Harriman v The Queen

[1989] HCATrans 128

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P21 of 1988

B e t w e e n -

ALLEN LOUIS HARRIMAN

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J

DAWSON J

TOOHEY J

Harriman

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 2 JUNE 1989, AT 10.16 AM

Copyright in the High Court of Australia

C2T2/l/HS 1 2/6/89

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

my learned friend, MR M.T. RITTER, for the

applicant. (instructed by Dwyer Durack)

MR R.J. DAVIES, QC:  If the Court pleases, I appear with

my learned friend, MR J.A. SCHOLZ, for the Crown

in this matter. (instructed by Director

of Public Prosecutions)

BRENNAN J:  Yes, Mr Miller.

MR MILLER:  May it please the Court. Your Honours, before I

open the case may I advert to the fact that in the

application books there are a number of errors

contained in volume 4 and we have prepared a small
schedule which contains corrections to those errors.

They are mainly errors in the pagination of letters

which are contained in volume 4 and also - - -

BRENNAN J:  I seem to have only two volumes here. Are there

two missing?

MR MILLER:	Yes, sir. There should be four volumes of this application book.
BRENNAN J:	It seems that perhaps what you have in four we

have in two.

MR MILLER:  Yes, I see. Your Honours' books have been bound

two to one. I see the point. In any event, just to

be on the safe side, Your Honours, the final page of

the application books is page 392.

BRENNAN J: 

I think we are ad idem, in that case.

MR MILLER: 

So, Your Honours, may I hand up then a schedule

of corrections which will not trouble Your Honours,
but it just puts volume 4 into proper perspective,

and also the outline of argument of the applicant.
Your Honours, we submit in this application that

there is -

BRENNAN J: 

Perhaps if you would give us some time to rea.d

the outline, please, Mr Miller. Yes, Mr Miller.

MR MILLER:	Your Honours, the applicant's case -
DAWSON J:	I take it from this that you are not raising the

question of the admission of the letters in evidence?

MR MILLER:	Yes, I am, sir. Reference is made to the issue of the letters in paragraph 6 and paragraph 8 and in
essence, Your Honour, the same objection to the
admissibility of the evidence of prior dealing and use
through the oral testimony is the very same objection to that evidence which is found in the letters.

C2T2/2/HS 2 2/6/89

Harriman	(Continued on page 2A)
DAWSON J:	I am not· sure about that, but you will develop

that further.

MR MILLER:	The letters had a dual purpose, of course.
DAWSON J:	Yes.
MR MILLER:	In so far as the letters contain evidence of

his imposition upon a Crown witness, we are not

arguing that they were inadmissible on that ground,
only in so far as they contain material which went

to prior heroin dealing or use and, for that reason,

we would submit, they should have been edited and

admitted only in so far as they went to the question

of the imposition upon the Crown witness.

DAWSON J:  You will come to that separately.

MR MILLER:  Yes, sir. So, Your Honours, the applicant's case

here is that there is a point of law of public
importance in this case which would justify a grant
of special leave and it is the question whether an
accused person who has, through the conduct of his
defence, attacked a Crown witness and endeavoured
to place the responsibility for the crime alleged

in the indictment upon that Crown witness thereby

brings into issue evidence of his disposition in

relation to the very matter which was the subject-

matter of the indictment.

(Continued on page 3)

C2T2/3/HS	2A	2/6/89
Harriman

MR MILLER (continuing):  Now, in this case, it really

involves the question, I submit, of how

far the legitimate conduct of an accused

persons defence can go without the accused

being at risk of that evidence being adduced

against him.

BRENNAN J:  Has anybody ever suggested that the conduct

of the defence admits evidence of disposition?

MR MILLER:  I have found no authority to suggest that.

The only basis upon which normally evidence
of character could be admitted would of course

be under the statutory provisions such as

contained in section 8 of the EVIDENCE ACT

of Western Australia and elsewhere, where

you allege bad character on the part of a

crown witness or put up evidence of your

own good character, and then the statutory

provisions, which would enable evidence of

prior convictions of an accused person, would

then come into play.

But that is a very different question fr€m

this question, in my submission. That is the

whole point about this case, Your Honour, that

there is absolutely not a skerrick of authority

which would suggest that evidence of colouration

of the picture, as it is called, or the entire

picture, could be given to a jury, because

inevitably, as a matter of logic, evidence of

the entire picture must mean evidence of

disposition. And that, in my respectful

submission, is exactly what is wrong with

the way in which the evidence was led in this

case.

And when the learned trial judge admitted

it he accepted readily the Crown prosecutor's

submission that colouration and the entire

picture were vital for the jury, but when I

go in a moment to his initial finding it is

clear that he thought they might draw the

conclusion that because the accused had been

involved in heroin use therefore it would

assist the jury to find whether he was guilty

of importation. And that is the very process

which is forbidden.

DAWSON J:	Would it take you out of your course, Mr Miller, to identify precisely the evidence which the
crown led, which you say ought not to have been
led.

MR MILLER: No, that is easy to do Your Honour. It is

contained in the outline of argument - the

references are contained at paragraph 6 and

paragraph 8 and it began in volume 1, page 93:

C2T3/l/CM	3	2/6/89
Harriman

MR MILLER (continuing): Perhaps I should outline what happened.

DAWSON J:  If you just summarize it it will be enough.

MR MILLER:  Yes. At page 93 you can see that the Crown prosecutor

asked a question at the foot of the page, which began
the whole process. It is the third-last paragraph -
or fourth-last:

Was there any conversation on the subject of heroin on that occasion?

Which was November of the year prior to the April in which the offence was alleged to have occurred, and the answer was:

Just that he had some and I bought a little

bit off him.

And then the question was asked whether:

Any conversation about any question of heroin

from overseas on any occasion?---Yes.

And the answer was that the applicant had said:

drugs could be brought into the country.

And, at page 94 various ways in which this could be

done were mentioned.

DAWSON J: Well now, that latter part of the evidence

you do not ooject to about brought into -

MR MILLER:  No, in so far as it relates to the April importation

of course, it is unobjectionable.

DAWSON J: It is just the admission that he bought on some

unrelated occasion -

MR MILLER:  Yes, and that began the process, and then letters

were tendered through this witness, and Your Honours

will see that at page 101. At the foot of page 101

this witness was asked:

Did you receive anything from him at any stage?

That is the applicant,

Yes.

What?-.;.-Some letters ..... Eight o.r so; nine.

And they came via other prisoners. And perhaps I could

take Your Honours to those letters immediately. They are

set out in the second of the application books, beginning

at page 274 and I thought I might just give Your Honours four examples of the type of content of these letters which clearly

went to prior heroin dealing and disposition. The first at 282.

C2T4/l/FK.	4	2/6/89
Harriman

MR MILLER (continuing): In the third paragraph on page 282,

the letter writer, the applicant, made reference to

being -

charged last month jointly with you and

L.J. Martin of conspiring to import back in October.

That was an entirely different matter. Then at 287 -

may I say, Your Honours, that riddled right through

these letters are references but I will single out
four prime examples. Page 287, in the first

paragraph, the applicant makes mention of beating -

conspiracy charges in N.Z. I could not even

be charged because no one would testify against

me.

The implication being that they were conspiracy to

import drugs. At 289, the third example, in the third

paragraph, the applicant makes reference to a

problem that he has with

a 29 year old girl ..... charged at Taxation

Office for selling gear (smoke, I hope).

I suppose it leaves open the inference it might have been narcotics.

I would have been disappointed if she signs

me up -

et cetera. And then the next paragraph is worse:

It was believed that	you were to pick you in
Sydney some 5 kilos.	As you know, 4.5 kilos
were intercepted the	week that the parcels
arrived in Perth.

That is an entirely separate consignment of drugs.

And the fourth example, Your Honours, at page 298,

makes reference in the second-last paragraph to the

use by the applicant of heroin himself.

The only heroin I've had I '.ve had with David

G -

who was the Crown witness - Gawthorpe -

one night Careniup Caravan Park -

They are just four isolated examples but throughout

the letters one sees this constant reference to prior

drug dealing and use. So those letters were then

identified and were about to be read at the close of

the first day.

C2T5/l/RB	5	2/6/89
Harriman

MR MILLER (continuing): On the second day, counsel for the

applicant stood up and asked for the jury to be discharged on the basis that evidence had been led from the Crown prosecutor of the applicant's

prior heroin dealing - the passage I have adverted

to from Lisk - and also that the letters themselves
which had, by then, been tendered, I think, but

not read to the court, contained material which

was so prejudicial because it went to disposition

that it would be improper for the case to proceed. That, then, led to a complete argument as

to the admissibility of this material and the
learned prosecutor contended that the course
taken by the applicant's counsel in cross-examination

of the witness, Martin, had led to this result

and if I could just - I have put the references

in here but the pages are too numerous to go

through but, Your Honours, what happened was

that the Crown called Martin who was a business

partner of the applicant. Martin testified that

he and the applicant had gone to Thailand in
April 1987; that they had then gone to Chiang
Mai, bought heroin, taken it back to Bangkok.

It had been placed in five drawing sets which

were contained within boxes, wrapped, was taken

by Martin to London and they were separately

posted back to addresses in Western Australia.

The cross-examination of Martin put to him

that he had been in Chiang Mai himself in March 1987,

a month before the alleged trip with the applicant

about which he had not given evidence in-chief

and it was revealed from his passport and he

readily admitted that he had been there and he

had gone to Chiang Mai alone. So that led to

a proposition being put by defence counsel that

it was he who got the heroin on that occasion,

when he was alone and that he had never got it

when he was with the applicant in Chiang Mai

which was admitted later in April; and that they

had only gone to Chiang Mai in April for some

tourist trip. The passages which identify all

of that evidence I have identified in the outline

of argument.

(Continued on page 7)

C2T6/l/SH-	6	2/6/89
Harriman

MR MILLER (continuing):  So it was put by the Crown

prosecutor.that the defence had asked for this

by cross-examining a Crown witness and suggesting

that he was the instigator of the heroin importation

and that the applicant - I think it was put -

was unblemished but that brought down upon the applicant the right of the Crown to lead this evidence of disposition.

McHUGH J:	What I have read was that Martin had alleged
in-chief, had he not, that he had not had any
personalcontact with the applicant between 4 March
an, 10 April.
MR MILLER:	I mean cross-examination, Your Honour, he never adverted to it in-chief at all.
McHUGH J:	He never?
MR MILLER:	No,

in-chief, he simply gave evidence of going

in April, or perhaps it was a date late in March
but a separate trip but, certainly, in evidence

in-chief he did not give any testimony to indicate

he had been twice, at very close intervals. for - he had had two passports and the earlier

passport which had been cancelled showed that

he had been in the very same place approximately

a month earlier. And that is how it developed.

And this led then -.the Crown prosecutor would

say, "This is colouration of the picture; it would be unfair to the Crown if the jury did not have before it evidence that the applicant
was himself a person who dealt in and used heroin." And yet, in my respectful submission, Your Honours,

there is absolutely no authority to suggest that

you could bring in that evidence under any known

exception.

No tag can be put upon this evidence except

colouration evidence which leads me back to the	point I made by way of submission earlier that	if you are going to colour the picture you are
always going to lead evidence of disposition
which is forbidden on authority.

BRENNAN J:  The question is whether it is simply evidence

of disposition or whether it is evidence of a system of which the instant journey to Chiang

Mai was a part.

(Continued on page 8)

C2T7 /1 /ND	7	2/6/89
Harriman

MR MILLER:  Yes, Your Honour, that is an interesting point

too because the Crown case was opened on the
basis that these two men were in financial

difficulty because they ran a gold mine; they

were due to pay a debt of $40,000. The only

way they could raise the money was by hatching this scheme of going to Thailand and importing

heroin. They had no other means of getting the

money and it was never the Crown case that they

had gone to Thailand to get heroin to supply

to these other friends who were called as witnesses.

It was purely put on the basis that it was for
a commercial deal to get the money to pay a debt.

So, hence, Your Honours, our argument would be that what involvement this applicant may have had with the various Crown witnesses who were

heroin users in the past was irrelevant to this

case because it did not suggest that this was

part of a scheme over a long period of time to

obtain heroin and to sell it or deal with it

through the various network.

DAWSON J:  So far we have only identified one piece of evidence - - -

MR MILLER:  Yes, Your Honour. May I, then, refer to that.

At paragraph - - -

DAWSON J:  - - - which is that the witness, Lisk, on some

previous occasion bought heroin from the accused.

MR MILLER:  Yes, Your Honour. Now, could I take it further

than that. If you look at paragraph 8 of the

outline of argument, I have there referred to

the letters to which I have referred and the

oral testimony of Lisk which spans pages 116

to 117. If I could just take Your Honours to

that.

DAWSON J: That is cross-examination.

MR MILLER: No. Lisk, examination-in-chief, at 116, at

the top of the page, top right corner, Your Honour.

DAWSON J:  I am sorry, yes, I have the wrong numbers.

MR MILLER:· Towards the foot of page 116, it is expanded.

This was after the argument had taken place.

May I just, before I go to that, point out that when

the argument as to admissibility was raised,
the Crown prosecutor put it on this basis: that

it was colouration of the picture; it gave the

entire picture and the learned trial judge just

accepted that in about a five or six line ruling

which I will identify. His Honour, at page 111,

had simply said this, at the middle of the page:

C2T8/l/SH	8	2/6/89
Harriman

I should now say firmly that I accept the submission put forward on the part of the Crown as to the prior involvment of the

accused in these matters. I say that now

so that we all know where we are going at

a later stage.

DAWSON J:  But it looks as if that answer slipped out

a bit by accident, the one that we are talking

about at the moment, does it not?

MR MILLER:  I am sorry, Your Honour?

DAWSON J: It looks as if that answer slipped out by accident,

really. One can hardly say it was a non-responsive

answer because the question was so wide but he

was really asking about - - -

MR MILLER:	The earlier question?
DAWSON J:	Yes.

MR MILLER:  I am sorry, yes. I think that is possibly

so, yes.

DAWSON J:  Then it would have to be justified and then the judge would - - -

MR MILLER:  Yes, that is quite right. I think that is

probably right. When the question was asked,

he was probably intending to lead evidence about

the importation. But I simply make the observation,

Your Honours, that His Honour at page 111 accepted

the admissibility of the evidence; did not direct

his mind to the question of whether, if admissible

in the exercise of a discretion, it should be

excluded because of its prejudicial effect, although

the prosecutor and defence counsel had argued

that point but His Honour certainly did not advert
to it in that ruling.

Well, then, Your Honours, the evidence was

led and I go to 116 where Lisk was asked:

When was your first involvment with the

accused Harriman in relation to heroin?

So, the ruling having been given, the Crown prosecutor then went right back to the beginning and the

answer was:

Christmas time 1986 ..... I got a few grams

off him.

In a suburb of Perth, Bayswater.	Then, at page 117,
second question:

C2T8/2/SH 9 2/6/89

Harriman (Continued on page 9A)

Later on did you have any futther involvement with him on the question of heroin?---Yes.

Tell us about that?---Later on he gave me

some more ..... And after that?---Yeah.

So that is the third:

Further involvement?---Yeah ..... I ended

up buying some heroin.

When was that?---After Christmas.

So, there are three separate and identifiable

transactions which were then led and, two-thirds

of the way down the page, price was mentioned;

$2000 had been paid and then, four paragraphs

from the bottom, a wider question:

How often did you have an involvement with

him in relation to getting heroin from him?---

Well, when we ran out, which could have been

once a week, maybe it was 3 weeks.

Any time.

(Continued on page 10)

C2T8/3/SH-	9A	2/6/89
Harriman
MR MILLER (continuing):

And the second-last paragraph:

Once a week, maybe three weekly.

So a very long span of heroin dealing thus

became the subject of testimony from that

witness Lisk. Now also Ycur Honour, the

witness Gawthorpe, who was called and whose

testimony begins at 163, followed up with

similar testimony, although here, interestingly
part of the testimony, and this from evidence
in-chief was, that Gawthorpe had dealt with

Martin, the witness, who had been attacked by the applicant's counsel.

And at the foot of page 163, the question

began with reference to Lisk, but probably the

best example, Your Honours, would by 170 - it

spans all of these pages, but at 170, in

the middle of the page, he was asked the

question:

You said that on one occasion you got

someone else other than Martin.	Who was
that?---Harriman.

That is this applicant. And going down the page:

I arranged to meet him at the Karrinyup tavern.

I told him that I wanted to give some money.

And it would take a long time to read it all,

Your Honours, but on the next page 171 he

gave him $20,000-00 and it is quite clear that

this was part and parcel of heroin dealing

which had been initiated through Martin, the

payment being made to Harriman. And then,

perhaps one of the worst passages, if I

could put it that way, at 172 in the middle

of the page, he was asked:

Did the question of heroin come up between you then?

That is the applicant and this witness Gawthorpe. Yes. What happened? He asked me if I had

some.	I said I had.	What happened with
it?	We both injected ourselves.	We had
some.

C2T9/l/CM	10	2/6/89
Harriman

So there was the evidence of heroin use as

a supplement to dealing. And there was one

other passage, which may interest Your Honours,

not through any of those witnesses, but

through a police officer, by way of questioning

of the - - -

McHUGH J: Just before you leave Gawthorpe, was it

Gawthorpe who said that Harriman was Martin's

partner?

MR MILLER: Yes,he did.

McHUGH J:	Do you know where that passage is?
MR MILLER:	Yes, I think I could get that,Your Honour.

McHUGH J: That is partner in the heroin dealing.

MR MILLER:  Well it is equivocal. When I looked at it

that was my first impression, but perhaps it

is answerable on the basis he was his

business partner. He certainly did speak of

him as being his partner and it is in that

section that I have just referred to. Yes,

it is at 169, it is a misprint in the

transcript, second paragraph:

I was just going to ask you: this

fellow John -

That was Martin.

who did he turn out to be?---Harriman's

father.

It says, but the typist has mis-typed it

because later the judge referred to the

fact that it was partner - Harriman's

partner.

I know him as John Martin.

Well of course,Your Honour's question is a

pertinent question, if I may respectfully

say so, because there was no talk then

about Gawthorpe knowing Harriman and Martin

as being in business partnership, so the

inference, I would respectfully submit,

would be clearly that he was his partner

in heroin dealing, because immediately afterwards,

four or five lines down, reference is made to

Martin having given him a package of heroin. Now

I should say, Your Honours, that when the Crown called

Martin, they put him forward as a convicted person, convicted

on his own plea of being implicated in this particular

heroid transaction, but they never put him forward as being

a fonner dealer in heroin.

McHUGH J:	Well, he denied it, did he not?
C2T9/2/Q1
Harriman	2/6/89

MR MILLER:  Yes, but the fact that other Crown witnesses

placed him as being a dealer perhaps lessens the
impact of the cross-examination of the applicant's
counsel so suggesting and perhaps strengthens the
justification for the questions which were put by
defence counsel, that it was Martin alone who was

responsible for the very transaction with which the

applicant was charged. I was going to refer

Your Honours at page 231 to a passage from police,

detectives questioning of the applicant when he

arrived back from overseas, and this evidence was

led without objection, presumably because the trial

judge had already ruled on it, about four paragraphs

from the top of page 231.	He was asked by an
investigator:

Have you ever used heroin?

and the answer was:

Yes.

That went in without objection, so it is another example of the applicant's heroin use being put before

the members of the jury. In my submission, it should

have been excised from that evidence, if that evidence -

and that is a separate question - was admissible at

all, as to. the questioning of the applicant.

BRENNAN J:	Was any objection taken to it?
MR MILLER:	No, there was not, sir, and I suspect because

counsel for the applicant had already objected in general terms to this and the learned trial judge

had ruled - in fact, the trial judge had ruled on day

one that, as far as he was concerned, evidence of

heroin use was admissible, and I will take Your Honours

to that passage, if I may, at page 18 where His Honour,

in the second paragraph said, in dealing with the

letters, that they were admissible, and he said:	In the same way, I consider that the evidence
that the accused is alleged to have been a
user of - not a dealer, but a user of heroin,
might well be considered, is certainly relevant
and might well be considered by the jury as
showing that the accused is - a matter for
them to consider as to whether the accused

in fact imported heroin into this country. In my submission, that is the chain of reasoning which

has been so disparaged in the authorities. So,

Your Honours, it is our general submission that none

of this evidence, heroin dealing or heroin use, bore
on the question of whether this applicant had

committed the offences charged, and nor could it

for the reasons which are set out in the passage

in MARKBY V REG, to which I have referred in

C2Tl0/l/HS	12	2/1/89
Harriman

paragraph 9 of the outline of argument. MARKBY

V REG, (1978) 140 CLR 108, in a passage of the

former Chief Justice, Sir Harry Gibbs, at

pages 116 to 117, where His Honour was dealing with

a similar fact case but the same observations are

relevant to this case:

The principles on which evidence of

similar facts is admissible in criminal

cases were authoritatively stated in

MAKIN V ATTORNEY-GENERAL -

and the passage is there set out to which reference

was made in the Court of Criminal Appeal by all judges.

His Honour made the point in MARKBY's case - if I

could take Your Honours to page 116, middle of the

page:

The most notable recent exposition is

contained in the jdugments of the House

of Lords in REG V BOARDMAN. The first

principle, which is fundamental, is that the

evidence of similar facts is not admissible

if it shows only that the accused had a

propensity or disposition to commit crime,
or crime of a particular kind, or that he
was the sort of person likely to commit the

crime charged. The second principle, which is

a corollary of the first, is that the evidence

is admissible if it is relevant in some other

way, that is, if it tends to show that he is

guilty of the crime charged for some reason

other than that he has committed crimes in the

past or has a criminal disposition.

(Continued on page 14)

C2T10/2/HS	13	2/6/89
Harriman

MR MILLER (continuing):  Now, they are the two principles,

and, in my submission, this evidence cannot fall

within either of them. And His Honour goes on to make

the point, of course, that it is exceptionable for the

evidence to be admitted, at 117. It:

is the exception rather than the rule.

To be admissible the evidence must have "a

strong degree of probative force", or "a
really material bearing on the issues to be

decided"; it may not be going too far to say

that it will be admissible only if it is "so

very relevant that to exclude it would be an

affront to common sense"

And I suspect that this is how the prosecutor

endeavoured to get it in. It would be an affront

to common sense because the jury would not have the

entire picture. That overlooks the basic rules of

admissibility.

BRENNAN J: Well, it does not. It is the very basic rule of

admissibility that you have just demonstrated, and the

question is, does this evidence fall within it? Now,

putting the case against you, as I would understand

it, you have got a case of a business man who is

financially embarrassed in his business; the Crown case

is that in order to relieve that embarrassment, he

lights upon the notion of importing heroin. Now that

is a very unlikely story to predicate of most business

men who are short of money in their business, but that

is the Crown case.

Now, if you find that that business man was one

who has a previous experience of heroin dealing, then

does that not say something about the nature of the

activity in which he was said to engage?

MR MILLER: Well, of course, it does, Your Honour, but, in my

respectful submission, it is prohibited because the

conclusion is that the jury could only reach a view

that, because he had previously been involved, he

was likely to have been involved in this importation.

So, it immediately offends that fundamental principle.

Whilst, in general terms, one can see a - - -

DAWSON J:	It is rather put to you on the basis of what we would loosely call, "system" though, is it not, that when
this man needs money, he deals in heroin?
MR MILLER:	Except that as Your Honour Justice Brennan has

pointed out, the Crown case was not that it was part

of an overall system, it was that it was an instance -

the Crown apparently appreciated that it could not_

lead evidence of a system unless something happened to

entitle it to put that evidence in. So, if I could

go back to that point, the Crown prosecutor obviously

did not think that Your Honour's exposition of

admissibility would be appropriate in this case, unless

something happened to entitle him to put it in.

C2Tll/l/FK	14	2/6/89
Harriman

And, may I observe, he did not seek leave to put it

in, but it just went in, perhaps, as Your Honour

Justice Dawson said "by error", perhaps, because

the answer may have been unexpected.

BRENNAN J:  I must confess as at present advised it does not

seem to m2 what the Crown prosecutor thought, or how

the case ran, for that matter, the evidence is either

admissible, or it is not.

MR MILLER: Well, perhaps I could leave that aside then,

Your Honour.

BRENNAN J: And the problem really is here whether the evidence

is merely prejudicial or whether it is so prejudicial

because it is so probative.

MR MILLER:  In my respectful submission, Your Honour, you have to go

back one step. I would respect~~lly submit it was not

admissible at all. Now I uunderstand Your Honour's

proposition to me, but could I put it this way?

If one looks at the judgment - the passage in

MAKIN V THE ATTORNEY GENERAL, to which reference is

made by the former Chief Justice in MARKBY's case

to which I have just referred, it would appear that

the evidence can only come in, although the
categories have been said not to be defined for ever,
but it can only come in under well known and
accepted principles, and they would be, to use the

final words of the famous passage from MAKIN's case, "It may be so relevant if it bears upon the question

whether the acts alleged to constitute the crime

charged in the indictment were designed or

accidental, or to rebut a defence, which would

otherwise be open to the accused." And that is

what the majority of the Court of Criminal Appeal

here thought the position to be. But, Your Honour - - -

BRENNAN J: That is not the final statement of the - - -

MR MILLER: It is not a final statement, no.	(Continued on page 16)
C2Tll/2/FK	15	2/6/89
Harriman

BRENNAN J:  And, indeed, the doctrines have been examined

further in PERRY and in SUTTON and in HOCH.

MR MILLER:  Yes, and I appreciate that, Your. Honours., Not

final but nevertheless - under what category

then, may I rhetorically ask, could this possibly

be admitted - - -

DAWSON J:  System· - and that is the only one as far as

I can see but I may not - I speak for myself there.

MR MILLER:  If we then look at system the question

then, Your Honours, is, "What system?". All

that we know is that, from the evidence which I arr ·ubmitting was inadmissible, is that the

appi	nt had in the past een involved in heroin
deal	· and use but there no evidence that

he ha~ been involved in som~ system of importation

from Thailand by this type cf means which would

perhaps make the evidence admissible.

If he had previously been involved in

importation by mail, by putting it in sets of

drawing or whatever else and bringing it back,

perhaps the case might be stronger but this is

such a disjointed package of evidence that talks

about dealing at Margaret River whilst surfing,

that talks about dealing - - -

DAWSON J:  You could say if that is not so, you would always

prove prior dealings in heroin when you put someone

up on a charge of dealing with heroin on a

subsequent occasion because it would show that

he is a heroin dealer notwithstanding there was

no real connection, no system involvled, that

they were just disparate instances. That is

what you would say, would you not?

MR MILLER:  You could not normally do it, it would be forbidden

and that is my submission here, that that is -

DAWSON J: Just as in MARKBY's case there were separate

instances of luring someone to a spot in order

to purport to sell drugs and then knocking him

on the head or doing something with him and taking

his money without giving him nis drugs, even prior

instances of the same thing were not admissible

because they did not show any system.

MR MILLER:	Yes, Your Honour, and may I refer to a further analysis of it by the former Chief Justice in
PERRY where, I respectfully submit, the process
which can be adopted is succinctly set out -
in PARRY V REG, (1982) 150 CLR 580, at 587 there
is a passage which dealt with the particular
facts of that case which is very similar to what

C2Tl 2/1 /ND	16	2/6/89
Harriman

Your Honour Justice Dawson has just put to me.

On page 587 in the second paragraph:

Clearly on principle it is not

admissible -

similar fact evidence -

on a charge of murder or attempted murder
by poisoning, to give evidence that the
accused has poisoned other persons, where
that evidence shows no more than that the

accused is a poisoner -

and that would be this case, but a heroin dealer -

one who has a tendency to poison other.

However, where a number of poisonings have occurred, and the victims have all been

associated with the accused person, the

evidence of the other poisonings may be

admissible to support the inference that

the accused was responsible for the death in issue, because it would be contrary to

ordinary experience that a series of

poisonings, caused by accident or suicide,

would occur by coincidence in the circle

of persons with whom the accused was associated.

In such case, the evidence is admissible

for reasons similar to those which governed

the admissibility of the evidence in MAKIN

V ATTORNEY-GENERAL -

and, in my submission, that is the only basis

upon which the evidence could be admitted. If,

to take up Your Honour Justice Dawson's example,
if there were strikingly similar examples of

heroin importation by this individual over a

period of time in the same or very similar

circumstance, perhaps, and I - - -

DAWSON J: There would have to be something to connect

the incidents involving Chiang Mai with the incidents

in Perth, other than the fact that he is a drug

dealer.

MR MILLER:  Yes, exactly, Your Honour, that is my argument,

with respect. Your Honours, if I could turn to the way in which it was dealt with by the Court of Criminal Appeal. The majority of the

Court of Criminal Appeal, in my respectful submission,
misunderstood the basis upon which the evidence

was properly admissible and the majority's judgment,

Justices Wallace and Smith, I refer to at

page 380 to 381 of the application book.

C2T12/2/ND	2/6/89
Harriman
MR MILLER (continuing):	Their Honours, after having

identified the	various authorities, then went,
at page 381, in	the second paragraph, to this
observation:

The issue having thus been raised by

the defence as to whether it was Martin
alone who was responsible for the importation
of the heroin, the evidence of the appellant's

prior involvment with heroin dealing could

not, we think, be said to be of such trifling
weight as to warrant its exclusion nor would

its probable effect be out of proportion

to its true evidential value. In the

circumstances, the trial Judge did not err,

in our opinion, in the manner in which he

exercised his discretion in relation to

the admission of this evidence.

But he had never exercised a discretion. They

misunderstood, with respect to them, what had

happened at the trial. Their Honours took the

view that, because of a certain direction in

cross-examination, that then made the evidence

admissible and, in the proper exercise of a

discretion, it should not be excluded but they

have gelled the lot into one passage and, in

my submission, have overlooked the key issues

which were here relevant.

Now, Your Honour Mr Justice Brennan earlier

asked me about the discretion point. Leaving

aside the admissibility point, as an exercise

of discretion, had the trial judge turned his

mind to it, it was so highly prejudicial this

evidence that it could only have led to conviction

and His Honour Mr Justice Franklin so found in

some passages I have identified that it was clearly,

both in terms of the letters and the oral testimony,

highly prejudicial and likely to lead to a failure

for there to be a fair trial.

McHUGH J: But, does it not appear from page 381 that

the majority thought that the evidence was admissible because of the cross-examination of Martin suggesting

that he had purchased the heroin on his own?

MR MILLER: Definitely. That seems to be their view.

McHUGH J:	Yes.
MR MILLER:	Now, on that point, Your Honour, it was only

a question of emphasis, really, because the Crown

had put Martin forward as a person who was involved

in buying heroin in Chia~ Mai but with the applicant

and the change in emphasis in the cross-examination

C2T13/l/SH	18	2/6/89
Harriman

was,"it was not with the applicant; it was you,

alone, a month earlier".

Now, in my submission, when you look at

it that way, it cannot possibly be the case that

that cross-examination was so devastating that

even if there were some principle which would

allow it in, it could have come in through that

way the majority saw the evidence as admissible.

way but, certainly, to answer

They set out all the authorities beforehand but

there is just a lack of reasoning or conclusions

by reference to the authorities. That passage

seems to be the basis upon which they saw it

as admissible.

The trial judge himself, when he addressed the jury, gives some indication as to how he

saw it was admissible because, if I may refer

to page 257, you will see how His Honour - and
this is one of the grounds of appeal, incidentally,

but His Honour dealt with it in this terms of

entire picture or colouration concept. At page 257,

whilst charging the jury in the third paragraph -

this is the only indication of His Honour's process

of reasoning as to why he thought it was admissible:

Much has been said about the accused's

involvement with heroin and receiving money

for it and Mr Utting is quite right when

he says he is not charged with that, he
is charged with being knowingly concerned

with the importation of heroin into Australia

on 21 April last year. That is quite right,

but that evidence is led not to show that

the accused is of an undesirable reputation

insofar as he has had some connection with

heroin, it is led to paint the picture,

to create the entire picture, so you can

have this idea, this allegation that the	accused went over the Thailand to obtain
heroin as is said by the Crown witnesses,
in its proper context. It is for that reason and for that reason alone that that other evidence is led.

(Continued on page 20)

C2T13/2/SH	19	2/6/89
Harriman

MR MILLER (continuing):  Now, in my submission, what that

says is this, because he dealt in and used heroin

before you can conclude that he was guilty of going

to Thailand to import heroin on this occasion.

BRENNAN J:  Let us examine that for a moment, Mr Miller.

Perhaps you would tell me this first of all. Was

there anything to connect the applicant with the

five packets at the point of their delivery in

Western Australia?

MR MILLER:  There was evidence from some of the Crown

witnesses called that it was Harriman who was

responsible for giving the addresses to which the

packages should be posted.

McHUGH J:	Three of the addresses.
MR MILLER:	Three of the addresses.
BRENNAN J:	Three of the addresses, but not actually picking

them up?

MR MILLER:	No, definitely not.
BRENNAN J:	Well then, if you had a Crown case which consisted

of this: you have a heroin dealer who is in business

in a fairly substantial way, he also is short of money

in another legitimate business, he gives an address

to somebody, three addresses, and he goes to Thailand

shortly before packages arrive at those addresses

containing heroin and he is then charged with being

knowingly concerned in the importation of heroin by

posting to those three places; sufficient to get

to the jury, or not?

MR MILLER:	Without the direct evidence of Martin?
BRENNAN J:	Without any evidence of Chang Mai?
MR MILLER:	I doubt it, Your Honour, no, in my respectful

submission.

BRENNAN J:	The question is whether it would be, would not it?
MR MILLER:	Yes.
BRENNAN J:	Because if it is that evidence is admissible, is it not, the evidence that he is a fairly substantial
heroin dealer?

MR MILLER:  Not in my respectful submission. I come back to

that argument - - -

BRENNAN J:	Yes, you come back to the individual case.
MR MILLER:	Yes.

C2Tl4/l/HS	20	2/6/89
Harriman

McHUGH J: 

There w~s evidence from Martin, was not there,

that Harriman had taken part in changing the packets
and putting the heroin in these packets?

MR MILLER: 

Yes, he contended that he had helped him, although the forensic evidence was that the only sign of

fingerprinting was Martin's fingerprint upon one

of the packages. There was no evidence of a
forensic type to link the applicant in any way with

having done it.  So the only evidence against the

applicant really is Justice Brennan's picture - - -

BRENNAN J: 

That is really motive evidence; in other words,

it is motive, opportunity and connection.

MR MILLER:  Yes. Now, the question is to what extent, given

that situation, would this evidence be admissible

within the formulations which have been made and, in

my submission, we cannot see and we would argue there

is no formulation which would justify it and it goes

back to Justice Dawson's proposition· to me that it

has got to be something that shows a pattern, a

strikingly similar resemblance on prior occasions,

and Your Honour's formulation to me does not give

us that. It only gives motive.

(Continued on page 22)

C2Tl4/2/HS	21	2/6/89
Harriman

BRENNAN J: That is the point of division, is it?

MR MILLER:	Yes.
DAWSON J:	I think one has got to recognize - I do not

think it has ever been said in the case, or there

is disagreement about it, but the fact is that

similar fact evidence is probative but it is

also highly prejudicial. I mean, anyone in their

right senses would say the fact that this man

was a drug dealer would influence them in their

decision if it were put before them but the law

excludes it unless there is something more than
the fact that he has committed crimes before,
crimes of a particular nature; you have to have

something more connecting those crimes with the

crime in question.	The law does that as a
safeguard.	I know that there are those who take

the view that similar fact evidence is not probative

and is. excluded for that reason. I cannot

see that but it does not really matter in the

debate.

MR MILLER:  No, I would respectfully accept what

Your Honour says and, certainly, the evidence in this case was what I referred to earlier as

a package of disparate evidence, really, of isolated

dealing over a period of years at different locations

with different people without any system being

evidenced in any way and certainly not any indication

of any prior importation by this method. At

most there was evidence from one Crown witness -

Lisk, I think it was - that there was some

discussion about the ways you could bring it

in; perfume containers and various things being

mentioned, but that, of itself, did not link

the evidence with this particular importation.

DAWSON J:  But you do not object to that evidence, that

was relevant evidence, conversation about it?

MR MILLER:  Yes, because it was close enough in time to

this particular transaction. And so, Your Honours,

we would respectfully submit that the learned

trial 1 judge and the majority of the Court of Criminal

Appeal were mistaken on the basis upon which

they considered the evidence admissible. I

appreciate now that, of course, this Court has

put the matter on a different level but the way
they saw it was only admissibility through the

conduct of the defence case whereas, on the wider

picture, I can see that the question really is

whether a system or a scheme could be identified
which may have made the evidence admissible.

In my submission that cannot be demonstrated

and that is not the way the Court of Criminal

C2Tl5/l/ND	22	2/6/89
Harriman

or the trial judge looked at it. They

misapprehended the fact that you could lead

this sort of evidence as a matter of right simply

because of colouration or painting of the entire

picture. And the majority of the Court of Criminal

Appeal seems to have assumed that the learned

trial judge had exercised some discretion in
deciding not to exclude it, whereas, in point

of fact, as I have indicated, he did not.· Although

it was argued before him that there may be an

issue of discretion involved he simply adopted,
holus bolus, the Crown prosecutor's submission
without addressing his mind overtly, in any event,

to the question of exercising discretion.

And it was Mr Justice Franklyn who really

separated the two issues, the admissibility on

the one hand, the exercise of the discretion

on the other, and we would respectfully adopt

the reasons which he set out in his judgment which

I have identified by way of summary at page 5,

para 17, of the outline of argument. And I would

respectfully submit that everything that

His Honour there said is absolutely correct.
He took the view that the evidence was wrongly

admitted for the following reasons: evidence

that a person uses heroin cannot be probative

of the fact that he was knowing concerned in

the importation of specific parcels of heroin.

(Continued on page 24)

C2T15/2/Nff	23	2/6/89
Harriman

MR MILLER (continuing):  The ruling of the trial judge

could only be interpreted as saying that the

applicant's user identified him as a person

likely to be involved in the importation.

The defence was entitled to attack the

credibility of prosecution witnesses, said

His Honour, and assert their involvement

in the crimes alleged without leading to

the result that evidence of the

applicant's conduct, on other occasions,

relating to other alleged offences, was

admissible and there was no justification

for admission on the bases of known

framework or colouration of the situation.

And then I would respectfully submit

His Honour was correct, as I have set out

at paragraph 18, that if the evidence was

in anyway admissible, it should have been

excluded in the exercise of the learned

trial judges discretion. His Honour was

quite forthright about that when he said

at page 354 that:

If it was in any way admissible because

of any other "colouration" it should

have been excluded in the exercise of

his Honour's discretion as its

prejudicial value far outweighed any

probative value it could have. ·

And at page 356 he took this up further by a passage, 356 - a third of the way down

the page:

its admission raises the very real

probability that it so affected the

jury's verdict in a way adverse to the

defendant as to result in a substantial

miscarriage of justice.

And the following page at 357:

the evidence thereof contained in such

letters considered with the oral evidence

of such prior dealings, was so prejudicial

as to make the appellant's conviction

virtually inevitable.

And finally, Your Honours, I wish, if I may,

to refer to the passage in BOARDMAN -

TOOHEY J:	Mr Miller, just before you take us to authority,
if the evidence of which you complain had been excluded, what was left that might have
implicated the applicant?

C2Tl6/l/CM	24	2/6/89
Harriman

MR MILLER: What was left was the direct oral testimony

of the witness Martin - Martin saying that

he personally was in Chiang Mai when this

applicant and he obtained heroin which was

put in the drawing sets and sent home,

supported by the evidence that the applicant

had given three of the addresses and supported

by the fact it could be proven that the

applicant was in Chiang Mai, or certainly

in Thailand, at the relevant time.

McHUGH J: Was there some evidence from Lisk that he

had been approached about a run or something?

MR MILLER:  Yes, Lisk gave some testimony that the

applicant had asked him about certain ways

in which he might go about this importation.

It appears to be related to this importation.

If I could just refer to Lisk's testimony on

page 93 or thereabouts, it begins. Yes, at

page 94, 93 was the question asked by the
prosecutor, which Mr Justice Franklyn

criticized as being leading:

Was there any conversation on the subject of heroin on that occasion?-

This was in November of the previous year.

Just that he had some and I bought a

little bit off him.

Then the question was asked, and this is

pnobably the answer that the prosecutor was

after:

Any conversation about any question of

heroin from overseas on any occasion.---Yes.

Tell us what was said about that, please?---	I'm not too sure but just that drugs
could be brought into the country.
Who said that?---Harriman.

And so this was certainly additional evidence.

At the top of page 94:

Was there any discussion about how?---Maybe

in---

Was the accused Harriman present when that

discussion took place?---Yes.

What was said about how it could be brought

:in?---It could be brought :in :in perfume conta:iners

or other various similar th:ings.

Who said that?---Harrirnan. Any other possible ways

C2Tl6/2/CM	of br:inging it in mentioned at that stage?---No.
Harriman	2/6/89

MR MILLER (continuing):  So this appears to be have been

a prelude to the importation that Lisk was giving

evidence about. So to answer Your Honour

Justice McHugh's question, there would be that

additional element of evidence added to what I

previously put as the evidence against this applicant.

McHUGH J:  What about the evidence as to his financial position? That would have been admissible?

MR MILLER:  That was all led. There was no doubt that he

needed the money. That motive was certainly clearly

established, the need for the money to pay the

debt arising out of the gold mining transaction.

GAUDRON J:	And the letters, surely, are evidence of consciousness of guilt.
MR MILLER:	Yes, of course, the letters in so far as he

tried to impose upon the other witness and gave some

indication of his involvement, yes.

DAWSON J:  Can I raise a question about the letters. You

suggested they perhaps should have been edited.

That would have been very difficult, would it not,

to say the least, becausetheyareimpregnated with

references to prior dealings and they, in fact, are

based upon the assumption that he had had prior

dealings with the person to whom the letters were

addressed. They were put in by way of admission,

consciousness of guilt, the judge could have excluded

them if he thought they were more prejudicial than

probative. I do not know whether that was considered

but he did not exclude them on that basis.

MR MILLER:	He did not seem to consider it, no.
DAWSON J:	In fact editing does not seem to have been

considered.

MR MILLER:  No.

DAWSON J:	But if they went in really the prejudicial effect of the evidence of which you complain was
very much less, was it not, because it was obvious
from the letters that this man had a long history of
drug dealing?
MR MILLER:	I have to accept that, Your Honour. In my

submission, the proper way to have done it would
have been to have allowed passages to be read from
the letters, thos~ passages being consciousness of

guilt passages and the letters not being tendered

and going to the jury room. That was the best

way, in my submission, to enable that evidence to

be led.

C2Tl7/l/HS	26	2/6/89
Harriman

DAWSON J:  But it would be very difficult to do that, would

it not - I have not attempted the exercise -
because the passages which indicate an intention to
influence Lisk in the evidence which he will give
are predicated, as I say, upon the assumption that

he was involved in various ways with Harriman?

MR MILLER:  I think, Your Honour, they can be isolated in

so far as the admissions of guilt are concerned.

Where he has imposed upon Lisk and suggested the

way in which he should give his testimony it all

seems to be related to this trial. The passages

which deal with prior dealing seem to be throw-away

passages without necessarily going to the testimony
which was going to be the subject of evidence before

the trial.

(Continued on page 28)

C2T 17 /2/HS	27	2/6/89
Harriman

MR MILLER (continuing):  I have marked each one of them where

there is an objectionable passage. For example,
at page 276, which I think is the second of the

letters, there is reference:

Have you seen my Federal File?

And it goes on to name all sorts of people.

DAWSON J:	So there are clear instances where you could cut out
what is prejudicial ......  tender the letters.

MR MILLER:	Yes, that is a good example, Your Honour.	It had
nothing to do with this case.

DAWSON J:  But that would not really answer your problem

because the letters are based upon the assumption

that these people have had dealings together before

and that they are to be presented in a certain

light.

MR MILLER:	Yes, although the case against the accused certainly
involved evidence from Lisk as I have just
identified it of there being some discussion about the circumstances of importation on this occasion.
So, if it only went to that level, that would, in
my submission, suffic~ Evidence that Lisk and he
had discussed this particular importation would be the limit of it because all of the others seem to
be easy enough to excise if it was done as a
typewritten exercise and you took the relevant passages out.

For example, page 280 is another one, Your Honours.

In the fourth paragraph:

Those guys think that they have uncovered some

massive smuggling ring,

Well, the clear inference would be that this person

was in a massive smuggling ring - not just an

isolated example of bringing some heroin in
drawing sets. And, so, there is a clear passage

that could be excised without any damage, I would

submit, being done to the document.	Page 281 is
another one - - -

McHUGH J:  Even if that had got in, the prejudicial effect

of the previous deal	is quite different from
that, is it not?

MR MILLER:	Yes.
McHUGH J:	I mean, that is quite consistent with the charges.

C2Tl8/1/DR	28	2/6/89
Harriman

MR MILLER:  Some of it is.

DAWSON J: Well, if you take page 281, and I am not sure it

the best of example by any means, at the top:

If you need to have someone to give up for
a deal if you think your case is lost I can
supply you with a dealer-user-supplier's
name that is now dead so it will be harmless
and you've still done the right thing by the

Fed Pigs.

Well, now, you could not cut that out as being

irrelevant for the purposes for which the letters

are intended and yet it clearly bespeaks an

involvement in the drug scene.	I imagine there
are lots more like that.

MR MILLER:  It gives an indication that he knows dealer-suppliers

names but it is marginal, in my submission,

Your Honour. Putting yourseLf back in

the position of defence counsel at the trial, I

think you could explain that.

McHUGH J: Yes, I would have thought you could have lived with

that at the trial.

MR MILLER:  Yes, I could have, Your Honour. But it is the

ones I identified earlier which you see at page 282,

for example, of conspiracies on some other date,

of beating conspiracy charges in New Zealand and

the like. They are the things that really did

paint, to the jury, the picture of a man who had
been involved in long term drug dealing and drug

use over a period of years including in an ·:ther

country, in New Zealand.

Here he was, before the court, with very little

evidence against him if that evidence was excised.

(Continued on page 30)

C2Tl8/2/DR	29	2/6/89
Harriman

MR MILLER (continuing): Therein lies the real problem

with this case. It cannot possibly be said,

in my submission, that there was no miscarriage

of justice because the other evidence against

him was strong. It just was not. As

Justice Brennan pointed out earlier, it would be

doubtful whether you have a case to answer if you did not

have Martin's evidence, It is Martin's direct testimonywr

was the key to the Crown case and, therefore,

as His Honour Mr Justice Frankfyn pointed, the

cross-examination of Martin was crucial and it

went to his credibility, to point out that a

month before this alleged importation he had

been in Thailand, he had not told anybody in-chief

and, furthermore, later Crown evidence established
that Martin, himself, had been a drug deale½

whether on behalf of the applicant or otherwise.

McHUGH J:  Am I right in thinking that Martin said that

he could not remember why he was in Chiang Mai

on that occasion in March?

MR MILLER:  I think that may be correct, Your Honour.

I cannot immediately recall, to be frank.	Yes,
Mr Davies tells me that is quite correct,
Your Honour, yes.

It was a rather puzzling thing, that this

evidence came out only fortuitiously as it appears

by defence counsel perusing his cancelled passport and ascertaining that, in a period in early March, he had, in fact, been in Chiang Mai, so close

to this - in Thailand and on his own admission

had gone to Chiang Mai, only weeks before the

alleged deal between the two, Martin and the

applicant.

So, Your Honours, the only other authority

to which I wish to refer if I may was DIRECTOR

OF PUBLIC PROSECUTIONS V BOARDMAN, (1975) AC 421

and, in particular, in the judgment of Lord Hailsham

at page 453 where His Lordship, in my submission,

identified exactly what the majority of the Court

of Criminal Appeal did wrong here - two-thirds
of the way down that page; paragraph F:

It is perhaps helpful to remind oneself that what is not to be admitted is a chain

of reasoning and not necessarily a state

of facts. If the inadmissible chain of

reasoning is the only purpose for which

the evidence is adduced as a matter of law,

the evidence itself is not admissible.

If there is some other relevant, probative

purpose than for the forbidden type of reasoning,

the evidence is admitted, but should be made

C2T19/l/SH	30	2/6/89
Harriman

subject to a warning from the judge that

the jury must eschew the forbidden reasoning.

Now, the forbidden reasoning, in my submission,

surfaces throughout the judgment of the Court

of Criminal Appeal majority and in the rulings

and directions of the learned trial judge.

BRENNAN J: Mr Miller, just before you finish, I would

just like to put one other proposition to you.

We have been considering cases which fall under

the similar facts rubric and when there is a

similar facts case, one looks to see the similarity

of the facts, the striking similarity, unifying,

underlying principle or whatever it might be

but, in this case, for the reasons that you have

outlined, there is no identifiable similarity

between dealing at an earlier time and the specific

importation on this occasion and so one wonders

whether it is a similar facts case at all and

if it is not, the question is simply one of relevance,

is it not?

(Continued on page 32)

C2T19/2/S!{	3 1	2/6/89
Harriman

MR MILLER:	Yes, Your Honour.
BRENNAN J:	And if it is one of relevance then it comes

back to whether or not it is relevant to establish

that the person charged was a substantial heroin

dealer, is that the proposition?

MR MILLER:  That would have to be the only way it could

be put. There is another example - apart from
similar fact there is another area where you

see this get in, in incest cases you will see

a number of authorities where the so-called guilty

passion allows in evidence of prior acts between

the accused and the victim and that is a

head that has been established over a period

of time that whereas the Crown might allege one

act in July of 1988 they might lead evidence
of familiarity and various acts over a period

of years before. That is not similar fact evidence.

It specifically has been stated not to be so

but so-called evidence of guilty passion.	So
there are these odd areas.

DAWSON J:  The term "similar facts" is a very·misleading

term, is it not? What you are really talking about is prior offence evidence which is only

admissible - - -

MR MILLER:	Yes, Your Honour, I would respectfully agree with that.
BRENNAN J:	Which is prima facie excluded unless there

is some reason for letting it in.

MR MILLER:  Yes. The only reason why it could get in here

would be to show a motive but the motive was

established. It was to go to Thailand to get

drugs to pay·· a debt. This case would be a very

different case, perhaps, if it was not the case

that on the Crown evidence --- -

BRENNAN J:  But that is the very point that was challenged,

was it not? It was not to go to Thailand to

get money to pay the debt.

MR MILLER:	Challenged on behalf of the applicant?
BRENNAN J:	Yes.
MR MILLER:	Yes, the applicant's counsel put it to Martin -

in two ways : the a pp 1 i cant ' ,::; c " 1 , n s e 1 put i t to

Martin, "You went and got the drugs a month before

yourself. On the occasion when you went up and

saw the applicant it was to get him to sign some

documents." That is the way it was put. So

that, in my submission, was innocuous enough

and justified.

C2T2O/ 1 /ND 32 2/6/89

Harriman

DAWSON J:  The applicant said he went there for certain

personal reasons.

MR MILLER: Exactly. So, Your Honours, I cannot take it

further than that.	They are the submissions
for the applicant.

BRENNAN J:  Thank you, Mr Miller. Yes, Mr Davies.

MR DAVIES:  May the Court please, I hand up to the Court

a summary of argument on behalf of the respondent.

Both the argument put on behalf of the applicant

and in the minority judgment of Mr Justice Franklyn

in no way comes to grips with or does justice to the basis upon which, in the course of the trial, it was contended that this evidence ought

to have been admitted and, in our submission,

in no way comes to grips with the particular circumstances of the dealing primarily adverted

to, that it was said was admissible in this trial

with the course it had taken.

An examination of the entire course, as

undertaken in the majority judgment, indicates
that the Crown had proposed to endeavour to deal
with this trial without disclosing the prior
involvement in dealing with the Crown witnesses

by the applicant. How on earth that was going

to be done is another matter and Your Honour

Mr Justice Dawson has adverted to what happened

the very first time one attempted to take the

witness, who was of a particular character- and,
with respect, I will return to that in a moment -

to a question specifically relevant to this

importation.

(Continued on page 34)

C2T20/2/ND	33	2/6/89
Harriman

MR DAVIES (continuing): It was not in dispute in the course

of the cross-examination of Martin that the two

met, by arrangement, in Bangkok, contact being

made once Martin arrived in Bangkok by means of
his using a telephone number given to him by the
applicant on a piece of paper, along with the
address that the applicant would be at at that time
in April - a place called Krungithep Apartments.
And, that piece of paper, :h the handwriting of

the applicant, was an exhibit. So that that puts into context the proposition that all Martin went

up for in April was to get business documents

signed.

It was not disputed in the cross-exarn:ina.tion of i:'.:.artin

that the two then travelled together from Bangkok
to Chiang Mai, an 11 hour dirty, smelly trip on a

bus, as it was described. It was not disputed in the cross-examination of Martin that the two then

went to a named hotel - I think "Riverside" was the name of it, and there spent some time. The

cross-examination of Martin then went along two

lines, one of them was the thrust concentrated upon by Mr Justice Franklyn, and indeed, in the argument

put on behalf of the applicant, the possibility

that Martin had, independently of the applicant,

obtained the heroin a little over a month earlier

on a visit to Chiang Hai of his own. His passport,

of course, had been in the papers all along

and clearly disclosed the trip to Bangkok a month

before.	He had never been asked about it, was what
he said.

Cross-examination also went to the possibility that Martin, on the trip in question, the framework of which was not in dispute, in April, had obtained the heroin independently of the involvement of the

applicant, and without the knowledge of the

applicant. Indeed, a specific question that I

could take the Court to, if necessary, Martin's

evidence being that they returned to Bangkok, that

he went out into the town and purchased four or five

little pencil sets to parcel the heroin in for the

purpose of posting to Australia, and that the two

wrapped them together and that he then,upon the

direction of the applicant, travelled to London

and there posted them to five addresses. A question put specifically to the applicant, because there was but one fingerprint found on the internal wrapping of

only one of the parcels, it being a fingerprint of

the applicant - the question put - - -

BRENNAN J: Fingerprint of Martin?

MR DAVIES:  I am sorry, Your Honour. The fingerprint of Martin.

It was put to him specifically, "One explanation for

that could be that you alone wrapped them". So clearly

C2T21/l/FK	34	2/6/89
Harriman

two lines were run in the cross-examination of

Martin as to an independent obtaining by Martin, independent of the knowledge or involvement of the applicant.

The next line approached was to put to Martin,

although he denied it, as Your Honour Mr Justice McHugh

observed, that, "You, in Perth prior to this time

were involved in dealing in heroin with the witnesses

Gawthorpe, Lisk and Mulik," who were the Crown

witnesses and, of course, independently of the
applicant was the way that was going to be put.

Now, at the stage reached at the end of Martin's cross-examination there was no evidence that Martin

was a dealer in Perth. He denied it. But, at the

collllilittal proceedings, and this was all laid out before

the Court of Criminal Appeal, at the collllilittal

proceedings, the witness, Gawthorpe, had been

cross-examined on behalf of the applicant and gave

evidence that on at least two named occasions he

had met Martin at named places in Perth. On one

occasion when he was on his distinctive blue

Suzuki motor cycle and on another occasion when he was

in his distinctive gold BMW motor vehicle, and there

bought heroin from Martin.

(Continued on page 36)

C2T21/2/FK	35	2/6/89
Harriman

MR DAVIES (continuing):  That evidence clearly was going to

be led from Gawthorpe by the defence in cross-

examination again at the trial had this course been

permitted to continue. So there were two - - -

McHUGH J:  Could I ask you what was the purpose of calling

Gawthorpe, so far as the Crown was concerned?

MR DAVIES:  Gawthorpe gave evidence that he - Your Honour

put to my learned friend there was evidence	he was
asked to do a run on a couple of occasions.

McHUGH J:  That was the only purpose?

MR DAVIES:  He was promised $10,000. He gave evidence also

of hearing talk of how it could be obtained and of the applicant saying "I'll be going up there and I

might get some" and to add to Lisk's evidence, Lisk

said that when he asked the applicant when he could

have some more heroin from him said, "When I go up

and get some more". There was more in the evidence

of Lisk than of Gawthorpe, but clearly he gave
evidence relevant to this particular trip as a matter

of timing and a matter of discussion.

At that stage, at the end of the cross-examination

of Martin, the proposition commenced - it is not made out at that stage. It was going to be made out three

or four witnesses later in the cross-examination of

Gawthorpe - was the Crown says Martin and the

applicant went up there and obtained it in

conjunction. We say that Martin obtained it

independently of the applicant and, what is more,

Martin is a heroin dealer and the applicant is not.

The Crown's response to that was to say, the

dealing in heroin with these people, namely Gawthorpe

who was a middle man between Martin and Lisk, as the

evidence came out, was the applicant and Martin

dealing in conjunction, or, indeed, on one view,

Martin dealing with them on behalf of the applicant.

The course that had been commenced was clearly

directed to ending with this picture, that when one considers Martin's evidence, when one considers the

likelihood of the applicants having been involved

with him, and Martin had pleaded guilty to the actual

importation, he being the poster of the five articles,

what you have, members of the jury, is Martin, a
known heroin dealer who deals with these people, one

of whom provided the two addresses that two of the parcels were sent to - and it is two, with

respect, Your Honour, not three, that were provided

to the applicant by Martin.

McHUGH J:  No, I put it the other way. It was the

applicant who supplied.

MR DAVIES:  He supplied three of his own.

C2T22/l/HS	36	2/6/89
Harriman

McHUGH J:	Three, that is what I said, yes.
MR DAVIES:	Yes, or rather sent three parcels to names but

his own addresses, and the picture that was then

going to be presented was, in considering this

question of whether they did it together or Martin

did it alone, Martin is a heroin dealer, not just

a heroin dealer but a person who was at the time

dealing with these persons, Gawthorpe, Lisk and Mulik,

in Perth in heroin.

TOOHEY J:  Mr Davies, there is just one step that I might

invite you to go back to. You suggested the cross-

examination was designed to show that Martin was a

heroin dealer, understand that, and that the

applicant was not. Are you suggesting that that

was the purport of the cross-examination?

MR DAVIES:	The cross-examination, of course, was not designed to do that and could not.
TOOHEY J:	Except by implication, I suppose you would say.
MR DAVIES:	It was meant to have that excluded from the trial,

the fact that the applicant was a heroin dealer.

The course being embarked upon was meant to proceed

on the basis that the Crown had said, prior to the

commencement of the trial, "No evidence will be led of

his dealings or involvement in dealing to these

people or anyone in Perth prior to this matter".

McHUGH J:  But counsel for the accused could n6t have

addressed the jury on the basis that his client was

not a drug dealer, could he? Surely that would have

been both unethical and	the	trial	judge would
have discharged the jury.

MR DAVIES:  Maybe so, Your Honour, with respect, but in

relation to the question of whether Martin obtained

it independently, what was being founded was that

Martin is a drug dealer, a dealer with the Crown

witnesses who give important evidence, Gawthorpe,

Lisk, for supply to Mulik.

(Continued on page 38)

C2T22/2/HS	37	2/6/89
Harriman

MR DAVIES (continuing):  There is no evidence

that the applicant was in any way involved
in those goings on in conjunction with Martin,

prior to the two of them making this very

significant trip together.

Now once it is appreciated that this all

fits into the framework of the cast in this
case, it is not a matter of saying,"Heroin

came in", "This fellow has a disposition",

"He was there at the place that it left",

"He is shown to have perhaps some minor

involvement", therefore you can take the

quantum leap to saying that he is the sender

or he knows about it. This is a case

where what was called in issue was the

very essence of the Crown case, whether the

two were doing it together or whether Martin has gone off on a jaunt of his own, he being

the sort of fellow who,in relation to these

people that it was posted into or who had
provided the addresses it was posted to,

has jaunts like that with them.

And the jury would have been left with a

most one-sided, misleading situation.

GAUDRON J: That analysis, Mr Davies, does not deal with

use as such, or with any activities such as

the matter referred to in the letter relating

to New Zealand, which would prima facie at

least seen not to have any connection at all

with Martin.

MR DAVIES:  Your Honour, the argument with respect as to

use, if I may say, seems to fall by the wayside

at the stage it was reached as the trial

proceeded. I, with great respect, do not

know that there is anything to be gained by

examining the initial question of whether use,

as some evidence of motive, was or was not a

good idea in the total context.

The New Zealand matter, which I think is

to be found at page 287, is a very interesting

matter. Your Honour Mr Justice Dawson adverted

to the fact that one really has to get down to

these letters. One really needs the total

volume of these letters to come to grips with

really how probative they were. And the New Zealand matter is the applicant in a

very illistrative and pointed way, indicating

to Lisk

C2T23/l/CM	38	2/6/89
Harriman

it is hard to put these into the sequence

because they are not all dated but this

certainly was not the first - he has been

indicating to Lisk, look for goodness sake, do not give me up, whatever the temptations may be, whatever may be put in your path,

whatever may be your feelings as to your

own situation, for goodness sale, do not

give me up. And implicit in what he is

saying, you know and I know, and you can

read this into it, you know and I know that

I am involved, but let me tell you, that

so long as no one gives you up, as in this

case in New Zealand, then I am all right.

And although it implicitly is saying there was a case in New Zealand where,if

people had talked,I would have been in

trouble, let me make it clear to you,Lisk,

that the very fact that people did not talk, and let

us. not forget, if Your ¥,.onour · pleases, he has been saying

"I will stop Gawthorpe from talking'.' Gawthorpe I s

story is unlikely, although based on fact,

one finds in other parts of the material.	And
that is an illustration and similarly the illustration in relation to the lass in the

taxation office is a very probative way that

the applicant was going about saying to Lisk,

look, do not worry about the fact that you

know that I am in it to the hilt, so long as

you do not talk, as in cases like this, it is

what I expect of people that I work with, I

cannot be in trouble. Some lass in the taxation

office.	I have got another problem that has
been picked up.	Smoke I hope, but I would

be surprised if she says anything against me.

That is not a direct quote, but that is the clear effect of what he was saying to Lisk.

GAUDRON J:  I think I have diverted you by my question,

Mr Davies. What I was really putting is that

your argument does not go to render admissible

anything that is not done jointly with Mr Martin.

(Continued on page 40)

C2T23/2/CM	39	2/6/89
Harriman

MR DAVIES:  Your Honour, one needs to get down to the evidence

of these witnesses. If I can summarize it this

way: Martin said he never dealt at all and there

it ended; Lisk said that he obtained primarily

from Gawthorpe and, when one examines the illustrations

of where he is saying he obtained from the applicant

directly, later on it becomes apparent that he

was really saying, "I believe it was from the

applicant but it was always through Gawthorpe".

Gawthorpe then says, "I only dealt with Martin

primarily but there were occasions when" - and

there is a specific instance - "I had been to

meet Martin.	I had obtained drugs from him and
' for them.	I rang the number he gave me

·scuss the question of a further dealing.

~pplicant answered. I told him what it was

about. He said he would pass it on" and, included

in what he told him was, "It was to do with picking

up some more gear". He said he would pass it

on. There was then an arrangement to meet Martin

at a hote 1. "We missed it because Lisk was running

late·and the applicant came round and said, 'Why

were you not there to meet Martin'? I then gave
him $20,000 and he said, 'That is not all; I
have heard something about $5,000 that you gave

Martin'" to which Gawthorpe - I am only paraphrasing

the evidence - that was the effect of it on the

Crown case - said - "Don't know anything about

it"; to which the applicant responded, "I don't

trust the old bastard" being Martin.

So that one has to, first of all, Your Honour,

with respect, understand that Lisk was a brain-addled
heroin addict who was lucky to concentrate for one

minute at a time and His Honour had to, really, say

to him, "Stop mumbling, I cannot even understand you.

What are you talking about?" throughout the trial.

His evidence jumped all over the place. Gawthorpe

was a reformed heroin user; said he was never

an addict, who presented a picture of having

tidied his act up but when one put all the evidence

together, the clear picture that emerges from

a careful reading of all of it is as set out

in the judgment of the majority; that here was

a situation where Martin and the applicant were

distributing drugs via Gawthorpe to Lisk and

his lady, Sonia Mulik, who was also a witness;

that that occurred by Gawthorpe having the phone

number of the person he knew as "the partner"

and I think, with respect, he meant "business

partner". He had seen Martin there, although

in custody, brought round through the precincts

of the court, to give evidence.

Gawthorpe said, "Although I always dealt

with John, who I now know to be Martin, I also

dealt with the applicant" in a way which made it

C2T24/l/SH	40	2/6/89
Harriman

clear that the two of them were in this distribution -

in this closed circle together and that, really,

then went on and involved some using within the
group and then went on to important evidence

of Lisk, for example, who said, "I asked the

applicant when I could get some more heroin from

him" and he said, "When I go up there next time"

or again, "to get some more". It is primarily

within this closed circle that the evidence that

the Crown actually led, fell; an involvment of

these parties in heroin.

McHUGH J:  Does that mean that all this evidence was admissible

in the Crown's case in-chief, irrespective of

the cross-examination?

MR DAVIES:	Probably, Your Honour.
McHUGH J: Because	it must mean that, must it not?

MR DAVIES: Probably, Your Honour, with respect, but it was

not going to be done; but once there was the

attempt to paint this picture that, "You, Martin,

in Perth with these witnesses, to the exclusion

of the applicant, were dealing with them in heroin

and, therefore, you, Martin, on this acknowledged

trip to Bangkok and Chiang Mai are likely to

have obtained the heroin independently of the

applicant". Then, really, the Crown's view was

that it had no choice but to put the jury into

the picture.

McHUGH J: It is very thin evidence, is it not, even connecting

Harriman up with this distribution syndicate in

Western Australia?

MR DAVIES:  No, Your Honour, with respect.

McHUGH J: Well, you will not get it out of Lisk's evidence?

MR DAVIES:  No, you get it from Gawthorpe's evidence, if

Your Honour please.

McHUGH J: Let us start with Lisk: Lisk's evidence is directed

against Harriman, it is not directed against Martin

in any way, is it?

(Continued on page 42)

C2T24/2/SH

2/6/89

Harriman

MR DAVIES: 

Lisk provided the address, Alma Road and a name

and the address, Gull Service Station, Lancelin
to Martin and Martin alone on his evidence. And

the evidence was that there was never a - I am

sorry, to Harriman, and to Harriman alone, - I
am sorry about that Your Honour. And there was

never any evidence that there was a connection
between Martin and Lisk directly. Martin's

evidence, of course, then was that the applicant

provided him with those two addresses; and it is

known that that is where the parcels went. So

that was important evidence.

McHUGH J: 

But evidence was led from Lisk about his dealings

with Harriman.

MR DAVIES:  Yes, sir. In conjunction with evidence that he

spoke with the applicant at a time prior to his

departure about methods of getting it in.

McHUGH J: That is a separate point. I am talking about the

distribution system. You see Lisk's evidence

standing alone showed no more, did it, that

Harriman had been guilty of heroin dealing? It

certainly did not show any sort of a system with
Martin or any distribution or partnership with

Martin.

MR DAVIES:  I am sorry, sir, with respect, standing alone it

did not - - -

McHUGH J: No.

MR DAVIES: - - - because it said, "I dealt with Gawthorpe".

Gawthorpe said, "I was dealing with Martin", but

Martin was in conjunction with Harriman.	You
cannot - - -

McHUGH J:	I appreciate this.
MR DAVIES:

You cannot take one alone and get the picture, if

Your Honour please, which is what, we would submit,

Mr Justice Franklyn did. The total picture, if the

Court please, was that: clearly that Martin and the

applicant were together dealing with these people,

one of whom was the address provider to the applicant.

McHUGH J:  I think it really comes back to this, does it not,

Mr Davies, that your case stands or falls on whether

this evidence was admissible in-chief, irrespective

of the cross-examination.

MR DAVIES:  Yes, sir.

McHUGH J: It does.

MR DAVIES:  Yes, sir.

C2T25/l/DR	42	2/6/89
Harriman

McHUGH J:  So thatifitwas not admissible in the first instance,

it was not admissible at all.

MR DAVIES:  I would agree with that, with respect, sir, but - - -

DAWSON J: You do say it is admissible to meet a defence.

That is essential too. He may not have known the

defence until the cross-examination.

MR DAVIES:  One could have imagined that if the picture was

left - I am sorry, sir.

DAWSON J:  Or one could have imagined it. That is an interesting

way in which you put it because, really, you are

saying, "This is not one of the recognized instances
of the use of what we call similar fact evidence.

This is a case in which Martin's dealings - Martin's offences, if you like - were brought out. Not just

to attack his credit, but because they did have
probative value. They indicated that he, not I, was

the person involved." If that was the picture with

which the jury was left, it was an incomplete picture.

The only way you could complete it was by

balancing the picture by showing that Harriman was

equally involved in drug dealing. You say that that

that is a legitimate use of the evidence - the

evidence of Harriman's offences - because it was

necessary to balance the picture.

MR DAVIES:  And has nothing, with respect Your Honour, to do with

trying to fit it into the traditional similar fact

evidence sonario.

DAWSON J: No, it is another category, if you like - that is the

way you are putting it.

MR DAVIES:  That is the sort of evidence that, although it

discloses offences, comes into trials because of its

relevance in an enormous variety of ways.

DAWSON J: Its pro~tive value exceeded its prejudicial value only

because of the way in which the defence was conducted.

MR DAVIES: That is so, sir. And to return to the question put

to me by His Honour Mr Justice McHugh, hence the

concession at the start of the trial; that unless

a particular course were taken, although one could

imagine that if you left the evidence in a certain

state it might be put in address, that Martin did

it by himself and was a dealer.

(Continued on page 44)

C2T25/2/DR	43	2/6/89
Harriman

McHUGH J:  But it really comes back to this, does it not,

that all that the cross-examination did was,

really, to force you to call the case which

you say you were legally entitled to call.in the

first place but out of fairness you had decided

not to call?

MR DAVIES:  And, with respect, Your Honour, which a trial

judge may have excluded in the:exercise of the

discretion if this course Mr Justice Dawson has

just summarized to me, with respect, were not
pursued as specifically as it was. This was
a trial in which things developed and, in our

submission, there is no more in it than that. In

some trials one has to put in mug shots because

it is only way of proving identity and there

are that many instances, when one gets down to

it, nothing to do with similar fact evidence,
in which evidence, although disclosing prior
criminal conduct, is of such probative value
in the particular trial in relation to the
particular cast in the trial and the way in which
the defence is conducted which was the spring-

board in this case that it simply goes in as

highly relevant probative evidence.

And looking at the various observations

on similar fact evidence - in fact, with great

respect, one can go quite silly trying to put

a tag on this evidence. It is not an easy exercise
and, in our submission, does not further the

exercise before the Court. It simply is as bald

as, with great respect,·. Your Honour

Mr Justice Brennan was putting to my learned

friend earlier. The evidence in this trial,
the issues in this trial being what they were
and the conduct of the trial taking the course

that it did, was highly probative evidence of a major matter in issue, that is, whether the

two operated in conjunction in relation to this

specific importation; no m:ot"e.

And, in our submission, although His Honour

did not say, "I rule the evidence to be admissible,

I now consider the exercise of my discretion

and I exercise this in a particular way", he

simply said, "I'll say now that I agree with

the course that the Crown proposes to take."

and left it at that. Really, it can be seen

that the evidence is of such high probative value

that an exclusion would not have been justified,

in the same way as the material in the letters is of such high probative value, when properly understood - I do not want to take Your Honour's

time taking you through all of them; that was

done by both sides to the jury, of course.

C2T26 /1 /ND	44	2/6/89
Harriman

But as a total picture they are devastatingly

probative of the applicant's acknowledgement

of guilt.

And as has been said by the members of this

Court, that must go into the pot also in considering

how one would have exercised the discretion in

relation to the evidence of the applicant's dealings

in conjunction with Martin with Gawthorpe and Lisk back in Perth prior to this trip because

it does rather take the sting out of it if a

trial judge were to come to exercise the discretion.

We can take the matter no further than that.

McHUGH J: It comes down to this then, does it not? Was

evidence that Martin and the applicant had a

distribution, in fact, a heroin business in

Western Australia, admissible to prove that when

both of them were in Thailand at the same time

and Martin was obtaining this material, it was

proved that they were in Thailand together in

business?

MR DAVIES:  That is right, Your Honour, and unless that

point had been taken as ·specifically as it was

there was going to be an attempt to prosecute

the matter without taking that step.

BRENNAN J: What you say is, "What promoted the tendering

of the evidence-,was the suggestion that they

were acting independently and therefore this

evidence was tendered to rebut the suggestion

of their independence rather than to prove the

fact of their partnership?

(Continued on page 46)

C2T26/2/ND	45	2/6/89
Harriman

MR DAVIES (continuing):  And more importantly, Your Honour,

not only that Martin was acting independantly,

but that Martin is a dealer who dealt with

the people who were the Crown witnesses in

the case who had supplied the address. Not

just dealt generally, but dealt with them,

and what was being shown primarily - I accept

that there are some digressions as the

trial,as in any trial with difficult witnesses,

took its course - primarily to show that that

dealing that you,the defence,point to as

making it likely that the man Martin would have

done it independantly, really shows his dealing

that you point to as a strong arrow in your

quiver on that contention was itself in

conjunction with the applicant, which is the

Crown contention as to what was going on in

Bangkok, Chiang Mai in April. I do not think

that I can take the matter any further, with

respect, Your Honours. We simply say that was

this trial, if the Court pleases.

BRENNAN J: Thank you, Mr Davies. Mr Miller.

MR MILLER:  If Your Honours pleases, there are two or three

observations I would like to make by way of

reply, if I may. In my submission, the way that

my learned friend has put the case, directly

contravenes the chain of reasoning to which I

referred in the judgment of Lord Hailsham in

BOARDMAN, because what my learned friend is

really saying is that, because they had previously

been involved, Martin and Harriman, in heroin

dealing in some way in Western Australia, you
could conclude that when they both went to

Thailand, they were there to import heroin.

And that was in answer directly to Your Honour

Justice McHugh's question.

Now that is directly what,in my submission,

is prohibited by the succinct statement of
the position by Lord Hailsham in the BOARDMAN

case.

TOOHEY J:  Except that. he went further than that.

McHUGH J: Although by acknowledging that the evidence was

admissible in-chief, that concession seems to me
to go some distance in support of your

proposition.

MR MILLER: Yes, even further so, yes.

McHUGH J:	But the way that I thought Mr Davies really put
it was by reference to the cross-examination
directed at showing that Martin was acting

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Harriman

independantly of anyone else.

MR MILLER:  Yes, well now can I just come to that point.

On the evidence that there was any concert

between Martin and Harriman was really limited

to the evidence of Martin himself, because
the other evidence ~s has been identified so far

of Gawthorpe was very thin. He did not ever

deal with Harriman, althought he believed

at the back of Hartin was Harriman, and he

certainly spoke to Harriman on a telephone and

gave him some money - but it was thin.

Lisk himself said nothing about it whatever

and more importantly Martin did not assert in
his testimony that they were invoved in a

heroin dealing organization in Perth.

McHUGH J:	I know it was very thin, but assuming a jury
could conclude that Harriman and Martin were
in a heroin distribution syndicate in
Western Australia, why was it not admissable? The remarks in BOARDMAN's case are concerned
with an individual. Here what the Crown was
seeking to prove was that there was a
partnership going on which had existed in the fact that they were partners in dealing in heroin in Western Australia tended to prove the fact that when one of them got heroin over there
and the other one happened to be there, that they
were still carrying on their partnership.

MR MILLER: Well, in my submission,Your Honour, that is

what is illegitimate about it. You cannot draw

the conclusion that they were in partnership in

Thailand to obtain heroin because they were in

partnership in Perth at some prior occasion doing

something with heroin. It is not probative of that

fact. (Continued on page 48)

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Harriman

MR MILLER:  It was not put quite as high as that, Your Honour.

It was put on this basis. There was no suggestion,

as has been earlier reverted to, that Harriman was

not a drug dealer, that certainly was not put. All

that was put was this, to Martin, "You were in

Thailand with Harriman, with my client, in April - there is no doubt about that, but that was for

innocent purposes, it was for business purposes.

You were in Thailand a month earlier, on your own, when he was there, you did not choose to contact him, you went to Chiang Mai, which is a well-known

distribution place for heroin. Was it you who got

the heroin on that occasion, which is the subject of

this importation?"

Now, that is innocuous, in my respectful

submission. It does not require a whole picture

then of prior heroin dealing between these two

men.

McHUGH:J: rthink there may be something in that. This did not

arise out of the cross-examination. The

cross-examination might have been the occasion that

caused the Crown to change tack, but it does seem

to me at the moment that it was admissible as part

of the Crown's case in-chief, irrespective of any

cross-examination.

MR MILLER:  I think the cases. come down to that, and indeed,

that is what Justice Brennan put to me, I think, when I was outlining the applicant's argument. But, I can

say no more than make the submission that everything

in authority points against you being able to lead

that evidence in-chief.

McHUGH J: Evidence of prior criminal offences is not

inadmissible if the evidence will go to prove the

issue, and that is what is put against you, that it

does go to prove the issue. It proves the issue

that - not of mere tendency or disposition, but to

show, as a matter of probability, that they were

dealing in heroin together in Hong Kong.

MR MILLER: Thailand.

McHUGH J: In Thailand.

MR MILLER:  My answer to that submission, Your Honour, is because

it does not show a system which can be identifiable

from what happened previously in Western Australia, that

is why it becomes only evidence of disposition, rather

than admissible as a system.	So it really comes down
to that fine point.	May it please the Court.

. BRENNAN J:  Thank you Mr Miller. The Court will consider its

decision in this matter.

AT 12.01 PM THE MATTER WAS ADJOURNED SINE DIE

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