Glennon v The Queen

[1993] HCATrans 74

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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

GAUDRON J

Glennon(3) 1 12/3/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 MARCH 1993, AT 11.50 AM

Copyright in the High Court of Australia

MR P.C. DANE, QC: If the Court pleases, I appear with my

learned friend, MR O.P. HOLDENSON, for the

applicant. (instructed by L.M. Jamieson)

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

my learned friend, MR B.G. WALMSLEY, for the

respondent, the Crown. (instructed by

J.M. Buckley, Solicitor for the Director of Public

Prosecutions (Victoria))

MASON CJ: Yes, Mr Dane?

MR DANE: This is a case that has previously been before

this Court.

MASON CJ:	I do not think you need to remind us of that.
MR DANE:	The last time it was before this Court, it was a

matter ~hereby the Court upheld the Director's

appeal and it was remitted back for other points to

be considered. This is an application concerning

an appeal from the refusal of those points. Three

points have been put forward in the outline; only

two will be argued.

Those two concerned the corroboration warning

issue and the Maiden and Petty point, if I could

describe that shortly in those terms. The Maiden and Petty point is confined to the application of

the proviso. They will be the only matters. There

is another matter of referring to the old count of buggery with violence, but that is not a matter on

which we say a special leave point arises.

We say that the special leave point in

relation to the first matter of the warning - it

follows that there is a miscarriage of justice from

the denial of the warning as to corroboration of

evidence of the complainants. There were several

boys and a girl in this case. This denial arises	from what we say is the misinterpretation of an
amending Act altering the common law.

The Crimes Act in Victoria was amended

differently to the Codes and other Acts in other States, and that was considered by this Court in

Rodway in relation to Tasmania. It concerns, of

course, the abrogation of the common law practice

of warning juries to look for corroboration of the

complainants in sexual cases before convicting.

Such a warning, of course, was part of the
procedure of a criminal trial and thus, generally
speaking, the amendment abrogating the operation

operated retrospectively to the offences alleged to

have been committed before the amending Act but

tried after the amendment.

Glennon(3) 12/3/93

In Victoria, however, a provision in the

amending Act preserved the common law warning for

offences alleged to have been committed before the

amendment; in other words, distinguishing it from

the Rodway circumstance. A bundle of authorities

was provided to the Court this morning. Amongst

those can be found the Crimes (Sexual Offences) Act

1980, being No 9509. That came into operation on

1 March 1981. All the offences alleged in this

case predate that commencement. Of some

significance may be the preamble in the second-last

paragraph on the front page:

And whereas there are certain obsolete

rules of law which it is desirable to abolish

or modify -

In other words, the Act set out to change the

common law, and we say did change the common law.
The particular change is to be found in

section -62(3), and that section was introduced into

the Crimes Act which is the principal Act by

section 5 of the amending Act. Section 5 of the

amending Act appears at page 862 of that volume of

1980.      The Court will see that it is section 5 that

inserts a large number of provisions beginning with

section 44 and continuing through to 62(3), which

is the subject of this case. That sets out the
common form found about the jurisdictions of

Australia abrogating the requirement for the

warning.

More significantly, this case concerns in fact

what is called in the Act, that is the amending

Act, the transitional provision. The transitional

provision is found in section 2 on page 860, and we

say that that provision can be simply identified in

its two parts as being that part 1, referring to

the old Act, applies only to old offences, and

subsection (2), the new Act, applies only to new

offences.

The applicant, of course, was charged with old

offences but there was, of course, no provision in the old Act relating to corroboration of witnesses in these circumstances, which is again a

distinction from the Rodway circumstance. Equally,

we say that the applicant was not charged with a

new offence, and so therefore we say that the

provisions of the new Act do not apply. The court

below rejected that argument, and at page 30 the

rejection of that argument can be found at line 18:

In our view the whole of s 62 should be

regarded as outside the scope of s 2 of the

amending Act on the ground thats 62 does not

specifically amend the law relating to certain

Glennon(3) 3 12/3/93

offences against the Crimes Act but abrogates
or modifies for all purposes a number of
obsolete rules of the common law.

In rejecting the argument, the court below posed for itself a question which is at the top of

page 30, line 1:

The question is whether s 2 should be regarded

as confined in its operation to provisions

which specifically and exclusively apply to or
with respect to offences against the Crimes Act. In other words, one must ask whether, notwithstanding the language used ins 2 of

the amending Act, s 62(3) of the Principal Act

should be viewed as excluded from its

operation on the ground that it is not a

provision specifically and exclusively

directed to an offence or offences against the

Crimes Act but a provision which abolishes a

ruie of •the common law and is indeed part of a

section which abolishes or modifies three

rules of the common law which are regarded as

obsolete.

We say that that question contains a flaw or a

false premise and enables the answer that was

provided further down that page, which I first

read. We also say that an analysis in that way

produces an inconsistency from that which is
produced by the application of the ordinary canons

of statutory interpretation.

The flaw, we say, is identified by the question confining the consideration to offences

against the principal Act. We say that section 2

is concerned with two classes of provision in the

principal Act. The first class is the provisions

of the principal Act, and the second class concerns

offences against the principal Act.	Of course,
class 1 includes class 2, but also carries with it

all the other procedural provisions of the

principal Act. The Crimes Act in Victoria sets out

all the procedures for trial and appeal and all the
matters associated with it and not divided into
separate Acts.

The question therefore ignores the larger class without reason or explanation, despite the

express legislation in recognition of it. The

interpretation by the court below produces in

effect a redrawing of section 2 which does not

resemble section 2 at all. What we say is that the

interpretation that has been given to it below

produces a combination of the two sections. It is

a combination that begins with subsection (2):

Glennon(3) 4 12/3/93

The provisions of the Principal Act as amended by this Act apply to and with respect to -

and then there is in effect the insertion of the

words, "the prosecution of offences against", and

one then picks up subsection (1):

The provisions of the Principal Act as in

force immediately prior to the commencement of

this Act -

In other words, section 2 does not apply to non-offence provisions, if I can describe

everything else that is not included in an	offence
against the Act as non-offence provisions.	So the
court below has, with respect, redrawn the
provision and amalgamated the two and added	words.

GAUDRON J:	Has there been some amendment since?
MR DANE:	Yes, Your Honour.
GAUDRON J:	So that if there were a retrial, your client

would not get a direction, anyway?

MR DANE:	No.
GAUDRON J:	How can it be a miscarriage of justice in the

circumstances of the case if you could not secure

any relief in a subsequent trial?

MR DANE:  The subsequent amendments do not overcome the

capacity of a judge to determine, along the lines

of Longman's case, to give a warning when a trial
judge considered it was appropriate. That

circumstance pertained - - -

GAUDRON J:	Nor did this.
MR DANE:	Nor did this.

MASON CJ:	Your case is really a Longman case, is it not?
MR DANE:	In answer to that, it should be drawn to the

Court's attention that a corroboration warning was

given in relation to one count.

MASON CJ: Yes, Henry.

MR DANE:  Yes, and several verdicts of not guilty were

recorded on that. Of course, we gain some strength

from that because where it was given, we got

acquittals, and the expression of one would be

emphasized by the absence in the others. Returning

to the question of what does it profit if we win

this case here and return, first we say that the

opportunity - - -

Glennon(3)	5	12/3/93
GAUDRON J:	No, not what does it profit.	I can well

understand what it might profit in terms of risk

assessment, if you like, but what I ask is: where

is the miscarriage of justice in denying you a

warning which you could not have in a retrial?

MR DANE:  The miscarriage of justice does not apply at some

time in the future as now, but it applies at the
time when we received the miscarriage. It is not

that - - -

GAUDRON J:  I would have thought that this was precisely the

sort of thing for which the proviso was intended,

as was said by Sir Garfield Barwick in one of the

cases. It is to prevent cases going off because of

outworn technicalities.

MR DANE:  The proviso was not applied vis-a-vis this point.

The proviso went off on the - - -

GAUDRON J:  I know that, but how does it help you if you are

right on this point and you come slap up against

the proviso?

MR DANE: It is not an outworn technicality.

GAUDRON J:	The legislation certainly thought it was.
MR DANE:	If we are right in our interpretation, then the

man had a procedure applicable to him that was not

applied. In fact, if it can be identified that

there was a miscarriage of justice there, but it is

too bad when you get back to a trial, the
transitional provisions that have subsequently been

enacted in the State will catch up with you, we

would say that in those circumstances a trial judge
would, upon a retrial if that be the case, exercise

his discretion to give the warning.

GAUDRON J: That is another point, and that is not a point

you have abandoned, as I take it - your Longman

point - here?

MR DANE:  I did not understand us to have abandoned Longman

in that we say that in any event we should have got

a warning. Especially in a case where it was a

judge who determined that in relation to one there

should be a warning, then clearly there should have

been a warning in relation to all of them. With

respect, the proposition is you are never going to

get a trial with a warning in the future - - -

GAUDRON J: Unless you make good your entitlement under

Longman.

MR DANE:  On this point.

Glennon(3)	6	12/3/93
GAUDRON J: Yes.

MR DANE:  We say that under Longman, the judge of course

should have given the general sort of warning. But

the Court of Criminal Appeal did not consider that.

GAUDRON J: It said it was barely argued.

MR DANE:  The Longman point?

GAUDRON J: Yes.

MR DANE:  The argument was clearly devoted to the

interpretation of section 2. It was not abandoned.

GAUDRON J: At page 35:

Very little was said in this Court in

support of the view that his Honour erred -

That is in relation to the Longman point.

MASON CJ:  It seems that you dealt with the Longman point as

you were threatening to deal with it here.

MR DANE:  I was stuck with Longman in a case that came

before this Court three years ago, the case of

Thomas that did not see air, let alone light.

Longman has been somewhat of a bane. We say that

the propositions that emerge from Longman are clear

and do not have to be examined again and again and

again, and that a judge should have, in a

circumstance where one has children in a sexual

case, tailored a warning to the jury, especially
when he has been alive to the issue in relation to

Henry and especially when he produces the conflict between giving a corroboration warning on one

occasion and not on the other, but that is

repetition.

We do not abandon the Longman point, but what

we say is that the Court of Criminal Appeal has

joined with the learned trial judge's

interpretation of section 2(2) of the Crimes

(Sexual Offences) Act and has produced a

miscarriage of justice. That miscarriage of

justice would remain as a fact, if our submissions

are correct, until the matter was tried again.

BRENNAN J:  Mr Dane, are the provisions of section 62

susceptible of application to offences other than

those which are created by the Crimes Act?

MR DANE: This is the suggestion of the attempted common law

offences that are not the subject of a section in

the Crimes Act?

Glennon(3)	7	12/3/93
BRENNAN J: Yes.

MR DANE:  The court on page 30 says:

but abrogates or modifies for all purposes a
number of obsolete rules of the common law.

In answer to Your Honour, it is possible to have or to have had a trial for an attempted indecent

assault, because it would have to get to a trial

situation before it is couched in terms of a judge

warning a jury.

BRENNAN J: All I was wondering is: are there sexual

offences under the law of Victoria other than those

created by the Crimes Act?

MR DANE:  Not now. As I understand it, the - - -

BRENNAN J:  Were there at the time that this Act was

introduced?

MR DANE:  Yes, there would be. Attempt was common law at

that stage. It was not then part of section 321,

and so there were attempts at indecent assault.

BRENNAN J:  What about the other provisions of 62(1) and (2)

with respect to impotence on the part of the male

child and rape within marriage?

MR DANE:  I am not sure whether I understand whether or not

they contemplate offences. They would be the - - -

BRENNAN J:  One way of reading section 62 is that it is a

procedural provision which is intended to apply to

any trial which comes within its terms. If it is

susceptible of application to offences other than,

to use the words of 2(2), offences against the

principal Act, one can understand why section 62(3)

would be thought to be outside the operation of

section 2(2).

MR DANE:	As being uniquely procedural?
BRENNAN J:	As being procedural applicable to offences to

which 2(2) cannot apply.

MR DANE: In our submission, 62(3) is a procedural matter

that applies to all offences that are the subject

of a trial.

BRENNAN J: Whether or not they are offences against the

Crimes Act?

MR DANE: Correct.

Glennon(3)	12/3/93
BRENNAN J:	Then if that be so, how is it that 2(2) can

regulate the application of 62(3) to offences which

are not offences against the Crimes Act?

MR DANE:  2(2) is a provision that relates to section 5 of

the amending Act, and in section 5 this entire

injection into the principal Act is achieved.	So
if it was the intention of the legislature to

achieve that which the court below interpreted it
as endeavouring to proceed, then it would be, in

our respectful submission, a separate section

introducing section 62 into the Act and an

identification of that would be found in the 2(2)

provision. To interpret it otherwise, we would say

one would have to interfere substantially with the

way in which this class of provision, called a
transitional provision - I do not necessarily agree with that, but that is another point. Whatever the

correct appellation, that transitional provision

would be in different terms if that object was in

mind. That is the argument as to the first matter.

The second matter perhaps should have a short

history applied to it. Shortly before this appeal
in its original form to the Court of Criminal

Appeal came on, this Court's decision in Maiden and

Petty was handed down. A day or so before this

case coming before the Court of Criminal Appeal,
the then learned Chief Justice of Victoria
contacted my learned friend and I, drawing that
case, Maiden and Petty, to our attention, saying it
was not part of the appeal and should we not give

consideration to it.

That resulted in an adjournment of the first

appeal. Amended grounds of appeal pursuant to

Maiden and Petty were added and accepted and

argued. In the court below, from which this appeal

is taken, it was said that the point was not taken at the trial and therefore the local rule of Clark

v Johnson, et cetera, not having taken the point,

is another matter that tells against the applicant.

We respectfully say that the history of the matter

apparently had eluded the court and that it was

upon the invitation of the learned then

Chief Justice that the point was argued and in fact

extensively addressed by both parties, both on the

first appeal that was actually argued and the

appeal upon the remitting. That is the setting.

The central issue, of course, in this case was

the allegation of a sexual offence against the

applicant. Of course, the complainant swore to

those incidents happening, and the defence in this

case was a straight denial. The court below

identified an error in the learned trial judge's

charge pertaining to the principle that was

Glennon(3) 9 12/3/93

identified again in Petty and Maiden. The finding

of that error is contained on page 52, line 3:

We accept nevertheless that in relation to both, the decision in Petty and Maiden has the

effect that the above instruction to the jury

by the learned judge contained an error of

law.

One turns back to 51, line 1. The matter which was the subject of complaint in the charge is there set out:

In testing the veracity of that 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

pos·sible. 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 Creath.

He was the informant. The court identified that as

Petty
being erroneous on the principles in and and Maiden, only two members of the Court, both
present, proceeded to consider the matter of
proviso in the circumstances that there were
presented. In the bundle that was provided by way

of authorities is the decision of Petty and Maiden,

(1991) 173 CLR 95, and in particular in the

judgment first of Justice Brennan at page 112.

Beginning on the fourth line, the first paragraph

on that page:

Crawley was re-examined at the trial and

the fact that Maiden's version of their

conversation had not been put to him in the

over the objection of counsel for Maiden.	committal proceedings was elicited from him evidence as well as some errors in the summing up. These blemishes in the trial did not
relate merely to some marginal issue. The
truth or falsity of the exculpatory account
given by Maiden in his unsworn statement was
at the heart of the trial and the circumstances to which his Honour erroneously

Glennon(3) 10 12/3/93

referred as considerations to which the jury

might have regard in deciding what weight

should be given to Maiden's unsworn statement

were of considerable significance. The

blemishes in the summing up did not attract an

application for redirection. Nevertheless,

the Court of Criminal Appeal gave leave to

argue the right of silence grounds of appeal

and this Court should not disturb that leave.

It is therefore necessary to consider the

proviso to s 6(1) of the Criminal Appeal Act

1912 (NSW). By their verdict, the jury showed

that they rejected Maiden's unsworn statement.

As it is impossible to say that they did so only for those reasons which were legitimately

available for their consideration, it is

impossible to apply the proviso in Maiden's

case.

Returning to consider Glennon in the context of

that and beginning with the sentence, "The truth or

falsity of the exculpatory account given by Glennon

in his sworn statement was at the heart of the

trial", that is the absolute gravamen of a case

where there is an allegation of a sexual offence

and the man denies it. The circumstances in which

His Honour erroneously referred to considerations to which the jury might have regard in deciding

what weight should be given to Glennon's sworn
evidence were of considerable significance, and we
say they were sufficiently significant to be

identified by the court below as an error.

The blemishes in the summing up did not

attract an application for redirection.

All that is identical to the case that is before

this Court. We say it is impossible to say that

the jury did so, that is convict Glennon, for the

reasons which were legitimately available for their

consideration. Accordingly, on that analysis we

say that the proviso should not have been applied.

A similar analysis was provided in

Justice Gaudron's decision which appears at

page 130 in the middle of the page:

It remains to be considered whether the

error which occurred in the trial constituted

a serious miscarriage of justice in the

accepted sense that the applicants "may

thereby have lost a chance which was fairly

open to (them) of being acquitted". The

context in which that question must now be

answered is quite different from that which

confronted the Court of Criminal Appeal, for,

on that Court's understanding of the law,

Glennon(3) 11 12/3/93

error occurred only in so far as the summing

up was likely to convey to the jury that

Maiden had failed to do something which he

should have done.

The central issue in the trial was

whether the prosecution had proved beyond

reasonable doubt that Maiden committed the act
causing death with the requisite intent or

recklessness.

It is similar here. Has the Crown proved beyond

reasonable doubt these offences took place?

It would have failed to do that if the

possibility left open by the post-mortem

evidence, namely, that Mark White met his
death accidentally in a struggle of the nature
described by Maiden at the trial, was accepted
by the jury as a reasonable possibility.

Similarly, we say here that the Crown would not have been able to discharge its onus to the requisite standard if the test that the jury took with them into their jury room when making their decision was in fact the true test.

The erroneous direction concerning the failure

to signal the defence of accidental death bore

directly on that issue. And, as earlier

indicated, the effect of that error was to

suggest that the jury might more readily

accept that the prosecution had discharged its

burden of proof of that issue because Maiden

had not signalled his defence before the

trial.

It then continues, and it says that the proviso

should not have been applied because it concerns

the absolute core issue of whether or not the Crown

has discharged its duty.

BRENNAN J:  What you have to deal with is the observation by

the Full Court at page 67, is it not:

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.

MR DANE:  Yes. And what we say is that the court below has

marginalized the issue, and it has identified two

areas where what appear to be quite insignificant

matters as to whether or not Mrs Dickason was

present, in the Palmieri case, and whether or not

Glennon(3) 12 12/3/93

the correct phrasing was used to describe the

Aboriginal huts as gunyahs or moonyas. And so what

the court has done has marginalized the issue and

said, "Well, look, that is at the periphery of

these matters and, therefore, it is not really

substantial".

What happened in this case was the learned

trial judge, because it was a large case of a

variety of allegations, what he did was to prepare

a charge as to the general matters of law. That

was typed up and provided to the jury, and they

took the general principles of law with them into

their jury room.

The second part of the charge was that the

offences were identified, the relevant witnesses to
those offences were identified, a charge in
relation to those particular matters was delivered

and the~ a verdict was achieved in relation to

that. Upon verdict, the next part of the charge

proceeded and so on down, so that verdicts were

being obtained and then the charge would continue.

The test of veracity was contained in the general principles. The test of veracity

accordingly was written, typed up and was with the

jury throughout their deliberation. The analysis

that the court below has applied is that there was

only an exercise of silence in relation to two

counts that are relevant in the particular portion
of the charge, the Behnk count and the Palmieri

count. Ergo, the jury would not have applied the

test in relation to all the matters and, therefore,

the court endeavoured to marginalize, or through
analysis produce a peripheral circumstance which,

of course, would be, "Oh, that is a proviso point".

But what we say is that it cannot be said, or

it is impossible to say, that the jury did not use

the blemished test of veracity, and veracity stands

at the absolute core of this case where the man is

saying, "I did not do it", and if the jury takes
with them into the jury room an erroneous test of

veracity then when the jury come to consider

whether or not the Crown has discharged its onus,

it will be applying an erroneous test, and

therefore the central matter of proof and onus and

standard is the matter and not the matter that has

been identified by the court below. And so we say

that, in those circumstances, a miscarriage of

justice has resulted from an erroneous test being

available to the jury throughout their

deliberations. They are the only matters that we

desire to put to the Court.

Glennon(3) 13 12/3/93

MASON CJ: Yes, thank you. Mr Bongiorno, we need not

trouble you in relation to the argument presented

on section 2.

MR BONGIORNO: If Your Honour pleases. If the Court

pleases, the Maiden and Petty point comes down to,

in our submission, a very simple proposition and

that is whether the Court of Criminal Appeal in
this case has incorrectly performed its duty so far

as the investigation of the applicability of the

proviso is concerned.

It is clear, in our submission, that it is the

function of the Court of Criminal Appeal, and this
Court has so said in Wilde v Reg in the joint

judgment of Your Honours Mr Justice Brennan,

Mr Justice Dawson and Mr Justice Toohey in dealing

with the proviso:

The question whether the jury would inevitably

have convicted falls to be determined by the

Court of Criminal Appeal. It is a question

which the Court of Criminal Appeal must answer

according to its assessment of the facts of
the case.

They then go on to say that in that case the Court of Criminal Appeal answered it in the negative, and the Court did not disturb it.

In this case the Court of Criminal Appeal has

applied that proposition, and as Mr Justice Brennan

observed to my learned friend in argument at the

bottom of page 67, came effectively to the view on

the facts that it was:

not reasonable to consider that the jury were

persuaded in favour of the prosecution case by

the -

erroneous consideration. Now, having come to that

conclusion, the appropriate thing for the Court of

Criminal Appeal to do was to apply the proviso.

GAUDRON J: Yes, but it is that conclusion that is under

challenge.	I mean, if that conclusion is right the
application	of the proviso is right, but if the
conclusion	is wrong, the application of the proviso
is wrong.

MR BONGIORNO:  Yes. The point I am seeking to make,

Your Honour, is that it is for the Court of

Criminal Appeal to make that assessment, it is one

of its functions in relation to the determining of a criminal appeal, and that no special leave point

arises out of that proposition. It is not

something which is - - -

Glennon(3) 14 12/3/93

BRENNAN J: It is not an impervious finding though, is it?

MR BONGIORNO:	No, it is not, Your Honour, but so far as the question of the point of general importance is
concerned it is the Crown's submission that the
matter is settled by the dictum in Wilde to which I
have referred, and that was applied by the Court of
Criminal Appeal in this case.
Of course, if my learned friend - and, of course, this Court could grant special leave on the
narrower ground related specifically to this case.
Then the question becomes one of examining the
Court of Criminal Appeal's argument and reasons for
corning to the conclusion that they did, and I will turn to that.

The way in which the Court of Criminal Appeal

dealt with the matter is set out, beginning at

page 48 of their judgment, and it is significant to

observe,· initially, that at the bottom of page 48

the Court of Criminal Appeal records:

that the submissions in support of

the ..... grounds -

the Maiden and Petty grounds, concerned only two

counts, 11 and 14, which are the Behnk and Palmieri counts. They do not go to the rest of the trial at all. And then the Crown can do little more than to

commend to the Court the reasoning of the way in

which the Court of Criminal Appeal dealt with the

matter and came to the conclusion that it expressed

on page 67. There is nothing, in our submission,

in the reasoning of the Court of Criminal Appeal

which can be attacked as to the way in which they

have come to the conclusion that the proviso ought

to be applied, and there is nothing, we would

submit, in our learned friend's argument which goes

to those questions either, and that accordingly

there is no basis for a grant of special leave on

the ground argued.

There is one passage that I refer the Court to in the Court of Criminal Appeal's judgment - - -

GAUDRON J:  The difficulty really is that Their Honours'

conclusion as to the proviso is a bare conclusion,
by categorizing the issue as to the existence or

non-existence of the gunyah and the presence or

absence of Dickason.

MR BONGIORNO:  Absence of the woman, yes.

GAUDRON J: Whereas, what His Honour the trial judge has

said is that the veracity of the defence, which is

a denial, bolstered by certain things, can be

Glennon(3) 15 12/3/93

assessed by virtue of the fact that it was not

raised before. So, it does go right to the central

issue, does it not?

MR BONGIORNO:  I think the only answer I can give to that,

Your Honour, is the way in which the Court of

Criminal Appeal dealt with the strength of the

prosecution case, notwithstanding that sort of

comment by the trial judge, but I concede the force

of what Your Honour says if it is viewed in that

way.

And then the other point, of course, which the

Court of Criminal Appeal made was that the Crown
did not seek to establish any part of its case by
reference to the failure of the accused to mention

the circumstances to the police, and that is

assumed - - -

GAUDRON J: That -is by the by, is it not?

MR BONGIORNO: It assumed some - in the overall context of

the way in which the trial was conducted it was of

significance, in our submission. I do not think

is some specific

there is anything further that I can put to the of the question, unless there

matter. I do not think there is anything further

that I can put to Your Honours.

MASON C.J:  Yes, thank you, Mr Bongiorno. Mr Dane, it is not

clear to me whether you are presenting the proviso

point as an attack on the convictions relating to

Behnk and Palmieri only.

MR DANE:  It certainly does, but because of the way in which

the charge was structured and that the jury had
with them the erroneous test of veracity

throughout, it would require the analysis to be,

where the relevance of it was not present", and we	"The jury would not apply that test of veracity
say that the jury could not have been given
sufficient instructions to be able for it to
discern that nicety. That would mean that the jury
would, when coming to examine the other cases, have
to say, "Look, he spoke about that, therefore that test of veracity we can put to one side and not
apply". Because that just raises speculation we
say that, to borrow Justice Brennan's words in
Maiden and Petty, it would be impossible to say
that they did not use the test of veracity in the
other cases.

So we say certainly in relation to Palmieri

and Behnk, but we are driven to say, because of the

structure of the charge, that the erroneous test

was present for all.

Glennon(3) 16 12/3/93

GAUDRON J:  But it would not have any bearing on any of the

other charges, would it, and it was prefaced in the

summing up by reference specifically to Behnk and

Palmieri.

MR DANE:  Yes, perhaps it is all set out; Your Honour is

referring to the bottom of page 50, but if one

looks at the beginning of that quote at line 11:

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 when he went into the detail about

the conspiracy among the black belts to bring

him undone and the like.

One can see that, in that context, all the cases - - -

MASON CJ:  I think it is clear enough.

BRENNAN J: Could I just raise one other question with you,

if I may. At page 67, there is a reference there

by the Full Court to the question of the way in
which counsel put the case, I take it put it to the

jury, prior to the summing up, and that is related

to the Palmieri case.

MR DANE:  Your Honour is on line 9:

He told the jury that.

BRENNAN J: From line 1 down to line 24. In other words,

the direction that was a defective direction was

one which arose out of the course of the conduct of

the trial where the prosecutor had raised this

particular argument.

MR DANE:	Yes.
BRENNAN J:	And it was raised in the context of the Palmieri case only.

MR DANE:  Our case is strongest in relation to Palmieri. I

am not sure whether I quite - - -

BRENNAN J:  I am endeavouring to get you to grapple with the

problem of whether or not the defective direction

infects all convictions.

MR DANE: All, yes.

Glennon(3) 17 12/3/93

BRENNAN J:  Or whether it is related specifically to

Palmieri or perhaps Palmieri and Behnk.

MR DANE:  Yes. Our submission is that it infects them all,

and our submission is based upon that which I have

said before.

BRENNAN J:  Yes.

MASON CJ: That is right, yes, you do not need to repeat it.

The Court will give its decision in this matter at

2 o'clock.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

MASON CJ: 

The Court has decided that this application for

special leave to appeal should be referred to a
bench of five, and that the application for special

leave will be confined to the question arising in connection with the application of the proviso in consequence of the disconformity between the trial

judge's direction and the decision in the cases of

Petty and Maiden.

I should say that counsel should be prepared,

when the matter is listed for hearing, to argue the
appeal, in the event that the Court grants special

leave to appeal, and it will be necessary for the

parties to file additional materials, such

additional materials as would be appropriate for

the hearing of the appeal itself.

MR DANE: If the Court pleases.

AT 2.03 PM THE MATTER WAS ADJOURNED SINE DIE

Glennon(3) 18 12/3/93