Debs v The Queen; Roberts v The Queen
[2005] HCATrans 971
[2005] HCATrans 971
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M41 of 2005
B e t w e e n -
BANDALI MICHAEL DEBS
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Melbourne No M42 of 2005
B e t w e e n -
JASON JOSEPH ROBERTS
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
GUMMOW J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2005, AT 10.26 AM
Copyright in the High Court of Australia
__________________
MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR C.B. BOYCE, on behalf of the applicant Debs. (instructed by Victoria Legal Aid (Criminal Law Section))
MR P.F. TEHAN, QC: May it please the Court, I appear with my learned friend, MR L.C. CARTER, for the applicant Jason Roberts. (instructed by Lethbridges)
MR P.A. COGHLAN, QC: May it please the Court, I appear with my learned friend, MRS C.M. QUIN, for the respondent. (instructed by Director of Public Prosecutions (Victoria))
GUMMOW J: We will hear you, Mr Holdenson, then Mr Tehan and then Mr Coghlan in both matters if need be.
MR HOLDENSON: Between March and July 1998 10 armed robberies said to have constituted a series were committed in the one general area of Melbourne. Those armed robberies came to be known as the Hamada armed robberies and the Crown led evidence of those armed robberies on the trial of the applicant. With respect to that body of evidence the Crown contended that a line of sequential and logical reasoning could be applied to that in this way. Debs was identified by an eyewitness as having been one of the armed robbers in No 1, Roberts was identified as having been one of the perpetrators in No 2 and those 10 armed robberies were said to be strikingly
similar, each to the other. Therefore, proposition 4, the same two offenders were involved in the entire series of 10 Hamada armed robberies. Therefore, proposition 5, Debs and Roberts committed all 10 Hamada armed robberies. Then comes proposition 6. Proposition 6, on 15 June 1998, the Silky Emperor Restaurant, being strikingly similar to the other 10, was to be Hamada armed robbery No 11, strikingly similar by reason of nature of premises, location of premises and time. Therefore, proposition 7, Debs and Roberts were present at the scene of the murder at the relevant time, that is, thereby proving identity.
Now, with respect to that line of sequential reasoning, there are two prerequisites. First, the evidence of the 10 Hamada armed robberies was admissible in this trial and, secondly, with respect to the identification evidence of Debs in No 1 and Roberts in No 2, there is an adequate identification warning. I will turn to those two matters in a couple of minutes.
With respect to the directions given to the jury by the learned trial judge with respect to the manner in which the jury might use that evidence, could we take your Honours very quickly to volume 1 of the application book at page 87. At volume 1, page 87, part way down the page, line 13:
The prosecution says that stamp, that pattern, identifies the two accused. Once you are satisfied at the start that Ms Coffman and Ms Chadwick are right, it identifies them through.
Let me give you a direction then about this pattern evidence, this similar fact evidence. Looking at the group of Hamada, whether you are looking at ten or nine, whatever you find, if you find the accused were involved at all, you have to decide whether the similarities relied upon by the prosecution are so striking, that there is such a clear individual stamp on them, that you conclude they are done by the same persons. If you are not . . . you do not act upon it as a group.
Next, you do not have to say it is ten or nothing. You may well say, “We are satisfied the two accused committed the ten”. You may say, “We are satisfied they committed nine” or “seven”. You decide that, but whatever multiple number you decide, you then have to say whether that persuades you of the Crown contention that it was the accused behind the Silky Emperor. That is the first matter. That similar pattern of robberies the Crown says proves the identity of the persons behind the Silky Emperor because, the Crown says –
and there is that phrase –
“Here they go again”.
So that is just one of the passages – and we identified all the rest in our outline of submissions – where the judge says to the jury by way of direction that with respect to that evidence, and no other evidence, that is, the evidence of the Hamada armed robberies alone, you can use that to find the identity of the offenders. His direction is clearly not a circumstantial evidence type direction, namely, you can consider this evidence together with or in combination with other evidence in order to find presence.
First point, the court below has therefore erred in rejecting our contention to that effect. For example, and one example only, in the judgment below, in the second volume of the application book at page 734, paragraph 234 his Honour says ‑ ‑ ‑
GUMMOW J: Just a minute. Just slow down a bit, Mr Holdenson.
MR HOLDENSON: I am just worried about the time.
GUMMOW J: The fact that you have 20 minutes does not mean you can try and talk for 40 minutes.
MR HOLDENSON: Page 734, paragraph 234:
I have already described the uses to which the evidence of the Hamada robberies could be properly put and, specifically, that the implication of one or both of the applicants in them could provide only circumstantial support for their presence in Cochranes Road on the night of the shootings . . . it was never contended, nor could it have been, that involvement in them of itself led to the conclusion that they were behind the Silky Emperor on that night.
Now, that is where, in our submission, the court below has made their first error of consequence in rejecting the only construction which can be given to that direction to which we took the Court with respect to the use to which the jury could put that evidence of the 10 Hamadas.
KIRBY J: I see the way you put this, but it all has an ethereal quality when one reads the testimony, first of all, that linked your client to the Hyundai motor vehicle, the very careful testimony that linked your client to the destruction of the rear window and the replacement of that and then the very potent testimony of the listening device that, really, it is just impossible to read it without accepting that your client was there, was involved and therefore there is no miscarriage of justice.
MR HOLDENSON: Can I respond?
KIRBY J: Yes.
MR HOLDENSON: There are two responses. What your Honour has just said and I will translate it. Mr Holdenson, it is a strong Crown case ‑ ‑ ‑
KIRBY J: It is not strong; it is tremendously powerful.
MR HOLDENSON: ‑ ‑ ‑ it is an overwhelming Crown case. Two responses. That reasoning is, in our submission, precluded by at least this Court’s joint judgment in the case of Prasad (1994) 119 ALR 399. I will take your Honours to it now. It is one of the cases we provided to the Court. This case is indeed on all fours with Prasad.
GUMMOW J: This is one of your triumphs.
MR HOLDENSON: I know. I hope this is another – not the second, but I hope it is another. Page 399, lines 33 to 35, it is clear that the court relied on the evidence of the two boys and evidence of motive and evidence of movement and flight and false denial to prove Prasad guilty of murder. How did the trial judge direct the jury? Lines 40 to 43:
in some parts of his charge to the jury, the learned trial judge appears to have given a direction that the applicant’s presence in the street with the deceased could be found as a fact on the evidence of the boys alone.
Pausing there, translating it to Debs: you can find that Debs was present on the basis of the Hamada armed robbery evidence alone. How was the Crown case put ‑ ‑ ‑
KIRBY J: This was very similar to Domican. It is very similar to Domican.
MR HOLDENSON: Yes, because where there is sequential reasoning, where there is a flaw at the beginning, then you cannot go through – that is the entire course of reasoning is flawed and that is why, with respect, even though the court below acceded to our submissions about the defective identification warning, they said, “We can proviso that by reference to what is in paragraph 234”.
KIRBY J: Domican was not one of my trials. I was reversed in this Court. I am not saying I am waiting for the chance to correct it but ‑ ‑ ‑
MR HOLDENSON: Well, we are relying on what the High Court said in Domican.
KIRBY J: Yes, that is true and I understand that and logically I see the force of it, but the fact is you are in the position that you have been convicted, the proviso has been granted, applied, and you have to show a miscarriage of justice, and when you read those transcripts it just is not there.
MR HOLDENSON: Your Honour, with respect to the application of the proviso to the defective identification warning, the basis upon which the proviso was applied is fundamentally flawed because the proviso was applied on the simple basis that that evidence as to Hamada armed robberies was merely a circumstantial piece of evidence in order to find presence. Wrong. It was a piece of evidence in order to find presence, full stop, in the absence of the other evidence. That is why we got provisoed, with respect, on an erroneous basis.
We were provisoed on the identification evidence by reference to Festa, which is where the identification evidence was merely a circumstantial piece of evidence, whereas this is Domican. We have been denied our entitlement to establishing miscarriage of justice by reasons – I have taken your Honours to the two paragraphs, clearly flawed. This is Domican, not Festa, therefore, we cannot be provisoed. That is just the ID warning. That is the point upon which we succeeded. But how does this case fit on all fours with Prasad? If I could take your Honours to the last line of 399:
If the jury found on that evidence that the applicant and the deceased were together on the street then, the jury was directed, it was open to them to infer guilt from that finding in the context of the evidence of motive, opportunity and false denial –
In other words, find murder by adding together four matters together, in combination with presence, motive, opportunity, false denial.
KIRBY J: Yes, but, Mr Holdenson, was Prasad a case where there was extremely lengthy, extremely detailed and extremely inculpating listening device evidence?
MR HOLDENSON: No.
KIRBY J: No. Well, that is your problem in this case.
MR HOLDENSON: No, it is – I will deal with ‑ ‑ ‑
KIRBY J: It is chilling. You sit there and you read the transcripts, read the way Justice Vincent dealt with them and it is just very difficult to overcome the proviso.
MR HOLDENSON: Can I deal with the listening – well, with no disrespect to Justice Vincent, the manner in which he has dealt with the listening device evidence is not how it was in the trial, with respect. The listening device evidence was this. Much of it was inaudible, much of it was unclear.
KIRBY J: Well, the father was often inaudible, but your client was audible most of the time.
MR HOLDENSON: Your Honour, in that conversation with the father in B24 it was very much open to the construction because some of the facts recounted in the conversation were contrary to the truth that he was merely recounting what it was that he and members of his family had been told in all those discussions as part of the investigation with respect to the car and also responding and repeating – and there was evidence about this in the trial and it is summarised in the charge to the jury, the evidence created by the police whereby they placed numerous stimuli in the press merely in order to cause or produce conversation between Debs and members of his family and Debs and Roberts and stuff that was being recounted in those conversations, in part, was just contrary to the realities of the case. Bragging, rubbish and a fool’s reflection and repeating what it was that was alleged.
KIRBY J: Including to take out two more Ds.
MR HOLDENSON: It was being put to him from very soon after the offence that he was responsible for the killing of the two police officers. But can I just move on because what is not in the judgment below was the next thing, the glass evidence. They pulled the car apart within five months of the killings. The scientists from the Victoria Police Forensic Science Centre in December 1998 analysed the glass fragments and the scientists ‑ ‑ ‑
KIRBY J: They had to have a second go at it.
MR HOLDENSON: They had a second go of it.
KIRBY J: But what of it?
MR HOLDENSON: With more glass. Hence, the real foundation for a real contention put by Mr Dane to the witnesses to the effect that there was some corruption somewhere which had placed further glass. Now, what I am getting to is this – and the same with the gunshot residue. Not there in December 1998 in the car. It is there 18 months later. Different scientist from the same place. Now, where this goes is this. The jury may well have found “unattractive” that evidence upon which your Honour is relying in support of the proposition put to me ‑ ‑ ‑
GUMMOW J: Your Honour is not relying on anything, Mr Holdenson. He is just putting questions to you, as we do from time to time.
MR HOLDENSON: The evidence to which your Honour is having regard in the judgment below.
GUMMOW J: Just listen to me for a minute. His Honour is not putting anything to you in the nature you suggest. We are just trying to get your case out of you.
MR HOLDENSON: It has been put against us that this was an overwhelming Crown case. The basis upon which it is put against us and, as I understand the discussion in this Court, prompting a response from me is that that evidence made this case overwhelming. Our submission with respect to that is this. Some of that evidence was rather unattractive when it comes to placing reliance on it, coupled with the directions to the effect that in finding presence you can act on the Hamada evidence alone.
Now, if all of that is flawed, if your Honours are against me on the first premise, namely, it was only circumstantial evidence, it still precisely falls within Prasad and the result in this Court in Prasad with respect to – by way of direction giving to the jury a flawed line of reasoning with respect to an area of evidence which cannot bear a certain finding, and in that case page 399, lines 39 to 40:
However, the boys’ evidence alone was insufficient to establish that the applicant was one of the men.
In the circumstantial case, boys’ evidence alone adds up to presence, plus motive, plus opportunity, plus false denial, equals murder. The High Court, page 400, ninth line on the page, commences with the word “Nevertheless”:
Nevertheless, the earlier misdirection might have led the jury into an entirely false line of reasoning. It is impossible to be satisfied that the jury did not convict in reliance upon the direction that the fact of the presence in the street together of the applicant and the deceased could be found on the evidence of the boys alone. If the jury so found and the finding was used as a foundation for the drawing of the ultimate inference of guilt, there was a miscarriage of justice.
That is further explained about five lines below that, and this is the point I made a little earlier in response to the question asked of me by your Honour Justice Kirby:
The error was in truth a positive misdirection. Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded.
Now, what I have not yet told you by way of oral submission is how it is that there is flawed reasoning within the direction. It is this – and we have identified it, of course, in our outline. The jury was invited to find that Debs was only one of the armed robbers in something less than 10, for example, seven or six or five or eight. If we proceed on the basis just for the moment that the jury found that Debs did six of them, then if we proceed on the basis also that it was the first six and the jury so found, that means that the jury have allowed or found that there is a reasonable possibility that the other real armed robbers are there for their fifth. Debs has done six; the other team of armed robbers have done four; here we are at No 11; therefore, the other armed robbers are there for their fifth. As soon as that ‑ ‑ ‑
KIRBY J: One of the common links was that one of the armed robbers was tall, six foot, which is Mr Debs, and that the other was shorter.
MR HOLDENSON: Taller, shorter, older, younger, giver of instructions, receiver of instructions.
KIRBY J: Right.
MR HOLDENSON: But the evidence with respect to the taller of the two armed robbers through the entire 10 armed robberies was not that he was six foot. It varied very, very markedly and my recollection ‑ ‑ ‑
KIRBY J: Tall in our society is usually six foot or thereabouts. They are the lucky ones.
MR HOLDENSON: The evidence varied markedly. His Honour’s directions assume that the jury might find six. His Honour recognises that and I took your Honours to one of the directions. If you only find six, then a corollary of that is someone else has done four and the effect of that is is the ‑ ‑ ‑
HAYNE J: That is a false dichotomy, Mr Holdenson, because the instruction at 88 was you have to be satisfied beyond reasonable doubt. Being uncertain about who committed the others does not mean that someone else did it. The dichotomy you establish is false.
MR HOLDENSON: In our submission, it allows for the reasonable possibility that someone else has done four. Even if it does not, the finding that Debs did the first six and the jury’s inability to make a finding with respect to Nos 7, 8, 9 and 10 still precludes the jury from finding beyond reasonable doubt that Debs was there to do No 11, that is, his seventh having already done six. All the more so in the light of the direction with respect to, in finding presence you may act on the evidence of the Hamada armed robberies alone and in isolation from and not together with the other evidence.
So even if I have proceeded on the basis of a false dichotomy, the jury’s finding is such that it is not open to exclude as a rational hypothesis that someone else is there for No 7. If that is the case, the directions are flawed and the application of the proviso – we succeeded on the point about the identification direction – the application of the proviso has proceeded upon a false foundation and, with respect, that places this case again akin to cases such as Domican and Prasad, and the red light is on.
GUMMOW J: Thank you. Yes, Mr Tehan.
MR TEHAN: May it please the Court, we want to immediately deal with Justice Vincent’s application of the proviso. There are three errors in his Honour’s conclusion on this score. The first is that his Honour found that the jury would have understood the significance of the controversy as to identification. Such a finding is inconsistent with the very rationale for this Court’s decision in Domican. Juries need proper directions upon identifications, assumptions cannot be made.
KIRBY J: You make that point powerfully and you made it powerfully in the Court of Appeal, but they were inadequate and the Court of Appeal upheld that complaint.
MR TEHAN: Indeed, your Honour. The same mistake was made by this Court of Appeal as, with respect, was made by the New South Wales Court of Criminal Appeal in Domican.
KIRBY J: Thank you, Mr Tehan.
MR TEHAN: Well, it was, your Honour. It is enough to look at ‑ ‑ ‑
KIRBY J: I accept the High Court’s decision in Domican. That has to be applied.
MR TEHAN: That is what happened here.
KIRBY J: That is what the Court of Appeal said.
MR TEHAN: Justice Vincent said it is enough to look at the evidence in the case, the judge’s recitation of the evidence and counsels’ addresses.
KIRBY J: I accept all that, but at the end of the day you stand here as a person who has been found guilty by a jury, convicted by the judge and the Court of Appeal has confirmed it. You are seeking special leave and the key question is: has a miscarriage of justice occurred? Therefore, you have to overcome that. We have to think it is a reasonable chance that you will make that good. Now, the transcript in your case is not as powerful against your client, not by any long shot, as against Mr Debs. So the question is whether your client stands in a different position.
MR TEHAN: He does. He stands in a completely different position. He was entitled to a separate trial, a separate appeal, and a separate special leave application will demonstrate that his case was radically and significantly different from that against Debs. But can I go to the second ‑ ‑ ‑
HAYNE J: Why would you have severed this presentment when it was alleged that these were joint offenders?
MR TEHAN: Debs made a confession, allegedly on the Crown case, we did not. Debs threatened to kill other police officers, we did not, so the Crown said. Debs was associated with the use of the motor car, on the Crown case, we were not. What happened at the end of the Crown case in final address is, the Crown not having in their opening identified any wrong on the part of Roberts, what they did in final address was to use B24 to delineate his role as the first shooter. That piece of evidence was entirely inadmissible in his case and yet it founded the whole premise on which the Crown went to the jury in final address.
KIRBY J: It is not as if your client was lilywhite in respect of the Hyundai vehicle. I mean, one of the earliest phone calls came from, I think, your client’s parents’ home.
MR TEHAN: He was associated with getting the windscreen repaired. So what? This was a 17-year-old boy who did not even have a licence. He was the boyfriend of one of Debs’ daughters. Now, can I return to where I was. The second error made by the Court of Appeal in applying the proviso was that they found that the strength of the case could be judged by removing Hamada from the equation. It cannot be removed from the equation because the judge directed the jury that they could act on this evidence alone in finding presence at Silky Emperor, and we adopt Mr Holdenson’s submissions on that score. Thirdly, to meet your Honour Justice Kirby’s contention, his Honour concluded that the case was overwhelming. That conclusion was wrong.
There were two pieces of evidence that I want to look at. First, the scientific evidence relating to glass, car and crime scene and, secondly, what Roberts said on the listening devices. Let us go to the first matter, the scientific evidence, remembering that there was a real issue in the applicant’s case as to crime scene as to whether there were two offenders, remembering that the police eyewitnesses saw only one offender, as did a civilian witness.
HAYNE J: What was the status of the statement made before death by one of the victims?
MR TEHAN: There was a real issue as to the reliability of that dying declaration, your Honour. The other aspect of the scientific evidence is association of the applicant with repair of the windscreen. He did not own the car. He did not even have a licence, as I said. Much of the evidence in relation to the windscreen and the car was second‑hand hearsay information type of evidence which would have been easily gained by the applicant because he was the boyfriend of Debs’ daughter. Indeed, a critical analysis of the listening device material would demonstrate that Debs was want to speak as much to Roberts about that matter as he was to members of his family.
Let us then go the listening device material. It is clear, in our submission, that this evidence against Roberts is of a radically weaker quality compared to that against Debs.
KIRBY J: I accept that it is weaker, but that will often be the case, will it not? In joint trials you are going to have stronger and weaker evidence against co-accused?
MR TEHAN: Your Honour, it is demonstrated in this way. At application book 755, paragraph 280, at the end of that paragraph all Justice Vincent can point to is:
the repeated utterances by Deb, one of which was made in the presence of an apparently approving Roberts, that it may become necessary to kill other police members in order to derail the investigation.
That is as far as it goes.
KIRBY J: Yes, but his Honour says in that very paragraph:
Almost never in criminal trials in my experience –
which in Justice Vincent’s case is considerable –
has the prosecution been able to adduce such a combination of circumstantial evidence and powerful self-incriminatory statements.
“Almost never”.
MR TEHAN: With respect, your Honour, and with respect to Justice Vincent, nowhere is it demonstrated how the case of Roberts is overwhelming, how or why the case against Roberts is overwhelming.
KIRBY J: Is there a single instance on the recorded conversations where Mr Roberts says something which is incompatible with his being at the crime scene?
MR TEHAN: Your Honour, he is ‑ ‑ ‑
KIRBY J: I am just asking you that. I realise that the case against Mr Debs is much stronger than against your client, it seems to me, but is there a single thing he ever said that is exculpatory?
MR TEHAN: It is his silence. There is his record of interview. There were two ‑ ‑ ‑
KIRBY J: No, I am asking is there anything positive he ever said?
MR TEHAN: On the devices, is his silence.
KIRBY J: Silence.
MR TEHAN: There is his lack of presence on many of the ‑ ‑ ‑
KIRBY J: But as against that you have the glass at the scene, that it is tied into this Hyundai, it is the Debs Hyundai. Within a couple of days the phone call comes from Mr Roberts’ home to the Hyundai replacement factory and ‑ ‑ ‑
MR TEHAN: We did not join issue on the glass. Mr Debs’ counsel conducted the trial in relation to the glass evidence as that there was a conspiracy and that there was a corruption. That was not the way Roberts’ case was conducted, which is a further reason why he should have received a separate trial. It must be remembered in relation to the listening device material that there is no confession, no statements that other police should be killed and no statements that the investigation should be derailed by Roberts. No statements to that effect at all. He is either not present or silent upon many of the tapes and Debs spoke to his father and daughter and other members of his family about the progress of the investigation in killing police, so that there was a real controversy as to whether Roberts’ alleged knowledge of the crime scene investigation was firsthand.
I have referred to the very detailed records of interview where he denied involvement in the offences. Just one example is, “I can’t speak for him”, meaning Debs, “but I wasn’t present at Silky Emperor. I had nothing to do it. I weren’t even there.” The conclusion is this was not an overwhelming case against Roberts and Justice Vincent was wrong in forming the view that the jury would have well understood the weaknesses in the identification evidence.
Now, can we move to ground 1, and that ground, of course, concerned separate trials much of which I have dealt with. There were two reasons why, in our ‑ ‑ ‑
KIRBY J: There was no mistake in the statement of the principles, was there, by the trial judge? He stated the correct principles. He had the submission for the separate trials. He then exercised his discretion by reference to the separate principles.
MR TEHAN: Yes.
KIRBY J: Now, I understand you say that that brought in against your client a lot of very powerful evidence against Mr Debs that otherwise he would not have had to face. I understand that. That, it seems to me, a very powerful point, but when you read the transcripts of the conversations it is almost impossible to come to the conclusion that there has been a miscarriage in this case. I am of the same view as Justice Vincent, and I have sat on a lot of these applications. I have never seen such a careful – probably because there were two policemen killed. It was very careful forensic evidence.
MR TEHAN: Well, let me conclude. The special feature of this case is the use by the prosecutor of inadmissible material against Debs in our case to found liability in our case. That is what makes it special and that is why at the end of the day there has been a miscarriage of justice in our case which calls for a separate trial.
KIRBY J: It is hard to get to this Court on that issue, though, is it not? The principles are correctly expounded, they are applied, discretion exercised, Court of Appeal rejects the exercise. It is hard for you to get up on that.
MR TEHAN: A fair trial would have meant a separate trial, your Honour. The test is whether the evidence is significantly different. It is. This material, in particular the Debs confessional material, swamped the case. The Crown used it to say our client was there and was the first shooter. How can the jury possibly put that out of its mind?
Can we turn then to the admissibility of the Hamada evidence. If you take Hamada out of this case, it is not overwhelming. Even if it is in in relation to Roberts, it is not overwhelming, remembering that the lynchpin for Hamada was the evidence of identification by Olivia Coffman, by photoboard, 19 months after the second robbery, which was not a robbery of a restaurant, which was not a robbery late at night. This was the robbery of Sportsmart at 5 o’clock in the afternoon.
KIRBY J: But your client had gone to Sportsmart.
MR TEHAN: And he had gone there beforehand.
KIRBY J: His mother worked in the same complex.
MR TEHAN: That is right.
KIRBY J: And he visited the mother.
MR TEHAN: Yes, exactly.
KIRBY J: And she thought she knew him.
MR TEHAN: Yes, he had gone there before, which makes the identification the more unsafe. Unrecorded is the identification which is made nearly two years later. This evidence was admitted pursuant to section 398A of the Crimes Act (Vic) which is set out insofar as is relevant at application book page 20 at line 16:
In Victoria, the admissibility of propensity evidence is now governed statutorily. S 398A(2) Crimes Act 1958 provides:
“Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it, despite any prejudicial effect it may have on the person charged with the offence.”
I will skip a couple of lines. Reference was made to what President Winneke said in Tektonopoulos that the section does not:
“set at nought the body of common law principles which this country and England had formulated over a period of more than 100 years, commencing with Makin v The Attorney‑General of New South Wales in 1894.”
KIRBY J: Justice Winneke expressed his anxiety about this.
MR TEHAN: He did.
KIRBY J: He said that his first impression was that it should not have been admitted and, in fact, was not necessary, but he then came to the conclusion alike with Justice Vincent.
MR TEHAN: Wrongly, because, to use his Honour’s words, it would interact with other evidence. On the point of admissibility our submission is this. You do not look at the other evidence. Similar fact evidence is a special type of circumstantial evidence. It must have cogency, strong cogency, on its own account. You do not get that ‑ ‑ ‑
HAYNE J: That is ignoring what is said Pfennig and ‑ ‑ ‑
MR TEHAN: Well, maybe Pfennig is wrong.
HAYNE J: ‑ ‑ ‑ in the context of the prosecution cases I think the critical phrase in Pfennig ‑ ‑ ‑
MR TEHAN: Maybe Pfennig is wrong.
KIRBY J: We have had a recent argument before us on similar facts.
MR TEHAN: I am aware of that, your Honour. Maybe Pfennig is wrong. How can you look at the other evidence, the car evidence – to use Justice Cummins’ approach on trial, the pincer effect, which is conveniently not ‑ ‑ ‑
KIRBY J: Well, it is explained in the reasons: because it sets the background, it is the context and it explains why the police were lurking there waiting for the accused or the people ‑ ‑ ‑
MR TEHAN: With the greatest of respect, your Honour, that would be no reason to admit the – I mean, in the Court of Appeal President Winneke said you could have easily led evidence as to why the police were there without leading Hamada. Indeed, even in discussion there was no suggestion that this evidence would be admissible on the basis of motive alone or, indeed, contextual background. Let us get real. The reason why it was being admitted was in relation to identity, and there was no striking similarity pattern or underlying unity in relation to Silky Emperor.
KIRBY J: Well, there were features. It was in a circumstance where it was isolated. It had features similar to the other 10 cases.
MR TEHAN: Your Honour, it was late at night, in south‑east ‑ ‑ ‑
KIRBY J: Yes, at closing time.
MR TEHAN: Closing time. None of which apply to Sportsmart, of course. I made that point. Late at night, in south‑east Melbourne and it was a soft target. The underlying unity, pattern or striking similarity did not ‑ ‑ ‑
KIRBY J: You will not forget the tape, the tape that your client had at work that was a common feature of the taping of the victims.
MR TEHAN: But, your Honour, the tape evidence was rejected both on admissibility by the trial judge. He did not have regard to it and, indeed, he directed the jury in his charge not to have regard to it. The mask evidence, all that went. You cannot use the tape. The trial judge did not. The striking similarity pattern or underlying unity came from, so it was said, the body of the Hamada evidence itself. It did not come from any link with Silky Emperor.
We say firstly that the Hamada evidence was not relevant to any fact in issue. It was irrelevant. There was no connection between it and Silky Emperor. Secondly, we say it was not just to admit this evidence and that the Court of Appeal, in finding that it was, was wrong in finding that the trial judge had not engaged in circular or otherwise impermissible reasoning because in fact he did engage in such reasoning by having regard to the car evidence.
In our submission, if it is the law that similar fact type of evidence is a special type of circumstantial evidence requiring a strong degree of cogency on its own account, then no regard can be had to the other evidence in the case, and that is a special leave point upon which this application should be granted. In our submission, this Court should make it clear to trial and intermediates courts that before it is just in a rare case to admit propensity evidence that evidence must have strong probative force on its own account without regard to the other evidence.
KIRBY J: Either way, you did not reserve the question of the adequacy of the identification evidence direction at trial, did you? Neither side did?
MR TEHAN: Mr Dane took exception.
KIRBY J: I thought that it was stated here that there was no reservation of that point.
MR TEHAN: Well, we take issue with that. Mr Dane, in our submission, did take exception to – and, indeed, it was in the context of that that Domican got raised.
KIRBY J: Anyway, it is not ultimately determinative.
MR TEHAN: No, but if it is said he did not take exception, we would point the Court to application book 540.
KIRBY J: I am just referring to paragraph 275, page 754:
Counsel for Roberts took no exception to his Honour’s directions concerning the identification of his client by Ms Coffman.
MR TEHAN: I understand that is said, no exception, yes, I understand that is said, but the fact of the matter is counsel for the first accused took exception to the adequacy of the – would it have made any difference if counsel for Roberts had stood up and said the same thing? Of course it would not have.
KIRBY J: Anyway, it is not determinative, so it is a bit of a red herring.
MR TEHAN: No, with respect, your Honour. Now, the other matters that we say are erroneous in relation to the admissibility of Hamada are that the Court of Appeal and the trial judge took little account of the fact that the Crown could prove its case without this evidence and, indeed, ultimately went to the jury on the basis of counselling the judge that it was of limited value, that it would be and was put to the jury that they could be satisfied that the applicants were involved in any unquantified number of Hamada armed robberies.
The Privy Council in Makin v The Attorney‑General never had to deal with the contention that the trial judge in New South Wales had told the jury you only had to be satisfied of two or three infant deaths and you only have to be satisfied of that address, not the other addresses where infant babies were found. No, of course the Privy Council did not have to deal with that sort of direction because it would not have been given. In no other serial similar fact type of case has such a direction ever been given in a court in this country, and that is what makes this case special, and we adopt everything Mr Holdenson has said on that score.
GUMMOW J: Yes, thank you, Mr Tehan.
MR TEHAN: Yes, thank you, your Honours, I have seen the light.
GUMMOW J: Mr Coghlan. We would be assisted if you would concentrate first on the Roberts matter.
MR COGHLAN: Yes, your Honours. Well, it is submitted that the analysis done by Justice Vincent of the evidence as it relates to Roberts demonstrates why it was a substantial case against him, not as powerful as the case against Debs, that is so. The matters of significance were that he was, at the very least, through the daughter connected with the car, that he had been involved in material relating to the car, including the replacement of the window and so on, on two different occasions, that he had given ‑ ‑ ‑
KIRBY J: Both of those on their own could just be the result of family obligations or relationships.
MR COGHLAN: They could, your Honour, but the timing of that material is significant, the time on which it occurs, and the fact that he subsequently tells lies, was open to the jury to say were lies, about what led to the replacement of the glass in the car.
GUMMOW J: Yes, what was the lie about that?
MR COGHLAN: Your Honour, it really turned on the circumstances on how it could have been broken. There was a line being put by Debs which was that he had broken it on what becomes the Wednesday evening by slamming it against some material in the car when there was evidence available to say that it was broken at a date earlier than that and that is a date close to the murders.
KIRBY J: This Court has said many times that lies have to be looked at with care because, again, that could be relationship based.
MR COGHLAN: Careful directions were given in this case on the question, your Honour. But one of the major issues that related to Roberts about the car was that some of the material was found on the listening device material and, in particular, a passage adverted to at page 672 of the application book, paragraph 94. There was some material that emerges and is set out by his Honour of the car being checked by a couple of police officers who say, “We’re just looking at all Hyundais of this particular kind”, and he was present in the car and reports back about that, but then he goes on to say in the passage that there appears:
‘Then I’m lookin’ at this clown, I’m laughing I’m try, trying’ not to laugh, right, he opens it then shuts. Opens it, right up and then straight away, carpet, moves, to look …(inaudible)… Checked the masonite for holes, straight away up and around the spare tyre with his hands, see if there’s any holes, cause they think it went like this, straight through, into the …(inaudible)… and off the wall and there was some repair, der, der, right, so that the cop went like that, breath.’”
Now, the significance of that was that there had been some damage to the car established in the scientific evidence which was damage that related to bullet damage but it did not make a hole in the car. When you look then at the whole of the scientific evidence, placing the car at the scene and then going through the detail that was involved in this sort of analysis, no hole in the car, looking through the car and laughing because I know the hole is not there, and his knowledge about that, together with the evidence that the scientific evidence had established two guns being used by persons other than police officers, together with the dying declaration, and the balance of the scientific evidence of the use of the two guns, the proper interpretation of which was it was being used by two people standing at different places.
KIRBY J: One in the car, one on foot.
MR COGHLAN: Ultimately, your Honour, by the time the incident is completed. The description then given in the dying declaration, one in the car, one on foot. In relation to the question of separate trials, it is submitted that this was plainly a case that called out for these two accused to be tried together in relation to this joint crime and that there was nothing that arose out of the material that was so prejudicial in the case against Debs that would lead to the – that could not be dealt with by appropriate warnings given by the judge, which were given, as to the separate consideration of the case. In practically every passage ‑ ‑ ‑
KIRBY J: It is true though that it did bring in an awful lot of baggage from Mr Debs to Mr Roberts.
MR COGHLAN: In part, your Honour, the nature of joint cases. The cases will sometimes, in fact commonly, be stronger cases against one accused than the other, but that of itself does not become a basis for ordering ‑ ‑ ‑
KIRBY J: Well, as you say, it is a question of the degree of the prejudice and that was all considered below, but it is just that when you read the transcripts of the listening device it is such chilling material but almost exclusively from Mr Debs.
MR COGHLAN: But not all from Mr Debs and not all in the absence of Roberts. He is present for some of it, your Honour. It was open, at least on one passage – I will just see if I can – your Honour, just as a matter of completeness, in relation to the passage at 672, the part that had given rise to that earlier interception is to be found at paragraph 108 on page 679.
KIRBY J: The passage at 679, yes, is pretty telling.
MR COGHLAN: Yes. Then at paragraph 110, your Honour, is an example of one of the passages where the applicant Roberts is present and joining in the conversation, which is a conversation about the discussion of what is to be done in terms of covering up all that had ‑ ‑ ‑
KIRBY J: The suggestion put to us is that this is just bravado of a 17 or 18‑year‑old in respect of his partner’s father.
MR COGHLAN: All that was put at the trial, your Honour. The jury heard all that. That is what the defence was. The jury heard all of it. This is a claim or might be a claim to bravado, but the jury heard it and the jury had the benefit of hearing all of the material. They heard all the tapes and were provided with equipment to listen to it as often as they needed to in their deliberations.
KIRBY J: Yes, the passage at the very bottom of page 681 is also relevant.
MR COGHLAN: Yes, that is so.
KIRBY J: He says that:
the police have an idea, they think they know how it happened, of course.’
Jason: ‘Yeah, and I’ve seen two of their ways that they…’
Joanne: ‘And.’
Jason: ‘… think it happened, and it’s fuckin’ backwards.’”
MR COGHLAN: Yes.
KIRBY J: So he is asserting a knowledge of how it actually happened.
MR COGHLAN: A detailed knowledge, your Honour, of the matters that took a very, very detailed scientific analysis of the whole of the material which began on a slightly wrong basis and then had to all be completely redone and ‑ ‑ ‑
KIRBY J: Well, you better leave time for the Domican and Prasad points, because the suggestion is that in those cases this Court said because we do not know the way juries reason, if you can show that there was an inadequate direction on identity evidence, as the Court of Appeal found, no sufficient specificity, then if that could have been the way the jury reached its final conclusion alone, then that is enough. The case has to be retried.
MR COGHLAN: Yes, the one thing that was clear, your Honour, that this jury were instructed on a very large number of occasions that the one thing they could not do was get to guilt on a direct path via Hamada, that it was always put to the jury – and, indeed, the way that his Honour had even described to the jury, speaking about Hamada from the very beginning is, beginning at line 11 on page 84:
Not every piece of the circumstantial evidence has to be proved beyond reasonable doubt. You may find one piece makes another piece more likely, as I have just said, having scrutinized it carefully. But if you are relying upon Hamada, the Hamada element in the circumstantial case must be proved beyond reasonable doubt.
So Hamada itself was a circumstance, the establishment of a circumstance that these men had been the Hamada armed robbers, one, to potentially place them at the scene, two, to show motive and, three, to show the relationship between them. That is ultimately what led to the very careful redirection, it is submitted, that is set out most conveniently in pages 731 and 732 of the application book in the judgment of Justice Vincent, all of it contained in paragraph 230. But what his Honour had said, and he is dealing with it as being part of the circumstantial case, his Honour had come back to saying:
To act on the Hamada robberies, however many, if any, you are satisfied that the individual accused, or both, committed as proof of identification, or as motive in the charges of murder, or as association or relationship between the two accused, you must be satisfied that the individual accused, or both, was an Hamada robber; and also you must be satisfied that he or they were in the car behind the Silky Emperor. If he or they weren’t in the car behind the Silky Emperor, Hamada is irrelevant and you must put it completely aside.
That is, unless in the circumstantial case you get to the point of reaching that conclusion, you disregard it. But more than that, at the bottom of page 732 at about line 43 his Honour said:
Finally, if you were satisfied beyond reasonable doubt that either or both accused were the Hamada robbers as I have defined, that of itself would not be enough to convict them of murder, because they are charged here with the two murders, not the Hamada robberies. You need to look at the other evidence – the scientific evidence, the listening devices, the lie by Mr Debs or the lies by Mr Roberts – to convict of murder.
The point of the Hamada robberies is this: It is not sufficient to convict them of murder if they are the Hamada robbers. What the prosecution says is, it is important evidence for you to consider because it assists you in concluding they were behind the Silky Emperor for Hamada no. 11 –
as a circumstance, if I can add that in parentheses –
and it assists you in concluding they had a motive to kill police rather than be apprehended and searched. That is how Hamada is put.
KIRBY J: Certainly in respect of Mr Roberts, the Hamada evidence was very important because it was in that evidence that there was the identification.
MR COGHLAN: Yes, and there was identification also of Debs in that evidence.
KIRBY J: There was, but there is other evidence about Mr Debs that is very strong to link him to the scene.
MR COGHLAN: Yes.
KIRBY J: With Mr Roberts you really need the Hamada evidence, do you not, to get in at the homicide?
MR COGHLAN: No, it is submitted, your Honour, there is a case capable of being made out and still a powerful case when you go to the whole of the material against Roberts as well.
KIRBY J: But it would be circumstantial?
MR COGHLAN: Yes, and just one part of the circumstantial case – and it is submitted in one sense that is why Justice Vincent dealt with it in the way he did by the use of the proviso because he was dealing with something that formed part of the circumstantial case, not a separate matter from which conviction could flow. The real issue that arose out of Domican and has arisen constantly, in particular out of the identification cases, the real risk that arises is there might be conviction arising out of this piece of evidence. Not so in this case. They were told time after time, acting on Hamada alone, the one thing you cannot do is convict these accused of murder, and
that is really what it came to. It is in that context that the proviso was applied and in that context it was rightly applied it is said, because it was a part of the case.
There is a tendency to concentrate on Hamada being the whole of the case because it took a lot of time. Well, it was only part of the case and always said to be part of the case in a particular way establishing certain things. Summarised, it is submitted, very adequately in the way that it was put and in the way that the President summarised the separate remarks he had to make on the admissibility of Hamada evidence. Unless there are other matters.
GUMMOW J: Yes, thank you, Mr Coghlan. Mr Holdenson.
MR HOLDENSON: The evidence of the Hamada armed robberies and the use to which that evidence could be put depended upon the finding by the jury that Debs did No 1 and that in turn depended upon the eyewitness evidence given by Ms Chadwick. She gave evidence that she identified Debs in a video lineup 30 months after the commission of the armed robbery. Her evidence at the trial was that during the armed robbery she was fearful.
The circumstances of the robbery were harrowing, upsetting, terrifying and horrific, she said. The armed robbery went for less than five minutes. She only saw the man she came to identify for between one and two minutes and the observations made by her were side on in circumstances where he was wearing a disguise comprised of a hat or a cap and dark glasses, and he was more than six feet tall and she had said immediately after the robbery that he was only aged in his 30s, and after the robbery she had to have three months off work because she identified customers as being armed robbers and, indeed, every man that came into the shop was an armed robber. She then makes the identification 30 months after the event from a video in which the applicant was seated, dressed differently and neither wearing a cap nor glasses and she made that identification after, she said in her sworn evidence, having previously seen television news footage of the arrest of the applicant when he was arrested and charged on 25 July, she having made that identification on 21 September.
Now, the evidence, therefore, with respect to the Hamadas is weak because where there is a defective Domican warning with respect to that evidence of visual identification, there is a risk that the jury has erroneously found that Debs did No 1 and thereby erroneously found that he has done a number more. Now, the Crown, in our submission, have in this case made a fatal concession in their written submissions at page 816. The respondent has said at page 816 at paragraph 3.28:
There is not a linear progression from the HAMADA armed robbery series to the Silky Emperor –
Well, in our submission, the jury was directed to the contrary and, albeit Mr Coghlan took you to a passage toward the end of his oral submissions, if I could just remind your Honours he did not read out the passage on the page and, indeed, said, as he made reference to it, in parentheses. The passage to which he took your Honours is at page 603 of the second volume where at line 12 it is set out:
The point of the Hamada robberies is this: It is not sufficient to convict them of murder if they are the Hamada robbers. What the prosecution says is, it is important evidence for you to consider because it assists you in concluding they were behind the Silky Emperor for Hamada no. 11, and it assists you in concluding they had a motive –
That is correct. You get to prove murder not by reference to presence at Silky Emperor, you have to add to it the evidence that makes it a murder by the people that were there, expert evidence about guns, Dr Shelley Robertson, the forensic pathologist, the two eyewitnesses, police officers Sherren and Bendeich, and the dying declaration. You cannot find murder from the Hamada armed robberies, that is correct, but you do get to find presence. That passage there, which comes at the end of three and a half pages of redirection after the point was taken, is only to the effect finding that they did the Hamadas does not enable you to find murder. It only assists you in that regard because the Hamadas only get you to presence.
Now, what has occurred here, in our submission, can be put very shortly. The result below, no matter how strong the Crown case, is contrary to this Court’s decisions in both Domican and Prasad. That of itself, in our submission, requires a grant of special leave, but there is one other point and it is this. The proviso was applied against us on a clearly flawed basis with respect to what was accepted by the court below to be a defective identification warning.
I have just taken your Honours through, in summary form and a correct summary of the sworn evidence given by Tracey Chadwick, the identification witness, with respect to Debs in armed robbery No 1. It required a proper identification direction. There was not one. The court accepted our propositions or submissions in that regard and then applied the proviso on the basis of this evidence is only circumstantial evidence to be taken together with – that of itself, apart from being contrary to Domican, is, with respect, contrary to this Court’s analysis in Prasad. If the Court pleases.
GUMMOW J: Mr Tehan.
MR TEHAN: Your Honours, in relation to the matter of Roberts’ involvement in the windscreen replacement, Roberts admitted being involved in such a matter. Could I take the Court to application book page 414 which is part of the judge’s charge and sets out the first statement that Roberts made to the police wherein he says at line 5:
“I have a girlfriend named Nicole Debs. I have been seeing her for about 18 months.” He went on, “I remember a few months ago Nicole told me her father had smashed her rear window of her Hyundai at work. She told me some shit in the boot broke the window when he shut it. Nicole did not tell me where it happened, only that it was at work. I remember Nicole also telling me that her father had replaced the windscreen but that he had not used the right glue and it had blown out and smashed on the road.
Now, the reason for pointing all that out is this. How could you exclude derivative knowledge in relation to the windscreen so far as Roberts is concerned? Debs was want to speak. Debs spoke about the windscreen to everyone in the house.
KIRBY J: Yes, these are very powerful points and I understand them, but what about the statements made by your client that it is said can only be understood by the fact that he was present in the car at the homicide moment?
MR TEHAN: Well, let us go to them, your Honour. Your Honour Justice Kirby took our friend to page 680 of the application book and the statement set out there.
HAYNE J: Prefaced, as it is, by the last line of 679. Debs is recorded as saying, “No one was there but us.” Who is “us”?
MR TEHAN: Sorry, your Honour, what page is it?
HAYNE J: Page 679, last line.
KIRBY J: Paragraph 110.
GUMMOW J: It was Nicole ‑ ‑ ‑
MR TEHAN: Yes, that conversation which is set out there is a conversation in which other family members were involved.
KIRBY J: Yes, but you do not get either Nicole – no one suggests it was a woman – or Jason, which is your client saying, “What do you mean ‘us’?”
MR TEHAN: But you do not get Joanne saying anything either.
KIRBY J: “No one was there but us.”
MR TEHAN: But this is conversation with family members.
GUMMOW J: Yes.
HAYNE J: That is rather the point I think that is being put against you, Mr Tehan.
MR TEHAN: What we are saying is simply this, that they are not overwhelming. Others were involved in these conversations. Others were not showing any protest at Debs making these matters. Near silence on the part of a 17-year-old – what is the difference between Joanne remaining silent and Jason Roberts remaining silent? There is no difference at all.
KIRBY J: It is just that you have to show a miscarriage of justice. The Court of Appeal applied the proviso. You have to get us to agree that there is a reasonable prospect that you will get up over that decision and when we look at the transcripts, as Justice Vincent said, they are very powerful.
MR TEHAN: And look at the way that they were used. If one looks at page 495, for example, of the application book and the first 13 lines of that page deal with the way in which the Crown Prosector addressed the jury:
He, Sergeant Silk, went across the front of the car, thus breaking the right‑hand headlight and then the left‑hand headlight and called Mr Roberts out of the car. At that stage Senior Constable Miller was behind the vehicle halfway between the two.
Then we go to page 661 of the application book and around line 15:
Bandali: ‘He wasn’t near the factory…’
Malik: ‘…(inaudible)…’
Bandali: ‘He called him away to talk to him.’
What has happened? B24, the alleged confession by Debs is being used we know by the prosecutor to find liability for Roberts in his final address and is repeated by the judge. How can we have had a fair trial in those circumstances? This material only admissible against Debs, which
your Honour Justice Kirby said was chilling. If your Honour is of that view, what would the jury have thought?
KIRBY J: If only there were a few statements that were exculpatory of your client, nothing. On the contrary, the fact that he did not disclaim, “We were the ones who were there, only we know”, it leaves you fairly comfortable or very comfortable that the decision of the Court of Appeal involves no miscarriage of justice. I mean, your client’s position is the one that concerned me when I came into Court today.
MR TEHAN: Your Honour, there is a large folder in my chambers which has the two records of interview and the statements of Mr Roberts. They are very extensive, detailed denials, “I am not going to talk about him and I will tell you, I cannot speak for him, but I was not there”. Statements of denial ‑ ‑ ‑
KIRBY J: But not one statement of denial when he did not know that he was being intercepted and his conversation recorded.
MR TEHAN: On the part of a young 17-year-old who is in a house with others.
KIRBY J: Yes.
MR TEHAN: With the greatest of respect, your Honour, if our conviction is found on that contention, then it is, on its face, wrong and unsafe. The only other matter that we desire to point out is that the only evidence establishing two was the dying declaration. Our friend referred to the presence of two guns, but there was evidence of a possible misfire of one of those weapons which was, of course, consistent with the contention advanced on behalf of Roberts that it was possible that there was only one offender.
In our submission, our client has not had a fair trial because he has been tried with Mr Debs and there is a real special leave question for this Court in relation to the admissibility of the Hamada evidence. If the Court pleases.
GUMMOW J: Thank you, Mr Tehan. We will take a short adjournment.
AT 11.37 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.44 AM:
GUMMOW J: The following bears upon both the application in the matter of Debs and the application in the matter of Roberts.
Although many points were argued in these applications, only two ultimately present possible special leave points. They arise in the proceedings after a very long trial and appeal and after the jury’s verdicts of guilty of murder and the ensuing convictions and sentences have been sustained. Accordingly, the ultimate question is whether either of the applicants has suffered a miscarriage of justice.
The first special leave point is particular to the second applicant, Jason Roberts. It concerns whether, in all the circumstances, he should have been tried separately from his co‑accused because, as it is put, the detailed and reliable evidence against Bandali Debs, especially that procured by listening device, is inadmissible against Jason Roberts and the prejudicial impact of that evidence in a joint trial was not, in practical terms, amenable to correction by judicial directions such as were given.
At the trial and on appeal the correct principles of law on separate trials were referred to and applied. Although the prosecution case against the first applicant, Debs, was stronger, this will not unusually be the case in joint trials. We are not convinced, when all the evidence is considered, and especially that procured by listening device, that a miscarriage has occurred referable to this point. It does not, therefore, warrant a grant of special leave to Mr Roberts.
The second point was common to both applicants. It concerns the insufficiency, as the Court of Appeal found, in the specificity of directions to the jury on the dangers of using identity evidence. The applicants asked for application of the principle stated by this Court in Domican v The Queen (1991) 173 CLR 555 at 561 to 562 and in Prasad v The Queen (1994) 119 ALR 399 and a retrial on that ground. The Court of Appeal applied the proviso. The trial judge, albeit in general terms, did repeatedly mention the dangers of the use of identification evidence. In the end, the question for this Court would be whether the Court of Appeal erred in applying the proviso in the circumstances of the very powerful prosecution case, apart from resting on identification testimony.
We are not convinced that there would be reasonable prospects of success were special leave granted. The forensic and other evidence linking both accused to the Hyundai vehicle used in connection with the homicides justified the Court of Appeal’s conclusions. The so‑called Hamada evidence and the intercepted conversations simply confirm the safety of the convictions. No other points would warrant the grant of special leave. Accordingly, in each application special leave is refused.
AT 11.47 AM THE MATTERS WERE CONCLUDED
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