Doney v The Queen

[1990] HCATrans 234

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S60 of 1990

B e t w e e n -

RICHARD JOHN DONEY

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 OCTOBER 1990, AT 10.15 AM

Copyright in the High Court of Australia

Doney 1 11/10/90

MR L.M. MORRIS, QC:  May it please the Court, I appear with

my learned friend, MR P.J. HANCOCK, for the

applicant. (instructed by Tony Garling & Co)

MR M.S. WEINBERG, QC:  May it please the Court, I appear

together with my learned friends, MR P. COGLAN and

MS E.L. FULLERTON on behalf of the respondent.

(instructed by the Commonwealth Director of Public

Prosecutions)

DEANE J: Yes, Mr Weinberg. Mr Morris.

MR MORRIS:  May it please the Court, at the outset might I

just say this, that this application is an

application which requires special leave and it is

complicated by the fact that we would be submitting

that the first ground in the application is a

ground which involves manifest questions of

universal application and of public policy in so

far as it relates to the conduct of trials at

nisi prius and the inherent powers of a judge in

those circumstances to control the conduct of the
trial in respect of what may be done with
unsatisfactory evidence at the end of the whole

case or at the end of the Crown case.

That question has been considered obliquely by

this Court in Whitehorn and remains undecided and

it has been decided in a number of State courts

against the proposition which I seek to advance

and, in particular, it has been decided against the

proposition which I seek to advance in the New

South Wales Court of Appeal in Reg v R.

DEANE J:  Mr Morris, I think you can assume that all members

of the Court are conversant, generally, with the

current state of authority and also of the

importance of the point you are referring to in

terms of the general administration of criminal

justice. Where that leads, of course, is another

question.

MR MORRIS: Well, the problem I have in this case and I will

come directly to it, is that unless I can

demonstrate to this Court that I am entitled to

special leave in respect of the matter covered by

ground 2, and that matter concerns whether or not

some evidence before the trial judge was properly

admitted as corroboration of an accomplice or not,

unless I can argue that matter and unless I succeed

on that matter the application envisaged in

ground 1 is otiose because we could not argue the

Court of Criminal Appeal, having found that the

jury's verdict was not unsafe and unsatisfactory -

we could not argue in the light of the totality of

the evidence, that is to say, the evidence of the

accomplice corroborated wrongly, we suggest, by the

Doney 2 11/10/90

note which was exhibit Q, is a verdict which

standing on the face of it could necessarily be

regarded by a court reviewing the facts as the New South Wales Court of Criminal Appeal had a duty to

do and did do could be demonstrated to be unsafe and unsatisfactory. If, on the other hand - - -

DEANE J:  Is that necessarily the end of the matter? I

mean, if you be right on the main point or on the

first point, one approach would be that your client

lost a right which the law allowed him or gave him

of having the trial judge who had seen, whatever

his name - Freeman is it not - - -?

MR MORRIS:  There is an additional problem associated with

that approach but not fatal to it. The trial

judge, in an interlocutory judgment in the trial,

expressed an oblique opinion, a very firm opinion

that he had no power to take it away. That was the

first thing. At the time he made that ruling

exhibit Q had been objected to and was in. It

was objected to upon the basis that it could not

constitute corroboration. But he did express, not

a concluded view but a preliminary view no doubt

encompassed by his very firm conviction that he had
no power that even if he had the power he would

have been disinclined to exercise it and that is

what gives rise to the problem of my ability here

to argue whether exhibit Q was properly admissible.

Now, in respect of that matter, we would say

that it does have elements of public importance

attaching to it because experience indicates that

Crown prosecutions are more frequently being

brought by the use of accomplices or informers and

the question of what constitutes corroboration in

circumstances where the central body of the Crown
case itself must be the subject of a warning,

corroborated or not, is an important question and

it may be that in order to not waste the Court's

time in the broader sense because what Your Honour

Mr Justice Deane says about losing the right is, in

our respectful submission, a pertinent observation

and we do not abandon it.

DEANE J: Yes, I had not appreciated what the learned trial

judge said about the - - -

MR MORRIS: Well, perhaps just to make it perfectly clear, I

should take Your Honour to it.

DEANE J: Yes, it is at page 106.

MR MORRIS:  It is at page 106 of the book, at point 10.

Might I read it, Your Honour?

DEANE J: Yes, please.

Doney	11/10/90
MR MORRIS:	I ought to say for the sake of completeness that even had I been persuaded otherwise, I am
inclined to think that I would not have
exercised the power in this particular case.
I cannot escape, however, whichever way I
consider this case, the conclusion to which I
am constantly finding myself driven back, that
whatever might be my views about the witness
Freeman and its strength of its weakness and
allowing, as I certainly do, for the powerful
and compelling strictures which Mr Morris
levels at that evidence, in the end it is not
for me to impose upon a jury my view of the credit of that witness. It is, in the end, for the jury to decide whether or not they
think that any part of his evidence is
credible and if they do, then it is for them
to decide, in accordance with the instructions
and directions of law which I will give them
at the appropriate time, whether they are able
to find conscionably that the evidence that
they do accept is sufficient to carry them to conviction beyond a reasonable doubt of the
guilty of the accused.

Now, it is clear that he put any real judgment to

one side because he believed that he was

compelled so to do.

McHUGH J: Well, you are entitled to take into account what

Chief Justice Barwick said in Wade v Burns, which

is a mandamus case where he said:

It is sufficient to say that this statement by

the-warden as to what he would do if he had a

power which, according to his own view, he did
not have has no weight, in my opinion, when

the court is considering whether a writ of

mandamus, which otherwise it is satisfied

should issue, would be futile.

MR MORRIS: Well, I must say, Your Honour, that authority

had escaped my attention but I would rely upon it.

MCHUGH J: Yes.

MR MORRIS:	If I might then embark upon the first ground of the appeal, and I am indebted to Your Honour
Mr Justice Deane in respect of the observation that
the authorities are well known and it is,
therefore, accepted that Whitehorn refrained from
dealing with the point.
DEANE J:	I said the general state of the authority.

Mr Morris, I would not assume too much, so far as I am concerned, about the precise details.

Doney 4 11/10/90

MR MORRIS: Before I come to the authorities, might I

generally just deal with the way we put the

propositions?

In the progress of a criminal prosecution,

discretion is exercised at a number of levels, some

of it executive and some of it partly executive and

partly judicial, in respect of the inherent power

or the power to proceed with the prosecution or

abandon it. The first place where that power

arises is with the arresting officers and the
charge sergeant in a police station and there is
there vested in the charge sergeant, it seems, an

executive discretion to proceed with a prosecution

and lay a charge or not.

Once the charge is laid that discretion passes

from his hands, but it is clearly an exercise of a

power which depends upon an evaluation of the

material which that officer has at the time.

The matter then goes on to committal if a

charge is laid and at committal a magistrate

exercises a power, albeit executive, but a power to

determine whether or not a man stands his trial,

taking into account in the course of that exercise

of power the credibility of witnesses and, indeed,

specific reference is made in the statute in

New South Wales and I believe, although we did not

include it in our authorities, that we have handed

up a copy of the Justices Act and the relevant

section to Your Honours - I have not given my

learned friend a copy of that, I am sorry.

Section 41 of the Justices Act 1902 relates to

the question of discretionary power in respect of
the continuance of a prosecution and if one goes to
41(2) one sees the position at the conclusion of

the prosecution case - - -

DEANE J: Mr Morris, might I interrupt you. Perhaps we

might just take a moment to read through your

outline before you go any further.

MR MORRIS:  I am sorry, Your Honour that citations do not

appear beside the case notes. If I might briefly

go back to the Justices Act - - -

TOOHEY J: Mr Morris, how does that provision help you? It

is - - -

MR MORRIS: Well it helps - - -

TOOHEY J:  - - - a statutory provision. The way in which the

power should be exercised is spelt out in the

statute. The case with which we are concerned is

in the area, I suppose, inherent jurisdiction.

Doney 11/10/90

MR MORRIS: It is, yes, but it illustrates one curious

anomaly, and that is that a magistrate, in effect,

has more power if there is no power than a judge at

a trial at nisi prius.

TOOHEY J: Well, that may not be surprising. The judge is

not sitting on his own. He is sitting with a jury.

MR MORRIS:  No, I accept that the placing of the jury into

the environment of the trial changes the nature of the relationship between the judge and the accused

because it is said in the cases which determine

this question that where questions of credibility arise, for instance, the jury are the sole judges

of the fact. That is the traditional view.

McHUGH J: But it is more than that, is it not, because the

magistrate is exercising executive power,

administrative power?

MR MORRIS:	I understand that.
McHUGH J:	You might as well say that an arresting police

officer has got more power than the trial judge

because he has. He has a discretion about whether

he charges him or not.

MR MORRIS: Yes, that is true.

McHUGH J: Section 41(2) does not really help you, does it?

MR MORRIS: Well, in my submission it is illustrative only

of that insight into the way the prosecution

progresses. Now, the real problem arises, and let

me come to it immediately: there is a clear power

where the elements of the Crown case are not made
out, and indeed a clear duty for a judge to take a

case away where the Crown have not made out a prima

facie case,as it is called in some of the

authorities, or a case which includes all the

elements of the crime.

There seemed to be two exceptions to that

matter, and both of those exceptions involve the

judge in exercising a judgment as to credibility or

weight, or the quality of the evidence. Those

reserved exceptions, if they be true exceptions,
arise in the identification cases, and they arise
in cases where the sole Crown evidence is included

in a confession. And there is ample authority, in my respectful submission, to support the submission

that those two exceptions, if they truly exist,

also involve the judge in a credibility question

because the identification cases dwell upon whether

the observer had a fleeting glance or a lengthy

glance, knew the accused, and so on.

Doney 6 11/10/90

McHUGH J: Well, if a witness says, "The accused is the man

I saw at the scene of the crime", has a trial judge

got the power to take that issue away from the
jury? A court of criminal appeal may set aside the

conviction, but can a trial judge exclude that

evidence?

MR MORRIS:  Well, it has been accepted by the Court of

Criminal Appeal that they can.

MCHUGH J:	Is that right?
MR MORRIS:	Yes.
DAWSON J:	Have you got one or two of those authorities,

Mr Morris?

MR MORRIS:  Yes. In the case of Reg v R, (1988) NSWLR 74 -

Reg v R came after the summing up of

Mr Justice Sully, the trial judge, and the question

arose in that case. The matter was dealt with at

page 76B, and the passage is a passage from

Turnbull - shall I read it, Your Honour?

DEANE J:  Yes.

MR MORRIS: It reads:

When, in the judgment of the trial judge,

the quality of the identifying evidence is

poor, as for example when it depends solely on

a fleeting glace or on a longer observation

made in difficult conditions, the situation is

very different. The judge should then

withdraw the case from the jury and direct an

acquittal unless there is other evidence which
goes to support the correctness of the

identification.

McHUGH J:  That was said in Turnbull's case. I think more

relevant to your purpose is perhaps down at line F

on the same page.

MR MORRIS:	Thank you, Your Honour.
McHUGH J:	That certainly seems to support what you are

saying.

MR MORRIS:	Yes.
McHUGH J:	What is the theoretical basis of it?
MR MORRIS:	Well, it has been an accepted exception, if I may say so, and the theoretical basis is obscure
because theoretically the power, if there is no residual power, involves the exercise of an
assessment on credibility.
Doney	11/10/90

Now, whilst we would accept that the power would be exercised extraordinarily rarely and,

indeed, when the power was seen to exist by judges

in New South Wales, before the argument was settled

by Reg v R, I believe experience would indicate

that indeed the number of cases were very, very

small.

TOOHEY J: But that does not identify the source of the

power, does it?

DAWSON J: Could we just come back to the point we were

talking about a moment ago. The theoretical basis

seems to be that you first of all reject the

evidence on some basis and then you are left with

no evidence on which the jury could convict - or

insufficient - and then you directed acquittal on

that basis. That is rather different to exercising

a discretion on the basis that the verdict would be

unsafe or unsound. It is a two-step process.

MR MORRIS:	But the no evidence question defies the fact that a qualitative judgment has to be made about
the weight of the evidence.

DAWSON J: Yes.

McHUGH J: Except that the evidence has not got into the

trial. But, what I was concerned with is, what is

the theoretical basis of rejecting the

admissibility of the evidence on the voir dire? It

cannot be, surely, that its probative weight is

less than its prejudicial value; it is direct

evidence.

MR MORRIS:  That is why we say the power subsists correctly

across the board where the evidence is weak; that

the judge has an inherent power because it would

otherwise render an injustice likely to take such

material away because it is so ephemeral.

McHUGH J: But if that is true then the trial judge must

have a wide discretion to reject evidence on the

voir dire having regard to its reliability.

MR MORRIS:  That is illustrated by that matter being

commonly used in respect of the voluntariness of

statements or their quality which are confessional

in their nature.

McHUGH J: It is a precondition to the admissibility of a

confession that it was made voluntarily and that

has always been held to be a question for the judge

as a precondition to its admissibility.

DAWSON J:  Not only that, he has discretion to reject it if

it was unfair so that that would cover most

Doney 11/10/90

situations with confessions but with identification

evidence there must be something else.

MR MORRIS: Well, we respectfully submit that that is an

illustration of the inherent power being preserved.

DEANE J: But why, if, for example, the evidence is of an

identification on the basis of a fleeting glance,

why would not the ordinary exercise of discretion,

in terms of prejudice against real value, extend to

that?

MR MORRIS:  Because it does involve the determination of a

question which in true principle is a matter for

the jury.

DEANE J: But it is not so much a question of credibility,

it is a question of that evidence of somebody who,

on his own account, says he only got a fleeting

glance but who honestly can say he believes it was

Xis likely to be so much more prejudicial than its

real worth that it should be excluded in terms of

the ordinary discretion.

MR MORRIS: Well, that is a substitution of weight for

credibility.

GAUDRON J: Or reliability?

MR MORRIS:  Yes. But it is my respectful submission that it

contains elements of both questions and is

indicative of the residual power. Now, the

residual power is also expressed in the obligation

cast upon the trial judge to provide a fair trial

and that.is obviously an inherent power and that

power would be best demonstrated where there is

likely to be a miscarriage of justice in the rare

case where the situation arises that the Crown case is so weak, by reason of the general credibility of a witness, that the jury have no guideline or

handrail to determine what is true and what is not

true. In other words, the ·crown case, for

instance, where an informant as in this case,

indeed, admits to committing perjury on material
matters.	I do not wish to get into the facts but

that is what happened.

What guideline does a jury have in respect of assessing that matter. The judge has a far greater

objective experience and where the evidence is in

that state it is, in my respectful submission,

important that the power be reserved and vested in
the judge because of the disadvantages which the

court of review, that is to say, the Court of

Criminal Appeal have, in assessing that evidence

when it is in that state out of the context of its

occurrence and that has been - - -

Doney 9 11/10/90

TOOHEY J: That seems to me to be a fairly tenuous basis,

Mr Morris, on which to put the proposition. I

mean, it might be said that those defects can be

met by the way in which the judge directs the jury.

I thought you were putting the matter on some more

fundamental principle than that.

MR MORRIS:  I am putting it on a more fundamental basis

because experience teaches that if that is the true

view of the judge and if he has that power he ought

express it to ensure a fair trial because juries,

as Your Honours would know, are commonly

contra-suggestible and one sees many cases where

pro-accused summing ups result in conviction and

the judge ought not find himself in that position

if he has the power separately preserved and has

the view that it ought be exercised.

McHUGH J: Going back to the admissibility identification

point, now, the question of prejudice - in weighing

up the probative force in prejudice, prejudice is

directed to diverting the jury from its task, is it

not, and evidence may be quite fleeting; the

witness may say, "I only had a fleeting glance but

this was the man" and standing alone that may have

little weight but the other evidence in the case

might persuade the jury beyond a reasonable doubt

that the witness's identification evidence could be

accepted. How could a judge rule evidence

inadmissible on the voir dire in relation to

identification without considering the whole of the

evidence?

MR MORRIS:  I do not suggest otherwise. I am saying at the

end of the Crown case or - well, usually at the end

of the Crown case, if the identification is

fleeting and that is the only identification, there

being no other corroborative evidence of which

Your Honour speaks, the judge may, if he sees fit,

take it away. Now, that is taking - - -

McHUGH J: Is the hypothesis that the evidence has got in?

MR MORRIS:  Yes.

McHUGH J: It has to be, has it not?

MR MORRIS:  Yes, and Turnbull refers to that very situation

with respect. The evidence has gone in - - -

McHUGH J: But R denies the general proposition inherent in

Turnbull, does it not?

MR MORRIS:  As I understand Turnbull, the evidence goes in

and it indicates only a fleeting glance or an

unsatisfactory circumstance of identification.	The
Crown case ends, that being the only evidence of

Doney 10 11/10/90

identification, and the judge then has the power to take it away, or direct a verdict, rather, not take

it away.

That indicates, we respectfully submit, a

residual jurisdiction over the general question of

the weight of the Crown case, and we cannot put it

any higher than that.	We say it is a matter of
public importance.

Now, the problem is that unless I can argue Q, a determination in my favour on that ground is

otiose and I would not wish to waste the Court's

time because we accept that if the corroborative

material in this case goes in, we cannot

demonstrate in the requisite way that the verdict

was unsafe and unsatisfactory.

McHUGH J:  I do not follow that. It is what

Mr Justice Deane put to you very early in your

argument. If a trial judge does have this power,

then by hypothesis you have been deprived of a

fundamental right of procedure -

MR MORRIS: That is true.

McHUGH J: 

- - - and a verdict has been obtained in defiance

of that fundamental rule of procedure; and you
have lost the opportunity to get the trial judge's

ruling on the whole matter, particularly bearing in mind that the trial judge has seen the witness. So

I do not see why you give the point up, if it is a

good point, of which I have some doubts at the

moment, I must say.

MR MORRIS: Yes, I understand that. Well, I will readopt

the point, with Your Honour's urging, but if the
point is good we do not have to go on to the other

point perhaps. But it is my respectful submission

that it is clearly illustrated by the

identification cases and by the confessional cases

where particularly a person is of unsound mind or

suffering from some physical disability - - -

TOOHEY J: This is what I have trouble with, Mr Morris.

Could I just put this difficulty to you? You seem

to move between admissibility of evidence and the

judge's power to direct the jury. Now, as I

understand the argument, we are not concerned at

all here with the admissibility of the evidence.

MR MORRIS:  We are not.

TOOHEY J:  We take the evidence as having been properly admitted. Now, where then does the power lie? I

mean, is it in this general power of a judge to

ensure a fair trial, or is it something else?

Doney 11 11/10/90

MR MORRIS:	No, it is in the general power, and it is clear that the court has inherent and extensive powers.
They remain in a sense undefined and they have
remained undefined in this environment because this
Court has not dealt with this very question.
Indeed, they are referred to obliquely in Jago. If
I might just take Your Honours to the comments of
the learned Chief Justice in Jago, 168 CLR 25,
where the Chief Justice observed:

The facts relevant to the appeal are set out

in the judgment of Toohey J.	Two questions
are raised by those facts.	The first question

is whether the common law of Australia
recognizes a right to a speedy trial separate

from an additional to the right of a fair

trial. The second is whether in this case the

appellant's right to a fair trial has been

prejudiced by virtue of undue delay amounting

to an abuse of process. The appellant urges

an affirmative answer to each question -

and he goes on to deal with:

the inherent power of courts to prevent abuses

of their process.

Now, it is clear that the power in respect of abuse

of process exists and is a common law power and

that the power of a trial judge to ensure a fair trial is an inherent power of similar origin and

quality and it arises from the fact that where a

Crown case is totally unsatisfactory there is a

regulatory power, which the trial judge has, to

ensure that an accused person is not put in

jeopardy on such a case.

DAWSON J: It goes something like this, does it not: the

inherent power includes a power to prevent an

injustice, so much you said. Injustice is another

word for a miscarriage of justice. Where the

evidence is such that a verdict against the accused

would be unreasonable and it could not be supported	on the evidence, that is to say, on the cases,
would be unsafe and unsound. If they brought in
such a verdict, it would be an injustice, a
miscarriage of justice and the trial judge must
have power to prevent that.

MR MORRIS:  Yes. That is really what I am submitting,

Your Honour, but whilst it must necessarily be

exercised quite rarely, it is wrong to suggest that

it does not exist.

DAWSON J: And that the judge cannot sit by and just see a

miscarriage of justice occur or even contemplate

the possibility of it.

Doney 12 11/10/90

MR MORRIS:  Yes, Your Honour.

GAUDRON J: But why would that necessarily result in a

directed verdict as distinct from a discharging of

the jury or a stay?

MR MORRIS:  Because the accused is entitled to a result. He

is arraigned and is entitled to - - -

GAUDRON J:  Why does he not have to choose between a result,

or - he or she choose between a result and a stay?

MR MORRIS: Because, presumably, if a stay were granted the

jury would have to be discharged and, presumably,

one of two things would happen: either the stay

would not operate as an acquittance but merely as a

stay so the accused remains in jeopardy or the

Crown would hunt around and find additional

evidence in an endeavour to cure the manifest

defects in the Crown case. If they succeeded the accused is put in jeopardy again; if they do not he does not successfully obtain an acquittance.

GAUDRON J:  I understand the practical consequences. What I

do not understand is the theory which allows a

directed verdict other than in circumstances where

the Crown has closed its case and there simply is a

want of evidence on some or all of the elements of

an offence.

MR MORRIS: Well, it is my respectful submission that where

the Crown case is of such indifferent quality that one could approach it upon the footing that a jury

ought not be asked to rely upon any of it, there is

an overriding duty and obligation on the trial

judge because of the inherent risk in that

situation to so direct them.

DAWSON J: Well, it is really, where a verdict of guilty

would constitute a miscarriage of justice, that is

what it amounts to?

MR MORRIS:  Yes. Now, that is really the special leave

question in this case and that is the matter which

we seek to argue. We say the residual power

remains and that the Court of Criminal Appeal have

been wrong in both Rand in this case and if I

could just take Your Honours to the final

observations in the case which Reg v R,

18 NSWLR 74 - - -

DAWSON J:  Mr Morris, I do not want to suggest you should

not take us to particular passages but for your

information all members of the Court have read the

Chief Justice's judgment in Reg v R.

Doney 13 11/10/90

MR MORRIS: Well, it is only page 84, at the foot of it,

indicates that the matter stands for resolution at

Fon that page.

DAWSON J:  I did not understand, if I may say so with

respect, that the Chief Justice's analogy to the

other situations to which he adverts on page 85.

That deals with the function of the judge as within

the adversary procedure.	You were probably going
to say something, were you?

MR MORRIS:  I was going to come to that but, yes, that is

the submission I sought to make in respect of it

that the question really does not bear upon whether

or not the judge has a right to call a witness or

require the Crown to do so. The question is one

purely of preventing a miscarriage of justice.

It is a very simple point, really, I suppose,

but one which has not been resolved and, in my

respectful submission, it would be proper and

logical that a judge at nisi prius who has control

over every aspect of the proceedings before him

would have control over a situation where a Crown

case is so manifestly unsafe or unsatisfactory as

to require him to prevent a miscarriage of justice

by so directing the jury.

DAWSON J:	I suppose, too, the Crown by and large now has power - it may not affect the outcome of the
particular case - but to appeal a direction of a
trial judge on this question if he goes wrong.

MR MORRIS: That is a problem, I think, Your Honour, because

I think what would have to happen in practice is

that a trial judge would have to indicate that that

was his intended course of action and if the Crown

wished to take it to the Court of Criminal Appeal

they would have to do so before a verdict was

entered upon that direction because the verdict

brings about a finality to the proceedings and the

Crown would therefore be grossly disadvantaged if

the direction was erroneous. But there is power, I

believe, in the statute to deal with that problem.

DAWSON J:  I think the statutes vary considerably from

Queensland to Tasmania.

MR MORRIS:  Yes, but I believe there is a reserve power for

a case to be stated to the Court of Criminal Appeal

in New South Wales on a question during the course

of it but that is what would have to be done to

preserve the Crown's rights otherwise they

would - - -

DAWSON J: Yes, but if they were prepared - let me put it

this way - even though it would not affect the

Doney 14 11/10/90

result in the particular case they could still, by

an Attorney-General's reference, test the ruling of

the trial judge. Is that not so?

MR MORRIS:  They could; they could do that by way of case

stated but it would be fatal to the Crown in the

particular case and that is a matter which I would

think is of some importance also, of course. I

think we can find the New South Wales reference for

you. But that is a difficulty with the approach

which, I suggest, is proper.

DEANE J:  Mr Morris, diverting you for a moment, are there

any statutory provisions in any of the States which

would, as a matter of legislation, produce the

result you want or does the theoretical answer to

the argument apply in all States?

MR MORRIS:  I can only speak of South Australia and Victoria

where there is no such provision. I think because

of reference in one of the authorities I have read

to Western Australia there was no such provision

there and I accept that in Prasad in South

Australia, the contrary has been held and followed

by the New South Wales Court of Appeal and that

seems to be the position in Victoria as well.

The statutory provision which would pertain to

this situation is contained in the

Criminal Appeal Act (1912) which is contained in

Watson and Purnell at page 613 at the foot - that

is the start of the statute - and the section which

provides for cases stated is at page 619 in

section SA.	Would Your Honours wish me to read the
statute?

DEANE J:	No.
MR MORRIS:	It provides for a remedy in that situation, that

it would require an adjournment of the trial and

the point to be taken up for determination. On

that part of the matter there is nothing further I

would wish to argue, if the Court pleases.

DEANE J: Very well. Mr Morris, I think if you just proceed

now and deal with your corroboration argument in

this case.

MR MORRIS: If the Court pleases.

DEANE J:  I gather that you have said what you want to say

on the first point on the merits as well as to its

significance as a leave point.

MR MORRIS:  Yes. The second point can be dealt with quite

shortly. The first mention of the matter in the

judgment in the Court of Appeal appears at page 184

Doney 15 11/10/90

of the book.	The note in question is set out there
in toto:

"Garage - from 40 Grosvenor Cr, Summer Hill to

That is exhibit Q, the admissibility of which was	Cnr Darling and Curtis Streets, Balmain. boxes in van. Thanks."
objected to.	The evidence was that, because of

handwriting comparison, the jury could safely act

upon the footing that it was the accused or the

applicant's handwriting and we do not seek to

gainsay, that evidentiary situation, although he

denied it in a statement, but there is ample

evidence to cover that evidentiary question.

The note itself has nothing within it which

indicates anything going to any of the ingredients

of the offence with which he was charged, namely

being knowingly concerned in the importation of a

prohibited substance.

Relevantly, the note came into being in

circumstances which are unknown; by that, I mean,

nobody witnessed the applicant writing it and so on

and we do not know anything about those

circumstances.

DAWSON J: Is that right, Mr Morris? In fact, the note when

given to the taxi driver led to his going to

premises where there were cartons.

MR MORRIS:  I am coming to that, yes. No, the note is

connected relevantly with the illicit cargo because

it was a direction pertaining to its movement.	It
is unconnected in time by some weeks with the
importation of it.

DEANE J:  Is not the position for the sake of argument in

terms of corroboration rather similar to that which

would have existed if the four cartons had been

found in the possession of your client at the time

the note was used?

MR MORRIS:  No, because he would, in those circumstances,

have control or dominion over them. Here, there is

a note in his handwriting directing their movement.

Now, the importance of that is that it has nothing

to do with importation.

Now, the accomplice does not speak of this event at all. There is nothing anywhere in the accomplice's evidence which pertains to the taxi

driver, the note, or the movement of the cartons.

His evidence goes to conversations relating to

importation and the like but this evidence stands

Doney 16 11/10/90

separate and apart from any importation and is
after importation has taken place.

Now, in so far as it is direct corroboration of anything which the man Freeman, the accomplice,

says, it fails. It is circumstantial evidence

which, on any view of it, may or may not shore up

the accomplice's evidence. It can only shore it up

because it shows knowledge in the author of it of
part of an illicit cargo and we take no point on

the fact that the cartons themselves did not
contain the material but it was part of the whole

cargo.

At a later time, after importation, the

accused had knowledge of the position of part of

the cargo.

DAWSON J: But, you see, you have got to take that in the

context.	The accomplice gave evidence of the
importation.	Your client denied any involvement at

all so that it is very hard for your client to

maintain the position that, "Well, all right, that

note may implicate me but it only implicates me
after the act of importation" because it is
inconsistent with the case he put and, certainly,

inconsistent with the evidence of the accomplice.

MR MORRIS:  That is so. The problem with that is, it raises

another problem about the note because the note is
then used or can be used by the jury on another

question and that is the credibility of the

accused. Now, the note is admitted to corroborate

the accomplice's evidence and that is the

evidentiary purpose of its admission and it ought

not be used to discredit the accused because he

does not speak to it. He does speak to it in this

sense: he says, "Well, I'm not the author of it".

McHUGH J: But, is not his lie - assuming the jury found it

a lie - itself corroboration of the ..... ?

MR MORRIS:  The problem is, that one then gets into the

situation in Woon's case, I suppose, consciousness

of guilt, rather than it being corroboration of

anything, but the complaint we make about the note

is that it should not have been admitted because it

was not true corroboration. It having been
admitted, it is not direct evidence of

corroboration but circumstantial evidence and the

accused is under no obligation to provide a

hypothesis arising out of its admission and the

Crown are under an obligation to provide a

hypothesis excluding other than a criminal intent

attaching to knowledge of importation.

Doney 17 11/10/90

McHUGH J:  But the exhibit Q would not have been admitted

for the purpose of corroboration, would it? It

would have been admitted as circumstantial evidence

implicating the accused in a general conspiracy.

MR MORRIS:  No, he was never charged with conspiracy. He

was charged with a substantive offence.

MCHUGH J: Yes.

MR MORRIS:  And it was admitted purely upon the footing that

it corroborated Freeman and assuming I fail on the

primary argument that because it does not

corroborate him in respect of any matter to which

he speaks and the time of its creation is unknown,

then it is circumstantial evidence and in those

circumstances the Crown have to exclude any other

hypothesis. It is clear, might I say, from the
judgment of the Court of Appeal and the

observations of the trial judge that it can be argued that the jury's verdict would have been

unsafe and unsatisfactory in the absence of the

writing because there was no guideline or handrail

to assist the jury in determining what portion of

Freeman's evidence was true and what was not.

GAUDRON J: Assuming that to be correct for the moment,

Mr Morris, does that go to' the admissibility of the

evidence or to the directions that you have been

given?

MR MORRIS:  No, it goes to my desire to upset the verdict

upon that ground.

GAUDRON J:  On the ground of admissibility or on the ground

of inadequate directions as to how the evidence

could be used or the circumstances in which it

might be used in the corroboration?

MR MORRIS:  If the evidence was wrongly admitted and in

truth ought to have been excluded because it did

not provide corroboration, then the verdict must

necessarily be unsafe.

GAUDRON J: Yes. But I understood your corroboration

argument to say, or to have implicit in it, the

proposition that it could be used to corroborate if

there were no other rational hypothesis other than

implication in this place.

MR MORRIS:  Perhaps I have approached it from the wrong way.

It cannot, in our respectful submission, go in as

direct evidence of corroborating Freeman because it

does not touch upon any event or circumstance to

which his evidence is directed. If it then goes in

to corroborate him it must go in as circumstantial

evidence, a matter from which the jury could infer

Doney 18 11/10/90

that his general allegation that the applicant was involved, as he said and quite plainly said in the

importation of the goods, because it does not touch

upon any of the steps taken in the importation it

is only evidence that at a later time it is

consistent with him being knowingly concerned

although it may not be evidence of him being

knowingly concerned, and as such the jury would

have to find that the sole hypothesis attaching to

the note is that as at a date in February when the

goods came in the only explanation for the note is

that at that time he was knowingly concerned in the

importation.

Assume, by way of analogy, that months and

months had gone by - six months instead of the
month or five weeks - and I suppose the time span

has some importance in developing the various

hypotheses available, and assuming it had been

geographically removed to, say, Parkes or Canberra,

then the jury would have to consider those matters

because six months later it need not illustrate

knowledge in the importation on the face of it.

There is nothing on the face of it to indicate that

and it is my respectful submission that in those

circumstances the trial judge would have to make a

direction and the Court of Appeal were wrong, and

indeed reversed the onus of truth in a sense,

without being unduly critical of them, when they

said that the judge ought not be called upon to

give exhaustive directions about the various

hypotheses attaching to the note.

Now, of course, that is an obligation cast

upon the-Crown and they can do it in argument if

they so wish because they have no evidence

otherwise. But that was not done in this case.

Indeed, I think I was mildly criticized, at

page 195 of the book, for not raising the point at the trial because it was said that I did not do it

for tactical reasons.

McHUGH J:  I do not think you were criticized at all. It is

recognized that your forensic task as the trial was

different from the argument that you were seeking

to put in the Court of Criminal Appeal.

MR MORRIS: Well, in answer to that, the way the trial was

conducted does not divert the Crown from its

obligation that if the evidence is truly
circumstantial they have an obligation in respect

of it and I, with great respect, think there is

nothing more I would wish to put on the topics.

DEANE J:  Mr Morris, can I divert you. What was

Mr Freeman's evidence about exhibit M?

Doney 19 11/10/90

MR MORRIS:  His evidence about exhibit M was that it came

into his possession sometime before the

importation.

DEANE J:  It is at page 159. What did he say Zudik

International had to do with this transaction?

MR MORRIS: Nothing. That was the problem and that was why

there was a vigorous argument about Zudik

International and whether, in fact, it could

corroborate the Crown case. It went in as an

example of handwriting for comparison.

DEANE J:  Mr Freeman did not give evidence that exhibit M

related to - - -

MR MORRIS:  To the importation. No, because the consignor

was different.

DEANE J: That answers my question.

MR MORRIS: Although it did go before the jury.

Unfortunately, it sort of - I mean, when one looks

at these things with retrospect, perhaps it should

not have gone in, His Honour having ruled they
could not use it for corroboration but I am faced

with that and the point was not taken at the trial.

It merely went in as an example of acknowledged

handwriting but nothing to do with this

consignment; or could not be taken to be. There

was no evidence to suggest that it was. If

Your Honour pleases.

DEANE J: Thank you. Yes, Mr Weinberg.

MR WEINBERG:  If the Court pleases, might we commence by

handing to the Court copies of an outline of our

submissions.

DEANE J: Yes, thank you. Yes, Mr Weinberg.

MR WEINBERG:  If the Court pleases, we would not wish to be

heard to say that ground 1 taken in isolation does

not raise a question of general importance.

Plainly it does. The question for this Court is

whether that question of general importance arises

in the present circumstances of this case in a
manner which would justify the Court not merely
granting special leave, but actually entertaining

the appeal.

In our respectful submission, in all the

circumstances of this case that question does not
arise for consideration in these circumstances.

The Court has had drawn to its attention the learned trial judge's view, and we accept the

Doney 20 11/10/90

qualification made to that view that His Honour

said he was inclined to the view that he would not

have exercised the power in the present case. We

submit that that is of significance. It is not as

though one had a case where a trial judge said, "I

wish I had the power. If I had, in my view plainly

this is a case where the verdict would be unsafe

and unsatisfactory and I would exercise the power

unhesitatingly." That might be a case of the kind

that my friend would need to rely on, in our

submission, to raise this ground as a proper ground

for the granting of special leave. That is not

this case.

DEANE J: Except to some extent His Honour's reasons in that

passage are reasons which support the denial of the

power rather than reasons which would indicate that and satisfactory. Other things in what His Honour

said raise a question mark about whether one could

really draw the conclusion that His Honour did

think that the verdict would be safe and

satisfactory.

TOOHEY J: Another way of putting it, Mr Weinberg, might be

to say that His Honour's decision in regard to the

exercise of the discretion if he had one was

influenced by his understanding that he had no such

power.

MR WEINBERG:	Your Honour, we do not cavil with either the proposition raised by His Honour Justice McHugh in
the judgment that His Honour referred to or the
proposition that Your Honour has put. What we say,
however, is this: His Honour was giving that
indication of his inclination at the end of the
Crown case which, of course, is a time quite
different to the time when an appellate court is
required to determine whether a verdict was unsafe
or unsatisfactory. One wonders really, I suppose,
what view His Honour would have taken of whether this verdict could be said to be unsafe and
unsatisfactory had he been asked, as he was not, at
the end of the totality of the case to express a
view.

In our submission, the Crown case was

immeasurably strengthened at the end of the defence

case as the Court of Criminal Appeal itself said.

It became a very much stronger prosecution case by

virtue of the way that the issues crystallized as a

result of the defence case having been presented

and the applicant having denied authorship of

exhibit Q rather than attempting to give some

innocent explanation of it.

Doney 21 11/10/90

In our submission, if it be right that

His Honour's indication at that stage be qualified

in that way, we would balance that consideration by

saying His Honour was not asked at the end of the

totality of the case when the Crown case assumed

even greater strength, vastly greater strength, to

give an indication about what he would do at that

stage and, in our submission, that is a highly relevant consideration. The Court of Criminal

Appeal, of course, itself did conduct, as has been conceded, the required independent examination of

all the evidence and it concluded, based upon the

totality of the evidence, that this verdict was far

from being unsafe and unsatisfactory and it is

clear from the reasoning of His Honour the Chief

Justice, with respect, that His Honour took into

account all of the infirmities of the testimony of
the witness Freeman, but was plainly greatly

influenced by the very powerful corroboration

provided by exhibit Q. In our submission, that was

a model piece of reasoning by an appellate court as

to how to go about its task of determining whether

a verdict is unsafe or unsatisfactory.

So what we have before this Court is, in

effect, an applicant who does not cavil with the
trial judge's inclination to say that the verdict
was not unsafe and unsatisfactory and an applicant
who does not challenge and does not cavil at the
reasoned decision of a court of criminal appeal,
holding that there is nothing unsafe and

unsatisfactory about this verdict and we say that in considering the balance those two factors must

be taken into account.

Our next point, in our respectful submission,

is this. In our submission, the learned trial

judge was correct in his conclusion that a trial

judge does not have the power to take a case from

the jury and direct an acquittal at the end of the

Crown case on the basis that the verdict, in his opinion, would be likely to be held to be unsafe

and unsatisfactory by an appellate court exercising
its statutory powers of an appellate review.	We

say that His Honour's ruling in effect forecast

correctly the result in Reg v R, in the

New South Wales Court of Criminal Appeal, in

holding that he lacked such power. His Honour's

ruling was in accordance with what has now become a
long and well-established line of authority, not
just in this country, but also, we would submit, in
other countries and we will take the Court, if we

may, to some of the authorities in support of that

proposition.

What we submit is that there did emerge at

some stage in the late 1960s in England, a heresy.

Doney 22 11/10/90

could, at the end of a Crown case, as matter of That heresy was to the effect that a trial judge

discretion, so it is described, direct a jury to

acquit on the basis that he personally would take the view that a verdict of guilty would be unsafe

and unsatisfactory.

DAWSON J: It was a very much longer tradition, if I might

call it that, in this country. It goes back to

when I commenced practice in Victoria, that is all

I can speak of -

MR WEINBERG:  There was an earlier heresy in Victoria,

Your Honour, as well and that heresy -

DAWSON J:  I think there may have been in other States too.

MR WEINBERG: That heresy has never been a universal

practice in Victoria. There were judges throughout

the 1970s - and I cannot go back, of course, from

personal recollection before then - but there were

judges in Victoria who consistently, until the

Attorney-General's Reference (No 1 of 1983) decided

that they were, in fact, purporting to exercise a

power that they did not have who did exercise a

discretion of that kind or purported to. Equally,

there were judges who always took the view that no

such power existed and that it would be quite wrong

for a judge to exercise that power.

It seems that Victoria in Australia was really

in an isolated condition from that point of view.

One does not find signs of that practice referred

to or reported in any of the other cases, but one

will find it -

McHUGH J:  In New South Wales, indeed, while Mr Kidston was

the Senior Crown Prosecutor, he even challenged the

right of the judge to ask the jury to acquit the

accused without giving the Crown the right to

address the jury on the evidence.

MR WEINBERG:	But the matter is usefully summarized by His Honour Mr Justice Glass in the article that it
has referred to, I think, in Reg v R, a seminal
piece on the subject. There was a practice, it is
conceded, largely amongst county court judges but,
I think perhaps, also among some supreme court
judges, in some cases at the end of the Crown case, in some cases at the end of the totality of the case, for a judge in the purported exercise of a purported discretion to say, "This verdict is unsafe and unsatisfactory", using that language,
and "We would direct an acquittal".

The heresy in England begins after the

amendments to the Criminal Appeal Act, I think,

Doney 23 11/10/90

in 1966 when the words "unsafe and unsatisfactory"

were introduced into the test for the Court of

Criminal Appeal to determine whether or not to

permit an appeal to succeed and there are two cases

in England in which that heresy was propounded

predominantly: they are the cases of Falconer-

Atlee, if I could refer the Court to that, because

it seems to be the starting point. It is reported

at (1973) 58 Cr App R 349 and the particular

passage is at page 354. It is not what one would

call a particularly carefully reasoned passage but

it appears in the judgment of Lord Justice Roskill

at page 354.

What occurred in this case was that a

submission of no case to answer had been made and

apparently made in the presence of the jury at the

insistence of the trial judge and the Court of

Criminal Appeal was dealing with the undesirability
of trial judges hearing such submissions in the

presence of the jury and what Lord Justice Roskill

says at the beginning of the second paragraph on

page 354 is this:

This Court has said again and again that

it is very undesirable that this should happen

where there is a submission of no case to go

to the jury either because the evidence for
the Crown is suggested to be insufficient to

justify leaving the case to the jury, or

because, though there may be some evidence, it

is so tenuous that it would be unsafe to leave

the case to the jury.

And, it was that latter sentence, I think, that

formed the basis of a theory that there was a

separate basis for asking the judge to take a case

from a jury and direct an acquittal but it was in

the context of a different comment directed to a

different point.

The next decision which followed

Falconer-Atlee in England was the case of Reg v

Mansfield, (1977) 1 WLR 1102 and I do not desire to

read any passages to the Court although they are

picked up elsewhere, but Mansfield essentially

endorses what was said in Falconer-Atlee. The

English then departed from the Mansfield position

when the Court of Appeal, faced with a line of discretion, in the case of Reg v Galbraith, (1981)

1 WLR 1039 attempted to restate and redeclare the

position and, if I could take the Court to

Galbraith, and particularly the judgment of the

Chief Justice Lord Lane at page 1042 where, having

just said that in so far as - this is paragraph A:

Doney 24 11/10/90

In so far as the decision in Reg v Mansfield,

(1977) 1 WLR 1102 is at

variance with -

another decision -

in Barker ..... we must follow the latter.

Barker's case standing for the same proposition which emerges in the next paragraph of Galbraith.

This passage appears:

How then should the judge approach a

submission of "no case"? (1) If there is no

evidence that the crime alleged has been

committed by the defendant, there is no

difficulty. The judge will of course stop the

case. (2) The difficulty arises where there

is some evidence but it is of a tenuous

character, for example because of inherent

weakness or vagueness or because it is

inconsistent with other evidence. (a) Where

the judge comes to the conclusion that the

prosecution evidence, taken at its highest, is

such that a jury properly directed could not

properly convict upon it, it is his duty, upon

a submission being made, to stop the case.

We, with respect, would endorse that proposition as

being perfectly correct.

(b) Where however the prosecution evidence is

such that its strength or weakness depends on

the view to be taken of a witness's
reliability or other matters which are
generally speaking within the province of the

jury and where on one possible view of the

facts there is evidence upon which a jury

could properly come to the conclusion that the

defendant is guilty, then the judge should

allow the matter to be.tried by the jury.	It
follows that we think the second of the two

schools of thought is to be preferred. There will of course, as always in this

branch of the law, be borderline cases.

And, then comes the expression:

They can safely be left to the discretion of

the judge.

And, we would say, discretion in that sense has a
very special meaning.

DAWSON J:  Why do you accept (a) though?

Doney 25 11/10/90

MR WEINBERG:  (a) Your Honour, because if a jury's verdict

would be regarded as perverse, in other words, if

it would not be reasonably open to a jury - - -

DAWSON J:	No, no, if the jury's verdict would be regarded as unsafe and unsound.
MR WEINBERG:	That is not what the passage says,

Your Honour, it says:

could not properly convict upon it, it is his

duty, upon a submission being made.

DAWSON J: It is embraced in the word "properly", is it not?

You cannot properly come to a verdict which would

be unsafe and unsound when that means that a

reasonable jury must have had a doubt.

MR WEINBERG:	Your Honour, it then has to be taken in the context of the next paragraph, which is
paragraph (b), where the court expressly excludes
from what is contained within paragraph (a) matters of credibility and says, "These are, in general terms, matters for a jury". It is not for a judge
who is unimpressed with a witness whom he thinks
happens to be lying and whom he would not accept as
a witness of truth to direct a jury to acquit. It
is a matter for the jury, properly instructed and
given all appropriate warnings, to come to its own view as to which parts of that evidence it can act
upon and which parts it cannot.

DAWSON J: It does not address the question. Taking the

evidence at its highest you may have a situation

where there is evidence upon which a jury could

convict, as a matter of law, but if they did the

verdict would be unsafe and unsatisfactory.

MR WEINBERG: Yes, Your Honour.

DAWSON J: Well, now, that is (a).

MR WEINBERG:  Not in relation, Your Honour, we would submit,

to matters of credibility because (a) must be - - -

DAWSON J: But I am saying accepted it, accept the witnesses

at their highest, but still you can envisage a

situation in which it would be unsafe and
unsatisfactory, a verdict of guilty.

MR WEINBERG:  Yes. Your Honour, that passage has been the

subject of consideration by other courts - - -

DAWSON J: It is not very well expressed.

MR WEINBERG:  - - - and it has been approved. It would be a

rare case, of course, and it would necessarily be a

Doney 26 11/10/90

case which did not depend upon the primary fact finding role of a jury, namely, being to assess matters of credibility.

DEANE J:  But in view of the questions asked you would not

suggest, would you, that we should endorse what is

said there where the word "properly" simply

introduces another problem?

MR WEINBERG:  No. we do not ask this Court to do anything

other than refuse special leave, Your Honour.	What
we say is - - -

DEANE J: Well, I mean, you would scarcely adopt that as an

ideal statement of the law would you?

MR WEINBERG:  It is not necessary to do so for the purpose

of our submission.

McHUGH J: It is probably got to be read as "in law", has it

not?

MR WEINBERG:	Yes, Your Honour.
DEANE J:	You read "properly" as legally open?
MR WEINBERG:	It has got an ambiguity associated with it

which would be undesirable and better to avoid, for

our purposes.

GAUDRON J: Well, can it be avoided anyway in that context

other than by deleting 2(a)?

MR WEINBERG: Section 2(a), in our submission, is only

intended to reflect this: that it is not a matter

of a "no case" submission being absolutely black

and white. If there is any evidence, even a

scintilla of evidence, which a jury would be acting perversely to accept, that a judge is devoid of the

power to accede to a "no case" submission.

McHUGH J:  But you have used the word "perversely". What do

you mean by "perversely"?

MR WEINBERG: Well, Your Honour, I use it in this sense:

one could have a very extreme case and, perhaps, to

give the Court an example, you could have a witness

who gives evidence which implicates the accused.

The witness then resiles from that evidence

immediately, voluntarily, adheres to that resiling;

there is then ample, clear, overwhelming defence

evidence introduced to show that that witness was,

in fact, telling a pack of lies. There is not a

scintilla of evidence upon which a jury, acting

properly, could be satisfied beyond reasonable

doubt.

Doney 27 11/10/90

We do not say that it would be beyond a judge

to take a case from the jury in those circumstances

on the basis that there is no case to answer.

DAWSON J: But that is the situation which you denied,

because that goes directly to credit.

MR WEINBERG:  No, Your Honour, it does not, in our

respectful submission. What we say is that there are cases where the Crown case, even taken at its highest, if accepted by a jury one would have what

one could fairly describe as a perverse verdict; no

reasonable jury could be satisfied.

DAWSON J: Taken at its highest in the example you give,

that means you believe the witness who resiled.

MR WEINBERG:  Your Honour, our submission is that it is not

the case, and it is not the law that merely because
there is a piece of evidence which is put forward

which, if accepted, would satisfy an element of the

offence, it is not the law that such evidence

necessarily overcomes a "no case" submission.

There may be cases where the evidence itself is of

such a tenuous character, because it is

inconsistent with known facts, it is resiled from -

- take the case of Mr Freeman in this case - he is cross-examined about the statement

the witness admits that he perjured himself. statement

that he made about the conversation at the

Cauliflower Hotel. A friend puts to him the

suggestion that he was in England throughout the

entire month of February, indeed for the entire

month leading up to March, and produces a passport;

produces people in the court; the witness breaks

down and says, "That is absolutely correct; I was

in England; I was serving a month's gaol in

Brixton; you have produced all the records and so

forth. I have been lying. I am very sorry".

McHUGH J: Well, that is a case of no evidence.

MR WEINBERG: That is right.
McHUGH J:	I have actually been in a civil case where I have

seen that happen.

MR WEINBERG:  But it is not no evidence, Your Honour,

because the witness has actually given the evidence

which inculpates initially and on one theoretical

view there are conflicting accounts given by the

witness and the jury could accept his first account
and reject the other. But, it is not a case of no

evidence; it is a case where the evidence has so

completely disappeared, it has become so tenuous,

so - to use the language of the court, it has

Doney 28 11/10/90

reached a point where no jury, performing its

function lawfully, could be satisfied beyond

reasonable doubt. That is a "no case" submission.

McHUGH J: Well, supposing at the close of all the evidence,

the evidence against the accused consisted of a

professional criminal and seven bishops gave

evidence for the accused that he was with them at

the time of the commission of the crime.

MR WEINBERG: Professional criminals sometimes tell the

truth and seven bishops sometimes lie, Your Honour.

That is a matter for a jury.

McHUGH J: That is a jury matter, is it not?

MR WEINBERG:  Yes, absolutely. I am not talking about that

situation; I am not talking about Mr Freeman's

situation, where you have a witness who has been

damaged in cross-examination. I am talking about a

situation where the Crown case effectively

disappears even though it existed at one time.

DEANE J: But it is still a "no evidence" and it is still in

one. I mean, surely all you are saying is that

when the judge comes to rule on a "no case

submission", there is no evidence to be taken into

account in relation to the relevant element,

because what at one stage was technically evidence

has disappeared as evidence in any real sense.	I
mean - - -

MR WEINBERG:  No evidence upon which a jury could lawfully

convict.

DEANE J:	- that is always part of that case.
MR WEINBERG:	That is all we are saying, Your Honour. We

are saying that the "no case submission" is not

limited to situations where there is a gap in the

evidence. It extends to some rare cases where the

Crown case collapses or, although there is a

scintilla of evidence, it is so totally

demolished - - -

DAWSON J: A scintilla - there is either no evidence or

there is evidence and the justification for this

discretionary - taking the case away from the jury

was always the situation where there is, but a

scintilla of evidence; where the evidence is

there, but it is tenuous. That was always the

justification.

MR WEINBERG: Well it has been transmogrified, Your Honour,

into being a submission which says that it would be

unsafe and unsatisfactory for a jury to convict,

Doney 29 11/10/90

which is a very different thing from saying there

is a scintilla of evidence.

DAWSON J:	I am not sure that it is because all you are saying when you are saying that it is unsafe and
unsatisfactory is that if a jury convicted on that
evidence it would be acting unreasonably.

MR WEINBERG:  Yes. It would not be open to a jury acting

reasonably to convict on that evidence. That is

what this Court has said in Morris' case as the

appropriate test for determining whether a verdict

is unsafe and unsatisfactory.

McHUGH J: I must say, read in the total context, I think

that 2(a) is inconsistent with R's case and really

supports the proposition that Mr Morris would put.

MR WEINBERG:  I would be very reluctant to embrace 2(a) if

that were Your Honour's feelings and I will hastily

abandon it. It was not - - -

DEANE J:	And change your answer to Justice Gaudron.
MR WEINBERG:	I am delighted to do that as well, if the

Court pleases. It is one of the advantages of
advocacy, that one can advocate rather than

attempting to write treatise or give a proper

answer, but it was a submission that we made that,

properly understood, 2(a) is not an erroneous that passage was the subject of consideration and
statement, but if that is not acceptable to the
Court then I resile from it and leave 2(a) to the

careful ·consideration by the Victorian Court in

Attorney-General's Reference (No 1 of 1983),

(1983) 2 VR 410. This was a reference by the

Attorney-General to the Victorian Court of Criminal

Appeal. It involved a directed acquittal by a

trial judge. The trial judge was faced with a "no

case submission" at the end.of the Crown case and

His Honour directed the jury to acquit on the basis

that it was a circumstantial case and His Honour

saw that there were -

hypothesis -

in his mind -

consistent with innocence -

as well as hypothesis consistent with guilt and, in

those circumstances, His Honour concluded that it

was:

his duty to direct the jury to acquit.

Doney 30 11/10/90

The question of law raised for the

consideration of the court was whether His Honour had acted correctly in so ruling. The Full Court

concluded that His Honour had erred in so ruling.

If there are hypotheses, even hypotheses which are

regarded as equally convincing in the mind of a

trial judge, at the end of the Crown case it is the
duty of the trial judge to leave the question to
the jury for it to resolve.

In the course of expressing that view on the

reference, the court noted the earlier decision of
the Privy Council in Haw Tua Tau v Public

Prosecutor - this is at page 415 - noted that with approval; noted also Galbraith's case at page 415; noted with approval the decision of the South Australian Full Court in Prasad at page 417; and

then referred finally to Galbraith at the foot of

page 417, line 43; further in Galbraith which was

decided after Prasad:

Lord Lane, speaking for the Court of Appeal,

pointed out that the fact that the Court of

Appeal has power to quash a conviction on the

ground that the verdict was unsafe or
unsatisfactory is a slender basis for giving a

trial judge similar powers at the close of the

prosecution case. His Lordship also pointed

out the ambiguity in the word "unsafe" and

concluded -

and then the passage from Galbraith is set out.

DAWSON J: They do not detect any exegesis of it.

MR WEINBERG:  No, they do not, Your Honour. Set out, it

would seem, perhaps at least with tacit approval by

the court with no indication of discipline.

DAWSON J: Incidentally, that case I see was followed in

Reg v Stewart in Queensland in 1989.

MR WEINBERG:  I have not a note of that, Your Honour, but I

am sorry we will - - -

DAWSON J: It is (1989) 1 QR 490.

MR WEINBERG:  I am grateful for that, Your Honour. Could we

Haw Tua Tau, perhaps even greater significance than would normally be the case of a decision of the

take the Court to the decision of the of

Privy Council because Sir Ninian Stephen was a

member of the board on that occasion.

McHUGH.J: It does contain a passage though, I must say that

I have some doubts about.

Doney 31 11/10/90

MR WEINBERG:  I hope it is not the passage I am about to

read to the Court.

McHUGH J: It is the passage about "no reasonable person"

that is so inherently incredible that no

reasonable person could accept it.

MR WEINBERG:  Your Honour, the passage I was about to read

appears at page 151, and I shall be relieved if it is not the passage Your Honour is troubled by. At

page 151 at point Con the page, what Lord Diplock

said in giving the advice of the Privy Council was

this:

It is well established that in a jury trial at

the conclusion of the prosecution's case it is

the judge's function to decide for himself

whether evidence has been adduced which, if it

were to be accepted by the jury as accurate,

would establish each essential element in the

alleged offence: for what are the essential
elements in any criminal offence is a question

of law. If there is no evidence (or only .....

McHUGH J: It is these words in brackets that I have

difficulty with.

MR WEINBERG:  It is those words that I was attempting to

describe so inadequately a few moments ago -

evidence that is so inherently incredible that

no reasonable person could accept it as being

true) -

and it was simply that flavour that I was

attempting to inject into the submission, that
there are such cases a "no case" submission will be

perfectly proper. His Honour went on to say:

to prove any one or more of those essential

elements, it is the judge's duty to direct an

acquittal.

McHUGH J: That seems to indicate that the trial judge can

evaluate the evidence for himself and say whether

or not the jury should accept it.

Your Honour, things are not always black and

white, if I can put it that way. Yes, of course,

to a very, very, very limited degree encompassed

within the words "inherently incredible", we would

accept that as part of a proper "no case"

submission, a trial judge has that power and that

duty because he would not leave a case to the jury in circumstances where the net effect of the Crown

Doney 32 11/10/90

case is that there really is no evidence upon which

the jury could act.

TOOHEY J: Because 2(a) in Galbraith is not confined to a

"no case" submission, is it?

MR WEINBERG:	No, Your Honour.
TOOHEY J:	It is not confined to a submission made at the

end of the Crown case.

MR WEINBERG:	No, it is not.
TOOHEY J:	It can cover a submission made at any stage of the trial.

MR WEINBERG: It would, that is so.

DAWSON J: But really, the situation you are adverting to is

almost confined to the situation where a witness
says, "This is what was so", and then in the next

breath says just the opposite -

MR WEINBERG:  "I've told a pack of lies, the accused is

innocent, I'm very sorry" and - - -

DAWSON J: There is no evidence, is there. I mean, in one

statement there -

MR WEINBERG: In a logical sense, there is evidence because

the judge is going to the tell the jury, if it goes
to the jury, they can pick and choose among his

evidence and they can accept -

DEANE J: But the point Their Lordships are making is the

point Justice Dawson is making because at the very

next sentence they say that if there is some

evidence the judge must let the case go on.

MR WEINBERG: Yes, and that is our submission.

DEANE J:  In other words, what they are saying or guarding

against is the situation where, while somebody has

said something on a "no case" submission, that

cannot properly be treated as any evidence at all.

MR WEINBERG:  Your Honour, to take another example, a

witness may give evidence that he saw the accused,
who is a 93 year-old grandmother, running speedily

across the ground outracing four police officers,
or some such proposition. If the evidence was so

inherently incredible that it just could not be

accepted - - -

DEANE J: Well, it depends on what police force you are

referring to.

Doney 33 11/10/90

MR WEINBERG:	I hesitate to criticize the Australian Federal Police, but there might be some who would have
difficulty catching the grandmother. That is the
flavour of what the Privy Council was talking about, in our submission. There are, of course, some very extreme cases where the net effect of it
is that the Crown case has collapsed. If that be
the case, then a "no case" submission is the proper
submission to make. There is no room in that passage, in our respectful submission, for any
wider or residual discretion on the part of a trial
judge to anticipate what an appellate court might
do exercising its statutory functions in terms of whether it, upon the totality or all the
evidence -

DAWSON J: Well, it really amounts to that the evidence has

no probative value whatsoever.

MR WEINBERG: That is right, Your Honour, and that is the

only power, in our submission, which a trial judge

has so far as directing a jury to acquit. Either

there is no evidence on a point which is a critical

element of the Crown case, or such evidence, as is

adduced, has no probative value whatsoever.

McHUGH J: Yes, but whether it has got probative value

depends on whether it is accepted, does it not?

MR WEINBERG:  Your Honour, there are some things that are

inherently incapable of being accepted and it is

those rare cases - - -

McHUGH J:  I do not think there is anything in the universe,

is there~ that is - I am sorry, I should not have

said that.

MR WEINBERG:  Your Honour, that is perhaps why we have

juries determining questions of guilt or innocence

and not judges. It is a matter of common sense

that there are some things which, as a matter of

common sense, are inherently incapable of being

accepted. There are propositions which are just

inconceivable as a matter of practical reality.	Of
course, people can move faster than the speed of
light, in Einstein, in relativity theory or other

theoretical matters, but what Their Lordships were

doing in this case was saying, in effect, to allow

a wider power on the part of a judge than this

would be very much to usurp the role of the jury

which is constitutionally the body which is vested
with the task of determining questions of guilt or

innocence and, of course, there must be a limited

capacity on the part of the trial judge who, of

course, is obliged to ensure a fair trial and doing

so means conducting a trial in accordance with the

proper rules of procedure and evidence and taking

Doney 11/10/90

from the jury a case where there is no evidence.

All those matters are perfectly proper and even

beyond that there is the protection for the accused

of the appellate court ultimately looking at the
totality of the case and in rare circumstances, it

having the capacity to disagree with the jury's

verdict in accordance with the rare and limited

criteria laid down for that course to be followed.

McHUGH J: Well, Mr Weinberg, the difficulty I have is that

once you open the door and allow the trial judge to

evaluate the evidence in any way, I do not see why

in principle you can stop the trial judge

evaluating the evidence generally.

MR WEINBERG:  Your Honour, because the courts have laid down

an appropriate stopping point. The courts have

said the trial judge can do it but only in those

cases where, in effect, there is no evidence.

McHUGH J:  But when you say they have laid it down, they

have moved on because a century ago I doubt if any

judge would have adhered to these propositions.

MR WEINBERG:  Perhaps a century ago the courts would have

taken an even narrower view, Your Honour, and would

have said, "Simply there is evidence; it is a

matter for the jury".

McHUGH J: Exactly.

MR WEINBERG:  Yes, and to that extent, the courts have

qualified that by saying, "Well, we are not going

to be silly about this; we are not going to leave

cases to the jury which are ridiculous and depend

upon ridiculous propositions and deny the accused

the safeguard and the right to take ridiculous

cases away".

DAWSON J: Where it would be an abuse of the processes of

court to carry it any further.

MR WEINBERG:  Yes.

GAUDRON J: What, though, of the procedure referred to in

Turnbull? Must there not be the odd case where the

trial judge can effect the situation where there is

no evidence by withdrawing evidence earlier

admitted? I have in mind evidence that is admitted
on the assumption that some further evidence will
later be called. It is not called and, at the end

of the day, what you have is evidence which on its

own and if it had been known was standing on its
own, would have prejudicial value far outweighing

its probative value. Now, do you - - -

Doney 35 11/10/90

MR WEINBERG:  Your Honour, there are two things that we

would say about Turnbull; one of them is that it

was decided, I think, in 1977 about the same time

as Mansfield and before Galbraith at a time when

English law was permeated with what we have called

the heresy. Secondly, the decision in Turnbull

itself, where it has been considered by others in

so far as that particular passage occurs, has been

doubted. I think the Supreme Court of Canada

decision in, I think, it was Mezzo was referred to

by His Honour the Chief Justice in Reg v Rand I

think, if I recollect correctly, Their Lordships in

the Supreme Court of Canada certainly did not

embrace that particular part of Turnbull.	We would
say that - - -

GAUDRON J: So, if evidence is admitted on a particular

hypothesis which turns out to be false, even though

if the - - -

MR WEINBERG: Well, you would exclude the evidence,

Your Honour.

GAUDRON J:	You would.
MR WEINBERG:	It ceases to have the relevance which was the underlying basis for its admissibility.

GAUDRON J: Yes.

MR WEINBERG:  Once it disappears, then of course there is no

theoretical - - -

GAUDRON J: Well, you accept that there is still that

possibility as described in Turnbull.

MR WEINBERG:  Of course, Your Honour. We would accept that

a judge has all sorts of discretions and powers in

terms of excluding irrelevant evidence and

excluding evidence in the exercise of one of a

number of discretions.

GAUDRON J: Even after it was admitted?

MR WEINBERG: This happens quite often, Your Honour, even in

criminal trials and the jury will be instructed to

disregard it. In some cases that would not

sufficient to cure the problem and there might have

to be a discharge if the evidence were of a

particular kind whereby the jury could not

reasonably be expected to obey such an instruction.

McHUGH J:  Does that mean that you accept what the

Chief Justice said in Rat page 76 about the

identification evidence?

MR WEINBERG:  Your Honour is referring to - - -

Doney 36 11/10/90

McHUGH J: Page 76, at line F, where it said:

It was submitted that, in the light of the

view taken by his Honour as to the

unsatisfactory nature of the identification

evidence, his Honour, with or without holding

a separate voir dire examination, would have

been well within his rights in rejecting the

identification evidence or withdrawing it -

MR WEINBERG: Well, that might be so, Your Honour:

in rejecting the identification evidence or

withdrawing it from the jury's consideration.

What we would wish to say about identification is

this: in a sense, it may be a category of evidence

sui generis. Identification evidence has been

treated by the courts in a very special way, so

much so that warnings of a particular kind have to

be given to juries about the dangers of acting upon

it. There are also discretions which operate in

relation to identification evidence which has been

obtained in a manner which might lead a jury to

give it excessive weight. For example, a dock

identification, standing alone, would almost

certainly be excluded in the exercise of a trial

judge's discretion, not because it has no probative

value. A dock identification is a dock

identification. It is direct evidence of the guilt

of the accused but because a jury might be inclined

to give that piece of evidence more weight than it

ought properly in the experience of a judge to have

and, as such, its probative value would be

significantly outweighed by the likely prejudicial

- in the sense of diverting the jury from its

proper evaluation of that evidence.

It is just a classic exercise of that

discretion, in our respectful submission. It would

be excluded on that basis, if it were particularly

unsafe, because a jury might not be aware of

exactly how risky a dock identification is and they

are always excluded as a matter of discretion.

McHUGH J: But once you concede that, I do not see where you

can stop in principle. Why cannot the trial judge

say, "From my experience this witness's evidence

may mislead this jury"?

MR WEINBERG:  Your Honour, a trial judge cannot do that

because the courts have said that a trial judge
should, in the exercise of his discretion, exclude

a dock identification not supported by a previous

identification out of court. It is a well

established doctrine based upon the infirmity of

that particular species of identification evidence.

Doney 37 11/10/90

DAWSON J: Similar fact evidence is another example.

MR WEINBERG: Yes, Your Honour, well, that has got a

different kind of prejudicial effect, of course,

but the courts have never said that one has to

approach a witness for the Crown who tells a lie
about something in a particular way by excluding

his evidence or anything of that kind. It could
not be laid down as a general proposition.

Identification evidence is, in our submission to this Court, in a category quite special. It does permit judges to intervene and to exclude it in

appropriate circumstances as part of well

recognized and well defined discretions and once

that is done if there is no other evidence then a

"no case" submission succeeds.

McHUGH J:  Well, why should the principle not be extended

to accomplices because accomplices have caused just

as many miscarriages of justice as identification?

MR WEINBERG: 

Your Honour, we might as well close up the

courts if we are going to exclude accomplices from
giving evidence in criminal trials in these days.

It is an unfortunate thing that one often, in many

sorts of cases, particularly drug cases, is

required to call such persons.

They always have problems associated with

their credibility but, in our respectful

submission, the courts have dealt with that

phenomenon and that problem by requiring very

careful warnings to be given to juries about the

dangers associated with accomplice evidence and

ultimately it is a matter for the jury. It has

never been suggested that accomplices should be
incompetent to testify because they happen to be

accomplices.

McHUGH J:  I know that, but frequently they are polished witnesses, accomplished liars.

MR WEINBERG:  This gentleman was not particularly polished

or accomplished.

McHUGH J:	No •
MR WEINBERG:	Frequently they are not.

McHUGH J: But if you say identification evidence is often

unreliable and a judge can stop it, why can you not

say an accomplices' evidence is often unreliable?

MR WEINBERG:  The difference lies, Your Honour, in the fact

that juries can understand very readily that an

accomplice has a capacity and a willingness to

minimize his own role and to implicate the accused.

Doney 38 11/10/90

It is a matter which is well within the common

sense and experience of ordinary jurors that they

must approach an accomplice's testimony with great

care and great scrutiny. The problem with

identification evidence, as pointed out in

Turnbull's case, is that ordinary jurors do not

fully appreciate the dangers that lurk behind what

appears to be a positive identification and that

calls for very special treatment.

That very special treatment may involve just a

warning or, in some cases, it involves the actual

exclusion of certain sorts of identification if it

is thought that the probative value of that

identification in those circumstances would be very

very dangerous and greatly outweighed by its likely

prejudicial consequences, and I come back to the

dock identification as an example of that.

DEANE J:  But is not the distinction between the law's

judgment of what is necessary to a fair trail and

the decision of a jury after a trial which accords with the law's judgment of what is necessary for a

fair trial; if the stage were reached where the

dangers of accomplices' evidence was such that the

judgment of the law was that a trial using

accomplices' evidence was not a fair trial, it

would be open to the law to say, "Accomplices'

evidence will be excluded".

MR WEINBERG: That is so, Your Honour, and, indeed, the law

develops in other areas. This Court has laid down

certain principles relating to verbal confessions

and the ~ccasional need for a warning to be given.

DEANE J:  But it is a quite different thing to say if the

law, not having reached that judgment, allows a

trial in which accomplices' evidence is admitted
that at the end of the day the trial judge should

say, "I'm not going to allow the jury to perform

its function, and waiver the accomplices' evidence.

I'm going to deal with it myself".

MR WEINBERG: That is our submission, Your Honour.

Your Honours, I had taken the Court to Haw Tua Tau.

I will not take the Court to the other cases which

support the view that we are putting to the Court
but I might just refer the Court to them and the

passages in question. There is the judgment of

His Honour Mr Justice Hunt in the case of

Reg v Haas, (1986) 22 A Crim R 299, at pages 300

and 301; there is the majority judgment of the

South Australian Full Court in Reg v Prasad, (1979)

23 SASR 161, at pages 162 in the judgment of the

Chief Justice and at pages 170 to 171 in the

judgment of Mr Justice White. There is a

Doney 39 11/10/90

dissenting judgment of Mr Justice Mohr in

Prasad's case.

Could we also draw the Court's attention to the fact that in a Victorian case, R v Williams,

(1983) 2 VR 579 there is an observation by the

court, by Mr Justice Gobbo in particular, which is
contrary to the submissions that we are putting to

the Court and that appears at page 584 and,

particularly, three-quarters of the way down
page 584. In our submission, that observation was
plainly, in the circumstances of the case, dicta

and we would, with respect, submit that it ought

not to be followed but - - -

DAWSON J: Was that before or after the Attorney - - -

MR WEINBERG: After the AttornerGeneral's Reference -

DAWSON J: After?

MR WEINBERG:  - - - and it refers to the Attorney-General's

Reference. Perhaps I will read it to the Court.

It is at page 584, at line 25:

The question of intervention by the trial

judge to exclude evidence, or cause an

acquittal by direction, is not, of course,

determined by decisions on appeal related to

unsafe convictions or inadequate directions to

the jury. Such decisions, however, inevitably

provide valuable guidance as to intervention

by the trial judge. In this area it is

neqessary at the outset to observe carefully

the distinction that exists between a

submission of no case to answer and an

invitation to the trial judge to exercise a

discretion to direct the jury to acquit.

Where the trial judge decides to exclude a

dock identification - and that is the only

evidence implicating the accused - a

successful no case submission will inevitably

follow. That, rather than discretionary

direction to the jury to acquit, is the

appropriate course. The nature of a no case

submission was the subject of an advisory

opinion by this Court: See AttornerGeneral's

Reference No 1. Where there is some evidence

sufficient to meet a no case submission, a

judge may none the less have discretion to

invite the jury to acquit the accused. There

has been some recognition of the existence of

such a discretion in the past -

reference is made to Benny v Dowling and Wilson v

Kuhl -

Doney 11/10/90

But I leave, for future consideration, the

question as to what is the precise power of

the trial judge to "invite" a jury to acquit,

where there is a case to answer.

It seems that His Honour there is certainly

recognizing the existence of some kind of

discretion on the part of a trial judge.

McHUGH J: But he is not meaning anything more than just say

to the jury, "Well, do you want to hear anything

more?".

MR WEINBERG: That is a separate question, Your Honour, as

to whether a trial judge has the power to ask a

jury, rather than direct a jury. In this case it

is noteworthy that His Honour Mr Justice Sully did,

at the request of counsel for the applicant; asked the jury at the end of the Crown case whether they

wished to acquit there and then or whether they

wanted to hear more. The jury indicated they were

not prepared to acquit and they did want to hear

more.

DAWSON J: Well, he did not ask in a very inviting way,did

he?

MR WEINBERG:  Your Honour, I do not know what an inviting

ask is. He asked the jury whether they wanted to

acquit and the jury said, "No".

DAWSON J:  I am just saying that really in the way you put

it inevitably the jury would have said no.	Maybe
that is just a matter of impression.

MR WEINBERG:  If Your Honour pleases. Your Honours, it is

our submission that it may be that appellate courts

have a statutory jurisdiction and, indeed, they do

to overturn a conviction in circumstances where
they are satisfied upon the totality of the
material that such a verdict is unsafe and

unsatisfactory but we say it does not follow that a

trial judge sitting at first instance has that

power and there are a number of reasons for that.

If one firstly goes to the situation which

arises on a "no case submission", it is plain

beyond argument, in our submission, that for the

purpose of dealing with a "no case submission" the
judge is required to take the Crown case at its
highest and to consider only that evidence which

supports the Crown case and to put out of his mind

such evidence as might be available to support the

defence case.

It would be paradoxical, in our submission, if

at that very same time with two submissions being

Doney 41 11/10/90

made, one a no case and the other an unsafe

submission, the trial judge then was to reject the

no case, forget that exercise completely and then

go to the too dangerous submission or the unsafe

submission. It would make the "no case submission"

otiose. One would wonder why anyone would ever

make a "no case submission" if one could simply put

a submission that a verdict would be unsafe and

unsatisfactory. So, it would be odd at least if

the judge had that power given those restrictions

upon a no case submission.

Secondly, Your Honour, in our submission, it

would be unfortunate, to put it mildly, if judges,

particularly judges of inferior courts, had the

power to direct an acquittal in circumstances where any such power would be at least difficult to fully

rein in and grapple with the precise limits of it

in terms of avoiding a usurpation of the jury's

role, avoiding substituting the judge's own views

as to what would be the appropriate verdict. It

would be a very difficult task, in our submission, for many judges of inferior courts at least and it

must be remembered that if my friend's submission

is correct, in a sense, it also would apply even to

magistrates who notionally wear two hats. At the
end of a Crown case, they could also be required to
exercise a power to not proceed further with the
case on the basis that it would be unsafe at the

end of the case to convict and that would be a

complete violation, in our respectful submission,

of long-established principles and practices of

conduct of criminal proceedings in summary courts.

The magistrate would be invited at the end of the

Crown case to rule on whether he had a doubt, in

effect. It would be a very dangerous doctrine, in

our submission.

It is our submission that it would be a

doctrine that in the case of jury trials, at least,

would be practically incapable of rectification.

There are, my friend advanced, the possibility of

going along and reviewing the decision or appealing

against a decision by a trial judge to direct a

jury to acquit. I think there are one or two

States in Australia which permit an appeal which

actually has legal consequences - - -

DAWSON J: Tasmania does.

MR WEINBERG:  - - - to be taken against a directed acquittal

on a question of law. Whether one could fit

oneself within a question of law when the finding

would be one of fact would be very doubtful. I

think Tasmania and Western Australia are the two

States that permit the Crown to appeal against jury

directed acquittals but only on questions of law

Doney 42 11/10/90

and if the judge made a finding of fact it would

be, in a practical sense, very difficult to have

review of those matters.

In the other States, once the jury delivers

its verdict, that is finality. There are in some

States provisions which allow reference to be made

to the court but it is a reference which does not

affect the guilt or innocence of the accused. That

is established definitively and finally by the

judge's direction to the jury.

It is inconceivable, in our submission, to

think of a practical way in which a judge could

indicate that he proposed to direct an acquittal

and then be asked to stay the matter or adjourn the

matter whilst papers are prepared and it goes off

to an appellate court.	The jury are left in limbo
for - - -

DAWSON J: It may not be inconceivable in Queensland.

MR WEINBERG:  I am tempted to say that nothing is

inconceivable in Queensland, Your Honour, but I do

not quite understand what lies behind

Your Honour's - - -

DAWSON J: Well, there is some special legislation which

enables you to stop the trial there.

MR WEINBERG: That has been tried and, I think, been the

subject of very great criticism of the Crown for

doing it, if I recall correctly.

DAWSON J: But they did it.

MR WEINBERG:  They did it and they failed, but in a

practical sense a judge, once he has decided that

it would be unsafe, would direct an acquittal and

it is difficult to see how he could be stopped from

doing that. There would be a race across to the

court to get some sort of order to stop the judge
from doing it, or some such scenario.	It is one

thing for three very experienced senior judges in

an appellate situation reviewing the totality of

the case to come to a view as to whether the jury's verdict was safe and unsatisfactory. It is another thing altogether, in our submission, for a trial

judge who, of course, he has got the advantage of

having seen and heard the witnesses; he has also

got the disadvantage, in a sense, of being too much

immediately involved in that scenario. He cannot

sit back and look at it in the detached and

clinical way that an appellate court can do in

terms of considering the very limited circumstances

in which a jury's verdict should be interfered with

or they prevented from considering their verdict.

Doney 43 11/10/90

An accused is put into the hands of a jury

when he is arraigned. He is not put into the hands

of a jury if a judge thinks that it would be safe

to let a jury consider the matter. The judge is

there, in our submission, to resolve questions of

law. Whether there is no case to answer or not is

a question of law - May v O'Sullivan. Whether or

not the case carries the conviction that the Crown

says it does is a question of fact and a question

for the jury.

So, for all those reasons, in our respectful

submission, the line of authority which, we say, is

now well established and the dominant line of

authority, we cannot say that there are no other

expressions of view, there are and we have drawn

the Court's attention to them, but we say that

dominant line of authority which says that it is

inappropriate for a judge to purport to exercise

this kind of discretion is correct in principle and

this Court ought not to interfere with it. If the

Court does grant special leave, it should do so
only for the purpose, in our submission, of

vindicating that line of authority and not for the

purpose of overturning it.

So far as ground 2 is concerned, the question

of corroboration and the capacity of exhibit Q to
constitute corroboration, my friend has put a
number of submissions to the Court about the
alleged deficiencies of exhibit Q and among those

deficiencies he has identified the fact that it is

not direct evidence of guilt or direct evidence

tending to support the accomplice. We say, so

what? It does not have to be. It has never been

the law that in order to constitute corroboration,

a piece of evidence must be either direct evidence

of guilt or direct evidence supporting the

testimony of the person who needs to be

corroborated.

It is trite, in our submission, that

circumstantial evidence is perfectly capable of

amounting to corroboration and if it would be

useful to the Court we will draw the Court's

attention again to Reg v Baskerville, which is the

formulation of the nature of corroboration which

has been adopted time and time again in England and

in this country. Baskerville is reported
in (1916) 2 KB 658 and the particular passage

appears at page 667 in the judgment of the court

delivered by Lord Reading. At line 5, His Lordship

said this:

We hold that evidence in corroboration

must be independent testimony which affects

the accused by connecting or tending to

Doney 44 11/10/90

connect him with the crime. In other words,

it must be evidence which implicates him, that

is, which confirms in some material particular

not only the evidence that the crime has been

committed, but also that the prisoner

committed it. The test applicable to

determine the nature and extent of the
corroboration is thus the same whether the

case falls within the rule of practice at

common law or within that class of offences

for which corroboration is required by

statute. The language of the statute,

"implicates the accused," compendiously

incorporates the test applicable at common law

in the rule of practice. The nature of the

corroboration will necessarily vary according

to the particular circumstances of the offence

charged. It would be in high degree dangerous

to attempt to formulate the kind of evidence

which would be regarded as corroboration,

except to say that corroborative evidence is
evidence which shows or tends to show that the

story of the accomplice that the accused

committed the crime is true, not merely that

the crime has been committed, but that it was

committed by the accused.

The corroboration need not be direct

evidence that the accused committed the crime;

it is sufficient if it is merely

circumstantial evidence of his connection with

the crime.	A good instance of this indirect
evidence is to be found in Birkett.	Were the

law otherwise many crimes which are usually

committed between accomplices in secret, such
as incest, offences with females, or the

present case, could never be brought to

justice.

That passage has been cited with approval on so

many occasions that it is aimost unnecessary to take the Court to them, but there is a decision	which is not in our list of authorities which I
would wish to draw the Court's attention to and I
apologize for having only discovered it in the last
couple of days. It is the decision of Kalajzich
(1989) 39 A Crim R. I have five copies for the
Court.

McHUGH J:	We refused special leave in this instance.
MR WEINBURG:	I am reminded of that, Your Honour, yes. Well

the Court will be aware of it in that case and all

I will do is refer the Court to the pages which are

set out at pages 425 to 434 in which there is a

compendious analysis of the development of the

Baskerville principle and its application in many

Doney 45 11/10/90

other jurisdictions and they all essentially

establish that circumstantial evidence is perfectly

capable of amounting to corroboration; that the

corroboration does not of itself have to prove the

guilt of the accused. If it did then one would not

require the testimony of the person who is said to
require corroboration at all. It is sufficient if

it confirms his testimony in a material particular.

They establish that it is sufficient if the

corroborating material involves the accused, which

is the language which is used and also used, I
might say very correctly, in our respectful

submission, by the Court of Criminal Appeal which

dealt with this matter in the first Doney appeal,

(1988) 37 A Crim R 288, particularly the judgment

of His Honour Mr Justice Hunt delivering the

judgment of the court.

In the first Doney appeal it should be noted

that not only was exhibit Q accepted by the

court as being capable of amounting to
corroboration, but so also was exhibit M, which was
the note which contained shipper and consignee.

For some reason, which we are at a loss to

understand, His Honour Mr Justice Sully ruled on
the retrial that exhibit M was not capable in law

of amounting to corroboration even though the

Court of Criminal Appeal held that it was, so

exhibit M did not go before the jury as

corroboration, though we take issue with my friend

when he says that it went in only as a sample of

the accused's handwriting. We say it went in as a piece of circumstantial evidence, but not one that

was capable of amounting to corroboration as a

matter of law per the directions of His Honour, the

learned trial judge. And what Mr Justice Hunt said

at the bottom of page 297 is as follows:

To amount to corroboration, the

independent evidence must connect, or tend to connect, an accused with the crime with which

he has been charged: Baskerville. The word

"connect" is interpreted fairly broadly. The

independent evidence does not itself have to

establish beyond reasonable doubt the

accused's guilt of that charge, otherwise the

evidence of the accomplice would not be needed

at all. Nor does the independent evidence

have to form any part in the chain of proof of

that guilt, although of course it may do so.

It does need to prove, or tend to prove, that

the accused was implicated in the commission of the crime with which he has been charged, but the word "implicate" does not necessarily

mean "incriminate" or "inculpate"; it may

mean only "involve".

Doney 46 11/10/90

Reference is made to Berrill's case in Queensland

as authority for that proposition:

The fact that the independent evidence is

consistent not only with the accused's

involvement in the crime charged (here, the

importation) but also this his involvement in
some other lesser crime (here, the
distribution) does not deny the capacity of

that evidence to amount to corroboration.

Reference is made to McK's case. Then half-way

down the page His Honour went on to say:

A person who is knowingly involved in the importation of prohibited drugs would be

likely, in the natural course of things, to

know to whom the goods were addressed as

consignee, to know where the goods were to be
delivered, to be concerned as to whether there

was any police surveillance of that· place and

to be involved in the immediate disposal of

those goods following their importation.	None
of that proves that he was involved in the importation, but it does corroborate the

direct evidence of an accomplice that he was. That material is consistent with the evidence of the accomplice, it makes that evidence more

credible, and it serves to allay the natural

concern of the jury that the accomplice's

evidence is a fabrication in order to shift

the blame onto someone else. It therefore

satisfies the reason why there exists in the law the rule of practice requiring a warning

to be given to a jury that it is dangerous to

convict upon the uncorroborated evidence of an

accomplice. In my view, the two documents -

His Honour was there referring to exhibit Mand

exhibit Q -

tend to connect the appellant with the crime

of being knowingly involved in the importation

with which he had been charged. They were

therefore capable of amounting to

corroboration of the evidence of the

accomplice (Freeman) in this case.

There is nothing, in our submission, with which

this Court ought to take issue with the passages

laid down by His Honour in that particular - - -

DEANE J:  Mr Weinberg, is there anything in judgments of

this Court that is directly in point of this aspect

of corroboration?

Doney	47	11/10/90
MR WEINBERG:	No, Your Honour.	We would say that there

are numerous cases in which similar principles have

been laid down to those expressed in Doney. They

are dealt with in Kalajzich, so we will not repeat

them, but they generally say that an accused cannot

prevent something from being corroborative merely

by making some limited admissions. He cannot say,

"Well, that is not in issue, therefore it is not

corroborative". It does not cease to be

corroborative merely because it shows only that

Doney was involved with the cannabis resin. That

does not prevent it from being corroborative. It

is corroborative because Doney's own story to the

police, or his explanation to the court, is that he

had no involvement whatever and that Freeman was
making the whole thing up.

If there is a piece of independent evidence supported by an expert which shows that that is

demonstrably false and that Doney is clearly linked

to the movement of this cannabis resin in an

organizational sense - he is moving it within a few

weeks of it having come into the country - in our

respectful submission, that is very powerful

corroboration in its purest sense of the evidence
of the witness Freeman, and one would not be at all

surprised if the jury did exactly what

Chief Justice Gleeson suggested they might have

done, go to that issue and resolve that issue ·

first. Having resolved that adversely to the
applicant it would be entirely understandable that
they would feel much less reluctance about

accepting the testimony of Freeman because he has

been plainly proved right about that central issue

in dispute between the Crown and the accused.

It is also the case, in our respectful

submission, that the mere fact that the accused has

told lies about a matter which affords no innocent
explanation is a matter that adds weight to the

corroborative force of exhibit Q, and the courts

have said time and time again that lies told by an

accused person can constitute corroboration in an

appropriate case.

In this case the jury were not instructed that

the lies could directly and of themselves

constitute corroboration, but rather that the lie

was a matter that could be taken into account in determining whether they were prepared to accept

that exhibit Q did corroborate, and that, with

respect, is a perfectly proper way of leaving the

matter to the jury.

Tripodi's case, in Victoria, establishes that

lies told by an accused can constitute

corroboration. Eade's case, in this Court, also

Doney 48 11/10/90

establishes that proposition, in our respectful

submission. My learned junior informs me that this

Court dealt with that issue in Tripodi in the High

Court as well. I do not recall it. I thought it

dealt only with the concert point but it may be

that there is a passage in Tripodi in the High

Court which also deals with that aspect.

So, to conclude our submissions, we say this

became a very powerful Crown case. It was always a

sufficient case to get past the judge to the jury

but it became a very powerful, an exceedingly

powerful Crown case once the accused gave his

evidence to the effect that it was not his

handwriting; he did not write that note; not a

matter about which he can be mistaken and he

confronted directly the evidence of the expert who

said it was on the basis of ample material. The

jury would also have been entitled to have regard

to exhibit M, not as corroboration but as a piece

of very important circumstantial evidence. There

in the handwriting of the accused, in exhibit M, is

a reference to Karachi which happens to be the

place of the shipment, the place the shipment

emanated from and also in the accused's own

handwriting, "Smouha Fabrics" which happens to be

the false consignee which is, in fact, the false

consignee in relation to this shipment.

DAWSON J: 

Smouha Fabrics does not exist.

MR WEINBERG: 

It does exist but it had nothing to do with

these people. Evidence was called that Smouha did
not know these people; had nothing to do with

Ratcliffe & Polly. They were importers of fabric

but they were plainly used as a nominal or notional

consignee.

McHUGH J: 

The accused conceded giving exhibit M to Freeman.

MR WEINBERG: 

He said it was given a year or so earlier in

innocent circumstances and that Freeman kept it for

the nefarious purpose of implicating the accused a
year or a year and a half down the track.	Now, a

jury would be entitled to have regard to the

probabilities of that as an explanation.

McHUGH J:  I suppose the probability is that if the jury did

approach the matter in the way the Chief Justice

said they may not have given the accomplice's

evidence the scrutiny it probably deserved once

that issue - - -

MR WEINBERG: Well, Your Honour, they were warned time and

time again to do that. There is no complaint made

about the direction here and below.

Doney 49 11/10/90

McHUGH J:  I know, but the reality is that once the accused

lost that issue in respect of exhibit Q it was

probably the end of him.

MR WEINBERG:  Your Honour, and we do not shrink from that;

there is nothing wrong with that. If it be that he

was convicted because the jury was satisfied that

his handwriting was on exhibit Q so much the

better. We would feel more comfortable if that be

the process of reasoning than if they rejected

exhibit Q, rejected the handwriting expert, but

said, "We find Freeman to be a wholly convincing

witness". So much the better, in our respectful

submission.

There is evidence about the circumstances

under which exhibit M came into Freeman's

possession. It is set out at page 9 of the

application book. If the Court pleases, those are

our submissions.

DEANE J: Thank you, Mr Weinberg. Yes, Mr Morris.

MR MORRIS:  I have nothing in reply except by way of explanation of a factual matter. I was not in the

first trial but I have read the transcript of it,

or I did at some time, and my recollection is that

exhibit M was not objected to in the first trial

and that was how it was used; that is how it came

into evidence. That is the reason for the
disparity between the two factual situations. If

Your Honour pleases, I do not wish to address in

reply.

DEANE J:  The Court is indebted to counsel for their

assistance and reserves its decision in this case.

The Court will now adjourn until 9.30 am tomorrow

at Sydney.

AT 12.31 PM THE MATTER WAS ADJOURNED.SINE DIE

Doney 50 11/10/90