Fisher v The Queen

[1988] HCATrans 47

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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

BRENNAN J

Fisher

DEANE J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 MARCH 1988, AT 12.08 PM

Copyright in the High Court of Australia

C2T 25/1/HS 1 22/3/88

MR N.M. COOKE, QC:  May it please the Court, I appear with my

learned friend, MR G. LONG, and MTSS A.M. FRASER,

for the applicant. (instructed by the Public Defender)

MR P.G. NASE:  May it please the Court, I appear with

MR D. BULLOCK on behalf of the respondent.

(instructed by D.G. Sturgess, QC, Director of

Public Prosecutions)

WILSON J:	Mr Cooke.
MR COOKE:	Your Honours, we have some brief notes of argument

that we can hand up to the Court.

WILSON J:	They are welcome.
MR COOKE:	I should mention, if Your Honours please, that

the reference to the passages of the judgment in

paragraph 4 should be a reference to MORRIS V REG,
61 ALJR 588, and the passages are identified to which

we propose to refer. Your Honours, the applicant is an Aboriginal deaf mute who is convicted of murder of another Aboriginal lady by the name of Chevalley on

23 June 1985 in a lane way quite close to the Castle Inn

Hotel in Stanley Street, South Brisbane. There was

no forensic evidence given at the trial to establish

the time of death, but it was the Crown's case all

through that the applicant was, in fact, the murderer

and if one looks at the evidence presented by the Crown it would limit the time of death from some time between

about 11 o'clock in the evening until about 11.30 at

the latest.

The evidence for the Crown was that he was seen,

on one witness' account, outside the hotel in the

company of the deceased shortly before 11 o'clock.

(Continued on page 3)

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Fisher

MR COOKE (continuing):  The evidence of the other occupants

of what was known as the Born Free Club where the

applicant lived which was not far from the hotel

was that he arrived home at some time between
a quarter past 11 and half past 11. The witness

who gave that evidence had been at home all evening

watching television and he fixed the time at which

the accused came home to the club by reference to

a programme which he was watching which finished

at 11.30 so that 'kt some time'' could have been

11.15 but certainly no later than 11.30 that the

applicant was at his home.

Now, the evidence also was from one of the other residents of the Born Free Club who had been

at the hotel that evening and that it took somewhere

in the vicinity of 20 minutes to half an hour to

walk home from this hotel to the Born Free Club.

It may have taken a little less if he walked more

briskly but that is the time sequence in which the

Crown framed their case so that, as I have said,

there was no forensic evidence as to the time of

death of the deceased. The body was, in fact,

discovered in this laneway at about 6 o'clock on

the Sunday morning, so that J9r the applicant to have

committed the murder, it would have had to occur

sometime between shortly before 11 and at the latest,

at the very latest, at probably half past 11 but,

more closely, probably about 11.15.

The circumstances of the murder were extremely

brutal and there are photographs which were

reproduced for the court which - colour photographs

which show the body of the deceased in the location

where it was found in the lane way. They are

particularly gruesome photographs. She was not

only raped but sodomized and the evidence would

seem to suggest that a considerable degree of

violence had been used during the murder. There

were blood stains on a brick wall and the suggestion

was that her head or some part of her body had been

smashed against the wall and there was blood all over

the concrete in the immediate vicinity where the body

was found the following morning.

(Continued on page 4)

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Fisher

MR COOKE (continuing): There was also an heavy iron grate set

into the ground of the lane way which was suggested

by one witness that it might have been used to

hit her with. On the evidence which we have in

our affidavit of a Dr Tilstone, that we will come

to later, he suggests that perhaps the head may

have been either flung on to the grate with the

grate in situ. But, at all events, Your Honours,

the murder was committed with a good deal of violence

and a good deal of blood and circumstances of

aggravation that attached to it.

TOOHEY J: Mr Cooke, when you specify that time of 11 to

11.30, are you saying that if the applicant was

responsible for the death then death must have

occurred in that period or are you saying something

more than that, to suggest that there was other

evidence - or that there was evidence to indicate

that death occurred about that time?

MR COOKE:  No, that was the purpose of the reference to that.

That, if it was the applicant who committed the

murder, he would have to have done it between

11 o'clock and, at the latest, 11.30. And, if

one allowed him some time to walk home from the

scene of the murder to the Born Free Club, it would

probably place it somewhere between 11 o'clock

and 11.15, if it was he who committed the murder.

There was no other forensic evidence to establish the time of death and that - - -

TOOHEY J:	Why was that?
MR COOKE:	I do not know why that was but there was no evidence

called. The Crown case was simply mounted on the

basis that the applicant was indeed the murderer

and, of course, I suppose if one took that view
they regard it as unnecessary to establish the

time of death. I cannot explain why but there

wasno scientific evidence to establish the time

of death, but the case did proceed on that basis. Your Honours, it was a circumstantial case	in which the Crown relied on roughly eight
circumstances pointing to guilt. The first and
most important one and the one which we ask the
Court to look at here on the application for
special leave was one of identification.

(Continued on page 5)

C2T27/l/SDL	4	22/3/88
Fisher

MR COOKE (continuing):  The other evidence was more tenuous,

if we can put it that way, and without the

identification evidence would not, in our submission,

be sufficient for the jury to support a guilty

verdict. And, indeed, that seems to have been the

view of His Honour Mr Justice Matthews in the Court

of Criminal Appeal and also, perhaps, the view
of His Honour Mr Justice Macrossan in the Court

of Criminal Appeal; that if you take out the evidence

of identification then the other circumstances

where slender.

The other circumstances of guilt on which

the Crown relied were things such as blood groupings

which were taken. There was one blood sample which
was taken from a scraping at the sole of the

applicant's shoe and was analysed. In these blood

test~ in order to identify the blood groups with

certainty, there are three factors that have to

correlate. In repsect of the shoe there were two
of those factors which identified as being consistent

with the blood of the deceased but it could not

make a positive identification because the third

factor was missing. So that was one other circumstance,

a small scraping of blood which had been taken

from the sole of one of the shoes. The other forensic

piece of evidence was blood stains on the cuff
of a wind-cheater which he was wearing at the time
and, again, the evidence was that these articles

of clothing were all subjected to forensic examination

and the best that was produced was a couple of

small spots of blood on the cuff of the wind-cheater.

In the examination of those, the evidence

was led at the trial that that blood was consistent
with being the blood of the deceased and could

not have been the blood of the applicant. However,

there was evidence about changes that had been made in the book in which the blood tests were

recorded by the forensic scientists and there was

some doubt about that and that, again, is the subject

of our further fresh evidence point in the affidavit
of Dr Tilstone. It appeared, apparently, that

there had been some change in the work book -

apparently the practice was that you take these

tests on a slide and the forensic laboratory in

Queensland had a number of samples on the one piece

of equipment and all the tests were done together

and then you read them down, identifying the numbers

with different items. So that you may have blood

groupings from one case on the same slide test
as blood groupings on another so that if you read

the list incorrectly you would get the wrong result

being correlated with the sample number on the slide.

C2T28/l/AC	5	22/3/88
Fisher

MR COOKE (continuing):  And then the evidence was that

having done the slide test the results are recorded

in what is called a work book and then taken

from the work book to another book from which the

formal results or the results on which the evidence

in court was based is read. It appeared during
the course of the trial that there had been some
whiting out, with the whiteout, had been done in
the book from which the results were given to

the court.and various explanations were made by

the two forensic scientists as to how that came to

be. One suggestion was that they read the wrong

sequence and then it was changed in the book and
so forth. Again going ahead to deal with our

affidavit from Dr Tilstone on the fresh evidence

point, he examined the work book and the other book

and looked at what was writ'ten under the whiteout,

he could discover what was written under the whiteout.

Now the relevance of it was that the PGM factor

which was the third linking factor, the other two

factors, I think, were in cotmnon with the deceased

and the applicant, but the third factor which was

the PGM factor would identify whether the blood was

the blood of the applicant or the blood of the

deceased.

The original result, shown in the work book, was a weak l+ result and Dr Tilstone, our forensic

apparently was donP. by the forensic scientists
expert, says, well with a weak result like that
another test should have been done to verify it.

and the weak l+ showed up in the official
book as a weak l+, as a positive identification

of the PGM factor, which they then said identified these blood spots on the sleeve as being the blood of the deceased and not the blood of the accused.

So that that was another circumstance. One of the circumstances that was relied on by the Crown were

untrue denials made by the applicant to police

officers shortly after the murder was cotmnitted.

I think he was taken into custody and questioned on

the Sunday, Sunday evening, Sunday night after the

murder.

(Continued on page 7)

C2T29/l/SR	22/3/88
Fisher

BRENNAN J: Mr Cooke, just a moment ago you said the

blood on the sleeve was then identified on that

reading as the blood of the deceased; you mean
it was consistent with it being the blood of

the deceased or that it was the blood of the

deceased.

MR COOKE: Well, it was consistent with being the blood of

the deceased in the sense that, on their tests, they

identified all three factors as being consistent with

her blood whereas the PGM factor was different for

the applicant's blood.

BRENNAN J:  Now, is it suggested that it is specific to the

blood of an individual or specific to a grouping of

blood of individuals.

MR COOKE:  No, grouping of blood, I think, Your Honour, not

specific to the individual. I think there is a

certain percentage of the population would be in

the same blood groupings as the deceased but the

point of it was that on the basis of this reading

which was originally recorded as a weak l+ and

not retested or reread, that was converted in the

book that crune to court as being al+, as a positive

l+, on which basis they said the all three factors

matched the deceased's blood and excluded it from

being the applicant's blood whereas on Dr Tilstone's

evidence, he says that is not a scientific way to

go about it. If you have a weak result, it should be retested and under no circumstances, I think he
puts it perhaps as highly as that, would you make

a weak l+ into a positive l+ for the purposes of

a forensic case such as this.

WILSON J: Mr Cooke, perhaps you could just clarify the position

about blood on the shoe as well at this point.

You said that two of the three factors were shown

to be consistent with the blood of the deceased.

MR COOKE:  Yes, blood of the deceased,but in that one it

was the ABO group, I think.

(Continued on page 8)

C2T30/l/SH	7	22/3/88
Fisher

MR COOKE (continuing): Yes, the ABO factor was missing

in that case because apparently the sample was

not large enough for them to do a test for that.

WILSON J:  But where does that leave a conclusion with

respect to the blood on the shoe, was it excluded,

the proposition that it could have been the applicant's

blood? Was that excluded?

MR COOKE:  Yes, Your Honour, I think it excludes the applicant's

blood because of the PGM factor which was tested

in that case and it was a PGM factor which was

consistent with the deceased's blood but not
consistent with the PGM factor in the applicant's

blood. But, it could not positively be identified
as being on all fours with the blood grouping of

the deceased because the ABO factor was not tested.

WILSON J:  So all that could be said is, so far as it went

it could have been the deceased's?

MR COOKE:  It could have been. And that is the reason why,

Your Honours, we submit that the other factors

on their own, without the identification factor,

the case for the Crown was so extraordinarily weak

that a jury could not possibly draw the inferences

of guilt when there are other alternative inferences

that could be drawn.

There are a couple of other circumstances

that I could perhaps mention quickly. There was

also the tread mark of the shoes. The shoe which

they recovered was an ordinary, common type of

jogging shoe, which the evidence shows was on sale

at supermarkets, K-Marts and what have you,

throughout Quensland, probably throughout Australia.
There was nothing particularly significant about

the tread except that the tread mark on the concrete

was consistent with the same type of tread mark

as appeared on the applicant's shoes. The difference

pointed to at the trial was that in the applicant's

shoes there was a cut in the rubber tread - they

have these rubber treads and there was a cut mark

in the tread on this particular shoe - which did

not show up in the tread marks on the concrete

or the photographs of the tread marks which were

taken. One of the police witnesses compared the

tread mark on the concrete with the tread mark

on a photograph and I think another police witness

compared the photograph of what was on the concrete

with the photograph of the shoe print. So there

are two different comparisons which were made but

in neither of those does this characteristic

irregularity in the tread with the piece that was

cut out does not show up. That was explained by
the witnesses as saying, "Well, it would not show

up because of the roughness of the concrete" although

C2T31/l/SDL	22/3/88
Fisher

that seems extraordinary in view of - if one looks

at the photograph of it it does show up pretty

well that the ridge is running across, and he says,

"You would not expect that irregularity to show

up in the print and, in any event, with so much

blood around the piece that had been taken out

would be filled up with blood." But, of course,

Your Honours will see immediately the fallacy of

that would be that it would not be filled up so

as to make a band on the print; you would expect,

perhaps, that there would be a blotch of blood or something like that, if the blood filled up the cavity of the shoe - the piece of the welt of

the shoe which was missing - but that does not

show up on the photographs. So there was that

evidence as well.

There was also, as I have said, evidence of

wrong denials made by the - - -

TOOHEY J: Just before you go to the wrong denials, Mr Cooke,

was there evidence also of tread marks on the body

of the deceased?

MR COOKE:	Yes, there was evidence of it.
TOOHEY J:	Were the explanations that you have just given

said to be equally applicable - well, clearly the

surface of the concrete has no role to play but

what was said about the tread marks on the body?

(Continued on page 10)

C2T31/l/SDL	9	22/3/88
Fisher

MR COOKE:  Your Honour, I think - and my junior will correct

me if I am wrong - but I think that the comparison was

made by the forensic people on the basis of what was

on the concrete, the print on the concrete, not the

print on the body. It was suggested by the forensic

people that she had been stamped on or jumped on,

by someone probably wearing these sort of joggers

because there were marks made, but the comparison

of the sole of the shoe was made on the marks that

appeared on the concrete which had obviously been

where someone had stepped in the pool of blood and

then walked across the concrete. But there was

no comparison made between the welts on the body,

the shoe marks on the body with the shoe marks on
the concrete.

Another circumstance with these wrong denials - Your Honours, with regard to that, the wrong denials

that were relied on were that when he was asked by

the police officers on the Sunday, or shortly after,

whether he had been at the hotel, this particular

hotel, that night, he denied that he had been, and

evidence of other witnesses showed that he had been

at least there at some time during the afternoon and

evening up until probably about 8 o'clock. Other

friends of his from the Born Free Club had seen him

there at that time, had not seen him there afterwards,

and he was also shown a photograph of the deceased

with a black eye, and so forth, and he was asked whether

he knew that person and it is said that he denied that.

Now, with regard to that, there are several

submissions to be made. The evidence given about that

was that the record of interview, or the confessional statements, if you regard them as that, were taken by a police officer using an interpreter using a method

of finger spelling and he recorded the answers of -

he connnunicated with this deaf mute by means of a

finger spelling system which he had had some

experience with, not professionally, but because he

had worked with a friend, or something, and had some
knowledge of finger spelling.	So that that was the

way in which that police interview was conducted.

Subsequently, there were further interviews

by medium of an interpreter called Mr Villis who
gave evidence that he knew the applicant and had known

him for some period of five years and his evidence

was - and we have copies of the evidence here that we

can hand up because it has not been reproduced in the

appeal book - but his evidence was that this young

lad had not really been in the ordinary deaf connnunity

for any length of time, that he had stayed in a special

school for some time, but had then drifted back to

the Aboriginal connnunity at large and he did not use

this method of finger spelling. His educational

standard was such that his spelling would have been

C2T32/l/HS	10	22/3/88
Fisher

faulty in any event, but this finger spelling system

was not something which he used to communicate, and

Villis gave evidence that he had difficulty, even

after knowing him and being related to him in a social

way for five years, that he had difficulty in making

sure thathewas communicating with the appellant and

the appellant was answering the questions which he

was being asked and had difficulty in understanding

what he was saying.

Apparently, with these type of people, they get

into using a shorthand system of signs and symbols

and gestures which they use in their immediate circle

so that they can communicate with their immediate

circle, but unless you know what the symbols and the

signs used by him actually mean, you can lead to

confusion.

WILSON J:  What was 'the substance of the confessional evidence

apart from the denial that he had been in the vicinity

on the night in question?

MR COOKE:  Your Honour, I think that they were the only two

denials.

WILSON J:	What, the one that he said he was not - - -
MR COOKE:	Not at the hotel that evening.
WILSON J:	Yes, and the second?
MR COOKE:	And the other when he was asked did he know the

photograph of Mrs Chevalley. It was a photograph where
she had black eyes and - I cannot remember whether it

was taken after she died. It was an old photograph

of her but it showed her with a black eye, and so

forth, and he was asked whether he knew her. Well,

of course, he did know her, because she in fact lived

at the Born Free Club herself.

(Continued on page 12)

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Fisher

WILSON J:	Yes, but he said he did not?
MR COOKE:	He said that he did not.
WILSON J:	Yes, I see.
MR COOKE:	And they were the two denials which were made in the first record of interview which were conducted
by the police using the finger spelling - - -
WILSON J:	Was that using Mr Villis?
MR COOKE:	No, Mr Villis was not present at that interview.
WILSON J:	So there was no interpreter independent of the police?
MR COOKE:	No, there was no one other than the police -

independent person there. There was the policeman

who sought to cormnunicate with signs - "finger

spelling"I think you call the term. The denials

occurred in that interview that were relied on

by the Crown. I do not think there was anything

that was said in interviews which were conducted

subsequently with Villis that were relied on as

being untruthful, wrongful denials.

Now, Your Honours, if I can come then to the

important question of identification. The difficulty

with identification arose out of two witnesses

who were both called by the Crown. One was a

witness called, Peppe, who is a musician playing

at the Castle Inn Hotel on that evening, and his

evidence basically was that after the hotel

closed, and the times vary, but around about 10.30

he took his equipment, his band equipment out

into his vehicle at the front of the hotel and put it in there. He went back inside and decided that

he would listen to another band for some time.	He
had varying reasons as to why he went back out.

One reason advanced by him at one stage was that he

when he was loading the equipment into the van the	saw the accused and Mrs Chevalley outside the hotel
first time and then when he decided to stay he recalled that friends of his had lost their equipment
from the Melbourne Hotel on similar occasions and therefore he went out and took his band equipment
back inside the hotel.

(Continued on page 13)

C2T33/l/SR	12	22/3/88
Fisher

MR COOKE (continuing): Another reason was, advanced by him -

and I have just forgotten what the other one was

for the moment - and the other reason was that
it was not because he saw people outside in the
vicinity of his car but he was inside and he thought
about the Melbourne Hotel incident and his car

was not locked so he went out to bring the equipment

inside. He was assisted in loading his vehicle.

Now whether it occurred the next time that he loaded

his equipment up -he was assisted by a person called

Harris. Harris was a barman who worked at the

hotel. He assisted Peepe to load his equipment

into his van and he was outside waiting for a

taxi to go home and he put the tim~ around about,

shortly before 11 o'clock.

Now, he says that he did not see anybody outside

the hotel when he helped Peepe load up his equipment
in the van. He waited until after Peepe left,

because his taxi had not arrived, and then his

taxi came and he left the vicinity after Peepe

had left so that put Peepe's departure at around

shortly before 11 o'clock. And it was at the time

when he was loading his equipment into his van

that Peepe said he saw the deceased in the company

of the accused outside the hotel.

BRENNAN J:  On the second occasion he loaded it into the

van?

MR COOKE: Well, Your Honour, I think he was a bit confused

as to whether it was the first occasion or the

second occasion, but if you take his evidence in

conjunction with Harris, Harris was quite clear

that he loaded it into the van and waited there

until Peepe had left so that Peepe would have to

have left the hotel by shortly before 11.	So that
he could not have seen - - -

BRENNAN J:  Yes. So as I understand it, on the second occasion

Peepe and Harris loaded the equipment into the

van, Harris saw nobody and Peepe said he saw somebody

on one occasion when he loaded equipment into the

van.

MR COOKE:  Yes.

(Continued on page 14)

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Fisher

WILSON J: It could have been the first occasion?

MR COOKE: It could have been the first occasion but then on

the first - yes, on that occasion, of course, it

would have to have then been earlier than 11 o'clock,

some time earlier than 11 o'clock. There was also

some difficulties with Peepe's evidence because
he gave differing versions of his evidence at the

committal proceeding and on trial.

BRENNAN J: When does Peepe say he first loaded it into the

van?

MR COOKE:  Your Honour, he said some time after closing time

and I do not know that he was too precise about

the time.

DAWSON J:	10.4~ was it not? Did not he say it was 10.45?
MR COOKE:	10.45, yes.  Your Honour, I think that is one

of the problems with the evidence because it

was, indeed, 10.45 when he loaded it in first he

would not have been listening to the band very

long if he unloaded the van and then loaded it

up again and went by 11 o'clock because Harris

identifies about 11 o'clock as the time when he

left the hotel by taxi.

BRENNAN J:	Did not Harris give instructions to the deceased to leave the bar at a certain time?
MR COOKE:	Yes, that was about 10 - Sorenson, the witness

Sorenson, I think, Your Honour, he was another

barman there.

BRENNAN J:	What time was that?
MR COOKE:	That was about 10.30 - 10.45 he said.

BRENNAN J: Exactly. Now, if it is 10.45 and she was in the

bar until then and the first loading up occurred

before 10.45, then he could not have seen her

outside.

MR COOKE:  He could not have seen her at that time, no.

(Continued on page 15)

C2T35/l/ND	14	22/3/88
Fisher

BRENNAN J:  Now on the second occasion, the one who helped

him said that he did not see anybody?

MR COOKE:  Yes, Harris was there, but did not see anything.

And certainly Harris was there on the last occasion

because he saw him leave because he was still waiting

for his taxi.

DEAN£ J:	On the evidence at page 18, the first loading took place between 10.45 and 10.50?
MR COOKE:	Yes.

DAWSON J: Which would seem to suggest it was the first

occasion - the first loading up on which he saw the accused?

MR COOKE:  That he saw, yes. Now the other difficulty with

his evidence as I have suggested was that there was

a change in his evidence, quite a material change

we would submit, with regard to his description of

the accused. He said, I think, that when he went

to the police station shortly after the murder had

been publicized, he went to the police station and

when he went into the police station there was

a photograph of the accused pinned up somewhere or

other on the premises and he identified that as the

man that he had seen outside the hotel, which was

the applicant. But in his statement to the police,

which was made at that time and it had the photograph

there in front of him. He was asked about the

hair-style, to describe the person that he saw and
he made particular reference to the fact that he

did not have an Afro hair-style. He said he had

black wavey hair, but not an Afro style.

Now, the evidence seems to have been that the

applicant did have an Afro hair-style at that time
and presumably the photograph that he had just seen

at the police station showed him with an Afro

hair-style.

(Continued on page 16)

C2T36/l/SR	15	22/3/88
Fisher

WILSON J:  Forgive my ignorance, but is an Afro hairstyle any

particular kind of hairstyle, or simply the

tight-curls that - - -

MR COOKE:	Your Honour, I think it is all sort of teased out
in a sort of a bunch - sort of - - -

WILSON J: Could it be confused with ordinary black curly

hair?

MR COOKE:  Your Honour, we would think not. It was described,

I think, by counsel at the trial as being a "bouffant"

style, or something of that sort - the hair.	I
would have thought Your Honour would have be·en

familiar with the Afro hairstyle. It is probably

more popular with women.

WILSON J:	You assign_me to a different generation.
MR COOKE:	It is teased out and sort of comes in a big sort of
a ball around one's head; but we would submit it is
the sort of description which is significant and
it is not something which you would overlook if you
had to make the point in the police statement that
he did not have an Afro hairstyle.  When he was asked
about that at the trial, he said, well, curly hair
to him was Afro style, and tried to sort of justify the difference in his story, but that, in our submission,-
was not all that convincing about that. So that
was Peepe, putting the accused - putting the ap9licant in the company of the deceased, outside the hotel
somewhere around about that time - quarter to 11, 11 o'clock.
TOOHEY J:	Mr Cooke, when you speak of Peepe putting the
applicant outside the hotel and in the company of
the deceased, did he give evidence merely of identification of a person, or did he refer to the
applicant as somebody whom he knew and identified
as having been outside the hotel?

(Continued on page 17)

C2T37/l/VH	16	22/3/88
Fisher

MR COOKE:  Your Honour, that, I think, is a bit equivocal

as well. He did identify him as being someone

who he had seen earlier in the night at the hotel

and someone whom he knew because he was always

sort of on his own and was not joining in with the group. And that, of course, would account to the fact that he does not communicate; being

a deaf mute he does not sort of converse with other

people in a group. But Peepe did identify him

in the sense that he had seen him before at the

hotel and had seen him sitting in a group on his

own, although, curiously, in the statement he made

to the police, he did not say, "Oh, yes, I knew

that man out there because I had seen him earlier."

That sort of came out later, I think, that he had

seen him at the hotel before, earlier that night,

and there was something unusual about him in the

sense that he was always drinking or always on

his own.

TOOHEY J:  Was there any suggestion that Peepe knew the

applicant by name?

MR COOKE:  No, there is not, I do not think. So that he

was really identifying him by means of description

and identified him on that occasion to the police

as not having an Afro hair-style. On his evidence

the deceased was leaning up against the wall of
the hotel and the applicant was standing close

to her or facing her and talking to her or something
but there was nothing untoward happening according
to Peepe. It was just simply evidence that the

two were seen together outside the hotel at about

that time.

Your Honours, the other evidence which the

Crown called was a Mrs Smith and she was the

passenger in a motor car.

(Continued on page 18)

C2T38/l/ND	17	22/3/88
Fisher

MR COOKE:  With regard to Mrs Smith's evidence, she was a

passenger in a motor car being driven by her husband

and they were on their way into town to go to a
disco where she said she had arranged to meet someone

at 11 o'clock. So she puts the time at which they

were travelling along Stanley Street at some time

shortly before 11, probably about 5 to 11, or

thereabouts, because they got into town and parked and

got to their engagement shortly after 11.

Now, her evidence was this; that as she was

coming along her attention was attracted by a violent,
a very violent, assault or struggle occurring between

an Aboriginal woman and an Aboriginal man, or a

dark man, adjacent to the mouth of a lane wa½ which

was some distance from the actual hotel - but it
was at the mouth of the lane way in which the body

was subsequently discovered - and she observed

the man standing over the woman and using a degree

of physical violence to her. So much so that she,

in fact, I think, observed to the husband that

perhaps they should stop and do something about

it but he said, "we have got to get there", and

they went on. And let me say this; that she came

forward to give information to the police after

seeing the report of the murder in the paper.

Now, I think that was probably on the Monday

because the body was discovered early on Sunday

morning and it, probably, appeared in Monday's

papers. So she came forward to the police having

seen the report of the murder and then realized

that she had seen something in that vicinity at

about that time. So she gave the police a description

of the woman which matched the clothing and the
physique and the build and so forth of the deceased

almost exactly. There was no problem with her

identification of the deceased.

(Continued on page 19)

C2T39/l/AC	18	22/3/88
Fisher

MR COOKE (continuing):  She also gave an equally vivid

description of the assailant. She described him

as being dark, dark skinned, wearing a sweater, wearing

football shorts, I think, and having a pot belly.

He was taller than the woman and had a very big

pot belly and had wavy hair - certainly not an Afro

hair-do. So that she gave that fairly accurate

description, one might think, of the person that

she saw assaulting the deceased at that time. She

was also taken by the police to the Ipswich Court

House when the applicant was being charged. As soon

as she was shown the applicant she said, "That is not

the man I saw", and she gave evidence about that at

the trial, that she saw the applicant at the Ipswich

Court House and said, "That is not the man I saw,

he is the wrong build for a start", and so forth.

TOOHEY J:	Was there evidence about the applicant's build?
MR COOKE:	Well, there are photographs of him and, of course,

he was in the dock,I suppose,for people to make
the observations. But it seemed to proceed, Your Honour,

on the basis that the description which she gave

with regard to the build, it could not have been the

appellant because of the pot belly.

TOOHEY J:  I think Mrs Smith gave the weight of the person

whom she saw as about 16 stone?

MR COOKE:  Yes, and a pot belly. I do not think there was

any evidence called about the weight and physical

description of the applicant.

TOOHEY J: Are you saying, Mr Cooke, that it was common ground

or we can take it for granted that the applicant

certainly was not a man of 16 stone?

MR COOKE:  Your Honour, yes. I think that was accepted

at the trial.

TOOHEY J: What about height?	(Continued on page 20)
C2T40/l/MB	19	22/3/88
Fisher

MR COOKE (continuing):  Your Honour, apparently MrsSmith

described the man she saw as being taller, older

and bigger than the applicant.

WILSON J:	Was evidence given of his age?
MR COOKE:	Of the age of the - - -

WILSON J: Applicant.

MR COOKE:  Of the applicant. Your Honour, he was in his

twenties. A young man in his twenties.

WILSON J: And the deceased?

MR COOKE:  The deceased was about 50, Your Honour. I think

the evidence was that she lived at the Born Free

Club which was a club for Aboriginal youths and

other people there at South Brisbane and I think

she had done - I think the evidence was that she

used to do the applicant's laundry for him, did

things like that.

TOOHEY J:  Mr Cooke, could I just mention one matter to you,

not to respond to now but perhaps after the adjournment.·.
It is again to do with this question of hairstyle but
there is a passage of Mr Justice de Jersey at the

foot of page 177 over to 178 about Peepe's

description of the appellant. I am not sure that

it is entirely consistent with what you said earlier.

It may well be. It may just be my main recollection

but there is a reference to Peepe describing the

appellant's hair that night. Now, is that a reference

to a description of the person whom Peepe saw outside

the hotel or are we to read that literally as a

description of the appellant's hair?	Do you see
the distinction?

MR COOKE:  Yes, Your Honour. I can answer that now. It was

a description of the person he saw outside the hotel

which is the description he gave the police.

WILSON J: Well, perhaps this is a convenient time. The Court

will adjourn until 2.15 pm.

AT 12. 52 PM LUNCHEON ADJOURNMENT

C2T41/l/SH	20	22/3/88
Fisher

UPON RESUMING AT 2.18 PM:

WILSON J:  Yes, Mr Cooke. Mr Cooke, before you continue

I think the Court would be assisted if you could

put the submissions you have been making into the

context of the arguments which, in your submission,

establish a case for special leave just so that we

can appreciate the framework in which you are

discussing the evidence.

MR COOKE:  Yes. If it please the Court, in our submission

the special leave point is indeed the same as

the point that the Court discussed in MORRIS V REG,

(1987) 61 ALJR 588. In effect, in our submission,

the Court of Criminal Appeal failed to make an
independent assessment of the conflicting nature of
the evidence in ihe Crown case but simply sought to try
to reconcile that evidence with the jury's verdict,
to justify how the verdict could be arrived at,

consistent with a view the jury might take of it

rather than to look at the evidence and decide

for itself whether the weight of the evidence or

the inconsistencies of the evidence were such that

a jury could arrive at a verdict beyond a reasonable

doubt on that - - -

WILSON J:  And you will be taking us to the judgments shortly

to establish that?

MR COOKE:  Yes, Your Honour, I will. The passages in

MORRIS V REG, on which we rely, are the passage

of the Chief Justice at page 591 where His Honour

says about half-way down the second column:

there is another and important question at

stake. That is the question whether the

Court of Criminal Appeal performed its duty

to make an independent assessment of the

evidence as required by CHAMBERLAIN.

And also the passage in His Honour's judgment

at page 592 in the second complete paragraph on

that page:

In failing to direct its attention specifically

to an examination of the reliability of the admission,

the Court of Criminal Appeal did not carry out

an independent assessment of the evidence

which it was required to do in dealing with

the ground of appeal advanced by the applicant.

The making of a careful independent assessment

was essential to the making of an informed judgment	on the question whether the jury could reasonably
convict on the materials before them.

C2T42/l/MB	21	22/3/88
Fisher

MR COOKE (continuing):

The Court's dut1, was to satisfy itself

that there was 'a sufficiency of legal

evidence to satisfy reasonable men to

the exclusion of any reasonable doubt".

Also, at page 593, the third paragraph in the first

column:

I am not persuaded that the Court of

Criminal Appeal recognised that the function

which it was performing required it to make a careful and independent assessment of the

critical evidence -

and then, after going to the evidence of Mrs Bargo:

It seems to me that the Court of Criminal

Appeal was under some misapprehension as to

the task which it had to perform in assessing

the qualitative worth of the admission or,

if not, that it failed to perform that task.

We also rely on the dicta in the joint judgment

of Deane, Toohey and Gaudron, Justices, at page 596,

in the first column in the first paragraph on that

column, about six lines down:

For our part, we would think that there might be verdicts falling within the concept of

miscarriage of justice, as that expression

is used in the common criminal appeal

provision, by reason of some defect or

weakness of the evidence even though on the

evidence it was open to the jury to be

satisfied of guilt beyond reasonable doubt,

as, for example, where there is some feature

of the evidence which raises a substantial

possibility that the jury may have been

mistaken or misled ..... Whether or not this

be so, it is clear that the question whether

a verdict is unsafe or unsatisfactory involves

a Court of Criminal Appeal undertaking an

independent examination of the relevant evidence

to determine whether it was open to the jury

to be satisfied beyond reasonable doubt as

to the guilt of the accused. That function

is not discharged merely by a consideration

of whether there was a sufficiency of evidence
to sustain a conviction for it is clear that

a verdict may be unsafe or unsatisfactory

notwithstanding that there was evidence sufficient
to entitle a reasonable jury to convict.

C2T43/l/SDL	22	22/3/88
Fisher

MR COOKE (continuing):  Your Honours, the application for

special leave was lodged well before the

application and decision in MORRIS' case. I think

our application was filed on 12 September 1986.

It has taken some time to bring on for various reasons and the way in which we formulated our

grounds for special leave indeed paralleled what

the Court has said really in MORRIS' case.	We
said in our affidavit expressing our grounds,

page 190 of the application book - the affidavit

starts at page 190, our grounds in paragraph 11

of the affidavit. At page 192:

It appears from a reading of the reasons

for judgment of each of the members of the

Supreme Court that what the Court did was

attempt to rationalize the evidence in such

a way as to justify the jury's verdict of

guilty.

WILSON J: That is paragraph 17?

MR COOKE:	17 of the affidavit.
WILSON J:	On page 193, I think it is.
MR COOKE:	193, yes, Your Honour. The book is a bit unclear.

In doing so the Court did not apply the

correct test as laid down in CHAMBERLAIN V

THE QUEEN in that they ought to have considered

the evidence afresh for themselves and applied

their minds to the evidence and to the

inconsistencies in it and come to a conclusion

as to whether a jury, acting reasonably, could

be satisfied beyond reasonable doubt -

DAWSON J:  I do not understand, I must say, for my own part,

what an independent assessment of the evidence

is. Any assessment that the court makes is

necessarily independent and what the court here

did was to assess the evidence to see whether a reasonable jury could have come to that conclusion.

MR COOKE:  Your Honour, in our submission, in doing that,

in attempting to do that exercise, the court has
been led into error because it has, in effect,

in trying to reconcile the verdict with the evidence

and a view which the jury may take of the evidence,

they have, in effect, come to a fanciful view,

in our submission.

DAWSON J:  Can you point to anything in the judgment which

shows that?

MR COOKE:	Your Honour, yes.	I can come to that now.
C2T44/l/ND	23  22/3/88
Fisher

BRENNAN J:  Do you contend for the test, however it may

be applied, as being whether a jury acting

reasonably could be satisfied beyond reasonable

doubt of the appellant's guilt?

MR COOKE:  Your Honour, that is not, as I understand it,

entirely the whole test because even though there

may be evidence there which would support a

conviction by a reasonable jury, nevertheless the

evidence may be such, because of inconsistencies

in it or somethin& which leads the court to the

view that a verdict in reliance on that evidence

would be unsafe or unsatisfactory notwithstanding

that there is evidence there on which the jury could

properly convict.

BRENNAN J: If one leave aside exceptional cases, and looks

at the closing lines of your paragraph 17, those

are the words which are cited.

MR COOKE:  Yes.

BRENNAN J:  Do you contend for that or do you not? Do you

say this is a case where that is the appropriate

ultimate question or are you saying that this is

a case where even if that question is answered

adversely to yo~ you bring yourself within some

other and, if so, what principle?

(Continued on page 25)

C2T44/2/ND	24	22/3/88
Fisher

MR COOKE:  Yes, Your Honour, we would submit that even if

we would come within that category which Your Honour

accepted in CHAMBERLAIN's case as those category of

cases where curial experience might suggest that

although a verdict might be arrived at by a jury

it is unsafe or unsatisfactory to do so, cases such

as identification cases or cases where inferences

are drawn and, I think, Your Honour points out in
CHAMBERLAIN's case, there may be cases where a jury

would more readily exclude inferences of innocence whereas the curial experience of a court might not

do so and that would be an exception to the general

proposition.

DAWSON J: Well, now you are getting back to the stage where

you are saying it is a reasonable doubt which the

court has, not a reasonable doubt which a reasonable

jury must have had and I thought in CHAMBERLAIN it

was the latter which was laid down as the test.

MR COOKE: Well, Your Honour, let me put it this way: in

CHAMBERLAIN, I think, with regard to circumstantial

cases, it can be said that, perhaps, one of the

principles in CHAMBERLAIN is that the facts from

which inferences of guilt have to be drawn, have

to be proved beyond a reasonable doubt. In this

case, we would argue that if you look at the various

circumstances a reasonable jury could not be satisfied

beyond a reasonable doubt of the existence of those
facts, so that the basis on which they may draw

inferences is destroyed immediately. Then,

Your Honour, I would submit that CHAMBERLAIN's

case, followed by MORRIS' case,would suggest that

there are other cases where, notwithstanding the

fact that there is evidence on which a jury might

convict - - -

DAWSON J:  On which a reasonable jury might reasonably

convict.

(Continued on page 26)

C2T45/l/SH	25	22/3/88
Fisher

MR COOKE:	Well, on which a 'reasonable jury might convict" - I would not put in "may reasonably convict", but a
reasonable jury may convict if they fall within a
category of cases where the curial  experience
of the court suggests that the evidence viewed
is unsatisfactory because of inconsistencies.
DAWSON J:	It can only be unsatisfactory because a reasonably

jury must have had a doubt. If that is not so

then it is not unsafe or unsatisfactory?

MR COOKE:	Your Honour, we would submit, that the reasoning in MORRIS' case certainly in the joint judgment
of Their Honours Justices Deane, Toohey and Gaudron, would suggest that there can be cases where even though the evidence is such that a reasonable
jury might convict, nevertheless when the court examines the evidence they find that- if there are inconsistencies in that case, I suppose, the experience of the court suggests that the inference of guilty cannot be drawn.

DAWSON J: But,you see,that was what Sir Garfield Barwick

said in RATTEN's case and that was rejected

in CHAMBERLAIN, unequivocally.

MR COOKE:  I am not sure,with respect,that the majority in MORRIS' case do not slide off that a bit.

DAWSON J:  They do not show any consciousness of departing

from CHAMBERLAIN?

MR COOKE:  Your Honour, we would submit that even with

CHAMBERLAIN there are slightly different views extracting a principle which can be regarded as

the standard view, if one could say that. Certainly

I would agree with Your Honour that it does not

seem to be the case that the broad statement of

Chief Justice Barwick that one substitutes the

court's view of the evidence is accepted but,in

our submission, it is not the position at the

moment that it is simply a case of whether a

reasonable jury had evidence in front of it on

which it could convict in these sort of unsafe or

unsatisfactory cases.

(Continued on page 27)

C2T46/l/SR	26	22/3/88
Fisher

DAWSON J:	Obviously, I have some difficulty with MORRIS.
MR COOKE:	Yes, Your Honour.
BRENNAN J:	Mr Cooke, that being the way in which you wish to

place it, or wish to argue it, is it really a case of

applying the test expressed in the last three lines
of paragraph 17, or are you saying this is a case which

falls within the approach which ought to be adopted

according to the view of the majority in MORRIS and

perhaps in accordance with the second part of the

proposition as laid down by the Chief Justice in MORRIS?

MR COOKE:  Yes, Your Honour, but I would submit that even if one

applies the test on paragraph 17 the Court would give

us leave because the evidence would not, because of the

reasonable doubt of the guilt of the accused, but inconsistencies, have satisfied a j~ acting reasonably beyond

I would certainly submit further that if one acts on

the principle in the joint judgment in MORRIS' case,

plus act on what the Chief Justice said in MORRIS'
case, this would fall within a special class of case
where the verdict would still be regarded as unsafe
or unsatisfactory, because it involves a critical
question of identification, and because the Crown have
two witnesses who are completely opposed on the critical

question of identification from which inference of

guilt must be drawn, or from which inferences of guilt

can be drawn, and without that the rest of the

circumstancial evidence is just, in our submission,

too weak to support an inference of guilt.

Your Honours, if I can turn to the judgments of the Court of Criminal Appeal, first of all t.o what

His Honour Mr Justice Matthews said at page 164 of

the book. His Honour agreed with the reasons for
judgment of Mr Justice de Jersey but he said:

I accept as correct the submission advanced on behalf of the appellant that if the jury,

on the evidence, must have had a sufficient

appellant as being in company with the doubt as to the identification of the	deceased at about eleven o'clock on the
evening in question and being then on the footpath outside the Castle Inn Hotel, Stanely Street, South Brisbane, the other
circumstances relied on by the Crown to lead
to an inference of guilt of the appellant
would not have been sufficient for that
purpose.

His Honour then makes the observation which, in our submission, indicates perhaps a wrong approach again

as to the way in which he had approached his task

and perhaps not doing it in accordance with the

CHAMBERLAIN test, or certainly not in accordance with the MORRIS test:

C2T47/l/HS	27	22/3/88
Fisher

I think that, as the learned trial Judge summed-up, he would have held a similar view and I would also observe in passing

that had the jury had such a doubt, it

would have returned a verdict of not guilty

and such verdict would have occasioned no

surprise.

So that His Honour really there is suggesting that

on his evaluation of the evidence a verdict of

not guilty would not be surprising; but His Honour

has approached it really on the basis of trying to
see whether there is evidence there which would

support the jury's verdict.

His Honour Mr Justice Macrossan, at page 171 of

the book,talked about the identification at the top

of the page) and he said:

These were matters for the jury

along with its consideration of the

total body of evidence. However, the

evidence which I have described as
constituting the crux of the Crown case

is, in my view, that a conclusion of

guilt would not have been reasonably

open to the jury -

without the evidence.

WILSON J: Does that suggest he is taking an independent

view?

MR COOKE:  Without the evidence - Your Honour, he says a bit

more than that later on, which we are critical of -

"the evidence which I have described as constituting

the crux" - so that His Honour is accepting again,
with respect, that the crux of the evidence, that is

the evidence of identification, and he couples with

that too the untruths made by the accused about his

movements. (Continued on page 29)

C2T47/2/HS	28	22/3/88
Fisher

MR COOKE (continuing):  Your Honour, down at the bottom he

then starts to talk about the conflicts in the

evidence:

I accept that, overall, the jury might well

have thought that Mrs Smith's evidence had

a tendency to weaken the Crown case, even

though, on one view, i.e. by rejecting the accuracy of her identification of the male person, it might be regarded not only as

consistent with the evidence of Peepe, but

as something which strengthened the Crown

case. Thus, the jury was entitled to conclude

that Mrs Smith really saw the accused with

the deceased but imperfectly observed him.

Such a conclusion could not be said to be
unreasonable on the rest of the evidence.

Your Honours, pausing there, in our submission

His Honour there is trying to justify the verdict

of the jury as to how they could have arrived at

it in the light of the fact that they had that

clear evidence from Mrs Smith. And he, with respect,

speculates in an inadmissible way by saying that

they might have concluded that Mrs Smith really

saw the accused with the deceased but did not

observe him properly. Now, there is, with respect,

no justification in the evidence for that at all.

The evidence of Mrs Smith was not shaken as to

her description of the person she saw, at all,

and to suggest that the jury may have said, "Well,

we accept that Mrs Smith saw someone but it was

not the person she described, it was, in fact the

accused", is a curial substitution, in our

submission, to try to rationalize the way in which

the jury had arrived at the verdict rather than
to consider the question of the conflicts themselves

in the Crown case and come to a conclusion as to whether a properly instructed jury could, in the

light of those inconsistencies, have come to a

view beyond a reasonable doubt, that the person

ther~ doing that assault that Mrs Smith saw, was

in fact the accused.

WILSON J:	And in the course of that independent consideration
it would be open to the judge to consider that

Mrs Smith may well have had limited opportunity,

being a passenger in a car, being driven along

the street, et cetera, et cetera, and simply concluded

for himself or herself, if there was a lady judge,

that the witness was mistaken when she described

the man.

MR COOKE:  Your Honour, there is no basis in the evidence

for concluding that she was mistaken because,
if you look at the description that she gave of

the deceased, it was accurate in almost every detail.

C2T48/l/SDL	29	22/3/88
Fisher

WILSON J:	Of the deceased, yes.
MR COOKE:	So that the prospect that she was mistaken about

things such as build, weight, hair-do, clothing,

which were all entirely different from a description

which would fit the accused, would, in our submission,

almost be bordering on the perverse for a jury

to conclude that her recollection was so faulty

that she really meant to describe the accused but

she described this other person, particularly

when she saw the accused very shortly afterwards

and identified him as not being the person, because
of the changes of the build, et cetera, that she

had seen.

With respect, it is that type of exercise

which we say brings in the error that the court,

rather than looking at the conflicts in the evidence

to decide whether it is unsafe to allow a verdict

to stand, in fact tries to rationalize how the

jury might have arrived at the verdict. It is

even worse, in our submission, when one comes to -

a little further in His Honour's judgment - and

in the judgment of His Honour Mr Justice de Jersey

because they postulate that there might have been

two assaults that night. With respect, there is

just no evidence: the Crown case was not presented

on that basis; there was no evidence to support

it, and yet, that was a view which Their Honours

advanced as to why the jury might have, or how
the jury could have, reconciled the two conflicting

identification evidence - by saying that, "Yes,

Mrs Smith saw this pot-bellied person assaulting

the accused at the mouth of the lane way where

the murder occurred but the accused, somehow or

other, came along later and finished her off".

(Continued on page 31)

C2T48/2/SDL	30	22/3/88
Fisher

MR COOKE (continuing): That really was not the case presented

by the Crown and certainly not a case which could
be arrived at by any reasonable inference or deduction

and to approach it that way, in our submission,

highlights this point of trying to reconcile the

verdict to the facts rather than make an independent

assessment of the weight of the evidence and the

cogency of the evidence, conflicting evidence, which

the jury had in front of them. At the bottom of that

page, page 172, His Honour Mr Justice Macrossan

said:

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.

Well, Your Honours, the evidence just does not support

that. The evidence of the sighting of the people

all occurred within the same period of time, around

about 11 o'clock, and there is no suggestion by either,

Peepe or Mrs Smith, that they saw more than one

person at any -

TOOHEY J:	Do we have the entire cross-examination of Mrs Smith?
MR COOKE:	Yes, I think Your Honour does.
TOOHEY J:	38 to 39.
MR COOKE:	Yes. Yes, it is. It finishes at page 41.

TOOHEY J: Well, that is because of questions asked by His Honour,

is it not?

MR COOKE:  Yes.

TOOHEY J:  I beg your pardon. There is just one matter

arising out of those questions which is dealt

with at page 41.

MR COOKE:  Yes, page 41 - 42 perhaps has a little bit more.

Your Honour, that is the whole of her evidence

there. As indeed, I think, we have reproduced also

gave to the police, the evidence he gave at the

the evidence of Peepe to highlight - I do not intend

to take the Court to it - the discrepancies in

committal proceedings to demonstrate that he was

unreliable in point of times in point of what he did,

and to draw the inference, of course, that in terms

C2T49/l/MB	31	22/3/88
Fisher

of what he saw was also faulty and it also refers
to the fact that he identified, in his statement

to the police, the applicant from a photograph which

was a photograph of the applicant pinned on the wall

of the police station when he went in. It was not

a case where he selected that photograph from one

of a number,it was there, it was the photograph which

he identified as being of the accused. But all of

that evidence of Peepe is in the application book

and starts at page 17 of the application book.

DEANE J:  Was it suggested to Peepe that he had not seen the

accused sitting on his own in the hotel during the

night?

MR COOKE:  No, it was not, but it was agreed, I think, that

he was there earlier in the night. I think on the

evidence of some of the other occupants of the Born

Free Club the latest that he was seen at the hotel

was about 8 o'clock. The only witness who says that

he saw him at the hotel in or around the hotel later

than about 8 o'clock was Peepe.

(Continued on page 33)

C2T49/2/MB	32	22/3/88
Fisher

DEANE J: But, I mean, one problem with Mrs Smith's evidence

is she apparently was fairly uncertain about the

appearance of the accused and that she says:

At first I thought he did have a beard but

then when I thought about what I saw, I

thought maybe he might not have -

a beard which - it is rather difficult here to

know what effect that sort of statement, by a

witness who claims to have a clear picture of
what she saw from a car of a night-time might have had on the jury or what effect they were entitled

to think it had.

MR COOKE:  Yes. Well, Your Honour, with regard to - the important

parts of identification,though, is whether he had a

beard or whether he was dark or of growth could,

perhaps, be very minor compared with whether

he was heavy, pot-bellied and dark and the sort of

hair-do that he had - the hair-style that he had.

DEANE J: Well, I do not want to take time but I find, in terms

of evidence of what is seen from a car of a night, a

statement "his skin of his legs was dark" as a little

bit surprising for somebody who cannot say whether

he had a beard or not.

MR COOKE:  Yes, well, Your Honour, I suppose his legs might not have

been all that visible. The clothing that he was -

WILSON J: His legs must have been visible.

DEANE J:  They must have been, yes.

MR COOKE: Well, partly visible but -

WILSON J: These two were struggling, were they not?

MR COOKE:  Yes, they were struggling but, Your Honour, she

was able to say that he was a coloured person, not

a white person.

WILSON J: But you have to go this far, do you not, Mr Cooke,

to say that given the conflict between Peepe and

Smith, no reasonable jury could have preferred one

to the other or could have preferred Peepe to Smith.

MR COOKE:  Yes, Your Honour, we would submit that but given

the evidence of identification by Mrs Smith a

reasonable jury could not exclude an inference of

innocence, that it was not him because of these

facts but the violent assault - and it was violent -

that Mrs Smith saw was occurring at the mouth of
the lane way where the body was subsequently

discovered at about the time when, on the Crown

C2T50/l/SH	33	22/3/88
Fisher

case, the murder was cotllillitted, sometime between

11 and 11.30, so we would submit that a reasonable

inference to be drawn from her evidence would be that the

person she saw assaulting the deceased was, in

fact, the murderer and, Your Honour, the description

which she gave was just so different from that of

the accused that no reasonable jury could exclude the presumption of innocence. In other words, it

could not be satisfied beyond reasonable doubt that

it was the applicant who was the person doing the

assaulting.

(Continued on page 35)

C2T50/2/SH	34	22/3/88
Fisher

WILSON J:	I think we appreciate what you say.
MR COOKE:	Your Honours, I think I have mentioned

Mr Justice Macrossan. If I can then go to

His Honour Mr Justice de Jersey at page 180.
His Honour then gives, in our submission, the way
in which he reconciles or could reconcile the

evidence with the jury. He says, at the top of the page:

Now it is conceivable that the deceased

was separately assaulted that night by someone

other than the appellant, and that it was

that assault which Mrs Smith witnessed.

With respect, that is out of keeping, altogether,

with the case which the Crown presented.

The deceased had earlier been drinking at

the hotel for many hours, and may well for

that reason have been particularly vulnerable
to attack. Alternatively, the jury may have

rejected Mrs Smith's evidence of identification.

It was suggested, for example, that her

identification may have been doubtful because

she had not previously known the appellant -

et cetera.

With regard to the first possible

reconciliation of the evidence of Peepe and

Mrs Smith, it is true that it was not

specifically put to the jury, on behalf of
the Crown, that they might take the view that

the male person seen by Mrs Smith was not

the person who killed the deceased. But the

jury could still properly have adopted that

approach, the evidence being entirely for
their ultimate assessment, and the jury having

been properly instructed on the test governing

prosecution cases based on circumstantial

evidence. Although I think it more likely

that the jury would have taken this approach,

in view of the apparent confidence behind

Mrs Smith's identification, I would nevertheless

not exclude the possibility of the jury's
having considered her identification of the

deceased's assailant as erroneous.

And then he comes to the conclusion that the evidence
of Mr Peepe and Mrs Smith could be reconciled in
the way in which His Honour suggested, those two
alternative methods, neither of which, in our
submission, are ones which a reasonable jury could

draw or could infer from the evidence.

DEANE J: Of course, if that were so, unless Peepe saw the

accused on the second occasion, then there that

conflict, Mrs Smith would have seen the deceased

C2T51/l/ND	35	22/3/88
Fisher

with the other person after Peepe saw the
deceased with the accused which would have quite

an effect on the relevance of Peepe's evidence.

MR COOKE:  Your Honour, if one looked at that in that light,

the evidence of Peepe - even one accepting it -

that he saw her in the company of the accused

innocently, if I could put it that way, standing

outside the hotel, there is then a separation in

point of time and distance between where Peepe

says he saw the two and where Mrs Smith saw the

assailant, taking place. And it then does also,

Your Honour, lead to the jury inferring that although

it was the assailant that Mrs Smith saw beating

the accused to death, somehow or other the applicant came

on to the scene at a subsequent time and finished

her off and we would submit that that is just not

an inference which a reasonable jury could draw

from those facts.

(Continued on page 37)

C2T51/2/ND	36	22/3/88
Fisher

MR COOKE (continuing): Instead of looking at those

inconsistencies in that way for itself, the Court

of Criminal Appeal and His Honour Mr Justice de Jersey

who wrote the majority judgment on i~ seems to	try to reconcile how the jury could have arrived
at a guilty verdict and yet reconcile these two inconsistent pieces of evidence and he does it by
postulating for the first time a two-assault theory,
as it were, an assault by Mrs Smith's man, which he
says is the more probable or, alternatively, t:he
view that the jury rejected Mrs Smith and they found
that she really saw the accused, notwithstanding
that her description of the other person was so entirely different.

So that we would submit the Court of Criminal

Appeal has missed the correct test. They have not

made the assessment and then considered it in

the light of the inconsistencies whether a

reasonable jury could draw that inference of guilt

beyond reasonable doubt, they have simply looked

at the evidence and tried to reconcile the way in

which the jury may have overcome the discrepancy

consistent with the verdict which they found.

BRENNAN J:  Mr Cooke, what is the distance between the hotel

and the position where the deceased was found?

MR COOKE:  The entrance to the lane way?

BRENNAN J: Yes.

MR COOKE: It is about 200 to 300 yards, I think, Your Honour.

BRENNAN J:  And how far down the lane· way is the position

of the body?

MR COOKE:  Your Honour, I am told that it is 30 yards down

the lane and then around a bit of a corner or

something at the end of the lane.

BRENNAN J: And is there any evidence as to the blood alcohol

level of the deceased?

MR COOKE:  I am not sure that there is.

BRENNAN J: Or the state of her intoxication?

MR COOKE:  Your Honour, I think it would be accepted from

the evidence that she would have been fairly
intoxicated because there was evidence from people,

as I recall, that she had been drinking on the

Friday night, quite heavily, and started drinking

again about lunch-time on Saturday and she was at the hotel

then until closing time.

BRENNAN J:  As an intoxicated person she went 200 to 300 yards

from the hotel to the mouth of the lane way and was

there observed by Mrs Smith - - -

C2T52/l/SR	37	22/3/88
Fisher

MR COOKE:	Yes.
BRENNAN J:	- - - in the passing car, if Mrs Smith's

evidence is believed.

MR COOKE:  Yes.

BRENNAN J: And that was demonstrably before 11 o'clock?

MR COOKE:  Yes, Your Honour, shortly before 11 she

gave that evidence.

BRENNAN J: Unchallenged as to time?

MR COOKE: Unchallenged, I think. Jes, unchallenged as to

her estimates of time. She fixed it because

they were going to meet someone at a discotheque

in town and they had to be there by 11 or

their appointment was to meet by 1).

BRENNAN J:  Yes, but I think you said earlier that they

got to town a little after 11.00? It may be,

I suppose, four or five minutes from here to town

by car, would it not,at that time of night?

MR COOKE:  Down Stanley Street and across Victoria Bridge,

and then I think she bad to park and go to mere she was going. I will

just turn that up to see if l can satisfy that

inquiry. It is at the beginning of her evidence

in-chief, I think. Yes, at page 35 of the

application book, about line 50, she was asked

by the Crown Prosecutor:

At about what time approximately

do you say that you saw this episode?--- About quater to 11 I think. I am pretty

sure because we were in and parking in

town by 11 - out of the car park by
about 11 ....... You are sure that it was

at 11 o'clock that you got into the

city?-- Yes.

Now, I think that might have been all she said

about the time.

(Continued on page 39)

C2T52/2/SR	38	22/3/88
Fisher

MR COOKE (continuing):  Yes. So according to her evidence,

Your Honour, if they were in town at 11 it would be some time shortly before 11 o'clock that they

would have been passing the hotel in Stanley Street,

assuming they came down Stanley Street and crossed

the Victoria Bridge.

TOOHEY J:	Where did Mrs Smith observe these two people in relation to the hotel?
MR COOKE:	Your Honour, that was 200. or 300 yards

further away from the hotel at the entrance of
the lane way in which the body was discovered the

following morning.

TOOHEY J:  Why was the evidence of Peepe and Mrs Smith described

as inconsistent?

MR COOKE:  Your Honour, it was inconsistent because it had

the accused in the company of the deceased about the same time, about 11 o'clock or thereabouts - at about 5 to 11 or thereabouts - at the same time

that Mrs Smith saw this other person assaulting

the person - assaulting the deceased 200 or 300 - - -

TOOHEY J:	Not in the same place but about the same time.
MR COOKE:	Yes, about the same time but not in the same place.
TOOHEY J: It is only	that, or perhaps I should not say, it is

only that -	it is that but nothing else that makes
the evidence	of the two witnesses inconsistent,
is it?

MR COOKE:  Yes, I think that is probably correct, Your Honour,

because if one took the view that he was there,

outside the hotel, it does not necessarily follow

in the light of Mrs Smith's evidence - well it

does not - that he was in company with this other person when the assault was taking place some distance from the hotel. It is just the times when all	this was happening, coupled with, Your Honour,
the fact that the evidence of the occupant of the
Born Free Club as to when he got home, would suggest
that he was actually home at the Born Free Club
some time between 11.15 and 11.30.

BRENNAN J:  Was this lane way on the way home to the Born

Free Club from the hotel.

MR COOKE: Yes, it is on that route. There is a photograph

there but I do not think it shows the lane way,

the hotel stops before one gets to the lane way.

I think there was another collage, or something,

which was produced for the jury. But there was

C2T53/l/AC	39	22/3/88
Fisher

an inspection had by the jury of the site and the

point where Mrs Smith said that she saw these things

was, in fact, accepted, I think, by everyone and

by the Court of Criminal Appeal that it was the lane way in which the body was discovered. She

described it in terms of a brick wall, the chain-wire

fence next to it and so forth which identified

the lane way.

I should, perhaps, give Your Honours that

transcript of Mr Villi~ which is not reproduced

in the appeal papers, dealing with the expertise,
or otherwise, that the applicant had with finger

spelling because it is of some significance because

His Honour Mr Justice Macrossan in the Court of

Criminal Appeal relied on the false statements made

in that finger spelling interview as being a supporting

fact which the jury might take into account in

determining the question of identification which

is what they did with Mrs Smith.

WILSON J:  Did Mr Justice de Jersey rely on the alleged

lies?

MR COOKE:  Yes, Your Honour. If I can say it in a broad

way, and I do not want to go through it all, but

Mr Justice de Jersey, in fact, dealt with every

circumstance of every circumstance and found, in

respect of each, that the jury could have come

to the conclusion which they did. So that he dealt

with all of them and he certainly dealt with that

question of the false statement.	He dealt with
that, Your Honour, at page 186.

(Continued on page 41)

C2T53/2/AC	40	22/3/88
Fisher

MR COOKE (continuing):  I could perhaps make a brief comment

about that. He said:

The scope for confusion and difficulty in

respect of admissions or false denials said to

result from interviews conducted by means of

"finger spelling" and sign language was large.

It did not seem to me however that the Crown case relied predominantly on the allegedly false denials

of the appellant. To the extent that it did place

some reliance on them, however, I consider

that the jury was properly instructed about

the need for caution.

And then he said that:

The members of the jury were entitled to treat

the records of interview as substantially

accurate, were they so minded, especially in

view of the evidence of David Charles Villis,

an interpretei experienced with the deaf and

mute, who participated in most of the interviews.

With respect, a fallacy in His Honour's reasons on

that ground is that the false statements on which

the Crown relied was in the interview which was

conducted by the police officer Blakey and that was

the only one that the Crown relied on for the false

statements because, indeed, when Mr Villis conducted

interviews the accused did give his story as to where

he was at the hotel and that he knew the deceased.

It was only in connection with the "finger spelling"

interview conducted by the police officers on the

first occasion that any false denial was said to

arise. So that His Honour's comment about being

entitled to take into the records of interview,

particularly when they were conducted with Villis,

really, with respect, does not get over this

problem about the "finger spelling" on it.

Your Honours, we also have, perhaps, a special

leave point in connection with the"no case"submission

in accordance with the decision of the Court of

Criminal Appeal in REG V SUTTON.

WILSON J:	The applicant never made a"no case"submission, did he?
MR COOKE:	Your Honour, he did not strictly make a "no case"

submission. At the end of the Crown case his counsel

did refer to the "no case" and refer to SUTTON's case and discuss SUTTON's case and the effect of

SUTTON's case with the trial judge and, but for the

view that they were bound with SUTTON's case, the

formal application would have been made by defence

counsel. What the judge would have done about it

we cannot say. But he was invited, during those

submissions, to give a direction to the jury that

C2T54/1/MB	41	22/3/88
Fisher

the evidence was such that it would be unsafe or

unsatisfactory for them to convict on in accordance

with the view that is taken in the State Courts

of Criminal Appeal that a trial judge, although he	cannot direct a verdict, he can invite the jury
to find a person not guilty on the ground that the evidence is unsafe or unsatisfactory.

WILSON J:  Is that at the end of the case for the

prosecution?

MR COOKE: Well, it seems to be either at the end of the case

for the prosecution or at the end of all the evidence.

It is referred to sometimes, Your Honour, as a

PRASAD invitation, coming from the South Australian

case of RV PRASAD, where they express the view

that the trial judge cannot direct a verdict if
the evidence is, in his opinion, unsafe or unsatisfactory.

He can simply invite the jury and remind them that

they can stop a trial at any time if the case is

unsatisfactory in their opinion, the evidence is

unsatisfactory, and that he can issue that invitation

in the strongest terms he likes but he cannot direct

a verdict.

WILSON J:	And following the conclusion of the case for the prosecution and the-discussion that was had between
counsel for the applicant and the trial judge,
what happened, what was the course of the trial
thereafter?

(Continued on page 43)

C2T54/2/MB	42	22/3/88
Fisher

MR COOKE:  Your Honour, no evidence was called on behalf of the

accused and addresses took place after that and

then the judge charged the jury. In the course
of his charge he made no reference to this question

of unsafe or unsatisfactory which defence counsel

had invited him, or asked him, to give a direction

to the jury about.

WILSON J: The determination on the point that you have

agitated up until now that the Court of Criminal

Appeal should have concluded that the evidence

was such that the verdict was unsafe and

unsatisfactory; that is the same body of material

as you would have relied upon to sustain a "no case

to answer".

MR COOKE:  An unsafe and unsatisfactory submission; that the

trial judge should have directed a not guilty verdict
because of the unsafe and unsatisfactory nature

of the evidence at that stage. It is the same

body of evidence. The question that arises in

REG V SUTTON, which purported to follow an English

decision, and the principle in REG V SUTTON is

now followed, apparently, by the Court of Criminal

Appeal in New South Wales and Tasmania and

South Australia and Queensland - so there are four

States now which adopt the same view. The principle

expressed in SUTTON's case is that if there is

some evidence on which a jury can return a verdict

the judge has no power to direct a verdict or to

stop the case. If there is no evidence to support

the case, of course, he may stop it but if there

is some evidence on which they can - even though

he considers it to be unsafe or unsatisfactory -

he cannot direct a verdict.

WILSON J:  And that view has the support of MAY V O'SULLIVAN,

does it not?

MR COOKE:  Your Honour, we would submit not quite.MAY V

O'SULLIVAN but, Your Honour, that is the position

with the Courts of Criminal Appeal now and we submit

with regard to this case that because of the decision

in SUTTON's case the applicant in this case lost

the opportunity of an acquit ta 1 on that ground and

it is not, with respect, good enough to say, "Well

if he lost the opportunity there he had another

chance in the Court of Criminal Appeal", because

that seemed to be the argument that is adopted

in the State courts. They say, "The Court of Criminal

Appeal can upset the verdict if they consider the

verdict to be arrived at on unsafe or unsatisfactory

evidence", but the trial judge cannot do it during

the trial.

C2TSS/l/SDL	43	22/3/88
Fisher

TOOHEY J:  That is, in effect, what counsel for the accused

asked the trial judge to do, to direct the jury

or, rather, to intimate to the jury - if you look

at page 44 - that:

there is a very good possibility that a

verdict of guilty in this case could be an

unsafe verdict.

MR COOKE:	Yes.
TOOHEY J:	The transcript does not show what the trial judge's

response to that was?

MR COOKE:  Your Honour, I think he reserved that and then,

of course, there was no evidence called and they
proceeded to addresses and then the judge's charge

and, in the judge's charge, he made no mention

of that point. I think I am correct in saying

that it was raised by counsel in an application

for redirection but the trial judge declined to

give any direction of that sort.

DAWSON J:  We do not know whether he was merely following

SUTTON or saying, "Even if I was not to follow
SUTTON I would not give that direction in this

case?"

MR COOKE:  Your Honour, I think in the first instance with

the no case submission he discussed SUTTON and

he mentions - and it was discussed with him. I

think it is clear from what His Honour said that

he regarded himself bound by SUTTON, that he could

not do it. Then, I think, the trial counsel asked

him to give that directio~ which His Honour

Mr Justice Toohey has picked up, as part of his

charge to the jury, that it would be unsafe and

unsatisfactory because of the evidence before them

to bring in a verdict of guilty.

(Continued on page 45)

C2T55/2/SDL	44	22/3/88
Fisher

MR CXX)KE (continuing):  And the trial judge did not do it

in his charge and upon a redirection he declined

to give a redirection on that ground.

TOOHEY J:  Mr Cooke, without going to any detail,

can you just take us to the page where the

redirection was sought and declined?

MR COOKE:	Yes, it is at page 152, I think, Your Honour.
WILSON J:	152?
MR COOKE:	152 at about line 10:

The application that you inform the jury

that they may-well consider it dangerous

to convict -

BRENNAN J:  Mr Cooke, if this is not an unsafe and unsatisfactory

case, then what would have been the fate of the

application for redirection apart from SUTTON?

MR COOKE: Well, Your Honour, that might have depended on

the - well, it would have depended on the view which

the trial judge held of the evidence at the time, he

being closer to the scene of the contents.

BRENNAN J: 

No doubt it would, but with the advantage of basic

consideration by courts of criminal appeal, and now,
_in the ligh.t of your argument here - - -

MR COOKE: Well, Your Honour -

BRENNAN J:- - - if you fail on that point, what should be the

result of this point?

MR COOKE:  Your Honour, it should not make any difference but,

as His Honour Mr Justice Hunt pointed out in the New South Wales' case, it is no comfort to a man on the top of a cliff contemplating jumping over

to see that there is an ambulance at the bottorr

in the presence of the Court of Criminal Appeal.
It would be much better to have a fence at the top

of the cliff to stop yourself from falling over so

that - - -

BRENNAN J: The analogy, if there is one, is not of an ambulance

but a safety net.

MR COOKE: Well, a safety net, I suppose, but perhaps the Court

of Criminal Appeal is more of an ambulance than a
safety net, Your Honour, because - just from a

practical point of view, Your Honour, it is more

difficult, if I can make that observation, to

persuade appellate courts of these matters than it

is a trial judge who is - - -

C2T56/l/SH	45	22/3/88
Fisher

BRENNAN J:  But how could this Court, Mr Cooke, if all else

fell in your favour, say this

is not a case where the verdict was unsafe or
unsatisfactory but none the less the trial judge

ought to have given the direction; not having

given it, there has been miscarriage.

MR COOKE:  Well, Your Honour, I would concede that would be

difficult in my case but -

BRENNAN J: Well, then, this is your case.

MR COOKE: Well, it is my case, Your Honour, but one always

hopes on these applications for special leave to

get some words of wisdom for guidance in the future.

WILSON J: And we are always resistent to - -

MR COOKE:  I know. Your Honour always does.

WILSON J: Unless it truly arises.

MR COOKE:  One always has to try. Well, I can see that the

be no need for the Court to consider RV SUTTON. Court -if I succeed on the major point, there would

WILSON J:  You do not need the second, if you concede on the

major. If you lose on the major point, then - -

MR COOKE:  You are not going to do anything about SUTTON's

case for me.

WILSON J:  It may fall back on the fact that the submission

was never made and it is entirely hypothetical.

MR COOKE: Well, Your Honour, it was not made because everyone

thought they were bound by SUTION's case. The

matter was canvassed. I can say this.

WILSON J: Well, we have seen this in the transcript from

pages 42 to 44, Mr Cooke, and we have read it. (Continued on page 47)

C2T56/2/SH	46	22/3/88
Fisher

MR COOKE: It was canvassed in the Court of Criminal Appeal

too but Their Honours made no mention of it,

unfortunatel~ in the reasons. Your Honours, if

I can then go briefly to the fresh evidence point

which is - - -

BRENNAN J:  How do we deal with this, Mr Cooke?

MR COOKE:  Your Honour, with regard to this, in our submission,

you look at the fresh evidence to see whether there
has been a miscarriage of justice on the first

point that I was making submissions about, the

unsafe and unsatisfactory nature of the verdict.

BRENNAN J:  Has there ever been a case in which this Court

has interferred on the ground of fresh evidence

which has come to light between the dismissal of

an appeal by a Court of Criminal Appeal and an

application for special leave here?

MR COOKE:  Your Honour, I think the cases seem to suggest

that where it has happened, that appeals are stood

over until one sees what happens further down the

line.

BRENNAN J:  On a petititon to the governor for a reference

to the Court of Criminal Appeal, yes.

MR COOKE:  Yes. Your Honour, we are in a sort of a chicken

and egg situation, I suppose. A petition has been

lodged to the Governor in Council in Queensland

but nothing has been done with that, presumably

pending to see what is happening in the High Court.

BRENNAN J:  A petition has been lodged?

MR COOKE:  Yes, to the Governor in Council. The next step,

Your Honour will recall, is that it is referred

to the Court - well the governor may referred it

to the Court of Criminal Appeal but no reference

has been made yet about it.	So to pick up what
Your Honour says, I suppose, strictly speaking,

with regard to an application for a new trial on

the fresh evidence point, that should stand over

until we see whether the Governor in Council is

going to refer it to the Court of Criminal Appeal

and see what the Court of Criminal Appeal make
of it but it is still, in our submission, relevant
or it can be looked at by the Court in support

of our argument for the unsafe and unsatisfactory

verdict. One can look at this fresh evidence to

see, well, this is just another piece of evidence.

If you accept that it is cogent, it is another

piece of evidence which will weaken the basis on

which the verdict stands and the Court should look

at that because if you look at that evidence and

you find that it is weakened it would be a miscarriage

of justice to leave the verdict stand in those

circumstances.

C2T57/l/ND	47	22/3/88
Fisher

WILSON J:  Does this mean we should not pass on your first

point now?

MR COOKE:  Your Honour, no. Your Honour, the Court ought,

in our submission, to look at the affidavit of

Mr Tilstone to see whether that evidence would

be cogent, to see whether it would sort of have
some relevance and cogenc½ in considering the

submissions we made about the unsafe and

unsatisfactory nature of the evidence because this

is some additional piece of evidence which would,

placed with the rest, the Court might regard the

verdict as a miscarriage of justice if a verdict

was allowed to stand in view of the unsatisfactory state of the evidence which was given at the trial and the prospect of new evidence which would be

called at some other trial.

WILSON J:  But both the cogency of the alleged fresh evidence

and the question whether or not it is fresh, in

the sense that it might possibly have been avilable

before the rehearing of the appeal by the Court

of Criminal Appeal, those are matters that might

require the hearing of evidence, might they not?

MR COOKE:  Your Honour it might, although, in this case,

it is scientific evidence. I suppose we could

say that.

WILSON J:  But it may well be open to cross-examination to

test its cogency?

MR COOKE:  I cannot deny that, Your Honour, I suppose.

(Continued on page 49)

C2T57/2/ND	48	22/3/88
Fisher

BRENNAN J:  Mr Cooke, what do you say to the proposition that

if the petition results in a reference to the

Court of Criminal Appeal and you succeed before the Court of Criminal Appeal these proceedings would be

academic?

MR COOKE:  Succeed to quash the conviction or get a new trial,

Your Honour?

BRENNAN J:  Either.

MR COOKE:  It might be quicker here. Your Honour, you see we

have the double avenue, I suppose. We have applied

for special leave as regard to the verdict.

If the Court is of the view, as we have submitted,

that it is unsafe or unsatisfactory, then conviction

should be quashed and no doubt the petition to the

Governor in Council would then be overtaken by events.

If the Court is against us on that, then the fresh evidence point would have to be determined by the

Court of Criminal Appeal. If a reference is made,

it should be determined in the -

.

BRENNAN J:  The Court of Criminal Appeal would then be

considering this case in the light of the judgment

of this Court based upon a series of primary facts from

which the inference of guilt was said-properly to_have

been drawn, when the Court of Criminal Appeal has

to consider whether one of those primary facts exists

and finds in your favour, we then have to conclude

yea or nay to the question of whether those remaining

primary facts was sufficient to support the inference

of guilt.

MR COOKE:  Yes. Your Honour, the - - -

BRENNAN J:  In the meantime, this Court would be considering

it on the basis of the primary facts outlined in the

court below, with it being uncertain as to whether

at the end of the day one of those primary facts will

or will not - - -

MR COOKE:  Your Honour, the problem with that is that the

applicant has the right to make the application for special leave to the High Court, the applicant has no power or direction over the Governor in Council.

He may not refer it, in which case that would be the end of us.

BRENNAN J:  Of course not, but if he does not then, of course,

that is the end of that, but if he does, then you are
back into the Court of Criminal Appeal with all the

rights of an appellant appealing from a conviction.

MR COOKE:	Yes, but Your Honour, what happens if he does not?
BRENNAN J:	Then you have your right intact here, have you not?

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MR COOKE:	Your Honour, I suppose we are here first.
DEANE J:	You might say that if your client is in gaol and

is entitled to have his conviction quashed, we should

quash it.

MR COOKE:  Your Honour, I would say that, with respect, and

also draw attention to the fact that we have no control

over the pace or, indeed, if a reference will ever

be made. The petition has been served some time

ago by - the petition has been served, I think almost

last year some time.

DEANE J:  But that would involve your departing from something

I understood you to say, and that is that we should

not deal with your first ground divorced from your

reliance on fresh evidence.

MR COOKE:  No, Your Honour, I think one can look at the

affidavit evidence in conjunction with the submission

we made about the unsafe verdict.

DEANE J:  What if one takes the view that regard should not

be had to that at all in this Court?

MR COOKE:  Well, Your Honour, then I suppose we take our chance

with this Court on the evidence as it stands. If that

fails we are at the mercy of the Governor in Council

as to whether we get another chance on the fresh

evidence point.

(Continued on page 51)

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MR COOKE ( continuing) :  We can come to the Court . We cannot

get to the Court of Criminal Apreal without

some action by the Governor in Council.

WILSON J: Yes, it seems that the Court should consider

what it will do with respect to the fresh

evidence point before you develop any submissions
with respect to it, Mr Cooke. Perhaps we ought:

to see if Mr Nase wishes to say anything about

the matters that have just been discussed with

you and then the Court will give a ruling.

MR COOKE:	Yes, thank you, Your Honour.
WILSON J:	Mr Nase, what do you say should be the approach

of the Court in the light of the ground based

on alleged fresh evidence?

MR NASE:	In relation to the fresh evidence point, it is my submission the Court has no jurisdiction to
receive the new material. That is based partly
upon what was said in this Court in DAVIES V REG - - -

WIT.,SON J:  DAVIES - - - ?

MR NASE:  DAVIES V REG, 57 CLR 170, atpagesl72 and 173,

and the view of the Court is contained in the

remarks by Chief Justice Latham at those pages.

WILSON J:  What page was it again?

MR NASE: Pa~~s 172 arid 173.

WILSON J: Yes, Mr Nase, does that - - - ?

MR NASE:  I do not know that I can assist the Court any

further.

WILSON J:	- - - complete your submission?
MR NASE:	Yes.
WILSON J: And is it your submission that the Court should

nevertheless proceed to hear the application in

other respects?

MR NASE:  That depends very much upon the attitude of both

the Court itself and the attitude of Mr Cooke.	He
could have asked the Court at the outset to give

some intimation that may assist the petition to

find its way before the Court of Criminal Appeal or

he could invite this Court to determine the appeal

on the materials that were before the Court of

Criminal Appeal.

WIT,SON J:  It would be rather difficult for the Court to address anything to the executive?

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MR NASE:  No, although in DAVIES, an indication of that kind

seemed to have been communicated by the Chief Justice.

BRENNAN J: 

There the prosecutor said that he would advise

the Attorney-General to refer the case to the
Full Court?

MR NASE: 

Yes.

BRENNAN J: What does the prosecutor say here?

MR NASE:  I must confess I have not considered my position,

but certainly I could - - -

WILSON J: It does not appear that the Court addressed any

view to the executive.

MR NASE:	~ have misread the passages - - -
WILSON J: PerhaEs I have not caught up with it.	I see the

point 'The Court is of the opinion that the evidence

certainly ought to be considered in a proper manner
in relation to the appeal of these two persons

to the Full Court of the Supreme Court.".

MR NASE:  Yes.

WILSON J: It points out the means for securing that

consideration?

MR NASE:  Yes.

BRENNAN J: Are you in a position to say what consideration,

if any, has been given to the petition?

MR NASE:  I cannot assist the Court because.the petition

went to the Solicitor-General. I have the

same general understanding as :: Mr Cooke, that

perhaps he may be holding h~~ hand until the

present application came before the Court. Whether

that is a correct attitude or not is another

question.

'WILSON J: Thank you, Mr Nase. Do you wish to say anything

arising out of Mr Nase's - - -

MR COOKE:  No, Your Honour.

WILSON J: The Court will retire for a few moments.

AT 3.33 PM SHORT ADJOURNMENT

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UPON RESUMING AT 3.51 PM:

WILSON J:  The Court rules that it should not proceed to

entertain the application in so far as there is

any question of fresh evidence involved. It

accepts the view expressed by Sir John Latham in

DAVIES AND CODY, 57 CLR 170 that it is without

power to entertain an application for special

leave on that ground.

With respect to the course it should adopt

on the application as it remains, the Court is of
the view that, having regard to the pendency of

a petition to His Excellency the Governor of

Queensland, with the possible outcome of that

petition being further consideration of the case

by the Court of Criminal Appeal, a circumstance
which, if it occurred, could well render these

present proceedings moot, the proper course for the Court to adopt is to adjourn the application sine die with liberty to the applicants to have

the matter brought on again as soon as they may

be advised. That is the ruling of the Court but

my brother Deane wishes to add something, his

own view.

DEANE J:	I disagree with the conclusion of the other members
of the Court that the matter should be adjourned
against the wishes of the applicant. It seems to
me that since the applicant is in gaol and seeks
to proceed with his application for leave to appeal against his conviction which would result in that
conviction being quashed if he succeeds, he should
be permitted to go ahead and have that application
for special leave to appeal determined. I do not think that the fact that that conviction might be
quashed by reference to matters arising dehors his
trial should preclude him from challenging the
conviction of the jury at his trial.
WILSON J:	So the rulings of the Court will be as I indicated.

Is there any matter that counsel wish to raise?

MR NASE:  None on my part, Your Honour.

MR COOKE: Your Honour, I was just wondering whether the Court

would be minded to express a view as to whether the

evidence raised in Dr Tilstone's affidavit is such that should be considered by the Court of Criminal Appeal.

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WILSON J:  As you can see, Mr Cooke, the Court has given

serious lengthy consideration to your request, but

it is of the view that it simply is not in a position

to express any view upon the merits or cogency

of the alleged fresh evidence and the matter must

simply rest with the authorities in Queensland to

give it appropriate consideration.

MR COOKE:	Thank you, Your Honour.
MR NASE:	Perhaps I could add that I can undertake to communicate

to the Solicitor-General that the petition should

receive urgent consideration.

WILSON J:  Yes, I am sure the question of urgency is

something that we would all subscribe to.

Thank you, Mr Nase.	That concludes this matter
for the time being.

AT 3.58 PM THE MATTER WAS ADJOURNED SINE DIE

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