Conway v The Queen

[2001] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Registry
  No C11 of 2001

B e t w e e n -

JOHN TERENCE CONWAY

Appellant

and

THE QUEEN

Respondent

GAUDRON ACJ
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 OCTOBER 2001, AT 10.18 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   If the Court pleases, I appear with my learned friend, MR J. PAPPAS, for the appellant.  (instructed by pappas j. ‑ attorney)

MR P.S. HASTINGS, QC:   If the Court pleases, I appear with my learned friends, MR S.J. ODGERS, SC and MS P.J. de VEAU, for the respondent.  (instructed by the Director of Public Prosecutions (ACT))

GAUDRON ACJ:   Yes, Mr Tilmouth.

MR TILMOUTH:   If the Court pleases, if I could commence my submissions and deal briefly if I may with the facts and, if the Court pleases, in our submission it is quite important to appreciate at the start that there was very little direct evidence against the appellant, Conway ‑ ‑ ‑

KIRBY J:   I am not entirely clear what the theory of the case that your client ultimately propounded was.  There was a question which apparently suggested that Ms McFie was the sole actor in instigating the murder, but was that ultimately your client’s case, can I ask you that?

MR TILMOUTH:   It was partly that, your Honour.  First of all, it was not involvement and, secondly, it was, if McFie was involved, it was a frolic of her own, if I can put it that way.  It is certainly true that at one point counsel for the appellant did cross-examine McFie to suggest that and that led to what was called in the courts below but not pursued here, the judge’s intervention, but there is no doubt that one aspect of his defence was that it was a frolic of his own, if I can put it that way, in which he was not involved at all.  The prime part of his case was simply a denial of the relevant events and, if the Court pleases, in my submission, there was very little against him, at least directly, in the matter.

Could I summarise it, if I may, in this way first generally and then a little bit more specifically.  The Crown case relied heavily, as the Crown Prosecutor acknowledged in his address to the jury and was clear on the evidence of Williams and Steer, in sum, your Honours, Williams gave evidence of the killing of course but, in the events leading up to it, he gave evidence about a conversation or conversations involving McFie and Conway - and I will identify these briefly in the papers in a moment – that he wanted his wife “knocked”, was the word used, that he needed it done soon and that there would be a payment of $15,000 and it was to look as if it was a heroin overdose.

As regards Williams, they were the main events which were alleged against him in relation to the matter.  If the Court pleases, it was not clear whether those conversations were one or two or perhaps three occasions.  Without going into the detail, there was a lot of evidence and a lot of contradictions as between initial statements to the police, a later statement upon which they agreed to plead guilty and give evidence against the appellant and McFie and so on but, in the passages I am about to identify, I deal with them as three separate occasions putting the Crown case at its highest, as it were, but wishing to make the point that it was not at all clear that there were necessarily three or four separate occasions where these things occurred.

Could I identify the key passages, if the Court pleases, by the summary of them in the appeal book, which is volume 7, of the Full Court’s judgment at 1515 to begin with, which is paragraph 26 of the media neutral references and at this stage, if the Court pleases, you can see from the first line that all the Full Court here is doing is summarising the evidence in‑chief of Williams.  It is not necessarily purporting to deal with all the nuances and the number of conversations.

The key conversation, your Honours, to begin with, the initiating conversation is at lines 18 and follows.  It is the indented passage in italics and the third line was:

I want her to be knocked’ –

and, more or less, there was some evidence of, perhaps, earlier conversations but, in essence, it was the Crown case, in our submission, that that really was the initiating conversation in which it was said that McFie was present and those words were said by Conway to Williams.  That incident, your Honours, was what was called the “number plate incident” and how that came about was that ‑ ‑ ‑

HAYNE J:   Sorry, can you go back a stage?  You said McFie was present at this conversation?

MR TILMOUTH:   Yes, your Honour.

GAUDRON ACJ:   A little further up, though, it says she went into the bedroom with Alexander.

MR TILMOUTH:   That is true as well.  There are a lot of these little side issues about who was present and so on.  Another example is at later stages, on the defence case, Williams attributed these words to McFie and so on.  There are a lot of reasons to doubt this, but, as I say, I am just dealing with it at its highest at the moment.

This was what was called the “number plate incident” throughout the trial and the appeal.  Very briefly, the reason was that Williams had a bicentennial number plate and the appellant was a collector of them.  On the Crown case, McFie approached him about getting the number plate, and that was, as it were, a lure to get Williams up into the flat to speak with him about this particular matter. 

Your Honours, although it is indefinite in time, that number plate incident probably occurred on 27 April 1997, although it could have occurred as early as 11 April 1997.  We submitted a revised chronology yesterday and that incident is referred to at the top of page 4, the first item, 11 April 1997, and that is because the witness Ulanowicz, as I understand it, identified that date.  It is also identified at the bottom of page 4 as 27 April 1997 as “The number plate incident” and I think it fair to submit that the gravamen of the evidence suggested the latter rather than the former date, although it was by no means certain. 

Your Honours, can I explain the chronology just briefly.  The items marked in red, looking at page 4 for example, were simply references added to the chronology originally filed.  We added some more appeal book references.  If you look at the top of page 4, the underlining – which should be blue or black underlining – that simply identifies items, three of them, that the judge directed the jury were strong corroboration.  If you look alongside that item of 11 April as well, you will see an (E).  That is the item (e), that recurs as corroboration No (e).  So where you see numbers (a) to (r), they refer to items that were put by the jury and referred to by the Full Court as the identified items of corroboration. 

KIRBY J:   From your client’s own mouth, the only inculpating evidence was the recorded conversation that took place in the car between himself and McFie.  Is that correct, or not?  From his own mouth, as distinct from what other people put it?

MR TILMOUTH:   Yes.  Part of my point is, your Honour, that if there is any corroboration it came with subsequent events.  It might have come on 28 July when Steer and Williams were wired and there was a discussion about payment of the money promised.  The Crown would also say that there was some corroboration in lies that he told to the police about his relationship with McFie.  On another view of events, your Honours, there was a subsequent event on 18 June where there was an accident near these flats – Stuart - and Williams was a bystander.  The Crown case was that the appellant suspiciously tried to distance himself from Williams and that it was also put as an item.

KIRBY J:   And he said to McFie, “Guess who I saw?”.

MR TILMOUTH:   That is right, and the subsequent telephone conversation which ‑ ‑ ‑

KIRBY J:   It is pretty inculpating though, is it not?

MR TILMOUTH:   Not necessarily, if the Court pleases.

KIRBY J:   Anyway, you take your own course.

MR TILMOUTH:   Yes.  But those items are conceded.  Their weight is quite another matter.  But our point, at the end of the day, would be, if the Court pleases, if the four items which we concede went to the jury only, it would be a lot different complexion in the case than the 18 that the judge did put to the jury.  But, may it please your Honour Justice Kirby, the point that you did make is, in our submission, a good one.     The only material against Conway that was in any way confirmed, was material subsequent to 3 May, when the death occurred.  None of it beforehand, in our submission ‑ ‑ ‑

KIRBY J:   What does that matter?  I mean, you can have corroborative evidence after the event.

MR TILMOUTH:   If the Court pleases, on my initial point, that the direct evidence against him, as opposed to indirect evidence ‑ ‑ ‑

KIRBY J:   That is direct evidence, it is from his mouth.

MR TILMOUTH:   That is true in that sense, but direct evidence of overt acts, if I can put it that way, very little indeed and none of it confirmed at all, in our submission.

Your Honours, may I proceed just for a moment to piece together the next two or three items.  The next matter said to be either the same event or the different event was said to be about three days later than the “number plate” incident, and that was what was called the “boxes” incident.  The appellant was passing boxes up to a flat, I think on the first floor, and that is referred to, if the Court pleases, also at page 1515 of the appeal book, in paragraph 27:

About thee days later Williams met McFie and Conway whilst Conway was lifting boxes up to McFie on her balcony –

that is line 27, paragraph 27:

On that occasion Conway said to him “keep it to myself.

Two lines down:

“I’ll need it done soon”.

Then your Honours will see proceeding on, which may be a third incident, this is line 29:

the next day or two there was a further conversation at which both Conway and McFie were present when the question of money was discussed, and Williams nominated a figure of $15,000.  At some point in the discussions, the timing of which Williams could not specify, Conway said to him that he wanted it to look like an overdose of heroin given by needle.

Now, as I said, it is not accepted that those are necessarily separate conversations, but I deal with them just putting the Crown case in its best light, but the evidence was really very contradictory about them being separate. 

The fourth incident, if it was such, may it please your Honours, was perhaps on 3 May and one may see that on the following page of the appeal book in paragraph 28 of the Full Court’s judgment, line 2:

The day after the sum of $15,000 was mentioned Williams said a further conversation occurred in McFie’s flat between him, Conway and McFie.  McFie said they had the money and “it has to be done by this Saturday”.

And the first line of the indented piece, your Honours, the direct evidence “this is the perfect time to do it” was alleged to have been attributed to the appellant.

Now, if the Court pleases as to that and as to the question of making it look like an overdose, as to the former, there was no confirmation or corroboration at all.  As to the issue of overdose, the learned trial judge put that matter to the jury as corroboration as item (q) and the Full Court held he was wrong in that.  As to the boxes incident ‑ ‑ ‑

KIRBY J:   It was a massive injection.  There was no evidence of any other punctures and there was no indicia of suicide.  I mean, it is a very bungled attempt to show a suicide or ‑ ‑ ‑

MR TILMOUTH:   Well, not in our submission, simply because what happened later coincided with what was alleged would not confirm Williams because Williams was party to the killing itself so he knew exactly what happened.  So it would not have been in any sense independent of him.

KIRBY J:   So you accept that Williams was the instrument?  You simply deny that you have anything to do with it and Williams was in some way acting all off his own bat?

MR TILMOUTH:   Off his own bat or in combination with McFie, yes.  But, if the Court pleases, that was item (q), which the Full Court held was wrong ‑ ‑ ‑

KIRBY J:   This is why I asked you about the theory of McFie.  If that had been your case all along, that you are innocent, I could understand that, and even the conversation in the car could be an ex-post acknowledgment, “Guess who I saw?”, knowing then what she had done and, as it were, not distancing himself, but not being guilty of it.  But it seemed to have been a belated theory that came upon you in the midst of the trial.

MR TILMOUTH:   Not necessarily, if the Court pleases, any more belated than would be the case coming first time in the defence case itself, although it did come through the cross-examination of McFie, it is true.  But the fact remains, whether rightly or wrongly, and, in our submission, rightly, the court held below that item (q) was wrongly left.  I may have said it, but I just repeat it for surety, that as to the boxes incident there was no confirmation or corroboration at all and as to the number plate incident, if the Court pleases, his Honour put corroboration as item (e) as strong corroboration, but the Full Court also held that that was wrongly put.

GAUDRON ACJ:   How was that admissible, item (e)?

MR TILMOUTH:   Well, that is quite another question, may it please, your Honour, and something perhaps I might be better to address later, but, in our submission, it was secondary hearsay at best, because it was Ulanowicz reporting something that Williams had said, but, as we understand it, if the Court pleases, how it eventually went to the jury was both reporting what Williams has said, which, of course, would not be independent of him and it was not a primary representation, of course, because it was not Williams who was saying it.

The other attribute was that Williams is supposed to have been shaken, agitated and fidgety, which of course was not independent of Williams either.  He could have been agitated or fidgeting for any number of reasons, including his large heroin addiction.  So, either way, it was clearly wrongly put to the jury and, of course, having gone to the jury, those matters are important, because these were really the only items of direct evidence against Conway at all.

The next matter, may it please the Court, is this:  one also has to distinguish the evidence of Williams from the evidence of Steer, which stood in quite a different light.  The evidence of Williams related to those pre‑killing matters, if I can put it that way.  As for Steer, if the Court pleases, Steer, in our submission, gave no material evidence of any relevant conversation to the charge as against Conway at all.  In our submission, the only relevance of Steer’s evidence as against Conway as an accomplice was a post-killing conversation, which was said at times to have been at a funeral or in a stairwell, and really this evidence was questionable as well because of various things that Steer had said about it and not said about it beforehand, but again, putting the Crown case at its highest, it appears, your Honours, at page 1520 of the appeal book, in paragraph 47 in the middle of the page, the gist of which, line 3, it was:

About ten days after the murder –

in time, ten days later, and the last two lines Conway is alleged to have said:

“What went wrong?  Why didn’t you make it look like suicide?”

That is really in sum, in our submission, all that Steer himself said of material importance in evidence for the Crown against the appellant himself.  As to that, may it please your Honours, there was no corroboration or confirmation in any respect and, without going into the detail, there was reason to doubt that much because there had been different versions, putting it very summarily, by Steer in previous statements he had made to the police.  In his first statement he said nothing about it; in the second he did.

If the Court pleases, the next category of evidence – and I have partly addressed it in answer to your Honour Justice Kirby, so I will be brief – was subsequent events.  Just to summarise them, the accident, which has already been discussed, was on 18 June 1997.  That is summarised in paragraph 38 of the appeal book at page 1518 at about line 11.  “Don’t look at me, don’t talk to me” was that part, plus a subsequent telephone conversation with McFie, “Guess who I saw at the accident”.

Can I just remind your Honours that, although that went as corroboration, there was a direction by his Honour the learned trial judge that what Williams said had happened at the accident, “Don’t look at me, don’t talk to me”, was not confirmed at all.  That direction is in appeal book 6 at 1269.  I do not read it but that is the reference.  So, of course, if there was any attribute of confirmation, it was in the subsequent telephone call, “Guess who I saw”.  In our submission, that was fairly, if I can put it this way, intractably neutral because there are all sorts of reasons why he would want to distance himself from Williams at that point.

The next item – and this has been dealt with as well – was the lies.  Both the appellant and McFie, when spoken to by the police initially, maintained that they did not have any relevant relationship, close relationship, and both of them said in effect that she was a babysitter, which was acknowledged by them of course at the trial to have been untrue.  That was the item (r) of corroborative material.

Finally, if the Court pleases, there was the incident on 28 July 1997 after Steer and Williams had been arrested and had given a statement to the police implicating the appellant and McFie in various ways.  They later gave a statement in August, by the way, which they agreed to give evidence against the appellant and McFie according to that later statement in effect in order to secure more favourable treatment on the sentence, and they had their sentence reduced by one third on that account.

In any event, they went to the Gollan Street house on 18 June at 4 am in the morning, I think, or very close to, and it was bugged.  It was recorded, although the recording is indistinct in parts, but the Crown would say it was very incriminating because it involved them, Steer and Williams, seeking the money that they had been promised and had not been fully paid and because there was evidence, particularly of McFie, toting up in effect what the balance was owing.  That was put by the Crown as very strong material of guilt.

KIRBY J:   Is this the recording that the Full Federal Court listened to itself?

MR TILMOUTH:   Yes, it is.

KIRBY J:   Should we listen to it?

MR TILMOUTH:   It can be made available, if the Court pleases.

KIRBY J:   It is said, I think, in the respondent’s submissions, or maybe even in yours, that it had a powerful effect on the Full Court.

MR TILMOUTH:   Yes, it did.  The Full Court regarded it as “devastating”, I think was their word, and they certainly regarded it as quite strong.

KIRBY J:   Perhaps we should listen to it.

MR TILMOUTH:   Well, that could be made available, if the Court pleases, but can I make this point about it if I may at this stage of my submissions.  The Full Court dealt with it, your Honours, by the way, at 1577, at least in part.  That is item (m), the corroborative item (m).  If it assists your Honours, the gravamen of the recording itself, the transcript that is to say, is recorded at 1528 of the appeal book when the court is earlier discussing the items without discussing their corroborative effect.  Now, your Honours, as to this, could I say this.  We have conceded, as your Honours know from the outline, that it is capable of being evidence against the appellant.  But, your Honours, an important point I would seek to make about it ‑ ‑ ‑

GAUDRON ACJ:   Are we talking about the car accident or 28 July?

MR TILMOUTH:   28 July, your Honours.

GAUDRON ACJ:   The transcript at 1528 seems to relate to the car accident.

MR TILMOUTH:   I beg your pardon, your Honours, I am quite wrong ‑ ‑ ‑

GAUDRON ACJ:   As does item (m).  It is item (o), I think.

MR TILMOUTH:   I withdraw (o) and put (m), I am very sorry.  That is summarised, I am sorry, at 1578 and the line is devastating is at line 27 and the transcript, at least in part, is from 1529 to 1531.  They are the material parts.

KIRBY J:   How long does the recording last?

MR TILMOUTH:   About 10 minutes or so, if the Court pleases.  It is very hard to hear.  But, your Honours, the important point I seek to make about that is this.  Conway and McFie’s evidence was that Conway was out of the room, particularly when there was discussion about what amount of money was owing.  Conway’s evidence was that he did give $50 and, your Honours, the evidence was that Steer and Williams left the house and they were met by police straightaway and the $50 was there and then the police went into the house and arrested the appellant and McFie straightaway.

Conway’s evidence was that he realised during the conversation that Steer and Williams had done this and he was simply going along with the story at that stage with the intention of reporting it afterwards, and that is why he gave them the $50, but if the Court pleases, the evidence of himself and McFie ‑ ‑ ‑

HAYNE J:   Sorry, did he say why he was going along with it?

MR TILMOUTH:   As I understand it, he was going along with it while they were there and as soon as they left it was his intention to report the matter to the police later that morning.

HAYNE J:   Yes, and did he say why he went along with it?

MR TILMOUTH:   I am not sure, your Honour.  I will have to get that checked, if I may.  I might have to deal with that later.  But, as I understand it, the gist of it was that he had a realisation at that time of the enormity of what they had done and the situation was one that had confronted him at 4 o’clock in the morning.

HAYNE J:   His explanation is surely critical.  Saying simply, “I went along with it”, provokes more questions than it answers.  What did he say about why he went along with it? 

MR TILMOUTH:   I will have to get that checked, if the Court pleases, because I might be inaccurate in my summary.  But, your Honours, there is no doubt, of course, that the Full Court regarded his explanation as implausible, I think - or akin to, anyway, if they can use that word.  But the important point is that not only did McFie and Conway say he was out of the room particularly when the critical counting-up of what was owing went on, but the evidence of Steer and Williams supported that view.  Without reading it, Steer’s evidence in book 2, at pages 336 and 339 to 340, said that he was out of the room for at least one or two minutes.  Williams’ evidence, in book 4 at 431, was that Conway was out of the room from about three minutes near the end. 

Your Honours, if I can translate that in a way which relates it to the interview itself.  The full transcript is in book 6, at 1325, and the effect of the evidence, in our submission, on all counts strongly suggests that if one goes to 1333 in the appeal book, at the bottom of that page where the male says, “Thanks John”, the evidence, in our submission, the references I have just given the Court to, suggests that Conway then left the room after “Thanks John”, at point 9 of that page, to get the $50, and did not return until about the middle of 1336 or shortly thereafter.  Your Honours will see in the middle of 1336, Williams says, “Was that a yes John”.  Now, in between, there is, in our submission, no reference to Conway, or John, or anything that refers to him direct.  All of the evidence was, in our submission, suggestive of the fact that he was out of the room in that period.

KIRBY J:   Well, I do not know where you are looking.  A 1327, about point 2, it is, “Meanwhile John”.  So he is apparently addressing him. 

MR TILMOUTH:   Yes, he is there then, your Honour.  The suggestion is ‑ ‑ ‑

KIRBY J:   Where do you suggest he leaves? 

MR TILMOUTH:   At 1 ‑ ‑ ‑

KIRBY J:   Further down the page, at point 7, there is, “John”, and down the bottom ‑ ‑ ‑

MR TILMOUTH:   Yes, there are references there, your Honour.  At 1333, down the bottom, the third to last line, “Thanks John”, is where we submit he left, on all of the evidence of all four, and he returned at about the middle of 1336.  He was away in that period in the next room or elsewhere getting the $50. 

Your Honours, the significance of that is, in our submission, that at 1335, from about point 3 to halfway down the page, there is McFie and Williams and Steer discussing:

WILLIAMS:  Actually how much do yous owe us now?

STEER:  I’m at eleven.

McFIE:  Mmh, four,

STEER:  So you’re saying ten eight.

That, of course, is what the Crown said was quite incriminating because it is evidence confirming the fact that there was a promise earlier to pay money and some of it remained unpaid.

Our point for the purpose of this appeal is, in our submission, that whatever else one may say about the conversation and Conway’s involvement, that, in our submission, on the whole of the evidence, he probably ‑ ‑ ‑

KIRBY J:   It is pretty damning evidence against Ms McFie at 1335, is it not?

MR TILMOUTH:   Yes.

KIRBY J:   So you really have to have the theory that it was Ms McFie with her infatuation that has led to the deal with these two people who were the instrument ‑ ‑ ‑

MR TILMOUTH:   Indeed.

KIRBY J:   ‑ ‑ ‑ and that your client was the innocent victim of her wrongdoing.

MR TILMOUTH:   Yes.

KIRBY J:   Yet that theory only emerged very late in the trial.

MR TILMOUTH:   But, with respect, you would not necessarily expect it to come earlier.  It could have, of course, it could have in his interviews, but that fact alone, in my submission, is not of much weight.

The other thing I would put to the Court, if the Court pleases, on this particular conversation is that, of course, it is perfectly consistent with the appellant simply wishing to protect McFie and it is also perfectly consistent with him being merely an accessory after the fact.

HAYNE J:   Can I understand that.  Can I take you back to 1326.  Towards the bottom of 1326 Steer is addressing:

John, John.  Can I have quick sec mate.

From the transcript it seems that that is a conversation at the doorstep.  Page 1327, he is coming in, the door is closing, about line 4 or 5.  The question put by Steer is:

I need you to pay me.

We then go on with various conversations towards point 8 of the page:

STEER:  I, I really got to go, can you understand what I’m doing John, I really got to go, okay . . . 

STEER:  I need ya, I need you to fix me up mate, I don’t like coming here I, I can’t –

et cetera.  Page 1328, Steer makes plain that the subject is murder.  What do you say is the explanation of what is happening at this point?  “You’ve got to pay me”, followed by explicit discussion of the fact that a murder investigation is under way.  What is going on?

MR TILMOUTH:   Well, your Honours, the appellant’s evidence – and this is in book 4 ‑ ‑ ‑

HAYNE J:   No, not what the appellant says.  What do you say the jury might properly make of this tape?

MR TILMOUTH:   That they might think that this is a situation of surprise in Conway’s mind and that he is simply going along with it because of the enormity of the situation that has been revealed to him at that time.

HAYNE J:   “You’ve got to pay me.”

MR TILMOUTH:   Well, your Honour is quite right, of course, the subject matter is murder and I understand what your Honour is putting, but if your Honours look carefully at what is going on in those pages your Honour Justice Hayne has referred to and, indeed, earlier, Conway is doing and saying very little at all and the only pregnant thing perhaps that might come out of it is at all, in my submission, the failure to express surprise or refute it.  But, in my submission, really all that Conway does in the end result which could be regarded as incriminating is at 1333 before he leaves the room, when asked about getting some money he says at about point three, “Definitely some.”

KIRBY J:   He says at 1329:

I can get it within a couple of days.

MR TILMOUTH:   That is true, that is true.

KIRBY J:   Well, that is pretty devastating stuff.

MR TILMOUTH:   Well, if the Court pleases, I understand that it is incriminating – we accept that – but, if the Court pleases, that really is a question for the jury to decide, absent all the matters that got muddled up with all of this which, in our submission, were clearly not corroborated ‑ ‑ ‑

KIRBY J:   Yes, but you are here asserting a miscarriage of justice.

MR TILMOUTH:   Indeed, I understand that, your Honour, but, in my submission, on the miscarriage of justice issue the Full Court really accepted that if there were only a few items of corroboration that they would undoubtedly have applied the proviso.  Our case is that there are only those few items.  One may regard this conversation as incriminating, but it is a very large question, in our submission, and one for the jury, just how incriminating and it is one that it deserves to consider free of the other matters which should never have been put to it as corroborating other material events.

HAYNE J:   Let us take the tape in isolation.  What do you say a jury could make of this tape, the conversation thus recorded?  Strip it away from all the other incidents that have been said to them are corroborative.

MR TILMOUTH:   There are two extremes, of course.  It could simply say it was a situation that was sprung on him and in the surprise of the moment his reaction was unusual but not incriminating.  The other ‑ ‑ ‑

KIRBY J:   Yes, but the reactions are not just that of surprise.  They are reactions of complicity, “I can get it within a couple of days”, and alarm of their arrival, “Where did you get the taxi from?”, obvious concern, taxi records which would show that these people came to his place and that that could be checked and proved. 

MR TILMOUTH:   Yes.

KIRBY J:   Therefore, the concern of Mr Conway was not to say, “What the hell are you talking about?”, or, “This is something I am completely innocent of”.  It is complicity and agreement to pay and concern about the evidence that they were providing.

MR TILMOUTH:   Yes.

KIRBY J:   It is devastating.

MR TILMOUTH:   Well, in my submission, it is not that strong, or not necessarily that strong, and, in my submission, it is a matter for the jury to consider.

KIRBY J:   Of course it is a matter for the jury, but you are here seeking our intervention, which we would not ordinarily give simply to clarify an interesting legal proposition if there is no miscarriage of justice.

MR TILMOUTH:   Well, I understand that, may it please the Court, and, of course, I accept it, but if the Court pleases, the Full Court in the court below accepted that if we were right, but for the co-conspirators’ rule, it would not have applied the proviso.

KIRBY J:   In the end I assume that the Full Court must have approached the matter in a proviso way, because they found that there were a number of matters identified as corroboration but which would not have represented corroboration and should not have been said to be corroboration. So there was an error of law in the direction and therefore the issue of the proviso, at least at that level, must have been in their minds.

MR TILMOUTH:   Exactly, and, in our submission, the question of the proviso was dominated by the court’s view that even though there were four items wrongly left, the remaining 12 were all admissible against Conway under the co-conspirators’ rule, and that was enough.  One of those 12, of course, included this very subject matter.  But, your Honours, in the appeal book 7 at page 1574, where the court was considering this particular matter, in paragraph 225, line 4, counsel:

submitted that the trial judge had wrongly identified all save one, or perhaps two, of these items of evidence as being capable of constituting corroboration when he summarised the case against Conway.  If that submission were correct, there would undoubtedly have been a miscarriage of justice.

Now we concede three or four, but two of those four are very minor and, in our submission, we got the court to the point where in fact it agreed with us, save for the point of law in issue in this case.

HAYNE J:   Was there any challenge at trial to this tape being an accurate tape of a conversation which, subject to the caveat you have entered about Conway’s presence for part of it, included conversations to which Conway was a party and which Conway heard?

MR TILMOUTH:   No, there was not.  The main point made was that Conway was absent at the critical time and your Honours accepted that as an exception.

KIRBY J:   Well, you say it is critical, but there are some pretty critical times where he was present and participating and speaking.

MR TILMOUTH:   That may be.  Once again I acknowledge that, and I am driven back to the point that really that is a matter for the jury and I am driven back to the point – I drew the Full Court to the water trough, but I did not make it drink for a reason, which we say is quite erroneous.  They would have allowed the appeal had they not been against us on the co‑conspirators’ issue.  And, could I also make the point, if the Court pleases, if one put it as high and as strong as this is, the whole summing up was dominated by not only four items which were clearly erroneous, but by another eight, which, in our submission, should never have been put against Conway.

HAYNE J:   I understand all that and there is a lot of issues that were agitated at trial and, at least for the moment, I see considerable force in what you say about the directions that were given about corroboration, but at some point where we have a tape of this kind, the content of which is not disputed, there is a real and lively question in my mind about the proviso.  At the moment, it seems to me it is plainly arguable that there was a misdirection of law.  There was probably misreception of evidence.  To me, at the moment at least, the case seems to have come down to a proviso question and you have this tape, in which case the explanation of the tape becomes the critical element.  But I am anticipating and you should take the course that you think best.

MR TILMOUTH:   Yes.

KIRBY J:   The only way that you, consistent with the innocence of Mr Conway of the murder, can advance the point, is to say, “Everything he said, and everything that is attributed to him in the conversation, is consistent with a theory that McFie had committed the murder, planned it, arranged it, agreed to pay for it, and that he got sucked into it after the event out of loyalty or affection for her”, and that if you look at what he actually says about paying, and finding the money, and concern about the taxi, that is consistent with that theory.

MR TILMOUTH:   Yes.

CALLINAN J:   Could you just confirm for me, Mr Tilmouth, was the appellant there when McFie said what she did say at page 1334, the second statement on that page by her?

MR TILMOUTH:   No, we say he was out of the room at that stage.

CALLINAN J:   He had left by then?

MR TILMOUTH:   Yes, that is what we say.  Your Honours, can I try and answer two questions in what has been put to me about this?  The first is, in my submission, in general, the law or appeal courts have been slow to apply the proviso where corroboration has been wrongly left.  Of course, the usual principles apply.  But, your Honours may remember Lord Simon in Davies Case said that the evidence otherwise properly available to be left had to be convincing, cogent or irresistible, and whatever one says about this 28 July matter, in my submission, it is not that high.

I have already made the point, of course, that it was mixed up with a great deal more other material.  Could I also make the point, your Honours, that in three places, although this was not one of them, his Honour put to the jury that evidence was strong corroboration, you might think.  Those items are outlined in our reply.  One of them, item (e), was wrongly put altogether, and if one considers all of that together, in my submission, even if one wanted to take a very stern view of the 28 July conversation, one could not, in my submission, safely apply the proviso in those circumstances.

HAYNE J:   Can I test it in this way.  Would the proviso be engaged if the Crown had gone to the jury relying wholly on the tape of the events of 28 July 1997 as evidence of admission by Conway and it would have been perverse for the jury, given the absence of dispute about its content, to return a verdict of not guilty?

MR TILMOUTH:   It clearly would have been open to return that verdict, assuming otherwise proper directions.

HAYNE J:   But the proviso would be engaged, would it not, if it would be perverse to return a verdict of not guilty in face of this tape if that were the only evidence against Conway?

MR TILMOUTH:   Assuming it would be perverse, which is where I disagree.

HAYNE J:   And that is the field for debate:  would it be perverse?

MR TILMOUTH:   In principle, with respect, that is right but, in my submission, it is quite wrong, for the reasons I have identified, to look at this in isolation because the case was dominated by the other matters which one way or another wrongly went – 18 of them.  This is just one of them.  The jury might have taken a different view of these 28 July matters if it did not have all those other considerations on top of it to consider.  One cannot say, in my submission, confidently that the jury inevitably would have had to come to the same conclusion.  That is where it would be wrong, in my submission, to apply the proviso.

KIRBY J:   Allowing that there are several bodies of evidence and that the jury may have chosen one body and went along that line and that that would sustain a verdict that the jury returned, it still remains for us on the appeal to consider whether or not there is such evidence that made the conviction of your client inevitable.

MR TILMOUTH:   Yes, I accept that, but the test really is whether the appellant lost a fair chance of acquittal reasonably open to him.  In my submission, it must follow that he did if it is accepted that 12 items of evidence wrongly went to the jury.

HAYNE J:   No, that is a proposition that any misdirection of law requires reversal of the conviction.  That proposition is not what the appeal statute provides; there is the proviso.  Barely pointing to misdirection or misreception of evidence does not suffice.

MR TILMOUTH:   I accept that of course.  The point I am making is not the point of law but a question of fact.  So much material wrongly went to the jury under the same rubric of corroboration that if the Court is considering applying the proviso because the corroboration eventually left was strong enough anyway, it would be to ignore the interrelation or the interaction of the wrong items on the items that were correctly left.  In my respectful submission, the Court cannot confidently say if it was only the 28 July, the jury would have come to the same view.

GAUDRON ACJ:   And that is because you say the conversation is capable of being construed on the basis that he found out about it subsequently?

MR TILMOUTH:   Indeed.  It is capable of being construed in an innocent way.

GAUDRON ACJ:   Well, I do not know that that is innocent but it is not quite the offence with which he was charged.

MR TILMOUTH:   No, indeed.  What I put earlier, your Honour, was it is capable of being construed as protecting McFie.  It is equally consistent with him being an accessory after the fact, or even in the old common law a misprisioner, and it is consistent as well with him simply being stupid, doing something in panic out of fear or surprise.

KIRBY J:   That is pretty rich.  I find the last of your theories pretty hard to swallow.  I mean, suggesting that he is saying, “I can get the money in a few days”, that is not surprise, that is volunteering.

MR TILMOUTH:   Well, it is.  Now, can I answer that as well – and this answers your Honour Justice Hayne a little as well – what the appellant said about the situation is in book 4 at 927 in cross-examination.  This is the prosecutor cross-examining about this particular issue.  Perhaps I should go back to the bottom of 926 to put it in context, the last question at line 29:

In any event, Mr Williams asked you if he could get a couple of grand or something off you and, if you turn over the page, you said you can get it within a couple of days?---That’s correct.

What, going to give him a couple of grand in a couple of days?---No, that’s what I told him.

Was that just to keep the conversation flowing was it?---That was to keep them basically quiet as far as any demands and such like were concerned.  I just wanted to – I had enough information at that time to go to the police later that morning and if they wanted something I was just going to agree to it just to keep it – keep the situation quiet.

KIRBY J:   So he disclaims the McFie theory?

MR TILMOUTH:   Yes, at that point at least, but may it please the Court and your Honour Justice Hayne, that is what I had in mind when I made the earlier reference to the explanation.

HAYNE J:   Can I, at the risk of unduly delaying you on this, point to some particular features of the transcript that trouble me?  Page 1327 line 8 or so, Steer, “I need you to pay me”.  Page 1328, last three lines:

well stuff it I’ve got to go and see you people and get some money.

Page 1329, line 2, Conway, “I can get it within a couple of days”.  Page 1331, point 5 or a little under point 5 of the page, Steer, “They” – meaning thereby the police – “didn’t believe me.  They” – that is the police – “they believe that John” – meaning Conway – “and yourself” – meaning McFie – “employed me to murder”.  Page 1333, line 2, Conway, “I’ll give you a ring”.  Line 4, “I’ll give you a ring later today”.  Williams, “So we should be gettin our money in the next coupla days”.  Conway, “Definitely some”.

MR TILMOUTH:   Yes.  Your Honour, there is perhaps one missing as well – and this is against me, of course – 1332, your Honours, about point 8 or 9, Conway:

Kaths got your phone number hasn’t she.

HAYNE J:   Yes.

MR TILMOUTH:   But, if the Court pleases, that is it, if I can put it that way.

McHUGH J:   Well, what about 1337, right at the end – at the top of the page:

just a quick question for you, yous have got rid of all the evidence that could . . (inaudible) . . Yeah, just so if they should come your way that’s all.

. . . 

the key thrown away shit like that –

et cetera, et cetera.  I mean, what would a jury think against all this background, a statement at 1329, they will get “twenty years for murdering this woman”, and as to Conway, it is his wife that is being murdered.

MR TILMOUTH:   Yes.

McHUGH J:   It is a pretty strong case, Mr Tilmouth.

MR TILMOUTH:   May it please the Court, I understand what the Court is putting to me, of course.  In the end result I would only be repeating myself, but those matters are quite important and, with due respect, given the errors it is really a matter for the jury, and they may well have come to a different conclusion if they had proper directions on proper material.

Your Honours, could I return, if I may, to the argument and very briefly make this point, without hopefully reading very much.  The next point is that when the evidence went to the jury, by dint of the corroboration directions and by dint of the co-conspirators’ directions, every overt act or word by Steer, by Williams and McFie, went to the jury as evidence against the appellant without qualification or exception, and without any direction which, in the case of the corroboration distributed it as it were, as between him and McFie, and under the co-conspirators’ principle, in my submission as well, it was important under the principle in Ahern, to distinguish between evidence which was capable of supporting a combination or a common purpose to murder, as distinct from the appellant’s participation in it.

In my submission, in general terms, there were two layers of error.  There were the corroborational errors of failing to point out which went to the case against McFie and which went to the case against Conway, but there was also further error in failing to identify what got in under the co‑conspirators’ principle for what purpose.  In other words, did what something McFie said in his presence merely support a combination, or did it go further and support Conway’s participation in it.

The distinction under Ahern, in my submission, is quite important because if it goes in as to the former; ie, combination in general or the crime in general, it does not go as to the truth.  It is what the United States cases call “verbal acts”.  If it goes in because it includes an implied assertion, or something is said or done with the implied authority of Conway, of course it goes in as to the truth.

KIRBY J:   It is a very subtle distinction.

MR TILMOUTH:   It may be, but it one that the law makes, if the Court pleases.

KIRBY J:   You wonder whether juries appreciate these extremely subtle points when, if you look at what his Honour did, he did give a number of warnings about accomplices.

MR TILMOUTH:   He did.

KIRBY J:   They were quite strong warnings.

MR TILMOUTH:   They had to be in this case, may it please the Court.

KIRBY J:   So that once you have that, you wonder whether this very fine subtlety is really very effective in a true trial setting.

MR TILMOUTH:   It is, in my submission, because once you give the warning that it is dangerous, as the warning was in this case, once you start identifying evidence that can confirm or corroborate, to use the old language, it tends to be a subterraneous issue, as it were.  In other words, it is not dangerous or it is safe.  Of course, the more items that are pointed out as potentially confirming, the more prejudice there is if they are wrongly put to an accused, and that was the case here, in my submission.

If the Court pleases, the point is, for the moment, just generally:  everything went in, on every issue, without discrimination, whether it was required under the corroboration principle or the co-conspirators’ principle.  Now, can I point out those directions, your Honours, without reading them.  The corroboration directions, first of all, commence in book 5 at 1239.  I do not read it.  It is in the standard common law language.  Your Honours will see at line 25, it was: 

dangerous to convict either accused upon the evidence of those accomplices or one of them, unless it is confirmed in some material way by other evidence. 

At 1240, his Honour directed the jury, at lines 6 and 7: 

And you do not need any corroborating evidence before you could convict these two accused of the murder of Mrs Conway. 

That was typical, in my submission, of the directions.  It was general:  it went against both accused without any discrimination.  His Honour repeated that it was “dangerous” at line 9, and his Honour went through the material that they pleaded guilty and actually directed them, at line 14, that the “risk” of the danger might have dissipated, because they had been sentenced.  Now, as your Honours know, at the request of counsel there was a redirection, and the Full Court held the redirection saved what was plainly otherwise a misdirection at this point.  That is not the subject of this appeal.  But what his Honour went on to say in the next paragraph, at line 18, he defined “corroboration” in a passage quoted by the Full Court, and your Honours will see at line 21, his Honour said to the jury: 

but it was these accused who were a party to it. 

Again, non-discriminating, or non-separating.  And at line 29, his Honour repeated: 

not only was the crime committed, but these two accused were part of it. 

There were similar directions in the next volume, volume 6, after the redirections, to correct the error in relation to the risk being removed.  At 1261 to 1263, his Honour repeated the reasons at 1261, from 15 onwards, why it was dangerous.  At lines 37 and 38, he put it compendiously: 

as a result of some contract between them and the two accused. 

And at 1262, there were further directions.  The word “dangerous” was repeated at line 21.  At line 28, his Honour put it generally: 

against these two accused, as long as it is some evidence in the chain of circumstances inconsistent with the innocence of either –

and then his Honour gave a mutual corroboration warning according to, at least, common law. 

Over to 1263, his Honour then commenced to deal with each of the items which were ultimately marked (a) to (r) by the Full Court ‑ the first one, (a), commences at the top of that page – and I do not trouble the Court with that.  So, the situation is, in my submission, to this point, as submitted in paragraph 16 of our outline – without reading it ‑ that corroboration was put in general terms as available against both accused without discrimination.  And that particular direction was repeated in the passages I have mentioned already.  Now, as regarding the co‑conspiracy directions, perhaps the directions are best summarised in the appeal book, volume 7, at 1587, where the main body of directions on this issue are quoted in full by the Full Court -1587, your Honours, paragraph 252. 

If your Honours wanted to check the directions themselves, in context, they are in volume 5 at 1199 to 1200, of the learned trial judge to the jury, but the gist of them is as on 1587 and your Honours can see, if I may paraphrase, perhaps, to save a bit of time, that in these directions, his Honour, in the first paragraph, talked about the “pursuit of an unlawful object” and that fact, at line 9:

will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the actual words, that the accused was also a participant.

By the way, as your Honours will have read, there is no contest about that fairly low threshold.  The evidence of Williams alone would have been enough for that.  His Honour proceeded to direct the jury, at about line 17:

everything that Steer and Williams said and did in furtherance of that common purpose is evidence against both these accused.  And there has not been any argument put to you by anybody that when something was done, if you found that it was done, it was not evidence against these two accused.

I will come to Conway’s defence later on that anything that McFie did with the two assassins was not done with his knowledge, but if you are satisfied that there was a combination, then anything that McFie said to Steer and Williams is evidence against Conway because it is something done in furtherance of the common purpose.  But the question for you is, was there a common purpose?  Both accused say that they were not a party to any such common purpose.

So all the evidence was left as a whole, as it were, and not divided in any way. 

Now, if the Court pleases, bearing in mind those two sets of directions, corroboration on the one part and co‑conspiracy on the other, the Full Court dealt with the matter in this way.  At 1579, your Honours, at paragraph 226 at the bottom of that page, the Full Court, as your Honours know, determined that four items, line 29, (b), (e), (g) and (q) were wrongly left.  Twelve items were correctly identified as being capable of corroboration.  So that dealt with the corroboration issue in general.

May it please the Court, the court then went on to deal with the next submission at 1582, that although those remaining 12 items might have been corroboratives, they were not against Conway, the appellant, and this is dealt with in the second to last line of 1582, paragraph 38:

The final matter to be considered regarding the trial judge’s directions to the jury concerning corroboration is Mr Tilmouth’s submission that the trial judge erred in failing to direct the jury that they were required to consider each item of evidence said to be capable of constituting corroboration separately in the case of each accused.  Mr Tilmouth submitted that in any case involving more than one accused a direction of this type was required to be given as a matter of law.

Their Honours went on to deal with Checconi and Kalajzich.

Now, to shorten my submission, your Honours, can I do it this way - Checconi and Kalajzich are cases 9 and 10 respectively in our list of authorities.  Both of them are clearly authority for the proposition, Checconi being a conspiracy involving drugs and Kalajzich being a murder and conspiracy to murder, ie, a substantive offence – I do not intend to read them, your Honours, because the quotes are in the judgment – are clearly authorities, both of them differently constituted Court of Criminal Appeal of New South Wales, stating that whether it is a substantive offence or it is conspiracy, the rule, in effect, in Baskerville adopted by this Court in Doney still applies and that the judge must identify the evidence which is admissible against one accused and separated from that which is admissible against another.  In my submission, to accept the respondent’s argument, those authorities which have stood for some time, although not a great deal of time, would have to be disapproved.  Kalajzich was in 1989 and your Honours can see Checconi was in 1988.

Your Honours, I would also add, without reading that there are other authorities to exactly the same effect, R v Chai (1992) 27 NSWLR 153 at 198 to 199. I have copies for your Honours without reading it now, but exactly the same principle is applied which derives back to Baskerville and Doney.  That is also Court of Criminal Appeal, New South Wales.  R v Mathews & Ford [1972] VR 1 at pages 19 to 20, your Honours, which is case No 8 on the list of authorities.

There is a relatively recent application of the same principle in an English Court of Appeal case of Donat (1985) 82 Cr App R 173 at 178 where in a case of conspiracy the very same issue arose and Baskerville was applied to require a corroboration direction to distinguish between the two accused.  So, if the Court pleases, in my submission, quite apart from Doney, to which I will come in a moment, there is a formidable body of case law which demonstrates, in my submission, that whether it is conspiracy or a substantive offence based on preconcert that the Doney/Baskerville principle applies that the corroboration must not only be evidence showing the crime was committed, but that the particular accused committed it.

If the Court pleases, having dealt with those two cases and accepting that they supported the proposition for which I contended in the court below, as the Court knows, at 1584 the court went on in paragraph 241:

It is important to note that Mr Pappas did not seek any such direction from the trial judge.

I will come back to that if I may in a moment.  The co-accused did.

It was Mr Thomas, counsel for McFie, and not Mr Pappas, who raised the question whether such a direction should be given.

Then their Honours talk about that:

On any view, virtually every item of evidence identified by the trial judge as being capable of constituting corroboration involved McFie’s own conduct.  Obviously each of these items of evidence was admissible in the case against McFie, and clearly each of them, save for those which were intractably neutral, was capable of corroborating the accomplice evidence in her case.

That is right, if the Court pleases.  But their Honours went on at 242 to state that:

A number of the items of evidence which were identified by the trial judge as being capable of constituting corroboration consisted of acts and declarations on the part of McFie which took place in the absence of Conway.  These acts and declarations were admissible against Conway provided that they fell within the ambit of the “co‑conspirator rule”, ie, provided there was “reasonable evidence”, independent of McFie’s acts and declarations . . . 

243     There seems no reason in principle why such evidence, if admissible against Conway, could not also be capable of constituting corroboration of the accomplice evidence in his case.

That of course is where we say the error occurred completely.

Your Honours, without reading it, in our submission, that cannot be right not only because of the authorities that I have put to your Honours already but because, in my submission, it is totally unsupported by any authority and, indeed, their Honours cite none.  Their Honours say, “There is no reason in principle why such evidence”, et cetera, but they do not identify the principle which drives the exception to what I submit is clearly a rule of law.  In my submission, when one goes back to the authorities and, indeed, the textbooks, all of the textbooks where this issue is confronted are driven back to Baskerville’s Case in the end result.

Baskerville, as your Honours may know, goes back to at least Jenkins’ Case (1845) 1 Cox CC 177.  All of the academic texts which we can locate are summarised in paragraph 22 of our written submission.  All the standard works, Cross, Archbold, Wigmore and Williams, a Canadian treatise, in the pages or paragraphs we have mentioned there, if your Honours read them, they all cite Jenkins and/or Baskerville to support the proposition that even in a conspiracy or common purpose type case where you have multiple accused, the court is still required to direct which piece of evidence goes to which accused.

The other point we make, may it please the Court, is this, that not only is the principle driven by longstanding and well‑established authority, but it is authority specifically adopted by this Court in Doney’s Case.  The reference and the quotation from Doney is in paragraph 21 of our written submission, your Honours, and Doney, of course, specifically adopted Baskerville.

In Baskerville, of course – I do not intend to ready it, your Honours, it is in paragraph 21, the bit I would read, of our outline.  Of course, the issue that Baskerville settled and why they sat five judges in 1916 was the very question of whether or not evidence confirming the witness to be corroborated simpliciter was enough, or whether it had to go further and identify that the particular accused was involved.  As the Court knows, Baskerville resolved unanimously for the latter.

That, in our submission, was expressly adopted by this Court in Doney.  The reference is in paragraph 21 at 211.  Your Honours, can I also suggest, although perhaps it was not strictly necessary for these decisions for the Court to adopt Baskerville, it was certainly cited with approval in Chidiac by this Court, BRS and Pollitt.  Chidiac (1991) 171 CLR 432 at 456 and 460, three judges expressly referred to it there; in Pollitt (1992) 174 CLR 558 at 600, and in BRS (1997) 191 CLR 275 at 283, 291, 297 and 324.

KIRBY J:   Can I just ask you, you plunged into these common law principles, but this was a trial governed by the Evidence Act.

MR TILMOUTH:   It was.

KIRBY J:   What are the implications of the Evidence Act, both for their direct application and for moulding any common law principles to ensure that they are consistent with the principles of the Evidence Act?

MR TILMOUTH:   Yes.  What happened, in a word, was that the Evidence Act rather became overlooked.

KIRBY J:   I am sorry?

MR TILMOUTH:   The Evidence Act was overlooked at the trial, and the Full Court acknowledged this.  In effect a ‑ ‑ ‑

KIRBY J:   This is always the case.  Lawyers hate statutes.  They love judge‑made law.

MR TILMOUTH:   That may be, your Honour, but, in fact, of course, overlooking the statute worked to the detriment of the appellant because if the statute applied and something less than the standard common law warning was given and perhaps a short sharp warning, as the Supreme Court of Canada said in Vetrovec for example, was given, it would have been more advantageous to the appellant.  Of course, the more the court goes into each item of corroboration, the more it stacks up as against the appellant in this case.  In the end result that does not, in my submission, help the respondent.

May it please your Honours, that question of the admissibility of that evidence was not resolved by the Full Court, and one may see that at 1552, line 136:

It is unnecessary, having regard to our finding in relation to Mrs Dillon, to consider whether or not the deceased’s statements to Mrs Skellern, Mrs Noordhof and Constable Dix -

the first two of the neighbours referred to back at 1546 -

were made “shortly after” the coffee incident.

And therefore, admissible under the relevant sections -

Those statements were, in substance, similar to that made to Mrs Dillon.  If Mrs Dillon’s testimony was admissible, there could be no real prejudice to Conway -

et cetera.

McHUGH J:   But there was other evidence as well, was there not, because was there not a diary entry of hers much to the same effect, and in the record of interview when examined by the police officers, your client conceded, did he not, that his wife had told other people, including her solicitor, I think, that he put some drug in her coffee?

MR TILMOUTH:   I do not remember the latter, your Honour, but there was other evidence and that is all at 1542, summarised in paragraph 104.  But the point I am making is that part of the evidence used by the Full Court was evidence that they did not resolve the admissibility of.  More importantly, let us assume, contrary to my submissions, that it was admissible.  Surely if it goes to the jury, it would have to go to the jury on the basis that they found, first of all, beyond reasonable doubt that the substance was heroin.

GAUDRON ACJ:   I do not see why.

MR TILMOUTH:   Because, if it was being used as an indispensable chain in the reasoning to guilt, then they would have to find that it was heroin in the first place.  Of course, if it was being used in the way that was being argued by the respondent today, that very argument assumes that the substance itself was heroin and had these relevant links with other pieces of packaged evidence.  The point I make is the learned trial judge never left it to the jury that way.

At 1561, paragraph 170, the Full Court wrongly, in my submission, rejected a submission that the judge should have directed the jury in accordance with this Court’s decision in Shepherd’s Case.  The gist of the submission was that before the jury could use all this material about heroin in the deceased’s coffee, they had to find that that substance was heroin beyond reasonable doubt because of the way it was sought to be used and linked.  No such direction was given and, in my respectful submission, paragraph 170 is therefore wrong.

The last point, may it please your Honours, my learned friend put to the Court that with Williams having a large amount of money and giving it to people and so on was highly corroborative.  Could I point out that on Steer’s evidence and Redfern’s evidence, one of his associates, he often had large amounts of money, around $15,000 or thereabouts, because he was a drug dealer.  There was quite a deal of evidence that that amount of money, it was by no means unusual so far as his situation was concerned.  That being so, the significance of giving people $300 or $600 was barely important in the context of the case.

CALLINAN J:   Mr Tilmouth, just on the coffee incident, leave aside the coffee entirely and just look at your client’s own evidence as to the finding of the two pieces of foil.  It is established that they contained residues of heroin, is it not?

MR TILMOUTH:   Yes, I think that is right, your Honour.

CALLINAN J:   So that is his evidence.  His evidence is that he found them on the window sill.  There is no suggestion anywhere that she ever had any addiction or acquaintance with heroin, is that not right?

MR TILMOUTH:   I believe that is right, your Honour.

CALLINAN J:   What is the explanation for his finding the heroin or finding this foil and dealing with it in the way in which he did, making sure that it got on the public record, as it were, that it was found at her house?

MR TILMOUTH:   Would your Honour pardon me for a moment? 

CALLINAN J:   Yes. 

MR TILMOUTH:   I think I might have conceded too much.  Your Honours, I can only be imprecise, because it is not reproduced, but I understand there was some evidence - maybe not great - in relation to heroin and the deceased.  But your Honour is quite right that the heroin that he took back to the police station, when analysed, did come from the window sill. 

CALLINAN J:   But there was no evidence of any signs of any injection ever on her body.  The pathologist examined her ‑ ‑ ‑

MR TILMOUTH:   No.  As I understand it, that is right. 

CALLINAN J:    ‑ ‑ ‑ and found that there just was not any. 

MR TILMOUTH:   That is true. 

CALLINAN J:   So, therefore, if you leave the coffee out of account altogether, it seems to me that it is still a powerful piece of evidence:  his finding, or claim to have found, the foils where he did, and putting the finding on the public record, taken with the fact that she was killed by a deliberately injected massive overdose of heroin in circumstances in which she had never taken or had heroin before.  Why is not the claim that he found the foil and dealt with it in the way in which he did a powerful piece of evidence tending to implicate him in the murder? 

MR TILMOUTH:   Well, that is a big bow, if the Court pleases.

CALLINAN J:   I do not know about that.

MR TILMOUTH:   I have already put the submission that they would have to prove in the end result beyond reasonable doubt that there was heroin in that coffee.

CALLINAN J:   No, no, leave the heroin ‑ ‑ ‑

MR TILMOUTH:   No, I understand your Honour is saying that.

CALLINAN J:   Leave the coffee out altogether.

MR TILMOUTH:   But that already creates a big gap in the chain of reasoning as it were because all that you are left with is him finding some heroin in the kitchen area – I think it was – the windowsill, and a subsequent occasion where she is injected with heroin.

CALLINAN J:   It is almost proved beyond reasonable doubt.  I would have thought it was proved beyond reasonable doubt that she would not have had heroin at her house for any purpose.  If you assume that for present purposes, and, yet, he claims that he found heroin and he makes a point of his claim by causing it to be recorded and she dies from a massive injection of heroin.  How do you explain – what possible explanation is there, other than his implication in her death by a heroin overdose?

MR TILMOUTH:   With respect, that makes huge assumptions.  The finding of heroin itself has nothing to do with the later events on 3 May, at least taken alone.

CALLINAN J:   Was it a total non sequitur then, you say?

MR TILMOUTH:   I still submit that in the end result, as it was put to the jury, that if it was an act preparatory to murder in the way that the Crown alleged, ie, by trying to get some traces of heroin in the body for a suggestion of ‑ ‑ ‑

CALLINAN J:   No, leave out the coffee altogether by trying to establish or trying to lay a foundation for her having heroin at her house and therefore using heroin.  Do not worry about it being in her body or being in the coffee at all, just divorce the coffee entirely from your considerations.

MR TILMOUTH:   It would just be a piece of prejudicial reasoning, with respect.  It would not be anything else.

CALLINAN J:   How else can you explain it?  She would not have had heroin there.  She had no reason to have heroin there.

MR TILMOUTH:   Maybe not, but how you use it as a piece of evidence against Conway, the appellant Conway, in relation ‑ ‑ ‑

CALLINAN J:   Because Conway chose to make a point of picking it up, taking it back to the police station and having a record made of it.

MR TILMOUTH:   How does that throw any light, with respect, on the rest of the material or his involvement?

CALLINAN J:   A massive coincidence then that subsequently she is killed by a injection of heroin.

MR TILMOUTH:   That, with due respect, assumes a huge link between the two, which rather begs the question.  I can only repeat, if the Court pleases, that to draw the link between the two you would have to find really, in effect – I know your Honour has asked me to ignore it, but it is really an indispensable element in all of this – that there was an attempt to put heroin in the body through the coffee incident.

By the way, could I add this.  Your Honours do not have this, but in the ruling to which the Full Court referred when it summarised the basis of admission at 1542, the written reasons of the learned trial judge referred to the Crown’s submission that the evidence demonstrates a bitter relationship between the deceased and the accused and was attempting to discredit the deceased for the purpose of family law proceedings between the parties.  Now, that was another explanation, even if one assumes what your Honour is putting to me.  In other words, it had a different purpose altogether because at that point, which was somewhat earlier, there was this question of the access argument.

It was also put, in fairness, by the Crown, as I have mentioned and summarised in the Full Court, that it was an act preparatory to murder but that depended again – I have put it as strongly as I can – on finding that the traces in that cup were heroin or that the jury had to make that finding beyond reasonable doubt before they could use it in the way suggested.  That evidence, if the Court pleases, was lacking and I have made those submissions.  May it please your Honours.

GAUDRON ACJ:   Yes, thank you, Mr Tilmouth.  The Court will consider its decision in this matter.

AT 4.17 PM THE MATTER WAS ADJOURNED