By Paul Gregoire and Ugur Nedim
Eric Honeysett was arraigned and pleaded not guilty before a jury in the Supreme Court of New South Wales on 6 October 1987 for one count of supplying a prohibited drug under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW) and one of malicious wounding with intent under the Crimes Act 1900 (NSW).
The element of ‘malice’ has since been removed from the Crimes Act 1900, with the charge replacing malicious wounding with intent being wounding with intent to cause grievous bodily harm under section 33(1)(a) of the Act. This offence carries a maximum penalty of 25 years in prison.
A wounding is any breaking of both layers of the skin, being the dermis and epidermis, and grievous bodily harm has been defined by the courts using the colloquial language “really serious harm”.
The supply of a small quantity of prohibited drug carries a maximum penalty of 2 years in prison and/or a fine of $5,500 if the case is finalised in the Local Court, or up to 15 years and/or a $22,000 fine if dealt with by the District Court.
An ‘arraignment’ is where charges are read out to a defendant and he or she then formally enters pleas of guilty or not guilty.
Police testimony leads to guilty pleas
As the trial proceeded, a New South Wales police officer testified that during a surveillance operation, Honeysett had stabbed another officer, detective sergeant Richard Paynter, while attempting to flee arrest. He also gave evidence that Honeysett was found to be in possession of a small quantity of heroin.
The day after the evidence was given, Honeysett pleaded guilty to a lesser charge of using a weapon to prevent arrest, contrary section 33B of the Crimes Act, which carries a maximum penalty of 12 years behind bars. He also pleaded guilty to one count of supply.
Then NSW Supreme Court Justice Kep Enderby sentenced Honeysett to three years in prison, with the non-parole period set at two years.
A ‘non-parole period’ is the minimum time a sentenced person must spend behind bars before becoming eligible for release on conditional liberty.
Officers fabricated their testimony
In 1994, the Wood Royal Commission into NSW police found that the officers involved in the case had fabricated the evidence and were set to lie in court.
It further came to light that the defendant pleaded guilty after calculating that the combined perjury of the officers would likely see him convicted.
Appeal
On 3 May 2022, three decades on, Honeysett appealed to the New South Wales attorney general for a pardon.
The case was then referred to the New South Wales Court of Criminal Appeal (NSWCCA), as it was to be treated as an appeal under the Criminal Appeal Act 1912 (NSW).
The hearing of the appeal took place on 2 August this year, and it resulted in Honeysett, who had already served time over his convictions, seek to have them overturned on the basis that a miscarriage of justice had taken place.
“An affront to justice”
In opening his 28 August final findings, Chief Judge at Common Law Robert Beech-Jones remarked that at the time Honeysett went before the courts, “outward appearances” suggested “firm adherence to due process”, because of corruption. So, the proceedings were “an affront to justice”.
The 1987 agreed facts before the court involved a taskforce having surveilled Honeysett for some months, which led to Paynter following him into an Alexandria laneway one night, as he was about to sell some heroin. And as the detective attempted to arrest him, Honeysett stabbed him and fled.
After the accused pled not guilty on the first day of trial, an unnamed detective gave evidence that he saw the incident in the lane, including Paynter grabbing his wounded arm. And he added that he was present when Paynter and another officer found the alleged perpetrator in a house close by.
The same detective said he later found the knife that had traces of Paynter’s blood on it. And when it was put to him on cross-examination that these were all falsehoods, he denied the accusation.
Fresh evidence
The Wood Royal Commission heard the testimony of a number of officers involved. All who gave evidence under a pseudonym confessed that the arrest incident was fabricated. And those who testified under their own name kept to the original court version, except for Detective Trevor Haken.
Appeals usually consider the evidence available at trial. But in certain circumstances, where fresh relevant evidence has emerged, it can be considered at appeal, under the provisions of section 12 of the Criminal Appeal Act 1912 (NSW). The NSWCCA found the inquiry transcripts could be taken into account.
Haken recalled that after Honeysett was taken in, the story was concocted, including that Paynter’s wound from a fence could be the result of a stabbing, while the detective who’d testified at trial admitted to the inquiry that the knife was planted, and another couldn’t recall drugs being found.
During the inquiry, Honeysett stated that he was meeting a man in the lane, when he saw a gun pointed and shoot. He fled over a fence and ran through a house, where the occupants apprehended him. Then Paynter appeared, put a gun to his head and told him he was lucky there were witnesses.
A clear miscarriage
“The ground of appeal relied on by the appellant is that there has been a miscarriage of justice in that the ‘guilty plea entered by the appellant was not made with free choice’”, Justice Beech-Jones set out.
His Honour added that as no reversal of the guilty plea was attempted at trial, the miscarriage had to be proven, and such cases are to be treated with “‘caution bordering on circumspection’ given the ‘high public interest in the finality of legal proceedings’”.
And on citing the various authorities, the Chief Judge at Common Law summed them up by explaining that a plea entered with an understanding of the charges won’t be set aside, even if the accused is not guilty, except under certain exceptions, such as fraud and intimidation.
His Honour further explained that the evidence from the Wood inquiry had resulted in another set of convictions being dropped due to coercion, while in Honeysett’s case the Crown accepted that the wounding had been fabricated based on the new evidence but not in regard to drug supply.
The NSWCCA justice found that the fresh evidence from the inquiry “overwhelmingly demonstrated” that the stabbing was a fake, and he took the same view on the question of the drug supply conviction. Indeed, taken together the actions of the officers amounted to fraud, his Honour added.
Acquitted with costs
Justice Beech-Jones acquitted Honeysett on both charges, close to four decades after he’d been found guilty, on 28 August this year. And his colleagues on the bench, Justices Des Fagan and Hament Dhanji agreed with his findings.
Honeysett also applied for a certificate for costs to cover proceedings, and although the Criminal Appeal Act doesn’t permit such a certificate for an appeal, his lawyer contended that this case commenced in December 1983.
His Honour found that section 3 of the Costs in Criminal Cases Act 1967 (NSW) allows for a certificate to be granted if the prosecution would not have proceeded if all relevant facts were known, and section 3A extends this to “further relevant facts”.
A certificate was granted in accordance with section 2(1)(b) of the Act, as the convictions were quashed and Honeysett was discharged as to the indictment. This was further in accordance with section 7 of the Act, as this case hadn’t been fully determined prior to 2001.
