Ali v The Queen

[2004] HCATrans 378

[2004] HCATrans 378

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B42 of 2004

B e t w e e n -

RAYMOND AKHTAR ALI

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 OCTOBER 2004, AT 10.05 AM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC:   If the Court pleases, I appear for the appellant with MR P.E. SMITH.   (instructed by Terry Fisher & Co)

MRS L.J. CLARE:   May it please the Court, I appear with MR M.J. COPLEY for the respondent.   (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Fleming.

MR FLEMING:   Thank you, your Honours.  Your Honours, the transcript for the record is very large and we are not tempted to go into that very much at all.  We have highlighted in our submissions the areas of concern and so our submissions will principally be in respect of some of those things and the legal background to that.

If the Court pleases, in his address to the jury the appellant’s counsel was forced to portray a man who was an alcoholic‑consuming, smoking, dishonest, violent Muslim who was indiscriminate and voracious in his sexuality.  He painted him as a figure of ridicule and fun.  Unfortunately, there was evidence to support most of that in the trial.  Our concern is that that evidence was there in the first place.  It should never have been.

Your Honours, we say first the admission of that evidence and the manner of the conduct of the trial by the appellant’s counsel led to an unfair trial and a miscarriage of justice.  Second, we say that the whole of the case against the appellant was circumstantial and there was never a contest by the appellant’s counsel to any hypothesis of the Crown, nor was there any vigorous proposal of any alternative hypothesis put to the jury.  Her Honour, of course, was in the difficult situation of not having very much material to work with, despite ‑ ‑ ‑

GLEESON CJ:   Perhaps counsel was in that situation.

MR FLEMING:   Not necessarily, your Honour.  Counsel’s case needed only to be an address to the jury apart from an attack on the credit of Blackwell, the co‑accused.  We understand the proposition that counsel is constrained by his instructions and by the material with which he has to work, but here the material was all before the court in the form of the tape recording interviews, and there was material by which various hypotheses could have arisen, but none of them were. 

Your Honour, it is obvious, we would submit, that the performance of defence counsel in this case was flagrantly incompetent, even crass, and it was destructive of any chance that the jury could entertain a reasonable doubt as to his guilt.  Nor can it be said that the conduct of the case was the result of the exercise of counsel’s discretion, because, as the cases require, a decision by counsel has to be both informed and deliberate.  Sadly, the decisions taken by counsel in this case were both ignorant and accidental.  There was no alternative proposition ever put by counsel.

Counsel’s conduct, we would submit, has resulted in an unfair trial that of itself constitutes a miscarriage of justice.  Your Honours, that, with respect, is the context then in which we turn to the law.  Your Honours, we acknowledged in our outline that there were no novel concepts of law involved in this case because this Court has looked at this issue in TKWJ v The Queen (2002) 212 CLR 124. Your Honours, can I turn to the judgment first of Justice Gaudron and paragraph 26 where her Honour there said:

The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission –

that is of counsel –

in question “deprived the accused of a chance of acquittal that was fairly open”.  The word “fairly” should not be overlooked.  A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.

We say the decisions of counsel here could not constitute decisions that were rationally taken. 

The admission of evidence when it was clearly inadmissible, the refusal to object, even when invited to by her Honour, the cross‑examination which elicited from a policeman three times – not once, by accident, but three times – that the accused was a murderer, we say are not the result of any explicable decision on the part of counsel.  All he ever did was to reinforce the prosecution case, which, as we said at the outset, was circumstantial in any event.

Your Honours, Justice McHugh rendered a decision as well, a judgment in that case.  At paragraph 76 of that case, his Honour there said:

In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law.  If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice.

Pausing there, there was debate, obviously, in this case as to whether one had to look closely at the behaviour of counsel or whether one could see that the conduct of counsel resulted in an unfair trial.  In our submission, it is so clear in this case that the conduct of counsel constituted an unfair trial.  It calls out to us from the pages.  He in no way cross‑examined effectively any witness, when the only witness he really had to cross‑examine effectively was the co‑accused.

He did not address effectively, he did not take objection to evidence when he should have, and he actually elicited from time to time evidence which perhaps he thought he might like to rely upon, and that was some of the less attractive characteristics of the accused.  He elicited himself some of those.  His behaviour, in our submission, falls within what your Honour Justice McHugh said there.  Going to the bottom of that paragraph, the last sentence:

In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.

The trial, we would submit, was patently unfair, despite, we would say, the best endeavours of her Honour to address some of the issues, even inviting some objection, which was not forthcoming.  Indeed, on one notable occasion, defence counsel said, “It is not my position to object”. 

GLEESON CJ:   What do we take that to mean?  Are we to construe that?

MR FLEMING:   Yes.  Your Honour, we take it to mean, first, that he did not know what he was doing.  Saying, “It is not my position to object against this particular evidence” – perhaps he thought that it was admissible evidence anyway.  Second, it could mean that he was allowing the evidence in because he was running the case upon a particular theory.  Unfortunately, that theory never becomes apparent.  One cannot discern what that theory might be in the case at all, not from his address, not from his cross‑examination of any witness at all.  So, in our submission, either of those propositions shows that he was incompetent and he did not conduct this trial in an appropriate way for this accused.

Your Honour, our learned friends have said that it was a strong case against him, but that is our complaint.  The case was strong because the material that was there was never objected to and there was never occasion for her Honour to delete material, even though from time to time she actually invited objection, and from time to time herself intervened, for example, when the Crown was leading, and there was no objection to that.  So, your Honours, there is ‑ ‑ ‑

GLEESON CJ:   I may not understand the facts well enough, Mr Fleming, so correct me if I am wrong, but is it correct that included in the evidence against him was the evidence of Ms Blackwell?

MR FLEMING:   Yes.

GLEESON CJ:   And she was regarded as unreliable for a variety of reasons.

MR FLEMING:   Yes.

GLEESON CJ:   On the other hand, insofar as Ms Blackwell’s evidence was the account of what occurred on the occasion in question, the evidence was all one way, there was no evidence from your client.

MR FLEMING:   No evidence from our client except in respect of tapes that he had previously given.

GLEESON CJ:   So unreliable as the evidence of Ms Blackwell was, it was uncontradicted.

MR FLEMING:   It was uncontradicted but by her ‑ it was contradicted by her.  What Ms Blackwell had done over a period of time and a series of interviews was to actually admit to murdering the child in a number of ways, but principally, she admitted to murdering the child by first it falling on the ground at birth and she was outside walking around and then finally, standing it would seem by a tank stand, and the child was delivered in a hurry.  Then she said that she hit the child a couple of times on the ground, then she said that she hit the child on a log a couple of times.  There were head injuries, there were chest injuries.  The chest injuries consisted of a number of broken ribs which meant that force had been applied to the rib cage while the child was against the hard surface.

She admitted to having attempted to perform CPR on the child and there is evidence from the medical profession saying that that can fracture a child’s ribs.  So she had told, perhaps four times at least, a story that she had murdered the child.

GLEESON CJ:   And then cut it up?

MR FLEMING:   She initially said she had cut it up and then she moved back from that proposition.  For the first time, just before trial, she told the version that the co-accused, the appellant, was there and that he took and child and said “I will fix it up,” and then she denies any knowledge of what happened to the child thereafter.

GLEESON CJ:   What was his story to the police?

MR FLEMING:   His story to the police was that he had nothing to do with it and did not know about it at all.

GLEESON CJ:   He was not there when the child was born, he was not there when the child died and he was not there when the child was dismembered and buried?

MR FLEMING:   Yes, that was his version to the police.  Your Honours, one of the concerning parts about this trial was there was open hypothesis that the child was in fact killed by the mother.  The mother was convicted of manslaughter.  The jury obviously accepted her final version of the facts.  We are confronted by that.  They convicted him of murder on her version of the facts and what our learned friends will say were lies in the Edwards sense.

In addition, they had to accept her version for her to have been convicted of manslaughter and not murder.  That meant, somewhere along the line, that they had to have accepted in respect of her one of two propositions.  The cause of death was said to be multiple injuries, including the removal, the tearing of the umbilical cord from the child which would have caused bleeding as well, but then there is further evidence from the medical profession to say that that would close up within a period of time, but nevertheless, it would have made the child susceptible to other things.

They would have had to have accepted either that the umbilical cord was torn and, therefore, that caused the death, or that she had acted to some degree in agreement with the accused but thinking when he said “I will look after it,” that he was not going to do anything harmful to the child.

Now, there are other possibilities, it would seem, for example, if they accepted that the child had from the womb fallen onto the ground and fractured its skull, that could have been a cause of death.  So, there were various theories that the jury could have accepted but to have ‑ ‑ ‑

HAYNE J:   There is also the possibility of a merciful verdict in respect of the woman just delivered of child.

MR FLEMING:   That could well have been right, your Honour, and if it was a merciful verdict then we would submit that there should not be occasion then to find our client guilty of murder because it would have been her who did it and not him.  Your Honours, the alternative theory that was equally open was that he had nothing to do with the murder of the child but in fact had removed the child at some subsequent point after death and the child had been dismembered.

Your Honours, there was appalling evidence of the slaughter of animals.  The accused was an halal butcher and would slaughter goats, for example, and there was evidence that in the slaughter of the goats the female goats’ sexual parts, including the uterus and fallopian tubes, would be removed to mask the gender of the goat and there was evidence that he knew how to perform this.  We have to concede that there was evidence that the uterus, the fallopian tubes, the cervix and part of the vagina of this small child had been removed in a fairly surgical way, something which required some considerable skill. 

Let us assume for the moment that the jury were convinced, and they were, that he had interfered with the child because they convicted him of two other counts, one of failing to disclose the birth and one of interfering with the corpse and let us assume that the jury was satisfied with that.  It does not mean that they should have been satisfied that he had murdered the child because, if one took the four or five versions told initially by the co‑accused, Blackwell, one could easily come to the conclusion that that is exactly what happened.  She killed the child, and that is something to which she admitted on at least four occasions and then recanted in the witness box and shortly before the witness box.

Given those facts, your Honour, nothing was ventilated in respect of that proposition, not in cross‑examination, not in addresses and certainly not in summing up to the jury.  We would submit that that was a perfectly open possibility for the jury - it was fairly open to the jury to use the propositions in the cases. 

HAYNE J:   There seem to be two propositions presently in play in your argument.  First, there was some evidence before the jury that should not have been there if proper objection had been made, that is one stream.  The second stream seems to be that what, on the evidence as in fact led at trial, perhaps on the evidence as it should have been had proper objection been made, a different form of address to the jury might have been made.  Is that right?

MR FLEMING:   Yes, your Honour, and in both of those cases we would submit that it was fairly open to the jury to find him not guilty.  Your Honours, can I go back to TKWJ, to paragraph 108, and your Honour, Justice Hayne there said:

If there could not be any such explanation ‑

and your Honours dealt with some matters in 107 -

there may have been a miscarriage of justice.  It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. 

Your Honours, in our submissions, we can in fact go to that level and say that there is no explanation reasonably available in this case, and the jury would be likely to have entertained a reasonable doubt about guilt.  Your Honour is talking there about evidence that had not been led, but we say in reverse that evidence that was led here, if it had not been led and if matters had been conducted properly, then the same thing applies.  It would not have been necessary to ask whether the jury would have been likely to have entertained a reasonable doubt. 

So there are two levels to these propositions.  One is where one looks at the behaviour of counsel to see whether or not there would have been a fair opportunity for an acquittal.  The other is to see such fundamental error that one does not even have to go that far.  One simply says there is such fundamental error that it should be overturned immediately.

GLEESON CJ:   There is no suggestion of incompetence of counsel in relation to advising the client not to give evidence?

MR FLEMING:   No, your Honour.  No, we cannot say that.

GLEESON CJ:   We just do not know when or in what circumstances or for what reason that decision was made.

MR FLEMING:   Yes, we do not know that.

GLEESON CJ:   For all we know, counsel knew from before the commencement of the trial that his client was not going to give evidence.

MR FLEMING:   He may have known that, your Honour, yes, but there are other factors at play.

HAYNE J:   Just before you come to elucidate those factors, counsel for the accused, the present appellant, knew that at trial he would be confronted by evidence of the co‑accused which blamed the present appellant, is that right?

MR FLEMING:   Yes.

HAYNE J:   It is possible that the appellant’s counsel knew that his client would not give evidence.

MR FLEMING:   Yes, your Honour, that is possible.

HAYNE J:   Is it open to counsel, confronted with that combination of facts, to form a view about the effect on the jury if counsel appears to be attempting to prevent the jury hearing a full account of what happened? 

MR FLEMING:   Your Honour, there is a provision for pre‑trial hearings in Queensland where those sorts of issues can be determined, so that the jury is not privy to any of those sorts of discussions.

HAYNE J:   Well, then it becomes important, does it not, to identify with particularity what exactly is the complaint that now is made about the conduct of counsel. 

MR FLEMING:   Yes.

HAYNE J:   Is it the bare fact of failure to object as evidence is being led in court, or is it rather different?  Should have called for a voir dire, should have called for a pre‑trial hearing on the admissibility of certain evidence?  I had read the submissions as complaining only that as evidence was being led, counsel not only could have, but should have, objected.

MR FLEMING:   That is certainly the basis upon which we have put it.  We do not know what counsel’s instructions were completely and, indeed, one of the problems with that is that one gets into a contest of credit then, between a client and counsel as to what those instructions are.

GLEESON CJ:   To be specific, we have no idea why your client did not give evidence or what counsel knew about why your client was not going to give evidence.

MR FLEMING:   Your Honour, there is open the possibility that – and we said this in the reply – that all his efforts were being addressed to a no‑case submission at half‑time on the basis that there had been so much inconsistency from Blackwell and Blackwell was giving the only cogent evidence against him in respect of the actual incident.

That is one possible theory that he could have adopted but, in our submission, that does not justify him simply sitting back and not objecting to objectionable material and to cross‑examining incompetently when he did get to cross‑examine or not opening up the possibilities in cross‑examination that might well have become important for his client’s case and later on if he did not succeed in the no‑case answer.  It would be equally incompetent for him to have decided that the no‑case answer was going to carry the whole weight of this case.

So, in our submission, and we understand what your Honours have said from time to time in respect of being hampered by not knowing what instructions had been given and what has passed between counsel and an accused, but on the other hand when one looks at the performance in this particular case it is beyond explanation.  There cannot have been an explanation.

Let us assume that he was going to depend entirely upon a submission of no case to answer at the end of the Crown case, why then would he cross‑examine in such a way the principal police witness, that the policeman said three times in the space of one page of transcript, “We have enough evidence to show that your client murdered the child”.  There is no examination for that type of incompetence.

We would submit there is no explanation for adducing evidence of his bad character, either allowing it without objection or actually adducing some of it.  Your Honours will have noted in our reply that we point to various places in his address to the jury where he draws on some of the material and actually addresses the jury saying, “Look, this man was bad.  He had all of these failings but he did not do this.”

There can be no rational explanation to adopt that approach in respect of a trial and there can be no rational explanation to allow inadmissible material in in the manner in which he did.  The other issue which we say is alive is that he should have asked for a separate trial and because of the material ‑ ‑ ‑

HAYNE J:   Why would you have ever severed this presentment?  Why would a judge ever have severed this presentment?

MR FLEMING:   Your Honour, there was so much prejudicial material against him in her evidence.  Now, her Honour, from time to time, instructed the jury that her evidence was against her entirely and not against him, but nevertheless the material was just so prejudicial that you would have to have asked and we do not know what a judge who was invited to do that would actually say.  We would submit that there was a very, very strong case that it should be severed because of that prejudice.

HAYNE J:   As things stood at the start of the trial, did it appear that each accused blamed the other for the murder?

MR FLEMING:   Yes, your Honour.

GLEESON CJ:   Is your opponent correct when she says that if your client were tried separately, the evidence of Ms Blackwell’s admissions to the police would not have been admissible?

MR FLEMING:   That is probably the effect of Bannon, we would submit.

GLEESON CJ:   Does that not mean that he had something to gain from being tried together with Ms Blackwell?

MR FLEMING:   Your Honour, there is so much other prejudicial material in there that no.  I have to say at the moment that there is a line of cases in Queensland, which your Honours might have seen in our submission.  We in passing noted that Bannon might not apply in Queensland, but we are not going to pursue that.  We do not need to, and I am afraid we would be sailing forth on a rocking horse if we were to argue such a proposition, so we will not go there.  But Bannon would suggest, in our submission, that a separate trial was advantageous to him, not disadvantageous, given the amount of prejudicial material against him.  You see, without her, the Crown is left with a circumstantial case which did not include a narrative of how the murder might have happened.  There are a number of theses, for example, on how the child might have died.

Your Honours, there are other peculiar circumstances in this case.  The instructing solicitor for the accused changed on the morning of the trial; that is apparent from the transcript.  In addition to that, there is a very troubling circumstance that a solicitor acted for the accused, Mr Ali, over a period of time in other matters.  When this issue arose in early September 1998, he went to that solicitor to get advice and took Ms Blackwell there, and so the solicitor actually acted for both of them for a considerable period of time, perhaps for up to a year, while the police investigations were going on. 

The solicitor, including in that time, advised that the appellant should confront and tape record Ms Blackwell as to her involvement in the murder.  Those tapes were taken and handed to the solicitor.  The solicitor decided at some point in time that he would no longer act for Ali and then continued to act for Ms Blackwell right through the trial.  The solicitor handed those “confrontation tapes” – that is what they are referred to from time to time in the transcript and in the material before your Honours – handed those confrontation tapes to the police and they became a very significant plank in the police investigation.

In addition to that, of course, the same solicitor then was instructing when evidence of bad character was given against Mr Ali in the course of the trial.  So there is a serious breach of confidentiality which occurred as well, and material taken from that source was used against the accused at his trial.  There are a number of very, very unsatisfactory circumstances in this case and, your Honours, we submit that they add up to a very significant miscarriage of justice.  The trial ultimately was unfair for those reasons.

HAYNE J:   Just apropos of the matters you have just raised about the conduct of solicitors, those, I think I am right in saying, am I not, are not the subject of any ground of appeal?

MR FLEMING:   No, they are not, your Honour, but they exacerbate the situation.  They came to our attention somewhat recently, but they do exacerbate the situation.  It explains where some of the material actually came from against him and was used by Blackwell.  Your Honour, the conduct of the trial – and we have to come back to that – was simply unsatisfactory.  

Your Honours, we do draw significant encouragement from TKWJ. If I can return to that for the moment and to the decision of Justice Gaudron at paragraph 31:

As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice.  But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of “flagrant incompetence”, “egregious error” or the like.

We note that your Honour Justice McHugh in fact used the term “flagrant incompetence” subsequently if it was necessary to look at the behaviour of counsel.  Then her Honour at paragraph 32:

An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial.

We come back to the proposition, your Honours, that in this case there can not have been an informed decision, and there cannot have been a deliberate decision.

Your Honours, there was then comment as to the discretion of counsel at a trial, a wide discretion, to run the trial as counsel sees fit.  Can we pause for a moment to look at such a discretion.  There may well be two situations that we look at where there is incompetence of counsel involved.  One is in respect of a situation where the law allows something.  For example, a particular witness may be able to give admissible evidence but there is a rational decision not to call that particular witness for a particular reason, or there might be a reason why a particular exhibit might be desirable, it is admissible.  On the other hand, it might not be desirable.  There are those sorts of discretionary matters.  On the other hand, there are matters which the law does not allow, for example, certain evidence to be admitted, hearsay evidence.  The law turns its face against that ‑ ‑ ‑

HAYNE J:   No, it does not. 

GLEESON CJ:   No, most evidence in most cases is technically inadmissible if objected to.  It is just not objected to, usually for a good reason – sometimes, for convenience.

MR FLEMING:   Well, your Honour, can I go on to say that bad character evidence would be an example of evidence which should not be admitted.

HAYNE J:   Well, that is a proposition that says that the judge should have intervened.

MR FLEMING:   Indeed.

HAYNE J:   That is a very large proposition.

MR FLEMING:   Yes.

HAYNE J:   It has nothing, then, to do with whether counsel did or did not do anything, it is that there was some wrong decision on a point of law, is it?

MR FLEMING:   Yes.

HAYNE J:   What is the authority for the proposition that bad character evidence is something that a judge must move of own motion to reject?

MR FLEMING:   We cannot point to a specific authority on that; we can point to comments that have been made in cases such as Pemble v The Queen (1971) 124 CLR 107 ‑ ‑ ‑

McHUGH J:   But it must depend on the circumstances.  I have never appeared in a case where it has been done myself, but I have actually observed a couple of cases where, for forensic reasons, the bad character of the accused has been brought out, usually to explain why the police would have verballed this particular person.  It is difficult to say that there is a blanket rule.  I mean, it may be a legitimate forensic choice.

MR FLEMING:   It may be, but, your Honour, when you look at this particular case – and your Honour was perfectly right in saying it is the circumstances of the particular case – when you look at this case, there can be no rational explanation why bad character evidence was allowed in.  None at all.

HAYNE J:   Except on the proposition that this accused is not trying to hide anything.  True it is, this accused has not gone into the witness box, but he has let some pretty nasty things to be said about him.  “We are not hiding anything.  Do not believe the co‑accused” – was that not the way in which this defence was conducted?

MR FLEMING:   Your Honour, if a rational decision was made then one might agree with your Honour, but there can be, when one looks at the whole of the case, no rational decision in respect of it in this case.  Chief Justice Barwick in Pemble said at page 117.9:

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law.  This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

Now, in our submission, that has been said in a number of cases, including, in a less direct way, in TKWJ by two of your Honours who are on this Court.  Your Honours, it is not a ground of appeal, because that appeal was spent a long time ago in respect of – the Court of Appeal appeal was spent a long time ago and this came before your Honours in a rather unusual way.  It is certainly not a ground of appeal here, but what it did to her Honour was, despite her attempt to intervene, it gave her nothing at all to work with. 

We cannot be overly critical of her Honour, given the circumstances of this case, because it was just so incompetently run.  The trial went for something like 25 days and it was a very burdensome trial on everybody but that required defence counsel to be more astute on the way through.

Your Honours, in Wilde v The Queen 164 CLR 365 at 371 at point 9 of the page, which we supplied to your associates, their Honours, Justice Brennan, as he then was, and Justice Dawson and Justice Toohey referred, as was done in TKWJ to Mraz, and then over the page at 372, “a real chance of acquittal” was the way in which Sir Garfield Barwick stated the test in Storey, that is in the first two lines, and then:

Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.  Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed . . . The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice.

With respect, we rely upon that and then, at about point 5 of the page:

However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental.  In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was.  Reliance was placed upon what was said by Gibbs J in Quartermaine v The Queen -

and going to the end of that quote:

Wickham J…recognized that even if this were established ‘there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that “there had been a serious departure from the essential requirements of the law”’.  The Court of Criminal Appeal was right in taking that view of the law.…”

This view is undoubtedly correct -

That, of course, was in the context of the proviso which raises an interesting question in itself but nobody here, the Crown, is not suggesting that the proviso would come into play.  In fact, it is our submission that the proviso cannot come into play where there is a serious miscarriage of justice because, on the one hand, a conviction can be quashed on the grounds of miscarriage of justice but it can be left to stand if there is no serious miscarriage of justice.

GLEESON CJ:   Do I understand one of your alternative theories of the case to be that he was not a party to the killing of the child, but that he dismembered it and buried it?

MR FLEMING:   Yes, that was open to the jury, but it was never ventilated.

GLEESON CJ:   No doubt that hypothesis is based upon the fact, partly, that there was overwhelming evidence – circumstantial evidence, as well as the evidence of Blackwell – to support the view that he dismembered the child.

MR FLEMING:   The overwhelming evidence to which your Honour refers is the demonstration of the fact that he was an Halal butcher and could remove the ‑ ‑ ‑

GLEESON CJ:   Yes, the detail does not matter.  I just wanted to ask you this.  If the jury were going to conclude, or were almost inevitably going to conclude, that he had severed the sexual organs of the body before burying them, what would it matter whether he was a person who drank too much?

MR FLEMING:   It would not, your Honour, but also, though, in the end, it would not necessarily implicate him in murder either.

GLEESON CJ:   I know, but these matters of bad character that you are talking about and complaining about are matters that become almost trivial compared to what, on your hypothesis, he actually did.

MR FLEMING:   Yes.  Your Honour we do not say he did that.  We say that that was a hypothesis open to the jury to have considered, and it was never promoted.  It was never the subject of cross‑examination, for example, that could ventilate that and it was never the subject of an address to the jury.  The address to the jury was based entirely upon the fact that he was not there and did not do it.

GLEESON CJ:   But if counsel took the view that at the end of the day, the jury were going to be driven to the conclusion that he had done that to the body of the child, why would counsel be astute to object to evidence that he drank too much?

MR FLEMING:   Your Honour, there are, in our submission, a couple of answers to that.  The first one is that that does not explain why he would have extracted from the police officer that his client was a murderer.  We say the bad character evidence demonstrates the incompetence with which it was handled.  You could not attribute such a theory in this case, given the total incompetence of the way in which the matter was handled.  It still demonstrates the incompetence, along with the other features of the case, including, we might add, your Honours, the references that we have made in the reply to the address and the manner in which he belittled his own client in the address and attempted to use humour and so on. 

My learned junior points out another facet.  Blackwell gave some of the bad character evidence and by that being extracted from other places as well, not from Blackwell, it gave greater reliability to the evidence of Blackwell and her version.

McHUGH J:   Well, it was more than that, was it not?  One of my difficulties with this case is that without reading the whole of the transcript it is difficult to know what evidence may have got before the jury legitimately for one or other purpose in respect of one or other of the accused.  But the impression I have is that this evidence of his bad character made it almost inevitable that a jury would think this is the sort of man who would be capable of committing this crime which is almost unimaginable.

MR FLEMING:   Yes.

McHUGH J:   I mean, so much depends in this sort of case on impressions.  If you read the famous cross‑examination of Rufus Isaacs of the poisoner Seddon, he does not seem to have got all that far in terms of answers, but those who were at the trial say that the effect of the questioning and the answers was to point irresistibly to the fact that Seddon was capable of having poisoned this woman in these circumstances. 

MR FLEMING:   Jury trials are so much about impressions that are created and this impression should never have been created in the way in which it was, especially in the context of a joint trial.  Sir William Deane said in Wilde that it still remains one of the most difficult of the issues with which we must deal in criminal law and the availability of evidence, one against the other.

McHUGH J:   You see, one of the difficulties I have is that evidence concerning their sexual relationships and her prostituting herself at his direction and so on, on one view were admissible to show motive and association between the parties as well as being a foundation for showing that he was guilty of lying so often.  At some stage I would be helped if we could be assisted by showing what issues this various evidence went to.  I mean, the cross‑examination of the detective about why he charged him, the reason for it seems to me incomprehensible.  I cannot understand why he would be asking questions about, “Whether you had any more evidence today than on the first occasion you went to” - I do not know what that was directed to.  Maybe it had some forensic purpose.  It is not easy to see what it was.

MR FLEMING:   Yes.  While your Honour was speaking something came to mind.  Motive, it could go to motive, but there are alternative theories as well open there which were not put.  It can also go to the motive to dispose of the child’s body, not to kill the child, simply to conceal the child rather than to kill the child.

GLEESON CJ:   I can understand counsel hoping that the jury, or at least one stubborn member of the jury, might have a doubt about whether he had anything to do with the killing or the disposal of the child.  I understand that.  But, fighting a case on the hope that the jury, while accepting that your client dismembered the body by carving out its sexual organs and then buried it might, nevertheless, at the same time, have a doubt about whether he was a party to the killing of it, seems to me to require a degree of forensic courage over and above the ordinary.  I mean, how you would actually formulate that hypothesis to put it to a jury I do not know.  What is the way you address the jury?  “Well, yes, maybe my client did dismember the body and carve out the sexual organs and bury it, but you ought to have a reasonable doubt about the rest.”

MR FLEMING:   The interesting thing, though, was that ‑ ‑ ‑

GLEESON CJ:   You would have to be Sir Rufus Isaacs to get away with that one.

MR FLEMING:   He certainly was not Sir Rufus Isaacs, I can tell you that, your Honour.  There was very strong evidence from Blackwell on the four admissions that she had made.  Now, the jury obviously had to accept that every one of those admissions was false and before they could conclude that her final version, which was completely opposed to it, was true.

Now, one of the explanations that she gave is that he overbore her and forced her into making some of these admissions.  Of course, that is why some of the evidence of bad character was adduced, we presume, without objection.  So the bad character evidence was brought to show just that; he was first the sort of person who could commit this murder and, second, that Blackwell can be believed, and third, she was overborne by him as well.  Of course, that raises the very interesting question of the tapes which were handed over and which were obtained on the advice of the solicitor who continued to act.  There are just so many unsatisfactory features of this case and the more one ‑ ‑ ‑

GLEESON CJ:   Yes, but I think you have been invited to deal with the question – you seem to be basing your whole argument on the assumption that this bad character evidence, if objected to, would have been rejected.

MR FLEMING:   Yes.

GLEESON CJ:   We are just inviting you to make that assumption good.

MR FLEMING:   Yes, I will have my learned junior find a couple of instances where there was objection to bad character evidence, and in fact, her Honour did exclude it.

GLEESON CJ:   No, this is not to question the disposition of the trial judge.  What are the best examples you can give of evidence that you say should have been objected to and, if objected to, would have been properly rejected?

MR FLEMING:   In respect of bad character?

GLEESON CJ:   Yes.

MR FLEMING:   Your Honour, we set out at paragraph 28 of our outline of argument the start of some of that, the acts of sexual intercourse between Blackwell and the appellant.  Now, can I pause there to say that there were admissions of a sexual relationship recommencing after the event occurred, after the child was born and killed ‑ ‑ ‑

GLEESON CJ:   But why was it not relevant and admissible to prove that the appellant had a sexual relationship with Ms Blackwell?

MR FLEMING:   Because first, your Honour, that was established and second, there was ‑ ‑ ‑

GLEESON CJ:   No, hang on, the fact that something is admitted does not mean the Crown cannot prove it.

MR FLEMING:   It becomes unnecessary to prove it and the prejudice in respect of that when then connected to the other acts of sexual indiscretion ‑ ‑ ‑

GLEESON CJ:   My question to you is, why is evidence of a sexual relationship between the appellant and Ms Blackwell inadmissible?

MR FLEMING:   Because it was not relevant to the case and in addition, was prejudicial to his case, to him.

CALLINAN J:   It goes to motive, does it not, that he had had a sexual relationship ‑ ‑ ‑

McHUGH J:   Was the likely father.

CALLINAN J:   And together with the DNA evidence which established that he was almost certainly the father.

MR FLEMING:   Yes.

CALLINAN J:   There is very strong evidence of motive in a circumstantial case.

HAYNE J:   And if it is not relevant why do we have the admission?

MR FLEMING:   It was relevant to establish that he was the father, and certainly, that proposition goes ‑ ‑ ‑

HAYNE J:   But there was an admission of an established sexual relation between the accused, is that right?

MR FLEMING:   After.  The admission related to after the event, there was DNA evidence that he was the father of the child.

HAYNE J:   Well, why was not all of that relevant?  Then my next question is, if relevant, why was it not admissible?

MR FLEMING:   Because, your Honour, connected with other issues against him, it was prejudicial in the extreme ‑ ‑ ‑

GLEESON CJ:   What do you mean by prejudicial?

MR FLEMING:   The probative value of it, your Honour, was nothing like the prejudice which had occurred to him to show evidence of bad character.

GLEESON CJ:   Was not a live issue at the centre of this case the question of his relationship with Ms Blackwell, in the context of an allegation that he overbore her in the making of admissions of her own guilt?

MR FLEMING:   That is certainly the way that the Crown was running the case, your Honour, yes.

GLEESON CJ:   Was not evidence that was capable of showing that he dominated or threatened her relevant to that issue?

MR FLEMING:   Your Honour, we would have to concede it can be relevant to that issue.

McHUGH J:   That is why, surely, that evidence was admissible that Mobeen Ali had had sex with her on two occasions while the appellant watched, because the Crown case was that that was a result of pressure from the appellant.  Similarly, evidence that he was violent was evidence that indicated that he overbore her or was capable of overbearing her.

MR FLEMING:   Your Honours, I cannot take that issue any further.  There was an issue, for example, at paragraph 35(f) of our submissions.  Gomes was employed by Ali in his butcher shop, and there was an allegation that Ali, because there was some money missing and wanted to extract a confession, threatened to cut his head off with a bandsaw, the saw ‑ ‑ ‑

GLEESON CJ:   Who gave that evidence?

MR FLEMING:   That was given by Gomes – no, I am sorry, your Honour, it was objected to in the Crown case and ruled out, and then it was brought back in in Blackwell’s case.  She gave evidence of it and it was not objected ‑ ‑ ‑

GLEESON CJ:   That is the point.  Did Blackwell give evidence that she knew of that?

MR FLEMING:   Yes.

GLEESON CJ:   Is that not relevant to whether he overbore Blackwell?  Blackwell was saying, was she not, “I made these admissions because I was afraid of this man and dominated by him”?

MR FLEMING:   She was saying that.

GLEESON CJ:   Well, is she not entitled to give evidence of why she was afraid of him?

HAYNE J:   Including that she thought that here was a man who had threatened to cut somebody else’s head off with a bandsaw.  Whether it is true or not is irrelevant.  That is what she thought.

MR FLEMING:   Yes, but the interesting character of that evidence was that it was ruled out in the Crown case and then brought back in without objection when Blackwell gave the evidence.

GLEESON CJ:   Because the relevant fact was not that he had threatened to cut Gomes’ head off, but that Blackwell believed he had threatened to cut Gomes’ head off.

MR FLEMING:   Your Honour, I cannot argue with that proposition.

GLEESON CJ:   We seem to be having difficulty identifying any inadmissible evidence.

MR FLEMING:   Your Honours, I can only say that we have set out what we consider to be inadmissible.  On your Honour’s analysis, I would have difficulty maintaining my argument any further than I have in respect of that, because, if that is the basis, then I cannot any longer ‑ ‑ ‑

GLEESON CJ:   Well, you must have read the written submissions of Mrs Clare.  I mean, we are not sitting here inventing this ‑ ‑ ‑

MR FLEMING:   Yes, I did.

GLEESON CJ:   Mrs Clare had gone through this evidence in detail and submitted point by point that it was all relevant and admissible.

MR FLEMING:   Yes.  Your Honours, can I go back then, leaving that, to some of those fundamental questions about extracting in cross-examination that his client was a murderer.  There can be no basis ‑ ‑ ‑

HAYNE J:   The charging officer thought he was – I mean I think the jury might have worked out that the charging officer thought he was guilty of murder.

MR FLEMING:   There was very powerful evidence, your Honour, in front of the jury and ‑ ‑ ‑

HAYNE J:   What, that the investigating officer thinks that he has arrested and charged the right man.

MR FLEMING:   Yes, we would submit so, your Honour.  It is a very powerful piece of evidence in front of the jury.

GLEESON CJ:   Were the jury not given any directions by the trial judge about what use they could make of evidence like that?

MR FLEMING:   Yes, her Honour gave them quite extensive directions as to what constitutes evidence and upon what they could rely.  As I have said, we cannot be overly critical of what her Honour said.

GLEESON CJ:   We have to take this fairly seriously because you are inviting this Court to declare that a particular counsel who has a name and a profession was flagrantly incompetent.

MR FLEMING:   Yes.

GLEESON CJ:   We need to be satisfied that the evidence that you say was inadmissible was inadmissible.  We could be doing a serious injustice to counsel, you know.

MR FLEMING:   Yes, we acknowledge that, your Honour.  In terms of admissibility, of propensity - I cannot take the argument any further than I have already.  If your Honours are against me, I would not – no I cannot take it any further.  Your Honours, as we said it is a very substantial record.  The facts that we say were inadmissible are there.  We still come back to say that when one looks at this case overall and put all of the facets together, including the fact that it was a circumstantial case, there were no hypotheses put forward at all except that he was not there and not involved.  That was the sum total of the case.

GLEESON CJ:   But the alternative hypothesis, as I have put to you earlier, is not a very pretty one.

MR FLEMING:   No, it is not, your Honour, but nevertheless is available.  The crime was horrendous, there can be no argument about that, but there is a vast distinction between interfering with a corpse and a murder conviction.  We submit that the hypotheses in respect of the murder were never put forward.  Your Honours, we cannot take the matter beyond that.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Fleming.  Yes, Mrs Clare.

MRS CLARE:   If the Court pleases.  If I can just draw from my learned friend’s concession that there cannot be identified any inadmissible evidence.  Moving on from that concession, it follows that the focus of the complaint can only be in relation to the cross-examination by defence counsel and the way in which he addressed ‑ ‑ ‑

GLEESON CJ:   There is no resiling from the submissions that have been made in writing and you have dealt with in writing.

MRS CLARE:   Yes.

GLEESON CJ:   The first premise in the argument against you, which may or may not be correct, is that there was a substantial amount of inadmissible evidence led in because counsel incompetently failed to object to it.  As I understand it, you contradict that premise.

MRS CLARE:   Yes.  Of course, I adhere to the submissions in my outline and point to, in response to the submissions just made, a failure to be able to further identify any inadmissible evidence.

McHUGH J:   There are three pieces of evidence that you may be hard pressed to defend and they are the pieces of evidence that appear in paragraph 28(iv) through to (vi).  What do they go to except to show propensity evidence?  It evidences:

the appellant was violent and that he (Mobeen Ali) was frightened of the appellant . . . 

(v)      cross-examination of the witness that he had seen the appellant assault a man at a New Year’s Eve party and he had a bad temper . . . 

(vi)     an allegation that the appellant threatened to kill –

Ali.

MRS CLARE:   I have endeavoured to deal with all of those in my outline but, in effect, those allegations that seem to draw from earlier evidence, that is cross-examination by Blackwell’s counsel, from memory, but prior to Mr Clifford cross-examining the witness, are reflected in those points in the appellant’s summary.  But the evidence changed and was corrected in response to the questions by the appellant’s counsel.

GLEESON CJ:   You had better not assume that we are familiar with the detail of the evidence at the trial so if any part of your argument turns on the course of conduct at the trial you may need to explain that to us.

MRS CLARE:   In respect to paragraph (iv) which is the allegation that the appellant was violent and that the witness was frightened of him ‑ ‑ ‑

HAYNE J:   Can I just understand, that is elicited by counsel for Blackwell in the course of cross-examination, is it, and at page 192 of the appeal book?

MRS CLARE:   I will just clarify that for your Honour.  Yes, it is, by Mr McGuire, who was acting for Blackwell.

HAYNE J:   Yes.

MRS CLARE:   So that is clearly what he was endeavouring to elicit from the witness but, in our submission, one has to actually read the evidence of this witness in context, that is the whole of the evidence of the witness and the flavour of the evidence of the witness was to the effect that he was not afraid of the appellant, that he did not take any threat seriously, that on one occasion the appellant had said, “I’ll kill you”, but he did not regard that as a serious threat and it did not frighten him.  The references that I can give the Court are at pages 200 and 201 by way of example.

GLEESON CJ:   Is this connected with the submission you made that the trial judge instructed the jury that they should not treat questions asked by counsel as evidence of the truth of the facts in the questions?

MRS CLARE:   That is so, but go to the answers.

GLEESON CJ:   So, in relation to the specific point we are looking at, where is the evidence that the appellant was violent and that Mobeen Ali was frightened of the appellant?

MRS CLARE:   Well, the appellant relies upon page 192.

GLEESON CJ:   All right, well, let us look at it.  Where is the evidence of it as distinct from that being put in a question? 

MRS CLARE:   The answers on page 192 were favourable to Blackwell.

HAYNE J:   Line 22 says “Frightened”.

MRS CLARE:   Yes, “Frightened”, he does say that at that point.  Then he goes on to say that you have seen him “be violent”.  He answers “Once”.  The question is:

He assaulted a fellow at a New Year’s Eve party?--  Yes.

There is a question about bad temper; there is no affirmative answer to that:

Everyone was drunk, yes –

and the witness insists that he had only seen him go off the once.  Then there is a question:

if you told anyone about he and Amanda he would kill you?--  Yes.

That has to be taken together with what was elicited by the appellant’s counsel, who actually did an effective job in clearing it up.  So we turn to page 200 ‑ ‑ ‑

McHUGH J:   But the point is, it should never have been allowed.

MRS CLARE:   That is so.  In the absence of evidence linking it to Blackwell’s knowledge of what was going on, or, alternatively, some additional argument of relevance ‑ ‑ ‑

GLEESON CJ:   Well, let us go back a step.  Why was Blackwell’s counsel asking these questions?  What was its relevance to Blackwell’s case?

MRS CLARE:   It does not appear clear on that page. 

GLEESON CJ:   No, I am not asking what appears on the page.  What was it about the case of Blackwell that prompted Blackwell’s counsel to put these things to the witness being questioned here? 

MRS CLARE:   Well, one can only think that it is tied into Blackwell’s assertion that he was a violent man.

McHUGH J:   Exactly.  It is propensity evidence.

MRS CLARE:   Yes.

GLEESON CJ:   And that was relevant to Blackwell’s explanation of why she kept changing her story.

MRS CLARE:   Yes.

GLEESON CJ:   Was that relevant to the case against the appellant?  That Blackwell changed her story because she was frightened of the appellant?

MRS CLARE:   Yes, it was.  The reliability of her confession was an important issue in the case, because if it was accurate, if it was a truthful confession, then it exonerated the appellant and left her solely to blame.

GLEESON CJ:   That is what I am having difficulty understanding.  If it was an issue in the case that Blackwell had changed her story because she was afraid of the appellant, why is not evidence of the appellant’s violent propensity relevant to that issue?

MRS CLARE:   We say it is and that it was.

McHUGH J:   Well, that depends on whether she knew about the violent propensity.  The fact that he was violent to other people – it would not have been admissible, would it, to show that he had shot somebody in some other place at some other time, or that he had assaulted some other person in some other place at some other time?  That would have been propensity evidence, which the policy of the law is to exclude.

MRS CLARE:   Putting aside this piece of evidence, the other evidence of violence in this case by the appellant beyond the offences charged came down to evidence from Blackwell as to what she had either experienced or seen or been told.  This evidence was not directly tied to her.  There is an argument that it was still relevant on a general approach to her defence, that is, that the propensity of the appellant to be violent made it less probable that she was the one who had committed the acts of violence in this case as between the two of them.  That is following on from that decision from the House of Lords of Randall which is put ‑ ‑ ‑

GLEESON CJ:   That may or may not be correct but we can understand why Blackwell’s counsel, legitimately or not, was trying to get in evidence of the violent propensity of the appellant and we can see how far he got on page 192.

MRS CLARE:   Yes.

GLEESON CJ:   Now, what did counsel for the appellant do about that?

MRS CLARE:   Page 200, from about line 15 there is the reference to the threat to kill.  All of those answers are perhaps relevant but at line 25:

He didn’t threaten me – threaten me like that.

Then at line 32, reference to the New Year’s Eve party and the argument:

do you remember that?

Over the page, reference to:

And the other man insulted your uncle-- Yes.

Sort of yelling match-- Yep.

And it continued –

The answers go on to about line 14:

There was a yelling match there?-- I can’t really remember, it was just yelling.

Has, you uncle – are you saying that your uncle at any time he said to you he was going to kill you?--Just the once.

Was it like a father would say to a son, “Keep it up or I’m going to kill you”?-- Oh, it was sort of like anyone would say to you, “I’ll kill you” . . . 

An offhanded remark ‑ ‑ ‑

GLEESON CJ:   Take the evidence on the bottom of 192 which is the subject of subparagraph (vi) of the written submissions.  Subparagraph (vi) refers to:

an allegation that the appellant threatened to kill this witness –

Is that right?

MRS CLARE:   Yes.

GLEESON CJ:   In fact, if you look at the question it is an allegation that he threatened to kill the witness if he told anybody about the appellant and Amanda.

MRS CLARE:   Yes.

GLEESON CJ:   Is “Amanda” Blackwell?

MRS CLARE:   Yes.

GLEESON CJ:   So the threat is not just a threat to kill him but a threat to kill him if he told anybody about his relationship with Blackwell.

MRS CLARE:   Yes.  So it goes again to the concealing of their relationship and goes further to the motive in this case which was said to be, in part at least, the concealment of the affair between the two.

GLEESON CJ:   So if the relationship with Blackwell is a relevant fact, that seems to bring us back to subparagraphs (iv) and (v) on page 10 of the written submissions.

MRS CLARE:   Yes, and, in our submission, that evidence became no more than there had been a yelling match.

McHUGH J:   But propensity evidence is always relevant.  That is not the question.  The law excludes propensity evidence.

MRS CLARE:   In relation to evidence in the Crown case, that is so.

McHUGH J:   But generally.

MRS CLARE:   In relation to the defence case, the issue becomes simply whether it is relevant to a fact in issue without going on to consider the discretion. 

McHUGH J:   Well, the rules of evidence do not change depending upon whether evidence is led by the Crown or by the accused or co‑accused, do they?

MRS CLARE:   The test in relation to admissibility is limited in the case of the defence to relevance without the second consideration of a discretionary aspect, that is, prejudice.  So if propensity is relevant to an issue in the disproof of guilt for the accused, then it is always admissible.

McHUGH J:   Has any case ever laid that down in terms?

MRS CLARE:   Yes.  In our submission, those cases that are relevant to that would commence with the Victorian authorities, Lowery, and the most recent example of that would be Randall, as I said, from the House of Lords.  Now, Randall is a case where Randall was convicted of manslaughter and the co‑accused, Glean, was acquitted.  The deceased was found with multiple head injuries on a footpath after the two accused had left him.  Each blamed the other, so it was a cutthroat defence case like the present. 

Glean was cross‑examined and at page 471 paragraph [10] there is a reference to the cross‑examination of Glean by Randall’s counsel.  He was cross‑examined about an offence that he had participated in earlier, which was unrelated to this killing, which concerned a gang robbery.  He was a part of that gang, he admitted to that and he admitted that one of the people in that gang and that group of robbers had held a knife to the throat of a victim, that a victim had been tied up ‑ ‑ ‑

GLEESON CJ:   Is this in paragraph [10] on page 471?

MRS CLARE:   Yes, sorry.  Yes, from the middle part of that paragraph is the reference to Glean’s involvement in the robbery, the information elicited from him in cross‑examination:

All the robbers were armed with knives.  One of the robbers held a knife to the throat of one of the victims.  The gang tied up the two victims with telephone wire.  Glean admitted threatening one of the witnesses by saying ‘If they get me for this I will get you’.  At the time of the deceased’s death Glean was ‘on the run’ from the police for this robbery. 

So that evidence was before the jury.  It was not similar fact evidence, and the trial judge gave a direction to the jury that limited its use to the credit of Glean that told the jury that they could not use it to determine whether or not he was the person who had attacked the deceased.  That was found to be a misdirection which caused a miscarriage of justice for Randall.  The House of Lords confirmed the judgment of the Court of Appeal and quoted with approval from that previous judgment at page 472 in paragraph [14].

GLEESON CJ:   Did Lowery go on appeal to the Privy Council?

MRS CLARE:   Yes.

McHUGH J:   Yes, it went onto the Privy Council and was upheld.  I must say, speaking for myself, I always thought it was wrongly decided.  That is another question.  I mean, they allowed a psychologist to give evidence, and based on the characters of the accused, one was more likely than the other to have committed the crime.

GLEESON CJ:   At all events, we do not have to deal with the submission that the flagrant incompetence of defence counsel in this case was that he had the same opinion of the law as the Privy Council?

MRS CLARE:   No.

GLEESON CJ:   What did the House of Lords hold in Randall on this issue?

MRS CLARE:   The ultimate decision, in paragraph [33], is simply to say – or the shorthand version of the decision is simply to say, “We agree with what was said below.”  What was said below is disclosed in paragraph [14] at page 472:

where there was a cut throat defence, the antecedent history of Glean was relevant not only in relation to the truthfulness of Glean’s evidence but also because the imbalance between that history and the antecedent history of Randall . . . tended to show that the version put forward by one co‑accused was more probable than that put forward by the other”.

HAYNE J:   Why do we get to questions of that kind in relation to this piece of cross‑examination?  If we go to page 192, the cross‑examination begins at about line 12 and following with counsel for Blackwell testing the proposition that the witness, as appears from line 3 or 4, had told the police that the witness had had sex with the co‑accused, had said certain other things to the police, and counsel for Blackwell was concerned to, it seems, establish that this witness had told the police these things out of fear of Ali?

MRS CLARE:   Yes.

HAYNE J:   Ultimately, the witness resiles from what he has told the police earlier:  see page 193, at line 30, over to 194, line 5 – where he denies what he had earlier told the police that he had had intercourse with Ms Blackwell on two occasions without use of contraception, the implication being that he, this witness, may have been the father of the child that was ultimately killed?

MRS CLARE:   Yes.

HAYNE J:   Now, what is the basis on which objection might have been taken by Ali’s counsel to this line of cross-examination by Blackwell’s counsel?

MRS CLARE:   Well, the evidence was admissible clearly in relation to Blackwell’s own case but also in relation to the prosecution case because it demonstrated a further lie, if you like, by the appellant in relation to the paternity of the child and his relationship with ‑ ‑ ‑

HAYNE J:   But there are two trials going on.  There is a trial of Blackwell and Blackwell is confronted, amongst other things, by evidence from this witness apparently that he may be the father of the child, which rather leaves her exposed, does it not, in the case against her?

MRS CLARE:   Yes.  There was, in fact, DNA evidence as well which proved that he was the father, but it did go to paternity as well.

CALLINAN J:   But terribly exposed really because if you involve this person in the pregnancy, then the motive of the appellant disappears.

MRS CLARE:   That is so, and it was the thrust – it seemed to be a mutual lie from the beginning for both the appellant and Blackwell that Mobeen Ali would be the person responsible for the baby, was the father.  The appellant from the very beginning, whilst he was saying, “I did not know she was pregnant; I was suspicious; I kept asking her”, he also was saying to the police, “It would have to be this witness.  He was the one.  I suspected they were close.  I asked her about it.  She said no but I suspected that they had been close.”  So there was that aspect from the police interviews with the appellant, that he was setting up in the early days of the investigation this witness as the father.  There are the answers that Blackwell gives to police that this witness would be the father and then there was the further step taken by the appellant himself to get this witness to give police misinformation, to claim that he was the one who had had sex with this girl at about the time of conception.

I am just having a look whether there was another aspect.  I think those were the three issues that your Honour Justice McHugh raised with me from the complaints of inadmissible evidence.

McHUGH J:   Yes, the material at 192, 193.

MRS CLARE:   The appellant, of course, is not entitled to have the best counsel in town or, indeed, to have the best counsel in the trial, but he was entitled to expect that his case would be put.  In this case, of course, we are left with a vacuum in relation to what the instructions actually were, but it is clear, in our submission, that the defence case was, in fact, put and pursued by the appellant’s counsel.

The case that he put was that Blackwell acted alone in respect of the offences and that the appellant was ignorant of it all until after the event, until the police came knocking at his door.  There is some sustained attack on the way in which counsel addressed the jury.  In our submission, that address was, in reality, quite a good one for what counsel had to work with.  He focused on the issue of reasonable doubt, reminding the jury over and over again that they had to look, they had to accept the most favourable hypothesis in respect of the circumstantial case for his client.  He emphasised that the police had hesitated to charge this man for a year.  He went through emphasising that there was no evidence which actually directly showed that the appellant was involved in the killing and for that he pointed out the lack of blood on any clothing ‑ ‑ ‑

GLEESON CJ:   Was that the point of the cross-examination of the police about what they thought or believed at certain times that there was a long delay in charging the appellant.

MRS CLARE:   Yes, that there was a long delay in charging and also that there was no scientific evidence which tied him to the killing.  It was a circumstantial case, there was no direct evidence and there was no scientific evidence. 

GLEESON CJ:   Was the point he was trying to make that the police did not really know any more at the time they charged him than they had known a year before when they had apparently decided not to charge him.

MRS CLARE:   Than when they had begun, that is right, and that, at the same time, there was a confession from Blackwell, this is the way that that argument was developed in the address, there was the confession from Blackwell who had gone through the re-enactment of what had happened with police on a video and that she was a woman who had managed to fool everyone in relation to the fact that she was pregnant.  These things are peppered throughout the address, of course, but those particular aspects, perhaps most clearly put at 945, about line 4 and at 956 and 963. 

Counsel then went on to argue that the major planks in the circumstantial case had been destroyed.  He dealt with the evidence relating to the appellant’s connection to the grave and the argument that he put was that the appellant’s explanation for that was a reasonable one and that the Crown’s theory was implausible.  That argument was based on answers that the appellant had given about chasing goats from the area.  The appellant was seen at a highly relevant time, just hours after the killing, but before the body was found.  He was seen on his neighbour’s property coming from the direction of where the body was buried.

I note that in the appellant’s reply to our outline there is a point made that Mr Flanagan, who was the witness who saw him, was not cross‑examined about his uncertainty as to dates when he gave evidence in the committal.  At trial he said this happened on 8 September, which was the day before the body was found.  Apparently, at the committal hearing he had said he could not remember if it was the 6^th or the 8^th.  That really was irrelevant in the context of the trial and it is not surprising that defence counsel did not pursue it with Mr Flanagan because the appellant himself had repeatedly admitted that he was there at that time and that Flanagan had seen him.  He admitted that to the police in his interview in December at page 1556, line 10, and the timing of that can be found at 1549.

Even more damning is his approach to this issue in the tapes that he made when he confronted Blackwell prior to her confession, when the pressure was being placed on Blackwell to make the confession.  He had tape recorded his questioning and the interrogation by other people.  In the course of that interrogation, he referred a number of times to this incident where Terry Flanagan had seen him on the neighbouring property.  He wanted Blackwell to confirm that he had been chasing goats from the property, because Flanagan had told police there were no goats, he just saw him alone on that day.  The appellant’s explanation to police was “I was chasing goats”.  He wanted Blackwell to verify that that is what he was doing, because that would be the only alternative explanation; either he was coming from the grave or he needed some adequate explanation for being on the neighbour’s property. 

In the context of trying to get Blackwell to say to police what he wanted, he was emphasising a need for her to remember that he was there chasing goats.  Another person who was present at that interrogation said to him, “That is a minor issue, do not worry about it”.  The appellant said, “No, it is a major issue”, and he explained very clearly the significance of him being there and how it tied him to the grave.  That appears at page 1334 and page 1346 of the transcript of those tapes, which were referred to in the course of the trial as “confrontation tapes”.  So I just raise that as an incidental, because it was raised in the written reply.

GLEESON CJ:   Can I ask you a small matter about the evidence?

MRS CLARE:   Yes. 

GLEESON CJ:   I had the impression, but I may misunderstand the evidence, that there was objective evidence that indicated that Ms Blackwell did not know the child had been female until a certain time.  Until what time?

MRS CLARE:   Until she was told by the doctor.  There is evidence from Dr Culliford that she was shocked when she was told that it was a girl.  Dr Culliford was the doctor who police brought in to try and track down the body parts.

GLEESON CJ:   What was the evidence, if any, before that, or about her conduct before that, that indicated that she had thought it was a boy?

MRS CLARE:   If you take the progress of her account, she started off by saying when the police first approached her that she was not pregnant, she did not know anyone who had been pregnant.  Then she spoke of having a miscarriage, because it was clear that the police had contacted the doctor whom she had been to the previous week.  Then when police started to ask her about the product of the miscarriage, she said that in fact she had given birth to a stillborn baby. 

Finally, on 17 September she said that baby was alive, born alive but died soon after.  Now, when she spoke about the baby, in the course of conversation with police she was referring to a he.  I will see if I can find when it was. 

GLEESON CJ:   Do not take time with it now.  I just wanted to understand how it emerged that she had believed until a certain stage that the child was male.

MRS CLARE:   Yes.  I am grateful to my friend.  In her written statement which was on 10 September – this appears at page 1108 – she describes opening the legs of the child and seeing that it was a boy.  She at another stage in a record of interview said the same thing essentially.  In her evidence in the trial there was some cross-examination of her as to how she came to conclude that it was a boy.

GLEESON CJ:   If there was powerful objective evidence that for a substantial period of time she had been under the impression that the child was male, as well as evidence about her physical condition, that would go a long way to eliminating her as the possible perpetrator of the dismemberment.

MRS CLARE:   Yes, and that was the point that defence counsel tried to make, that she did not know the sex of this baby, which indicated not only that she did not do it, did not do the dismembering, but that she was not there.

GLEESON CJ:   By defence counsel you mean her defence counsel.

MRS CLARE:   Her counsel, yes.

GLEESON CJ:   What I wanted to ask you was, was there any possibility of a third party being involved in the dismemberment?

MRS CLARE:   The case was run by all parties that it was either one or other or both, but that there was no suggestion of any outside person being involved in any of these offences.

GLEESON CJ:   That is what I wanted to understand, thank you.

MRS CLARE:   The reference to the doctor’s evidence about her surprise is given at page 80, line 30 and there is also some questions of a police officer about her surprise in her record of interview, I think, at page 1657.  That would be in volume ‑ ‑ ‑

HEYDON J:   Volume 8.

MRS CLARE:   Volume 8, thank you.  Towards the bottom of that page there is questioning about when she became aware of the fact that it was a girl and she said that she became aware of that when she was in hospital.  She was in hospital after the police became involved in the matter on 9 September.  The doctor who examined her admitted her to hospital and she was in hospital for two or three days.

HAYNE J:   But the written statement you took us to at 1108 would suggest that she had looked, had been mistaken because the genitalia were ambiguous.

MRS CLARE:   Yes.  It is important to understand that in the course of her – she gave eight different interviews or statements in relation to what had happened over the course of two years, so from September 1998 until April 2000.  In the course of all of those various versions that she gave and developed she did not implicate the appellant until the last interview in April 2000.  That interview that she gave was not led by the Crown Prosecutor.  That was not placed into evidence, so she then had to give evidence as to what her position was.

The interview of April 2000 was the interview in which she said, “It was him, not me” but prior to that she gave various accounts trying to explain how the child had come by its injuries and how the state of the body came to be.  The progress of the interviews is directly related to the way in which the police released details of what they knew about the death of the baby and the mutilation.  So, they held back information and when further information was given she then had to account for it, for example, the fact that ribs were broken and that there were head injuries.  It was not until some interviews after the first that she came into describing doing things that would account for those injuries.  I was saying earlier that the appellant ‑ ‑ ‑

HAYNE J:   It may not be directly relevant at all to the issues we have to conclude, but upon what basis would the prosecutor lead evidence of some statements and not others by one of the accused?

MRS CLARE:   The position in Queensland is that it is only statements against interest which are admissible against an accused and so the final statement by Ms Blackwell was an exoneration of herself.  I was speaking earlier of the appellant’s counsel’s address and the arguments that he placed before the jury.  In speaking about the planks that he sought to attack, the planks of the Crown’s circumstantial case, I mentioned the connection to the grave.  He also focused on the allegation that it was the appellant who had the exclusive skill to mutilate the baby.  The way in which he presented that argument was to attack the Crown expert’s assertion of the neatness of the excision of the uterus and also to rely upon previous cross‑examination by him put to witnesses that that sort of operation could be learned simply by watching.

So that was the way in which he sought to attack the claim that it was the appellant only who had the skill to remove the uterus.  I do not say that it was a persuasive argument, but it was an argument that he ran in an effort to say Blackwell had seen the removal of the insides of a female goat on one occasion.  He brought out that evidence, and from that he tried to build a case that she could have been capable of doing this because she had seen it.  He in fact, in cross‑examining those witnesses who gave evidence of what the appellant had done with the goats, put to those witnesses that they were able to then explain to the vet what had happened and how it should be done, how the uterus should be removed, because they had watched the appellant do it, that they had learned it by watching, and they agreed with that.  It was that ‑ ‑ ‑

GLEESON CJ:   What was the significance of whether the goat was known to be female or male?

MRS CLARE:   Because it related to the knowledge of the anatomy, and the ability to locate and identify the uterus.

GLEESON CJ:   I am sorry, why would a butcher want to disguise the fact that a goat that had been killed was female?

MRS CLARE:   He was a specialist butcher who sold halal meat and apparently customers of that meat prefer male to female meat, because they consider the female meat to be possibly unclean.

GLEESON CJ:   That is what I wanted to understand, thank you.

MRS CLARE:   The appellant’s counsel also argued to the jury that the Crown’s identification of motive in this case was suspect.  He argued that on the basis that his client had no reputation that he would want to save, that is, that he was doing these things in plain sight of people, he did not care, and therefore why would he go about killing this baby in the most extreme way to protect a reputation and to be so sensitive about a reputation which he had so recklessly treated?  Perhaps I am putting it ineloquently.  The argument is made at page 950, but it ties in with the appellant’s counsel’s cross‑examination of witnesses with reference to the fact that his client drank and smoked and swore.

Now, it is said that he brought this evidence out.  In fact, that is not true.  The confrontation tapes, the records of interview, made that aspect of the appellant’s character very clear in a way that it could never have been excised from those exhibits.  He was a man who carried himself in a very obvious way and, as the appellant’s counsel said, spoke his mind in a very forthright way.  He was constantly referring to drinking, when he was drinking, how he was drinking.  In the taped conversations in the house, there is a reference to those things.  He even discusses with police how he has this big beer belly.  So those aspects of the appellant’s character seem to be aspects that the appellant himself was keen for the police to know about.

The argument has been put that the appellant’s counsel did not, in effect, cross‑examine any witnesses but that he simply focused on making a no‑case submission.  In our submission, that is simply unfair, an unfair assessment of a counsel who had a very difficult job in the circumstances, simply because of the strength of the evidence against his client, the fact that there was no ready credible response to that overpowering evidence.  That really is the difficulty that the appellant had in the court below and the difficulty that he has in this Court, that there was, for counsel, very little to work with.

That is not to say that his counsel did not go about, in a logical way, attempting to dilute relevant pieces of the Crown case and he did what could be done.  In my outline I have made some reference to examples of how he was effective in going about clarifying or correcting or raising some issue of doubt about aspects raised in the Crown case. 

One of those examples has just been recently mentioned, that is in relation to the witness Mobeen Ali, where he was able to take the allegation that there had been a threat to kill and to neutralise it.  He was able to take the allegation that there had been “an assault” at a New Year’s Eve party and reduce it to, in fact, an argument.  There are other examples that could be given and, in fact, if there is some concern about that, I could hand up a short summary of some aspects of where cross-examination to a particular point was taken by counsel with various witnesses.  I will hand that up.

In relation to the cross-examination of Ms Blackwell, the appellant’s approach was to put to her that her account in court was a completely new story.  He made that point with her.  He went through the fact that she had given eight previous versions and that she had freely admitted that she was the person who had killed the baby, and she accepted those things.  That is at page 661.  He put to Ms Blackwell that her confession was plausible and detailed.  She also accepted that at page 666.  From that, he went on to put to her that her current version implicating the appellant and exculpating her was implausible and he pointed out that on her version, even on her latest version, she had done nothing to protect her child when, if what she said were true, there were numerous things that she could have done to save it.  He made the point at page 683 to 684 that she had been at great pains to paint the very worst picture of the appellant but in spite of that she was desperate to return to him, that she kept coming back to him, even after she had learned the terrible things that she said that he had done to her baby.

GLEESON CJ:   The defence case obviously was to stick with the story that was told to the police from the beginning, that is, the appellant had nothing to do with the events at all.

MRS CLARE:   Yes. At all, and knew nothing about it, had nothing to do with it and knew nothing about it until the police had found the body and brought the matter to his attention and then, on his account, he was able to piece together that she had been pregnant. 

GLEESON CJ:   Mrs Clare, procedurally, can you just tell me how this allegation of flagrant incompetence of counsel emerged or surfaced?  There was an appeal to the Court of Appeal in Queensland ‑ ‑ ‑

MRS CLARE:   Based on an unsafe and unsatisfactory ground, that is to say that the evidence was insufficient to support guilt.

GLEESON CJ:   But involving no criticism of the competence of counsel.

MRS CLARE:   No, that was a different counsel to ‑ ‑ ‑

GLEESON CJ:   Then, about two years later, there was an attempt to re‑open that appeal, is that right?

MRS CLARE:   That is right.  A second appeal was rejected as being incompetent.  That was by the appellant himself.  It was brought by the appellant himself.  The appeal proper was argued by counsel different to trial counsel and the appeal counsel was an advocate who is very experienced in appeal work.  He did not raise this ground at all.  The fact that it was not raised below, of course, means that there is no evidence of what the final instructions were, what information counsel had, apart from the actual evidence, what tactical decisions were being made along the way, so any complaint of incompetence really, in this appeal, has to be limited to incompetence on the face of the record and, we submit, that is an extremely heavy burden to meet. 

The strength of this case, as I keep saying, was overwhelming.  It was a case where either of the accused or both of them had to be responsible for the killing of a baby.  The evidence in relation to the dismemberment, and so on, was so overwhelming that it identified the appellant as being the person directly responsible for the mutilation of the baby and that seems to be implicitly accepted by my learned friend in the argument that there should have been a concession that he was, in fact, involved in that dismemberment.  The evidence of his proximity to the gravesite again placed him directly to being involved in the burial of the baby as well. 

I think, as your Honour the Chief Justice has indicated, once one gets to the point of identifying the person responsible for the mutilation of the child in the circumstances of this case, the conclusion that that person had to be involved in the killing becomes irresistible.  The dismemberment of the baby and Ali’s involvement in that was really the key to this case.  Whoever dismembered that baby exposed such extreme feeling for it as well as showing that he or she had access to the baby at a time close to the death.  An argument that a person in the appellant’s position could have done that which was done to the corpse and yet not have been involved in the killing is simply unsustainable, and we submit that if that argument had been put before the jury instead of the approach taken in the trial, we would still be here arguing the same ground of incompetence, perhaps with a stronger basis of complaint. 

In addition to that overwhelming evidence in relation to the mutilation, there was the fact of the appellant’s very persistent and very blatant lies in relation to the critical aspects of the chain of proof against him, and it is the combination of those lies which, again, provided a very powerful plank against him.  He was persistent in lying about his sexual relationship with Ms Blackwell; lying about his knowledge of the pregnancy; lying about his skill as a butcher and his knowledge of anatomy; lying about his reason for being near the grave site so close to the death of the baby. 

In addition to those things, as well, there was the evidence of the pressure that he had placed on Ms Blackwell to falsely accept the blame for all aspects of the offending.  That is what I have previously referred to as the “confrontation tapes”.  Those tapes – which were in evidence and the transcripts are in volume 8 – provide some insight really, but just a sample insight, into the pressure that Blackwell had been placed under for a period of two and a half months since the police investigation began.  The appellant himself told police that he had been pursuing her to confess for that period of time.  He said that at pages 1590 and 1626.  The confrontation tapes relate to 11 November and 14 November 1998.  They were taped by the appellant. 

On the first occasion, I think, there was the appellant and his wife and Ms Blackwell.  On the second occasion, the appellant, his wife and two friends of the appellant, Debbie Birks and her husband, were present for what could only be called an interrogation.  That second interrogation started at 1.30 am in the morning and Blackwell herself gave evidence that she had been dragged from her bed by the appellant’s wife who was screaming at her to get up and prepare for her interview with police that day.  That is at page 648, line 16.  So that was the context in which she came on 14 November 1998 to admit or to claim responsibility for cutting up the baby.  So that was the final piece of responsibility that she took.

Up until that point, until that interrogation on 14 November, she had been steadfast in her denials that she had any involvement in the cutting of the child, and even in the course of these confrontation tapes when she was under enormous pressure by the appellant and the others, she maintained persistently that she had nothing to do with it.  I will just read these page references into the record:  at 1290, 1291, 1293, 1294, 1299, 1302, 1306, 1312.  Those are all examples of her insistence that she did not cut the child, and then on page 321 she finally accepted or took responsibility.  She had said at one point, “I didn’t do it, but I will say I did if you want me to”, and then she went on to this.  So that was at 1.30 in the morning ‑ ‑ ‑

HEYDON J:   Is that 1302, line 25?  There is some material on that page which on one reading is crossed out and on another reading it has been highlighted.  Is that:

No, you don’t want to hear the truth.  I haven’t cut her up.  But to save you two I’ll tell them ‑ ‑ ‑

MRS CLARE:   Yes, “I’ll tell them that I did it.”  Yes, I think that that is just highlighting from whoever had this transcript originally.

HEYDON J:   Then the next page:

I would like to know because I know that I haven’t done it, I have not cut her up.

MRS CLARE:   Yes.

HEYDON J:   Where we see “u/i” on that transcript what does that mean?  Unidentifiable or something?

MRS CLARE:   Unintelligible.  So when one reads the course of those tapes, those confrontation tapes, it is transparently obvious that the appellant was seeking to manipulate Ms Blackwell.  There were various approaches from cajoling to berating her, to telling her that the Alis were the only family that she had, that they had done everything for her, that it would not be any worse for her if she were to take responsibility for this.

Mr Justice Thomas from the court below described those tapes as “disingenuous doubletalk”, and, with respect, we would support that description of them.  They were a calculated attempt to get her to take full responsibility and in fact, of course, they worked.  The result was, later that morning, an interview with police.  The police came to the property.  It had been prearranged before she actually made that last admission about cutting up.

The police came – and, it seems, arranged by the Alis – to the property on that day, 14 November, interviewed her and took her through a re‑enactment.  It is clear in looking at the interview that she gave to police and comparing the detail with what had been told to her in the course of those confrontation tapes that what she was saying was mirroring the detail that she had been given.  It was essentially a reconstructed version of information and possible reasons that had been given to her by the appellant in the course of the earlier confrontation.  The result of that was that she did not know all of the facts and gave wrong facts on matters that she ought to have known, had she been responsible.  I will give some examples. 

I will give examples of how she was fed information or at least the page references to the information that was fed to her and how she responded in the interview.  It was suggested to her by the appellant that she was hiding the shovel back from burying the body when he arrived home on the day of 8 September.  That appears at page 1322 in the confrontation tapes.  That is the answer and the way she describes it in her interview with police at page 389, the notion that she had just come back from burying the body, was placing the shovel on the property when the appellant arrived home.

As I said earlier, the appellant was insistent that he had been on the property later that day chasing goats home.  An example of that is 1333 in the confrontation tapes.  That is the description that she gives police at 1390 in the record of interview that later that afternoon he had been chasing goats off the neighbour, the Flanagan’s property.

There are other things like the insistence that she must have thrown the body on the ground twice, or against a tree, to account for the injuries.  That is the account she gives at 1360.  The appellant in the course of his confrontation with her points out that she would never have been able to cut up the body at night‑time, which is when the birth occurred and when the killing occurred.  That is at 1325, for example.  So in her interview with police she says that she kept the body in a box and cut it up the next morning.  The reference to that, 1436, and that is one example of that reference.

The appellant suggested to her that the reason that she may have chosen to cut the uterus out of the body of her child was because she herself had been abused as a child.  The appellant admits that at 1657.  Her previous abuse is the explanation she gives to police in the record of interview for cutting the uterus out of the baby, 1447.

The wrong detail that is given is highlighted at pages 359, about line 25, and page 276, but essentially that concerns the way in which the body was placed in the grave, whether it was face up or down, where the body had been severed, whether the torso was cut above or below the naval, whether the fallopian tubes were left on the uterus or left in the body.  The location of the gravesite and the direction and the location that she ultimately gave to police was in a completely different direction to where the body was actually buried.

When she was asked to draw what a uterus looked like, she declined because it was said in argument that she did not know and that was the evidence that she gave at trial that she, in fact, did not know what a uterus looked like.  There was also the fact that the police found the box in the shed where she said that she had left the baby.  That had been forensically examined and there was no trace of a baby ever having been in it or any blood or other matter being in that box that could be remotely connected to the birth of the child.  That reference is at page 301.

In relation to the argument about separate trials, your Honour Justice Hayne, in argument with my learned friend, raised the question of what basis could there be in this case for severance of the appellant’s case from Blackwell’s.  In our respectful submission, there was not any proper basis for such a separation to be made.  It is a classic case of a cutthroat defence where the interests of a consistent verdict really required that all of the evidence be before the one jury and that the determination be made by a single jury. 

There were also tactical reasons, of course, why it was better for the appellant to have the trial with Blackwell.  This is not a case where the evidence against the appellant was weaker than that of Blackwell.  In fact, the evidence against the appellant was stronger than that against his co‑accused, and it is not a case where the evidence against him was substantially different from that against Blackwell.  Both of the cases relied upon circumstances that implicated them jointly.  It was the same evidence.  They both told similar lies in the earlier stages.  They both continued to tell lies.  His account to police, out of court because he did not give evidence in court, his out‑of‑court statements implicated Blackwell from the very beginning, her out‑of‑court statements did not purport to implicate him.  They may have done indirectly, but all the way along she was seeking to hide his involvement by taking responsibility herself. 

The only question then in relation to this issue of a joint trial would have to be whether or not a miscarriage of justice resulted from the fact of Blackwell’s defence.  Now, if that were so, then the only remedy available to the appellant would have been to seek a separate trial.  It was open to him; it was clear that he had considered it.  For example, it was clear that he had considered it but he chose not to make that application.  One can understand why, because in this case where he was confronted with such potent evidence against his client – that is potent evidence in the Crown case – the only prospect of an argument in respect of innocence rested with blaming Blackwell and Blackwell’s confession to the killing. 

At the time of the trial in 2000 the law in Queensland in relation to the admissibility of third party, out‑of‑court confessions or hearsay confessions, was unclear.  There had been the decision of Zullo in 1993 which accepted that hearsay confession could be received in the trial of another as evidence of the truth.  In the following year, there was a New South Wales decision of Greatorex where his Honour Chief Justice Hunt rejected that same proposition.  There followed in 1996 a decision of this honourable Court, Bannon, which indicated some sympathy to an argument

that hearsay confessional statements might be received with some strict criteria to safeguard against an influx of false confessions, so with conditions of reliability placed upon it.  In Bannon the Court found it unnecessary to determine whether or not the law in Australia should be developed that far and left it open. 

That was, in effect, the state of the law when the appellant’s counsel had to consider his position with his client.  In Queensland subsequent to that, there have been a series of decisions, most recently R v Freer and Weekes where the Queensland Court of Appeal has determined that Zullo, the 1993 decision, was still binding in Queensland and that those hearsay confessions could be received in circumstances of reliability.

The decision of R v Freer and Weekes [2004] QCA 97, which is an unreported decision, particularly at paragraph [91], and prior to that a judgment of Mr Justice Jerrard which is a judgment of the court, considered the history of hearsay statements in Queensland and then the last two sentences of paragraph [91] on page 25 said that, in effect, the reliability test is the test in Queensland to be adopted in relation to these matters.

So even if this trial was heard today, the out‑of‑court statements or the confession of Blackwell would have been excluded on an application of the reliability test, because of the context of pressure, because of the number of versions that she had given, because she was wrong about so many of the facts which she must have known had she been giving a truthful account of the confession and because it followed statements of inducement by the appellant and his wife that she would be in no further trouble if she made those admissions.  Those statements of inducement are at 1039, 1311 and 1316.

Even if the out‑of‑court confession of Blackwell could be admitted in the appellant’s trial, the circumstances in which it was made would also have to be placed before the jury.  The end result would be that the appellant would be in no different position to that which he faced in 2000 at his trial.  If the Court pleases, those are the submissions. 

GLEESON CJ:   Thank you, Mrs Clare.  Yes, Mr Fleming.

MR FLEMING:   Thank you, your Honours.  Briefly, the way in which the appeal got here was there was an initial appeal, as our learned friend has said.  The issue of incompetence was raised with counsel and counsel said to the appellant, “We require some particulars of this.  Can you show it?”  The appeal went on without raising the issue of competence.  Then the appellant himself appealed a second time to the Court of Appeal and it was held that that appeal was incompetent.

In that appeal he did submit some affidavit material and because it was incompetent that material was never received.  Then special leave was sought from both of those decisions of the Court of Appeal and it was, in fact, on the first appeal, that is, from the initial decision, that special leave was given but on the basis of incompetence which was the ground of the second.  So it came in a very convoluted way to your Honours.

Your Honours, just a couple of matters.  We should correct one matter of fact.  In the evidence of Blackwell in respect of Gomes which appears at 640 is hearsay – that is the bandsaw incident – that is hearsay coming from her.  It is not direct evidence at all.

GLEESON CJ:   Just a minute.  I would just like to have a look at it.  Page 640?

MR FLEMING:   Page 640,your Honours, at line 10, a blatantly hearsay question:

Had you ever been told by anybody ‑ ‑ ‑

GLEESON CJ:   It is hearsay if it is used as evidence of the truth of the fact that he threatened to cut Gomes’ head off.  It is direct evidence if it is led as evidence of what Blackwell’s state of mind was.

MR FLEMING:   But, your Honour, Blackwell only knew about that from somebody else altogether.  She was not there.

GLEESON CJ:   I understand that, but whether evidence is hearsay or direct evidence depends on the use you seek to make of it.

MR FLEMING:   Yes, thank you, your Honour.  Your Honours, in respect of the Bannon issue that my learned friend has just been addressing you on, at page 876 of the record, after Blackwell’s counsel’s address to the jury, the learned judge becomes concerned about it because at line 5:

Time and again through the trial, I have told the jury that the record of interviews of one accused were part of that accused’s case . . . and not the other.  I was concerned that you were relying on the record of interviews given by Ali in defence of your client.

GLEESON CJ:   She is saying this to counsel for Blackwell?

MR FLEMING:   She is saying that to counsel for Blackwell, yes.  Counsel for Blackwell, Mr McGuire, said:

Well, to a degree, yes, your Honour, and that’s legitimate, in my submission.

HER HONOUR:   Perhaps you can tell me why –

and they put it off, having that argument.  You will note that at no stage did counsel for Mr Ali engage in that discussion, and it never arose again and nobody ever came back to it in the trial.

HAYNE J:   Except to the extent that the judge gave the separate trial directions?

MR FLEMING:   Yes, certainly she did that.

GLEESON CJ:   What is the order of addresses in Queensland?  Is it affected by whether anybody gives evidence?

MR FLEMING:   Yes, your Honour.  Blackwell gave evidence, Ali did not.  So Blackwell addressed first, the Crown second and Ali third.

GLEESON CJ:   So that, by not giving evidence, the appellant secured the position that his counsel addressed last? 

MR FLEMING:   Yes, that is true, your Honour. 

GLEESON CJ:   In Queensland, defence counsel usually address before the prosecutor, do they?

MR FLEMING:   If they have given evidence, yes.  Your Honours, in respect of that joint trial issue or the use of evidence between the cases, can I refer your Honours to R v Jones and Waghorn (1991) 55 A Crim R 159. At page 164.4, when talking about separate trials and so on, Mr Justice Crockett said:

What emerges from this discussion is, I think, that, if there is not only substantial prejudice to an accused arising from a joint trial but that prejudice is of a kind not really amenable to nullification by judicial direction, then the claim for a separate trial is very much stronger. 

His Honour does say in the final sentence of that paragraph:

But it does not follow that an application for severance in such a circumstance will succeed as a matter of course.

GLEESON CJ:   At any stage in what you describe as the convoluted appeals in this matter, has there ever been an appeal or an attempt to appeal on the ground that there was a miscarriage of justice because there was no order for a separate trial?

MR FLEMING:   No, we have to say no.  One of the particulars of the incompetence has always been he did not ask for a separate trial.

GLEESON CJ:   I understand that, but it would always have been open, would it not, to your client to appeal on the ground that there was a miscarriage of justice because there had not been a separate trial?

MR FLEMING:   Yes, your Honour.  Then finally, your Honours, in respect of the issue of disposition evidence or propensity evidence, I refer your Honours to the decision of Michael Geoffrey Bracewell (1978) 68 Cr App R 44 and is a decision of the Court of Appeal in England.

GLEESON CJ:   That was referred to in Randall, was it not?

MR FLEMING:   Yes, and they, in fact – Lord Justice Ormrod, I think, is rendering this judgment.  At page 50 his Lordship refers to Lowery’s Case at about point 5 of the page.  At about point 8 of the page at the end of that extract:

Lord Morris went on to say that evidence was relevant if it tended to show that the version of the facts put forward by one co-accused was more probable than that put forward by the other.

The question, therefore, is not whether the evidence goes to disposition or propensity but whether it is relevant, in the sense that it has some probative value.

In practice it is usually unnecessary to inquire too closely whether evidence of this kind has any probative value.  The problem generally arises in connection with evidence tendered by the Crown, so that marginal cases can be dealt with by the exercise of the discretion.  “When in doubt, exclude,” is a good working rule in such cases.  But where the evidence is tendered by a co-accused, the test of relevance must be applied, and applied strictly, for if irrelevant, and therefore inadmissible evidence is admitted, the other accused is likely to be seriously prejudiced, and grave injustice may result.

It is a simple submission that one must exercise extreme care in the circumstances created by a joint trial.  First, as we have already said, Justice Deane in Wilde said that it is still one of the most difficult areas of our criminal law.  Second, one must be exceedingly careful in the way in which the evidence is treated.  Thank you, your Honours, those are our submissions.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Fleming.  We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning in Canberra and 9.30 tomorrow morning in Sydney.

AT 12.50 PM THE MATTER WAS ADJOURNED