Edwards v The Queen

[1993] HCATrans 175

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No B14 of 1993

Brisbane

B e t w e e n -

TRAVIS ALLAN EDWARDS

Appellant

and

THE QUEEN

Respondent

BRENNAN ACJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

Edwards(3) 1 28/6/93

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 28 JUNE 1993, AT 2.17 PM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC: If the Court pleases, I appear with

MR P.J. ALCORN for the appellant. (instructed by

the Legal Aid Office (Queensland))

MR M.J. BYRNE:  May the Court please, I appear with my

learned friend, MR T.A. FULLER, for the respondent.

(instructed by the Director of Prosecutions

(Queensland))

BRENNAN ACJ:	Mr Fleming.
MR FLEMING:	If the Court pleases, I have handed up the

synopsis of our argument.

BRENNAN ACJ:  You had better give us a moment to have a look

at it.

MR FLEMING:  Yes, thank you, Your Honour.

BRENNAN ACJ: Yes, Mr Fleming.

MR FLEMING:  Thank you. If the Court pleases, this appeal

turns on the use to which the Crown may put an
accused's alleged lies in corroborating a
complainant's evidence in respect of sexual

offences. Specifically, we will be arguing,

firstly, that the Crown must establish beyond

reasonable doubt that the accused told lies because

of his fear of the truth. Apart from any issue of

corroboration, that is circumstantial evidence

going to the guilt of the accused. That is why we

say that it must be proven beyond reasonable doubt

as distinct from just being corroborative evidence,

as one would find, perhaps, in Doney.

It is because of the fact that it goes to the cor borative of what the complainant says. gui1 of the accused that it can then become

GAUDRON J:	you find beyond reasonable doubt that he told the ~ut is that not circular in the sense that if	lie, you have already made the conclusion "beyond
reasonable doubt", at least in this case, on which the ultimate question depends?

MR FLEMING:	Yes, and that, indeed - - -
GAUDRON J:	Does that not suggest that lies told in court serve no function at all?
MR FLEMING:	That is in fact one of the difficult problems

in the whole of this debate because when one comes

to the test in Reg v Lucas, they tend to be saying

that you must establish them beyond reasonable

doubt. If it is but a test of credibility, then

there is no point in having the corroboration.

Edwards(3) 2 28/6/93

Somehow or another you have to elevate it above just being a test of credibility and you have to make it something else, and that is the whole

significance of the Lucas direction that is

required.

GAUDRON J: But your argument proceeds on the basis that

they are admissible and can be used in this way.

MR FLEMING:  They are admissible?

GAUDRON J: They are probative.

MR FLEMING:  They are probative if they attain that

sufficient degree of proof, and then they are

probative as evidence in their own right and it is

that which makes it corroborative then of the -

GAUDRON J: But you will already have reached that

conclusion, will you not?

MR FLEMING:  Yes, indeed, and that is the point that we want

to make in the whole of this appeal, that there is

no lesser standard in relation to lies than "beyond

reasonable doubt", and there is, in fact, much

discussion in the authorities on that very point.

Most of the authorities that have discussed that

tend to say that it should be beyond reasonable

doubt.

Now, of course, they take into account, some

of them, Chamberlain, and we are conscious of the

impact of Shepherd upon Chamberlain, and we take that into account in our argument. But it would

appear that the end result is that one must attain

a higher level than just on the balance of

probabilities to make a lie told by an accused in
court corroborative or, indeed, something which can

be used to measure the evidence - - -

DAWSON J: Well now, it is the last part, is that right?

Assume that one would infer, on the balance of probabilities, in this case, that the accused

initially told lies.

MR FLEMING:  Yes.

DAWSON J: Would the jury not be able to take that into

account, overall, apart from corroboration, as long

as they thought it demonstrated, on the balance of

probabilities, a consciousness of guilt in reaching

a final conclusion?

MR FLEMING:	Your Honour, that will depend, at the end of the day, on whether or not that is just a simple
contest in respect of credit as would occur in
Edwards(3)	28/6/93

every case. That is the difficulty that all of

these cases are trying to address.

In any given case, if you have A saying he did

it and B saying, "I didn't do it", you will have

invariably a conflict of evidence and the jury must

determine which of those two they accept. But when

it comes to lies, that seems to be a different test

because you then have to remove yourself away from

A altogether because corroboration must not come

out of the mouth of A; it must come from some other

independent evidence, for example, from other

direct·evidence, from a witness or, perhaps, an

admission out of the mouth of B.

So, you must look then only to Band then

establish some sort of evidence which can be

corroborative of A, without regard to A's evidence.

DAWSON J: That is why I was attempting to start just to see

whether it could constitute evidence against the

accused, whether or not it amounts to

corroboration, the fact that the jury - well, I

will put it this way: can the. jury infer from the

fact that the accused, on the balance of

probabilities, told lies initially and then told

the truth, that on the balance of probabilities,

that demonstrated a consciousness of guilt which

was to be thrown into the balance in reaching an

ultimate conclusion? Can you answer that question?

Can the jury do that?

MR FLEMING:  No, not the last part of the question, because

that is where lies become a difficulty when you

construct a positive case and say that they can

only be told as a result of a consciousness of

guilt.

Now, consciousness of guilt is, of course,

some evidence standing by itself which can go to

the guilt or otherwise of the accused in any event,	and that is the difficulty. Your Honour has hit
difficulty in using lies as corroboration: just
what standard does one have to attain? Otherwise, you fall into this problem of saying, "A said he
did it; B said he didn't; therefore probably we accept A", or at least, "On whatever test it is as
to credit, we accept A". The next danger is to
say, "Therefore, B must be telling lies". Now, you
must remove yourself from that and go to B's
behaviour and some evidence then in respect of B.
And that is the question, just what standard you
achieve in that.

upon, as Your Honour Justice Gaudron did, the

The test, we would be submitting, in Lucas is

one which seems to be above and beyond the balance

Edwards(3) 4 28/6/93

of probabilities test. It seems to be suggesting,

because of the imperative nature of the language,

that you really have to establish this beyond

reasonable doubt.

On principle, that is right, because evidence

of that nature can only be used because it does, in

fact, construct an inference of guilt and if there

is an inference of guilt, then that must be

established beyond reasonable doubt, even on

Shepherd's case.

DAWSON J: I do not follow that, I must say. Put

corroboration right out of your mind.

MR FLEMING:  Yes.

DAWSON J: And here you have got a witness, in this case the

accused, who gives evidence and the jury is

entitled to conclude, if you like, on the balance

of probabilities, that what he said first was a lie

and then he changed his story and subsequently told

what, on the balance of probabilities, is the true

story. Then why can they not infer that the lie

was told in the first instance because of a

consciousness of guilt?

MR FLEMING:	If they arrive at that point -
DAWSON J:	On the balance of probabilities.
MR FLEMING:	Your Honour, that is the difficulty, we would

submit, that arises here. If they arrive at that

point then that evidence stands by itself as
probative of his guilt and therefore if it is

probative of his guilt., it should be established

beyond reasonable doubt. It is one step in the

process in circumstantial evidence of reaching the

conclusion that he has - - -

DAWSON J: But it may not be an essential step. There may

be a lot of other evidence which points to his

guilt.

MR FLEMING:  Yes. Your Honour, we would submit that it is

only at that point, when it is established, because

of what the test in Reg v Lucas says, to that

degree that it can become, firstly, probative and,

secondly, it can become corroborative.

BRENNAN ACJ:  Mr Fleming, I am having some difficulty in

understanding the notion that there is any question

of proof to a particular standard with reference to

a jury's assessment of evidence. I could

understand the notion that you must prove beyond

reasonable doubt the ultimate questions that are

submitted for the jury's determination, but the

Edwards(3) 28/6/93

process by which the jury comes to that conclusion:

I did not know that that had been affected by

questions of standard of proof.

MR FLEMING:  I am sorry, Your Honour, if I said that then I

am certainly misleading you. But what we say is,

adopting the Shepherd approach to circumstantial

evidence - - -

BRENNAN ACJ:  What do you call the Shepherd approach?

MR FLEMING: That one does not have to establish, in

circumstantial evidence, all of the intermediate

steps but, rather, one establishes the fact beyond

reasonable doubt by which you then take the next

step to infer guilt. Now, it is simply at that

point that we can say that it can even become

corroborative as well.

BRENNAN ACJ:  I am sorry, I am not following that at all.

Perhaps you need to develop your argument piecemeal.

MR FLEMING:  I will have to obviously go through the

authorities as they stand. It was, of course, only

in 1981 that the problem was clearly identified in

England, although it does seem that lies told out

of court was always the basis upon which a jury
could assess the guilt or otherwise of a person.

That is because they attained a particular quality.

DAWSON J:  I do not want to interrupt when you are

developing your argument, but you are saying that

lies told in court have some special

characteristic, and they well might.

MR FLEMING:  Yes. Firstly, they have some special characteristic.

DAWSON J: Apart from just being told to the Court.

MR FLEMING: Yes.

DAWSON J: What is it that - - -?

MR FLEMING:  It is highlighted in Tripodi. What you are

making out of it is - specifically in Tripodi and a

person in the witness-box, that he has always said,

"I didn't do it" and you are making, in the

witness-box, out of that, "I did do it", and it is

that which always confronted the courts and which always prevented them from allowing lies in court

to be used to corroborate. I will come to Tripodi

and highlight the issue there.

Your Honours, the plaintiff was convicted in

August 1991 on a charge of committing an act of

Edwards(3) 6 28/6/93

gross indecency, and that act was obtained by

threats of bodily harm. He appealed to the Court

of Criminal Appeal in Queensland, and that appeal

was rejected in December 1991 by a 2:1 majority.

The appeal, essentially, was rejected by the

majority on the grounds that the lies - at least,
the alleged lies in this case - could constitute

corroboration. Mr Justice Derrington, the

dissenting judge, said that even using the balance

of probabilities test, the lies could not
constitute corroboration. There were so many other
compelling inferences to be taken from the telling

of the lies that it simply could not attain even a

level of balance of probabilities.

Your Honours, the evidence which is said to constitute the lies is to be found, firstly, at

page 12. Your Honours, the facts arose out of the

transfer of prisoners from Brisbane to Townsville

in a prison van. There were about 19 prisoners in

the rear of the van and the van in its rear was

divided into two sections with a division down the

centre. There were ten prisoners on one side of

that division and there were nine prisoners on the

other side. They were heading to Rockhampton,

where they stayed overnight, which is a journey

lasting all day. They were not allowed out of the

van. There appeared to have been sufficient room

for them to move around in the van. There were two

prisoners who were handcuffed individually and then

the balance of the prisoners were handcuffed in

pairs.

The complainant, Mr Williams, was one of those

handcuffed in a pair, and there were some violent

actions against him in order for him to commit acts of gross indecency upon some of the other prisoners

in the back of the van. Williams, the appellant in

this case, was charged as being one of those.

Your Honours, at page 12, line 25 - this is

the complainant's evidence:  Edwards came next.

That is, Edwards was the next person to receive the induced favours of Williams.

What position was Edwards in when you did that

to him?---Sitting down.

He was sitting down?---Yes.

What position were you in?---I was sitting

down and I had to lean over onto him.

Why did you do that to Edwards?---Because he

was saying he would stop them from bashing me

Edwards(3) 7 28/6/93

and protect me and all that - stop it from

happening.

DEANE J:  Mr Fleming, just to understand the theory of it

all, would that have been an act of indecency between adult males in private in Queensland?

MR FLEMING:	Yes.
DEANE J:	Or an act of gross indecency?
MR FLEMING:	Yes.

DEANE J: It would be?

MR FLEMING:	Yes.
DEANE J:	I see. What, homosexual conduct between males in

private is still a crime in Queensland?

MR FLEMING:	Yes.
DEANE J:	I thought Tasmania was the only - - -
MR FLEMING:	My learned friend says it might be charged as

an assault.

DEANE J:  I do not follow that. What I asked was if it was

done - I should have added "between consenting

males", adults in private - it would be an offence

of gross indecency, would it not?

MR FLEMING:  I understood that to be the case.

DEANE J: If it would not be, I am just at a loss to see how

this would be procuring an act of gross indecency

in the absence of evidence that anybody saw it.

MR FLEMING:	Of anybody - - -?
DEANE J: That anybody saw it; observed it.

MR FLEMING:	Your Honour, there is evidence of continuing violence against this man.	He said he was induced
to do it.
DEANE J:	I follow that.	In New South Wales, for example,

it would be rape.

MR FLEMING:  Yes. I think there is some move towards that

here but I do not know that we have actually

arrived at that position.

GAUDRON J: Except that the evidence here is that your

client was offering protection, not threatening.

Edwards(3)	28/6/93
MR FLEMING:	Yes, it does change a little, subsequently.

In fact, if Your Honour reads down another couple of lines:

How long after the threat was made did you do

it to Edwards?---Sorry, what do you mean?

You say that you were threatened that you

would be bashed if you did not do it to

people?---Yes.

How long between that threat and when you did

it to Edwards?---Around about five minutes.

DEANE J: But there is no suggestion that your client

committed an act of gross indecency. As I follow

it, he is charged with procuring, which means the

victim committed the act of gross indecency.

MR FLEMING:  Your Honour, he was charged with committing the

act of gross indecency.

DEANE J:	I thought he was charged with procuring.
MR FLEMING:	He - page 1 - I am sorry:

you procured one Glen Edward Williams to

commit an act of gross indecency, the consent

of said Glen Edward Williams to the said act

being obtained by threats and by fear of

bodily harm.

And the allegation is that despite Edwards saying

that he would protect him, there was a subsequent

line in the evidence which says that the threats

did continue on that if he did not do it, then it

would be - they were not threats from Edwards, it

seems; they were threats from somebody else.

DEANE J:  I was just conveying that I really do not

understand the basis of the offence but if nothing

turns on it, you need not worry about it.

MR FLEMING:  Nobody has argued that in any other court,

Your Honour, as I understand it.

Your Honours, going to page 18 and line 15 -

this is at the end of his evidence in-chief:

Why did you take part in the oral sex with

Edwards?---! had no choice in the matter.

Why was that?---Wallace -

who was one of the other prisoners in the back of

the van -

Edwards(3) 9 28/6/93

kept on threatening to kick me and bash me

again.

And that was the end of the evidence in-chief.

Your Honours, at page 21, line 1, there is

this evidence:

And it is a fact, isn't it, that you never at

any stage saw Travice Edwards hit you or

strike you, did you?---No.

You don't know whether he in fact laid a

finger on you at all, do you? You understand

what I am saying?---Yes, I understand.

So as far as you know he might well not have

laid a finger on you; is that right?---It is

possible.

The complainant does not, at any stage, say that

Edwards, the appellant here, touched him in any

way.

Your Honours, at page 26, line 25, in

cross-examination, a possible reason why the

accused said nothing is put forward. The accused

was interviewed but he refused to say anything to
the authorities and, it would seem, every other

person who was also in the back of the van refused

to say anything as well. One reason given for this

by the complainant is at about line 28:

You have been in gaol for a while now, haven't

you?---Yes.

It is good bad or indifferent; it is a common

thing that if anything does happen in a prison

everyone minds their own business, don't

they?---Yes.

Everyone around just takes no notice or keeps

to himself as best he can, doesn't

he?---Basically.

No-one wants to know anything; is that right?---Basically, yes.

I suggest to you that despite, or whatever may

have happened to you in the back of that van

that day, Mr Edwards was never beside you and

he did just that, minded his own business and

kept his nose right out of it?

And "I don't agree" was the answer.

Edwards(3) 10 28/6/93

The police investigator gave evidence and it

was him who said that he interviewed others and

nobody at all would say anything about the incident

in the back of the truck.

The appellant then gave evidence at page 46,

lines 18 to 22, and this was the appellant's first

version:

Did you see anything happen in relation to

Mr Williams?---There were things going on, but

I just didn't worry about it.

Why is that?---I didn't want to get involved

in it. If I had seen something I probably

would have got the same treatment.

And that was the reason given by Mr Edwards, the

appellant, initially, for his reluctance.

Your Honours, at page 48, line 5 and

following - and this is in cross-examination of the

appellant:

You say that things were going on in the van during the journey. That was over quite some

considerable distance, wasn't it, that these

things were going on?---Yes.

Indeed, the journey took all day. The evidence was

not that this went on all day but, rather, there

was a considerable period of time when it did.

What was going on?---I just didn't look.	I
looked the other way.

Mr Edwards, you have said that you didn't want

to say anything because you might get beaten

up?---Yes. If you say anything in there you

are classed as a dog and that means you get

flogged, so that's why prisoners just mind

their own business in there.

It is difficult to look the other way for such

a substantial time of the journey, isn't
it?---I looked over once or twice when it

stopped. I shook my head and looked away.

What did you see?---He was just sitting there

crying, that was it.

Was he displaying any injuries?---It looked

like it.

And, indeed, he was in fact displaying injuries.

That is uncontroverted evidence, that when he

finally did get out of the van he was displaying

Edwards(3) 11 28/6/93

injuries of a beating. There is no doubt about

that.

Your Honours, then there is quite an extensive piece of evidence going from the bottom of page 48:

You are sitting there facing the centre of the
van and everyone else in their normal sitting

positions -

line 5:

You say, you agreed that over a substantial

distance things were going on?---Yes.

Do you mean by that that the complainant was

being assaulted?---! don't really know.

What do you mean, that things were going

on?---Well, he would get - Williams would get

pushed and Martin would lean up against me.	I
asked Martin to move up a little bit more.
Every time I would turn around I would just
see Williams crying or something.

So, at no stage along that entire trip did you

actually see any blows struck at all?---No.

That might be a fairly critical answer,

Your Honours, when one comes to test whether or not

lies were told.

What did you do when you turned your head

conscientiously to the left?---! was playing

cards .....

This happened over several hours, didn't

it?---Yes.

This incident you are talking about. At no

time did you look around at any time when the

blows were being delivered?---No.

Again, that might be considered to be an important piece of evidence, although our submission will be,

ultimately, that it does not constitute a lie.	He
did not look, and so on and down it goes - down

that passage. There is reference to somebody being

called a dog. It seems to be that the other person

was being called a dog.

Page 50, line 35:

Who do you say was assaulting this man

Williams?---Didn't.

Edwards(3) 12 28/6/93

This was an attempt then to come back on what was

previously said. He said, "I didn't say it."

I don't know who was doing it. All I heard

was thumps and when the thumps stopped I would

turn around and have a quick look and then I

would turn back.

You spoke to police on 10 October, didn't

you?---Yes.

You were warned you didn't have to say

anything?---Yes.

Quite within your rights. You realised that

you didn't have to say anything?---Yes.

Why is it that nevertheless you didn't tell

them this story on that occasion?

If we may pause there and just make some comment

about that: we would submit that that is a very

unhappy question to be asked, in the circumstances,

given the right to silence. But the answer,

nevertheless, is a very important one:

Well, I'm not a dog.	I wasn't going to say
nothing.

But, you see, you can't be a dog because a dog informs on someone else?---That is what that would have been.

You wouldn't have been informing on someone

else would you, because you don't know who did

it?---Yes, but I still would have said

something. They still class that as-----

and he was going on to say, "a dog".	Then it was
put to him again over the page:

Why didn't you tell the police then, "Look,

this man's injuries ..... ! have got my chance

to say it now.	That way I can't get proved I
was a dog.

So, all of the way through he maintains this

position.

Your Honours, the only evidence then contrary

to that appears in cross-examination further at

page 53, about line 35:

Do you still say that at no stage over

several hours did you ever see anybody touch

Mr Williarns?---No.

Edwards(3) 13 28/6/93

Is that the truth or are you simply not

wishing to be a dog?---That is the truth - at

one stage I seen Wallace, but that was about

it. That was the only person.

This might be something fresh.	What did you
That was it.	see about Wallace?---! just seen him push him.

This is the closest that anything can come to being

a lie, that is, a deliberate untruth, saying

previously he saw nothing and now coming to this, saying, "Well, I saw Williams push him", after an

extensive cross-examination.

Then there is some questioning further about

how that might be, and then over the page at

page 54, line 8:

You saw him push Williams?---Yes.

Why didn't you tell us that before?---! don't

know.

I suggest you are the· only one that does know and I am asking you why you didn't tell us

that before?---What do you mean?

Why didn't you tell us that before that

Wallace pushed Williams?---It's only come back

to me.

Right now?---Yes.

Let us pursue it a bit further and perhaps

something else will. You saw that happen.

Was that at the start of this incident or was

it towards the end or in the middle or

what?---! couldn't really say.

That is not a hard thing to remember, is

it?---There were two thumps, then I turned

around and I seen Wallace, so it would have
been around the middle.

HIS HONOUR:  Two what?

MR CLARKE:  Two thumps.

Is that right - two thumps?---Yes.

Were they sounds like blows being landed on a

body?---Just like slaps.

You looked around?---Yes.

Curiosity?---At first it was.

Edwards(3) 14 28/6/93

Who was near Williams -

and so on. And then, over the next page there is,

about line 15:

Who slapped Mr Williams on that

occasion?---Could have been Martin or
Wallace. I'm not sure. When I turned around,

Wallace was leaning-----

Was leaning, what?---Across, around to him.

And the sound that you heard, was that sound

like a punch or a slap? Do you know the

difference in the sound?---Yes.

Which did it sound like?---It sounded like a

slap.

Now, that is the sum total of the evidence

against him. There is one other piece of something

that he heard later on but that does not seem to

come into it. That is at the bottom of page 56:

What did you hear?---"Whoever wants a head

job, just come down here."

It might be corroborative of something else because the complainant did say earlier on that something

like that was said. So, it might have been

corroborative of the fact that something was going

on but not necessarily corroborative of the fact

that the accused was involved in it.

Your Honours, there is a debate then at

page 59 as to what might constitute corroboration.
His Honour says at line- 40:

Obviously, a corroboration direction must be given, being a sexual offence.

MR CLARK:

HIS HONOUR: There is no corroboration - there I would agree.

is corroboration on his own evidence if they
accept he was lying in the witness box on the

four points.

The four points being the four points that come out

of Reg v Lucas, which we will come to in a moment.
And then the prosecutor said at line 55:

In my submission it is, not by itself but together with others - in my submission, that

and also the opportunity which the accused

had; in other words, his position at the time

of the offence.

Edwards(3) 15 28/6/93

And His Honour made some comment on opportunity:

It is always a doubtful proposition for

corroboration.

Then the prosecutor put at the top of page 60:

Injury, opportunity and the lie would seem to be the three that are capable of constituting corroboration.

Then the defence counsel:

First of all, the injuries he suffered can corroborate him in relation to his complaint -

but the defence counsel was raising argument that

there was no corroboration, in effect, that it was

the accused who actually committed the offence and

it should come down to that.

Your Honours, the summing up, obviously, had

to be a very careful one because the complainant

was a prisoner and the accused was a prisoner as

well. His Honour, in fact, dealt with that at

page 67 and then, in addition, there was a further

need to be careful because there had been evidence

given that he refused to answer questions and that

also was dealt with.

At page 73 then, about line 38, His Honour

looks at the question of corroboration, and this is

in His Honour's summing up:

Cases where sexual misconduct is alleged by a complainant require an approach of great

care -

and, Your Honours, that continues on then over the

page, really down to about line 40.

DEANE J: His Honour is correct, is he, that this

corroboration warning has to be given in any case

involving a sexual offence? Really, it seems to

have nothing at all to do with this sort of case.

MR FLEMING:  Your Honour, the warning appears to be given in

cases of a sexual nature, the simple warning that

it would be unsafe to convict without

corroboration.

DEANE J: But this is really no different from a straight

assault case. It is not the sort of case in which

the corroboration warning, sexual sort of offence,

is relevant, one would have thought.

Edwards(3) 16 28/6/93

MR FLEMING:  Your Honour, we could only contend that

His Honour was right in doing that.

BRENNAN ACJ: What is the offence with which he was charged?

What is the section?

MR FLEMING:  The section was 337(2). It is an indecent

assault, yes.

DEANE J: So, the theory of it is that the victim committed

an act of gross indecency which your client

procured?

MR FLEMING:  Yes. There appears to be authority in Reg v

Burgess, (1956) 40 Crim App R 144, that it would be

dangerous to convict without a direction to that

effect.

DEANE J: For what?

MR FLEMING:	In respect of charges under this section.
DEANE J: One can follow that.	If there were two people

away in a bedroom, you could go on with all the

normal thing about "easy to bring" and "difficult

to rebut" and so on, but when something happens in

the presence of half a dozen other people and the

issue is this sort of issue, it is rather difficult

to see that the considerations that single out
sexual offences and require the warning have much

relevance.

MR FLEMING:  Your Honour, except that nobody else was saying

anything either. So, it was still his word, that

is the complainant's word, against the accused,

which equally is susceptible to what Your Honour

has just said.

DEANE J: If no point is taken of it against you, it

probably does not arise.

MR FLEMING:  No. Well, no point, certainly, was taken in

any debate in any other place.

Your Honours, at page 76 at line 60, right at

the very bottom:

Ladies and gentlemen, there is only one basis

upon which evidence here can be said to be

capable of corroboration and it is evidence

which comes from the accused himself when he

went into the witness-box. What the Crown here relies upon is that they say that the

accused told lies in the witness-box on oath

and you can have regard to those lies as being

capable of corroboration of the complainant's

evidence, and indeed the Crown would submit to

Edwards(3) 17 28/6/93

you that it is corroboration. My function, as

I say, is merely to tell you what is capable

of corroboration.

And His Honour seems to be accepting that that was

capable of corroboration; the evidence to which I

have already referred is capable of corroboration

because they were lies.

Then His Honour sets out the four tests. Firstly, at line 20:

first of all, the lie must have been a

deliberate one. Now, here what is said is

that the accused, when he first went into the

witness-box, said to you that things were

going on but he took no notice and he could

give you no more information than that, and as

cross-examination proceeded he said that he

recalled certain matters and told you

eventually - and I will refer to his evidence

in detail in due course -

Just pausing there, there seems to be some lack

then of reference to it subsequently, but we will

come to that shortly -

that he saw and heard what must have been

physical aggression towards the complainant

and the words to which I have already

referred.

If I may pause there and say that that seems to be

an overstatement of what occurred because he

initially said he took no notice, and then it is

said that the lie is constituted by the fact that

he subsequently admitted that he saw and heard what

must have been physical aggression. He does not

say that he did not see or hear it in the first

place.	He says that he paid no regard to it
because he knew that if he did he would be in the

same position as the person against whom the

aggression was being committed.

Then His Honour makes a statement at line 40:

Well, the first test is that the lie must be

deliberate and you must be satisfied beyond

reasonable doubt as to that.

We should add at this point that Lucas does not go

that far. It does not say that it should be beyond

reasonable doubt, but that is the way the law seems

to have developed and perhaps it has developed in

that way because of the imperative language that is

used in Reg v Lucas.

Edwards(3) 18 28/6/93

His Honour then went on to the second test

over the page at line 2:

Then the second test is that it must relate to

a material issue.

We would submit at that point that it must relate,

if it is to relate at all, to a material issue,

that the accused, in fact, was the person who

committed the act and His Honour suggested that

they would not have any difficulty.

GAUDRON J: That act is, in essence, the act of threats?

MR FLEMING:  The act of procuring is the one with which he

is charged.

GAUDRON J: But we are talking about threats by Mr Edwards?

MR FLEMING:  By others. No, not by Edwards; threats by

others.

GAUDRON J: What is the act of procuring?

MR FLEMING:  The act of procuring, it seems - the case was

run on this basis - that it was taking advantage of

the threats of others in doing just that. So,

somebody else was threatening. There is no

evidence that this man was threatening, quite the

contrary. Out of the complainant's mouth, he said

that he offered to protect him if he did it to him,

and there must be then some implication taken that that was obtained then by the threats of the other

person.

BRENNAN ACJ:  And I suppose the negative inference is, "If

you don't do it, then I'm not going to protect

you."

MR FLEMING:  Yes. The threats are particularized:

the consent of said Glen Edward Williams to

the said act being obtained by threats and by

fear of bodily harm.

It does not appear that there was any point taken on this in the Court of Criminal Appeal but it is

certainly striking that the only allegation against

the accused is that he offered, in fact,

protection.

GAUDRON J: Well then, should we be looking to see if the

offering of protection is corroborated?

MR FLEMING:  Your Honour, I cannot say that that point has

been taken anywhere else. That is my difficulty in

Edwards(3) 19 28/6/93

relation to that.	It has not been argued on that
basis anywhere else.

The next of the tests is at page 78:

the motive for the lie must be seen to have

been a realisation of the guilt by the accused

and an endeavour to hide his guilt by telling

that initial untruth, if you find it was such
a thing. Here the defence say, well, there
may well be other motives for failing to say

things in this Court, and those motives would

go back to his evidence that when you are in

custody, when you are a prisoner, you don't

dob anyone in and you look the other way, and

that it may be that his reluctance to say

anything about what was going on in the van, even if he had remembered it, was explicable

by the fact that he still retains that kind of

attitude towards saying things about other men

who were in custody at the time, and that is

the way it is put to you, and if you are again left with that reasonable possibility that his

motive was one of not dobbing people in, I

think the expression used was, then it is a matter where the Crown have not established whether the motivation was a realisation of

guilt and an endeavour to hide guilt.

With respect, we would submit at that point in

time, His Honour had omitted the negative features.

His Honour seems to be quoting some sort of code of

conduct, that you simply do not dob on other people

in prison. But the accused's evidence went further

than that. He said, "You don't say those sorts of

things because you are a dog and you'll be treated

like a dog. You'll suffer some physical injury

yourself." His Honour did not advert to that at

all but left it saying, "Well, if it's only a code

of conduct that he's not complying with, then you

might find that there wasn't sufficient evidence."

At the bottom of page 78 then is the fourth

test, at line 50:

the statement must clearly have been shown to

be a lie by evidence other than that of the

complainant.

Of course, that overcomes one of the logical

difficulties in this in that the complainant then

is not being corroborated out of his own mouth;

rather, the corroboration is coming from somebody

else. That logical difficulty, "If I believe A,

then I don't believe B. B must therefore be

telling lies; therefore A is corroborated." That

does not arise because you must look at

Edwards(3) 20 28/6/93

corroboration out of somebody else's mouth apart

from the complainant himself. So, you must look

then to some other source for that.

Your Honours, at appeal, two members of the

Court of Appeal thought that the case was a

borderline one, and I refer to page 101 of the

record. At line 20:

The fact that more than one explanation

exists why a person may have told a lie is not

necessarily fatal to the use of such evidence

as potential corroboration. In many if not

most cases there are competing submissions

made to the jury on why the lie may have been

told -

and then the next paragraph after that is where

His Honour Mr Justice Thomas deals with the issue;

His Honour Mr Justice Williams, at page 106,

line 20, and then His Honour Mr Justice Derrington,

who found that as a matter of law it could not

constitute corroboration, gives his reasons

starting at page 114 at line 35, and then over the

page to about line 15. His Honour, at page 112,
had previously extracted the essential passage from

Doney v Reg at page 211:

"The essence of corroborative evidence is that

it 'confirms' 'supports' or 'strengthens' -

and so on. And, Your Honours, we obviously are

faced with that.	The second paragraph extracted
there:

It is well settled that corroboration may be

in the form of circumstantial evidence -

and we would submit that lies told in the box, if

they are lies, must necessarily be circumstantial

evidence and not direct evidence. And then the

third paragraph, over the page at 113, in this

honourable Court's judgment:

It is not necessary that corroborative

evidence, standing alone, should establish any

proposition beyond reasonable doubt. In the

case of an accomplice's evidence -

and so on. And, of course, we are faced with that

statement of authority. But, Your Honours, can we

then come to some of the authorities which have

attempted an analysis of what has been said.	Can
we go firstly to Lucas.

BRENNAN ACJ:  What is the proposition for which you are

ultimately contending, Mr Fleming?

Edwards(3) 21 28/6/93

MR FLEMING:	Because lies in the witness-box are implied admissions and because they are therefore probative
as implied admissions, they go to the guilt or otherwise of the accused and, at that point in time, they are established beyond reasonable doubt.
Now, it is only when you get to that point and the only basis that you can use them for corroboration
is because they are implied admissions. So that
when you establish them as implied admissions, they
go to the guilt or innocence of the accused and,
therefore, we would submit, must be established
beyond reasonable doubt.  It is then also that they
have the effect of corroborating.

MCHUGH J: But is this a universal rule? Take a case where

a woman says, "I was raped at a particular house";

the accused in evidence in-chief denied he knew

where the house was. Then an admission is

extracted from him in cross-examination that he

does know where the house is. Now, that is surely

not evidence of guilt alone, is it, but it is

evidence capable of corroborating her evidence?

MR FLEMING:  Your Honour, that may not be according to this

Court's judgment in Eade which is extracted in Reg v Heyde, one of the New South Wales' decisions that

we will take Your Honours to. That would have to

be then whether it is a material fact. You see, at

that point in time - that might be just one of

those pieces of evidence that you can use in

determining whether you accept the complainant's

evidence at all. It is only when you get to the

point of accepting the complainant's evidence that

you then look for corroborative material. So, you

have already gone through the process of, perhaps
whatever a jury does, ·examining the evidence as

given by each party, examining their internal

consistencies, looking at it in terms of objective

facts and so on and reaching a conclusion whether

or not you then accept the complainant's evidence.

And it may be that what Your Honour is putting to

me goes to that sort of question and not then a

question of whether or not, therefore, that is a

lie that can be used to corroborate her evidence.

BRENNAN ACJ:  I just do not understand that, neither part of

it. Is there any authority which says that a jury

has to conclude the question of whether they accept

a complainant's evidence first?

MR FLEMING:  Your Honour, that seems to be the effect of

what Mr Justice Clarke said in the Court of Appeal

in New South Wales in Reg v Heyde.

McHUGH J:  I must say, in a fairly long practice at the criminal bar of New South Wales, that is totally

Edwards(3) 22 28/6/93

contrary to anything I ever understood about the

law of corroboration.

BRENNAN ACJ: And is there anything which suggests that a

jury must find an intermediate step in their

reasoning towards the ultimate conclusion by any

particular standard of proof?

MR FLEMING:  Yes, indeed, Your Honour. The Court of Appeal

in New South Wales has specifically said that in

Reg v Heyde.	Mr Justice King has said it in Reg v
Evans.	Now, Reg v Evans was decided as was, I

think, Reg v Heyde, prior to Shepherd - between

Shepherd and Chamberlain - but, nevertheless, the

principle is not diluted so far as we would be

submitting.

BRENNAN ACJ:  I could understand propositions being advanced

about the jury finding facts to a particular

standard before the jury themselves engage in the

drawing of inferences but this is a question of

finding what the facts are and I have never

understood that there is any question of a standard of proof that obtains in the evaluation of evidence

before the stage is reached at which the jury is

asked to make the finding of relevant fact.

MR FLEMING:  Your Honour, certainly that is Reg v Heyde in

the Court of Appeal in New South Wales.

McHUGH J: But has it not been overruled by Meskers' case on

that point, an unreported decision in the New South

Wales Court of Criminal Appeal, a subsequent

decision?

MR FLEMING:	I am not aware of that, Your Honour.
BRENNAN ACJ:	It certainly comes as a great surprise to me

if the law is otherwise. ·

MR FLEMING:  Your Honour, could I take Your Honours to

Lord Lane's judgment in Lucas?

BRENNAN ACJ:  To show us what? What are you going to show

us there?

MR FLEMING:  To show how the reasoning developed,

Your Honour, at page 723.

BRENNAN ACJ:  Is this all to lead to the ultimate point that

you wish to advance?

MR FLEMING:	Yes.
BRENNAN ACJ:	Namely, the proof beyond reasonable doubt

point?

Edwards(3) 23 28/6/93

MR FLEMING:  Yes, Your Honour.

GAUDRON J: But is not the real point though that there is some great difficulty in the notion that evidence

given in court by the accused can itself be

corroborative? If the evidence is merely rejected,

for example, that is one thing and that has been

looked at in a different context by this Court

where it was said mere rejection of evidence does

not, by itself, take you the further step to a

conclusion that a lie was told. Now, that seems to

be the_problem that is underlying this case and,

indeed·, the notion that evidence, given in the

proceedings themselves, can be used as

corroboration, and that seems to me, if there is

something wrong with the direction, it is in that

area.

MR FLEMING: Yes, that is exactly the point, Your Honour,

because having arrived -

GAUDRON J:	But that is not quite to say what you are saying, that it must be beyond reasonable doubt
that the lie was told and that-the lie was
deliberate and so forth.

DAWSON J: It is quite a different point, is it not? The

point we are talking about now is where the accused

tells a story and the jury simply rejects the story

and therefore finds that it was a lie, it does not

demonstrate any consciousness of guilt.

MR FLEMING:	No.
DAWSON J:	It cannot because he is simply defending himself

against a charge, and there is every reason why he

should say that other than the consciousness of

guilt. So, evidence given in court is useless for

that purpose for the most part.

MR FLEMING: Yes, Your Honour.

DAWSON J: But, of course, if the accused does give evidence

and says one thing and then later says another and

says, "What I said originally was a lie", a

different situation arises, and that is said to be

the situation here. Whether it is or not is

another question.

MR FLEMING: Yes. That becomes probative - - -

DAWSON J:  And that is when you start talking about

standards of proof.

MR FLEMING:  Yes, that is so. Your Honour is certainly

right. That is precisely the point. At that point

in time we start talking about to what degree that

Edwards(3) 24 28/6/93

has to be established. The philosophical difficulty

appears to be that the jury, having already done the

first process and reached a negative conclusion

about that evidence or at least, perhaps a neutral -

perhaps a negative conclusion, "We don't accept that

evidence but that doesn't mean he told a lie" - is

then asked to go back and look at precisely the same

evidence and now ask the question, "Is that a lie?"

That seems to be the process that must follow.

DAWSON J: That does not seem to be this case, at least not

the way the Crown puts it. The Crown says, "This isn't a case where the accused just gone into the

witness-box and told a story which the jury may or

may not accept. This is a case in which he told a

story in which there were such inconsistencies as

to demonstrate in the first part of his evidence he

had told a lie."

MR FLEMING:  Yes. There are three possible sources of

establishing that he told a lie. One is direct

evidence. We have no difficulty with that. That

does not arise here.	The second is by admission.
Again, that does not arise here.	It must be by
implication that he told a lie.

DAWSON J: Yes, and when the various judges of the

Full Court say, "Well, look, this is a borderline case", they mean it is a borderline case between the situation in which the accused did tell a lie

in his evidence and a situation in which he was

merely defending himself by giving a story which he

said was true.

MR FLEMING:  Your Honour, I understood them to be taking it

further and saying, "It's a borderline case as to

whether or not what he said could constitute

corroboration". Perhaps we are saying the same

thing.

DAWSON J: It is the same thing because, really, it boils

down to evidence which could not demonstrate a

consciousness of guilt but demonstrates all sorts

of other things, and evidence which does.

MR FLEMING:  Yes. But it is this very problem which caused

Lord Lane to consider the direction in the first

place. He discusses exactly what we have been

discussing and then says that, "We must then put

some conditions upon the use of the lie", otherwise

it would be a simple test of credit.

Can I take Your Honours to what Lord Lane said

in Reg v Lucas, (1981) QB 723, at the very bottom

of the page.

Edwards(3) 25 28/6/93

BRENNAN ACJ:  We do not seem to have copies of

this, Mr Fleming?

MR FLEMING:  Your Honours, we have provided copies of Reg v

Lucas.

BRENNAN ACJ:  Something seems to have gone wrong with the

mechanisms.

MR FLEMING:  It is perhaps in the Crown's bundle of

authorities. Apparently, there has been some

coordination to attempt to not duplicate

photocopying. I am sorry, Your Honours, the system

appears to have broken down because my instructing

solicitor was told it was being photocopied by the

Crown and she did not include it in her copies, and apparently it was not photocopied by the Crown.

BRENNAN ACJ: Yes. Well, I presume we need to have it, do

we?

MR FLEMING: Yes, Your Honour.

BRENNAN ACJ:  You can read it to us, Mr Fleming.

MR FLEMING: Yes, thank you. At the bottom of page 723, and

in discussion in respect of the evidence there
before the court, Lord Lane said:

We accept that the words used in the context in which they were, were probably

taken by the jury as a direction that lies
told by the defendant in the witness box could

be considered as corroborative of an

accomplice's evidence, and we approach the

case on that footing.

The fact that the jury may feel sure that

the accomplice's evidence is to be preferred

defendant accordingly must have been lying in

to that of the defendant and that the

the witness box is not of itself something

which can be treated by the jury as

corroboration of the accomplice's evidence.

It is only if the accomplice's evidence is

believed that there is any necessity to look
for corroboration of it.

So, at that point in time, once they accept - and

that was one of the points that Your Honour, I

think, Justice Dawson, was putting to me before, Lord Lane did say that at that point where they accept the complainant's evidence, or the

accomplice's evidence in that case, there is a need

to corroborate it.

Edwards(3) 26 28/6/93

If the belief that the accomplice is truthful

means that the defendant was untruthful and if

that untruthfulness can be used as

corroboration, the practical effect would be

to dispense with the need of corroboration

altogether.

That was the difficulty highlighted by Your Honour

Justice Gaudron. And then Lord Lane quotes from a

case called Tumahole Bereng v R where this is said:

"Nor does an accused corroborate an accomplice

merely by giving evidence which is not

accepted and must therefore be regarded as

false. Corroboration may well be found in the

evidence of an accused person: but that is a
different matter, for there confirmation

comes, if at all, from what is said, and not

from the falsity of what is said."

And then Lord Lane goes on:

There is, without doubt, some confusion

in the authorities as to the extent to which

lies may in some circumstances provide

corroboration and it was this confusion which

probably and understandably led the judge

astray in the present case. In our judgment

the position is as follows. Statements made out of court, for example, statements to the

police, which are proved or admitted to be

false may in certain circumstances amount to

corroboration. There is no shortage of

authority for this proposition.

And then His Lordship quotes two authorities.

It accords with good sense that a lie told by

a defendant about a material issue may show

that the liar knew if he told the truth he

would be sealing his fate.

And may we pause there to say that is why we submit

that it is probative, in fact, of his guilt or

otherwise. To read on:

In the words of Lord Dunedin in Dawson v

M'Kenzie, cited with approval by

Lord Goddard CJ in Credland v Knowler:

"' ... the opportunity may have a complexion put

upon it by statements made by the defender

which are proved to be false. It is not that

a false statement made by the defender proves

that the pursuer's statements are true, but it

may give to a proved opportunity a different

Edwards(3) 27 28/6/93

complexion from what is would have borne had

no such false statement been made.'"

And then His Lordship went on to cite the four

tests:

To be capable of amounting to

corroboration the lie told out of court must

first of all be deliberate. Secondly it must

relate to a material issue. Thirdly the

motive for the lie must be a realisation of

guilt and a fear of the truth. The jury

should in appropriate cases be reminded that

people sometimes lie, for example, in an

attempt to bolster up a just cause, or out of

shame or out of a wish to conceal disgraceful

behaviour from their family. Fourthly the

statement must be clearly shown to be a lie by

evidence other than that of the accomplice who

is to be corroborated, that is to say by

admission or by evidence from an independent

witness.

As a matter of good sense it is difficult

to see why, subject to the same safeguards,

lies -

told in court should not be used in the same way.

So, His Lordship surrounded it about with a

number of qualifications which appear to take the lie out of just the ordinary debate as to whether or not one should accept the evidence or reject the

evidence of an accused but, rather, it is

constructing a positive case.

Can I take Your Honours to a case called Reg v

Tripodi. There seems to have been a breakdown in

communication, Your Honours, because this is not

included either.	My instructing solicitor
understood that that was being copied by the Crown.

It is a case of the Full Court.

McHUGH J: This is the Victorian case?

MR FLEMING:	Yes, the Victorian one.
McHUGH J:	I have got the CLR version of it, but you want to

quote it in the Full Court?

MR FLEMING:	Yes, Your Honour.
BRENNAN ACJ:	What is the reference?
MR FLEMING:	The reference is (1961) VR 186. It is a

judgment of the Full Court, Justices Lowe, Gavan

Duffy and Dean. In considering the question, Their

Edwards(3) 28 28/6/93

Honours went back to Eade v Reg, (1924) 34 CLR 154.

At the bottom of page 191 Their Honours say:

the question came before the High Court in an

appeal against conviction for indecent assault

upon a young girl. It was held that denials

of the accused might be corroborative of the

girl's unsworn evidence. There was

independent evidence proving opportunity on

the part of the accused to commit the offence
but not establishing the commission of the

crime or that the accused committed it. The a·ccused denied when confronted with the girl

all knowledge of her and later denied the

incident deposed to. In the joint judgment of

Knox, CJ, Gavan Duffy and Starke, JJ, it is

said -

and this is a quote from the Commonwealth Law

Reports in Eade at page 158 -

"Now if the jury be of the opinion that the

prisoner's statements are false, then they may

properly come to the conclusion that his

falsehood indicates that the child's story is

true, and that he is telling lies in order to

discredit the evidence of the other witnesses,

because he is unable to account for what they

say they saw, in any way consistent with his

own innocence. Corroboration may be found in

independent evidence or in admissions of the

prisoner, or in inferences properly drawn from

his conduct and statements.

McHUGH J: But is that not a more accurate way of putting

the doctrine than was put in Lucas' case? Rather
than the motive for the lie being a realization of
guilt and a fear of truth, the real principle is,

is it not, that the motive is fear that to admit a

particular fact would tend to incriminate the

accused? That is really what is said in Eade's case, is it not? There is something circular, it	seems to me, about talking about a realization of
guilt. That records the result. I do not see how
a jury could come to that conclusion unless it
ultimately found you guilty.

MR FLEMING:  That is certainly the problem that is contained

in these cases; there is no doubt about that,

Your Honour. But even though in this statement

here there is this:

telling lies in order to discredit the

evidence of the other witnesses, because he is

unable to account for what they say they saw,

in any way consistent with his own innocence.

Edwards(3) 29 28/6/93

McHUGH J:  I must say I think that is a better way of

putting it than Lucas' case because it does focus

on the fact that the accused fears that to make the

admission would incriminate him. When he has lied

about that, then it helps you draw the inference

that that fact does tend to incriminate him.

MR FLEMING:  Yes, and if that is so, Your Honour, then you

are actually constructing a fact upon which you can

infer guilt or innocence - not only corroboration.

That appears to be what the High Court said here.

It is not only corroborative of the child's story:

that the child's story is true, and that he is
telling lies in order to discredit the

evidence ..... Corroboration may be found in

independent evidence -

and so on. A couple of lines down Their Honours

deal with the reason given by Mr Justice Isaacs and

Mr Justice Rich.

BRENNAN ACJ: Before you go to that, it was also said in

Eade's case:

they may properly come to the conclusion that

his falsehood indicates that the child's story

is true -

That is inconsistent with what Lord Lane said, is

it not, about first determining whether, to use the

same language, the child's story is true.

MR FLEMING:  Yes, but there is a circularity in that as

well, because one needs to do a test first, just an

ordinary test of credit, to determine whether there

is credibility at all in the child's story.

BRENNAN ACJ: Why? That is the question, is it not?

MR FLEMING:  Because I suppose I am really going back to

what Lord Lane had to say.

BRENNAN ACJ: But that is what I am suggesting, that

Lord Lane started from a false premise.

MR FLEMING:  We submit not, Your Honour. We submit that

there is not an inconsistency because it is true

that the corroboration - and this seems to be what

the High Court was saying in Eade - is for the

purpose of strengthening the child's case. The

High Court does not deny that there is a lower

substratum of testing the credit. What the High

Court is saying in the end is that it constitutes
corroboration as well of the child's version and it

therefore gives that credence to the child's

version that is necessary. Your Honours, a little

Edwards(3) 30 28/6/93

lower down Their Honours deal with a statement by

Justices Isaacs and Rich at page 159 in Eade.	They
are the third and fourth propositions.	The third
one is:

"(3) Whether denial by the accused of any

incident deposed to is such evidence of the
character of opportunity as to be

corroborative is a question of law dependent

on the circumstances of the case. (4) If in

any given case a denial be legally

corroborative, its weight as evidence varies

with the circumstances and that must be

determined by the jury".

If I can pause there for a moment to go back to the

transcript at page 74, at line 30, His Honour in

his summing up said:

What I will do in the performance of my

function is point out to you evidence which is potentially corroborative, which is capable of being corroboration. Whether it is, in the

circumstances of this case, is entirely a

question for you to decide. As I have said,

you yourselves decide the facts of the matter.

That is a little confusing, the way in which it was

put and may well have left some difficulty in the

minds of the jury.

Your Honours, after that discussion of Eade,

Their Honours then went to look at a case called

Edmunds v Edmunds, (1935) VLR, but they just take

the one line out of it:

"By no torturing of the statement 'I did not

do the act' can you extract the evidence 'I

did do the act'. The truth is that there must

be evidence aliunde to support the

petitioner's case, before you can use the

untrue denial of the parties charged as

affording corroboration of that case."

So the evidence cannot come from the accused

themselves; the evidence must come then from some

other source. Going back to what the High Court

said in Eade, it can come in fact from inferences

properly drawn from the conduct.

BRENNAN ACJ:	Why can it not come from the accused himself?
MR FLEMING:	Because that would be corroborating her own

evidence - sorry, did I say the accused?

BRENNAN ACJ: Yes.

Edwards(3) 31 28/6/93

MR FLEMING:  The complainant, I am sorry; it cannot come

from the complainant. It can come from the

accused, it can come from inferences properly drawn

from his conduct and statements.	Then
Their Honours went on to say:

We realize that the acceptance of what

was said in Eade v R is not without difficult

and appears to lead to somewhat remarkable

results. In the first place, no distinction

appears to have been drawn between denials

made by an accused person at an interview

before the trial and denials made in the
course of his evidence at his trial.

Logically we see no reason for drawing any

such distinction. Yet this would lead to the

surprising position that an accused person who

goes into the box to deny a charge brought

against him and is not believed by the jury is

in a worse situation than an accused who does

not give evidence. Yet one of the reasons for

not believing him may be that the jury begin

by accepting without corroboration the

evidence of an accomplice or young child and

then by accepting that evidence and not
accepting that of the accused find the

corroboration which they are advised they

should have.

It is the difficulty all the time that a jury faces

in trying to come to terms with directions of this

sort or even trying to understand the notion of

corroboration when it constitutes lies.

Their Honours go on to say:

A further difficulty exists in accepting as establishing a fact necessary to be proved a

denial of that fact by the accused. Lowe, J,

stated this in plain terms in Edmunds v

Edmunds and it is difficult to see the answer

in a case where the denial simpliciter is

relied on.

The body of authority which we have

surveyed is, however, one which we cannot

ignore and which provides a complete

justification for what the trial judge said.

It rests, we think, not so much on the denial

itself of the accused as on the conduct which

it betokens.

That might well be going back to the proposition in

Eade. It seems to be a proper application of Eade.

A verbal admission by the accused of the

commission of the offence would not only be

admissible evidence, but if believed the

Edwards(3) 32 28/6/93

strongest evidence of its commission. Conduct
of the accused too, which tended to show

incriminatory incidents of the crime could

evidence, eg - also be and often is the subject of admissible

and there are some examples given, that he once had

a weapon and now he did not. But, Your Honours, if

we may pause there to say that the difficulty is:

that is evidence of itself which a jury could use
to reach a conclusion about the guilt or otherwise

of an accused. So it is at that level that all

this is occurring. It is then used as well to

corroborate. So it is evidence which has been

established or ought to be established to a

particular level because of its very nature. It is
incriminatory in its very nature. Their Honours

continue:

It is his conduct which is put before the jury

and they may think that he lies from a

consciousness that, if he tells the truth, the

truth will convict him. The lying statement

must of course relate to incriminatory
features of the crime; for if it were
otherwise any lying statement by the accused

might convict him of any crime in the calender

and such a result has only to be stated to be

at once rejected. We think that this view may

explain why the courts have not discriminated between statements made by the accused out of court and in his evidence in court. In the

latter case the jury themselves observe his

conduct in giving evidence and if they think he is lying draw their own conclusions as to

why he is lying; and, no doubt, the

prosecutor, in inviting the jury to reject the

accused's denial, will suggest the reason.

The problem with that point is that it continues to

be an incriminatory statement.

McHUGH J: But incriminatory evidence can be evidence of

corroboration, can it not, even though it does not

directly relate to the story that the complainant

tells? Supposing a complainant says, "X raped me",

and there was independent evidence that X was seen

running away from close to the scene at or about

the time in a dishevelled state. That would

constitute corroboration as well as incriminatory

evidence.

MR FLEMING:  Yes, indeed, Your Honour, we readily accept

that and we we say that is the difficulty that is

created in this particular case. You have on the

one hand incriminatory evidence which can of itself

be used to determine the guilt or innocence, but at

Edwards(3) 33 28/6/93

the same level the courts appear to be saying that

it can be used as corroboration.

BRENNAN ACJ:  Is not this just the whole problem, that the

difficulty in these corroboration cases is to get

evidence aliunde, that is apart from the
complainant's evidence, which can demonstrate the

falsity of the evidence given by the accused.

MR FLEMING: Yes, Your Honour.

BRENNAN ACJ:  O~ce that is demonstrated, then it can be

corroborative. It does not matter that the
evidence which demonstrates the falsity would

itself be directly incriminatory if tendered as the

only evidence of the prosecution.

MR FLEMING:  Your Honour, the difficulty though at that

point is that that is evidence itself,

circumstantial evidence, from which guilt or

innocence could be determined.

BRENNAN ACJ:	Sure.
MR FLEMING:	It appears to be the case that it has got to arrive at that level before it can be corroborative
as well.
BRENNAN ACJ:	You are back to your "proof beyond reasonable

doubt" proposition again.

MR FLEMING:  Your Honour, that appears to be the only

logical consequence of that, and that appears to'be

the way in which the argument is developed, that

because it is in fact evidence which is an implied

admission - and some of the authorities have gone
so far as to say that it must constitute an implied
admission - because it is evidence of that quality

from which guilt or innocence can be inferred anyway, that appears to be why it needs to be

beyond reasonable doubt.

McHUGH J:  I must say I do not see how this doctrine can

work at all if you have got to prove these facts

beyond reasonable doubt. It seems to me to almost

defeat the whole purpose of it.

MR FLEMING:  Your Honour, that is why it does not seem to

have found favour before 1981. That is the

difficulty that Lord Lane was trying to address,

and he appears to have been putting it at something

higher than just this conflict between A and B.

McHUGH J: But if you approach it on, "It's a fact and I'm

satisfied the fact is proved, I take that fact and

I take the complainant's evidence which tends to

confirm it and I take other evidence and ultimately

Edwards(3) 28/6/93

I am or am not satisfied beyond reasonable doubt",

why can you not approach it in that way?

MR FLEMING:  Your Honour can approach it in that way. We

have no difficulty with that but that appears to

fit comfortably within Reg v Shepherd and what was

said there about circumstantial evidence, because
you are using that fact then to infer guilt or

innocence. That is the problem. You have already

established evidence to that quality of proof and
the authorities appear to be saying that it is only

at that point in time then that you can also use it

as corroborative evidence. Of course, they have

then perhaps logically said, "therefore, proof

beyond reasonable doubt". That appears to be the

nub of the whole case.

McHUGH J: It seems to me that this doctrine may have gone

wrong when you started to talk about realization of

guilt and fear of the truth and add to that, proof

beyond reasonable doubt, a requirement of proof

beyond reasonable doubt.

MR FLEMING:  Your Honour, we would be submitting that of

course that is the proper progression that it

followed.

Can I take Your Honours to Heyde, because that

appears to be the progression which was followed in

Heyde. There are a couple of extracts which

His Honour Mr Justice Clarke - and the court was

the Chief Justice, Mr Justice Gleeson,

Mr Justice Clarke and Mr Justice Studdert. At

page 245 His Honour looks at Eade and extracts the
passage that we have said, and you will note that

His Honour there emphasized the words:

because he is unable to account for what they

say they saw, in any way consistent with his

own innocence.

There is a quote from Reg v Collings, a New Zealand

case. Again His Honour has highlighted some

passages:

he is unable to account for the facts to which

the other witnesses have testified, in any

consistently with his own innocence.

The next New Zealand case, Reg v Toia:

" ... It is only when a lie is more consistent

with guilt than with innocence, as when it

suggests that the accused cannot give an

innocent explanation, that it can add anything

to the case against him."

Edwards(3) 35 28/6/93

His Honour Mr Justice Clarke went on:

These statements describe, in slightly

different terms, the test which must be met

before a false statement by the accused may be

used in corroboration of the evidence of a

prosecution witness. In short the lie must be capable of supporting an inference that it was

told by the accused because he regarded the
true facts, which he falsely denied, as quite

inconsistent with his innocence.

Your Honours, we have handed	up a copy of that
article by Professor Heyden.	We do not intend to
consult it at all except for	some of these
statements:

Professor Heydon has said that the lies

are probative only if they operate as implied

admissions proceeding from the speaker's

consciousness of guilt.

In Popovic, Sholl J ..... said:

"When an inference can be drawn that the

defendant is falsely denying the circumstances
because he fears that to admit them would

appear inconsistent with his innocence, or

throw suspicion upon himself, corroboration

may be found. This is a kind of admission by

conduct."

This approach emphasises the fact that it will be open to a jury to find that a deliberate

lie constitutes an implied admission capable

of corroborating the evidence of a prosecution

witness only when the lie, considered in the

light of the circumstances of the case, is

capable of supporting an inference of the

nature discussed.

So all the authorities are pressing towards

this implied admission. If that is right, then you

have an implied admission constituting evidence

which is probative of its own self going to the

guilt or innocence, and also then evidence which

can become corroborative. More than that, if that

is right, then if we look down the line a little

bit further to what actually would go on then in

the process of assessing whether or not something

is a lie in a case such as this, the lie can only

be implied from the circumstances of the case by

the perhaps inherent inconsistency in the accused's

evidence.

So there is an implied lie then at that level

and then that implied lie can become an implied

Edwards(3) 36 28/6/93

admission. It seems to be watering down far too

far any notion of proof of any sort in the criminal

process. However, if Their Honours - - -

BRENNAN ACJ:  Why?

MR FLEMING: Because, Your Honour, you have got an implied

admission. It is constituting an implied

admission, and then you have got implied behaviour

constituting an implied admission. We would submit

that as a matter of course, that that is simply

watering down any assessment of evidence - - -

BRENNAN ACJ: It is evidence that goes into the pot.

MR FLEMING: Yes, it certainly goes into the pot.

BRENNAN ACJ: If it goes into the pot, that is as far as it

need go, is it not, so far as a direction to the

jury is concerned? Then you couple that with the

ordinary direction as to proof beyond reasonable

doubt.

MR FLEMING:  The difficulty with that, Your Honour, is that

the jury may well see it purely as ·a contest of

credit. If you leave out the other notions - - -

BRENNAN ACJ: But it will not be just a contest of credit if

the proof of the falsity comes from a source other

than the complainant.

MR FLEMING: Yes, that certainly must be the case.

BRENNAN ACJ: Is that not the situation? If you have got a

contest simply between a complainant and the

accused, the complainant says yes, the accused says

no, then you have not got to the stage of

establishing any lie.

MR FLEMING:  No, that is so.

BRENNAN ACJ:  But once you have got to the stage of saying,

"And here is some evidence other than the

complainant's evidence which tends to show that

there's a lie been told", then you have got an

implied admission according to the facts of the

case and it goes into the pot and it is subject to

the ordinary direction.

MR FLEMING:  Your Honour, that implied admission can come

from three sources, and we have no complaint with

the first two, that is an admission - that is

clear; that can be the best possible source.

BRENNAN ACJ: Admission by the accused.

Edwards(3) 37 28/6/93

MR FLEMING:  Yes, an admission by an accused, direct

evidence from some other source, but then the third

is by inference from the accused's own behaviour;

that is the lie.

BRENNAN ACJ: But the accused's own behaviour here is his

other contradictory evidence. So it is a case of -

your first instance, that is - the accused making

an admission that his first evidence was false.	It
has got nothing to do with the complainant's evidence.

MR FLEMING:  Only by implication can that arise,

Your Honour.

BRENNAN ACJ:	By implication; it is a matter of - - -
MR FLEMING:	And only by implication if you can satisfy the other propositions that Lord Lane puts forward, we
would submit.

BRENNAN ACJ: Forget Lord Lane for the moment.

MR FLEMING:	We are not anxious to, Your Honour.
BRENNAN ACJ:	I understand that, but as a matter of ordinary

principle, if you have got evidence from the

accused who says, "The evidence I gave a short time

ago is untrue", that can then, according to the

circumstances, be regarded as an admission by him

that, "I've got no reason to have told the truth a

while ago that it's consistent with my innocence",

so it is an implied admission of guilt. Then it

goes into the jury's consideration.

MR FLEMING:  I would accept that if I forget Lord Lane,

Your Honour.

BRENNAN ACJ:	I understand that.
MR FLEMING:	And if we do not have regard to some of these

other propositions. There are further quotes then

from a case called Lonergan v Reg, the

Chief Justice, Mr Justice Burbury, in Tasmania.

That is at page 245C of Mr Justice Clarke's

judgment:

"Evidence to be corroborative must be

evidence probative of the affirmative of the

relevant issue. In the present case it must

show or tend to show the truth of the woman's

story that she yielded to intercourse because

of the accused's physical force or threats -
since the accused did not dispute the fact of

intercourse on the occasion alleged ... it is

sufficient to state in general terms that

independent evidence of the kind to which I

Edwards(3) 38 28/6/93

have referred may be found in inferences from

the accused's conduct (including false
statements) made after the alleged commission

of the crime and at the trial itself. Whether

a given false statement is one from which such

an inference may reasonably be drawn is a

question of law which must be ruled upon by

the trial judge ...

The courts have repeatedly stressed that

it is only within narrow limits that lies of

an accused are capable of constituting

corroboration."

So it is lies which are probative of the

affirmative of the relevant issue.

So that we have firstly a jury going through

the process of making an assessment of evidence in

ordinary terms, as they would invariably in every
case, but then they are asked to come back and they

say, "Having been satisfied that the complainant's

story needs corroborating, you must now look at the

same evidence and you must now look at whether or

not there is evidence probative of the affirmative
of the relevant issue." So they are actually
constructing a positive case rather than just the

neutral, or perhaps the negative one, that

Justice Gaudron referred to earlier on. So the

authorities appear to be saying, "Now the jury must

look for an affirmative case." His Honour

Mr Justice Clarke went on to say:

Then, having quoted the passage from the

judgment in Tripodi which I have set out the

Chief Justice observed that (at 163) -

and we draw Your Honours' attention to this line - "The lie must therefore relate to

'incriminatory features of the crime'."

If they are incriminatory features of the crime,

then they fall within Shepherd. It is evidence

which is circumstantial and which can lead to an

inference of guilt or innocence. It is only at

that point the courts have been saying that you can

have evidence corroborative of the complainant's

story. His Honour went on at the bottom of the

page:

What, I think, emerges from the

authorities, and common sense, is that the

importance of the subject matter of the

allegedly false statement is critical to the

drawing of an inference of consciousness of

guilt.

Edwards(3) 39 28/6/93

If His Honour is correct in that, then we would

submit that there can be no doubt that it must be

established beyond reasonable doubt. His Honour,

at page 246C, came back to Eade's case:

For my part I think that the most helpful test

is that which emerges from Eade and that it is

only lies which suggest that the liar cannot give an innocent explanation of proved facts, or that he is unable to account for what

witnesses say they saw in any way consistent
with his own innocence which are capable of

providing corroboration.

Then His Honour looked at the New Zealand cases:

In New Zealand the test has been put

slightly differently - " ... it has to be the
sort of lie which naturally indicates guilt

rather than innocence - a hard test to

satisfy -

If that is correct, Your Honours, then again we

submit that Their Honours are right in establishing

proof beyond reasonable doubt.

DEANE J: Whose reasonable doubt?

MR FLEMING:  The jury's reasonable doubt, Your Honour.

DEANE J: Is that not what the trial judge directed the

jury?

MR FLEMING:	Yes, he did indeed. The Court of Criminal Appeal, though, did not adopt that. They seem to
have come back to the balance of probabilities. On that lesser test, two of Their Honours said that it was sufficient and one said it was not sufficient.

GAUDRON J: But that is not the issue that is being

addressed, is it, in that passage that you have
taken us to from Heyde.	Is that question not the

same one as was comprehended in the notion of

material, a material lie, a lie about a material

fact, in Lord Lane's analysis?

MR FLEMING:  No, Your Honour, we would submit that that is

but one part of the whole issue that His Honour is

speaking of there. Indeed, His Honour came back

and said that that is where the difficulty - it is

in those second and third tests that the difficulty

really arises; that is, it must relate to a

material fact. But then the next one is: it must

be established that the lie is told as a result of

a consciousness of guilt. If one is speaking, even

on Lord Lane's test, of a lie being told as a

result of a consciousness of guilt, one is still

Edwards(3) 40 28/6/93

speaking of evidence which can be used to infer the

guilt or innocence standing by itself of an
accused. His Honour then went on to say that he

did not consider it necessary - - -

BRENNAN ACJ:  We can read this for ourselves, Mr Fleming,

unless you are making a point about it.

MR FLEMING:  I am sorry, Your Honour, yes. At point E

His Honour did go on to say that it is not

necessary that in every case the direction be given

in precise terms in fact, having previously said
that it is not a question of legislation that that

direction be given in every case.

Your Honours, the point at which His Honour

raises the Chamberlain issue is at page 244,

indeed, the whole of that page from about line 5

down, "a trial judge who is charged with the

obligation". His Honour there refers to

Chamberlain.

Your Honours, the other case which refers specifically to Chamberlain is Reg v Evans in the

Full Court in South Australia, (1985) 38 SASR 344.

Indeed, Your Honours, both of these cases appear to

have been decided before Shepherd, so we take that

into account in any submissions that we make. At

page 347 Chief Justice King looks at Eade and

Tripodi again and extracts the passage from Lucas.

At the bottom of that page he refers to the

Chamberlain test. At page 349 His Honour looked at

Lonergan and seems to have basically adopted the

same line as the Court of Appeal in New South

Wales. Then at the bottom of that page there is a

reference to:

The second criticism is that the

directions as to the use of "any lies" does

not distinguish between statements proved to

be lies by admission of the accused or by

evidence which is independent -

Your Honours, even then, if we take account of

Shepherd - and we refer to Your Honour

Justice Dawson's judgment at page 585, to what we

perceive to be the essence of Shepherd, 170 CLR

537. At 585 Your Honour says:

The judgments in Chamberlain do not support the proposition -

from there down that particular paragraph and then

the following paragraph.

Your Honours, if we then return to Doney for a moment - and perhaps the most useful way of doing

Edwards(3) 41 28/6/93

that is by going to Mr Justice Derrington's

judgment because he has extracted there what we

wish out of that. That is at page 112. The third

extracted paragraph at page 113:

It is not necessary that corroborative

evidence, standing alone, should establish any

proposition beyond reasonable doubt. In the

case of an accomplice's evidence -

and so on. We would submit that this evidence,

that is lies, because of its peculiar nature does

not necessarily fall within that description

because it is not corroborative evidence standing

alone, but rather it is corroborative evidence from

which an inference of guilt or otherwise, because

of its quality, can be taken in any event. So it

therefore falls within the second paragraph:

corroboration may be by way of circumstantial

evidence. Then Your Honours say:

Circumstantial evidence is evidence which proves or tends to prove a fact or set of

facts from which the fact to be proved may be

inferred. Circumstantial evidence can prove a

fact beyond reasonable doubt only if all other

reasonable hypotheses are excluded.

When one applies that to the third of Lord Lane's

tests - and that test has been consistently applied

right throughout Australia - you have to establish

that the lies are told as the result of a
consciousness of guilt rather than some other
reason. If the lie is to be told as the result of

a consciousness of guilt, then one is establishing

facts at that point from which one can obviously

conclude guilt or innocence.

Your Honours, we would submit that a trial

judge must give a clear direction in relation to

these issues but he must first be satisfied himself

that it can constitute corroboration.	We would
submit - - -

GAUDRON J:  But does he or she not in that regard only have

to be satisfied that the inference is open on the

balance of probabilities, consistent with Doney?

MR FLEMING:  But that is the difficulty, Your Honour, that

we have with all of those authorities because they

seem to be saying more than that, because you are

requiring evidence from which the guilt or

innocence can be - - -

GAUDRON J:  No, you are requiring evidence only that tends

to confirm the involvement in the crime. That is

Edwards(3) 42 28/6/93

all you need: tends to confirm participation ~n the

offence.

MR FLEMING:  Yes, we accept that, Your Honour, except that

the way in which lies have been consistently

treated by the Court, it has been something far

more than that.

GAUDRON J: But has that not been directed to establishing

that they are lies rather than that you are merely

talking about evidence that is not believed?

MR FLEMING:  Yes, that is I hope what we have been

submitting, and that is the crux of the matter. It

is creating the positive case as distinct from just

having a simple test of credit in relation to it.

BRENNAN ACJ:  What are the passages of the summing up to

which you particularly take objection?

MR FLEMING:  Your Honour, I have dealt with some of those

earlier on at pages 77 and 78. His Honour then

said he was going to come back to the facts in

relation to that. Those facts appear to be dealt

with.

BRENNAN ACJ:	Before you get to that, what is wrong on 77?
MR FLEMING:	Your Honour, there is nothing wrong with the

first one, that is the lie must be deliberate and

it is to be satisfied beyond reasonable doubt.

BRENNAN ACJ:	78?
MR FLEMING:	The second test is a material issue.

GAUDRON J: Is it a question for the jury or for the judge?

MR FLEMING:  It is firstly a question for the judge as to

whether it can constitute corroboration.

GAUDRON J: Yes, but whether it is a material issue.
MR FLEMING:	The judge must firstly be satisfied that it can

constitute corroboration in terms of the four

tests, and then whether it does in fact at the end

of the day is a question for the jury. His Honour

simply accepts that it will be a material issue.

We would submit there is a difficulty with that.

BRENNAN ACJ: What do you say he should have told them?

MR FLEMING:  Your Honour, we would submit that he should not

have let it go to the jury at all because it was

not in respect of a material issue, the material

issue being whether or not he did it; not whether

or not he saw anything.

Edwards(3)	28/6/93
GAUDRON J: Whether or not he did what?
MR FLEMING:	Going back to the indictment, that he procured

the act of gross indecency. That is the issue that

has to be corroborated, that he procured the act of

gross indecency at the end of the day. The lies

went to whether or not he saw any other violence

going on, if they be lies, if they be untruthful,

deliberately untruthful. We would be submitting

that they do not even get to that quality of

deliberately untruthful.

DEANE J:  Was not the critical thing whether there had been

a statement which amounted to an invitation to him

to become involved in sexual activity and, on the

direction, he had originally indicated - according

to the trial judge, he could give no more

information, and then he gave evidence that there

was such an invitation.

MR FLEMING:  Your Honour, that does not appear to have been used, but we would submit that - - -

DEANE J: It was not put that way?

MR FLEMING:  No, it certainly was not put that way, and in

fact - - -

DEANE J:  It seems to have been seen that way in at least

one of the judgments in the Court of Criminal

Appeal.

MR FLEMING:  Yes, but whether or not in fact that can

constitute a lie - he says that he did not do it
and then he subsequently said there was an
invitation that he heard, but he did not say, I do

not think, at any time, apart from that piece in cross-examination, that he did not hear anything

else.	The question was whether or not he saw
anything going on.	So whether or not it can
constitute a deliberate untruth is a difficulty,

whether or not the first test can be satisfied by a

jury. Whether or not it is a material issue, we

submit that His Honour simply assumed that.

Then the motive for the lie: firstly, we would

submit that His Honour did not properly put to the

jury that they had to be satisfied that that was

the only explanation, that is that he was afraid

that if he told the truth, it would implicate him, and His Honour did not go on to say more strongly

that there may well be other things that are

consistent with his telling the truth. His Honour

raised only the fact that it could be a dabbing in,

which appeared in the context to be more a dabbing

in of mates rather than anything else. His Honour

did not put to the jury that there was a fear which

Edwards(3) 44 28/6/93

was expressed by the accused that if he told

anybody, he would be treated in the same way, that

he would be violently dealt with himself. In fact

that evidence comes also, although not quite as

strongly as that, from the complainant who said, in
one of the passages that I earlier pointed

out - - -

BRENNAN ACJ:  Was there any request for redirection on

inadequacy of that direction of fact?

MR FLEMING: There does not appear to have been,

Your Honour, in respect to those.

BRENNAN ACJ:  As a matter of law, do you take any exception

to the direction that was given at lines 18 to 50

on page 78?

MR FLEMING:	Yes, Your Honour, because it was not properly put that it was - they were to be satisfied that
the motive for the lie was a realization of the
guilt of the accused and they had to satisfy that
by negativing other propositions which might be consistent with perhaps his innocence.

BRENNAN ACJ:  Look at lines 22 onwards. I understand you to

say that there were other arguments put forward and

evidence to support them on the part of the

defence, but the issue in terms of a legal analysis

was put there, was it not?

MR FLEMING: His Honour, though, at line 22:

Here the defence say, well, there may well be other motives for failing to say things in

this Court, and those motives would go back to

his evidence that when you are in custody,

when you are a prisoner, you don't dob anyone

in -

but, Your Honour, that can equally apply to the

other difficulty in the case, and that is that

everybody refused to give any statement at all to

the police and then he finally came - - -

BRENNAN ACJ: That may be so, but as a matter of direction

on the point of law, I do not understand at the

moment what your exception is.

MR FLEMING: 

Simply that he did not emphasize or did not put

properly the fact that they had to exclude other
propositions for telling the lie. His Honour put

up one example but he did not say to them, "There

may be other propositions consistent with telling a
lie." He then gave an example and it was but one.

His Honour should have gone on further in terms of

Lucas. Given the peculiar circumstances of this

Edwards(3) 45 28/6/93

case, given that they"are both prisoners, given

that there was nobody else who was prepared to

speak, and so on, there should have been a clear

direction.

BRENNAN ACJ:	What about the fourth test?
MR FLEMING:	The fourth test: again, Your Honour, that there

should have been some indication - it should have

been established - the fourth test is an

interesting one because it seems to somehow or

another sum up the others.

BRENNAN ACJ: Just let me identify - - -

MR FLEMING:  I understand what Your Honour is going to say

to me, but it should have come back to the

proposition that it has to be a lie established

beyond reasonable doubt.

BRENNAN ACJ: Leaving aside the question of proof beyond

reasonable doubt, do you have any other objection

to the fourth direction?

MR FLEMING:	No, Your Honour.
BRENNAN ACJ:	Then leaving aside proof beyond reasonable

doubt on the fourth direction, on the question of

materiality on the second and the insufficiency of

the explanations that might have been innocent

explanations on the third, you have no other

objections to the propositions of law advanced by

His Honour in those two pages?

MR FLEMING:  No, Your Honour. His Honour then dealt very

peremptorily with the facts without, as we would

submit he ought to have, going over them in some

detail and actually pointing out what could and

what could not constitute the lie or the

untruthfulness that the Crown was relying upon.

Your Honour, if we are wrong then in terms of

establishing it beyond reasonable doubt, then we
would, with respect, in respect of the balance of
the matter, adopt what His Honour

Mr Justice Derrington had to say at page 115 in relation to whether or not it should have gone to

the jury. His Honour basically said that there was

such a preponderance of evidence showing that this

man said what he did because of his fear of what

would happen to him, that there was no other

competing version in the end that could

satisfactorily have been put to the jury.

GAUDRON J: That depends, does it not, on your proposition

that it must be proof beyond reasonable doubt in

that regard, too?

Edwards(3)	46	28/6/93
MR FLEMING:	No, Your Honour.	His Honour expressly did not

adopt proof beyond reasonable doubt.

GAUDRON J: Then how can it stand otherwise?

MR FLEMING: Because His Honour said at page 115:

At the other end of the scale it may be that

although the hypothesis consistent with guilt

is technically open the weight of a competing

explanation is so strong that the evidence

cannot safely be said even to tend to confirm

the other. It is a matter of degree in each

case.

GAUDRON J: But why is that not a jury question on that

analysis?

MR FLEMING:  Your Honour, he said that at that point in time

they could not have got to the first stage.

His Honour could not have been satisfied that there

was any evidence of corroboration because of that

failure, that breakdown, of the third of the tests

that Lord Lane had established. Thank you,

Your Honours, they are our submissions.

BRENNAN ACJ: Yes, Mr Fleming. Yes, Mr Byrne?

MR BYRNE:  May it please the Court, we have attempted in our

written outline to provide the Court with the

summation of the history of the progression of

evidence of, this type in this country. If I can

leave that for the moment and attempt to deal with

the use that was made of the evidence in this case.

The evidence really was, in our submission, put to

a quite specific and limited use at the trial.

That is evident, we submit, from the summing up at pages 73 over to 74, beginning at line 49.

His Honour directed the jury that:

It is therefore to be regarded as dangerous to

convict on the uncorroborated testimony of a

complainant alone. Nevertheless, if, bearing

that warning in mind and after consideration

of all the evidence and in particular, of
course, the evidence of the complainant, and

giving full weight to the warning which I have

just given you, you come to the conclusion

that you are satisfied beyond reasonable doubt

that the complainant is telling you the truth,
the fact that there is no corroboration does

not matter and you are entitled to convict.

DAWSON J:  Mr Byrne, just to satisfy myself, that direction

is, as a matter of practice, still given in

Queensland; it has not been interfered with by

statute anywhere?

Edwards(3)	47	28/6/93
MR BYRNE:	No, it has not to my knowledge, Your Honour.	The

jury were told clearly that they could convict if

they were satisfied of the evidence of the

complainant. The lies were used solely as

corroborative evidence.

McHUGH J:  Could you tell me in what way were the jury to

use the lies? Were they to use the lies as tending

to confirm some incident in the complainant's

evidence or were they to be used as corroboration

by way of a confession in the sense of a

consciousness of guilt? Am I making myself plain?

MR BYRNE:  Yes.

McHUGH J: For instance, if the accused had said that he had

heard the complainant say - or one of the men say, "Anybody come down here", that would not have been corroborative evidence against him, would it?

MR BYRNE:  No, Your Honour.

McHUGH J: But if he lied about hearing that, then you would

say that would constitute corroborative evidence?

MR BYRNE: In the circumstances here, yes.

McHUGH J:  Did the trial judge leave it on that basis or did

he leave it on just some general basis of lying so

as to constitute an admission of guilt generally?

I have some difficulty in understanding which basis

the trial judge put it on at the moment.

MR BYRNE:  He must have put it on this basis, we say: the

Crown case was that physical violence had been used

against the complainant to induce him to perform
certain sexual or indecent acts. The Crown case

was that the appellant here took advantage of that

violence having occurred to procure the complainant

to perform such an act on himself, the procuring
being an offer of protection.	So that the denial

by the appellant here that he had seen any such

violence initially and then later a change of story

saying yes, he had seen violence being inflicted,

then that was evidence which would go to confirm

the account given by the complainant.

DAWSON J: That is unrealistic, is it not? It was not so

much lies here as a reluctance to tell a story; it

had to be dragged out of him. But to say from that

fact you could extract an admission that something

had occurred is pretty far-fetched, is it not?

MR BYRNE: That is the second point I was - - -

DAWSON J: That is what Justice McHugh is asking you: what

was the nature of the admission here? How did

Edwards(3) 48 28/6/93

these circumstances give rise to, as it were, an

admission, an implied admission of guilt?

MR BYRNE:  In the sense that, bearing in mind that it was,

to use Your Honour's words, dragged out of him and

there was reluctance to tell the story, it was

still, on the facts here, matters which could go to

a jury for their consideration.

DEANE J: But both the trial judge and Justice Thomas in the

Court of Appeal placed great emphasis on the lie

about.what he heard. Where in his evidence was he

ever asked did he hear anything or given an

opportunity of saying what he heard before he gave

that evidence?

MR BYRNE: There was, as I understand it, only one question

asked about that. That is set out in

Mr Justice Thomas' judgment at page 96, beginning

about line 15.

DEANE J: But that is not the lie they are talking about.

Both the trial judge and Justice Thomas are talking about a lie resulting from inconsistency between

evidence in-chief and his cross-examination.

Reading the evidence in-chief, I cannot even find a question that really permitted an answer about what

he heard which would have been relevant to the

question. I am not telling you. I am asking you

to point out to me a question that really did

invite the answer about what he heard.

MR BYRNE:  I do not believe there was more than those questions in cross-examination. The jury were

asked to infer between the two answers given at

about line 15 and line 26.

DEANE J: What, between - well, really:

I suggest you heard Wallace call

out ..... ?---No.

And then:

I am not suggesting those are the exact

words ..... ?---I don't - couldn't really say if

it was Wallace or not.

MR BYRNE:  That is not strong. That is why I

DEANE J: Well, I think you are putting it at the highest,

if I might say so.

MR BYRNE:  - - - attempted to restrict our submissions to

the other lie.

Edwards(3) 49 28/6/93

DEANE J: Except the problem - and I realize this is not

what you have been faced with, but the problem I

have is when you read the trial judge's summing up,

in terms of the first issue as he identified it, he

hones in on the words and at page 77, when he comes

to the second issue, he carefully directs the lie

to the words which I would have thought in this

case were the critical thing.

MR BYRNE: At page 77?

DEANE J: Page 77, line 38:

and the words to which I have already

referred.

McHUGH J: Which is at page 75, he refers to the words, in

the middle of the page, line 31.

MR BYRNE: Just so I am following Your Honour's point: the

learned trial judge seems to have directed, at

page 75, about line 42, that:

that does not in any way implicate this

accused.

He then comes to the second issue.

DEANE J: At page 77, where he talks about the lies, he does

not confine it to the assault. He says, he said -

this is in the middle of the page:

he could give you no more information than

that -

well, he never said that. And then he goes on to

say:

that he saw and heard what must have been

physical aggression towards the complainant

and the words to which I have already

referred.

As constituting a lie by making what he had said

earlier a lie.

MR BYRNE:	It is not a detailed summing up on that point.
DEANE J:	And apparently no redirection was asked at all n

relation to it.

MR BYRNE:	No, no redirection was sought.
GAUDRON J:	Mr Byrne, you say that the Crown case was,

clearly, that the procurement was by offering

protection but that is inconsistent with the

indictment, is it not?

Edwards(3) 50 28/6/93

MR BYRNE:  We would submit not, Your Honour.

GAUDRON J: It is suggested "by threats and by fear of

bodily harm". I would have assumed that the "fear

of bodily harm" comes from the threats.

MR BYRNE:  What we were saying and what was said in argument

before is that it is really a negative proposition.

So that if he did not comply then the assaults

would continue.

McHUGH J: But do you have to go that far? Threats can be

made by a third party. If he just simply asked the

complainant to do these things to him and the
complainant consented only because he feared that

Badger or somebody else would bash him, the offence would still be made out under the section, would it

not?

MR BYRNE:  It would be made out under the section and also

in the particular factual situation here where it

is a confined space and a number of prisoners. But

that issue does not seem to have arisen at trial

because of the way the trial was conducted.

GAUDRON J:  It was conducted on the basis that it was an

offer of protection or the threats would otherwise

continue, as it were.

MR BYRNE: There was ongoing violence and this appellant took part in the obtaining of gratification and used those threats to his own advantage.

DEANE J:  Mr Byrne, has anything been done to stop this sort

of thing being done by the Queensland prison

authorities since this case?

MR BYRNE:  I cannot specifically answer Your Honour's

question about this, but - - -

DEANE J:	I mean, it really is outrageous.
MR BYRNE:	- - - certainly inquiries are held into all

_ incidents of this sort. The result of a specific

inquiry into this matter I cannot answer.

DEANE J: So, you do not know whether people are still being

locked up for 12 hours in these conditions while

they are transported across the State?

MR BYRNE:  I can only hope not but -

DEANE J: Yes, one would, but this is 1989 this happened.

MR BYRNE:  Yes. I can have inquiries made.

DEANE J:  I would be interested to know.

Edwards(3) 51 28/6/93

MR BYRNE:  Thank you, Your Honour.

BRENNAN J: The Court will adjourn until 10 am tomorrow

morning.

AT 4.33 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 29 JUNE 1993

Edwards(3) 52 28/6/93