Armstrong v The Queen

[1990] HCATrans 184

Al,t ~"f.USTRALIA,,I!- -.,.),.')))>$-««.<-'-"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al4 of 1990

B e t w e e n -

PATRICK JOHN ARMSTRONG

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Armstrong 1 22/8/90

AT ADELAIDE ON WEDNESDAY, 22 AUGUST 1990, AT 3.08 PM

Copyright in the High Court of Australia

MRS. TILMOUTH, QC:  May it please the Court, I appear with

my learned friend, MR J. LISTER, for the applicant

in this case. (instructed by J. Lister)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with

MS A.M. VANSTONE, for the respondent. (instructed

by the Crown Solicitor for the State of South

Australia)

MASON CJ: Yes, Mr Tilmouth.

MR TILMOUTH:  May it please Your Honours, as Your Honours

know there were originally seven charges in the

trial court, and before the trial was embarked upon

there was a preliminary application, of course in

the absence of a jury, to sever the various counts.

Your Honours, the argument is not included,

but it followed as is evidenced from His Honour's short extempore reasons at pages 7 to 9, that the

debate about joinder focussed upon fairly

conventional lines. Your Honours will see at

page 7 for example, about two-thirds of the way

down that His Honour referred to Sutton, DeJesus,

Wilde and Hoch. Perry's case was also discussed.

But the long and short of it was,

Your Honours, as these brief reasons disclose, and

indeed as the directions to the jury disclose, was

that the Crown justified joinder in the end result

on the basis of admissibility of the evidence in

each count on the other counts. Moreover, the

Crown basis of justifying that joinder was said to

be striking similarity between each of the counts,

and therefore it was said that they were admissible

one on the other.

Your Honours, the ruling is brief, as I have

mentioned, but Your Honours will see particularly

at page 9, His Honour said at line 2, that -

the Crown rely on the identification, the car
being noted, the registration number being

noted as well as, of course, the similar white

car and I suppose to a lesser extent the same

geographical area in question. To me that is

really a minimal matter -

that is, the geographical area. His Honour goes on

to say:

I am well aware, of course, that evidence

is not admitted merely to show some criminal propensity. That is sufficient. However, I believe this is an exceptional case. There is

sufficient nexus here although it is one of

Armstrong 22/8/90

those situations in the balance. I believe

that the factual events, the identification of the accused, of the car and to a lesser extent the white car, is a sufficient nexus, bearing

in mind to a lesser extent the dates and

geographical area.

His Honour goes on to say he must weigh up the prejudice, which was in answer to a submission that

even where there is joinder a proper exercise of the discretion to sever will be to sever where a

direction cannot be framed to overcome the

prejudice. And His Honour made an order that he

would sever count 4, as Your Honours can see at the

fourth to last line. He said:

Both counsel have admitted to me really there

is no evidence on that count at all.	I
propose to sever that count from the
information, but the other matters will
proceed.

It is not in Your Honours' transcript, and nor

was it ever transcribed, but after that ruling was

delivered, Crown counsel virtually conceded as well

that there was no evidence on the first count of

the information, hence the reference in the Court
of Criminal Appeal to there only being five

charges. Your Honours can gloss that ruling,

however, on page 3 on the endorsements to the

information. On the bottom left-hand corner

Your Honours will see that there was an order

severing counts 1 and 4. I simply mention that

because it is not obvious on the face of the ruling

that two·counts, in fact, in the end result were

severed, but that is how it came about,

Your Honours.

Count 1 related to what was argued to be a

different geographical area, and the evidence on

that count was based on, if anything, some

possession later of some jewellery in rooms in

which the applicant lodged, and it was a different

footing altogether.

Your Honours, the facts in the case in the end

result were relatively simple, and to save time,

Your Honours, we have prepared a brief chronology of one page which I invite Your Honours' attention

to. In relation to the chronology, except for

count 3, Mason, on which the applicant was

acquitted, and count 5, Adamczyk, there was

evidence which was accepted by the applicant that

They varied, but generally they were

he was present at the relevant places or about the explanation.

relevant places before the robberies took place.

Armstrong 3 22/8/90

either looking for directions, inquiring about land

for sale, and so on.

Count 3, as I have said, he was acquitted.

There was no evidence of identification of him at

all, although his car was positively identified.

His evidence was that others were using it. And on

Adamczyk, which was count 5, 12 September 1988,

there was very little evidence at all, at least

direct evidence.

Now, Your Honours, it is to that count in the

first place that our prime submission is directed.

Your Honours, if I could take you briefly to that

evidence because it is important, and it is very

significant in the way that in the end result the

Court of Appeal regarded it. It commences at page

39, Your Honours. Incidentally, the page

references are transcript references in the court

below, not the appeal book references on the

chronology.

The evidence against the applicant on the

book. On 12 September 1988, Miss Adamczyk was home

fifth count, Adamczyk, commences at page 39, and as

Your Honours will see, line 8 - I beg your pardon,

at her house in Norton Summit in the Adelaide

Hills, line 9. Lines 11 and 12 - it was

about 9 o'clock in the morning. She was awoken -

she was in bed asleep. She heard a noise, line 20,

in the front of the house. Line 22 - a banging

noise. She thought it was someone throwing wood on

a glass bottle. Line 28 - she heard a car leave -

so I went to the front door and opened it and

saw the car at the top of the driveway and the

driver was -

and I skipp a few lines - the car was at the top of

the driveway, line 34; the driveway to her house,

line 36; line 38, it was a white Commodore. Over

on to line 32 - she did not get the registration
number; and line 3 on page 32:

It was stopped at the top of the driveway and the driver was looking back at me.

Line 4 or 5 - there was only one person in the car.

Line 8 - she did not get a look at the driver.

Line 9:

Not a clear look because it was sort of on the side.	I just
saw the person look back at me -

and that is when they left, although her evidence

always was, apart from that slip, that there was

Armstrong 22/8/90

one person in the car. It was a male person, line

13, and she described him at line 16 as:

Brown hair, really brownish blackish hair, and

that's it. I couldn't see any details of the

face or anything ..... and the car just took off

and headed off towards Norton Summit.

Your Honours, it is conceded that the

description, so far as it went, of brownish

blackish hair was capable of referring to the

applicant as it was, of course, many other people.

His evidence is at page 85, and Justice Cox made

the same observation at 216.

Your Honours, taking the evidence alone, that

was really all there was in the way of direct

evidence in relation to the actual count 5

concerning Miss Adamczyk. There was, however, led

in this case additional evidence that some six

weeks later on 18 October the applicant, who

admitted this occasion, came to her home, and that

is at page 33, line 5. It was about 10 am,

Your Honours. She heard a knock on the front door,

line 10. She opened it, lines 17 and 19. There was

a male there, and line 28:

He was asking directions, if he was on the right route to Mt Lofty and how long I had

been there because I didn't know and he just

asked how long I had lived there and then I

said I had to go to work, could he please go,

because I was running late.

She then identified the accused, as he was in the

court below, at the bottom of page 33 and over to

34, and said at lines 5 to 6 that the car was -

parked halfway down the driveway. It was

reversed halfway down the driveway -

to her house. It was a white Commodore. Line 18,

that it was a driveway of about seven car lengths so it was reversed down there about three to four

car lengths, and she gave the number which was the
accused's car, Your Honours. It was always

admitted - SDU-691. In fact, the actual

registration was 699, but it did not matter. No

point was made about that. And she gave evidence

that then the car headed off in another direction.

Now, at page 35, Your Honours - she rang the

police, incidentally. The car came back within

minutes, line 3 on page 35. It was driving along

what is, I think, clearly the main road at the top

of her driveway. She could see the accused in it

again, and the long and short of what happened

Armstrong 5 22/8/90

afterwards is that the accused was followed by

police and eventually arrested on that day; and

arrested principally on the basis of the possession

of evidence from the Brunner household which is
also on our chronology, count 7, but I do not
address the facts of that.

Now, Your Honours, it can be seen that except and in so far as the visit on 18 October was to be

regarded as any way probative about the identity of

the person who broke into the house on

12 September, then the only evidence against the

applicant was really the bare facts of there being

a person whose hair fitted his description and

driving a white Commodore. There may also be some

argument fastening on the words that he was at the

top of the driveway and looking back that the car

might have been in the driveway. But there was no evidence really that he was in any way backed into

the driveway to such an extent that paralleled or

mirrored or indeed bore any similarity of a

striking kind at least, with the reversal into the

drive on 18 October.

Indeed, I should add as well, Your Honours,

that the evidence was that on 12 September - the

first occasion - there was a motor bike, I think,

in the driveway, whereas on the latter occasion

there was, in fact, a car and a motor bike, and part of the inference to be drawn from that was

that that supported his case that he was genuinely

looking for directions on the latter occasion

because it would be obvious with two vehicles in

the driveway that someone was at home. There are

points to be made about that, of course, but I

simply mention that to complete the picture.

Now, Your Honours, the way that the trial

judge left all these matters to the jury over the

preliminary objection was on a similar fact basis,

recurs throughout His Honour's summing up. It	striking similarity, and that basis occurs and
begins, Your Honours, at page 165 where His Honour
introduces the term "similar fact evidence" at line
18 and then gives an irrelevant example for current
purposes. And then at page 166 in a long passage,
but essential to our submission, His Honour directed the jury as follows:

But, of course, there are many cases which

come before the court where the Crown have to

rely upon what we call circumstantial evidence

or as in this case evidence of similarity

between various offences, and of course with

that type of evidence you naturally have to

take great care and caution because as Mr

Tilmouth said it's evidence which the Crown

Armstrong 6 22/8/90

really is saying to you to infer from all

these matters of similar fact that the
offences have been committed. The Crown are

able to say that in this case. But you see,

it's quite an exceptional principle because in

most cases the Crown can't say, for instance,

'This person, he is a villain and therefore if

he is a villain that should be easy to say he

is guilty'. The Crown can't say that.

Clearly they shouldn't be, but you see here what the Crown are able to say in this case,

or cases like this, there are matters of so

striking similarity in each of these offences

that they really couldn't arise because of

coincidence, and they are so striking that you

can take those similarities into account when

considering the various counts.

Of course, sometimes there may be

striking similarity between two different acts

that really you would say 'I as a jury person

would have no doubt to that degree, that I am

satisfied beyond reasonable doubt, that this

person has committed both acts'. You know,

some examples were given to you and coming
from that is a person who has put their stamp

on a particular type of crime and it can't be

explained by reason of coincidence because

it's such a very close similarity and there is

a clear, what I would call, underlying unity

between the acts that makes just the

coincidence very unlikely, if not totally

unlikely. The Crown here are saying, of

course, that because of the similarities, and

you heard them mentioned, particularly the car

being observed in some counts, the car and its

registration number being observed in other

counts, and then the identification of the

accused positively on some counts, the Crown
are really saying that really it's so unlikely

to be coincidence that you can disregard that.

His Honour then gives a direction about

avoiding merely suspicion evidence, line 14, and

goes on to say at line 18 -

what the Crown are really saying is 'Look,

these similar acts, these similar factual

matters which we say we have proved beyond

reasonable doubt, it's just really an affront

to common sense not to apply them to each

count'. What I am saying, in effect, is if

you really find that, of course, the Crown

have proved the elements in one count beyond
reasonable doubt, well then, of course, you

can use that finding in other counts, but of

course, you always have to take care when you

Armstrong 7 22/8/90

are doing that in your reasoning that you

don't, in effect, build on matters which you

haven't found proved to that degree.

And, Your Honours, just to complete the cycle,

although they are the core directions, His Honour did say at 168, at line 23 and the sentence which follows, in -

similar fact evidence, to apply to counts it

really needs much care, a great deal of care,

and hence my warning to you because it can

quite easily lead you to being in a

prejudicial situation - could lead you to a

dangerous position.

And at 173, Your Honours, His Honour, in relation

to directions relating to law to the facts came to

the Adamczyk count at line 4 on 173:

With Miss Adamczyk's count, the accused

specifically denied, of course, on

12 September the day of the attempted break,

that he was there that day. It was then, of

course, that he admitted that his licence was

suspended on 6 May 1988 and for a period of

eight months. He believed at that time that

September 1988, his friend Tom Adams had the car. Certainly on 12 September he believes

the car was in possession of Mr Adams. So that was really the direction on the facts

related to the law on the core facts on

12 September. His Honour went on to say this, with

respect to the second occasion of him being at her

house:

Miss Adamczyk, of course, you will recall

her second occasion when she identified the

accused on 18 October, .the microwave day, and

the accused then agreed that he was most

probably driving on that day and on that day

of the Greig account. Of course, you recall

that Mr Armstrong deposed that he really went

to the hills that day to assist his friend

Tony Lindsay who I think lived near
Cherryville and he saw Mrs Greig when he drove

past her house. He was in the hills that day

to offer assistance to his friend.

Your Honours, this was all put to the jury, of course, over the preliminary objection that was

never admissible at all on a similar fact basis.

But when it came to the summing up, I made the

objection that there was a real question about the

use which the jury might make of the evidence of

the admitted presence on 18 October at

Armstrong 8 22/8/90

Miss Adamczyk's house as evidence, or as some kind

of probative evidence, relating back to the theft

and her observation of the white Commodore and the

black haired or brownish black haired man in

September. That was attempted, incidentally. I

stood corrected there. That objection was raised

at pages 180 and 181 and, Your Honours, what I

submitted in the end result was - if I can

summarize 180 and the top of 181 - on what basis,

this is what I was asking, in effect, on what basis

is Your Honour leaving the evidence of the admitted

presence on 18 October in so far as it might go to

prove the count of Adamczyk on 12 September? And I

made the submission in the middle of page 181.

His Honour said at line 13:

He knocked on the door ..... ! think that

evidence was clearly admissible.

I conceded it was, and it always was admissible,

Your Honours, as evidence of narrative of the

events of 18 October, but I went on to submit -

but the question is on what basis and how far

the jury may use it, and in my submission it

ought not to be used at all as evidence, only

other than as narrative of the events leading

to the arrest and the identification, and
certainly not as another particular of

sounding another place for yet another

robbery.

The Crown asked a question then at the bottom,

line 27 -

what was he doing there -

on the 18th, and submitted at the top of 182 and

said:

Exactly, and that's certainly not a sixth

which related to a charge. count, because certainly nothing happened

His Honour then made certain comments and I made a

submission that His Honour ought to limit the use

that the jury could make of that evidence, and

His Honour declined the invitation.

And finally, Your Honours, to complete the

relevant passages in the summing up, His Honour at

page 185 put, in essence of the defence case, and

at 186 - I will not read it; he simply went

through very basic matters. There is no complaint

about that so far as it went, but repeated the

basis of admissibility earlier put at 186, line 8:

Armstrong 22/8/90

Some counts you may find more persuasive than

others but then talking about the common
thread or threads running through each of

those counts and, in effect, saying well there

is just too much striking similar evidence

here for you to ignore evidence which is not a

coincidence. Really in that submission is a

rejection almost totally of the evidence that

the accused has given and I would assume of

course what Mr Adams is saying. Really it is

an affront to your commonsense to find that

there was a coincidence here and there is just

too much of that common thread running through

the counts, therefore, you should have no

doubt at all.

And the jury went out on that basis.

Now, Your Honours, in my submission, when we

go back to the evidence in the chronology - and perhaps I can do it in reverse order because it might be thought as Justice Cox observed, that-the

evidence on the last count was the strongest, as it

was - in fact, it was very strong evidence because

of recent possession. It was the microwave and

beer stolen from the Brunner house. It was in the

possession of the accused as he then was, in the car within, I think, about two hours. But it was

clearly capable of being recent possession.	It was
very strong.

Now, going backwards then, the evidence of the

accused driving the car past the Greig house

earlier that morning was admissible, of course, to

show his proximity that morning, and hence some

relationship between the later breaking into the

house. But I would submit if there was any basis

of admissibility the jury would probably, if not

certainly, work backwards from the strongest

evidence to see where it led them.

On the Adamczyk count, Your Honours, even if

assuming for the moment the evidence of 18 October

was regarded as evidence of the accused, the

applicant, going to that house to see if somebody

was home, which we submit was putting one possible

construction on it, but a strained one, the point

was in any event on count 5 for 12 September was,

who was the identity of the breaker on that day?

Who was the person?

On the other counts going backwards - Mason, which I ignore because of the acquittal - and

Robins, the real situation about Robins was quite different as it was in my submission with respect to Greig and Brunner. And that may be a little

confusing. But what I am saying to Your Honours is

Armstrong 10 22/8/90

that putting Mason aside, the issue in the other

counts apart from Adamczyk, is not the identity of

the offender - well, it was, I acknowledge - but

the real issue was he says he is admittedly there

on those days. Is it an innocent presence, an

~ccidental presence, or is there some reason to

tliink there is a sinister purpose?

In other words, we would submit that generally

speaking looked at an overview, the issues were

quite different on the other counts than they were

on the Adamczyk count. On the Adamczyk count the

issue was, aliunde, who was the white Commodore

driver on 12 September? On the other counts there

was admitted presence essentially beforehand,

except for Brunner which was afterwards, of the

applicant, but the issue was whether that presence

was innocent or did it have a guilty connotation?

If follows, if the Court pleases, that if

there was to be any cross-admissibility, so to

speak, the basis of that cross-admissibility was

different in the case of the other counts than it

was on the Adamczyk count. We accept entirely that

the Full Court was right to identify that

His Honour was wrong in admitting the evidence on

the basis of striking similarity because that basis

of admissibility was really to identify the

offender. There was no question of the accused's

presence on the other counts. The real question on

Adamczyk was, who was the offender? When it comes

therefore, to looking at the evidence generally

speaking, my submission is that the only basis which the counts could be used one against the

other would be more or less as follows. It is

making some suppositions, of course, about the way

the jury reasoned, but this is probably the way

His Honour viewed it.

Accepting that the Brunner count was the strongest because of the recent possession - the

jury found that made out beyond all reasonable

doubt - they may or may not use that as a building

block to make inferences working backward

chronologically.

McHUGH J:  But why do they have to start with one count and

just go through them? Why can they not look at all

the evidence in relation to each particular count?

MR TILMOUTH: Well, they might be able to do it, if the

Court pleases, in this way, but my point here would

be that it was never put on this basis by

His Honour. It was put on the basis, as I have

read to Your Honours, on the striking similarity

basis. It could be, of course, that in relation to

the evidence, let us say, of the second visit to

Armstrong 11 22/8/90

the Adamczyk house that the jury took the view that

his calling in was not innocent, but it was an

attempt to see if somebody was home for the purpose

of robbing the house if there was not anybody.

DEANE J: But what did he say about that, Mr Tilmouth?

MR TILMOUTH:  He said he was up in the hills at that time

looking for a friend, but the problem with that, of

course, was he must have had the stolen property

from the Brunner house in the boot of the car.

But, Your Honours - - -

DEANE J: But where is his evidence about the second call at

the Adamczyk house?

MR TILMOUTH:  His evidence about that, Your Honours, is, if

Your Honours will just pardon me for a moment - - -

DEANE J:  I think I have found it. I think it is page 122.

MR: TILMOUTH:  Thank you, Your Honour.

DEANE J: That is the cross-examination.

MR TILMOUTH:  Yes, that is the cross-examination.

Ironically we had it in the original draft

chronology, but we left it off because it was an

admitted fact. Yes, 13 October, Your Honour - at

page 93 - I am obliged to my friend - - -

DEANE J: Good. Do not let me delay you, I will just have a

look at it myself.

MR TILMOUTH:  - - - and the next page. But Your Honours

will see that he was in the hills because he was

visiting a friend having trouble with his car. But

essentially what Mrs Adamczyk said was right and

accepted; that there was a conversation looking for

directions, and there was evidence that that part

of the roadway at the top of her driveway was very winding and it was very difficult to make a U-turn

and so on - there are points both ways, but there

was that evidence. But essentially the occasion,

as I have read it from Mrs Adamczyk, was admitted

and the conversation was admitted, and so on.

But to further answer Your Honour

Justice McHugh, in my submission, there are a

number of bases upon which the jury might have been

able to use the whole body of evidence, let us say.

One might have been by working backwards, as I have

endeavoured to suggest already, might have been the most logical way of doing it. Secondly, of course,

if the jury reasoned from the second occasion when

Mrs Adamczyk referred to people coming, that the

applicant was, on that occasion, not there for an

Armstrong 12 22/8/90

innocent purpose looking for directions, but for a

guilty purpose, namely trying to see if somebody

was home, which may have been inferred from

reversing in the drive perhaps, as Justice Cox

said, then the question really became, in any

event, how could the jury use that evidence to find

that the applicant was the offender in September?

Now there are only about two or three bases that

that could happen.

The first might be simply by saying that,

well, the two occasions were so similar that there

was a striking similarity, therefore we are able to

use that evidence as evidence of identity of the

offender in question. But, Your Honours, as I have endeavoured to explain by reading the evidence, the only evidence of the first visit was that there was an identified white Commodore with a dark-haired

person looking back at the top of the driveway.

That evidence did not match, although the inference

might arise perhaps very reluctantly that the car

might have been in the drive. The evidence did

never go so far as to suggest that on both

occasions there was a reversal in the driveway for

a significant portion down the driveway - perhaps

the two or three or four car lengths, as

Mrs Adamczyk suggested.

Justice Cox, incidentally - I come to his

reasons in a moment, but His Honour made that

comparison and, in our submission, he was, with the

greatest of respect, reading too much into the

evidence. So we would submit there could not be

any basis for reasoning backwards from the first

occasion·by striking similarities to say that there

was such a modus operandi, or comparison, that it

must have been the same person. The second basis

might be, Your Honours, that there was too much -

this would predicate a finding of guilt on the

other counts - but the other basis, I suppose, is

if the jury found that it was the applicant who was

guilty on the other four counts by reason of the

fact that they rejected his explanation for being

at the Robins's house, being in the hills on the

others and so on, then they might have argued

possibly that, well, is it so likely that there

could have been anyone else than the applicant

driving a white Commodore on the occasion in

September that Mrs Adamczyk referred to.

So, in further answer to Your Honour

Justice McHugh - I am sorry if this is convoluted

or confusing - is I accept that on one view they

might have been able to reason on the whole body of

the evidence that there was no rational hypothesis

other than the fact that it must have been the

applicant who was the offender on the Adamczyk

Armstrong 13 22/8/90

occasion. But that would predicate a finding of

guilt first on the other offences, and it would

also predicate the rejection of any reasonable

hypothesis that it was some other person other than

the applicant. And my further answer would be,

with respect, that that was never ever put to the

jury on that basis.

McHUGH J: Yes, but the question is whether the counts were

properly joined and whether the evidence was
properly admitted and in looking at that issue you

are entitled to take into consideration the Mason

evidence as well.

MR TILMOUTH: Well, that may be so. Of course, the

application for severance had to be judged on the

evidence as it was - the deposition evidence - as

it was at that time.

McHUGH J: But why could not the trial judge say, at the

time when he had to make his decision, it was open

to the jury to find that the plaintiff and his car

were involved in the Robins issue; the Mason issue,

the Greig issue, the Brunner issue, that on 12

September there had been an attempted break-in at

the Adamczyk premises; somebody driving a white

Commodore; that the plaintiff drove a white

Commodore in relation to these other offences, and

it would be a tremendous coincidence if he should

appear on 18 October in the driveway, obviously

with the intention of robbing the place, if it was

not he on the earlier occasions.

MR TILMOUTH: Well, let us assume, with respect, the judge

might take that view. The way that you get to that

final conclusion, in my submission, is significant,

and you would have to do that in a number of ways,

in my submission. Firstly, there would probably

have to be either a finding of guilt on the last

count, Brunner, or the finding beyond reasonable	doubt, in Adamczyk's case, that he was there with a
guilty purpose. Now, the jury might then reason
logically that given the admitted presence on the other occasions, that we cannot accept that it was
innocent, because we would find these other preliminary facts proved beyond reasonable doubt.
But their consideration of Adamczyk would require
further analysis because they would then have to
decide, in my submission, that the evidence on the
second occasion of calling in to Mrs Adamczyk's
house was probative of the identity of the offender
on the first occasion and not probative by any
reason of propensity, but probative because it
indicates the same offender.

But they can only get to Adamczyk, in my

submission, if they found the applicant guilty on

Armstrong 14 22/8/90

all the other counts, and they could only find him guilty on the other counts on the rejection of the hypothesis that his presence was innocent, and then

they could only use those findings as evidence of

his identity in relation to Adamczyk if one of the

number of threshold tests expounded by this Court

have been satisfied. They are, either that that

body of evidence therefore either bears a striking

similarity so that they can use that to - - -

McHUGH J:  I do not think it is a striking similarity case

at all; it is a circumstantial evidence case.

MR TILMOUTH: Well, I will put that aside.

MCHUGH J: Yes.

MR TILMOUTH:  But even if it was probative on a

circumstantial evidence basis, there are a number

of other threshold steps. The nexus must be strong

enough to justify the joinder, De Jesus case,
especially Justice Dawson; the evidence must not

only be probative but it must be highly probative

and clearly transcend any prejudicial effect,

Harriman's case, and the other authorities, and

more than that though, even at the joinder stage,

the proper test, in my submission, is whether or

not on the basis of the depositions when the matter

is being considered, whether, looking at that count

there is a reasonable hypothesis consistent with

innocence. Now that is Justice Dawson in Sutton's

case, which was approved by the majority in Hock.

Now the fact is, in my submission, if one

looks at the Adamaczyk evidence on 12 September

there plainly was a reasonable hypothesis

consistent with innocence.

MCHUGH J: What was it?

MR TILMOUTH:  Well it was that it could have been somebody

else completely. The only basis upon which it

could be joined is if the reasoning process had
been perfected right through the other counts to

find that the applicant was the offender on those,

and therefore that it was highly improbably that
anybody else driving a white car and having the

same colour hair as him could have been the

offender.

McHUGH J: But if you have got the plaintiff committing a

number of robberies and attempted break-ins in the

same area over a period of some six months, and you

find an attempted break-in by somebody in a white

Commodore with brownish-black hair as the

perpetrator, and then five weeks later you get a

particular person in his white car in the driveway

Armstrong 15 22/8/90

for the obvious purpose of breaking in, it does not

strain one's credulity much to think that he is the

same fellow that tried to break in on 12 September,

is it?

MR TILMOUTH: Well, if the Court pleases, with respect, as a

matter of logic I accept that that process might be

available, but it was never ever the basis upon

which these matters were joined in the first place,

and the reasoning process which would properly lead

to that conclusion was not put to the jury in this

case either. It was put simply on the basis of

striking similarities one and all, whereas in my

submission, the only basis where you could justify
joinder would be to put the evidence on the other
matters on the basis that the Full Court found was
the proper basis, to rebut the suggestion of

innocent presence, and then, and only then, on the

Adamczyk matter, either on the basis Your Honour

Justice McHugh was putting to me, or on the basis

which the Full Court rejected and Your Honour

appears to reject, of striking similarity.

Now it was not put to the jury on that basis

either, and I would suggest, with respect, if the

Court pleases, accepting that that logical process

was available to the jury, it was never ever put to

them on that basis and there were never any proper

directions to that effect, particularly singling

out the very important distinction between the evidence being evidence of identity on the one
hand, as contrasted with the evidence being

evidence to rebut admitted presence.

McHUGH J: But now you are changing your ground; it is

attacking of the directions of the trial judge

which does not seem to have been the point in the

special leave application, apart from the way you

use the incident of 18 October.

MR TILMOUTH: Yes. Well, with respect, Your Honours, the

whole basis - it may be that the joinder can be

justified on some other basis but, in my respectful

submission, it was never put to the jury on a

proper basis and the whole basis of the special

leave application is, in a line, what are the correct directions to be given to a jury when

evidence is admitted, not on striking similarity,

but in order to rebut the suggestion of accident or

innocence. That is what I submit the special leave

point is.

MCHUGH J: Yes.

MR TILMOUTH:  And I submit that that is properly raised on

the pleadings and it certainly was raised at the

trial. It was contested right from the start that

Armstrong 16 22/8/90

that was the proper basis for joinder, and the

Crown never really sought to join it on the

alternative basis upon which the Full Court upheld

the joinder.

Could I take Your Honours very quickly to the Full Court judgment or the principal judgment of

His Honour Justice Cox, and I focus here
principally on the Adamczyk count, although

Your Honours, with respect, would have understood

my point that really what we are saying is that the

basis of admissibility was wrong in the first

place, and it never was ever corrected and the

whole trial, in effect, went to the jury on a

completely wrong footing altogether.

BRENNAN J:  Mr Tilmouth, can I just ask you one factual

matter first? Are these various places in close

propinquity, one to the other?

MR TILMOUTH:  They are within kilometres of each other, Your

Honour. They are in the Adelaide Hills. There was

a paucity of evidence - unfortunately the jury had

and Norton Summit were three kilometres apart. They relate to Brunner and Adamczyk.	a map - I think we had some evidence that Teringie the bar table, Your Honours, but I think, at a
guess, that would be within two to five kilometres of Norton Summit, and Summertown, I think, is
between Norton Summit, or Summertown, or within a
few kilometres anyway. I would not argue that they
were in the general geographical discrete area of
the Adelaide Hills.

BRENNAN J: A discrete area of the Adelaide Hills?

MR TILMOUTH:  That is right. No, I do not argue about that,

although, as in the passage I have mentioned from

His Honour's ruling, that was a minor matter in

His Honour's view, but I accept that the general

geographic locale was a relevant consideration and

they were in it. Your Honours, at 223 - - -

BRENNAN J: Can I just interrupt you once more? Was there any evidence as to the incidence of burglaries in

this area?

MR TILMOUTH:  No. At 223, Your Honours, Justice Cox said

this - and I apologize there are no line markings

here, but it is about a third the way down - there

is a passage commencing, Counsel:

concentrated his fire on count S. There

evidence that the breaking at Mrs Adamczyk's house was committed about 9.00 a.m. by a man

who had backed a white Commodore car down her

Armstrong 17 22/8/90

driveway in order, no doubt, to assist in the

removal of any stolen goods. She did not get

the number of the car. Her description of the

driver's hair fitting the appellant but, of

course, it fitted a great number of other men as well. So there was nothing approaching an

identification of the appellant or the car on

that occasion.

I would also add, if the Court pleases, that

His Honour's reflection that the white car was backed down the driveway might be available on the

evidence, I have read it, but in my submission it

was not that plain at all from the evidence on the

earlier occasion that that was the case.	I read
on:

However, the appellant himself (according to

Mrs Adamczyk) went to the house one morning

about a month later, around 10.00 a.m., and,

uninvited, reversed his white Commodore car

half-way down her driveway. He knocked at the door and asked her whether he was on the right road for Mount Loftey. In this brief

discussion Mrs Adamczyk told him she was

running late for work. The appellant drove

off and not long afterwards he drove past Mrs

Adamczyk's house again. I think that a jury

would be entitled to conclude from this

evidence, if they accepted it, that the two

Commodore drivers were one and the same man.

BRENNAN J: Could they come to the conclusion, based on the

topography, that the accused having been in the

area in April, and 13 October, could have had no

doubt as to whether he was on the right road for

Mount Lofty?

MR TILMOUTH: Well, that might be available, Your Honour.

It would predicate, of course, a finding of guilty

on the other counts first, as I have indicated, but

in my submission, the highest that that could be

put - - -

McHUGH J: Well, not necessarily, would it, because he

admitted his presence?

GAUDRON J:  Was it presence?

BRENNAN J: Just presence.

MR TILMOUTH:	But not on the Adamczyk count, with respect.
McHUGH J: No.

BRENNAN J: No, not on the Adamczyk, but Greig.

Armstrong 18 22/8/90

MR TILMOUTH:	Oh yes, I accept that.
McHUGH J:	The important point is that he admitted being in the area, and the inference was that he would know
where that particular road was?

MR TILMOUTH: Yes. But, if the Court pleases, I accept that

as a matter of logic that might have been available

to a jury, but it would have to be put to them on
that basis and there would have to be proper

directions of course, in the reasoning process that

let up to it, and what I am saying to Your Honours,

of course, is that basis was never put to the jury. In fact, my respectful submission is that the jury

would not have understood the directions that

His Honour gave as they related to the fact of this case.

BRENNAN J: Directions have to be given, usually, to

safeguard the jury against drawing of inferences

which are not open on the evidence.

MR TILMOUTH:	Yes.
BRENNAN J:	In the context of the first Adamczyk date,

12 September, was there any fear of that kind?

MR TILMOUTH:  In my submission there was, because the jury

might well have reasoned, on the footing as

His Honour put it that there were striking

similarities, that that was a simple basis for

reasoning that it must have been the applicant.

The fact was that there were no striking

similarities with respect to that count at least,

and the directions about striking similarities were

simply irrelevant to the other count.

BRENNAN J: The only question on that count, as you said,

is, "Who was there? "

MR TILMOUTH:

Yes, but the question ~ould not have been

asked through a consideration of whether or not the

evidence was strikingly similar on that occasion,

as compared with the others, or some of the others.

Indeed, the directions that His Honour gave talks

about striking similarity without really leaving it

to the jury to make the conclusion for themselves

that there were striking similarities. The whole

thrust of the directions seem to predicate that the

striking similarity was there in the first place.

But, Your Honours, in my submission to get a

finding of guilty upheld on the Adamczyk count, a

completely different basis of putting it to the

jury would be required, and not the basis that His

Honour put it to the jury. Could I take Your

Honours to page 233 of Justice Cox, because here,

Armstrong 19 22/8/90

with respect, His Honour appears to be, after

ruling in effect that the evidence was not

justified on the basis of system or modus operandi

or striking similarity, His Honour said this about

the evidence which is under debate now - 233, about

a third the way down:

The ostensible and legitimate purpose of

the October 18 evidence was to identify the
appellant as the person who was present at the

same house a month earlier when the robbery

took place. It was a practically inevitable

corollary of that conclusion, if not an
important step in the reasoning that led to

it, that the appellant was "casing" the house

on October 18 - hence the way he backed his

car down the driveway. Any circularity of

reasoning is avoided by the remarkable
coincidence required by the alternative

explanation, namely, of two strangers to

Mrs Adamczyk and presumably to each other, one

the appellant and the other a man with similar

hair colour, each driving a white Commodore

and making a morning visit to the house at a

time when it might well be unoccupied and

reversing without invitation several car
lengths down the drive, and not in either
instance having any obvious justification for

being there. It -

is, I think that should read

well known that thieves sometimes break into

the same house more than once. To tell the

identity of the man who called at the house on September 12 - a conclusion (if

jury that they could use the evidence of the could, the

they were willing to draw it) that would

inevitably condemn the appellant as an actual

housebreaker on the one occasion and a

possible and willing housebreaker on the other
- but that they would not make any use of the

latter factor in their consideration of the

case against the appellant generally, although
they might properly do so with respect to the

former, would be to attempt to draw a
distinction about the October 18 evidence that

the jury would not have grasped very easily.

And His Honour went on to make further observations

about that, and concluded at the bottom third of

that page:

I think the learned Judge would have found the distinction between the proper and improper

use of the October 18 evidence difficult to

Armstrong 20 22/8/90

explain and that the jury, as I have said,

would have found it correspondingly difficult

to understand. I cannot think that the

failure to attempt a specific direction on the

topic could have made any difference to the

result. I would reject this ground of appeal.

And over on to 235 and 236, Your Honours, what

His Honour said was that despite there being criticisms which he was prepared to uphold, especially 236, after the references to Salerno and

Sutton, that the evidence - this is towards the

bottom third of the page:

could be put in the consideration of any

particular count was obvious enough, despite

the various terms in which it was described,

and I cannot think the jury would have had any

difficulty in understanding it, including its

limitations. There is perhaps confirmation

for this in the jury's acquittal of the

appellant on count 3.

Now what we would submit is wrong with all of

that, with respect, going back to 233, is that it

is true that it may be possible to reason from the

18 October evidence backwards, that the identity of

the offender was the applicant, but that was never

put to the jury and, as Your Honours will recall, I

specifically asked for a direction to that effect.

With all due respect, as well, in my submission,

although there is a prima facie comparison between

the two occasions of coming to Adamczyk's house, to

draw, with respect, what I submit, is a longbow,

that His Honour did that of reversing down the

drive without invitation several car lengths was

not, with respect, justified conclusion on the

evidence about the 12 September incident; it was of

course on the second one.

And, to suggest that with respect the evidence

could be used of identify might be right, but it was never, with respect, ever put to the jury in

that way at all, and it is obvious, I would submit,

the reflection that it is well known that thieves

sometimes break and enter into the same house more

than once, is, with respect, no more than

propensity reasoning par excellence.

So, Your Honours, in our respectful

submission, whilst it may be conceded that a

properly instructed jury might reason that the

evidence on all of these counts was admissible on

the others, before they could get to that process
there had to be the lengthy reasoning process which

I have endeavoured to outline already.

Armstrong 21 22/8/90

Our point is, with respect, it was never ever put to the jury on that basis. On the contrary, it

was put to the jury on the completely irrelevant

and erroneous basis which could only have confused

the jury, not assisted them. At all events, the

law, as His Honour outlined it anyway, which was,

we submit, irrelevant to the task, was never

related to the facts as I have explained to

Your Honours already, and read the passages, and

with respect, for the Full Court to say, "Well

although it was wrong, the jury would have

understood it well enough", in my submission, is
unjustified because the original basis of it being

put to the jury was wrong and confusing and it was never put to the jury in the right way at all, and the proper reasoning which the Full Court said was

justified, namely to rebut accident or mistake, was

never put to the jury at all, and certainly not in

proper and clear terms.

So, Your Honours, that, in our submission, is

what the application comes to, and as I have
endeavoured to suggest, the special leave point is what the proper directions would be in a case like

this where it is not joinder on the basis of toting

up similarities and therefore saying you can use

similarities striking as they are to reason to

identity, is a different case altogether.

Your Honours, we had complained that the basis

of distinguishing Harris's case in the
House of Lords was erroneous, but, with respect,

Your Honours, on mature reflection, although that submission might be right, it would not elucidate

the debate here and I do not argue that point.

There are distinguishing factors but, in my submission, the principles are as we have

endeavoured to outline them. And the only other

matter I would put to Your Honours on the	application of the proviso is that, in my	submission, because the joinder was made on a wrong
basis to begin with and was put to the jury on a
completely wrong basis, it would not be an
appropriate case to apply the proviso, or perhaps
alternatively, simply to quash the conviction on
the count that I have directed most of my
attention to.

And finally, Your Honours, there was a

complaint which was upheld about the right to

silence. Could I add one other factor.

Your Honours, the complaint in the

Court of Criminal Appeal was not simply that there

had been a cross-examination on the exercise of the

right to silence over objection, but it also was

that, in his closing address to the jury, the

Crown prosecutor made a great deal of that in his

Armstrong 22 22/8/90

address to the jury and in fact, in a 10-page
address, he devoted virtually the last page to a

very severe criticism of the applicant on that

basis and that is why I sought, as the

Court of Criminal Appeal mentioned, a direction

that the jury specifically ignore it.

Your Honours, can I hand up, without reading,

the final address of counsel. It is the last two
pages there which we would point to, but it is not
evident on the papers. The point we made in the

Court of Criminal Appeal was not simply the

cross-examination which was permitted over
objection on the exercise of the right to silence,

but it was the very serious criticisms - I think it

is pages 35 and 36, Your Honours, that counsel had

made in his final address to the jury and in fact,
as Your Honours will see, his very parting words to

the jury were - virtually 10 per cent of his whole address were on that very issue. In the middle of

page 35 he started by saying:

Another thing too, typical business, once

the accused had been stopped-

et cetera and Your Honours will also see that he

sat down on the same issue:

I say no more if nothing else.

I do not read the whole of the contents

between two of those lines. My point is that there

was a very severe criticism of the exercise of the
right to silence on the basis of evidence which the

Full Court held should not have been admitted, and

our point, in the Court of Criminal Appeal when

here, was that it went beyond just the evidence; it

went to the manner in which prosecuting counsel

dealt with it in the closing address and I submit

that that is a very cogent factor as well, relating

to the proviso. May it please Your Honours.

MASON CJ: Yes, thank you, Mr Tilmouth. The Court will take

a short adjournment in order to decide what course

it will take in this matter.

AT 4.09 PM SHORT ADJOURNMENT

Armstrong	23	22/8/90
UPON RESUMING AT 4.14 PM:
MASON CJ:	The Court need not trouble you, Mr Solicitor.	We

are not persuaded that there is any question of

general importance in this case which would warrant

the grant of special leave to appeal. Nor are we

persuaded that there is any likelihood that any

defect in the summing up would have given rise to a

miscarriage of justice. That is the view of a
majority of this Court.

Therefore, by majority, the application for special leave to appeal will be refused.

AT 4.15 PM THE MATTER WAS ADJOURNED SINE DIE

Armstrong 24 22/8/90