Jamieson v The Queen

[1993] HCATrans 22

•

•

'JA

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S27 of 1992

B e t w e e n -

STEPHEN WAYNE JAMIESON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

Jamieson 1 11/2/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 FEBRUARY 1993, AT 10.33 AM

Copyright in the High Court of Australia

MR M.A. GREEN, QC:  May it please the Court, I appear for

the applicant, together with my learned friend,

MS M.G. STUBBS.	(instructed by Craddock, Murray &
Neumann)

MR R.O. BLANCH, QC:  May it please the Court, I appear for

the Crown with my learned friend, MR T.R. HOYLE.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

BRENNAN J: Yes.

MR GREEN: 

Your Honours, if it is convenient, might I hand

up copies of a briefer outline of argument in this
matter?

BRENNAN J: Yes, Mr Green.

MR GREEN:  Thank you, Your Honour. Your Honours, this

application for special leave centres on what we

submit was the misconduct of the Crown Prosecutor
in the running of the trial in which the applicant

was convicted, and secondly, on the decision of the

New South Wales Court of Criminal Appeal refusing

to receive or to accept expert evidence which

attacked the authenticity of Jamieson, the

applicant's, record of interview, and we submit

because of these matters the applicant was deprived

of a real chance of an acquittal.

Your Honours, the nub of the applicant's

defence at the first trial, second trial, was that

he was not the "Shorty" concerned in this dreadful

assaulting and killing of Miss Balding and, indeed,

the defence went further; that the real "Shorty",

who was implicated, involved, in this was a person

called Mark Wells. Indeed, the other participants

in the matter - in these crimes - attested in

evidence that it was Wells and not the applicant

Jamieson. They gave sworn evidence to that effect, as of course did the applicant himself.

The first trial was aborted. It went to trial

on 20 September 1989 and aborted on 23 October when

His Honour Mr Justice Wood - Wells having been

located, was brought to court and believed that the matter should be - his involvement or otherwise, or lack of it and the handling of his appearance

should be properly investigated by the Crown.

The second trial commenced on 24 May 1990. In

that time Wells unfortunately was lost again; being

a person who lived mainly on the streets. He was

located on 8 June 1990 in the course of the trial

and he was granted an indemnity or an undertaking

Jamieson 2 11/2/93

from the Attorney-General on that very same day.
Your Honours, it is apparent to us, having examined

the transcript very carefully and the documents subpoenaed from the Crown authorities, that the

Crown had resolved - and this appears unmistakably

in the transcript - some months before, even as

early as November 1989, one, not to charge Wells

and, secondly, not to call him in the Crown case.

Indeed, the Crown Prosecutor announced to the court - and I am talking now about this trial, the

second trial of course - that the Crown had fully

investigated the matters that concerned

Justice Wood in the first trial. Now, it is our

submission that this full investigation did not go

on at all; was not a full investigation in the true

nature of those words. It consisted, on our
reading of the transcript, of the materials
subpoenaed from the Crown authorities, mainly with

conversations with investigating police; an

examination of Wells' record of interview that he

had made in respect of his involvement, in very

cryptic form, in which he involved himself and

Jamieson in the matter, and some old psychiatric reports, quite outdated in our submission, on which

the opinion was based that Wells was schizophrenic;

suffering from schizophrenia; apt to make up

stories and was therefore completely unreliable.

It is interesting, in our submission, and

significant, Your Honours, that these psychiatric

reports were dating back to October and

November 1988, so they were very much outdated when

the decision was made by the Crown - the final

decision not to call him and that he was

unreliable - and the very latest of those reports

indicated that Wells, indeed, was no longer
schizophrenic and at the time of the murder was

reasonably stable, and even though the record of

interview contained obvious - perhaps some bizarre

account - an account which involved facts and

details which were inconsistent with a police
investigation, the record of interview contained
amazing facts and details which may have led to the

inference of course that he had been involved in

some way.

At no stage, on our understanding, did any

solicitor for the Crown, or any Crown Prosecutor,

investigate, that is, speak to Mark Wells and form

a personal assessment of the worth of his

testimony. So it was on this very fragile

assessment that the Crown proclaimed to the court

that a proper investigation had been made; that he
was unreliable and he would not be charged and he

would not be called.

Jamieson 3 11/2/93

It is our submission, Your Honour, that it is

difficult to understand how the New South Wales

Court of Criminal Appeal came to refer to this

decision in its judgment, which is in the

application book on 24 and 28, that this was a view

taken by the Crown that was reasonably taken. Even

Apostilides, as Your Honours well know of course,

provides for a wide discretion in the calling or

not calling of witnesses, insists that

unreliability in their assessed evidence will only

be a sufficient reason not to call a witness where

there are identifiable circumstances which clearly

establish it. It appears in the judgment on

page 576. Your Honours, we do have copies of any

of the authorities that we will refer to.

This decision, in our submission,

Your Honours, not to call Wells in the

circumstances in which it was taken was deplorable.

Not only, Your Honours, was it unsoundly based but

it dramatically affected the conduct of the defence case. Indeed, what it did was to force the defence

to run its own case. That is, the defence - - -

BRENNAN J: Well, did the defence know beforehand that they

were not going to call Wells?

MR GREEN:  Yes, Your Honour. There was no secret made by

the Crown Prosecutor about that. That was

announced.

BRENNAN J: Well, that being announced, what follows from

that?

MR GREEN: 

Well, we say that that was unfair of the Crown to

decide not to call Wells in these circumstances
where the very nub of the defence case was - the

applicant was saying, "It's not me, it was that

Shorty, Shorty Wells."

BRENNAN J:	And there is a bizarre account given in a record of interview by the witness to be called by the
Crown?
MR GREEN:	Yes, well, that is putting it at its highest.
BRENNAN J:	And that is to be called by the Crown to give

evidence which the Crown will then embrace as the

truth?

MR GREEN:  It did not have to embrace it as the truth. The

fair thing to do in our submission in this case,

Your Honours, was for the Crown to call the

witness, even if it had doubts about the

reliability of the witness and to make the witness

available for cross-examination.	Now, several of
the authorities - - -

Jamieson	11/2/93
BRENNAN J:	Yes - evidence, though you say it is old

evidence - of psychiatric disturbance; there is a

bizarre account of the events in the record of

interview and there is a witness who went missing after the first trial and was evidently leading a

life which was by no means one that was conducive

to his being prepared to give evidence in an easy

fashion.

MR GREEN:  Yes, indeed - and there was no attempt to prepare

him to give evidence, neither by examination nor

interview, nor by indicating to him that he was

going to be furnished with this undertaking or

indemnity. He did not know about it.

BRENNAN J: That might be so, but I just do not quite see

the point that if the Crown did not call him, that

there was some error on the Crown's part in not

calling him.

MR GREEN: Well, we are submitting, Your Honour, that in the

circumstances of this case, where the nub of the

defence was that he was the person and not the

applicant - - -

BRENNAN J: Is your proposition that the Crown, in such a

case, is bound to call any piece of unreliable

evidence to throw doubt upon the correctness of the

Crown case?

MR GREEN:  No, but we would take issue with the word

"unreliable", Your Honour. That was not

demonstrated at the time. That was not properly

decided, in our submission.

DEANE J: But if one accepts what the Court of Criminal

Appeal said from pages 23 to 24, which is, as I

follow it, the only relevant information before us

on those matters, he obviously was an unreliable

witness.

MR GREEN: With respect, that is not demonstrated, in our

submission. The record of interview might be

described by some reading it as bizarre, but it

gave an account of his involvement in it. There

were some matters of fact that he got wrong, there

are other things that he got right, so it is

probably putting it too high.

DEANE J:  I do not think you have followed what I said to

you. I said, "If one accept what is said at

page 23 to 24 of the Court of Appeal's judgment" -

among other things, it is apparent from documents

that were produced that the view was taken, and

reasonably taken, that Wells was unreliable. That

follows Their Honours' reference to psychiatric

evidence to a claim to have nailed a priest in

Jamieson 11/2/93

Queensland to a wall, crucified him, and there was

no reported crime of anything like that, and so on.

MR GREEN: That was a very old matter, Your Honour, going

back to very early years. The documents that the

court referred to there were the very old outdated

psychiatric reports that I have referred to.

DEANE J:  But they are not before us and are you suggesting

we should grant leave to appeal so this Court can

examine all the material placed before the Court of
Criminal Appeal to determine whether it disagrees

with the Court of Criminal Appeal?

MR GREEN:  Not at all, Your Honour, but in our submission

the Court is entitled, as we are, to take issue

with the judgment of the Court of Criminal Appeal

on those pages, particularly on page 24, that the

view was reasonably taken that Wells was

unreliable.	Even on what is stated, what is before
this Court.

DEANE J: Well, what is before this Court?

MR GREEN: Well, that judgment is there and.what we are

suggesting is that the documents that were

produced; they are not before the Court, of course,

I concede that, but I am submitting to Your Honours

that the documents were outdated psychiatric

reports which did not indicate that he was still

schizophrenic at all.

DEANE J:  We come back to it. I mean, before this Court are

two pages of judgment of the Court of Criminal

Appeal, which logically, if one accepts

Their Honours' assessment of the evidence, leads to
the conclusion that Wells was an unreliable
witness. That brings me back to my question: do
you suggest that we should grant leave so this

Court can examine all the relevant material to

decide whether it thinks that Wells was or was not

an unreliable witness?

MR GREEN:  No, I do not think I can submit that,

Your Honour.

DEANE J: Well, otherwise, what can we do other than act on

the factual basis as found by the Court of Criminal

Appeal?

MR GREEN: Well, what I am submitting to Your Honours is,

even on the face of it, that finding of the Court

of Criminal Appeal, even as it appears then, is

erroneous and secondly, that there were - - -

DEANE J: But can we just pause there, because as I read

those two pages, they lead inevitably to the

Jamieson 6 11/2/93

conclusion expressed by the Court of Criminal

Appeal unless one starts delving into underlying

facts.

MR GREEN: Well, in my submission, surely this Court can

accept our description of the documents, for

instance, that were tendered, that were before the

Court of Criminal appeal.

BRENNAN J:  You are attacking the view formed by the Court

of Criminal Appeal on a matter of fact.

MR GREEN:	Yes.
BRENNAN J:	And, as you say, that is not open to the grant of special leave and what Justice Deane has put to
you is passing by that, accepting the facts as
found by the Court of Criminal Appeal, that is the
end of the matter, is it not?

MR GREEN: Well, it may be on that particular point,

Your Honours, but there is more, of course, in our

submissions.

DEANE J:	I was not suggesting that.
BRENNAN J:	You have got other points.
MR GREEN:	Yes, but we do say that the decision was

unsoundly based and that material did not justify

that finding. But more to the point, Your Honours,

the defence was forced in this matter to run its

own case. The action of the Crown in not calling

Wells, and even as I have put to Your Honours, the

Crown would well - and all the authorities suggest

this is where reliability might well be an issue,

as it was here - there is nothing to prevent the

Crown from calling the particular witness, not

leading any evidence itself and then providing an

opportunity for the defence in this case to
cross-examine.	And this, of course, in this

particular case, was what the defence would have

wanted.

The defence then had no other option, in our submission, but to call Wells. Everyone knew he

was there waiting - - -

BRENNAN J:  What is the proposition, that is unfair if the

defence does not get a free run? I mean, the

defence has to meet the Crown case. There is no

unfairness in making the defence meet a Crown case.

Counsel might like to run a case a particular way,

but if he cannot run it that way, too bad.

MR GREEN: Well, in this particular case it went further

than just that, with respect to Your Honours. It

Jamieson 7 11/2/93

meant that the defence had to - the onus was really

transferred to the defence to establish that the

applicant was not the "Shorty" involved, that it

was Wells, because Wells had been brought to the

court, everyone knew that. The jury knew it

because when the Crown refused to call Wells the

defence was placed in the situation where it had to

parade Wells before the various identification

witnesses, who had already been called and given

evidence, none of which effected, as I will submit

to Your Honours later, very much at all the

applicant's involvement, and the defence had to

present - in doing that and then in calling

Wells - - -

BRENNAN J:  You mean, the defence called Wells into the body

of the court as the identification witnesses were

identifying Jamieson as the accused?

MR GREEN:  They did not do that but what happened,

Your Honours, the identification witnesses who had

given evidence of what they could of

identification, and none of them was able, with one

exception - I will come to that later - to

implicate in their identification the applicant.

Later on, when Wells turned up then, the defence

called each of those identification witnesses again

and brought Wells into the court, like an exhibit,

and asked for evidence from each of one of those

persons again.

BRENNAN J: Well, that was up to the defence to do if they

wanted to.

MR GREEN:	What we are submitting to Your Honours, of course, is that that was only the start of it. It
is tantamount to saying to the defence, "If you are
saying this, you prove it", and then, of course,
having to call Wells - the real evil in that, in
our submission, is that the defence was placed in a
situation where it had to call in its own case a
witness - it did not know it at the time - but who
turned out to be quite inimicable, of course, to
the defence case, and could not cross-examine that witness; could not even put to it the essential proposition, "It was you who were there, not the
applicant".
BRENNAN J:	The defence called him on the blind evidently.
MR GREEN:	Yes. Well, one other, with respect,

Your Honour - - -

BRENNAN J: Well, if counsel wants to call a witness on the

blind to say that he was the culprit on a charge of

murder, one can only say it is a course which has

obviously got a measure of recklessness about it.

Jamieson 11/2/93

MR GREEN: Well, what other, with respect, Your Honour,

option was there? Wells was brought to court; the

jury - everyone - knew he was there. Here was the

defence saying, "It is not the applicant, it is

Wells". Had the defence at that stage, believing,

as everyone did in the court, that he would

refuse - he would take the stand that had already

been announced before in his other appearances by

him and his legal advisers that he would not answer

questions.

BRENNAN J: That it was safe to raise that defence because

he would not be game to deny it. That is what it

comes to, is it not?

MR GREEN: With respect, no. If I could finish this: what

other course was there when the jury knew that? If
the defence decided not to call him in those
circumstances, surely that would be an admission of

defeat and the jury would go away thinking, "Oh

well, they have given that up.	They are not
running that line anymore".

Now, what the Crown says in this case, of course, is that the defence - and we know why the

indemnity was granted; we say very improperly, but

what the Crown says, "We want to prevent the

defence from obtaining this advantage", that Wells

would be called, the defence would ask him

questions; he would refuse to answer questions and
then counsel for the defence would smugly sit down,
of course, and reap an advantage from that in front

of the jury. Well, had that been the Crown's true

purpose, that is, and being so concerned about the

dictates of justice and fair trial in this matter,

it would have easily accounted that by the Crown

saying to the defence, "We know what you are after.

We know what you are about. We are going protect

this witness with indemnity and he is likely to say

anything or everything".

In that case then, with absolute fairness, of course, the defence would have been in a better

situation to assess whether or not to call him.

They, no doubt, would have sought a conference.
They were seeking a conference with Wells and he

was refusing to talk to them, and after that they
would have, no doubt, been in a situation where

they could properly assess the merits of calling

him or not. This is a witness, Your Honours, who

is really as the nub of the defence case, and we

say it was unfair that the defence were placed in

this situation.

Indeed, we submit that it was in these special

circumstances, rather than throwing what we say was

an evidentiary burden on to the defence the Crown

Jamieson 9 11/2/93

should have called, with all these questions of

reliability - and there is authority for that in

the authorities, of Richardson and the other

cases - simply to call him into court and to call

no evidence if they did not want to, and to then

allow cross-examination. That was the fair and

open way to do it. It did not happen in this case,

of course, because the Crown set a trap for the to say - or more correctly, the Crown allowed the

defence, and that was acknowledged in the Court of

defence to trap itself.

We would submit that not only did the Crown

fail to disclose this indemnity, which we argue was

an improper use of the indemnity, it was not

necessary at all. Here we have a contradictory

situation. The Crown is saying a witness is

unreliable and not worth calling, but he is somehow

worth protecting with an indemnity. But it appears

in the application book, page 136, a further

subterfuge on the part of the Crown Prosecutor.	On
page 135 he has indicated in the middle of the page - and this is 8 June, the very day on which
the indemnity was granted - the Crown told
His Honour that Wells had been located, and there
is some discussion then, then on the top of the next page it reads:

The Crown Prosecutor further indicated on the last occasion Wood J, had informed the man Wells of his rights to to answer questions on the ground that they might incriminate him and

on that occasion he had refused to answer

questions. The Crown asked that he should be

entitled to some legal advice.

Your Honours, what a charade this is. On the very

day - and the Crown Prosecutor, if it had not been

granted at that particular instant during whatever

time that was - but no doubt the groundwork had

been done, the submissions had gone to the

Attorney-General, or some discussion about them - on the very day that he would expect that the indemnity or undertaking be signed, he is

perpetuating this myth, in our submission, that

Wells would persist in his refusal to answer

questions. So, digging the hole deeper even at

that stage, we would say, for the defence to fall

into. Wells' solicitor appeared there.

All that does not sit well, in our submission,

at all, with the dictates of fairness to the

accused and the running of the trial.	In any case,
he was called.	Mark Wells was called by the

defence and what happened is recorded, of course,

in graphic detail in the transcript and that

Jamieson 10 11/2/93

appears on page 145 of the application book,

Your Honours, and on any reading of that at all it was a dramatic moment in the trial. What happened
was, in the face of the jury, when, after Wells had

been led through some fairly innocuous questions,

he then was asked a more incriminating one. He

refused to answer it and the Crown Prosecutor rose

and said - and this is in the application book,

page 145 at 25:

In view of that answer, your Honour, I might

be able to assist. I have with me an

undertaking from the Attorney General in

relation to any evidence this witness might

give. I first of all hand it to your Honour.

And then, of course, there is an explosion, if I

could use that word, and we would say justifiably,

by defence counsel. At the top of the next page

he complains about ambushed and, in our submission,

he was justified in so describing it. My

instructions are that this was indeed a dramatic

moment in the course of the trial, and it must have

had an impact on the jury, as far as they

understood it. Because, Your Honours, what the

Crown was doing was saying to the jury, in so many

words, was this, "Look, this wrong "Shorty"

scenario is all nonsense. If the defence wants to

persist in it that is okay, but you will not be

impressed by this. The Attorney-General has

decided that this man is a protected witness, that

we will not be calling him and if they want to

proceed then it is up to them".

That, in fact, in my submission, is a fair

inference of what the Crown was really saying to
the jury and that is part of the evil of it, in our

submission. Its true purpose, in other words - the true purpose of this indemnity was purely tactical.

It was to spike the defence guns.	It was not
necessary, as I have submitted to Your Honours, to

do it in that way, even if the Crown's purposes

were initially noble and what it was saying was, in

effect, to the Court, it was all right for the

defence to present this unreliable witness,

furnished as he was with an indemnity and therefore

he will give some account of it, but it is not good

enough for us.

So, we submit, one, that there was no good

reason for the Crown refusing to call Wells. We

submit, two, that the case did not call for the

provision of the indemnity. Indeed, the very

wording of the indemnity, Your Honours, is that it

be necessary for the effective prosecution of a
particular person and it was not so necessary at

all, in this particular case. It was being used as

Jamieson 11 11/2/93

a tactical device. It was a lamentable use of the

Crown authorities, of their conceded discretion to

grant indemnities in the proper case.

Your Honour Mr Justice Deane, commented on

practices like this in Whitehorn v Reg, (1983)

152 CLR 657, at page 664, when Your Honour said:

The observance of traditional

considerations of fairness requires that

prosecuting counsel refrain from deciding

whether to call a material witness by

reference to tactical considerations.

And one of the other cases, I think it was

Richardson, uses the word "oblique motive" in

criticizing the actions of a Crown Prosecutor.

BRENNAN J: That speaks of "material witnesses", the passage

that you refer to.

MR GREEN:  Yes, it does, Your Honours, but we would submit

that the general principles are all applicable

here. In our submission, Wells had become -

through the defence attitude to Wells, through the

nub of the nature of the defence, Wells had become,

not a material witness in the ordinary sense that is necessary for the unfolding of the Crown case, but the unfolding of the whole of the circumstances

of the Crown case and defence, he had become a

necessary player.

BRENNAN J:  The reality is that the defence intended to put

this man in the witness-box, have him claim

privilege, and on the basis of that put to the jury

the inference that this was the guilty party.

MR GREEN:  Yes. And we are submitting to Your Honours that

that was the position that the defence had to take

up when the Crown refused to call him.	The Crown
was asked to call this witness and they refused.

But, even if then, if the Crown perceived a

tactical advantage for the defence, it could have

been counted in the open and honest way that I have

submitted to Your Honours before. So the real

result of it, Your Honours, was that the Crown's

attitude and actions forced the defence to call a

witness blind, so to speak: a witness that was

prevented, because of that, from cross-examining

and could not put its central allegation to,

and - - -

BRENNAN J: Well, if he had been a hostile witness, you

could have obtained leave to cross-examine.

MR GREEN:  Yes. I have read the transcript, Your Honours.

That eventuality was canvassed at some stage. It

Jamieson 12 11/2/93

was not done, maybe because it was felt that Wells

could not have been qualified as a - or argued to

be a hostile witness. I do not know why that was

not pursued.

BRENNAN J:  What is conceived to be the obligation of

counsel for a party calling a witness? Is it

legitimate to call a witness in order that the

witness might claim privilege in order to found a

submission that that witness was guilty?

MR GREEN:  Our submission would be, I think, Your Honours,

that it would be at least open, particularly in

these circumstances, where the Crown's

intransigence had forced the defence into the

position where, here is, Wells, on the door of the

court, "We say he is the guilty party, not us, what

do we do about that?"

BRENNAN J:	And the Crown will not call him.
MR GREEN:	Yes.

BRENNAN J: Well, is that not what you say: "and the Crown

will not call him"? "Our defence is obvious; the

Crown does not rebut it", but instead of that, counsel takes the step of putting this witness, who is alleged to be the culprit, into the box in the

hope that the witness will claim privilege.

MR GREEN:  It was more than a hope, with respect,

Your Honour, it was a firm belief, because that was

the - - -

BRENNAN J: Exactly, an expectation.

MR GREEN:  Yes. But I can only repeat my submission: what

other avenue was open to the defence in that

circumstance? The matter that Your Honour raised

about, would it be justified - it would be

difficult to envisage how that information could be

placed before the jury. There could be a lot of

argument, I could envisage, about that information,

that is, that the Crown has refused to call this

witness being placed before the jury. I cannot see

how it could. But the tactic - and we submit that

it was a tactic, and part of it was to prevent

the - we would infer, in our submission, to prevent

the defence from cross-examining Wells - that type

of tactic was specifically criticized in Zeims v

Prothonotary of New South Wales, (1957) 97 CLR.

We accept, Your Honours, that Apostilides and

the other cases give the Crown a wide discretion in

their management of cases, but it is not an

unfettered one and in this case it has, in our

submission, resulted in a miscarriage of justice

Jamieson 13 11/2/93

and, indeed, it is interesting to read an exchange,

Your Honours, at the first trial between the then

Crown Prosecutor Mr Justice Wood, which is

reproduced in the application book at page 94, at

line about 11/12, the:

(Crown Prosecutor stated that if the trial

went ahead and Wells got into the witness box

and declined to answer certain questions

because they would incriminate him a false

impression would result, and for that reason

he was very worried about the trial

proceeding).

(His Honour stated that he was not prepared to

let Wells go into the witness box until he

knew whether he was going to be charged or

given an immunity).

Now, this is at the first trial when Wells had been

found. What is the difference? Indeed, if it was

good enough for the judge and the Crown Prosecutor

on 20 October 1989, in our serious submission, it

was good enough for a different judge and Crown

Prosecutor on 15 June 1990 during this trial.

Your Honours, the other substantial matter

raised in the application, if I could turn to that

now, is that of - just before I leave that point, Your Honours, we must submit, of course, strongly

that even if it were seen by this Court, or any

court for that matter, that the Crown was justified

in not calling this particular witness, even if it

were seen that the existence of the indemnity is

not infected by the problems as we say it it, our strong submission is, of course, in fairness, the

Crown should have informed the defence and, indeed,

the recipient, Wells, and his legal advisers, of

the existence of this indemnity or undertaking and

it was unfair not to do so.

Turning now to the matter of the fresh

evidence. Your Honours, this particular method of

linguistic analysis or stylometrics came to the

attention of the applicant's solicitors only after

the trial. I suppose, Your Honours, it can always

be argued that solicitors and barristers can

discover scientific evidence through reasonable diligence, but if we be rightly accused of that here, we can only say that we did not know about

it, or they - I was not there - but his legal

advisers did not know about it and we would rely on

the extended basis for the reception of such

evidence in the judgment of the then Chief Justice,

Mr Justice Gibbs in Gallagher v Reg, (1985/6)

160 CLR 392 at page 395, where His Honour says:

Jamieson 14 11/2/93

The first of these, that the conviction will not usually be set aside if the evidence

relied on could with reasonable diligence have
been produced by the accused at the trial, is

satisfied in the present case, and need not be

discussed, although it should be noted that

this is not a universal and inflexible

requirement: the strength of the fresh

evidence may in some cases be such as to

justify interference with the verdict, even

though that evidence might have been

discovered before the trial.

Perhaps we might be forced to rely on those dicta,

Your Honour.

Stylometry is a method of investigating the

authenticity of disputed documents by means of

statistical analysis and it works on the threshold

thesis that patterns of speech and the disposition

of words are unique to individuals, in particular,

this particular method traces the occurrence and

disposition of words of two and three letters and

words beginning with a vowel.

It is a science, in our submission,

Your Honour, which has been developed over some

40 years by the Reverend Andrew Morton, a former

research fellow at Glasgow University, a fellow of
the Royal Society of Edinburgh who came to it, we
understand, in his work on the authenticity of

Pauline epistles. Its proponent in Sydney - one of

his disciples in Sydney - is a Mr Andrew Lohrey,

whose affidavit and examination we have put on by
way of evidence in the - or asked to be received by
way of evidence in our argument in the Court of

Criminal Appeal. He, using this technique and

under the guidance of the Reverend Morton - he

asked him to check his methodology and

conclusions - looked at the applicant's record of

interview and oral confession to the police and

used a transcript of the applicant's evidence at

the trial, and his conclusion was that the

confessions were of composite authorship and that

neither could be accepted as the authentic

utterance of the applicant.

This report regrettably came into our hands

only a few days before the hearing in the New South

Wales Court of Criminal Appeal. I asked for an

adjournment so that perhaps better and fuller

evidence might be received from the Reverend Morton

himself. This was refused. The Court of Criminal

Appeal judged - and this appears in the appeal book

about page 34, lacked "cogency". In our

submission, given the remarkable conclusion of the

study, it is difficult to understand the reasons

Jamieson 15 11/2/93

and, indeed, the Court of Criminal Appeal did not

give reasons for that particular finding.

Secondly, the Court held that the evidence

failed to come within "a recognized field of

scientific expertise". Our submission, however,

is, Your Honours, that the court did not

investigate the standing in any way whatsoever by,

for instance, the calling of that expert,

Mr Lohrey, or by allowing us the opportunity to

call the Reverend Morton.

Thirdly, the Court of Criminal Appeal held

that the evidence pursued - these were the words

that appear in the appeal book at page 34:

Only pursues, in a slightly different form,

the issue that was raised on behalf of the

appellant at the trial.

Now, Your Honours, this is simply not the case. At

the trial a psychologist, Mr John Taylor, gave

evidence that because of the applicant's social,

intellectual deficits, he would not have been

capable of answering the long and confessional

answers that appeared in the record of interview -

that it was unlikely, at least, that he could have

been capable of answering questions in that

particular form. That is something akin to what this Court looked at, I think, in Murphy's case.

This particular science is more precise. It says

more. It said that he did not make these

confessions. That is a vastly different thing. This type of work, this analysis, has received recognition mainly in the United Kingdom, to a

certain extent in the United States and in

Australia.

In the case of Tilley, the Victorian case,

(1985) VR 505 at page 509, the method was accepted

as a science by that court and indeed the

Reverend Morton was accepted as an international

authority on stylistical analysis. It was not

received because of the problems in the sample in

that particular case, but those criteria were met.

In Condren it did not pass those tests. We submit,

however, that since Murphy v Reg, (1988/89)

167 CLR 94, that that judgment, the judgment of

this Court, has further widened the basis on which
this type of evidence might be received and,of

course,there has been development since those cases

of the 80s. There has been development in the

expertise, in the scientific basis, for this

particular method.

Jamieson 16 11/2/93

The Reverend Morton's science and expertise

have been employed frequently in the United

Kingdom. It was used in a preliminary fashion, at

least, in the investigation into the Birmingham

Six, in the Cahill Bridgewater murder case in

England, in Northern Ireland in the examination of

confessions made by the Ulster Defence Regiment, for the UDR4 Belfast, and it was instrumental in

obtaining a pardon for a person called Nicky Kelly

who was a convicted criminal pardoned by the

Executive Government in Ireland in April 1992.

The one case that we have been able to

discover in which this has been referred to, this

evidence in particular of the Reverend Morton, is

the case of the English Court of Criminal Appeal in

R v Thomas Mccrossen, unreported, we understand, of

10 July 1991. I have copies of that particular

judgment here, if Your Honours would see it,

please. In particular, may I take Your Honours,
not to the whole of the judgment, but to pages 14,

15 and 16. At the bottom of that page, second-last

paragraph, His Honour Lord Justice Taylor says:

We are bound to say that we had some

misgivings about the reliability of The

Revd Morton's system although we have no

reason to doubt his honesty or his genuine

belief in its reliability.

The Court then went on to approach the matter

in two stages, looking first of all at the concerns

they had about the reliability of the accepted
evidence, and then coming again to the evidence of
the Reverend Morton which undeniably was accepted.

On page 16, putting the two together, the Court

came to this conclusion:

If that evidence had been put before the jury

we feel that the jury may well have been

swayed particularly in a case where the

prosecution's evidence was so thin.

BRENNAN J:  Can that be said in the present case, where

there was, as the Court of Criminal Appeal tells

us, a very distinctive facial appearance of

Jamieson, who was identified as being with the

accused at Mount Druitt on the day of the murder

and was identified as having gone out to Sutherland

in the train that afternoon?

MR GREEN:  That is where the Court of Criminal Appeal was

substantially wrong, Your Honours. When the Court

of Criminal Appeal said that his photograph was

picked out by a witness - Mrs Matyus, it was - as

being one of the group that went out. That was not

Jamieson 17 11/2/93

the evidence at all. The evidence was that

Mrs Matyus picked his photograph out as being

"similar to" - they were her words: "similar to"

one of the young persons who were on that train

that day. Indeed, she was called into the Court

and asked whether she could identify any of the

accused in the witness-box and she said she could

not.

BRENNAN J: That may be so, but if the question was Jamieson

or Wells, and they looked dissimilar and she was

able to identify, albeit by a photograph, Jamieson, there is evidence, is there not, independently that

he was the person?

MR GREEN:  We would submit very flimsy evidence,

Your Honour. A photograph that she said looked

similar to; she is not saying it was him or it was

Jamieson. "That photograph", she is saying, "is

similar to the person I saw." The evidence, I

understand, was that she actually saw a sketch of Jamieson in a newspaper before she identified the

photograph.

We would say her evidence, therefore, was

quite worthless, in that regard, particularly when

she was brought into the Court, and one might

expect that Jamieson's appearance has not changed

all that much. He is of particular ape-like

appearance and it is remarkable, if she saw him,

that she would not have identified him, even in the

situation when she saw him in the witness-box

during the trial.

As it is, Your Honours, with Christine

Mobberley, who was the first young woman approached

at Sutherland that evening, in Jamieson's record of

interview it is alleged that he said that he was

the person who approached Christine Mobberley.	Yet
with these ape-like features she was unable to
identify Jamieson either in person or by way of a

photograph. That raises a matter of great concern

in relation to identification.

The other evidence of identification,

Your Honours, was by Mr Lonegan who identified

Jamieson, he said, as being part of a group seen at

Mount Oruitt after - I think it was the following

morning or afternoon, I cannot remember. The

problem with his evidence was he did not come

forward and speak to the police until 25 January

1990. He was not called at the first trial. He,

in other words, made a statement to the police

incriminating the applicant some 16 months after

the event.

Jamieson 18 11/2/93

So it is our submission that the evidence of

identification was pretty well non-existent. There

was no identification parade conducted, of course.

There was no forensic evidence against Jamieson.

All the other participants in these dreadful

crimes, they said they were there, Jamieson was not

there, Wells was there. The Court of Criminal

Appeal is similarly incorrect when in its judgment reproduced in the application book at page 22,

stated that the applicant had made admissions to a

girl called Adams. That was not the case at all,

that was completely wrong. It was Elliott, one of
the other offenders who made admissions to the girl

Adams. Jamieson, the applicant, made no such

admissions whatsoever.

The only other evidence against the applicant

was an alleged confession to a fellow inmate at the

gaol and his evidence - he gave evidence in the

first trial.	He died before the second trial and
his evidence was read to the jury.	He was

thoroughly discredited, in our submission, in

cross-examination when it was discovered that he

could not have received the confession on the date

that he stated from the applicant because on that

day he, this witness, was in the cells at North

Sydney Police Station.	He says that was a mistake,
or something like that.

So all of those matters, Your Honours, reduce

considerably the strength of the Crown case against

the applicant without the record of interview. In

other words, it is our submission that without the

record of interview, the signed record of

interview, the case against the applicant was weak

indeed and could not have resulted, in our

submission, in a conviction.

So, on the Mccrossen principle, Your Honours,

we would submit that this evidence is appropriate

material to put before a tribunal at first

instance. We are not asking this Court to

pronounce on the scientific standing of this

particular method, but that this material is, at a

prima facie level, capable of meeting the required

test for new or fresh evidence, and scientific

evidence and is capable and, had it been before the

tribunal at first instance, it could have really
tipped the balance in favour of the applicant.

In summary, Your Honours, we submit that

because of these two factors, the misconduct of the

Crown together with the absence of the additional

scientific evidence, the applicant has lost a real

chance of an acquittal. We say that there is, to

pick up the words, I think, of Gallagher's case,

that there would have been a significant

possibility that the jury acting reasonably would

Jamieson 19 11/2/93

have acquitted the applicant had the trial been

conducted in a way that was fair to the applicant,
and secondly had this material been then available

for their consideration.

DEANE J: Mr Green, what do you say about the statement on

page 34:

there has been a failure to establish before

this Court that what we have been favoured

with is an expert opinion in a recognised

field of scientific expertise.

What was the material before the Court that

established, on your submission, a recognized field

of scientific expertise? I have read what is in

the supplementary application.

MR GREEN: It was just that, Your Honour, that was it. That

was simply put on, produced to the court, and I

asked for an adjournment initially because I did

appreciate that that material did not take it as

far as I would have liked to have taken it. I

expected two things, I expected that Mr Lohrey

would be required for cross-examination, if the

court wished to pursue that particular matter.

That did not happen. My application for

adjournment to put it on a better scientific basis,

that is to get the Reverend Andrew Morton out from

Scotland to provide more authoritative and fuller basis for the reception of the evidence, that was

refused.

DEANE J:  I can appreciate your approach but this Court can

hardly get involved in the appeal from a refusal to

adjourn to enable further evidence.

MR GREEN:	No, but I would submit, Your Honour, on that material, on the material that was before the Court
of Criminal Appeal and before this Court, prima
facie the basis is made out for its reception at
first instance. It is a matter, surely, in our submission, for the court at first instance. If
there was some adequate grounds prima facie - - -
DEANE J:	The court at first instance being the Court of

Criminal Appeal?

MR GREEN:  No, I meant in a new trial. I am sorry.

DEANE J: But the Court of Criminal Appeal could not rely on

it to order a new trial without making a conclusion

about its admissibility.

MR GREEN: Certainly but, in our submission, it was not

necessary for us to establish that to the nth

degree before the Court of Criminal Appeal. In our

Jamieson 20 11/2/93

submission, there was sufficient material to allow

that court, the Court of Criminal Appeal, to come

to the view prima facie that it met the test and

that it was wrong in holding that it did not.

DEANE J:	I follow the way you put it.
MR GREEN:	May it please the Court.
BRENNAN J:	The Court will adjourn briefly to consider the course it will take.

AT 11.32 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.45 AM:

BRENNAN J:  Mr Blanch, the Court would like to hear you on

the question of the admissibility of the
stylometrics evidence, particularly in the light of

the other evidence in the case on which the Crown

might rely.

MR BLANCH: In the first place, Your Honour, I agree with

the assessment of my learned friend that the other

evidence in the case is nowhere near as strong as

the confessional material and when the Court of

Criminal Appeal said in its judgment that there was

a strong case against Jamieson that was taking into

account what was described as the extensive

confessional material. So that I would not seek to

deprive my friend of the point that the

confessional material was a matter of some real

significance in the case. The other evidence was,

who tentatively identified Jamieson as the man on as the Court has heard, the evidence of the woman the train to Sutherland.

MCHUGH J:  Mrs Matyus.

MR BLANCH:  Yes, Your Honour. And the man who subsequently

came forward and identified Jamieson as having been

at Mt Druitt. Of course two identifications, such

as they were, put him in a position inconsistent

with what he had said and would tend to resolve the

difference between he and Wells as to who was

"Shorty".

BRENNAN J: But did the Court of Criminal Appeal

misunderstand that evidence?

MR BLANCH: Misunderstand - - -?

Jamieson 21 11/2/93

BRENNAN J:  Misunderstand the evidence of identification by

those two witnesses?

MR BLANCH:  Only in so far, Your Honour, as you could read

their statement that Ms Matyus identified Jamieson

on the train. It is a little unclear from that

statement of the evidence. It has always been
perfectly clear, of course, what her evidence was

and the Court did go through the case with some

detail. I would have taken the court to have been

referring to the evidence as it was given and that

to be just simply the way the court expressed the

evidence.	I would have taken it not to have been a
misunderstanding of the evidence.	On the other

hand, even if it be an accurate statement of the

evidence, the fact still remains that the

confessional material was a central part of the

Crown case.

I would not seek to deprive, as I said to the

Court, my friend of his point that in the context of evaluating the Crown case, whether or not the confessions were made was obviously a very central

part. Another way of testing that, I suppose, is

that if there had been no confessions was the

material as it existed anything like suff~cient to

allow the Crown to prove the case against Jamieson.

I suspect that the answer to that would be that it was not, relying as it did, apart from the

identifications, on a gaol informer who got the day

wrong.

As to the admissibility of the evidence

itself, the submission that I would make is, I

think, the matter - - -

DEANE J:  Mr Blanch, just one other matter. What about the

statement on page 22:

He was also alleged to have made similar

admissions to Ms Adams.

MR BLANCH:  Yes. I accept what Mr Green says about that,

Your Honour, that - - -

DEANE J: That that was another of the accused.

MR BLANCH: Another of the accused who made that confession

to Ms Adams.

As to the evidence itself, the problem that

the Court of Criminal Appeal was faced with, it

would appear, is the fact that this material was

presented in a form that made it difficult for the

Court to accept in the sense that it was presented

with an affidavit from Mr Lohrey, who appears not

to have formal qualifications, and who speaks of

Jamieson 22 11/2/93

some of the work he has done in this area referring

back to the Reverend Morton in Scotland. I think

in some of the documents provided, there is a

suggestion that this material had been sent back to

Mr Morton for verification.

So it was difficult for the Court of Criminal Appeal, in the circumstances, to either accept the material or to allow for an adjournment so that

there could be an investigation into this material.

It is the sort of situation where if material such

as this subsequently comes to light and upon an

examination there can be some proper inquiry into

it, the matter can be dealt with by way of a

special inquiry into New South Wales as to whether

a question of doubt has arisen which may even then

allow a pardoning or a referral of the matter back

to the Court of Criminal Appeal under section 26, I

think it is, of the Criminal Appeal Act.

In many ways it was a practical question for the Court of Criminal Appeal because, in my

submission, the court was justified in concluding

that, firstly, Mr Lohrey was not an expert and that

the material presented to the court was not such as

to leave the court satisfied that there was there a
field of expertise. There are many factual issues

that would need to be looked at in relation to all

of this, particularly in view of some authorities

that are available which question the scientific

bona fides of this as a field of science. One

could imagine that there would need to be a fair

amount of examination. For example, the critical

examination here is between the confessions

allegedly made, generally speaking, in question and
answer form, and then the evidence given by

Jamieson in the transcripts.

There are a lot of factual matters that would need to be examined fairly closely as to whether it

was ever acceptable that this was a field of

scientific expertise. In order to resolve that it

might very well be necessary for the

Reverend Morton to come to Australia to give

evidence about that. That provides a very

difficult problem in a court room situation for

either a trial court, a court of appeal, or this

Court, in terms of working this problem out.

McHUGH J: Well in the voice identification case - I was in

it ..... an admissibility of voice identification, I

cannot remember the name of it now, but there was

detailed evidence from Mr Jones, a lecturer in

English, as to the scientific basis of it all at the trial. The trial judges nevertheless rejected the evidence and the Court of Criminal Appeal held

that it was admissible.

Jamieson 23 11/2/93

MR BLANCH: 

As I read the judgment of the Court of Criminal Appeal, if there had been a proper foundation laid

and they were satisfied of that then that would

have been a matter taken into account and I do not

read anything the Court of Criminal Appeal has

otherwise said as indicating that it was not

material that was as to a relevant aspect of the
case. That can hardly be said in a case like this
when the confessional material is so central to the
case. But it is rather the question that the Court

was in a dilemma and it is my submission that they

answer that dilemma in the only way that they

could.

As I have said, that does not, of course,

leave a person completely without remedy if the
relevant material can be marshalled because there
are then mechanisms for bringing the matter back
again. It goes without saying, of course, and I

would not dispute the fact that if there were

proper material on a proper base with an expert

there, that it would be material of sufficient
cogency in a case like this to justify its

reception as fresh evidence within the tests.

BRENNAN J: 

What do you say is lacking at the moment?

MR BLANCH: Well, Your Honour, the qualifications of

Mr Lohrey as an expert and it follows then the lack

of evidence as to the science.

BRENNAN J:  What effect, if any, does that have on the

question of its availability at the time of the trial? Are you taking any point that the - - -

MR BLANCH:  No, Your Honour, I take no point about that, and

as I was saying, I would concede the point that if

this is a science and if it could establish

something relevant as to the admissions, then that

is as to such an important part of this case that I

~ould concede that the defence would be entitled to	raise it as a matter of fresh evidence within the
test laid down in Gallagher.

DEANE J: That is contrary to what the Court of Criminal

Appeal held, as I read the Chief Justice's

judgment.

MR BLANCH:	I read his judgment to mean that it was not fresh evidence because this just had not been
established.  He made the point, of course,
Your Honour, at page 34 of the application book,
that this evidence was pursuing in a slightly
different form the material that had been pursued
at the trial as to the educational standards and verbal ability of the accused. Is that the part
that Your Honour was referring to?

Jamieson 24 11/2/93

DEANE J: Yes.	Your reading is certainly one that is open.
MR BLANCH:	Yes, Your Honour.
BRENNAN J:	The Chief Justice also said "The evidence in question lacks cogency", did he not, on page 34,
line 10?  I took that to mean that he was speaking
about the quality of the evidence, apart from any
question of its scientific foundation.
MR BLANCH:	Yes, I take that to be the situation,

Your Honour. I take it to be that he was making an

assessment about the evidence itself, the quality
of the evidence, the method of its presentation,

the expertise of the person who was presenting it

and His Honour made that assessment of the

situation and, in our submission, quite rightly so.

That is really, in our submission, the only

conclusion that the Court could come to as to that.

Acknowledging, of course, as I do, that if there is

a possibility of the material being proved in some

way, then it is open for that matter to be

reagitated.

The problem is, in another way, if special

leave were to be given, there comes first of all a
question of the basis for special leave on that

matter. But I was not thinking so much to take

that point but rather the point that it then leaves

everybody in exactly the same position: another

trial is ordered and then all of this material has

to be marshalled at that stage. It may be

preferable if there is material that exists that

can be shown to be relevant that it be marshalled

first, and then when it is marshalled it be

presented because it is going to be fairly

difficult to go back and have a trial situation and

to marshal the evidence to suit the Court

situation.

DEANE J:  Of course, this probably is not something to say

to you, but one problem is that reading the

material before this Court, I find it for practical

purposes impossible to disagree with the conclusion
of the Court of Criminal Appeal that the material

before that Court did not establish expert opinion

in the recognized field of scientific expertise.

MR BLANCH: Yes, Your Honour. Well, that, of course, is

what I am putting. It must be conceded that the

material raises a question, and it raises a

question that ought to be answered in some form.

It raises the question about whether stylometrics

is a field of science and whether there is a person

who can do this in a scientific and expert fashion

and come forward and make some judgment about the

confessions. But that is going to have to be

Jamieson 25 11/2/93

looked at, it is going to have to be examined. It

could be looked at and examined in the context of a

475 inquiry in New South Wales in the sense of a

judge sitting in and hearing that evidence and

going through it and making that determination,

some cross-examination and further evidence being

called.

DEANE J:  What you say obviously has force in that to

diverge - and I should have asked Mr Green this,

but where does Dr Strum's material fit into this

case on an appeal? I mean, it is before us and it

is very interesting reading but do you see this as

having any relevance to - - -

MR BLANCH:  No, Your Honour.

McHUGH J:  But what he says is worrying. Here you have a

person of low IQ, a singularly unattractive person

who, in Dr Strum's language, puts out vibes which

create hostility, suspicion and rejection in those

who have anything to do with him. He seems to have

been the one who set in train this stylometric

investigation because he could not bring himself to

believe that this person was capable of making this

confession, and then you read the stylometric

material. It is very worrying.

MR BLANCH:  Yes, Your Honour, as I say, there is no doubt

that a question is raised arising out of this, but

what I was really doing then was looking at the

next stage of saying, "Where do you go from here?",

"How do you resolve this problem?", which I take,

although it is in a fairly short form, it to be

precisely what the Chief Justice was saying in his

judgment in the Court of Criminal Appeal.

Stepping back from that, the submission that

we would make about it is firstly that these are

not matters that are appropriate for the grant of
special leave.	They are matters that admittedly
raise questions.	They are questions that should be

and, no doubt, would be pursued and ought to be answered. There are mechanisms for doing that.

McHUGH J:  The other worrying thing is that for once the New

South Wales Court of Criminal Appeal seems to have

made some errors in their assessment of the general

evidence.

MR BLANCH:  Of the facts, yes, Your Honour. Not that those

errors were of sufficient - - -

McHUGH J:	No.
MR BLANCH:	Yes.

Jamieson 26 11/2/93

MR GREEN:  Your Honour - - -?

BRENNAN J: Yes, Mr Green?

MR GREEN:  There is one matter in which I fear I have misled

the Court. Your Honour Mr Justice Deane asked me

what material was before the Court in relation to
the stylometric material. There was the affidavit

of Andrew Lohrey; there was then his scientific

investigation and his notes, but this material from

page 63 on, entitled "Introduction" was not before

the Court of Criminal Appeal.

DEANE J:	I see.
MR GREEN:	And I was wrong in that. That is a document

that, I have been told, whose author is the

Reverend Morton. That was not before the Court of

Criminal Appeal, that material. So it is one -

DEANE J: It is hard to see how we should look at it. For

my part I have read it from page to page.

MR GREEN: Well, it illustrates that this material is

capable, in our submission, of course - had we been

successful in our application to have the matter

adjourned, we would have been able to qualify it in

a much more satisfactory way.

McHUGH J:  What you have just said though just really

underlines the correctness of what the Court of

Criminal Appeal said about the conditions of the

admissibility of this evidence not being laid.

MR GREEN: Well, with respect, Your Honour, even looking at

Andrew Lohrey's work in this matter, at prima facie

level, we would submit that that raised a real

question about - - -

DEANE J: Well, that is an argument that, if one has

contrary view to you on that argument one - I mean, you really have to come back to the plain fact that

so far as this Court has a function it is not a

general court of appeal. All we can do is look at

the points of law you want to raise on the basis

that the Court of Criminal Appeal went wrong.	We
cannot do that on - - -

MR GREEN:  But, in relation to the third conclusion,

Your Honours, that the Court of Criminal Appeal

came to - this is on page 34, where His Honour the

Chief Justice says:

Furthermore, the "fresh evidence" only

pursues, in a slightly different form the
issue that was raised on behalf of the

appellant at the trial.

Jamieson 27 11/2/93

That, with respect, is simply wrong and I have

addressed Your Honours in relation to that matter.

This evidence, even as it stood in the form it was

before the Court of Criminal Appeal, said much more

than a psychologist just corning along and saying he

is unlikely to have given those evidences. The

conclusion is there is Andrew Lohrey's conclusion,

that Jamieson did not make these confessions.	They
are my only submissions.

BRENNAN J:  Thank you, Mr Green. The Court will consider

its deGision in this matter and hopes to be in a

position to deliver its decision at 2.15 this

afternoon.

AT 12.07 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.17 PM:

BRENNAN J: In considering an application for special leave
to appeal under section 35A(a)(i) of the Judiciary

Act, the Court is generally concerned to determine the importance of any questions of law raised by the circumstances of the case and the suitability of the case as a vehicle to raise those questions. It cannot assume the role of a general Court of

Criminal Appeal.

In this case three issues were raised by the

applicant. The first is that the Crown was not

justified in failing to call the witness, Wells.

The Crown refrained from calling Wells as he was

clearly an unreliable witness. This ground of

appeal really gives rise to no point of general

importance. Moreover, unless one rejects the

circumstances stated by the Court of Criminal

Appeal, that court was right to say that the Crown

was fully justified in not calling Wells.

Secondly, that the action of the Crown in granting Wells an indemnity.and in not disclosing

to the applicant that it had done so resulted in a

miscarriage of justice. It is arguable, as

Chief Justice Gleeson recognized in the Court of

Criminal Appeal, that the Crown set a trap for the

applicant at the second trial, but the case turns

very much on its own circumstances and involves no
major question of principle. It is difficult to

see how this Court could find a miscarriage of

justice resulting from the fact that a witness

Jamieson 28 11/2/93

called by the applicant was compellable to answer

and did answer the questions asked of him.

Thirdly, that evidence of stylometric analysis of the applicant's record of interview should have

been admitted on appeal as fresh evidence. No

attempt had been made to lead the evidence at the
trial. Whether or not the proposed evidence
contained an expert opinion in a recognised field

of scientific expertise, the material before us

does not disclose grounds which would warrant an

interference with the Court of Criminal Appeal's

conclusion that the conditions for admissibility of

new evidence were not satisfied.

It appeared in argument before us that the conviction of the applicant depends chiefly upon

the reliability of his confessional statements.

For that reason the respondent correctly

acknowledges that if further evidence comes to hand

with respect to the authorship of the answers to
the record of interview, it may well be necessary
for further consideration to be given to this case
under section 475 of the Crimes Act. But on the

material before this Court there is no question of

law raised which justifies the grant of special

leave to appeal. Accordingly special leave to

appeal is refused.

AT 2.20 PM THE MATTER WAS ADJOURNED SINE DIE

Jamieson 29 11/2/93