Jones v The Queen - [1989] HCATrans 8

No judgment structure available for this case.

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H8 of 1988
B e t w e e n -
RODNEY ALBERT JONES
Applicant

and
THE QUEEN
Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

Jones
MR.H.J. KABLE:	May it please the Court, I appear with

TOOHEY J ~
l

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 FEBRUARY 1989, AT 10.22 AM:

Copyright in the High Court of Australia

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my learned friend, MR S.J.D. KNIGHT, for the
applicant. (instructed by Dobson Mitchell and
Allport)

MR D.J. BUGG:

May it please the Court, I appear with my

learned friend, MR A.G. MELICK, for the respondent.
(instructed by the Director of Public Prosecutions)

MASON CJ:	Mr Kable.
MR KABLE:	May it please the Court, I have the appropriate number of copies of an outline of submissions for the Court and for my friend.

MASON CJ:

Thank you.

Mr Kable, when the Court of Criminal

Appeal delivered judgment was it pointed out to
the court that it had failed to resolve the
arguments presented by the appellant which, if
accepted, would have resulted in directing a
verdict of acquittal?

MR KABLE:	No, Your Honour,it was not.
MASON CJ:	Well, why was not the point raised?

MR KABLE:	Your Honour, I was not present at that time. happened with the case, to outline the chronology,	What
was that the court had been asked to adjudicate
upon the matter as early as possible. After two days of the hearing of the appeal in September

the court adjourned the appeal to a date in October,
being a date when the appeals are not normally
determined in Tasmania. It was necessary for
there to be a change of counsel; counsel changed;
other counsel argued the matter on the resumed

hearing; that counsel took judgment. I am not in
a position to point out to the Court why there
was no reference made to the court as to that
matter.

the1 argument of the court where the court was ! There are certainly many references throughout
asked to adjudicate on the grounds that are
referred to in the submissions and in particular
where the court was urged to make an ultimate

order which was an acquittal. As I understand
it the Crown in this matter will suggest that
counsel who had carriage of the matter on the
resumed hearing encouraged - is the word as I
understand it from discussions with the Director
of Public Prosecutions - the court to resolve
the matter on what I might describe as the HOCH
ground.

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Jones

MR KABLE (continuing):

I have extracted a number of

pages of transcript of argument before the
Court of Criminal Appeal where the court
was specifically asked to substitute an
acquittal in consequence of two findings
that the court was urged to make, the first
of which was that the disputed evidence was
not admissible as similar fact evidence and
thereby in consequence of section 136 there
was no corroboration, and secondly, that the
effect of the Victorian decisions of KEHAGIAS
and ROSEMEYER was such that even if the court
ruled that the evidence was admissible as

similar fact it was not corroborative. So,
the long answer to Your Honour's question is
I cannot say why, but during the hearing on many occasions the court was urged to make
such adjudications as would result in an
order of acquittal.

MASON CJ:. Of course the matter could have been raised at

any time after the delivery of judgment because on
ore view, the view that you are putting forward,
the court never discharged its responsibility
to deal with the arguments that were presented.

MR KABLE:

That is exactly the view that is being put

forward, Your Honour. The court had made an
order. In this sense responsibility can be
taken by me in that the court, having been
asked to make these adjudications on a number
of occasions, and having had urged upon it that
the consequence of making the adjudications was
the order of acquittal, and the court, having
taken the course that it did in the judgment and
the reasons therefore, it seemed that the only
remedy was an application to this Court in
circumstances that I submit here, and have
submitted in my affidavit, are similar to those
existing in FOWLER and KING.

;

MASON CJ: Well, it may be but the initial remedy was to

make application to the Court of Criminal Appeal.
That at least would have resulted, had the court held to the course that it has presently adopted, in presumably a statement of reasons
as to why the court was refusing or declining to
deal with the other grounds of appeal.

MR KABLE:

Your Honour, understanding as Id~ what

Your Honour puts to me, the only answer I can give
to the Court is that having urged the court to
take that course as I indicated, and I am happy
if Your Honours would wish to see the pages that
I refer to, and having lodged a document with the

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Jones

court which disclosed that the submission was
that an acquittal was an appropriate result if
certain grounds were successful, it did not occur that one could go back again once the
orders had been made and make the request of
the type that Your Honour refers to.
(Continued on page 5)

• ;
'

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Jones

TOOHEY J:

Mr Kable, there is another aspect that - there were

two grounds of appeal which had been stood over by

consent. One related to an appeal against sencence, so
I put that to one side, but the other apparently related
to the way in which the trial was conducted.

MR KABLE:	Yes, Your Honour.
TOOHEY J:	If that ground had been pursued,was it the object of

setting aside the conviction by reason of the conduct
cf the trial?

MR KABLE:

It was expressly conceded, Your Honour, by counsel,

that the best possible result that could occur in
consequence of the successful resolution of the ground
relating to the incompetence of counsel was a retrial. It was put to the court during argument on a number of
occasions - could I just interprose, Your Honour? There
were about five affidavits filed which were voluminous
and which made many allegations against the applicant's
counsel at his trial. There were disputed questions of
fact which were likely to engage the court for some
three to five days in the considered estimate of myself
and my learned friend, Mr Melick. It was conceded that
the best possible order, if I can use that phrase, that
the applicant could receive in consequence of making out
that ground was a retrial. It was in that circumstance
that the court was urged by both parties to give
consideration to what were loosely described as the
"non factual grol.?nds of appeal" before embarking upon an

adjudication of disputed questions of fact. And it was in
that circumstance that by consent those grounds were
adjourned in the event that all other grounds - the court
were advised by counsel that there was nothing in the
disputed factual matters which could bear upon the other
grounds of appeal because the court were concerned about
adjourning any grounds of appeal lest there be an
adjudication of other grounds which resulted in an
application for special leave to this Court e.nd the question
of whether or not the proviso might or might not apply.

t The court were advised in a considered concession,

if that be ·the appropriate word, that there were no
aspects of the factual grounds which would bear upon the
disposition of the legal grounds of appeal and that is
why there are the two references in the rea.sons of
Their Honours to grounds 1 and 7, as first drafted, being
adjourned and not being adjudicated upon and that is
expressly referred to, Your Honour will note, in the
affidavit that was filed originally with the application
for special leave,in the judgment of Their Honours in
the Court of Criminal Appea.l and now in these
submissions.

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Jones

BRENNAN J:

Is there anything which would preclude your applying to the Court of Criminal Appeal in Tasmania

now for its consideration of the grounds which you

say were not referred to?

MR KABLE:

Your Honour, I have directed my attention to the question that this Court might ask whether this

Court would send the matter back to the Court of
Criminal Appeal but I have not directed my attention

toward a fresh application to the Court of Criminal

Appeal because my understanding was, once disposed

of, there would not be an entitlement to go back.

But the frank answer to Your Honour's question is

that is not a matter that I have given specific

consideration to.

I have givenconsideration to the

question that this Court might ask me why should

not the matter be remitted if the Court were of the

view that the assertions contained in the various

documents were assertions which would lead to that view. But the answer to Your Honour's question is I am not sure.

TOOHEY J:

When you use the expression "fresh application",

Mr Kable, I take it you are not suggesting that there

is anything in the grounds - that there are any grounds
sought to be argued before this Court that were not

part of the appeal to the Full Court of the Supreme

Court of Tasmania.

MR KABLE:

No, Your Honour. Everything that is sought to be argued before this court was thoroughly ventilated

before the Court of Criminal Appeal.

TOOHEY J:

So I suppose, if open, it would be a renewal of the

original appeal.

MR KABLE:

Yes, it would, in fact, be saying to that court

what I am asking this Court to do, but the concept
of going back to that court, having had this
adjudication and saying, ··~11, Your Honours, you

before, was something that just did not occur to me really did not consider these groundsrwhen I had al~eady asked them to and when there was a document as a legitimate disposition of the matter in seeking
the order of acquittal which is the ultimate end
result of the argument.

TOOHEY J: That only highlights the question, does it not?

Why not go back to that court?

MR KABLE:

As I indicated in answer to His Honour

Mr Justice Brennan, I had not given specific
consideration to whether one can go back to the
court. There is no order adjourning grounds 1 and 7.
The order has been taken out in the matter.

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Jones

BRENNAN J:

I was wondering, has an order been formally taken

out?

DEANE J:

Yes, it is at page 494 of the appeal book, which means

that if you were to go back to the Court of
Criminal Appeal you would be attacking the order made
by that court which has been taken out which allowed
the appeal and ordered a new trial.

MR KABLE:

Yes, Your Honour.

Mr Bugg kindly reminds me that the

practice in Tasmania is that the Director of Public
Prosecution's office takes out all orders in that court and that is an order that, in fact, was taken
out by his office. In answer to Your Honour, I am
directing my mind to such things as - the great

difficulty is that there is a vacuum as to why
the course that was urged upon the court was not taken.
I am fully conscious that had there been no urging -
and I use that word carefully -
of the court to reach the result that is now under
discussion, then there would be no possible basis
upon which this Court could be urged to intervene
given the strict criteria relating to an application
for special leave.
As I say, the Crown will argue that

there was a reference, or two references, by subsequent
counsel which~ and as I understand the word they

proposed to use -"encouraged''the court. But the
references that I have got here will show that the
court was urged in the strongest terms to make an
order of an acquittal and, in fact, they seemed to
skate around the issues a couple of times - if I could
use that phrase - in the judgment where there is talk
of the similar fact evidence in the corroboration.
The answer, I suppose, therefore, Your Honour

Mr Justice Brennan, is that an order has been taken

out. I am not aware, in Tasmania, and obviously I am
not aware elsewhere of any occasion where there has been
an attempt to ask a court to further consider a matter

subsequent to the giving of judgment when there had not
betn,prior to the giving of judgment, an indication

that that course would occur. They are the matters - - -
(Continued on page 8)

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Jones

MASON CJ:

What do you say about the other matter that you have investigated, that is the power of
the Court to remit the matter to the Court of
Criminal Appeal for the purpose of undertaking
a determination of the unresolved issues?

MR KABLE: It occurred to me on a reading of the cases
that if this Court reached the view that the
Court of Criminal Appeal had failed to properly fulfil its function, bearing in mind the authorities that this Court is not a Court of Criminal Appeal, this Court might pose the question to me, "If
we have reached a view in favour of your argument
as to the first question, why should this matter
not be remitted to the Court of Criminal Appeal
in the nature of a mandamus to determine the
other grounds according to law?", and there were
some submissions I would seek to put to the Court
as to why, now that the Court is seized of the
matter, the Court ought to resolve ultimately
all issues in the appeal. Is that the matter to which
Your Honour would wish me to address you now?

MASON CJ: You may as well address us on that now, I think,
Mr Kable, yes.

MR KABLE: Your Honour, the time frame of the events in
this case is of significance in this matter in
that the earliest offence alleged to occur occurred
in September 1986. There are three counts in
respect of which the accused was convicted;
the crimes relating to two of which occurred
in September 1986 and the other count was

January 1987. The trial occurred in June 1987,
the conviction occurring on 29 June 1987; the
sentence was imposed on 1 July 1987 and for reasons
which I understand are accepted by the Crown - no
fault of the accused - there was a considerable

delay in his appeal being heard. His appeal
was commenced to be heard in September 1988,

judgment being given on 21 October 1988. We
h~ve sought to move this matter expeditiously
because, obviously, if we are unsuccessful there
will be a retrial.
So the first submission we would make is

that if the matter is to be returned to the Court
of Criminal Appeal there will be a further significant

delay which, if there is to be a retrial, may
well prejudice all parties, given the nature
of the evidence which was sought to be led by
the Crown and given the accused's position.

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Jones

MASON CJ: But be that as it may, I mean, it is not the

practice of this Court to undertake initial
consideration by way of review of substantial
questions.

MR KABLE:

I understand that, Your Honour, and certainly

that is not the strongest point that I would
advance in support of the conclusion I am urging.
Your Honour, this Court recently, in HOCH's

case, gave detailed consideration to similar
fact evidence and the circumstances in which

that evidence will be admissible. The written
submissions that I have just handed to the Court
disclose that the applicant's submission is
that there is, in respect of the question of
the admissibility of similar fact evidence,
still at least one, if not more, questions that
require clarification and, in particular, the
trial judge in this case ruled that the evidence
was admissible because of what he ruled was
an underlying unity - and I am being very brief
rather than go into detail to answer Your Honour's
question.
Your Honours will recall that in the majority

judgment in HOCK's case a number of the phrases which
have been used to describe similar fact evidence
were set out and the submission would be in
this Court that the phrase "underlying unity"
and the phrase "system" are phrases which have
got to be very cautiously applied because a
close reading of the English and Australian
cases shows, firstly, that a warning should
be used as to their use and, secondly, that in
all probability they are a subgroup of evidence
which justifies the description '·'striking similarity".
And the question of whether that is an accurate statement, given the continued attempts by the

Crown here and, obviously, by the other cases
b~tore this Court to introduce similar fact evidence,
in my submission, that is a point which in itself
warrants consideration because it cannot be said,
in my respectful submission, that the law in
respect of the test for similar fact evidence,
once we start using those phrases, is clear and,
of course, the majority judgment in HOCH's case
made it clear that it was the probative value
of the evidence as compared to the potential
prejudice.
But it was submissions on that point that I was seeking to put to the Court. The second question which, in itself, in my submission,would warrant the grant of special leave was the application of the Full Court of Victorian decision in KEHAGIAS, its

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Jones

(Continued on page.9A)

interrelation with KILBOURNE and the question
of whether in respect of what has been described
by the textbook writers and the authorities where,
in respect of the question of mutual corroboration,
the same caution and same legal principles as
this honourable Court applied in HOCH's case
ought to be aP,plied such that the phrase "mutual
corroboration' is, in fact, not a useful phrase
because it comprehends such a variety of conduct
that the test as to whether evidence of two
complainants can corroborate each other should
be more definitively stated and whether it ought
to be stated along the lines of the principles set out HOCH's case as to the question of the
admissibility of similar facts and a preliminary
adjudication as to that issue.

(Continuing on page 10)

f
t

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Jones

MR KABLE (continuing):

Now, I am conscious that one answer

to the final point that I make may be that in the
light of HOCH's case you are only ever going to have
similar fact evidence admitted where there is not
a real risk of collaboration and thus it follows
that the question of whether or not there is a
difference between KEHAGIAS and KILBOURNE and
HESTER may be a question that if what I just said
is correct does not require answering. So it is
for those reasons that I submit that this Court,
once seized of this matter, that there are factors
associated with the matter which would warrant
the grant of special leave and would therefore
lead to a situation where the Court could adjudicate
upon the case as a whole.
Finally I would submit that the question -

because we are dealing with a question which is
the successful resolution of which in favour of
the accused is an acquittal, then there is, as I
indicated before, not only the question of the
time sequence of events but also the question
that if this Court were of the view that either of
the two propositions were correct, ie, that the
evidence was not admissible as similar fact
evidence on the basis of the authorities or,
alternatively, that the effect of KEHAGIAS at

the time that this case was heard was such that
there was no corroboration; questions which if
successfully resolved would result forthwith in
an acquittal and bring to an end what are
significantly protracted legal proceedings, the
significant protraction of which is not the fault
of the applicant or his advisers.
They are the three reasons that,I would submit,

once seized of the matter would warrant the Court
continuing to hear the matter rather than - - -

BRENNAN J:

Would it be right to say, Mr Kable, that in

order to dispose of those grounds it would necessitate

a ciose examination and an evaluation of the
evidence to which the submissions are directed?

MR KABLE:

Necessarily, Your Honour, it would.

The answer

to Your Honour's question is "yes", but not the
totality of the evidence in the case, the evidence
of the two girls alone. But, yes, the answer to
Your Honour's question must be "yes", that it is
a question of looking at those - as to the similar
fact question it is a question of looking at the
evidence of the two girls and once the question
of principle is resolved, and as to the question of
collaboration. Necessarily it would be up to me to
locate evidence which could induce into the Court
a finding that there was a risk of collaboration.
So the answer to that question must be of that nature.

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Jones

:MASON CJ:	Mr Kab}.e, is that all you want to say on that issue?
MR KABLE:	As to the answering of Your Honour's preliminary question as to why the matter - - -?

MASON CJ: Yes, what I am seeking to raise with you at this time

is the course that the Court should take in relation to

this application for special leave. Now the course that
you are advocating that we should take as a matter of
preference is to embark on the hearing of the special leave
application, grapple with the substantial points unresolved
by the Court of Criminal Appeal, and, if your arg-i..unent

is successful, allow the appeal. Now what I am suggesting
to you is that ~. pref er able course may be to hear the
application for special leave, confine our attention to
the fact that the Court of Criminal Appeal did not resolve
che arguments which would have resulted in an acquittal on
your submissions, and perhaps if your argument is
successful, grant the application for special leave, allow
the appeal and remit the matter to the Court of Criminal
Appeal. · For example, on page 506 of your application book
the last grounci, ground 14, is:
The failure of the Court of Criminal Ap~eal to adjudicate upon all grounds of appeal except
fields 1 and 7 constituted an irregularity in
the appeal process which resulted in the
applicant not being accorded natural justice.

Now what I am inviting you to do at this stage is to present the totality of your argument supporting your preference, namely, that we should embrace the whole of
the case rather than merely act on ground 14 which is,
as it were, the course that prima facie appeals to me
at least?

MR KABLE:

Yes, Your Honour.

I would take what I said a little

further in answering Your Honour in putting this
submission: that if that course we~e taken, that course
would result in this Court at this time not giving

further consideration to the question of the admissability
of similar fact evidence.
(Continued on page 12)

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Jones

MR KABLE (continuing): I am conscious that this Court
must feel as the English House of Lords felt
when similar fact evidence had come back on
a number of occasions, but as I indicated
to the Court earlier, it is my submission that
there are still aspects of the law relating
to the admissibility of similar fact evidence
which require resolution and in particular this
question of whether the phrases that are referred
to in HOCH's case of "system and underlying
unity" are merely phrases which are descriptive
of something once it has the feature of striking
similarity and I submit strongly that there is
a real issue to be resolved there and that the
facts of this case - question mark - leaving
aside that the court does not want to take the
next - "does not want" is not quite precise,
but leaving aside the next step, which is the
application of the principle so found to the
facts, I would submit that there is still a real
issue relating to similar fact and that what
happened in this case, in that the evidence was
admitted in consequence of a finding of underlying
unity, is contrary to the House of Lords and
a close reading of Their Lordships,' judgments and
is an area which will be of assistance to trial
judges throughout the country.
Your Honour, I am conscious that there is

already one matter reserved before the Court

in THOMPSON relating to similar fact. I read the
transcript of the argument yesterday in that
case and the issue that I am seeking to ventilate

here is not an issue that was ventilated in that

case. So, in addition to what I put to

Your Honour before, accepting that the Court
historically has ruled that it is not appropriate
to be involved in factual issues, if the Court

were minded to adjudicate only upon legal issues
I would be urging the Court to give consideration
to the similar fact point in principle that I

s*bmit arises.

TOOHEY J: But to date has the Court of Criminal Appeal

said anything adverse to the submissions that
you would be putting to this Court?

MR KABLE:	Your Honour, no.
TOOHEY J:	Except perhaps by inference in so .. far as the

Court has not directed its attention specifically
to those matters.
(Continued on page 13)

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Jones

MR KABLE: And I would not seek to have an inference drawn that

the court - I do not know why - I cannot know why the
court did not do it but I do not say necessarily that
it leads to the inference that it was against the
argument I put. I would not seek - - -

TOOHEY J: At least open, perhaps, to speculation that the
court may - if it had directed its attention to the
grounds of appeal which you now seek to argue, may
have resolved them in your favour.

MR KABLE:

Your Honour, that is quite correct and that is

certainly what was put to them and that is a possibility.
But that is the way I answer, Your Honour, and the
second question is: KEHARGIAS is a case that,when
one has a look at ROSE:t1EYE"R, is inferentially subject
to strident criticism from within the court in which
it was decided. There are significant dissenting
judgments relating to it and again, there is, in my
submission, a significant matter of principle associated
with it and what it means compared - not compared to
but in relation to HESTER and KILBOURNE - but again
there is no Court of Criminal Appeal judgment

adjudicating upon that matter. But the point I am
seeking to make at this stage is that that is a
significant matter of principle which, but for the
Court of Criminal Appeal's decision in the area, would
be likely in my submission to warrant the grant of

special leave. The fact that it is a Full Court
decision in Victoria and that there are conflicting
judgments not only as to the disposition of the
matter but as to the principles to be applied in
adjudicating is - and I mean this not disrespectfully
to the Court of Criminal Appeal in Tasmania - there
are already four views in the two judgments. It is
unlikely that there will be more than four views
if the Court of Criminal Appeal of Tasmania considers
it. The court may or may not split but the bottom
line will be, whichever way the court goes as to that
there is likely to be a significant matter of principle.
Of course, if there is an acquittal the Crown might

not want to bring it back, so that is the counter to

th~ point I make to Your Honour. They are the
submissions, Your Honour, that I put in answer to
the question that Your Honour has posed of me.

MASON CJ:

Yes.

Now, there is one other aspect perhaps you

ought to direct attention to and that is this: do
you wish to put submissions,rrore detailed submission
in support of ground 14. In other words, I would
want to avoid a situation in which you are giving
the substance of your argument on ground 14 in reply

to what Mr Bugg says when we call upon him. So I
think you ought to put what you want to put on
ground 14 now.

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Jones

MR K.ABLE:

Yes, I do want to put submissions of substance in

relation to ground 14.

Now, Your Honours, the Crown

have indicated to me that they propose, in respect of
ground 14, to argue that learned counsel for the
applicant encouraged what I have described as a serious
irregularity in the appeal process and I have indicated
to the Court from this position that the submissions

were put to the court urging them to make a finding of

acquittal and in the light of Your Honour's observation

I feel I should hand to the Court - obviously the

transcript of the proceedings was very voluminous and
was not included in the books, but I have extracted

a number of relevant passages that I would wish to

make available to the Court.

My friend has copies;

they were made available to him yesterday.

He has

certain parts of certain transcripts that he wants to
refer to and he made available passages yesterday -

photocopies of the passages to which he will refer.

TOOHEY J:

Do you mean we now have the composite, as it were?

MR K.ABLE:

No, that is not a composite; that is the ones to which

I wish to refer.

Could I just give Your Honour very

briefly the factual - not the facts of the case

but

the factual background of the appeal.

Your Honours

would be aware that in Tasmania there are four terms

in which appeals are heard, there are not appeal
courts sitting right throughout the year. This trial

occurred in June

1987 and the accused was sentenced

in July.

The appeal was not disposed of in late 1987.

The applicant changed legal advisers and then the

factual issues came to light and for that reason the
appeal was adjourned early in the March term of 1988.
Come the June term of 1988, there was insufficient time

and thus the matter came to be argued in the September

. term which is the third of four terms.
I appeared for the applicant. There is a practice

direction in Tasmania that in respect of any appeals
to the Court of Criminal Appeal or the FullCourt
the counsel must lodge,seven days before the date,

written submissions and the respondent must, four days
later, lodge written submissions in reply. Those
documents were lodged; they do not appear in the court record
here anywhere.and it is not normal in Tasmania for
subsequent documents to be handed up in the fashion
that they are handed up in this Court at the commencement
of argument as I did today.
(Continued on page 15)

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Jones

MR KABLE (continuing): At the commencement of argument, however,

because I had found the question of the interrelation
of the similar fact questions and corroboration and
the other issue so compliced, I had drafted what I called
a "summary of argument" which is the document which
appears in the appeal book m1d is the annexure to my
affidavit, and that document appears at page 471A.
Sorry, there was one other matter I should have mentioned

to the Court. The original notice of appeal had but two
grounds in it. That appears at page 466. It was later
amended to have included the document that appears at
page 471 -they are not quite in the right order
then during the hearing at least one of Their Honours
in the Court of Criminai Appeal expressed the view that
the grounds on page 471 were still not sufficiently
definitive in that they failed to refer precisely to those
passages in the summing up which were said to be
erroneous and the document appearing at pages 469 and 470

was substituted. So that is why it is th~t you have got

three different documents. The document appearing at
page 471A and page 471B refers to grounds 4, 5 and 6 on
the prec1=ding page,· and those three grounds call into

question: (a) the admissability of similar fact
evidence; (b) the direction as to co~croboration; and
(c) whether the written statement should have been
admitted pursuant to section 81B of the EVIDENCE ACT

TASMANIA. And as I indicated that document was done
as much to help me as to help the Court to crystallize
the thoughts but the significci.nce of it; for the
adjudication in this Court upon ground 14,is that it
discloses at the earliest possible stage that the
applicant seeks an acquittal because - and I do not
propose to read it aloud to the Court, but the Court will
see, in respect of each of those grourids, 4, 5 and 6,
that that document. which was handed to the Court,
sought an acquittal.
The circumstances M:!rrounding the. handing of that docunent

to the court appear in the first of the pages of
transcript that I just handed to Your Honours which are

pag~s 4 to 9 inclusive.
~
(Continued on page 16')

C2Tl4/l/SR	15	8/2/89
Jones

MR KABLE (continuing):

The first part of page 4 is

irrelevant, it relates to the numeration of counts
in ithe indictment and at the bottom of page 4 I indicate to Their Honours that I am handing

a document to them. Page 5 relates to what
I call the non-legal issues and at page 6 at line 23:
convictions in respect of Counts Three and Four
ought to be quashed and a verdict of acquittal entered -

and at pages 7, 8 and 9 those references are continued.
HOCH's case was reserved at the time that this case was before the Court of Criminal Appeal.
The Court of Criminal Appeal were advised of that
fact, they were offered a transcript of the argument
before this Court but it was submitted - which, in
my respectful submission, is a further important
point - it was submitted to the Court of Criminal
Appeal in Tasmania that it was possible for them
to dispose of this case notwithstanding that HOCH
had not been decided because it was said there
were grounds unrelated to the decision which was
to come out in HOCH, whichever way that decision
were to be, that would justify the entering of
a verdict of acquittal.

Now, that is on the very first day and at

page 38 there is a brief reference there - that is
the next page in the series of documents,- to the
question of putting off the non-legal ground.
Pages 42 to 43 is a further reference which makes
it clear that all that is being asked is for the
non-legal ground to be put off. What the court
did was raise the question of - as I indicated earlier
to Your Honours - what if we put off the non-legal grounds and there is a question of the application of the proviso and it was in that circumstance that
the concession that I referred to earlier was made,
firstly, that the best result that could occur for
the applicant as to the factual ground was a retrial
and, secondly, that there was nothing that would

be relied upon in the disputed factual issues to the'legal questions. That is made clear at the top
of page 44, lines 1 to 3.
At page 96 lines 26 to the top of the page, there is

a brief reference to an exchange between His Honour
Mr Justice Underwood and myself. But then the rrost crucial passages appear at pages 167 and then 169 to 174
where there was a debate between members of the court and myself as to what would be the likely disposition of the case in the event of upholding
certain grounds and there is, in my respectful
submission, persistent reference throughout those
pages to the verdict of acquittal. Page 170:

C2Tl5/l/MB	16	8/2/89
Jones

Well I would argue in the strongest terms
that the law is clearly that if evidence
is inadmissible and if there is no other
evidence to support conviction then an
acquittal must follow.
His Honour the Chief Justice and myself then
debated the question of evidence inherently
inadmissible or evidence, the manner which was
inadmissible in consequence of the manner in which
it was sought to be led and it was in that exchange
that there were further references to the application.
His Honour the Chief Justice at page 173 again,
line 12:
four, five and six can lead to an acquittal
or a combination or individually.

And at 174 is the concession that the best that
could occur on the factual ground was a retrial.
(Continued on page 18)

I

C2Tl5/2/MB	17	8/2/89
Jones

MR KABLE (continuing): Page 184: again these matters

were ventilated between Their Honours and myself
and again there are passages - I am sorry they
are marked because they were marked in my transcript

but that may be of some assistance. The Crown's
copies are equally marked so we all have the

same. At page 198, line 24:
Fundamental decision -

in answer to a question from His Honour
Mr Justice Underwood with the Chief Justice discussing -
Fundamental decision that we were debating
before the adjournment as whether - if we
are successful there ought to be a retrial
or an acquittal.
UNDERWOOD, J.: Oh well, I understand that.

And then there was a discussion. Then, at page 189,
at the top of the page:
What - it's relevant as to the way I answered
your Honour a moment ago -

in answer to a question from Mr Jutice Underwood.

As to whether we order a retrial or -

MR. KABLE: Or acquittal.

UNDERWOOD, J.: I understand that.

And the penultimate set of materials is page 203:

UNDERWOOD J.: Yes. Anything else?

MR KABLE: That's a warning. The distinction
I draw there, your Honour, -

a•d what that related to was, it was argued that
t&e evidence of children required a warning but
I was seeking to distinguish between the failure to give a warning which could only ever result
in a retrial. That is not precise but the likely
end result of a finding of the failure was a
retrial whereas, pursuant to section 136 of the
Code, corroboration was a condition precedent
to a lawful conviction. Thus a finding that
there was no corroboration could only lead to
one legal conclusion and that is what the exchange

on page 203 refers to. And, at page 205, at
the top:

C2Tl6/l/SDL	18	8/2/89
Jones

UNDERWOOD J.: That's right. So all the
time, as you rightly observed before, we
keep coming back to the nature of this evidence,
the nature of it - well, I was going to
say admissible or not - but if its nature
is not similar fact then that's the end
of this case.
And my comment was, yes:
That's the end.

At page 207, the paragraph at the bottom of the
page marked - I do not pause to read that.
They are the passages that I have extracted

from the first two days of argument before the
Court of Criminal Appeal.

BRENNAN J: Was it discussed at all in the October hearings?
MR KABLE: It was, and the Crown proposed to tender certain
passages of the October hearings, and perhaps,
with the Crown's consent, this might be an appropriate
time to take the Court to those passages so that
I can make such submissions as I wish to in relation
to the set of materials they wish to put before
the Court.

MASON CJ: That is a matter for Mr Bugg, I think.

MR BUGG: I am quite happy with that.

MASON CJ: Very well, Mr Bugg. It might be convenient

for everyone now.

MR KABLE: The Crown have provided me with a copy of the
materials that they would - it would be obvious
to Your Honours that we have had long discussions,
but not about whether we could go back to the

eourt. We have had long discussions trying to
lfmit the material put before this Court.

MASON CJ: Thank you.

MR KABLE: When the court adjourned on 9 September, the
court made an order adjourning the appeal to
11 October which was a date, as indicated, not ordinarily utilized for the hearing of appeals and the court was advised on that occasion that
there would be a change of counsel for the applicant -
they were advised as a matter of courtesy because
there had been debate about the resumed hearing
and the court granted an appointment earlier.
And my learned friend, Mr Gunson,appeared and,
of course, this Court gave its decision in the
matter of HOCH some time in the week before
11 October - on the fifth.

C2Tl6/2/SDL 19 8/2/89
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MR KABLE (continuing): So, Mr Gunson went back before
the court and there was lengthy argument before

the court as to a variety of matters. But if

I can refer to the first passages, at pages 247

to 248, Mr Gunson refers to HOCH. Mr Gunson

says, of that decision, at line 5, it:
effectivelv deals with the issues so far

as similar· facts are concerned in this appeal
and I don't wish to be seen as trespassing
upon your Honours' ultimate functions but
it does resolve a lot of the difficulties
that have been dealt with in this case to

date.

At page 268, which is among those materials,
Mr Gunson said, at line 24:

particularly now that HOCH's -

case -
has been handed down, whether we need to
go further in this appeal, and for your
Honours to then be asked to adjudicate on the conduct of Counsel issue which is an
issue that I would, with respect, think

would occupy your Honours -

So it is important. Mr Gunson, when he says

"go further with this appeal and for Your Honours to ..... adjudicate upon the conduct of counsel 11 is

the reference at line 24. And the Chief Justice:
Just so it can be quite clear that you're
asking again_that we continue the hearing
of this appeal in respect of grounds -

MR GUNSON: The non-Counsel grounds.

At page 274, at the top of the page Mr Gunson,

at'lines 5 to 10, refers to the questions of
fJct and the practitioner and then the passage
that I suspect the Crown place the most significant
reliance on commences at about line 15 where
Mr Gunson says:
I am conscious of the problems about the
proviso. That would depend entirely on
the Crown's attitude to this matter. I
wouldn't want to be in the position - I'll
say this bluntly - of having to, as it were,

juggle with the proviso. I wouldn't take
that chance ..... But if Your Honours, having

considered HOCK, came to the conclusion
that you were bound by HOCK on the facts

C2Tl 7 /1 /ND 20 8/2/89
Jones
of this case, then in our respectful
submission, that is the end of the matter.
As I understand what the Crown will be putting,
it will be that reference. My submission would
be that passage must be looked at in the light
of all which had preceded it and, in particular,
the persistent and regular enjoining of the court
to acquit the accused.
But not only must it be looked at in the

light of what preceded it but also in the light,
io my respectful submission, of which succeeded
it which appears from the next two extracts that are
in the Crown set of transcript which I handed to you where,
at page 441, there was reference to the fact
that learned Crown counsel in this matter had
sought to introduce the similar fact evidence
in circumstances where he, learned Crown counsel,
acknowledged that without the similar fact evidence
it was unlikely that the case would get off the
ground .
And at page 442 there was a debate between

Mr Justice Wright and Mr Gunson and:
MR GUNSON: I don't think it was ever put
any higher than that but it was certainly
a very substantial aspect of his submission
to his Honour that without it and because
of the wording of section 136 ..... 1t was
essential for the Crown case to have it -

which refers to the question of acquittal.

(Continuing on page 22)

• t

C2Tl7/2/ND 21 8/2/89
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MR KABLE (continuing):

At 443, which is the next set of Crown

submissions, Mr Gunson expressly said to the court
at line 5:
And I respectfully submit that in this case it
would not be appropriate to order a re-trial,
particularly when one bears in mind -

Now, His Honour was there referring to sentencing but he expressly said. At 445 there are some observations of the Chief Justice, a discussion between Mr Gunson
and the Chief Justice and a very interesting and
important observation at 446 where the Chief Justice
was asking, ''What if this appeal were allowed solely
on the basis of HOCH?" One assumes what His Honour
meant there - but one does not know in the light of
events that have transpired since - was that, "If we

were against you on all grounds other than HOCH - "
Of course, no doubt the Crown would say that that means,
"by disposing of solely that ground." But in any event,
Mr Gunson says at 446:
if you allowed the appeal solely on the HOCH
basis, the proper course would be to direct

a retrial. I think I have to ..... concede that -

but that is not an invitation or an encouragement to
embark upon that course.

BRENNAN J:

Is that not the basis that you wish to agitate pere,

the HOCH basis?

MR KABLE:	The basis I wish to agitate here is that the evidencE. was
never admissible as similar fact evidence.

BRENNAN J: That is the HOCH basis.

MR KABLE: Well, the HOCH basis is, as I understand, Your Honour,

that the judge should have conducted a voir dire to
see whether there was, in fact, collaboration, or

there was a real risk of collaboration. My submission
goes much further than that, which was the way I put

evidence and say, "Having regard to the law, this itfto Your Honour earlier,and that is to look at the
evidence could never qualify as similar fact evidence,
therefore we do not need to go any further." That is
the basis upon which I am putting it here.

MASON CJ:

But was it put on that basis to the Court of Criminal

Appeal?

MR KABLE:

Yes, Your Honour, yes. On each of those references - I mean, I have not got the whole transcript here, but

it was put - exactly the argument I am seeking to put
here was put to the Court of Criminal Appeal. Exactly
the extract that I am seeking to hand up was put;
that the evidence of these two girls could never

justify the criteria of being described as similar

fact evidence and therefore was never admissible.

The

C2T18/1/VH	22	8/2/89
Jones

HOCH basis was that the trial judge made an error
in not making an adjudication as to the risk of
collaboration.

BRENNAN J:

But, if the HOCH basis were made out, the conclusion

would be that the similar fact evidence should not
be admitted and the result of that would be to leave
the evidence standing without the similar fact evidence
to which objection had been taken.

MR KABLE:	Yes.
BRENNAN J:	The argument which you would address here is that the

similar fact evidence to which objection has been taken
should be excluded and you go on further and say, "And
being excluded, the conviction cannot stand." Here counsel
says, "And being excluded, there should be a retrial."

MR KABLE:	Yes. The reason for the distinction, Your Honour, is
that it is the aspect of the HOCH case which required the judge to embark upon an adjudication as to whether there was a risk of collaboration. There are two steps in it. His Honour, as I understand HOCH and as the Court of Criminal Appeal interpreted HOCH in this case,
the error that they found His Honour the trial judge -
made was in not embarking upon a voir dire or an analysis of the evidence to see whether there was a risk of
collaboration.

BRENNAN J: Procedural defect only.

MR KABLE:

Yes, Your Honour.

I take it much further and say no

matter how many procedural defects there were of whatever
type, the actual evidence that was ultimately led
could never have been described as similar fact evidence arid thus
was not admissible irrespective of such procedural
defects as there were and that therefore in consequence
of section 136 of the CRIMINAL CODE there was no
basis upon which there could be a lawful conviction.

(Continued on page 24)

J
•
'

C2Tl8/2/VH	23	8/2/89
Jones

MR KABLE (continuing): If I might take that one step
further, Your Honour, it was in the test of
admissibilty of the similar fact evidence
that I submitted to the court that there
was a matter of principle because His Honour
the trial judge used the underlying unity
test, if I can call it that. That is what
that reference at the top of page 448 is
talking about. It is talking about the procedural
defect, whereas I had been putting to the
Court of Criminal Appeal, and as I say, extracted
the evidence and said, "Here it is, side by side" -
like two jigsaws, if you like - "Look at it, it can

~ver.ever fit within what has been set out in
SUTTON, PERRY and MARK.BY.
At page 447, if I may take the Court to

that, bearing in mind, of course, this is
subsequent to the passages that I apprehend

will be utilized to ground the opposing argument ,
the Chief Justice observed that it was a bit
like HOCH and Mr Gunson said:
But the situation is marginally different

here, we'd say that now what happens is
that the accused has been denied the
opportunity of being acquitted at that
point.

So, again, the issue was raised fairly and squarely.

I should just perhaps remind the Court

of one matter lest it is of concern. Not only
was objection taken to this evidence and the ruling
of the trial judge before the trial commenced, but
during Crown counsel's address to the jury a
subsequent application was made that the evidence

was inadmissible. So, it is not even a case of
an original application and abiding by a ruling
all the way through; it was made again right
in the middle of Crown counsel's address.

t
Can I just mention one factual matter, lest

it be important? His Honour the trial judge's
preliminary adjudication was based on written
materials handed to him. His adjudication during
the Crown address was, of course, an adjudication
in respect of the actual evidence led in the

case. Now they differ markedly and that is
irrelevant for this purpose because the material
that was before His Honour before the trial is
irrelevant to any adjudication this Court might
have to make.
There was then, at page 450, a discussion

as to the - since the date of the alleged crime
section 136 has been repealed, but there was

C2Tl9/l/JM	24	8/2/89
Jones

a discussion between Mr Gunson and the Chief Justice
and my learned friend Mr .Melick as to the
applicability of section 136 on any retrial. Then,
at page 451, His Honour the Chief Justice indicates
that:
The Court reserves its decision upon the
grounds, other than ground 1. If the determine the appeal without proceeding
to consider ground 1 -

which was the counsel ground -
it will order that the hearing of the
appeal be resumed.

Now, that is the totality of the factual material relating to what was before the Court of Criminal
Appeal.
Being as brief as I can to the Court, I am

just looking at my written submissions, the
highest it can be put, in my submission, for the
Crown is that there was an encouragement by
subsequent counsel to embark on a course which, I submit, is an erroneous course. Even if that
is made out, there were no concessions. There
were sustained requests for consideration of the
fundamental issue, that is whether this evidence

was admissible as similar fact evidence. There
was a document handed up of a type not normally
before the court, urging the court to enter an

acquittal. And, in any event, that error is not
the type of error, in my respectful submission,
that was described by Your Honour the Chief Justice
and Justice Deane in DE JESUS' case as being of the
type which will disentitle an applicant to special
leave because it is not an error that could ever
be said to have been made for tactical reasons

designed to preserve a position later; in fact,
i~ is the exact opposite.
Your Honours, in that judgment, set out that

the laying in wait, or the setting of traps, was
not going to - counsel were obliged to take all

points. But even if this Court were to reach
the view that there had been an encouragement -
that passage, Your Honours, is at (1986) 61 ALJR 1,
at page 7. In Your Honours' joint judgment at
the top left-hand paragraph, Your Honour:

(Continued on page 26)

C2Tl9/2/JM	25	8/2/89
Jones
MR KABLE (continuing):

this Court always pays close attention to
the manner in which a party deliberately
conducts his case at the trial and takes some
care to ensure that it does not, by acceding
to arguments not put at the trial, encourage the approach that a failure to raise matters at the trial is likely to be rewarded, in the
event of conviction, with the opportunity to
conduct the case in a different way on a second
trial with consequent damage to the administration
of criminal justice.
Even if this Court were to find that there had been some encouragement - and my submission is that that is not the case - given what preceded and succeeded
that encouragement, and given the result that was
sought to be obtained ie, an acquittal, there could
be no advantage be it tactical or otherwise in an
accused or those advising him urging a court not to
consider a ground which would result in him
ultimately ceasing to be a part of criminal
proceedings.
So I mention that, Your Honours, and if I can

take the Court to the written submissions at
paragraphs 6 and 7 on page 1 and refer the Court -

I do not propose to read those aloud; Your Honours

have them. I refer the Court to FOWLER, (1984) 58 ALJR
and to the passage appearing in the joint judgment
of the Court at page 470, the bottom left-hand
paragraph where the Court considered, "The power to
grant a new triar'and the court held that the court "rrust decide whether the interest of justice require a new trial" - and I will not pause to read those
two paragraphs out but it is clear that that
judgment, in my submission, makes it clear that there
is a requirement for this question to be considered.

It is my submission that observations of

mepibers of this Court in KING V REG,

(1$86) 6 7 ALR 379, confirm or . .
support the contentions that I have put in paragraphs 6
and 7. Those observations appear firstly in the judgment of Justice Murphy at page 381 under the
subheading "When should a new trial be ordered?" to

line 45, or to the bottom of the page, in fact;
Justice Deane's judgment at page 383 between lines
25 and 35 and Justice Dawson's judgment at page 386
from the top of the page to about line 27.
Reference should also be made to ANDREWS V REG,

(1968) 126 CLR 198 which was a joint judgment of the
Court and the passage to which I refer is at page 209,
the top paragraph down to "did not perform this task".

C2T20/l/BR	26	8/2/89
Jones

MR KABLE (continuing): At the top of page 2 of the written

submissions I refer the Court to REG V LEWIS, (1988)
78 ALR 477, a joint judgment of the Court and I
argue by analogy - well, I submit that the reasons
which led the Court to conclude in LEWIS' case that
the CroWT1 had been denied natural justice, which appear
at page 480, lines 28 to 32, anci page 481, lines 14 to 35,
~hat the observations made by this Court on that
occasion are equally relevant in this case and I refer

to HUNTER, (1988) 62 ALJR 432, where the Court held
that the failure to afford an applicant any right to
be heard or to make submissions as to sentence was a
proper matter to ground an application for special leave.
And I would argue that by analogy the failure to
adjudicate upon a ground of appeal which could result in
a more beneficial order warrants the same conclusion.

Paragraph 9 - I do not propose to take the Court through all those decisions.

The unreported decision of
SUN ALLIANCE INSURANCE LIMITED V Z & B MASSOUD, which

is as yet truly unreported, I have made copies available
to the Court and I argue by analogy. It is a judgment
of the Full Court of the Supreme Court of Victoria.
Again I have given my friend a copy which has the same
note on top of it and I am sorry about that, Your Honours,

"ground J pages. 21 and 23". But I argue that by analogy the
same reasoning that caused that court in that case and
caused this Court - the Court of Appeal in New South Wales
and all those authorities relating to the giving of
reasons, that the very same argument can be powerfully
put as to the need to adjudicate upon grounds of appeal
which might, on the face of them, result in a more

beneficial order. And at page 21 .Mr Justice Gray,
when talking about the reasons why it is necessary for
courts to give reasons for decision, observed:
In my opinion, the decided cases show that

the law has developed in a way which obliges a

Court from which an appeal lies to state adequate reasons for its decision.

The adequacy of the reasons will depend upon
the circumstances of the case. But the reasons will,
in my opinion, be inadequate if:-
(a) the appeal Court is unable to ascertain the reasoning upon which the decision is based; or

(b) justice is not seen to have been done.

And His Honour develops that at pages 23 and 24, the
bottom paragraph, where His Honour refers to a number
of New South Wales decisions and to OSMOND's case in this
Court and His Honour then quotes at page 24 from - and
I do not know how it is pronounced but I will m~ke
an attempt, SOLUEMEZIS V DUDLEY (HOLDINGS) PTY LTD, where:

C2T21/l/SR	27	8/2/89
Jones

At pages 279-280, Mr Justice McHugh, said
that without the articulation of reasons a
judicial decision could not be distinguished from
an arbitrary decision. His Honour went on to say
that the giving of reasons for a judicial decision
serves at least three purposes. First to enable
the parties to see the extent to which their
arguments had been understood and accepted as well

as the basis of a judge's decision. Second, to
further judicial account.ability and, third, to
enable interested persons to ascertain the basis
upon which like cases will probably be decided in
the future.
(Continued on page 29)

f
i

C2T21/2/SR	28	8/2/89
Jones

MR KABLE (continuing):

I would argue that those three

reasons are equally applicable to the proposition
that I am urging upon this Court. Finally, it
would be appropriate for me to take the Court
to the reasons for decision of the Court of Criminal

Appeal in this case. They commence at page 475 of

book III. At page 477, if I can take the Court
to that page, about half-way down:
At the request of both counsel, this court
agreed to postpone the hearing of argument
on Grounds 1 and 7, which respectively
alleged a miscarriage of justice by reason

of the conduct of the trial by the appellant's
counsel, and that the sentence was manifestly
excessive, until after consideration had been
given to the issues raised by the other grounds

of appeal. We find that we are able to
dispose of this appeal by the determination
of two grounds only -

and then Their Honours set out the two grounds.
At page 480 the court referred to the fact that:
Between the date of trial and the hearing
of this appeal the High Court handed down
its decision in HOCH.

Significantly, at page 479 in the passage that is
reproduced adjacent to the number 10 in my written
submissions, the court noted:
There was no evidence of admissions by the
appellant and the verdicts of guilty depended upon the jury's acceptance of the evidence of the complainants to prove the commission of
the crimes charged and as corroboration of
each other's evidence as was then required
by the Code.

So that is a conclusion that we accept is correctly
st~~ed, but if we go to page 484, four lines from
the' top of the major paragraph:
If the complainants' evidence on one
count was inadmissible on all other counts
an order for separate trials should have
been made.

That is the other reference to the question of inadmissibility and does not - it is not only the question of the order for separate trials -that
conclusion in law is correct - but there is no
assessment of whether the evidence was inadmissible
and, secondly, it is not just that an order for
separate trials should have been made but if
His Honour the learned judge at the time of the

C2T22/l/MB	29	8/2/89
Jones

second application to him were of the view that the
evidence was inadmissible then it follows, we submit,
as-a matter of law that an acquittal was required.
The final passage of the judgment of the Court of
Criminal Appeal that I would wish to refer to this
Court is at page 481 where on the fourth line,
having noted that the application for separate trials
was refused,the court observed:
The learned trial judge identified a number of
striking similarities in the evidence to be
led on each count and, inferentially,
concluded that they were of such a nature that
the evidence transcended that of mere
propensity and was probative of the issues to
be tried.

Now, that is the only reference to that matter and obviously there is no attempt to adjudicate upon the correctness of that decision and, of course,
SUTTON V REG makes it clear that it is a question
of law whether the evidence is admissible, not
a matter of discretion and thus there was a legal
requirement for the adjudication, it is submitted,
upon the admissibility of that evidence.

(Continued on page 31)

{
t

C2T22/2/MB	30	8/2/89
Jones

MR KABLE (continuing): And, as indicated, adjacent. to
No 10, and, of course DE JESUS' case supports
and then takes SUTTON further and I do not propose
to take the Court through that.
Paragraph 11, in my written submissions,

shows the Crown's purpose in leading the evidence and paragraph 12 notes what I have told the Court
previously that two separate applications were
made in respect of its admissibility.
Your Honours, they are the submissions that

I would put in respect of the ground 14, if it
please Your Honours, and as I understand that
is all Your Honours wish me to deal with at the
moment.

MASON CJ: Yes, thank you, Mr Kable. Yes, Mr Bugg.

MR BUGG: Thank you, Your Honour. I do hand up the outline

of submissions. Your Honours will see that I
do devote some time in the outline to first of
all the history of this appeal before the Court
of Criminal Appeal in Tasmania, that is at page 1,
and then, more specifically, to the ground 14 point
that Your Honour the Chief Justice has raised
with my learned friend.
Your Honour, perhaps before embarking upon

the submissionswhich would amplify that written
outline I should indicate that, of course, from
the respondent's point of view we would submit
that this is not the case for special leave in
any event, that the arguments as submitted to
the Court of Criminal Appeal in Tasmania by the
applicant as to the status of the evidence, be
it similar fact evidence or evidence of
corroboration, were lacking in merit and that,
in fact, the evidence was admissible as similar
fact and once you reach that point, of course,

in our submission, we would say that the special
11ave argument fails in any event.
But that is the one difficulty I have in embarking upon a consideration of this preliminary
point regarding ground 14 because I see a problem
and that is that this Court is being encouraged,
in one sense, but obviously of its own direction
is looking at one particular aspect of the
application with a view to, perhaps, remitting
the matter to the Court of Criminal Appeal in
Tasmania on issues for determination which, in
our submission, which you will see from the written
outline, the court has effectively determined
but the determination of which to the disadvantage
of the applicant will no doubt find him back

C2T23 /1 /ND 31 KABLE 8/2/89
Jones
here again on the very same points that he seeks
to canvass in this application.
Your Honours, if I may perhaps address you

on, first of all, the history of this appeal,
because it is quite important to understand wrat
transpired before the Court of Criminal Appeal
in Tasmania to perhaps appreciate why the respondent
says that the concessions which we submit were
made by counsel for the applicant, Mr Gunson,
are of significance.
Initially, as I say in the written outline,

the appeal was l6dged on 13 July, the first notice
of appeal appears in pages 46 to 47 of the appeal
book.
(Continuing on page 33)

f
\

C2T23/2/ND 32 8/2/89
Jones

MR BUGG (continuing): I should say this, that there was
one further ground of appeal added and that was

appeal ground J. So there were approximately
four attempts at establishing a formal document
before the Court of Criminal Appeal which addressed

the issues complained of by the applicant. Appeal
ground J, as it was drafted and presented to
the Court of Criminal Appea~ appears at page 477
of the appeal book and 1s - that is the judgment of
the Court of Criminal Appeal and it is the ground
numbered "l" at the foot of the page.
So it followed the appeal grounds A to I which were, at one stage, presented to the Court
by my friend, Mr Kable, to articulate the numbered
grounds of appeal which had been lodged by counsel for the applicant, Mr Gunson. There were a number
of changes of counsel throughout the duration
of this appeal process.
So that is the other ground of appeal and,

of course, was drawn and presented to the Court
as a consequence of this Court's decision in
HOCH's case.
The appeal was first listed for hearing

in the fourth term of 1987 and that is the

October/November term. An adjournment was sought
for reasons to suit the convenience of counsel.
I say that because that appears from part of the
transcript of the submissions made by my learned
friend, Mr Kable, which has been tendered to the Court this morning. As a consequence of that the matter was then stood over to the March
term in 1988 and there was a change of counsel.
The new counsel, instructed Mr Gunson, sought
an adjournment of the matter because he proposed
to lodge fresh grounds of appeal prior to the
term hearing in March.
That, as I say in the written outline, was

to enable an amendment of the notice of appeal
tp include further ground as to the manner in
which the applicant's counsel had conducted the
trial and that notice appears at page 471 of

the appeal book. The appeal was then, for
administrative reasons within the court, as I
understand it - I do not have any direct familiarity
with that - taken out of the June/July term and
put into the August/September term and at that
time Mr Gunson was unavailable to argue the appeal
and the matter was taken up by Mr Kable because,
obviously, it was now becoming imperative that
the appeal be determined and, in fact, the Crown
was placing some pressure on the applicant to
deal with the matter and present his argument
to the court.

C2T24/l/SDL 33 8/2/89
Jones
The fresh or further grounds of appeal, A to I,
were then presented to the court by way of articulation
of the numbered grounds of appeal and then my
learned friend, Mr Kable, presented argument
and submissions to the court in relation to all
grounds of appeal except those numbered 1 and 7.
Obviously there was a desire on the part of both
parties before the court to avoid, first of all,
the hearing of fresh evidence as to these points
taken in relation to the conduct of counsel and
the estimates given to the court no doubt encouraged
the court to look at the matter, if it could,
certainly in an endeavour to dispose of it without
embarking upon ground 1.
The court was unable to conclude its consideration

of submissions before the closure of term and,
as Your Honours are no doubt aware, once the
term period finishes, all the judges of the Supreme
Court in Tasmania then depart to circuit duties.

We do not have a separate Court of Appeal. The
court then reconvened as soon as practicable,
anyway, to conclude the hearing of the appeal
and that was outside the normal term time.
At that stage, counsel for the applicant,

who was available initially to argue the matter,
Mr Gunson, was back and available and Mr Kable
was unavailable so Mr Gunson took over the matter
and presented the closing submissions on behalf
of the applicant and that included, of course,
the references to HOCH's case which I will further

refer Your Honours to in a moment. And also,
then, of course, the Crown responded and then Mr Gunson

replied and the decision of the court was reserved.
(Continued on page 35)

J
'-

C2T24/2/SDL	34	8/2/89
Jones

MR BUGG (continuing): Now, Your Honours, that sets
out the history of the matter and it perhaps,
in my submission, would explain why Mr Gunson,
and the concessions, in my submission, which he
made, or the encouragement which he offered to
the court should not be taken to be a last minute interchange from the bench- that is the bench on the perimeter of the oval - to represent the applicant. That, in fact, he was
seized of the matter at the outset of 1988; he
drafted the notice of appeal which was further
explained by grounds A to I and presented the
further ground J, and made submissions to the
court in relation to the effect of HOCH's case.

Before considering that subparagraph

of the outline on page 1, Your Honours, I would
seek to address you in relation to a submission
that,in fact, as Your Honour Mr Justice Toohey

has said, by implication in can be read
from the judgment and what transpired with
counsel that the Court of Criminal Appeal did
not view with favour the arguments which had
been presented in relation to the question
of admissibility of the similar fact evidence
and also the issue of corroboration.
I there, in the outline, refer to MRAZ and

QUARTERMAINE and I need go no further than to
refer Your Honours to, in fact, the relevant
passage from the judgment, which is at page 484 of
the appeal book, where Their Honours make ~eference
to MRAZ in relation to clearly a consideration
by the court as to whether or not it should have
applied the proviso, and I say to Your Honours
that the Court of Criminal Appeal would not,
in my submission, have been embarking upon even
a reflection as to the proviso if it had not
reached a conclusion that the similar fact
evidence - the evidence of one girl, one complainant -

w~s admissible on the grounds of similar fact
e~idence and that it was mutually corroborative
of the evidence given by her sister. That passage
in fact has already been referred to by my
learned frien4 Mr Kable,and I refer Your Honours
to it. It starts approximately half-way down the
page with the words:
However, whether or not the evidence was
inadmissible by reason of the possibility
of concoction is not a matter this court
can now determin~ as there was no enquiry
on this issue. If the complainants' evidence
on one count was inadmissible on all other
counts an order for separate trials should have been made. In these circumstances it

C2T25/l/JM 35 8/2/89
Jones
cannot be said that, notwithstanding
the error of law, the appellant has not
lost "a chance which was fairly open to
him of being acquitted".

obviously considering whether or not the applicant had lost a chance which was fairly
In my submission that comment indicates that the
open to him of acquittal and you do not, in
my submission, reach that point unless you
have determined the similar fact issue in favour
of the Crown.

(Continued on page 37)

i
t

C2T25/2/JM	36	8/2/89
Jones

TOOHEY J:

But that was an issue that was firmly put before

the Court of Appeal by the appellant, was it not,
that is, the question of whether the evidence
was inadmissible?

i1R. BUGG:	In other words, that it was not - - -
TOOHEY J:	That it was not similar fact?
i1R. BUGG:	It was not strikingly similar and, therefore,

it should not have been admitted, yes, that was
certainly put fairly and squarely before the
court and I would certainly concede to Your Honours
that from my point of view if that evidence was
not strikingly similar, if it was not admissible
as similar fact evidence, that really was an end
to the matter because in 1987 the provisions of
the Tasmanian CRIMINAL CODE, certainly in relation
to all but one of the counts in the indictment
which was one of plain assault, required

corroboration. It was not a question of a warning
but the applicant could not have been convicted
unless there was corroboration of the complainant's
evidence.

TOOHEY J:

But given the importance of that matter, Mr Bugg,

it is curious that the court did not proceed to
deal with the point fairly and squarely?

i1R. BUGG:

Well, Your Honour, I considered that and you will

see from the written submissions or the outline
that I have there that in subparagraph (e) on page 2
I say that the Court of Criminal Appeal, if it had reached a conclusion that the appellant had failed
on the other grounds of appeal would unfairly fetter
the trial judge on retrial if it published reasons
for finding that one, the evidence was admissible
as similar fact and, two, was capable of
corroborating the other complainant's evidence
because bear this in mind, what it is doing is

saytng a preliminary inquiry, the condition precedent
fro~ HOCH's case, was not undertaken by the trial
judge but we cannot say what the outcome of that
was, it has got to go back for retrial. If we
say, behind the written text of the judgment,
this is strikingly similar, it is similar fact
evidence and it was admissible - and I suggest
to Your Honours that, in fact, the HOCH decision
involves this consideration by the trial judge
at the outset - one, he does not even consider
the question of a possibility of collaboration or
conspiracy unless what he has before him is
strikingly similar evidence.
He does not even get to that inquiry unless

it is strikingly similar because the explanation
for it being strikingly similar is that it is
probative; alternatively it is coincidental by

C2T26/l/MB	37	8/2/89
Jones

some freak or, thirdly, it is the product of a

co~spiracy or concoction. But he does not even
consider the q~estion of a conspiracy or concoction
unless what he sees before him is strikingly
similar evidence and that is implicit, in my
submission, from what Their Honours say. Now,
if that is the case and they are remitting the
matter for retrial, for them to say what the
trial judge had before him was strikingly similar
evidence and was capable of being used in the
form of mutual corroboration, that would fetter
the subsequent trial process which the Court of
Criminal - - -

BRENNAN J:	Why?
MR BUGG:	Because that is a decision which the trial judge has to make at the outset of the trial, is this
evidence admissible as similar fact evidence?
The Crown would have, in effect, a paper argument
before the trial judge as to what it had - well,
this is the evidence that was given on the last
trial, the Court of Criminal Appeal has said it
is similar fact evidence, may we get underway?
We do not wish to have the counts severed from the indictment on the DE JESUS'principle because the Court of Criminal Appeal has already adjudicated the matter and Your Honour would be
bound by that adjudication because what was
before His Honour the trial judge is similar
fact evidence.
TOOHEY J:	But was not the appellant putting to the Court

of Criminal Appeal that concoction or non-concoction
aside the evidence was inadmissible as similar
fact evidence?

MR BUGG:

Certainly.

TOOHEY J: Well,that is a ground that seems to me to stand

to stand independent of any preliminary inquiry. independent of the notion of concoction and also

MR BUGG:

Yes, I accept that, Your Honour, but what I am

saying is that that ground, it is implicit in
the reasons which Their Honours gave, it is
implicit that they pass that ground to get to
the HOCH point.
(Continued on page 39)

C2T26/2/MB	38	8/2/89
Jones

MR BUGG (continuing): In other words, they themselves were

satisfied that what the trial judge had before
him was strikingly similar evidence and having it
so before him he failed to undertake the inquiry
which this Court has said should have been
undertaken either on voir dire or on examination
of the committal papers.

TOOHEY J:

If you could make good your major premise the

rest may follow but that is really the crux of it, is it
not? You make it good only, I think, by inviting
us to conclude or to infer from the body of the
judgment that the Court of Criminal Appeal must
have concluded that the evidence was strikingly
similar and that therefore the only basis for rejecting
it would have been the failure of the court to embark
upon the preliminary inquiry.

MR BUGG:	And that, Your Honour, is precisely what the court
said at page 2 of the judgment at page 477 of the
appeal book, when it said the only basis, in
effect, that we can determine this appeal, that that
must be read at the conclusion of the paragraph, the
entire paragraph because 'What it _is ~is, when this
matter came before us we were urged with the consent of the Crown to adjudicate on all those grounds bar 1
and 7, and .leaving aside 7 - 1 of course was the fresh
evidence of the Crown - to see whether or not we could determine the matter without recourse to ground 1. And
they say, yes, we can determine the matter but only on
two grounds.

DEANE J: But if there was a ground which would have entitled

the applicant to an acquittal and if on your
argument that ground was rejected by inference without
it even being considered expressly or examined
expressly, would not we then move into an area where
this Court would be taking a very strong step in
upholding your approach tl!lless it independently
examined the ground and decided there was, in fact,

nosubstance in it?

4

MR BUGG:	Tl:iat is correct, Your Honour, yes, because that
is precisely why, before I commenced this outline,
I indicated to Your Honour the Chief Justice that
I was concerned that our position is that the
similar fact ground is without merit and it may
involve, rather than the exercise of returning to
Hobart and then returning to this Court, an
undertaking by this Court of a consideration of that
evidence. It does not involve the volume of
appeal books that Your Honours have before you, that
in fact it involves the evidence of two girls, one of whom was reticent and her statement to the police as a result of statutory provisions in Tasmania under the Evidence Act - her statement made to the police at the time she complained was, in fact,

C2T27/1/BR	39	8/2/89
Jones

tendered and she attested on oath that that was her

statement and was correct. So the compass within
the appeal books of this evidence is very brief.

DEANE J:	Then if that be so, your approach is really that this
question whether the court did or did not deal with
something that it should have dealt with is really irrelevant because in any case this Court is driven to having a look at the question of substance.
MR BUGG:	I would obviously argue for brevity, Your Honour, and
I would say that, "-No, I do not seek to abandon my
that this Court can conclude that the Court of
first submission". All I am saying is to Your Honour arguments put in relation to the acquittal grounds but
that the text of the judgment does not indicate, as it
is argued by the appellant, that the court failed to consider and adjudicate on those grounds by not publishing reasons for dismissing the appeal on the other grounds that it did not uphold the appeal on.

(Continued on page 41)

C2T27/2/BR	40	8/2/89
Jones

MR BUGG (continuing): That is a preliminary point. There are

other arguments in relation to this ground 14 of the notice

which I would wish to submit to the Court anyway
before obviously asking that it errbarked upon a consideration
of evidence. But if the Court feels disposed to say,
"Well, we are satisfied that the court did not accede
to the submissions of the applicant's counsel before
it to adjudicate, and if finding in favour, acquit,
and therefore we uphold his application for special leave and remit the matter to the Court of Criminal
Appeal with a direction that it does adjudicate and
publish reasons for its adjudication and determination
of those issues," because it seems to me that the

unfavourable adjudication and determination of those issues from the . applicant's point of view w'ill result in
the applicant being back here because of what my learned friend has

already canvassed with you this IIDming. In other v,;ords, he says that

there is a matter of principle involving the question of
the use of similar fact evidence as mutual corroboration
and there is a conflict within the States supreme courts,

perhaps best illustrated with KEHAGIAS' case. But
that is another matter.

LKENNAN J:

He would only be back here as a matter of certainty

if your submission is right, that the court has already
considered and rejected his solution.

MR BUGG:

That is correct.

I would not seek to bind the Crown

on an intention to travel to Canberra again between
now and Christmas, Your Honours. Yes, that is correct.
All that it does - either that it has already made a determination arrl not published its reasons, or,
alternatively that it will make a determination

unfavourable to the applicant. So there is one other
alternative.

BRENNAN J:

The basic problem, as it seems to me, is that, looking

at ground 6, for example, that the court did not express
any conclusion with respect to that ground and, as I
understand it, it was a ground that was advocated and
was not withdrawn in the course of the argument. That

being so, the court failed to perform its function
uniess one can infer from its silence and from dealing
with the concoction argument, that it must have dealt
with it adversely to the appellant.

MR BUGG:

Yes, but, Your Honour, in addition to that, one must

consider the history,which I have briefly outlined, of
this appeal, where quite simply both parties were at
pains to avoid the court undertaking a consideration
of ground 1 purely and simply because it would have
required a sufficient inquiry into the new evidence, or fresh evidence, and the affidavits are annexed to the appeal book and, in fact, take up a considerable

portion of the appeal books. The problem was adverted
to by both my friend, Mr Kable, and Mr Gunson, in their
submissions to the Court of Criminal Appeal and you

have the text of those. But we do not wish the Court

to embark upon a consideration of ground 1. Mr Gunson,

C2T28/l/VH	41	8/2/89
Jones

when he returns to the court in October, with a copy
of this Court's decision in HOCH, says, "Look, here

is the answer to all our problems. We can solve the

matter by the application of HOCH's case." And that
is the result, in my submission, of what he said to
the court: that, if I'm wrong or I fail in my
submission as to the implication argument, you move
then to consider whether or not, in fact, the court
was encouraged by the applicant's counsel to undertake
the course it did, purely and simply to resolve the
matter without recourse to ground 1 and, I suppose,
effectively, at the end, ground 7.
(Continued on page 43)

• t

C2T28/2/VH	42	8/2/89
Jones

TOOHEY J: But staying with the situation as it existed at
the time that the Court of Criminal Appeal adjourned
in September, did not the court have before it
at least three arguments on behalf of the appellant,
one, the question of whether the trial judge
should have embarked upon this preliminary inquiry,
two, as a quite separate ground,that the evidence
of each girl was inadmissible as similar fact
evidence and, thirdly, that in any event, the
evidence of each girl could not be corrobative
of the other ?

MR BUGG: Yes, that is correct in one sense, with respect,

Your Honour. The court adjourned in September
with two of those arguments before it.

TOOHEY J: Why do you say "with two", Mr Bugg?

MR BUGG: Only two because the preliminary inquiry point
had not been canvassed until HOCH's case was
decided and that was in October when the court
reconvened and then that point was put.

TOOHEY J: Was that merely because it had not been reached.

MR BUGG:

It had not been reached. I am sorry. When I say "it had not been reached", that stage of
the appeal process had not been reached where,
that is,the applicant's submissions had not been

concluded. The court said, "We've run out of
time. We'll reconvene as soon as we're able
to reschedule our circuit commitment." I am

sorry, I stand corrected by my learned junior
who argued this appeal before the Court of Criminal
Appeal on behalf of the respondent.
The applicant's submissions had concluded

in September. The applicant sought to reopen
argument as a consequence of the publication
of the decision in HOCH's case.

TOOHEY J: {Before we move away from September, is it right
then that the three grounds that I have expressed
in that summary way had been advanced before
the Court of Criminal Appeal?

MR BUGG: Certainly, that is correct, Your Honour.

TOOHEY J: So, then, in effect, you are asking us to infer
from the judgment of the court that the independent
ground going to th€ admissibility of evidence as similar fact evidence and the ground going
to corroboration had both been rejected by the
Court of Criminal Appeal without any direct reference
to either of those grounds.

C2T29/l/ND 43 8/2/89
Jones

MR BUGG: The only direct reference, Your Honour, is at
page 2 where they say '\Je can",- in effect, ''only
decide this appe~l without recourse to ground 1
~n -two grounds."

TOOHEY J: Yes, but ground 1 has got nothing to do with

what we are presently discussing. Ground 1 had
been put to one side.

MR BUGG: Yes, ground 1 had been put to one side and the
applicant had said, "Please consider our
submissions in relation to all these other grounds
before you go back to ground l."
TOOHEY J: The three grounds that I formulated a moment
ago had nothing to do with ground 1.

MR BUGG: I know, Your Honour, but what the applicant
was saying to the Court of Criminal Appeal was,
"Don't go to ground 1 unless you determine all
the other grounds including three that you have
articulated against me." In other words, "If
I fail on everything that I'~e arguedF1then we'll
come back and we'll argue ground 1 which will
involve the taking of fresh evidence and what
have you."

TOOHEY J: Yes, I understand that. It is a fairly long

step, is it not, to find on page 2 of the reasons
of the Court of Criminal Appeal some implied
rejection of the similar fact ground and the
absence of corroboration ground?

MR BUGG: It is a long step when one says there is no
reference, specifically, to those grounds but,
in my submission, you can understand the court's
reasons for not wishing to express reasons if
it has reached a stage where it has decided to
reject them and a retrial is inevitable as a
consequence of its other finding published in

the reasons. To then embark upon an adjudication
qf those issues.when it has got to go back before
the trial judge, in my submission, does place
him in a difficult position and would be a
position which the Court of Criminal Appeal would
be anxious to avoid, obviously.

(Continuing on page 45)

C2T29/2/ND 44 8/2/89
Jones

DEANE J: Would it be correct to say on your reading of the

judgment one, as it were, implies agreement with what
the learned trial judge said in the extract set out from
page 478 to 479 and with his conclusion set out on
page 480, that the evidence, if accepted, was capable nf
being seen as corroboration?

MR BUGG:	Yes.
DEANE J: Then does not that bring us back to this:	if that

be the correct reading of the judgment, and I can see
great force in the view that it is, in circumstances where
they did not say they agreed with it, how could we escape
from at least looking at it to see that it was as
clearly right as the members of the Courr. of Criminal
Appeal seemed to have assumed that it was?

MR BUGG:

I can perhaps answer Your Honour in relation to

one aspect of the two princip~l points, that is,similar

fact and corroboration if you turn to page 483,and
before moving to the conclusion of the court's decision
on the HOCH ground, Their Honours say half-way down
page 483:
In the present case, the complain~nts

were sisters -

and then go on. And they conclude, by referring to that evidence as "the similar fact evidence" about two-thirds
of the way down that paragraph.

DEANE J: Yes, I have noticed that.

MR BUGG:

Yes, and it is implicit, in my submission, that that

reference is an indication that the Court of Criminal
Appeal was treating the evidence as similar fact
evidence; not potentially similar fact evidence, not
evidence capable of being considered as similar fact

evidence, but saying "the similar fact evidence". And

because of what I said earlier about the HOCH preliminary
inq~iry, you do not even embark upon it unless what you
have there is something that raises the question mark:
if so similnr,is th~re a collusion or a conspiracy to
frame the accused or the defendant? So whilst it is a
long step, perhaps in relation to corroboration, it is
arguable that once you reach the point where the
preliminary inquiry is to concoction has not been made,
Their Honours,as they said to Mr Gunson, "Well, look how
can we then speculate as to what would the ultimate
r~sult hAve been as far as the evidence is concerned to
consider what evidence there would have been or should
have been admissable against the applicant?" It is
capable of argument, in my submission, that the court
then nuved through the corroboration argument and
concluded against the applicant because what it had
was similar fact l?vidence but no preliminary inquiry.

C2T30/l/SR	45	8/2/89
Jones

Similar fact evidence capable of corroboration and it
is our submission that the authorities are plain on it,
particularly in light of what was said by this Court

in HOCH's case, that one of the primary uses of
similar fact evidence is as corroboration of the other

complainant I s e,ridcnce. And our submission would be,
in any event, just disgressing for a moment, the
Victorian Supreme Court confronted with the similar
problems it had KEHAGIAS,would not reach the conclusion
now in light of HOCH's case that it did in KEHAGIAS,

where the majority judgment in KEHAGIAS did not even refer to KILBOURNE 1 s C'-ase. Anyway there are other
submissions in relation to KEHAGIAS and I do not wish

to embark upon that. But that is about the shortest
I can reduce the length of that step, Your Honour, and
I cannot take that point any further, I am afraid, but
they are the matters that I wish to place before you.
(Continued on page 47)

!
i

C2T30/2/SR	46	8/2/89
Jones

MR BUGG (continuing): I was moving on to consider
subparagraph (b) on page 2 where the applicant's
own counsel encouraged the Court of Criminal
Appeal to resolve the appeal by determining

ground Jin the applicant's favour. I merely
advance that argument as an alternative
obviously to the submissions I have been making.
The first reference -and my learned friend,

Mr Kable,has handed up the documentation which
we made available to him prior to coming up here -
is page 273 of those passages which Your Honours
have of the submissions of counsel for the
applicant, Mr Gunson, after the publication of
HOCH's case. It is my submission that you must
consider this: Mr Gunson is arguing before the
Court of Criminal Appeal on 11 October and the
decision of the court is handed down in written
form on 21 October. At that stage the Crown
had not replied to the submissions made by
Mr Kable who had concluded his submissions in
September. There were therefore 10 days between
the conclusion of these submissions - and you
will see from what His Honour the Chief Justice
said early on on the day that he had not read
this Court's decision at that stage in HOCH's
case, but 10 days later the Court of Criminal Appeal published its reason for upholding the
appeal on the HOCH ground and the statement
admissibility ground, that is section 81B of

the EVIDENCE ACT. I do not wish to muddy the
waters by going into any detail on that at
this stage. But, on page 273, His Honour the
Chief Justice, at line 10, clearly indicates,
in my submission, that the proviso was even
then in the minds of the Court of Criminal
Appeal because it was advanced in argument with
counsel for the applicant where His Honour then
says, "Well, look, what if we apply the proviso?"

I use that only as an indication of what I had
s~id in the submissions concerning the text and
the terminology used in the decision that why
refer to MRAZ's case if you had not gone down
that road towards a consideration of an application of
the proviso? And there, in my submission, there is
an indfcation that the court was considering a
question of the proviso.
(Continued on page 48)

C2T31/l/JM 47 8/2/89
Jones

MR BUGG (continuing):

The history of the matter, as it has

been canvassed in some detail now, and that is why
I have said that it is important to understand that the applicant's counsel, both counsel and counsel for the Crown, were anxious to see if the matter
could be resolved because there had been, for want
of a better word, a rather unfortunate experience
the previous year where approximately 11 sitting
days of the Court of Criminal Appeal were taken
up with an identical argument about fresh evidence
and affidavits and cross-examination before the
court and, obviously, it would be to everyone's
advantage if the matter could have been resolved
within the scope of the grounds which were argued
by both Mr Kable and Mr Cunson.

The first passage I refer Your Honours to

is at page 248 at the top of the page where
Mr Gunson - - -

MASON CJ:	Which page is this, Mr Bugg?
MR BUGG:	I am sorry, page 248 of Mr Gunson's submissions,

not of the appeal book, Your Honour. It is the

second page of that. He says:

Yes. Could I say this to your Honours,
it's a very important case and one that,
with the greatest of respect to my learned
friend, I believe and will be so submitting
to your Honours, effectively deals with
the issues so far as similar facts are
concerned in this appeal and I don't wish
to be seen to be trespassing upon
your Honours' ultimate functions but it
does resolve a lot of the difficulties
that have been dealt with in this case
to date.

Of course, what is there being submitted is that
it effectively deals with the issues as far as

sim;i.lar fact is concerned and that is his opening
submission in relation to the effect of HOCH's

case. I do not wish to embark upon a consideration
of Mr Gunson's reference to the facts in HOCH.
The next page is 268 - obviously we have only
photocopied and extracted those relevant passages.
(Continued on page 49)

C2T32/l/MB	48	8/2/89
Jones

MR BUGG (continuing): At line 7, having said that there was

a substantial miscarriage of justice:

Therefore, the appeal against conviction
must be allowed. Now they go on to make
some observations about a re-trial which
I don't pause to make here, but I'll be
addressing Your Honours at some later stage

about that I would hope. But I'm grateful
for the opportunity to be able to expand
Mr Kable's submissions to draw this judgement
to your Honours' attention because it is
one of critical - I cannot emphasize how
critical it is -
we do it here to the effect of High Court decisions

in Tasmania. And, at line 19:
I would like to again renew the application
that was made by my learned friend, Mr Kable,
at the conclusion of this matter before
your Honours on the ninth of September and
that is to ask the Court to adopt the somewhat
unorthodox approach of considering, paticularly
now that HOCH's been handed down, whether
we need to go further in this appeal, and
for your Honours to then be asked to adjudicate
on the conduct of Counsel issue.

Once again, it was an underlying theme of the
applicant's arguments, that "Can we see if we
can resolve it?", he says, "Particularly in light
of HOCH's case", he is saying the matter can
be resolved without recourse to ground 1.
The reference to the proviso is on page 273,

the next page that Your Honours have, and Mr Gunson
says:
I am conscious of the problem of the proviso.

At page 274, this passage has already been referred
to by my learned friend, Mr Kable, but what he
says is, at line 22:
But, if Your Honours, having considered
HOCH, came to the conclusion that you were
bound by HOCH on the facts of this case,

then in our respectful submission that is
the end of the matter.

Of course, that follows a reference earlier up
the page, at about line 13, to the problems which the Court would be confronted with if it embarked
upon consideraticn of the fresh evidence argument.

C2T33/l /SDL 49 8/2/89
Jones

MR BUGG (continuing): The next passage is at page 445. This

is after the Crown had responded to the applicant's
argument before the Court of Criminal Appeal and
:Mr- Gunson was then in reply.

DEANE J: After the Crown had responded to all the applicant's

arguments?

MR BUGG:

That is right.

DEANE J: Including whether it was similar facts?

MR BUGG: Similar facts, corroboration, yes.

DEANE J: And the Crown responded to that after these passages

from Mr Gunson on which you rely?

MR BUGG:

Yes.

DEANE J: They do not take you very far then, do they? I mean,

what were you doing saying it was similar fact evidence
if the impression Mr Gunson had given was that that
had gone out the window and all we were concerned
with was whether it was concoction or not?

MR BUGG:

Your Honour, I would say that: that the Crown has

the benefit, as does a respondent or applicant on

the other side to the Crown in Tasmania, of seeing

written submissions in advance as to what the nature

of the applicant's case is to be argued before the

Court of Criminal Appeal. Mr Gunson's submissions

were extempore. There was certainly no foreshadowed
ground J of the appeal. There was certainly no
written submission that that would be what Mr Gunson

said and the Crown appeared in the Court of Criminal

Appeal obviously expecting to connnence its arguments

in response, but obviously at the same time aware of

HOCH's case because we had provided the copy.

But obviously it would be, in my submission, imprudent not to respond to the other arguments which

hai been advanced because there was evidence on the

appeal book alone whereby the Court of Criminal Appeal

in Tasmania could have said, "Well, even though

His Honour did not enbark upon that preliminary

inquiry, the subsequent evidence and cross-examination
of the witnesses was such that we are satisfied that
there was no opportunity to concoct or conspire" because

Your Honours will see that part of the appeal book

involves detailed cross-examination of the two girls

as to whether or not they got together, so to speak,
because what happened was the complaint in relation

to one girl was made under the child protection

legislation in Tasmania - she was innnediately
removed from the house - and approximately two months

later the complaint in relation to the other girl was

made and that involved activities, alleged activities

of the applicant in the intervening period but also
some reference to prior matters as well.

C2T34/1/BR	so	8/2/89
Jones

DEANE J:

But have you not really got to face up to

the fact that you seem to be submitting to the

Court that the Crown, having made submissions

in a contest that the evidence was similar fact

evidence and those submissions, having been upheld

by implication by the court and binding the judge

at a new trial, it is relevant for us to look at

what Mr Gunson said on the basis that somehow it

can be construed into asking the Court to deal
only with the concoction argument?

MR BUGG:

I appreciate that, Your Honour. I know that Mr Melick,. when he responded, conceded that

in light of HOCH's case the matter would have
to go for re ial, that there had not been a
preliminary _quiry. Now that basically was
an end to th matter as far as the Crown was

concerned.

We were confronted with the prospect

of retrial and you will see that there was some

reference in Mr Gunson's submissions that a

retrial was sought by the Crown.

But at the -

BRENNAN J: If that concession was made, there was only

one issue still remaining and that was retrial
or acquittal.

MR BUGG:	Yes, I accept that, Your Honour.
BRENNAN J:	And we look to the judgment in vain to see

any consideration of that alternative.

MR BUGG:

Well, Your Honour, no.

I am sorry,

I really

cannot advance it any further than I have as
to those matters.

TOOHEY J:

The Court of Criminal Appeal could then have

disposed of the appeal immediately, could it not,
by concession?

(Continued on page 52)

C2T35/l/JM	51	8/2/89
Jones

MR BUGG: Well, it only took 10 days to, Your Honour.
TOOHEY J: No, but it did not even have to wait 10 days.
All it had to say was, in effect, was the 6rown
now concedes in the light of HOCH's case that
there must be a retrial because of the failure
?f t~e trial judge to embark upon the preliminary
1nqu1ry.

MR BUGG: Yes_ Of course, the argument as to a retrial
obviously involves a consideration of the cogency
of the evidence in any event and one would have
to suggest that it would be imprudent to merely
concede the point of HOCH, ask for a retrial
and sit down without some consideration of the
cogency of the evidence which got to the similar
fact preliminary inquiry stage which the court
obviously considered that the trial judge should
have undertaken.

DEANE J: But that is not being completely fair to the
Court of Criminal Appeal, is it, in that it
was a live issue whether on concoction there
should be a retrial and that the Court of Criminal
Appeal did direct attention to, in other words,
explaining that it should not simply order an
acquittal on the grounds of concoction but there
were· material that the trial judge would have
to determine, including matters which had been
raised but which he did not have evidence about.
MR BUGG: Yes, or apply the proviso and dismiss the appeal.
I mean, that is obviously a live issue as well
and had the applicant been deprived of a chance
which was reasonably open to him of acquittal
was a factor that was obviously in the minds
of the eourt of 6riminal Appeal they adverted to it specifically within their judgment. So that the live issues, I suppose, range from the

top to the bottom: apply the proviso, direct

~ retrial or direct an acquittal. And therefore
ehere had to be some consideration of the strength
or cogency of the evidence for the Court of 6riminal
Appeal to be able to consider those matters.

(Continuing on page 53)

C2T36 /1 /ND 52 8/2/89
Jones

BRENNAN J:

At the end of the hearing, in October, it seems

towards the end of the hearing in October, the
Chief Justice at page 445 put to counsel, did he
not, that if the HOCH's case basis is going to be
the basis on which the appeal is upheld then that
only leads to a retrial?

MR BUGG:

Yes, and no doubt in response my learned friend

will draw some significance to the response to that
cormnent or suggestion from the learned Chief Justice

at the top of the next page. He says:

That's right. I reflected on that and I
came to the conclusion that if you allowed
the appeal solely on the HOCH basis, the
proper course would be to direct a retrial.
I think I haveto properly concede that,
because it's not your function to
determine what is really the function of
the Trial Judge.

But that was after, obviously, the Crown had made
its submissions in reply. I can indicate that
the principal responses from the Crown related
to HOCH and section 81B. If I could digress for one moment. The 81B issue was just as important because that was the vehicle by which the statement
of one of the complainants was tendered in evidence
and therefore placed before the jury, evidence
of her complaint which she was reticent or reluctant to articulate on oath in the box.
That being so if the 81B argument failed from
the Crown's point of view, that is, it was being
submitted that section 81B was not the appropriate
vehicle to tender that statement and it should not
have been admitted, then the Crown case failed
anyway because there would not have been any
corroboration of the other girl's complaint and
vice versa because there would have been no

evidence of the other girl's complaint. So it
wasian important issue for the Crown to address
beckuse as you will see from the following passages
of Mr Gunson's submission in reply he does revert
to the 81B argument - and I am sorry for using
shorthand - but that is something he addresses
after the learned Chief Justice refers to it.
I just quickly refer Your Honour Justice Brennan to that - at line 14 I think it was - on page 447
because he falls back to 81B.

(Continued on page 54)

C2.T37/l/MB	53	8/2/89
Jones

MR BUGG (continuing):

He says:

We know what it really means, it's for a
careful analysis by the trial judge, probably
on a voir dire with sworn evidence as to the
possibility of the association between the

children. And then he applies HOCH's case on
the basis of what is given before him, it's not

Your Honours' function I don't think. But one
thing I do want to say to Your Honours is this,
that if Section 81B had been - sorry I withdraw
that. If we are correct in our submissions about
Section 81B, and that is that the statement of the girl is not admissible - - -
So he falls back to 81B which, of course, as I say, occupied a considerable portion of the Crown's response because there would have been no similar fact evidence
if that statement had not gone in and Your Honours may
have seen from the appeal book how quickly she dried
up, she really did not even get to a matter of sexual

complaint before she stopped. But my learned friend
did refer to the closing words of the final paragraph
of Mr Gunson at the foot of page 447 and I merely refer
Your Honours to that because what he was onlv referring
there to was the section 81B argument and not all other live
issues on the notices of appeal that had been filed
because there had been a response, ''Well, is that not

a retrial point as well if you fail on the preliminary inquiry under section 8lB? 11 He says:
Yes but the situation is marginally different here.

That is, 81B to the HOCH point:
We'd say that now what happens is that the accused has been denied the opportunity of being acquitted at that point, when he should have been, and it's
through no fault of his own, now all Your Honours

would do if the matter went-through to re-trial,
{ is ,enable my learned friends ;o prop -

and then the matter moves away from it. But what he
was saying was that if the 81B argument succeeded, the
statement goes out. There is no similar fact evidence;
there is no corroboration and I quite freely concede•
that the Crown would have a feather to fly with.

(Continued on page 55)

C2T38/l/VH	54	8/2/89
Jones
MR BUGG (c~ntinuing):	We could not prosecute.	So clearly that

was the other barrell to the arguments that were being

advanced by Mr Gunson. HOCH disposes of similar fact
and if you are considering a retrial,do not forget the
question of section 81B because if I win on that that
would give us an opportunity for an acquittal and that is what he was saying at the foot of page 447. He was
not then saying, "Let me bring you back all the other
grcunds of appeal , because if you consider any of those
to the favour of the applicant it entitles him to an
acquittal." I believe they are the only other passages I -
for completeness I left pages 448 through to 451 because
there was a conclusing comment by His Honour the
Chief Justice about HOCH's case and a potential need to
return to consider ground 1.
I do not pause to refer in any detial to any of the

authorities my learned friend has addressed this Court on

on the duties and obligations of appellant courts. I do
suggest in subparagraph (c) that, I suppose it is a negative
that there is nothing to indicate that the Court

of Criminal Appeal did not assess the cogency of the
evidence against the appellant as a determinate of the
question for retrial. And·obviously it had at some
stage considered the question as a proviso and therefore,
in my submission, there is something which can be
gleamed from the decision. That is the text of the decision
and from the discussions with counsAl that t:he !".Ourt was
considering the proviso and therefore, in my submission,
it is implicit from that, had embarked upon a consideration
of the cogency of che evidence preparatory to the order
for a retrial which, of course, is the point made in
relation to FOWLER.

BRENNAN J:

What ~s the court; s view on the 81B of Tcrni 's

statement?

MR BUGG: Precisely, one might say, effectively the same as it

did in relation to HOCH. It said the learned trial

judge failed to inquire as to whether or not the facts
deppsed to in the statement were fresh in the mind of
theiapplicant before he admitted the statement. Therefore
that condition precedent had not been complied with as well and they relied very heavily on a concluding statement from the young complainant that 11He has done
this to me before but I cannot remember when'.' Obviously
indicative that at least, in so far as that sentence
was concerned, there may be some argument that it could
not have been fresh in her mind or she would have

remembered when it was. So -
(Continued on page 56)

C2T39/l/SR	55	8/2/89
Jones

BRENNAN J: Is that the correct view of it, in the light of the

preposition at page 492, the last six lines on the page:
it is clear that there was insufficient
evidence to sustain a finding that the

fact asserted was then fresh in the memory
of the witness.

TOOHEY J: It was only a small section of the girl's

statement that was excluded as not complying
with section 81B, was it not?

MR BUGG:	Yes.
TOOHEY J:	Her reference to what had happened on earlier

occasions.

MR BUGG:	The key evidence in relation to the actual
complaints, or separate counts in the indictment,
one could argue with some justification were
fresh in her mind because -

TOOHEY J: Well, you put it that way, Mr Bugg, but did

the Court of Criminal Appeal do anything that
would have excluded the girl's statement
other than those matters that had occurred
some time earlier?

MR BUGG:

That is right, that is all it did, Your Honour.

TOOHEY J: Basically her statement was admitted under

section 81B, except in so far as it ref erred to
events that had occurred earlier.

MR BUGG:	The Court of Criminal Appeal did not say - it was admissible under section 81B because - I am sorry,
if Your Honours would just bear with me for a
moment. Obviously they determined that that
one sentence was admissible by what they say:

it was not admissible in the form of
documentary representation because
the statutory prerequisites for its
admission had clearly not been satisfied.

TOOHEY J: Yes, I may have misread it.

I rather assumed

that they had found the balance of the statement, particularly in regard to comtemporaneous events, to have been admissible, but that may not be so.

(Continued on page 57)

C2T40/l/JM	56	8/2/89
Jones

MR BUGG: I am grateful to my learned junior, if you would go
to page 492, about two-thirds of the way down
the page, about six lines into that major paragraph,
after the quotation marks which, of course, contain
the words:
but I can't remember when it was" make it
unnecessary to consider in detail each preceding
representation.
So the court did not embark upon a consideration
of each preceding representation.

DEANE J: But was not the point of this that the document
had not been objected to on the basis that it
was not fresh recollection and, that being so,
what the court said, "Well, the objection was
based on other specified grounds." If it had
been based on this ground then, obviously, there
could have been some inquiry about that and,
that being so, it is in the same situation as
the HOCH evidence.

TOOHEY J: I suppose that is right, Mr Bugg, except that
page 492 seems to be the focus only upon the
section of the statement that refers to events
earlier in time. That is reinforced, I think,
by the second-last line on page 492:
It was damaging evidence of the commission
of a crime or crimes other than those charged.

MR BUGG: Yes.

TOOHEY J: What then, at the end of the Court of Criminal
Appeal's judgment, had been said as to that part
of the girl's statement which related to the events giving rise to the charge itself, was

that in, out, or what?

MR BUGG: Npthing. No, it is plain there was no charge
in relation to that last passage from the statement.

TOOHEY J: That does not really help us, does it?

.ECont~nued~ort:page_58).

C2T41/l/SDL 57 8/2/89
Jones

MR BUGG:

It does not help Your Honour, no.

No, I cannot

assist Your Honour further than that.

BRENNAN J:

If the construction of what Their Honours have

said is that the statement ought not to have
been - was not admissible in that form then the
retrial must have been ordered simply on the basis
that Mr Justice Wright expressed at page 447 that
on'a retrial she might not be quite so reticent"?

MR BUGG:

That is correct.

She gave the evidence on oath.

It would be admissible and that is what the Court
of Criminal Appeal says at the top of page 493
that obviously she could give that evidence on
oath but it cannot be admitted in statement
form or documentary form unless you satisfy the
prerequisite.

BRENNAN J:

It is no doubt a question of importance as

to what the court was saying but if the statement was not admissible under 81B then the convictions
should simply have been quashed, should they?

MR BUGG:

I am sorry, Your Honour, the Court of

Criminal Appeal obviously is faced with the position where the trial judge did not embark upon an
inquiry as to the freshness of the facts contained
in the statement, in the mind of the maker of
the statement. Certainly in relation to that
last sentence which is right at the end of the
statement it may be stated that those facts were
not fresh in her mind, to use them or get them

into evidence in that particular manner. But
that would not -·and I would argue that,that that
would not make the balance of the document
inadmissible.

DAWSON J:

Did I understand you correctly to concede

that if the matter went for retrial and you did

not have the documents you could not proceed?

MR BUGG:

~

At that trial, if the document went out

we would not succeed on a retrial if we did not
have the document that the girl gave evidence
on oath consistent with what was in the document.
Obviously we would argue that we would succeed.
If on retrial she dried up in the witness box
and the document was found to be inadmissible
because of a failure to satisfy the prerequisites
under section 81B then that obviously would be
an end to the matter. But that presupposes that
the entirety of the statement contained material
that was not fresh in her mind.

C2T42/l/MB	58	8/2/89
Jones

MR BUGG (continuing): But as Justice Toohey said, clearly,
the other material which made up the evidence
relating to the counts involving that girl and
the dates clearly indicate that it was fresh
in her mind - well, one can presuppose that it

was fresh in her mind.

TOOHEY J: But the reference in her statement to earlier
events had been excluded in any event by the
trial judge, had it not?

MR BUGG: No, it had not, Your Honour.

TOOHEY J: I thought there was some statement that was
admitted but;.. with some covering up of passages.

MR BUGG: Certainly, yes.
TOOHEY J: And I assume, again, perhaps wrongly, that
those were passages which contained the reference
to what had happened on earlier occasions.

MR BUGG: No.

TOOHEY J: That is not right?

MR BUGG: No, they were matters which His Honour determined
were inadmissible and they were not on the basis

of lack of recent recall. They were determined
for other reasons to be inadmissible, either.
that is prejudicial or hearsay and I cannot
specifically advert to them because I do not
have the - - -
TOOHEY J: No, but is it the position then that the statement,
as admitted, contained the reference to what
had happened on an earlier occasion and that
was the subject of challenge before the Court
of Criminal Appeal?

MR BUGG: The entire cha_llenge w_as that sec_tion 81B was
not an appropriate vehicle to admit that statement.
One of the points argued in relation to that
~ene:al ground was that there was no preliminary
inquiry.
DEANE J: But the limited objection taken at the trial is
set out at page 485 in the middle of the page.·
MASON CJ: It may be convenient now to adjourn and we will
resume at 2.15.

AT 12.Sl PM LUNCHEON ADJOURNMENT

C2T43/l/ND 59 8/2/89
Jones

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Bugg?

MR BUGG:

Thank you, Your Honour.

Your Honours, just briefly

in relation to the 81B point, the primary challenge to the admission of that statement, of course, was on the basis that the document was not that of the complainant
witness, it having been written by a policewoman and
the determination on that submission was against the

applicant. However, the Court of Criminal Appeal did
resolve the question on a subsidiary point in favour of
the applicant. That was primarily as to the last sentence
in the statement that one can, in my submission, conclude
that the court was against the Crown on the basis that the
inquiry had not been made as to the recency or freshness
of the facts or alleged facts in the statement at the
time it was made. Now a reference to the contents of
the statement, which is the admitted parts of the statement which are repeated in their entirety on
pages 485 to 487 of the appeal book, indicate quite clearly
the reason behind the Court of Criminal Appeal's comments
at page 492, half-way down the page,where Their Honours say:
The terms of the document read to the jury do not by themselves provide sufficient evidence to sustain a finding that all the representations
were made when the facts were fresh in the
memory of the witness.

And one only needs to look at the top of page 486 to see the justification for that connnent:
I can't remember when it was.

Whilst that particular allegation was not the subject or substance of any count in the indictment, it is an
indication of obviously some lack of freshness or

familiarity with the subject through the passage of time
and~no doubt was the reason why ThP.ir Honours ma<le the
connnent which they did. And Their Honours concluded
at the foot of page 492 that:
it is clear that there was insufficient evidence
to sustain a finding that the fact asserted was
then fresh in the memory of the witness.

In relation to that last sentence in the statement which,

of course, appears on page 487. Of course what - - -

BRENNAN J: What was excluded thP.n? What did Their Honours then

say should have been excluded?

C2T44/l/SR	60	8/2/89
Jones

MR BUGG:	Only in so far as that sentence is concerned - that
sentence itself.

BRENNAN J: Not the one at the top of page 485?

MR BUGG:	No.
BRENNAN J:	Even though that was more remote still, perhaps.
MR BUGG:	It may not be in the sense that there is obviously - there is no detail in the statement as to the last sentence. There is certainly more detail in the statement as to the first sentence at the top of
page 486, before we move~ the place is quite
well defined and the circumstance is well defined
as well whereas the broad generality of the last sentence in the statement really, I suppose, is what
would have caused Their Honours more concern than
what is contained at the top of page 486.

But, of course, what this Court has before

a retrial and an applicant saying that, 11Ihave been it is an order from the Court of Criminal Appeal for
deprived of an opportunity to be acquitted because
the Court of Criminal Appeal failed to adjudicate upon
grounds in the notices which would have entitled me to
an acquittal". And, of course, the question of what
would occur in a retrial - which was raised before
the luncheon adjournment - is really answerable from
probably two fronts. First of all, the complainant
author of that statement may very well give viva voce
evidence as to the contents of the statement and
there may therefore in cross-examination or in
evidence-in-chief be some further amplification of
the matters. Alternatively, the statement itself
can go back in after the appropriate preliminary
inquiry as to freshness on a retrial.
Your Honours, that covers those points contained

on page 2 of the outlines which I wish to draw to

Your Honours' attention. However, I would refer
Your Honours to the case of the REG V LEWIS, which
ha~ been already referred to the Court by my learned
friend - that is in 78 ALR 477 and at page 481 line
30 where this Court, in considering the question of a
Crown appeal against an order of acquittal from the
Court of Criminal Appea~made the following corrnnent:
(Continued on page 62)

C2T45/l/BR	61	8/2/89
Jones
MR BUGG (continuing):

But the grant of special leave is discretionary and the question here is whether the intervention
of this court is necessary for the proper
administration of justice.
In my submission, the proper administration of
justice has not suffered as a consequence of the decision of the Court of Criminal Appeal
when one considers the merit of the primary arguments
of the applicant as advanced by my learned friend
as opposed to Mr Gunson who concentrated more on the HOCH preliminary inquiry point and, in
addition, the section 81 point.
But, in my submission, the similar fact

argument is without merit. In addition to that,
since HOCH, there is no concern or confusion
as to the authorities in this country, at least,
because, as I said briefly this morning, KEHAGIAS'

case was decided before HOCH. It made no reference
to KILBOURNE and has obviously been the subject
of some criticism since by individual judges
in the Supreme Court of Victoria.
The question of whether or not the intervention

of this Court by granting special leave is necessary
for the proper administration of justice, in
my submission, could be answered by, with respect,
moving from the ground 14 to consider the merit
of the preliminary arguments which were to have
been advanced by my learned friend and that is,
if one adopts the approach considered in LEWIS'
case of looking behind what was clearly an unfortunate
hearing from the Crown on an amended
desire for haste on the part of the Court of without
ground of appeal that had raised new issues
and on which the Crown had not had an opportunity

t~ reply, concluded on an examination of the
eyidence that the Crown would not have sustained
or it was unlikely that the Crown would have
sustained a conviction on a retrial in any event
and dismissed the Crown's appeal.
(Continued on page 63)

C2T46/1/SDL 62 8/2/89
Jones

MR BUGG (continuing): Here, in my submission, it 1s
appropriate, with respect, for the Court to
examine what does lie behind the question that
was posed to the Court of Criminal Appeal and
that is, one, there is no striking similarity. Our submission is that there is and, two, that it is capable of mutual corroboration and our
submission on that is that this 6ourt's decision
in HOCH's case is clear authority for the
proposition that similar fact evidence from one
complainant can be used to corroborate the evidence
of another complainant.
They are the only submissions I wish to

leave before the Court in response to those matters
canvassed by my learned friend.

MASON CJ: Yes, thank you, Mr Bugg. Yes, Mr Kable.
MR KABLE: May it please the Court. I have a number of
brief matters to raise by way of reply.
Your Honours, the question of HOCH's case was
well ventilated before the Court of Criminal
Appeal on 8 and 9 September. That 3O8H's case

would be potentially significant was raised

with the coo~t on that occasion. They were offered
a transcript of the argument before this Court
and, in fact, it was submitted to the court that they could resolve this appeal without reference to the issue which was ultimately to be decided.
Thus my learned friend's suggestion that HOCB's
case took Mr Gunson, Mr Melick or the court by
surprise is not grounded in fact.
Secondly, as to the application of the proviso,

it is not strictly correct to say that the Crown
conceded when Mr Gunson was arguing before the
court that the HOCH'groond must succeee_ What
was conceded was that what the trial judge had
done was not in accordance with H66H's case.

The Crown then sought to argue the application
of the proviso and that provides the explanation
for the reference in the reasons to judgment
at page 484 to MR~Z V REG, because the Crown's
argument was that they recognized that HOCH would
inevitably lead to the quashing of the conviction
and sought to argue that the proviso would apply
and when one bears that in mind it is entirely
predictable and undecstandable that Their Honours
in the Court of Criminal Appeal should have refeEred
to MRAZ V REG in precisely the position in
Their Honour's judgment that they did.

C2T4 7 /1 /ND 63 8/2/89
Jones

MR KABLE (continuing): Thus, it is not, in my respectful

submission, a permissible use of that reference to
go from it to say necessarily the question of

similar fact was considered. As to paragraph A(l)(e)
in my learned friend's written submissions, that
matter was not raised before the Court of Criminal
Appeal and, in any event, in my respectful submission,
there could be no question of an unfair fetter on a
trial judge because it was not the exercise of a

discretion that was sought to be discussed. Because
the authorities indicate that the question of whether evidence of similar facts is admissible is a question of law, then there can be no question that the
adjudication of a question of law by the Court of
Criminal Appeal could fetter a trial judge at a time subsequent.
In fact, the opposite is the case; an adjudication

by a court of criminal appeal could only be of
assistance to a trial judge in articulating the
principles to be applied if there be thought to be
any doubt about it and whilst it is understandable
in some cases that a court of criminal appeal would
not wish to embark upon matters relevant to the
exercise of a discretion which has to be exercised
afresh according to the environment existing in the
new trial, it is my respectful submission that the
same cannot be said where the question requiring
resolution is one of law.
My learned friend referred to pages 478 and 479

in the written reasons for judgment in support of the
contention that the argument of the applicant that
the evidence was not similar fact was without
merit. It should be remembered, in my respectful
submission, that the ruling reproduced at pages 478
and 479 was not a ruling upon the evidence which was

ultimately given in the trial. The evidence in the
trial differed markedly from that evidence. That
was the evidence which was tendered to His Honour the

trial judge before any evidence was before the jury
when His Honour made the initial preliminary ruling
as~to similar fact evidence and thus it cannot be
asserted that an examination of those factual
matters - let me put it another way, I am sorry.
It may well be correct to assert that a reading of
the facts on 478 and 479 would lead to the view that
that evidence would be similar fact evidence, but
when the actual evidence was produced in the trial
it was different to that and thus when counsel made
his second application, a different conclusion was
required. It is the actual evidence in the trial
that we submit that did not warrant the description
of similar fact evidence.

C2T48/l/VH	64	8/2/89
Jones
MR KABLE (continuing):	As to the question	of whether it

is implicit from the various connnents within the
judgment that Their Honours did adjudicate upon
the grounds, it is not without significance that
none of the authorities referred to in argument
were referred to, there was no use of authority.
Your Honour Mr Justice Toohey raised the question
of the document going in under section 81B of
the EVIDENCE ACT and an examination of page 492
is instructive to fully understand how that
occurred as is an examination at page 58 of the
trial transcript, which I hand to Your Honours
to enable Your Honours to fully understand.
It is a page missing in the appeal books, that is

why I have just produced it. I looked in my
appeal book and I note that we go from 105 to 107
and page 106,certainly in my books,is missing.
The page that I have just handed to the Court's

associate is the relevant page. Somehow I seem
not to have 106. If Your Honours had 106 then
Your Honours will not need the page that I have

just handed up. It should start off:
After you spoke to Mr Ashman did you see
a Dr Donald?

DAWSON J:	No, we do not have it.
MR KABLE:	I am sorry, Your Honours, for that, I apologize. Now, what happened was that the witness dried up -
to use the phrase the DPP has used - and the witness was then asked at line 4:

Did you speak to a police lady? ... Yeah.
Did you tell her about things that had
happened? ... Yeah.
Did she write them down? ... Yeah.
I'd ask that the witness be shown a statement if it please. Is that the statement that

the policewoman wrote down when you told
i her about things? .... Yeah.
t Did you sign that? Is that your signature

on the bottom of it? On the bottom of
the last page? ... Yeah.
And did the police lady read it out to
you before you signed it? ... Yes.
And was it right? .... Yeah.
Now, that was the totality of evidence led to make
the statement admissible pursuant to section 81B.
That admission of the statement was attacked on a
number of grounds, one of which was that the contents

were not shown to be fresh. The other grounds are
irrelevant for the purpose of answering Your Honour's
question. It was attacked on the basis that it was not the witness's statement, it was attacked on the
basis that there was no sworn evidence, that its
contents -were true - this is in the Appeal Court I should say, not at trial, the objections at trial being articulated in the reasons for judgrrent in the passage that Mr Bugg ref erred to.

C2T49/l/MB

65

8/2/89

MR KABLE (continuing):

But there are a number of attacks

on that statement and if one has regard to
page 492 and the cormnencement of the second
paragraph, one sees that the Court of Criminal
Appeal correctly concluded, in my submission:
The terms of the document read to the jury do not by themselves provide
sufficient evidence to sustain a finding
that all the representations were made

when the facts were fresh in the memory
of the witness.

So that is the first observation that Their Honours

make. Their Honours do not have a need, it is
agreed, to go on to make additional observations
other than those which appear on page 492 because
on any event on the face of the record there was
a representation which could on no view of the
facts be admissible and thus Their Honours did
not have to make a ruling as to what the likely
admissibility of the remainder of the document
would be on a retrial.

It was in that circumstance that it had

to be conceded - reluctantly, but it had to be
conceded that if the irregularity in the document
going in was the failure to hold a voir dire as
to freshness, then that was something which was
procedural in nature and which could be cured
and therefore it could not be argued at a time
subsequent that that particular defect could
inevitability give rise to a finding in an
appellate court that the statement could be
used for no purpose. That answers, I hope, the
question Your Honour Justice Toohey posed and
the question Your Honour Justice Brennan posed
as to that.

It was argued in addition in any event

that the conviction ought to be quashed because
tnere was never in the trial an assent that the
contents of the document were true.

One other matter relating to the question of whether the court were encouraged.

When the
court adjourned on 9 September 1988 and indicated
that they would be resuming on 10 or 11 October,
the court indicated that it was having prepared
a transcript of all that had occurred in the
previous two days, 8 and 9 September, and counsel
requested that a copy be made available to them in

due course. So there is no suggestion that that which
had occurred on those two days was going to be of no
effect at a time subsequent because it was in fact
going to be reproduced to enable Their Honours to give
consideration.

C2T50/l/JM	66	8/2/89
Jones

As to the final submission my friend made
about the proper administration of justice, I submit that is covered by the arguments I put
previously and the authorities which assert
that the placing of somebody in jeopardy on
a subsequent occasion when the evidence does
not warrant that would constitute a failure
in the proper administration of justice.
(Continued on page 68)

• ~-

C2T50/2/JM 67 8/2/89
Jones

MR KABLE (continuing):

The only other matter I wish to mention

to the Court as to this ground - I would hope the Court
would understand the constant changing of counsel was
not for the convenience all the way through of counsel;
there were people actually out of Australia and that is
why the word "unavailable" has been used from rimP to
time. The Court might wonder what was happening with the
case and why bodies were changing. hut one of the
reasons, ...... was that· people were not in fact ·
in the country. It was not to su:i..~ the convenience
of counsel that these various changes that had been
described by my friend occurred and there was no other

way possible. The court was appraise<l of the fact that
on the 10th and 11th, if that were to be the resumed date,
there would be a need to be a change and the court's
view was tr.at it was sufficiently important to get
the matter on early, that that was the inevitable date
and that the transcript could be prepared so that new
counsel ·would be equipped to take on the carriage of the
matter.
The final submission I wish to make refers to a

quotation in a judgment from this Court in t"b.e matter of
CONTENDER 1 LTD V LEP INTERNATIONAL PTY LTD, where in a

joint judgment of the Court of Justices Wilson, Dawson,
Toohey and Gaudron at page 398 the Court observed that
the Court believed that this Court should not be:
zealous to discern a failure on the part of
that court -

being the Court of Appeal of New South Wales -
to fulfill its duty.

My respectful submission is that what the applicant is
seeking to do here is not inviting the Court to act
contrary to that observation and that a reading of the
judgment makes it abundantly clear that the real issues
which were required to be resolved in this matter were not

given actual consideration , that no authorities were
ref~rred to and that the very precise way, in fact, in
which MRAZ was referred to in the position it was, discloses
that failing in the argument for the respondent. They
are the matters that I would reply to,if it please the
Court,as to the preliminary ground.

MASON CJ:

Yes, thank you, Mr Kable.

The Court will consider its

decision. in this matter.

AT 2.38 THE MATTER WAS ADJOURNED SINE DIE

C2T51/1/SR	68	8/2/89
Jones

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before, was something that just did not occur to me	really did not consider these groundsrwhen I had al~eady asked them to and when there was a document	as a legitimate disposition of the matter in seeking
the order of acquittal which is the ultimate end
result of the argument.

MASON CJ:	What do you say about the other matter that you have investigated, that is the power of
the Court to remit the matter to the Court of Criminal Appeal for the purpose of undertaking
a determination of the unresolved issues?
MR KABLE:	It occurred to me on a reading of the cases

the court - I do	not know why - I cannot know why the
court did not do	it but I do not say necessarily that
it leads to the	inference that it was against the
argument I put.	I would not seek - - -

was substituted.	So that is why it is th~t you have got
three different documents.	The document appearing at

be relied upon in the disputed factual issues to	the'legal questions. That is made clear at the top
of page 44, lines 1 to 3.

And then there was a discussion.	Then, at page 189,
at the top of the page:

MR BUGG:	I am quite happy with that.
MASON CJ: Very well, Mr Bugg.	It might be convenient

evidence and say, "Having regard to the law, this	itfto Your Honour earlier,and that is to look at the
evidence could never qualify as similar fact evidence,
therefore we do not need to go any further." That is
the basis upon which I am putting it here.

I do not propose to read those aloud;	Your Honours
have them.	I refer the Court to FOWLER, (1984) 58 ALJR

mepibers of this Court in KING V REG,
(1$86) 6 7 ALR 379, confirm or	. .

Appeal in this case.	They commence at page 475 of
book III.	At page 477, if I can take the Court

MASON CJ:	Yes, thank you, Mr Kable.	Yes, Mr Bugg.
MR BUGG:	Thank you, Your Honour.	I do hand up the outline

the issues complained of by the applicant.	Appeal
ground J, as it was drafted and presented to

We do not have a separate Court of Appeal.	The
court then reconvened as soon as practicable,
anyway, to conclude the hearing of the appeal
and that was outside the normal term time.

unfavourable to the applicant.	So there is one other
alternative.

have the text of those.	But we do not wish the Court
to embark upon a consideration of ground 1.	Mr Gunson,

is the answer to all our problems.	We can solve the
matter by the application of HOCH's case."	And that

MR BUGG:	The only direct reference, Your Honour, is at page 2 where they say '\Je can",- in effect, ''only
decide this appe~l without recourse to ground 1
~n -two grounds."
TOOHEY J:	Yes, but ground 1 has got nothing to do with

what we are presently discussing.	Ground 1 had
been put to one side.

MR BUGG:	Yes, ground 1 had been put to one side and the
applicant had said, "Please consider our
submissions in relation to all these other grounds before you go back to ground l."

MR BUGG:	I know, Your Honour, but what the applicant
was saying to the Court of Criminal Appeal was, "Don't go to ground 1 unless you determine all the other grounds including three that you have
articulated against me." In other words, "If
I fail on everything that I'~e arguedF1then we'll
come back and we'll argue ground 1 which will
involve the taking of fresh evidence and what
have you."

step, is it not, to find	on page 2 of the reasons
of the Court of Criminal	Appeal some implied
rejection of the similar	fact ground and the
absence of corroboration	ground?

evidence, but saying "the similar fact evidence".	And
because of what I said earlier about the HOCH preliminary

DEANE J:	But that is not being completely fair to the
Court of Criminal Appeal, is it, in that it
was a live issue whether on concoction there
should be a retrial and that the Court of Criminal
Appeal did direct attention to, in other words,
explaining that it should not simply order an
acquittal on the grounds of concoction but there were· material that the trial judge would have to determine, including matters which had been raised but which he did not have evidence about.
MR BUGG:	Yes, or apply the proviso and dismiss the appeal. I mean, that is obviously a live issue as well
and had the applicant been deprived of a chance which was reasonably open to him of acquittal

top to the bottom: apply the proviso, direct
~ retrial or direct an acquittal.	And therefore

did in relation to HOCH.	It said the learned trial
judge failed to inquire as to whether or not the facts

MR BUGG:	I am grateful to my learned junior, if you would go
to page 492, about two-thirds of the way down the page, about six lines into that major paragraph,
after the quotation marks which, of course, contain
the words:

DEANE J:	But was not the point of this that the document
had not been objected to on the basis that it was not fresh recollection and, that being so, what the court said, "Well, the objection was
based on other specified grounds." If it had
been based on this ground then, obviously, there
could have been some inquiry about that and,
that being so, it is in the same situation as
the HOCH evidence.
TOOHEY J:	I suppose that is right, Mr Bugg, except that

MR BUGG:	No, it had not, Your Honour.
TOOHEY J:	I thought there was some statement that was

MR BUGG:	The entire cha_llenge w_as that sec_tion 81B was
not an appropriate vehicle to admit that statement.
One of the points argued in relation to that
~ene:al ground was that there was no preliminary inquiry.
DEANE J:	But the limited objection taken at the trial is
set out at page 485 in the middle of the page.·