Hoar, Donald Edgar v The Queen

[1983] FCA 57

Re: DONALD EDGAR HOAR
And: THE QUEEN
No. NTG 5 of 1982
Criminal law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.
Toohey J.
Davies J.

CATCHWORDS

Criminal law - Appeal to set aside a conviction on the grounds of fresh evidence - evidence of perjury of essential crown witnesses - evidence that evidence of guilt at trial was fabricated - absence of evidence refuting such fabrication - miscarriage of justice - fair trial - whether fresh evidence cogent, feasible and relevant - whether fresh evidence if called at trial would have raised reasonable doubt - whether witness so lacking in credibility verdict cannot stand - declaration under s.13(1) of the Fisheries Act (1978) concerning "all waters" - duplicity in indictment.

HEARING

MELBOURNE

#DATE 31:3:1983

ORDER

(i) that the appeals against the conviction and sentence in respect of the charges of assaulting a police officer in the execution of his duty contrary to s.51 of the Criminal Law Consolidation Act and wilful obstruction of a police officer in the due execution of his duty contrary to s.51 of the Criminal Law Consolidation Act be dismissed;

(ii) that the verdict and the conviction of the appellant dated 17 October 1980 and the sentence in respect of the charge of conspiracy against the appellant be set aside;

(iii) that there be a new trial of the appellant upon the indictment for conspiracy to commit an offence against a law of the Territory contrary to s.53(1)(a) of the Criminal Law and Procedure Act; and

(iv) that the appellant be remanded in his present custody to appear before the Supreme Court of the Northern Territory upon his retrial unless in that court, proceedings upon the indictment are otherwise terminated.

JUDGE1

In form this is as an appeal against three convictions suffered by the appellant in the Supreme Court of the Northern Territory on 17 October 1980.

In substance the appeal concerns the conviction of the appellant for conspiracy to commit an offence against a law of the Territory contrary to s.53(1)(a) of the Criminal Law and Procedure Act. The conspiracy alleged was that the appellant along with six other persons between 1 October 1979 and 28 February 1980 at Darwin, Wildboar and other places in the Northern Territory and at Melbourne conspired and agreed to take barramundi during the closed season and to take barramundi upstream from permitted waters.

The other convictions were for assaulting a police officer in the execution of his duty and for wilful obstruction of a police officer in the execution of his duty. In respect of these convictions nothing in the notice of appeal relates to them nor was any argument advanced. Accordingly the matter may be dealt with as if the appeal were confined to the conviction for conspiracy.

On 23 October 1980 the learned trial Judge imposed the following sentences on the appellant:

For the offence of conspiracy - a term of imprisonment for three months, suspended, upon the appellant entering into his own recognizance in the sum of $1,000 to be of good behaviour for three years.

For the offence of assaulting a police officer - a fine of $150.

For the offence of wilfully obstructing a police officer - a fine of $150.

In addition his Honour ordered forfeiture of certain plant and equipment and of two motor vehicles. The Crown appealed against the sentence imposed on the conspiracy charge and the appellant appealed against the order for forfeiture. On 10 March 1981 the Full Court of the Federal Court upheld both appeals, substituting a term of imprisonment for 14 months, with a non-parole period 6 months. The Court also allowed the appeal against forfeiture on the ground that in the circumstances there was no entitlement to make that order.

The Crown then appealed against the decision of the Federal Court that forfeiture was not authorised. On 4 December 1981 the High Court dismissed that appeal.

In none of these proceedings did the appellant challenge his conviction for the offences of conspiracy, assault and wilful obstruction.

The appeal

On 8 April 1982 the Full Court of the Federal Court gave the appellant leave to file and serve a notice of appeal against his convictions, the time for appealing long having expired. The ground of the application for leave to appeal out of time was that it had emerged that Allan Michael Bridges, a Crown witness at the appellant's trial, had admitted giving perjured evidence at that trial.

As stated by the learned Chief Justice in his summing up at the trial, the conspiracy charge was supported as follows -
"I have told you that so far as illegal fishing is concerned, if you find that fish were taken during the prohibited time, and Bridges' evidence plainly indicates that they were, that is illegal. If you find that they took barramundi at any time, barramundi were at any time taken south of that line drawn on the map, then that also is illegal. If barramundi were taken by these 2 and others during the time forbidden or at the place forbidden, well then you may perhaps think - that is a matter for you - you may conclude that if these 2 were involved in taking fish in either of those prohibited ways, then that they had agreed to do so, and that is the crime of which they are charged, the conspiracy.

The first thing I suppose that would be most useful for you to direct your minds to, would be if there was any illegal fishing. Because, if there was not any illegal fishing, there is no evidence of any agreement to do it, in this case you may think there is just no evidence at all, beyond the fact of the illegal fishing and things that followed from it, which tend to suggest that it happened.

There is no other way in which the Crown would seek to prove the illegal agreement to do these things."

The relevance of the evidence of Bridges appears from the following passage of the suming up, namely,
"Now, there are a number of aspects of evidence bearing on this so far as the Crown is concerned.

First, there is the evidence of the man, Bridges. His detailed evidence, you may think, on most nights except 15th when there was no fishing and one other night, and I can not remember when it was - it does not matter much, when there was only one trip, it may have been two nights there was only one trip. On other nights he gave evidence, you will recall, of people leaving the camp at 5 or 6 in the evening and coming back again about 11 or thereabouts with a great load of fish which were wheelbarrowed and in various other ways got into the abattoir, and then they went out again and came back at 2, 2.30 in the morning, observed by him on frequent occasions, and that is one thing, what Bridges said.

The second thing, you may think that bears upon it the Crown asks you to take into account is the fish remains. These arise in two ways you may think, on the evidence, one is the odd scales, or a bit more than odd scales, the number of scales that were found around the camp itself, in the sinks, in the traps and in the drain and just off the end of the drain, there were scales and one stuck on the wall you will remember that was found, and it is not disputed that they were found, but what is said about them of course is that there is no way of linking these two men to those scales, except Bridges himself."

The references to "these 2" are to the appellant and Noble who were tried together and were the only alleged conspirators who were tried at the proceedings in October 1980.

The allegedly "fresh" evidence, constituting the admission by Bridges that part of his evidence at the trial was false, which was before the Full Court upon the application for leave to file the notice of appeal out of time, was, so far as material, that
"3. . . . I gave evidence of being in company with Police and Fisheries officers when fish scales were discovered in and about Donald Edgar Hoar's abattoir at Marrakai and in cross-examination I denied knowledge of how the fish scales came to be there.

4. In fact, I was present when certain Police Officers and Fisheries Officers placed the scales in the abattoir, on the ground at the back of the salt shed, in the drains and in vehicles at the abattoir."

This so called "fresh" evidence was not supported in full by Bridges when he gave evidence to this Court. So far as it relates to police officers, Bridges at first confirmed that police officers took part in distributing fish scales but on the resumption of his evidence on the following day he said that he could not swear that police officers had done so. He said he could give no explanation for having sworn that they had done so. He confirmed however his statement that fisheries officers had distributed fish scales at the abattoirs generally and in vehicles there. The specific perjury which he said he had committed was that he had sworn at the trial that he did not know how the relevant scales "came to be there" whereas, in fact, he knew quite well, had been present when fisheries officers carried out the operation, and had even participated in it himself.

The issue before this Court is whether it is satisfied that there was a miscarriage of justice at the trial of the appellant. It was said by Rich J. and Dixon J. as he then was in Craig v. The King (1933) 49 C.L.R. 429 at p. 439 that where it is sought to show that a miscarriage of justice occurred on the ground that fresh evidence is available, that fresh evidence must have cogency and feasibility as well as relevancy. They added:-
"The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given at the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced."
Compare the remarks of Menzies J. in Ratten v. The Queen (1974) 131 C.L.R. 510 at p. 525,
" . . . the absence at the trial of evidence subsequently available works a miscarriage" in the relevant sense, "only if the Court of Appeal concludes that additional credible evidence, in conjunction with the other evidence in the case, ought to have resulted in a verdict of not guilty rather than a verdict of guilty because, if believed, it would at least raise a reasonable doubt of guilt".
But as indicated by Barwick C.J. at p.516, a miscarriage may arise in various ways. Thus, there is a miscarriage if in the conduct of the trial there was misconduct of such nature and degree that the accused was denied a fair trial. In this case the "fresh" evidence would have operated in a threefold manner. It would have removed from the total evidence which was before the jury a fact which might have been treated by the jury as having considerable weight. It would seriously have affected the credibility of Bridges, in that he would have been revealed either as a person willing to brand crown witnesses as fabricators of evidence, or as a person who had himself collaborated in the fabrication of evidence for reasons of his own, possibly including his desire to avoid arrest for non-payment of an outstanding fine. Finally, the fresh evidence would have cast doubt on the general integrity of the Crown case. The Chief Justice at p.516 (supra) said:-
"Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.

That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused.

There is lastly the situation where the miscarriage is that the jury did not have before it evidence not available to the appellant at the time of his trial which, if believed by the jury, was likely to lead to an acquittal, the jury not being satisfied beyond reasonable doubt of guilt. This may be regarded as an instance in which the accused has not had a fair trial".

It is clear that this Court is required to form an assessment of the value of the new evidence and to consider its nature. The first consideration is that the evidence does not contradict the evidence of those facts central to the proof of the conspiracy, namely, that the appellant and Noble engaged in nightly excursions on particular dates and returned to camp with quantities of barramundi fish which were processed and later delivered to a carrier for transport to some recipient. Bridges, the witness who deposed to these facts, still asserts that they are true. If this assertion is true there has been no miscarriage of justice. The significance of the fresh evidence, if believed, is that it discloses that Bridges conspired with officers of the Fisheries Department to fabricate evidence of the processing of fish at the abattoirs. It discloses also that the statement by Bridges to the Fisheries officers in which he stated what he said he saw of the nightly journey and the processing of fish, was made shortly after Bridges had been interviewed by two police officers, at night, who had said they had a warrant for his arrest in connection with an unpaid fine incurred at Mt. Isa. Furthermore after Bridges sought delay in executing the warrant, the police said that they were not so much interested in executing the warrant, but were more interested in information about what had recently been going on at the abattoirs, and that officers would call on him later with respect to that matter. And it is to be noted that at the trial the evidence of Bridges was subject to much criticism and he was actually referred to by the learned Chief Justice as "the unsatisfactory Mr. Bridges". There was some corroboration of his story but that itself was not wholly without qualification as to its persuasive force. It remains true that the evidence of Bridges was essential to the Crown case and he was put forward by the Crown as a witness of truth.

The critical conduct at the abattoirs was committed, if at all, between 6 December and 22 December 1979. It was the evidence of Bridges that police and Fisheries officers were frequent visitors to the abattoirs from 26 December onwards through January and February, they being interested in the possible poaching and processing of fish at the abattoirs and in other allegedly illegal fishing in the vicinity. But the evidence of police and fisheries officers given at the trial does not deal with the period between 23 December and 13 February. It commences at 13 February 1980 with officers visiting the abattoirs and interviewing Bridges. It was at a subsequent visit on 14 February that considerable quantities of fish scales widely distributed around the abattoirs and in vehicles on the premises were discovered. They were clearly visible to any person interested in their presence. According to the evidence of Bridges at the trial fish scales from the operations of the appellant would not have been present between 23 December and 13 February in the places and quantities in which they were discovered on 14 February because it was part of his duty to clean the abattoirs thoroughly each day to remove the results of meat and fish processing. Fisheries officers W. Mitchell and T. Davern gave evidence of the discovery at the abattoirs on 14 February of fish scales in substantial quantities in numbers of places including vehicles at the abattoirs. From the point of view of the possible forfeiture of vehicles the presence of scales in those vehicles was a material circumstance. The evidence of the police and fisheries officers proceeds on the basis that they had not been to the abattoirs at any relevant time before 13 February.

The learned Chief Justice referred to the circumstance that if Bridges cleaned up the abattoirs as he said he did, then, the scales on the premises on 13 February would seem to be irrelevant on the issue of the conspiracy. However, the evidence of their presence was left to the jury and presumably relied on by the Crown on the basis that the evidence of Bridges as to his cleaning up of the premises may not have been as thorough as he said it was. The possibility that the scales present on 13 February may have been a deliberate "plant" did not obtrude at the trial. The jury may have treated the scales as significant. But the importance of the "fresh" evidence is that had it been given at the trial it would have struck at the integrity of the Crown case in general and the credibility of the story told by Bridges in particular. The evidence of Bridges would in all probability have been more than unsatisfactory if it were shown that he had collaborated in fabricating evidence in conjunction with the Fisheries officer most nearly connected with the preparation of the Crown case.

In addition, proof of such fabrication would have gone to the credibility of the Fisheries officers and destroyed the essential propriety of the Crown case. Accordingly the "fresh" evidence really raises a fundamental issue of the fairness of the trial. If the scales were planted by the Fisheries officers it is manifest that there was not a fair trial. The critical issues before this Court therefore is whether the scales were planted by the Fisheries officers and whether Bridges knew it. Since the trial Bridges has been consistent on that issue save for the statement he made to Sargeant Holland on 4 December 1980.

The December 1980 Events

It is convenient at this stage to refer to the interview with Sargeant Holland and the events which led up to it. The trial at which the appellant had been convicted concluded in October 1980. It appears that Bridges having been provided by the Crown with accommodation for himself and his wife at Groote Eylandt before and after the trial, returned to Darwin in October 1980. There was apparently, an arrangement between him and the administration that he was to be provided with a furnished flat, but until it was available he and his wife resided at the home of one John Gabriel. Gabriel was a friend of Bridges and had some acquaintance with Hoar. There seems no reason to doubt that on 26 and 27 December 1979 and in January 1980 Gabriel and his wife had made social visits to the abattoirs, staying a night at least on their December visit. At about the end of November 1980 Gabriel told Bridges that he had told Don Hoar's solicitor that he knew Bridges and that he was sure that the police had used him to lie about Don Hoar in evidence during the trial and that the police and Fisheries got him to plant evidence on Don Hoar in conjunction with police and Fisheries officers. As a result Bridges wrote a record of the relevant conversation and on 4 December 1980 he took it to Mr. Gaffy who had been the prosecutor at the trial of Hoar. As a result, on 4 December a statutory declaration was prepared and sworn by Bridges in the following terms:-

"I(1) ALAN BRIDGES of 50 Britomart Crescent, Alawa in the Northern Territory, Labourer

do solemnly and sincerely declare (2)

1) I was approached by Loftus on Monday 1st by phone at Gabriel's house at about 12.30 p.m.

2) He said he heard that my wife and I were not happy and that he had been told by a Bob Thornton that the evidence I gave in Court was perjury, that it was a put up job by the police and fisheries - he asked me if I would be interested in having a meeting with himself and Don Hoar.

3) I said I was not happy with Don Hoar, that I had already put out a summons for $1000 for wages and would not be interested in talking to him anyway.

4) Loftus then went on to say that he felt sure that Don would go on and pay me my wages. I said he had had over 10 months to do so already and didn't want particularly to talk to him now. Loftus said Don would be in town during the next couple of days and he would get back to me.

5) Loftus further told me that Bob Thornton had said that there were certain members of the C.I.B. Branch and the Fisheries who had planted evidence against Don and used me as part of the deception. He said that he wanted to discuss this with Don and myself."
Bridges written record was in the following terms:-
"On Tuesday 2nd December 1980 I approached John Gabriel at his home. I told him Loftus had rung me, and what Loftus said to me, John Gabriel replied he spoke with Loftus and told him that he knew me, and that he was sure that the Police had forced me, and used me, to lie about Don Hoar, in evidence during the trials, and the Police, and Fisheries, got me to plant evidence on Don Hoar in conjunction with Police and fisheries officers and if I was to name the Police involved and fisheries, he felt certain at this stage that Don Hoar would look after me. I replied to John that Don had cost me $1000 in wages plus the loss of my car and I felt that I owed Don Hoar nothing and that if I spoke to him it would have to be on a friendly basis only."
Hereinafter it has been necessary as a matter of narrative to record certain statements by Bridges alleging conduct on the part of Mr. Loftus which might reflect on his credit. In this respect it is to be noted that the credit of Bridges is itself in question, and that Mr. Loftus has had no opportunity to speak as to the truth of what was said by Bridges so far as he was concerned.

It is to be noted that neither in the declaration nor in the written record is there a statement that Bridges refuted the alleged perjury. And so far as Gabriel is concerned Bridges might well have believed that Gabriel knew that there were no scales lying about in late December or early January.

Mr. Gaffy arranged for Sargeant Holland to interview Bridges in connection with Bridges' report. The interview occurred on 4 December. Sargeant Holland said to Bridges that he understood that he wished to talk to the police about some approaches he had had from the legal representatives of Hoar concerning Bridges' part in the recent conviction for illegal fishing. Bridges said that was so and began a long and somewhat rambling story, taken on tape and covering 11 pages. He recited that one, Bob Thornton, known to him as "one of the defendants" that came out to Marakai during the police investigations had accused him of being the biggest liar in Darwin and said that it was known he had been used by the police and fisheries because of what they "had over his head". He said that Thornton said it was known that the fish scales had been planted to convict Hoar and that he Bridges had been a party to it. That Thornton had also said to Bridges that he had been at the abattoirs on 4 January and that he had checked and there were no scales to be seen anywhere. Bridges no doubt knew that Thornton had been at the abattoirs on or about 4 January 1980. Thornton said he should see Loftus and in effect state the truth. According to Bridges' statement Loftus rang Bridges shortly after his conversation with Thornton and told him that he had information that Bridges had been dumped by the police and that he was interested in having a talk with Bridges along with Don Hoar, that Thornton had talked to them and that he Loftus had information that certain members of the police force had planted evidence out at Marrakai. Bridges said that Loftus asked him what he thought of Don Hoar and that Bridges said that he considered him a pig of a man and that he "felt at this stage he shouldn't have to help Don Hoar in any way at all. He owes me $1000." According to Bridges he added that if he did speak to Hoar it would have to be on a friendly basis at a proper arranged meeting. Loftus said he would get in touch with Hoar to get in touch with Bridges on Wednesday 3 December. Bridges said that when he came home on the Wednesday he thought "well, I'll just ring Loftus myself and see what he is up to". He did ring and asked Loftus if he had heard from Hoar and Loftus said he had not. Bridges said that he then said to Sargeant Holland "Now the reason I did this I can explain quite clearly". However, the explanation is not so clear. The statement to Sargeant Holland by Bridges contains various observations by Bridges which to my mind have significance in relation to the problem now before the Court. Thus:-
". . . I'd had a bit of a gut full of the whole issue, the reason being that there are still a number of people to be prosecuted yet and evidence to be given by myself in regards to these people. Don Hoar has an appeal going through at this stage and it would mean that if they could get at me at this stage then he would have a good chance of getting his, either another trial or getting his abattoirs back on appeal.

I just want the police to do a bit of a check into, find out what they are trying to do for me. I don't mind making arrangements with the police to have a meeting with Loftus and Hoar but if this was to take place I want the police to be in the vicinity so that they'd know what was going on. I've got to the stage now where I feel that if they want to have a talk to me I'll talk to them, I'll hear what they've got to say, but I'll only do it in conjunction with the police. I'm not going to be put in the middle of 2 arguments.

HOLLAND: Do you remember the conversation you had in the Mall with Thornton. Do you remember what the actual words were that he used?

BRIDGES: Yes, the first words he said to me were, good day Allan, how's the biggest bloody liar in Darwin. I sort of looked at the chap because I didn't recognise him at first. Then he said to me that evidence you gave against Don was, he said you know it was false, he said I was out at the abattoirs on January 4th and you know I looked all over the abattoirs, which he did, he said I went down through the vehicles and I checked and there wasn't any scales to be seen anywhere. How come in your evidence that you have in court that there was scales found inside those vehicles. He said there's only one answer to that Allan, he said you've lied. He said I want to help you and I can help you if you'll come forward and tell the truth. And I said "no". He said "what are you doing in Darwin at the moment", I said "I'm waiting for a house". He said "where are you living", I told him, I said "John Gabriel's, it was the only place we could get". We had a general discussion about what I was going to do for a job and I said I didn't know, I was waiting to get settled into my home first. He insinuated to me that the inspectors, the CIB and the fisheries that were on the case out there planted all the evidence in the abattoirs, that they found in the abattoirs and the vehicles. He said they'd been after Don for a long time and they were using me as a scape-goat to perjure myself to give false evidence and that I should consider going to Loftus and talking to him. Well I've got nothing to consider about talking to Loftus and if Loftus wants to ask me questions, I don't know of any police member when I was out at Marrakai that I saw pick up scales or put them anywhere near where photographs were taken. I did not know of any fisheries officers that fabricated evidence against anybody connected. In the times that I wasn't there on the site when police were gathering information my wife was always there and Ngaire swears, and says she'll still swear, that at no time when they took her around did they drop scales down or did they do anything like it has been insinuated. He did warn me that he was going to Loftus and he felt that I was getting a raw deal from the police because I was stuck back in Darwin. Now let me explain the story. The house I was living in on Groote was needed by the police force. The fisheries had been taken over, the house was a fisheries house, the police needed it. We were asked if we would come back to Darwin, that housing arrangements would be made here. Now I want you to know that Mr. Coutts, Mr. Everingham and Mr. Gaffy have got us a place which no-one is to know about, we have got a place to live, they have even gone to the trouble of paying out expenses. We did not ask for it, we never asked the police for a penny. It has been offered and we are grateful for what they are doing for us and this is why I've been in town so much lately, its because we are trying to find the cheapest furniture that we can buy to set up our home. I don't care what Loftus has been told, there's no truth in it, if they want to say that Mel Jones and Inspector Pope and the rest of the chaps, Phil Mitchell was one that was mentioned, Wayne Potts, Dick Lowe, Lex Mannix, now if they want to say that those men helped us to help the police fabricate evidence against Don Hoar and commit perjury in the Supreme Court on behalf of the police because they had something on my head, fair enough. Mr. Pope, I'm sure, along with Terry O'Brien, they knew I'd been trouble in the Isa, but I think I more than paid for my trouble in the Isa and I think I've done my job as a citizen. All I want to be is bloody left alone, but I will work in with the police if they feel that we can get something now against these people, especially Loftus, he's a bit of a con artist as far as I'm concerned by the way that he's going. I feel I should have a meeting with Loftus and all these fisheries and police names are brought out, therefore I will do it. But I will only do it in conjunction with the police knowing just what's going on. I feel it really should be brought into the open, to find out what evidence they've got, even if I've got a tape recorder hidden on me, they'll probably have one hidden anyway, so I can find out whose names they are going to bring up, who they are accusing, what it is they think I've lied about. They can check my evidence, they know any information I gave them, the police have . . ., they came out there and they checked and everything they found was 90% accurate of what I told them. I may have been wrong in a few small details but the simple facts were never wrong and the police know it and I bloody know it. If they want to do a deal, OK we'll do a deal and get it right out into the open because I've had a gut full, this is going to go on and on and on. Its got to stop somewhere."
Later Bridges said:-
". . . John (Gabriel) thinks we've been dumped. Now I haven't given him any reason to believe that we haven't been dumped for several reasons. Anything I told that man would go straight back to Loftus and he'd tell them plus add more to it, so Mr. Everingham, Mr. Coutts and Mr. Gaffy do not want anyone to know that the Minister has anything to do with getting us a state house because if they find out and the next trial comes up it will be one hell of a stink in the court, because they will think that an offer or some sort of payment, and especially if they find out about paying for our costs to come over here. You can understand my point of view, I've got to be careful what I say. And what was said to John this morning was, or what was said to my wife was that Don was more than prepared to pay the $1000, that Loftus wants a meeting with myself and Don as soon as possible, he wants the meeting before the appeal comes up and that Don Hoar would more than compensate us and look after us. Loftus actually rang me but I wasn't home.

. . .

. . . Gabriel is known to the police, he hates the police, he has told me himself when I tackled him on Tuesday he's going to do anything he can to get the police over you and me to give evidence against Don Hoar. He hates youse people, he'll do nothing but pick on you, he considers you a lot of arse-holes, he said you are always picking on him, he thinks the police pick on him for nothing. He's not very happy, I know he's a carrier of information. I know I shouldn't be staying at John Gabriel's but what the else can me and the wife do, we couldn't get a motel, we tried, we were told when we left Groote a house was ready for us but unfortunately it takes a little more longer than what people realise and the house on Groote was needed.

". . . What John has said that he . . . . also that I lied and committed perjury on behalf of the police and the fisheries. He said the fisheries were mongrels they got me to lie and so did the police. He said that he has told Loftus this himself, that the police put me under such pressure and held things over my head that if I didn't give this evidence they were going to lock me up or do whatever they wanted to. And as I've explained, at no stage ever have the police, you know they've had 10-11 months now. You see John is also claiming the reason they didn't prosecute me as an accomplice of Don Hoar is because I give evidence against him. I said to John, if it makes you feel any better I'll get them to prosecute, it's as simple as that if its going to make any difference. Look, I don't know what they are trying to do, if they want me to meet them, OK, its like I explained before, only with youse people knowing the time, the place because I don't trust them. Whether they got this information from Bob, whether he gave it to them verbally or how I don't know, I haven't seen the guy since. I don't know whether he's still in Darwin or out at Snowy Baker's in Sydney. I know he's a friend of Roy James Wright."
Thus it appears that the allegation that scales had been planted by police and fisheries officers was current shortly after the trial.

And out of the above, a question arises, namely, as to what reason actuated Bridges to follow up the idea put to him by Gabriel, Thornton and Loftus of having a meeting with Hoar. Bridges says it was to find out "what evidence they've got". Also "whose names they are going to bring up, who they are accusing, and what it is they think I've lied about". But he knew what the allegation was and if it was false, that it was false. Likewise if it was false he knew that the police and fisheries officers knew that the allegation was false. But Loftus had said to him that:-
". . . apparently Bob had come forward and given a statement or had a talk with them in regard to my evidence which was alleged to have been false in court and that I could be on a charge of perjury."
And it is difficult to resist the notion that Bridges was quite apprehensive that there might be evidence in existence that scales had been planted and was curious and even anxious to find out what it was. Indeed, was he warning a senior police officer of the danger? An honest man who knew there could be no such evidence and knew that the police and fisheries also knew this would hardly be taking the initiative to ascertain and investigate what false evidence was alleged to exist. If people were concocting false evidence it was a matter for the police rather than for him. But he had been curious right from the first conversations with Gabriel and Loftus and was supporting the notion of a meeting to discuss the allegations. If Bridges had not told the truth and knew there might be witnesses who would say so, it might have been useful for him to know how strong the evidence of his falsity might be. There was of course the suggestion of money in the air. Loftus had said Hoar would look after him. It could well have been that if Bridges were offered money he would be able with police support to silence Loftus and the others effectively. But as at 4 December 1980 Bridges had no intention of changing his evidence. He was committed to the prosecution because of his evidence at the trial, past favours and his current living accommodation, and there were future trials ahead. Also if he did change his evidence he would be vulnerable to a perjury charge. Yet his curiosity to know just what it was that Hoar, Thornton and Gabriel might have in the way of evidentiary material was real. In the end I form the impression that his conscience was not clear, that notwithstanding that police and fisheries officers were obviously committed to deny the planting of scales he still was anxious about the possibility of the existence of evidence of perjury and his curiosity was such that it prevailed over the advice of Mr. Gaffy not to have the conference with Hoar and Loftus.

As indicated above, on 4 December 1980 Bridges did say "Well I've got nothing to consider about talking to Loftus and if he wants to ask me questions, I don't know of any police member when I was out at Marrakai that I saw pick up scales or put them anywhere near where photographs were taken. I did not know of any fisheries officers that fabricated evidence against anybody connected." Thus he confirmed that he did not know how the scales discovered on 14 February 1980 came to be there. There was no ambiguity in his evidence at the trial. Over and over again he asserted that he had made the abattoir spotless. And this is probable. Whether there was meat refuse of fish refuse to be cleared up it was his duty to have cleaned the premises thoroughly and this he said he did by regular daily mopping, washing and otherwise cleaning.

From one point of view the probability is made stronger by the circumstances that Bridges says there was recurring talk of a possible fisheries department raid. On Bridges' evidence at the trial there is a strong probability that the scales discovered on 14 February were "planted". In that case he knew it. It would not be surprising therefore that he would wonder whether some person having the same knowledge as he had, had decided to come forward. And that was a matter for anxiety. As matters stood between Bridges and Sargeant Holland on 4 December it is not to be thought that Bridges could discuss the matter with senior police officers on the basis that anybody had fabricated evidence against Hoar. At that stage Bridges had no intention of going back on his evidence. Convictions had been recently obtained. The police and fisheries officers had given evidence inconsistent with misconduct on their part. True or false it was no occasion for Bridges to be casting doubt upon that matter. Accordingly, Bridges' statement to Sargeant Holland that he saw no relevant misconduct of either police or fisheries officers is of little significance in the solution of the ultimate problem.

The significant feature of the total content of the statement of 4 December is the expression of Bridges' determination to find out what evidence there was that he and the officers had planted the scales. Apparently Sargeant Holland did not respond to the suggestion that police should co-operate with Bridges to be in the vicinity of the place where the proposed meeting between Bridges and Hoar and the others was held or otherwise. In view of the attempt of Loftus and others to influence Bridges to back track on his evidence this is a little surprising. It would seem that no such meeting was ever held.

Between December 1980 and February 1982 there had been a sucession of legal proceedings on matters concerning the conviction and sentencing of Hoar. At the end of 1981, as a result of the lost appeal, Hoar, previously on bail, was returned to gaol to serve the outstanding months of his sentence.

Interviews of February 1982

The next relevant event concerning the alleged wrongful planting of the fish scales was that in February 1982 Bridges, in the company of his solicitor Mr. Doyle had a chance meeting with Loftus. Loftus spoke to them about the continuing allegation that he, Bridges, had committed perjury at the trial. Shortly afterwards Bridges and Loftus met again. Loftus again pressed Bridges about his alleged perjury. Mr. Doyle had also heard the allegation. As a result Bridges and Mr. Doyle discussed what Bridges ought to do. Bridges made a decision that he would tell Loftus the truth. An appointment was made. Doyle and Bridges attended upon Loftus and Bridges made a tape recording in their presence. When transcribed it covered eleven pages. This occurred on 24 February 1982. On 26 February Bridges and Mr. Doyle returned to Loftus' office. Loftus handed to Mr. Doyle an affidavit composed from the statement. It was perused by him and Bridges and later that day sworn by Bridges. The statement recounted, in the first place, that two days after Hoar had left the camp on 23 December 1979 the abattoirs were raided by nine fisheries inspectors and that during the last days of December he had continuous visits from police of various branches. It recounted also that on one night two CIB men came and said they had a warrant for Bridges' arrest for an unpaid fine incurred by him at Mt. Isa. They asked did Bridges acknowledge it and Bridges said "yes" and explained that Hoar had not paid him any money but if they held off he could get the money for them. The officers then said they were not really interested in payment but what they were interested in was information with regard to the activities that had gone on at Wild Boar during Bridges' employment there. Bridges said he had nothing to say. They told Bridges that he could expect a visit from two senior Fisheries officers from town who would like to speak to him "in regards to the alleged barramundi fishing which they believed was going on at Wild Boar during Bridges' period there". According to Bridges, two men one being Phil Mitchell and his "off sider" Wayne Potts arrived on 28 or 29 December. They produced a statement relating to the activities at Wild Boar during November and December. They said what they were interested in was the last four weeks of Bridges' employment there. Mitchell produced his identification as Senior Fisheries Inspector. They asked Bridges to go to Darwin with them to answer a few questions at the Fisheries head office. Bridges stated that he did this and spent from 7.00 p.m. that night until 5.30 a.m. the next morning being questioned by fisheries officers, the answers being reduced to writing. It would seem that Bridges' dates are astray and that what he describes took place on or shortly before 13 February 1980. The statement contained the following passages:-
"It was during the period of January up to the end of February that they took photo's of the abattoirs, they inspected the vehicles, the sheds, the lighting plant, did a complete comb of the camp area. I'd like to point out this time that all the vehicles had been reservised - all the batteries removed, all washed out and washed down and parked. The vehicles were clean as were the abattoirs, the drains, and around the vicinity of the abattoirs. It was during these two months that certain people from members of the Police Force and Fisheries put scales on the back of trucks and in the trucks and took photo's of these scales there. Scales were put on the ground at the back of the salt shed, photo's were taken of these. Scales were put around the abattoirs on the walls, stuck on the walls of the abattoir, along with the drains, in the drains and photo's of these were taken. The people were involved in this at the time were Tom Daven himself, Phil Mitchell, Wayne Potts, Terry O'Brian, Mal Jones and the other two people who were from the Police Force - I can't think of their names right at this moment.

. . .

When all this work was done I was instructed that at this stage that I wasn't to say anything to anybody about what the enquiries were and what was going on,

. . .

During the period of time that the scales were planted by the different officers that I have mentioned - what they would do, about a mile and half down the old Wild Boar road from the camp there was a scale dump that I used to dump stuff from the abattoirs myself in the mornings, there were six bags of scales from this area by Tom Davern, Phil Mitchell and Phil Mitchell's brother.

. . .

They said that if I was to give statements to them that they would tell me what was needed to be said. These facts would be given to Frank Gaffy who was acting as the Crown Prosecutor at that stage and that if Frank asked me about them I was just to tell them that that was what went on, that the scales were there and the time I cleaned the vehicles I must have overlooked them and didn't do it properly. The same thing in relation to the lino which I lifted off the floor which if lifted three weeks or even a month before this even happened, yet they got me to say in evidence that I lifted the lino in their presence at one corner of the abattoir and they found a big heap of scales there which they took photo's of."
According to the statement Loftus asked Bridges why he lied at the trial and Bridges replied:-
"Well, at the time I was told to say what I had to say by the big chiefs of the Police Force at the time. The chap in charge of the case was Terry O'Brian. His off-sider was Mal Jones.

(New tape). At the time Terry O'Brian, who was in charge of the case, said that any evidence I was to give they would let me know what to say and when to say it. They told me that if I did the fair thing with them they would do the fair thing with me at the time. They told me that they would look after me, set me up in Groote, give me free rent for the next twelve months, ship our gear over, ship our gear back. Also during this period of time they frequently came and saw me on Groote in the Police plane, just to make sure that I still felt the way I did about things."
The statement continued thereafter dealing mainly with alleged police coaching of Bridges regarding the evidence given by him during the five days he was in the witness box at the trial and the days on which he gave evidence at the committal proceedings.

On 2 March 1982 Bridges made a further statement at the office of Loftus in the presence of Mr. Doyle and Loftus articled clerk, Mr. Wallace. This statement was also taped. According to the transcript Wallace referred to page three of the earlier statement which dealt with the taking of photographs and other matters in January 1980. Bridges confirmed that Mitchell, Mannex, Potts and another man came out to Wild Boar and that Mitchell stuck the scales on this occasion to the back of the vehicles, in the salt shed and in the cab near the pedals of the driver's seat. Bridges said that scales were put on the base inside the shed and alongside the weighing machines. This he said, was done by Mitchell with Potts assisting and Tom Davern was also involved. Bridges said that he was present at the time of those activities. he said "there was a lot of people involved in the whole set up of Don. There was Davern, Mitchell, Potts, Inspector O'Brian - well he didn't have anything to do with putting scales down". Later there followed a passage which has some significance, namely:-
"Now look, the initial evidence set up by the Fisheries was a bloody plant and I'll bloody swear this to you, it was a plant man, I was there. That camp was bloody spotless. I'm letting you. That camp was bloody spotless. I can prove it was spotless. I've got witnesses that I can call if I have to in regards to this matter. I'm telling you that between January, from the time Don left, up until approximately February 1980, the Police weren't brought into it because the Fisheries wanted to set it up so that when the police did move in, they looked the big boys, and if they had Don to a certain stage to where the Police had to come into it, in other words, they had the evidence all in Fisheries Headquarters for Lex Mannex to run down like a little fat jolly jelly fish and hand it in to them here at Darwin Police Station, which he did. And Lex knew as well as anybody else, and so did other fisheries officers that weren't actually involved in the thing that these guys had discussed with in town how they had set Don up who originally came forward - two of these blokes came to see Loftus, but they were threatened by Fisheries and the Police not to come back. They came and saw Loftus and told him that Don was being set up, that it was a pack of lies. You know, this was the whole set up before the Police became involved. They had to have the evidence for the Police, and when the Police did become involved, the evidence was made even more to look good. When I went to Court and gave evidence I gave evidence as I was told to give it, and that's that. And I've had it on my conscience for a long time now, since 1979. I didn't like it any more than you do. I don't like to see anybody in trouble, and that's including myself, but that is the way it is."
There is of course much more in the fifteen transcript pages of this interview with Mr. Wallace. it is to be observed that in the end Bridges identifies Mitchell and Davern as the persons mainly engaged in planting scales around the camp and exonerates police officers from having been actually concerned in planting the scales.

Bridges made affidavits dated 27 April 1982 and 1 March 1982 deposing to matters the subject of the statements made to Loftus and Wallace. They were relied upon by the appellant in the application to the Full Court for extension of time to appeal against the conviction for conspiracy. Arising out of the making of those affidavits, Bridges was invited to attend upon Chief Superintendent Plumb who desired to investigate the allegations for official police purposes. This investigation was conducted over some fourteen or fifteen days on most of which for some lengthy period Bridges spoke into a tape recorder in answer to questions from the Superintendent. On 10 May 1982 in one of the interviews the following passage ensued:-
"PLUMB ". . . I denied knowledge of how the fish scales came to be there". Now, what's the story with that? I think that you did tell me earlier that Police were not involved . . .

BRIDGES: That is correct.

PLUMB: . . . in any planting of any scales.

BRIDGES: No Sir, they were not.

PLUMB: Now, exactly, can you tell me for the record now, what scales were planted? Are you alleging that there were scales planted?

BRIDGES: Yes sir, scales were planted sir, yes.

PLUMB: Now, that was by who?

BRIDGES: That was by Phil MITCHELL sir, of the Fisheries and also Tom DAVERN, Senior Fisheries Officer at that time and I aided them with a few scales myself sir, down the bottom shed where the vehicles were parked."
Then followed a detailed narration of activities of Mitchell and Davern carried out on 14 February 1980 in which they planted scales in various parts of the abattoirs including vehicles thereon. Superintendent Plumb referred to para. 4 of the affidavit of 1 March 1982 and the following passage ensued:-
"PLUMB: . . . we come to para 4, and you said "In fact I was present when certain police officers and fisheries officers placed the scales in the abattoir, on the ground, at the back of the salt shed, in the drains and in the vehicles, at the abattoir." You've mentioned in here Police Officers. Is that true or false?

BRIDGES: Sir, I don't even remember saying to Loftus it wasn't my suggestion of the Police Officers. That's all I'm saying to that. I've always only ever claimed as, as my wife has, will back me up on it, there was only fisheries officers involved in the setting up of the scales sir.

PLUMB: Well, why was Police Officers put in here, in this affidavit?

BRIDGES: I don't know sir.

PLUMB: You're telling me as I understand it, that this was your solicitor's idea, or Loftus' idea.

BRIDGES: That affidavit sir, was done with Loftus himself.

PLUMB: Loftus himself prepared this affidavit?

BRIDGES: Yes sir.

PLUMB: And did you read it when you signed it?

BRIDGES: I didn't, I, I don't know sir, at that time, I'm not sure sir. I got, I didn't get any copies of any affidavits until I came and gave myself up on the twenty seventh."
It is of course impossible to accept Bridges' explanation as to the origin of his statement that police officers were involved. The allegation against police officers is plainly made in the transcript of the tape of 24 February. It was in the statement to Mr. Wallace of 1 March that one meets the first intimation that police were exonerated.

Evidence on this Appeal

A similar pattern of deposition occurred at the hearing before this Court. On the first day of hearing Bridges swore to the truth of his affidavits of 1 March, and specifically swore that the police officers had been involved in planting scales at the abattoirs. The next day he stated that police officers were not involved. He had no explanation as to how he had sworn the previous day that they were. Nevertheless he steadfastly maintained that the fisheries officers, in particular Mitchell and Davern had planted the scales. In effect he confirmed what he had said in his statements of 24 February, 1 March and 10 May about fisheries officers being involved. The only occasion since the trial on which he departed therefrom was in his interview with Sargeant Holland. As mentioned above that can have no real significance.

It is clear that counsel for the respondent placed considerable importance on obtaining Bridges' agreement that Bridges did say that he did not see police or fisheries plant scales to Sergeant Holland. His method of doing this was to ask Bridges, while in the witness box, to read the transcript, which he had not seen before, of the whole eleven pages of his interview with Sergeant Holland, then to proceed as follows:-
MR. WALL: Can you tell the court, if you would, whether or not what appears in that record from page 1233 to page 1243a is a correct record of what was said at that interview with Sergeant Holland on 4 December 1980? --- I would say it would be, sir, yes.

It would be. Now, I do not want to have any doubt about this? --- I would say that it would be correct then, sir, yes.

It is correct? --- Yes.

Every word in that document to the best of your recollection is correct? --- Yes, sir.

You do not want to have the tape played. You are able to say ---

TOOHEY J: Do you mean correct as a matter of record, Mr. Wall?

MR WALL: Correct as a matter of record, yes.

It is correct as a matter of record? --- Yes.

Right, I just want that established. Do you tell this court that what you said at that time in this record to Sergeant Holland was true? --- Yes, sir.

So you are telling the court that when you told Sergeant Holland those matters that are set out in that record, what you told him was the truth? --- That is correct."
The witness' attention was not directed to the critical passage which was on page 1238 and was quite short. The argument was then addressed to the Court that by this short passage the Court should be satisfied that before this court there had been a conscious withdrawal of the allegation that fisheries officers were involved in the fabrication of evidence. And it was in this way, so it was said, that it was established that the allegations against the fisheries officers, as distinct from police officers, were withdrawn. However, I would consider the method of cross-examination employed to be most unhelpful to the court. Any critical admission of a statement made, if it is to be relied upon, would need to be drawn to the attention of the witness and not wrapped up in a general way as attempted in the passage above. It is clear that had the passage been brought to Bridges' attention and been asked whether he still adhered to it he would have said "No". In his evidence before this Court one matter about which he remained firm, and with a degree of persuasive force, was the planting of the scales by, in particular, Mitchell and Davern. Thus in cross-examination he said, "I do not remember about the police officers and definitely the scales were put there by fisheries officers who I have named and who I still name today, as being the official people that planted the scales at the abattoirs". If Bridges had had the critical statement to Sergeant Holland drawn to his attention and he had been asked if it was true he obviously on this occasion would have replied in the negative. When asked why he said it, the obvious comment, whether it would have been made by Bridges or not, would have been that at that stage the notion of departing from the common front of those concerned in fabricating the evidence was just not to be entertained. It was therefore useless for respondent's counsel to leave his cross-examination on the critical question, as a matter of substance, quite unspecific and unfinished.

The matter is of some importance because, once it is seen that the statement to Sergeant Holland lacks significance the allegation made against the fisheries officers remains in full force from the time it was first made. When given in evidence in this Court it is the only evidence on the issue. Counsel argued that because of the critical statement to Sergeant Holland the Court should act on the basis that there is no evidence to support the allegation. But this is not so. The problem is one of evaluating the evidence given on the issue to this Court. It is said that there have been contradictions and changes that indicate that Bridges is "a pathetic figure", who "will say anything". If that submission be taken to its logical conclusion the case might well be one in which this Court should take the view taken by the High Court in Davies v. The King (1937) 57 C.L.R. 170 that the evidence of a critical witness was so lacking in credibility that the verdict should not, on that account be allowed to stand. It is said by the respondent that the evidence of Bridges at the trial was satisfactory but today it is not. The change is said to be due to pressures upon Bridges which have developed since the trial. But there were pressures on him at and before the trial. Thus his co-operation with the police stemmed originally from circumstances concerning a police night visit with a threat of arrest for non-payment of a fine and an indication that what the police wanted was not to arrest him but to get information. And there were benefits afforded to Bridges in the form of accommodation and employment while he was a co-operative witness. There was also an underlying uncertainty as to whether he might have been charged as an accessory to the charge against the appellant and the others. So far as pressure since the trial is concerned there is little evidence, save recurring allegations to Bridges that he had committed perjury at the trial, none of which were denied by him. As to the allegations of threats against Bridges' life those threats, if ever made, which I doubt, did not deter Bridges at the trial. And even now, neither they, nor the desire of Bridges to obtain his wages from Hoar, deter him from continuing to assert the guilt of Hoar and Noble.

Respondent's Evidence in the Appeal

Accordingly, there is evidence which according to circumstances, this Court may act upon. One of the circumstances is the ability of the respondent to contradict that evidence. In this case the two persons specially accused by Bridges were available to give evidence. But the respondent deliberately refrained from calling them as witnesses. At the same time the respondent did submit some evidence, namely in the form of an affidavit by one Potts, a police officer. That affidavit throws no light on the critical issue before the Court. When asked why evidence by Potts was submitted and evidence of Mitchell and Davern withheld, Counsel replied:-

"MR WALL: What finally emerged was Davern and Mitchell left as those who were implicated in wrongdoing. Potts had been implicated by him, but he agreed that after listening to the tapes that Potts was not implicated. That is the reason why the Crown put on the affidavit by Potts, because Potts alone, of all the fishery inspectors, was untainted by this stain of corrupt practice that Bridges was casting widely over the officers of the law enforcement agencies in this territory. So it would not have been much point to enter into a contest with Davern and Mitchell and Bridges. There had been evidence given at the trial by Davern and Mitchell ---

. . .

SMITHERS J: I know, but that is not the point. Here are allegations made, which I understand throughout have been made and persisted in that Mr. Mitchell and some other - I have forgotten his name now.

MR MURRAY: Davern, your Honour - Davern and Mitchell.

SMITHERS J: Davern and Mitchell were there early in the piece, and that they were guilty of the plant. Here we were faced with this problem, and are now: to what extent is this man to be believed, if at all? What is the good of putting on an affidavit by Mr Potts, who adds nothing to it, when Mr. Davern and Mr Mitchell would be able to guide us by their oaths?

MR WALL: Mr Davern and Mr Mitchell have not recanted their oath at any time. They gave evidence on oath at the trial as to their activities. They were subjected to cross-examination.

SMITHERS J: Yes, but these are different activities from those which they were asked about at the trial. Nobody suggested to them at the trial that they had been planting ---

MR WALL: Your Honour, it would be wrong in our respectful submission to have, in effect, on the hearing of this appeal a retrial of those issues that ---

SMITHERS J: But it was not tried. It is the very thing that was not tried and the very thing that is being tried in a sense here."
I remain mystified by the explanation given. The fact that Mitchell and Davern were implicated and could give the very best kind of evidence on the issue was to my mind a compelling reason to call them. The situation is that, there being evidence that they were guilty of most reprehensible conduct, they have not been put forward to refute the accusation. One would have thought that the Crown would have been insistent upon demolishing once and for all the slur cast upon its officers and the probity of its administration of the criminal law. If the evidence had been called this Court might have been able to declare that the slur was quite unfounded. That would be quite different from merely declining to act upon the evidence of Bridges. In a matter of this kind there is of course a public interest. It is a reasonable view that even if this Court felt unable to act upon Bridges' evidence the slur might well not be entirely removed. Questions would remain as to why the fisheries officers did not deny that they fabricated evidence. If it be the fact that there is no substance in Bridges' evidence that the fisheries officers fabricated evidence that fact is known to the Crown.

In a case of this kind it is imperative that the Court be made aware of evidence, if there be any such, which would indicate that the allegations made by a witness such as Bridges is itself a fabrication. In a case where that is not done there is danger that an appeal court may be misled with the result that a conviction is erroneously set aside. It is apparent that there is always the danger of such a consequence where a witness asserts that the evidence given by him at the trial was false and deposes to new facts. Where that assertion is itself false, and there is evidence available to those upholding the conviction to prove that it is false, every consideration of both the public interest and desirability of maintaining the conviction in question points to the necessity of placing such evidence before the Court of appeal. It is hardly to be thought that the respondent does not appreciate the validity of these comments. The allegation made by Bridges strikes at the root of the administration of criminal law. It being made by a person who at the time was put forward by the Crown at the trial as a witness of truth, one would have expected the Crown to leave no step untaken to scotch the notion that the officers of the Crown had been guilty of the misconduct alleged. Yet the one obvious step was not taken. And the explanation for not taking it is quite absurd, so absurd as to leave me with a deep sense of disquiet.

The issue as to whether or not scales were planted by the fisheries officers as alleged by Bridges is of fundamental importance in this case because if they were then it is manifest that the trial miscarried because it was not a fair trial and as a consequence the verdict could not be allowed to stand.

In a criminal case where the onus is on the Crown, the accused is entitled to remain silent and no inference unfavourable to him may arise from that silence. The present proceedings are different. Here an issue has arisen between a convicted person and the Crown as to whether certain of the evidence against him was fabricated, and as to whether Bridges committed perjury in saying that he did not know how the scales found at the abattoirs on 13 February came to be there. The appellant carries the onus of satisfying this Court, at least, that in the words of Widgery J. in Fowler v. Regina (1966) 1 Q.B. 146 the evidence of Bridges in this appeal is such that the Court would think that it might be acceptable to and believed by a jury. There are reasons why this Court may so think. It was said by Menzies J. in Jones v. Duke (1958) 101 C.L.R. 298 at p.312 that in a civil case a proper direction should make it clear that:
(i) the absence of the defendant as a witness cannot be used to make up any deficiency of evidence; and

(ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence.
In the same case at pp.320 and 321 Windeyer J. referred to observations in Wigmore on Evidence 3rd Ed. (1940) Vol. 2 s.285 p.162 which support these words of Menzies J. He added "Unless a party's failure to give evidence be explained it may lead rationally to an inference that it would not help his case". He referred to Morgan v. Babcock & Wilson Ltd. (1929) 43 C.L.R. 163 at 178, Insurance Commissioner v. Joyce (1948) 77 C.L.R. at pp.49 and 61, Black v. Tung (1953) V.L.R. at p.634, Waddell v. Ware (1957) V.L.R. 43 and Ex Parte Jones; Re Macreadie (1957) 75 W.N. (N.S.W.) 136.

The failure of the respondent to call the fisheries officers is explained as stated above. In reality one must conclude that the respondent simply decided to rely upon persuading the Court that the evidence of Bridges was so poor in quality that it could not be believed, or that this Court should be of opinion that it would not be believed by a jury. But I am not so persuaded.

In respect of each of the grounds on which the appellant's case is based I would consider that the onus is upon the appellant to establish it to the satisfaction of the Court as on a balance of probabilities. The respondent's attack on the credibility of Bridges is supported by reference to his contradictory statements and indeed his admission of perjury. With respect to a person such as Bridges the problem is to determine which of his assertions is to be believed. In coming to my conclusion in this case I have had regard to the matters discussed above in these reasons and summarise the more significant as follows, namely,
(a) the circumstance that at the trial the evidence pointed to the placing of scales in question otherwise than in the course of or as the result of any operations of the appellant and at a time irrelevant to the guilt of the accused;

(b) the probable presence of police and fisheries officers at the abattoir in December 1979 and January 1980 when they might have been expected to have seen the scales had they been in and about the abbattoirs and the vehicles thereat as a result of operations of the appellant;

(c) the absence of any refutation by Bridges of the allegations that he had perjured himself which were made by Gabriel, Thornton and Loftus some six weeks after the conviction of Hoar and Noble.

(d) the relationship between Bridges and Gabriel being quite close and genuine on Gabriel's side at least, it would be surprising, if Bridges had not committed the perjury alleged that Bridges would not say to Gabriel something to the effect, that, surely Gabriel did not think he would be guilty of framing Hoar by committing perjury;

(e) the curiosity of Bridges with respect to the evidence which Loftus and Hoar and his friends were said to have to the effect that the scales in question had been planted and indeed his anxiety in that respect.

(f) the persistence with which, although admitting to wrongly including the police officers as being involved in planting scales, Bridges maintained that the named fisheries officers were so involved; and

(g) the demeanour of Bridges at the hearing in respect of the allegation against the fisheries officers.

On the evidence before this Court going to the issue as to whether it should be so satisfied that Bridges did commit perjury and the officers did plant the scales as is now alleged, I am so satisfied. Accordingly, the appellant was not afforded a fair trial and the verdict should therefore be set aside. And the same result is reached by reference to the answers to the critical questions whether had the evidence of Bridges of the relevant matters now sworn to by him been given at the trial it might have been believed by the jury, and if it were, would it have removed the certainty of the appellant's guilt which the evidence at the trial induced. I am of opinion that the answer to these questions is in the affirmative. The kind of problem which is before this Court in this case is discussed by Widgery J. speaking for the Court of appeal in Flower v. Regina (1966) 1 Q.B. 146. He said, at pp.149 and 150:-
"Having heard the fresh evidence and considered the reliability of the witness, this court may take one of three views with regard to it. First, if satisfied that the fresh evidence is true and that it is conclusive of the appeal, the court can, and no doubt ordinarily would, quash the conviction. Alternatively, if not satisfied that the evidence is conclusive, the court may order a new trial so that a jury can consider the fresh evidence alongside that given at the original trial. The second possibility is that the court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the court would no doubt be inclined to order a new trial so that that evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course. Then there is a third possibility, namely, that this court, having heard the evidence, positively disbelieves it and is satisfied that the witness is not speaking the truth. In that event, and speaking generally again, no new trial is called for because the fresh evidence is treated as worthless, and the court will then proceed to deal with the appeal as though the fresh evidence had not been tendered".
It would appear from these observations that a new trial should be ordered not only where the court hearing the appeal is satisfied that the fresh evidence is true, but also, where the Court not being so satisfied, is satisfied that a jury might have considered it to be true and would in consequence have failed to reach certainty as to the guilt of the appellant. As indicated it is my opinion, on the evidence before this Court that, the appellant's case more than satisfies this last mentioned standard.

The Indictment

Concerning the contention that the indictment for conspiracy was invalid for duplicity I agree with the views expressed by my brother Toohey in his reasons for judgment. I also agree with his views so expressed concerning the effect of the declaration published in Gazette No. G34 of 24 August 1979 concerning the closure of waters.

The order of the Court should be :
(i) that the appeals against the conviction and sentence in respect of the charges of assaulting a police officer in the execution of his duty contrary to s.51 of the Criminal Law Consolidation Act and wilful obstruction of a police officer in the due execution of his duty contrary to s.51 of the Criminal Law Consolidation Act be dismissed;

(ii) that the appeal against the verdict, conviction and sentence in respect of the charge of conspiracy to commit an offence against the law of the Territory contrary to s.53 (1) (a) of the Criminal Law and Procedure Act be allowed and that the verdict and conviction dated 17 October 1980 and sentence thereon in respect of the charge of conspiracy be set aside and a new trial ordered.

Accordingly the procedure adopted by the Full Court of the Federal Court of Australia in Helmout v. The Queen (1980) 49 F.L.R. 1 should be followed. Thus the appellant must be remanded in his present custody to stand trial before the Supreme Court of the Northern Territory on the indictment relating to the charge of conspiracy. The possibility of acquittal requires that the application for bail pending retrial should be disposed of as quickly as possible. It is an application which we think ought to be left to the Supreme Court of the Northern Territory. That is the Court before which any retrial must take place and before which the applicant must be remanded to appear.

JUDGE2

The background

On 17 October 1980, in the Supreme Court of the Northern Territory, the appellant was convicted of three offences. They were -
1. Conspiracy to commit an offence against a law of the Territory, contrary to s.53(1)(a) of the Criminal Law and Procedure Act.
The allegation was that the appellant along with six other persons, between 1 October 1979 and 28 February 1980, at Darwin, Wildboar and other places in the Northern Territory and at Melbourne, conspired and agreed to take barramundi during the closed season and to take barramundi upstream from permitted waters.

2. Assaulting a peace officer in the due execution of his duty, contrary to s.51 of the Criminal Law Consolidation Act.

3. Wilful obstruction of a peace officer in the due execution of his duty, contrary to s.51 of the Criminal Law Consolidation Act.

The second and third offences related to an incident at Katherine on 21 February 1980 when the appellant was alleged to have assaulted and obstructed Phillip Anthony Mitchell, an officer of the Fisheries Department.

The appellant was acquitted of a charge of conspiring to obstruct the administration of justice in the Territory, a charge which alleged that the appellant and Jack Harry Noble, between 1 December 1979 and 28 February 1980, at Darwin, Wildboar and other places in the Northern Territory, conspired to set traps on various roads or tracks leading to and from Wildboar abattoir to prevent or hinder police or fisheries officers from observing operations by the appellant and others contrary to the provisions of the Fisheries Act; and that they threatened injury or death to persons who witnessed those activities, for the purpose of inducing them to withhold evidence.

On 23 October 1980 the learned trial Judge imposed the following sentences on the appellant:
For the offence of conspiracy - a term of imprisonment for three months, suspended upon the appellant entering into his own recognizance in the sum of $1,000 to be of good behaviour for three years.

For the offence of assaulting a peace officer - a fine of $150.

For the offence of wilfully obstructing a peace officer - a fine of $150.

In addition his Honour ordered forfeiture of certain plant and equipment and of two motor vehicles. The Crown appealed against the sentence imposed on the conspiracy charge and the appellant appealed against the order for forfeiture. On 10 March 1981 the Full Court of the Federal Court upheld both appeals, substituting a term of imprisonment for 14 months, with a non-parole period 6 months. The Court also allowed the appeal against forfeiture on the ground that in the circumstances there was no entitlement to make that order.

The Crown then appealed against the decision of the Federal Court that forfeiture was not authorised. On 4 December 1981 the High Court dismissed that appeal.

In none of these proceedings did the appellant challenge his conviction for the offences of conspiracy, assault and wilful obstruction.

The appeal

On 8 April 1982 the Full Court of the Federal Court gave the appellant leave to file and serve a notice of appeal against his convictions, the time for appealing long having expired. The ground of the application for leave to appeal out of time was that it had emerged that Allan Michael Bridges, a Crown witness at the appellant's trial, had admitted giving perjured evidence at that trial. The details of those admissions and the circumstances in which they were made are of course vital to this appeal; but it is enough, at this stage, to note that they formed the basis of the order made by the Full Court. Pursuant to that order, notice of appeal was filed, the grounds of appeal being as follows:
"(a) That since the date of conviction there is fresh evidence that a witness or witnesses for the Crown committed perjury in respect of material matters of his or their evidence.

(b) Without such perjured evidence the appellant would not or ought not to have been convicted".

Subsequently the notice of appeal was amplified by the addition of grounds, described as supplementary and relating to the validity of the convictions.

The grounds of appeal were further amended at the hearing and it is important that they be set out in full.
"2. The grounds of the Appeal are:-

(a) That since the date of conviction there is fresh evidence that a witness or witnesses for the Crown committed perjury in respect of material matters of his or their evidence.

(b) That without such perjured evidence the appellant would not or ought not to have been convicted.

(c) That all of the evidence of the witness Bridges at the Trial has been shown to be so unreliable and completely untrustworthy as to make reliance on Bridges unsafe and that without such evidence the appellant would not or ought not to have been convicted.

(d) Alternatively to (c) that the evidence of Bridges in this Appeal is at least cogent and plausible on the point of fabrication of evidence at the trial or may be considered by a jury to be cogent and plausible on that point and for that reason the conviction should be quashed or a new trial ordered.

(e) In addition to (d) it is the province of a jury to determine which parts of Bridges evidence is to be believed and as there is now material which a jury might consider to be cogent and plausible on the point of fabrication of evidence at the trial, the conviction should be quashed or a new trial ordered.

(f) That material is now available of fabrication of evidence upon which the relevant Fisheries Officers could be cross-examined with allegations of fabrication of evidence which allegations could not have been responsibly made at the trial and therefore the conviction should be quashed and a new trial ordered.

(g) That the particular circumstances of this case are so unusual that it is unsafe to allow the conviction to stand and it should be quashed or a new trial ordered.

3. The supplementary grounds of the Appeal are:-

(a) That declaration published in Gazette No. G34 of 24th August 1979, was invalid and therefore no offence had been committed under particulars part (1) of the first count in the indictment.

(b) That the basis of the conviction might have been as to time only and not as to geography and as it is not possible to ascertain the basis of the conviction it should be quashed.

(a) LATES CALCARIFER, commonly known as "barramundi";

(b) POLYNEMUS SHERIDANI, commonly known as "threadfin salmon".

from 1 October 1979 to 31 January 1980, inclusive.

Dated this seventeenth day of August 1979".
As can be seen the declaration purports to close "all waters" against the taking of barramundi. The authority for such a declaration must be found in s.13(1) of the Fisheries Act (now repealed). That sub-section empowers the Administrator in Council, by notice in the Gazette, to declare -
"any waters specified in the notice to be closed -

. . .

(d) against the taking of fish during a period or a part of the year specified on the notice;

(e) against the taking of fish of a specified species;"

The attack upon the declaration was in terms that an authority to declare "any waters" to be closed is not an authority to declare "all waters" to be closed.

In my view this ground of appeal cannot succeed. To begin with, the declaration under attack is not one that purports simply to close all waters. It is a declaration that closes all waters against the taking of specified species of fish for the period therein stated. If a declaration relates to particular waters, it will be necessary to define those waters either by reference to a plan or to a metes and bounds or some other description capable of identifying the waters. But, as a matter of language, there is no reason why an authority to make a declaration relating to "any waters" should not authorise a declaration relating to "all waters". The whole is the sum of the parts and what may be attained by piecemeal declarations may equally be attained by a declaration in general terms.

There is no principle of law that requires subordinate legislation to be self-contained. As Walsh J. pointed out in Wright v. T.I.L. Services Pty Ltd (1956) S.R. (N.S.W.) 413 at pp.421, 422:
"The general proposition that in no circumstances can a regulation incorporate by reference something not set forth in it is, in my opinion, unsound. It is true that a regulation should indicate with sufficient certainty, to those upon whom it imposes a penalty for a breach of it, what is the extent of the obligation. Where a regulation contains a reference to some other document the question whether or not the requirement just stated is fulfilled must depend upon a consideration of the particular regulation and of the nature of the contents of the incorporated document".
See also Gibbs J. in Sobania v. Nitsche (1969) 16 F.L.R. 329 at p. 342.

I agree that if, in the present case, it is not possible to give to the term "all waters" a sufficiently certain meaning the declaration is bad for it fails to identify the extent of the prohibition it seeks to impose. But is that the case? In Messel v. Davern (unreported decision of Supreme Court of the Northern Territory delivered 2 April 1982), Gallop J. held the declaration the subject of this appeal to be invalid. His Honour referred to the definition of "waters" in s.5(1) of the Fisheries Act which reads:
"'waters' means the waters of the Territory and includes -

(a) the internal waters of the Territory;

(b) any part of the sea in respect of which the Legislative Assembly has power to make laws, under and in accordance with section 6 of the Northern Territory (Self-Government) Act 1978 of the Commonwealth, with respect to fisheries; and

(c) the sea-bed and subsoil beneath any such waters".
His Honour then referred to s.20 of the Interpretation Act which gives to words contained in an instrument of a legislative or administrative character the same interpretation as they bear in the Act pursuant to which the instrument is created. It followed therefore that "waters" in the declaration had the meaning that it bears in the Fisheries Act.

However his Honour read the definition of waters in such a way that the declaration might relate to categories (a), (b) or (c) or all of them. In that event it would not be possible for a person reading the declaration to know what waters were referred to. In my respectful view, the categories in the definition of "waters" in s.5(1) are not alternatives. Between them they constitute the waters of the Territory and any waters which answer any of the descriptions in the definition fall within the declaration.

The appellant did not argue that if paras (a), (b) and (c) of s.5(1) were read as comprising the notion of "waters", there was still doubt as to the scope of the declaration. Nor did he contend that the waters in respect of which he had been charged were outside the terms of the declaration.

The indictment - bad for duplicity or multiplicity?

As originally formulated the notice of appeal contended that count 1 in the indictment was bad for duplicity and was confusing to the jury; and that the trial Judge erred in allowing that count to go to the jury and in the directions that he gave in respect of it. As the notice of appeal finally emerged, this ground was amended so as to allege multiplicity rather than duplicity, though it was argued in terms of the latter.

Count 1 is the charge of conspiracy and, in order to understand the appellant's submission, it is helpful to set out the count in full.
"Conspiracy to commit an offence against a law of the Territory: Contrary to section 53(1) of the Criminal Law and Procedure Act.

Particulars

DONALD EDGAR HOAR, JACK HARRY NOBLE, PETER DOUGLAS FOREMAN, ROY JAMES WRIGHT, ELAINE MICHELLE MARY KIRWIN, ROBERT GORDON CAMERON, DARRYL JOHN WALDOCK, THOMAS BENJAMIN PRICE and others unknown between the 1st day of October, 1979 and the 28th day of February 1980 at Darwin, Wildboar, and divers other places in the Northern Territory of Australia, and at Melbourne in the State of Victoria conspired and agreed together, to commit the following offences:

(1) To take barramundi during a period of the year declared by the Administrator acting pursuant to section 13(1) of the Fisheries Act to be closed against the taking of barramundi and published in the Northern Territory Government Gazette.

(2) To take barramundi upstream from a line determined by the Administrator under section 14 of the Fisheries Act: Contrary to section 38 of the Fisheries Act."

The appellant contended that the count was effectively one in respect of two offences and that it was therefore bad for duplicity. This point was not taken at the trial and counsel for the respondent objected to an application for leave to add it as a ground of appeal. Counsel drew our attention to s.341 of the Criminal Law Consolidation Act whereby
"Every objection to any information for any formal defect apparent on the face thereof, shall be taken by demurrer, or motion to quash such information, before the jury are sworn, and not afterwards".
But regard must be had to the Indictment Act, s.18 of which makes it clear that before or at any stage of a trial the court may amend an indictment which is defective unless, having regard to the merits of the case, the required amendment cannot be made without injustice. If there is substance in the appellant's complaint regarding the indictment, I do not think that complaint is barred by reason of the appellant's failure to raise it during the trial. At the same time that failure is clearly a relevant consideration in determining what weight should be given to the complaint and, in particular, whether any miscarriage of justice occurred.

In my view count 1 in the indictment was not bad either for duplicity or multiplicity. The appellant's submission, I think, misunderstands what the indictment alleges. It alleges a conspiracy to commit an offence against a law of the Territory and that conspiracy is the offence the subject of the indictment. A conspiracy to commit an offence is itself an offence by reason of s.53(1)(a) of the Criminal Law and Procedure Act. Essentially what is alleged against the appellant and the others with whom he was charged is that they conspired to engage in illegal fishing for barramundi and that the fishing was illegal both because it took place during the closed season and because it took place in closed waters. The Crown might make good either or both of what are truly particulars of the substantive offence alleged. If the Crown failed to make good either of those particulars, it failed to make good the commission of an offence.

In charging the jury the learned trial Judge said:
"So that if these 2 or others, either the named people or other people unnamed, agreed to take fish illegally in either or both of these 2 ways then you may properly find each one of them guilty of that first conspiracy".
That direction was properly given. It was not confusing and caused no injustice to the appellant. If the jury were satisfied that there was a conspiracy to commit an offence by taking barramundi during the closed season, they might properly convict. If they were satisfied that there was a conspiracy to commit an offence by taking barramundi from closed waters, equally they might convict. A fortiori, if they were satisfied that the conspiracy extended to both aspects of illegal fishing they were entitled to convict. If they were not satisfied that there was a conspiracy to take fish illegally in either of the two ways specified in the indictment, they were obliged to acquit the appellant. It may properly be inferred from the jury's verdict that they were satisfied that there was a conspiracy and that that conspiracy was to take barramundi illegally, during the closed season or from the closed waters or both.

No attack is now made on the declaration under s.14 of the Fisheries Act. For the reasons appearing earlier in this judgment, the challenge to the declaration under s.13(1) of the Fisheries Act cannot succeed. Both declarations were therefore lawful exercises of power and in my view the indictment of conspiracy is not open to challenge.

It follows then that this appeal must be dismissed.

JUDGE3

I have had the opportunity of reading the reasons for judgment prepared by Mr Justice Smithers. I agree with them and I add a brief statement of my own only because this is an unusual case.

At the trial, the principal witness for the Crown was Mr A.M. Bridges. It is unlikely that a conviction could have been obtained without his evidence. The evidence of the police officers and the Fisheries officers as to the finding of barramundi fish scales at the abattoirs may not itself have established with sufficient precision the time and place of the taking of the barramundi. Moreover, Mr Bridges' evidence was necessary to connect the appellant with the fish scales found by the police and Fisheries officers.

The effect of the evidence given by Mr Bridges to this Court is that the appellant did not have a fair trial because false evidence was given by Mr Bridges and Fisheries officers and photographs were put in of fish scales which had been planted by Fisheries officers with a view to obtaining a conviction. When such an allegation is made after a trial, this Court on appeal may hear evidence. As Barwick CJ said in Ratten v The Queen (1974) 131 CLR 510 at pp.515-6,
'...this Court has recently reiterated the view that under the Australian provisions a court of criminal appeal in Australia should allow an appeal if on its own view of the evidence it would be dangerous or unsafe in the administration of the criminal law to allow a verdict of guilty to stand (Hayes v The Queen (1973) 47 ALJR 603). This decision may not have disclosed as great a discretion in a court of criminal appeal in Australia, as the decision of the House of Lords in Stafford v Director of Public Prosecutions (1974) AC 878 has done for the United Kingdom. But the Court's decision is founded on the existence of the function of independent assessment of the evidence by the court of criminal appeal.'

His Honour further said, at pp.519-20,

'In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take.

Of course, it may be said, as was said in Stafford v Director of Public Prosecutions (1974) AC 878 that the view of the court must be taken to be a reasonable one, and a contrary view, by whomsoever held, to be an unreasonable one : and no doubt at times this must be so. But I conceive that there may be reasonable views of facts which do not commend themselves to the court which do not become unreasonable because the court does not entertain them. In the situation with which I am presently dealing, namely of fresh evidence not claimed to establish innocence but to be of such credibility and cogency as to be likely to influence a jury away from a verdict of guilty, it is what a reasonable jury might reasonably make of this evidence which is the dominant consideration. Of course, if the court thinks that there is no doubt that its own view of the evidence is the only reasonable view, it will act upon that view as one upon which the jury would be bound to act.

To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence."

The same principle was stated by Widgery J in Regina v Flower (1966) 1 QB 146 where his Lordship said, at p.150,

'The second possibility is that the court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the court would no doubt be inclined to order a new trial so that that evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course.'

In weighing up the evidence, the Court must keep in mind the stricture of Rich and Dixon JJ in Craig v The King, 49 CLR 429 at 439, where their Honours said :

'If after a verdict of guilty the mere fact that a prisoner produced further relevant evidence required the Court to vacate the conviction and submit the question of the prisoner's guilt to another jury, then in a jurisdiction where perjury is rife great abuses would ensue. A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.'

During the trial, there appeared to be inconsistencies in Mr Bridges' evidence that he was given by the appellant the task of cleaning the abattoirs of fish scales, that he did so and left the abattoirs spotless, that police and Fisheries officers were often around the abattoirs and did not see any scales and yet, when police and Fisheries officers inspected the camp and abattoirs in late February and early March 1980, they found the fish scales of which photographs were tendered in evidence. The following are examples of the cross-examination which ensued :

'And daily you were being visited by fisheries and police _ daily?-Yes, sir, I was.

Sometimes convoys of Fisheries officers?-Yes, sir.

Five vehicles?-That is correct.

Did you know what they were looking for, Mr Bridges?-At first I didn't sir _ _ _

What are Fisheries officers looking for?-They could be out there doing any sort of business, sir.

In convoys of 5 toyotas with radios _ are they out there looking for parrots?-I doubt it, sir.

It starts with F, does it not?-They were out there patrolling the areas, yes.

And it is a four letter word, fish?-Yes, sir.

And do you know what they found during your time _ not one scale?-Yes, sir.

Convoys of toyotas looking for fish _ you are alone in the camp day after day right?-Yes, sir.

Not one scale found?-That's not true either, sir.

And you smile when you say that?-Listen, sir, I can't be serious all the time _ I am allowed to relax surely _ _ _

I am just asking you to agree that you smiled?-I grinned, yes, sir.

When they did find the scales, they found them in the most obvious spot, did they not?-Not on the first _ _ _

In the sink that you had cleaned 25 times?-They did not find the first lot _ _ _

In 25 days?-They did not find the first lot of scales anywhere near the camp, they found them somewhere else.

I did not put that to you?-You just said they found them in the sink, sir.

I said they found scales in the sink _ I did not even put that to you. I withdraw that. They found scales in the most obvious spot?-They found scales all over the place, sir.

Mr Bridges, could you address yourself to the question I am asking you _ they found scales in the most obvious spot?-Yes.

Ever cleaned a fish in your life?-Yes, sir.

Do you know what you use?-Yes, sir.

A knife and a sink, do you not?-At home, yes, sir.

Do you know where they found the scales about the thirtieth or fortieth day?-Yes, sir.

In the sink?-A few scales, yes, sir.

You had washed it fifty times in fifty days?-It had been washed, yes, sir.

Fifty times in fifty days?-It had been washed, sir.

You washed it every day?-Yes, sir.

Day after day?-It was done in routine, yes.

Yes, every day?-Yes, sir.

.....

Each day from the very beginning according to your evidence, part of your duties was to clean up evidence, signs of fishing?-Yes, sir.

That is what you say?-That's what I say, sir.

Every day?-Yes, sir.

You picked up scales?-Yes, sir.

Throw them away under the bush?-Yes, sir.

.....

You are still preserving what you now say, I suppose, is a silence about what you had seen at Marrakai? That is what you say, that if you were not telling people about what you are now saying happened, you were keeping silent?-Yes, sir.

Whereas all the time up to, say, the 10th, the 11th, the 12th, the 13th, had they wished, any of these people could have seen in a moment the scales in great quantities in the sink, the boning room, in the silage drain, at the exit to the PVC drain and so on and so on, could they not?-Yes, sir.

At any time?-That's right.

.....

Yes, your duty was to keep that camp spotlessly clean?-Which I did.

Because it was a place used for the killing of meat for human consumption?-And other things, yes, sir.

Let us take it bit by bit, it was a place used for the killing of meat for human consumption?-Yes, sir.

You knew that cleanliness was an essential for its licence?-That's correct.

That is why you were day after day to clean it out?-Yes, sir.

Scrub the freezers and so on?-That's correct.

Were you not?-Yes, sir.

.....

Of course, you say that you will agree with me that the cleanliness of the plant was one of the most important parts of your duties?-That is correct, sir.

Day after day you conscientiously did that, did you not?-Yes, sir, I did.

You kept it spotless?-I thought it was spotless, yes.

You are a man who takes pride in his work, are you not?-Yes, sir, normally.

Your work here included the cleanliness of the camp?-That is correct.

These trailers or these vehicles, whatever they are, used for the killing process?-That is correct, sir.

And the refrigerators?-What part of the refrigerators are you talking about, sir?

To be kept clean, the chillers, the freezers?-Yes, sir, that's correct.

On 15 January, 1980 the police called in again and spent 2 hours looking around the camp?-That is correct, sir.

15 January, is that not right?-I beg your pardon?

Is it not right?

HIS HONOUR: He has already said, 'That's correct.'

Mr MURRAY: Yes, I am asking him again, your Honour.

That is correct, is it not?-Yes.

The date and the time?-Yes, the police were out there. They were virtually there every day from about the tenth.

You see, that is what I am putting to you. Specifically the date?-Yes, they would have been there on the fifteenth.

They spent 2 hours looking over the camp?-Something like that, sir.

Of course you realise the purpose of them being out there _ one of the purposes was to do with what they _ they were interested in what had been going on at Marrakai, were they not?-Yes, sir.

.....

When did you go into Darwin?-To Fisheries Headquarters, sir, I can't _ _ _

When? Is that when you changed from being someone suppressing the facts as you knew them to someone who was assisting these people to nail Hoar?-That is the time I gave a record of interview, sir.

Was that when you changed from being someone who was suppressing the truth as you knew it, according to you, and changed to someone who was assisting to nail Hoar?-Yes, sir.

The photographs had not been taken, had they?-Not at that stage.

.....

Because the day that the photographs were taken, was one of the long series of photographic expeditions, was it not?-That is correct, sir."

In his summing-up, the learned trial Judge said of this evidence:

'The second thing, you may think that bears upon it the Crown asks you to take into account is the fish remains. These arise in two ways you may think, on the evidence, one is the odd scales, or a bit more than odd scales, the number of scales that were found around the camp itself, in the sinks, in the traps and in the drain and just off the end of the drain, there were scales and one stuck on the wall you will remember that was found, and it is not disputed that they were found, but what is said about them of course is that there is no way of linking these two men to those scales, except Bridges himself.'

The learned trial Judge also said :

'The bigger mystery connected with fish remains you may think, is the amount that was found about the camp in mid February by the Fisheries people when they were looking for them when Bridges told you that he had cleaned and mopped out the abattoir daily I think, and for some 50 odd days, how did he miss all these? If as Bridges says, it was a matter of great importance to Hoar from time to time that there should be what used to be known as an emu parade going around picking up scales lying about on the ground and in drainage traps and in drains and things of that sort, you may wonder how there was still any there in February, and you may wonder whether in fact the scales that were found in February by the Fisheries people may have had nothing to do with anything that happened when Hoar and Noble were still there at the end of December.'

This Court has now heard evidence from Mr Bridges that the fish scales of which photographs were tendered in Court were planted by Fisheries officers. Before this Court, Mr Bridges was a very poor witness. But at the trial he was also a poor witness, as indeed the passages from his evidence which I have set out above demonstrate. In the course of his summing-up, the learned trial Judge referred to 'Bridges, unsatisfactory though he may be in some respects...' and to 'the unsatisfactory Bridges'. The learned trial Judge also said :

'Now, that is Bridges. He is said to be entirely incapable of belief, that really you cannot believe a word he says, based upon his manner and demeanour in the witness box. His little smiles and things from time to time...what does that mean and his rather fatuous excuse for smiling when he said he wanted to bring a bit of lightness into it or something of that sort. That may have impressed you or it may not have, I really could not say. Based also upon his contradictions, upon his having sworn things in the magistrate's court in the committal hearing and sworn the direct opposite before you which was demonstrated on a number of occasions and which he said was a mistake.

Now, of course those things may be a mistake. It is a matter entirely for you to decide. I cannot help you one way or another. Either he has told deliberate lies in one place or the other or he has made a mistake. You will have to decide which when you are considering that. So it is said to you that insofar as the prosecution depends on Bridges, really, you would have to finish up with some sort of a doubt, an enormous doubt, but certainly a reasonable doubt based simply on him, the argument as put.'

However, the jury did accept the substance of Mr Bridges' evidence.

This Court is asked to disbelieve Mr Bridges, to find that his evidence to it was so lacking in credibility that his allegation that the fish scales were planted could not be believed by a jury. For my own part, I find no distinction between the quality of the evidence which he gave to this Court and the quality of the evidence which he gave at the trial. At both the trial and before this Court, parts of his evidence were scarcely credible. But, at the trial, the jury accepted the substance of his evidence. I do not find his evidence at the trial with respect to the fish scales any more convincing than the evidence which he gave to this Court. Indeed, the evidence given at the trial on this point leads me to think that there were relevant facts which were not then disclosed. The allegations made by Mr Bridges before this Court provide a possible explanation of the contradictions which appeared in his evidence at the trial.

It is necessary to take into account that Mr Bridges came forward with his allegations as to the planting of the fish scales at a time when he was dissatisfied with the treatment he had received from the prosecution. This factor is countered, however, to some extent by the fact that Mr Bridges originally made his allegations against the appellant at a time when he was dissatisfied with the appellant's treatment of him and when he considered that the appellant owed him money.

In the circumstances it seems to me that the allegations now made by Mr Bridges provide fresh evidence of a matter which was of importance to the trial and that that evidence was not available to the appellant at the time of the trial. I am not able to determine whether the substance of Mr Bridges' new evidence given to this Court was or was not true. Indeed, as the Court has not heard from the Fisheries officers I could not even attempt that task. However, the question to be determined is whether it is 'of sufficient credibility and cogency as to be likely to influence a jury away from a verdict of guilty having regard to the 'view a jury of reasonable men may properly take'.' I am of the view that the evidence given by Mr Bridges to the Court was evidence which, if given at the trial, could well have been accepted and, if accepted, could have produced a different verdict. It would be likely to produce a different verdict by destroying the corroboration which seemed necessary to lend such credibility to the evidence of 'the unsatisfactory Bridges' as to result in a conviction.

Accordingly, I would allow the appeal and would order that the conviction of the appellant be set aside and that there be a new trial.

I have had the opportunity of reading the reasons for judgment prepared by Mr Justice Toohey. I agree with the reasons stated by him with respect to the other issues raised in the appeal.