direction gives the jury scope to have convicted the Petitioner without the essential element of intention being satisfied. That is to say, the jury may have convicted the Petitioner without the jury being satisfied that one of the elements the Crown was required to prove to convict the Petitioner being satisfied beyond a reasonable doubt.

6.5. For this reason, the conviction for solicit to assault is unsatisfactory and/or unsafe, and may also have improperly coloured the juries’ mind in considering the related charge of pervert the course of justice.

7.The New and Fresh Evidence

7.1. There is presently available evidence that, if it were led at tna1, would have corroborated the Petitioner’s innocent contentions for the telephone conversations and accordingly could have assisted a jury to acquit him of the charges.

  1. 2. Kathleen Flannery

7.2.1. The first piece of evidence is that of Kathleen May Flannery, the wife of Christopher Dale Flannery. Her evidence is contained in a transcript of oral evidence provided to a Victorian Medical Tribunal in or around 1991.

7.2.2. Her evidence was that Flannery could not drive and she often drove him various places including the Petitioner’s surgery. She did  not recall how many occasions he attended the Petitioner for tattoo removal, but remembered that it was just before his trial for murder. Her understanding was that Flannery attended the Petitioner’s surgery for treatment because of advertisements he had read for tattoo removal.

7.2.3. She recalled that after the second or third treatment Flannery’s hand had a strong smell “really bad like dead meat’ he was nauseous, dizzy and had “lumps under one arm.” She also observed that Flannery was vomiting and “really hot.”

7.2.4. She denied any knowledge of any plot for Flannery to avoid his trial. In particular, she expressed genuine surprise that the Petitioner had been convicted.

7.2.5. Mrs Flannery recounted an occasion where the Petitioner told Flannery that there was an ex-patient trying to blackmail him. She said that her husband said to the Petitioner that he would call Detective Duff. She then recounted a meeting between Detective Duff and Flannery where Duff stated that he would put the PO Box under surveillance.

7.2.6. In this case the central evidence concerning the perversion ot justice charge was the medical certificate. That certificate set out that Mrs Flannery had reported the symptoms to the Petitioner’s receptionist.

7.2. 7. Further, the Trial Judge in his directions to the jury as page 15 stated after describing the alleged symptoms of Flannery before admission: “despite all the criticism of the Crown witnesses there is that medical evidence which said: if you had all this history, if it part of the conspiracy and no one sees Flannery vomiting at home, collapsing at home, shaking, the only objective evidence being some swelling of the wrist after some bums which he had elected to have that very day, well that is quite a different thing, is it not?”

7.2.8. The Crown case was run suggesting that it did not matter whether the certificate was true or false. However, the Crown led evidence to strengthen the possibility of securing that finding by indicating that Flannery did not suffer from symptoms as poor as those complained of over the phone by his wife such that he did not require hospitalisation or a certificate stating that he would require over a week in hospital after 31 January 1984 before Flannery was ready for daily Court appearances. Surely then, the evidence of Mrs Flannery regarding her observations of Flannery, the genuineness of his treatment and the manner in which he came to know the Petitioner are matters that ought to have been before the Court.

7.2.9. The Jury may have provided their verdict on the above direction and the evidence before the Court that Flannery’s symptoms were not as serious as reported and that there should have been no hospitalisation. If the jury had accepted Mrs Flannery’s evidence the jury may have had more difficulty accepting the suggestion contained in the above direction to the jury by the Trial Judge and, similarly, more difficulty in accepting the guilty explanation of the telephone calls.

7.2.10. The recount of Mrs Flannery of the actions taken by Flannery himself regarding the extortion attempt are consistent with the Petitioner’s explanation of his contact with Flannery. That is, it is consistent with his explanation that he spoke to Flannery and asked him whether he could assist in finding the person responsible for the blackmail. It is inconsistent with the guilty explanation that the Petitioner asked Flannery to assault Evans. ##In speaking to Detective Sergeant Duff taken by Flannery are further consistent with the innocent explanation. There is some inconsistency with the Petitioner’s explanation as the story continues in that Mrs Flannery recalls that Detective Sergeant Duft and Flannery attended together upon the Petitioner’s surgery to discuss the issue with him. It is submitted that that inconsistency is not determinative, nor is it inconsistent with the innocent explanation of the 3 March 1984 and 15 April 1984 telephone conversations.

  1. 3. Dr Geoffrey Scarlett

7.3.1. In a brief report, Dr Scarlett provided an opinion that lumps under the arms, interpreted as lumps in the armpits, could be an indication of inflamed axillary lymph nodes. Such information could be indicative of an acute inflammatory process in the body, that is, an infection.

7.3.2. This evidence supports the view that Flannery’s symptoms upon hospitalisation were consistent with septicaemia which is, in effect, a form of bodily infection. The symptoms Scarlett describes are consistent with the observations of Mrs Flannery of her husband’s condition prior to his hospitalisation in January 1984.

7.3.3. This evidence tends to suggest that Flannery’s symptoms were genuine and further contradicts the Crown case run on Flannery’s symptoms or lack thereof.

7.4. Dennis John Keane, Glen Alexander and Graham Rogers

7.4.1. Keane’s evidence is a transcript of oral evidence given before the Victorian Medical Tribunal in or about 1991. He has also given a written statement.

7.4.2. Keane was an acquaintance of Flannery. There are two relevant conversations between Keane and Flannery. The statements of Graham Rogers and Glen Alexander simply corroborate how Keane’s evidence came to the knowledge of the Petitioner.

7.4.3. The first was where Flannery, in hospital, discussed the use of the “gunpowder trick” of ingesting gunpowder as a means to increase his heart rate and blood pressure to prevent his discharge from hospital before the hearing. The force of his evidence on this point was that Flannery was worried that the Doctor would get onto his plan and discharge him from hospital before the Trial.

7.4.4. Significant for the purposes of the current case is that Flannery expressed concern that the doctor (meaning the Petitioner) would discover the plan and discharge Flannery from hospital before the scheduled trial date. It is that concern, which is inconsistent with the guilt of the Petitioner.

7.4.5. Further, if Flannery had in fact been “introduced” to the Petitioner as suggested above, then this conversation is totally inconsistent with that. Flannery could not be concerned with being discovered by the doctor if he had prearranged with the doctor to obtain the treatment and receive the medical certificate. This is important because the Crown case was run on the basis that it did not matter whether Flannery was in fact unfit to stand trial on the particular date that the Petitioner provided the certificate but that the treatment was rendered to Flannery to “put him out of action”. Clearly, this evidence supports an inference consistent with the Petitioner’s innocence.

7.4.6. The second conversation was regarding the solicit to assault charge. In that conversation Flannery recounted the Petitioner asking Flannery to help him find “someone … giving him a hard time”, which Flannery reportedly responded with “lake it to the cops.” Keane’s evidence was that Flannery, in uttering those words insulting the Petitioner, as Flannery did not hold the police in high regard.

7.4.7. This conversation, and in particular the words used by Flannery, support the construction advanced by the Petitioner in respect OT the 3 March 1984 telephone conversation with Ms Bissaker. That is to say, that it is consistent with the Petitioner asking for help in locating the troublemaker and with Flannery responding to the effect of taking it to the cops. It is further consistent that the police officers Flannery referred to were police officers with whom Flannery was associated.

7.4.8. The only potential inconsistency is with the evidence of Mrs Flannery, that is to say her recount of Flannery and Duff attending the Petitioner’s offices.

7.4.9. Whilst the portion of the evidence dealing with a reference to cops being an insult is not necessarily inconsistent with Flannery in fact assisting with such a reference. Moreover, it is entirely consistent with the Petitioner’s innocent explanation for why he contacted Flannery. As a whole, the evidence favours the innocent explanations provided by the Petitioner and would support a rational hypothesis consistent with his innocence that a jury properly instructed would be unable to exclude. Again, as a whole these two conversations tend to support inferences of innocence in respect of both charges that were before the jury. With this evidence, and other evidence, a jury, properly directed, ought to have acquitted the Petitioner of both charges.

7.5. Mick O’Brien

7.5.1. O’Brien describes a conversation with Flannery about his upcoming trial in or about December 1983 or January 1984. In that conversation, Flannery told O’Brien that he might have to use the “old trick” and in doing so mentioned the use of gunpowder.

7.5.2. Flannery indicated that the use of gunpowder “blows in your blood pressure right up and you become very unstable.” He also stated “I’ll have to find a doctor can be put into hospital so I’ll have to use the gunpowder trick”, the Petitioner was not mentioned during this conversation at all.

7.5.3. O’Brien recounted a later conversation where Flannery postea about fooling the Petitioner by using the old gunpowder trick where Flannery said words of the effects of “I had the tattoo removed and I used that for the symptoms. “O’Brien stated that Flannery boasted about the trick on several occasions. Those boasts were the only time when Flannery mentioned the Petitioner to O’Brien.

7.5.4. Further, O’Brien recounted further conversations where Flannery described the Petitioner as being aware of his trick but that there was no need to worry because other people were going to “stitch him up”, as a reference to the Petitioner becoming an embarrassment to various people around town.

7.5.5. The evidence here is more or less consistent with the evidence of Keane referred to above. There is a critical difference in that O’Brien refers to the awareness of the Petitioner in terms of “Edelsten has woken up or someone has told him that I’ve fooled him with the gun powder trick”. This is of course not consistent with the Petitioner’s explanation that Flannery explained to him 31 January 1984 that he (Flannery) considered the certificate a favour.

This can be explained as the context in which that conversation is brought up is Flannery boasting about fooling the Petitioner. It of course does not assist the “story” that Flannery recalls, jovially, about fooling the Petitioner. It would seem quite silly to brag about fooling someone and then say in the same breath “/ actually told him about fooling him”.

7.5.6. Again, as is the case with Keane’s evidence, O’Brien’s evidence capable of supporting an inference consistent with innocence in respect of the charge in perverting the course of justice. Again, while this does not necessarily impact upon the solicit to assault charge, both charges are inter-related and quite clearly, conviction in one matter will lead more readily to conviction in another. That is, if the Petitioner was accepted in his evidence regarding the pervert the course of justice circumstance, the jury will, more likely, accept the Petitioner’s evidence regarding the solicit to assault charge. Accordingly, this evidence is capable of assisting a Jury to find a rational inference for the telephone calls consistent with the innocence of the Petitioner.

  1. 6. Ian Vandimeer

7.6.1. In a sworn statement, Ian Vandimeer says that he was telephoned by a mutual friend and Flannery to deliver some gunpowder to Flannery in hospital. Vandimeer did this by giving Flannery shotgun pellets broken open and placed in paper.

7.6.2. Vandimeer deposes that Flannery told him that he was on trial the following week and he wanted to put the trial off. Flannery indicated that the Petitioner might not believe that he was sick, and needed the gunpowder to make sure the Petitioner retained that belief and did not discharge him from hospital.

7.6.3. This evidence supports and corroborates the evidence of Keane and Rogers detailed above. In particular, it supports the inference that Flannerv, and whoever assisted him, had not disclosed to the Petitioner their intentions for obtaining the tattoo removal treatment on 26 January 1984 and for Flannery’s ongoing hospitalisation thereafter. This is direct evidence of actions taken by Flannery to avoid detection by his doctor (the Petitioner) of his plan to avoid the trial date of 31 January 1984.

7.6.4. This evidence is reliable. By providing this very evidence Mr Vandimeer admitted to conduct that could find him charged for the very offence the Petitioner has been convicted. There is little reason for some person to falsely admit to an offence and, on that basis, his evidence ought to be accepted by any Jury properly instructed.

7.6.5. Most’ importantly, it is evidence that is consistent with the innocence of the Petitioner in respect of the pervert the course of justice charge, and it is similarly consistent with the Petitioner’s explanation as to when he discovered that Flannery did not wish to face trial on 31 January 1984. Even without the other fresh evidence, this evidence alone would have enabled a jury to acquit the Petitioner of that charge, and may have inserted some doubt in the jury’s mind about the second charge as the charges were closely interrelated and heard together for that reason.

7.7. Roger Hodge

7.7.1. In a signed statement Mr Hodge says he was a security consultant engaged by the Petitioner to do certain surveillance work. He details enquiries he made regarding the harassment received by the Petitioner. In particular, he said that after the police arrested Evans he sent staff to Parramatta Court to take photos of Evans so that the security staff could identify Evans in the future.

7.7.2. In relation to the solicit to assault charge, this is consistent with the Petitioner’s explanation for the 3 March 1984 conversation. In particular, Hodge’s recollection that the Petitioner relayed the possibility that his harasser may be Evans but without being certain, is consistent with the abovementioned explanation. It is also consistent with the Petitioner’s report to the police. The taking of photographs of Evans upon an appearance at Court is also consistent with trying to fully ascertain the identity, including appearance, of someone who is responsible for a number of harassing acts including death threats. Moreover the use of a private inquiry agent to discover these details is not consistent with the use of an underworld hitman, such as Flannery, to assault Evans. It is also difficult to accept that the Petitioner asked someone such as Flannery to assault Evans when, when he is unsure that Evans in fact was the culprit.

7.7.3. Again, this evidence supports an inference of innocence in respect of the solicit to assault charge and accordingly, would have enabled a jury to acquit the Petitioner of that charge and assisted the Petitioner in being acquitted for the pervert the course of justice charge.

  1. 8. Professor Crank

7.8.1. Professor Crank provided a useful, but brief, opinion to the effect that ingestion of the gunpowder can produce the symptoms that were observed in Flannery upon his hospitalisation. That is, “it may cause gastroenteritis with abdominal pain, vomiting, vertigo, muscular weakness, irregular pulse, disturbances in heart rhythm, changes in blood pressure, cyanosis, convulsions and possibly collapse and death.”

7.8.2. Accordingly, he opines that body vital signs such as blood pressure, temperature and pulse rate could be affected by consuming gunpowder.

7.8.3. Again, the Crown case was not put on the basis that Flannery did not have the symptoms reported. However, a significant challenge was put on that medical evidence by the Crown. That is to say, the Crown challenged whether Flannery in fact had symptoms as bad as was reported.

7.8.4. The evidence of Professor Crank regarding the ingestion of gun powder is consistent with symptoms of Flannery upon admission and beyond. Coupled with the evidence of Vandimeer, Keane and O’Brien above, it provides compelling support for the inference that the Petitioner was not aware at all of any need to certify Flannery unfit for trial prior to the request for that certificate by Flannery either the day before or the morning of Flannery’s aborted hearing.

7.8.5. The evidence combined adds an almost irresistible inference that the Petitioner is being truthful in his version of events and the interpretation of the telephone calls of 3 March 1984 and 15 April 1984.

  1. 9. Carolyn Alice Hall

7.9.1. Mrs Hall was a former supervisor and receptionist employed by the Petitioner. She gives a relatively detailed statement regarding her dealings with Flannery.

7.9.2. She firstly recounted a telephone conversation where Flannery first called and asked if the Petitioner did Tattoo removals to which she agreed and he then hung up. He later arrived at the surgery and said words to the effect “/ was told by policeman friend that the Doctor did tattoo removals. I would like to see him about getting one removed.” Mrs Hall directed him to wait and provided him with the usual literature she provided to patents getting that treatment.

7.9.3. After waiting Flannery eventually saw the Petitioner at his Georges Hall surgery and Mrs Hall heard the Petitioner say to Flannery after explaining the procedure of tattoo removals “go away and think about what I have said.”

7.9.4. That afternoon, she says the Petitioner attended to the removal of a tattoo on Flannery’s right arm because she heard the laser machine in operation. She next saw Flannery at the Georges Hall surgery on that Saturday morning after the original tattoo removal. She says that appointment was for the wound to be checked and dressed. That was the last time she saw Flannery.

7.9.5. She ·says she received some of the harassing material namely pornographic material and she was aware the Petitioner received threats commencing sometime in March 1984.

7.9.6. In around March 1984 Mrs Hall remembers the Petitioner requested Flannery’s patient card. She heard the Petitioner telephone Flannery and have a conversation where she specifically heard the Petitioner use words the effect of “do you know anything about who is harassing me and why? Why are people doing this?” She then entered the Petitioner’s office was told in no uncertain terms to leave

7.9.7. Following this telephone conversation the Petitioner asked Mrs Ha11 tor Duffs patient card and said words the effect of “sorry but I just want to find out who is harassing me.” In her observation the Petitioner seemed quite stressed.

7.9.8. In respect of the overheard March conversation with Flannery, this is direct evidence, not available at the trial, of the conversation in question. The report by the Petitioner to Ms Hall following the telephone conversation is further consistent with the interpretation of the 3 March 1984 conversation given by the Petitioner. It suggests that the Petitioner only wanted to find out who it was and why. Again, while several factors point to the harassment being directed by Evans, it is not certain and it was only until further investigations by the police lead to the discovery that the PO Box, the subject of this harassment was in fact linked to Evans. However, what is consistent is that the Petitioner was unsure precisely who was responsible for the harassment and took steps to try and discover the identity of the person harassing him.

7.9.9. Further, the recount of how Flannery first contacted the surgery that is being told by a policeman. is entirely consistent with the reference to “introduction” in the 1 April 1984 telephone conversation. It is clear that the introduction is by the police officer telling Flannery to visit the Petitioner. It is, therefore, consistent with the innocence of the Petitioner on the pervert the course of justice charge.

7.9.10. The notation of more than one visit on the one day by Flannery is not consistent with the guilty inference for the telephone conversations. It indicates that the Petitioner told him to think about tattoo removal and left him to leave the surgery rather than administer the treatment straight away. By so doing, the Petitioner enabled Flannery to leave and potentially not to obtain treatment that day. Flannery, of his own accord, is the one who returned to the Petitioner.

7.9.11. It is again submitted that this is consistent with the innocence of the Petitioner of the pervert the course of justice charge.

7.9.12. However, since providing her statement Ms Hall has passed away and cannot be cross-examined. Notwithstanding this, her statement ought to be considered together with the totality of the other available evidence concerning the convictions in a manner called for pursuant to section 77 of the Crimes (Appeal and Review) Act 2001 (NSW).

8. Effect of the New and Fresh Evidence

8.1. The evidence described above was new and fresh as distinct from the evidence led at trial. Further it is evidence that was not available to the Petitioner at the trail and as is explained in each statement, only came to the attention of the Petitioner following his convictions.

8.2. The effect of this new evidence is that the innocent explanations provided by the Petitioner for the telephone conversations and of his conduct had more substantial evidentiary weight.

8.3. The evidence regarding the “gunpowder tricK’ matches up reasonably well. It provides a reasonable basis for the proposition that Flannery deceived the Petitioner. That is, Flannery went to the Petitioner with the intention of obtaining the treatment to obtain the adjournment without the Petitioner knowing of Flannery’s intention. The medical evidence supports this proposition as being plausible.

8.4. Had the evidence been provided to the jury, it was capable of lending further weight to the competing innocent interpretation of the telephone conversations.

8.5. While, to some extent, Mrs Flannery’s version of events 1s inconsistent with the “gunpowder tricK’ theory, it does provide evidence and support for the proposition that Fiannery was genuinely suffering from infection on the Saturday afternoon. It further lends weight to the version of events provided by the Petitioner. That is, Mrs Flannery complaining of symptoms to the receptionist that indicated septicaemia that were directly observed by her, which accord with the observations reported at the time and that formed the basis of the Petitioner’s course of action. The medical evidence at trial and in support of the earlier petitions further corroborates this account.

8.6. The inconsistency with the gunpowder theory can be explained by Flannery either not wanting to involve his wife or alternatively wanting to keep his nefarious activities secret from her. It was her evidence that she was unaware of his criminal activities such as murder and the like. Keeping this aspect of his treatment secret from his wife is understandable.

8.7. Further, there are a number of consistent accounts that the telephone conversations with Flannery proceeded in the manner alleged by the Petitioner. Again, lending weight to a competing theory of the intention to solicit assault charge. Particular weight should be given to the Receptionist’s evidence as it is direct evidence of the telephone conversation that is the subject of the solicit to assault charge.

8.8. The evidence. seen as a whole, simply does not allow the innocent explanation for the telephone conversation to be excluded. Accordingly, a reasonable jury, properly instructed. could not have found it open to them to be satisfied beyond a reasonable doubt that the Petitioner was guilty. Alternatively, it at least raises a doubt or disquiet as in Varley.

8.9. The new and fresh evidence, in conjunction with the evidence given at trial is persuasive that Dr Edelsten is not guilty, i.e. there is a reasonable doubt, it is admissible (as discussed below) and the convictions should be overturned. Also, the fresh evidence when taken in conjunction with the other matters referred to in this petition create a strong sense of unease or doubt about the convictions.

9. The Admissibility of the New and Fresh Evidence

9.1. Despite the opinion of Mr Justice Finlay in an earlier petition and despite there being no need for the evidence to be admissible for the purposes of the petition, nevertheless, the evidence described above is relevant and would be admissible at the hearing were it available and conducted today.

9.2. Clearly, the medical evidence is admissible and would satisfy s79 of the Evidence Act 1995 (NSW). The relevant credentials of each deponent could easily be provided to substantiate any requirements under the Evidence Act 1995.

9.3. The direct evidence, that is the perception of Mrs Flannery of Flanery’s symptoms is relevant and admissible. Similarly, Vandimeer’s description of providing to Flannery the gunpowder is also admissible.

9.4. In respect of the conversations with Flannery deposed to by Vandimeer, Hodge, O’Brien, Keane and Mrs Flannery are arguably admissible under the exception to the hearsay rule embodied in s65 the Evidence Act 1995 (NSW). That section relevantly states:

65 Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a) was made under a duty to make that representation or to make representations of that kind. or

(b) was made when or shortlv after the asserted fact occurred and in circumstances that make It unlikely that the representation is a fabrication. or

(c) was made in circumstances that make it highly probable that the representation is reliable. or

(d) was:

(i) against the interests of the person who made It at the time it was made, and

(ii) made in circumstances that make it likely that the representation is reliable.

(7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends:

(a) to damage the person’s reputation, or

(b) to show that the person has committed an offence for which the person has not been convicted, or

(c) to show that the person is liable in an action for damages.

(8) The hearsay rule does not apply to:

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made. or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

9.5. The presumed death of Flannery renders him “unavailable” for the purposes of the section and enlivens its operation (s65(1)). The evidence would be adduced by the defendant (that is the Petitioner) through persons who heard saw or otherwise perceived the representations being made by Flannery thereby enlivening ss65(8)(b). Accordingly, subject to any discretion to exclude the evidence, the evidence is prima facie relevant and admissible and no such discretion should be applied given that the statements were very much against the interests of Flannery and could otherwise have been admissible under s65(2)(d).

9.6. The evidence of Ms Hall, given that she has passed away is arguably admissible under s65(8) or s65(2).

10. An Inquiry Should be Ordered

10.1. Taken as a whole, the incorrect direction as to circumstantial evidence, the incorrect directions as to competing theories, ths inflammatory and prejudicial directions, the incorrect direction as to the ‘definition of solicit and the new evidence it is clear that there remains the relevant sense of disquiet or unease referred to in Varley in respect of both convictions and, a fortiori, represents a substantial miscarriage of justice.

10.2. It is finally submitted that for the above reasons the Governor ought to exercise her pardoning power as embodied in s76 of the Crimes (Appeal and Review) Act 2001 (NSW) or alternatively direct a review of the Petitioner’s convictions under that Act.

INDEX TO PETITION

  1. Petition
  2. Advices of Senior Counsel·
  3. the Hon. Mr Greg James AM QC;
  4. Peter Connelly QC;
  5. Patrick Tehan QC;
  6. BT Stratten QC;
  7. Maurice Neil QC;
  8. Opinion of Mr Justice Finlay dated 10 July 1991;
  9. Trial Judge’s direction;
  10. Fresh Evidence;
  11. Kathleen Flannery;
  12. Dr Geoffrey Scarlett;
  13. Dennis John Keane;
  14. Glen Alexander;
  15. Graham Rogers;
  16. Jan Vandimeer;
  17. Mick O’Brien;
  18. Roger Hodge;
  19. Professor Crank;
  20. Caroline Alice Hall;
  21. Statement of the Petitioner concerning extortion demand;
  22. Clinical notes in respect of Christopher Dale Flannery admission to hospital
  23. Transcript of proceedings at trial.

Peter Connelly QC Comments on Geoffrey Edelsten Conviction Proves Wrongful Conviction

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PDF:    Peter Connelly QC Comments on Geoffrey Edelsten Conviction Proves Wrongful Conviction

OPINION

Re: Part 13A of the Crimes Act 1900 (NSW)

Ex parte: Geoffrey Walter Edelsten, querist

On 27th July 1990 the querist was convicted before Sharpe Janda jury of one count each of soliciting one Flannery to assault one Evans and of perverting the course of justice by obtaining an adjournment of Flannery’s trial fixed for 31/1/84 by certifying that Flannery was unfit for trial. The two counts were tried together and it was a central feature of the Crown case that a police sergeant, one Duff, a patient of querist, was also a friend of some standing.

I am asked to advise whether querist’s case warrants a further application for an inquiry by a justice of the peace pursuant to s.4 75 of the Crimes Act 1900 (NSW) for, as will appear, there has already been one such application, which was unsuccessful. This fact is obviously a factor to be considered but it is not fatal. In Rendell (1987) 32A.Crim.R.243 Hunt J ordered an inquiry in such a situation under s.475, which has now been repealed and replaced by elaborate provisions for the review of convictions, part 13A of the Crimes Act, which was proclaimed on 12th November, 1993. Part 13A provides for applications of two sorts, a petition to the Governor for a review of a conviction or the exercise of the pardoning power

(Division 2) and an application to the Supreme Court for an inquiry into a conviction

(Division 3). In both cases the application may be refused if the matter is the same as has previously been dealt with under the repealed provisions and special facts or circumstances do not justify further action.

Querist’s case has always been that Flannery was no more than a patient whom the police (Duff and McNamara) who are also patients had sent to him; that he first saw Flannery on Thursday 26/1/84 having no knowledge of the latter’s criminal background and gave him laser treatment for the removal of a tattoo that day and again on Saturday 28/1/84. Late on Saturday he had him admitted to hospital with apparent septicaemia. He says that at the request of Flannery’s solicitor he gave a certificate that Flannery was unfit for trial on 31/1/84 and expressed the opinion that he would be in hospital for at least the coming week. Sharpe J directed the jury that they would acquit if the Crown case consisted solely of the evidence concerning his hospitalisation. On the other hand if it were the case that querist was aware that Duff and McNamara did not want Flannery to face trial on 31/1/84 when he gave him what is obviously elective treatment, he became “one of the conspirators”. No complaint can be made of this direction and it is the heart of the case.

Querist made an unsworn statement to the jury in which he said that he first met Flannery on 26/1/84 having spoken to him by telephone one to two weeks earlier about the removal of a tattoo and that he knew nothing of his criminal history until 31/1/84, after he had given the certificate; that he had no knowledge that Flannery was to be tried on 31/1/84 until that day or the day before. He also told the jury that when Flannery learned on 31/1/84 that querist had given the certificate he told querist he was glad his trial had been adjourned as he did not want to face a certain judge and that he regarded the treatment and the certificate as a favour. He denied guilt of the murder for which he was to be tried but told querist he was a man who killed and bashed for money. To displace this innocent explanation of the treatment given by querist to Flannery, the Crown relied on two telephone conversations over querist’s mobile telephone which had been recorded and transcribed fortuitously by one Beaver (an enthusiastic amateur) who had no connection with either querist or the police, without querist’s knowledge. The first was on 3/3/84, a month or so after the certificate was given. Acts of harassment had started on 1/3/84 and pornographic material had arrived the next day. The tape refers to “some homicide squad detectives, two pretty heavy guys” (obviously Duff and McNamara), one of whom was a patient at his Georges Hall surgery. It also reports querist as saying, “I rang a guy who I helped out recently who’s a hit man and I said ‘I want this guy found and got off my back’ and he said ‘if he could find him he would, but (he said) I’ll get in touch with these two detectives who are friends in the homicide squad.” Querist goes on to say that the two were patients at Georges Hall and that they came to see him and reassured him that they would “get the guy before he (did) anything”. Querist told the jury he had had no idea of the relations between Flannery, Duff and McNamara prior to 3/3/84. He said he was stunned to learn of it but rang Duff at Wollongong and Duff called on him later in the day and said he was glad querist had given Flannery the certificate as he felt Flannery was not guilty. On the same occasion Duff said it was he who had referred Flannery to querist for tattoo removal. 

The second tape was on 15/4/84, and it must be remembered that this was nearly three months after the first visit of Flannery to querist’s surgery and at a time when the relevant facts of the police relationship with Flannery and Flannery’s background were certainly known to querist. On this tape he says to his then fiancee that he had helped someone (obviously Flannery), a professional killer, who had just been a patient, whom the police introduced to him a few months ago; that the police needed a favour, he was on a murder charge, and they wanted him not to face a particular judge. So when he knew he had to go in front of this particular judge, he “had to be out of action for a few days”. This passage obviously enough could be a simple statement of the facts as known to querist on 15/4/84 or a potted version of the facts as known to him when he started Flannery’s treatment on 26/1/84. Naturally the Crown contended for the latter.

Unless one accepts the Crown’s version of the meaning of the ambiguous statement of 15/4/84, the only inconsistency between either of the tapes and the unsworn statement to the jury is that querist in the latter corrected the statement that the two detectives came to see him on 3/3/84, to one (Duff).

The notion that the tapes somehow give the lie to querist’s statement to the jury that he first met Flannery on 26/1/84 seems quite unsustainable, yet Sharpe J appears to be so directing the jury at page 20, although his Honour may have been continuing his reference to the Crown’s submissions, which is how Finlay J understood it in subsequent proceedings. However, even if the word “introduced” on the tape of 15/4/84 be taken as necessarily meaning a personal introduction, it does not mean that Flannery was personally known to querist before 26/1/84 – the period from that date to 15/4/84 being close to three months and the statement on the tape “a few months ago”. The point is of critical importance for Sharpe J ultimately directed the jury that if querist “knew nothing of Flannery’s background or was not associated with Duff et cetera prior to the date of the medical certificate” he should be acquitted of count two. The phrase “associated with” must obviously mean more than  knowing him as a patient and presumably referred to the Crown allegation that querist was a party to Duff’s and McNamara’s plan. I therefore set out the relevant parts of both telephone conversations:

Edelsten and receptionist 3/3/84. p3.

“R What else are they what are they going to do about it, nothing?

Dr E Oh well I don’t know, I’ve just had some homicide squad ah squad detectives two pretty heavy guys that ah both have killed men in the last few weeks ah and the police you know that hostage drama at.

R Yeah.

Dr E Home Homebush?

R Yeah.

Dr E The guy that killed him, he’s a patient of mine at Georges Hall. Ah, oh, quite a few of them are actually and ah, I rang a guy who I helped out recently, who’s a hit-man and I said I want this guy found and got off my back and ah, he said, oh, ah, if he could find him he would, but he said I’ll get in touch with these two detectives who are friends, ah, in the homicide squad and they both happen to be patients of mine at George’s Hall and ah, I do their pilots’ medicals. And ah, they both came over to see me and reassured me that ah, they’ll get the guy before he does anything.”

Edelsten and Leanne 15/4/84 p.3(foot)-p4.7

(After conversation which seems obviously to refer to Flannery)

“Dr E Yeah, I helped him and, em he just said he doesn’t drop his price for anybody and that’s it. He said ‘I’m a professional – it’s my livelihood.’

L Beats people up .. ? Is that all he does?

Dr E He kills people.

L Does he!

Dr E Yeah. Nice young fella.

L Yeah.

Dr E But, um, I think he’s a professional killer.

L Has he got a nice house?

Dr E Pardon?

L Has he got a nice house?

Dr E I don’t know, I’ve never been to his house … He was just a patient and the police introduced me to him.

L When?

Dr E Oh, a few months ago.

L Over this guy?

Dr E No, no. No … they needed a favour. He was on a murder charge and they wanted him not to face ..

L Who did he kill?

Dr E Pardon. I can’t hear you.

L Who did he kill?

Dr E A standover man. Someone who was standing over a restaurant owner, trying to extort money from him and um.

L You’re kidding?

Dr E He was hired to come up from Melbourne and kill him. L Oh, that’s all right … (laughs) What and the coppers wanted to let him go? Dr E No, the coppers just didn’t want, you know, he got a good chance of beating the rap … but if he had faced a particular judge … the judge has got a reputation of er, er, accepting evidence blindly and putting people away – and he felt that he’s got a better chance if he got in front of another judge, so when he knew that he had to go in front of this particular judge he had to be out of action for a few days .. to miss that judge to get onto another judge’s list. And as it happened, they got it adjourned for a year.”

Count two, as Sharpe J recognised, ultimately depended on whether the conversation of 15/4/84 was an account of the events as querist knew them on that date, including what Flannery had told him on 31/1/84, or a statement of what the police told querist before he treated Flannery.

To go back to count one, the critical phrase “got off my back” is obviously equivocal. It could mean anything from “dissuaded by whatever means” (from persuasion to bringing in the police) to “rendered incapable by any means, including death”. In other words it was a classic case of the proper inference to be drawn from the proven facts. The Crown selected assault but this hypothesis has no more to support it than any of the others. The facts however do not suggest that on 3/3/84 Flannery understood himself to be sought for murder or mayhem. He advised querist to put the matter into the hands of Duff and McNamara and the evidence clearly is that querist did so. Moreover Flannery’s professional proclivities were likely to make him a person of some standing in the underworld and thus one who might have some success in his enquiries. It was common ground that no harm in fact came to Evans. Now it is true that the Crown did not have to prove an agreement to assault, still less an actual assault. The question however is whether the alternative meaning of “assaulted in order to dissuade” was open to the jury beyond reasonable doubt.

Indeed his Honour would seem to have been conscious of this for his direction on count one was that the basic question for the jury was whether the words “get him off my back” were 11an attempt to induce or incite Flannery to use persuasion, assault, etcetera, to stop that harassment”. This seems to have been a serious misdirection for it is possible that the jury believed that if the words in question were an attempt to induce Flannery to use persuasion or something else other than assault, count one was satisfied. However no objection was taken and no application for redirection was made and the point was not taken on appeal. As to count two, the words used on the tape are wholly equivocal as to when querist got the incriminating information. This was the critical question, for the learned judge directed the jury to acquit if querist did not have the requisite knowledge before he signed the certificate. Of course other evidence might have tipped the scales but before examining this possibility I should shortly state the subsequent history of this matter.

Querist was convicted on both counts and sentenced to six months on each, to be served cumulatively. He has always protested his innocence and an appeal was taken to the Court of Criminal Appeal which was dismissed on 11/10/90. However, none of the grounds argued before that Court go to the factual weakness of the Crown case but to question of law such as the illegality of Beaver’s interception of the conversations and the elements of the offences charged. Obviously, the appeal did not raise the question whether the verdict and conviction were unsafe or unsatisfactory, which would have required of the Court of Criminal Appeal an independent examination of the evidence. See the line of cases running from  Ratten (1974) 131 CLR 510, 515-16 per Barwick CJ to Knight (1992) 175 CLR 495, to which I shall return.

Of course, having appealed against his conviction querist has exhausted his right to appeal: Grierson (1938) 60 CLR 431; Stubbs (1970) 71 SR NSW 76 CCA. However he applied to Mr Dowd QC, then Attorney-General, for an inquiry under s.475 of the Crimes Act 1900. This was refused on 18/3/91. He then applied to Gleeson CJ on 5/6/91 submitting new evidence. Doubtless in response to this application, the question was considered by Finlay J, who on 10/7/91 declined to order an inquiry.

The material relied on before Finlay J consisted of statements from convicted criminals (Keane, Alexander and Rogers), from Professor Crank and from Mrs Hall. Keane had been friendly with Flannery and claimed to have visited him in the Bigge Street hospital, Liverpool, in late January 1984, when Flannery said to him “I think the doctor is getting on to me. I will have to use the old gunpowder trick”; and when asked what it was, Flannery replied: “Gunpowder in cigarette paper causes the pulse (or) temperature to go up.” Professor Crank’s evidence was that the ingestion of gunpowder affects the ionic balance in the blood and will raise blood ressure and possibly bring on vomiting and diarrhoea. Keane also says that Flannery spoke of an incident in about March 1984 when Flannery told him of the doctor ringing him because someone was giving him a hard time, saying, “I told him to ring the police”. Alexander and Rogers really deposed to learning of Keane’s conversation and make no direct contribution.

Mrs Hall had been querist’s receptionist at Georges Hall surgery. She recalled Flannery telephoning to enquire about tattoo removals and coming in a few days later to see querist, saying that a policeman friend had told him that the doctor did tattoo removals. She says he waited and that when querist was free she heard him explaining the procedure and the possibility of infection and telling Flannery to go away and think about what he had said. She says that querist removed a tattoo from Flannery’s arm that afternoon (a Thursday). She also recalls Flannery attending again on the Saturday.

Mrs Hall also told of an occasion in March 1984 when querist asked for Flannery’s patient card and then telephoned Flannery saying, “Do you know anything about who is harassing me and why? Why are people doing this?” She says that shortly after he asked for Duff’s patient card (which had the telephone number among the details). The evidence of Keane, Professor Crank and Mrs Hall was capable of corroborating querist’s account of the conversation with Flannery on 3/3/84 when, in response to his saying, “get him off my back”, Flannery suggested he get on to the police, and he did so, indicating that there was no thought of soliciting assault, and that the culprit was not even identified. The evidence of Keane further indicates a possible source of the symptoms that led to Flannery’s hospitalisation and strongly suggests that querist was being used.

However Finlay J said that Mrs Hall’s evidence against the background of the evidence given at the trial would not give rise to a doubt as to guilt so as to initiate an inquiry. As to the evidence of Keane, his Honour referred to the submission that it would have induced reasonable doubts in the minds of the jury as to whether querist was party to a plot and would have convinced them that Flannery and the police had fooled him and the court and said – “These assertions are not correct. The evidence … would have been inadmissible at the trial”. After considering the decided cases on s.4 75 his Honour declined to direct an inquiry, saying that the new material quite failed to cause him “unease” or “a sense of disquiet”. 

On 2/12/91 querist made a further application to the Attorney-General, then Mr Collins QC, submitting additional evidence from one Vandimeer who said that he had in fact taken gunpowder to Flannery in hospital in January 1984, from Mrs Flannery, who insisted that her husband had in fact been ill and spoke of swelling under the armpit (an indication of septicaemia), nausea and high temperature on the Saturday, and from one O’Brien, who also deposed to Flannery speaking to him in December 1983 or January 1984 about the “old gunpowder trick” to get him into hospital. This must have been rejected, and a further application, details of which I do not have, was rejected by Mr Hannaford on 6/4/93. 

The essential feature of the Crown case on count two was that the treatment of Flannery and his admission to hospital were corrupt acts by querist with a view to Flannery’s being unfit for trial on 31/1/84. Evidence that Flannery had in mind the ingestion of gunpowder to produce the requisite symptoms, supported by evidence that he received a quantity in hospital, would give weight to the hypothesis that the perversion of justice was the work of Flannery who used gunpowder to produce a situation which called for his hospitalisation. The evidence of Keane would, if it matters, be admissible at a retrial as going to Flannery’s state of mind: Walton (166 CLR 283). I say, if it matters, because proceedings under s.475 are not directed to retrial. The evidence of Vandimeer would be admissible as direct evidence supporting the gunpowder trick hypothesis even if Flannery did not consider it necessary to use it while in hospital. The evidence of Mrs Hall corroborates querist’s evidence, that Flannery was introduced by the police but in circumstances quite innocent so far as querist is concerned and it conveys no suggestion that querist was, for example, expecting Flannery, or that the tattoo procedure had already been agreed – quite the contrary. The evidence of Mrs Flannery corroborates the medical record which shows that on admission Flannery had an infected right forearm, very sore and swollen, and was vomiting and  feeling nauseous on admission.

So far as count one is concerned, the Crown case required an adverse inference to be drawn from the tapes. So far as count two is concerned, the Crown case again required an adverse inference to be drawn from the tapes. Now if the tapes are wholly equivocal as to when querist became aware of the facts he so lightheartedly recounted with what some might regard as misplaced joviality – and, in my opinion, they are – it is a classic case for the application of the principle which governs cases of  circumstantial evidence, recently examined by the High Court in Knight, supra. That case concerned proof of the state of mind of a prisoner standing trial for attempted murder when the relevant shot was fired. The majority (Mason CJ, Dawson and Toohy JJ, at pp 502-3 say: “The state of mind of the appellant was necessarily a matter of inference from other facts found by the jury. In those circumstances, the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognised. As

Dixon J said in Martin v. Osborne 1936 (55 CLR 367, 375):

‘If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.”‘

And at p.503 they cite a further passage from the same judgment of Dixon J:

“This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.”

The fact proved is querist’s awareness of a situation which involved the state of mind of Flannery and of the police in late January 1984 and prior to his certificate. The fact to be proved is that he became aware of the situation prior to the giving of the certificate. Without more, no such conclusion could rationally be drawn.

Is there more? The learned judge in summing up told the jury that Duff had more than a casual acquaintance with querist and went on, “We are not to know what the basis of that friendship was. We do not know why people in our community sometimes try to cultivate senior police officers, but it happens.”

Nothing briefed to me shows that there was a friendship at all. The last sentence is plainly a suggestion that querist was at least likely to be one of the people in the community who improperly cultivate senior police officers. If there is no basis for that it is a highly prejudicial slur by the presiding judge. It did not end there. The learned judge went on to refer to the Crown’s assertion that there had been demonstrated “just how that sort of association can sometimes lead to criminal activity”. The learned judge proceeds to remind the jury that Duff, although not officially involved in the harassment complaint, went to Castle Hill police station because obviously he was concerned “as a friend of the accused that everything was being done that could be done to locate Evans”. The suggestion, whether it emanates from the Crown or not, seems to have been that it was corrupt or improper for Duff to have interested himself in the matter of the harassment by Evans, if Evans it was. For my part I cannot see how that can be suggested, but of course Duff and McNamara had an interest of their own in ensuring that querist whom, on his account of things, they had duped, did not become frustrated and try to say too much. It is possible that querist said something in his evidence to the J Medical Board which might lend some colour to these directions to the jury and if so

I should be told. I return to the legal aspect of the summing up. The summing up was, with respect, quite unsatisfactory for a case which was essentially circumstantial. One would have expected a direction in conformity with, say, Peacock ( 1911) 13 CLR 619, an indication of the critical fact or facts to be proved by inference from the facts proved and an indication of the competing hypotheses. Instead there was no reference to principle until the summing up was almost completed, when the jury is given a final and perfunctory direction in the following language:

“There is a further direction of law I have to give you and that is that if there are two competing theories, one of which is consistent with the accused’s innocence, then you must give him the benefit of the doubt. That does not mean to say that just because you have heard some explanation or two other explanations you have to weigh the effect of those explanations. Is it a valid theory? Is it one that is plausible in all the circumstances? Because it is all the evidence that you have to consider before you in deciding whether you find one way or the other.”

The more usual direction is that referred to in Knight at p.205, namely, that the jury should only find by inference an element of the offence charged if there are no other inference or inferences which are favourable to the defendant reasonably open on the facts. However as in Knight so here, the question is whether the jury, acting reasonably, could have rejected as a rational inference the possibility that querist had no guilty knowledge when he treated Flannery on 26/1/84 and admitted him to hospital on 28/1/84.

I turn now to the question of possible relief. The new Part 13A of the Crimes Act replaces not only s.475 of that Act but also s.56(a) of the Criminal Appeal Act 1912. It applies to past convictions: s.12 of the amending Act (No. 64 of 1993) unless a matter was pending under s.475 or s.12(a) as the case may be. It would seem that querist petition has to be no made matter, to the which Governor is undefined, for a review so pending. or the exercise Division 2 of provides the pardoning for a. power: s.4748, whereupon the Governor may direct an inquiry, the Minister may refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal, or the Minister may request the opinion of the Court of Criminal Appeal on  any point: s.474C(1). However before any action is taken under s.474C(1) there must be a doubt or question as to the convicted person’s guilt: s.474C(2) and if the same  matter has been dealt with under s.475 the petition need not be dealt with unless the Minister is satisfied that special facts or circumstances justify the taking of further action: s.474C(3).

Division 3 provides for an application for an inquiry to the Supreme Court: s.474D(1). An inquiry may be directed only if there is a doubt or question as to guilt, as to any mitigating circumstances in the case or any part of the evidence: s.474E(2). There is the same discretion as under s.474C(3) if the same matter has been dealt with under s.475.

The distinction between the two procedures is that the petition under Division 2 can get the case straight to the Court of Criminal Appeal under s.474C(1)(b). In querist’s situation this has much to recommend it. The relevant material has been collected and put before the Chief Justice, Finlay J, and a succession of Attorneys-General. There seems to be no need for further inquiry which may be time-consuming and costly. The only witnesses who have not been submitted to cross-examination are Professor Crank, Mrs Hall, Vandimeer and O’Brien. No doubt the Court of Criminal Appeal could order their cross-examination. Such a course would have the advantage of providing finality for both querist and the Crown. Finally, the question must be asked what the special facts and circumstances are that justify the taking of further action. I would summarise them as follows:

(1) Querist faced the jury as a professional man well known to be offside with his profession and a man with a flamboyant lifestyle. Such men tend to receive little sympathy from judge or jury and it is essential to a fair trial that in such cases it be conducted strictly according to law.

(2) The trial was marred by errors of law in that –

(i) the act required to be proved as the act solicited was not confined to

assault;

(ii) the direction in relation to circumstantial evidence was not adequate;

(iii) the jury was invited to draw inferences of guilt from ambiguous words without a warning that they could only do so if those inferences were the only rational inferences which could be drawn.

(3) It was not open to the jury to draw inferences of guilt from the telephone conversations of 3/3/84 and 15/4/84.

(4) There was no friendship between querist and Duff and no evidence of any relationship other than that of a medical practitioner and patient. The summing up of the learned judge when he told the jury that Duff had more than a casual relationship with querist was in error.

(5) The only review at judicial level of the new evidence has been that of Finlay J, who, with respect, misconceived his function. The evidence of Keane, if believed, would have shed new light on the case. Any one who thought it capable of belief would have felt the requisite “unease” or “sense of disquiet”: Varley 1987 (8 NSW LR 30, 35, 48). In rejecting it out of hand his Honour was really requiring doubt as to querist’s guilt to be shown to his own satisfaction which is, with respect, erroneous: Varley at 48. As to Mrs Hall there is no indication that his Honour recognised the significance of her evidence, namely, (a) that to all appearances Flannery came in the ordinary way to the surgery (although she was surprised that police had recommended it); and (b) that the critical approach by querist to Flannery on 3/3/84 was immediately followed by querist calling for Duffs card and putting the matter in his hands. His Honour’s suggestion that her evidence should have been available at the trial overlooks the fact that evidence need not be fresh evidence for the purpose of the doubt required by s.475 and now ss474C(2) and 474E(2) See e.g. Varley at p.45. (5) Querist has long since served his sentences. This however is no impediment. Section 475, the precursor of the present legislation, was designed to enable a man to clear his name: White 1906 (4 CLR 152, 165) per O’Connor J. This is of especial importance to querist who is not being permitted to practise his profession while the convictions stand. In conclusion I am of the opinion that there are good grounds for a petition for a review of querist’s convictions or the exercise of the Governor’s pardoning power, under s.474B of the Crimes Act 1900, to the end that His Excellency may be pleased to exercise the pardoning power or alternatively the Honourable the Minister may refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal.

Peter David Connolly QC, Former Queensland Supreme Court Justice 1993

may be pleased to exercise the pardoning power or alternatively the Honourable

the minister may refer the whole case to the Court of Criminal Appeal to be

dealt with as an appeal.

……….. . P .b. Connolly Chambers 26 October, 1995

Greg James QC Comments on Geoffrey Edelsten Conviction Proves Wrongful Conviction

By | References | No Comments
Hon. Greg James AM QC.
Frederick Jordan Chambers.
53 Martin Place
Sydney NSW 2000
DX 450 SYDNEY
+61 2 9268 0114
0419 48 76 73
gregjames1944@gmail.com

19 April 2013
Mark Kerr _Berkeley Consultants Pty Limited
Level 2,
90 William Street,
MELBOURNE VICTORIA 3000
Dear Mark,
I attach a copy of the advice together with my memorandum of fees.

I have had some of the basic review work done by Junior Counsel as I indicated to you and have paid him out of the fee I charge. I confirm that the attitude to a review of the evidence by the Court of Criminal Appeal both under the Criminal Appeal Act 1912 (NSW) and the Crimes (Appeal and Review) Act 2001 (NSW) on grounds of unreasonable (unsafe and unsatisfactory) tends to ebb and flow from time to time and with different benches. But I have taken that into account.

As I said to Mr Edelstein in conference, generally speaking the Court of · Criminal Appeal appears less and less reluctant (with encouragement of the High Court of Australia) to review the evidence itself to assess the reasonableness of the verdict.

Yours faithfully,

The Hon Greg James AM QC

**Liability limited by a scheme approved under Professional Standards Legislation**

Dr Geoffrey Edelsten

Application Pursuant to the Crimes (Appeal and Review) Act 2001

Memorandum of Advice

  1. Introduction

1.1. I was the counsel briefed for Dr Geoffrey Edelsten (as he then was) in the committal proceedings. I was unable to appear at the trial.

1.2. Nevertheless as can be seen from previous advices included with the brief, as I indicated at a conference with my present instructing solicitors, the papers of Shenker & Associates and referred to in the petition which was referred to Findlay J, I have personally always regarded the conviction as affected by doubt and unsafe.

1.3. I have followed the progress of the trial by reviewing the trial transcript and have reviewed the matters raised in the advices of various counsel, the matters raised in the petitions and determinations of them. I remain of that view whilst accepting that it is a view not all others would share.

1 .4. I am not persuaded that the Client’s discussions with Christopher Dale Flannery amounted to an intentional solicitation to Flannery to assault the former patient.

1.5. I am unable to accept that Dr Edelsten’s decision to remove Flannery’s tattoos, the timing of the medical procedures to do so, the medical certificate provided in consequence of the medical procedure and the aftermath even if considered in conjunction with the materials said to support the intentional solicitation amounted to a deliberate attempt to pervert the course of justice by ensuring the trial was improperly adjourned or to avoid trial before the Chief Justice of the Criminal Division of the Supreme Court of New South Wales O’Brien J.

1.6. However, as I have noted others do not agree with me. And the fate of various previous attempts to have the conviction reviewed well illustrates this. Nonetheless, following Eastman v the Queen (2003) 214 CLR 218, SKA v the Queen [2011] HCA 13 and other cases, the prospect of a decision or question concerning guilt such as might see the overturning of the convictions seems to me open and consequently I have drawn this document on that basis.

1.7. In particular SKA and more recent decisions of the High Court since the determination of the earlier petition and the advice of the late Peter Connolly QC makes it clear it is for the appellate court to review the whole matter to determine if on the material there is doubt, which the jury should have held and that the jury’s position of advantage was not sufficient reason for them not to have held that doubt.

1.8. In applying s77 and 79 of Crimes (Appeal and Review) Act 2001 it is important to remember that courts have continually held the view of this legislation and its predecessors that they will not allow re- agitation of questions already determined. I have taken that into account and the present advice is given with a view, so far as possible, to avoid that occurring in any consequent application.

  1. The Conviction

2.1. The Client was convicted in respect of two charges by a jury on 27 July 1990 in a Trial presided over by Sharpe J: ·

  1. That between one January 1984 and 30 April 1994 he solicited Christopher Dale Flannery to assault Stephen William Evans.
  2. That on 31 January 1994 he perverted the course of justice in that he .improperly obtained an adjournment of the trial of Flannery that was fixed for that day in the Supreme Court by certifying that Flannery was unfit to stand his trial on that day, and the said Geoffrey Walter Edelsten having rendered medical treatment to·the said Christopher Dale Flannery with the intention that the said Christopher Dale Flannery avoid his said trial.

2.2. The Client was sentenced to and has served a period of six months imprisonment for each conviction, served cumulatively.

2.3. It is in respect of these convictions that the reviews are sought.

  1. The Appeal

3.1. The Client has already run an appeal to completion R v Edelsten (1990) 21 NSWLR 542.

3.2. The appeal ran on limited grounds that related to two issues. The first issue was the admissibility of the tape recordings obtained by Mr Beaver; the Court of Appeal found that the evidence was correctly admitted.

3.3. The second issue arose from the manner in which the Crown ran its case. There was strong evidence Flannery was suffering from septicaemia and the adjournment was obtained on a certificate to that effect. The Crown’s case was that it did not matter if Flannery suffered septicaemia or not, they did not need to prove it. The  timing of the tattoo removal and its probably consequences constituted the actus. Legal advisers for our Client at the time argued that his Honour should have directed the jury that they must have been satisfied the medical certificate was false; the Court of Appeal did not agree. Similarly, the Court of Appeal found that the conduct relied upon was sufficient to satisfy the charge.

3.4. The appeal never proceeded on the basis that the verdict and conviction were unsafe or unsatisfactory.

3.5. The appeal was made, heard and determined. While there may be additional grounds· upon which an appeal could have been run, there can only be one appeal (Grierson (1938) 60 CLR 431) the Client has therefore exhausted his right to appeal.

  1. Previous Petitions

4.1. There have been a number of previous petitions to the Governor and applications to the Supreme Court.

4.2. It appears that a petition for a Judicial Inquiry made to the Honourable J Dowd QC in or about 5 February 1991 and was rejected by his letter dated 18 March 1991. I do not have a copy of this petition. From later petitions, it appears that this petition was made without the benefit of Queens Counsel’s advice in support.

4.3. On 5 June 1991 a petition was made to the Chief Justice (as he then was) to direct a judicial enquiry into the Client’s convictions. That petition was prepared by Shenker & Associates, and relied upon a question of doubt said to arise from fresh evidence of Mr Dennis John Keane, Mr Glenn Alexander, Prof G Crank, Mr Graham Rogers, and Ms Carol Alice Hall (formerly Bolton). The petition was supported by the advices of Mr Marie’s Neil QC, Mr Bruce Stratton QC and myself.

4.4. Finlay J rejected the 5 June 1991 petition on 1 O July 1991. In providing his opinion, Finlay J simply stated that he did not feel the requisite “sense of unease or disquiet” to order an· enquiry. The opinion of Peter Connolly QC is that Finlay J erroneously applied his own standard of what is required to feel a relevant sense of unease or disquiet, I share that view.

4.5. On 29 November 1991, a further petition for Judicial Inquiry was made to the Honourable P Collins QC, the then Attorney General for the State of New South Wales.

4.6. This petition was based on a signed statement of Ian Vandimeer, the unsigned statement of Mick O’Brien, a signed statement of Roger Hodge, a transcript of evidence given by Kathleen May Flannery during an enquiry before the medical board of Victoria in September 1991, a transcript of evidence of Dennis John Keane in the same enquiry, police run sheets about extortion complaints and medical records relating to Edelsten’s treatment of Flannery.

4.7. Finally, a further petition was prepared in about September 1997 that incorporated Peter Connelly QC’s advice. I prepare this advice on the basis that this petition was never actually presented. That appears the case in light of the documents produced in response to the Client’s previous request pursuant to the Government Information (Public Access) Act 2009.

  1. Current Options

5.1. There are two possible avenues that the Client may pursue; they are either a petition to the Governor under ss 76-77 of Crimes (Appeal and Review) Act 2001 (the Act) or an application to the Supreme Court for inquiry under ss78-79 of the Act.

5.2. Section 77 contains the relevant procedure;

             77 Consideration of petitions

               ( 1) After the consideration of a petition:
                            (a) the Governor may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
                            (b) the Minister may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 , or
                            (c) the Minister may request the Court of Criminal Appeal to give an opinion on any point arising in the case.

               (2) Action under subsection (1) may only be taken if it appears that 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.

               (3) The Governor or the Minister may refuse to consider or otherwise deal with a petition. Without limiting the foregoing, the Governor or the Minister may refuse to consider or otherwise deal with a petition if:
                     (a) it appears that the matter:
                                  (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
                                  (ii) has previously been dealt with under this Part or under the previous review provisions, or
                                  (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
                                  (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
                    (b) the Governor or the Minister is not satisfied that there are special facts or special circumstances that justify the taking of further action.
                (3A) The Governor or the Minister may defer consideration of a petition if:
                     (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or
                     (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or
                     (c) the petition fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

               (4) The Minister must cause a report to be given to the registrar of the Criminal Division of the Supreme Court as to any action taken by the Governor or the Minister under this section (including a refusal to consider or otherwise deal with a petition).

               (5) A petition (however described) that does not expressly seek a review of a conviction or sentence or the exercise of the Governor’s pardoning power may be dealt with as if it did if the Minister is of the opinion that it should be so dealt with.

5.3. Importantly, special facts or special circumstances justifying further action are essential.

5.4. Section 79 concerns applications for inquiry to the Supreme Court. I set out the relevant portion of that section below and note that ss(2)-(5) mirror the corresponding subsections to s77 above:

    (1) After considering an application under section 78 or on its own motion:

         (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 .

5.5. The relevant test for whether there is “a doubt or question” as to the Client’s guilt is set out in Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 (approved in Re Rendell (1987) 32 A Crim R 243) as causing a Judge a sense of “unease” or a “sense of disquiet” in allowing a conviction to stand.

5.6. The more recent decision of Eastman v the Queen (2003) 214 CLR 318 has indicated in relation to a predecessor section that the process can be used to refer to doubt as to a finding of guilt arising from procedural issues.

5.7. As noted above, there have been several other petitions made in respect of this matter. The previous petitions will need to be distinguished from the present petition to ensure that the Governor or Minister is satisfied there are special facts or circumstances justifying the taking of further action in this case.

5.8. However, if the material that we put forward as a whole is capable of creating the sense of disquiet or unease referred to in the authorities, that should be a sufficient circumstance that would justify the taking of further action in the case.

5.9. For my part, I agree with the late Mr Connelly QC’s and Mr Tehan QC’s advice that the preferable course of action is the petition to the Governor.

  1. Grounds of Petition

6.1. The petition can proceed relying on the following_ matters each of which and the combination of them shows the basis for the existence of an unresolved doubt as to guilt or as to the evidence of the case:

a.That the trial Judge erred in that he misdirected the jury as to the circumstantial evidence and the use of competing theories. In particular, his Honour, failed to direct the Jury that if they could not exclude that an innocent explanation as a rational hypothesis of the meaning of the telephone conversation on 15 April 1984 then they ought to acquit the Client;

b.That the trial Judge misdirected the jury that the Client had more . than a casual acquaintance with former Detective Sergeant Duff that was not supported by the evidence;

c.That the trial Judge misdirected the jury in that he made certain prejudicial remarks to the jury about the “friendship” between Detective Sergeant Duff and the Client to the effect that “We are not to know what the basis of that friendship was. We do not know why people in our community sometimes try to cultivate senior police officers, but it happens” and “just how that sort of association can sometimes lead to criminal activity.”

d.That the trial Judge misdirected the jury to the effect that the jury could convict on the count of soliciting assault if the Client’s words of “get him off my back” included persuasion by means other than assault. The offence required an intentional persuasion to commit the assault i.e. the assault must be intended.

e.That there is additional evidence available which is consistent with the innocent explanations not only of the Client’s conduct, and in keeping with the misdirection above, moreover the innocent explanations for the contents of the telephone conversations provided by the Client.

        f. There is a further ground to those identified by Mr Connelly QC; it was to be expected that the prosecutor as part of the duty to call relevant witnesses would have called Kathleen May Flannery who, it seems from other evidence, would have been able to give evidence concerning her husband’s intent. He, of course, was dead. The failure of the prosecutor to call Mrs Flannery without reasonable ·excuse, presumably because it was though she was in the opposing camp (but see Kneebone v the Queen (1999) 47 NSWLR 450), and in any event the failure of consideration being given to the absence of her evidence not only afforded no support for the Crown case but leaves open areas where a lack of support for the Crown case is significant.

  1. Misdirection

7.1 Circumstantial Case

7.1.1. The jury would be directed to acquit the Client if the Crown case was based solely on the evidence concerning hospitalization.

7.1.2. However, the Crown case relied on the alleged admissions in the telephone conversations with the Client and his receptionist and fiance. Those conversations are set out at pages 5-7 of Connolly QC’s advice.

7.1.3. I agree with Connolly QC’s analysis that there were a number of interpretations of those conversations some of which would have been consistent with guilt and some consistent with innocence.

7 .1.4. What is most important is that the case was circumstantial and hinged upon the alleged admissions. Unless the conversations were only consistent with guilt then the evidence otherwise does not support the offences charged.

7.1.5. In a circumstantial case such as this, the Jury ought to have been directed that if they found a rational explanation for the telephone conversations consistent with the Client’s innocence they must acquit. That is, they must be satisfied from their interpretation of the telephone conversations that the Client knew at the time he administered the treatment, that is 26 March 1984, that Flannery was to stand trial for Murder the following week and that he intended the provision of the treatment and the timing of it to produce an adjournment.

7.1.6. Such directions were not given and on a review of the whole of the evidence with such direction in mind it is strongly arguable that the alternative rational hypothesis could not be excluded.

7.1.7. For this alone, the verdict would be unsafe or unsatisfactory.

7.2. Association with Duff- Cultivating Senior Police Officers

7.2.1. Simply put, there was no evidence for the learned Trial Judge .to state that the Client had more than a casual acquaintance with Duff. The degree of familiarity with Duff was a matter for the Jury to determine in their deliberations.

7.2.2. The Trial Judge’s comment was a misstatement of the evidence and a serious one and lays a platform for both convictions to be made by the Jury. Such that, if the jury had found that there was only a mere casual acquaintance between the Client and Duff they would have more difficulty accepting that there was an intention as at 26 January 1984 to pervert the course of justice.

7.2.3. Further, this issue is compounded when the learned Trial Judge made a number of prejudicial statements that: “We are not to know what the basis of that friendship was. We do not know why people in our community sometimes try to cultivate senior police officers, but it happens” and “just how that sort of association can sometimes lead to criminal activity.”

7.2.4. That characterisation by the learned Trial Judge gives a flavour to the evidence that simply was not open. While there may have been undertones of this, there was no direct evidence nor basis to infer any such “cultivation” or “criminal activity” other than was the subject of the charges before the jury.

7 .2.5. The direction was prejudicial and not supported by the evidence.

7.3. Solicit Assault Misdirection

7 .3 .1. I agree entirely with the analysis of Mr Connelly QC that the direction to the jury regarding the assault amounted to a misdirection.

7.3.2. For the sake of completeness the relevant issue is the sentence: “In light of what the accused’s explanation is, that is as a conversation after the certificate was given and Flannery only then telling him of his profession, were the words, “get him off my back” an attempt to induce or incite Flannery to use persuasion, assault, etc, to stop that harassment. That is the basic question you have. If you are convinced beyond reasonable doubt, then. he should be convicted.” Directly after that sentence there was a short adjournment.

7.3.3. That completely misstates the question for the jury. Persuasion could mean something very innocent, which includes simply talking to a person. The direction given encompasses that innocent explanation in the question for the jury to decide. Accordingly, a juror armed with this direction may determine that the Client wanted Flannery to talk to Evans and this would satisfy the question put to the juror, but would not be consistent with the Client’s guilt for the crime charged.

7.3.4. For that reason, the conviction would be unsatisfactory or unsafe.

  1. The New and Fresh Evidence

8.1. There is presently available evidence that, were it led at trial, would have corroborated the Client’s innocent contentions for the telephone conversations and accordingly could have assisted a jury to acquit him of the charges.

8.2. Kathleen Flannery

8.2.1. The first piece of evidence is that of Kathleen May Flannery, the wife of Christopher Dale Flannery. Her evidence is contained in a transcript of oral evidence provided to a Victorian Medical Tribunal in or around 1991 .

8.2.2. Her evidence was that Flannery could not drive and she often drove him various places including the Client’s surgery. She did not recall how many occasions he attended the Client for tattoo removal, but remembered that it was just before his trial for murder. Her understanding was that Flannery attended the Client’s surgery for treatment because of advertisements he had read for tattoo removal.

8.2.3. She recalled that after the second or third treatment Flannery’s hand had a strong smell “really bad like dead meat” he was nauseous, dizzy and had “lumps under one arm.” She also observed that Flannery was vomiting and “really hot.”

8.2.4. She denied any knowledge of any plot for Flannery to avoid his trial. In particular, she expressed genuine surprise that the Client had been convicted.

8.2.5. · Mrs Flannery recounted an occasion where the Client told Flannery that there was an ex-patient trying to blackmail him. She said that her husband said to the Client that he would call Detective Duff. She then recounted a meeting between Detective Duff and Flannery where Duff stated that he would put the PO Box under surveillance.

8.2.6. In this case the central evidence concerning the perversion of justice charge was the medical certificate. That certificate set out that Mrs Flannery had reported the symptoms to the Client’s receptionist.

8.2.7. The Crown case was run suggesting that it did not matter whether the certificate was true or false. However, the Crown led evidence to strengthen the possibility of securing that finding by indicating that Flannery did not suffer from symptoms as poor as those complained of over the phone by his wife. Surely then, the evidence of Mrs Flannery regarding her observations of Flannery, the genuineness of his treatment and the manner in which he came to know the Client are matters that ought to have been before the Court.

8.2.8. The Jury may have provided their verdict on the basis of the evidence before the Court that Flannery’s symptoms were not as serious as reported and that there should have been no hospitalisation. If the jury had accepted Mrs Flannery’s evidence the jury may have had more difficulty accepting that proposition and, similarly, more difficulty in accepting the guilty explanation of the telephone calls.

8.2.9. Mr Flannery ought to have been led by the Crown in chief or made available by the Crown as a witness. The failure to call that witness viewed against the conduct of the trial taken as a whole (that is including the evidence led, the other missing evidence, the poor and inflammatory directions given by the trial judge) should be considered a miscarriage of justice.

8.3. Dr Geoffrey Scarlett

8.3.1. In a brief report, Dr Scarlett provided an opinion that lumps under the arms, interpreted as lumps in the armpits, could be an indication of inflamed axillary lymph nodes. Such information could be indicative of an acute inflammatory process in the body i.e an infection. ·

8.4. Dennis John Keane and Graham Rogers

8.4.1. Keane’s evidence is a transcript of oral evidence given before the same medical tribunal as Mrs Flannery did above. He has also given a statement. His evidence is that while he visited his brother- in-law in gaol, the Client’s name came up and Keane expressed the opinion that he got a raw deal. Keane was then put in contact with the Client’s then solicitor. This evidence is corroborated by Graham Rogers.

8.4.2. Keane was an acquaintance of Flannery who had two relevant conversations with him.

8.4.3. The first was where Flannery, in hospital, discussed the use of the “gunpowder trick” of ingesting gunpowder as a means to increase his heart rate and blood pressure to prevent his discharge from hospital before the hearing. The force of his evidence on this point was that Flannery was worried that the Doctor would get onto his plan and discharge him from hospital before the Trial.

8.4.4. The second was regarding the alleged solicitation. In that conversation Flannery recounted the Client asking Flannery to help him find Evans, which Flannery reportedly responded with “take it to the cops.” Keane’s evidence was that Flannery, in uttering those words was actually fobbing off the Client, as Flannery did not hold the police in high regard.

8.4.5. Keane indicated that he was not aware of the proceedings against the Client until after the Client had been convicted.

8.5. Ian Vandimeer

8.5.1. In a sworn statement, Ian Vandimeer says that he was telephoned by a mutual friend and Flannery to deliver some gunpowder to Flannery in hospital. Vandimeer did this by giving Flannery shotgun pellets broken open and placed in paper.

8.5.2. Vandimeer the poses that Flannery told him that he was on trial the following week and he wanted to put the trial off. Flannery indicated that the Client might not believe that he was sick, and needed the gunpowder to make sure the Client retained that belief and did not discharge him from hospital.

8.6. Mick O’Brien

8.6.1. O’Brien describes a conversation with Flannery about his upcoming trial in or about December 1983 or January 1984. In that conversation, Flannery told O’Brien that he might have to use the “old tri,ck” and in doing so mentioned the use of gunpowder.

8.6.2. Flannery indicated that the use of gunpowder “blows in your blood pressure right up and you become very unstable.” He also stated “I’ll have to find a doctor can be put into hospital so I’ll have to use the gunpowder trick.”

8.6.3. O’Brien recounted a later conversation where Flannery posted about fooling the Client by using the old gunpowder trick where Flannery said words of the effects of “I had that had to removed and I used that for the symptoms.” O’Brien stated that Flannery boasted about the trick on several occasions. Those boasts were the only time when Flannery mentioned the Client to O’Brien.

8.6.4. Further, O’Brien recounted further conversations where Flannery described the Client as being aware of his trick but that there was no need to worry because other people were going to “stitch him up.”

8.6.5. O’Brian came in contact with the Client as a result of A Current Affair screening a programme regarding the Client.

8.7. Roger Hodge

8.7.1. In a signed statement Mr Hodge says he was a security consultant that was engaged by the Client to do certain work. He details enquiries he made regarding the harassment received by the Client. In particular, he said that after the police arrested Evans he sent staff to Parramatta Court to take photos of Evans so that the security staff would be aware of who Evans was.

  1. 8. Professor Crank

8.8.1. Professor Crank provided a useful opinion to the effect that ingestion of the gunpowder can produce the symptoms that were observed in Flannery upon his hospitalisation. That is, “it may cause gastroenteritis with abdominal pain, vomiting, vertigo, muscular weakness, irregular pulse, disturbances in heart rhythm, changes in blood pressure, cyanosis, convulsions and possibly collapse and death.”

8.8.2. Accordingly, he opines that body vital signs such as blood pressure, temperature and pulse rate could be affected by consuming gunpowder.

8.9. Carolyn Alice Hall

8.9.1. Mrs Hall was a former supervisor and receptionist employed by the Client. She gives a relatively detailed statement regarding her dealings with Flannery.

8.9.2. She firstly recounted a telephone conversation where Flannery first called and asked if the Client did Tattoo removals to which she agreed and he then hung up. He later arrived at the surgery and said words to the effect “I was told by policeman friend that the Doctor did tattoo removals. I would like to see him about getting one removed.” Mrs Hall directed him to wait and provided him with the usual literature she provided to patents getting that treatment.

8.9.3. After waiting he eventually saw the Client at his Georges Hall surgery and Mrs Hall heard the Client say to Flannery after explaining the procedure of tattoo removals “go away and think about what I have said.”

8.9.4. That afternoon, she says the Client attended to the removal of a tattoo on Flannery’s right arm because she heard the laser machine in operation. She next saw Flannery at the Georges Hall surgery on that Saturday morning after the original tattoo removal. She says that appointment was for the wound to be checked and dressed. That was the last time she saw Flannery.

8.9.5. She says she received some of the harassing material namely pornographic material and she was aware the Client received threats commencing sometime in March 1984.

8.9.6. In around March 1984 Mrs Hall remembers the Client requested Flannery’s patient card. She heard the Client telephone Flannery and have a conversation where she specifically heard the Client use words the effect of “do you know anything about who is harassing me and why? Why are people doing this?” She then entered the Client’s office was told in no uncertain terms to leave

8.9.7. Following this telephone conversation the Client asked Mrs Hall for Duff’s patient card and said words the effect of “sorry but I just want to find out who is harassing me.11 In her observation the Client seemed quite stressed.

8.9.8. She provided some fairly reasonable reasons why she did not give

this evidence to the Client’s legal advisers previously.

  1. Effect of the New and Fresh Evidence

9.1. The evidence described above was new and fresh as distinct from the evidence led at trial.

9.2. The effect of this new evidence is that the innocent explanations provided by the Client for the telephone conversations and of his conduct had more substantial evidentiary weight.

9.3. The evidence regarding the “gunpowder trick” matches up reasonably well. It does provide a reasonable basis for the proposition that Flannery deceived the Client. That is, Flannery went to the Client with the intention of obtaining the treatment to obtain the adjournment without the Client knowing Flannery’s intention. The medical evidence supports this proposition as being plausible.

9.4. Had the evidence been provided to the jury, it was capable of lending further weight to the competing innocent interpretation of the telephone conversations.

9.5. While, to some extent, Mrs Flannery’s version of events is inconsistent with the “gunpowder trick” theory, it does provide

evidence and support for the proposition that Flannery was genuinely suffering from infection on the Saturday afternoon. It further lends weight to the version of events provided by the Client. That is, Mrs Flannery complaining of symptoms to the receptionist that indicated septicaemia that were directly observed by her, which accord with the observations reported at the time and that formed the basis of the Client’s course of action. The medical evidence at trial and in support of the earlier petitions further corroborates this account.

9.6. The inconsistency with the gunpowder theory can be explained by Flannery either not wanting to involve his wife or alternatively wanting to keep his nefarious activities secret from her. It was her evidence that she was unaware of his criminal activities such as murder and the like.

9.7. Further, there are a number of consistent accounts that the · telephone  conversations with Flannery proceeded in the manner alleged by the Client. Again, lending weight to a competing theory of the intention to solicit assault charge. Particular weight should be given to the Receptionist’s evidence in my view.

9.8. I am of the view that the evidence seen as a whole simply does not allow the innocent explanation for the telephone conversation to be excluded. Accordingly, a· reasonable jury, properly instructed, could not have found it open to them to be satisfied beyond a reasonable doubt that the Client was guilty (See SKA). Alternatively, it at least raises a doubt or disquiet.

9.9. The new and fresh evidence, in conjunction with the evidence given at trial is persuasive that Dr Edelsten is not guilty, i.e. there is a reasonable doubt, it is admissible and the convictions should be overturned. Also, the fresh evidence when taken in conjunction with the other matters referred to in this advice it seems that it also operates so that on a consideration of all the circumstances of the conviction it should be overturned.

  1. An inquiry Should be Ordered

10.1 . Taken as a whole, the incorrect direction as to circumstantial evidence, the inflammatory and prejudicial directions, the incorrect direction as to the definition of solicit, the new fresh evidence and the absence of the absence of Mrs Flannery’s it is strongly arguable that there remains the relevant sense of unease referred to in Varley.

10.2. While there have been a number of previous applications, those applications do not cover the substance of the present application nor the more recent judicial authority concerning the breadth of the

section to cover procedural issues such as the failure to call Mrs Flannery (see Eastman) .

10.3. I advise that a petition to the Governor Governor’s pardoning power or in the alternative seeking the a exercise referral of the to . the Court of Criminal Appeal under s77(1)(b) of the Crimes (Appeal and Review) Act 2001 be prepared. I recommend that a brief be sent to my learned junior Mr Petros Macarounas.

I so advise.

11 April 2013

 

To Hon. Greg  James AC QC
Frederiok . Jordan Chambers
53 Martin Place
Sydney NSW 2000
DX 450 Sydney
P: 9229 7333 ·
E: gregjames 1944@gmail.com

www.nhhealthyschoolenvironments.org www.familyresourceclinic.com www.medicalassistedrecoveryinc.com