Glennon v The Queen

[1993] HCATrans 352

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M42 of 1992

B e t w e e n -

MICHAEL CHARLES GLENNON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

DEANE J

TOOHEY J

GAUDRON J

Glennon(4) 1 18/11/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 NOVEMBER 1993, AT 10.17 AM

Copyright in· the High Court of Australia

MR P.C. DANE, QC:  May it please the Court, I appear with my

learned friends, MR O.P. HOLDENSON and

MR G.J. THOMAS, (instructed by L.M. Jamieson)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MS K.E. JUDD, for the Crown,

(instructed by J.M. Buckley, Solicitor to the

Director of Public Prosecutions)

MR DANE: If the Court please. This case, as we understand

it, is limited to the issue of the application of

the proviso. The error identified by the court

below was a breach of the principle enunciated in

Petty v Maiden.

The Court of Criminal Appeal operated upon a

concession, made by me, that the issue in the

ground of appeal was limited to two counts, being

count 11 and 14, perhaps more conveniently

described as Behnk and Palmieri, being two of the

complainant witnesses.

Now, what followed in the judgment of the

Court of Criminal Appeal was the identification of the error of the trial judge in respect of the

principle as it applied to those counts, but

through an analysis of the facts and issues

applicable to the defences in those counts, the

defences to those counts were marginalized and

trivialized, so as to give the appearance of them

being insignificant, as compared to the way in

which the case was, in fact, conducted by both

sides, and thus the proviso was applied.

Now, before turning to the substance of this

case we wish to say something about the way in

which this ground came before the Court of Criminal

Appeal and then as to the concession. The ground

was not part of the original grounds of appeal that

first were drawn. What happened was, this Court

made the decision in Maiden v Petty and the learned

Chief Justice of Victoria, Sir John Young, at the

time drew both parties' attention to that judgment

and, accordingly, the first appeal was adjourned so

that both parties could address argument in

relation to it.

The next time the case came before the Court

of Criminal Appeal it had been joined with the

leave of the registrar. It was argued. This Court

now knows that, of course, it was decided on one

point, one point alone. That caused this Court to

reconvene again on the application of the Director

of Public Prosecutions, but it was remitted for the

arguments to be put again because there had been no

Glennon 2 18/11/93

judgment in relation to all the other grounds, of

which this was included.

Accordingly we went back to the Court of

Criminal Appeal and argued this yet again and so

the history of it is, while it did not come into
the original grounds of appeal, it was included on

the invitation of the Chief Justice. It was argued

once, argued twice and so it has now been put well

and truly before the Court of Criminal Appeal.

The second point that we seek to make is the context and structure of the learned trial judge's

directions to the jury. His Honour divided his

directions into parts: the first part as to

general law, and the second part as to the

individual counts as they applied to complainants.

Following the first part being delivered it was

transcribed and handed in the printed form to the

jury and not retrieved until all the deliberations

had been completed. So the general principles of

law were transcribed and handed to the jury in the

written form. Then each count or complainant's

matters were directed to the jury and they gave

specific verdicts in relation to them. We say that

it follows that during the jury's deliberation of

each and every count, the erroneous directions were

present in the written form.

By way of preliminary comment, we wish to say

as to the concession that the Court of Criminal

Appeal seemed to place a great deal of reliance upon, it was given in running in response to a question, and we said that the Maiden & Petty issue

was relevant to Behnk and Palmieri.

The point, of course, is that if one could not

make out the argument for the error out of the

Behnk and Palmieri counts, then one would not have

been able to make it out of the other two

complainants. It was clearest in those two counts. However, upon reflection, the error, we say,	infects all counts because the error was a positive
error of direction, as opposed to a misdirection by
omission, such as a failure to warn. Accordingly, when written submissions were sought by the Court
of Appeal at the conclusion of oral argument all the counts were addressed in relation to written
submission. We say that it follows that the jury
was provided with a false test of veracity, and when the central issue of the case was the word of the complainants, witnesses against the word of the accused, the Crown's task or means of proof was
made easier and the accused's position was made
more difficult.

Glennon(4) 18/11/93

Turning now to the summary of argument. conceded by the Crown that the applicant has a It is

right to silence. It is conceded that his silence

was erroneously said to be capable of supporting an

adverse inference against him. That appears where

His Honour gave the Bruce direction, if we are

permitted to use that shorthand term.

BRENNAN J:	Where do we find that?
MR DANE:	That can be found in volume 4 of the appeal books,

page 771. In order to put it in context, at

page 770 at line 23:

There has also been reference by

Mr Walmsley for the Crown to the refusal of the accused in some cases to answer questions put to him by the police. In the case of

Behnk and Palmieri, the accused did, when

questioned, choose to remain silent as to the

specific allegations put. There was, it must

also be said, what you might well think

general denial when the matters were put to

him and he was, unbeknown to him, being taped

in the case of Henry, Palmieri, Trentin and

Valotta -

as to Henry and Trentin there were verdicts of

acquittal -

when he went into the detail about the

conspiracy among the black belts to bring him

undone and the like.

Sergeant Coath -

he was the investigating officer in charge of the

matter -

cautioned the accused telling him he didn't

have to answer any questions. That is the
law.	An accused man is not obliged to answer

questions put to him by the police or required

to answer all questions put to him by the

police. It is a right given to him by the law

and if you were to use the exercise by him of

that right as adverse to him then again the

right would be worthless and you may not use

it in that way.

Having said that, however, I must also

remind you that the accused has claimed before

you in respect of the complaint made by Behnk
and Palmieri that there was a simple and

complete answer to the allegation made.

Glennon(4) 4 18/11/93

We say that the similar claim was made in relation

to Valotta.

Not only did he, before you, specifically

deny it but he also called evidence in the

case of Palmieri to state that at all material

times Mrs Dickason was sleeping in the room

and that in the case of Behnk there were no

huts.

In testing the veracity of the defence

brought before you in this court you are
entitled to have regard to the fact that it

was not revealed to the police and you are

entitled to ask yourselves, if this

explanation is true, surely the sensible thing

was to tell the police about it as soon as

possible. Such a test of the veracity of the

story does not depend on drawing any

inferences from the exercise by the accused of

his right to decline to answer questions but

from producing here a story which if true he

could have produced to the police but didn't.

Again, however, you will consider his

explanation for that failure which was that he

had come to distrust the police profoundly, in

particular Mr Coath.

And so we say that that is what the Court of and what we understand the Crown has conceded to be

the error.

The next point where we say that there has been this error is by the learned Crown prosecutor

in his final address when he invited the jury to

at committal. In the case of Behnk, he declined to have a record of interview. In the case of

find that the defence witness, Vicki Dickason's

account at the trial of a camp involving Rocco

Palmieri, a record of interview was begun and he

recognised that he would say at a later date what

his defence was.

In the case of Valotta, he was shown

photographs at the beginning of the record of

interview and both he and the interviewing officer

was unable to identify Valotta. Throughout the

record of interview it emerged that they identified

somebody and then a point of realization occurred

and words to the effect of, "If you only knew what

the truth of the situation was, you would realize

how silly you are being in interviewing me and

making these allegations". That class of

conversation took place.	"I will tell you about it
later."

Glennon(4) 18/11/93

At the committal the witness, Vicki Dickason,

was called and she gave evidence about two camps,

the Palmieri camp and the Valotta camp. She did

not, however, give the same evidence at the

committal as she gave at the trial. At the trial

the evidence was, "The Palmieri offence could not

have occurred because I was in the room where you

say the offence happened" - Mr Palmieri - "and it did not happen. I was there; it did not happen."

So that was the defence in Palmieri. There was

another defence in Valotta about there being dams

but as to Vicki Dickason, she was saying, "I was at

the Valotta camp. Everybody slept in a large room.

Valotta slept in the large room where I was". Now

the criticism was, Mrs Dickason did not say those

things at the committal.

BRENNAN J:  What is the point that you are making here,

Mr Dane?

MR DANE:  The point there is that there was a breach by the

prosecutor, in his final submissions to the jury on

the facts, that reflected upon the accused's

conduct of the committal, that is, he did not run

this defence at the committal. He is now running

this defence. When asked by the prosecutor at the

trial, Mrs Dickason said, "I was not asked those

questions at the committal."

BRENNAN J:  You are putting this all together, are you;

Behnk, Palmieri and this?

MR DANE:	Yes.
BRENNAN J:	I mean, we have now seen part of the judge's

summing up. We have not seen anything of what the

prosecutor has done that is offensive to this

principle.

MR DANE:  What we say is that this is a point whereat the

learned Crown prosecutor erred.

BRENNAN J:  Maybe he did, but where? Are you trying to run

together the error in the judicial direction from

the error in the Crown prosecutor's summing up?

MR DANE:  Yes, we are saying that the

BRENNAN J: Perhaps you ought to show us what the Crown

prosecutor said.

MR DANE: There has been a set of supplementary volumes

prepared as preparation indicated that these

documents had been omitted erroneously, and so a

set of supplementary application books were

prepared.

Glennon(4) 6 18/11/93

MASON CJ: It is at page 529 of supplementary book III.

MR DANE:  At the top of the page:

She was not telling the truth.

He was referring to Mrs Dickason.

She was just telling lies in an attempt to

assist the accused man.	And she got the
script wrong, twice.	You now know that she

gave evidence across the board about a whole

host of things in the committal proceedings.

You know enough about the committal

proceedings to know that that is a preliminary

hearing that involves a natural first step to

a trial and a Magistrate hears and determines

it. She was not at her persuasive best there,

members of the jury, because apart from giving

evidence about a whole host of things that she said she gave evidence about here, she gave no evidence at the committal about this weekend

involving Rocco Valotta.

So we say that that was a comment about the failure

to produce the defence at the committal.

GAUDRON J: Well, does it? It reads more like an attack on

her credit.	Did you ask for any directions about
it?

MR DANE: There were no directions about it. Your Honour

will appreciate that this was all pre Petty &

Maiden, so the judge was labouring under decided

cases of Bruce and McNamara in Victoria. It was
only because of the way in which the ground of

appeal was added on the - - -

GAUDRON J: It was argument from counsel which counsel for

the defence could deal with in reply in his

address.

MR DANE:  Yes.

MASON CJ: But it relates to her as a witness; it does not

relate to the applicant.

MR DANE:  There is one other thing. The applicant conducted

the committal himself. That is perhaps the reason

why we are putting this point forward.

BRENNAN J:	What is the proposition, that he did not ask her the question or that he asked her and she did not
answer?
MR DANE:	No, the proposition was that it was not run this

way at the committal.

Glennon(4) 7 18/11/93

BRENNAN J:  I do not understand what that means from the

jury's point of view.

MR DANE:  We say that when the test of veracity is whether

or not you run it here for the first time at the

trial is a matter that one can take into account as

to the weight, then this was an incidence that the defence was not run at the first opportunity - the only point that we seek to make.

TOOHEY J: But from what you have said, Mr Dane,

Mrs Dickason gave evidence at the committal

proceedings.

MR DANE:	Yes.
TOOHEY J:	I ask you that because there is a passage on

page 703 which you have noted in your summary and

which the trial judge, I take it as part of the

direction to the jury, says:

The Crown points to the fact that at the

committal proceedings Vicky Dickason did not

give evidence and asks why not.

Are we to read that as meaning did not give

evidence about these matters?

MR DANE: Correct, Your Honour. That is the next point. It

is simply that the judge seized upon it. The next

point that we seek to go to is the erroneous Bruce

direction applies logically to the case of

Rocco Valotta. That can be gleaned from appeal

book 5 at 947r.

MASON CJ:  Mr Dane, I do not quite follow this sentence at line 20 on page 703:

The Crown points to the fact that at the

committal proceedings Vicky Dickason did not

give evidence and asks why not.

But she did give evidence in the committal

proceedings, did she not?

MR DANE:  She gave evidence at the committal but did not

give this vital evidence which goes to the defence.

MASON CJ:	And that is what this sentence is directed to?
MR DANE:	Yes.
MASON CJ:	The judge was intending to say, "She gave

evidence at the committal proceedings but did not

give evidence of this defence."

Glennon(4) 18/11/93

MR DANE: That is right. This witness was called as a

defence witness at a committal but she did not

provide this evidence at the committal.

TOOHEY J:  I must say, even if you read it that way, as

clearly, from what you say, you must do, it is hard

to find the context in which the remark is being

said. I mean if you look at what precedes it, what

is it that His Honour was saying that

Vicki Dickason did not give evidence about?

MR DANE:  Being in the room when Palmieri claims the offence

took place - - -

TOOHEY J: Yes, I understand that, but in relation to the

direction itself and what precedes it or, indeed,

what follows it for that matter, if it is relevant

to the context. There is no reference to Palmieri

on that page, or - - -

MR DANE:  He was dealing with Valotta on that page. It is,

perhaps, a very short way of expressing himself,

and it gives rise to this. The only reason why we

wish to draw the Court's attention to line 20 on

page 703 is because His Honour led his judicial

comment to the argument that was advanced by the

Crown as to Vicki Dickason not providing the

evidence at the first opportunity, namely, at the

committal. It is the only point that we seek to

make from that.

BRENNAN J:  On page 704 it is clear that what His Honour was

doing was trying to remind the jury of principal

arguments of counsel.

MR DANE:  Quite, and this area he was dealing with the

arguments of counsel. He does not give any

endorsement to it. Perhaps what we have

endeavoured to do there is to expand the
proposition where there were other blemishes in

relation to the Maiden v Petty point.

Continuing in the summary of argument, and

drawing the Court's attention to the record of interview of Valotta, that can be found in the

appeal book 5 at 947r. They were numbered in that

way because of the way in which the documents were

dealt with in the trial itself. This is Mr Coath

speaking to the accused:

"Could you think of a reason why young

Rocky VALOTTA would make these allegations

against you if they weren't true?"

"Yes".

"Do you want to tell me about that now or

not?"

Glennon(4) 9 18/11/93

"No, I'd rather say it, I'd rather cross-

examine Rocky in a court room and let it be

heard the first time there."

"Did he give you any encouragement to sexually

interfere with him?"

"Course not."

And so then it goes to the denial. The point being

made here is that the concession about Behnk and

Palmieri should have included Valotta, that is,

when the man says in his record of interview:

I'd rather cross-examine Rocky in a court room

and let it be heard the first time there.

This case was oath against oath. It was a

group of young people alleging these sexual

offences, coming forth, giving their evidence and

the accused man denying it. There was not a

defence of conspiracy of blackbelters, it was not a

defence as to whether or not there were huts

present or not, it was not a defence as to

Mrs Dickason, it was a denial. The case was oath

against oath. All these other matters were drawn

to the attention of the jury in order to assist the

question of credibility.

BRENNAN J:  What were the terms or the concession in the

Court of Criminal Appeal?

MR DANE:  Your Honour will be conscious of the way in which

the charge that I read was framed with Behnk and

Palmieri being the example.

BRENNAN J:  I am not asking for the explanation, I am just

wanting to know what the terms of it were.

MR DANE:  This point will only apply to Behnk and Palmieri,

was roughly the question. Yes, that would be

right.

BRENNAN J: This was after the matter had been raised by the

Chief Justice. The parties had gone away to

consider it, come back again, and the Court was so

assured.

MR DANE: Yes, but then they asked for written submissions

and as the Court will see in the judgment of the

court below, it was sought to withdraw from that

concession and put it as to all counts. If I could

take the Court to that. At page 1073, beginning on

line 17:

Mr Dane referred us also to other

passages in the charge which he submitted were

capable of meaning that the jury could take

account of the failure of the applicant to

Glennon(4) 10 18/11/93

tell the police his defence. We consider that

it is unnecessary to set out the passages so

pointed out. They do not in our opinion,

particularly in their context, reasonably bear

such a meaning. Not all the passages which

were so pointed out (by memorandum in writing)

concerned Behnk or Palmieri.

In other words, we only refer that to the

indication that we had retreated from the

concession in the written submissions. The court

said that the written submissions were not of

assistance to them.

TOOHEY J:  I am not clear, Mr Dane, how you are tying in the

evidence that was given by Mrs Dickason with the

accused's right of silence. I understand what you are saying in regard to subparagraph (a) of 1.1 of

proposed ground (c), because that charge relates to

what the accused himself said, but you then take us

to what the Crown prosecutor said and the trial

judge said in relation to Mrs Dickason's evidence

as if somehow that is tied up with the accused's

right of silence. Is that how we are to understand

it or not?

MR DANE:  Yes, we say that one of the examples given by the

Court as to how one could breach this would be a comment about the previous silence about a defence

in Maiden & Petty itself.

TOOHEY J:  You mean a defence that, in effect, comes through

the mouth of a witness rather than the accused?

MR DANE:  Yes. That is, he is conducting the case, he has

led this witness in examination in-chief at his

committal and does not extract that defence at the

committal and then it is extracted at the trial.

TOOHEY J: Yes, I see, thank you.

BRENNAN J:  Mr Dane, what are the passages in the summing up

to which you drew the Court of Criminal Appeal's

attention, with reference to Valotta, which was

said to make the Petty & Maiden point, and which

Their Honours said did not bear the meaning which

you attributed them?

MR DANE: First of all was the record of interview.

BRENNAN J:	No, in the summing up, I think it is, is it not?
MR DANE:	In the summing up - no, well with respect,

Your Honour, in the - - -

BRENNAN J: That is what the passage says in the passage to

which you have drawn attention.

Glennon(4) 11 18/11/93

MR DANE:  The passage refers to the oral argument.

BRENNAN J:  No. We must be looking at the wrong

thing, 1073.

MR DANE:  Yes, Your Honour, and - - -

BRENNAN J: Line 17.

MR DANE: Line 17 begins with what I did on my feet in

court, but at the sentence that begins:

Not all the passages which were so pointed out

(by memorandum in writing) concerned Behnk or

Palmieri.

And so, going back to line 17, we referred "to

other passages".	Your Honour is concerned about
that reference.

BRENNAN J: Well, the whole of it, commencing with that,

which I read as saying that you drew attention to

particular passages in the charge which were said

to support your argument. Their Honours thought

that those passages did not bear the meaning which

you attributed to them and said that not all of

them related to Behnk and Palmieri.

TOOHEY J: Is the memorandum itself part of the

supplementary material, or part of any of the

material before us?

MR DANE:  No. The passages that are covered in the Court of

Appeal's reference Justice Brennan has asked for begin on page 772, volume 4 of the appeal book:

As Mr Thomas has correctly told you, the

accused man did not have to adopt the course

he did of giving evidence on oath. He had,

had he chosen to exercise it, the right to say

nothing, to remain silent. That is because

the Crown must prove the charges, it is not	for him to prove anything. If he had chosen
to remain silent, no-one could have made any
comment about it. Alternatively, he had the right to make an unsworn statement -

I will complete that -

I would have had then the right to point out

to you that it was only an unsworn statement.

But the important thing about the unsworn

statement is this, that if the accused had

chosen to follow that course, he could not

have been cross-examined.

Glennon(4) 12 18/11/93

The law about that is put to him, and so then, at

the conclusion of that portion of the charge, where

it concludes at page 795, the jury retires to

consider the verdict - I have taken the Court to

the wrong portion, I beg your pardon.

If I could take the Court to supplementary

volume III at page 591. What this represents is

the next day after the general directions had been

given to the jury. He is about to begin the first

particular charge going to Henry, and he says:

Mr Foreman and members of the jury,

before I turn to Henry in particular, there is

one comment that I think it appropriate that I

should make in respect of the somewhat unusual

circumstances of this case. I told you

yesterday that silence, when a person might be

expected to speak, should cause you to be

careful about the evidence of a complaint when

it is ultimately made. You should also bear

in mind, when you consider the delay, the very

great delay, in the case of each victim before

complaining and give such weight to it as you

think appropriate, that at the time, each of
the alleged victims was very young, indeed, in
the case of some of them, mere children. They

were, with one exception, Catholic children

and at that time the accused man was a

Catholic priest. They were, with one
exception, members of a karate association of

which the accused was sensei and you will bear

in mind what you have heard about

the - mystique is probably not the right

word - but the culture, if you like, of that

association in considering the very lengthy

delay between the alleged episode and the

complaint.

They were the matters that touched upon silence,

and so as a matter of abundance of care, the Court

of Criminal Appeal was drawn to all matters of

where His Honour dealt with the question of

silence, and it is perhaps because they do not have

a particular impact that the court said:

We consider that it is unnecessary to set out the passages so pointed out. They do not, in

our opinion, particularly in their context,

reasonably bear such a meaning.

So what we were endeavouring to do was to be an

abundance of care and the court below has dealt

with it in that way.

I return then to 1.3 and perhaps reiterating that the fundamental point in the case was the

Glennon(4) 13 18/11/93

denial of the accused. Other evidence was called

to support the credibility or that the allegations

lacked credibility. Accordingly, we say the jury's

assessment of his credibility or veracity was

absolutely fundamental to his defence. When all

the detail is carved away, it is an oath against

oath. One man has an erroneous direction given

about him or a warning given about him as a witness

and we say that that goes directly to the very

point upon which the defence stands: his denial.

His denial had to bear an impost that it should not have had to bear.

1.4 has been made. The significance of a

denial we say should not be diminished when the
events about which the jury are deliberating
occurred some 11 or 14 years previously. Without

wishing to belabour the point too much, the

erroneous direction, the weight that we complain

about, the impost that we complain about, was there

in writing throughout the deliberations.

Perhaps that can be best illustrated in

supplementary volume III at 619. At the conclusion

of the charge concerning Henry, His Honour on

page 618 is identifying the things that they will

be able to take into their jury room.	Then on
line 4 he says:

My charge was returned to me typed up,
Mr Foreman, this morning, and I will give you a copy of it simply in order that you can

refer to those directions on the evidence if you need to do so. You will find that there

are, or should be, some minor longhand

alterations of spelling but they're my

alterations. Could you give those to counsel,

please, and those can go to the jury.

Again, in the Court of Appeal that point was

recognized: appeal book 5, page 1039 in the

judgment of the court below:

Generally in his defence the applicant

denied all the allegations against him and in

a number of in a number of instances advanced

considerations in his own evidence or through

the evidence of others which tended to show

that the allegations lacked credibility. At

jury by firstly giving them general directions which were appropriate to their consideration of all of the counts on the Presentment.	the end of the evidence the judge charged the represented by the counts and took verdicts after his completion of each individual
summing up.

Glennon(4) 14 18/11/93

And so the court below recognized that all of the counts on the presentment were touched by that

general direction.

We say that the error made below was, in

particular, the point made in l.l(b) and (c) were

erroneously excluded from the consideration of the

applicant's right to silence. That emerges at

volume 5, 1073, further down the page. Not wishing

to repeat that which has already been said, it

continues down the page at line 30:

It was not suggested that the applicant exercised his right of silence when questioned

in relation to the allegations concerning the

other four young persons. Indeed the

applicant spoke at great length to the police

in relation to them and the conversations were

tape-recorded.

We say that, in particular, in relation to Valotta

it was clear that he said that he wanted to

cross-examine him, and the matter to be heard in

court for the first time.

We say that when the court below continuing on

in that judgment, at 1089, says, from the top of

the page:

The credibility aspect of the applicant's

evidence to which the jury was erroneously
adverted by the learned judge was only

remotely peripheral to the issues which were

actually contested. In his final address, the

Prosecutor expressly disavowed any criticism of the applicant for seeking deferral of his

answers to the police, but he attacked his

credibility on the quite different basis that

he had changed his line of defence. He told

the jury that the answers which the applicant

difficulty in knowing what night the Palmieri freely gave to the police emphasized his	allegation involved owing to the passage of
time and the applicant not knowing who
precisely was at Karaglen on each of the many
visits which he made there over that time.
The Prosecutor said it was feasible that the
applicant could not be expected to recall the occasion when Palmieri was there without time for reflection and resort to records (such as
his diary). This was a perfectly reasonable
and understandable response, he said, but he added that it conflicted with the detailed and
certain account of conduct and conversations
which the applicant at his trial (some ten years or more after the alleged event)
purported to be able to give. The Crown

Glennon(4) 15 18/11/93

attack on the applicant's credibility thus rested on this supposed change of defence.

With the greatest respect to the members of the

court, it never varied. It was denial from day one

through to the end of the case, and there was no

change in defence whatsoever; it was oath against

oath.

We also take exception with regard to the

final paragraph there:

It is not reasonable to consider that the

jury were persuaded in favour of the
prosecution case by the impermissible
consideration mentioned by the learned judge,
yet not persuaded by the very much stronger

(and quite different) contention of the Crown.

With the greatest of respect to the court below again, the court has caused the proviso to be set

up by putting its premise in a way that will lead

inevitably to the application of the proviso.

Taking the Court back to demonstrate that

point, at page 1076 after the quoted sections at

line 30:

In our opinion, the reference by

His Honour to the omission of the applicant to

tell the police about the non-existence of the

"gunyah" on the one hand and the presence of

Dickason in the room (in the case of Palmieri)

on the other, were not issues at the trial and

cannot be said to have been otherwise than at

the distant periphery of those which the jury

were asked to consider.

MASON CJ:  Maybe it is, but should you not immediately draw

to our attention what is said at page 1086,

line 26?

MR DANE:	While it is true that a critical issue at the
trial was whether the Crown established that
an aboriginal hut was on the site at Karaglen
in April 1979, it was raised for determination
by reference to the evidence of eyewitnesses, not whether the applicant had mentioned it to the police.

We seek to go - - -

MASON CJ: All I am doing there is identifying that in the

view of the Court of Criminal Appeal that was a

critical issue at the trial.

Glennon(4) 16 18/11/93

MR DANE:  It would be impossible to avoid that and we are

quite content to proceed on that basis, that it was

a critical issue, but we are able to demonstrate it

in the transcripts, of course. Where the learned

Crown prosecutor was cross-examining the

accused - - -

MASON CJ:  I have some difficulty at the moment just in

seeing how that can be a critical issue at the

trial, and yet at the same time it can be said that

His Honour's reference to silence in relation to

that matter is something that was in the distant

periphery of the issues of the case.

MR DANE:  I think You+ Honour is with me. We say that it

cannot be put in the distant periphery. Both those

issues were the points about which the case was

being fought - the factual points about which it

was being fought. The learned trial judge said

that if my learned junior Mr Thomas' submission

about there being no gunyahs at 1975, if that

proposition is correct, then it would be

appropriate that an acquittal be provided. The

learned trial judge raised it to that level, that

in the shorthand: no gunyahs, no conviction. In

fact it was also the same with Valotta: no dams -

it was the construction of another thing, a dam -

no dam, no conviction.

The learned Crown prosecutor when

cross-examining Glennon himself said, "You know, I

know, and the jury know, how significant this point

is". And so we say that it had a considerable

impact on the case, that was when he was talking

about gunyahs and munyas. So the Court of Criminal

Appeal describes it as a critical issue at one

stage and yet peripheral to the other. That is why

we say that the court was setting -

DEANE J:  That is not so. They describe his omission to

refer to it as being peripheral for the reasons

they give at pages 1086 to 1087. They nowhere

suggest that whether the huts existed or not was

peripheral. What they are saying is the way the

case was conducted, nothing was seen as turning on

his omission to mention it earlier. That may or

may not be right, but there is no inconsistency

between what they are saying.

MR DANE:  In the case of Behnk, the accused declined to have

a record of interview but at the committal put to

Behnk that there were these Koori gunyahs, and the

significance of that was that it was a structure in

combination with a carved tree. At the committal

the witness Behnk said yes, there was a hut and

outside the hut was a carved tree. So the

significance of that for the defence was that the

Glennon(4) 17 18/11/93

accused had not acquired the knowledge of the Koori

gunyah construction of the hut in combination with
the carved tree until after 1979, the date of the

offence.

At the trial the witness Behnk resiled from

her position about there being a carved tree

outside the hut and just said there was some sort

of hut. The Crown was able to produce photographs

dated January 1980 that demonstrated that on the

campsite there were huts. So it became a

fundamental issue to the case as to both defence

and the way in which it was structured, the defence

being, "This couldn't have happened because if what

you say occurred, it occurred at a different time."

It was absolutely vital to the defence. It may be

that I am a little obtuse, but the Crown prosecutor

described it as absolutely significant. The

learned trial judge in his direction to the jury

said, "If you accept that they weren't constructed

till after 1979, you acquit", in effect.

TOOHEY J: But are you not blurring two aspects, Mr Dane?

One is whether in fact there were gunyahs on the

site at the time, and that was a matter about which

a great deal of evidence was given apparently,

including a lot of evidence to the effect that they

were there at the time. I am not clear as to how

much evidence, if any, was given that they were not

there. That was a critical issue, as one can

understand, but you are taking that into the area
of what the applicant said or did not say as if

that were critical. In the end the jury had

evidence as to the existence or non-existence of

these structures and it could reach its own view

about that, could it not? If I could just take it

one step further, how vital, in the light of that

evidence, is the accused's failure to mention the

gunyah at an early stage or the non-existence of

the gunyah at an early stage?

MR DANE: If the Court would just bear with me. If I could

take the Court to volume 3 of the application

books, page 477. The accused is being cross-

examined by the Crown prosecutor. At the top of

the page:

Because you caused a day of unpleasantness at

a football match?---I still don't know what

caused Jenny Behnk to make the allegations and

I am speculating on what is in her mind.

The next question is the proposition:

Perhaps I ought to put it to you, witness,

that she made the allegations because at the

Easter camp of 1979 you indecently assaulted

Glennon(4) 18 18/11/93

her?---I could not have indecently assaulted

her in 1979, in April. Not only did I not

beside a carved tree, and I say how could you

indecently assault her, but I know she's
lying, because she claimed clearly,
unequivocally, that the offence took place -

the alleged offence took place in a large

do that in a tree, in a hut that wasn't in

existence beside a tree that wasn't carved in

1979, and that's how I defend myself.

And so, just relating to the history of it again

DEANE J:  The next question and answer are relevant, I

think.

MR DANE:	I don't want to go over old ground, witness,
but she has admitted under oath that she was
probably mistaken on that tree?---Yeah, but
which oath has more credence; the one or five
years ago - I am going on that committal where
she explicitly and clearly said that is where
the alleged offence took place.

DEANE J: In that context, is it not pretty obvious that the

question of whether your client omitted to refer to it previously was, as the Full Court said, well and

truly on the periphery of things? I mean, the

question was why had not the witness giving

evidence against your client got it right the first

time?

MR DANE:  The witness is not asserting that it took place in

a particular hut. It is the cross-examination at

the committal about what sort of hut so that the

defence can be subsequently raised as to "this

could not have happened", and when the

cross-examination extracts from the witness that

there is a carved tree, a Koori gunyah, as distinct

end of the committal, it could not have happened.	from some other hut, then the defence is, at the
So it is a question of the date of when the offence
happened. So the defence is somewhat perfected in
the mind of the accused at the end of the committal
because he has got the hut and the tree combined,
and so the case got to the point where one could
acquit the man if the hut issue was decided in his
favour.

The level to which it had been elevated by

the learned trial judge I am having turned up at

the moment: in application book volume 4 at

page 831 at line 9, His Honour is taking the jury

through in relation to the case of Behnk and

Glennon(4) 19 18/11/93

dealing with the various matters of the Koori

gunyahs:

Obviously very great importance must be

attached to the correct answer, whether there

were or were not huts at Karaglen at

Easter, 1979. Mr Thomas must surely be right

in his assertion no munya, no incident.

And so the circumstances of the huts had been

elevated to a significance within the trial where
the contest had really taken place, as to the

existence of these huts.

TOOHEY J: But no one.is arguing about that, are they? No

one questions that the presence or non presence of

the huts was, as the Full Court said, a critical

issue, about which a great deal of evidence was

led. But what the Full Court says at page 1086 is

that, while it is true that that was a critical

issue:

it was raised for determination by reference to the evidence of eyewitnesses, not whether the applicant had mentioned it to the police.

You are taking a very big step in saying it is a

critical issue about which, as I understand it,

there is really no argument, to saying, "Well, to

make anything of the fact that the applicant had

not mentioned that matter to the police, really led

to a trial which miscarried", because in the end
the jury had evidence about which it could make up

its own mind, whether the Crown had made out its

case as to the existence of these huts. Because it

seems, again, to have been common ground that if

there were no huts at the time well that was the

end of the case so far as that particular

complainant was concerned.

MR DANE:  We say that we are enabled to take that step in

this case because, bearing in mind that the central

defence was denial, and it relied upon Glennon's

word, when Glennon said, "There was no such thing",

if the jury had accepted that proposition then the

jury would have been able, on the judge's

direction, to acquit. But because Glennon had the
direction about his veracity that he has not

mentioned this issue before at the time when the

issue first must have arisen, then this issue is

one of the things he has failed to mention, ergo,

it does not have the strength that it might

otherwise have.

TOOHEY J:  I understand the way in which you are putting it.

Was there other evidence, that is evidence from

Glennon(4) 20 18/11/93

other witnesses, supportive of the proposition that

there were no huts there at the time?

MR DANE:  The answer to that is, "Yes," I will just confirm

that.

TOOHEY J: Well, it is perhaps unnecessary to go to it at

the moment.

MR DANE:  The answer is, "Yes," and throughout the trial

there were people who were able to distinguish

between huts and Koori gunyah constructions.

TOOHEY J: But, when you say that it really lends force, I

think, to what I was putting to you, that the

question in the end was not so much whether the

accused had said anything about this but whether,

in fact, the Crown had made good the proposition

that there were huts, or huts of the description
that the young girl said she had been in at the

time.

MR DANE:  We appreciate that, but there is - correct me if I

am wrong - there is a body of evidence about which

there is a dispute as to time and construction, and
the jury has a whole series of witnesses coming

past them so that they were able to make up their

mind as to whether there was, or was not, a hut of the description upon which the accused was relying

was in existence at that time, and so that was an

issue at trial.

But, it was an issue at trial at which the

accused cleaved to. In fact his defence was, "If

these huts were not here as I tell you, then this

event could not have taken place."

TOOHEY J: Well, that is probably right, is it not. I mean

there may not be much argument about that either?

All that means really, Mr Dane, is that the

critical question was whether or not the Crown had

satisfied the jury beyond reasonable doubt that

there was, at the time of the alleged offence, a

hut answering the description which the complainant

gave?

MR DANE:  Yes, on one side of the ledger there is the

accused and his witnesses, and on the other there

were other witnesses in support of the proposition

that the huts were there at the time, in fact a

photograph was tendered. However, it was the

accused's word in that equation about which we now

complain. He was silent as to huts when the record

of interview was offered to him. The jury are

told, "If he does not make a comment about his

defence when the first opportunity was presented to

him, then you can take that into account."

Glennon(4) 21 18/11/93

And so, it necessarily follows, with respect,

that he has not raised huts.	He now wants to argue
huts.	The issue of huts is in the balance, one of

the things that is in the balance is his word about

it, and his word is discounted erroneously.

TOOHEY J: Yes, I understand the proposition.

MR DANE:  I do not know if I could advance it further than

that. What we complain about is that the Court of

Criminal Appeal failed to appreciate the

significance of it, and put it to one side. All
that which we have said so far in relation to the

huts applies equally to Mrs Dickason in relation to

Palmieri and Valotta, we say.

What that erroneous test has produced is that

in the contest between the Crown and the accused,
the accused has not been provided with the
opportunity that he should have been provided with;

that the error being a positive misdirection as

against one by omission, provides the appellant

with an unfairness which we say is so strong that
it is a fundamental departure from the essential

requirements of a proper trial.

GAUDRON J:  Do you say that the difference between this

case and the majority judgments in Wilde is that it

is a positive misdirection, because you have got to

come to Wilde.

MR DANE:  We say that in this case, where there is a

positive misdirection, that adds to the infection;

that is, the jury are labouring with something that

they should not have.	It is not as if they are
left where they should have been guided.	They have
been guided in the wrong direction.	If Your Honour
will just bear with me.

In order to demonstrate the point 2.1, that

been departed from, we seek first to draw the its essential requirements of a proper trial have	Court's attention to the case of Petty & Maiden v
Reg, (1991) 173 CLR 95, in particular at page 99,
point 3 on the page, a passage with which the Court
is now well familiar:

A person who believes on reasonable

grounds that he or she is suspected of having
been a party to an offence is entitled to
remain silent when questioned or asked to
supply information by any person in authority

about the occurrence of an offence, the

identity of the participants and the roles

which they played. That is a fundamental rule

of the common law which, subject to some

specific statutory modifications, is applied

Glennon(4) 22 18/11/93

in the administration of the criminal law in

this country.

And so, we say that the majority of this Court in that case has identified the breach as a matter

going to the fundamental rule of the common law.

It is repeated at page 107 in the judgment of

Justice Brennan at line 5:

The right of silence, as it is stated above,

has not always been fully acknowledged, but it

is only by a firm adherence to the rule as so

stated that effect is given to the policy of

the common law that a suspect's "fault (is)

not to be wrung out of himself, but rather to

be discovered by other means, and other men".

Where a jury might have had regard to an accused's earlier silence in evaluating

evidence given by him at the trial,

recognition of the right of silence precludes

the jury from taking that silence into

account.

Again at 111, point 7, again in Justice Brennan's

decision, in the centre of the concluding

paragraph:

Nevertheless, the right of an accused to

refrain from disclosing his defence until an

appropriate stage of the trial, the scope of

the right of silence and an accused's freedom

to abstain, without prejudice to the conduct

of his defence, from cross-examining a witness

on committal proceedings are questions of such

importance to criminal practice and procedure

that special leave must be granted in Maiden's

case.

In the judgment of Justice Gaudron on page 128,

going over to 129, beginning at point 8, the final Although ordinary experience allows that

paragraph on page 128:

an inference may be drawn to the effect that

an explanation is false simply because it was

not given when an earlier opportunity arose,

that reasoning process has no place in a

criminal trial. It is fundamental to our
system of criminal justice that it is for the

prosecution to establish guilt beyond

reasonable doubt. The corollary of that - and

it is equally fundamental - is that, insanity

and statutory exceptions apart, it is never

for an accused person to prove his innocence.

Therein lies an important aspect of the right

Glennon(4) 23 18/11/93

to silence, which right also encompasses the

privilege against incrimination.

To allow that an explanation might be

judged false because it was not put forward

before trial is, in effect, to allow that the

burden of proving guilt may be more readily

discharged because the accused person did not

signal the precise basis of his innocence - in other words, his defence. And that is so even

if the accused person bears an evidential

burden, for a burden of that kind does not

relieve the prosecution of the ultimate onus

of establishing the elements of the offence

charged·beyond reasonable doubt.

A direction which allows that failure to

advance a matter of defence may detract from

its weight, reduces the burden on the

prosecution to prove guilt beyond reasonable

doubt and undermines its corollary that,

insanity and statutory exceptions aside, it is

never for an accused person to establish his

innocence.

It is upon those passages that we rely to say that

the departure in this case, the error in this case,

is fundamental and radical.

So that when one comes to that proposition, then

the three cases that we have there cited support

the proposition for which we here contend, in

particular in relation to the case of Wilde, (1988)

164 CLR 365, in particular at page 372, at the foot

of the page:

This view is undoubtedly correct, for the

proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary	court have so far miscarried as hardly to be a	trial at all.
We say that in these circumstances there was

an unfair trial. Further down at point 3:

The proviso has no application where an

irregularity has occurred which is such a

departure from the essential requirements of

law that it goes to the root of the

proceedings. If that has occurred, then it

can be said, without considering the effect of

the irregularity upon the jury's verdict that
the accused has not had a proper trial and

that there has been a substantial miscarriage

of justice. Errors of that kind may be so

radical or fundamental that by their very

Glennon(4) 24 18/11/93

nature they exclude the application of the

proviso ..... There is no rigid formula to

determine what constitutes such a radical or

fundamental error. It may go either to the

form of the trial or the manner in which it

was conducted.

We rely, in particular, in the manner in which it

was conducted because here of the significance of

the role that the huts and Mrs Dickason play in the

defence case. Further down the page at point 8:

But the wording of the proviso is quite
general and it is clear that it may be applied
notwithstanding a misdirection concerning the

law or the wrongful admission of evidence.

GAUDRON J: That is the position that you are in, is it not?

If your case falls within anything that has been read from that judgment it is that it is a

situation where there has been a misdirection and

the proviso may be applied.

MR DANE:  Yes, but we wish to address in the alternative in

our next paragraph where - if this Court was of the

view that there was not a fundamental error going

to the heart of the case, that is as a trial, then

we would be seeking to argue in the alternative

that the misdirection in this case produced a

circumstance where the proviso should not have been

applied. So to return, we can say while our

initial proposition is that there is a fundamental

flaw in the trial, that is, the common law has been

breached, we say in any event - - -

GAUDRON J: But that earlier passage dealing with

fundamental flaws is not concerned with mere

misdirections, it is concerned where something has

gone fundamentally wrong with the trial.

MR DANE:  We say that it has gone fundamentally wrong. The

accused has been presented to the jury in a way

that he should not have been presented.

Alternatively, we wish to argue in paragraph 3.	So
it may be that Your Honour Justice Gaudron's
proposition about the wording of the proviso is
quite general and it is clear that it may be
applied notwithstanding a misdirection of the law
or the wrong admission of evidence.	We are not

concerned with the wrongful admission of evidence. There is no mechanical approach can be adopted and in each case must be determined upon its own

circumstances. We say that the way in which the

man went to the jury does demonstrate a fundamental

flaw in the trial, but seek to argue the

alternative under paragraph 3.

Glennon(4) 25 18/11/93

If we can present our argument in relation to

the points at 2.2 in relation to the Domican case,

(1992) 173 CLR 555, the identification case, and in

particular at page 565 at point 5:

A trial judge is not absolved from his or her

duty to give general and specific warnings

concerning the danger of convicting on

identification evidence because there is other

evidence which, if accepted, is sufficient to

convict the accused. The judge must direct

the jury on the assumption that they may

decide to convict solely on the basis of the

identification evidence. If a trial judge has
failed to give an adequate warning concerning

identification, a new trial will ordinarily be

ordered even when other evidence makes a very

strong case against the accused.

BRENNAN J: That must be so because there may have been a

lost chance of acquittal -

MR DANE: Quite, and that is what we say here - - -

BRENNAN J:  - - - and nobody doubts that wherever there is a

lost chance of acquittal as the result of a

misdirection, then there has to be the setting

aside of the verdict. Now, the problem here, it

seems to me, is that you are endeavouring to

demonstrate that there was a lost chance of

acquittal. But if, to take the case of Behnk, the

question was were there huts or not, and the jury

came to the conclusion that there were huts, the
real problem for the accused in the case was that

there he was giving false evidence in front of the

jury. They might not have believed him about his

denial. It was not that he had not said that which

was false before. It was that he was saying

something that was false now.

MR DANE: With respect, that analysis is correct but what we

now say is also permissible in that context. That

is, when the weighing process is being conducted by

the jury as to whether or not they believe the

accused man on the question of huts for that count,

he went in to that balance carrying extra weight.

BRENNAN J:  Yes. I can understand the way in which you put

it and one may be able to logically tease that out,

as it were, but I must confess it does not sound to

me like the sort of argument that would have had

any influence in the realities of a courtroom.

MR DANE: With respect, where the man is pledging his oath

as his defence - - -

Glennon(4) 26 18/11/93

BRENNAN J:  I know, but I mean, if the question was,

"gunyahs or no gunyahs, members of the jury, is it

really going to make much difference that he did

not say something about gunyahs to the policeman?"

It just does not seem to me, to wash, if I might

say so, Mr Dane, but I understand the way you put

it.

MR DANE:  The proposition is that he had to carry something

that he was not obliged to carry.

BRENNAN J: Yes.

MR DANE:  Yes, it depends upon the race that one is running

- the volume. I will not take the Court to the case

of Quartermaine, albeit we draw the Court's

attention to the fact that in Quartermaine one is

dealing with a case of misdirection by omission,

not a positive misdirection.

Turning then to the alternative argument, we

say that it cannot be demonstrated that the jury

would have inevitably convicted, that is, it cannot

be said that the error in the trial had no effect
upon the jury's verdict, and taking the point that
Your Honour Justice Brennan has just put, what

Your Honour is saying, namely, "You can put Glennon

out of the equation when we come to that simple

proposition we, the jury, can - leaving him out,

can we come to a conclusion about the gunyahs?"

BRENNAN J:  I was not quite putting it that way. I was

saying the fact that he had not said anything to
the policeman can be left out when it comes to the

question of the gunyahs.

MR DANE:  Our submission is that as one does not know what

the process was, then it cannot be dismissed that
the jury did not take the erroneous direction into

account.

Now, in Driscoll's case, (1977) 137 CLR 517,

in particular at page 527 in the judgment of the

learned former Chief Justice Barwick, at the top of

the page, line 1:

If it were otherwise, and every irregularity

of summing up, admission of evidence or in

procedure warranted a new trial, the basic

intent of the court of criminal appeal

provisions would be frustrated and the

administration of the criminal law plunged

into outworn technicality.

Continuing at the foot of the last paragraph, at

about point 7:

Glennon(4) 27 18/11/93

Thus, if the jury's view of the respective credit of the two men is accepted, there could

be no doubt, in my opinion, that no

miscarriage of justice occurred.

But might the jury have been influenced

in their view of the respective credibility of

the two men by the inadmissible evidence to

which I have made reference? The principal

matter of credit in contest was whether the

applicant had parted with the gun to

Kaczmarek. Logically, I have difficulty in

accepting that the evidence of the possession
of other weapons or of the irresponsible use

of a weapon not identified as the murder

weapon could influence the decision as which

of the two men examined and cross-examined in

the courtroom should be believed as to what

was said in evidence. But I am bound to

concede that laymen may not always restrict

their consideration of questions of credit to

completely logical considerations. I think it

must be conceded as possible, though perhaps
to my mind only barely possible, that a jury

might be less inclined to believe the

applicant upon the relevant issues because he

had been shown to be a man at least likely to

resort to violence, and perhaps irresponsibly

so. However, but for a further consideration

to which I am about to refer, I would be

disinclined, notwithstanding the possibility

of lay illogicality, to find that there had

been a miscarriage of justice, making such a

concession to lay illogicality. I would be

inclined to conclude that the inadmissible

evidence was not such a factor in the contest
as to credibility - affected as it must have

been by various other proved circumstances and

probabilities - as would warrant the

conclusion that by reason of its admission a

miscarriage had in fact occurred.

And then continuing at point 8 at the foot of the

large paragraph on that page:

I am prepared, in the absence of a decision in the matter by the Court of Criminal Appeal, to give effect to the possible view that the

wrongful admission of evidence or wrongful

retention of evidence could have had an effect

on the judgment of a jury of laymen as to the

credibility of Kaczmarek.

And so we say that this is a case wherein the

question of credibility with a lay jury has been

considered by this Court and in the judgment of

Glennon(4) 28 18/11/93

Justice Gibbs, as he then was, at page 542, at

point 8, the final paragraph on that page:

The final question for decision is

whether, notwithstanding the errors to which I

have referred, the appeal should be dismissed

on the ground that no substantial miscarriage

of justice has actually occurred: sees 6 of

the Criminal Appeal Act, 1912 (NSW), as

amended. The case against the applicant may

well have been thought to be a strong one.

However, ultimately it depended on questions

of credibility. It is possible that the jury
accepted the police evidence as to the records of interview, and gave weight to that evidence

in reaching their final conclusion, and that

they would not have been satisfied to accept
that evidence if the testimony of

Mr Heazlewood as to his conversation with

Detective-Sergeant Morey had been admitted. Having regard to that circumstance, and to the possible effect of the admission of the inadmissible evidence, I find it impossible to say that the errors have not affected the

result or that the jury would certainly have

returned the same verdict if the errors had

not occurred. I am not satisfied that no

substantial miscarriage of justice has

occurred and would therefore quash the

conviction. There should clearly be a new

trial.

GAUDRON J: Could I just go back to where you were. You

have said all along that the issue was huts or no

huts, or Koori gunyah huts or not Koori gunyah

huts, but is that right given the way in which the

complainant said she might have been mistaken as to

the hut? Did the issue really come to one of huts

or no huts rather than huts of a particular kind?

MR DANE: Well, we say that it became huts of a particular

kind because of the way in which the learned trial

judge put it, ultimately, to the jury in his

directions - these particular directions - as to

Behnk, in as much if the proposition is right, if

Mr Thomas' proposition is right, then there has got

to be an acquittal - I am paraphrasing that - and

so, we say that it was elevated to that level -

GAUDRON J: Yes, but huts of a particular kind, or huts?

Was the evidence not that there were some huts

there, and that at a certain stage huts of a

particular kind were constructed? Now, when the

committal evidence was given the indication was

that it was huts of the second kind because it was

near the tree, but the complainant having changed

Glennon(4) 29 18/11/93

her account to say she might be mistaken about

that, was the only issue then huts or no huts?

MR DANE:  The difficulty about that was that it was a term

"hut" was loosely used until the Crown produced a

photograph dated in 1980, and so it then became

important to define the category of hut that one
was talking about, and so, as an abundance of care

I will check, but the issue as it ended up was twofold as to whether or not there were Koori

gunyahs there, and secondly, the description given

of them.	The complainant and the corroborating
witnesses described them as "munyas".	To answer

the question it was, in the end, whether or not
there was a Koori gunyah or not a Koori gunyah

there.

GAUDRON J: Well, it does not follow from what you have

said.

MR DANE: Perhaps I had better have that question again.

GAUDRON J:  Implicit in what you are saying is that a munya

is the same as a Koori gunyah.

MR DANE:  No. The proposition was that the girls did not

know what they were talking about. What the

complainant had described at the committal was that

which the defence was about: the Koori gunyah.

GAUDRON J: Yes, but later she said she might be mistaken.

MR DANE: Might be mistaken about the tree, and she gave a

different description of the - - -

GAUDRON J:  Of the hut.

MR DANE:  Yes. In fact, the accused was cross-examined

about, "This can't be really a matter about

architecture."

GAUDRON J:  You seem to be putting it on the basis that it

is.

MR DANE:  That was the proposition that was put to the

accused and the accused was saying in the end that

it has got to be a Koori gunyah. If it was not a

Koori gunyah there at that time, then this incident

would not have occurred. We say that is how it

ended up in front of the jury as presented by the

judge. I am clearly not answering Your Honour.

GAUDRON J:  You are answering me but you are not satisfying

me that it was in fact a question of a Koori gunyah

as distinct from a hut, that at the end of the

day - - -

Glennon(4) 30 18/11/93

MR DANE:  The girl had got back to say, "Look, I don't know

what it was. It was a hut."

GAUDRON J: Yes.

MR DANE:  She got back to that point. The defence was

though, "You've described a Koori gunyah at the

committal and - - -

GAUDRON J: Yes, but that does not matter. It seems to me

that maybe - the particular type of hut was not

really the critical issue at the end of the day.

MR DANE:  As to just incidence of structure.

GAUDRON J: Yes.

MR DANE:  The answer that I give Your Honour is the same

answer that I think I have given to the other

members of the Court.	We say that it was evidence
about it that his defence relied upon.	When the

judge says to the jury the way in which they are to

resolve the case and he does so erroneously, that
we say then that in these circumstances the accused

has fought the case on those issues, but it is

really as to his credibility in the end.

We can now go directly to paragraph 4. We say

that in any event the approach of the courts, in

the cases we are about to refer to quickly, are
indistinguishable from the instant case, and the
proviso will not be applied where the error relates

to the means by which and the manner in which the

credibility of the accused is to be assessed by the

jury. The first case that we seek to go to is that

of Router.	We will not trouble the Court in any
detail with these cases.	We say that the

proposition contained in paragraph 4 is supported

by reference to these cases. Router's case

concerned the credibility of the accused and it was

identified as being a critical issue and there was

no proviso.

Similarly in Robinson's case, which is not

reported in the Commonwealth Law Reports albeit a
decision of this Court - - -

DEANE J:	When you say there was no proviso, you mean the court decided the proviso was inapplicable or do
you mean there was no proviso?

MR DANE:  No. There was no mention of the proviso. We draw

the Court's attention to the judgment of

Mr Justice Lee on page 376 at point 5:

In my opinion His Honour's ..... caution, and notwithstanding it, the accused had not sought

Glennon(4) 31 18/11/93

to put forward explanations or an explanation
as to how the cannabis might have got into the
case, was a misdirection which of itself

requires a new trial to be ordered on both

counts. The credibility of the accused was a

critical matter for the jury's consideration

and the directions under consideration,

referable as they were to both charges,

deprived him of the benefit he was entitled to have from the fact that the caution was given,

and may have been a factor in leading the jury

to a conclusion that he was guilty.

And at the top of the page, His Honour says:

For those reasons it is my view that the trial

judge's invitation to the jury to attach such

weight as they saw fit to the accused's

failure to make an explanation was a

misdirection and a new trial on both counts is
required.

And so, we are drawing the Court's attention to where the question of credibility has been a matter

that a trial judge has made an error about and

where the proviso has not been applied.

The case of Robinson, (1991) 102 ALR 493

MASON CJ:	You do not need to spend much time on these cases, do you, Mr Dane? It is fairly obvious that
if credibility is an issue, then one must be very
careful in applying the proviso.
MR DANE:	The similar point is to be extracted from Sarek's

case in Victoria. Again, the erroneous character

direction and credit combination with it in the New

South Wales court in the case of Murphy, and the

cases there referred to. Simic is the only case

where we say that one finds the distinction.

DEANE J:  Was anything expressly said of "in relation to the

proviso" in Sarek? Yes, it obviously was.

MR DANE: At page 983 line 24:

Accordingly, I have come to the

conclusion that, notwithstanding the attempts

made by the learned trial Judge to correct the

error made by the prosecutor in

cross-examining without leave as to the prior

convictions of the applicant, once those

convictions had come out in evidence there was

a situation in which it was impossible to have
a trial according to law, in that the jury's

mind by that time must have been irreversibly

infected by that knowledge of the applicant's

Glennon(4) 32 18/11/93

prior convictions. No redirection could, I

think, have been effective to undo the result

of the improper cross-examination conducted by
the Crown prosecutor.

Notwithstanding the apparent strength of the prosecution case, when one bears in mind

that in essence the cases of the prosecution

and the defence came down eventually to the

question of oath against oath, that is of the

applicant's oath against the oaths of the
police, once the knowledge of the applicant's

prior convictions, especially those for

dishonesty, had come to the knowledge of the
jury, irreparable damage had been done to the

prospects of obtaining a trial according to

law and in my view there has been a

miscarriage of justice. Accordingly I would

grant the application for leave -

We say clearly that is a consideration as to

whether or not the strength of the Crown case

should have caused the proviso to be applied.

In conclusion we seek to draw upon Longman, (1989) 168 CLR 79, with which this Court is well familiar, and what we say about Longman, where

there was a failure of the learned trial judge,

Judge Viol, to warn about the complainant in that

case.

Here, we say, this is the mirror image of

Longman. That is, where there is a failure to

warn, in this case, in Glennon, the warning was

given about the appellant himself. So this man had

to bear a warning, as in Robinson where the

evidence of the accused was to be scrutinized and

those with an interest in the outcome. The error

of warning in Longman can be seen by way of the

mirror image in the present case, that is, that the

accused had to carry the warning that should not
have been given.	When the case is one of oath

against oath of the veracity of the accused, now

the appellant, is fundamental to the case and the

test that was provided to the jury throughout all

the counts was an erroneous test and the test was

as to his veracity. His veracity was at the

cornerstone of his defence. Accordingly, his

defence was marred to the point where we say that

the proviso should not have been applied. If there

is not anything further that we could assist the

Court with those are the submissions we seek to

make. If the Court pleases.

MASON CJ: Yes, Mr Bongiorno?

Glennon(4) 33 18/11/93

MR BONGIORNO:  It is the contention of the Crown that the

conviction should be preserved.

application of the proviso by the Court of Criminal

The Crown concedes that the instruction given

by the trial judge, which appears at 770 to 771 of

the appeal book, volume 4, which is also set out in

the Court of Criminal Appeal judgment at 1072 to

1073, or perhaps more conveniently in volume 5,

conflicted with the law as laid down by this Court

in Petty's case and Maiden's case. There is no

argument about that. The Crown's contention is

that that was the only failure in this trial to

comply with the law regarding the right of silence.

There was no other failure either by the judge or

by the Crown prosecutor.

At 1073, which is in volume 5, there is a

reference by the Full Court to the way in which

this appeal was conducted. Indeed, the Full Court

dismissed any other attack which was made. I

should point out that the memorandum in writing,

which is referred to at page 1073, which of course
was my learned friend's document, the Crown does

not have a copy of it. The Crown is not able to

say that it does not exist, because counsel who

appeared in the Court of Criminal Appeal and at the

trial has instructed us that it did exist, that

there was such a document. It consisted of a page

of references, in other words, transcript

references. It was not an argument, it was not a

submission. We have not a copy of it, and it is

not produced by the defence, by the applicant in

this Court. That is a difficulty, we say, that is

in the way of the applicant because it was his

document and it is sought to be relied upon by him.

It was not, the Crown contends, in any sense

an argument directed to other counts on the

presentment. This case was conducted in the

Court of Criminal Appeal as an attack - in so far

as it was conducted on this point, it was conducted

as an attack on the validity of the convictions in

respect of the complainant, Behnk and the

complainant, Palmieri.

That is stated in absolute terms by the court

at page 1070 when they begin to deal with this

matter. I take the Court actually to 1069, grounds

10 and 11. It is perhaps instructive to remind the

Court that the decision in Maiden's case was given

in September 1991 - 5 September the judgment was

handed down, I think, in Adelaide. On 29 October

1991 the applicant amended his grounds of appeal

before the Full Court. That history is set out at

page 1032, and perhaps it might be to there that I

Glennon(4) 34 18/11/93

should take the Court before going to the latter

page that I just turned up.

DEANE J:  The direction given accorded with the decision in

Bruce. What is the reference to Bruce's case,

Mr Bongiorno?

MR BONGIORNO: Bruce's case, (1988) VR 579. If I can take

the Court to 1032 the Full Court there says:

On the 29th October 1991 by leave the applicant added further grounds -

Then 9, 10 and 11 are added. They are perfectly

general in their application, as the Court will

see. They do not specifically relate to any

particular counts.	The first looks like a Morris
or a Chidiac ground.	Then the second, that is

ground 10, looks like a ground based on Maiden's
case, or perhaps it is a ground based on Maiden's

case, and 11 almost certainly is.

The Court goes on then to deal with the rest

of the history, but if I can take the Court forward

to 1069 to where those grounds 10 and 11 are dealt

with in the judgment, it will be seen that they are

repeated by the court, they are set out again, 10

and 11, and the court goes on to say at 1070:

Although they appear to be expressed in

general terms and to refer to many matters

canvassed at the trial, Mr Dane made it clear

that their sustainability is dependent solely

on the consequences of the High Court decision

in Petty v The Queen and Maiden v The Queen

(1991) 65 ALJR 625 which was published

subsequent to the charge of the learned judge

and verdict of the jury. The majority there

disapproved -

And the Full Court go on to set out the ratio of

Maiden's case. The learned judge in his charge gave a

direction in the form approved by Bruce so

that it is the contention on behalf of the

applicant that in the light of Maiden and

Petty what the learned judge said clearly constitutes a misdirection in law. In a moment we will turn to what His Honour said.

It was nevertheless conceded that the

submissions in support of the above grounds concerned only the convictions on Counts 11

and 14 which alleged indecent assaults

respectively on Jennifer Catherine Behnk in

Glennon(4) 35 18/11/93

April at Karaglen, Lancefield and on Franco Palmieri in October 1980 at the same place.

Then the court goes on to deal with the Behnk

ground and the Palmieri ground. But there is

nothing, in our submission, on page 1073, that is

after the court has summarized the facts and then

dealt with the erroneous direction of His Honour,

which would entitle a submission to succeed that

this appeal involved anything other than counts 11

and 14, anything other than the Behnk and Palmieri
counts.

That is of significance for a number of

reasons, not the least of which is that it is the
Crown's contention that the other counts not having

been considered in the Court of Criminal Appeal,

this Court ought not consider them in any event,
regardless of what the outcome might conceivably be

in respect of those that are attacked.

I will come to it when I get to that point in

our written argument, but I thought I would clear

that up at the beginning, that the Crown's

contention is that this appeal can only affect two
counts, and that there are no other occasions in

the material where the court erred in respect of a

Maiden & Petty type error other than that set out

at pages 1072 and 1073 of the Full Court's

judgment.

It is the Crown's contention that the

defective direction could only have potentially

influenced the jury's consideration of counts 11

and 14 because it is specifically limited to those

counts, as we have pointed out from the judgment.

The defective direction was an instruction to the

jury to the effect that when the jury were
determining firstly whether any Aboriginal huts

were in existence at the time of the alleged

offence on Behnk, and secondly whether

Vicki Dickason was sleeping in the room on the night of the alleged offence on Palmieri, the jury

were entitled to take into account the fact that

the applicant had not revealed the specific facts

or specific defences to the police.

It is important, in our submission, to

understand what the significance of these two

matters were because they might, on their face, be

at best facts relevant to facts in issue. In the

Behnk count the relevance of the existence of a hut is that the hut was part of the res gestae. It was the place at which the offence is alleged to have

occurred. If there was no hut in existence at the
time, whilst I suppose it is possible that the jury

could have convicted on the basis that the

Glennon(4) 36 18/11/93

complainant and a large number of witnesses were
mistaken and that there was an indecent assault

which occurred somewhere else, for practical

purposes the trial judge, when he said, "No munya,

then no case", is obviously correct.

The existence of the hut was central to the case because it was the place at which the

complainant said she was sexually assaulted. The

facts of it are relatively simple. There are other

young women at the camp and this young woman goes

out to sleep in a hut, in a particular hut which

she designates and talks about in her evidence,

which we will come to in due course. She then

complains very shortly after that of having been

sexually assaulted by the accused in the hut where

she was asleep.

That is why the existence of the hut is of

such significance. It is given added significance

not simply because it is the locus in quo of the

crime, but because the accused's defence

essentially is:  "It couldn't have happened in one

of these huts because there were no huts, because I

didn't learn how to build these huts until a year later." So that that is how the existence of not

only that hut but other huts became a central issue

in this case.

If I might summarize it, it is a central issue

in two ways. One, that one of the huts, at least,

was part of the res gestae of the crime or the

locus in quo at which it is said to have occurred and, secondly, the position taken by the accused,

by the applicant, made the existence of huts an

issue as being facts relevant to a fact in issue.So

that the existence of huts achieved two

significances, if that is the appropriate word.

In relation to the Palmieri account, that is

even simpler. The allegation by Palmieri is that

he was sexually assaulted by the accused in the

accused's private room in a building at the camp.

The accused says, "It could not have happened because Vicki Dickason, my cousin, always slept in

there, and she was in there on that particular

night. There were two beds; she had one bed, I had

the other bed. Therefore the event could not have

occurred because Palmieri, firstly says, Dickason

was not present when it occurred. Dickason says it

never occurred and she was there."	So that is a
very simple proposition.	Now, in our submission,

it is important to see the significance of those

issues in the light of what the cases were.

Taking up our argument at paragraph 6 on

page 2, we say that even if there is anything in

Glennon(4) 37 18/11/93

the arguments of the applicant, any suggestion of

cross-infection here of other counts raises for

determination in this Court questions which were

not considered by the Court of Criminal Appeal.

Now, this Court has made it clear in relatively

recent times that it will not, save perhaps in

exceptional circumstances, permit the raising of

arguments in this Court and the raising of

effectively grounds of appeal. It starts off: In

any event, it was conceded by counsel for the

applicant before the CCA, that the defective

direction only concerned the convictions on 11 and

14.       No suggestion of cross-infection was made and

so was not ruled on by the Court of Criminal

Appeal. The applicant should not now be permitted

to argue that the defective direction infected all

of the convictions, regardless of what effect it

might have on counts 11 and 14. We go further and

say there is doubt as to the jurisdiction of this

Court to entertain an appeal other than in respect

of the Behnk and Palmieri accounts.

I take the Court to the case of Pantorno v

the Reg, (1989) 166 CLR 466. That was a case from

Victoria which - in fact it was a drug case and it

bears no relationship to this case in terms of

fact, but at page 474, Your Honours the learned

Chief Justice and Mr Justice Brennan deal with the

question of a point not argued below, at the first

full paragraph on the page:

The difficulty about this approach is that it was not argued in the Full Court,

though it falls precisely within the second ground of appeal to that Court. Failure to

argue a point before a court of criminal
appeal presents a considerable obstacle to an

applicant who seeks special leave to argue it

in this Court. Even if the point emerges

clearly only when a court pronounces its

judgment, it should be appreciated by counsel

who receive judgment that they are under a

duty to draw the court's attention to issues

which, in the light of the judgment, require

further consideration by that court and to

move the court to consider any such issues

before the formal order of the court is

perfected.

Your Honours go on to disabuse the profession

generally, that the pronouncement of a Full Court

or a Court of Criminal Appeal judgment is the end

of the matter and that it can be taken back.

At the top of page 475 the judgment goes on:

Glennon(4) 38 18/11/93

There remains a question of some

importance. If the issue of natural justice

was not argued before the Full Court, can it

be said that there was some error in the

judgment of that Court? If there were no

error affecting the judgment of the

Full Court, there is no jurisdiction in this

Court to set aside the Full Court's judgment.

(By "judgment" we mean the order made, not the

reasons assigned for making it.) The

jurisdiction of this Court, once special leave

to appeal is given, is to pronounce the

judgment or order which the Full Court sitting

as a Court of Criminal Appeal should itself

have pronounced: Craig v The King. Although

that jurisdiction is as extensive as the

jurisdiction of the Court of Criminal Appeal

itself, it may be that this Court does not

have jurisdiction to set aside a judgment

correctly and regularly pronounced when the

only ground which might warrant the allowing of an appeal is raised for the first time in

this Court. Whether the Court's reluctance to

entertain such a ground has its foundation in

an absence of jurisdiction or in a

discretionary rule or rule of practice is a

question which the Court left unresolved in

Hicks v The King.

And there is reference there to three other cases.

Meakes v Dignan (where Justice Dixon

considered that the speech by Lord Atkinson in

Banbury was more appropriate to the exercise

of original rather than appellate

jurisdiction). As this question was not

argued, it would be undesirable now to attempt

to resolve it.

Now, we raise that and the Crown submits that in

does not need to get to the point of submitting this instance there is no basis whatsoever. One	that this Court has no jurisdiction. This question
can be dealt with in this case on the basis that
not only was the matter not argued in the Court of
Criminal Appeal, but the Court of Criminal Appeal
judgment proceeds on the basis that it was conceded
by the applicant that there was no argument as to any other count other than counts 11 and 14.

The cases to which Your Honours refer in

Pantorno, Hicks v R, for instance is again a

statement by a much earlier High Court to the

effect that there is some doubt about the existence

of jurisdiction to deal with a situation where

there is no error in the Court of Criminal Appeal

Glennon(4) 39 18/11/93

because the Court of Criminal Appeal has not dealt

with the point.

MASON CJ: But you are not asking to rule on this question,

are you?

MR BONGIORNO:  No I am not, Your Honour. The Crown is

simply saying that, as a matter of discretion, in

any event, whilst the matter remains undealt with
by the Court of Criminal Appeal, that the best
relief that the appellant could get in respect of
the other grounds here would be a remitter of that

part of the matter to the Court of Criminal Appeal

to be dealt with. That would be the best relief

that he could obtain. Alternatively it would be

simply be refusal of special leave, or if there was

a grant of special leave, a dismissal of the appeal

in toto.

So that the Crown's position in relation to

all the counts, other than 11 and 14, is that this

Court ought not to deal with them, having regard to

the way in which they have come up, that is, if my

learned friend is asserting that they should be

dealt with and it would appear that he is. That is

all that we propose to say in relation to that

matter. We say that that part of the application

fails on the facts, in that there just is not a

judgment that the Court of Criminal Appeal were not

asked to deal with.

DEANE J: But what would you say if, at the end of the day,

the reasons which led to allowing the appeal in

respect of those two matters would inevitably lead

to the conclusion that the convictions in relation

to the other matters should also have been quashed.

Let us move away from this case. Say, for example,

the trial judge had said to the jury, by reason of

the fact that he did not disclose his defence to

the police in those two matters, you will disregard

his evidence entirely, and by reason of the way

things were done, the Court of Criminal Appeal had

only been asked to deal with that point in relation

to the two matters and had only dealt with it,

would we really say, "True it is that the argument

we have upheld means that all convictions should be

quashed. Because of the way things were conducted

in the Court of Criminal Appeal it did not deal

with it in relation to other matters and we will

not either"?

MR BONGIORNO: Well, Your Honour, has of course posited a

very clear case to raise the point, but -

DEANE J: But we can test it by the extreme case.

Glennon(4) 40 18/11/93

MR BONGIORNO: 

I respectfully concede that, Your Honour, but

the only answer, I suppose, that I could put to
that is that in that instance, if the Court were

satisfied that a Court of Criminal Appeal could not

do anything other - if there was no basis

whatsoever for maintaining the convictions, then of
course this Court ought to do something about it,

assuming that the jurisdictional point is not a

bar.  The difficulty of maintaining the

non-jurisdictional point which occurred to me in

the course of preparing this leads me to not want

to take up the invitation that is given in one of the other cases that this point can be decided on

another day. As far as the Crown in right of the State of Victoria is concerned, it can be decided on another day other than this case, because it is

not necessary to raise it here.

DEANE J: It is one thing when two members of a court raise

a jurisdiction point that has not been adverted to

in argument. It is a different thing when the

jurisdiction point is waved about in the course of

argument, in that if we lack jurisdiction, it is

not a matter for the parties to say, "Well, it

looks as if you probably lack jurisdiction, but

none the less go ahead and act as if you have it."

MR BONGIORNO:  Your Honours, in this instance it is the

Crown's submission that it is sufficient for the
disposal of the point to leave the jurisdictional

issue to one side on the basis that even if there were jurisdiction, that as a discretionary matter in any event, on the basis of what His Honour the Chief Justice and Justice Brennan said, the case

can be quite adequately dealt with within the
discretion that the Court undoubtedly has not to

deal with matters that were not dealt with below. I do not think I can put it any higher than that.

We turn then to what the Court of Criminal

Appeal did and how it did it. The Court of

Criminal Appeal concluded that this was an

appropriate case in which to apply the proviso.	It
is the Crown's submission that when determining
whether no substantial miscarriage of justice has actually occurred, the Court below must be
satisfied that had there been no misdirection the

jury would or must come to the same conclusion and

thereby would inevitably have convicted the

accused. The Court of Criminal Appeal must be

satisfied that the accused has not lost a chance

which was fairly open to him of being acquitted.

Those propositions are not, in our submission,

really up for debate in this case. The

propositions of law put by my learned friend are
not contested. We refer to Wilde, Gallagher,

Quartermaine, Driscoll and Mraz, but I do not

Glennon(4) 41 18/11/93

propose to delay the Court by reading from them.

As I indicate, there appears to be no argument

between the applicant and the Crown as to the

application of those cases.

The jury is to be regarded as a jury of

sensible persons anxious to do their duty and

return a true verdict, so that the word

"inevitably" is merely an adverb of emphasis

designed to express the necessity for the absence

of any doubt on the part of the Court that a

reasonable jury, properly directed, would have

returned the same verdict. We refer there to an

English case of Haddy, (1944) 1 All ER 319, the judgment of the Court of Criminal Appeal,

Their Lordships Justices Humphreys, Asquith and

Cassels, which is similar in some respects to this case. It was a case where the learned recorder

wrongly invited the jury to infer the appellant's

guilt from a consideration of his silence after

being cautioned. There is a discussion at page 321

of Lord Sankey's judgment in Woolmington's case and

then the Court in the middle of 321, 321D, counsel for the appellant tried to give some extra meaning to the word "inevitably" and the Court goes on to

deal with the proviso:

In our opinion, it would be wrong to give

effect to that argument. To accept it would

be to render the proviso practically otiose,

for it can never be said with certainty in any criminal case, however strong the evidence for the prosecution, that no jury could be found

to acquit. We are satisfied that

Lord Sankey LC was not was not referring to a

jury who might return a perverse verdict but

to a jury of sensible persons anxious to do

their duty which is, in the language of the

juror's oath, to return a true verdict

according to the evidence. If that be the

correct view, the word "inevitably" becomes

merely an adverb of emphasis designed to

express the necessity for the absence of any
doubt on the part of the court that a
reasonable jury properly directed would have

returned the same verdict. In the very early

days of this court, Lord Alverstone LCJ, used

the phrase in delivering the judgment of the

court.

That case is illustrative but obviously not a case

which is other than illustrative of the principle.

The discretion is a discretion conferred on

the Court of Criminal Appeal. It is clear from the

words of the proviso itself and from the other

cases in this Court. The Privy Council in

Glennon(4) 42 18/11/93

Ferguson's case, a case which is referred to in our

argument, (1979) 1 All ER 877, dealing with an
appeal from a Caribbean Court of Criminal Appeal,

spoke of the rarity with which the judicial

committee ought itself to apply the proviso. The

relevance of the case is confined by the particular

basis upon which appeals to the Privy Council go

from courts of the West Indies with which, of
course, this Court is not so confined under the

Judiciary Act, but the discretionary nature of the

proviso is discussed at - there is a reference at

page 882. Their Lordships recognize:

that only very rarely would they think it

appropriate to exercise the discretion which

the statute confers on the Court of Appeal.

So, again, that case is simply illustrative of the

fact that it is a discretion and like any other

discretion must be reviewed as a discretionary

matter.

It is the Crown's contention at paragraph 11

of our argument that it was open to the Court of

Criminal Appeal to determine that this was an

appropriate case in which to apply the proviso. Firstly, the Court of Criminal Appeal correctly

identified the legal principles relating to the

application of a proviso. If I could take the

Court to 1074 in volume 5, Their Honours at the

bottom of that page first of all set out the

proviso and then refer to it as:

part of the criminal law of the States

throughout Australia and has been the subject

of many decisions of the High Court -

and they refer to Mraz, Driscoll, Gallagher,
Quartermaine and Wilde. From these cases there may be distilled

the clear general proposition that the proviso

may be applied where "if there had been no
misdirection the jury would (or must) have

come to the same conclusion".

There is then a citation from Wilde:

"It is a question which the Court of Criminal

Appeal must answer according to its assessment

of the facts of the case".

Their Honours went on to state as

undoubtedly correct the view expressed by

Gibbs J ..... in Quartermaine - - -

Glennon(4) 43 18/11/93

TOOHEY J:  Mr Bongiorno, I do not understand Mr Dane to be

questioning the Court of Appeal's enunciation of

principle. It is the application of principle to

the facts that he complains of.

MR BONGIORNO:  I am indebted to Your Honour for pointing

that out, which in fact I had already noted.

Secondly, we say the Court of Criminal Appeal

correctly applied these principles and it did so in

relation to the case of Behnk at page 1083:

In the case of Behnk, the prosecution had

a very strong case. It relied on some ten

witnesses who said that there was an

aboriginal hut on the property in April 1979.

Two of them said that Behnk indeed was present

at Karaglen at the time she claimed and that

they were with her when she bedded down in
such a hut. Later in the evening they found

her distressed and crying in a toilet of the

house on the property where they intended to

stay the night.

We mention in a little more detail the

evidence of these witnesses to demonstrate

what we consider to be a very strong

prosecution case.

I will leave that, as subsequent in our argument I

shall take the Court to each of those references to

demonstrate the strength of the case ab initio, as

it were, although the Full Court obviously

recognized it.

So far as Palmieri is concerned, it dealt with

that at page 1087, and it is significant in

relation to Behnk and Palmieri to note two things:

in relation to the case of Behnk, the applicant

refused to take part in a record of interview at

all and that was dealt with by admission in the

trial that on a certain day he went to a police	station, was invited to take part in a record of
interview and declined. So that there is no
evidence of any conversation with the police.
In relation to Palmieri, there was a record of interview which was quite extensive. At page 933
in appeal book 5, the record of interview in
relation to Palmieri which is the subject of the
erroneous direction commences, and the first page
of that first of all sets out that it was a record of interview on 12 November 1985 and has the ordinary introduction - record commenced at
11.12 am. And then there is a page of questions,
they are introductory to question 6; question 7
refers to Palmieri:

Glennon(4) 44 18/11/93

allegation made by Frank Palmieri that you

indecently assaulted him -

There is then a warning:

you are not obliged to say anything ..... Is

that fully understood.

Do you know Frank Palmieri.

Yes.

There is a reference to Palmieri being a member of the Peaceful Hand Youth Foundation. That is

conceded.

There is a reference to his qualifications

which are conceded. He formed a breakaway club.

Q.12 Did you sent Frank Palmieri a letter of

dismissal ..... A.Yes

Q.13 What did you tell him in that letter?

He said what he told him.

Q.14	Do you wish to read that letter?
Q .15	Is that the letter you sent Palmieri?
A.	Yes, that is the letter -

and there is a reference to whether it might have

been a threat.

Q.19 Can you recall Palmieri going to

Karaglenn camp with you and others for Karate

training course for teachers in October 1980?

A. That is five years ago, and as I have been

on hundreds of camps at Kara over the past ten

years, I would prefer not to reply to that

question at this stage.

Essentially, the Crown at the trial made of that

that the accused was saying he could not remember.

It is certainly one inference that one can draw

from the answer.

Q.20 Could Palmieri have gone to Karaglen for

a Karate teachers course in October 1980?

A. He may have, as he was a credited teacher in the junior section.

There are then questions as to camps: How often

were they held? How old was Palmieri? Fifteen.

Q.27 Can you describe the main building at

Karaglen.

Q.28 The leaders room .....

Q.29	Do you use this room when you go on the
camps?

Glennon(4) 45 18/11/93

A. Sometimes -

et cetera. We get down to question 32 on page 935:

Q.32 Would the students at the camps think

that the private bedroom was your room if they

attended the camps with you and you used the

room?

A. May I ask what Frank Palmieri's

allegations are?

Q.31 As I explained to you prior to starting

this interview, Palmieri has alleged that you

indecently assaulted him by touching him on

his penis whilst he was on your bed for the

purpose of you helping him with his studies

for his teachers exams.

A. I deny the allegation.

Q.32. Do you recall being at such a camp with

Palmieri.

A.I would prefer to make no further response

re Palmieri's allegation at this stage.

Now that was the last of the questions relating to

Palmieri's allegations. The rest of the interview talks about Palmieri but there is no reference to

the allegations. There are two things that come
out of that interview. One is that the accused

initially says, perhaps not unrealistically and

perhaps quite unexceptionally, that it is over five

years ago and he conducted hundreds of camps and he

cannot remember whether Palmieri was there on a

certain date and then, secondly, when the

allegation is made to him, or put to him, he says

that he does not want to take part in any further

questioning on this subject. And that is

significant for reasons that I will come to.

At page 1087 the Court of Criminal Appeal

dealt with the application of the proviso in

Palmieri's case in these terms: 

The same may be said as regards the count concerning Palmieri. The applicant had on

more than one occasion responded to questions

about him without exercising his right of

silence.

The court then goes on to deal with the record of

interview:

It was during that interview that the

applicant said to Coath:-

"What we've got here quite obviously is a huge

mass of conspiracy of ex-students -

Glennon(4) 46 18/11/93

et cetera.

He went on to say that he had been subjected

to allegations made "by them and their friends

and black belts and blues who were all

dismissed at the same time".

This was said in the course of a long

interview at which the applicant answered many

questions concerning five of the six

complainants.

Now, the court is referring there to - - -

BRENNAN J: Line 25 seems to be the one that you drew our

attention to, is it not?

MR BONGIORNO:  Yes. I think I have missed something,

Your Honour.

MASON CJ:  We will adjourn now, Mr Bongiorno. We will

resume at 2.15 pm.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

MASON CJ: Yes, Mr Bongiorno.

MR BONGIORNO: 

The passage in the Court of Appeal in the

Full Court judgment that refers to the record of
interview - he is referring to the record of
interview. What, in fact, happened was that there
was a long record of interview in which the whole
of the allegations against five or six complainants

were discussed. That record of interview was

tendered in a truncated form, and then there were
individual records of interview in respect of
individual complainants, and they were tendered in

full.  They all appear in the volume 5 of the

appeal book, and the relevant passage commences at

page 900, which simply notes the existence of the: Transcript of a taped conversation after

9:30am on 12 November 1985 at Preston C.I.B. -

and the passages on 1087 to which I was referring

occur, serially - at 901, he commences to talk

about Palmieri. Then at 906 the questioner says:

Glennon(4) 47 18/11/93

There's more statements that we've

obtained.

His answer at 906, line 5:

Well attempting to corroborate; well,

what we've got here quite obviously is a huge

mass of conspiracy of ex-students who have

been dismissed primarily or their friends have

been dismissed. It goes right back to the

82 -

and then there is a bit of discussion, and at

line 17:

I have been subjected to allegations made by them and their friends and black belts and

blues who were all dismissed at the same time.

Then at page 929, line 24:

What about PAUMERI?

Misspelt; spelt in the record Paumeri, obviously

should be Palmieri.

PAUMERI was a very strange lad, poor old

Franco PAUMERI - FRANK PAUMERI - the story of

Frank. Well he was so excited, last year when

he resigned. He resigned last year with a

bloke called DANAHER.

Then at page 930:

Exit COATH to collect carbon paper.

GLENNON: Actually what I'm enjoying, not enjoying but pleased psychologically, is to

sit down and talk with somebody who isn't - is

going against me, to analyse this hatred, but

I still haven't quite got it.

Further down on page 930 is the last piece:	O'CONNOR:You know, you gotta keep asking
questions, why?
GLENNON: And why, the only thing I can think of is cocaine swirling around in their brain,
one - there's no question about that, that all
these people -

They are the passages referred to by the Full Court

at pages 1087, and then at page 1088, after quoting

those pieces, the judgment reads at line 23:

Glennon(4) 48 18/11/93

On 12 November 1985 the applicant agreed to be interviewed in relation to Palmieri and

answered some 31 questions ~efore he expressed

his preference to make no further response at

"this stage re the allegation of Palmieri".

That record of interview commences on page 934

and it is the record of interview to which I took

the Court before lunch. It commences at 933 and

goes to 936. There are the two passages that I

referred to this morning, one where the applicant

talks about the whole thing being five years ago,

''I'd prefer not to reply", and then of course after

question 32:

I would prefer to make no further response re

PALMERI's allegation at this stage.

So that the Court of Criminal Appeal sets out those

answers and then goes on to say at the bottom of

1088:

This refusal -

that is Glennon's refusal to answer about

Palmieri -

was not relied upon by the Prosecution in any

way to advance its case. Nor did the

Prosecution, as we have mentioned, contend to the jury or in cross-examination that the applicant had failed to inform the police that Dickason spent the night in the room at the

time of the alleged indecent assault.

The credibility aspect of the applicant's

evidence to which the jury was erroneously adverted by the learned judge was only remotely peripheral to the issues which were actually contested. In his final address, the Prosecutor expressly disavowed any criticism	of the applicant for seeking deferral of his	answers to the police, but he attacked his
credibility on the quite different basis that
he had changed his line of defence. He told
the jury that the answers which the applicant
freely gave to the police emphasized his
difficulty in knowing what night the Palmieri
allegation involved owing to the passage of
time and the applicant not knowing who
precisely was at Karaglen on each of the many
visits which he made there over that time.
The Prosecutor said it was feasible that the
applicant could not be expected to recall the
occasion when Palmieri was there without time
for reflection and resort to records (such as
his diary). This was a perfectly reasonable

Glennon(4) 49 18/11/93

and understandable response, he said, but he
added that it conflicted with the detailed and

certain account of conduct and conversations

which the applicant at his trial (some ten

years or more after the alleged event)

purported to be able to give. The Crown

attack on the applicant's credibility thus

rested on this supposed change of defence.

That part of Mr Walmsley's address, who was Crown prosecutor, appears in the supplementary

appeal book volume III at page 419. Part of it at

419 is his address concerning Palmieri. He

finishes his address about Henry or at least moves

from Henry at line 6:

we move to that evidence touching Palmieri -

Line 8:

as distinct from other evidence and again, for reasons I outlined earlier ..... we've been here for four to six weeks it's hard to keep

in ..... perspective -

And then he deals with Palmieri's evidence at 419,

420 and I will not trouble the Court with reading

it, but at page 437 he commences his attack on

Glennon, such as he makes attack, which is based on

this piece in the record of interview, which is

not, the Crown contends, in any way in breach of

any of the law as laid down by this Court in

Maiden's case. At 437 line 8:

The record of interview was on 12th

November 1985, and in it, significantly, and

these are matters that might interest you when
you're analyzing the Palmieri situation, he

has put to him the letter of dismissal and

indeed he has an opportunity to read it, and

that's the one I've been through with you

already. And he concedes charitably, although

perhaps regretfully now, that Frank Palmieri

may have looked upon that letter as a threat

against him, and that was in question 17. He

then goes on to be asked in terms, question

19, "Can you recall Palmieri going to Karaglen

Camp with you and others for karate training

course for teachers in October 1980?", simply
question.

That should be simple question:

You'd think, bearing in mind that this is 1985 and it's only a year earlier, year and a half

year earlier that he's written this poisonous

letter to Palmieri, and it was in terms where

Glennon(4) 50 18/11/93

even Vicky Dickason knew that Palmieri made an

absolute pest of himself -

et cetera.

At line 26:

What was his answer to that? It was

this: "That's five years ago and as I have

been on hundreds of camps at Karaglen over the
past ten years, I would prefer not to reply to

that question at this stage."

Walmsley goes on:

Now, two things arise out of that. You know,

and you will be reminded hereafter that the

accused man did not have to answer any of

these questions, and that includes partially

not answering them. He's quite within his

rights to say, "Look, you kno~, I don't want
to answer that question, it doesn't suit me

to, I'm relying upon my rights not to", but he

does answer it in a significant way. "Can you

recall Palmieri going to Karaglen with you and
others for karate training courses for

teachers in October 1980?" "That's five years

ago and as I have been on hundreds of camps at

Karaglen over the past ten years, I'd prefer

not to reply to that question at this stage."

Walmsley says:

Well, that's fair enough, and you might think the sentiment therein expressed is fair

enough, because you now know that over ten

years he did go to a large number of camps,

and this might after all, we might all

charitably accept is just one of them.

But he can't have his cake and eat it

too, because you know, members of the jury,

that he has given evidence in this trial about

what happened on that camp. Where is the

complaint that over ten years he'd been to
hundreds of camps, where is the complaint that

it was over five years ago?

He then goes on to detail the quite detailed

evidence that Glennon gave about this incident, and

remembers conversations; he remembers Dickason,

and that is referred to by Walmsley in the

subsequent pages. But there is nothing in that,

the Crown submits, which in any way infringes this

Court's ruling in Maiden.

Glennon(4) 51 18/11/93

Accordingly, in our submission, it is quite

clear that the only passage that can be attacked is that in the judge's charge, and that being an error

it falls to the Court to determine whether the
conviction was inevitable none the less.

We go then to the evidence which supports the conviction in the Behnk instance, paragraph 14 of

our outline. The applicant raised the specific

defence that there were no Aboriginal huts built at

Karaglen until after he visited Derby in

February 1980. The offence on Behnk is alleged to

have occurred in April 1979. Accordingly, if the

jury were in doubt as to the existence of

Aboriginal _huts in April 1979 an acquittal on

count 11 would follow.

The judge in his charge makes that point and

the Crown do not contest that proposition. As the

Court was referred to this morning, I think the

judge used the term "munyas". I might interpose at

this stage. A reading of the transcript reveals

that there is no clear understanding on the part of

any of the witnesses as to what the appropriate

Koori word for these structures, if there is one,

is. Glennon has attributed to him by various

witnesses the use of the term "munya", spelt with

an "m", and "gunyah", spelt with a "g". There does

not seem to be, on a fair reading of the

transcript, any distinction made by any witnesses

to whether one is any different to the other or

whether, indeed, there are simply two

mispronunciations of some other Koori word.

The evidence of Behnk herself is stark in its

force. It commences at page 14, volume 1, Behnk

having said she was there at Easter of 1979.

Page 14, line 12:

You mentioned that what was at the camp at

that time was some huts.

that?---They were called munyas.

What did you mean by

With an "m".

We were told by Michael Glennon that they were called munyas which were Aboriginal huts, and

they were just built around trees.

What did you say that they were called?---

Munyas.

Do you know how to spell that?---M-U-N-Y-A.

Who told you that was what they were called?--

-Glennon.

And how many were there on the Easter camp we

are discussing?---I think there was about

three or four.

Glennon(4) 52 18/11/93

And where were they in relation to the pavilion or constructed part of the camp?---I

think they were about 50 yards up behind the

house. Not very far away.

Then she is shown a photograph.

If you could hold it up so the jury can see -

and that is recorded. She clearly asserts the

existence of those structures.

In cross-examination at page 43 - I might say,

Your Honours, that we have chosen the most

significant references. There are references to

these structures in a number of other places, but these are the ones where there is actual evidence

that they existed at the relevant time.	Page 43,
line 23:

Let me suggest this to you, Miss Behnk, that

neither was there a koorigunya or any one of

those gunyas that you were talking about;

neither was there any Aboriginal hut, gynya,

whatever you call it.	They were not built in
'79, Easter.	What would you say?---I'd say
that is a lie.

His Honour interrupts and there is nothing further

in that passage. At page 53 there is another

direct assertion, line 5:

Miss Behnk, I suggest this to you, that there

were not native huts in April '79 at Karaglen,
what do you say?---Like I said before, that's

a lie.

So that there is a clear assertion by the complainant that there were these structures in at

least three parts of her evidence, and there are

others relating to the offence itself. Palmieri,

in the same appeal book at 173 to 175, describes
the same thing.	Page 173 line 26:

During 1980, prior to October of 1980, did you

participate in the construction or maintenance

of such huts?---Yes

And what of prior to that; that is prior to

1980?---In'79, we used to go up.

And what did you do when you were up there?---

That was one of the activities to do - we made

those huts or even helped in patching them up,

because they used to fall down quite a lot.

Glennon(4) 53 18/11/93

How many huts of that kind do you say were

constructed in 1979 as distinct from 1980?---r

can't really say how many were constructed in

that period. There was a few up there and we

used to make a few. I'm not really sure about

the exact number, but they were there.

And there is some further discussion.	And down at
line 26:

And the huts that you say you participated in building in 1979, where were they in relation

to that circle?---Probably the centre one - He is referring there to a photograph.	At
page 175, line 6:

I want you to think very carefully about this next question and not guess or rely upon what

people have told you. On how many occasions

in 1979 and 1980, did you personally

participate in the construction of Aboriginal

huts; on how many separate occasions?---Two or

three maybe.

Then in further examination in-chief, at page 187
he is asked about photographs again, and at

page 188, at the bottom, line 25:

Are you able to say when it was built -

that is referring to a hut -

bearing in mind the photograph that I have

asked you to look at was May 1980?---It was

there in '79 when I used to go up there.

The Court will recall that I submitted this morning

there are two issues about these huts; one is the

credit issue and one is what might be called the

the credit issue even if it does not get quite as res gestae issue. This evidence goes clearly to	far as going to the res gestae issue, because the
credit issue is the contradiction of Glennon's
assertion that he did not know how to build these
huts and therefore there were not any until he had had a trip to Western Australia in February 1980. So that any evidence which contradicts that would
go directly to the question of his credibility and
the Crown would submit, direct evidence of that nature would make any comment about his failure to
mention it to the police pale into absolute insignificance.

So that if we are talking about the issue, the

credit issue solely - quite aside from the res

gestae issue - evidence from someone like Palmieri

Glennon(4) 54 18/11/93

that he says there were huts there in 1979 is of

far, far stronger evidence in destruction of

Glennon story than any what might be called - I

hesitate to use the word technical or lawyer's

comment about what he did or did not tell the

police at the time. The jury, we would submit, be

entitled to take this as being direct evidence of

something which Glennon was denying, as against his

oath. Whereas the other is, at best, inferential

on which ever way it is looked at.

At 188 is that passage. Then at 194 he is

cross-examination, line 12:

Let me suggest this to you, Mr Palmieri,

that the huts, the aboriginal huts that you

have talked about, were constructed in 1980; what do you say about that?---It wouldn't be

correct.

There is a passage at the bottom of that page where His Honour speaks to counsel for the defence:

He said that there were huts that he helped

build on the place I think in '79.

MR THOMAS: That's so, sir.

HIS HONOUR:  You are putting to him specific

huts in the circle.

MASON CJ:	Do we need to go through all these, Mr Bongiorno?
MR BONGIORNO:	No, Your Honour, we can truncate it by simply saying there are references as set out in our
written document, by all of these witnesses: at the
top of page 5, Wilson, Maynard, Marsh, Danaher,
Henry.  Henry was not reproduced and so there are
two copy pages of transcript attached to the
argument. At the bottom of page 372 there are
references in 1977 and 1978, and at 373 about huts,
et cetera from the witness Henry: John Glennon,
Rocco Valotta and then Newbiggin and Newbiggin.

Now, I do not contend that the strength of all

of those is equal. The Newbiggins talks about huts

which were put up and pulled down, rapidly, and one

could distinguish them off to one side, I suppose,

by saying that they may not be talking about the

same things. They were defence witnesses, but they

recognized the existence, at least, of huts.

The second point, quite aside from this

question of whether there were or were not huts,

given that the ultimate task for the jury was to be

satisfied beyond reasonable doubt at the indecent

assault, the evidence of Behnk herself, at 18 to 23

Glennon(4) 55 18/11/93

is worth briefly looking at just simply for its

strength as against the denials of the accused.

What had happened was that she had chosen to sleep

in one of these huts, at 18 she says she had a

torch. Line 6:

How far was the monya that you had chosen from

the main building?---I think it was about 50

yards or 50 metres. I'm not sure.

Could you see it from the main building?---No,

not through the woods, no.

When you were there, could you see the main

building without lights on from it?---I'm not

sure.

What did you do when you got into your monya?-

--I got in my sleeping bag and went to sleep.

How with you dressed?---I had a long winter

nightie.

What was the climate at that stage, hot or cold?---Not too cold, but cold enough.

Did something happen shortly thereafter?---

Yes, when I was in the house I asked Mary and

Nicola to come out to the tent just to make

sure I was okay, so I thought they were coming
out and I saw this torch light coming out and

it was Michael Glennon. It wasn't my friends,

was Michael Glennon.

What happened then?---He came into the tent, the munya, and said, "Good evening", and, you know, "move over."

Did he have a torch with him?---Yes.

What was your response to his "Good evening,

move over"?---I just said, "Good night", and

moved over. I didn't move over, sorry. I

just said "Good night" because I was on my

side and I didn't turn to say good night. I

just said, "Good night" when I was on my side.

At that stage, of course, you had a male

person climbing effectively into bed with
you?---Yes.

What was your attitude to that?---I mean, I

didn't know, I couldn't do anything. I mean,

I was scared, it was just strange.

What was your attitude to the accused man at

that stage and his position?---Well, we'd been

Glennon(4) 56 18/11/93

friends. Nothing had ever happened,

everything had been fine up to then.	We were
friendly.	We were friends.

Were you of the Catholic religion?---Yes.

Were you a staunch church goer?---Mediocrely

staunch.

What was your attitude towards priesthood?---

Well, I mean a priest is to be revered

basically, he never does wrong.

There is an interjection by His Honour, and it goes

on.	The description at the bottom of the page:
Well, he came in, put his bedding down, he had
a doona, and I was on my side and he wanted me
to, he said, you know, "Turn around, talk to
me, talk to me, don't go to sleep without
giving me a hug." What did you respond to that, if anything?---I
said, "No, I want to go to sleep. Good
night."
What followed thereafter?---And then he tugged
me on my shoulder and made me turn over.

The witness then gave a short demonstration to the jury.

Having done that, what transpired?---So I had

to turn over because he kept on saying, "No,
turn over, you've got to give your sensei a

hug before you go to sleep" -

"sensei" was a term that Glennon applied to himself

in some form of martial arts or karate culture - "No, I want to go to sleep", you know, "Leave	me alone", and he said, "No, turn around, you	have got to give your sensei a hug before you
go to sleep" ..... he undid the zip and pulled
the hood off and pulled out my arms and I had
to hug him.
How far did the zip undo?---About there
(indicating).
I lost sight there, but around the pelvic region?---Yes ..... I had my arms inside the sleeping bag -

and there is a description there on the rest of

that page. At line 27:

Glennon(4) 57 18/11/93

When you say you hugged him, what did you

do?---I just quickly gave him a squeeze and

then went to go back into my sleeping bag.

What occurred?---Then he said, "No, that's",

you know, "Don't go, stay and talk" -

At page 21 there is a description of further events

at the top. At line 10:

What else happened or was said?---I kept

trying to get into my sleeping bag and he kept

on pulling it off me and he said, "Get under

the doona, the doona is warm", and I said, "My

sleeping bag is fine, I'm really fine, I just

want to go to sleep" ..... "The doona is
warmer" .....

What else was said ..... ?---I had said things like, "No, just leave me alone, I want to go

to sleep, leave me'', alone and he kept saying,

"That wasn't a proper hug, you have got to

give me another hug", words to that effect.

Did he thereafter talk of things more

sensitive?---Yes.

What did he say?---I had to give him another

hug and then he wanted to keep on talking and I didn't want to keep on talking, so whenever

I turned on my side again, he would face me

and I ended up to my back and then he started

talking to me about things, saying, "I've

never had an erection before."

Just stopping you there, he said he had never

had an erection before, is that what you

say?---Yes.

At that stage, did you know what an erection
was?---I sort of knew what he was talking

about, but not understood it completely at

all.

There is a discussion about that at the top of

page 22. At line 9:

What next happened or what next was said?---So

then he started talking about never having had

a full erection and then he touched me on my

breast on the outside of my nightie and then

he started just with one hand touching my

breast.

What position were you in at that stage?---!

was on my back.

Glennon(4) 58 18/11/93

What position was he in?---On his side, I

think, facing me.

The closeness is described, the configuration of the bodies was described.

And you say that he touched you on your breast

outside your clothing?---Yes.

Are you able to say what breast it was, or

not?---I think my left breast first.

And the way you have described it thus far,

that was the one furthest away from him, or

otherwise?---No, that would have been the one

closest to him.

In what way and in what manner did he touch

you in that place?---He just circled my nipple

and was just playing with me and then he just

kept on talking.

What did he say?---He kept on saying that he had never had an erection before and, "I feel

a 16th of an erection corning on," and "You'd

do so much for me if I had an erection," and,

"I think I have an 8th of an erection corning

on."

And there is description about that. Line 7:

He was still touching my breast and then he

put his hand inside my nightie and started

touching my skin an doing the same thing,

circling and talking, and saying how much I

will do for him if he could have a full

erection.

When you say touching your skin, touching your

bare breast?---yes.

And there is a further description there, till

eventually at lines 18 she said:

"Listen, I need a glass of water."

What did you do at that stage?---I just

immediately got up and out of under the doona

and stood up and went to the exit of the rnunya

and went to get a glass of water and then he

got the torch. I was going out of the rnunya

and he got the torch and said, "Listen, you're

corning back, aren't you?" and I said, "Yes,"

because I was too scared to say no, basically.

Did you intend returning?---No, I had no

intention of returning.

Glennon(4) 59 18/11/93

Where did you go?---There's a little sketchy path from that area to the house, so then I went into the house, and the side door nearest the toilets, and I went into the toilets.

What state were you in at that stage?---I was

crying, crying a lot and just hysterical.

Et cetera.	And then it goes on to the recent
complaint.	So that there is a very strong and

graphic description of the event which the jury are
required ultimately to be satisfied of beyond

reasonable doubt.

There is evidence, as we note in our outline,

from Behnk, Wilson and Marsh to the fact that all

of this occurred in Easter 1979 and there is

graphic evidence of first complaint given by the

complainant herself, by Wilson and by Marsh. The

references to all of those passages are set out on

page 5.

So it is the Crown's contention that even if

the trial judge had made no reference to the jury's purported entitlement to take into account the fact that the applicant had not revealed to the police

the defence of there being no aboriginal huts in
existence at the time of the offence, it is
inconceivable that a jury would or could have

rejected the evidence of the 11 witnesses

including, perhaps, depending on how you read their

evidence, two defence witnesses in favour of the
applicant's version that there were no aboriginal

huts prior to February 1980.

Of course, it must also be remembered that

once the jury reject Glennon on that, if they do,

and they clearly have done so by their verdict, any

question of the effect of the judge's comment about

failing to tell the police, pales into

insignificance against a direct finding by the

jury. Not only that he did not come out with the

defence earlier, but that at that point he is a

liar. So that, far from the question of cross-

infection by what the judge said, if we get to a

point where the evidence is overwhelming in respect
of count 11 such that the jury are entitled to
reject Glennon, they have then got a false denial
which goes, of course, to his credit generally, and
they are entitled to use that in relation to the

way in which they view his evidence on count 14. Count 14 can be dealt with in a similar way,

and I will not take the Court to the passages, but

at page 6 we set out in paragraph lS(a)(i), (ii),

(iii) and (iv), the evidence in relation to the

Palmieri count.

Glennon(4) 60 18/11/93

I must concede from the position of the Crown,

the evidence in relation to Palmieri is not as

strong as that in relation to Behnk, and if the

Behnk evidence was not as strong as it was, I would

have to take a position in relation to Palmieri
that the arguments of the applicant would be
somewhat stronger. If our argument in relation to

Behnk is accepted, well then we say that the

evidence in relation to Palmieri does not need to

be as strong as the evidence in Behnk to achieve

the same result because of the proposition that we

put.

GAUDRON J: Is there not something of a difficulty though in

relation to Palmieri in this respect: the

suggestion is that because he did not say at the

time that Mrs Dickason was there, he was lying, and

also the immediate inference is that Mrs Dickason

was lying. So you really have a double infection,

if you like, from the direction so far as it

relates to that.

MR BONGIORNO:  It depends how in reality one takes the

direction in light of the record of interview that

in fact occurred. It is important, in our

submission, to realize that in that record of

interview not only did he say he was not going to

answer any further questions after question 32

which, of course, he was entitled to do, but at an

earlier stage he had really given the jury a reason

for not answering any further questions by saying

"It's all a long time ago; it's all five or ten

years ago".

In our submission, that somewhat waters down

the effect of the judge's comment in this area

because it is not simply a case of saying he said

nothing; he took the privilege right at the

beginning and said absolutely nothing. Here, he is

given proleptically at the answer to

question 16 - - -

GAUDRON J: Yes, but if you look to the direction at

page 1072:

he also called evidence in the case of

Palmieri to state that at all material times

Mrs Dickason was sleeping in the room and that

in the case of Behnk there were no huts.

The direction really does go - it goes on:

In testing the veracity of that defence -

I should go to Mrs Dickason:

Glennon(4) 61 18/11/93

You are entitled to have regard to the fact

that it was not revealed to the police -

et cetera.

MR BONGIORNO:	I have to, of course, strictly concede the
force of what Your Honour says, but the only thing interview contained within it the explanation by
the accused that he did not want to answer any
further questions because he could not remember.
When a jury come to look at this - - -

GAUDRON J: But that is an invitation, is it not, to

disbelieve .both of them?

MR BONGIORNO:  Yes, it is, Your Honour. I cannot back away

from that. But this must be looked at, of course,

along with all of these counts in light of a trial
where the accused was acquitted of 12 counts. It

is not as if the jury simply disbelieved him and

decided to believe complainants wholesale. They

did not. They must have had reasonable doubts in

respect of two of the complainants in respect of a

large number of counts. The Crown did not succeed
in respect of one complainant at all, and in

respect of the other, succeeded only in respect of

half of his allegations, I suppose.

I suppose I would sum up an answer to

Your Honour's question that in the context of this

trial and in the context of this particular record

of interview where an answer has been given which

provides the jury with a way of innocently

explaining why he has decided not to answer any

further questions, the matter is not of the

significance that it might have been in another

case.	I do not think I can add anything further to
that.

We provide at the rest of page 6 the other

transcript references which support the Crown's
contention, and that is really the case on behalf

of the Crown. I leave the matter only with the

final submission in relation to the question of

special leave. The only ground upon which, in our

submission, special leave could go in this case

would be that under section 35A(b) in the interests

of the administration of justice in the particular
case. There is nothing, in our submission, shown
by the applicant to demonstrate a point of law or a

conflict in authority or any of the other grounds

upon which special leave might go. So it comes

down, ultimately, to the question of the interests

of justice in the individual case.

Glennon(4) 62 18/11/93

So far as the Crown is concerned, for some

time in different cases, I have been concerned as
to what the appropriate position of the Crown

should be in relation to special leave but in this

instance our submission is that if there is nothing
in the appeal, which we would submit there is not,
then there is no basis for the grant of special
leave under section 35A(b), because the interests

of justice - - -

MASON CJ:  What do you mean, "If there is nothing in the

appeal"?

MR BONGIORNO:  If the applicant is unable to succeed in

relation to the argument of the appeal assuming

special leave, then there is nothing to

support - - -

MASON CJ:  You mean there being no question of general principle?

MR BONGIORNO: There is no question of general principle, is really what I am saying, yes. There is no question

arising out of any of the cases which needs this

Court to revisit -

GAUDRON J: What you say is if he cannot appeal there was no

miscarriage of justice, so it is not in the

interests of justice to have an appeal about a

situation where there was none.

MR BONGIORNO:  Your Honour puts it, with respect, far better

than I could. Those are the submissions on behalf

of the Crown.

MASON CJ: It is a good note to close on, Mr Bongiorno.

Yes, Mr Dane?

MR DANE:  We only wish to draw the Court's attention to

three matters. First of all, we failed when we

first were addressing the Court to draw the Court's

attention to a portion of cross-examination of the

accused by the Crown. Appeal book 3, page 461,

line 12:

You and I and the jury know the significance

of whether or not the huts were there?---Yes,

certainly.

It wasn't suggested to him that he knew the significance in respect to the Jenny Behnk

allegation, was it?---No.

It is just the content of the question that

the Crown recognized the significance of the huts,

we should have drawn that to the Court's attention.

Glennon(4) 63 18/11/93

By way of reply to the matter raised in the

respondent's submission in paragraph 6 on page 2 of
their outline, referring to Pantorno's case, since

that case was decided this Court has made a further

consideration of that in the case of

Peter Mickelberg v Reg and Raymond Mickelberg v

Reg. The relevant passage of that case is prepared

and we can hand those to the Court. That is

(1989) 167 CLR 259. The first passage that we seek

to refer the Court to is on page 272 in the

judgment of Your Honour the Chief Justice, the last

paragraph on that page:

Whether or not the reluctance of this

Court to grant special leave to appeal on the basis of argument presented for the first time

in a case before this Court is founded upon

the nature of its appellate jurisdiction or,

as I am inclined to think, the exercise of

discretion, is a question which was not argued

before us. But it would be surprising if

there was a want of jurisdiction when the

Court has made many statements dealing with

the way in which a discretion may be exercised

to allow a point not argued in the courts

below to be raised within this Court for the

first time. It is clear that only in

exceptional circumstances is special leave to appeal granted when the point relied upon was

not taken at trial or in a Court of Criminal

Appeal.

Millard's case is referred to and of course

Giannarelli's case is referred to, where the whole

foundation was that Mr Hughes took a completely new

point.

Equally, a point cannot be raised for the

first time on appeal when it could possibly

have been met by calling evidence-below -

We shall not trouble the Court further, but the	passage that we wish to conclude with concludes
with the second paragraph on page 273. Again in the judgment of Mr Justice Deane on page 293, in the middle of the page:

On the other hand, as I have pointed out

above, the function of this Court in hearing

an appeal is not confined to the correction of

tterrortt on the part of the court below. Where

the interests of justice override the public
policy that there should be an end to
litigation, the Court can entertain a point
notwithstanding that it was not raised before

the intermediate court of appeal.

Glennon(4) 64 18/11/93

And again, at page 313, in the joint judgment of

Justices Toohey and Gaudron, under the heading of

"Conclusion", we say the point is affirmed.

The argument, the only matter we wish to

address is our learned friend's suggestion that if

a jury in its deliberation has come to a conclusion

as to one count that the accused is not to be believed, then they are able then to use that

finding when they are considering other counts

later on.	We would say that it would be an
inappropriate way.	They are separate trials in

each count, and the conclusion in relation to one

as to credit is not a foundation upon which the

proposition to be found in a case of Nguyen

jury can use their conclusion for the next count.

and - - -

GAUDRON J: That does not necessarily assist you though,

does it? I mean, it is only if the contrary is

true that you could advance your proposition that

the misdirection infected all the matters before

the jury.

MR DANE: Well, if we could just tackle that proposition

from the other end. We will be as brief as we can.

There were three complainants about which there

were verdicts of not guilty: Henry, Trentin and

Hood, albeit there was a conviction in relation to
Hood on one count. All of those can be explained

without reference to credit. In relation to Henry

there was a specific warning of the Bromley and

Karpany class of warning, it is where the only

area, or the only set of charges, where that

warning was given and he clearly had a great deal

of difficulty, personally, as a witness, and so the

acquittal there can be explained in that way.

The acquittal in relation to Trentin was that

the offence was alleged in 1977, Trentin gave

evidence about the offence in fact occurring in

1976. It occurred, allegedly, at a school.

Presented at trial was a letter from the Archbishop

appointing Glennon to that school in 1978. On the

strength of that letter being presented there was

an application to amend the charge, yet again, from

1976 to 1978, that application was refused, and

accordingly the complete circumstances of this

offence taking place at the school just could not

have been in view of the dates.

Finally, in relation to Hood, where the

acquittals were obtained, was where Hood's sister

gave compelling evidence to the contrary. That is,

the offence was accompanied with loud noise and

screaming, together with other people, and all of

Glennon(4) 65 18/11/93

that was answered by his sister who was also

present giving contrary evidence. Accordingly, where there is acquittal, there

are compelling cases for the accused that can be

presented quite independently of the issue of

credit. And so we say that as a matter of law the

issue of credit cannot be used one at a time in

that way and say, "Look, his credit has been used.

If it is going to be used all the way across the

board you have got your acquittals".	We answer
that in the way that we just have.	On the other

hand, the Crown says, "A finding against his credit

in one can be used in the other". We say that that

is not permissible, and seek to rely on Nguyen's

case, (1992) 60 A Crim R 196, a decision of the

Court of Criminal Appeal in Victoria. We shall not

trouble the Court further unless there is something

else that we can be of assistance.

MASON CJ:  Yes, thank you, Mr Dane. The Court will take a

short adjournment in order to consider the course

we will take in this matter.

AT 3.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.28 PM:

MASON CJ: In the light of the issues identified in the

proceedings before the Court of Criminal Appeal and in this Court, we do not consider that the proposed appeal against the convictions enjoys sufficient

prospects of success in the matters, other than

that relating to Palmieri, to warrant the grant of

special leave to appeal. In the case relating to Palmieri, the Court

desires to give further consideration to the

question whether special leave should be granted

and, on that aspect of the case, reserves its

decision.

The Court will now adjourn.

AT 3.29 PM THE MATTER WAS ADJOURNED SINE DIE

Glennon(4) 66 18/11/93