Blewitt v The Queen; Browne v The Queen

[1988] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl42 of 1987

B e t w e e n -

TERENCE LEIGH BLEWITT

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S40 of 1988

B e t w e e n -

CLAYTON JOSEPH BROWNE

Applicant

and

THE QUEEN

Respondent

Blewitt

Applications for special leave

to appeal

MASON CJ

WILSON J

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 AUGUST 1988, AT 10 .16 AM

Copyright in the High Court of Australia

C2T 1/1/MB 1 3/8/88

MR T.J. HIGGINS, QC:  If the Court pleases, I appear with

my learned friend, MR B. HULL, for the first

applicant. (instructed by Norbett Lipton & Sankey)

MR G.R. JAMES± QC: May it please the Court, I appear with

my earned friends, MR T. BUDDIN and MR K. TRAILL,

for the applicant, Mr Browne.	(instructed by Craddock
Murray & Neumann)

MR R.O. BLANCH, QC: May it please the Court, I appear with

my learned friend, MR P. POWER, for the Crown.

(instructed by S. O'Connor, Solicitor for Public

Prosecutions)

MASON CJ:	Mr Higgins.
MR HIGGINS:	If the Court pleases. Your Honours, I think the written submissions on behalf of the applicant,
Terence Leigh Blewitt, have been made available.

MASON CJ:  Have they? Well, I have not seen them. They

have been filed in the registry, have they,

Mr Higgins?

MR HIGGINS:	They have, Your Honour, yes.
MASON CJ:	When were they filed?
MR HIGGINS:	They were filed not yesterday but the day before.
WILSON J:	That is unnecessary and dangerous.
MR HIGGINS:	Apparently so, Your Honour.
MASON CJ:	It seems to be a self-defeating exercise.
MR HIGGINS:	Well, Your Honours, I do not have sufficient extra copies to make up for the deficiency.
MASON CJ:	The Registrar has gone up to the registry and no

doubt if what you tell us is correct - and I have

no reason to believe it is incorrect - we will

have them in due course.

MR HIGGINS:  Perhaps if I may commence by way of preamble,

outlining what the matter is about.

MASON CJ:	Yes, and you might also explain what there is that characterizes this as special leave because on my
reading of the affidavit in support and the notice of appeal it did not actually leap to the mind that you were focussing attention on the special leave
characteristics of this application.

C2Tl/2/MB	2	3/8/88
Blewitt

MR HIGGINS: No, that will need to be expanded. Firstly, by

way of preamble, if I may outline the facts of

the matter to Your Honours. The applicant was

convicted of various offences which included malicious

wounding, robbery, stealing motor vehicles - three

counts of that - on 26 November 1986.	The offences
had· allegedly occurred on 8 February 1985.	The

applicant was sentenced to 18 years' imprisonment

with a non-parole period of 13 years.

The evidence in the case which tended to show the applicant's guilt as opposed to that of any other person - the issue in the trial was

whether the a~plicant was the person who had

perpetrated the undoubted crimes which had happened -

was, firstly, the evidence of an Inspector McIntosh

who stated that whilst he was off duty he gave

chase to a person and he later identified that

person as the applicant. He identified him from

a photograph of triathletes which had been published
in a newspaper although it might be said that
the identification process was of the actual photograph

itself rather than the photograph as it appeared

in the newspaper.- but it had been published in

a newspaper ..

It was a photograph of five persons of whom

one was the applicant. There were criticisms

made of that because plainly the applicant was

the only person, the only.one of those five, that

stood out for various reasons. The Inspector

thought that he may have seen the applicant on

a previous occasion taking part in a race involving a triathlon, otherwise the applicant was a stranger

to him.

The second strand of evidence which was adduced

by the Crown was evidence of preparations for

flight and for concealment by the applicant and

statements made by the applicant in the course

of his arrest - which were to the effect that

he was not surprised by police attendance - it

was also given in evidence, though, that he had

occasion to fear reprisals by illegal SP operators

seeking to exact some revenge upon him for having

taken away some of that operator's customers.

There was evidence of a statement having

been made to police by his brother, Anthony Blewitt,

that the applicant had told him, "I was involved at

Dee Why", which was an unquestionable reference

to the robbery. The brother denied that he had

informed police to that effect and further denied

that the applicant had so spoken to him. The

way in which that particular piece of information

came before the court was that the brother was

treated as hostile, though called by the Crown,

and it was put to him that he had made to police such a statement. Having denied it,the statement that he put to police was then tendered and admitted into evidence.

C2T2/l/SDL	3	3/8/88
Blewitt

MR HIGGINS (continuing):  The trial judge warned the jury

that they were not to take the statements in that

statement as necessarily proving the facts

contained in it.

There was evidence that the applicant was an

associate of another person charged, namely Moorehouse,

who was also on trial jointly with him and perhaps

that he had denied falsely that Moorehouse was at

his - the applicant's - flat earlier on the day of

the robbery. That was at about 12.30 pm the
same day, the robbery having occurred at approximately

4.30 pm. There was evidence of identification of

Moorehouse by a witness, Daffy,and it is in that

context that the identification by Daffy, not of

the aplicant but of Moorehouse, becomes relevant.

As against the evidence which tended to show

guilt the applicant called evidence of alibi. It

was made by the applicant that between about 4.15 and 5 pm th~ applicant had been at the premises

appeared that the robbery occurred, as has been

mentioned, at about 4.30 on 8 February 1985.

of a Manly panel beater named Norris. Norris deposed

that the applicant had attended his premises at that time.

He further deposed that the applicant had, during

the course of that visit, telephoned another brother
of his, H.J. - Harold - Blewitt and that brother

was called to give evidence which corroborated

that fact.

Neither of those witnesses, it was suggested,

was giving false evidence to the Court, nor was

it suggested in cross-examination at least that

either witness was mistaken as to the time. But

it was suggested by the Crown in the course of

address that an explanation for the alibi might

be that Norris was mistaken as to the time.

MASON CJ: Mr Higgins, if I can interrupt you, I am told

were handed back by the Registry this morning	by the Registrar that the written submissions	so that they could be teniered to the Court on
the hearing. I am also told by the Registrar
that the submissions seem to be voluminous and
looked as if they were the submissions that had actually been tendered to the Court of Criminal Appeal.

(Continued on page 5)

C2T3/l/JM	4	3/8/88
Blewitt

MR HIGGINS: 

Your Honour, there were two documents; one

was the submission tended to the Court of Criminal
Appeal which are included by way of reference

because part of my written submissions contain
a reference to part of them; that is not the

document - we have copies of that document but

not the outline of submissions in this Court.
Perhaps, if there is a difficulty about locating,

Your Honour, it might be appropriate if I ask

my instructing solicitor to copy off the ones

which we do have.

MASON CJ: Yes, either that or you can hand them in and

we can have them copied.

MR HIGGINS:  Yes, there is an additional copy here from

which they can be done.

MASON CJ: If you hand that in we can take steps to have

a sufficient number of copies run off.

MR HIGGINS:  Thank you very much. The relevance,

Your Honours, to the application of the evidence
of alibi was simply this: at the conclusion
of the case· for the accused the Crown sought
leave and was granted leave, notwithstanding

objection, to call evidence in rebuttal of the

abili, relying upon section 405A of the CRIMES

ACT 1900 of the State of New South Wales.

The evidence the Crown in fact called was of a police officer who said that he, also, was

a triathlete and who gave evidence of the time

he could run from the place where InspectorMcintosh

had seen a fleeing offender to the place where

Mr Blewitt had said, in his statement from the

dock and which the evidence of his brother and

Norris supported, that he had been to Norris' premises at Manly.

So the evidence went to the time it took

for, assuming the offender to have been Blewitt,

and where the offender was seen by McIntosh

to where Morris' premises were at Manly. That

was the sole purport of the evidence as it affected

Blewitt. The same officer also gave evidence

affecting another accused in relation to a time

that it took that person to run that distance

or another distance.

There are fundamentally three or maybe they break down into four points that the applicant

says arise from that.

C2T4/l/ND	5	3/8/88
Blewitt

MR HIGGINS (continuing):  The first is as to evidence of

identification. The evidence, it is submitted,

was inherently unsafe, not only because it was

that of a stranger but that is what gives rise

to it, but also because of the defects which were

contained in that evidence and those defects are

summarized in the submissions which were put in

written form to the Court of Criminal Appeal.

Now, that was the point at which I was intending

to hand to Your Honours this voluminous document,

albeit that only parts of it are relevant for the

purposes of the present submission.	I may, perhaps,
hand to Your Honours a copy.	And perhaps before

I go to that, Your Honours, I might just indicate

the other points in brief outline before going
to them in more detail.

The second point relates to the question of prejudice that was created, it is submitted, by

the admission into evidence of the statement made

to police. It was said of A.D. Blewitt - the "I·

was involved at Dee Why" statement - it was said

that created irredeemable prejudice. The third

point relates to the question of whether section 405A

of the CRIMES ACT in fact permitted the evidence
given in rebuttal. There seems to be a view, and

it was certainly so expressed by the Court of Criminal

Appeal in New South Wales that section 405A caused

a change- in the law relating to evidence in rebuttal,

namely, that it could be admitted as of righ~ subject

to it being relevant, rather than it being required

to be demonstrated that it was an exceptional

circumstance and evidence which could not have

been foreseen in the Crown case.

The point, which may not be a separate point,

which arises from all of that is whether in all

those circumstances the verdict of the jury should

be regarded as unsafe and unsatisfactory and it

is a separate point although it arises from each

of the others. And then there is the question

as to whether this Court should:grant special leave.

As to that we make four sumbissions and that is
the inherent importance of clarifying the directions
which should be given by a trial judge in various

circumstances as to identification and here there

seems to be some, at least, difference in emphasis

between the courts of Victoria and of New South Wales.

(Continued on page 7)

C2T5/l/AC	6	3/8/88
Blewitt

MR HIGGINS (continuing): Secondly, there is the necessity to

give a proper interpretation to section 405A of the

CRIMES ACT 1900. Thirdly, there is the necessity
to prescribe what use should be made of prior
inconsistent statements particularly where the
only issue is the credibility of a witness and where

the attack on that witness's credibility by the party

who called him leads to a conclusion that a statement

must be put before the jury that is highly prejudicial

to an accused person. The fourth point is whether there

is - on the necessity to do justice in the individual

case, particularly where it is submitted that a fair

chance of acquittal has been denied to an accused

person who has been sentenced to 18 years imprisonment

with 13 years non-parole, which is hardly, one might think, a minimal or minuscule sentence for the first

time in his life that he has been convicted of a

serious offence.

Now, the accused's character was an issue at

the trial and various minor convictions against him were placed before the jury. I make the point that

this is a person who has never been previously

convicted of>a serious criminal offence and faces

18 years, 13 years non-parole, in circumstances that,

it is submitted, were unsafe and unsatisfactory.

Now, is I may return, Your Honours, to the question

of identification. The relevant parts of the

submissions which were put to the Court of Criminal

Appeal which summarize the evidence as to identification

may be found at pages 39 to 45 inclusive, that is,

paragraphs numbered 5 to 7 of those submissions.

This firstly refers to the identification by

McIntosh of the applicant.

Now, the first point that is made; it was the

identification by a stranger by a person who was not

familiar with the applicant. He had, it is said,

a recollection of the person he gave chase to; he

thought he had seen him before, in effect. There

was criticism of the evidence in that respect because it was not something that the witness had,	in fact, revealed to fellow police officers at the
time when he was first interviewed. There was a
significant number of discrepancies between the
witness McIntosh's evidence about identification
and his initial descriptions of them, discrepancies
which he was totally unable to explain. Those
passages in the evidence are referred to at pages 40
and 41. It is also pointed out that the opportunity
that McIntosh had to identify the intruder was
momentary - he had three momen~ ?limpses of him - at all times of an offender who was moving away from him.

C2T6/l/MB	7	3/8/88
Blewitt

MR HIGGINS (continuing):  One occasion he said it was only

for a flash of a second, a second time for a fraction

of a second, and that he did not see his face after

that. There is the point which is made at

paragraph (c) on page 41 that the first description

did not accurately fit the applicant. He was unable

to explain discrepancies in his evidence about the

change in description that he gave.

The method of identification

which was referred to in (d) was black

and white photograph of the group of five persons

which included the applicant. There was a limited

choice in that photograph,which is referred to at

page 42, and is probably very significant. The first

of those persons was a person named Draganis who was

known to McIntosh, and in any event was shorter than

the applicant. There was a person known as Daffy

who was a man obviously older than the person who

had been described as the intruder. There was a ~an

in a singlet who had no tattoos on his arm and at

least one feature of the identification which the inspector had given was that the man he saw had a tattoo on the upper arm, and there was Blewitt with

his arms covered up and with a moustache, and then

a man without a moustache and - - -

DAWSON J:  Is there a copy of the photograph?

MR HIGGINS:  Yes. We do not have it, Your Honour, but I think

there is.

MASON CJ:	Exhibit
MR BLANCH:	Exhibit R.
MR HIGGINS:	One of the features of the original description

had been that the person observed had had a moustache.

So, in effect, if the witness McIntosh was to make the

assumption that the photograph contained a photograph

of a suspect the only person he could pick as having

fitted his original description to some extent at

least would have been the applicant. The internal

inconsistencies in McIntosh's evidence are referred

to at point (iii). There is the statement that

after having viewed the photograph he changed his mind

about the person seen in the photograph having been

a stranger to him completely.

(Continued on page 9)

C2T7/l/HS	8	3/8/88
Blewitt

MR HIGGINS (continuing):  He said after seeing the photograph

it occurred to him that the intruder was someone

he had seen competing in the triathlon road race

in November 1984, which was, of course, some

considerable cime prior to the time at which he

was either identifying the intruder, or giving

evidence about it. There was a conflict in his

evidence about whether the subsequent realization

that he may have seen the person before occurred

by virtue of a conversation with another police

officer, or whether it was something that was triggered in his mind by havin8 actually seen

the individual take part in the race.

He agreed though that when looking at the

photograph he did have in mind that the intruder

might well have been depicted in it. A not

unnatural conclusion, one might think, for a

police inspector to draw, being shown a photo3raph. He.

said that he had maoothe identification after about

one minute and after some conversation regarding ·

the photograph and the people in it. He had

previously stated that he was informed that the

five people in the photograph had participated in

a triathlon and it occurred to him that that was

when he had previously seen the defendant.

Now, the submision which was made in respect of that, of course, was that there was an obvious

danger of transference. In other words, having
seen the photograph, if indeed McIntosh was correct

about having seen the applicant as one of the

participants in a triathlon race, then he may have

recognized him for that reason. There was that

obvious risk. He had to refine his identification.

There was some question about whether the intruder -

I referred earlier to the fact that the intruder had

been described by the inspector .as having a

moustache.	He also described lim at another point
in time as not having a moustache.	So there was, again,
a discrepancy in relation to that.

The various difficulties that are said to

arise by virtue of that identification are

summarized at page 45, paragraph 7. And they are

basically that it was the identification of a stranger;

a fleeting opportunity to do so; identification from a

photograph ~iving a limited choice; a photograph

shown some 12 davs after the event. There was an

element of suggeseion~ the photograph in its presentation

and that there were inconsistencies in the evidence

concerning: first recognition, tattoos, moustache and

the first description given to police. ·

There were also difficulties about the identification

by Daffy of Moorehouse, which is of slightly lesser

significance to this applicant's case but nevertheless

of some peripheral concern to it.

9 /10

C2T8/l/JM	3/8/88
Blewitt

MR HIGGINS (continuing):  The submissions that were put

before the Court of Criminal Appeal deal with

that question at pages 45 and 46, paragraph 8.

Significantly there, although it was undoubted

that Daffy was a stranger to the person Moorehouse,

he gave a significantly different description

of the person it was suggE;sted was Moorehouse who

was present at the applicant's flat previously

on the day of the robbery than fitted the accused

Moorehouse.

Indeed, there was also some evidence which

was not challenged that after the event Daffy

had been shown a photograph which included the

persons Blewitt, Browne, Moorehouse and another

person and after he had excluded Browne, knowing

Blewitt quite well, he said, "Oh, well, that",

pointing to a particular person, "would have

to be Steve", a reference to Steve Moorehouse

It was denied by Mr Blewitt in his statement

that Moorehouse was present on that occasion.

He said the two men present who were introduced

to Mr Daffy were, in fact, a person called

Mick and a person called O'Driscoll.

That is the summary, Your Honours, of the evidence before the trial in relation to

identification. The learned trial judge, in

dealing with that evidence, did two things in

respect of it: firstly, in the summing up and

I might take Your Honours perhaps to the appeal

book. His Honour commenced giving directions

about identification at page 442 - and this

is in volume II of the application book.

His Honour turned to that by saying:

I turn now to give you some important

directions on the question of identification.

Identification by some person or persons

who saw him is part of the Crown case

against the first accused and part of the

Crown case, to a lesser extent, in respect

of the second accused.

And it was:

central to the Crown case -

in respect of the third accused. At page 443

His Honour commenced to give a warning to the

jury and this was, I might say, on day two of

the summing up. The summing up lasted, in total

four days. His Honour said:

I must therefore warn you of the special need

for caution before accepting the accuracy of evidence

of identification which has been given and before

convicting an accused, in reliance upon the correctness
of visual identification.

C2T9/l/ND	11	3/8/88
Blewitt

MR HIGGINS (continuing):

This is a direction which must be given in

every case in which the issue of identification

is in dispute. The need for a warning as

to caution in accepting evidence of identification
exists because common experience over the

years has demonstrated a real risk that such

evidence may be unreliable. The reason for

this is that it is quite possible for an honest

witness to make a mistake in identification.
A mistaken witness can be a convincing one

and even a number of convincing witnesses

can be mistaken.

There have been notorious cases over the years

in which evidence as to identification, however

honestly it has been given, has subsequently

proved to be erroneous after innocent people

have been convicted. That is because there

is always a high possibility of mistake in ·

human observations and evidence of identification

depends on so many different variables.

And His Honour then went on to say, you must satisfy

yourselves:

not only that the witness is honest but that

his or her identification is accurate.

And then dropping down to line 15:

a witness who identifies a person is asserting

that he saw that person, that what he saw

was impressed on his mind, that he really

retains that original impression and that

the resemblance to that original impression

of the accused is sufficient to base a

judgment not of resemblance but of identity.

It is all the more important to consider this

warning carefully where the identification

of an accused is essential to the Crown case.

Particularly where the evidence of identification

is uncorroborated by other evidence. There

is no legal requirement that identification

evidence be corroborated; that is supported

by independent evidence.

And then across the page at page 445, His Honour

went on to say:

So it is that I clearly underline to you the

warning which I have given of the special

need for caution before convicting on the

correctness of identification. When I come

to the particular evidence in respect of a

C2Tl0/l/AC	12	3/8/88
Blewitt

particular accused I will remind you of this

warning and I shall endeavour to underline

it by referring to the particular circumstances

which would be appropriate to consider, such

as opportunities; observation; the circumstances

in which they took place; whether the observation

was impeded; whether it was a person hitherto

a complete stranger; whether it was but a

fleeting observation; was there any material

discrepancy between the description given

to the police by that witness when first seen

by them and his actual appearance; whether

it was identification by photograph; or a

dock, that is a court identification, and

I am but illustrating some of the matters.

It will be important to remind yourselves of the weaknesses which it is said appear

in the identification evidence. The illustration

of the frailities of human recollection is
perhaps given in this case by those witnesses

in Oaks Avenue Dee Why.

And I interpolate there - that was the scene of

the robbery; several persons gave evidence; a

description of offenders fleeing from the scene,

but their descriptions were not sufficient to

identify any particular person.

MASON CJ: Well, what follows is not material to the submissions

that you are making here, is it?

MR HIGGINS:  No, that part of it is not material. Now the

evidence of identification was returned to on day 3

of the summing up when a further reference was

made to the evidence of identification and this

is at page 526 of volume II. His Honour had

referred on the previous page to some evidence being given as to identification which was not

particularly material for the purposes of the present

submission, nor sufficient to identify anybody

in particular. (Continued on page 14)

C2Tl0/l/AC	13	3/8/88
Blewitt

MR HIGGINS (continuing):  But His Honour did say that that was

some evidence in respect of matters of identification.

You will remember that when I had been giving you some directions earlier I had given you

some general directions of identification.

I will not repeat the whole of them at this

stage. I had told you that in matters of

visual identification that I must warn you

of the special need for caution before accepting

the accuracy of evidence of identification
before convicting the accused in reliance

of the correctness of identification. That

was a direction which must be given in every

case in which identification is in dispute

and that the need for warning as to caution

in accepting evidence of identification

exists because common experience over the

years has demonstrated a real risk that such

evidence may be unreliable. I gave you further

directions in that regard that an honest

witness may make a mistake in identification

and a mistaken witness may be a convincing

one and I gave you further general directions

that apply generally to identification.

When you come to this evidence of

identification you will note, among other

matters that have been put to you, that

the identification by the witness Inspector

McIntosh includes in its weakness to you

that it is an identification made from a

photograph and a photograph shown to him

some eleven days after he had seen the person whom he had chased, that there is the element of suggestion, when a photograph is shown

to him, that it would contain the person

who he had seen on the day of the offence;

that the photograph is one which of its nature

gives a limited choice because you have the

older man on the left ruled out, the one

in the middle who was smaller, and also known

to him, ruled out, another with a singlet

with no apparent tattoos on the arms, ruled

out, really leading only two there, only

one of whom, being the accused Blewitt, having

a moustache.

At the time of the accused Blewitt's

arrest on 20 February three photographs were
taken ..... I think at that time on the photographs

he was without a moustache and they also

show tattoos on both upper arms, both left

and right you will observe. There is also,

in having a look at the weaknesses of that
type of identification evidence, that the
person identifying the accused, Inspector
McIntosh, had in fact seen him before when

C2Tll/l/SDL	14	3/8/88
Blewitt

he had been one of the police superv1s1ng a

triathlon event and he had probably, he said,

seen a photograph of him in the daily paper

and so there is the risk of transference

in his mind from the picture that he had

in mind of the person that he had seen on

8 February being replaced by the person he

had previously seen.

There is the fleetingness of the

opportunities to make the observations of

identification, that there were some

inconsistencies with description and some
inconsistencies with the evidence given in

the court below and these, I have, in summary

referred to you. They are not exhaustive

of the matters that should be considered as matters of particular weakness of the evidence of identification in the case that

you are dealing with, and I will deal with

when I come to the submissions made by coun$el,

with these submissions that Mr Goldberg

has made and put those in summary, I hope,

to you.

(Continued on page 16)

C2Tll/2/SDL	15	3/8/88
Blewitt

MR HIGGINS (continuing):  Now, that criticism was a criticism

which had been made of the evidence of identification

by Mr Goldberg who appeared for Mr Blewitt at the

trial. So in other words His Honour's direction

at that point was a surrnnary of the submissions which

had been put by Mr Goldberg. That was what His Honour

said at that point, at least, about those submissions.

MASON CJ:  But what is the point in saying "the submissions

made by Mr Goldberg"?

MR HIGGINS:	Well, it will be submitted, Your Honour, that part of the difficulty -in so far as it relates to
the surrnning up ;i.t is the· warning on identification - is that the trial judge did not himself criticize the evidence as to identification of Blewitt. He did not say,
in effect, that because of these weaknesses in it
a jury might be minded to disregard it.
MASON CJ:	There is no doubt that His Honour was lending his

authority to these criticisms, was he not?

MR HIGGINS:  Well, it is submitted there is doubt about that

because of the form in which it is put.

MASON CJ:  Yes.

MR HIGGINS:  It is put as a summary of submissions rather

than the trial judge saying, "Well, this is what

I,the trial judge,think is a valid criticism of those

particular points."

MASON CJ:  Take the last sentence that you have read to us.

They are not exhaustive of the matters that should be

considered as matters of particular weakness of the evidence of identification in the case that you are dealing with?

MR HIGGINS:  Yes.

MASON CJ:  Well, is not His Honour lending his authority, his criticisms?

MR HIGGINS:  His Honour is saying that those are matters'which

you may properly consider! Now, the distinction

may be a fine one but it is one that, with respect,

is quite clear. His Honour is not saying, ''There is

a criticism which I endorse in this case. These

are criticisms which you might take into account,

you are lawfully able, you are lawfully required,

in fact, to take these into account." But the result

which follows from them, or which ought to follow from them, is not put with His Honour's authority

but rather as being the submissions of counsel.

WILSON J:  Is he obliged to do more than direct the attention

of the jury to the possible defects in the evidence.

C2T12/l/MB	16	3/8/88
Blewitt

MR HIGGINS:  That is the central point, Your Honour, in relation

to what approach should be made to the question of

identification. We submit, yes, that it should

go further.

WILSON J:	He is obliged to express his own view?
MR HIGGINS:	Yes.
WILSON J:	On matters of fact?
MR HIGGINS:	Yes.
WILSON J:	I see.
MR HIGGINS:	We go that far as to say that in respect of the

submission. It is not the only submission we put

in respect of identification, of course, but that
is one submission which we will be putting as a

result of a review of what His Honour had to say

to the jury.

MASON CJ: Doyou have authority for that submission?

MR HIGGINS:  There is· some authority for it in combination,

a combination of the approach taken in Victoria and

with a judgment given by the Chief Justice of New

South Wales in the case of DE-CRESSAC, it is submitted,

lead to being authority for that conclusion. In any

event, it is submitted that because· of the inherent

dangers in identification evidence, particularly

identification evidence where the sort of criticisms

that exist in this case of it are able to be made,
that it may even be appropriate for this Court to

go further than either of those courts has already

done and to say that such evidence should, in fact,

be rejected.

BRENNAN J:  Leaving aside that question, is there any

shortcoming in the directions of law given by the

trial judge with respect to identification. (Continued on page 18)

C2T2/2/MB	17	3/8/88
Blewitt

MR HIGGINS:  His Honour correctly stated the law as to

identification, assuming, of course, that the

law does not require or is so interpreted as

to require the rejection of such evidence, yes.

BRENNAN J:	Yes.
MR HIGGINS:	There was further reference made to the

identification question at page 681 of the appeal

book, that is in volume III. This is on day five.

There had been, in fact, five separate days,

I think I said four earlier, though the first day was relatively brief but this was the fifth and final day of the summing up.

MASON CJ: Mr Higgins, it seems to me in the light of the

concession that you have made that there was

no error of law in the directions that were

given by the trial judge on the issue of

identification, you• really have to make good

your proposition that you say is supported by

this combination of authority. Unless you make

good that proposition there is very little point

in our pursuing further the question of

identification so far as the direcitons are

concerned.

MR HIGGINS:  Yes, the concession that I made is not to

be taken · as going so far as to say that the

law does not require that, in fact, the trial

judge go further. I understood the question

to relate to whether His Honour had correctly

stated the law in respect of identification.

His Honour did so correctly state it, at least

as it is commonly understood.

I have indicated it is intended to go further

1n one way and that is to say that it may well

be that given the inherent unreliability in

such circumstances of identification evidence

it ought to be excluded. His Honour certainly
did not do that.	And secondly to ask, even

if that not be so, even it that not be the rule,

whether the rule should be that it requires

corroboration. That is not currently understood

to be the law but it may be that given the inherently
unsafe nature of identification evidence that

should be required.

And the third position is to say that even

if corroboration is not required then the trial
judge should, as a matter of - if one likes -

criticizing the facts in the case, on his own

authority, put to the jury that the criticisms

which had been mentioned, which are valid criticisms,

as His Honour conceded of the identification

evidence, should lead the jury to reject it

unless they find that it is supported otherwise.

C2Tl3/l/ND	18	3/8/88
Blewitt

MASON CJ:	Would it be convenient to deal with those three
propositions now?
MR HIGGINS:	Yes, Your Honours.

MASON CJ: And to support them, if you can.

MR HIGGINS:  Yes, Your Honours. The first, I suppose,

disquiet expressed in this Court about identification
evidence was in the case of - it may not be

the first case in which such disquiet has ever

been expressed but, certainly, His Honour

Mr Justice Gibbs, as he then was, in KELLEHER's

case, KELLEHER V REG, 131 CLR 535, expressed

concern about the errors which can be made

in relation to evidence of identification.

It was strictly speaking not relevant to

the case in point which depended more on the
question of corroboration of a complainant in

a sexual case but at page 550 His Honour referre·d

to the question of identification evidence.

(Continued on page 20)

C2Tl3/2/ND	19	3/8/88
Blewitt

MR HIGGINS (continuing): His Honour said, at about point 8:

It is now well recognized that grave

miscarriages of justice are liable to occur

in criminal cases by reason of the fact that

witnesses, however honest and careful, may

make mistakes in identification, particularly

where the person identified was unknown to

the witness before the commission of the

crime. Experience, including recent

experience, has shown that such miscarriages

can occur even when all the precautions

provided by the law as safeguards against
mistaken identification have been fully

observed. It is therefore obviously necessary

that at a trial where the evidence implicating
the accused is evidence that he was identified

by a witness or witnesses who were not

previously acquainted with him, both judge and
jury should be constantly alert to euard

against the possibility that the evidence may

be mistaken and an innocent man convicted.

His Honour then went on to say, after citing from ARTHUR •·s case:

a summing up which dealt fairly and amply

with the evidence of identification could
not be held as a matter of law to be

defective if it did not contain a general

warning to the jury of the dangers of acting

on evidence of visual identification, and

their Lordships left it open whether it was

necessary to lay down any rule for the guidance

of courts in a case in which a witness had

identified someone hedid not previously know

and whom he had had only a limited opportunity

to observe.

And then after citing from LONG's case, His Honour

went on to say, at about point 6:

it is in practice generally desirable that

where the case for the prosecution includes

evidence of visual identification by a person

previously unfamiliar with the accused, an appropriate warning should be given to the

jury, since jurors may not appreciate as

fully as a judge may do, or even at all, the

serious risk that always exists that evidence

of that kind may be mistaken. The failure to

give an adequate warning where one is required

may have the result that the conviction must be

quashed - a course that has been taken in

a number of recent cases in Australia. If a

warning is necessary, the duty to give it will

not be satisfactorily discharged by the

perfunctory or half-hearted repetition of a

C2Tl4/l/JM	20	3/8/88
Blewitt

formula, and a warning in general terms will

not alone be sufficient; the jury should be

given careful guidance as to the circumstances

of the particular case, and their attention

should be drawn to any weaknesses in the

identification eridence.

MASON CJ: There was nothing in the direccions in this case

that offended the passage that-you'l"ra.ve quoted.

MR HIGGINS:  In terms of the attention being drawn to the

weakness in the identification case, the question

is the method by which that ought to be done,

rather than whether it was done - it was done

by reference to the submissions of counsel.

MASON CJ:  But Mr Justice Gibbs does not deal with the

question of mode, does he?

MR HIGGINS:  -No,_he does not deal with the question of

method. That was simply, as it were, the connnenc~ment

of concern being expressed about the question of

identification.

The next case in point of time was a case

of REG V BURCHIELLI in the Supreme Court of
Victoria, (1981) VR 611. There the method of

identification had been that a person who had seen

offenders and given chase to them selected the

applicant's photograph from a set of 12 which had

been shown to him by the police and there were then several witnesses who had identified that applicant

in an identification parade. The question was the

adequacy of the warning to the jury concerning the

identification evidence.

Now, there were, of course, several categories of identification evidence in that case.

(Continued on page 22)

C2Tl4/2/JM	i21	3/8/88
Blewitt

MR HIGGINS (continuing):  At page 616 the Full Court, the

majority of it at least, His Honour the Chief Justice and

Mr Justice Mcinemey, at line 10 referred to the categories

of identification evidence which had been given.

There was Mrs Campbell's, Baker's who had been showing

photographs:

and the evidence of those who identified

the applicant for the first time at the

identification parade. Two of these

classes of evidence were said in DAVIES AND

CODY to be unsatisfactory and if it had

appeared that they had been introduced in

order to lend support to one another the

trial Judge might well have rejected
Mrs Campbell's evidence upon the ground

that it had been improperly obtained. Their Honours went on to say at about line 35 that:

it often happens that two pieces of

evidence, each in themselves unconvincing,
will in combination produce a high

degree of persuasion of a particular

conclupion. The reason is often that

the coincidence of the two pieces of

evidence would be unlikely if the ultimate

fact or conclusion had not occurred. But

this is not true of identification evidence.

Two unsatisfactory identifications do not

support one another in the same way as two

primary facts may lead to the conclusion of an

ultimate fact. The situation which faced

the learned Judge when summing up to the

jury was thus one calling for a particularly

strong warning as to the dangers lurking in

the evidence, to use a phrase used by

Winneke CJ in RV BOARDMAN ..... It is not

only because mistakes have occurred in

the past -

Their Honours said -

it is primarly because lawyers know that these

mistakes can occur and most jurors probably

do not.

Then at page 617 at about line 10, Their Honours

said:

We consider juries in cases where the correctness of an identification is challenged

should be directed on the following lines,

namely, that if their verdict as to the

guilt of the prisoner is to depend wholly

or substantially on the correctness of such

C2Tl5/l/HS	22	3/8/88
Blewitt

identification, they should bear in mind

that there have been a number of instances

where responsible witnesses, whose honesty
was not in question and whose opportunities

for observation had been adequate, made

positive identifications on a parade or

otherwise, which identifications were

subsequently proved to be erroneous;

and accordingly that they should be

specially cautious before accepting such

evidence of identification as correct;

but that if after careful examination of

such evidence in the light of all the

circumstances, and with due regard to all

the other evidence in the case, they feel
satisfied beyond reasonable doubt of the

correctness of the identification they are

at liberty to act upon it.

It was then pointed out it was not meant to be a

formula:

It does, however -

Their Honours said -

contain a minimum warning which should be

given in any case which depends on

identification.

Now that warning would require, for its proper fulfilment, a dissent to particulars in the case in

which the warning was given and a criticism of the

particular difficulties that may be said to present

themselves in relation to that particular identification.

It would need to be a careful examination,

Their Honours said of such evidence:

in the light of all the circumstances

and with due regard to all the other

evidence in the case.

Their Honours also adopted, at line 40, the principle

in TURNBULL, which was a case decided in the

criminal division of the Court of Appeal of the

United Kingdom which had raised a number of points about visual identification.

(Continued on page 24)

C2Tl5/2/HS	23	3/8/88
Blewitt

MR HIGGINS (continuing):  These points, of course, arose out of

the same concern as had previously been expressed

both in KELLEHER's case and, of course, earlier

in BURCHIELLI's case.	But Their Honours said,
at about 50:

"First, whenever the case against an accused

depends wholly or substantially on the
correctness of one or more identifications
of the accused which the defence alleges

to be mistaken, the judge should warn the

jury of the special need for caution before

convicting the accused in reliance on the

correctness of the identification or

identifications. In addition, he should

instruct them for the reason for the need
for such a warning and should make some reference

to the possibility that a mistaken witness

can be a convincing one and that a number

of such witnesses can all be mistaken. Provided

this is done in clear terms the judge need

not use any particular form of words.

MASON CJ:	The trial judge did that almost word for word,
did he not?-

MR HIGGINS:  Yes. The trial judge seemed to have been, in

terms of his general warning, taking, it might

even be said, a summary or an expansion of that

passage.

MASON CJ:	Yes.
MR HIGGINS:	"Secondly, the judge should direct the

jury to examine closely the circumstances

in which the identification by each witness

came to be made -

and there are a number of questions there which

I will not repeat, including the question as to the material discrepancy. At the bottom of the

page Their Honours also cite with approval the

statement: 

In such a situation it is manifest that dangers

may result from human fallibility. I would

leave for future consideration the question

whether there is need to lay down any rule

for the guidance of courts in such cases.

There is then a reference on page 619 to the passage

which I have referred to in KELLEHER's case and

to His Honour Mr Justice Gibbs.

In turning then to the case which was before the court, Their Honours took the view that the

direction had been inadequate. That was further

referred to, too, in the judgment of

C2Tl6/l/SDL	24	3/8/88
Blewitt

Mr Justice McGarvie where, at pages 620 to 621,

His Honour summarized that and summarized the

criticisms of the trial judge in this way:

the learned Judge did not explain or did
not adequately explain to the jury:-

(1) That the experience of lawyers (which the jurors have probably not shared) have taught them that mistakes in identification

do, not infrequently, occur.

MASON CJ: There is no need to go through this, is it? It

is repetitive of the ground we have already covered?

MR HIGGINS:  I am sorry. That was the joint judgment - Mr Justice McGarvie

follows on the succeeding page. Those were the

criticisms, in any event which were made in the

instant case.

His Honour Mr Justice McGarvie did point

specifically to the judge using his own authority

for the purpose of bringing home the warning in
the partic~lar case and at page 621, at the bottom

of the page, said:

I agree that the Judge did not by use of

his judicial authority adequately alert the jury to the dangers lurking in the evidence

of identification or explain the possible

defects in that evidence.

BRENNAN J: Mr Higgins, it is traditional for a judge when

he is commencing his summing up to a jury, to direct them that questions of fact are for them

and questions of law are for him.

MR HIGGINS:  Yes.

(Continued on page 26)

C2Tl6/2/SDL	25	3/8/88
Blewitt

MR HIGGINS: 

Yes.

BRENNAN J: 

And that the jury may or may not find, in what

he says, some confirmation or otherwise of their
views, but that at the end of the day it is the

duty of jury to adhere to their own views.

MR HIGGINS: 

Yes.

BRENNAN J: But how does the proposition which you wish to advance

sit with such a general approach to the functions of judge and jury?

MR HIGGINS:	I take from the first submission I put, Your Honour, which was the question of exclusion, on the grounds
that evidence of identification where it appears
from the Crown case to be subject to the difficulties
that have been mentioned and  appears to have been -
in other words ,if it appears to be so flawed as has
been suggested here, that that is a function of the
trial judge to exclude it as unsafe and unsatisfactory·,
as insufficiently probative for the jury to rely upon
it. That is the first way in which it fits into that
particular framework.
BRENNAN J:	Well, tha·t is a question of the admission of

evidence?

MR HIGGINS:  Yes, or the non-rejection of evidence which is

sought to be admitted. The second point, which was a

submission that it should require corroboration, that

His Honour the trial judge, as in any other case that requires corroboration,should direct the jury that it requires corroboration, as well as the criticisms

that have been referred to that should be made of it

but, in addition, should direct the jury that it requires

corroboration and point to such evidence as may be

relied upon by the Crown as being corroboration if

they accept it. Now, certainly, that was not done

in this case; there is no suggestion that it was.

That also, of course, fits in with the

traditional role of the trial judge directing the

jury in relation to matters of fact and law because

it would then lead to the suggestion at the end of

day that if, notwithstanding the lack of corroboration

and the defects in the evidence, the jury was

nevertheless satisfied that it should accept it

beyond reasonable doubt, then the jury may do so.

The third submission, which relates to the question

of, in effect, whether the direction in both form

and substance was in this case sufficiently adequate,

whether it sufficiently gave expression to the
principles which ought to apply to such a direction,

whether it, in ifact, .should have gone further and

judicially endorse the criticisms is not to usurp

the function of the jury either because the trial judge

may and, in many cases, is obliged· to point out that

C2T17/l/MB	26	3/8/88
Blewitt

evidence, although it may not appear to the lay person on the jury that evidence does have some

defects which are applicable to this particular

case. So that it does not usurp or change the

function or the division of function between the

judge and jury, rather that it go to the question

firstly as to what the judge should do when evidence

of identification is presented which is challenged

and upon which there are grounds for, say, challenging

it, either by way of excluding it, requiring

corroboration or requiring a more specific and,

indeed, authoritative direction.

BRENNAN J:  Well, I understand what you say about the

admission of evidence but from my part I have never

understood it to be the judge's duty, having given

a correct direction on questions of law and having

given any warning which is required by law or as
a rule of practice to be under any obligation to

make any observations to the jury on the facts of

the case, for or against, subject to this perhaps.

that it is necessary to put the defence case fairly to

the jury.

MR HIGGINS:  Yes. This, Your Honour, may well be a case

which calls for an exception to that general rule,
just as the question of commenting on corroboration

may require the Judge not only to say what the

Crown contend or the accused contend but to rule
and direct the jury on whether there is evidence

which is capable of being regarded by them as

identification.

(Continued on page 28)

C2Tl7/2/MB	27	3/8/88
Blewitt

MR HIGGINS (continuing): There is a difference between

telling the jury what they must accept as being

a fact and telling the jury what it is that they

must find about the facts before they can be

satisfied, or ought to be satisfied, of guilt and

that is the distinction I am seeking to draw. There was, Your Honours, a milder approach,

if one can use such a term, taken in the case of REG V AZIZ, (1982) 2 NSWLR 322. That was a case

of identification from police photographs and part

of the difficulty in the case was a related problem

that arises to identification which is not really

central to the submissions which we are putting

here and that is the question of identification

from police photographs which was referred to in

ALEXANDER's case. The difficulty there being the

obvious one that if a mug shot is presented the

jury, no doubt, would draw the inference that

the accused, or the person depicted in the photograph,

is adversely known to police. That was the prob~em

in AZIZ and the question was whether there had,

in that case, arisen a danger of wrongful conviction
by reason of there being introduced into evidence,

in effect, ·an assertion of previous conviction

which would not otherwise have been admissible.

In that case, at page 325, Mr Justice Samuels

referred to ALEXANDER's case, just after point A,

where His Honour the previous Chief Justice,

Chief Justice Gibbs, Justices Stephenand Your Honour

Mr Justice Mason:

examined in some detail the dangers to be

apprehended from the use of evidence of photo

identification and the circumstances in which

such evidence should be admitted or rejected,

and the value and comparative reliability

of the holding of identification parades.

In doing so they took account of the different

considerations that will arise, depending

upon whether the photo-identification had	originated during the detection process, or
after the accused had been definitely suspected or taken into custody, or only during the
evidentiary process in court ..... However,
a principle which does seem to emerge is that
evidence of identification made during the
detection process is admissible (Gibbs CJ,
at pp358;295) or may be admissible.

Now, the whole of that case really turns on a question which, as I have just submitted, although

not directly in point is sometimes related and

really has nothing much to do with the present

application. It is the question of whether it

C2Tl8/l/AC	28	3/8/88
Blewitt

1s fair to adduce evidence of a particular kind

of identification having regard to the inferences

that may be drawn from it and, indeed, relies more

on the principles in BUNNING V CROSS than the
inherent difficulties or unreliability of identification

evidence, though that plainly is an element in

a consideration of whether evidence should be excluded

on the grounds of unfairness as described in

BUNNING V CROSS.

The question of the judge's own authority

was, in fact, raised in a more recent New South Wales

decision of REG V DE-CRESSAC, (1985) NSWLR 381,

and it was a case which also, as this one did,

depended on the visual identification by a stranger

of the accused as the offender.

(Continued on page 30)

C2Tl8/2/AC	29	3/2/88
Blewitt

MR HIGGINS (continuing):  His Honour Mr Justice Street

referred in some detail at page 383 to the
challenges which had been made to the identification,

many of which are repeated in this application

and then, at page 385, shortly after D and

before E, it is said:

In a case such as this particular importance

attaches to the giving of an appropriate

and thorough warning. Admittedly the refusal

of the appellant to take part in an identification
parade would preclude criticism of the police
for having omitted to follow such a procedure -

That, indeed, is a question which was considered in a 1984 Victorian authority of HAIDLEY AND

ALFORD -

but it is nevertheless an objective fact

that there was no identification parade

and the persuasive evidence that such proced~re

can provide was absent from the present

trial.

DAWSON J: Mr Higgins·, I am a little lost. What is it,

you say, the judge should have said that he

did not say?

MR HIGGINS:	Your Honour, without seeking to law down a form of words because, plainly, that would be
a little too lengthy, but to say, in effect,
that as to the evidence that the witness McIntosh
had, for example, differently identified the person he had seen as having a moustache or not having a moustache. In other words, the discrepancies in identification.

What His Honour, with respect, should have

done would be to say to the jury, "There were

those discrepancies in the evidence of McIntosh

and if you take the view that those discrepancies

exist then I tell you that you should regard

with great suspicion the evidence of the witness

McIntosh concerning the evidence as to identification
which he gave." And to have similarly criticized

each of the other areas in which the evidence

of that witness could be criticized such as

the fleeting opportunities for observation and

so on.

In other words. the litanv of criticisms

should have been endorsed bv His Honour.

DAWSON J:	But His Honour mav have thoueht that those
discreoancies were entirelv explicable and
understandable, as did the Court of Appeal.

C2T19/l/ND	30	3/8/88
Blewitt

MR HIGGINS:  The Court of Appeal must have so thought,

yes.

DAWSON J: 

He may thought the same thing.

MR HIGGINS: 

The question is whether His Honour was obliged

to give his weight to those criticisms if the jury
should be inclined to think they existed. In

other words, if the primary facts were found

by the jury to exist - in other words, if the

jury accepted the witness had given contradictory

evidence.  He could have also said to the jury,

of course, that the jury might have regard to

other possible explanations for that discrepancy

but nevertheless the fact that that discrepancy

exists, it is submitted, His Honour should have
said, does lead and should lead to hesitation

before accepting that evidence and, indeed,
given the general warning should normally lead
to its rejection.

MASON CJ: 

As a matter of interest, was a direction 1n

those terms sought?

MR HIGGINS:  No. His Honour the Chief Justice in DE-CRESSAC's

case did, at page 388, having referred to the
direction which His Honour the trial judge in

that case gave, also referred of course to the

question that has just been raised - this is

about F:

While accepting the practical significance

of the matters upon which the Crown relies

in this regard, mere absence of objection,

or acceptance of a supplementary direction

as adequate, will not inhibit appellate

intervention if, notwithstanding the inferences

that can be drawn from absence of objection,
it is apparent that the summing-up was

deficient in a significant respect. In

my view the present summing-up was significantly

deficient in that it did not contain an

appropriate and thorough warning by the
judge to the jury both of the general dangers

inherent in identification evidence such

as was before the jury as well as some of
the particular matters requiring caution

on their part.

(Continued on page 32)

C2Tl9/2/ND	31	3/8/88
Blewitt

MR HIGGINS (continuing):

His Honour's admirably fair and comprehensive

summary of the evidence and of the contents
of the addresses for the Crown and the
appellant did rot in their terms, or by
reasonable implication, convey to the jury

that the trial judge himself was warning

them of the degree of care and caution with

which they should approach the various aspects

of the identification evidence. Nor did

his Honour discuss with the jury on his own

authority the way in which that warning should

be brought to bear upon the various aspects of

the identification evidence called by the Crown.

His Honour then went on to refer further on page 389

to the inherent difficulties in identification

evidence and indeed referred to a useful article

by Lorette Re in (1984) 48 ALJ 509, "Eyewitness

Identification;. Why so many mistakes?". I have

included a copy of that articles for Your Honours,

as well as a copy of a previous article which raised

the question· of identification evidence. And indeed,

if I may refer to that latter article, that is in

1984, there was a suggestion made, and this is at

page 520 - it probably would be otiose to take

Your Honours through the whole of the article -

but in column two on that page the author suggests

that:

Where a policeman has given eyewitness testimony,

the jury should also be informed that such

evidence is not necessarily more reliable than
evidence given by an ordinary citizen.

I hasten to say this is not a suggestion that that is necessarily the law, but rather a conclusion the author suggests follows from the evidence of the

unreliability of identification evidence which

she has reviewed in the earlier part of the article.

Moreover, the judge ought to lend the full

weight of his judicial authority to such

detailed warnings; it should not be

sufficient simply to adopt what has been

put by counsel for the accused in argument

to the jury.

There is some suggestion, of course, to that effect

needless to say, but it needs to be made express.

Even the safeguards here outlined may

not be sufficient protection in all cases. In

some instances, in particular where there is

an absence of other probative evidence, it may

be unsafe and unsatisfactory to allow the
evidence to be left with the jury for

deliberation. In TURNBULL, the Court

C2T20/l/JM	32	3/8/88
Blewitt

of Appeal held that when, in the judgment of
the trial judge, the quality of the identifying

evidence is poor, as for example, when it

depends solely on a fleeting glimpse, or

on a longer observation made in difficult

conditions, the judge should withdraw the
case from the jury and direct an acquittal

unless there is other evidence which goes to

support the correctness of the identification.

No court in Australia has, as yet,

adopted this approach. Moreover, the High Court

has not yet had occasion to determine whether

the requirement of a comprehensive and detailed

warning to the jury should be mandatory in all

identification cases.

Your Honours, those are the submissions in

brief that the applicant puts in connection with

identification, but simply, by way of surmnary,

emphasizes the difficultythat arises in seeking

to base a conviction on identification when, as

here, the indentification is so inherently flawed.

(Continued on page 34)

C2T20/2/JM	33	3/8/88
Blewitt

II • b • f 11

MASON CJ: When you say a submission put _in rie , you

are not suggesting that you have	given us
truncated submissions, are you?

MR HIGGINS:  No, I am simply summarizing at that point.

Having put them, Your Honours, those are the submissions

put in support of the three propositions in the

alternative which have been put. That is not

the end of the issue as to identification because

it has some relevance otherwise to the balance

of the submissions but those are the submissions in

particular respect of that.

If the Court pleases, the second point which

I wish to come to is the question of the admission

into evidence of the previous statement of A.D. Blewitt,

a brother of the accused. The place at the trial

at which this happened is referred to in the appeal

book. It was first raised at page 171 of the

appeal book, volume I. Perhaps before I go to

it I should just, perhaps, put it in context:

A.D. Blewitt had been called at the committal

and again at trial. At committal he had given

evidence of having, some days following the robbery,

met his brother in the park and having had a relatively

inconsequential conversation with him. The evidence

was relevant, I suppose, to one aspect of the

Crown case which was whether the accused was attempting

to avoid detection and was capable of supporting

the proposition, for whatever reason, he was

pretending to be elsewhere than he really was.

Additionally to that, and for the first time

at the trial, it was raised with the witness,

Blewitt, whether he had made a statement to the

police on 20 February 1985. The first reference

to that statement appears at page 171 in the

middle of the page. He was asked various questions

about the conversations he had with his brother

in the park.

WILSON J:  Page 171 appears to be the examination of a witness

called Righten?

MR HIGGINS:  That should not be so, Your Honour. It is the

large figure on the right-hand lower

WILSON J:  I beg your pardon. I am looking at the transcript.

MR HIGGINS: It is page 402 of the actual transcript itself.

The reference there is a fleeting reference.

He is asked:

Did he give you any reason on the phone?

Any reason, that is, for cancelling a dinner

engagement. And the answer was:

Not that I can remember over the phone.

C2T21/l/SDL	34	3/8/88
Blewitt

CROWN PROSECUTOR:	Q.	You cannot
remember?	A.	No.

Q. Did you make a statement about this

matter to the police? A. Yes.

Q. Do you remember you made a statement

on 20 February 1985? A. Yes.

Q. When was the next time you heard from

your brother Terry?

(Continued on page 36)

C2T21/2/SDL	35	3/8/88
Blewitt

MR HIGGINS (continuing): That was all that happened then.

Then on the following page, page 172, a third down he was asked:

What did he say to you? A. I said to him, "Is

there anything the matter?" and he said, "Yes,

it has to do with what I told you on

Tuesday".

Q. He said, "Yes"? A. Yes, he said, "It has to

do with what I told you on Tuesday", which was

to do with the people after him from the race

track.

He was then asked:

Would you have a look at that document. Is

that the statement you made to the police

on 20 February 1985? A. Yes.

(The Crown sought leave to treat the witness

as hostile on the basis of the statement).

(Mr Goldberg

for the appllcant -

stated that there were matters of law which

arose -

and they were dealt with in the absence of the jury. summarized there stated that he was presently minded

to grant leave but would reflect on it during the

luncheon adjournment. There was then a voir dire

examination of Anthony Douglas Blewitt and in the

course of that voir dire examination, for the

relevant purposes it might simply be summarized

by what happened at page 176 where he denied a

statement that was attributed to him in that document

that Terry, that is, the applicant, had said:

"I was involved at Dee Why"?

He said that he did not say that to the police

and that Terry, the applicant, did not say that to

him. His Honour then granted leave, at page 178,

for Anthony Douglas Blewitt to be cross-examined

by the Crown as hostile. He was then asked questions

about the statement in the presence of the jury,

general comments first of all about the statement

and then other matters about the statement which

are not particularly relevant for present purposes.

Then at page 190 commences a fairly lengthy portion

of cross-examination about that passage in the

statement which refers to the "I was involved at

Dee Why" comment.

C2T22/l/MB	36	3/8/88
Blewitt

BRENNAN J:	Is the statement signed?
MR HIGGINS:	Yes, Your Honour.
BRENNAN J:	That appears at 1797
MR HIGGINS:	It appears that the witness had signed the

statement. He acknowledged he had signed it but

said he had not read it before signing it which is

his explanation for why it contained statements that

he felt should not have been attributed to him.

Now, whether the jury accepted that, of course

is another question, but certainly he gave an

explanation for it. He was then asked:

Did Terry say to you, "I was involved at

Dee Why"? A. No, definitely not.

Definitely not? A. Definitely not.

He did not tell the police -

it probably should have been "You did not tell the

police that?" His answer was:

No.

You are sure of that are you? A. I am positive.

He did not say to you, "I was involved at

Dee Why?" A. No, definitely not.

(Continued on page 38)

C2T22/2/MB	37	3/8/88
Blewitt

MR HIGGINS (continuing):  He was then taken through the

statement, that particular statement on a number of occasions. There are numerous repetitions of that

statement "I was involved at Dee Why". I do not

know if I counted them, but it seemed like something

like ten times at least the Crown prosecutor puts to

the witness that his brother, the applicant, had

said to him "I was involved at Dee Why". Following

the giving of that evidence - and it is, with

respect, not insignificant that it was repeated so many

times - there could have been no doubt at the end of

that evidence that the Crown asserted that it had a

statement signed by the witness which, if the witness

had sworn to it in evidence would have amounted to

a significant admission, or evidence of a significant

admission by the applicant.	There would be no doubt
about that.	The "I was involved at Dee Why" was the

only piece of evidence in the case, if it had been

given in correctly admissible form, which clearly

implicated the accused, the present applicant, in

connnission of the crime.

The other evidence, the identification, if the

jury had t~ken the trial judge's warning to heart,

would have to have been regarded as equivocal.

Whether or not they could have been satisfied on it

alone, whether or not my submissions on that are

accepted, if the trial judge's warning had been taken

into account, if the jury had properly understood it,

if the jury had taken the implications from it, and

assumed that His Honour was endorsing Mr Goldberg's

submissions and saying they had validity and should

be accepted, unless the jury was satisfied otherwise;

the other evidence that implicated this accused, the

flight, the presence of Moorehouse in his flat earlier

in the day, given the other explanations or challenges

there were about that, were equivocal, but the one thing

that could not be regarded as equivocal would be

a confession by the applicant that he was involved. That was the purport of what the cross-examination

of the Crown prosecutor revealed.	The cross-
examination was, with respect to it, very good.	The

cross-examination highlighted the points that this

witness had signed this statement, apparently not

protested about all these matters which the witness

alleged were inserted by the police without his

authority. It was quite likely, it might be thought,

that the witness may not have been believed, that his

credit may have been destroyed as a result of that

prior inconsistent statement.

Now, the witness was not called to give any

evidence that assisted the accused. The witness was

not called to give evidence that greatly assisted

the Crown. The evidence of the witness as to the

apparent preparations for concealment by the

applicant were adequately proved by the witnesses.

C2T23/l/HS	38	3/8/88
Blewitt

MR HIGGINS (continuing):  The only purpose the witness ultimately

served was to serve as a conduit for putting before
the jury this highly prejudicial statement; that
was the effect of it. Now, quite clearly, the
decision to allow the Crown the opportunity to

try and put that in admissible form before the

jury is one thing. After all if the witness

A.D. Blewitt had said, "Yes, the accused, my brother,

did say to me 'I was involved at Dee Why'", the

Crown would have got "BINGO"; a complete line on

the poker machine. It would have been a very,
very significant piece of evidence; a damning piece

of evidence against the accused and it would have

been admissible. But when the witness says, "That

statement was not made to me and I did not make

it to the police", it is incapable of being evidence

which is admissible against the accused.

But, if the jury do not accept the witness

A.D. Blewitt's denial; if the jury think this witness is an untrustworthy witness and it is very likely~

in fact we are satisfied, we really do believe

he did make this statement to the police - how

can the jury then put out of their collective minds

that thought? And it has a difficulty in two ways
then: there is not only the direct prejudicial

effect of the jury believing that the accused has

said, "I was involved at Dee Why". But even if

they accept a direction that it is not admissible

evidence and they should not have regard to it,

it must affect - - -

DAWSON J:  When you say, "even if they accept", we have to

assume they did follow the directions, do we not?

MR HIGGINS:  That is not always accepted, Your Honour, with

respect, as some times a statement can

be so prejudicial that it must be taken, or may
be taken, that it is a matter which it is asking

too much of a jury to put such a comment out of

the jury's mind.	For example, in the ACT yesterday
a murder trial was aborted because of a statment	in the newspaper; it was quite open to the trial
judge, as the trial judge stated, to have told the jury to put it out of their minds but he did not think that was fair to them to ask them to
do that. Indeed, in one of the cases to which I will make reference shortly such a situation
arose in respect of the calling of a witness before
a trial to give evidence that that witness wished
to exercise a privilege not to give evidence.
It was thought that the prejudical - - -

DAWSON J:  So really what you are saying is, the jury would

be unable to follow that direction.

C2T24/l/AC	39	3/8/88
Blewitt

MR HIGGINS:  Yes. Quite so. And unable to do it for two

reasons:  one is because of the direct impact of

such a statement particularly when emphasized over

so many pages, so many times, but also the indirect
impact of it. If one is asking, "Well, was it

really the accused who was seen fleeing from

Inspector McIntosh's premises? Is there any doubt

about his identification? The~ is the accused

really only fleeing and concealing himself because

of his fear of SP operators or is it for a more

sinister reason connected with the crime? Are

these statements which he made on being arrested

to be attributed to that fear of illegal SP operators,

his consciousness that the police might want to

speak to him about something and his awareness

that Moorehouse had been shot.	Are those the real
reasons or is it something else?"	Now, in coming

to that conclusion, the fact that the jury was

satisfied that even though they were told it is

not evidence and accept it, assuming they do, that

it must have an affect on their judgment of the

significance of the other facts.

MASON CJ: Mr Higgins, I fail to see how this is a special

leave point ~nd it needs to be considered on a footing that a trial judge and the members of the Court of Criminal Appeal obviously concluded

that the direction would have the affect intended.

How can we disagree with that assessment? And

even if we were minded to disagree with that assessment,

how is it converted into a special leave point?

(Continued on page 41)

C2T24/2/AC	40	3/8/88
Blewitt

MR HIGGINS:  There are two aspects to it, Your Honour.

First of all is the admissibility question.

In other words, when a witness is called for

the purpose of, as is submitted here, merely
giving evidence - in other words, where the
witness is called as an Aunt Sally, set up
to be knocked down - whether it is an appropriate

case for leave to have been given to cross-examine

that witness on a prior inconsistent statement.

DAWSON J: Is that true? This witness was a central witness

with regard to the accused's alibi, was he not?

MR HIGGINS:	No, that was another brother.
DAWSON J:	I see.
MR HIGGINS:	So this witness had nothing to do with the case apart from having met the accused once
in person, I suppose, if "met" is an appropriate
term having spoken to him on the telephone foll~wing
the robbery.  He was relevant for the purpose
of showing an awareness of flight or an awareness
of a need for  ilight or concealment. But
other witnesses also gave evidence to that same
effect.  Even the police who arrested the applicant
gave evidence that was redolent of that.
DAWSON J:	But he still was not just an Aunt Sally, was
he? The Crown were entitled to attempt to get
from him the admissions by, if necessary, cross-
examination and being as important as you say
it was.
MR HIGGINS:	That is the question, Your Honour, whether the Crown was, in effect, taking - and this
is the real point of where special leave arises,
whether the result of that, given that the putting of the inconsistent statement will have a prejudicial
effect, whether - two things, I suppose. One,
whether that exercise should be attempted at
all, given that the witness has on the voir
dire, in the absence of the jury, made it quite
plain that the witness will not make the admission the Crown seeks. That is the first point.

The second point is that even if the Crown

is entitled to have its go, whether a trial
judge faced with similar circumstances should

say, "Well, the trial is now so fundamentally

flawed that it cannot continue without a risk

of prejudice that cannot be eradicated to the
accused." or that whether an appellate court

should say so even if the trial judge does not.

That situation is not very different than occurred

in the case of DEMIROK where the witness was

called to give evidence simply but she did not

wish to give evidence against her husband.

C2T25/l/ND	41	3/8/88
Blewitt

It is an application of that particular

principle, or an extension of it, to the previous

process that gives rise to the special leave

point or a special leave question - part

from any question of justice to the accused

because if it were the fact that this accused

was convicted and convicted merely because the

jury heard hat he was supposed to have made

an admission out of court, even though that

supposition was not based on admissible evidence,

then that would be a grave travesty of justice.

It is hard to imagine a situation in which

it could be regarded as otherwise.

BRENNAN J: Mr Higgins, what was this witness called to

prove and where did he manifest any adversity

to the party that called him?

MR HIGGINS:  The only way in which he manifested any adversity,

Your Honou; was by giving an account - he apparently

made the statement to the police which contained

the statement that has been referred to several

times. His evidence, both at committal and

in-chief, up to the point where he was declared

hostile, did not include a reference to that

particular statement. In other words, he gave

evidence of a conversation which did not include

any admissio~s as having ta~en place between

himself and his brother.

(Continued on page 43)

C2T25/2/ND	42	3/8/88
Blewitt

MR HIGGINS:  The Crown then asked him whether he had

made a previous statement. He said he had.

The previous statement was then put to him.

BRENNAN J: Before you get to this, what is the relevance

of the evidence which was given on conrrnittal and

which, assumedly, he was called to give on the

trial?

MR HIGGINS:  Yes.

BRENNAN J: What was the relevance of that?

MR HIGGINS:  The relevance of it, merely that he had met

his brother after the alleged event, and he had cancelled a dinner engagement. There had been

a dinner engagement which he, the applicant,

and various friends of his, including this

brother, were going to hold to celebrate the

applicant's birthday, which happened to be the

day of the robbery. The evidence was that he

cancelled that particular dinner engagement.

BRENNAN J: Because his brother asked him to?

MR HIGGINS:	No, that he, the applicant, had cancelled the dinner engagement with the brother and he
was called - - -

BRENNAN J: Yes, but this witness had cancelled it with

the other members of the party - - -

MR HIGGINS:  Yes. I think he had also passed on the

message

BRENNAN J:  - - - because he was asked to do so by the applicant?

MR HIGGINS: That is right - that was the other brother.

He was one of the recipients of the message.

The other brother passed on the message. The

was to be cancelled and passed it on to others.

one who had been rung from the panel beater's

shop was the one who received, probably first,

BRENNAN J: For the moment I do not see what the relevance

is of this witness's evidence.

MR HIGGINS:  Your Honour, I have a copy of his evidence

that he gave up to that - certainly in the

conrrnittal. I do rot know if that is any help,

but certainly the evidence he gave up to that

point did seem to be of marginal relevance, if

at all.	He did speak to the applicant on the
Sunday following the robbery.	He spoke to him

on the telephone and that was said that is when he rnade mention

C2T26/l/JM	43	3/8/88
Blewitt

of some fact about being pursued by people from

the racetrack. Now, obviously the applicant

could not have called his brother to give evidence

of that.	It would have been hearsay; it would have
been self-serving.	So, it was strictly inadmissible
evidence, but nevertheless he gave it.	He offered

no explanation, he said, of why he wanted to set

up a further meeting with that brother, which happened,

I think it was, on the Tuesday following.

There was then again a conversation given

when they were seen together, just general talk,

"Whether I'd feed the budgie" was one thing which

was adverted to. But, again, evidence which the

applicant could not have called his brother to give,

because again it would be hearsay and not containing

any admissions.

TOOHEY J:	Mr Higgins, I rather assumed, perhaps wrongly,
that the brother had been called to give evidence
in the hope that he would say what he had already
said in his statement.

MR HIGGINS:  Yes, that would be so.

TOOHEY J:  And in failing to do so, then the attack was

made on him. He was declared hostile and

cross-examined. But on that basis, presumably

the Crown had hoped to get a number of things

from him, including a statement made by the applicant

that he was in some strife and had to get away.

MR HIGGINS:  Yes, that was no doubt the purpose the Crown

had in calling him in the first instance at committal.

No attack was made on the witness at committal.

The attack was left until the trial and in the

initial stage, of course, the actack was conducted

by an examination on the voir dire and where the

attitude of the witness to what he would say in

the presence of the jury was certainly canvassed.

(Continued on page 45)

C2T26/2/JM	44	3/8/88
Blewitt

MR HIGGINS (continuing):  Now, there could be no doubt after

that process had been gone through that he would not

be giving admissible evidence. The Crown might well

have said to itself, "the witness has said one thing
to the police and now says another thing to the

court", but nevertheless that was not admissible

evidence against the accused. That was not admissible

evidence either for him or against him. He could

not have called the evidence that the witness said
he was going to give and nor could the Crown rely

upon the evidence of a conflict between himself,

that is the witness, and a police officer as to

what was the fact in relation to the taking of that

statement.

BRENNAN J:  The signed statement would not have been admissible

under any evidence provisions?

MR HIGGINS:  No. It is unlike Queensland where there is a

provision for the inconsistent statement not only to
be admitted as evidence of an inconsistent statement,
but also of the facts contained in it. There was no

such provision and, indeed, it is not suggested that

it could have been made admissible. Now, in my

submission,that brings the case really on all fours

with the situation which arose in DEMIROK V REG,

137 CLR 20.

WILSON J:  Without going to it, Mr Higgins, would you just give

me the page number where I find the direction of the

trial judge on this statement.

MR HIGGINS:  Yes, Your Honour. His Honour gave a warning

to the jury about the effect of the brother's

evidence at page 203 of the appeal book and I have

to say that he asked Mr Goldberg,for the applicant,

whether anything should be added and Mr Goldberg said,

"No".

WILSON J: That was when the evidence was first led

or - - -

MR HIGGINS:	That was after, immediately on the conclusion of the evidence of the witness H.J. Blewitt.
WILSON J:	Yes, and then did he advert to it again in the

sununing up?

MR HIGGINS:	Yes, at page 538.
WILSON J:	I do not want you to go to it.
MR HIGGINS:	Although we would have to say, Your Honour,

that the direction given was not entirely unequivocal

as to the use which could be made of the evidence.

It seemed to say that ordinarily it is not admissible but it depends on what you find really about other

C2T27/l/HS	45	3/8/88
Blewitt

facts. There is at least a hint of that latter

proposition being embroiled within the words which

have been used.

WILSON J:  But I suppose that calls forth the same question

you have faced in relation to the earlier matter.

Was any redirection sought in respect of that?

MR HIGGINS:  No, not in respect of that. Again, the same

difficulty arises there, if it be a difficulty,

but I again make reference to the same passage that

I referred to in the judgment of His Honour

the Chief Justice, Chief Justice Street.

DEMIROK was a case though in which the accused's

wife was clearly a person who could give relevant

evidence, just as here,I suppose,it might have been

said that the brother might be thought by the Crown

to have been capable of giving relevant evidence, but being the wife of the accused she, of course, was not

compellable. She was examined on the voir dire and ·

indicated that she did not wish to give evidence~

She was then called in the presence of the jury, informed that she did not have to give evidence if

she did not want to, said again she did not wish to

give evidence, and was excused.

Now, although His Honour the then Chief Justice

dissented, Mr Justice Gibbs, as he then was,

consistently with the majority finding, expressed the

view at page 29.

(Continued on page 47)

C2T27/2/HS	46	3/8/88
Blewitt

MR HIGGINS (contining): This is about point 5:

In my opinion there would be no legitimate

purpose in thereafter -

that is after the voi~ dire -

calling the spouse to the witness box in the

presence of the jury. The fact that she was

a wife and therefore not a compellable witness

would already have been found by the judge. The

fact that she declined to give evidence would also

have been established. If she were then called to

the witness box it could not be for the purpose

of giving evidence but only to serve some

tactical purpose of the prosecution. That

would seem to me illegitimate.

DAWSON J: Well, you cannot say that of this case. The Crown are

are entitled to call the witness to try and get out of
the witness what he had said in his statement or .

evidence to the effect of the statement and if that

was unsuccessful to attempt to do so by cross-examination.

MR HIGGINS:	The Crowh made the application, first, for leave to cross-examine __ and got it on the voir dire after a
voir dire examination.  Now, at that point, although the
Crown was entitled to try to get the evidence in, the
effect of having got it in was that they got no
admissible evidence and only prejudice.

DAWSON J: Well, they did not succeed but you cannot say that

the calling of the witness only served to

tactical purposes.

MR HIGGINS:  It depends whether His Honour, the former Chief Justice,

is there referring to the effect of it or to the
intention of it. It is not intended to say that the

intention of the Crown was merely to score a tactical

advantage.

DAWSON J: What he is really saying there was no real

purpose to be gained by calling the witness.

MR HIGGINS:  Yes, no real purpose.

DAWSON J: You cannot say that in this case. The fact that the

purpose was not gained does not show that there was not
a purpose in calling him.

MR HIGGINS: Well, in that case the Crown could have said that the witness might have changed her mind when she was present before the judge and jury and therefore

persisted in calling her for that reason. They might

have thought it was the proper course to put her

refusal in front of the jury.

C2T28/l/PLC	47	3/8/88
Blewitt

DAWSON J: And they obviously did; the court decided it was not.

MR HIGGINS:  Yes, that is right. Well, in this case we say the

same. It is not a criticism of the ethics of the Crown

in saying that what happened in this case caused

prejudice. It is more a question of the objective effect
of it because after all it is not really any comfort to

the accused to know that the Crown had good intentions

if the net result is that his trial has been unfairly

prejudiced. Rather, it is a case where the objective
effect of what has happened is the important aspect,
and the objective effect, it is submitted, is that the

have proceeded rather on that basis than any

trial was irretrievably prejudiced. And, indeed,

criticism of the Crown. He was saying that, in fact,

as it transpired, if you look at it objectively, that
is the only purpose you can now see in what the Crown

did and what the trial judge permitted, but nevertheless
it was the capacity for the evidence to prejudice the
accused unfairly that was the real vice in the matter ·
not whether the Crown believed or did not believe that
the evidence had some legitimate purpose.

The sort of prejudice His Honour identified in that case His Honour refers to at pages30 and 31. At

page 30, the second paragraph, His Honour says:

it seems to me that an accused person may be

prejudiced if his wife is called by the

prosecution as a witness and declines to

testify. It is true that in such a case the

accused is not necessarily responsible for

the fact that his wife does not give evidence,

and that no inference can logically be drawn

against him from that fact.

So, it is not the logical inference that is the problem.

However in those circumstances a jury might not

unnaturally think that the wife's evidence was

favourable to the prosecution. Such an

inference might of course be quite ill-founded.

A wife might decline to testify for a variety of reasons. A wife whose evidence might

exculpate her husband, but who was actuated by

animosity towards him, might, when called

by a prosecutor acting with a proper sense of

fairness, decline to give evidence simply because

she did not wish to assist her husband.

And then over to the following page towards the bottom of

page 31 His Honour says:

I cannot exlcude the possibility that the jury, in
deciding whether to accept Mrs Ozdemir as a

reliable witness, were improperly influenced by the fact

that Mrs Demirok, the other alleged eye witness

C2T28/2/PLC 48 3/8/88

Blewitt (Continued on page 48A)

of the crimes, was called in their presence

and declined to give evidence.

And His Honour then went on to say:

I am not satisfied that the judge's direction,

although adequate, would necessarily remove any

such improper influence from their minds.	I
cannot be satisfied that no miscarriage of
justice occurred by reason of the failure to observe the procedure which the sub-section,
properly construed, requires.

(Continued on page 49)

C2T28/3/PLC	48A	3/8/88
Blewitt

MR HIGGINS (continuing):  With respect, that particular passage

highlights both submissions that I have made.

Firstly, the direct prejudice and effect of such

a statement and, secondly, the indirect prejudice

and effect of such a statement in making other
evidence more likely to be accepted and the question

of whether that improper inference can then be

removed from the mind of a jury simply by a direction.

I am reminded, Your Honours, that it may be added to those factors the fact that on the

voir dire in this case the witness, Blewitt,

gave evidence that he had informed the Crown at

the committal that his statement was incorrect

and, in effect, that he would not adhere to parts

of it.

The question of the strength of the direction that is required in order to avoid prejudice has

been referred to in a number of cases and it is

certainly the case that if a witness is merely

discredited, subject to such a provision "3.S is tZ'l<:= lm-., in

QueenPfand, the mere fact the w~_tness is discredited may

lead to his e.viclence being entirely disregarded but should have no

other inference and I simply make reference to

the cases which are referred to in paragraph 2,

page 5 of the outline of submission~ which contain

a number of illustrations of that undoubted principle.

They are the cases of THOMPSON and MANN as well

as NEVILLE, HALL and ANDREWS.

Your Honours, I think I have probably exhausted

Your Honours enough on that point and if I may - - -

MASON CJ: Yes, I think we would agree with you, Mr Higgins.

MR HIGGINS:  I was afraid I was sticking my chin out a bit.

In respect of the next one, which is the question of evidence in rebuttal under section 4O5A of the

CRIMES ACT: this is a question which does raise

the interpretation of that question. It is the

submission of the applicant that that section

is to be interpreted consistently with the general

principles of law in relation to the calling of

evidence in replX. Section 4O5A itself is headed,

"Notice of Alibi'. It was inserted in 1974 in

the New South Wales CRIMES ACT. The general thrust

of it is that the accused person to whom that

section applies, if he wishes as a matter of right

to raise an alibi or give alibi evidence must

give a not ice - he may be permitted to do so otherwise

but he must give a notice - giving certain
particulars. That was done in this case. The

accused, Blewitt, had given notice that he intended

to raise an alibi. He had included the name and

address of the persons upon whom he intended to

rely and it was therefore open to the Crown and

C2T29/l/SDL	49	3/8/88
Blewitt

the prosecuting authorities, of course, to have

interviewed those persons and be prepared to cross-
examine them or to call evidence in contradiction

of the alibi, should the Crown think it fit and

appropriate to do so.

(Continued on page 51)

C2T29/2/SDL 50 3/8/88

Blewitt
MR HIGGINS (continuing): Normally, of course, without

notice of alibi, it would have been the position

that if the accused had, for the first time,

raised an alibi in the course of his case, there

would have been a question which would have

been easy to answer as to whether the Crown

should be permitted to call evidence in rebuttal.

The Crown would have said, under such circumstances,	11 We didn't know what the accused was going
to say, we are entitled to have the right to
call evidence in rebuttal in these circumstances
because we could not foresee it. It is one of those exceptional circumstances in which
rebuttal evidence should be called."

But for the provisions of section 405A(4),

it might have been thought too that the Crown

would have another difficulty which is that

if the alibi evidence is given in the case for
an accused, should they call the evidence in
rebuttal of it before that evidence is given

or after, should that be permitted? Section 405A(4)

directs itself to that matter and says in

subsection· (4):

Any evidence tendered to disprove an

alibi may, subject to any direction by the

Court, be given before or after evidence is given in support of the alibi.

MASON CJ: Is there an equivalent provision in the CRIMINAL

JUSTICE ACT of 1967?

MR HIGGINS: In the English CRIMINAL JUSTICE ACT of 1967?

MASON CJ:  Yes.

MR HIGGINS:  I am not sure, Your Honour. I think there

is a similar provision. My recollection is

that it is very much to the same effect. It

i s a t page 4-403 o f Arch b o 1 d .

MASON CJ:	I think assistance is coming from afar, Mr Higgins.
MR HIGGINS:	Yes. Subject to any directions by the

trial judge any evidence tendered as a proven

alibi may be given b~fore or after that ·

given in support of the alibi .. ,_. -,

And a section 11(4) is referred to.

MASON CJ:	And has that been the subject of judicial
interpretation in England?

C2T30/l/ND	51	3/8/88
Blewitt
MR HIGGINS:	Yes.	Not as to the question which arises

as to whether it needs to be evidence which

could only arise afterwards. I do not think

has been really the focus of attention. There

has been a case as to whether the trial judge

could call persons who have been named in the

alibi notice.

MASON CJ: That seems rather removed from this case.

MR HIGGINS:  Very much so and the note in Archbold simply says this:

Evidence to disprove the alibi, if given before the alibi evidenc~ must be given as part

of the prosecution case. The "disprovii:rn"

evidence will be unintelligible to the jury

unless they know what the alibi is. They

can only know that if the Crown puts in
the notice, before calling the "disproving".

evidence. The position is the same as with

a statement under caution.

So it does· not really assist greatly as to whether

the - as to what principle should apply in deciding
the question as to whether the evidence should

be called before or after the alibi evidence

1s given.

Certainly, Watson and Purnell refer, at

paragraph 1164, to KILLICK's case as being relevant

to the interpretation of section 405A but it

was not a statement which was endorsed by the

Court of Criminal Appeal in this case.

(Continued on page 53)

C2T30/2/ND	52	3/8/88
Blewitt

MR HIGGINS (continuing):  The authors, Watson and Purnell -

which is part of the authorities which I provided

for Your Honours - said that:

A trial judge should not permit the Crown

to adduce evidence after the close of the

defence case to rebut an alibi sworn to by

the accused in the course of the evidence, and
not previously the subject of evidence at
the trial, but which the Crown ought reasonably

to have foreseen would be raised by the accused

at the trial.

Of course, the difficulty in this case is somewhat

diminished by the fact that the evidence in question

was not evidence that could only have arisen or been

raised by the giving of the evidence, it was evidence

that was peripheral, evidence of the time it would
take for a triathelete to run between two points.

Now, that was given the fact that the alibi had been notified, what the alibi was had been notified. the

Crown was well aware that Inspector McIntosh had seen a person who the Crown could identify as an offender

in the vicinity of his home. The Crown knew that

the accused, Blewitt, claimed to have been at

Norris' panel beating shop at the same time as the

robbery, so it would not have required very much

intellectual gymnastics to have reasoned that the

time to be taken to proceed between those two points,

if it were relevant at all, could be given in the

Crown case.

BRENNAN J:  The relevance dependent upon Norris' evidence as

to the time of the appellant's arrival?

MR HIGGINS:  Yes. Now, that is the other point in relation

to it, that it should not have been admitted at all

because it was not evidence in rebuttable of an

alibi. It was evidence that was incapable of rebutting

any alibi that the accused,Blewitt,had notified and

which the evidence tended to support because whatever

time it could take him to run between McIntosh's house

and the panel beating shop would be immaterial if

he was there the entire time. It would only be

relevant if the suggestion put by the Crown
prosecutor in address, but not put to the witness

Norris, that Norris was mistaken as to the time

at which the accused,Blewitt, was at his premises,

only if that was first accepted.

So what happened, in fact, was that it was not

evidence in rebuttal of an alibi, yet it was

admitted. It was evidence which the Crown could have

foreseen and yet it was admitted. It offends against

both principles. It offends against section 405A

even if it had application.

C2T31/l/MB	53	3/8/88
Blewitt

TOOHEY J:  Well, it is implicit in that then, Mr Higgins,

that Norris' evidence was not evidence in support

of an alibi?

MR HIGGINS:  No. Norris' evidence was in support of an alibi

but the evidence of the triathelete as to the time

it would take him to run between McIntosh's house

and Norris' panel-beating premises was not relevant

to disprove the alibi which Norris supported.

It could not - - -

TOOHEY J:	As it did intend to disprove that he was there, that is, that the applicant was there at the time
that Norris said he was?
MR HIGGINS:	Well, it could not do that because whatever time

it took to run from McIntosh's house to the panel

beating shop, if the accused, Blewitt, was there

between 4.15 and 5 pm, which was Norris' evidence,

then he could not have been at Dee Why committing·

a robbery at 4.30 nor a few minutes later in front

of McIntosh's place to be seen fleeing from the scene

where the car was abandoned.

DAWSON J:  But an alibi has two aspects; one is that he was

elsewhere and the second is that he therefore could not

have been at the scene of the crime.

MR HIGGINS:	Yes, that is so.
DAWSON J:	Well, if you prove that he could have been at the

scene of the crime, or you call evidence to prove that

fact, that is surely evidence which is tendered to

disprove an alibi?

MR HIGGINS:  That would be so, but the evidence of the policeman,

who is the athelete, could not logically tend to that

result.

DAWSON J:  Why not?

MR HIGGINS:  Well, because all that that witness was able to say

was that if Norris was mistaken about the time, if,

indeed, McIntosh had seen the offender at, say, about

4.35 or thereabouts, 4.40 or 4.50, whenever was the

precise time, he, the offender, if it be Blewitt,

could have run from that position to the panel beating

shop in a certain time. Now, whether he could or

could not - granted the circumstances - was irrelevant

to whether he was, in fact, there already, because if

he was there already it would not matter how long it
would take for an athelete to run that distance, whether

it took an hour, two hours, half an hour, five minutes.

C2T31/2/MB	54	3/8/88
Blewitt

MR HIGGINS (continuing): It could not affect the alibi.

The only thing which could affect the alibi would be evidence which would tend to show that Norris

was incorrect; either that he was a conspirator or

that he was mistaken, inaccurate as to the time

at which Blewitt, who was well known to him - there

was no question of mistaken identity here - whether

Blewitt was, indeed, at his premises for a time

which would, if accepted, mean that he could not

possibly have been one of the offenders, or whether

he was not.

WILSON J: But Norris' evidence did not have to be accepted

in its entirety. I mean, witnesses thinking back

and suggesting times of an occurrence when there

was no particular reason to impress a particular

time on their minds - was it not relevant to show

that the accused could have committed the crime

and been at Norris' by, say, 20 to 5?

MR HIGGINS:  Your Honour, there is a difference, with respecG,

between relevant evidence and evidence in rebuttal

of an alibi. If it was relevant to show what the

distance was in terms of time it would take to
run between ~cintosh's home and the panel-beating
shop, it was not evidence which was, of itself,
capable of rebutting an alibi, so it was not evidence

in rebuttal of an alibi. It might have been evidence

which would, if the alibi was rebutted by other

evidence, be relevant because it becomes relevant

only if one can show that Norris was either dishonest

or mistaken and also the brothe½ toq who was in the same category - the brother claimed to have got a phone call just before 4.30 and, again, he

could not have got that phone call if the accused

was one of the offenders - the robbery was then

taking place.

So that, in either case, the fact that there

was a certain distance, while it may have been

of peripheral relevance if given in-chief in the

Crown case, and even then only if there was certain

other evidence to be given or certain other challenges

to be made, it, of itself, was not evidence in

rebuttal of an alibi. And, of course - - -

BRENNAN J:  What was the relevance of it?

MR HIGGINS: Well, unless the alibi was to be attacked on

the grounds that, "Well, as the alibi was, I was

at Norris' panel-beating shop at say 20 to 5.

The robbery took place at 4.30. I say it is impossible

for me to have got from the scene of the robbery

to Norris' panel-beating shop." Well, then, of

course, it would relevant to have a triathlete

or a driver and a triathlete do a combination drive

and run to see whether it could be done within

C2T32/l/AC	55	3/8/88
Blewitt

that time and if it could to put that evidence

before the jury. But that was not it. It was

not relevant for any purpose.

BRENNAN J: Either Norris' evidence was capable of supporting

that or it was not. If it was capable of supporting

that then it was evidence in answer to Norris'
evidence supporting an alibi. If it was not capable

of supporting it, it was simply irrelevant and

was not prejudicial.

MR HIGGINS:  No. The only thing - - -

BRENNAN J: Well, on either of those scores you fail, do

you not?

MR HIGGINS:  No, because to call it in reply does focus attention

on it. It focuses attention on it in two ways:

one is it characterizes it as evidence in rebuttal

of an alibi because otherwise it does not get in.

BRENNAN J: Well, that is a large question in itself, is

it not?

MR HIGGINS:  Whether it was logically capable of being evidence

in rebuttal - that is why it was admitted because

it was so characterized by the trial judge. Having

put it in attention is focused upon it in a manner

which is prejudicial.

(Continued on page 57)

C2T32/2/AC	56	3/8/88
Blewitt

MR HIGGINS:  It is the last piece of evidence the jury

hear. They are told it is significant; they

are told it is quite significant. They are

told it is evidence in rebuttal of an alibi.

Now, they might not be able to see quite how

it does that but they may take it that it is
some support from the trial judge of the

proposition which was later put by the Crown prosecutor in his address to the effect that

Norris may have been mistaken as to the time

at which the accused was at his panel-beating

premises, a suggestion which was not put to

the witness, certainly not directly and if it

was put implicitly, it was very, very indirect.

Now, in that case unfair prejudice arises

from permitting, as indeed has been the case,

the very reason for the principle that the

Crown ought not to call evidence in reply unless

it is necessary to do so, unless the necessity

to do so was unforeseen.

Though it may be otiose to do so, Your Honours,

I refer Your Honours to the cases in which that principle has been emphasized, in fact, more than

emphasized, one might think. The case of

NEVILLE, a Queensland decision, (1985) 2 QdR 398

which in fact combined a question as to a prior

inconsistent statement with evidence in rebuttal

because the evidence in rebuttal was a prior

inconsistent statement. Again, the question of
the prejudicial effect on the fairness of the

accused's trial of calling any evidence in

rebuttal was emphasized, particularly where it

was a prior inconsistent statement. At page 410

Mr Justice Williams, in that case, said - and

this is at about 18:

it was grossly unfair to the accused

to permit a police officer to give

potentially damning evidence against

him in rebuttal, when such evidence was
not admissible as part of the Crown's

case in chief, and where such evidence

primarily was not relevant to a fact
in issue but rather to the credibility of

a defence witness ..... the Crown should not

have been permitted to lead the evidence -

even though the evidence itself attacked the Crown

witness, not the accused.

REG V CHIN, 157 CLR 671, where there was a

question raised as to the summing up in reply

and again, at page 676, the former

Chief Justice Mr Justice Gibbs and Mr Justice Wilson

C2T33/l/JM	57	3/8/88
Blewitt

said, at about point 6:

Although the trial judge has a discretion

to allow the prosecution to call further

evidence after evidence has been given

for the defence, he should permit the

prosecution to call evidence at that stage

only if the circumstances are very special

or exceptional and, generally speaking, not

if the occasion for calling the further

evidence ought reasonably to have been

foreseen. The principle applies where the

prosecution seeks to call evidence to rebut

matters raised for the first time by the

defence; if the rebutting evidence was

itself relevant to prove the prosecution

case ..... and the need to give it could have

been foreseen it will, generally speaking,

be rejected.

Now, the reason for all of that is the disproportionate

prejudicial effect the giving of such evidence has if

it is led in reply. And, in this case, even if it

be not stricitly logical to do so, the jury would

have been led to give disproportionate weight to

this evidence about the time it took a triathlete,

a person who competes in the same sort of events

as the accused Blewitt, to run from McIntosh's

house - and who did McIntosh see: well, the question

then would be raised in the jury's mind: this is

further endorsement of the proposition that McIntosh

saw the applicant - and then to Norris' panel-beating

shop.

(Continued on page 59)

C2T33/2/JM	58	3/8/88
Blewitt

BRENNAN J:	Did Norris describe the applicant's clothing on arrival?
MR HIGGINS:	Yes.

BRENNAN J: Consistently with the description given by McIntosh?

MR HIGGINS: It was consistent though there were differences.

BRENNAN J: Perhaps I should say this: I think the colours that

McIntosh gave were incorrect but generally the

kind of clothing - - -

MR HIGGINS:  The kind of clothing was, in general terms,

consistent except that McIntosh had described

a tracksuit or a part of a tracksuit, or at least

tracksuit trousers, certainly that was not being

worn by Blewitt when seen by Norris. But there

were shorts, running shorts, and they were seen

by - one other difference was that Norris says

that the applicant was wearing a T-shirt; McIntosh

says the offender he saw fleeing from the scene.

was "bare-chested" and was in the process, in

fact, of removing tracksuit trousers and, when

last seen, fleeing with the trousers still attached

to his person, but only marginally so, by one

leg. That, Your Honours, is the third ground

which the applicant raises.

MASON CJ:	Was this evidence objected to when it was tendered
in reply?

MR HIGGINS:	Yes, the evidence in rebuttal was objected to.
MASON CJ:	Can you point to the page where it was objected
to?  Do not take time now; perhaps your junior can
draw your attention to it.
MR HIGGINS:	Yes, I will no doubt be assisted by that in

a few moments.

The third point which the applicant, Blewitt,

makes, Your Honours, is that in all the circumstances

the verdict entered by the jury was unsafe and

unsatisfactory and lmounted to a miscarriage

of justice. That relies on the propositions that,

firstly, even if admitted, the identification

evidence could only have been consistent with gui 1 t if it had been corroborated. In other

words, that the evidence was so unsafe and

unsatisfactory in itself it could not have been

taken as evidence Oi guilt in itself.

A second strand of evidence called by the

Crown of flight and of so-called admissions was equivocal and would have been insufficient per se for a convict ion. The a 1 i bi evidence was, in

fact, strong and was not really challenged save

as to whether Norris was mistaken as to times

and that was not put to him but rather put by

C2T34/l/SDL	59	3/8/88
Blewitt

way of submission to the jury. Nor was it put, it

might be added, to the brother who received the

phone call that he was in error as to the tim~

e having particular reason for remembering it

because he was anxious to catch a train.

It is therefore submitted that it is likely,

or at least cannot be rejected as a likelihood,

that the jury was influenced to decide the accused's

guilt because of the belief that he had admitted

his guilt to his brother or a belief, and it

may be additionally to this a belief, that Norris

was in error as to the time at which the applicant

arrived at his premise engendered by the rebuttal

evidence. That question as to the test to be
applied in relation to what is a miscarriage of

justice is the same test, it is submitted, as

was referred to in WILDE V REG, recently decided

in this Court and referred to in 62 ALJR 100.

It is submitted as a result that the result of

the trial cannot stand.

(Continued on page 61)

C2T34/2/SDL	60	3/8/88
Blewitt

MR HIGGINS (continuing):  By way of conclusion, Your Honours,

I would simply say that the reasons for saying all

those matters give rise to a case for special leave

is firstly the inherent importance of clarifying

the identification question, what is the standard

to be applied by a trial judge to evidence of

identification, particularly where it is challenged,

where there are grounds for asserting that it does

suffer from the sort of criticism3that are referred

to in the Loretta Re article, and if it is to be

admitted, what are the proper directions to be given

and what is the standard to be applied in relation

to that direction.

There is also the necessity to give an

interpretation to section 405A of the CRIMES ACT 1900,

in other words, is the Court of Criminal Appeal

correct in saying that it, in effect, does away with,

that it abrogates the rule in KILLICK's case, or is

Watson and Purnell correct in assuming, as their

entry seems to, that it does not contradict KILL+CK's

case at all. There is thirdly the question of the

use to be made of prior inconsistent statements,
particularly where the evidence merely tends to

destroy the credit of the witness and not otherwise

produce admissible evidence and the standard to be

applied in relation to prejudice which arises to an

accused person as a result where that statement is

not only contradictory of a witness, but also unfairly,

improperly - if one can use that term non-pejoratively -

prejudicial of an accused, and finally there is the
question which we do press in this case, which is

the necessity to do justice where a fair chance of

acquittal has apparently been denied, particularly

'Where the result to the applicant in this case are

so devastatingly serious as to require him to spend
13 years imprisonment.

If it be for a crime of which he was not properly

convicted, then that would be a matter which would
give rise to a requirement that justice be done,

even in the individual case, even if the other

reasons were not important enough to require special
leave.	Your Honours, the reference in the appeal

book to the objection being taken to the evidence in

rebuttal is referred to at page 385 of the appeal

book, but the page on which it was in fact taken does

not appear to have been reproduced. My learned

friend, Mr Blanch, has made available to us,

Your Honour, page 726 of the transcript in which that

objection is directly referred to. So perhaps if

that is made available copies can be made available to

Your Honours.

MASON CJ:  Yes, thank you.

MR HIGGINS:  Yes, those are the submissions. My junior

reminds me, Your Honour, as to whether I made it

C2T35/1/HS	61	3/8/88
Blewitt

clear that the brother who received the phone call

on the day of the robbery remembered the time because
that was the time at which he was knocking off work.

I do not know if I made express reference to that,

but I do so.

BRENNAN J:	What time was that, Mr Higgins.
MR HIGGINS:	At 4.30.
MA.SON CJ:	Thank you, Mr Higgins.
MR HIGGINS:	If the Court pleases.

(Continued on page 63)

C2T35/2/HS	62	3/8/88
Blewitt

MASON CJ:	Yes, Mr James.
MR JAMES:	May it please the Court, might I hand up the outline

of the argument on behalf of the applicant, Browne.

MASON CJ:	Yes.
MR JAMES:	And might I, whilst doing that, indicate to

Your Honours that there is a technical problem with

the appeal book and the pronouncement of the judgment

of the Court of Criminal Appeal in respect of the

applicant, Browne. This appears at page 884 of the

appeal book. The Court, as differently constituted

from the court which heard the appeal, pronounced its

judgment; in error that court dismissed Browne's appeal.

Subsequently that matter has been remedied by a

further pronouncement - and might I hand up, similarly,

nine copies of that further pronouncement.

MASON CJ:	Yes, thank you, Mr James. Yes.
MR JAMES:	Might I take Your Honours to section 7 of the

CRIMINAL APPEAL ACT. That section - and it can be

found in Wat.son and Purnell, Vol. I, Part B, 1517

in convenient form. Section 7 provides for special

cases and, in particular section 7(1) deals with

an affirmation of sentence or the passing of a

sentence in substitution where an appellant:

though .not properly convicted on some count

or part of the indictment, has been properly
convicted on some other count.

Subsection (2), which is the relevant section in respect of this application, deals with the position:

Where an appellant has been convicted of an

offence, and the jury could on the indictment

have found him guilty of some other offence.

Your Honours, no issue is raised in this present

application to suggest that it would not have been

technically open to the jury had it been properly

directed to have found an alternative verdict of

robbery.

(Continued on page 64)

C2T36/l/MB	63	3/8/88
Blewitt

MR JAMES (continuing):  However, the practicality of that and the

circumstances of the trial precluded such a thing and,

indeed, the trial judge, while referring to it in, I	think, two or three lines or it may have even been one
line in passing, referred to it as fanciful in the
circumstances of the case but we raise no technical issue
on that. And on the finding of the jury it appears to the court that the jury must have been satisfied of facts
which proved him guilty of that other offenc~ -

the court may, instead of allowing or

dismissing the appeal -

and to stop, Your Honours, that is why it was necessary

for the court to make the second pronouncement as well

as for the fact that the appeal had been dismissed or

it had hP.en suggested the appeal had been dismissed

when, in fact, without allowing or dismissing

the appeal the court ~ad substituted the

verdict -

substitute for the verdict fow1d by the jury

a verdict of guilty of that other offence, and

pass such sentence in substitution for the

sentence passed at the trials may be warranted

in law for that other offence, not being a

sentence of greater severity.

There is reference in subsection (3) to the "special

verdict" and the wrong conclusion arising from that

special verdict and subsection (4) where, on appeal,

it appears to the court that the offender was, at the

time of the offence, mentally ill and they substitute

the verdict appropriate to that condition. Your Honours,

if I might take Your Honours to section 8 which provides

for the new trial. Section 8 grants a power - a general

power to grant a new trial and it provides that:

the court may, either of its own motion, or on

the application of the appellant, order a new

trial in such manner as it thinks fit, if the

court considers that a miscarriage of justice has

occurred, and, that having regard to all the

circumstances, such miscarriage of justice can

be more adequately remedied by an order for a
new trial than by any other order which the

court is empowered to make.

Section 6, which is the fundamental section in

provisions of the Act which are, however, referred to

the scheme of the Act for dealing with appeals provides

for the "Determination of appeals in ordinary cases."

in section 6(2). Section 6(1) provides that:

C2T37/l/PLC	3/8/88
Blewitt
MR JAMES (continuing):

The court on any appeal under section 5(1)

against conviction shall allow the appeal

if it is of opinion that the verdict of the

jury should be set aside on the ground that

it is unreasonable, or cannot be supported,

having regard to the evidence -

that is the ground that this Court has identified

as the unsafe and unsatisfactory ground referred

to in CHAMBERLAIN, WHITEHORN and MORRIS -

or that the judgment of the court of trial
should be set aside on the ground of the

wrong decision of any question of law, or

that on any ground whatsoever there was a

miscarriage of justice, and in any other

case shall dismiss the appeal -

and the section goes on to enunciate what has been

referred to as the proviso granting a power to:

dismiss the appeal if it considers that no

substa~tial miscarriage of justice has actually

occurred.

Subsection (2) provides that:

under section 5(1) against conviction, quash

Subject to the special provisions of this

the conviction and direct a judgment and

verdict of acquittal to be entered.

And the allowing of the appeal is a condition

precedent, as it were, for embarking upon that

course. The course taken in the present case was

to substitute for a verdict of armed robbery with

wounding a verdict of robbery simpliciter in

circumstances where the entire contest in the case

had been on an issue of identification and as to

whether the applicant was, or was not, party to
the armed robbery with wounding. In addition there
had been the contest on the other charges of which
the applicant was acquitted - the serious charges

relating to the wounding - the malicious wounding

with intent and on which the co-accused were

convicted.

(Continued on page 66)

C2T38/l/AC	65	3/8/88
Blewitt

MR JAMES (continuing): Additionally, of course, there was the

larceny of the motor vehicle and that that could be

suoported on the basis that pursuant to section 154A

New- South Wales CRIMES ACT the applicant was deer.:ied to

be guilty of larrAny in that he travelled in a conveyance,

took and used a motor vehicle that had been stolen. That, again

turned on this identification question. The Court of

Criminal Appeal, when they came to examine the material,

came to examine it from the point of view of the trial

judge's lengthy disquisition on common purpose, because

it was by dint of the doctrine of common purpose as

applicable to an accessary before the fact that any

liability for wounding or arms or, indeed, we would

submit, in practice, any liability for what the trial

judge described as the foundational crime as well, arose

VH in this applicant.

The way in which the Court of Criminal Appeal

went about its task was to look at the way the trial

judge had summed up and the factual material then

to identify for itself what it saw as a flaw in the

totality of the evidence sufficient to enable a verdict

properly to be found against the accused and, having

containing such elements as "armed I and 11 wounding 11 ,	found that the evidence did not suriport a verdict
it affirmed the verdict in one of its elements, that being the element of robbery and substituted that
verdict for the jury's decision on the charge of armed
robbery with wounding.

It approached its task - and if I might take

Your Honours to page 899 of the appeal book. Having

reviewed the general factual material relating to

the co-accused, Blewitt - volume III, I should indicate

to Your Honours. I should indicate to Your Honours

that the volume III is, in effect - there is a slim

volume applicable to the applicant, Browne, and that

carries on material from the volumes of the applicant,

Blewitt.

DAWSON J:  And the page is?

MR JAMES: It is numbered as page 899. (Continued on page 67)

C2T39/l/ND	66	3/8/88
Blewitt

DAWSON J:	Thank you.
MR JAMES:	Your Honours, the Court of Criminal Appeal reviewed
the question of the safety of the verdict by considering the material in the case generally going to
identification and, in particular, the identification
of Blewitt by those witnesses who identified him
and then turned, at page 899 - which was page 15
of the Court of Criminal Appeal's judgment - to a general conclusion relating to identification evidence and that was:

It is our view that on the whole of the evidence (and notwithstanding the somewhat

inconsistent descriptions of persons who

witnessed the robbery) the conclusion was

overwhelming that the man whom Inspector

McIntosh identified and the man whom Constables

Tolmie and Howitt identified in the Toyota

were two of the men involved in the Armaguard

van robbery.

This becomes relevant to the circumstances of case, Their Honours turned to the case concerning

Browne at page 919 and there the grounds of appeal filed on behalf of the appellant commence and

continue through to page 920.

The way in which Their Honours approached

that was to deal with the so-called "common purpose"

question and the identification questions as though

they were not inextricably interwoven and to deal

with them, as it were, separately and apart.

The grounds were drawn, specifically, on the basis

that His Honour the trial judge's directions to

the jury, which had commenced with a lengthy discussion

of what he saw as the two crucial issues in the

case - identification on the one hand and common
purpose on the other - so bore each upon the

other in circumstances where the only evidence

to link this particular applicant with any crime

at all was the same identification which would

link him with the activities of what was clearly

an armed robbery, that Their Honours erred in

that approach.

To divide out the identification question

the way they did was to set aside the fact, when

it came to examining the sufficiency of the
identification, that they were satisfied there

was an insufficiency of evidence to support the

association with the armed robbery from which
one could only contemplate the use of arms and

probable wounding.

67

C2T40/l/SDL 3/8/88

Blewitt
MR JAMES (continuing): That is why the grounds, in particular

ground 3 and ground 6, before the Court of Criminal Appeal were drawn in the fashion in which they were

and that is why there was complaint as to error in

the directions in ground 3 and the form of

His Honour's sunrrning up as diverting the jury from

the appropriate issues. The Court of Criminal Appeal,

when it came to deal with the matter, having

identified through from page 920 the Crown case
in general terms concerning Browreand particularly

in relation to the identification of Mr Smith, reviewed

for itself Mr Smith's evidence and credibility and

then turned to Constable Howitt and to Constable Tolmie.

And they again reviewed for themselves the material

available.

Correctly they observe,at page 927, line 25:

In the course of his sunrrning up the

learned trial Judge carefully and in much

detail dealt with the question of identification

and pointed out that, in the case of the

appellant Browne, the matter was central to the

Crown case.

And they dealt with the question of identification

and the general and specific directions that

His Honour had given. That was, however, not the

thrust of the complaints made in grounds 3 and 6.

The general criticisms are set out at pages 928

and onward and the submissions concerning the other

grounds of appeal. Their Honours, at page 932,

pass over the third and fifth grounds because they

have already dealt with a portion of ground 6
which concerns identification and they leave that.

(Continued on page 69)

C2T41/l/JM	68	3/8/88
Blewitt

MR JAMES (continuing):  But by then they had reached a view

as to the fate of the appeal and were of the view

that it was not necessary to deal separately with that

portion of ground 6 which is concerned with corrnnon

purpose. Their Honours had embarked on a sort of

notional dividing up of the grounds and they went

on to say:

We would here indicate only that in our

view, if the jury was satisfied beyond

reasonable doubt, as it was obviously,

that the appellant Browne was the driver

of the getaway vehicle and assisted in

the removal of the stolen money from the
Armaguard van in the fashion which

Mr Smith related, it would be entitled

to convict him of larceny of the motor
vehicle, especially in the light of the

provisions of section 154A(l)(d) of the

CRIMES ACT.

And, of course, if the jury was satisfied that Browne

was in that vehicle at that time and place, then the question arose as to the sufficiency of Browne being

identified·as a person in some respect involved - and
I use that wide and general word because that is how

His Honour put it in relation to the principal offence in the summing up when he came to deal

with common purpose - some respect involved in the

commission of the crime. It was argued, however,
on appeal that it was not inconsistent for Browne

to be guilty of an offence that could not have been
the subject of an alternative verdict and could not

have been the subject of the application of
section 7(2), and that is an accessary after the fact

to the armed robbery or to robbery.

It is pointed out when one examines the

submissions that were made in relation to the

identification and it is -

BRENNAN J:  Mr Jones, could I just interrupt you. I do not

follow that proposition about accessary after the

fact. Be it so thathemight have been able to be

able to be convicted on that evidence of being an

accessary after the fact - is that material, or is

it only material that the evidence was capable of

supporting and in the view the jury must have

supported, the view that he was an accessary before

the fac~

MR JAMES:  Your Honour, the accessary after the fact was not

mentioned to the jury.

BRENNAN J:	No.	Why should it have been?
C2T42/l/HS	69	3/8/88
Blewitt

MR JAMES:	In one view it should not have been.
BRENNAN J:	Yes.

MR JAMES:  They were left with various categories. Indeed,

His Honour did explain to the jury, principal in the first degree, second degree and accessary

before the fact and directed them properly in terms

of the law on cormnon purpose and, indeed, it came

down to the factual proposition in the case in

the way in which His Honour directed them that

if they were satisfied it was Browne in the car at

that time and place, then Browne was sufficiently

involved so that it did not matter, bearing in mind

the nature of the pleadings, for them to reach any

specific finding except guilty to the count

at least of armed robbery with wounding.

(Continued on page 71)

C2T42/2/HS	70	3/8/88
Blewitt

MR JAMES (continuing):  However, when it comes to the question

of a substitution and the Court of Criminal Appeal

having considered that that general verdict, at

least, was unsafe and unsatisfactory cannot be

supported by the evidence, then it does become

material to consider that the jury must have,

had they acted properly in the opinion of the

appellate court, rejected those very matters with

which the applicant had to have been identified

to establish the principal offence and the only

way to make sense, in our submission, out of that

was the proposition that he was not, in fact,

within any of those three categories of complicity.

He was proved beyond reasonable doubt, if one

has to put it that way, to be an accessary after

the fact but there was doubt as to whether he

was anything more.

I do note the time, Your Honour.

MASON CJ:	We will adjourn now, Mr James, and resume at 2.15.
MR JAMES:	May it please the Court.

AT 12.46 PM LUNCHEON ADJOURNMENT

C2T43/l/SDL	71	3/8/88
Blewitt
UPON RESUMING AT 2.19 PM:

MASON CJ:	Yes, Mr James.
MR JAMES:	Might I take the Court to page 935 of the appeal

book where the Court of Criminal Appeal at line 9

turned to consideration of those grounds and parts of grounds of appeal which were concerned in whole

or in part with common purpose. Your Honours, might

I simply, in order to remind Your Honours of the

relevance of this matter, indicate to Your Honours

that the grounds were ground l;

The convictions in the third and fifth counts were unsafe and unsatisfactory upon a consideration of the case as a whole and upon consideration of the matters raised

in grounds 2 to 7 below.

Ground 3, caught up by that general ground,

particularizing it, was that:

His Honour erred in his directions on common

purpose and joint enterprise, in particular

in the light of the indictment in that he

directed the jury in such a way as to leave

the commission of the crime as objectively
open in the common design, and for the very

crime alleged to be the common design, gave

directions as to the foundational and

incidental crimes and contemplation by the

agreement and the minds of the co-accused

such as to direct the jury from the true

issue and confuse them.

It appears wrongly printed in the judgment as "direct".

Then ground 6:

The form of His Honour's summing up

considered as a whole was such as to divert
the jury from a separate consideration of
the liability of appellant and such as to

confuse them on the issues of common purpose

and identification applicable to the various

counts. Their Honours turned to consider those grounds which

were concerned in whole or in part with common purpose

at page 935, and the submission is put:

because the only evidence against Browne

was the ..... identification as the driver of

the getaway vehicles, and because that vehicle

had not been used to take the two principal

offenders to the scene of the robbery, or for ..... carrying out the actual robbery, even if the evidence

of identification was such as the jury might properly accept, there was nonetheless no evidence upon Mtlch Browne could be convicted of an offence involving the use of arms.

C2T44/l/MB	n, ___ .:.., .....	72	3/8/88
MR JAMES (continuing):

Browrewas acquitted on the charges

of wounding with intent to murder and with

intent to do grievous bodily harm -

that is malicious wounding with intent to do grievous
bodily harm and, in passing, I should note that

the trial judge had also left to the jury as a

statutory alternative, or as a common law alternative -

it matters not - a charge of malicious wounding

simpliciter and he had been acquitted of that charge -

but he was convicted on the third count, laid

under s 98 of the CRIMES ACT, essential

ingredients of which were being armed with

offensive weapons and wounding -

Their Honours omit the reference to the robbery - Al though common sense might dictate otherwis.e,

we are of the opinion that the totality of
the evidence relied upon by the Crown against
the appellant Browne was not sufficient to

enable· the jury to determine beyond reasonable

doubt that he was a party to a common purpose

of armed robbery and accordingly his conviction

on that count must be set aside.

And Their Honours, we would submit, acted properly

there on a review of the totality of the material.

WILSON J: Just going back a few lines, Mr James. The end

of the previous paragraph:

s 98 of the CRIMES ACT, essential ingredients

of which were being armed with offensive

weapons and wounding.

Was wounding a part of the case?

MR JAMES:  Yes, Your Honour. The count that went to the

jury was a count of armed robbery with wounding.

WILSON J:  I see.

DAWSON J: That 1s a statutory count.

MR JAMES:  Yes, it is a statutory count and the element that

Their Honours there omit is the element, robbery.

In fact one way to look at the - - -

WILSON J:  But 98 includes robbery.

C2T45/1/AC	73	3/8/88
Blewitt
MR JAMES:	98 includes robbery, yes.	What Their Honours

were concerned to examine was whether or not a

case had been made out to support the
contemplation by this applicant of the use
of arms because if he had contemplated the use
of arms then it would seem to follow naturally,
though not necessarily in strict logic, that he

contemplated the use of those arms and thus he

would have contemplated the wounding.

They are, at this stage, examining only a

portion of the verdict restricting it to the arms-

related matters and leaving aside the question

of robbery.

(Continued on page 75)

C2T45/2/AC	74	3/8/88
Blewitt

MR JAMES (continuing):  And they go on:

Although common sense might dictate

otherwise, we are of the opinion that the

totality of the evidence relied upon by

the Crown against the appellant Browne

was not sufficient to enable the jury to

determine beyond reasonable doubt that he

was a party to a common purpose of armed

robbery and accordingly his conviction on

that count must be set aside.

Their Honours then go on to say:

We think it was plainly open to the jury
to conclude that the identification of

Browne as the driver of the getaway vehicle

by Mr Smith and by the two police

constables in the car was safe and accurate -

and they then add the words -

and that in consequence Browne did drive

such car. But the evidence would not

support a finding beyond reasonable doubt
that the common purpose to rob to which,

in such circumstances, Browne would plainly

have been a party, extended to the use of

weapons.

Now, Your Honours, this decision was handed

down by the Court of Criminal Appeal shortly

after the decision of this Court in MORRIS and

although we have given to the Court in our list
of authorities the reference to MORRIS in the

Australian Law Reports, I should indicate that

is reported in the Commonwealth Law Reports and

is to be found at (1987) 163 CLR 454. That

was a case in which the Court considered again

the tests laid down in WHITEHORN and CHAMBERLAIN

in their application by the Court in Queensland

and in particular the finding by that Court,

which I summarize in general terms, that it

was open to the jury to conclude guilt and

therefore the conviction was not unsafe and

unsatisfactory. The €ourt re-emphasized, and

that can be found particularly in the judgments

of Your Honour the Chief Justice and

Your Honour Mr Justice Dawson, that the task

embarked upon was a fact-reviewing exercise by the Court of Criminal Appeal and in that

regard it was not a matter of simply ascertaining
whether the evidence left the conclusion open to
the jury but the true question was whether or not

the jury should have come to the decision that it did.

In that case the Court of Criminal :Q'peal came

to the conclusion that there was an ins	· · ·t:.ency of
evidence to support the conclusion that	.plicant

C2T46/l/JM	75
Blewitt	(Continued on page 75A)

was sufficiently connected with arms to support the

verdict the jury had passed upon him and came to

the conclusion that it was open to the jury to

have accepted Mr Smith's and the police officers'

identification evidence. And from that conclusion

they moved to the statement:

and that in consequence Browne did drive

such car.

(continued on page 76)

C2T46/2/JM	75A	3/8/88
Blewitt

MR JAMES (continuing):  The finding is made clearer by

the succeeding passage:

But the evidence would not support a finding beyond reasonable doubt that the common

purpose to rob to which, in such circumstances,

Browne would plainly have been a party,

extended to the use of weapons.

And the way Their Honours came to that conclusion was by having first examined the identification evidence for themselves separate to the other

questions, by concluding that it was open to

the jury to be satisfied on the identification

aspect but by concluding that there was an

insufficiency of evidence considered separately

to link him with the arms.

Having reached that conclusion, Their Honours,

having examined the general propositions concerning
the common purpose doctrine, at page 937, turned'
to the provisions of section 7(2) of the CRIMINAL

APPEAL ACT in relation to the substitution of

a verdict for the verdict thus tainted.	The
which deal with alternative verdicts and, as	cases to which Their Honours refer are all cases these submissions, we are not quarrelling with
the technical proposition that such an alternative
verdict was open on the indictment.

Senior counsel's submissions in relation

to this matter, for the applicant, appear at

page 938, line 14, and I am afraid I am unable

to assist the Court for an inquiry as to whether
the Crown did raise at the appeal ex temporae
any submission that there should be substitution.

No such submission was made in the Crown's written submissions, nor have I been able to ascertain

what course it took, but it seems to appear as

though the Court gave an indication that it might

be prepared to take this course of its own notion.

It was opposed by counsel for the applicant

and the alternative remedies appear there set

out at lines 17 and onwards, that is, that if

it was not open to the jury to find his client party to a common purpose involving the use of

arms, either the conviction should be quashed

and no new trial ordered or, alternatively, there

should be a new trial and the Court should not

substitute a verdict of guilty of an offence

under section 94.

C2T47/l/ND	76	3/8/88
Blewitt

MR JAMES (continuing):  Your Honours, in our outline of

submissions we point out, in paragraph 2, that
section 6(1) directs the court to allow the appeal

in the event that the verdict is not supported

by the evidence, subject to the proviso. And

no question of the proviso arose in this case

at all nor, one would think, could it arise in

relation to a conviction based on an insufficiency

of evidence.

Section 6(2) is made subject to the special provisions. Section 6(1) is not. In the event

that the court were simply -

BRENNAN J: It does not mean that it is not in fact, though

as a matter of construction, I should say. Even

without the use of the words "subject to" as in

subsection (2), it does not follow that subsection ( 1)

is not to be read subject to section 7, does it?

MR JAMES:	Not from that alone, Your Honour, but it can be
seen that the scheme of those sections provides
very definite instruction to the court in terms
of allowing or dismissing an appeal and, indeed,
section 7 specifically provides that the court
"shall not allow or dismiss" and "shall substitute
a verdict" but, of course, on a mischief-type
construction, it would be patent that to substitute
a verdict for which there was no evidence before
the jury must conflict with the finding that the jury must have been satisfied of the facts
on which such a verdict is based.

If there has been a miscarriage of a procedural

nature in the case or if the jury has found a

verdict which was insupported by evidence,

in our submission, something has gone wrong;

something of such a serious nature that one

cannot say that the jury's finding is such that

the jury must have been satisfied for the purpose

of substituting a verdict. "Must have been satisfied" must, in our

submission, in section 7, be read in the context

of section 6(1) so that if one sees that there

is a miscarriage of justice in what has already

gone on, one cannot separate out some element

on which there has been contest and say, "We will

take part of the verdict", as though it were a

special verdict, "and we will take it that that

part is adequately satisfied but not another part".

C2T48/1/SDL 77 3/8/88

Blewitt (Continued on page 77A)

DAWSON J:  May I see if I understand you. You say if the

evidence was not sufficient to support the inference

that the accused was party to thearmed robbery, it

simply was not sufficient to support the inference that

he was party to the robbery at all, because the same

facts essentially would give rise to both of those

inferences.

MR JAMES:  Yes, Your Honour.

DAWSON J: And the lack of facts would produce the same result.

So that is what you are saying?

MR JAMES:  That is so, and what the Court of Criminal Appeal did,

by the separation of the analysis process, was to deal

with the elements separate and apart as though one could

be regarded as safe and one could not. This case was
fought from start to finish on the basis that he was not
party to the armed robbery with wounding that went on

and solely on that basis.

BRENNAN J:  Mr James, I must be missing something here. As I have

understood it, what the Court of Criminal Appeal did

was this .. They said, "Once you get to the stage of

finding that this man was the driver of the get-away

car, there is more than sufficient evidence to support

the view on the doctrine of common purpose that he is

guilty of a robbery, but not sufficient to find that he

is guilty of the robbery, being an armed robbery".

MR JAMES:  Certainly, Your Honour, but the problem here is the

only robbery we are concerned with is the one that did

occur, the armed robbery with wounding.

BRENNAN J:	But that is a robbery with a circumstance of aggravation.
MR JAMES:	It is a robbery, but in order to identify the "a robbery"

that he might well have been party to with "the one"

that happened the guns were the crucial element,

crucial in the sense that it is a robbery of an

Armaguard vehicle with armed guards. (Continued on page 7 8 )

C2T49/l/HS	77A	3/8/88
Blewitt

MR JAMES (continuing):  If it is that robbery he was party

to then as a practical proposition - and they

recognized this problem when they said, "although

common sense might dictate otherwise"-:- that is the

only, in the context of the evidence e.nd the way

the case was fought, , robbery one could - - -

DAWSON J:  It does not follow, does it? I mean, you can

say because there was a get-away car it must have
been getting away from something and in;the

circumstances the only inference is a robbery

and therefore it would support a finding of robbery

against the accused, but that is not to say that

he knew anything about the weapons or the fact

that they were to be used. The other accused may

have been out on a frolic of their own so far as

that is concerned so if. he was not connected with

that part of it, he certainly was connected with the

robbery. Why cannot you say that?

MR JAMES:	Because to do that you are taking the one verdict that was put to the jury and saying, "Well, you the
jury have found this portion of it although the evidence does not support that at all yet we can say that
your finding of the other is safe."
DAWSON J:	But the jury did find that there was a robbery

and that it was an armed robbery and that there was

a wounding?

MR JAMES:	Yes.
DAWSON J:	Well, what the court says is that they were justified

in coming to the first conclusion but not the others?

MR JAMES:  Yes. But, Your Honour, I am not suggesting that

the court could not adopt that form of analysis and

say as a conclusion to it they may well have been

justified in coming to the other conclusion "therefore

this is not a matter in which we will enter a complete

acquittal." I am saying, however, that what the

court has done is, in itself, to review the evidence,
find itself persuaded by the transcript that that
conclusion, unlike the jury's other conclusion, was

safe and on that basis to enter a verdict of robbery.

BRENNAN J:  Why is it not simply a case of the court saying,

"In order to return the verdict which they did against

this accused the jury must have been satisfied of
the following elements, namely, robbery, armed and

wounding. On the evidence which consists of the

driving of the get-away car there was more than
sufficient to support the finding of a common purpose

with respect to the first but not with respect to the

second and third. Therefore, with respect to the

second, 'and third the verdict cannot stand; with

respect to the first it does."

C2TS0/l/MB	78	3/8/88
Blewitt

MR JAMES:  I am with Your Honour right up until the last

statement. If one has part of the verdict as safe

then the appropriate remedy, in our submission,

is not to acquit him of that part the jury may

well have found properly, and not to convict him of
that part the jury may well have found properly
but to let a jury determine, on proper directions
and acting properly, whether or not he was party

to it.

BRENNAN J:	Why? Why go through it again?
MR JAMES:	Because we do not know if the last jury had, in fact,

reasoned in that fashion. We do know that what they

had done on the first element - in the case of this

offence the first and last element - was unsafe.

In that sense they acted improperly. Why should we

seek then to rescue from what may have occurred

to extract from the otherwise inscrutable processes

of reasoning by our own examination of the evidence?

DAWSON J:	It goes something like this, you say; well, they· were wrong in what they did with common purpose and once you have corrected that you do not know what
they would have done?

MR JAMES: Precisely.

DAWSON J:  They may have said, "Well, if that is the right

way to go about it, well, we just find that he was

nothing more than an accessary after the fact." That

is the argument. Why cannot the court nevertheless,

under the section, substitute its view?

(Continued on page 80)

CZTS0/2/MB	79	3/8/88
Blewitt

MR JAMES:  Because it is trying the matter then for itself

not on the findings that the jury must have made, in our submission, for the purposes of section 7 considered in the light of the other remedies

under section 6 and section 8. It is, in our

submission, the appropriate course for the Court
to take in those circumstances is on an examination
of the material is as we set out in paragraph 2 -
the court's finding denies the accused the benefit

of an acquittal of armed robbery with wounding

to which he was fully entitled if there had been

no evidence. Section 7 does not permit him to

be acquitted - - -

DAWSON J: This is the point: the court, under subsection (2),

is entitled to make its own inferences from the

primary facts, is it not?

MR JAMES:  Yes. I accept that, Your Honour.

DAWSON J: Well, the jury must have found that he drove th~-

get-away car.

MR JAMES:	I accept, Your Honour, that - - -
DAWSON J:	But why cannot the court infer from that, at least,

he was guilty of robbery?

MR JAMES:  Because the argument that I have already put,

and Your Honour has put more succinctly than I

have, that, in essence, the jury finding is tainted

by the miscarriage - a finding made without evidence

to support it. Now, one can say that the jury

acting improperly found all the elements of this offence but to prune away the dead wood requires

us to know a little more about what was going on

and, indeed, to take this course runs the very

great risk that the jury acted improperly throughout

and did so because of the way in which the summing

up posed the issue for them, which is: identification,

common purpose, some very short directions on armed

robbery with wounding and robbery. In fact, there

is almost - I think there is two or three lines

in terms of robbery and very little discussion

of acquittal; no discussion really at all except

in the general context of the common purpose aspect

and when one comes to link the general directions

through to the facts, His Honour simply recites

the evidence relating to identification.

It is the identification which supplies the

common purpose and the common purpose is what

occasions the problem for the Court of Criminal

Appeal. Your Honours, the remedies were manifold.

The court could simply have upheld the appeal,

C2T51/l/AC	80	3/8/88
Blewitt

allowed the appeal as to armed robbery with wounding

and entered an acquittal on that count. It was

then open to the Crown to retry the accused on

a charge of armed robbery, robbery or any lesser

offence and nor would the Crown have been precluded

from doing so though armed robbery would, one have

thought, necessarily have fallen - a robbery with

wounding would necessarily have fallen foul of

the reasoning of the Court of Criminal Appeal.

The court could have ordered a new trial

limited in such fashion as is appropriate under

section 8. It could have allowed a new trial for

robbery or it could have allowed a new trial for

armed robbery with wounding although that would

be a problem since it had held that there was an

insufficiency of evidence and it would seem any

attempt for a new trial on that ground would produce,

as it were, the sort of problem that came before

this Court in LESLIE MORRIS KING, a second attempt

to achieve that which the first trial had not

achieved.

(Continued on page 82)

C2T51/2/AC	81	3/8/88
Blewitt

MR JAMES (continuing):  But the course the Court took was,

having dealt with the identification and reviewed

it for itself, to take the view that that must have

been safe, and, Your Honours, with respect, it

does not follow that because part of the verdict

was unsafe, the balance can be relied upon and

can be relied upon simply because the Court for

itself reviews that evidence and reaches its own

opinion.

WILSON J:  You are not saying that it could not have done

consistently with section 7(2) what it did; you

are saying - your submission is that it should not?

MR JAMES:  It erred in its application of the section, that

is so. Now, Your Honours, we set out in the

written submissions what I have said in argument

before the Court, particularly in paragraphs 2, 3,

and 4. What we submit was that the Court identified

a miscarriage and when an identifiable miscarriage

has arisen because of an unsafe verdict arising

by virtue of an insufficiency of evidence on the

crucial elements as the case was fought - because

the case was fought on this question of involved or

not involved in the robbery - that to apply section 7

is a most dramatic step, particularly in the light

of the way in which section 7 itself sets out that

the Court shall neither dismiss or allow the appeal,

but shall substitute, and particularly in the light

of the requirement that the Court has to ascertain

those matters of which the jury must have been satisfied.

Now, Your Honours, section 7 - and we cite

REG V MILLER,(1951) VLR 346, a section that is

very, very rarely used and it is not used in the

case, for instance, of the setting aside of

inadmissible evidence which might have tainted

the verdict, and a reliance upon admissible evidence.

It is used in circumstances really where there are

technical defects of one nature or another in the trial or in the charge. Its greatest area of use

has been in the murder manslaughter cases in

which a trial judge has erred by failing to direct

properly on manslaughter and a verdict of murder

has been found. It is used in such cases where

an appellate court has found that as a matter of

law a particular offence is not available while

the other ingredients of that offence have not

been the subject of contest, such as where a
robbery was alleged to have taken place, but it

appears that the victim - the evidence not only

is insufficient, but establishes that the victim
is in a room separate and apart and as a matter of

law that is to be outside robbery.

That is the general area of use of this

provision and, in our submission, to apply it here,

even when you have senior counsel for the applicant

C2T52/l/JM	82	3/8/88
Blewitt

contending for, if necessary, a new trial, was to

take a course fraught with danger.

Your Honours, I have been unable to locate, either here or in England - though, of course, in the

United Kingdom the test for an unsafe - an

unsatisfactory verdict is entirely different - some

such application as would permit one to, as it were,

divide up the issues in the jury verdict, saving
portion of the verdict and sacrificing the balance

as unsafe so as to permit of this sort of substitution.

It is perhaps understandable because of the

recent line of authority, in particular, CHAMBERLAIN,

MORRIS and WHITEHORN, that my efforts have been

unsuccessful. But, we point out again in relation to

the one matter of which the court says they are

satisfied, that the way in which the court comes

to that conclusion is by holding that it was open

to the jury to be satisfied of that matter, not that

in their view the jury should have come to that

conclusion; not the independent factual review that

MORRIS requires. ·

(Continued on page 84)

C2T;~2/2/ JM	83	3/8/88
Blewitt

MR JAMES (continuing): And, really, we say no matter which

way one comes about it, that to take the course

the court has done in this case is to create

a precedent for the application of section 7

which poses great problems in the light of the

drafting-and Your Honour Mr Justice Brennan has

adverted to that, the construction of the three

provisions together, in the light of the court's

own decision that the verdict was unsafe and

unsatisfactory and, in this particular case,

in the light of the way the trial itself was
fought because the robbery issue was only fought
in the sense of that one letter, the identification
of the armed robbery that took place.

Your Honours, at page 938, the submissions

concerning identification were made or were examined
by the court and the submission was put that:

it would be unfair to the appellant to now

substitute a verdict of guilty of an

alternative offence. However, we are quite

satisfied that, apart from the question

of common purpose which we have resolved

in favour of the appellant Browne, the

convictions on the third and fifth counts

were otherwise in no way unsafe or

unsatisfactory.

And in our submission that is a course that is

not open to an appellate court so far sitting

under the common form CRIMINAL APPEAL ACT. It

is to take a course of, in effect, trying the

matter on the transcript in the sense that that

has been permitted to the civil courts since

WARREN V COOMBES. And yet it is to take that

course in the light of findings of fact which,

in our submission, are inseparable and tainted.

The court then proceeded to sentence the

applicant - - -

BRENNAN J:  Mr James, did you say there is something wrong

with allowing the fifth count conviction ·

to stand?

MR JAMES:	The larceny of the motor vehicle?
BRENNAN J:	Yes.
MR JAMES:	Yes, Your Honour, in this sense, that if - it

was his presence in the motor vehicle that was

said to be the identification with the armed

robbery. It was, in the context of this case, the

mere presence in the stolen motor vehicle which

constituted the larceny and, taking the two together,

C2T53/l/ND	84	3/8/88
Blewitt

it is the same armed robbe~y. The vehicle was

stolen on that morning, allegedly for use in

that armed robbery and, taking them all together,

in our submission, even that larceny must be

unsafe because that is dependent upon the same

factual stratum that is affected when one examines

the inadequacy of the jury's verdict.

BRENNAN J: That sounds to me like the thirteenth stroke

of a crazy clock, Mr James.

MR JAMES:  Could I put it to Your Honour this way: if

he was guilty of the stealing of the car, on

the evidence in this case, he must have been

in the armed robbery.

BRENNAN J:	He must have been in the robbery.
MR JAMES:	Must have been in the armed robbery.
BRENNAN J:	The robbery which took place.
MR JAMES:	The robbery which took place which was of an

Armaguard van with armed guards and the van

backed up into the - - -

BRENNAN J:  Non constat that he is liable as a party to

convictions for armed robbery in respect of that

which was an armed robbery.

MR JAMES: Certainly, to which we would say - - -

BRENNAN J: That is the problem -

MR JAMES:  - - - unsafe in that it was an armed robbery,

so clearly that the factual material does not

allow one to adopt the purely logical formulae

as a safe answer to the problem and, really,

I suppose, that is what I have been saying and

doing.

Your Honours, then came the question of

sentence. Sentence .in this case presented the

most unusual feature that it is rare enough to

have a substitution in this fashion and it is

even rarer to have a sentence imposed in this
context of the nature of the sentence that was

imposed in this case because Their Honours' reasons

in relation to the applicant can be found at

page 947 of the appeal book.

(Continued on page 86)

C2T53/2/ND	85	3/8/88
Blewitt

MR JAMES (continuing):  Your Honours can see that that appears

from about line 15 onwards - it is the formal

sentence - and at page 946, line 26:

Notwithstanding that that appellant is

to be dealt with in that way, he cannot

be dissociated from the serious criminality

involved in this robbery in a public street;

it was a robbery of an armoured guard

vehicle which he not merely hoped, but

expected would contain a large sum of money

as was in fuct the case. Notwithstanding

that his role was that of an accessory -

he had to drive the two robbers away in

"the get-away car" - the circumstances do
not point to matters which would require

other than a severe sentence of the nature

proposed by Grove J. I agree with the

sentence and non-parole period proposed by

his Honour.

.

Mr Justice Lee sets out the sentence at pages 15'to 25.

Mr Justice Grove delivered the judgment connnencing at

page 940 and he dealt with the applicant at page 944,

line 22 where he deals with:

The participation of Browne has already

been set out in our earlier judgment and

it is sufficient to note that he was a

driver of the Toyota vehicle previously

stolen (for which he has also been
convicted) and which was used as the
get-away car.

In my view it is accurate to regard this offence as falling within the higher range of

conduct which is encompassed by the offence

of robbery. It is appropriate that this

court sentence him afresh. Accordingly,

having set aside the sentence imposed by

the trial judge, in my view I should look

at the matter in the circumstances which

have been proven to the appropriate	degree ..... Namely that as a result of what
must have been careful planning the
vehicle to be used as a get-away car in appellant joined in the theft of a motor
a robbery expected to produce loot of some
$250,000.

He proposed a sentence of nine years penal servitude

and a non-parole period of five years to connnence

from the date that he went into custody with the

time served to count and confirmed the sentence in

relation to the stealing of the Toyota Corona.

C2T54/l/HS	86	3/8/88
Blewitt

Your Honours, that was as against a head sentence of some 14 years, a maximum head sentence of

some 14 years for that crime, and as against a

sentence passed upon him in respect of his guilt for

the armed robbery with wounding of some 12 years

head sentence with a six year non-parole period.

In effect, the armed element and the wounding element equalled approximately one year on the

non-parole period. Now, we mention that because

when it comes to the substitution of a verdict,

in our submission, firstly one has to look also

at the sentence in the light of the substitution

and the surrounding complex of facts.

(Continued on page 88)

C2T54/2/HS	87	3/8/88
Blewitt

MR JAMES (continuing):  But this is not a merely technical

sentence, or merely technical substitution either.

He has had a sentence passed upon him which does

reflect a seriousness of his role in the robbery yet his role appears to have solely been that of the driver of the get-away car. Now, Your Honours,

one could be forgiven for thinking that unexpressed,

but contained within that sentence, is a most
substantial element linking him with the very matters

of which the Court of Criminal Appeal had held that

he was not associated with. Although there is no

expressed matter there and although this is a special

leave application, in our submission the sentence

should be examined as part of the matters raised on

the special leave application. In addition, if
special leave is granted then we would seek to appeal
both against the conviction and, alternatively,

against the sentence.

We raise those matters set out at paragraph 7

in our written submissions as particular arguments·

why special leave should be granted. We submit that

in this case it is appropriate for the Court to
examine the applicability of section 7. Its use
has been res·orted to on a number of occasions but

otherwise it has until now, except in the murder/ manslaughter situation, been a comparatively rare

exercise and, in our submission, it is appropriate

for this Court to give guidance to the courts of

Australia as to when section 7 can be used in the

light of an unsafe verdict. Unless there are further
matters on which I can assist the Court, they are

the submissions for the applicant, Browne.

WILSON J:  Mr James, could I just see if I understand your

argument on the construction of section 6 and section 7?

MR JAMES:	Yes.
WILSON J:	I am unable, at the moment, to understand the point you make with respect to the absence from
section 6(1) of the prefatory phrase that appears
in 6(2) "Subject to the special provisions of this
Act", because if you go to section 7(2), for example,
that section includes the phrase, "instead of allowing
or dismissing the appeal". Surely that qualifies the exercise of the power in section 6(1)?
MR JAMES:	If section 7 were intended to apply generally to

all cases of miscarriage then that construction,

I would have to accept, Your Honour, has considerable

force. But the format of the Act appears to be

that the new trial, in section 8, is available to

cure miscarriage if a:

miscarriage ..... can be more adequately

remedied by an order ..... than by any other

order which the court is empowered to make.

C2TSS/l/MB	88	3/8/88
Blewitt

That the allowing of the appeal will lead, subject to

the applicability of those special sections, 7 and 8,

to an acquittal and that 7 is really only applicable

in a circumstance where no miscarriage would be

occasioned by the utilization of 7, and thus we say

the drafting, while on its face appearing somewhat

peculiar, is intended to indicate that 7 is not there

to enable an appellant court to decide a contest

that took place at trial on the transcript. It is

for correcting those matters that would not normally
be thought to go to a miscarriage except for some

technical reason.

MASON CJ:  Yes, thank you, Mr James. Mr Blanch, in the

application of Blewitt we want to hear you on
the second and third matters argued for the applicant,
that is, the use of the inconsistent statement and

the leading of the evidence in rebuttal.

MR BLANCH:  May it please the Court. I had up an outline ..

of the Crown's submissions which includes some

addressing of those points.

(Continued on page 90)

C2TSS/2/MB	89	3/8/88
Blewitt

MR BLANCH:  The part of those submissions that relates to the

evidence in reply appears at page 2 under number 3.

The part of that outline that relates to the prior inconsistent statement appears as part of the

unsafe and unsatisfactory ground.

If I might come to that last part first because

the question that obviously arise~ or arose during

the course of the submissions, was a factual one

that I think I can answer fairly quickly.

Mr A.D. Blewitt was called by the Crown for the

purpose of establishing that the night of the

robbery was the applicant, Blewitt's, birthday

and a party had been organized and he disappeared

that night and cancelled the party. The inference

the Crown sought to draw was that the robbery

had gone wrong to the extent that people had been

seen and the applicant saw that he needed to disappear

and the flight was used by the Crown as an indicator

of consciousness of guilt.

A.D. Blewitt was called for the purpose of establishing that his brother had rung him that

night, or ~hat evening, at about 6.30 I think,

for the purposes of saying that the party was

off and that he was going away or that he was

not going to be there.	There were, basically,
I think, three versions of that given.	There

was a version given in the statement - and this

is the statement that was signed by him - in which

he said:

At about 6.30 Terry rang me at home and said,

"I won't be able to make it, it's cancelled.

One of the boys has rolled the van with all the tools in it for the carports", and would

I ring Tony and Sean and tell them it had

been cancelled. Terry rang back again and
said, "I'm at Picton. I'll be working with

the carports".	He rang again at another
stage -

wanting him to go towards West Head. He gave

that version of the circumstances and then there

was a subsequent conversation, not on that night,

where the part that is complained about came out

where the applicant is said to have said: "I'm

in strife; I might have to get away to sort things

out. The least you know about it the better",

and the part of the passage that is complained about. When he gave evidence in the committal proceedings, the evidence that he gave in the

committal proceedings was a resiling from the

statement that he had made to the police and the

evidence that he gave in the committal proceedings

was that his brother, the applicant, had rung

that night and that he had said that the party

was cancelled and the explanation he gave was

that his brother was always cancelling parties.

C2T56/1/SDL	90	3/8/88
Blewitt

When he was called to give evidence he was

called to give evidence, once again, on the basis
of establishing that that evening, the evening

of the robbery, his brother had telephoned to

say that the party was cancelled and that his -

TOOHEY J:  Mr Blanch, could I just interrupt you. Up to that

point the two versions that you have spoken of,

is either to be found in the - - -

MR BLANCH:  No, Your Honour, I do not think so. I think

that this point was always, it appears, subsumed

into an unsafe and unsatisfactory ground rather

than ever being argued as a ground that the trial

judge erred in declaring a witness hostile or

in allowing the witness in. It was always part

of the unsafe and unsatisfactory aspect of it.

That is why, in the judgment of the Court of Criminal

Appeal, none of these facts are brought out.

..

(Continued on page 92)

C2T56/2/SDL	3/8/88
Blewitt

MR BLANCH (continuing): There is at the Court, and it is

MFI 26 - it may have been tendered on the voir dire,

Your Honour, but the original statement is in the

Court. The evidence that was given in the - - -

BRENNAN J: This was not before the jury?

MR BLANCH:  No, not before the jury, Your Honour, no. But,

Your Honour, as I understand the point that is

being raised now, it is going back to attacking

the actual declaration of the witness as hostile,

and the allowing of a cross-examination of the

witness as to the prior statement at all. The other

material came out was the examination on the

voir dire, and this is the material that appears at

page 173 of the appeal book and following.

But the effect of it was that in the lower court

he had said that his brother rang and cancelled

the party and he said, "Well, my brother is always.

cancelling parties" and it was left at that. When

he came to give evidence, and this is the evidence

that he gave at the very beginning, in just those

few pages be'fore he was declared hostile, he said,

at page 171 of the appeal book, at the very top

of the page:

Q .. Dti!.d he tell you why the evening was

cancelled? A.yes.

Q. What was the reason that he gave you?

A. He told me on the previous Tuesday night.

Q. I beg your pardon? A.What he had told me on the previous Tuesday night.

Q. What was the reason? A. That there were

people after him from the race track.

Now, the robbery was on a Friday. What he is saying

there is that his brother had on the Tuesday before

the robbery told him that there were people after

him from the race-track,therefore he was in some

fear and needing to take flight, and that when he

rang up on the night of the robbery it was just

harking back to that explanation that had been

given. Now, the attitude of the Crown at the trial

was: here is the witness; he has gone back now

completely on the evidence not only on the statement
that he made in the first place, but he has gone

back on the evidence that he ·gave in the lower court; he has now-

invented, or is now inventing, another reason for

the flight and a reason that was picked up and given

by his brother when the applicant made his statement

before the court. So that it was in fact an introduction

by the witness in the course of his evidence in-chief

of a completely different dimension.

C2T57/l/JM	92	3/8/88
Blewitt

BRENNAN J:	So it was to reject that part on 171, line 5?
MR BLANCH:	Yes, Your Honour. Without going through all

the detail of it because the Court of Criminal

Appeal has canvassed it in the judgment, the

evidence of flight was a key part of the Crown

case against Blewitt. The Court of Criminal

Appeal identified it as one of the four pillars

upon which the Crown case was built and the

Court will recall that Blewitt was subsequently

discovered in a motel room under a false name,

and there was some statement made to the police
that the Crown alleged was an admission to

participation in the offence.

So that was all a key part of the Crown Your Honour Justice Dawson said, simply as an case. A. D. Blewitt was not called, as

Aunt Sally; he was called for the purpose of

establishing a significantna.tter as far

as the Crown was concerned. His change in evidente

about that was the justification for having him

declared hostile.

(Continued on page 94)

C2T57/2/JM	93	3/8/88
Blewitt

DAWSON J:  But in any event, the Crown would have been

entitled to try and get him to admit, in cross-

examination, that in fact the submission had

been made.

MR BLANCH:  Yes, we would certainly submit so, Your Honour,

but without even having to go that far in our submissions it was an entirely separate issue

that was involved and, of course, the statement

that was made originally was of course what the Crown was alleging precisely was the reason for him cancelling his birthday party on the night

of the robbery and ringing up and then doing

so. Something very urgent came up to cause the

cancellation and what came up was not a truck

rolling over or was not just because he would

like cancelling arrangements that he had made.

It came up because something urgent had come
up and he needed to cancel his birthday party

because he needed to disappear from sight which

is exactly what he did. And the changes in versions

given by A.U Blewitt were of real significance

so far as that point was concerned.

Unless the Court wishes to hear from me as to the legal aspects of that, that is the

factual explanation which is the problem.

TOOHEY J:	What do you say about the way in which the trial
judge directed the jury in regard to that material,
Mr Blanch?
MR BLANCH:	Your Honour, in our submission, the direction

was adequate. There were two directions that

were given. There was the direction given

immediately after the evidence came out; there

was the direction that was given in the summing

up. The statement of the law - I think the classic

statement of the law is that this is a statement

by the former Chief Justice in DRISCOLL's case

which I have referred to in my submissions and	I will not go to the case but the reference is	(1977) 137 CLR 517, and the passage in question
is at page 536.

MASON CJ:  I did not think that a serious attack was made

on the sufficiency of the direction except by

way of a by-blow when it was said it was not

quite in such absolute terms as one might have

expected.

C2T58/ 1 /ND	94	3/8/88
Blewitt
MR BLANCH:	Yes, Your Honour.	Yes, that is as I understood

it, Your Honour, yes, and in our submission, the

direction that was given was proper and adequate to

cope with the circumstances of the case, given at

both places that it ought to have been given

innnediately the evidence came out in front of the

jury, and subsequently in the surrnning up to emphasize

it. It is our submission that there is nothing in

that ground of appeal for those reasons.

As to the other matter, the evidence in reply point, in our submission it is a simple matter of

statutory interpretation of section 405A(4). I have

referred the Court to the decision of the Court of

Criminal Appeal in New South Wales in VISSER. In our

submission that is correct, and the effect of that

is that the Crown is entitled to lead evidence in

reply in such cases. There is always the

discretion of the trial judge to monitor that. It is

a discretion that the trial judge should exercise and a discretion that the Court of Criminal Appeal shpuld

review and the Court of Criminal Appeal did review

that at page 773 - it is in my outline of

submissions - but at page 773 the Court of Criminal

Appeal accepted the responsibility to have a look

at the question as to whether a miscarriage of

justice had occurred and in pursuing that they

covered all the matters that I would wish to canvass

in the course of making submissions on that point.

(Continued on page 96)

C2T59/l/HS	95	3/8/88
Blewitt

MR BLANCH (continuing): It is not exactly clear but the

evidence as to the running was of significance only in the sense that Mr Norris' evidence, if

believe4 would clearly rule out the possibility

of this applicant having committed the offence

because Mr Norris was perfectly clear that he

arrived shortly after 4 and was there right up

until 5. He detailed telephone calls that were

made at about 4.30; he detailed drinking between

4.30 and 5. If Mr Norris were accepted as honest

and accurate then the applicant would have been

acquitted by the jury if a doubt had been raised

arising out of that.

The evidence calle4 in one sense, did very

little more than settle a puzzle that might have

arisen in the minds of any jurors who were not

familiar with the locality. One cannot imagine

that anyone living in Sydney would not know that

Manly and Brookvale were next door to one another.

The geographical situations are obviously close ·

enough for it to have been fairly easy for one

person to get from one place to another. It is

a situation where - I think the proposition was

put from the Bench - it is either a situation where

the evidence had no real significance whatsoever
in which case it was hardly relevant and could

not possibly have caused any prejudice or it was

a matter that was properly put before the jury

in reply to the alibi evidence. It appears to

have been treated largely on the basis of just

clarifying a matter that had been left unclarified,

to an exten~ bearing in mind there was never any

question about the athletic ability of the applicant

and the fact that he was running on the particular

night.

In our submission, there is no question about

the operation of section 405A(4). It is a matter
that will always have to be reviewed as to

unfairness or miscarriage but the Court of Criminal (Continued on page 97)

Appeal accepted the task of doing that.

C2T60/l/AC	96	3/8/88
Blewitt

MR BLANCH (continuing):  I might just make the observation

in so far as that is concerned that the Court of

Criminal Appeal generally understood that their

functions were to review the evidence independently.

They quoted MORRIS' case and, in our submission, they certainly proceeded to undertake a careful

consideration of the evidence as to both applicants.

Their statement of their understanding of the principle

appears at page 756 of the appeal book. I do not

wish to add to that, unless the Court wishes to hear

from me as to the matter.

MASON CJ:  Yes. Thank you, Mr Blanch. Now, as to the

application of Browne, what do you say as to that?

MR BLANCH:  Your Honour, in our submission, the situation

so far as Browne is concerned is very straightforward.

He was charged with armed robbery with wounding.
The jury acquitted him of the wounding and convicted
him of armed robbery - my friend corrects me on that,

Your Honour.

MASON CJ:  Do you have an outline in this application?

MR BLANCH:  I am sorry, Your Honour, yes I do. However, the

outline in this matter was directed at the point that

I thought my friend was to raise, and that was the

point of substitution and whether the verdict for

robbery was allowable as an alternative verdict on

a charge of armed robbery with wounding.

MASON CJ:  You seem to have evolved a very streamlined version

of an outline of argument, if I may say so, Mr Blanch.

MR BLANCH:  Your Honour, in this particular case it appeared

that there was only one point to be answered, and the

only way to answer that is in streamline fashion.

The point that he has raised is as to the interpretation

of section 6 and section 7(2) of the CRIMINAL APPEAL ACT.

I do not know that I can make any worthwhile

submissions as to that. The sections speak for

themselves. It is perfectly plain from the terms

of the section that the legislature contemplated a

power in the court to substitute a verdict for an

offence that was open to the jury to convict of at the trial.

(Continued on page 98)

C2T61/l/HS	97	3/8/88
Blewitt

MR BLANCH (continuing):  Mr friend concedes the point that

could have returned a verdict of guilty of robbery.	I thought was to be argued and that is that the jury
It is patently obvious during the course of the
trial that the jury accepted that the applicant was
guilty of robbery. The statement of the Court of
Criminal Appeal that - - -

DAWSON J: Is that right? You see, the argument that is put

against you is that the jury were wrong in what they

found aboqt concert in relation to armed robbery and

wounding. Why then, if they had considered the

matter and come in with robbery, why would they not

have been equally wrong? Why cannot you conclude

that if they had been corrected they may only have

come in with a verdict of guilty of being an accessary

after the fact?

MR BLANCH:  Well, Your Honour, because the two offences to

be considered are robbery and armed robbery with

wounding, the jury being satisfied of armed robbery

with wounding - - -

DAWSON J:	But on a wrong basis?
MR BLANCH:	Well, Your Honour, they were satisfied on that

basis of a robbery, being armed - - -

DAWSON J:  Might that not also have been on the same wrong

basis?

MR BLANCH:  No, Your Honour, in our submission, it is

inconceivable that that could be so. The jury were

clearly satisfied that there was a robbery. They

were clearly satisfied that on the basis of the

directions given and the evidence

available that this applicant knew the persons were

to be armed.

DAWSON J:	I find it difficult_ when you put it that way. I can understand if you say, "Well, they are clearly
satisfied that he was the person in the get-away car."

MR BLANCH:	Yes, Your Honour.
DAWSON J:	The inference then from that, and it is an inference

which the Court is entitled to draw, is that he was

involved in the robbery and it seems to me that

that might be possible under the section, but you

do have to put it that way, do you not?

C2T62/l/MB	98	3/8/88
Blewitt

MR BLANCH:  Your Honour, I would seek to put it both ways

because the evidence in the case as Your Honour

knows is that the get-away car was down the street

and came and backed up to where the armoured car

was and the bags were thro~n out of the armoured

car and into this get-away car that is driven by this applicant on the finding of the jury.

It is clear, in our submission, that the jury,

on the directions that were given, were satisfied

that the applicant, Browne, knew or was party

to the robbery.

The fact that a jury found that he was party

to an armed robbery is, in many ways, inescapable

and the statement of the Court of Criminal Appeal

that common sensemight indicate otherwise is

an understatement of the situation there to some

extent because it is inconceivable in many ways

that a robbery on an armoured car with arm~d guards

could have been conceived without there being	..
a common purpose to commit an armed robbery.
However, the Court of Criminal Appeal leant over
backwards to give every benefit to the applicant
and in doirig so quashed the conviction that
was there and substituted the verdict for the other offence.

But I would seek to put it on both bases,

Your Honour. I would seek to put it firstly

on the basis that Your Honours says that the
evidence was there on an analysis of the evidence

by the Court of Criminal Appeal, the evidence

was clear and the acceptance by the jury of the fact

that he was the driver of the get-away car clearly

allowed the court to substitute a verdict. I

would also submit, Your Honour, that on the totality

of the evidence, the thing that troubled the

Court of Criminal Appeal was the vague possibility,

perhaps, that there was never within the contemplation

of Browne the possibility of the use of arms

an extremely remote possibility but the Court	in the robbery. That, in our submission, is
of Criminal Appeal was prepared to give the benefit of it to Browne and hence the decision of the
court.

In our submission it is clear that the jury

was satisfied of the robbery and it is just the

aggravating factor of the armed part of it but,

in any event, the Court of Criminal Appeal was

certainly in a position to substitute a verdict

on that basis.

C2T63/l/ND	99	3/8/88
Blewitt

MR BLANCH (continuing):  The other matter that was raised by

my friend as to that is the fact that he says that section 7(2) is rarely used. If that be

the case then perhaps the situation should be

that it is used more in a jurisdiction with

four and a half thousand trials outstanding, it

seems somewhat pointless in a situation where

the evidence is clear to require a retrial in
a case on a charge such as that. Section 7(2)
was put there for the very purpose of facilitating

the administration of justice and precisely for

a case such as this.

It may be that it is very often used in appeals

in murder convictions to substitute verdicts of
manslaughter but there is certainly no reason

at all why it cannot be used and certainly the

robbery offences are a series of offences that

are most appropriate because they are basically

offences with one foundation or crime with a series	, ,
of aggravating factors.

BRENNAN J:  In other words, section 7 can be used whenever

there is the question of the mental element of
the accused and if the court is not satisfied

that the full degree of mental culpability charged

has been established but some lesser degree has

been established, then it can be used?

MR BLANCH:  Yes. And that is exactly what happens, of course,

in murder cases where provocation, et cetera,

and various factors that reduce murder to manslaughter

cause the court to substitute verdicts.

The only other comment that I would make

as to the appeal of Browne are the submissions

made by my learned friend as to the way the Court

of Criminal Appeal went about its business.

(Continued on page 101)

C2T64/1/SDL	100	3/8/88
Blewitt

MR BLANCH (continuing):  I have already referred the Court

to the passage in the appeal books in BLEWITT

where the Court of Criminal Appeal clearly stated

that they understood what their function was

arising from the decision of this Court in MORRIS.

In Browne's appeal book that passage appears at

page 902 and the analysis by the Court of Criminal

Appeal of the evidence in Browne begins at page 920,

but once again the Court of Criminal Appeal carefully

went through all of the evidence, analysed it and quite

clearly they fulfilled the functions given to them
under the Act and as explained by this Court in

MORRIS and, in our submission, they did it

correctly and the conclusion was correct.

I do not wish to say anything more about that matter, unless the Court wishes to hear from me further.

MASON CJ:	Yes, Mr Blanch, thank you. Yes, Mr Higgins.
MR HIGGINS:	If the Court pleases, referring to the two matters

which the Court requested my learned friend, Mr Blanch,

to address upon, and taking first the question of

prior inconsistent statement, the explanation given

for the calling of the witness A.D. Blewitt is not

really in contention, save this, that the passages

which refer to the evidence which he in fact was

called to give and in fact gave concerning the
statement which had been made to him by the accused
on the evening of the robbery, namely the explanation

for, the reason why the party was cancelled, that

appears firstly at page 170 to page 171, volume I of

the appeal book and it is perhaps necessary to take

Your Honours, seeing as it has been referred to, to

what the text of that statement was. The witness

said at the answer to the last question on the page:

He just told me -

meaning the accused

that the night would be cancelled and to

ring up Tony and Sean to tell them that

it had been cancelled and he also just
asked me to make up an excuse as to why

the night would be cancelled and Terry

just said -

"just said to anything" - I think that should be "just say anything" instead of

just said to anything, something to do

with carports or anything like that.

He was then asked again to repeat it and he said:

He just said to make up an excuse.

C2T65/l/HS	101	3/8/88
Blewitt

Did he tell you why the evening was cancelled? A. Yes.

What was the reason that he gave
you? A. He told me on the previous

Tuesday night.

What he had told me on the previous

Tuesday night -

was the next answer -

What was the reason? A. That there were

people after him from the race track.

That is what he told you on the phone

is it? A. He told me that on the previous

Tuesday night -

and indicating that is to say, presumably, that there

were people after him from the race track. Now,'

if that was the evidence the Crown had led from the witness it had already established that the accused had rung up and cancelled his birthday party for

that day. It had been already established that the

accused had suggested an excuse should be made up

by the brother - something to do with carports, or

the like, as the witness says - to cross-examine him

to get that more precise would not have imported any

necessity to put to the witness that he had also

made a statement to the police - he the witness, not

the accused - that the accused had told him something

else, something more incriminating than that equivocal

statement.

(Continued on page 103)

C2T65/2/HS	102	3/8/88
Blewitt

BRENNAN J: There are a few propositions there, are there

not? One is what the brother should tell the

other guests at the dinner, and that was to be

made up.

MR HIGGINS:	Yes.
BRENNAN J:	The second was what the real reason was and

the brother here volunteers that the real reason

was because the people were after him from the

race-track.

MR HIGGINS: 

Yes, that he was aware of that from a conversation

the previous Tuesday. That is what the brother
volunteers.

BRENNAN J: Yes, well, having volunteered that, why was

not the Crown entitled to show that there was

a previous inconsistent statement?

MR HIGGINS:  As to that aspect of it?

BRENNAN J: Yes.

MR HIGGINS: If the Crown was entitled to do that, the

Crown could do it. But that is not what we are complaining about.

BRENNAN J: Is it not?

MR HIGGINS:  No, we are complaining about the fact that the Crown

has led evidence on a separate, and different

and subsequent occasion. And this is the point

I am trying to make clear, that it was not this

occasion upon which the "I was involved at Dee Why"

was said. It is a later occasion; a totally

separate conversation, having nothing whatsoever

to do with this. That is the point that we make.

BRENNAN J: Yes.

MR HIGGINS:  What I am endeavouring to do there is to

show Your Honours where those passages appear

so that can clearly appear. When he is then

cross-examined about the conversation on the Friday,

he is cross-examined about that only at pages 182 to 184.

The statement that is put to him is that Terry, the applicant, had said to him:

"I won't be able to make it. It's

cancelled"

He was then asked, third last question:

Then it goes on, quoting what Terry tells you -

this is the statement presumably -

C2T66/l/JM	103	3/8/88
Blewitt

"One of the boys has rolled the van

with all the tools in it for the carports"?

A.nd then -

"It's cancelled," -

et, cetera. He is then asked to agree that that is

what Terry in fact told him and he disagrees with

that. He is asked on the next page:

Did you tell the police that he told you

that?

And he says:

All Terry said to me was the dinner was

cancelled. "Can you ring the boys and

explain to the boys, give them an excuse."

He said something to do with the carports

and what the excuse was, what I said I recall
saying months ago before any of this went on
about something happened with the work van

so and ·I said here that was, it was not Terry's

exact words. That was my exact words.

So, he is in effect saying that he told the police
about an excuse, but he says that was the excuse

he gave, not necessarily the excuse he was asked

to give, even though something about the carports

may have been said.

Now, as to the warning that the trial judge gave, it may have been taken that there was a

by-blow, that :there was a criticism of the strength

of the direction. That was not intended. It was

simply that it was indicated that there was no need

to read out the direction and consequently that

was not done. But it is complained that the

direction did not unequivocably say that the

statement, "I was involved at Dee Why" was not

evidentiary. So far as the case against the accused Blewitt

.W'!!lr-concerned, it could not be used in any way.

In fact, what the trial judge had said, at page 203 of the a·.ppeal book, immediately after the witness

gave evidence, in terms of what he describes as

an"express direction"is:

I do, however, give you this express

direction that when a witness is shown, if
a jury does find that to be a fact - and

it is entirely a matter for you - is shown

to have made a previous statement inconsistent

with evidence which he or she gives, then

that previous statement does not constitute

evidence upon which you can act.

But he then went on to say:

C2T66/2/JM	104	3/8/88
Blewitt

MR HIGGINS (continuing):

It depends very much upon what some of your

findings are concerning the witness, but in

some occasions, depending upon those findings,

if you are of the view that a witness has

made prior statements in conflict with his

evidence - if that was your view - then really

the direction I give you is that his evidence

is negligible and that you should find your

verdict on the rest of the evidence and put

that evidence aside altogether.

So there is a bit of confusion there and that

confusion is not clarified at page 538 where

His Honour returns to the question of what is the

effect to be given to the evidence "I was involved

at Dee Why" and where His Honour at page 538,

line 13, having referred back to his direction -

his granting of leave to the Crown:

I did give you the express direction that

when P witness is shown, if a jury does find

that to be fact and it is entirely a matter

for you, to have made a previous statement

inconsistent with evidence which he or she

gives then that previous statement does not

constitute evidence upon which you can act.

It depends very much upon what some of your

findings are concerning the witness but on

some occasions, depending upon those findings,

if you are of the view that a witness has

made prior statements in conflict with his

evidence, if that was your view, then really

the effect, you may feel, is that his evidence

is negligible and you find your verdict on

the rest of the evidence and put that aside

altogether. That is entirely a matter for

you as to how you treat the evidence of that

witness and Mr Luland, on behalf of his client,

would rely upon that part of the evidence

that I have read to you.

MASON CJ:  Now, remind me again. No redirection was sought

on that matter at either stage?

MR HIGGINS:  No. Your Honours, that is all I wish to put

in reply as to that except to emphasize the prejudicial

character of the statement. As to the question

of evidence in reply. There is an issue about

the interpretation of section 405A and that, with

respect, has not been clarified by my learned friend's

submissions. It appears that the Court of Appeal,

page 773 of volume II~ did expressly rely on it - and the citation from VISSER's case makes

C2T67/l/AC	105	3/8/88
Blewitt

it quite clear that the Court of Criminal Appeal

regarded section 405A as displacing the common

law rule enunciated by this Court and leaving it

open to the Crown in reliance upon that subsectionto

give evidence to disprove an alibi. Now, what that,

of course, implies is that neither the trial judge,

nor the Court of Criminal Appeal, reviewed the

exercise of the discretion, if there be one, to

allow the evidence in rebuttal, assuming it to

be such, on the correct basis. If they did not

do that they can hardly be said to have exercised

the discretion properly. Indeed, it seems to have
been regarded as no discretion at all save the

usual discretion to eliminate evidence which might

be unfairly prejudicial instead of the more onerous

discretion required by the decisions of this Court,

particularly in CHIN and KILLICK.

Your Honours, those were the only two matters that I had to raise in reply, unless there were ..

any other matters that the Court would wish me

to raise. If the Court pleases.

MASON CJ:	Thank you~ Mr Higgins. Yes, Mr James.
MR JAMES:	Very shortly, Your Honours, in reply to two matters

only:  as to the argument that section 7(2)

allows the court to reach its own findings, in
our submission, the section does not go that far.

One has to have the finding of the jury and facts of which the jury must have been satisfied which

proved him guilty of that other offence. And,

in that regard, our submission is as set out in

the written submissions in reply to what my friend

said that section 7 requires the facts of which

the jury must have been satisfied to have been

found by the jury acting properly in the light

of the way the trial was fought.

As Your Honour Mr Justice Dawson pointed out

1n WHITEHORN a trial is not simply the ascertainment

on the facts of what available charges there are or

ona question of truth, it is fought in an adversarial

sense.

(Continued on page 107)

C2T67/2/AC	106	3/8/88
Blewitt

MR JAMES (continuing):  The substitution power, it being used

as a sort of power of general review from the transcript,

which is almost as far as my friend went in his

argument, is to permit a trial by a Court of Criminal

Appeal rather than trial by a jury. Your Honours,

as to the argument that was put that the court was
cognizant of MORRIS, and applied it, we draw the

Court's attention to what appears in our written

submissions at paragraph 4, in particular in the

appeal book page 936 where the court held that

the identification was open and, in consequence,

Browne did drive the car. That is, in our submission,

precisely the error that the Court of Criminal Appeal fell into in Queensland when it declined to intervene

in MORRIS' case and which caused this Court to grant

special leave since that case was concerned about

the role of a criminal appeal court in embarking on

its fact finding function in pursuance of an unsafe

and unsatisfactory verdict of this kind.

In our submission, although the court certainiy

did refer to MORRIS, it certainly did not, in that

one essential respect, which is the most essential

respect for this applicant, apply it.	They are the
submissions we would make in-reply.

MASON CJ:  Thank you, Mr James. The Court will consider its

decision in these two applications.

AT 3.41 PM TEE COURT ADJOURNED SINE DIE

C2T68/l/MB	107	3/8/88
Blewitt