Giardini v The Queen

[1993] HCATrans 298

~

?-

• "I

• ',;-~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S26 of 1993

B e t w e e n -

SANDRO GIARDINI

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

Giardini 1 8/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 9.47 AM

Copyright in the High Court of Australia

MR J.R.A. DOWD, OC:  I appear for the applicant, if it

please the Court, with my learned junior,

MR J.A. COOMBS. (instructed by Roderick Storie)

MR R.O. BLANCH, OC:  May it please the Court, I appear for

the Crown with my learned friend, MR P.J.P. POWER.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales)).

MASON CJ: Yes.

MR DOWD:  If the Court please, I have summarized the matters

to be put by the appellant, and some additional

further arguments which I hand up; I have four

copies of that; I will give my learned friend a

copy.

MASON CJ: Yes, thank you.

MR DOWD:  If I may say at the outset, the first two grounds

involve matters of general principle that

automatically attract, it is submitted, the

jurisdiction of this Court. The third matter is

the Jones v Reg issue, which is the supervisory

jurisdiction of this Court and, in part, and

perhaps if I may deal with that matter first, where

the Court of Criminal Appeal has failed to deal

with the matter placed before the Court of Criminal Appeal, it is a substantive matter, then this Court

has an obligation to examine that matter and to

send it back to that court.

There is a second principle that if Jones v

Reg, a clear statement of this Court, is not being

followed, then it is incumbent upon this Court, it

is submitted, to place the matter back - to restate
the necessity for the court to deal with matters

argued before it. In short, on the third matter,

which relates to Parker's case, it was stated by

myself at the hearing before the Court of Criminal

Appeal, that Mr Boulten was misled; my learned

junior had spoken to him; the court was apprised of

that fact; there was no suggestion at that hearing

by the court or otherwise that Mr Boulten was not

misled by, in fact, what Judge Court had said, and

in fact -

MASON CJ: But, Mr Dowd, I fail to understand how he could

have been misled when you read what the sentencing

judge said.

MR DOWD:  Yes, to some extent in a trial - to use the

expression, a nod is as good as a wink - it is

ambiguous what His Honour said at that stage, and

Mr Boulten - and I take it Your Honours have seen

Giardini 8/10/93

the affidavit which has been filed by

Mr Boulten - - -

MASON CJ: Yes, we have read the affidavit.

MR DOWD:  We had an issue of fact that Mr Boulten was misled

and this Court has to deal with the question of

where counsel is, in fact, misled, for whatever
reasons, in the conduct of a trial and the way in

which a trial judge deals with the matter. If, in

fact he is misled, and it is open on what the
learned trial judge said that he could be misled,

even though on one inference it was clear that he

was not holding out hope, the fact is he was

misled. The words could be interpreted as an

indication that he was not going to deal with it

cumulatively and therefore this appellant is

entitled to have that matter argued as it would

have been argued by the trial judge.

MASON CJ: Surely you are not suggesting that in every case

in which a counsel has been misled, whether with

justification or not, there must be, as it were, a

reconsideration of the matter.

MR DOWD:  No, Your Honour. It is where in the context of a

particular trial counsel is in fact misled and a

reading of what the learned trial judge said could

give some assistance to that. You cannot obviously

have matters coming up and counsel saying, "Well I

was misled and that is that." This case is a

matter where on one reading, in the context of the

trial, what His Honour Judge Court said was

something which counsel could be reasonably

expected to think he did not have to deal with the

matter and counsel in fact dealt with it.

So, it is the two principles involved; some

misleading words in the mind of counsel and the

sworn fact that he was misled and before the Court

of Criminal Appeal this was not, in effect, argued

and not dealt with by the Court of Criminal

Appeal - I mean it was argued by me, but it was not

argued by the bench.

DAWSON J: But he was given leave to appeal against

sentence, was he not?

MR DOWD:	Yes.
DAWSON J:	And they rearranged it.
MR DOWD:	Yes, yes. We got part of the way before the Court

of Criminal Appeal. Yes, the court could, in fact,

have dealt with that, but did not purport to deal

with it on the basis of Parker's case. They dealt

with it on the South Australian case of Smith v R.

Giardini 3 8/10/93

So that part of it the court granted leave, and in fact dealt with the sentence, but this aspect of it deals with the fact that counsel was misled, but

the court here did not deal with the matter. The

court was obliged to deal with this matter when it

came before it, so there are two matters: one,

Parker's case says that, in effect, you have got to

be put on notice. He says he was not put on notice

by what His Honour said and, in fact, was misled,

but the appeal ground here, as a matter of general

principle, is that the court still is obliged, by

Jones v Reg, to deal with the matter and did not deal with it - - -

DAWSON J:  I am not sure that I understand, Mr Dowd. Did

not the Court of Criminal Appeal deal with the

matter de novo once they had given - - -

MR DOWD:  Yes, Your Honour. It dealt with the appeal, but

it did not deal with this specific aspect of it,

which was a specific grant. It just omits dealing

with the matter altogether.

TOOHEY J:  No, but if the Court of Criminal Appeal reviews

the sentence, what significance does the misleading

of counsel, in the sense that you have explained

it, continue to have?

MR DOWD:  Because it deals, Your Honour, with a false

premise.	It deals with it on the basis that the
Parker point had not been made.	In effect, it

dealt with it and specifically dealt with it only

on Smith, and what the appellant is entitled to, in

our submission, is that it deal with it as though

the Parker matter had been corrected and then deal

with it on the basis of Smith and in fact may have

shortened the sentence even further, and in our

submission would have done so. If Your Honour can

remember, this is a trial in which the judge made a

determination, absent the Parker matter and, in

effect, got it wrong on Smith.

The Court of Criminal Appeal corrected the

Smith matter, the matter of his health and so on,

but did not correct the failure to make

submissions. Therefore it is dealing in an

artificial situation and this Court needs to look

at the failure of the Court of Criminal Appeal to

correct the failure to deal with the matter before

going on to say that the court, in fact, looked at

it again, because the basis of the looking again

was, in fact, Smith only, not the failure to have

procedural fairness and some indication from the

court clearly that did not mislead counsel.

TOOHEY J:  But what are you suggesting the Court of Criminal

Appeal should have done: simply sent it back by

Giardini 4 8/10/93

reason of this particular ground, or taken the

ground into account and, if so, in what way?

MR DOWD:  Yes. In our submission it should have done either

of those, but properly in this case, taken - and it

is very difficult for the court to do the

artificial situation of retrying the trial, but it

had the choice of either dealing with it and
requiring a new trial - new sentencing - or to in

fact deal with both matters when it resentenced.

It did not do that. It failed to do it and Jones

required it to do that and it is not, with respect,

open to say that just because they resentenced him

that they resentenced him on a proper basis, they
resentenced him on a partial basis, which is the

health matter as required in Smith, and quite

correctly, we do not challenge that, but it ought

to have looked at it as though the trial judge had

in fact correctly given counsel an indication so he

could make submissions, because the ultimate
sentence was a very heavy one in the light of

someone such as the appellant with his serious

health problems.

DAWSON J: But you did address the Court of Criminal Appeal

on this point?

MR DOWD: It was addressed. It does not come out in the -

it is only a partial transcript.

DAWSON J:  It is very difficult to see what they could say

in the circumstances, because they then proceeded

to assess what was an appropriate sentence.

MR DOWD:  Quite, but in fact they only selected one basis.

They ignored this matter and although it is

difficult to see what they should have done, in our

submission they should have firstly said, "Yes, he

was misled", therefore there ought to have been a

proper hearing on the basis that, in effect, the

counsel was not misled. If it decided to

substitute its own aspect of that in addition to

the Smith matter - - -

DAWSON J:  In effect they are saying they are now giving you

a proper hearing.

MR DOWD: Quite, but omitting this point altogether.

DAWSON J:  The point did not arise before them. They were

not misleading anyone.

MR DOWD:  No, but with respect when the Court of Criminal

Appeal is looking at a serious matter, such as

this, a matter of sentencing on a serious charge,

it cannot just say, "Oh well, we will deal with it

on that basis, we are not to address that point at

Giardini 8/10/93

all". It was a point fairly raised before the

Court of Criminal Appeal and ought to have been

dealt with by the court - - -

DAWSON J: Perhaps what I am putting to you is, it was a

matter to be taken into account on whether to give
leave to appeal against sentence, but once leave
had been given then it was a matter of deciding the

appropriate sentence in all the circumstances.

MR DOWD:  That would be so if they had purported to correct

the error at the trial of the misleading and the

failure to have submissions. In effect, if was

saying, "We are going to rearrange the sentence,

ignoring the submissions of counsel about whether

it should be cumulative or concurrent". They said,

"We will just deal with it on the Smith aspect".

That was an obligation they had anyway and

fulfilled that obligation. They cannot carry out

two obligations by dealing with one only. They

must, under Jones, deal with both matters before

either sending it back or dealing with it

themselves. They failed to do that.

MASON CJ: But is this not a typical instance of what

happens when there has been a denial of natural

justice at first instance and there is an appeal.

Admittedly the denial of natural justice at first

instance is never in one sense cured, because the

appellate court takes the matter unto itself and

then proceeds to decide the substantial question in

relation to which natural justice was denied. But

once the appellate court is seized of it and

considers all the arguments that are presented on

what order ought to be made, that is regarded by

the law as curing the defect.

MR DOWD: For the granting of special leave, yes, but then

the court has to go on and carry out the duty to

actually deal with the point. That is a very

task - - -

MASON CJ: But deal with what point, that is the difficulty

I have?

MR DOWD:  The point that the judge sentenced him, absent

counsel's procedural opportunity, fairly given, to

put submissions - - -

MASON CJ:  As has been put to you, Mr Down, how can the

appellate court do anything other than arrive at

what it considers to be the appropriate order?

MR DOWD:  Of course, provided it deals with the matters

before. It dealt with Smith. It did not deal with

Jones. It had an obligation to do so. The

supervisory jurisdiction of this Court is to ensure

Giardini 6 8/10/93

that the Court of Criminal Appeal, where a matter

is fairly and squarely omitted, if that is what the

court have found, if they gave special leave, they have fairly to deal with the procedural obligation to give counsel an opportunity to address.

He did not have that opportunity, therefore

the Court either sends it back; grants a new trial

for all the other reasons, or it in fact attempts to deal with it, it must purport to deal with the matter both dealing with the Jones point and the

Smith point. And it did not do that. Therefore it

did an artificial exercise - it is like being a

little bit pregnant - they dealt with one bit of

it, they have to deal with the whole lot of it.

Having been seized of the matter, they just failed

to do so. All three judges failed to deal with it.

They are obliged to deal with it. That is what

this Court has said. We want that principle

reaffirmed in terms of the principle to be looked at, as well as, in the particular case, entitling the appellant to a hearing on that issue.

TOOHEY J: But if the court had said - that is the Court of

Criminal Appeal - we are satisfied counsel may have been misled by what the trial judge said, we now give you the opportunity to address us as to concurrency of sentence - which is what I

understand happened in any event - how does the

point remain a live one after that?

MR DOWD:  We were not given the opportunity to address that.

We only addressed the Smith point, and the court dealt with the Smith point. We were not granted the opportunity by the Court of Criminal Appeal to

argue the procedural fairness and make our

submissions.

TOOHEY J:  No, I do not think I am making myself clear. I

am accepting, for the purpose of the exercise, that

there may have been some procedural unfairness, but

if counsel was permitted to address the Court of

Criminal Appeal at large as to the severity of sentence, including whether the sentence should

have been cumulative, totally or partially, what

significance does the procedural unfairness

continue to have?

MR DOWD:  It would then - if counsel had been given that

opportunity, there would not then have been because

the correction would have been made, the court

would have - - -

TOOHEY J: But are you saying that you were not given the

opportunity before the Court of Criminal appeal to

address on concurrency?

Giardini	8/10/93
MR DOWD:	No, Your Honour.
TOOHEY J:	I did not think you were.

MR DOWD:  The court dealt with the matter. All we did was

raise that as an issue. It did then say, we agree

with you and then gave us the opportunity - - -

DAWSON J:  You put your argument certainly.

MR DOWD:  Only as to why it was procedurally unfair. We did

not then go on because we needed, in effect, the

permission of the court to tell us that, "It was

procedurally unfair, yes.	Now make your
submissions".	We were not given that opportunity.

And not only not given that - - -

DAWSON J:  Once you were given leave the sentence was at

large.

MR DOWD:  But we got it all in one. We got our leave and

our Court of Criminal Appeal position in one, and

we get to the end of it and we have missed out.

The court cannot do that, with respect, it has got

to give me, on behalf of the appellant, the

opportunity to either argue it there, or before

another trial. And that is why there is a general

principle here; the court must give either the

opportunity there, and it cannot just say, "We will

give you special leave. We are shortening your

sentence on Smith.", omit the matter and pretend

that it was not there.

MASON CJ: But, Mr Dowd, I am not fully understanding, I

think, what actually happened in the Court of

Criminal Appeal. Now, when it came to the

presentation of your argument on the sentence
aspect of the appeal, argument was presented first

of all in support of the grant of leave, was it?

MR DOWD:  Yes. It was dealt with as one hearing - - -

MASON CJ:	One hearing?
MR DOWD:	One hearing, so we presented our material in terms

of the grant of leave on the various matters. We argued only the Smith point on the sentence point

as a separate matter, because we had not got up on our point about Parker. The court, in effect, had not told us what it was going to do and arguing the

whole matter as one, we argued the Smith point and

got up on the Smith point. We had left - and I did

not expect this to happen, but we did in fact get

up on that - but without the opportunity to have

the second stage, which is the arguing of Parker.

Giardini 8/10/93

MASON CJ: But I still have not got a complete picture in my

mind of what happened in the Court of Criminal

Appeal. What did you argue before you sat down?

MR DOWD:	We argued the various leave points, concurrently with the substantive - that is, leave to appeal -
and the appeal concurrently, and were granted the leave to appeal only on the Smith point on the sentence.
DAWSON J:	On the sentence, did you argue that the sentence should be partially or wholly concurrent with the
other sentences?
MR DOWD:	No, that was not argued, because we had no basis

for arguing that. Our leave was leave to, in fact,

send the matter back because of the procedural

unfairness on Parker. The Court of Criminal Appeal

has to give us that leave before we can argue it.

We did not say, well, if we got up on the point, then the matters the court ought to deal with are these, because we were arguing for a new trial. We

dealt with each of the matters and, in fact, argued

each of them separately, assuming that the court,

in fact, would not be hearing the matter de novo.

It is a very artificial situation for the Court of Criminal Appeal to suddenly say, "Right, you have got your right now to argue Parker; argue it; make your submissions on that", because, in effect, we

were seeking the leave, we got the leave. It would

have been appropriate for a second hearing to deal

with that matter, because otherwise we would be

arguing a fairly futile matter, because the

respondent would not be on notice that they would

have to argue it. All they knew was our grounds

for the appeal as well as the sentence matter. All

we argued, because we were there, was the Smith

matter. The court did not give us the opportunity

because we had not got up on that point to argue it

but, if asked, obviously we could have then done

so, but in a very artificial basis because it was

very difficult before a Court of Criminal Appeal to

go back and argue the submissions that ought to be

made on a cumulative as against a concurrent

sentence.

TOOHEY J:  I just find it difficult to see how you would

argue procedural unfairness in terms of counsel

having been misled without at least saying

something about the appropriateness of a concurrent

sentence, because otherwise the misleading of

counsel just has no part to play in the sentencing.

MR DOWD: Well, as I have said, the procedure is, you deal

with both matters simultaneously, which we

did - - -

Giardini 9 8/10/93

TOOHEY J: Yes, I understand that, but in making the

procedural unfairness point, I would have thought

it almost inevitable that it would be necessary to

say something to the court to indicate, at least,

that concurrency was not only an option but the

appropriate option.

MR DOWD:  Well our view, taken before the hearing, was that

that was not a matter the Court of Criminal Appeal
was likely to deal with because of the artificial

nature of trying to sort out the submissions that

were made then, and we took the view that the

matter was likely, if we succeeded on the Parker

point, to go back to be dealt with by another

trial, not by the Court of Criminal Appeal, and we

did not think then that that was likely, but if the
court had raised that issue then perhaps it would

have been necessary to seek a short adjournment to,

in fact, argue that matter as well. But we had to

gets our leave first. We did not get it. We

believe we should have had that leave, then to say,

"Well, it is not appropriate here to reargue the

sentencing issue", but we were not given the
opportunity to argue that, and we say it is
incumbent upon the Court, under Jones, in dealing

with the Parker point, to in fact give us the

opportunity to do that - - -

MASON CJ:	Have you got Parker and Jones there?
MR DOWD:	Yes, Your Honour.
MASON CJ:	Would you hand them up, please?

MR DOWD:  Yes. Parker v Director of Public Prosecutions,

28 NSWLR, and I have Jones v Reg, 166 CLR 409, and

I hand those up.

MASON CJ: These authorities merely establish the principle

that it is for the court to give the party an

opportunity to present submissions in relation to a

case. point on which the court proposes to dispose of the

MR DOWD:  Yes. It is dealt with at page 293, but it in

effect just states the simple principle, and I am

not arguing anything in relation to Parker except

that we ought to have had the opportunity to argue

it. There is nothing new in Parker that is

relevant; we say that this was a Parker case

because of the circumstances - what the judge said,

what His Honour said.

MASON CJ: Yes, and it is the same principle in Jones as

applied to a Court of Criminal Appeal.

MR DOWD:  Yes, Your Honours.

Giardini 10 8/10/93

MASON CJ: Yes, well I think you have said all that can

possibly be said about this point.

MR DOWD:  Thank you, Your Honours. If I may now, rather

than deal with them totally in reverse order -

perhaps it may be appropriate if I deal then with

ground 2, the McKinney direction, because that is

the wider general matter of principle.

MASON CJ: Yes.

MR DOWD:  Having gone from the back I will continue to do

so. Your Honour, the submissions that I have

placed before the Court, the supplementary

submissions in this matter, the short matter on

McKinney is that there have been several decisions

as listed there, Derbas, Tarantino and Stewart,
which have attempted to read down, in our

submission the clear statement of this Court -

clear majority statement - that a McKinney and

Judge direction has to be given in the context of the trial. Even though His Honour Judge Court gave a very clear McKinney and Judge direction

simpliciter, in terms of looking at confessional

evidence, and Your Honours will remember this is a

trial in which the Crown could not get up unless the confessions were there, there was not enough

evidence.

DAWSON J:	What page is his direction?
MR DOWD:	His Honour's direction, page 29 of the application

book, which is also page 29 of His Honour's

directions. At the bottom of page 28:

I mentioned to you ..... that I am required

to give you a warning. That warning which I

am required to give you is this.

Then, at the top, down to about two-thirds of the

way down the page.

DAWSON J:  What do you say he should have said that he did not say there?

MR DOWD: Well, that arises from the submission of

Mr Boulten, counsel for the appellant, which is at

page 37 of the application book and at about

line 9.	What Mr Boulten asked was that you cannot
just say confession, you need corroboration.	You

have to look at it in the context of the particular

hearing; that you cannot in fact just say - get out

of your McKinney and Judge obligation by saying,

"Uncorroborated confessional evidence requires a

very clear direction". The direction has to be in

the context of the hearing.

Giardini	11	8/10/93
DAWSON J: It was. He said:

At the time when that disputed conversation allegedly took place each accused was in

police custody and effectively under arrest.

Each accused was, at the relevant time, alone

in the sense that the only other persons

present were police officers. According to

each accused ..... that conversation simply did

not occur.

Well, what more can you say?

MR DOWD:  Yes, but that is not, with respect, the majority

judgment in McKinney and Judge, and if I can hand

up that decision of 65 ALJR 241.

MASON CJ: Is it not published in the Commonwealth Law

Reports? I thought it was, Mr Dowd.

MR DOWD:  I am sorry, I apologize for my failure to - I had

the copy of it and I did not look and I apologize
that I failed to do that. Can I take Your Honours to page 243; the foot of the second column on that

page, and at about point 8 Your Honours may see the

words, "Within the context of this warning", this

is where the majority of the court picked up

Justice Deane in Carr:

Within the context of this warning it will

ordinarily be necessary to emphasize the need

for careful scrutiny of the evidence and to

direct attention to the fact that police

witnesses are often practised witnesses and it

is not an easy matter to determine whether a

practised witness is telling the truth. And,

of course, the trial judge's duty to ensure
that the defence case is fairly and accurately
put will require that, within the same
context, attention be drawn to those matters

which bring the reliability of the

confessional evidence into question.

Now that is the failure - that is what Mr Boulten

asked for. His Honour was obliged, in terms of the

confessional evidence, to direct the jury to say,

"This is the evidence, but it has to be looked at

in the context of the trial" - the people they have
identified, the blond man coming in, where Giardini

was clearly a black-haired man and there was no

question of that - - -

DAWSON J:  I see. It was the failure, in the context of the

warning, to mention the hair colour problem.

MR DOWD: Well, matters such as that, and primarily that,

that you cannot just give a bald McKinney and Judge

Giardini 12 8/10/93

statement. You have got to look at the trial and

say, "In this circumstances," you must say, "on the

one hand you have got the police evidence

uncorroborated, but you must look at the other

major matters". And then His Honour is, with

respect, obliged to look at those matters.

MASON CJ: But this question of the colour of the hair; that

would have loomed very large at the trial, would it

not?

MR DOWD: Oh yes. It was a big issue at the trial. It was

dealt with in address. It was dealt with by

His Honour quite correctly in his summation before

the jury. That is not the problem.

MASON CJ: It is surely unthinkable that in, as it were,

evaluating the police evidence, that that would not

have loomed large in the mind of the jury.

MR DOWD: Well, we are dealing, with respect, with jurors

who are not necessarily subtle or as understanding

of the criminal process.	They are the ordinary
member of the street - - -

MASON CJ: Well, they would have to be extraordinarily

unsubtle if they were not aware of that.

MR DOWD:  Yes, quite. The jury - and indeed the jury asked

a question about the colour of the hair and so on,

and His Honour declined to do it.

MASON CJ:  Which indicates that they were given very careful attention to it.

MR DOWD:  Very much. But this appeal point is simply that

McKinney and Judge is not just an obligation to

say, "Uncorroborated police evidence, give a

warning". The majority of this honourable Court,

in fact, made it clear at that point in McKinney v

Reg, that direction has to be given in the light of

the context, and if there are matters in the trial,
the trial judge is obliged to say, "You must look

at this in relation to", and then point out matters

such as the colour of the hair. He cannot just

deal with it at some other point because the

McKinney and Judge direction is so clear that, with

respect - - -

DAWSON J:  He did say that police officers sometimes

fabricate evidence and you would be naive if you

did not accept that fact. You say he should have

gone on ..... they may have fabricated the evidence

about the colour of the hair.

MR DOWD:  No, with respect, Your Honour - - -

Giardini 13 8/10/93

DAWSON J:  Or fabricate evidence as to which were doing

what.

MR DOWD:  No, the colour of the hair came from the other

witnesses. That was not a fabrication point. He

was only dealing with the police evidence when he

gave his direction. What his obligation was is as

decided in the majority there, was to deal with it

contextually. He ought to say - - -

DAWSON J: Well, what do you say he should have said?

MR DOWD:  He should have said, "In the light of the very

clear evidence and the conflict about this, you

must evaluate that other evidence in relation to

the unsworn confessions". You must, in fact,

scrutinize the statements, look at the evidence and

direct the jury to look at it in context, because

that is what the passage I read out of the majority

judgment says; that you must, in fact - attention

be drawn to those matters which bring the

reliability of the confessional evidence into

question. So that, if there is a matter were

clearly the police say that Giardini, the

black-haired man goes in, and you have got the
witnesses - other witnesses - saying, the majority
of whom said he was blond, surely as a matter of

common sense, since the judge explains in fairly

simplistic terms all the matters before the jury,

he has to point out in McKinney and Judge a police

propensity to lie and look at it in the light of

this evidence.

MASON CJ: But that does - a failure to point to every

matter that is in the context does not give rise to

an error of law in the directions given by the

trial judge.

MR DOWD:  No, particularly as the law now is that the judge

does not have to deal with all of the matters.

MASON CJ: Yes.
MR DOWD:	He has an obligation, we say, and the matter of

principle for this Court to deal with is that there

ought to be a clear statement of McKinney and Judge

as to what the judge's obligation is.

MASON CJ: Well I think, for my part, that McKinney and

Judge is a clear statement, and if people do not understand McKinney and Judge I do not think

anything else we are going to say is going to

increase that understanding.

MR DOWD:  Your Honour, I would expect in the light of the

4:3, I would have expected Your Honour to say that,

Giardini 14 8/10/93

with respect, but Your Honour is not flanked by

Judges who shared Your Honour's view.

MASON CJ: Well, they are bound to accept my view.

TOOHEY J:	We are just maintaining a silence, Mr Dowd.
DAWSON J:	Mr Dowd, I am not sure that a conflict of

evidence is something that goes to the reliability

of the confession. Of course, if you believe the witnesses you may reject the confession, but that

is not one of the factors going to reliability

which McKinney and Judge dealt with.

MR DOWD: Well, it is our submission that as the Court said

there, it cannot just deal with it baldly on the basis that police lied and so on. You must deal

with it - - -

DAWSON J: But it is a matter of accepting one set of

evidence as against the other. Now, that in itself

cannot tell you anything about the reliability of

the confession so you look at other factors.

MR DOWD:  Yes. The confession, it must be remembered, said

"I did it". Giardini said, "I did it".

DAWSON J:  Yes and the judge told them factors going to

unreliability. You had experienced police

officers. Policemen sometimes tell lies. The

accused had no one with them when they were said to

make these admissions and so on.	But those are
the factors going to unreliability.

MR DOWD:  The simple point is, if Giardini is alleged to

have said he did it, and we are here on behalf of

Giardini, and there is strong evidence about the

blond hair, it is in that context, applying this

majority decision, that His Honour should have

adverted to that fact because it stands out like a

sore thumb that a black-haired man saying, "I did

it" and a significant number of witnesses saying he

had blond hair, if the judge deals with all of
those matters and does not make a clear direction,

the jury has to deal with this, then he fails, in

our submission, on this matter of principle. And

the second point on that, of course, is that there

is obviously a need, with respect, for this Court

to restate that principle because there have been
several attempts to deal with it since, and

the ..... is of such principle right across the board

that, we submit it ought to be dealt with.

MASON CJ:  Now, there is just one thing I am interested in,

Mr Dowd: you say there are several cases with

evidence a failure on the part of the supreme court

to comply with the McKinney and Judge requirement.

Giardini	15	8/10/93
MR DOWD:	Yes.	They have been dealt with in those three

cases that - - -

MASON CJ:  Have you got the cases there?

MR DOWD:  They are listed in those submissions. I do not

have those cases and I - - -

DAWSON J:	Derbas, Tarantino and Stewart.
MR DOWD:	Yes, I am sorry, the point of the submission was

merely to say they dealt with it. I cannot develop

the point of how they failed to deal with it.

MASON CJ:  No, in such free time as I have I will look at

these cases, but not for the purpose of disposing

of this case, of course.

MR DOWD:  But the point is that there have been attempts -

the fact that we make in our submission is the fact

that the Court has dealt with it on several

occasions is our argument in favour of a clearer

statement to underline what we say - we believe to

be the clear statement at the foot of page 243.

Those are our submissions on the second point.

As to the - - -

MASON CJ:	You are proceedings backwards through - - -
MR DOWD:	One substantial reason for that is that there is a

McKinney and Judge point - - -

MASON CJ:  Or as Sir Frederick Jordan once said to counsel,

"You are proceeding crabwise through the facts".

MR DOWD:  Crams go sideways; this is not a sideways

submission, Your Honour. But the point of dealing

with in this order is that a McKinney and Judge

point arises in the first submission. In the Court

by saying he has, in effect, nominated someone the	of Criminal Appeal His Honour the Chief Justice, in our view, erroneously dismissed Stanford's evidence	police cannot find. That was an error of fact. In
Gallagher it is fresh evidence should be looked at as though it were given at the trial. At the trial
the person "Brad" was one of those people who curiously disappears out of the trial but was there when they went to the flat.

DAWSON J:  But this is not fresh evidence. Did Davies and

Cody not deal with that; where a witness, and this

man made a statement from the dock, did he not?

MR DOWD:  Yes, he made a statement.

DAWSON J: Well, that is evidentiary material - - -

Giardini 16 8/10/93

MR DOWD: Well, it is something to be taken into

account -

DAWSON J:  - - - where a witness says that something he says

was untrue, that does not constitute fresh

evidence.

MR DOWD: Well, Your Honour, this witness was cross-examined

and gave his evidence about the circumstances of

it. It was, in fact, evidence that, if available

at the trial, the trial judge would have been

obliged to look at it and admit that evidence.

DAWSON J: But he was a co-accused at the trial and he did

give a statement to the contrary.

MR DOWD:  Yes, but in Gallagher, where in fact someone gave

later evidence, this, in fact was fresh in that

Stanford came forward and said, "What I said in my

statement was wrong. I am now prepared to give

evidence on this issue".

DAWSON J: But, correct me, is it not so - I think it was

Davies and Cody - a case where a witness swore an

affidavit saying that the evidence he gave at the

trial was false, so that you are left with two

oaths and the court said, "That is not fresh

evidence".

MR DOWD:  Yes, well in this case it was not an oath. He did

not give evidence. He gave what still is in this

State the entitlement to give a version of facts

before the court - - -

DAWSON J: Yes, I -

MR DOWD:  - - - he gave that. So it is not a sort of, "I am

now lying; I was not lying; I was lying before; I

am not lying now".

DAWSON J:

Not looking at two oaths and saying, "I do not

know which one to take".

MR DOWD:  No. This is a man who gave evidence and was

cross-examined and quite cogently gave his evidence

here and did not nominate, as His Honour the

Chief Justice said, the fact that it was someone

that could not be found. This was the "Brad" the

police knew because "Brad" was there. They took

all the names of everybody who was in the flat when they arrived there. He was known to the police and

His Honour the Chief Justice, and Their Honours that

agreed, missed that point and failed to give

cogency to Stanford's evidence.

TOOHEY J: But, Mr Dowd, that was really just a sort of

comment almost made in passing by the

Giardini 17 8/10/93

Chief Justice. The basic reason for refusing to

accept Stanford's evidence was that it was simply

implausible. The court heard him give evidence and

they just rejected it.

MR DOWD:  Your Honour, the court's obligation, when looking

at this evidence, is not to become the jury, and at

line 15 on page 87 His Honour the Chief Justice in

the applicatiom book said:

He is a witness who would be regarded by any

jury -

It is not the Court of Criminal Appeal's function

to become the jury. What has to be looked at is

what they are likely to do and here, with respect,

I disagree. The Chief Justice found that he would

be regarded, and all Their Honours agreed, that is

not the function of the court and whatever his

reasons may be the court in Gallagher do not say

that they must substitute their evaluation of the

witness.

It is a question of whether it is likely to

have an effect. This evidence was such the jury ought to have had the opportunity to look at and

the McKinney and Judge point is because of the way

this trial was conducted, this would have been a

direction - and remember, the matter has to go back

to the court as though it were at the original

trial - this would be a matter, if admitted, on

which the court would have had to give a further

direction. It, in effect, could not do it because

it was not there, but notionally we have to go back

to the trial and say, "If this evidence were

admitted, it raises a secondary McKinney and Judge

point.

The Court of Criminal Appeal has to do the

hypothetical exercise of going back, saying what

and there is therefore an obligation here on which	it would have said, had Stanford given that trial,
this Court has not pronounced where evidence ought
to be admitted; there is fresh evidence that, in
fact, a McKinney and Judge point would have to be
made by the trial judge in respect of this evidence
when looked at in the confessional evidence of the
police. Those are my submissions.

MASON CJ:  Thank you, Mr Dowd. The Court need not trouble

you, Mr Blanch.

Three points have been argued in support of

this application for special leave to appeal. None

of them raises a question of general principle as

distinct from a question of application of

principle to the facts of the case.

Giardini 18 8/10/93

In any event we do not consider that there was

a failure on the part of the trial judge to give a

direction in conformity with McKinney and Judge

and, having regard to the Court of Criminal

Appeal's conclusion that the so-called fresh

evidence of the witness Stanford lacked

plausibility or cogency, there was no error on the
part of the court in deciding that there was not a

significant possibility that the jury would have

acquitted the applicant.

As to the sentencing point, we are not

persuaded that there was any error on the part of

the Court of Criminal Appeal.

The application for special leave to appeal is

therefore refused.

AT 10.29 AM THE MATTER WAS ADJOURNED SINE DIE

Giardini 19 8/10/93