Amoe v Director of Public Prosecutions

[1991] HCATrans 272

..

.

• ---~~

IN THE HIGH COURT OF AUSTRALIA

Registry No C3 of 1990

B e t w e e n -

FRANCIS AMOE

Appellant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

DEANE J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 27 SEPTEMBER 1991, AT 10.15 AM

Amoe 1 27/9/91

Copyright in the High Court of Australia

MR P.F. TEHAN: If the Court pleases, I appear for the

appellant in this matter. (instructed by

P.H. MacSporran)

MR L.D.D. KEKE: If the Court pleases, I appear for the respondent in this matter. (instructed by the Secretary for Justice, Republic of Nauru)

DEANE J:	Yes, Mr Tehan.
MR TEHAN:	If the Court pleases, there are now four grounds

of appeal relied upon by virtue of an amended

notice of appeal dated 6 September this year. The

first ground of appeal complains that the learned

trial judge erred in permitting the appellant to be

cross-examined as to his bad character and previous

convictions.

The matter arose in this way. If I could take the Court to page 73 of the appeal book where, in

the cross-examination of the appellant, the

prosecutor, about half-way down that page, asked

the following questions:

Is Linus an enemy then? No.

Is this the first time you have had a fight

with him? Yes.

No other occasions when he beat you up

soundly? No.

Heard your wife say you are not a violent

person? Yes.

Can you recall two weeks earlier this incident

when your wife asked you to beat up a person?

I don't remember.

Remember beating Ike Capelle at the Airport?

I don't recall.

I put it to you your wife told you to go up

and beat him and as a result he was in

hospital with a broken face? I don't

remember.

Do you recall your wife saying you drink on

special occasions? Correct.

When was first special occasion do you

remember any? It is normal for me to go to

party and drink.

How long ago you first intoxicating liquor?

Cannot recall it.

Before you reached 21 years? Were occasions.

I don't remember.

Brought before the Court. Prosecuted? No,

never been before the Court for drinking

under-age.

Were you not in 1984? Do not remember.

Possible? I don't remember.

Remember in September 1984 charged with

consuming intoxicating liquor on deceased
premises and fined 1984? Cannot remember.

Amoe 2 27/9/91

Remembered being arrested in December 1983?

No answer.

I suggest what you said this morning and

afternoon a lot of lies? I don't tell lies.

Now, it is submitted that the matters

cross-examined upon concern two matters, firstly,

an alleged fight at the airport two weeks prior to
the killing of the deceased and, secondly, prior
convictions. Both matters touched upon the
appellant's bad character and, indeed, tended to
suggest that he was a person of bad character.

That cross-examination, it is submitted, was

impermissible as a matter of common law, and I rely

upon what this Court has said in Hall v Braybrook,

(1956) 95 CLR 620, at page 648, where the Court -

the judgment I read from is that of

Mr Justice Fullagar - stated at page 648:

This is that the prior convictions or bad

character of a person charged with an offence

cannot be proved by cross-examination or

otherwise before a tribunal which is concerned with the question of his guilt or innocence of the offence charged.

That case of course concerned an Act dealing with

the prosection of summary offences, and the

suggestion was that an inquiry could be made into a
person's prior criminality, and

Mr Justice Fullagar, in commenting on that matter, in effect, stated that to permit of such

cross-examination would offend the common law

principle.

I would also rely upon Attwood v Reg, (1960)

102 CLR 353 where, at page 359, the Court stated:

"Bad character" may be regarded as the

contrary of good character. But as a separate

and independent fact or matter it can be

proved on a criminal trial only in answer to

evidence adduced of the accused's good

character. It is not excluded as irrelevant

to proof of guilt. It is excluded as a matter

of policy, policy deeply rooted in principle. The evidence is relevant to the issue, but is

excluded for reasons of policy and humanity;

because, although by admitting it you might

arrive at justice in one case out of a

hundred, you would probably do injustice in

the other ninety nine".

And it is perhaps unnecessary for me to go to other

cases such as Reg v - - -

Amoe 3 27/9/91

DEANE J:  Mr Tehan, I would think you can go straight to the

question whether character had been opened up in a

relevant way.

MR TEHAN:  Yes. The matter arose in this way, that it was

suggested to the appellant that the appellant's

wife had said that he was not a violent person, and

if one goes to page 65 of the appeal book, one can

see that the appellant's wife said this - at the

bottom of that page, she said:

I asked him why he wanted spear gun.	He said
he needed it for protection.

DEANE J: Since we are looking at it, you need to go back a

little bit, do you not? It would seem to me it

started with her evidence which was led in-chief:

He does not get drunk very often.	He does not
drink at home.	Never seen him like that
before.

And then that leads on to her statements that he

was not a violent person, and so on.

MR TEHAN:	Yes.
DEANE J:	Now, why did that not open up the two questions:

one is, evidence in-chief having been led that he

was not prone to get drunk and so on, why did that

not open up his drinking history; and then,

evidence in-chief being led that he was a non-

violent person who was quite unlikely to resort to

violence, why did that not open up the conviction,

and so on?

MR TEHAN:  It did not open it up for this reason, that it

was a statement made by the appellant's wife in the
course of explaining what occurred on the day in

question which appears, from the transcript, to

have been merely volunteered by her.	Now, it is
true to say that, albeit even if it was volunteered

it might still open up the issue of character,

however, if indeed it did open up an issue as to

character it was, in my submission, a matter for

the trial judge then to firstly decide whether the

cross-examination was relevant to a fact in issue

upon the trial of the appellant and, secondly, to

decide whether, in the circumstances, he would
exercise h.is discretion either to exclude the

cross-examination or to permit it.

The real error complained of under this ground

is that even if this Court comes to the view that
character was put in issue, the trial judge failed

to exercise a discretion to exclude the cross-

examination complained of.

Amoe 4 27/9/91

McHUGH J: Another problem you have got, though, is that the

accused made no admissions about, it did he? I

mean, he never admitted to any convictions, did he?

MR TEHAN: It is not the answer, in my submission, which is

important to examine. It is the question which is

important because the section that is applicable in

Nauru that is similar to provisions in the

Australian States and Territories concerning this matter looks towards the issue as to whether or not the person in question has deliberately raised the issue of character.

McHUGH J: 

What is the relevant section?

MR TEHAN: 

The relevant section in Nauru is section 106 of

the Criminal Procedure Act 1972. That provisions
reads:

Every person charged with an offence, and the

wife or husband, as the case may be, of the
person so charged, shall be a competent

witness for the defence at every stage of the proceedings, whether the person so charged is

charged solely or jointly with any other

person:

Provided that -

and subsection (e) reads -

an accused who is called as a witness in
pursuance of this section shall not be asked,

and if asked shall not be required to answer,

any question tending to show that he has

committed or being convicted of or been

charged with any offence other than that

wherewith he is then charged, or is of bad

character, unless -

and then the three exceptions which - - -

DEANE J: What is the wording of the one we are concerned

with?

MR TEHAN:  The wording of the three exceptions?

DEANE J: Yes, of the relevant exception.

MR TEHAN:	unless -
(i) the proof that he has committed or been
convicted of such other offence is admissible
evidence to show that he is guilty of the
offence wherewith he is then charged;
Amoe	27/9/91

well, that is not applicable but the applicable

section would be:

(ii) he has personally or by his barrister and

solicitor or pleader asked questions of any witness with a view to establishing his own

good character or has given evidence of his

own good character, or the nature or conduct

of the defence is such as to involve
imputations on the character of the

complainant or the witnesses for the

prosecution;

It is that section would have fallen for

consideration. I might say that unlike -

DEANE J:  I notice your instructing solicitor seems to have

a spare copy of that provision. Do you think,

perhaps, I might have it and we will have it copied?

MR TEHAN:  I have copies to hand up to the Court. I wonder,

while I am doing that, there was provided to the Court an outline of the appellant's submissions. Does the Court have copies of that outline as I

will hand that up at the same time.

DEANE J:  Thank you.

I am afraid we do not have sufficient copies

of the section. I have the second page - sorry, I

do have copies of the second page of the relevant

provision. The Court will see from that second

page that this is not a case where, as for example

under section 15 of the Evidence Act of Queensland

or section 399 of the Crimes Act of Victoria, the
exception comes into play only when it is sought

of the trial judge.

GAUDRON J:  So it is important to establish whether or not

the wife volunteered these answers:

MR TEHAN:  In my submission it is, and one of the

difficulties that this case presents is that there

is no transcript of the questions asked of the

wife, eliciting the matters that the prosecutor

relied upon in order to conduct the cross-

examination that he did.

McHUGH J: There was also no objection to the question, so

we do not have the advantage of any ruling from the

trial judge in relation to that.

MR TEHAN:  No, but in my submission that would not be fatal.

The failure to exercise a discretion is the fatal

matter in this matter.

Amoe 6 27/9/91

DEANE J: Except it becomes a little more relevant when the

failure to object means that we do not know

precisely how the evidence came about. If an

objection had been taken, no doubt the trial judge
would have said this was in answer to a question
which led it or this was volunteered by the

witness.

MR TEHAN:  I can understand that point, Your Honour, but

more importantly, if the prosecutor had sought
leave to cross-examine in the way that he did then

the judge would have been called upon to exercise a

discretion. Although, in my submission, the Act

does not demand the seeking of leave, there is

ample authority in this Court and in the Supreme

Court of Victoria more recently this year, in the case of R v Perrier (No.1), (1991) 1 VR 697, to

convince the court that leave should be sought.	At
page 703 of Perrier's case, the Victorian Supreme
Court, in the leading judgment delivered
by Mr Justice Brooking, stated:

The safeguard provided by the law in this

situation is not a statutory requirement of

permission or leave but the general principle

that the trial judge always has a discretion
to exclude admissible evidence tendered by the

Crown .....

Nevertheless the Crown prosecutor should

always seek from the judge a ruling that the accused has put his character in issue so as

to have that question determined and so as to

afford the accused at the same time an
opportunity of submitting that as a matter of
discretion the evidence should not be
received. But in such circumstances the Crown
is not applying for leave or permission.

That really is nothing more than a statement of what this Court had said in such cases as

Phillips v Reg, Matusevich v Reg, Donnini v Reg,

that it is prudent for a Crown prosecutor who seeks

to cross-examine upon bad character or prior

convictions to obtain the leave of the judge in

order to do so.

But to revert back to what Justice Gaudron

stated, ~he first matter to determine, really, is

the issue of whether or not character was put in

issue in a way such that the prohibition contained

within section 106(e) was negated and the exception
was brought into play because, in my submission,

unless it can be shown that the questioning was a

deliberate attempt to open up character then the

prohibition still applied, and one could not call

Amoe 27/9/91

upon the exception. And if, indeed, there was any

need for authority regarding that matter, then one

only has to go to what the Court of Appeal in

England stated in R v Redd, (1923) 1 KB 104. In

that case the appellant who was tried for

housebreaking and robbery called a witness for the
purpose of producing certain letters. This

witness, without any question being put to him by the appellant, voluntarily made a statement as to the appellant's good character. At page 107, the

Court stated:

The question is whether the appellant was

within the meaning of that rule -

referring to the statutory rule -

endeavouring to establish a good character.

In the opinion of the Court he was not

endeavouring to establish a good character

merely because a witness whom he called,

voluntarily and probably against the
appellant's own desire, made a statement as to
the appellant's good character, and therefore

the questions put to that witness in cross-examination by counsel for the prosecution were not admissible.

So that the authority to invoke the exception, that

is section 106(e)(ii) is dependent upon the nature

of the question asked rather than upon the nature

of the answer given, and in order to establish

whether or not there has been a deliberate opening

up as to the issue of character. The Court will

remember, of course, Donnini's case, Donnini v Reg,

(1972) 128 CLR 114, where upon the trial of the

appellant for armed robbery, his landlady was

called to give evidence and she said that she knew

him only by the assumed name under which she had

let her flat to him, and in cross-examination

Donnini's counsel asked whether she had formed any

opinion of the accused's character, and she replied

that she would have imagined him to be a shy young

man and that he was always pleasant when they said

good morning.

But the critical part that I want to refer to

is what Chief Justice Barwick said, at page 121,

where the learned Chief Justice half-way down that

page said:

In my opinion the question asked of

Mrs. Brading, though incautious, was

deliberate. It was asked with a view to

establishing the applicant's good character.

The permission may be given, according to the

statute, if the question is asked with that

Amoe 8 27/9/91

purpose, the authority to grant it depending

on the nature of the question and not upon the

nature of the answer which is given. But

undoubtedly, in the exercise of the discretion

to grant the permission, the nature of the

answer as well as the relative claims on the

one hand of the accused not to be submitted to
disproportionate prejudice and on the part of

the Crown not to be deprived of an opportunity

to destroy the credit of an accused in

conflict with witnesses for the Crown must be

taken into consideration.

So, one can see from that that one has this

twofold process to go through, first of all to ask
has character been put in issue in such a way to

invoke the exception and, secondly, the question of

the exercise of the discretion.

In my submission, in this case one could not

be confident that the statements of the wife that

the appellant did not get drunk very often and that

he was not - she actually said this:

It's not like him to do that.	He does not get
into fights.

That is at the top of page 66 of the appeal book.

She had not in fact, in terms, said that he was a

non-violent person but for the purposes of this

argument I am prepared to concede that that

statement -

It's not like him to do that.	He does not get
into fights.

would probably lead to the inference that he was a

non-violent person. But in any event - - -

DEANE J: If it had simply stopped with that, we would be

led to possibly speculate whether it had just come

out, but you have got a case where a propensity to	violence is obviously of extraordinary importance
because, as I follow it, the issue was whether the
weapon had been deliberately or accidentally fired.

MR TEHAN:	Yes.
DEANE J:	Now, having said:

It's not like him to do that.

the questioning goes on, presumably - or, there is

no comment about, "I did not ask you that" - but

the evidence goes on:

Amoe 9 27/9/91

He does not get into fights.	He has never had
a fight with Linus before.	I do not believe
he intended to harm Linus.

Then the critical thing:

I do not believe he capable of harming.

It is hard to imagine more helpful character

evidence, in the context of this case, if it had

remained unchallenged and been accepted.

MR TEHAN:  The difficulty is this, though, Your Honour, that

we do not know what the questions were that

elicited those answers. When one views this

evidence in context, it is apparent, in my

submission, that the witness was being asked

questions as to why it was the appellant took the
spear gun, and it may well be that the material

suggesting character was merely volunteered

because it must be remembered that, at the bottom

of page 65, she said:

He came out closed door and picked up spear

gun.	He didn't have to do that to close door.
It was close to door.	I asked him why he
wanted spear gun.	He said he needed it for
protection.	I understand that to mean only
one against many.	I do not believe he had to

use it. It's not like him to do that. He

does not get into fights.

Indeed, the appellant himself gave evidence in

relation to that particular matter at page 68.

DEANE J:  Mr Tehan, is the transcript His Honour's own

notes?

MR TEHAN:  Yes, it is. It is a typed-up transcript of

His Honour's own notes.

DEANE J: Well, one's recollection of cases where the

transcript consisted of the judge making notes is that things proceeded very slowly. It is not the

sudden outburst of a witness that you get at a tape

or a shorthand transcript, which makes it a little

hard to accept that those series of answers were
not in response to questions extended over at least

a significant period. ·

MR TEHAN:	The problem is, Your Honour, we do not know.
McHUGH J:	The standard instruction in this class of case,

to witnesses where there is no transcript, or it

usually is, follow His Honour's or His Lordship's

pen, as the case may be. That is the instruction

to the - - -

Amoe 10 27/9/91

MR TEHAN: Well, of course, in this case the witnesses gave

their evidence in Nauruan and their evidence had to

be translated for the judge to then make notes and

before other questions were asked.

McHUGH J:  But would there not be an onus on you in any

event to put on by way of affidavit what was the
questions and answers? Your instructing solicitor

was the advocate at the trial. If an affidavit had

been put on, it could have been contradicted or

agreed to. It is not very satisfactory from the

Court's point of view. We do not even have, as I

understand it, an assertion by you other than from

what is to be derived or inferred from the

transcript itself.

MR TEHAN:  Yes, I suppose that could have been done,

Your Honour, but it is very difficult to reflect

back on what questions were asked over a year ago

in a criminal trial. One might have been left with a less satisfactory situation than one is left with now.

What my submission ultimately is is this:

that this ground really complains as to whether or

not it can be said the appellant had a fair trial

because he was cross-examined upon his bad

character and prior convictions. And ultimately at

the end of the day, even if it is that this Court

comes to the view that he did raise the issue of

character, as I say the real error here is that

this cross-examination came without notice and was

upon matters that clearly reflected upon his bad

character and the judge did not exercise a

discretion to exclude it.	He may well have
exercised a discretion to exclude it.	The fact

that the judge in his reasons for decision does not

mention it does not help one bit.

McHUGH J: Except it goes to the question whether there has

been a miscarriage of justice, which is the

ultimate question.

MR TEHAN:  It is the ultimate question, and in my

submission, one only has to go, for example, to a

case such as Reg v Matusevich to be convinced that

this Court has in the past come to a decision that

where bad character is cross-examined upon and no

leave has been sought of the tribunal, then there

has been a·miscarriage of justice.

DEANE J: But what if - and I just think it is something you

should deal with - what if reading the transcript

it appeared to us to be clear enough that in the

circumstances of this trial in Nauru the evidence

was led and led over a substantial period, and that

the evidence was such powerful evidence of good

Amoe 11 27/9/91

character in the context of this trial where

violent disposition could have been critical, that

the trial judge was all but constrained to allow it

to be tested?

MR TEHAN:  One cannot be confident, Your Honour, that the

trial judge would have come to the decision that

Your Honour suggests he would have come to, because

it must be remembered that no nexus had been sought

to be established between the alleged fight at the

airport and the killing of the deceased, for

example. I mean, it was not cross-examination on

propensity which might have been admissible because

it was being suggested, for example, that it was

similar fact evidence or because it was suggested

that there was past hostility between the appellant

and the deceased.

This was a case where, out of the blue, it was

simply suggested to the appellant that he had

beaten a man up at the airport and, more

importantly, what was suggested to him was that he

had done so upon the insistence of his wife and,

indeed, that Mr Capelle had finished up in the

Nauru Hospital with a broken face.

Now, that was highly prejudicial evidence and

no basis for relevancy in the sense that, for

example, it was similar fact evidence or that it

was evidence of propensity which went to show

hostility to the deceased was established. And

that would have been a matter that the judge would

have had to have determined in exercising

discretion.

DEANE J: But, forget the way the evidence was led. In a

context where the accused has led evidence that it

is not like him to do anything violent, that he

does not get into fights, that he had never had a

fight with the particular accused, that he did not

intend to harm anyone and that he was incapable of

harming somebody, I would have thought it difficult

to envisage a case in which evidence that he had

deliberately set out to harm somebody by physical

violence was relevant.

MR TEHAN: In my submission, Your Honour, the relevance is

something that does have to be determined in the

exercise of discretion and this Court cannot

speculate upon what the trial judge might have

done. It must be remembered that, as I say, there

was no - as a bald statement, one can agree with
what Your Honour says, but the fact is that no
nexus was established between this prior violence

and the violence the subject of the indictment.

Amoe 12 27/9/91

And that is a critical matter, in my

submission, because, for example, one has cases

such as O'Leary, Attwood, those sorts of cases,

where an accused is cross-examined on a prior
hostility that opens up bad character and this

Court has said in such cases, "Well, merely

incidentally that it touches upon bad character

does not matter if, indeed, it goes to a relevant

fact in issue upon the trial".	And in such cases,
of course, the relevant fact in issue upon the trial is the past propensity of the accused in question to be violent towards the deceased.	But
that is not the case here at all.

It is to be remembered, of course, that this

matter not only came without notice but indeed, was

not proved. I mean, the cross-examiner did not

seek to say, "Well, this is a matter of" - and that

is the litmus test, in my submission, as to whether

or not this was a matter of great importance

because, if the prosecutor thought that this was a

matter of great relevance, no doubt he would have

called evidence to show that the appellant, indeed,

had been involved in a fight with Mr Capelle at the

airport and had indeed caused that person's

admission to hospital.

We had sought instructions upon the facts of

that matter that if need be we can put to the

Court. But what I say for the moment is this, and
the same applies to the matter of prior

convictions, that if this matter was considered to

be of real and compelling relevance then one would
have expected the prosecutor to have taken up the

matter and to have proved it, and of course it was

not proved. That, in my submission, is sufficient

to answer to come to the conclusion that this

propensity evidence, even if admissible, was not of

sufficiently high probitive value to justify its

admission.

The second matter, of course, was that the Now, that deals in part with the first matter.	appellant was cross-examined upon prior convictions
for consuming intoxicating liquor and, in fact, my instructions are that he was arrested, I think, in
September 1983 for consuming intoxicating liquor
whilst under age and was a year afterwards fined a sum of $10.
Now, the raising of this matter appears, in part, to rely upon the contention that the
appellant's wife had said that the appellant only
consumed liquor on special occasions, because it will be remembered that, at page 73, the prosecutor
commences his cross-examination on this matter by
putting it to the appellant:

Amoe 13 27/9/91

Do you recall your wife saying you drink on

special occasion? Correct -

and then he launches into the cross-examination
upon prior criminality.

Now, if one goes to the cross-examination of the wife at page 66, where that answer is elicited,

it seems that it was elicited in a non-responsive

way, and here we have the benefit of, in fact,

having the question, towards the end of her

cross-examination she was asked:

When was first time met husband was in

Melbourne about in 1985? Yes.

You are aware he had problems drinking?	No.
Only drink on special occasion.

And, in my submission, the statement "Only drink on

special occasion" was really a non-responsive

statement and in any event, no matter what view the

Court forms of that particular submission, any

prior conviction that the appellant may have had

for consuming intoxicating liquor whilst he was
under age some six or seven years prior to the

alleged incident did not go to rebut the effect of

the wife's evidence which was that he only consumed

liquor on special occasions. I mean, the mere fact

that the man had a prior conviction for consuming

liquor whilst he was under the age, I think in

Nauru the age is 21 years, the mere fact that he had such a prior conviction did not, in my

submission, rebut the wife's evidence on that

matter.

The problem with it is that you are left with

this matter having been put to him; it having been

raised by the party who one can expect to have this

information at its fingertips; it is put to the

appellant and the matter is raised. The judge does

not deal with the matter either by way of exercise

of discretion to exclude it, because no leave is

sought, and he does not deal with it in his reasons

for decision which is particularly troubling when

the judge comes to a decision, as he did, that he

does not accept the evidence of the appellant;

that he forms the view that the appellant acted

with deliberation and retribution in the way he

approached the deceased; not to also, ultimately,

come to the view that I ask this Court to come to,

that one cannot be convinced that the judge, if
this matter had been properly raised, would not

have exercised his discretion to exclude it or,

alternatively, looked at from the point of view of

whether or not there has been a substantial

miscarriage of justice, whether or not the judge

may have been influenced by the evidence that this

Amoe 14 27/9/91

man - or the suggestion, the allegation that this

man had a propensity for violence and had prior

convictions relating to the consumption of

intoxicating liquor.

McHUGH J:  What about the statement at page 68, line 5,

where it refers to Michael and says:

He was telling a lie under oath.

Does that amount to an imputation on the character

of one of the witnesses for the prosecution?

MR TEHAN:  Not in my submission, Your Honour. That was

obviously a matter of dispute. It was a matter of

dispute between the witness Michael Quadina and the
appellant on a co-lateral matter as to whether or

not the appellant had offered an invitation to

fight later on that day.	In the end the learned
trial judge did not take any notice of it.	He said
it did not - - -

McHUGH J:  I appreciate that but it goes beyond a mere

denial of the evidence. It does make an imputation

against the witness, does it not?

MR TEHAN: Well, what he is saying is that he was telling a

lie.

McHUGH J: Well, he says he is a perjurer. Now, I know

there are fine distinctions in this area but he is

doing more than simply making a case against him;

he is actually making imputations.

MR TEHAN:  Yes. Well, in my submission, Your Honour, that

would not be enough to be convinced that he was

making imputations upon the character of a

prosecution witness. It may be florid language but

it is not sufficient, in my submission.

The exercise of the discretion to exclude such evidence is, of course, important in the conduct of

a criminal trial and as much has been said by this

Court in the case of Phillips v Reg. That case, of

course, dealt with the issue of imputations on the

character of a prosecutrix in a rape trial and

concerned section 15(2) of the Evidence Act of

Queensland. The real point that was being put to

the Court in that case was that invariably the

discretion should be exercised to exclude

cross-examination on prior convictions and past

criminality and the Court held that there was no

such rule but, in so holding, stated, at page 51,

at the bottom of that page:

Section 15(2)(c) of the Act provides expressly that any questioning as contemplated

Amoe 15 27/9/91

by that provision shall be subject to the

permission of the court. Not all statutes

dealing with the subject in Australia contain

such a proviso but undoubtedly it not only

expresses a rule of practice which should

always be observed in all jurisdictions (cf. Matusevich v The Queen) but gives statutory

recognition to the basic discretion inherent

in all criminal trial judges to exclude

evidence otherwise admissible if it would

unfairly prejudice the accused person.

At page 57 of the report there is further reference

to the importance of the matter in this way:

It is right to stress the exceptional

character of a case in which the credibility

of an accused person is open to be attacked by

reference to his bad character or previous

convictions and it is undoubtedly right that

the discretion of a trial judge to permit such

an attack be sparingly and cautiously

exercised. Although the purpose for which

such evidence is admitted is confined to

questions touching the credibility of an

accused person and is not to be accepted by

the jury as persuasive of his guilt of the

offence charged and notwithstanding that the

trial judge will direct the jury clearly as to

the use to which the evidence may be put and

the use to which it may not be put there will

always be a keen appreciation that the

admission of the evidence may in the absence

of countervailing considerations operate

unfairly to his prejudice. The operation of

the statute as construed in Curwood and

confirmed in Dawson will determine when the

statutory discretion arises. When that

occurs, the sole criterion governing its
exercise is what fairness requires in the

circumstances of the particular case.

And, of course, the majority in that case, in

effect, was saying that in determining that matter the exclusionary rule must, of course, play a part.

The fact of the matter here is that the

learned trial judge - be it because the appellant's
counsel did not object to it, be it because the
prosecutor simply launched into this matter without
raising the matter with the judge - did not

exercise the discretion to exclude the evidence,
and in my submission that failure amounts to a

miscarriage of justice and if there is any doubt

about that then the authority I rely upon is

Matusevich v Reg, (1977) 137 CLR 633, and I

particularly rely upon page 644 and what

Amoe 16 27/9/91

Mr Justice Aickin said at pages 654, 658 and 659.
My copy of the authority escapes me for the moment, but they are the relevant pages which, in my

submission, amount to a finding by this Court that

a failure by a trial judge to exercise a discretion

to exclude evidence of prior convictions or bad

character amounts to a miscarriage of justice.

In summary, it is the submission of the appellant under ground (1) that there has been a

substantial miscarriage of justice for six reasons:

firstly, the propensity of the appellant for

violence was wrongly put to the judge; secondly,
the prior convictions of the appellant were wrongly
put to the judge; thirdly, there was, in the

circumstances, no foundation for the putting of

either of those matters in the sense that it could

not be satisfactorily determined that the appellant

had put his character in issue in a way to invoke

the exception; fourthly, no leave was sought of
the judge to put the matters in cross-examination

that were put to the appellant; fifthly, the judge

failed to exercise a discretion to disallow the

giving of evidence or questioning concerning the
matters complained of, and finally the putting of
the matters complained of was highly prejudicial to

the case of the appellant.

In my submission, for those reasons, this

Court should find that there has been a substantial miscarriage of justice.

Could I turn to the second ground of appeal,

which complains that the learned trial judge erred

in failing to consider whether the appellant was

guilty of manslaughter by criminal negligence. It

is submitted, in the first instance, that the facts

of this case gave rise to a consideration of

whether the appellant was guilty of manslaughter by

criminal negligence and in particular I rely upon

the following facts.

GAUDRON J: But there is a problem about this. That would

only arise, surely, if the conclusion was that he

was not guilty of murder.

MR TEHAN: That is true, yes, of course. I accept that.

McHUGH J: Well, the trial judge found that he was; he found

that he intended to do the harm, and that he

intended to inflict grievous bodily harm, and in

the circumstances that was murder.

MR TEHAN:	Yes, but, Your Honour, in considering the issue of intention His Honour did not - the real
complaint that is being made is that of course
His Honour came to that finding, that is why we are

Amoe 17 27/9/91

here. But the real complaint that is being made is

that in dealing with the issue of intention he did
not alert his mind to the test of whether or not
the appellant may have only had the intent to do

the act that he was charged with, but did the act

in circumstances which, in other jurisdictions,

would fall under the head of "unlawful and

dangerous act" .

McHUGH J:  I do not follow this at all, I am afraid. I

mean, the trial judge found as a fact that the
murder.

accused intended to commit grievous bodily harm.

MR TEHAN:  Not necessarily, in my submission, Your Honour.

This case is not dissimilar to the Queensland case

of Reg v O'Halloran, (1967) QR 1, to which I will

turn. In that case:

The appellant, a boy of 13 years, who was

indicted for the wilful murder of his father,

swore that although the discharge of the rifle

was a deliberate act, he intended to miss his

father and only intended to scare him; his

aim was a few inches to one side of his

father's back, he closed his eyes and with

shaking hands pressed the trigger. The Crown

evidence was that he fired intending to kill.

The trial judge withdrew from the jury the

verdict of manslaughter based on criminal

negligence.

The majority of the court held that -

as the jury might have returned a verdict of
manslaughter if properly directed on criminal
negligence, the verdict of murder should be

set aside and one of manslaughter submitted.

In particular, Mr Justice Stanley at page 5, in

dealing with the facts of the case, stated:	In this case, the jury not being prepared to accept the Crown evidence touching O'Halloran's statements of intention and
rejecting his own evidence of intention, there
was simply no direct oral evidence on the
matter.  Mere disbelief of a statement that
something has happened does not establish that
it has not happened. The jury were therefore
forced back to infer intention from the
events.  Even if they had no doubt that the
shot was fired deliberately (whether with aim
and shaking hand or closed eyes was a matter
for them, and we cannot know what they found), (or, on proper direction, would have found)

Amoe 18 27/9/91

about any of those matters), a deliberate shot

is not necessarily outside the field of

criminal negligence. A shot could be as

deliberate and as criminally negligent as the

driving of a motor car.

McHUGH J: But, with great respect, these statements have

got nothing to do with this case because there is a

specific finding that the accused intended to harm

the deceased, and that was the intention when he

decided to pursue him.	He intended to inflict
grievous bodily harm.	He knew the harm he would

and did inflict on the deceased by spearing him in

the stomach.

MR TEHAN:  Yes. Your Honour, I can understand what

Your Honour is saying and I really argue this

ground, in a sense, in conjunction with ground 4,

that the verdict of the judge was, in the

circumstances, unsafe and unsatisfactory and that
the judge should have found manslaughter in this

case because this ground, in order to be properly

argued, really should be taken in combination with

ground 4 because it involves a complete

appreciation of the facts of the case. That is why

it is that I began my submission by stating that

the facts of the case gave rise to a consideration

of manslaughter by criminal negligence. In

particular, the facts I rely upon are these:

firstly, the appellant had said this, at page 68 of

the appeal book:

While I was holding the gun in my hand I

looked at safety lock. I wanted to see if it

was locked. It was not clear to me if it was.

I looked again and I touched the trigger and

the spear shot out.

Further, at page 69, the appellant said:

I did not know that the spear had hit him.

When I pushed him with the gun and he turned

to face me I saw the spear struck his stomach

and I was surprised.

And further, at the same page, the appellant said:

I did not not go to that place with the

intention of doing harm to Linus. I did not

intend to shoot spear at Linus. I did not intend when pressed trigger gun would fire.

McHUGH J: But your problem is that the trial judge rejected

that evidence and found as a fact, at page 84, that

he was completely satisfied that the firing of the

gun by the accused was deliberate.

Amoe 19 27/9/91

MR TEHAN: Well, our complaint is he should not have found

that.

MCHUGH J: Well, the trial judge - - -

MR TEHAN: That is why I say that this ground is argued in

conjunction with ground 4.

DEANE J: But that really means that this ground is

something which neither you nor we have to worry

about because, if you succeed in establishing that

finding to be unsafe and unsatisfactory, that is

it. If you do not succeed in impugning that

finding, there is no answer to what Justice McHugh

put to you, is there?

MR TEHAN:  I accept what the Court says in relation to that

matter and, having accepted that, I will turn to

ground 3. The third ground complains that the

learned trial judge did not consider the issue of

provocation. In my submission, the issue of -

DEANE J:  Mr Tehan, if it is any assistance to you on this

ground and on ground 4, you can proceed on the

assumption that all members of the Court have read

the whole of the appeal book. That means the whole

of the evidence. The qualification that I would

make to that is, if apart from the fact that the

accused is referred to by two names, other

witnesses are referred to by two names, I would not

have picked that up, probably.

MR TEHAN:  Yes. What I wanted to emphasize, though, in

relation to this ground is the fact that there was

sufficient evidence for the judge to consider a

finding of manslaughter by virtue of provocation.

The Court, having read the papers, there is no need

for me to repeat the facts but I do emphasize that the material suggests that about an hour before the killing the deceased had punched the appellant in the face causing him to fall to the ground; that he	had continued to punch him around the head and then	thrown a beer can at him, striking him in the right
eye and causing what the judge found to be a badly
bruised right face. The circumstances in which
that injury was inflicted, it would seem, were
unprovoked by the appellant and were likely to
cause him a loss of self-control. And it is
submitted that in the circumstances, the return of the appellant to his home was not, in the circumstances, an act over such a period of time as
to cause his loss of self-control to abate.
Indeed, it is of significance to observe that, at page 86 of the appeal book, the judge made a
positive finding that the appellant was "greatly
incensed" by the incident at Blues Oval. He,

Amoe 20 27/9/91

having found that the appellant was greatly

incensed by that incident, then, in my submission,

that gave rise to a basis for the judge properly to

consider provocation under section 304 of the

Queensland Criminal Code.

The fact of the matter is that the judge did

not do that. It is my submission that where there

is evidence or, in this case, a finding which could
have led to provocation being considered then it
should be considered. This Court has held that to

be the case in Reg v Motta, (1977) 138 CLR 601 and, more significantly and recently, in Van Den Hoek v Reg, (1986) 161 CLR 158. Indeed, of course, in the

latter case the Court was of the view that even if

the appellant's counsel has not raised the issue of

provocation, if it is reasonably open on the

evidence that there is evidence of provocation it

should be considered by the tribunal of fact. In

other words, in that particular instance, the trial

judge has a duty to put a defence even though it is

not raised.

In this case it is submitted that there was

evidence of provocation; that the trial judge's
finding that the appellant was incensed by the

incident at Blues Oval suggests that there was

evidence of provocation and that this matter should

have been considered by the trial judge. It might

be said the judge came to a view that the
appellant, whilst he was incensed, he was also

acting in a retributive way, so the judge found, to

seek out the deceased. But it must be remembered

that Mr Justice Mason, as he then was, in

van Den Hoek's case found that a feature of

provocation can be anger and also fear or panic.

The judge's finding that the appellant was

incensed does suggest a case, on the judge's view,

of anger. The appellant and his wife's evidence of

course suggests a combination of the anger and

fear; fear in the sense of the appellant saying

that the very reason why he took the spear gun was

he thought there would be more than one person. A

panic situation certainly in relation to the actual

firing of the weapon where he was saying that he

was looking at the safety lock to see whether it
was on; that he was tearful because of the damage

to his right eye. That suggests a combination of

both fear, _panic and anger all of which go to, in

my submission, convince one that provocation should

have been properly considered by the trial judge.

Here it simply was not considered at all.

Your Honours, can I take you to the last

ground of appeal that complains that the verdict of

the finding of guilty of murder is, in the

Amoe 21 27/9/91

circumstances, unsafe and unsatisfactory. The

first matter that I want to deal with is the issue
of the operation of the spear gun, because it is

the contention of the appellant that the learned

judge in fact made erroneous findings of fact as to

the operation of the spear gun. To place the

matter in context I should alert the Court to what

the appellant said about this matter, at page 69,

and that is set out at page 9 of the appellant's

outline of submissions.

He was cross-examined, of course, on his

evidence regarding that matter at page 72 of the

appeal book, where he was asked, at the bottom of

that page:

Do you use this gun quite often to go fishing?

It is not my gun, it is my brothers.

You know how it works? Yes.

In order to activate this gun, this is part of

trigger mechanism? Yes.

If you put spear in without rope it won't

work? If this part (rope) not placed on the

gun, if the trigger is pulled, the spear would

not able to shoot out.

You said to Court that just before spear shot

Linus you were looking at trigger mechanism

and all of a sudden spear shot out of gun?

You looking at gun to see if it locked out

then you proposed it to see if locked? Yes.

You say you do this normally - would it be normal to do this? No.

It is normal to press trigger to see if gun is

locked.

Why did you not press trigger to see if gun is

locked. Why did you not do this when you took

gun out of car? I did not think of doing it.

And then the evidence goes on about what happened, whether there was a chase or a struggle.

The critical matter and, with the Court's leave - I understand that the exhibit is in fact

with the Court - but -

DEANE J:  Yes, I gather it is. Do you want it produced?

MR TEHAN:  What I was going to do is hand up two photographs

of the respective positions of the trigger

mechanism and demonstrate the way in which it is

submitted the judge made an erroneous finding of

fact upon this matter. The same matter can be done

by way of the actual weapon, but I thought it

better to do it by way of photographing, with the

Court's leave. There are two photographs for each

member of the Court.

Amoe 22 27/9/91

One can see from these photographs that the

trigger may have been in one of two positions. It

may have been in a half lock position, in which
case it would require very small movement of the

trigger to release the spear. That appears in this

photograph, where the trigger is not fully pulled

back, and one can demonstrate this with the

exhibit, but all one has to do - - -

DEANE J: Well, would you like to have the exhibit?

MR TEHAN:  Yes, Your Honour.

DEANE J: Which one is it? You might point it at the

window.

MR TEHAN:  My instructor can do that. The second photograph

indicates the second position where the trigger is
actually fully pulled back and in that case the

spear is fully home and indeed, in that situation,

the trigger can be pulled right back without in

fact releasing the spear. So that it may well have

been, and indeed it would seem from the appellant's
evidence that it was the case, that the spear and
the trigger mechanism was only in that first

position.

I mean, there is no doubt that the safety lock

was not on because otherwise the spear would not

have fired at all. If one looks at that position

one can see that this part of the mechanism here is

in the first slot - the top slot - rather than the

second slot and the trigger is in what is described

in the appellant's outline as the first position.

Now, in that case one requires very little

movement of the trigger mechanism - this thing,

that operates in order to release the spear of

course, but it requires very little movement of

that trigger mechanism, you just touch it slightly

and the spear would be fired.	In the second
position - the problem is one has got to get this

back down again - one can see that you can actually

hold the trigger back quite a bit further, as

demonstrated in the photographs, and in that case

the spear is what is called fully home.

One of the difficulties we have - yes, one can

see now where the spear is fully home and this

demonstration of the second position as against the

first position seems to come about because the

spear itself, and this is of course broken, but the

speak itself has a number of notches, not just one

notch but, I think, at least two or three notches

and the position of the trigger is dependent upon
what notch you are on, so it can be just slotted in

and may be in the first position or if you pull the

Amoe 23 27/9/91

rubbers right down, and it is quite a process to

pull them right down to get the spear fully home,

it would be in the position that I demonstrate to

the Court now, where you see this mechanism at the

bottom of the trigger mechanism. The spear would

be, in that position, fully home and one pulls the

trigger back to just at the guard in order to

activate the spear. But one can see that it is

quite different from the first position where it is

not fully home, and although of course in the first

position it still requires the trigger to be

activated, it does not require that degree of

activation as it does in the second position.	Of
course such a demonstration, as I understand it, was also conducted during the course of the
apellant's evidence.

Now, the relevance of this, of course, is in the light of the findings by the learned trial

judge. At page 83 of the appeal book, the judge

found that the appellant had - - -

McHUGH J: Just before you go on to that, could you just get

the accused's evidence in context for me.	When he
said, "I pressed the trigger.	I gave it a little

touch to see if it locked. That is what I normally

do", what is he referring to? What is the "it"

that he gave - he said, "I pressed the trigger. I

gave it a little touch to see if it locked" - now,

what does that mean?

MR TEHAN:	There is a safety lock mechanism on the other side of the weapon, and we think this is actually
broken now, but that locks the spear in in a safe
way such that if you pressed the trigger, be it
even slightly or heavily, it does not fire. So what, as I understand it, the appellant was saying
was that he pressed the trigger just slightly in
order to see whether the safety lock was on and, of course, it was not, and what he was contending, as I understand it, was that, of course, the spear
without his intention fired from the weapon.

McHUGH J: Yes, I follow now.

MR TEHAN: That is why I was saying that the issue of

whether or not that mistake on his part gave rise

to the issue of criminal negligence, because it

would be contended on his behalf that that was a

mistake, but albeit a completely unreasonable one

in circumstances of dangerousness.

Now, at page 83 of the appeal book the judge

found that the appellant had locked and activated

the gun before he left home and, indeed, at the

bottom of that page His Honour said:

Amoe 24 27/9/91

I do not believe the accused. I have no doubt

he himself locked the gun before he left his

home. In cross-examination, when asked ''where

did you put the spear in the gun? He replied

"at home". That clearly establishes to me

that he had handled his gun in his house and

activated it there. I have no doubt that at

the time of the loading of the gun the accused

would examine it and if the safely lock was

not applied he would have seen it and secured

it. That would be the normal and reasonable

procedure to be adopted in such circumstances.

I am satisfied he knew he was taking the gun

in the car in which were his wife, child and

cousin. He would ensure the gun was safe.

Now, it is submitted that there was no evidence,

either from the appellant or his wife, that the

appellant had locked the gun.

McHUGH J: Well, except it is the inference the judge draws

from the circumstances. He takes the view - - -

MR TEHAN:	Yes, but it is an inference, Your Honour, that he had locked the gun, and that was not the evidence.
The evidence, in my submission, was that he had not locked the gun.

McHUGH J: That was the accused's evidence, but the judge is

entitled to test it having regard to common sense.

Here is somebody who has experience of using the
gun, and he has his wife and child and cousin in it.

The judge draws the inference that he would have

locked the gun.	He would not been travelling with a
gun without the safety catch on.	Is that the way
the judge approaches it?

MR TEHAN: That is the way the judge approaches it, but in

order to draw an inference of fact against the

appellant it must be drawn beyond reasonable doubt,

acting upon - - -

McHUGH J:  No, it is guilt that has to be proved beyond

reasonable doubt.

MR TEHAN:  I am sorry, Your Honour. The evidence must be

there, and the inferences drawn here were very wide

indeed without any evidence being there. I mean,

there was no evidence from either the appellant or

his wife, or indeed I do not think
cross-examination on the matter of what happened in
the car, whether or not he checked the weapon in

the car, whether or not he checked the weapon at

home. I will take the Court to those pages now.

McHUGH J: But you see, you cannot just isolate this point.

You have to look at it in the context of the whole

Amoe 25 27/9/91

evidence. Now, either the safety lock was never

on, which is your case; or the accused has taken

the safety lock off at the scene.

MR TEHAN:  Yes.

McHUGH J: Well, looking at which is the most probable

version, the trial judge is entitled to look at

motive, what the accused did in relation to other

events. He is entitled to look at the whole of the

evidence, is he not?

MR TEHAN:	Yes, but this Court - I accept that as basic proposition - but this Court has got to look at the
quality of the evidence in assessing whether or not
that finding was reasonably open, and that is what
I am seeking to do -

McHUGH J: Well yes, I follow the force of that, yes.

MR TEHAN:  - - - to say that the quality of the evidence

here was of such an uncertain character that you

could not come, or that this Court at least should

not come to the same view that the judge came to.

At page 65 of the transcript, the appellant's wife

said:  ·

I waited outside.	He came out closed door and
picked up spear gun.	He didn't have to do

that to close door. It was close to door. I

asked him why he wanted spear gun.

And that is her evidence relating to the spear gun. At page 68 of the appeal book, the appellant said -

this is about half-way down the page:

I went outside closed the door and against the

wall near the door a spear gun was leaning.

It was in fact his brother's spear gun - he did not have it for awfully long - that was the evidence.	I took it. My wife told me not to take it. I
told my wife there were many of them and that in case they did something bad to us. I took
spear gun with me, got into car and we drove
away. I was in back seat.

And then further on towards the end of that page,

about three-quarters of the way down that page, he

says:

I got my spear gun. Went to van opened up the

rear of it and Linus jumped at me together

with his two other friends. They were

advancing towards me and I was retreating and

Linus said to me that what I had with me was

Amoe 26 27/9/91

not a plaything or toy. He advanced towards

me again. I retreated. I told him not to

advance but to look at my eye which he had

already damaged. While I was holding the gun

in my hand I looked at safety lock. I wanted

to see if it was locked. It was not clear to

me if it was. I looked again and I touched

the trigger and the spear shot out.

And then at page 72, when he was cross-examined on this matter, about a third of the way down, he was

asked:

In the car you put on safety catch?	No I did
not look at safety catch.
Did you lock gun?	No I didn't.
Did you not consider that dangerous?	No I did
not consider that.

You took spear gun and opened back of van? As

you opened door Linus leaped out? Correct.

Did a struggle take place? No I ran

backwards.

Did Linus try to take gun from you? No.

Is it not correct Linus tried to take it from

you and kept it?

No at that time we had a struggle with the gun.

correct in relation to ground 1 in normal

circumstances it would lead to a quashing of the

conviction and a retrial, but we would ask the

Court to look at - this being an appeal as of

right - - -

DEANE J: Well, I think, Mr Keke, for the Republic,

indicates that if we were to reach that stage he

would prefer a manslaughter verdict being entered

by this Court rather than a retrial.

MR TEHAN:	Yes.
DEANE J:	Obviously there would be great difficulties in a

retrial, I imagine.

MR TEHAN: There would be. There is, amongst other things,

I think the Supreme Court of Nauru is comprised of one judge - - -

DEANE J:  Of the Chief Justice, yes.

Amoe	54	27/9/91
MR TEHAN:	- - - of the the Chief Justice alone.	On behalf

of the appellant, we are on all fours with our

learned friend in his submission on that matter.

Could I, in reply, just address some matters?

In relation to ground 1, my learned friend contends

that this was in the nature of a mere irregularity

in the conduct of the trial and that it does not

lead to a miscarriage of justice. Can I remind the

Court of what Mr Justice Aickin had to say

regarding this matter, in Reg v Matusevich, at

page 652, where His Honour said:

It is not necessary for this Court to decide whether the trial judge should have discharged

the jury when the application was made if, as

I think, the wrongful admission of this

evidence cannot be regarded as a mere

"irregularity" not involving any "miscarriage

of justice". The view taken by the Court of

Criminal Appeal that the "irregularity" cannot

have caused Matusevich to lose a chance which

was fairly open to him of being acquitted is

one which I do not think was properly opened.

The evidence of these prior convictions

appears to be just the kind of prejudicial

material that might in this very unusual case

have tipped the balance against him.

In my submission, this Court, in that case and

in other cases, has found that this matter is one

of substance which can lead to a substantial

miscarriage of justice.

McHUGH J: Is there any distinction between the

admissibility of those questions in a jury trial

and in a case where the accused is being tried by a

judge sitting alone?

MR TEHAN:	No, Your Honour.
McHUGH J: Except that we have the trial judge's reasoning

process, and we know that on the surface at least

it played no part.

MR TEHAN:  Yes, but it is not unlike a situation wherein in

lower courts, for example, a voir dire might be

held on the admissibility of evidence in the nature of a confession, and a magistrate is called upon to

rule the confession out and he has then to

effectively put out of his mind that evidence that

he has heard on a voir dire. Here, the submission

would be that the judge has got to exercise a

discretion and if, for example, he exercized it to
exclude the impugned material, he would simply have

to put it out of his mind.

Amoe 55 27/9/91

That is why this morning I put it to the Court

that one of the troubling aspects of this case is
that the judge does not address the matter in his

reasons for decision. He does not in terms -

McHUGH J: That is not surprising because there was no

evidence in terms. The accused made no admissions.

MR TEHAN:  And that makes it worse again because, as I said

this morning, the allegation is raised and put and

left in vacuo, and it is not pressed in the nature

of calling evidence to rebut the suggestion of the
appellant that he was not involved in a fight or

that he was uncertain as to whether or not he had

prior convictions. The short answer to Your

Honour's question is there is no difference.

MCHUGH J: But it is a large proposition to contend that the

trial judge, the Chief Justice of the Nauru

Supreme Court, would have been diverted from his task by reason of questions being asked which gain

no admission.

MR TEHEN: The test, in my submission, is no different. It

may well have just tipped the balance and, in my

submission, when you have a judge making very

strong findings in relation to issues such as

deliberation, retribution, one cannot be satisfied

that the raising of these matters has not just

tipped the balance from manslaughter to murder, and

it was particularly - - -

DEANE J: Except you are really saying that we should read

His Honour's judgment as if it contained the

sentence, "There is no evidence of prior

convictions but I am going to be influenced by the

suspicion that there may have been", which is a

rather large step.

MR TEHAN:  This Court cannot be convinced that he might not

have been influenced by it. In any event, I hark

back to the terms of the section - section 106(e).

It is the questions which are important. It is not the answers. It is the fact that the allegation is

put.

McHUGH J:  I mean, in this Court the question is, "Has there

been a miscarriage of justice? Has the accused

been wrongly convicted of murder because those

questions were asked which, by hypothesis, should

not have been asked?".

MR TEHAN:  Yes. Well, put another way, "Has he had a fair

trial?", and certainly, this Court in Matusevich,

in particular Your Honour Mr Justice Deane,

adopting the fair trial test, formed the view,

"Well, it doesn't matter whether Matusevich might

Amoe 56 27/9/91

have been guilty or not. He didn't have a fair

trial because his priors were raised". That is the

fundamental issue. I mean, it should not happen.

DEANE J:	I think the point has emerged really, Mr Tehan.
MR TEHAN:	You cannot speculate upon what might have happened if it did not or whether the tribunal of
fact might have been influenced some other way. I
mean, the fact is, it happened and that is where
the matter lies.

One other point on ground (1) and it is this:

my friend contends that the judge approached the

matter in the correct way. My submission is that

he did not approach it at all, because he was not

ever called upon to approach the matter, and he

should have been called upon to approach the

matter. It is not to the point to say, "Well,

counsel for the appellant did not take objection to

this matter being raised". The matter happened

without notice and it is for that very reason, one

suspects, that the Queensland Evidence Act,

section 399(6) of the Victorian Crimes Act and

other provisions throughout Australia - some provision calling upon the necessity to obtain leave - but one suspects that that provision was

inserted for that very reason, that the Crown

should obtain leave, indeed in Victoria must obtain

leave, and why it is that even in States which do

not have the requirement for the attainment of

leave this Court, and certainly the Victorian

Supreme Court, have found that prudence demands

that counsel for the Crown raise the matter before

it is put before the tribunal.

McHUGH J: Well, the fact that the question is asked may

lead to the discharge of the jury.

MR TEHAN:  Yes, that is obviously a safeguard, that that

does not happen. Of course, I suppose at the end

of the day that whole discussion really comes back

to the issue of a fair trial, really whether or not

an accused in the circumstanced had a fair trial.

This Court had held - I have referred to them

earlier this morning - that it is at odds with the

whole concept of the conduct of a fair trial that

an accused's bad character or previous convictions,

is raised without notice. Of course, there are

circumstances where it may happen, where propensity

evidence may be led. None of those circumstances

was sought to be proved or established or, indeed,

applied in the instant case.

Now, dealing with the issue of provocation,

this morning Mr Justice McHugh indicated that the

Amoe 57 27/9/91

learned judge had found that the appellant was

always under control, but one must bear in mind

that the evidentiary material showed that the

appellant, with others, had gone to a party about

11 o'clock the night before; had consumed a large

quantity of liquor; had repaired himself with

others to the Blues Oval where it would seem a
further quantity of liquor was consumed in the area

of something like 24 cans of beer, and it is

difficult, in those circumstances, in my

submission, for the judge to say that because he

went home, he had sufficient time to be fully in

control of himself.

The other aspect of this is that the judge took the view of considering the appellant's

intoxication as a quite separate matter from those

of the other persons who gave evidence, and the
Court will remember that a no case submission was

made to His Honour and the basis of that was that

all these people were really drunk and you could

not rely upon their evidence, and His Honour took

the view that you really should look at the

appellant's evidence in relation to intoxication

differently from the others, but at the end of the

day the appellant was in no different circumstance

than the others. I mean, they had all been

together; there were only, I think, three witnesses

who had come to Blues Oval and not been at the

party but they had, themselves, drunk liquor at

Blues Oval. The appellant, for his part, was in no

different shoes than the friends that he was with

who all said that he, the appellant, was drunk and

of course the appellant said he was drunk and they

said they were drunk also. So, you cannot just

dissect out the appellant and say, "Well, you are

in a bit of a different category".

And I want to alert the Court to one aspect of

the evidence because it does go some way to
explaining the way in which I submit this issue of

provocation ought to have been considered, and it

is in the evidence of Chandra Amoe, the wife of the

appellant, who at page 65 of the appeal book said

this:

Accused and Dengea in car.	They were in
drinking.	I went with husband at table with
back at table.	I started talking to him

questioning him. He did not answer. He

turned around. I saw his left eye badly

swollen. I asked him who did it. He said it

was Linus. I decided I wanted to have a talk

to him so called friend who was always at

house borrowing money. Linus and husband

close neighbours and close friends. I decided

to go to cousin to drive us to his house to

Amoe 58 27/9/91

see him. When we got there I asked sister if

Linus at home. We were told he not there. I

decided we could leave it until next day and

on our way home we passed yellow van.

Now, the material suggests this.	The deceased was
a bigger and older man than the appellant.	They

were friends. That was the position. The deceased

and the appellant were friends. He goes home, the

appellant, and it is his wife - and this is

consistent, in my submission, with what the

appellant contended - who starts talking to him

about, well, who is this fellow who gave you this

injury? It is our supposed friend, who comes

around and gets money off us, and that really is

the background context to the way in which they set

out - and it was not, in my submission - it simply was not open for the judge to find that this was a

journey of retribution. As I indicated this

morning, the finding of the yellow van was by chance, and she had gone to the sister of the

deceased's house, seeking out the deceased, and it

is in that context - that is also important to

understand why it is he takes the spear gun with
him, because what he said was, not unexpectedly, if
he did come across the deceased he would probably

still be with his mates, as indeed he was. He was

in the yellow van, and that is why the issue as to

when he goes up to the van and says, "Is Linus

there?" and there, of course, was a dispute about

this particular matter, but my retort to that is to

say, "Well, what is he supposed to say?" I mean,

does it indicate an intent to kill? It is not

inconsistent, in my submission, with

provocation - - -

McHUGH J: But it is inconsistent with the notion that it

was his wife's idea, and that he just wanted to go

home and have a sleep and it was his wife who went

looking for the deceased.

MR TEHAN: Well, if I could take that matter on board. In

my submission, Your Honour, it is not. All he is

doing is making an inquiry as to where the deceased

is. It is not inconsistent with provocation; it is

not inconsistent with him having the weapon in

order to do the very thing that he said he had that

weapon for and that is that there might be more

than one, indeed he was right about that; he opens

up the back of the van and is advanced upon by the

deceased and two others who get out of the van. I

think one of them might have stayed in.

McHUGH J:  One would have thought he would have gone back

and said to his wife, "There he is, he is in the

van, go and have a talk to him and I will just sit

Amoe 59 27/9/91

in the car with Tsiode", but instead he goes and

gets the spear gun.

MR TEHAN:  I suppose that is why he stood his trial. He was

drunk; he was stupid. One cannot weigh to a nicety

how one should act when you have had 24 cans of

beer and had a night on the town. That is what

happened here. That is what the case was really

about. That is why I say, Your Honour, that the

strong findings that the judge made at the end of

the day really were not open and the evidence was

equally consistent with a manslaughter verdict on

the basis of provocation.

Finally, Your Honour Mr Justice McHugh asked

my friend whether the test of unsafe or

unsatisfactory verdict applied to a judge alone.

In my submission it does and this Court, sitting

not as a special court but as an appellate court,

must apply the test it has set down for other

appellate courts - other Full Courts of the

States - as established -

cHUGH J: That is because they are supervising jury

verdicts, and the question is whether the verdict

of the jury is unsafe and unsatisfactory. But here

we have a trial judge who has given his reasons and

they can be examined. Why do not the ordinary

rules for appellate intervention apply in such a

situation?

MR TEHAN:  He is still the tribunal of fact. As we have

demonstrated, surely, the approach must be that set

down by this Court in Morris' case. If, for

example, the tribunal of fact, be it a magistrate

or judge, makes something which is completely

erroneous - - -

McHUGH J: But the point is it is a full rehearing. Now, we

are entitled to reverse the trial judge's findings

of fact, are we not?

MR TEHAN:  Yes. In my submission, this Court can reverse

the trial judge's findings of fact, and this Court

has to, for itself, examine the evidence, examine

and assess the evidence, and in particular examine

the quality of the evidence. It is not simply
enough for this Court sitting'as a court of appeal
to say, "Well, we think there was sufficient

evidence .. to convict the appellant of murder", because a conviction might well be based upon

sufficient evidence but still be unsafe.

MCHUGH J: But this is an appeal by way of rehearing, and we

have to examine the evidence for ourselves,

although we bear in mind the great advantage that

Amoe 60 27/9/91

the trial judge had in seeing and hearing the

witnesses.

MR TEHAN: Well, that is often cited as something that trial

judges have the benefit of. It did not help this

trial judge in understanding, for example, the

evidence in relation to the spear gun because, in

my submission, he got it wrong. They are really

the only matters that I wish to raise in reply. As

I say, we are on all fours as to what the approach

should be even if one or other of our grounds
should be made out, and that is, that a verdict of

manslaughter be entered and that the matter be

remitted to the Supreme Court of Nauru for sentence

on manslaughter. If the Court pleases.

DEANE J:  Thank you, Mr Tehan. The Court will consider its

decision in this matter.

AT 2.49 PM THE MATTER WAS ADJOURNED SINE DIE

Amoe 61 27/9/91