Bakir v The Queen; Hill v The Queen

[2012] HCATrans 136

[2012] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B61 of 2011

B e t w e e n -

YASSAR BAKIR

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane   No B62 of 2011

B e t w e e n -

STEVEN MILTON HILL

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 7 JUNE 2012, AT 3.25 PM

Copyright in the High Court of Australia

__________________

MR A.J KIMMINS:   If the Court pleases, I appear for Mr Bakir.  (instructed by Peter Shields Lawyers)

MR M.J. BYRNE, QC:   If the Court pleases, I appear for the applicant, Hill, with MS P. MORREAU.  (instructed by Peter Shields Lawyers)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, Mr L.K. CROWLEY, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

HEYDON J:   Yes.

MR KIMMINS:   Yes.  The prosecution case against Bakir and Hill depended almost exclusively on the evidence of an indemnified accomplice, one Radcliff.  Certainly without Radcliff the prosecution did not have a case against either of the applicants.  There were a number of other parties involved apart from Bakir and Hill and Radcliff. 

Possibly the best starting point would be at record 189, paragraph [87] in the decision of Justice Atkinson, where her Honour identifies in paragraphs [87] and [88] incidents which allegedly occurred prior to the commencement dates for both of the offences that the applicant was convicted of.  There is reference specifically to an associate on the fourth line in paragraph [87], one Glen Cook, who the indemnified accomplice, Radcliff, had been involved in a substantial way in drug manufacturing and drug trafficking prior to any alleged involvement of the applicant.  Paragraph [88] notes that:

Cook was arrested and taken into custody –

On the second last line of paragraph [88], reference to, the then, co‑accused, Gray, who was Cook’s girlfriend.  Paragraph [89] is very relevant.  It identifies effectively the sum total of the evidence of Bakir’s implication in, at least, the offence of importation.  Effectively, the basis upon which the case proceeded against Bakir was that he uttered the words, which are identified in the fifth line down:

You know about this Fanta and how to get it into Australia.

There was then a protest and then he was told that he had two weeks to organise it.  Paragraph [90] identifies that:

After this meeting Radcliff immediately contacted Gray –

who was then to take up with Cook, who was in prison.  Paragraph [92], the case was that:

Gray agreed to arrange the importation -

Five lines down, in paragraph [92] we see the first reference of a person called Broad, who was a further accomplice.  Radcliff brought Broad into the conspiracy.  At paragraph [93] there was further reference to Radcliff dealing with the person, Gray, and also with Broad again, and then reference to a person called Kayla Smith, who was at that stage Broad’s girlfriend.  Once again, it is Radcliff who recruited Smith into the enterprise.

Paragraph [94] identifies 6 June as being the date that the parcel containing the drugs arriving at the Eagle Heights post office and Radcliff arranging for Smith to take possession of the drugs.  Following that Radcliff, with the drugs, travelled to Surfers Paradise, in paragraph [95], where he took up with Broad and the drugs were handed over to Broad.

Paragraph [96] sees the re‑entry of Bakir into the scenario, obviously at a time after the drugs had been actually imported into Australia and been handed onto Broad.  The remainder of the scenario on page 191 is not particularly relevant at this point in time.  It is sufficient to take the Court to paragraphs [102] and [103].  Paragraph [102] identifies Bakir and Gray flying to Sydney together.  From paragraphs [103], [104] and [105] they deal with incidents which occurred after the last date in both of the charges and do not actually involve Bakir or Hill.

It is patently clear, I would submit, that apart from what was contained in paragraph [89], there is no other role that Bakir is alleged to have played up until the importation had actually taken place.  Effectively it was, as I had noted previously, Radcliff who had recruited, organised and directed the other accomplices in the enterprise.  These other accomplices undertook various tasks at Radcliff’s behest. 

The learned trial judge gave appropriate warnings so far as how the jury was to deal with Radcliff, and I take the Court to record 217, in the decision of Justice Atkinson, at paragraph [221] where his Honour, in a slide that was placed before the jury, specifically identified the reasoning why Radcliff’s evidence had to be assessed with some care.

The first dot point, the third dot point, but more particularly the last two dot points obviously sit with common sense and also with authority in relation to why it is relevant and necessary to look for corroborative evidence of an accomplice, especially an indemnified accomplice.  At paragraph [223], further down that page, her Honour set out, Justice Atkinson set out what effectively are 15 points that the prosecution had indicated were sufficient, and one harks back to paragraph [222]:

evidence from independent sources which was capable of supporting Radcliff’s evidence in a material way.

Then her Honour noted that:

The evidence was largely circumstantial -

and then proceeded to set those 15 points out.  At least 50 per cent of those items dealt with the actions of other persons or parties that I took the Court to in the preceding paragraphs.  Item No 1 dealt with the person, Cook, at a time prior to the start date of the offences that the applicant was convicted of.  Point No 3 dealt with Gray and Radcliff.  Point No 5 dealt with Mr Hill and Radcliff.  Point No 6 dealt with the arrival of the package at Eagle Heights, and 7 dealt with the collection of the package by Kayla Smith.  As noted before, she was present with Radcliff.

So far as the fourth dot point down on page 218, that dealt with the person, Broad, and persons called Brown and Hilton.  Point 13 dealt with the person, Kayla Smith and Tony Broad, and the second‑last one dealt with the person, Broad.  So, as noted, of the 15 points, at least seven of those specifically related to persons other than the two applicants and their involvement in the enterprise as such. 

As far as her Honour Justice Atkinson was concerned, she outlined the submissions made by Bakir and Hill on the appeal at record 215, between paragraphs [210] and [214], and I direct the Court specifically to what is noted at [213] and [214].

At trial, effectively, the only issue that was litigated was whether Bakir and Hill were implicated in the offences, not whether the offences took place.  As such, with the Court’s leave, I take the Court to what has traditionally been considered to be the historical approach to corroboration of accomplices.  In Bakir’s outline of submissions, at record book 254, there are a number of quotes taken from Wigmore, the majority of which were identified or referred to in Baskerville’s Case by Lord Reading.  Could I take the Court to Baskerville, please?

HEYDON J:   Go wherever you want to go, but I would just be interested to know, before your time runs out, do you say this evidence does not satisfy tests for admissibility?

MR KIMMINS:   That is correct, your Honour, yes.

HEYDON J:   Was it objected to?

MR KIMMINS:   Yes, your Honour.

HEYDON J:   All of it?

MR KIMMINS:   So far as all of the 15 points were concerned, I believe there were 13 points that were objected to so far as Bakir was concerned.

HEYDON J:   Before the trial judge this is?

MR KIMMINS:   Yes, your Honour.

HEYDON J:   All right.  What is your precise proposition?  The Court of Appeal seems to have concluded that if you took all the points together they corroborated within a Baskerville or Doney sense, were capable of corroborating Radcliff’s evidence.

MR KIMMINS:   Capable of doing that.

HEYDON J:   What is wrong with taking them altogether?  They are circumstantial evidence and normally that is taken ‑ ‑ ‑

MR KIMMINS:   I accept that, your Honour, but the point that is sought to be litigated here and before the Court of Appeal was specifically that the only issue at trial was whether Bakir and Hill were implicated in the commission of the offence.  There was no challenge that the offences were committed.  As such, when one looks at the 15 points that were relied upon by the prosecution, at least 50 per cent of them had nothing to do with the implication of Bakir and Hill.  But they were left to the jury as being capable of reliance by themselves to establish that Bakir and Hill were involved because there was some backup for some part of Radcliff’s evidence as such.

KIEFEL J:   Your point is that each item of evidence must have the ability to implicate.  Is that the point?

MR KIMMINS:   That is the initial point, but then secondly, if there are left as a group 15 points upon which a court has indicated, or a trial judge has indicated to the jury, that you can look at them individually or collectively, or in any which way you like, and then you find that that backs up Radcliff’s evidence in any way, then you can go on to consider it to be corroborative of his evidence and as such, find that the relevant applicant, that is, Bakir, has been implicated and there is corroboration of Radcliff’s evidence that way.

KIEFEL J:   You do not suggest that, taken together, there is no capacity to corroborate?  You do not say that the individual pieces cannot be linked together in some meaningful way?

MR KIMMINS:   I am not suggesting that, taken as a whole, and I do not know whether I am answering your Honour’s question correctly, I do not contest that there was some aspect of those 15 points that viewed ‑ ‑ ‑

KIEFEL J:   Which had the ability to corroborate?

MR KIMMINS:   That is correct.  But, the majority were, to use a term which appears in the case of Bryce, they were inextricably neutral and could not be looked at either individually or with a group of two or three of them or in any way, shape or form.

KIEFEL J:   That is a question of weight then, is it not?

MR KIMMINS:   Except this:  that the jury were not told that some of those factors could only be considered in relation to Radcliff’s evidence as to whether an offence was committed.  I go back to what I had suggested before.  The only issue at trial was not whether the offence had been committed, but whether Bakir and Hill had been implicated in the offence; whether they had been a party to the offence.  So, if the jury found that four or five of the points that were left to them which established that an offence was committed were proven, then they then used those five points to corroborate Radcliff and, as such, then go on to corroborate that Bakir and Hill were involved.

There was never a time that his Honour said these five points here corroborate the commission of the offence and say these six or seven points corroborate the implication of Bakir and Hill.  They were all put together and the jury were effectively told that they could rely upon any number of them, the whole lot of them put together, to find Radcliff’s evidence has been corroborated and as such go onto find ‑ ‑ ‑

KIEFEL J:   Your case is then more one of a wrong direction.  Is that right?

MR KIMMINS:   Our primary point is that a number of these points should never have been left to the jury on the basis that they corroborated Radcliff’s evidence, especially so far as the implication of Bakir and Hill.  But the submission made by the prosecution, which was accepted by his Honour, was that the jury could have regard to some or all of those 15 points to corroborate him and, as such, it was really left to the jury to make their own decision how they were to do it.  So long as some of those factors in some way, shape or form were accepted by the jury as backing up Radcliff’s evidence, well, then the jury could conclude that the whole of Radcliff’s evidence was corroborated.

HEYDON J:   Is your, as it were, core position that stated on page 272, paragraph 3, which is part of a reply which you and Mr Byrne have signed?

MR KIMMINS:   That is correct, your Honour.

HEYDON J:   I know you are not appearing for other of the accused, but it might be that some of those 15 points were usable in relation to the other accused, but you say not your client?

MR KIMMINS:   That is correct, your Honour.  Those points that are on page 272 effectively cover both the situation of Bakir and Hill.  So far as Mr Bakir is concerned, there are other aspects of the 15 which could be thrown into the mix to say that they were not corroborative against him, but that is the primary focus on 272.

HEYDON J:   So when you say that before the evidence was inadmissible, you would say some of it is inadmissible against your client, but it may be admissible against other accused persons?

MR KIMMINS:   Yes, your Honour.

HEYDON J:   You were going to go to Baskerville.

MR KIMMINS:   Yes.

HEYDON J:   That is a very well‑known case.  Is there any authority that really bears on this page 272, paragraph 3 ‑ ‑ ‑

MR KIMMINS:   Could I take the Court to the Queensland decision of Bryce (1994) 1 Qd R 77, and this particular authority was referred to in a Victorian authority, Pisano, but if I could take the Court firstly to the decision of Justice Davies at page 81.  At line 20 Justice Davies notes this is not a case involving a number of accused persons who were accomplices - possibly I would be referring the Court from there down to the conclusion of Justice Davies’ decision.

HEYDON J:   Yes.

MR KIMMINS:   Chief Justice Macrossan at page 77 at line 50, through to 78 at line 10 and then Chief Justice Macrossan, 78 at lines 25 to 35.  For completeness, Justice Pincus at 79, lines 30 through to 45.  As I also indicated, the Victorian authority of Pisano [1997] 2 VR 342, more particularly at 347 at about line 12 there is a brief recitation of a number of the authorities by Chief Justice Phillips over to 348 at line 30 where he cites from Chief Justice Macrossan’s decision in Bryce’s Case and effectively accepts that as being – and I am looking at 351, if it pleases the Court, at about line 22.

HEYDON J:   Yes.  I think your time is up, as they say.  Yes, Mr Byrne.

MR BYRNE:   May the Court please.  We will do our best not to repeat any submissions made by our friend, Mr Kimmins.  Our propositions are these.  There was an error of principle by the Court of Appeal as to the fundamental nature of the requirements for evidence to be corroborative and we say demonstrative of that is that the Court of Appeal have perpetuated an error made by an earlier Court of Appeal in the course of their judgment, which led them into the error of considering all of these pieces of evidence as capable, generally, of being corroborative. 

We differ from our friend in that we do not submit that the various pieces of evidence which you have been taken to were not admissible in the trial.  We concede that they were admissible as part of what is called these days “the narrative” of the events involving the running of the offence.  But, we say though admissible, they were not such as to be either alone, or taken together with the other matters, capable of corroborating the accomplice’s evidence in a relevant sense. 

Can we expand on that this way?  To be corroborative, and your Honours are well aware this has been the law at least since the start of the century before last, to be corroborative evidence has to confirm in a material particular two things:  the crime has been committed and that the, as was said in Baskerville, the prisoner committed it.  Those two things are fundamental. 

Your Honours have been taken to Pisano [1997] 2 VR 342. May we take you to that at tab 9 of our authorities and may we take your Honours to page 348 where there is a citation of an earlier Victorian case of Nanette, and another case stated as authority for this proposition:

to be capable of constituting corroboration in law, evidence must relate to the issues or issue joined between the parties at the trial and not merely tend to confirm a matter which is common in the cases of the parties.

We say, with respect, that that is succinct way of stating the underlying basis of corroboration.  When we apply that to the case in question - your Honours have been taken briefly to this, but could I take you back to page 215 of the application book, in particular, paragraph [213] in the primary judgment of the Court of Appeal, where this is said:

It was never put to [the accomplice] that there was not an importation of GBL that he orchestrated in June 2006.  That was not in contest at trial.  The contest at trial was the implication –

that the two applicants here were involved in the importation by the accomplice and another person.  That being said, we say it is fundamental that where the parties, that is, both the prosecution and the defence, have not joined issue as to the fact that there was an importation, various bits of evidence which go solely to the fact that there was an importation, cannot, by repetition or by inclusion, bolster other evidence to say that the applicant was implicated in the offence in the sense, as understood in Baskerville, Pisano and Doney in this Court.  They cannot, if you like, bootstrap themselves up; they have to go to implication.  Here, the commission of the offence was not a material particular and they should not have been left as corroboration.  Your Honours have been taken to the ‑ ‑ ‑

HEYDON J:   Was there an application to the judge for a particular direction?

MR BYRNE:   There was objection to the evidence.  The point was taken in the Court of Appeal that the directions were in error and this matter was not corroborative.

HEYDON J:   But if we view the problem through the spectacles of your submissions, you accept the evidence was admissible, the question is was there some protest to the judge about the direction he made and was some alternative and more valid direction propounded for his consideration?

MR BYRNE:   Certainly the former; there was protest about the direction.  I cannot say that there was a reformulation of another direction.  It was certainly put on the basis that those matters should not have been left as part of the general evidence going to corroborate the accomplice.  Your Honours have seen the matters which are at page 272, they are listed in paragraph 4 there, which we say go solely to the commission of the offence, and not to applicant’s involvement in it.  They go to prove there was an importation and that is as far as they go. 

Could we illustrate our point as to where the error of principle seems to have occurred at trial?  At page 15 of the application book, this is in the directions of the trial judge, from about line 10 his Honour directs that:

it would be dangerous to convict –

unless it is supported in a material way and we have made our submissions on what that means.  Then at line 20:

There is evidence coming from independent sources which is capable of supporting the evidence of Mr Radcliff in a material way.

Then, from line 40 going over to the next page, the various matters are accumulated and they include the matters that, we say, go only to the importation and not the implication or involvement in the offence.  Your Honours see the direction there:

In respect of the charges against Mr Bakir and Mr Hill, the evidence taken together, [is] capable of amounting to corroboration –

In the Court of Appeal the approach, in our submission, is different, and it demonstrates why we say there was error in the relevant sense.  If we could take your Honours to the appeal book, page 225, and this is in the course of the judgment of her Honour Justice Atkinson dealing with the various pieces of evidence and their use as corroboration.  In paragraph [233] her Honour says this:

As to the identity and quantity of the drugs imported and attempted to be possessed, corroborative evidence was found in –

and her Honour lists various things there.  Three of those matters are matters which we complain of for the very reason that they go to what her Honour says is “the identity and quantity of the drugs imported”.  That, we say, shows that the error made was to use those pieces of evidence as corroboratively generally as the trial judge so directed the jury.  They did not, we say, and could not go to the implication of the accused. 

The other issue we seek to agitate before your Honours, and we foreshadowed this as what we say is being led into error in the Court of Appeal, we take your Honours again to the application book, this time page 220, and your Honours will see that at paragraph [227],which is divided into various parts, the Court of Appeal, in this case, adopts what was said by a previous Court of Appeal in R v Barrow as four propositions.  Now, at about line 35 a part of the passage referred to with approval was this:

An earlier recognition of the truth that corroboration may be found in a collection of evidence is to be found in Eade (1924) 34 CLR 154 at 158. One of the items which, together with others, was held to be corroborative there was that the complainant in an indecent assault case bought some pies and that could hardly, in itself, point to the commission of any offence.

We would respectfully adopt the later part of that statement, the purchase of pies could not, by itself, and we would say, in combination with any other evidence, point to the commission of an offence.  The difficulty with the Court of Appeal relying on that is when one looks at that very citation of Eade v The King referred to there, and that is tab 2 of our bundle, at 158, that is the citation, in the judgment of the plurality Chief Justice Knox, Justices Gavan Duffy and Starke, if I can invite your Honours to look at the passage at about line 4, commencing:

The story of the child was that the prisoner stopped her . . . and asked her to go and buy him two pies –

One gets down to the sentence just before the reference to R v Baskerville - this is said:

This independent evidence –

that is, the buying of the pies –

established opportunity on the part of the prisoner to commit the crime charged, but did not in itself corroborate or confirm the commission of any crime or that the prisoner committed it -

What we say is the Court of Appeal have misled themselves by thinking that pieces of evidence such as go to opportunity, or we would interpolate here, go to supporting the accomplice in a matter that was not particular or material, namely the importation that was not contested, that their Honours have, as a point of principle, erred.

HEYDON J:   Yes.  What we see in Eade v The King is the Justices saying these three, the purchase, the visits, the finding of the pies in the house, are neutral, but if you thought that the prisoner’s denial of that was a lie you

could take that into account, and together the four items would be corroboration.

MR BYRNE:   Where there is a lie about those specific issues, and that is the point which is in the recent South Australian case, exactly the same point seems to have been decided - that is R v E, DJ [2012] SASFC 6 - it is the lie which can be corroborative.  It does not pick up our submission that the other evidence is corroborative evidence, that is evidence in the trial, but, as a point of principle, it cannot and, as this Court explained in Eade v The King, does not, of itself, go to implicate the accused.  We say that there has been then here error of principle and we say there has been personal miscarriage of justice to the applicant and that this would be a suitable vehicle to consider corroboration which has not been considered by this Court since Doney v The Queen to our knowledge.  Unless we can assist further.

HEYDON J:   There is one problem.  In both draft notices of appeal there is only one ground and that is ground 2, it is page 276 in your case, but it is the same in the other one.  It is not really a speaking ground; it does not identify the point.

MR BYRNE:   The ground would need to be reworked, we appreciate that.

HEYDON J:   Yes, Ms Abraham.

MS ABRAHAM:   Thank you, your Honours.  In my submission, the principles in relation to when evidence is capable of being corroboration are indeed well established and as is abundantly clear, in my submission, from the arguments put orally, what we are dealing with here is the application of those principles to the facts of this case and the disagreement appears to be whether or not the facts of this case were properly held to be capable of being corroboration and, in our submission, the Court of Appeal was perfectly correct in so finding. 

Your Honours, can I just make a couple of comments about the facts because it is important to put it a little in context.  What the Crown had to prove in this case was whether Bakir and Hill were involved in the importation of GBL and the attempted possession of GBL and the Crown case was Bakir and Hill, in effect, threatened Mr Radcliff, which included an assault, taking his property, telling him to import the drug.  Radcliff then, in effect, hotfoots it to another of the co‑accused, Gray, to organise this.  Gray and her boyfriend, who was in gaol, and Radcliff, had previously been involved in the importation of GBL. 

That very night there is a significant communication between Bakir and Gray and ultimately the importation takes place, the drugs come into the country, they are collected.  As soon as they are collected they are given by Radcliff to Mr Broad, a co‑accused, who had invested in the operation.  That night, within a very short period of time, Gray, one of the co‑accused, but more importantly, Bakir and Hill go to Mr Radcliff and say, “We want our drugs”.  He says, “No, I do not have them,” in effect.  They are my words, not his, but, “We do not have them; I gave them to Broad for safekeeping”.  They gave him 24 hours to get the drugs from Broad.

As it turns out he did not.  As a result Bakir and Hill grabbed him off the street and, in effect, held him whilst they went around town trying to locate Broad to get the GBL.  That was the GBL that they had imported.  Driving him around town included going to – Radcliff had to go and have a urine test done, so going to have that done, but it included Mr Bakir making efforts to find Broad and Mr Hill making efforts to find Broad, because they needed to find Broad because he had the drugs.  So, in my submission, it is not a case to say well hold on – sorry, just pause there – and the accused did not give evidence.

So it was very much a live issue that the Crown had to prove that what they had imported and what they were after was Broad to get those drugs and it is in that context, in my submission, that the learned trial judge left 15 items which, on the direction, were to be taken together as appears at page 15.  The evidence taken together is capable of amounting to corroboration and, in my submission, taken together it clearly is, and that is what the Court of Appeal so found. 

One cannot, with respect, say, “Well, hold on a second, we did not challenge the importation, therefore anything that says that the drugs were GBL is just neither here nor there”.  Well, in my submission, two things:  one, one cannot simply attempt to neutralise a factor to take it out of the equation.  It then becomes an issue for the judge whether or not it is in fact intractably neutral.  They clearly were not here and the Court of Appeal rejected the argument that they were intractably neutral, but more importantly the Crown had to prove Broad had the drug. 

Some of those factors that my friends have pointed to, for example, in the reply submissions, Broad having possession of GBL and GBH, Broad having cooking equipment, Broad giving Smith the drugs, those matters are just examples of ‑ ‑ ‑

HEYDON J:   But Broad’s possession of cooking equipment could be explained by some other drug enterprise that Broad was involved in.

MS ABRAHAM:   But, taken together with the other evidence, the evidence was the drug had been given to him, he had cooking equipment, ultimately the bottles that were found, for example, were the same bottles that had been involved in earlier importations involving Cook and Radcliff, which is why ‑ ‑ ‑

KIEFEL J:   There is a timing element too.

MS ABRAHAM:   Yes.  The court found it was open for the jury to find that those drugs were what was imported as a result of the demands, in effect, on them, and hence, what was being chased or tracked down when Bakir and Hill were going after Broad to get the drugs and so, in my submission, they are not intractably neutral. 

The Court of Appeal, in giving judgment, in my submission, applied perfectly correct legal principles, which, in my submission, are well established.  The court concluded that taking the matters together, and it is important that they are taken together - it is not the only matters, they are taken with other matters - they have that capacity to corroborate not only that the crime was committed, but that the accused committed it.

There is no doubt the Court of Appeal knew about that aspect of corroboration and in my submission to say, as my friend has for Mr Bakir, that in some way things were left to the jury and it was really left to the jury that – well, hold on, this is capable of corroborating the fact that the importation occurred and just because you have corroborated that therefore you have corroborated about Bakir and Hill, that just was not the direction given.  That submission is not borne out by the summing‑up.  It is not borne out by the Court of Appeal judgment.  There was no complaint about the actual direction.  I accept there was complaint about whether items should be left, but there was no complaint about the actual direction that was given.

So, in my submission, this ultimately becomes a factual matter.  There is no error of principle involved.  I note that my friends, in their written submissions claim that the error actually occurred for a different reason.  There is reliance on a Victorian case that has not been proffered in oral submissions.  The argument in written submissions is that the Victorian case of Kuster somehow is incorrect, which has somehow led Victoria and now Queensland to be different from the other States.  None of that, in my submission, is borne out at all. 

Both in this decision and in Kuster, the court quite properly analysed the relevant legal principles and applied them to the facts of this case.  There is no inconsistency in approach between the States as suggested in the written submissions.  The principles are clear.  How they apply to each individual case will depend on the facts of each individual case, and they were applied, in our submission, correctly here.  So, in my submission, there is no point for special leave.

HEYDON J:   Yes.  Thank you, Ms Abraham.  Yes, Mr Kimmins.

MR KIMMINS:   Just in reply, could I take the Court to 217, paragraph [222]?  The trial judge left it for the jury to work out what they accepted, whether they accepted that evidence, and if so what the matter was.  So, it was effectively left to the jury to make their own mind up having regard to the 15 points which had been laid before them by the trial judge.

HEYDON J:   Thank you.  Yes, Mr Byrne.

MR BYRNE:   Only this, your Honours, our friend appears to make the submission that where a case such as this, the commission of the crime itself was not in issue between the parties, then that can tend to neutralise the evidence in respect of that.  We say, rather, the correct approach is, as has been the law at least since Baskerville, there need to be two elements inherently within evidence to make it corroborative and that is, as is said, corroborative evidence is evidence which shows, or tends to show, that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.  Thank you, your Honours.

HEYDON J:   We are of the opinion that there are insufficient prospects of demonstrating that the Court of Appeal’s reasoning was inconsistent with established authority.  Therefore, the two applications for special leave to appeal must be dismissed.

AT 4.09 PM THE MATTERS WERE CONCLUDED