Green v The Queen

[1998] HCATrans 368

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P27 of 1998

B e t w e e n -

GRAEME WILLIAM GREEN

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 20 OCTOBER 1998, AT 10.05 AM

(Continued from 19/10/98)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr McKechnie.

MR McKECHNIE:   Your Honours, this morning, in answer to your Honours’ question from last night, we have filed some supplementary submissions.  Might I inquire whether they have reached your Honours?

GLEESON CJ:   Yes, thank you.

MR McKECHNIE:   I do not need to develop them but just make some comments in relation to the matter of this question of the evidence.  It might be helpful to test it in this way:  originally, of course, Radalj and the appellant were indicted together.  As it turned out, Radalj pleaded guilty and gave evidence for the Crown.  But all of this material would have been available in a joint trial for the purpose for which it was in fact led, as appears from the charge of his Honour, namely, as evidence in the sense in furtherance of the conspiracy of the payment of money.  It was always available that way.  The Chief Justice in his judgment at the references we have given at paragraph 9 analyses the effect of that evidence, in our submission, correctly.

GLEESON CJ:   Could I just ask for one transcript reference, Mr McKechnie.  On page 578, in the middle of the page, the Chief Justice refers to the appellant’s explanation of why he was buying something from Mr Radalj, he did not pay Mr Radalj direct, and his explanation for that was that Mr Radalj was “a big gambler”.  Where do we find that in the transcript?

MR McKECHNIE:   If I can have my junior just find that for your Honour immediately.

GLEESON CJ:   Yes, certainly.

MR McKECHNIE:   And whilst she is doing that, could I just make – page 362.  I am obliged to my friend.  Could I make this observation as to why, amongst other reasons, there is no miscarriage.  My friend yesterday referred to the discussions between his Honour and counsel prior to his Honour charging the jury and, in our submission, really Mr Miller’s first view of the facts was probably correct but, after discussion about lies, he conceded that a lies direction was appropriate.  There was, of course, a considerable forensic advantage in having a lies direction on the strength of it in a case but, more particularly, the Crown was not putting forward the proposition that the lies themselves were corroborative.

At page 497, a reference I have given your Honours, but I would like just to take your Honours to this, there is an interchange between counsel for the appellant and the judge and then the judge asks the Crown to be pinned down about what was corroboration and the Crown said the telephone call and the surveillance photographs of that day.  Thereafter, the judge’s charge is, in our respectful submission, unexceptional and that is why no complaint was made at the conclusion of the trial because when the judge dealt with this – and the references have been given to your Honours before in relation to the lies, but at 521, when he dealt with what the Crown says, there was no reference to the evidence of Radalj in relation to what the Crown described as “the sham transfer”.

That is clear again at page 522 where it is obviously a reference to the way the Crown had closed the case to the jury, the second paragraph, and finally at page 524, third paragraph:

The crown relies upon the mechanism of the Virginia Standardbred syndicate as being the mechanism to hide the money trail, as indicating the degree of planning –

and, really, the major significance of the transfer of the money from the Crown – the way that the case was actually put and fought was that it was a mechanism for the transfer of the money.  The question of lies was not really a central aspect of the case until such time as the judge chose to direct on it.  In our respectful submission, for the reasons really given by the Chief Justice, there was no miscarriage of justice in the actual failure to direct in the particular circumstances.

GLEESON CJ:   We do not have a transcript of the Crown Prosecutor’s address?

MR McKECHNIE:   I do not believe so, your Honour.  It is not normally copied and I do not think it was copied on this occasion but my understanding from earlier proceedings is that the judge accurately recorded those parts of it to which he made reference.

GLEESON CJ:   It just occurred to me as a possibility that the reason there may have been no complaint from Mr Miller about the point with which we are now concerned is that it never occurred to anybody at the trial that it would be in reliance on the evidence of Mr Radalj that the jury would be invited to conclude that what the appellant was saying about the payment of money was false.

MR McKECHNIE:   Yes, that was the point I have been endeavouring to make with the material here, namely, the judge’s charge ‑ ‑ ‑

GLEESON CJ:   That is why I was interested in the proposition advanced by the appellant that the reason he did not pay the money direct to Mr Radalj was because Mr Radalj was a gambler.  Was that because he had some moral objection to gambling?

MR McKECHNIE:   I think he thought that he might lose the money if he paid it directly but, of course, as the Chief Justice pointed out in the court below he, in effect, did pay it directly to Radalj, in fact, despite what he said.

GLEESON CJ:   What do you mean when you say “he thought he might lose the money if he paid it directly”?  All he had to do to satisfy his obligations as a purchaser, as he expressed them, was to make a payment to Mr Radalj.  What concern of his was it what Mr Radalj did with the money?

MR McKECHNIE:   The difficulty that he faced in the explanation that he gave is the question your Honour poses to me.  If it was an above‑board transaction where he was purchasing the share, then there would have been no difficulty at all, but several things were wrong with that.  One explanation was because Radalj had been warned off, was under suspension, he was purchasing them really for the period of the suspension until Radalj was confident of winning his appeal.  Another explanation which found some support in what we would say is a sham document, which was exhibit 21 in the trial, a fax from Radalj to the appellant in late August after the account had been over and very shortly before the end, setting out an apparent term of a share – purchasing a share in horses.  For either explanation, one would have expected the money to have gone directly from the appellant to Radalj.

GLEESON CJ:   Was the appellant cross-examined as to how he came to arrive at $16,000 as a fair price for whatever it was he was buying from Radalj?

MR McKECHNIE:   Yes, he was, your Honour.  That is referred to in our submissions.  He was cross-examination fairly extensively.  While my junior is looking – I think it is from page 415.  The cross-examination particularly on the matter starts at 425 and proceeds over to 430.  The particular explanation – maybe, partly, the answer is at page 429, third paragraph, starting, “Well, if you were buying” - I will not read it to your Honours – and what he was buying he said was “about 30 per cent”.  In fact, he corrected that a little later to 32 per cent.  There is no particular magic about why that was.  Indeed, as he said, a little bit later at page 430, at line 25, when he was asked:

Had you seen them prior to paying over $16,000 for them?---I don’t know the front end of a horse from the back end of a horse.

He had not seen them.

GLEESON CJ:   Well, who fixed the price of $16,000?  How did it come to be fixed?

MR McKECHNIE:   On his evidence, it would seem that it was Radalj’s suggestion that it was $16,000.

GLEESON CJ:   When was it that the appellant first told anybody that part of his agreement with Radalj was that Radalj would indemnify him or repurchase the interest for $16,000 at some future stage if he required it?

MR McKECHNIE:   He gave some explanation to police about this, your Honour, if I can just find that quickly, which we referred to.  As the Chief Justice in the court below noted, he expanded on that a little bit in his evidence.  The explanation is at page 335, your Honour.  I will not read it but it is from 335 when he speaks about investing in the horses, giving answers to Detective Potts.  The question that was asked was:

“Why give Steven the money you told us, as he is a notorious gambler?”  Graeme Green said, “Steven has been suspended from involvement in racing, which he is appealing, so he has to get out of the syndicate and I’m buying in.  Any losses we incurred because it’s a company we can claim on taxation.  It also gives me an interest.  My 16,000 gives me a 30 per cent stake in the company.”

He speaks of that there but he does not say quite why it was 16,000; he says where it is from.  He also says:

“Are you buying Steven’s share in the horses?”  He said, “I’m buying a share in the company.  I don’t know Steven’s share.”

As I say, as we understand the material, that supported the Chief Justice’s reasoning in the pages that we have referred to.  If your Honours please, those would be our submissions.

GLEESON CJ:   Just a small procedural matter, Mr McKechnie.  I gather from the silence of everybody about it that there is no rule of court in Western Australia to the effect that you need leave to take a point on a criminal appeal that was not taken at the trial?

MR McKECHNIE:   There is no procedural rule to that effect and the court’s view is fundamentally if it is a point that goes to the merits, it will not prevent counsel from raising the point on appeal for the first time.

GLEESON CJ:   Thank you.  Yes, Mr Grace.

MR GRACE:   In KBT 149 ALR 693, a decision delivered on 9 December 1997, their Honours the then Chief Justice Sir Gerard Brennan, and Justices Toohey, Gaudron and Gummow, at page 697 in the joint judgment of their Honours at line 4, their Honours said this:

In dismissing the appellant’s appeal as it related to his conviction for the offence created by s 229B(1), the Court of Appeal was acting pursuant to –

the equivalent Queensland provision – I will not read that –

That subsection allows that an appeal may be dismissed, notwithstanding that the issues in the appeal might be decided in favour of the appellant, if “no substantial miscarriage of justice has actually occurred”.  It is well settled that the failure to take a point at trial will not necessarily warrant application of a provision such as s 668E(1A) of the Code.

As I understand it, that is the same principle that applies in Western Australia.

GLEESON CJ:   There is nothing here corresponding to rule 4?

MR GRACE:   Of New South Wales, no.  In this reply, your Honours, I wanted to analyse the payments made by Radalj to the undercover and pose a number of questions which impact upon the question that your Honour the Chief Justice asked Mr McKechnie at the close of proceedings yesterday.  At appeal book page 187 in volume 1, line 50, there is discussion there of the first meeting at which the price was quoted.

GUMMOW J:   But what in summary form will you demonstrate by taking us to these passages?  What is our destination?

MR GRACE:   The destination, your Honour, is to point out that there was plausibility in the appellant’s explanation and implausibility in Radalj’s explanation.  I will make that clear very shortly.  The undercover tells Radalj at the first meeting that the price is $10,000 plus 3,000 expenses.  That is on 28 July 1993.  On 29 July, on Radalj’s evidence, the appellant tells Radalj he does not want anything to do with it.  Radalj speaks to Lun, the intermediary, and tells him and says in evidence that he offered to pay the expenses in his conversation with Lun.  There is a telephone conversation between Lun and the undercover which the undercover denies having with Lun.  The second meeting occurs after that telephone conversation and the matter proceeds, as we know.

On 30 July $3,000 is paid.  On 3 August $5,000 is paid.  So, a total of 8,000 by that date.  On 5 August the undercover tells the main man, Greg, in the course of his telephone conversation, that the price had increased to $18,000 because of problems.  That appears at appeal book reference on page 309 where the undercover says in examination in‑chief:

Did you mention the question on money to Greg?---Yes, I did.  I told him I wasn’t happy with the way that things had been going and that at the end of the day I wanted a sum of $18,000 in total to which we ended up agreeing on.

According to the Crown case, there was constant contact between Radalj and Green during this period of time, and Radalj gave evidence of that, but yet there could not have been any communication if the appellant was the man at the end of that phone call with Radalj about the figure being now $18,000 instead of $13,000 because of what occurred in subsequent events.

On 31 August $5,000 is paid.  Now, that payment was made by a withdrawal from the bank account of the syndicate by Radalj.  Why would Radalj only withdraw $5,000 on that day?  He had already, out of his own proceeds, on his own evidence, spent $8,000.  There was $16,000 in the account.  Why not take the whole lot out?  What was the point?  Then the very next day the undercover says to Radalj, “There’s been complications.  I need another 5,000.  Therefore, the price is $18,000”.  One would have thought, if there was a conspiracy on foot, surely Radalj would know shortly after ‑ ‑ ‑

GLEESON CJ:   Hang on.  I thought you said the price went up to $18,000 on 5 August.

MR GRACE:   Yes.

GLEESON CJ:   Then I thought a second ago you said the price went up to $18,000 on 31 August.

MR GRACE:   Radalj says the first he knew of the price going up to $18,000 was on 31 August or on 1 September.  How was it that that occurred on that day?  How was it that the undercover says that on 5 August he has a conversation with the main man and agrees on a price of $18,000 because of complications or developments and Radalj does not know about that, leading to the situation where the undercover tells Radalj on 31 August or 1 September that he needs another $5,000, bringing it up to 18,000?

GLEESON CJ:   And what was the undercover operator’s evidence about that?  Did he agree with Radalj about that or was there evidence inconsistent in relation to that?

MR GRACE:   At page 314 at line 32 he telephones Radalj on 1 September, he tells him the job had been done, that there had been a complication and he wanted to see him.  At page 315 at the top of the page, question:

What did you tell him the problem was?---I told him that one of Mr Chesson’s minders had got in the way and he also was eliminated.

Did you ask for anything else from Mr Radalj?---Yes.  I said because – as a result of that problem that I would need an extra $5000 for doing that.

GLEESON CJ:   Extra 5,000 on top of what?

MR GRACE:   The 13,000.  And what does Radalj do?  He does not go to the syndicate bank account.  He gets the money within an hour from his own resources.

GAUDRON J:   Where is that evidence?

MR GRACE:   From Radalj, your Honour, at page 220, line 23:

Did any part of that $16,000 that you had been paid into this account form – did you take any money from that for the purposes of paying Gary?---From the details I have seen I made a withdrawal of 5000 on one of the occasions that I paid him – the last two payments of 5000.

After getting the $16,000, did you receive further contact from Gary and meet with him?---Yes.

Did you pay him some more money?---Yes.  I paid him a further $5000.

Then he is shown the cash and then on the next page, 221:

Did he say when it was ready to proceed?---When I paid him that 5000 –

that was on 31 August –

basically he was ready to proceed immediately, yeah.

Did he say when he would be proceeding?…..the next day.

Did you do anything to call him off or stop him?---No.

Why not?---Because I was terrified of the man.

On the following day, were you contacted by Gary?---Yes.

Did he contact you on the telephone?---Yes.

At page 222, line 35, Gary asked for the final $5,000, and then on page 223 – this is examination in-chief:

The cash which was paid on those final 2 days is $5000 plus $5000.  Of those two last payments, do you remember if any of it came from the Virginia Standardbreds account, from the $16,000 deposited by Graeme Green?---I can’t remember specifically but having seen that I did withdraw $5000 on I think the second-last day that I paid Gary, I presume that 5000 would have been paid across to him on one of the other occasions.

GLEESON CJ:   What was the date on which the appellant and Radalj were arrested?

MR GRACE:   1 September.

GLEESON CJ:   So the last payment was made on 31 August?

MR GRACE:   On 1 September.

GLEESON CJ:   On 1 September, and they were both arrested on the same day?

MR GRACE:   Yes.  At page 224 he is asked details about dealings in that syndicate account.  He said there were bills paid for the horseracing syndicate from that account.  The 5,000 figure on 31 August, he presumed that to be a cash cheque.  He agreed that he removed a cash cheque from the account.  At line 20:

And with that did you have it converted into cash and did you pay that cash to any person?---As I say, I can’t remember which payment but I presume that it would have gone across to Gary in one or other of the last two payments.

GLEESON CJ:   Were the appellant and Radalj arrested at the same time?

MR GRACE:   Yes, they were.

GLEESON CJ:   Prior to the arrest of Radalj, had he ever identified the appellant to the undercover police officer or anybody else as his principal?

MR GRACE:   No.

GLEESON CJ:   How did they know to arrest the appellant?

MR GRACE:   Because of the surveillance evidence, that he had gone into the premises on that day, and perhaps other surveillance that we are not aware of.  At page 565 his Honour Chief Justice Malcolm highlights the point I have been seeking to emphasise this morning.  In the middle of that page – I will just summarise that – Radalj paid a further 5,000 on 31 August.  The undercover tells him that the job will be done the following day.  At the bottom of the page:

On the following day the undercover officer contacted Mr Radalj by telephone…..there had been a problem and he needed to meet Mr Radalj.

At the top of page 566:

He said he required a further $5,000 as a result of a complication…..Mr Radalj went back to his office and made arrangements to obtain a further $5,000 in cash.  He returned and gave it to the supposed murderer in full payment of the total, namely $18,000.  The inconsistency in the evidence between the confirmation by the officer with the appellant on the telephone –

and the date should be inserted, “on 5 August” –

that the price was $18,000 and the subsequent demand for $5,000 extra for killing the second man was not explained.  At the time when the appellant spoke to the undercover officer the price should still have been $13,000 although there had been some discussion of extra costs between Mr Radalj and the supposed assassin.

So his Honour highlighted that particular problem in the evidence.  We submit there is no doubt that the Crown relied on lies to prove consciousness of guilt.  That appears in the judge’s summing up at page 521 at line 31 onwards and particularly at line 40 where his Honour says:

Before you can use that lie as indicating a consciousness of Mr Green’s guilt…..you must be very careful that the statement is in your assessment false –

He uses that there.  At line 36 ‑ ‑ ‑

CALLINAN J:   That does not suggest that the Crown was necessarily relying upon that, does it?  That is the learned trial judge’s view of the matter.

MR GRACE:   That does not, but I will refer your Honours shortly to the passage immediately above it in the paragraph which makes it abundantly clear what the Crown said.

CALLINAN J:   “The crown says not only”.  Is that it?

MR GRACE:   Yes.  I will come back to that in a minute, your Honour, but at page 522 at line 36 there is again mention of the reliance upon Mr Radalj.  Going back to what your Honour Justice Callinan just mentioned, could I go back to line 15 on page 521.  His Honour says:

The crown says not only can you rely upon that as corroboration –

and what was referred to by the word “that” was the phone call –

but if you find that the evidence in relation to Mr Green and the Virginia Standardbreds syndicate was evidence of a sham and that the real purpose of that was to hide the trail, then Mr Green spoke to the police about that.

So that was the out of court lie that Mr McKechnie referred to this morning in reading out the answers.

He was telling them lies because he knew that that was a sham and not a legitimate transaction and was a sham adopted to hide the money trail from himself to Radalj…..In relation to the matter of lies and the use of lies in corroboration, you must be very careful because this is a criminal trial –

and then his Honour gave the warnings.

So in that context the application for leave to appeal to the Court of Criminal Appeal was founded.  The matter in the Court of Criminal Appeal was argued on the basis that the failure to give the warning, the Edwards‑type warning, gave rise to a substantial miscarriage of justice in the circumstances of this case when the Crown went to the jury on a particular basis, when the learned trial judge summed up on a particular basis and the absence of that crucial direction gave rise, in the applicant’s submission to that court, to a substantial miscarriage of justice.

As I said in my opening yesterday, what the Court of Criminal Appeal did was to adopt a fundamentally incorrect test in assessing whether the proviso could be applied in the case.  Chief Justice Malcolm said it had to be a fundamental error before the proviso could be applied.  That statement in itself, it is submitted, is a clear error of law.  The court below did not consider what the effect of the error of law had been or could have been.  Furthermore, it is a conclusion that there was ample evidence and by inference, therefore, a conclusion that there was no substantial miscarriage is a completely wrong approach to the application of the proviso.

Getting back to your Honour’s question that was posed at the end of proceedings yesterday, can I ask these questions rhetorically.  Why would Green deposit $16,000 in this account if the price was either 13,000 or 18,000, depending on which view of the evidence you take?  Why no demand from Radalj to Green at any time for reimbursement for the money?

GAUDRON J:   There is also why did he pay the money on 30 July, apparently the day after he accepts that Green told him that it was not to go ahead.

MR GRACE:   Yes.

GLEESON CJ:   It was the Crown case, was it not, that the purpose of these payments to or through the racing syndicate was so that Green could not be connected with the payment to the contract killer?

MR GRACE:   Yes, it was to hide the money trail.

GLEESON CJ:   Yes.  Is that one possible explanation of the lack of a precise correspondence between the amount paid to the killer and the amount paid to the syndicate?

MR GRACE:   Well, hardly when there is payment to the contract killer on a particular day and the withdrawal of exactly the same amount in cash and probably in the same denominations and notes - I think there were photographs of the cash actually shown – withdrawal on exactly the same day of the same amount.

GLEESON CJ:   That is by Radalj?

MR GRACE:   By Radalj.

GLEESON CJ:   But the Crown case was that the whole object of this exercise involving the syndicate was to ensure that money paid to the person believed to be the contract killer could not be traced to the appellant.  It was a money-laundering exercise on the Crown case.

MR GRACE:   It could hardly have been effected or in any way promoted by Radalj by the withdrawal of exactly the amount that he paid the undercover on that very day, 31 August.  If that was the intention, then his actions belied those intentions.

McHUGH J:   I am sorry, I do not understand your answer to the Chief Justice.  Would you mind repeating it.

MR GRACE:   If that was the intention ‑ ‑ ‑

McHUGH J:   If what was the intention?

MR GRACE:   That there would be a money-laundering exercise to hide the money trail, the last thing you would have expected would be Radalj withdrawing $5,000 on the very day that exactly the same amount in cash is being paid to the undercover.

McHUGH J:   I do not understand that.  We are talking about it from your client’s point of view.  Your client has put $16,000 into the account by way of a bank cheque and Radalj takes 5,000 out.  That does not connect it with your client on its face, does it?

MR GRACE:   If that is right, then how could it be said that the syndicate investment was for the purposes of hiding the money trail in the first place?

McHUGH J:   Well, the reason was that Radalj had to get the money to pay the contract killer and your client obviously, on the Crown case, did not have that sort of sum available in cash, so a cheque was drawn – it was a bank cheque – and it was then paid into an account opened by Radalj.  You have said a lot about withdrawing on 29 July.  You cannot overlook the internal contents of the conversation that took place between Greg and Gary on the critical day.  Greg, after hesitation, said that his name was Greg.  He answered details about Chesson, whether he had a girlfriend, where his children went, talking about plain-clothes policemen and private investigators and the person had a distinct voice.  Add those things together and it seems incredible that it could be anybody other than somebody that wanted Chesson dead and who had agreed to it and spoke about preferred options, his body not being found.  Who does the evidence point irresistibly to other than your client who went into the building that day and came out a few minutes after the telephone conversation?  The case against your client seems overpowering.

MR GRACE:   I cannot restate the arguments as to why that is not the case, your Honour.

McHUGH J:   No, I understand that.

MR GRACE:   In the course of this reply I have been dealing solely with the syndicate investment and the explanations given by both Crown witnesses and defence witnesses to emphasise the fact that the appellant’s explanation is not inherently implausible, which is in effect the basis of ‑ ‑ ‑

McHUGH J:   You are entitled to make the legitimate point that $18,000 was paid to the contract killer in cash and that the sum that your client paid to Radalj was $16,000 and there is an inconsistency between the two sums and therefore it supports your explanation that the payment for the Virginia Standardbreds syndicate was a legitimate payment, but it has to be weighed in the context of other facts in the case.

T2
MR GRACE:   Yes, I appreciate that, your Honour, but we are talking about the possible effect of a failure to direct to give the jury the appropriate warning in respect of the use of a lie is told in respect of this issue, upon its deliberations ‑ ‑ ‑

McHUGH J:   Let me tell you what is exercising my mind.  Let it be assumed, in your favour, that you have a good point, that the trial judge should have specifically directed the jury on the lies.  What I am putting to you is that this case is so strong against your client that no reasonable jury could have failed to convict him.

MR GRACE:   Our submission is that in the face of a strong Crown case, an appellant will always be faced with that argument from the Crown that the case was overwhelming or the case was a very strong one.  I think, indeed, your Honour has made the point in Krakouer that it is no argument to say just because a case is a strong one - I do not think your Honour went so far as to saying overwhelmingly one, but a strong one - a feeling about cases which are of fundamental errors that go to the root of proceedings but the other category of proviso case.  It is no answer if the appellant has not had a trial in accordance with law.

McHUGH J:   No, Krakouer is a different case altogether.  In Krakouer there was a fundamental misdirection as to an element of the offence.  At least that is the way I saw it.  Other members of the Court were prepared to apply the proviso in more general terms.  I thought it went to the very heart of the trial, that it is for the jury to determine whether the elements of the offence had been made out and one of the elements of the offence in Krakouer had never been left to the jury.  This is a case concerning a failure to direct the jury when there is no request to do so and one is looking at the overall weight of the evidence.

MR GRACE:   My answer to that, your Honour, is that a review of the evidence will reveal great inherent problems in the believability of Radalj’s account.

McHUGH J:   It does not strike me that way at the moment, Mr Grace.  I am putting these things to you so that you can deal with them because I want to write a judgment about this.

MR GRACE:   Could I just exhaust the investment issue.  Why no demand, as I said, by Radalj to Green for payment in the period?  Let us forget about the moneys in the investment account.  Why did Radalj not say to Green, “I’ve taken $5,000 out of my own funds to pay this hit man on 3 August.  I’ve taken $3,000 out of my own funds on 30 July, can you give me the money back?”  No, it does not occur.  Why not?  No explanation.

GLEESON CJ:   But the evidence shows that both Radalj and the appellant knew that the source of the funds that the appellant would have available would be the maturing of an investment that was to occur on about 17 August.  I do not have that date precisely correct but that is the evidence, that they knew that the appellant was going to be in funds on a date which I do not now remember, about mid-August.  The evidence also shows that the bank account into which the funds were paid of this so‑called racing syndicate was only opened by Radalj a couple of days before the money was paid into it.  This bank account never did anything else except receive money from the appellant.

MR GRACE:   It did pay some bills for the syndicate, on Radalj’s evidence.  Yes, your Honour is right in terms of the dates.  But if that is right, if that was the understanding between the two, then why did Radalj not, as soon as that bank cheque had been deposited, as soon as the cheque cleared, withdraw the moneys that were owed to him?  And even on 31 August when he withdraws $5,000 to pay the hit man, why does he not withdraw the ‑ ‑ ‑

McHUGH J:   There may be many reasons.  It might have been one of his lucky weeks.  He might have won some money that week when he may not have been in need of the cash.  There are all sorts of explanations why he would not immediately draw out the $16,000 that had been paid in.

MR GRACE:   But the defects in his explanations are no different than perhaps the defects in the appellant’s explanations.

McHUGH J:   Except, if you look at the surrounding circumstances, here is your client supposed to be an investor in this syndicate.  None of the other syndicate members know anything about it.  The bank account is opened for the syndicate for the first time to receive this payment from your client and your client is a person who, on his own admission, regarded racing as a mug’s game and yet, nevertheless, without even seeing these horses he was prepared to hand over this money, without really knowing anything about them or even seeing the horses.  He gets a fax some days of the moneys paid in setting out the names of the horses.  It all seems very implausible if a businessman would be investing in a racing syndicate in these circumstances.

MR GRACE:   The appellant gave his explanation.

McHUGH J:   I know.

MR GRACE:   And it was a matter for the jury at the end of the day.  As his Honour the learned trial judge told the jury, here you have a case which primarily relies upon the jury accepting the credibility of Radalj.  I appreciate the force of what your Honour has said, but at the end of the day his Honour is telling the jury, “This is oath against oath.”  It is all very well, on review, to say it appears on the surface to be an overwhelming case or a strong case, but one does not know and one cannot second guess what the jury were thinking.

GLEESON CJ:   When you say the appellant gave his explanation and at the end of the day it was a matter for the jury, what was a matter for the jury?

MR GRACE:   The assessment of the credibility of that explanation.

GLEESON CJ:   And what if they found the explanation was incredible, what would follow from that?

MR GRACE:   If they found it to be incredible, then they would find that he had lied.  There would be a short step for them to find that the reason that he lied was to hide the money trail and the investment and to prove that it was, therefore, a sham, and it would be a small step from there to come to the conclusion that the reason he lied was to hide his guilt.

GLEESON CJ:   Is that not what the judge told him?

MR GRACE:   His Honour did tell him that, but he missed out the crucial step and the crucial step was that in order to determine whether it was a lie, they could not rely upon the evidence of Radalj.  So, by itself, absent Radalj’s evidence, the jury may have been in a position, or may have - they

did not have to accept the appellant’s explanation.  They had to have a reasonable doubt.  The appellant had no onus of proof, and the judge should have made that clear.  But, it could not be said, we submit, that the jury were not distracted from their task in assessing the appellant’s credibility by the failure to give the direction concerned and at the end of the day that is not only the primary but also the only submission that the appellant can advance.

GLEESON CJ:   Yes, thank you, Mr Grace.  We will reserve our decision in this matter and we will adjourn for a few minutes to reconstitute.

AT 10.53 AM THE MATTER WAS CONCLUDED