Fernando v The Queen

[2000] HCATrans 24

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S125 of 1999

B e t w e e n -

VESTER ALLAN FERNANDO

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S223 of 1999

B e t w e e n -

IRIS FERNANDO

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GAUDRON J
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2000, AT 11.03 AM

Copyright in the High Court of Australia

________________

MR T.A. GAME, SC:  Your Honours, I appear for the second applicant, Iris Fernando, with MR S.J. ODGERS. (instructed by Western Aboriginal Legal Service)

MR G.D. WENDLER:  If the Court please, I appear for the applicant, Vester Fernando.  (instructed by Sydney Regional Aboriginal Corporation for Justice)

MR A.M. BLACKMORE:  If the Court please, I appear with my learned friend, MR R.D. ELLIS in both applications for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (NSW))

GAUDRON J:   Thank you.  Now, I take it both applications can be heard together?

MR WENDLER:   That is right, your Honours.  However, some of the issues raised in the application of Vester Fernando are different, not common to those raised ‑ ‑ ‑

GAUDRON J:   Yes.  Now, Mr Blackmore, can I take it no point is made about time per se?

MR BLACKMORE:   No.

GAUDRON J:   I cannot take it, or I can take it?

MR BLACKMORE:   You can, sorry, yes, you can take that, yes.

GAUDRON J:   Yes, thank you.  Well, then in that case you can deal with the applications without referring to time, but one other matter arises, that is in the application of Iris Fernando.  Now, would it be appropriate to proceed on the basis that if the matter were otherwise a suitable case for the grant of special leave, the proper course would be to refer the application to a Full Court, with the Full Court determining whether the mother is a competent applicant and/or appellant.

MR GAME:   We would be grateful if the Court could take that in course.  I should say, your Honour, I do have a further affidavit that was sworn this morning that indicates that probate has been granted, but I do not have the certificate.

GAUDRON J:   Yes. 

MR BLACKMORE:   There is no issue about the probate having been granted.

GAUDRON J:   Yes, well, would you regard that as an appropriate course?

MR BLACKMORE:   Providing the issue in front of the Full Court was still a question of leave.

GAUDRON J:   Oh yes.

MR GAME:   It says “special leave application simply be referred to the Full Court”.

GUMMOW J:   On the question of competence.

MR GAME:   On the question of competence.

GAUDRON J:   Yes, if it would otherwise normally attract a grant of special leave.

MR GAME:   So, in effect, we just argue our, as it were, three special leave points on what was Brendan’s application today, the rest to be left swinging, as it were.

GAUDRON J:   Yes, and so ‑ ‑ ‑

GAUDRON J:   Well, they may not be left because ‑ ‑ ‑

MR GAME:   May not be left, yes, of course, your Honour.  Special leave would be refused if the application ‑ ‑ ‑

GAUDRON J:   Yes.  So, is it appropriate for the two applicants to go first, each taking 20 minutes, and then for Mr Blackmore to have 40 minutes, and then hear replies?

MR BLACKMORE:   I can certainly do that, your Honour, yes.

GAUDRON J:   Very well, are you first, Mr Wendler?

MR WENDLER:   Yes, if the Court pleases, I will commence the application on behalf of the applicant, Vester Fernando.

Before I open the application, can I indicate that because it is a joint application, there is one common ground in the pursuit of special leave to appeal, and that is what might conveniently be described as the section 165 of the New South Wales Evidence Act ground, and referable to the evidence of a witness by the name of Michael Jackson who was a central and important witness in the Crown case at trial.  I leave it to my learned friend, Mr Game, to address your Honours in relation to that ground, and we embrace the submissions he makes in relation to that, so I will not say anything about the section 165 point.

The next matter concerns some material which is not reproduced in the judgment of the Court of Criminal Appeal.  Your Honours have three application books.  Two application books are described as joint application books.  Can I invite your Honours to volume 2 of the joint application book.  Your Honours have that book?  That application book contains the judgment of the Court of Criminal Appeal in its entirety.  At page 324 of volume 2 of the joint application book, there is reproduced as part of the judgment in the Court of Criminal Appeal the interrogation of the applicant, Brendan Fernando, after he had been arrested and in circumstances described in the judgment of the Court of Criminal Appeal as a “runaround”.  Your Honours would have seen that expression, “the runaround”.

What is missing from the judgment is a number of questions which were asked of the applicant, Brendan Fernando, and I invite your Honours to the balance of the runaround interview, in effect, because some of these questions are important to the issue concerning whether or not there has been a miscarriage of justice in relation to the separate trial issue.  Your Honours will see that what is reproduced are two pages, and the questions are picked up at question 167.  The questioning stops in the judgment of the Court of Criminal Appeal at 165 and it goes on to the balance of the runaround interview.  There are some answers attributed to the applicant, Brendan Fernando, which were part of what can be described as, in a sense, a sensational or a controversial interview in so far as its impact would have been upon the jury.

Can I move now, then, to the first ground of application which is the complaint which was strenuously pressed before the Court of Criminal Appeal, that in all the circumstances the refusal by the trial judge to grant the applicant, Vester Fernando, a separate trial has, in all the circumstances, occasioned a demonstrable miscarriage of justice.

It might be useful to preface this part of the application by saying this, in general terms.  The separate trial rules were fashioned at least 30 or 40 years ago in Courts of Appeal in England and those rules filtered through in due course to trial courts elsewhere.  At that time, of course, the prevalence of video recording of interviews was something that was not really known.  Really, since this Court’s judgment, certainly in this State, of McKinny v The Queen and Judge v The Queen has there become this prevalence of what can be described as electronic interrogation.  Now, sometimes an electronic interrogation can be fairly neutral.  For instance, a person is interrogated by police in an office somewhere in a police station, but nevertheless, that style of investigation has potential to be, as it were, inflammatory or carry greater prejudice, having regard to the circumstances in which the electronic interview takes place.

In this case, what occurred was the co-accused was taken by police soon after his arrest and soon after his indication that he did not wish to answer questions.  He was taken by police in the early hours of the morning, prior to the arrest of the applicant, Vester Fernando, to the areas where it was suggested the deceased had been taken.  Your Honours will know from the papers that the allegation was that the deceased was, in effect, abducted from the hospital and forced to a place some 300 or 400 metres from the hospital.  Your Honours may or may not know this from the papers, that when the deceased went missing at the hospital in the early hours of Friday morning, she was not discovered until 4 o’clock in the afternoon, roughly, of that Friday.  Of course, the rumour in Walgett spread like a bushfire about the disappearance of the deceased and the circumstances of her disappearance.  Eventually, after the applican, Brendan Fernando, was arrested, he was encouraged by police to take them through this trail, as it were, where it was alleged certain things happened.

During the course of the interrogation, certain inflammatory answers, as it were, were given by Brendan Fernando attributable to the applicant, Vester Fernando.  So we had a situation where it was alleged that the applicant, Vester Fernando, had said to Brendan various things, such as on page 15 and in particular, I invite your Honours the very first answer on that page:

If I don’t cut your throat I’ll be putting the cunt through your heart you bitch.

and so on, and there were other aspects or other language which were as inflammatory and as controversial as that sort of language. 

The impact of all of this was on, as it were, a video presentation.  It was like, almost, a manufactured script.

GAUDRON J:   You are advocating a new principle, are you?

MR WENDLER:   I am sorry, your Honour?

GAUDRON J:   You are advocating a new principle with respect to separate trials?

MR WENDLER:   What I am pressing on the Court – and I am coming now to the essence of the specialness of the application – is this, that the separate trial rules, as they stand, and as they were handled by the Court of Criminal Appeal, do not always or cannot always cope with circumstances where there is or has been evidence arising from a co-accused not admissible against another accused, which has been arrived at in controversial or inflammatory circumstances.  So, therefore, one of the critical criteria for the grant of the separate trial, the difference in the respective cases, needs to be adjusted these days, in order to cope with some of these sometimes inflammatory or highly emotive investigative techniques.  So the investigative ‑ ‑ ‑

HAYNE J:   Assume, for the purposes of debate, that that proposition were right.  What follows from it?  What is the consequence for the rules that you say should follow from this premise?

MR WENDLER:   The consequence, the legal consequence, is this:  that the ultimate question, “Will the accused suffer impermissible prejudice in those circumstances?” becomes, as it were, more alive.  The bottom line is, will the accused receive a fair trial if this material goes before the jury, balancing, of course, the responsibilities of the trial judge to remind the jury that the evidence is not admissible against that particular accused.  But it is further compounded in circumstances where a co-accused does not submit himself for cross-examination, as occurred here.  There is no way that the accused, Vester Fernando, who gave evidence and was cross-examined, can confront this type of situation.  There is no way he can confront it.

HAYNE J:   But a separate trial is determined at the outset.  One cannot know what course an accused and co-accused will take.  What is the rule that you say should now be established, given the changes in technique and technology to which you have referred?

MR WENDLER:   That if, having regard to the, as it were, style of the interrogation is, as it were, so inflammatory that it cannot be sanitised through directions and there is no indication from counsel for the co‑accused at the earlier stage of the trial as to whether or not a co-accused will give evidence, then the separate trial criteria takes on a different complexion.  In other words, it may well be that there is an obligation on counsel for a co-accused for the purpose of deciding whether or not a separate trial will be granted, an obligation to indicate whether or not the co-accused will go into evidence.

HAYNE J:   It is a pretty weighty decision for counsel to take at the outset of a trial, I would have thought, Mr Wendler.

MR WENDLER:   Well, it may well be, but ‑ ‑ ‑

HAYNE J:   But it seems to me, at least, as far as you have developed it so far, that you are not proposing some different rule.  You are saying that the present rule may require different application to particular kinds of fact.  If that is the proposition contended for, it seems to take it to the trial judge made the wrong discretionary assessment of the fairness or otherwise that would follow from joint trial.

MR WENDLER:   Well, at the end of the day, the legal, as it were, examination focuses upon the discretionary process, at the end of day, and the ultimate question, of course, is then posed whether or not, in all the circumstances, there has been occasioned a miscarriage of justice by reason of the discretion being exercised against the order of a separate trial.  But this was a case where the facts were, to say the least, appalling and heinous.  There was great scope for a powerful emotional reaction in relation to the assessment of where the responsibility lay in relation to either of the accused.

To have, as it were, an electronic interrogation which had, as part of it, question, or rather answers, which were inflammatory and emotionally based and the co-accused being, as it were, immune from a scrutiny of his account, in my respectful submission, focuses a very important question as to whether the separate trial rules in the age of electronic interrogation really need to be examined from a different viewpoint because, as I say, sometimes an electronic interrogation is of little consequence.  Other times, such as in this case, it is of great consequence.  My submission is that when there is an electronic interrogation which is a powerful and, as it were, compelling electronic document, the inclination should be, having regard to other matters, to the grant of a separate trial; and there may well also be some obligation on counsel for a co-accused to indicate whether or not the accused will give evidence.  It is not a novel thing for counsel at a very early stage of a trial to indicate that a particular accused will give evidence.  I have opened many trials where I have indicated right from the outset to the jury that my client will be giving evidence because of various issues in the case, and they have an expectation, then, that an accused will give evidence.  So there is nothing particularly controversial about that.

We rely, your Honour, on the earlier Court of Criminal Appeal judgment in Reg v Baartman.  Baartman was referred to by the Court of Criminal Appeal, of course, but curiously there was no analysis of the facts in Baartman which were in many ways similar to the circumstances of this applicant.  Rhetorically, I ask this question, if Baartman was entitled to a separate trial in his circumstances, why was not the applicant, Vester Fernando, entitled to a separate trial?  Your Honour, in Baartman, of course, there was a collection of electronic -by use of a listening device, there was a body of what might be described incriminating discussion in relation to Mr Baartman and his involvement in a particular murder, and the Court of Criminal Appeal in this State had no difficulty on an interlocutory application assessing that type of evidence as dramatic, incontrovertible and highly prejudicial, and extremely difficult to guard against when, of course, you have this powerful electronic document before the jury which can, of course, be played on numerous occasions by the jury, for instance, when they are charged and then proceed to consider their verdict.  That was something that would have been available to the jury and certainly available to the jury in this trial.  So, in short, that is the nature of the first part of the application so far as the applicant, Mr Vester Fernando, is concerned.

The second part of this application concerns what occurred in the trial and the procedure that was adopted in the trial when an application was made by counsel for a directed verdict on the second count on the indictment.  As your Honours know, the applicant was indicted on two counts.  The first count was murder, the second count was brought pursuant to section 61J of the Crimes Act and pleaded that the applicant had non‑consensual sexual intercourse in circumstances of aggravation.  At the close of the prosecution case, I made a submission that there was no case to answer because there was no evidence of penetration on the Crown case.

Instead of his Honour withdrawing the charge of that particular count from the jury, his Honour allowed that count to remain and permitted the prosecution to substitute an alternative count which remained alive up till the point when his Honour commenced his instruction, or rather, charge to the jury.  At that point, his Honour directed the jury that the section 61J charge, the jury would have to acquit in relation to that charge.

The prosecution opened the case in relation to the section 61J count.  It conducted the case on the basis that the deceased had been abducted, sexually assaulted and then murdered.  The prosecution conducted the case on the basis that the motive for the murder was to hide the sexual assault.  So this was a very important feature in the overall complexion of the prosecution case.  The Court of Criminal Appeal held, correctly, that his Honour was incorrect in law not to have directed a verdict of acquittal at the close of the prosecution case.

There is, of course, also as part of the judgment of the Court of Criminal Appeal, an analysis of the application of section 427 of the Crimes Act of New South Wales.  That section permits the raising of an alternative count upon an indictment, even though that particular count was not opened on by the prosecutor and so on.  At the end of the day the question is, what prejudice does a particular accused suffer?

Your Honours, the procedure that was adopted by the trial judge, by itself, in my respectful submission, led to a demonstrable miscarriage of justice.  The section 61 count remained alive as against the co-accused, Brendan Fernando, by reason of admissions allegedly made by him to police.  It did not disappear against the accused, Vester Fernando, until just prior to the summing up.  In other words, the whole basis of the accused, or a significant basis of the alleged criminal responsibility of the accused, Vester Fernando, was on this sexual penetration charge.  That suddenly was turned upside down and a new basis, in effect, was created.  It amounted, in my respectful submission, to splitting the Crown case in one important aspect of it, a charge which, on the Crown case, provided or was alleged to have been the motive for murder.  Now, in my respectful submission, having regard to that particular feature, what his Honour should have done in the circumstances was discharged the jury and ordered a separate trial after the sexual assault count could not be proved as a matter of law. 

So far as the specialness of the application is concerned, there are important matters of criminal procedure that arise here which are relevant to the administration of the criminal justice system in this country.  They concern the obligation upon, of course, a trial judge to direct a verdict of acquittal if, in law, there is no evidence in relation to a particular count.  The second important matter of procedure is concerned with, often, this very difficult problem, whether or not alternative counts can be inserted on an indictment and the time at which those alternative counts can be inserted on an indictment so as not to occasion a miscarriage of justice.  In this case, in my respectful submission, the lateness or the way in which this alternative count appeared and the circumstances in which it appeared by itself created a demonstrable miscarriage of justice.

The third and final matter of specialness is ‑ ‑ ‑

GAUDRON J:   Are you going to be long with this?

MR WENDLER:   I am sorry, your Honour?

GAUDRON J:   Your time.  What is the third matter?

MR WENDLER:   I will be about two minutes, your Honour.

GAUDRON J:   Yes, thank you.

MR WENDLER:   It is the sentence issue.  As your Honours know, the applicant, Vester Fernando, was ordered to serve a period of imprisonment for the term of his natural life.  The expectation is that – he was 27, I think, when he was sentenced – is that he will live another 50 years.  At the sentencing proceedings, a submission was made in relation to the applicability of Justice Wood’s judgment and the relevance of what Justice Wood identified in the case of Fernando in 1994 - that name has no relevance to this particular applicant - the issue of aboriginality and the eight points identified by his Honour Justice Wood as being relevant to the sentencing process in relation to Aboriginal offenders.  His Honour Justice Abadee, with great respect to him, paid titular regard to that judgment.  The issue of importance that arises for the law of sentencing in this country is this, that in crimes of great heinousness, do special subjective features such as aboriginality have no relevance at all, because that is how, in my respectful submission ‑ ‑ ‑

GAUDRON J:   Is that exactly correct?

MR WENDLER:   Well, in my respectful submission, that is the legal effect of the judgment of the Court of Criminal Appeal.  It is the legal effect of the sentencing remarks of his Honour Justice Abadee.  His Honour paid no regard at all, in my respectful submission, to the antecedence of this applicant, the issue of aboriginality, which is, in my respectful submission, an important sentencing matter, preferring, rather to focus upon what is described as the heinousness and great revulsion that would occur to any objective observer, having regard to the circumstances of this offence.  I have no problem with that.  My concern is ‑ ‑ ‑

GAUDRON J:   What his Honour said was, in relation to your client’s background and alcohol problem:

It is difficult to see what either has got to do with this case.

MR WENDLER:   His Honour, at  ‑ ‑ ‑

GAUDRON J:   He says:

They can have but little weight –

because of the nature of the crime.

MR WENDLER:   That is the point.  Is the position this, that because of the so described heinousness of the crime, does that outweigh special

subjective matters, totally outweigh, to the extent that they have no part to play at all of  ‑ ‑ ‑

GAUDRON J:   What part do you say they have to play, bearing in mind that your red light is on?

MR WENDLER:   Yes.  There was great stress put on the issue of alcoholism in remote communities.  This particular applicant and, indeed, the applicant, Brendan Fernando, I think, were drinking at the age of about five or six.  They were in communities which were totally isolated, alcoholism rampant ‑ ‑ ‑

GAUDRON J:   Mr Wendler, we know the facts, basically, but why do you say it is related to this particular crime?

MR WENDLER:   In my respectful submission, generally, as a general sentencing principle, those issues, those eight matters identified ‑ ‑ ‑

GAUDRON J:   Justice Abadee did not say otherwise, as a general principle.  He just said he could not see how they could be related to this crime.

MR WENDLER:   Well, in my respectful submission, he sentenced this applicant in such a way that issues of aboriginality - and evidence was led that this applicant had for a long period of time significant problems with alcoholism.  He was, just prior to this, in a rehabilitation clinic out near Walgett called – it just escapes me – but there was evidence that he had left ‑ ‑ ‑

GAUDRON J:   At Brewarrina, I think.

MR WENDLER:   Yes, that is right, yes.  So it was from that viewpoint it was urged upon his Honour that, having regard to his antecedence and the issue of aboriginality, this was something that was relevant, one should not be, as it were, dismissive of it ‑ ‑ ‑

GAUDRON J:   Yes, well, we understand, yes.

MR WENDLER:   That is the application.

GAUDRON J:   Yes, thank you, Mr Wendler.  Yes, Mr Game.

MR GAME:   I am sorry, I seem to have too many books here, your Honour.  We have, we submit, three special leave points.  The first concerns the circumstances in which a warning should be given under section 165 of the Evidence Act and what might constitute good reasons under that provision.  The second concerns the application of the principles in McAuliffe to a case such as this.  The third concerns the directions concerning the failure of the applicant to give evidence, a matter about which the Court has very recently delivered a judgment which has direct consequences for the directions that were, in fact, given in this particular case.

I will deal firstly with the directions given concerning the witness Jackson, and they concern, obviously, section 165 of the Evidence Act.  Now, just before I take your Honours to the provision, perhaps if I could remind you of something that appears in the judgment of the Court of Criminal Appeal at page 363, there is no read it, but the court accepted that if the trial judge did err in not giving a warning, it would not be possible to apply the proviso to section 6 of the Criminal Appeal Act.  That is to say ‑ ‑ ‑

GAUDRON J:   I must say, when I read that, I was surprised by that, Mr Game.  For myself, I would not have thought that there could be any blanket rule to that effect.  The question must be, in each case, whether in the circumstances there was a miscarriage of justice.

MR GAME:   Well, I would accept that, your Honour, as a matter of principle, but I think the court is saying that in the circumstances of this case, the evidence of this witness, Jackson, was so important that it would be impossible to apply the proviso with respect to the failure to warn.  And if I could say also this, your Honour:  if one reads the directions – and I simply do not have time to take your Honour through all the directions in this special leave application, but not only was it not a warning, but on my account, 10 or 11 times his Honour exhorted the jury as to the reliability of the out of court statement, so it was ‑ ‑ ‑

GAUDRON J:   Yes, but it was a statement which – it is not your ordinary case of a person asserting that something is true in which, of course, the necessity for a warning is obvious, for example, a cell confession.

MR GAME:   Yes.

GAUDRON J:   This is a case where the man said, “No, I was lying then and I was lying for this reason”.

MR GAME:   That is right, but he says ‑ ‑ ‑

GAUDRON J:   And it was then left to the jury to determine on what occasion he was telling the truth.

HAYNE J:   And the reliability was, if you like, the very central issue, was it not?

MR GAME:   The reliability of the out of court statements, yes, your Honour, but the warning would, in effect – it has come in through section 60 – he has been cross-examined as an unfavourable witness under section 38, comes in under credit, and then section 60 brings in the hearsay.

HAYNE J:   He says:

Yes, I said it but I was telling lies then.

MR GAME:   “And I was forced to ‑ ‑ ‑

HAYNE J:   “And here is why I was telling lies”, yes.

MR GAME:   Yes, “and I was forced to tell lies”.  But the trouble with that is it is in the curial context, it is one step removed, it has all the dangers of hearsay.  Once ‑ ‑ ‑

GAUDRON J:   Tell me what warning should have been given:  “Maybe he is lying today”?  Could you really suggest that the trial judge should have gone so far as to suggest that perjury was being committed, which really seems to me to be the only warning you could have given?

MR GAME:   The warning would be to – incidentally, the judge thought it was not hearsay, which was a mistake, and our submission would be that that really affected the whole of his reasons about this and that looking  ‑ ‑ ‑

HAYNE J:   But assume that is so.

MR GAME:   All right.

HAYNE J:   What should he have done?

MR GAME:   What he should have told the jury was pretty much what he was asked and, again, you have been given the reference to the complaint and the terms of it by counsel, which was to say, “Well, look, this is an out of court statement and Mr Jackson says he did not say those things”.  In order to find that - what he said out of court was not said on oath.  In order to accept what he says, and it was not subject to cross-examination, what he said out of court at the time he said it, and we have no means of testing what happened in that police station at that time, other than by what the witnesses tell us, and only Jackson gave evidence about this in court.  So it is ‑ ‑ ‑

HAYNE J:   But the fact of him making the statement was not in issue, or have I misunderstood?

MR GAME:   The fact of him the statement was not issue.

HAYNE J:   He said, “When I told the police this, I was lying because…” and reasons were given by him for why he had told the police what he was asserting in court to be lies.

MR GAME:   Yes, your Honour, there is one qualification to that, which is that there is a factual dispute that could find itself addressed in a curial context which is whether or not the police threatened him, told him to charge him with keeping a cockatoo, that he was scared, and charge him with accessory.  So there is that, and as far as I am aware, the only evidence in the trial about that was what this witness said in cross-examination – that is to say, this witness said in cross-examination by defence counsel, there is no other evidence – at the trial.  So, in effect, one is relying on the out of court statement for its truth, by virtue to the fact, ultimately, only that it was made in particular circumstances, coupled with the other factors that the trial judge referred to, namely that there was other evidence that confirmed particular aspects of it.

HAYNE J:   Yes

MR GAME:   But the two particular sentences which were the subject matter of the complaint, the only evidence of those is the out of court assertion.  The reason for the warning, in our submission, goes to the reason that hearsay has traditional being excluded, is for the very reason that I have already given, which is one cannot test the reliability of the out of court assertion, other than seeing what the witness says about the out of court assertion in court.  It is not – sorry.

GAUDRON J:   That would be correct if it was somebody else’s statement, in a sense, but you have here a witness who can be cross-examined as to what he heard.

MR GAME:   Yes.

GAUDRON J:   If he heard that, he could have given evidence as to that, and it would not have been hearsay evidence.

MR GAME:   That is right.  He does not come into court and say that.  He comes into court and he says, “I said that previously”, that is all he says, “I agree that I said that previously”.

GAUDRON J:   Yes.

MR GAME:   That is under cross-examination, so it is not open questioning, it is leading questioning, it has all those dangers.  Then along come the defence counsel and they put a series of propositions, all of which are accepted, as it were.  Nothing that witness says is going to assist you in determining the reliability of the out of court statement.  You have to go somewhere else, because he does not assert its truthfulness.  The only way you are going to get that that statement is truthful is from somewhere else, because that witness has nothing to say to assist you with that assertion, and that, in substance, is – the jury have to have drawn to their attention that very problem.

GAUDRON J:   But it was left to them to decide that very issue and they were instructed with respect to it.

MR GAME:   Well, your Honour – I was going to take your Honours to section 165.  They certainly were not instructed in terms of 165, namely, the evidence may be unreliable, what the reasons are ‑ ‑ ‑

HAYNE J:   That is, that the alleged confessional statement may be unreliable.  What is the evidence that you say should have been warned about.

MR GAME:   The out of court assertions may be unreliable.

HAYNE J:   Yes, yes.

GAUDRON J:   Well, they knew a bit more than that they may be unreliable.  They knew that they might be false, because there was sworn evidence that they were false.

MR GAME:   Ah, but, your Honour, they were not told that they may be unreliable for the particular reason, namely the particular content, namely that it is out of court.  It is that aspect to it – maybe I am not putting it very well, but it is not a small point.  We have come a long way from sweeping away the laws with respect to hearsay in these circumstances.  This case is a little different than Lee because the circumstances in which cross‑examination was open in this case were available, but then the application to limit the evidence - or exclude those two sentence is rejected.  Now we have it in, but we have nothing that is said to the jury to say – it has a real danger, because what it means is there is a witness could have – I am not saying whether this witness was or was not – but it means a witness can have planted in their mouth – and I know that sounds maybe too emotional – but a witness could have planted in their mouth an out of court statement and then, by the circumstances which one outlines, it gets into evidence and then nothing is said that, as it were, holds one to how it has come about.

HAYNE J:   Had Mr Jackson given evidence in‑chief that “The accused man said these words to me”, would the judge have been obliged to give any warning to the jury about the use they might make of that alleged confessional statement?

MR GAME:   Yes, it is covered by 165(1)(a) as well.  It is a confessional statement, so it may be unreliable for that reason.  That is another basis upon which this evidence was said to be – and the court accepted that there was evidence of admissions to a limited degree, so it is picked up by (a), Part 3.4, yes, your Honour.  So it is this decisive effect of this out‑of‑courtness, which is the thing that needs to be the subject of the warning.  I am going to run out of my 20 minutes before I get to the second and third points.

GUMMOW J:   That is what I was thinking, Mr Game.

MR GAME:   I will just have to be brief about this.  What happens, in our submission, in this case is that the judge in effect is saying, “I think the evidence is reliable”, but that is not what good reasons goes to.  Good reasons goes to, as we put in our submissions, that they must relate to the rationale behind the warning.  That is the critical error, in our submission, both by the trial judge and the Court of Criminal Appeal.  I am going to have to leave that ground and address the McAuliffe ground and the final ground.

With respect to the McAuliffe directions, the Court of Criminal Appeal at page 384 of the application book called Joint Application Book said that no complaint was made about the directions given at the trial and dismissed the complaint under rule 4.  That is not true.  Complaint was made about the directions and there was a lengthy - we have put in the references to where the complaint was made.  The second reason for rejecting the complaint was that it was said that it was:

obvious to the jury that they could not be satisfied beyond reasonable doubt that Brendan Fernando contemplated that in carrying out the crime of stealing the car Vester Fernando might kill Ms Hoare.

But, your Honours, that was ‑ ‑ ‑

GAUDRON J:   That was not the case.

MR GAME:   That is what was put to the jury in the directions and it was put to the jury more than once.  That is precisely what was put to them.  More was put to the jury than that but it was put to the jury that they could find Brendan Fernando guilty of murder based on the contemplation by him “that in carrying out the crime of stealing the car Vester Fernando might kill Ms Hoare”, relying on the Jackson statement to which I have just been referring.  In our submission, to say that the jury, as it were, would have – what that is saying is the jury would have rejected the directions that were given to them.  They were invited ‑ ‑ ‑

GAUDRON J:   Except that you have to look at it in the light of the evidence, including the admissions made by the accused.  His admissions were of presence when the deceased was abducted, presence when the deceased was abducted at knife point and when a threat to her life was made if she screamed.  That was his own evidence.

MR GAME:   That is true.

GAUDRON J:   The jury was invited to accept everything that was said in the various statements as true.  On that basis, one is drawing a long bow, is one not, to think that the car really had anything to do with it?

MR GAME:   But, your Honour, what is being put to the jury is that they can rely on anything in the continuum.  That is the only way they could have reasoned.  That is the only way that sense could be made of those directions.  It could be stealing the car, it could be the abduction, it could be the sexual assault or it could be the continuation of the abduction.  So that that first statement involving foresight of the possibility that Mr Vester Fernando would, as it were, kill anyone that came into sight then is said to found the conviction for murder on the basis of common purpose, on the basis of McAuliffe principles, the intent to kill coming from the Jackson statement connected with the car which ultimately had no – which was accepted by the Crown, should not have been left and had no connection with the killing in the relevant sense.  One might reject what I say but that is how it was put and I cannot really do any more than say to your Honours that that is how it was put.

But we do want to put a further submission about this, and it is this.  If I could take your Honours very briefly to McAuliffe 183 CLR 117, one needs to bring in principles of abandonment of criminal purpose in White v Ridley, but I will have to put that to one side for the moment.  If one looks at page 117 towards the bottom of the page:

There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture.  However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose.

In our submission, that is the high point of the common purpose principle.  Our submission is what happens – and there may be a factual issue that presents a problem or there may not, but what is the situation as happens as is asserted in this case that his participation in the joint enterprise is not continuing?  He has walked off and he is not a party to ‑ ‑ ‑

GAUDRON J:   To the murder.

MR GAME:   To the murder, yes.  That is to say – that depends, but do the White v Ridley become one - as it were, feed the White v Ridley principles into common purpose?  What one has here is a continuing enterprise plus foresight founding murder.  In our submission, this case raises a critical question about whether or not – how one applies those principles to a case of a joint enterprise in which the individual is actually taking no further part.  So we submit, both with respect to the sexual assault and the abduction, that this ‑ ‑ ‑

GAUDRON J:   But did not the trial judge leave it clearly on the basis to decide whether he had walked away?

MR GAME:   Not walked away, whether ‑ ‑ ‑

GAUDRON J:   But had withdrawn ‑ ‑ ‑

MR GAME:   No, no, communicated timely.- he put strict White v Ridley principles.  We submit that there is a difficulty in applying strict White v Ridley principles.  I do not have time to put – but what I was going to say ‑ ‑ ‑

GAUDRON J:   We can extend your time appropriately.

MR GAME:   White v Ridley is strictly based on joint crime principles, joint agreement, so that if one examines - White v Ridley founds itself on principles relating to joint enterprise.  It does not pick up, as it were, principles relating to common purpose.  So we submit that there is an area here in which the criminal liability for murder requires critical examination that involves the application of whether or not the principles in White v Ridley and McAuliffe can be applied to this case.  We submit that it is an entirely appropriate vehicle for the purposes of elucidation of those principles, and they are very important principles because they ‑ ‑ ‑

HAYNE J:   But the point is a point about withdrawal in effect.

MR GAME:   Yes, it is in effect.  That is the second point.  The third point concerns the directions given on the failure of the accused to give evidence.  My time is up.  Could I have five minutes?

GAUDRON J:   Your time will be certainly extended.

MR GAME:   The directions given in this case which appear at pages 30 and 31 of the joint application book and were the subject of complaint, if one looks at page 30 line 35 following through to page 31 line 12 beginning with the word “However” through to “remained silent”.  There are four sentences there.

GAUDRON J:   Take the first one.  As a matter of general principle that is correct, is it not, “in circumstances where it would be reasonable to expect”?

MR GAME:   Unless I have misunderstood it, that involves an application of RPS and whether or not a Weissensteiner direction should be given in these circumstances.  The three sentences – “may make it easier for you to accept or draw inferences”.  In the joint judgment in RPS, those very words, as I read it, were disapproved in the joint judgment.  In that case there was – it is in paragraphs ‑ ‑ ‑

GAUDRON J:   We do not think so.  They might have been disapproved in the context of that case.

MR GAME:   It is paragraph ‑ ‑ ‑

GAUDRON J:   That was quite a different case.  That was a case where the appellant said, “I wasn’t there; didn’t happen”.  Your case is where he says, “Well, I was there up until a point”.

MR GAME:   That is right, yes.

GAUDRON J:   Yes, so quite different cases.

MR GAME:   As I understand RPS, there was a partial admission that was part of the material that was relied on against him.

HAYNE J:   For some of the counts in a multi count ‑ ‑ ‑

MR GAME:   But in this case we have a partial admission, we have multi counts and we have the proposition that the Crown Prosecutor is waiting to see what the defence says before he decides what his case is going to be.  So, in our submission, we have – the multi counts was obviously something

that was relied upon in RPS.  The paragraph I was referring to is paragraph 36.

GAUDRON J:   But that does not talk about inferences.

MR GAME:   It is an adverse comment:

that the election not to put forward any denial or contradiction might lead them more readily to accept the evidence given –

In my submission, that is the substance of what is happening in these directions here.  That is the substance of what has been put to the ‑ ‑ ‑

GAUDRON J:   Yes, but in your case the point turns around.  What the Crown is seeking to establish by inference and also by direct evidence was that the accused never withdrew.

MR GAME:   That is true.

GAUDRON J:   The evidence permitted that inference and the accused never gave evidence that he did withdraw, other than in the runaround, so it is quite a different situation.

MR GAME:   It is certainly – I cannot argue with the proposition that it is a different – just how different I suppose is a matter of debate.  Mr Odgers reminds me of course that he has made admissions about the rape which is the multi count problem and he does provide in his runaround and in the notebook conversation a substantial body of the evidence that is actually relied upon against him, not only in respect – across the board not only – it is not as though the question unequivocally stops at the withdrawal question.  I think I have put that as well as I can, if your Honours please.  Those are the three matters that we wish to ventilate.

GAUDRON J:   Thank you, Mr Game.  Mr Blackmore.

MR BLACKMORE:   Thank you, your Honours.  Perhaps just while it is fresh, I might deal with the last point and move backwards through the submissions as long as that is appropriate.  Our submission in relation to the judicial comment is that RPS itself was a case that dealt with direct evidence.  It was a case in relation to a complainant making an allegation.  As the Court makes clear, in those circumstances it is not appropriate to give directions as in Weissensteiner, but expressly the Court in RPS did not overrule Weissensteiner and said that is an appropriate direction in a circumstantial case, which is what we were dealing with here.

The issue that your Honour Justice Gaudron has pointed to of withdrawal was the very issue about which he could have given material evidence and about which there was only scant circumstances in both what he said – there was certainly circumstantial evidence to suggest that he had not withdrawn, but that was his case; that was his whole case.  It is, with respect, a furphy to talk about other counts in this situation because it was conceded during the course of the trial that the admissions made by the applicant were sufficient in themselves to make out the sexual assault case against him.  So in effect all you had in this case was one case of murder.  As is consistent with most cases of murder, it was circumstantial in nature.  It is not very often you have a very direct evidence case in a murder case.  For that reason these were appropriate directions in this case.

The McAuliffe direction, with respect, does not raise the issue that my friend suggests it raises.  The direction that was given by the trial judge – and I may have to go to it – is at page 108 of volume 1 of the joint application book.  The issue about the direction was that - the question is whether or not you withdraw from the joint enterprise, not from the contemplated crime or some anticipated crime.  I mean, an anticipated crime may or may not happen.  It is very unlikely that you will be given the opportunity to withdraw from such a crime.  The point is you must withdraw from the joint enterprise that you have commenced and started on.

If we go to 108 and the totality of it, at about lines 29 through to 45 his Honour sets out the directions in relation to withdrawal and makes it clear that what he had to do was to withdraw from the joint enterprise and he had to make that clear.  He does not say that he has to say anything.  He has to make it expressly clear that that is what he is doing.  Logically that is what he must do.  What, does he enter into a joint enterprise and halfway through he says to himself, “I didn’t want him to do the contemplated crime”, but continues on in the joint enterprise anyway?  That is inconsistent, with respect, to what this Court has said in McAuliffe.  The point is he enters into the joint enterprise, contemplating the possibility of another crime being committed.  He continues in the joint enterprise with that contemplation.  The fact that he seeks to withdraw from the contemplated crime, if anything, is evidence that he in fact contemplated it.  But these directions are quite clear.  They tell the jury that he has to withdraw from the joint enterprise that they commenced.

It is fairly put by the applicant here that those directions did focus initially on the stealing of the car, but also it is noted in the Court of Criminal Appeal judgment at page 383 of the second volume of the joint application book.  That was conceded in the Court of Criminal Appeal that additional directions were given.  At the bottom of page 383 it says:

It was accepted by counsel for the appellant that the other offences of abducting Ms Hoare or sexually assaulting Ms Hoare were properly included in the directions.

So, with respect, there is no miscarriage of justice here in relation to this matter.

GAUDRON J:   Why is that?  Is it because the only substantial issue in the trial was whether or not he withdrew?

MR BLACKMORE:   Yes, and it was clear they commenced together.

GAUDRON J:   And that came about by reason of the invitation to treat everything that had been said as true?

MR BLACKMORE:   Yes.  Clearly they had commenced on a series of offences, if you like, which commenced with the stealing, but the point is that this applicant continued in that joint criminal enterprise with the contemplation that the other partner may use the machete or a knife to at least cause grievous bodily harm.  That was the point.  It was quite clearly in the facts there for the jury and in the end that was the directions that they were given.  They may have ultimately been somewhat confusing because they included the questions about stealing the car, but it does not amount, in our submission, to any sort of substantial miscarriage of justice.  It certainly is not a matter that would warrant leave in this Court.

If I can move on to the warning, in a sense I do not have much to add to the argument that has already been run and put both ways.  The question here was reliability.  That was the real ultimate issue for the jury as to Michael Jackson’s evidence:  could we reliably rely on this evidence?  He said, “I said these things”.  The issue then became - his second part of his statement to the court was, “But I didn’t mean them”.  So the issue was clearly one for the jury to decide.  It must be factored into this equation as well was the fact that he had already given evidence about this statement in another court on oath, which the jury were well aware of, at Dubbo at the Magistrates Court.  In addition to that, there was no contest between the applicant Vester and Michael Jackson that they had in fact met on that evening.  The issue for the jury was solely whether or not those statements could be reliably relied upon.

As to whether or not they were hearsay, they were hearsay but, with respect, the applicant’s case here is that they were bare hearsay and therefore in every case you must give a warning.  With respect, what is the point of putting the words “good reasons” in there?  It must anticipate that on some occasions you will not give a warning.  Here it would have just simply been confusing the jury in terms of what they had to decide.  They had to decide it on whether or not that was a reliable statement and whether they could accept Michael Jackson’s original statement to the police made shortly after the events in the presence of his mother which he had in fact repeated on oath in another court, or whether they accepted, on the other hand, what he now said in court today.

A substantial issue in the case of the applicant Vester was the question of a separate trial.  It is suggested that somehow there ought to be some new rule that applies to video evidence.  In this State all records of interview are now, or ought to be, done on video.  They are occasionally done in notebooks but they are usually rejected.  In any joint trial where there are admissions there will be evidence on video.  There is nothing new about this situation.  The only difference in this particular case is that the video took place as he was proceeding round the streets of Walgett.  With respect, the rules in relation to separate trials are not in dispute.  They have been clearly stated by the High Court in Webb and Hay v The Queen.

GAUDRON J:   The difficulty in one sense with this notion of separate trials in this case – and perhaps Mr Wendler will deal with it in reply – is had separate trials been granted, then of course it may have been possible to so order the trials that Brendan gave direct evidence against Vester.

MR BLACKMORE:   Of course that was an option for the Crown, given his record of interview in effect which ‑ ‑ ‑

GAUDRON J:   Is that relevant to take into consideration on the miscarriage of justice?

MR BLACKMORE:   In our submission, it is because ‑ ‑ ‑

GAUDRON J:   Or on the earlier question whether there should have been separate trials?

MR BLACKMORE:   In our submission, it is.  It is really the second question.  It is not a discretionary question at all.  The question is whether or not, when you look at the totality of the transcript now, whether you can discern a miscarriage of justice having occurred by reason of there being a joint trial.  In our submission, it is not and it is not for these reasons.  The case involving the applicant Vester was – it is a little bit misleading if you just read it from the Court of Criminal Appeal’s judgment, but his case was he went home after meeting with Michael Jackson and Brendan in the street, he went to his sister’s place and, importantly, he stayed there the night.  That was his case.  He said though – and this is the bit that is missing from the Court of Criminal Appeal – that Brendan and Michael Jackson left.  In fact, he is giving himself a quasi alibi of saying, “I’m at home at my sister’s place.  They went somewhere else.  I don’t know where.  I don’t know anything about what they did”.

The issue for the jury then is very clear.  It is a very succinct issue.  “Do we accept what Vester says or do we accept what Brendan in effect says?”  It is very easy for them though to put aside what Brendan says.  They simply say, “We cannot think of this in this case.  Vester’s case is he was at home.  We have to be satisfied on that.  We cannot think about Brendan.”  It is not as if the evidence was somehow intertwined or there were cross admissions.  This was a simple issue of them putting aside Brendan’s evidence and it was not ‑ ‑ ‑

GAUDRON J:   The case against Vester hung in effect on the possession of the tapes.

MR BLACKMORE:   Yes, circumstantial evidence on the possession of tapes and I think a photo and some other material, but yes.

GAUDRON J:   Which connected him with the theft of the car.

MR BLACKMORE:   Yes, so it was a fundamentally different case but, in our submission, not necessarily significantly weaker but fundamentally different.  Given also that Brendan’s case was that he was distancing himself from the crime at the end of it, the jury had to think about that issue as well and you had to balance all of those things when you were thinking about whether or not this was a fair trial.  But my submission is it was an easy job for the jury to be able to put this aside.  I put the submission because it is a question of now looking back and seeing whether there was a miscarriage of justice.  With respect, there is nothing in the transcript from the jury to suggest that they had any difficulty with this concept whatsoever.  Moreover, the judge had directed them in relation to the sexual assault count that they could not convict on that count.

The importance of that is the only evidence which could have convicted him was Brendan’s statements because, as you might recall, he said he held the girl down at one point.  With respect, to accept this proposition is to accept that the jury must have disregarded the directions given by the judge and there is just no indication that they would have or that they were difficult to accept, and that is really the point.  They were not difficult to accept.  They were quite simple to understand in this case and there is no indication at all in the transcript that they would have had any difficulty or they did have any difficulty accepting them.  We cannot simply look at the conviction and say for that reason there was a substantial case against the applicant Vester in any case.

As to the other issues in the applicant Vester’s case, as to sentence we submit that once you get to the stage where you have formed a view that the case falls into the worst category, there really is not much alternative in relation to using the subjective features of the case.  If it is in the worst category, it is there.  There are no such things, so far as I am aware of, as special subjective circumstances.  They are just subjective circumstances.  But the judge did advert to the Fernando Case and the principles therein but decided that in this case the heinousness of the crime warranted the maximum sentence and there was really no alternative, given those facts.

As to the application to ‑ ‑ ‑

GAUDRON J:   You have not dealt with the second acquittal, the failure to direct acquittal.

MR BLACKMORE:   I was just going to come to that last one.  As to that, with respect, we submit that there is really no substance to that.  There was no prejudice to this accused in this application.  What would have been the alternative; that the charge would have existed?  There would not have been any double jeopardy had we received an acquittal at that point.  This other charge could still have been run.  It was a lengthy trial.  He knew before he commenced his evidence what the case he now had to meet was.  The option under 427 of changing the charge was one which was open and in all the circumstances he simply has not been able to point to any prejudice that he suffered other than, of course, the conviction.  That is our submission.  There really is not any prejudice to him in relation to in effect what was a procedural matter.  Unless there is some other aspect.

GAUDRON J:   Thank you, Mr Blackmore.  Yes, Mr Wendler.

MR WENDLER:   Just very briefly two matters.  Your Honour Justice Gaudron indicated to my friend a moment ago that a strong feature in the case against Vester was the possession of tapes.  Can I just indicate this.  Vester Fernando gave evidence on oath and said to the jury that he did have some tapes which were his.  He also said in cross‑examination of the police that the tapes that came from that car had been planted and there was a good basis for that.  It had rained in Walgett that night.  When it rains in Walgett, which is not often, the red earth covers everything ‑ ‑ ‑

GAUDRON J:   Black.

MR WENDLER:   ‑ ‑ ‑ and it sticks to everything.  The mud sticks to everything.

GAUDRON J:   Black earth, is it not?

MR WENDLER:   Yes.  Well, black.  If it is black, it is black.

HAYNE J:   Know your Bench, Mr Wendler.

MR WENDLER:   In any case it sticks to everything, I am sure about that, that part of it.  The case was that these men had gone to the car, broken into the car and then abducted the deceased.  He must have had that material with him but there was no evidence of any mud, blood, anything on any of those tapes.  They were clean, absolutely clean, and this was in circumstances where the case was he had taken this person through all this mud.  The other matter that emerged in the trial was that one of the so‑described tapes that came from the car referred to as the Bon Jovi tape, it was suggested that a portion of the cover of that tape was found in the possession of the applicant, Vester Fernando.

During cross‑examination it became quite clear that a photograph of that particular tape which was found at the place where it was suggested Vester had slept did not have the cover in it at all and the police were saying, well, that other half of the cover was found at the house and their own photograph which was taken at the time they searched the house did not have the cover in it.  So these were matters that came about in relation to the circumstances of the trial.

My friend made a submission it would have been easy for the jury to put aside these circumstances of the interrogation of the co‑accused Brendan Fernando, but here was this tape, the man led around, surrounded by police in the early hours of the morning, being taken through this investigation.  This material had a powerful impact and had a real tendency to undermine the impact of Vester Fernando’s sworn evidence and he could not protect himself against it, but in a separate trial, of course, that evidence could never have been introduced, the video of the co‑accused.  Yes, if the Court pleases.

GAUDRON J:   Yes, thank you, Mr Wendler.  Yes, Mr Game.

MR GAME:   With respect to the McAuliffe directions and withdrawal, as I understood it, the learned Crown was putting that there had to be communication of the foundational crimes of the joint enterprise only, as it were, withdrawal from.  If one looks at page 108 line 45, the last sentence would indicate that there had to be a withdrawal and communication not only from that but also from the incidental crimes, namely from the contemplated crime or crimes.  That is the first point with respect to that.

Secondly, I think my friend said that at one point the car was referred to.  Well, the car is at the heart of the directions at 107 line 1 “agreed to steal the car” and, again, it is at the heart of the directions at 109 line 6 and those are the impugned directions.  So it is not as though the car issue went away, as it were.  With respect to the content of the hearsay direction, I do not think I actually articulated very well precisely what the direction should be.  If I could just refer the Court to page 92 of the written submissions.  The directions in our terms should have been the terms that appear at 3.6 there, those three points.

GAUDRON J:   I am sorry, what ‑ ‑ ‑

MR GAME:   Page 92 of the written submissions – sorry, in the separate book, sorry, your Honour.  Page 92 3.6 (a), (b) and (c) we submit are the things that the jury should have – those are the reasons why the evidence may be unreliable, namely not on oath, not in court, not subject to cross‑examination at the time that it was said, cross‑examination at some later time could only, in effect, as we put it, reduce the dangers concerned with the hearsay.

GAUDRON J:   But that evidence was subsequently given on oath in the Magistrates Court, was it?

MR GAME:   That is true.  That was – but that was cross‑examined in the trial by the Crown Prosecutor that he had said that in the Magistrates Court, that he had said it, yes.

HAYNE J:   But your point, as I understood it, Mr Game, was that the alleged confessional statement – it should have been said to the jury the alleged confessional statement was not on oath, not subject to prosecution for perjury, was not subject to cross‑examination and was not in a court environment.

MR GAME:   That is exactly right, your Honour.

HAYNE J:   Yes.

MR GAME:   Those are our submissions in reply.

GAUDRON J:   Yes, thank you.  The Court will adjourn briefly to consider the course it will take in this matter.

AT 12.21 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.29 AM:

GAUDRON J:   It is convenient to deal first with the case of Brendan Fernando.  In that case, the Court is of the view that given that he admitted participation in the abduction and sexual assault of the deceased in circumstances in which he had heard Vester Fernando threaten to kill her if she screamed, no miscarriage of justice was occasioned either by the directions with respect to joint enterprise and common purpose or with respect to his failure to give evidence.  So far as concerns the last matter, no different conclusion is suggested by RPS v The Queen, [2000] HCA 3, 3 February 2000.

So far as concerns the failure to warn as to the potential unreliability of the prior statement of Michael Jackson, it should be noted that this was not a case in which a witness was asserting the truth of what was said, but instead was asserting its falsity and giving a reason for having given that false account.  It may be taken that where a witness asserts the truth of a potentially unreliable statement it will ordinarily be necessary for a warning to be given.  However, if a witness asserts that it is false, the question of reliability is squarely before the jury and this in itself may constitute good reason for not giving a warning.  In any event, in the circumstances of this case where the jury was well aware that reliability was in issue, the failure to give a warning could not have constituted a miscarriage of justice. 

It follows that we are of the opinion that it is not shown that there was a miscarriage of justice in the case of Brendan Fernando.  It is therefore unnecessary to consider whether the application by Iris Fernando is competent.  Having examined the merits of the application, we think it right to make an order extending the time for the bringing of the application but to refuse special leave to appeal.

So far as concerns Vester Fernando, the trial judge gave clear directions as to the evidence that was and was not admissible against him.  In these circumstances, the failure to direct separate trials occasioned no miscarriage of justice, nor did the trial judge’s failure to direct a verdict of acquittal on the second count.  For the reasons given in relation to Brendan, the failure to give a warning with respect to Michael Jackson’s prior inconsistent statement could not have resulted in a miscarriage of justice.  Further, in our view, no question arises as to sentencing principles such as would attract the grant of special leave to appeal with respect to sentence.  Again, time is extended for the bringing of the application but the application by Vester Fernando is also dismissed.

AT 12.33 PM THE MATTER WAS CONCLUDED