Fisher v The Queen

[1988] HCATrans 279

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B37 of 1986

B e t w e e n -

DUANE EDWIN FISHER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

WILSON J

Fisher

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 18 NOVEMBER 1988, AT ll. 22 AM

(Continued from 22/3/88)

Copyright in the High Court of Australia

C2T 27 / 1 /SDL	55	18/11/88
WILSON J:	We have the appearances.	Have they changed?

MR N.M. COOKE, QC:  Your Honour, there is a change on my side.

Mr Long is occupied elsewhere and he is replaced

by MRS M. McMlJ'RDO; today

WILSON·J:	Yes, thank you.
MR COOKE:	Your Honour, since we were here last, the petition

which was lodged with the Governor in Council
was rejected. It has not been sent to the Court

of Criminal Appeal for review and we would ask

the Court, therefore, to deal with the application
for special leave on the basis of the material

in front of the Court of Criminal Appeal, excluding

the affidavit material which we have filed dealing

with fresh evidence.

Short of attempting to persuade the Court

to depart from the established decisions in CODY

and the earlier one of THE VICTORIAN STEVEDORING

V DIGNAN, where the Full Court examined the

constitutional power, or the constitutional nature

of the appeal which this Court has and the consistent

line of cases since then which have said that

an appeal from a State court is an appeal in

the strict sense and no fresh evidence or new

evidence. is considered by the Court. Short

of persuading the Court to overturn that line

of authorities which, I think, is not appropriate

at the moment, we would have - - -

TOOHEY J: Mr Cooke, is there a document that evidences

the decision not to refer the matter to the Court

of Criminal Appeal?

MR COOKE:  No, Your Honour. We have not got a document.

I think we have just been informed, unless

my learned friend, Mr Nase, has some document.

We were just informed that it was not going to

be referred. But that was some time ago.

WILSON J: That rather concludes your submission, does

i~, Mr Cooke?

MR COOKE:  Yes, Your Honour. We would submit that we

have to deal with it on the basis of the submissions

that we have made. Your Honour, could I just

before I leave it, refer the Court to what was

said by the Court in CARR V REG and try to draw

some analogy from that.

C2T27/2/SDL	56	18/11/88
Fisher

WILSON J:	From CARR's case?
MR COOKE:	Yes, CARR's case.  Your Honour, I have copies - it
is reported in 81 ALR 236. Your Honours might recall
this was an appeal from Tasmania. There was a
question of a police confession which was typed but not signed, but the important part, from our point
of view, was that there was evidence from a taxi-driver
about the identity and the description of the person
that he drove from the bank -  it was a bank hold-up -
the person that he drove from the bank and it did not fit the applicant. In addition to that, he was invited to identify the applicant when he was giving
evidence in committal proceedings and said that.he was not
the man.  So that, Your Honour, we would seek to draw
the analogy between the taxi driver's evidence in
CARR's case and the evidence of Mrs Smith in the
present case as being evidence of identification which, in the words of Justice Gaudron in CARR's case raised a reasonable doubt or would be sufficient
to raise a reasonable doubt in the mind of the jury !iS to whether•applicant in this case was the offender.

Your Honour, the passages that. I v.0uld like to refer the

Court briefly to are the passages in the joint

judgment of Your Honour Mr Justice Wilson and Dawson

at page 239 about - - -

DEANE J: Is this directed to a deficiency in the trial judge's

summing-up, or - - -

MR COOKE:	No, Your Honour, this is directed to the question as
to whether the verdict is unsafe and the test to be applied which we discussed last time and, in the
joint judgment, that passage that I am referring to
Your Honours Justices Wilson and Dawsori, said at line 40 :

(Continued on page 58)

C2T28/l/VH	57	18/11/88
Fisher

MR COOKE (continuing):

It must be said that in more recent times

appellate courts have been fixed with the

responsibility in an appropriate case where

a verdict of a jury is attacked as unsafe

and unsatisfactory of evaluating the relevant evidence in the light of the attack made upon

it in order to determine for itself whether

a jury ought to have been left with a reasonable

doubt as to the guilt of the accused.

And the other passage that I would specifically

draw the Court's attention to is in Justice Gaudron's

decision on the last page of the photocopy at about

line 10. It is the first page where Her'Honour

refers to the evidence of the the taxi-driver and

in the middle of the page refers to:

The evidence of the taxi driver was

sufficient to raise a doubt as to whether

the applicant had committed the offence charged.

And she refers again to the .evidence of the taxi-

driver being sufficient to raise a doubt - - -

WILSON J:	Of course, that observation was made in the context of the central issue in the case which was whether
a dispute4 uncorroborated, oral confession required
a specific warning.

MR COOKE:  A specific warning. Yes. Your Honour, I appreciate

that but the point that I am making is that we

would like to draw some analogy between the

identification evidence of the taxi-driver there

who - it is a bit similar here because Mrs Smith

identified, or described, a person who did not

fit the description of the applicant and was also

invited to identify him at court and said that

it was not the man that she saw. So that there

is some analogy. But, Your Honour, we would submit

a doubt and prevent a jury from being satisfied	that that evidence would be sufficient to raise
beyond a reasonable doubt of the guilt of the
applicant and for that reason we say that the verdict
is unsafe or unsatisfactory.

(Continued on page 59)

C2T29/l/AC	58	18/11/88
Fisher

MR COOKE (continuing):  Your Honour, I should simply just point out

too, with regard to the time scale, the ground on·

which we seek special leave was enunciated and

our application was filed before the application was

filed in MORRIS' case. Our application took some time

to come on for variour reasons, so that the decision

in MORRIS ~as given before this case came on but,we

would submit, that the special leave point which is

enunciated in our affidavit is in fact echoed in the

special leave point on which the Court gave special

leave in MORRIS' case that the Court simply tried to

reconcile the verdict rather than make an independent

assessment of the critical evidence of identification.

Those are the submissions we would make, Your Honours.

WILSON J: Thank you, Mr Cooke. Yes, Mr Nase?

MR NASE:  Yes, may it please the Court, I have prepared an

outline of submissions.

WILSON J: Yes, thank you.

MR NASE:  I do not wish to elaborate paragraph 1 in the

outline of submissions. I wish in relation to

paragraph 2 to simply identify a little more precisely

the passages that I would ask the Court to read without

reading them myself. In RATTEN the passage at page 515

occurs in the right-hand column, approximately half-way

down the page and at the top of the following page,516,

in the left-hand column at line 3.

WILSON J:  It may be worth it if we just take a minute to glance

at them, Mr Nase.

BRENNAN J: Most CLR's only have one column in them?

MR NASE:  Yes, I have managed to mislead myself.

WILSON J: Half-way down on page 515.

MR NASE:  On page 515, yes. A little under half-way down,

this sentence occurs: 

The use of the expression "miscarriage of

justice" in this context has given to the
court of criminal appeal a function of

independent judgment on the facts of the

case which a court of appeal hearing an
appeal from the verdict of a jury ordinarily

does not have.

(Continued on page 60)

C2T30/l/SR	59	18/11/88
Fisher

MR NASE (continuing): Then, if one turns that page to the third line on page 516, the Chief Justice said:

But the Court's decision is founded on the existence of the function of

independent assessment of the evidence

by the court of criminal appeal.

Your Honour Justice Dawson in WHITEHORN -

and I note there is a spelling mistake in 'rwI--lITEHJRN'' in the
outline - at page 686:

WILSON J: That is where His Honour disagrees with the

passage that you have read from Chief Justice Barwick?

· MR NASE:  His Honour disagreed with the notion that it

was a doubt entertained by the Court itself that

was the critical factor. But His Honour did not,

in my submission, dissent from the notion that

a Court of Criminal Appeal, in performing its

task, must approach the evidence in the way

described as an independent assessment of it.

About the middle of page 686, at the very

end of a discussion of Sir Garfield Barwick's

connnents in RATTEN, said:

He went on to point out that a court's

decision upon this ground will be
founded upon its own independent
assessment of the evidence.

Indeed, if one reads generally over the following page, expecially the bottom half of page 687,

Your Honour draws some distinctions between the

positions of an appellate court and the position

of a jury in performing that exercise.

(Continued on page 61)

C2T31/l/JM	60	18/11/88
Fisher

MR NASE (continuing):  Finally, in CHAMBERLAIN, in the

joint judgment of Chief Justice Gibbs and the

present Chief Justice, one of the passages I have

referred the Court to in RATTEN was cited at

page 533 and it is at the very bottom of page 533.

That passage is a little unclear; whether the

Court is citing the passage with an eye to

approving that part of it, but Your Honour Justice Brennan

at page 604 adverts to that requirement in the

final sentence of the first paragraph on page 604,

about point 3 or point 4 from the top of the page,

where Your Honour said:

This is, in the words of Barwick CJ, "a function of independent judgment on the facts of the case which a court of appeal

hearing an appeal from the verdict of a

jury ordinarily does not have."

It is my submission that in MORRIS the Court

emphasized that function of Courts of Criminal

Appeal, not that the Court first formulated that

process.

(Continued on page 62)

C2T32/l/MB	61	18/11/88
Fisher

MR NASE (continuing): If I could move to paragraph 3 in

the outline of submissions. The statement in
paragraph 3 that the process of independently

assessing evidence is something done in the course

of the court's supervisory jurisdiction is derived

from some observations of the present Chief Justice

in MORRIS which occur at page 46Z about the middle

of the page, where His Honour said:

In performing the function which is

discussed in the passage just quoted the
Court of Criminal Appeal is deciding a question

of fact. So much clearly appears from the

judgment of the Court in RASPOR V THE QUEEN

and HOCKING V BELL. When "the court performs

this duty, it is not deciding a question of

law; it is supervising or reviewing the

findings of a tribunal of fact", to use the

words of Dixon Jin DARLING ISLAND STEVEDORING

& LIGHTERAGE CO LTD V JACOBSEN.

The difficulty with MORRIS as I understood it was

that it was the view of the majority that the court

had failed to turn its mind ·to the relevant issues

of fact that were presented before it. It is

submitted that assessing evidence is a process

not a separate test in addition to those established

by this Court in CHAMBERLAIN and the earlier cases

that led up to CHAMBERLAIN, and that in assessing
the evidence courts of criminal appeal must act

on that view of the facts which in its opinion the jury were entitled to take,the jury having

seen and heard the witnesses.

(Continued on page 63)

C2T33/l/AC	62	18/11/88
Fisher

MR NASE (cohtinuingJ:  The purpose of the assessment is

to determine whether the appellate court thinks
that upon the whole of the evidence it was open
to the jury to be satisfied beyond reasonable

doubt that the accused was guilty.

That takes me to the submission that the

members of the Court of Criminal Appeal did_

independently assess the evidence - as that term

is to be understood. I propose, briefly, to

refer to the reasons for judgment of the members
of the c~urt in an effort to make good that submission.

I have prepared detailed submissions on the facts but at this stage I wish to refer only to the

structure of the judgments below.

Mr Justice Matthews agreed with the conclusion

and reasons of Justice de Jersey but added some

comments of his own. His Honour said, at the

top of page 165 of the appeal record - and

Justice Matthew's reasons for judgment appear

from page 164 in the application book. Four

lines from the top of page 165, His Honour said:

The question of identification of

the accused in the company of the deceased

by Peepe and whether his evidence was

sufficient to satisfy a jury of the fact

of the accused's relevant presence beyond

reasonable doubt is a very substantial

question.

His Honour then went on, on the balance of that

page, to consider a number of possible inconsistencies
in Peepe's evidence, finally concluding, at page 166,

about one-third of the way down the page:

The matters to which I have been referring

are such as may well occur in the course

of a trial. Different people observe

different things and times may be confused.

In themselves, these inconsistencies do

not mean a great deal.

Then His Honour went on to consider Mrs Smith's

testimony, saying:

but there was other evidence which tended

to make doubtful the correctness of Peepe's

identification.

And His Honour then went on to make some comments

of his own in addition to those of Justice de Jersey

with whom he agreed referring, at page 4, to

the summing up particularly. Justice de Jersey's

reasons commence at page 175 in the application

book and it is to those that I would now move.

C2T34/1/SDL	63	18/11/88
Fisher

At page 177, His Honour turned to consider the

cogency of Peepe's evidence, saying, a little

under half-way down the page:

The identification evidence of Peepe

might fairly have been regarded by the

jury as of some cogency.

His Honour then considered the question of cogency.

The language used by His Honour -

might fairly have been regarded by the

jury -

should not lead to a conclusion that His Honour

has failed to turn his mind to the evidence

in the sense in which that expression is used

in the cases.

On page 178, His Honour considered some

of the specific criticisms of Peepe's evidence

before turning to the principal submission relied

upon by the applicant. His Honour did that from

a little under half-way down on page 179 where,

in the third line into the second paragraph on

the page, His Honour wrote:

(Continued on page 65)

C2T34/2/SDL	64	18/11/88
Fisher

MR NASE (continuing):

Counsel for the appellant further submitted before us that Peepe's evidence, which was critical to the Crown case, could not reasonably have been accepted by the jury,

because of its major conflict with the

evidence of another more reliable Crown

witness , Yvonne Gaye Smith.

His Honour then, in the balance of his discussion of

Mr Peepe's evidence, considered the two logical

possibilites that were open on the evidence. The

first logical possibility was that Peepe and Smith

had observed the same man. The second logical

possibility open on the evidence is th~t they observed

different men, and His Honour considered both logical

possibilities, concluding at the bottom of page 180:

In summary, the evidence of Mr Peepe and

Mrs Smith could be reconciled. Alternatively,

the jury could have accepted the evidence of inaccurate. Either course was open on the evidence:

His Honour then went on in his judgment to consider

a number of - - -

BRENNAN J: Before you go past there, how was it reconciled?

MR NASE: Well, I have prepared a detailed submission on the

facts - - -

BRENNAN J: Well, perhaps I should wait until you come to that.

MR NASE:  - - - and I was hoping not to have to respond to that

question until I had reached that point.

BRENNAN J: Yes, all right.

DEANE J: Except one other obvious way of reconciling it that

His Honour seems to simply ignore, is that both were

correct as what they saw and the applicant was not
the person who assaulted the lady.	I mean, what

His Honour does,is, he says, "I will reconcile it,"

and brings in two assaults. Would it not be more

obvious to say if it is reconcilable, "There was
only one assault and that was not the applicant,"

just dealing with those two people's evidence.

MR NASE: Well, in my submission, that, in fact, was the process

that His Honour engaged in. The difficulty might

be occasioning the court in the use of the word,

"reconcile." But I would understand that His Honour

considered the two logical possibilities that were

open on the evidence.

DEANE J:  I see the force of that.

C2T35/l/VH	65	18/11/88
Fisher

MR NASE:  And His Honour concluded on both of those possibilities

that it was open to the jury - - -

DEANE J:  What His Honour is saying is, "They can be reconciled

consistently with the jury's verdict',' rather than that,

rilhey can be reconciled looking at the possibilities."

MR NASE:  Yes.

DEANE J: That may be dangerous territory for you, though.

MR NASE: Well, much depends upon one's judgments as the the

facts themselves. His Honour said, after looking at

the various other points that were raised before

the Court of Criminal Appeal at page 188, by way

of conclusion:

In the result, I am not persuaded that the jury was bound to reject the Crown's evidence

on any of the matters to which I have

referred. In my opinion this was not a case

where the jury, properly instructed, must have

had a reasonable doubt a$ to the guilt of the

appellant. The conviction of the appellant

is not properly characterised as unsafe or
dangerous. Further, it was not necessary for the

learned Judge to instruct the jury that it would

be "dangerous and/or unsafe" for them to

convict.

His Honour said:

(Continued on page 67)

C2T35/2/VH	66	18/11/88
Fisher
MR NASE (continuing):

The Crown did in this case present a

sufficient collection of circumstances, each

supported by evidence capable of establishing

the circumstance beyond reasonable doubt, to

enable the jury to infer beyond reasonable

doubt the guilt of the appellant, on the basis

that that was only rational inference which

the circumstances enabled them to draw.

Mr Justice Macrossan presented his own reasons for

judgment which connnence at page 169. At page 170,

approximately 10 lines from the top of that page,

His Honour said:

. In my view, the crux of the Crown case was the evidence of the witness Peepe ..... the

evidence of the witness Johnson ..... and the

further evidence which indicated that the

accused told untruths about his movements
during the course of the evening and night

when the accused met her death.

Now after identifying what His Honour described as

the "crux evidence", His Honour turned at page 171,

again about 8 lines from the top of the page, in the

first full paragraph, connnencing:

In considering the conclusions reasonably

open to the jury, the evidence of Mrs Smith

had a special force or significance and,

depending upon the view taken of it, had a

great potential effect upon the crux evidence.

And then His Honour discussed the impact of her

evidence upon what he identified as "the crux evidence"

and concluded at the bottom of page 172, in the

final paragraph on that page, in these words:

The jury was, then, reasonably entitled

to conclude that it was the accused whom

Mrs Smith saw engaged in assaulting the

deceased at the time she made her observation.

Alternatively, it was open to the jury to

conclude that even if there may have been
a second man observed with the deceased at the

scene, his presence did not deprive of

compelling significance the facts of the

accused's presence at the scene at a time

which was possibly critical.

His Honour then went on to refer to some other factual

matters. And I would not understand that the majority

approached the question in a different way. Then

finally, at page 173, His Honour said, in the final

paragraph on that page:

C2T36/l/SR	67	18/11/88
Fisher

The Crown in its presentation of the case

put the whole circumstances to the jury and did

not confine itself by the giving of any

particulars. My conclusion is that a reasonable

jury would not have been compelled to entertain

a doubt upon the Crown case and that the summing

up sufficiently directed the attention of the jury to the significant parts of the evidence

and the significant conflicts which arose

between the important parts of that evidence.

BRENNAN J: What do you say about Mr Justice Macrossan's

observation at the top of page 172, that:

the jury was entitled to conclude that

Mrs Smith really saw the accused with the

deceased but imperfectly observed him.

MR NASE:  I would, with respect, submit that view is

sustainable upon the material before - - -

BRENNAN J:  On what basis?

(Continued on page 69)

C2T36/2/SR	68	18/11/88
Fisher

MR NASE:	I have a prepared submission which is directed
to answer that very question and it may be, if Your Honour would allow me to defer answering
that question until later.
DEANE J:	Well, can I have a try?
MR NASE:	Yes.

DEANE J: What about on page 173,His Honour's comment:

this observation would not necessarily

apply to those portions of the interview

evidence which involved a claim by the

accused not to have been at the hotel or

in its vicinity.

MR NASE:	I had better read the passage.
DEANE J:	Was that not the very part of the interviews

where the police had no assistance?

MR NASE:  Yes. The police evidence could be looked at in

two ways. There was firstly the initial short

interview with Mitchelson who was a police officer

who could communicate by sign language, and that
was a short interview. There followed a series

of longer interviews in which Mr Villis acted as

the interpreter. The Crown .sought to rely both

on the interview with Mitchelson and upon the

account that emerged through the interviews

conducted with Villis as the source of a false

alibi.

DEANE J:  I see. Well, I had not followed that. I thought

Mr Cooke told us that the false denials were in

the interview when Villis was not present? If that

is wrong then deal with it - - -

MR NASE:  I may have misled Your Honour. I will take

Your Honours to the passages in course but there

was a very short interview with Mr Mitchelson

in which he asked ·her very directly in sign language

whether she knew this woman,showing him a

photograph of the deceased and he replied, in

sign language, no. He then, again in a very short

passage, asked the applicant whether he had been

at the hotel that evening and he again replied

in the negative.	Now, the Crown relied upon those
two denials.	But that did not exhaust the Crown's

reliance upon the evidence with the police.

DEANE J:	Well, then you deal with it in your own course.
MR NASE:	Yes.  If I can finish that because out of the

long interviews with Mr Villis there emerged

what one could call an alibi'and it will be my

C2T37/l/MB	69	18/11/88
Fisher

submission that that alibi could be demonstrated

to be false. The Crown relied both on the contents

of Mr Mitchelson's testimony and upon the whole

of the body of the other interviews. There is

only one comment that I would wish to make before

turning directly to the facts and that is that

there is a difference between saying the Court

of Appeal failed to apply its mind to the relevant

facts and acknowledging the Court did apply its

mind to the relevant facts but registering

disagreement with the results of that assessment.

This, it is submitted, with respect, is a case
in which the applicant disagrees with the results
of the Court's assessment of the evidence rather
than a case in which the Court failed to turn

its mind to the relevant factual questions.

Now, having said that I now come to the bulk

of my prepared submissions that deal with the facts. I wish to take issue initially with the applicant's

argument that Mrs Smith's evidence is necessarily

contradictory of the evidence given by Mr Peepe.

BRENNAN J:  Mr Nase, can I just say for myself I would be

much advantaged to know what, before you attack

individually the pieces of evidence or the
submissions, what are the links in the chain of

proof that the applicant committed the murder?

MR NASE:	The overall case against him.
BRENNAN J:	Well, I do not mind how many links there are

in the chain but I would like to know what

they are?

(Continued on page 71)

C2T37/2/MB	70	18/11/88
Fisher

MR NASE:  I can perhaps summarize, Your Honour. There were a

number of links; he knew the deceased, that is,

h~ Fishe½ knew the deceased. He, Fisher, was

inside the hotel on the night the deceased was

killed. On the evidence of a man called Anderson,

at approximately nine that evening, inside the

hotel, he was standing near where the deceased

was seated. :On Peepe's evidence; that at approximately

11 o'clock Fisher was with the deceased on the

street outside the hotel.

Fisher was linked by other evidence to the scene

of the killing.	The deceased's body was found
some 200 - - -

BRENNAN J:	What other evidence - - -
MR NASE:	All right. On the following day Fisher was found

wearing shoes which, on examination, produced a

footprint of the same size and tread as prints

found at the scene, in the blood, and on the body.

Secondly, scrapings from underneath the shoes showed the presence of blood from both shoes. Tests from the scrapings from one of the shoes disclosed the blood grouping was the same as the deceased and

14 per cent of the community. Additionally, tests

of blood found on a windcheater, which there was
some evidence he had been wearing, disclosed blood
of the same grouping as the deceased and 5 per cent

of the community. Thirdly, the presence of blood

on shoes, trousers and the windcheater - there

was evidence from a man called Johnson, who was

the night watchman at the place where the deceased
and the applicant lived, that on the morning of

the killing Fisher's shoes were soaked in blood

and his trousers were splashed with blood. Blood

was also found on different areas of the windcheater

I have mentioned. This evidence gained additional

significance because the presence of that blood

remained unexplained at the end of the trial.

Four: there was his conduct the following morning.

When it was learned by those who were living at

27 Brook Street - Johnson and Anderson, that the

deceased had been killed and that was learned by

them after a phone call early that morning, Fisher,

on Johnson's evidence showed signs of agitation,

he was walking up and down. He asked who was killed

and he was told Marj - a reference to the deceased.

The agitation, then secondly - he then immediately

went out to the back, cleaned blood from his shoes

with a brush and, on Johnson's evidence also removed

blood from his trousers. Then fifthly, his conduct

when first questioned by the police on the afternoon

of 23 June - that is later that same afternoon -

and the reference to Detective Mitchelson's evidence.

His initial reaction was to deny knowing the deceased

C2T38/l/AC	71	18/11/88
Fisher

and to deny having been at the hotel at all on

the foregoing evening. Then sixthly, and finally,

in a series of interviews with the police he set

up what the Crown would argue was a false account

of his movements. His account to the police that

emerged through the evidence of Villis was that

he left the hotel before 6.42P~ and that time was

fixed by the time the call was received by an

ambulance beare~ and did not return again to it;

that he fled from the vicinity of the hotel, he

caught a bus into the city, he obtained the shoes from a man in King George Park, he then went over

to another part of the city and, ultimately, returned

home to Brook Street in a taxi.

Now, the Crown would assert that was false

if one accepted a body of evidence from the bar

manager, Sorrenson, the barman, Harris, the man

Johnson and another man Anderson and, of course,

Peepe that he was inside the hotel after 6.42 pm.

Now that is the case that was presented against

him.

(Continued on page 73)

C2T38/2/AC	72	18/11/88
Fisher

TOOHEY J:	Could I just ask you a question, Mr Nase, and I know that you are about to come to the
facts in more detail, but I do not want to lose sight of this? You have made reference to blood on the applicant's trousersthe morning after the killing. Was there evidence as to
what the applicant was wearing on the night?
In particular, was there evidence that he was wearing long trousers, as opposed to shorts?
MR NASE:	I had thought there was, but I cannot identify

it at the evidence at the moment.

TOOHEY J:  I ask you this for the fairly obvious reason

that Mrs Smith appears to be quite adamant

that the man she saw was wearing shorts.

MR NASE:	I am aware of that point.
TOOHEY J:	And if she is right, and if the applicant

was wearing long trousers, then it could hardly

have been the applicant whom she saw.

MR NASE:  I am aware of that submission. My understanding

of the evidence is that it was fairly clearly

established that he was wearing the grey trousers that he was still wearing on the afternoon of the

following day when the police came across him.

I apologize for not having the specific references, but I could supply them to the Court afterwards.

TOOHEY J: Certainly the way in which you presented the

submission a moment or two ago assumed that

the trousers which had blood on them on the

morning after the killing were trousers worn by

the applicant on the night in question.

MR NASE:  Yes, it does.

The case against the applicant was a

circumstantial case. In all circumstantial

cases there are two stages of proof. The

first stage is proof of the primary facts.

The second stage is the consideration of

whether the proved primary facts support

the inference of guilt to the exclusion of any reasonable hypothesis consistent with innocence.

The applicant, in arguing Mrs Smith's

evidence a contradictory of Mr Peepe's

identification of the applicant outside the

hotel, in my respectful submission, fails

to distinguish between these two basic
stages of proof. In my submission it was

open to the jury to anlayse the evidence in

two ways corresponding to the two stages of

proof. A jury could accordingly treat

C2T39/l/JM	73	18/11/88
Fisher

Mrs Smith's evidence as relevant to, and

only relevant to proof of the applicant's

presence outside the hotel shortly before

11 pm in the company of the deceased.

That is Mr Peepe's evidence.

This involves an assumption that the

man Peepe noticed and the man Mrs Smith saw was the same man. On the other hand a jury

could regard the evidence of both witnesses

as persuasive and cogent.

That is Mr Peepe and Mrs Smith:

If a jury reach that position they could

reasonably conclude that Mr Peepe and

Mrs Smith had seen different men. On

this approach the ultimate relevance of

Mrs Smith's observations would be treated

as lying with the second stage of proof,

that is a consideration.of whether the
inference of guilt has been made out to
the exclusion of any hypothesis consistent
with innocence and I propose to consider

the evidence at each stage of proof.

Considering Mrs Smith's evidence at

the first stage of proof entails a direct

comparison of the evidence given by the

witnesses Peepe and Smith. On Peepe's

evidenc~ he had been at the hotel for a
considerable period of time during which

he had noticed the appellant. At the

committal he said he noticed the appellant

was not talking or conversing with others

in the bar.

Page 31, that is a reference to the application book:

near the toilets.

He saw the deceased sitting at a table

That is page 17, line 59:

This observation is confirmed by the

bar manager Sorenson -

at page 326, lines 10 to 20 of the appeal book

before the Court of Criminal Appeal -

and Anderson, who noticed the appellant was

standing right beside where the deceased was seated, but not apparently with her.

That is found at page 76, lines 30 to 33.

C2T39/l/JM	74	18/11/88
Fisher

MR NASE· (continuing):  When Peepe saw the appellant and

the deceased outside the hotel he was only some

eight to ten feet away from them. Page 21, line 6.

The lighting outside the hotel, where Peepe saw them,

was good. Page 20, line 2.

One of the more important features of

Peepe's evidence is that although he was at the

hotel in the public bar for a considerable period of time, he did not consume any alcoholic drinks.

He was working at the hotel as an entertainer and was, he said, aware of the people around

him. Peepe, in fact, spontaneously identified

a photograph of the appellant a few days after

the incident. The evidence relating to that

is found at page 34, lines 22 to 60 and, in the

appeal book before the Court of Criminal Appeal,

from page 345, lines 22 to 60 - that is the same

reference.

On its face, therefore, Peepe's evidence

of identification was reasonably cogent. He

had observed the applicant, from time to time,
over several hours inside the hotel. Outside

the hotel he had a good clear view of the applicant

from only about eight feet in good light. He

was an independent witness and there was no question

of his honesty. Peepe's evidence that the applicant

was in the public bar after 6.42 pm was confirmed

by the bar manager, Sorrenson, the barman, Harris,

by Johnson, who was the night watchman at

27 Brook Street, where the deceased and the applicant

lived, and by Anderson, who was another resident

of 27 Brook Street, and knew both Fisher and

the deceased.

Harris said Fisher was in the public bar

between 5 pm and 8 pm - that appears at page 85.

At approximately 8 pm, Harris moved from serving

in the public bar to serving in a private bar

elsewhere in the hotel.

TOOHEY J:  Mr Nase, these page references you are giving

us at the moment are not to the appeal book,

are they?

MR NASE:	Yes, they are, Your Honour.
TOOHEY J:	Are they?
BRENNAN·J:	Some of them are to the Court of Criminal

Appeal appeal book.

MR NASE:	The references I have been g1v1ng have been
to the application book except where I have specifically said that they are found in the
record that - - -

C2T40/1 /SDL	75	18/11/88
Fisher

TOOHEY J: Is Harris' evidence - it is not included in the

appeal book, is it?

MR NASE:	Yes, it is summarized - it is in the summing
up, Your Honour.
TOOHEY J:	I see.
BRENNAN J:	We only have Peepe and Smith, have we not?
MR NASE:	What occurred in the preparation of the appeal
book was that the applicant was content to accept
the summaries of evidence in the summing up.
TOOHEY J:	By "summaries", do you mean direct quotations

that are from the evidence, or paraphrases?

MR NASE:	There are some direct quotations, but they are
largely paraphrases.
TOOHEY J:	I raised this at the point where we mentioned

Harris. Where are we to find this summary of

Harris' evidence?

MR NASE:	There is a summary of Harris' evidence at page 85. Certainly the passage that I just referred to is at
page 85.  I could supply the Court to all of
the references that are found in the appeal book
before the Court of Criminal Appeal if the Court
wishes me to do that - at no trouble. But there
is a summary of Mr Harris' evidence in the trial
judge's charge to the jury.
BRENNAN J:	For my part, if it would be necessary to refer

to the evidence in order to establish the links

in the chain of proof, I would desire to have

access to the original evidence.

MR NASE:  Yes.

TOOHEY J: There is a master transcript available, according

t~ the appeal book.

MR NASE:  Yes, there is.

TOOHEY J: That does not give us page references, of

course.

MR NASE:  No. The difficulty stems - it is not really

of the respondent's doing; the applicant, in
preparing the appeal book, and being desirous

of minimizing the volume of material in the appeal

book, as I understand it, accepted the summaries

of evidence that appeared in the trial judge's

summing up instead of insisting upon or instead

of including the actual transcript of evidence

given by those witnesses.

C2T40/2/SDL	76	18/11/88
Fisher

BRENNAN J:  That may be a very economical way of going

about it but if you have got particular pages

which you wish to refer t~ then could we have

copies of them.

MR NASE:  That can be done but not at the moment.

BRENNAN J: No, well, that is a practical problem that you

can think about for next time.

MR NASE:	Yes.
BRENNAN J:	I gather that there is both a Court of Criminal Appeal.appeal book plus a master copy of evidence.
MR NASE:	The master copy of evidence is the appeal book
that was prepared for the Court of Criminal Appeal
and, of course, I have a copy that I obtained when
the appeal was argued before the Court of Criminal
Appeal. As I have said, when it came to preparing
the application book for this Court, the applicant,
instead of putting in the application book the
full transcript of evidence accepted the summaries
of evidence in the summing JP as being all that was necessary to place the facts before the Court.
And, of course, perhaps I have fallen into the
trap of relying upon those summaries.

It is not a trap in the sense that I have

all of the references to the appeal book itself

but the Court does not have - - -

BRENNAN J:  Are the Court of Criminal Appeal appeal books

physically present in this Court's registry?

MR NASE:	There is one copy, as I understand it, physically
present in the registry.
BRENNAN J:	And the exhibits?
MR NASE:	And the exhibits are physically present in the
registry of this Court. All the material is present
in the registry of this Court.  The difficulty
i~ that the full transcripts of evidence are not included in the application book.
BRENNAN J:	You have only referred to a couple of pages so far

from· the Court of Criminal Appeal, have you not?

MR NASE:	Yes, I have when the material was not referred
to by the trial judge in the course of his summing
up. In other words, those references are additional
to any material that appears in the application
book.  I suppose one has a choice of either stopping
now or continuing.

C2T41 /1 /ND	77	18/11/88
Fisher

WILSON J:  I think you should carry on with your submission,

Mr Nase. If the Court should require any further

material it will make that known to you.

MR NASE:	I can certainly supply all the references that
I have made to the transcript.
BRENNAN J:	That is all that 1s necessary.

MR NASE:  But if I could continue: Mr Harris, and this appears

in a summary of his evidence in the course of the

summing up, which, as I understand it, was accepted

by the applicant as a satisfactory medium of

discussion before this Court - but this particular

summary appears at page 85. I did not propose

to read the passages. Harris said Fisher was in

• the public bar between 5 and 8 pm and that appears in the summary at page 85 of the application book.

Harris was not saying that he was under his observation for the whole period of time but that

from time to time he saw him over that period of
time.

I had said that at approximately eight Harris

moved from serving in the public bar to a private

bar elsewhere in the hotel and he did not return

to the public bar until later. That also appears

on page 85. Mr Sorensen, who was the bar manager,

said he recalled seeing Fisher in the public bar.

He said he actually served Fisher at approximately 8pm.

Although he was not entirely certain of the time

he described it as, I think, half-way through the

evening, or words to that effect.

(Continuing on page 79)

C2T41/2/ND	78	18/11/88
Fisher

MR NASE (continuing):  Now, there is a sunnnary at page 86, but

in addition I have the reference to the transcript,

page 323, line 23 because the summary is not as full

as the evidence there. Johnson said he saw Fisher

in the public bar:

Roughly around 8 o'clock.

That appears at page 86, line 12. And my recollection

is that there is a quotation that appears in the

summing up, that is Johnson said he saw

Fisher:

Roughly around 8 o'clock.

Anderson said he saw Fisher in the public bar at

about 9 o'clock standing near the toilets. He also

said the deceased was sitting at a table nearby,

page 76, lines 30 to 32 in the summing up. He had

seen Fisher earlier that night at the hotel on two

other occasions and that appears at page 76 in a

passage above the earlier reference.

In my submission, collectively the testimony

from these four witnesses confirmed Peepe's identification

of Fisher inside the hotel. Within the context of the

trial the evidentiary significance of their evidence

was twofold. Firstly, when Peepe said the man he

saw with the deceased outside the hotel was the same man

he had seen inside the hotel, his identification of

Fisher as the man outside the hotel was strengthened by

this evidence which tended to confirm not only the

correctness of his identification of Fisher as the man

he saw inside the hotel, but also the correctness of
his identification outside the hotel, on the assumption
that it would be unlikely that Peepe would identify two

different men,having had the applicant under his

observation from time to time over a number of hours.

Secondly, the evidence that Fisher was inside the

hotel after 6.42 pm was destructive of Fisher's alibi.

Hi~ account of his movements after 6.42, but I will turn
to .that. later.	Now I did propose to refer, but only

briefly, to some of the criticisms of Mr Peepe's evidence.

There was cross-examination about his recollection of

his motivation for returning to his vehicle to unload

his equipment. In my submission, this does not

appear to touch the substance of his observations.

Secondly, he was questioned concerning his description

of the applicant's hair and I think the evidence can

only be summarized by reference to the transcript.	In
his evidence in-chief, Peepe said the description he
gave to the police was that the man had "sort of afro
curly hair", page 23, line 39. In his statement to
the police that was given shortly after - - -

C2T42/l/SR	79	18/11/88
Fisher

TOOHEY J:  I think it is page 21, Mr Nase.

MR NASE: Yes, Your Honour is right, I think. Yes, I stand

corrected. In his statement to the police he said

the mans hair was, that is the man that he saw outside

the hotel was "black curly hair being as long as

mine outwards, but not an afro style". And I have

that at page 33, lines 5 to 7. At the cormnittal,

Peepe apparently described Fisher as having "afro

haii.r:' page 32, line 30. It would seem, in my

submission, the jury could regard the matter as

involving the interpretation of hairstyles.

(Continued on page 81)

C2T42/2/SR	80	18/11/88
Fisher

MR NASE (continuing):  The interpretation Peepe gave in

evidence under cross-examination appears at

page 34 line 32. Peepe appeared to accept the

hair. It could be described as Afro curly; page 32

line 36. In dealing with that criticism if one

accepts that in fact he saw Fisher inside the hotel that criticism loses much of its force.

There is also the circumstance that he had

already at that stage seen a photograph, that

is, he had already identified a photograph of

Fisher which presumably he would have somewhere

before him when the statement was being made. So,

in my submission, although a criticism, is by

no means a decisive criticism of his evidence.

It was said that his evidence was inconsistent

with that given by the man, Harris, who worked

in the hotel. In my submission, the only

difference between Peepe's evidence and that

given by Harris related to estimates of time.

Peepe's evidence was that he loaded or unloaded

the van on three separate occasions. Now, that

evidence is found at page 18 .· In the course of

the sunnning up His Honour read the relevant

passages of Peepe's evidence to the jury instead

of sunnnarizing them. That account is found at

page 18, over the bulk of that page. He said

he stopped playing at 10.30. At that time the

deceased was still at a table, still sitting

at a table. He said the next 15 to 20 minutes

he spent loading his equipment on his van which
was outside the hotel.

He then went back inside and after a period

of time decided to remain at the hotel to watch
some friends of his playing in a band at the

lounge. He accordingly went out to unload the

van, he said at 11. And the unloading, he said,

would occupy about 10 or 15 minutes.	He then
remained for quite some time at the hotel
liatening to the band.	When he finally decided

to leave Harris helped him load his equipment

on ·to the van.

(Continued on page 82)

C2T43/l/MB	81	18/11/88
Fisher

MR NASE (continuing): Now, Harris' evidence confirms that

sequence of events and there is a summary of

Harris' evidence at page 85, as I have said. The

difference between them related to the times.

Mr Peepe said that when he finally loaded the van and left it was, at the very least, 11.30, or a

quarter to twelve. Mr Harris' estimate of tine is nuch

nearer to 11 o'clock.	So that was a matter for
the jury.	Now, if I could leave Mr Peepe and turn
to Mrs Smith.	She was also an independent witness

whose honesty was not subjected to criticism. In

the circumstances of her identification, however,

there were a number of possible sources of error

and I will attempt to summarize those.

Firstly, she did not know the applicant and had never seen him before. Secondly, she was a passenger

in a pssing motor vehicle travelling at 50 kilometres per he

page 36 line 60. Thirdly, she first saw the two

figures when the car was only 50 feet away from the

figures; page 39 line 34. Fourthly, she first

noticed the woman, that is, the deceased, whose

clothing she was able to describe.	The words she
used in evidence were:

That's what I thought stood out first.

That is, the woman. That appears at page 36 line 13.

Fifthly, she was observing a piece of activity.	A
male Aboriginal was pulling or pushing a female.

Presumably, the male may have been crouched in the

pulling exercise. Sixthly, it was at night. Even

though there was lighting, the possibility of distortion

would have to be accepted as a real one given the·

other circumstances of her identification.

(Continued on page 83)

C2T44/l/VH	82	18/11/88
Fisher

MR NASE (continuing): Seventhly, there was some uncertainty

in her evidence. At first she thought the male

had a beard but then when she thought about it

she thought "maybe he might not have" - page 36

about line 44. There was also some uncertainty

on her part as to exactly where she had seen the

two figures when asked to look at exhibit 61,

althought it may not be entirely fair to rely upon

that uncertainty since the photograph was of the

hotel and did not include the laneway.

Now, Mrs Smith excluded Fisher as the man

she had seen on the basis of gross physical

characteristics. She first thought Fisher looked

too young - page 38 line 48. She had described

the male aboriginal as "30, maybe a bit older" -

•	page 36 line 19, but she excluded her initial
reaction upon seeing Fisher at the court house at Ipswich, was that she first thought he looked
too young. She then went on when pressed with
further reasons to sax, at page 38 line 56, that Fisher's hair looked 'too fuzzy - too thick."

And then she said at page 39 line 27, Fisher was

not "big enough in the stomach" - those were all

matters of degree. Her immediate reaction when

she saw Fisher was to exclude him because he

looked too young. That is exactly something the

jury could assess. They had Fisher before them,

they had, in addtion, photographs of Fisher and,
of course, the Court has photographs of Fisher.

BRENNAN J:	What exhibits are they?
MR NASE:	There is a series of photographs from about

Exhibit 38 to about Exhibit 44, I am told.

She first thought that the person she saw had

a beard; it was night time; she was in a passing

car - she must have had a very short period of

time with which to observe him.

(Continued on page 84)

C2T45/l/AC	83	18/11/88
Fisher

MR NASE (continuing):  Her observation is, in rejecting

Fisher as the man she had seen, is that she first thought he looked too young. If she is

describing differences in degree, that is his
youthfulness, the length of his hair, the size

of his stomach, there was, in my submission, a

greater possibility of mistake on her part.

The jury were also entitled to consider

the other evidence in the case which included
all of the evidence that I have referred to

in summarizing the case relating to the

prints which correspondend to those found at

the scene, the blood analysis and so forth.	I
will not repeat all of those matters.

The submission is shortly that it was open

for the jury to accept Peepe's evidence; Fisher
was outside the hotel with the deceased after

closing time, and to conclude Mrs Smith was

mistaken in rejecting Fisher as the man she saw

apparently pulling or pushing the deceased.

That completes my submi-s.sion and it is

a matter really of judgment. I do not know that

one can by argument endeavour to advance a

case one way or the other. Ultimately those

sorts of assessment depend upon judgment borne

out of experience.

BRENNAN J:  But if there was a second man involved, of

the kind described by Mrs Smith, is there sufficient

evidence to link the applicant with the offence of

murder by him?

MR NASE:  I submit so.

BRENNAN J: In other words - let me put this to you.

MR NASE:  I understand the point, I think.

BRENNAN J:  _ He may have been there; he may have seen

a murder; he may even have been in the company of

the murderer and he may have had blood on him;

and·he may have given a false alibi. But given

the fact that there is a second man there, if

that is a fact, is the rest of the evidence

sufficient to support a conviction of murder

of him.

(Continued on page 85)

C2T46/l/JM	84	18/11/88
Fisher

MR NASE:  I submit so, but, again, once one exposes

the evidence it is largely a matter of judgment

as to whether one considers that - - -

DAWSON J:  It is a matter of what you reject and

what you accept really, is it not?

MR NASE:	Yes.
TOOHEY J:	You put it, Mr Nase, in terms of the jury

could accept Peepe's evidence, or they could

accept Mrs Smith's evidence.

MR NASE:	I have not completed by submission yet.
TOOHEY J:	Could they not accept both?

MR NASE:  I was about to move on to that area. I have

so far been considering the evidence at the

first stage of proof, that is in determining

whether one could accept Mr Peepe's evidence that he saw Fisher with the deceased outside

the hotel at that approximate time and,

in my submission, a jury, for the reasons

that I have endeavoured to put before the Court,
could do that.

Of course, if the jury was inclined to accept that both witnesses were plausible and

cogent, then the assumption that they saw

the same man might disappear and one would be

left with the conclusion that two different men

had been seen with the deceased. In my submission,

that is a possible approach, to say that more than

one person was on the ·footpath and, as I understand

proposition and ultimately reached the conclusion

the approach by the members of the Court of Criminal

that was castigated by~ Coo~. that on that view
of the facts there was sufficient evidence to

sustain the conviction.

Now, if a jury adopted the analysis of the

evidence, that is that both Mr Peepe and Mrs Smith's

evidence of identification was plausible and cogent,

there is nothing contradictory in Mrs Smith's evidence
of Mr Peepe' s evidence an.a··: a jury could reasonably

conclude that Fisher was outside the hotel with the

deceased in the circumstances described by Mr Peepe.

(Continued on page 86)

C2T47/l/JM	85	18/11/88
Fisher

MR NASE (continuing):  Now, if I could attempt to deal with

the point-that the Court has raised with me.

Firstly, I wish to submit that it would also

be open to the jury to conclude that Mrs Smith's

observation occurred before Mr Peepe's. Peepe

said he finished work at 10.30 at the public

bar. At that time he said the deceased was still

at a table in the public bar.	He started loading
his equipment into his van.	Mr Sorrenson, the

bar manager, said he asked the deceased to leave

the car at 10.45 - that appears at page 46 in

Sorrenson's summary. She was then the last

patron in the bar. Mrs Smith said she saw the

deceased and a male at approximately 10.45 -

that is at page 35 line 50.

Significantly that estimate on her part

was not challenged in any way by cross-examination.

Peepe said after loading the van, an exercise which would take about 15 to 20 minutes, he returned to the hotel and then after deciding to stay longer
at the hotel to watch a band he went and unloaded
the van at about 11 and it was then that he said

he saw the deceased and Fisher outside the hotel.

While it is true Mr Peepe's estimates of time do

not correspond with Mr Harris', in my submission,
the jury would be entitled to prefer those given
by Mr Peepe. If the jury accepted those estimates
of times the jury could infer that there was an

earlier incident of some sort between the deceased

and some other man that resulted in her returning

to the vicinity of the hotel where she then came

into contact with Fisher.

TOOHEY J:  You just left, perhaps, one element of account

when you say that, Mr Nase. The incident that

Mrs Smith described was an incident of some

violence to use her words. She said to her

husband, "We had better help this lady, she is

getting hurt." So you would have to assume a

situation in which the deceased had been attacked

by '.someone and returned to the vicinity of the

hotel, had been observed by Peepe, who apparently

saw:no indication of injury, at least he spoke

of none.

MR NASE:  I think she had her back to him?

(Continued on page 87)

C2T48/l/MB	86	18/11/88
Fisher

TOOHEY J:	I beg your pardon?
MR NASE:	She may have had her back to him - my recollection is -

but be that as it may - - -

TOOHEY J: Well, let me put it to you another way: was there

anything in Peepe's evidence to suggest that when he

saw the deceased she bore any signs of injury?

MR NASE:  No, the answer is no. Mrs Smith did not describe any blows.

She described a pulling, or pushing or dragging that

was apparently being done with some force.

BRENNAN J:  The hypothesis, then, is that Mrs Smith saw this event

at the entrance to the laneway where the woman was

ultimately found to be murdered?

MR NASE:	Yes.
BRENNAN J:	The woman then returned to outside the hotel where she was observed by Peepe and then went back to the laneway where she was murdered.

MR NASE: Well, went back with Fisher.

BRENNAN J: Well, yes, on the Crown case, that would be so.

MR NASE:  They both resided at this placed called Brook Street

and the laneway was one way of getting to Brook Street.

One could either. r.· go around or one could use the

laneway to get to Brook Street which was not very far

at all from the hotel. I did mean to photocopy a

street directory to show the proximity of

Brook Street to the hotel, but I have lost it

unfortunately. But Brook Street was very close to the

hotel and the laneway was one of two ways of reaching

Brook Street.

DAWSON J:	The defence cas.eis that _it was the man that Mrs Smith saw, which was not the accused, who was responsible for
her death, was it?
MR NASE:	Yes~

(Continued on page 88)

C2T49/l/VH	87	18/11/88
Fisher

DAWSON J: And that was put to the jury by the defence in

their address?

MR NASE:  I was not at the trial but I would say, yes. As

the defence case was summarized by the learned judge
the case was that the Crown case had not been proved,

as well as putting up the alternative theory.

DAWSON J:  Yes, that appears by inference from page 146.

MR NASE:  The defence case was put at page 146. I would

submit that His Honour was clearly putting that to them

as the defence case, especially from about line 18

on that page:

The defence points to the positive rejection

by her of the accused as the person she saw. And His Honour's references to the importance of time

in the following paragraph. Time only assumes

importance if there are two - - -

DAWSON J:  So that you must conclude that the jury rejected that

submission?

MR NASE: In my submission, yes. Undoubtedly the jury

rejected the submission as did the Court of Criminal

Appeal in their assessment of the evidence. The

Court of Criminal Appeal specifically and carefully

adverted to the possibility, and I perhaps should put

it stronger than that, that there were in fact two

men, nevertheless the Court concluded that there was

sufficient evidence to support the conviction; that

is that it was open to the jury to convict the

applicant of murder to the standard of beyond a

reasonable doubt.

(Continued on page 89)

C2T50/l/SR	88	18/11/88
Fisher

WILSON J:  But it was consistent with the verdict that

the jury accepted Mrs Smith's evidence; they may not have rejected it in its entirety, but

merely that she was mistaken in her identification,

was it?

MR NASE:  The court considered both courses were reasonably

open to the jury. Their verdict, of course,

is inscrutable, but the court below considered

that the jury, acting reasonably, could have

concluded either that Mrs Smith was mistaken in

her identification or that if that view of the

facts was not rejected, that nevertheless

there remains a sufficient circumstantial case
against the applicant to support the conviction.

The court specifically adverted to both of

those alternative possibilities upon the

evidence.

I had intended to conclude by

sunnnarizing the case and in fact I did that in

answer to a question by Your Honour Justice Brennan

when you asked me to supply the links. The submission

is that a jury would be entitled, against that

whole body of evidence, to infer that Fisher
was responsible for the death of the deceased woman, and that

is a matter of judgment. I do not know that one

can make that a more plausible conclusion other than

by exposing the facts upon which the conclusion

is based.

I did want to advert more specifically to the police evidence. Mr Mitchel son's evidence appears

in the sunnning up at page 136 to 139, and if I

could refer to page 136, at the very bottom, there

is an extract from Inspector Mitchelson's evidence.

Reading from the top of page 137, the accused

was asked:

Have you been told why you are here?---No,

I can't understand them.

The police are looking into the death of

Marjorie Chevalley.	They think you can
help them?---Who?

The police are looking into the death of

Marjorie Chevalley?

(Continued on page 90)

C2T51/l/JM	89	18/11/88
Fisher

MR NASE (continuing):

11 Who? 11

He finger-spelt it and again he said:

11 Who? 11 with an expression. And then at that

stage Mitchelson showed him the photograph

which is an exhibit. Mitchelson said that

the accused looked at it - he had a long look

at it.	He looked back at me and Mitchelson
said -

In sign language -

"Do you know her?"

Fisher -

had another look at the photograph and he

said:

II

"No.

and shook his head and then he -

Mitchelson -

said -

1n sign language -

"Have you ever seen her before? 11

and he -

Fisher -

said:

"No. 11

And the point is that although communication was

difficult with Fisher, that communication is

extremely basic, it involves showing a photograph
of someone that he knew well and he later identified
the same photograph in the course of the interviews

with Mr Villis.

BRENNAN J: Is this the photograph of the deceased 1n an

uninjured condition?

MR NASE:	I think she had black eyes; I have not seen the
photograph but it is an exhibit.

BRENNAN J:	Do	we know which one?
C2T52/l/ND	90	18/11/88
Fisher
MR NASE:	1 am told it was an earlier photograph.	She

apparently had black eyes in it and some bruising.

I have not seen the photograph.

BRENNAN J:  1 find that rather difficult to deal with. In

other words, if one is attempting to evaluate what	is meant by 11 No 11 and the photograph is one which
displays injuries to the deceased person, one would
like to know whether or not - - -

MR NASE:	The photograph was not one that was taken after
death. It was a photograph taken before death.

BRENNAN J: Is it possible to identify by exhibit number

what the photograph is?

MR NASE:	My friends are endeavouring to assist the Court.
BRENNAN J:	Very well.

TOOHEY J: It might be 155, Mr Nase. 1 only say that because

it is described as "A photo of M. Chevalley

(identification)".

(Continuing on page 92)

C2T52/2/ND	91	18/11/88
Fisher

MR NASE:  Yes.

TOOHEY J: It is certainly not with the group of photographs

taken of the deceased after the death.

MR NASE: It was tendered as exhibit 155.

BRENNAN J:	Thank you.
MR NASE:	The same photograph, as I understand the evidence,

was identified by him in the course of the interviews

with Mr Villis, the interpreter. Now, the Crown

relied upon Mitchelson's evidence as his first reaction when questioned by the police but the Crown also relied on a series of taped interviews

with an interpreter, Mr Villis,and reference to

that reliance by the Crown is found at page 545,

lines 40 to 50 in His Honour's summing up.

WILSON J: That is page 136 in the appeal book.

MR NASE: Yes. I am sorry, yes it is, it is page 136 lines 40

to 50. Mr Villis was a senior welfare worker with

the Queensland Deaf Societ~ That appears at page 107

of the transcript before the Court of Criminal

Appeal. He had known Fisher at least five years

and at page 110 he said that he had acted for him

in many roles over a period of five years. Mr Villis

also assisted the Public Defender's Office between

committal and trial. That appears at page 107.

He said that Fisher, at page 109, was:

"at least of average intelligence"

and at pages 115 and 116, Mr Villis said, he did

not consider Fisher misunderstood the questions

interpreted for him by Villis although he described in the act of communication.

(Continued on page 93)

C2T53/l/AC	92	18/11/88
Fisher

MR NASE (continuing):  At page 117, Mr Villis said he

interRreted for the assistance of the Public

Defenaer's Office, interviews with Fisher on

approximately ten occasions between committal

and trial. On one occasion there was a video taped

reconstruction of the police interviews and other

experts on communication were present. At page 118,

he went on -in cross-examination it was adduced

from him by counsel for Fisher that, in those

interviews an account of events was developed

out of the work done 1t the Public Defender's office

which involved the original account and the records

of interview being added to and the time sequence

being altered and to some extent an homogenous

account was produced in the office and it was allowed

to be placed before the jury through ~illis by

cross-examination that did not draw an objection by

the Crown prosecutor.

Now, in this way, a relatively homogenous account

of his movements was developed and that account appears finally at pages 190 to 192 of the original transcript

before the Court of Criminal Appeal. And if I can

simply summarize it. he said that he was at the hotel

in the early evening or late afternoon; that he left

with someone called Mason; and there was an assault on

a man called Addie not far from the hotel; that he then

ran away and caught a bus, a New Farm bus to

King George Square, which is a place in the city.
He there assaulted a second old man and stole shoes

from him; that he went to the mall in the city where

he purchased some drugs; he 'then caught a ferry to

Kangaroo Point. Between Kangaroo Point and Brook Street

he went with a man to a hotel, purchased a carton of

take-away beer, had a few more smokes, finished the

carton of beer and finally caught a taxi from there to

27 Brook Street, and there was evidence as to the time

of his arrival as between 11.15 and 11.30.

So there was an alibi or an account of his movements

put forward by the defence based upon the records of

interview and I have already made the submission that,

if·one accepts the combined evidence of Harris,

Sorrenson, Johnson, .Anderson and Peepe, the jury could

reasonably conclude that that was a false account of

his movements.

(Continued on page 94)

C2T54/l/VH	93	18/11/88
Fisher

MR NASE (continuing): That submission was made so that

the Court understood the way in which the Crown
sought to rely upon the interviews both with

Mitchelson and with the police officer, Beaky,

where the interpreter, Villis, was used. The

submission is that there was a sufficient collection

of links between the accused and the deceased

to allow a jury to record a conviction in this

case.

That brings me to the end of my submissions,

essentially.

WILSON J:  Thank you, Mr Nase. Yes, Mr Cooke?

MR COOKE:  Your Honours, we have discovered a notification

which we did receive from the secretary to

His Excellency, the Governor, and perhaps we

should tender that.	About the petition,
Your Honour,	I said that we had only been advised,

orally;. we have turned up a letter which we

received. Would the Court like the letter?

WILSON J:  I do not th ink we need it,· Mr Cook, thank you.

You have informed the Court, and that is sufficient.

MR COOKE:  Yes, Your Honour. There is only just one point,

really, that we would want to raise, and that

is in relation to the question of alibi. Our

learned friend says that it was relied on that

he gave a false account of his movements. With

respect, we would submit that did not seem to

play a part in the circumstances relied on by

the Crown. In the judge's summing up at page 72

of the appeal book - at page 72 His Honour then puts

eight matters on which the Crown were relying -

eight circumstances -and he lists them on page 73.

The eighth of them, at the bottom of the page, is:

eighthly, that the accused, when

interviewed, falsely denied being at the

hotel on the night in question and in

fact gave Detective Beaky inconsistent

versions as to his whereabouts on the
evening of that day.

That is as His Honour put the circumstance to

the jury. The false denial was really the

passages in the evidence of Michelson that our

learned friend read to the Court:

Do you know the woman?---No.

Were you at the hotel?---No.

C2T55 /1 / SDL	94	18/11/88
Fisher

DEANE J: But I am confused about that. Did he not say

consistently throughout all these interviews that he

had not been at the hotel that night?

MR COOKE:  No, Your Honour, in subsequent ones he admitted

that he was at the hotel.

DEANE J:  Or rather, as Justice Macrossan said, later in that

evening?

MR COOKE:  Yes. I think, Your Honour he had not admitted

to being there beyond - well he was not sighted there

by independent witnesses later then about 8 o'clock,

apart from Peepe.

DEANE J: His statements subsequently were consistent with him

being there when the other hotel people said he was

there because Mr Nase,as I followed it, said to the

contrary?

MR COOKE: No, he is correct in that, Your Honour. No, he

said that he - - -

DEANE J:	Do not we need to know preci·sely?· I mean - - -
MR COOKE:	He left earlier than that.

DEANE J: What time did he say was the last time he was at the

hotel?

MR COOKE:	Your Honour, we have fixed the time by reference to the evidence of a person who saw the assault.	You
see, Your Honour, he says that he left the hotel,

went down the road and then assaulted another person

and stole some money from him. Now the evidence

o~ one of the other Aboriginals in the area
who saw that occu:rring_puts the time of the assault

at about 6 o'clock. His statements suggest that

after that he went to the city.

(Continued on page 96)

C2T56/l/SR	95	18/11/88
Fisher

DEANE J:	And never went back to the hotel?
MR COOKE:	And did not go back to the hotel, no.
DEANE J:	Well, then, what Mr Nase says is correct and
that is one is not restricted to the police

interpretation because consistently he has said

he was not there after an event which the defence

fixes at 6 o'clock in circumstances where the

hotel evidence, quite apart from Peepe, was that

he was there at least at 8 o'clock?

MR COOKE:  At 8 o'clock, yes, there is the inconsistency in that.

DEANE J: Well, that is a quite different impression I had

of th~ false denials?

MR COOKE:  Yes, except, Your Honour, that I think the case

was put - the circumstance as being one of the

eight circumstances was really put on the basis

of the false denial of being at the hotel and

knowing the deceased which came about in that

first interview with Michelson.

DEANE J: Except the false denials are of considerable

importance here, are they not?

MR COOKE: Well, false denial, I suppose, if it is direct,

a different story as to his whereabouts might

be another. You see, it was put to him directly,

"Were you at the hotel that night?" and he said,

"No."

DEANE J:  Well, I do not want to take time. I am on, I think,

much the same wave length as Justice Brennan and

that is I had tried to read things but it is very

hard to work out about the false denials, for

example, when we have not got the actual evidence

but only what the learned trial judge said about

it.

MR COOKE:  Yes, and, Your Honour, with respect, what he

said about it would suggest that the heavier

reliance was on the false denial that he knew

the woman and that he was at the hotel. That

was really what we relied on as part of the Crown

case. The rest of it seemed to be - assumed not

so much significance :in the presentation

of the Crown case at the trial.

(Continued on page 97)

C2T57/l/MB	96	18/11/88
Fisher

TOOHEY J:  Can you take us, Mr Cooke, without reading, but

just by way of identifying the page where the

summing up deals with the statements made by the

applicant in relation to his movements?

MR COOKE:	The first mention is made at 73 of the summing up and, Your Honour, 136 through to 142 I think
His Honour deals with that question, if I can just
leave it in that broad form.
Now, Your Honour, there is only one other thing and that was the question of the evidence
of Johnson about seeing him the following morning with "heavily bloodstained trousers and shoes"
which Johnson says, after he had heard of the death
of the deceased, he went and washed or cleaned.
Your Honour, his evidence was inconsistent with
the evidence of the forensic scientist, Mr Blair,
who examined the trousers - the grey trousers,
and found that they were soiled but had not been washed.

BRENNAN J: Trousers were produced, were they?

MR COOKE:	Yes, the grey trousers were -
BRENNAN J:	Long trousers?
MR COOKE:	Yes - were produced and analysed by Mr Blair,

the forensic expert. He examined them and his

evidence at page 421 of the Court of Criminal Appeal

book from line 10 to line 30 he was asked questions

about the grey trousers and he said:

But what can you say, if anything, about whether

or not the grey trousers appeared to have

been washed in view of the fact that they

were lightly soiled, as you have described

them, and had four tiny human blood spots

on the back of the left leg?

And Mr Blair said: 

The bloodstains on the leg were quite clear

and discreet. They had not been wet or diffused which indicates they had not been wet or washed.

BRENNAN J:  Who identified these trousers as trousers which

the accused owned or had been wearing?

C2T58/l/AC	97	18/11/88
Fisher
MR COOKE:	Your Honour, that was Johnson.	He was wearing

them at the time of his apprehension by the police

on the Sunday afternoon.

BRENNAN J: And they took possession of them then?

MR COOKE:  Took possession of them then. Your Honour, I think

he was picked up at a football match on the Sunday

afternoon.

BRENNAN J: Anything to connect his wearing of those trousers

on the night in question?

MR COOKE:  Johnson said that he was wearing light coloured

trousers when he came home.

DEANE J:  But he in his interview said he was not wearing

those trousers. He said he was wearing cords which

were at the hostel?

MR COOKE:  Cords. Well, Your Honour, I think all of his clothing

was looked at, if I could put it that way, and the

two that were subjected to forensic examination were

the grey trousers, which Mr Blair found had not been

washed and had discrete specks of blood and a pair

of jeans which was identified as his trousers and

they had a red stain on them. That was analysed and

found not to be blood, it was some paint or some

other substance, but not blood. All of his clothing

was examined, at least were the trousers that he was wearing at the time. Your Honour, those are

the submissions we put.

WILSON J: Thank you. Now, Mr Cooke, I understand that apart

from about a number of photographs, principally of

the body, the exhibits are not in the Registry. Can

you or Mr Nase throw any light upon that. For example, the

exhibit 155 that Justice Toohey was interested in

and exhibits 58 to 60.

DEANE J:  The photos of the accused that were referred to.

MR COOKE: Your Honour, we shall just have to see. They might

stiil be in Brisbane.

WILSON J:  Any way, that can be explored if they are needed. I

MR COOKE:	We can forward them.
WILSON J:	Thank you, Mr Cooke.  The Court will adjourn now until

2.15 and we will determine the course that we will take

in this matter at that time.

AT 1. 08 PM LUNCHEON ADJOURNMENT

C2T59/l/SR	98	18/11/88
Fisher

UPON RESUMING AT 2.22 PM:

WILSON J:  The reasons I am about to read represent the

views of Justice Dawson and myself. The applicant

was convicted by a jury of murder. He appealed

to the Queensland Court of Criminal Appeal on the

ground that the verdict was unsafe and unsatisfactory.

The Court of Criminal Appeal unanimously dismissed

the appeal. The applicant now seeks special leave

to appeal on that ground in addition to two other

matters.

The first of those other matters is that by

reason of the decision of the Queensland Court

of Criminal Appeal in REG V SUTTON, delivered on

15 November 1985, he was prevented from seeking

at the close of the Crown case a directed verdict
of not guilty on the ground that the verdict was

unsafe and unsatisfactory.

The second matter concerns the tender, in

support of the application, of allegedly fresh

evidence from a forensic scientist, Dr Tilstone.

This Court followed the course adopted in

DAVIES AND CODY V THE KING (1937) 57 CLR 170 of

adjourning the application for special leave so

that the applicant could proceed with a petition

to the Governor of Queensland to have the matter

of the fresh evidence referred to the Court of

Criminal Appeal. That petition was refused. The

present application is now renewed and the applicant

does not press the Court to take the fresh evidence

into account in considering whether the verdict

should be set aside as unsafe and unsatisfactory.

Nevertheless, we should comment briefly upon that

T60 matter.

There may be a question whether it is within the

power of this Court to receive fresh evidence:

see DAVIES AND CODY, at page 172. However, it

i~ unriecessary for the Court to consider that

qoestion today. It may be doubted whether the

evidence of Dr Tilstone is fresh and its cogency

has not been tested by cross-examination. But,

on any view, it could carry little weight in the

consideration of this application, having regard

to the recognition by the Court of Criminal Appeal

that the verdict of guilty ultimately must stand

or fall on the evidence of identification given

by the witness, Peepe.	The fresh evidence has
nothing to say to that question.	For this reason,

quite apart from the question whether the Court

has power to receive the evidence, it is of no

assistance.

C2T61/l/AC	99	18/11/88
Fisher

Similarly, the invitation to consider the

decision of the Court of Criminal Appeal in

SUTTON must be declined.	No evidence was called
for the defence.	The body of evidence upon which

a no-case submission would have rested remained

the same as that upon which the jury deliberated
in reaching their verdict. Even if an issue could
have been raised in connection with SUTTON, as

to which we express no opinion, any such issue

has merged with the remaining question, namely,

whether the evidence was such that it was open

to a reasonable jury, properly instructed, to return

a verdict of guilty.

This leaves the application on the same basis

T61	as the appeal to the Court of Criminal Appeal.
Seen in this way, the case does not raise any
question of law of general importance. The jury
was properly instructed. The Court of Criminal
Appeal applied to the evidence the correct test
based on the decisions of this Court in
WHITEHORN V THE QUEEN (1983) 152 CLR 657 and CHAMBERLAIN V THE QUEEN [NO. 2] (1984)153 CLR 521.
That being so; there is no occasion for this Court
to embark on the same course. As has been said
many times, this Court does not grant special
leave to appeal when no more is involved than
questions of fact.

We would refuse the application.

BRENNAN J: What I am about to say I say on behalf of my

brother Toohey and myself. The majority of the

Court are of the opinion that special leave to
appeal should be refused. As at present advised,

we are able to join in that view but it would not

be profitable to state in the absence of detailed

consideration of the appeal what our conclusions

would be if special leave were granted. We would

not agree that questions of fact can never suffice

by themselves to justify the grant of special leave

t~b appeal. The divergence of opinion expressed

in LIBERATO V REG, (1985) 159 CLR 507, has not,

T62 ih our view, been resolved by this Court.

DEANE J:  I agree with the views expressed by His Honour

the presiding Judge and Justice Dawson in relation
to what I would call "the fresh evidence and the

SUTTON points". Making due allowance for the

advantage enjoyed by the jury at the trial,

consideration of the material to which the parties

have directed the attention of the Court has failed
to persuade me that the verdict of the jury was unsafe
or unsatisfactory. Accordingly, I would refuse

the application for special leave to appeal.

WILSON J:  The order of the Court is that the application is refused.

AT 2.28 PM THE COURT ADJOURNED SINE DIE

C2T63/l/AC	100	18/11/88
Fisher