Jones v The Queen

[2009] HCATrans 10

[2009] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B40 of 2008

B e t w e e n -

CHRISTOPHER CLARK JONES

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 FEBRUARY 2009, AT 10.17 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   May it please the Court, I appear for the appellant with my learned friends, MR P.E. SMITH and MR A.M. HOARE.  (instructed by Ryan & Bosscher Lawyers)

MR A.W. MOYNIHAN, S.C.:   If the Court pleases, I appear for the respondent with my learned friend, MR B.J. POWER.  (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Yes, Mr Callaghan.

MR CALLAGHAN:   The appellant was convicted of murdering a 17‑year‑old man known as Jay Shepherd.  He admitted to being present at the time that Mr Shepherd was killed and, indeed, to having played an important part in the disposal of his corpse which was treated in a bizarre and truly horrific fashion.  However, he maintained that he is not guilty of the charge of murder and insisted that the co‑accused, one James Roughan, was the killer.  This much was his claim during a lengthy interview with police and it was the basis of his defence at the trial.

In support of this claim that Roughan was the killer the appellant sought to introduce into his trial evidence as to Roughan’s propensity for violence and in fact at the time Mr Shepherd was killed Roughan had been charged with, and was on bail for, the offences of attempted murder and grievous bodily harm.

Your Honours, can we deal first with the legal principles which were applicable to this situation because the exchange of outlines has, as we apprehend it, yielded much common ground on this point.  With respect, I can do no better than to adopt and endorse paragraph 17 of the respondent’s outline, where it is acknowledged that it is well settled in Australia, New Zealand and Canada:

that in a joint trial it is permissible for one defendant to lead relevant evidence in admissible form that establishes another defendant’s propensity to commit the crime charged –

and, indeed, we would adopt the following sentence in paragraph 18 to the effect that:

The threshold for admissibility remains relevance:  that is, the evidence is probative of a matter in issue.

To those statements we would relevantly add the propositions that prejudice to the co‑accused is not a consideration which is relevant to the admission of such evidence and the corollary that if such prejudice is of concern then the remedy is to be found within the power of the court to order that the accused be tried separately.

HAYNE J:   Now, to what issue in the trial of this appellant would this evidence have gone?

MR CALLAGHAN:   To the likelihood that Roughan would, of his own volition, wield a knife and stab an individual and, indeed, stab someone that he knew, that which was alleged against Roughan which formed the basis of the charges of attempted murder and grievous bodily harm revealed such a propensity.

HAYNE J:   I can understand that that is an issue in the trial of Roughan, and it is not just captious that I press the point of what is it that makes it relevant in the trial of Mr Jones?

MR CALLAGHAN:   It is the proposition that it was a textbook, cutthroat situation where it could only have been one or the other, or both, but Jones’ defence was it was the other.  Anything which increased the likelihood that it was the other axiomatically decreased the likelihood that it was Jones, hence its relevance in the trial against Jones.  That is the basis upon which ‑ ‑ ‑

HAYNE J:   Whether that proposition is right seems to be a very large proposition that would require close examination.  Whether we ever get to it in this case is something that might depend on the further course of argument.

MR CALLAGHAN:   Yes.

HAYNE J:   But at least, speaking for myself, I am not to be understood as accepting that paragraph 17 of the respondent’s submission accurately and completely at least states the applicable principle.  But notice that, go on with your argument because ‑ ‑ ‑

MR CALLAGHAN:   We will take that on board, thank you.  Suffice to say that the authorities have been canvassed in the outlines.  Whilst the question has not been the subject of explicit consideration in this Court, it was the subject of a decision of the Privy Council and there has been, at least until this point, no discord in the view of the law that can be discerned from those authorities.  But it is at that point that the respondent joins issue because it is the appellant’s argument that a miscarriage of justice has occurred as a result of his being prevented from bringing into his trial the sort of evidence which, by reference to these principles, as we hold them to be, he was clearly entitled to adduce.

FRENCH CJ:   I hope you will be able to identify with some precision just what evidence the appellant was prevented from bringing in.

MR CALLAGHAN:   This is – in part at least – the respondent’s point and where the issue is joined because whilst, implicitly at least, the respondent has conceded that the principles which we have discussed were misunderstood by her Honour the learned trial judge, the respondent asserts that in the context of the trial the mistakes had no functional effect, because all that really happened was an application of the rule which prohibits the admission of hearsay.  Of course, if that were so – if that were all that happened – then the appellant could not succeed.

But that is not so.  We demonstrate that by reference to the transcript of proceedings and, if not identifying the evidence with precision, identifying the miscarriage with precision is something which we would hope to do.

HAYNE J:   You speak of it as a miscarriage.  Is that the rubric that this falls under or is it more accurately, in terms of 668E(1) of the Code, the wrong decision on a question of law?

MR CALLAGHAN:   Your Honour, leave was only granted on the proposition that it was a miscarriage.  We would say if it was a wrong decision on a question of law then the effect of it in this case would, in any event, make it a miscarriage because the miscarriage we identify is simply that the appellant did not have a fair trial.  It is the case that, in our submission, her Honour did make a wrong decision on a question of law and so it could have been put under that rubric, as you say, but in any event, that is not where we are at at the moment.

There are three separate blocks of transcript which will have to be reviewed.  The first is the block between appeal book 140 and 161 and so can we start at 140 at line 40 where the appellant’s counsel raises the relevant concepts for the first time.  He does this in the context of a debate about evidence which might have emerged from a witness who ultimately was not called.  I only draw this to your attention to identify what counsel’s view of the situation was and to explain, I suppose, what happened because this no doubt alerted the Crown Prosecutor to the pitfalls which lay ahead because it was he who raised the issue later on.

Whilst open at that page, though, it is worth noting that at 141, line 22 her Honour did receive a copy of the decision in R v Winning [2002] WASCA 44, a case in which the relevant principle was clearly stated. Can we move forward to appeal book 152 and at line 44 the appellant’s counsel specifically raises the fact that:

Roughan has been charged with attempted murder and grievous bodily harm –

and at the top of 153 indicated a desire to ask another witness about the fact that Roughan had indicated an intention to plead guilty to these charges.

FRENCH CJ:   So, what is some reference down the track to her having made a statement to police?  Was that before the court or is it in the materials at all?

MR CALLAGHAN:   No.  In terms of what might have been said by the witness, Hore, the best indication is probably at appeal book 442, line 30 as to what this witness might have said.

FRENCH CJ:   There was something about him getting five years, was there not?

MR CALLAGHAN:   That is the passage, your Honour.

FRENCH CJ:   But that does not involve an indication of an intention to plead guilty.

MR CALLAGHAN:   No, that is so.  It might involve an acknowledgment of likelihood of guilt being found one way or another.

FRENCH CJ:   Outcome.

MR CALLAGHAN:   But that is so.  In any event, the topic of Roughan’s disposition and evidence which might be adduced to prove it is being discussed at this point.  At 154, line 14 her Honour asserts that in this context if she thought it was unduly prejudicial then she had a discretion to exclude it.  Her Honour acknowledged at line 32 that there was an argument that a judge did not have a discretion in certain circumstances, but certainly the assertion made at line 15 is one which was repeated at various stages, to which we will come.

At 156, line 50 and following there is a relevant exchange between her Honour and counsel because her Honour inquired of counsel as to whether he was going to cross‑examine Crown witnesses about the fact that Roughan had been charged with attempted murder and the whole of that which follows up until 161 is probably relevant.  Can I summarise it in this way because your Honours can, of course, just read those pages.  But the effect of it is this, that her Honour viewed this concept of Roughan’s propensity as a collateral issue; that much can be gleaned from her observations at 157, lines 1 and 45 and 160, line 10 - the word “collateral” being used on each of those occasions. 

The second proposition which emerges from these pages is that her Honour thought the question of prejudice to Roughan was relevant to any determination that she might make in this context and that emerges from 158, line 10 and 161, line 5.

FRENCH CJ:   The intention stated by counsel, or the purpose stated by counsel for the proposed cross‑examination of Detective Williams at 157 is evidence as to the reason why Roughan was charged with attempted murder.

MR CALLAGHAN:   Yes, and that is unhelpfully vague.

HEYDON J:   Detective Sergeant Williams did not witness the murder so he must have been relying on something that other people had said to him during his inquiries or the inquiries of other officers.  That could only have been hearsay evidence.

MR CALLAGHAN:   This is the attempted murder?

HEYDON J:   Yes.

MR CALLAGHAN:   It is impossible to tell whether it was necessarily hearsay.  Can I explain?  He is the author of the document known as the QP9.  That document refers to things seen and done by detectives.  We cannot say with certainty whether he was in fact one of the detectives who even did those things, but at its best for the appellant there would be two things which might emerge from that document.  I did wish to come to that later on, but I can address what I apprehend to be your Honour’s concern at this stage.

From that document we could apprehend that detectives might have seen injuries to the complainant in the attempted murder, which would be direct evidence, not hearsay.  It would be direct evidence which might support a proposition that Roughan had injured someone else on a previous occasion.  Admissions were made by Roughan, or admissions relevant to the event which gave rise to the charge were made by Roughan.

HEYDON J:   To?

MR CALLAGHAN:   To detectives.

HEYDON J:   Does that emerge from the QP9?

MR CALLAGHAN:   Yes.  You would not call it a confession, but relevant admissions were made.  Your Honour, can I come back to that because the QP9 was tendered at a later stage and I was going to address these issues at that point.

HEYDON J:   Certainly.

MR CALLAGHAN:   There is an exchange, though, at this point, at 157, which is highly relevant to the disposition of the appeal, because at 157, line 40, and this is after counsel has indicated his desire to ask police officers about this event, her Honour asked:

are they the only people you want to ask about that?

You can read counsel’s answer there:

No, see I’m getting – I don’t know.  There are other -

and then he is closed down by the proposition put to him by her Honour that it is a collateral issue.  At 160 her Honour delivers the ruling on this issue and it falls into two parts.  Her Honour allows that she will allow questioning of the police officer on a limited basis.  At line 5:

I’m minded to allow limited questioning of the arresting officer on that matter but I haven’t yet decided to what extent –

The important passage is at the end of that paragraph, or the conclusion of that paragraph:

to the extent that it then starts to become a collateral – a trial of collateral issues, that is, whether or not Roughan actually committed that offence I won’t allow questions as to that.

Our submission is that, really, this governed all that followed because her Honour can only be taken as saying there is no point in pursuing this topic any further with any witness in any form:  “I will not allow questions as to that”.  The word “hearsay” is not mentioned at this point.  There is no query as to the nature or quality of the evidence which might be forthcoming.  Her Honour has simply said she will not allow questions on it.

So whatever options might have been thought to be available to the appellant the effect of this ruling is that they were foreclosed and it is at this point that the appellant says the trial became unfair.  It miscarried at this point and that which follows no doubt compounded the miscarriage, but that is where the trial suffered an irrecoverable setback.

HEYDON J:   Did counsel remind the trial judge of Lowery v The Queen and R v Gibb, that line of case that is referred to in paragraph 17 of the respondent’s written submissions?

MR CALLAGHAN:   I think it is fair to say that counsel for the appellant really only referred her Honour to Winning at any stage.  I will check that but I do not recall him as having been particularly – the Crown Prosecutor at 139 had drawn her Honour’s attention to Gibb and McKenzie.  We can check what other authorities were ‑ ‑ ‑

BELL J:   Just before the ruling at 160, going back to 157, Mr Martin, at a point, has told her Honour that he is not seeking to get evidence from the police officer of a hearsay nature and this in the context of the significance of the material as it bears on his client’s state of knowledge.

MR CALLAGHAN:   Yes.

BELL J:   Then it seems the argument shifts somewhat, but it really does not get any higher, does it, than that after that initial exchange which goes to a quite separate issue the trial judge asks whether it is proposed to elicit evidence from other sources.  Mr Martin says he does not know.  There is no application to lead direct evidence concerning the earlier incident in the context of the principles explained in Winning, which may make it a bit difficult to view the ruling on 160 as a ruling that he was precluded from leading evidence of that character.

MR CALLAGHAN:   Two things.  We will come to another passage later where Mr Martin does express a desire to lead evidence.  That is the third passage of transcript which we come to, but I should allow, immediately, that at no stage is the evidence identified with precision – the evidence which he proposes to lead.  He does not at any stage say that he has the complainant ready to testify or anything like that, but we say that the ruling at 160 made it pointless for him to even consider that and we say that at least in response to the question by her Honour at 157, line 40, the answer was not yes.  At that stage it was not the case that the only witnesses that he wanted to ask were police witnesses.

If nothing else we can infer from that that there were other options to him other than police witnesses and our point is simply that those options were foreclosed at that point.  Now as I have indicated her Honour did indicate that she would ‑ ‑ ‑

HAYNE J:   Just before you part from that question, can I just understand the rules in Queensland about addresses?  If the accused goes into evidence does that affect addresses and order of addresses?

MR CALLAGHAN:   Yes, it does.

HAYNE J:   Is that section 619 of the Code?

MR CALLAGHAN:   I will get the number checked, but I can say with certainty that if the accused does go into evidence then his counsel is required to address the jury first.

HAYNE J:   Not calling evidence retains the advantage of last word?

MR CALLAGHAN:   It does.  It is 619.

FRENCH CJ:   So the most we can say that was foreshadowed – I hesitate to put as high as with any degree of precision – is the possibility of extracting evidence of admissions?

MR CALLAGHAN:   Well, we do not know ‑ ‑ ‑

FRENCH CJ:   From Detective Williams who may or may not have been a party to the interviews referred to in QP9 and perhaps from Ms Hore?

MR CALLAGHAN:   That is this next body of transcript which deals with that.  We say, and I hope I am not being repetitive, that this first exchange and that ruling by her Honour has a freestanding significance, irrespective of anything which happened with the QP9, but I will address the ‑ ‑ ‑

FRENCH CJ:   It was effectively reopened in the – anyway, you can go ahead with the next section.

MR CALLAGHAN:   Well, this is where her Honour revisits that ruling or at least the first part of that ruling because we say that ruling does fall into two parts; one referable to the QP9.  Her Honour did say she would allow limited questioning on the subject.  The logic applicable to this dispensation was that since the appellant had claimed in his interview with police to have been aware of the fact that Roughan faced this charge, and since such knowledge might have created in his mind some fear of Roughan, and that since such fear might then have been relevant to explain his behaviour then, so the thinking went, it would have been open – or it was open – for him to at least confirm with the police officer that such a charge did exist.  But the concession went no further than that.

The issue was, therefore, revisited at 432 as the time for the evidence of the police officer in question approached.  Once again it was actually the Crown Prosecutor who was concerned where this issue might be going and it was he who supplied her Honour with the document known as the QP9 which has been filed as supplementary material in an annexure to our submissions.  At 443, line 50 the appellant’s counsel expressed a wish to question the author of that document.  At 434, line 5 her Honour said most of it was hearsay from Detective Williams.

HAYNE J:   Sorry, where is that?

MR CALLAGHAN:   Page 434, line 5.  Counsel persisted that he wanted to cross‑examine on the basis for the charge.  Her Honour’s response at 434, line 30 was to express concern as to the quality of the evidence that he was wanting to get out.  Then the argument seems to have been distracted by the fact that it was an attempted murder charge and that such charges often resolve into something else.  At 435, line 22, her Honour again asserted that Mr Roughan was in this context entitled to the presumption of innocence. 

FRENCH CJ:   At this stage, counsel for the appellant is not saying anything more than that he wants to cross‑examine Williams about the basis for charging Roughan.  He does not ever put it squarely that he wants to try and extract evidence that Williams heard an admission made by Roughan.

MR CALLAGHAN:   He does not put that, your Honour, but that would as a matter of common sense, be part of the basis for charging him.

FRENCH CJ:   One could well understand a trial judge taking the view that it is in no way relevant to explore the state of mind of the charging officer as to what led him to lay a particular charge against the co‑accused.  Counsel does not seem to go further than that, really.

MR CALLAGHAN:   No.  Can I grasp this nettle at this point because if you have the QP9 - can I just attempt to identify the most that could have been made out of it by counsel in the position of counsel for the appellant.  We know from that fact that police have, for example, located a knife at the scene of the crime and we can infer, I would have thought uncontroversially, that the complainant would have been observed by police at some stage.  He was in surgery at the time the document was created.  We know also that Roughan had made admissions as to events which occurred in the course of the struggle with the complainant.  He stated that he somehow stabbed the complainant, McKenna, in the back during a struggle with him on the front lawn.

FRENCH CJ:   We do not know from the document to whom those statements were made, and whether they were oral or in a written form?

MR CALLAGHAN:   As to the last, we can confidently infer it was oral, but it does not emerge with clarity to whom the statement was made.

FRENCH CJ:   There is nothing to suggest it was made in the presence of or to Detective Williams?

MR CALLAGHAN:   No.  He was the arresting officer. 

FRENCH CJ:   But that does not answer that question, does it?

MR CALLAGHAN:   No, but, of course, counsel was prohibited from even asking that question by the effect of her Honour’s ruling and that is part of the unfairness, that he was not even allowed to ask, “Well, did Roughan make admissions to you?”  That is the problem.

BELL J:   To the extent they were admissions they were self‑serving and set up self‑defence.

MR CALLAGHAN:   They did.

BELL J:   Does an admission to having stabbed a person in self‑defence go to establishing a propensity to violence?

MR CALLAGHAN:   It can go to that proposition.  It does not, of itself, of course, establish that, but the fact of having a knife in an altercation with someone else, is the statement against interest.  It is, as your Honour observes, coupled with the self‑serving aspects which raise self‑defence, accident, and no doubt would have been led by the Crown on the trial with the concurrence and endorsement of Mr Roughan because it contained his defence as well.

That is as far as we can take it.  We accept that the appellant is not as well placed as if he had gone into more detail as to exactly – I am sorry, I withdraw that.  We accept that the Court is not as well placed to assess the validity of the appellant’s claim to a miscarriage as it would have been had there been more detail, but the fact that the appellant’s counsel was prohibited from even asking Detective Williams whether he was the police officer who had heard the admissions is an unfairness.  That is the essence of the miscarriage.

The functional ruling, we say, had already been made and that which happened here merely confirmed the fact that that ruling was unfair, even to the extent of prohibiting Detective Williams from being asked about observations of injuries to the complainant or the finding of the knife in that case.  All such questions fell under the blanket prohibition, we would say, which had been placed upon this subject matter.  Her Honour’s statements throughout this passage of the transcript, in effect, reassert the fact that she just did not see that if it was prejudicial to Roughan such evidence could be admissible.

Can I just correct one point in our outline at 5.5?  I attribute to her Honour in this context the remark at 444, line 30, that this evidence fails the test of relevance.  As is apparent from that passage at 444, line 30, her Honour is there talking again about what Roughan had said to Hore about this incident, not anything which might have emerged from the QP9.

The third block of transcript to which regard should be had for the purposes of this part of the argument is in volume 2 at page 833.  At 833 the appellant was called upon and indicated that he would not be giving evidence nor calling evidence.  Then at page 838 after various legal matters had been canvassed, or in the course of canvassing legal matters, the appellant’s counsel was asked or was given the opportunity to speak again and your Honours see there the passage at page 838 from line 15 down to line 50.

The application is being made to lead evidence that her Honour had ruled he could not ask about and as we have demonstrated the ruling was that he could not ask questions in relation to whether Roughan had committed that offence.  The point is made against us here that the appellant’s counsel indicates that the Crown Prosecutor has said he will reopen the case if her Honour wished to reconsider that ruling.

FRENCH CJ:   This is re‑election point?

MR CALLAGHAN:   Yes, well the point is made against us that the fact that counsel for the Crown had indicated its willingness to reopen means that it can be inferred that there was no intention by the appellant to actually do as counsel had said he was going to do and lead evidence.  We say that does not follow and that had the ruling been revisited it may well have been open to explore further matters in the Crown case had certain witnesses been recalled.  But it is telling that the counsel does not use a phrase such as “the Crown Prosecutor has agreed to recall Detective Williams” or to “recall a specific witness”.  It is simply that he has agreed to re‑open the case.

As we have suggested in our outline, had the defendant, in a trial of this nature, wished to go into evidence technically that may well have been the appropriate way to do it, to have the Crown reopen the case, close it and then have the accused called upon a second time.

In any event counsel’s application at this point was met with the same flawed response by her Honour.  There was no question asked as to whether the evidence proposed to be led was hearsay or otherwise.  Now, perhaps counsel should have made it clearer as to what he proposed to do; we allow that.  But the fact is there was no query asked as to whether that was his intention or not and the option remained foreclosed to him at this point as it had been way back on page 160.

FRENCH CJ:   Her Honour’s reference to presumption of innocence suggests that she saw herself as resisting a proposition that the fact that Roughan had been charged was somehow evidence that he had done what he had been charged with.  I think she referred to it earlier, did she not?

MR CALLAGHAN:   The fact that someone might be ‑ ‑ ‑

FRENCH CJ:   Presumption of innocence in this context?

MR CALLAGHAN:   Yes, she has.  She has referred to it a couple of times and, again, we simply say that if counsel was faced with a judge who was of the view that the presumption of innocence was relevant to the disposition of this question, then he faced an impossible task.

FRENCH CJ:   She had accepted, of course, that the fact of the charge could go in as relevant to Jones’ state of mind and asserted fear of Roughan.

MR CALLAGHAN:   Yes, and nothing else.  Your Honours, the appellant’s submission is simply this, that a trial at which defence counsel has been told repeatedly and clearly, in effect, that the law as articulated in the cases to which we have referred and in particular as articulated in Winning’s Case will not be applied to any evidence that he wished to adduce, by cross‑examination or otherwise, is a miscarriage of justice.  It is unfair.

BELL J:   That is not the way it was put before the Court of Criminal Appeal, is it?  The point there that was taken was that it was an error not to allow full cross‑examination of Detective Williams.  I raise this partly because the latter submission seems to have an air of unreality about it.  There is just no suggestion in the trial that was run counsel was precluded from leading evidence from the complainant or some other person who could give direct evidence of the earlier incident, is there?

MR CALLAGHAN:   The ruling at 160, if questions are not going to be allowed about that, and the associated observations as to the reasons for the ruling, must have conveyed to counsel that there was no point and then the other passage at 138 where counsel indicated – I am repeating myself.  That is the high‑water mark of the appellant’s case in that regard, your Honour.

BELL J:   Yes.

MR CALLAGHAN:   As to the way in which the case was argued in the Court of Appeal, the report does not – I will start that again.  At 1150 of the appeal book you have the judgment and in particular at paragraph [67], although under the heading of “Separate trials” the first few sentences of that paragraph do encapsulate the way in which the case was argued before the Court of Appeal.  It is put under the heading of “Separate trials” and the last sentence of that paragraph reflects the proposition that that was the remedy suggested but a separate trial was the preventative solution to the problem not a remedy once the error had been made.

Whether the argument was put that way or not I would suggest that the first part of that paragraph reflects, in essence, the argument which is being made here, although here it is being put under the rubric of a miscarriage of justice rather than a failure to award a separate trial, but that is, after all, the statutory function which was not addressed, perhaps, with the precision that it could have been before the Court of Appeal.

Your Honours, there is a second ground in respect of which leave was given and I can deal with that very briefly, and again simply by reference to the Court of Appeal judgment.  The impugned direction is at appeal book 1153, extracted in the judgment of Justice Keane.  It was a direction as how the jury could use evidence of the appellant’s bad character, that is, to demonstrate that Roughan was of a less violent disposition.  It mirrors, we should say, a direction which was given about the use of Roughan’s bad character, which can be seen at 1148, paragraph [58]. 

Your Honours, we respectfully do no more in this regard than adopt that which was said by Justice of Appeal Keane at paragraphs [81] and [82].  We really cannot improve on that.

HEYDON J:   Your point here, contrary to the way it is put in the notice of appeal, is that although Justice Keane was correct in paragraphs [81] and [82], he was incorrect in paragraph [83].  Is that not so?

MR CALLAGHAN:   Yes.

HEYDON J:   Why was he incorrect in paragraph [83]?

MR CALLAGHAN:   We would say that that was an error of law, of the kind identified in 668E(1).

HEYDON J:   But he says it was innocuous having regard to the overwhelming strength of the case against Jones.  You have to balance the strength of the case against Jones against the noxious qualities of the misdirection.

MR CALLAGHAN:   Yes.  We say it is difficult to reconcile, with respect, that which his Honour says in [83] with his conclusion that he was unable to understand – this is the last sentence in paragraph [81] – how the jury would not have regarded the direction as a possible basis for resolving the cutthroat defences by each of the appellants and resolving those questions against the appellant.  So we adopt that.

We say it is impossible to reconcile that with paragraph [83] and suggest perhaps that what paragraph [83] was intending to convey in an altogether too abbreviated form was the proposition that the proviso would be applicable to an error such as this – which is a separate consideration, and I will address the proviso in a moment if the Court allows.  But that is our response to your Honour’s query on Justice Keane’s judgment.

FRENCH CJ:   That is just dealing with the proposition that the misdirection was innocuous.

MR CALLAGHAN:   Yes, and can we acknowledge that we know we have to deal with the proviso ‑ ‑ ‑

FRENCH CJ:   That is just another way of invoking the proviso, is it not?  Query its sufficiency, but ‑ ‑ ‑

MR CALLAGHAN:   Yes, quite, and to address paragraph [83] we have to – or the effect of it, we have to demonstrate that the proviso has no application in this case.

FRENCH CJ:   I am not quite clear on what the separate point is.  This is a proviso point or nothing, is it not?

MR CALLAGHAN:   A misdirection ‑ ‑ ‑

FRENCH CJ:   The misdirection was accepted in the Court of Appeal.

MR CALLAGHAN:   There are two steps.  If we accept that it is a misdirection, then we go straight to the proviso.

FRENCH CJ:   Yes, and it was treated as erroneous in the Court of Appeal.

MR CALLAGHAN:   Yes, by Justice of Appeal Keane it was.  Justice McMurdo treats it somewhat differently.

FRENCH CJ:   Justice Muir agrees with the reasons of Justice Keane and Justice McMurdo.

MR CALLAGHAN:   Yes, but the reasons in this regard are different, so it is a bit hard to work out.  Justice McMurdo deals with this at 1158 and in particular at paragraph [105].  In effect, can I suggest that Justice McMurdo sees the direction as being one the effect of which was quarantined by the proposition that it was predicated upon the fact that it was part of the directions in the case only against Roughan.

FRENCH CJ:   In which case the jury would have been able to reason according to the directions, et cetera.

MR CALLAGHAN:   Yes, and, in effect, saying it is not a misdirection if it is quarantined in that way.  Justice of Appeal Keane says, well, no, you cannot quarantine it like that in a case like this.  It is a misdirection and so that is the difference of opinion.  Justice Muir does not deal specifically with that or, indeed, any other aspect of their Honours reasons.

HAYNE J:   Just to revert to the first ground a moment but connecting it to the second issue that you are just looking at, the second issue of misdirection which may really become application of the proviso, is the evidence that you say the appellant was prevented from adducing at his trial evidence that went any further than the attempt to establish that Roughan was a man who had in the past acted violently towards others or, if you like, was a man given to unprovoked violence against others?

MR CALLAGHAN:   Can I deal with your Honour’s question in this way.  We do not know, but even if we did, we would allow that it is unlikely to have received much more attention in that part of the summing‑up than it did.  In other words, we do not say that the evidence that we are concerned with in the first part of the argument would necessarily have loomed large in respect of this misdirection.

HAYNE J:   I understand that, but really what I am asking is whether the evidence, which is the subject of ground 1, the principal ground, first argued ground today, was really any more than a particular species of character evidence directed to demonstrating that the accused, Roughan, was a man given to violence, given to unprovoked violence.  I can see there are various ways you can express it, but did it go beyond character?

MR CALLAGHAN:   Well, yes, to the extent that it went towards a specific propensity of behaviour with knives.

HAYNE J:   But that is the point.  If you go back to Lowery, more importantly if you behind the Privy Council, back to the Full Court of the Supreme Court of Victoria in [1972] VR 939, particularly at page 946, you find Mr Justice Smith’s report to the Court of Criminal Appeal. The report as reproduced at page 946 reveals that the evidence at issue in Lowery was much more precise than the co‑accused is a bad man, the co‑accused has done violent things.  It was “the co‑accused is a sadist and I am not”.  That is a much narrower kind of evidence than simply saying, “this is a cut‑throat defence, ladies and gentlemen of the jury, the co‑accused is a much worse man than I am”.  That seems to be the thrust of the case that Mr Jones wanted to put.  Now, that is putting it tendentiously against you so that you may deal with the very tendentious way in which I put it.

MR CALLAGHAN:   To that we would say that all that the accused was attempting to do was raise a reasonable doubt.  He was not attempting to prove anything.  He bore no onus.  He merely wished to point to evidence which, as a matter of logic, may have had some relevance to the jury’s function.  With respect, we accept that the evidence in Lowery was very different.  It is worth reflecting upon the evidence in Lowery because we are talking, of course, about the evidence in King’s Case which was opinion evidence from a psychologist who had apparently spoken to Lowery, not only about this incident, but about other incidents and one in particular from which he gleaned that he derived pleasure from the misfortune of others.

Now, the relevant part of that is, I suppose, in this circumstance it, I hesitate to say, has an analogy to the evidence which might have been given by the witness Hore, but the evidence from the witness Hore, which was, in effect, an admission to another incident of violence, was the evidence of the sort which counsel was precluded from adducing.  So to that extent we would say Lowery assists us.

HAYNE J:   I diverted you from where you were.

MR CALLAGHAN:   No, your Honour.  I was about – subject to the Court’s wishes – to move to the proviso, because I do not think we can advance the other arguments further, at this stage, at least.  In respect of the proviso I propose to be relatively brief, at this point, anyway.  We would make, in respect of the proviso, three points about the defence case, and three points about the Crown case.

In respect of the defence case, there was at least a triable issue.  The appellant had given a lengthy account of events to police, one in which he maintained his innocence.  Even when, for example, being asked to give samples of his handwriting and not knowing where that might go - as it turned out, it did not go anywhere, but he maintained throughout the interview that he did not kill the deceased.  Your Honours have seen the summary of the interview.  I would add a couple of references such as appeal book 1041 and 1046, line 33, wherein the appellant has repeatedly asserted that he did not kill the deceased.

The second point is that he did have a cut to his hand.  That is some evidence consistent with Roughan having had the knife.  The third point is that he does deny it.  In a prison van conversation, recorded at a time when there is no basis for suggesting that he knew he was being recorded, he did make denials which are at least capable of being construed as denials of the offence –the point simply being this.  Those three points add up to the proposition that this is not a case, for example, where there is a confession, or where it is as cut and dried as all that.

We allow, having made those points, that the Crown has at its disposal much material which can resolve the issues in its favour.  We make three points as to that.  Whilst there is much evidence which is damning of the appellant, it must be remembered that this was not a case as against Mr Jones – all or nothing – he did acknowledge, and had always acknowledged his guilt to having been an accessory after the fact.  Much of the evidence against him might be thought to be at least equally consistent with proof of guilt of that offence. 

The second point is that to establish the guilt of the appellant it is necessary for the Crown to rely upon the evidence of witnesses whose reliability has been challenged.  We have identified the basis for such challenge in the written submissions.  Rather than go through the point‑scoring exercise of repeating those, or elaborating upon them, we suggest we can do no better than to adopt what the Court of Appeal said in respect of Roughan’s appeal – and this is at appeal book 1149, paragraphs 62 and 63 in the judgment of Justice of Appeal Keane and the last sentence in each of those paragraphs is apposite. 

Our final point is this, that this is, we would say, one of those cases which is contemplated in paragraph 45 of Weiss v The Queen (2005) 224 CLR 300 in that it is a case where there was a denial, in effect, of procedural fairness – and this is if our first ground is accepted. There was a denial of procedural fairness in that the appellant was prohibited from making good his defence and that, as a result, the record that we have here is very different from the record which might exist had that error not been made.

HEYDON J:   You are making two points.  One is, there was simply no occasion to consider applying the proviso because there was a fundamental departure from the ordinary conception of a trial, that type of doctrine that is referred to in Weiss.  Secondly, you were saying even if you do go to the question of whether the proviso should be applied because it turns on the credibility of Mr Murdoch and other witnesses, one cannot judge that from the pieces of paper before us.  One has to hear the oral evidence.

MR CALLAGHAN:   That is so.  Our first point was that there is an issue there.  It is not completely cut and dried.  The second is that you cannot, with this record, satisfy yourselves as to anyone’s guilt of anything, and the third point is that there is that fundamental defect in the trial.  We illustrate that point by suggesting that the defect was one that might have affected the form of the record and so that it is a case, as contemplated in Weiss, where even if somehow the court could be satisfied beyond a reasonable doubt on this record, you would still not apply the proviso because it is a defect of that nature.

HEYDON J:   Is it relevant in considering that submission, if one formed this view, to take into account the fact that what went wrong was at least as much to be laid at the feet of counsel rather than the feet of the judge?

MR CALLAGHAN:   A miscarriage is a miscarriage for any reason.  If the trial was unfair for any reason whatsoever, if we refer to the statute, then it should not matter.  It is a miscarriage.  So to that extent, counsel’s failings, I hesitate to say, work in our favour, but cannot be held against us at least.

HAYNE J:   Is there in the appeal book any transcription of the prison van conversations?

MR CALLAGHAN:   Yes.

HAYNE J:   Where?  We have extracts through the Court of Appeal judgments.  I have seen those, of course, but the full transcript?

MR CALLAGHAN:   Page 1102.

HAYNE J:   Thank you.

MR CALLAGHAN:   Can I just perhaps, in conclusion, rejoin with your Honour Justice Hayne on the question you asked me about what this evidence, which is the subject of our first ground, might have done and adopt the proposition expressed in R v Randall [2004] 1 Cr App R 26 at page 382, paragraph 22 where in it is suggested:

such evidence is capable, depending upon the jury’s assessment of all the evidence, of making it more probable that the man with the violent disposition when he had consumed alcohol committed the assault –

is just another way, I hope, of saying what I have said already.  Subject to any queries the Court may have, those are our submissions.

FRENCH CJ:   Thank you, Mr Callaghan.  Mr Moynihan.

MR MOYNIHAN:   Your Honours, could I take you directly to the findings under challenge to demonstrate that there is no error at record book page 1151, paragraph [73] of Justice Keane’s reasons.  The relevant paragraphs of Justice McMurdo’s reasons are [101] to [103].  Starting though at paragraph [73], the Court of Appeal made three relevant findings:  the first that the judge was correct to permit the appellant to elicit in cross‑examination from the police officer the fact that the appellant was on bail, charged with stabbing another man, because it was relevant to his credibility and his state of mind at the time of the offence; secondly, they found the judge was correct not to permit the appellant to cross‑examine the police officer as to the details of that other charge because it was hearsay and, secondly, irrelevant to his credibility and state of mind; and, thirdly, that that ruling did not preclude the appellant from calling admissible evidence from the complainants to prove a relevant propensity.

It is with that third finding that it seems that the real challenge is made.  The error relied on is simply that the ruling did preclude that course of action.  That then directs attention immediately to the application that was made and the ruling that was made consequent upon it and the context in which the ruling was made.

The application that was made was at all times to cross‑examine witnesses, not lead evidence but cross‑examine witnesses, particularly the police officer and the witness, Hore, in the Crown case of the fact that the appellant was on bail charged with stabbing another and the details of the charges.

My learned friend has taken you through the passages.  Can I add to that, though, some others that were not referred to, for your Honours’ references.  Page 402 at lines 45 ‑ ‑ ‑

HEYDON J:   Mr Moynihan, do you mind speaking up a bit?  I am having trouble hearing you.

MR MOYNIHAN:   I am sorry, your Honour.

HEYDON J:   Page 402, line 45?

MR MOYNIHAN:   Page 402, point 45.  This is where the Crown Prosecutor reminds the judge that, consequent upon her earlier provisional ruling, at record 160, there still had to be further legal argument about this.  Then one goes over to 420.  Again, there is another reminder about the cross‑examination of the detective and then we get back into the passages there where the argument is held.  There again, as was pointed out earlier, the application was to expressly cross‑examine Detective Williams.

When the learned trial judge pointed out to counsel for the appellant below that that evidence of the details of the charge, which is what he was seeking to elicit, was hearsay, in the face of that counsel maintained it was admissible in that form, notwithstanding it ran foul of the hearsay rule.  It certainly did not come under any exception to the hearsay rule.  The judge then raised the problem – this is at appeal book 434, point 30.  Her Honour then, after informing counsel that it was hearsay, counsel maintains well it is admissible in that form anyway.

Her Honour then, importantly, raises that that is a problem of the quality of the evidence sought to be elicited, that is, it is hearsay.  Knowing that and knowing that the evidence was inadmissible hearsay counsel did not, before any ruling was made, any binding ruling, nominate or indicate that there was any intention to lead admissible evidence of the details of the offence in their case and so lose the right of last address.

BELL J:   I just cannot find that passage where her Honour says it is a problem with the quality of the evidence.

MR MOYNIHAN:   Record book page 434, point 30.

BELL J:   Thank you.

MR MOYNIHAN:   So, your Honours, in my submission, on the application that was made and premised on the problem with the quality of the evidence as hearsay her Honour was correct, as the Court of Appeal held, to rule at page 442, line 35 that the police officer could only give admissible evidence of the fact that the appellant was on bail charged with stabbing another man because it was relevant to his credit and state of mind.  But the finding as to relevance was also correct in the context of the application because, having found that the detective could only give evidence of the fact of the charge, the fact of the charge is irrelevant to prove any propensity in the co‑accused Roughan. 

The fact of the charge is not apt to prove anything at all in relation to propensity and, therefore, it was irrelevant in Roughan’s case and it adds nothing to say it was also prejudicial in Roughan’s case.  So, her Honour was quite correct to say on the application made and the evidence sought to be elicited that it was irrelevant to any matter that bore on the appellant’s credit or state of mind.

KIEFEL J:   What do you say about her Honour’s references more than once to Roughan’s entitlement to a presumption of innocence in relation to the admissibility of evidence of facts relating to the charge?

MR MOYNIHAN:   Her Honour was there stating no more than that which is true, he is entitled to that, but it was really ‑ ‑ ‑

KIEFEL J:   But what relevance did that have to the debate before her Honour?

MR MOYNIHAN:   Her Honour was probably picking up that her Honour was concerned also that not only was Roughan presumed to be innocent, but that her Honour knew that sometimes these charges, for whatever reason, do not proceed or might be downgraded to a different charge.

KIEFEL J:   But does that mesh in with her Honour’s concern about there being effectively a trial of a collateral matter and the references to the presumption of innocence perhaps for that reason foreclosing the debate about it?

MR MOYNIHAN:   No, your Honour.  What her Honour was grappling with in all of this was the relevance.  How was it relevant to one of those matters it could be admitted in favour of?  That is why that passage where her Honour talks about the problem in the quality of the evidence and what it can go to prove is very important, because her Honour was grappling with all of that and saying how could this be relevant to that which it is admissible to. 

So all of those expressions, in my respectful submission, are all tied very closely to this consideration of that which this evidence could be relevant because that is the test at the end of the day.  If it is to be led for propensity purposes, how could it be relevant?  Her Honour quite correctly concluded that it was irrelevant and, correctly also in another way that any trial within the trial as to the truth of that would be collateral to the issue or the fact, the issue in this trial.

But, her Honour having made that ruling, counsel for the appellant was not confused as to the width of the application or as to her Honour’s ruling because he made an application for a separate trial or a mistrial on the basis that he could not cross‑examine the police officer to lead hearsay evidence.  Your Honours will find that passage at page 455, point 1.  That is, in my submission, a very clear demonstration of what it was counsel wanted to do, and understood that her Honour prevented him from doing.

HEYDON J:   Well:

I am not allowed . . . to cross-examine the police officer about the attempted murder in detail -

Now, one view is to do so would have been to seek to elicit inadmissible hearsay.  What do you get out of that statement in relation to your present submission?  You were saying that the state of mind of counsel for the appellant can be gauged by examining this passage.

MR MOYNIHAN:   Because my original point was one must be very careful of what the application was to do, and the application was always to lead to the fact of the charge and the details of it. 

HEYDON J:   Yes.

MR MOYNIHAN:   When one sees there that is a manifestation that he accepts that the ruling was to prevent him leading the details of it.

HEYDON J:   To cross‑examine the police officer about the attempted murder in detail, that is to say, to take Detective Sergeant Williams through the document to understand the basis of the thinking that led to the allegations being made, in large measure at least, as distinct from what the detective could have given evidence of.  It is just a bit ambiguous at 455, line 8.

Let me be blunt.  Hindsight is a wonderful thing.  You are approaching matters as though counsel for the appellant was fully alive to every nuance that we can now see for ourselves looking back.  Mr Callaghan, I think at the very end, in effect, accepted that if what went wrong was the result of counsel for the appellant, that did not stop it being a miscarriage.  Your line is these were calculated decisions by an experienced criminal lawyer, fully alive to every aspect of the problem and, if it did not work out, one simply examines the technical rulings of the trial judge.  Their conclusion was correct, possibly most of the reasoning advanced for them was correct, please dismiss the appeal.  But I am not sure that your assumption about the mental state of counsel for the accused at the trial is correct. 

MR MOYNIHAN:   I can only take your Honours to what the application was all the way through and it is probably demonstrated best by the ‑ ‑ ‑

HEYDON J:   But the thing is that the person making the application seems to have thought it would substantially assist the case but the problem is each question asked would have been capable of being objected to, or most of them would have been, on grounds of hearsay.

MR MOYNIHAN:   But counsel accepted it was hearsay when her Honour raised that with him.

FRENCH CJ:   Not in relation to the witness, Hore, did he?

MR MOYNIHAN:   No, not in relation to the witness, Hore.

FRENCH CJ:   He says that in the next sentence in that passage:

I’m not allowed to lead from the – or cross‑examine the witness Hore about the statement James made to your about the attempted murder charge -

We do not know what that statement was.

MR MOYNIHAN:   There was a fight about that because the witness, Hore – it was proposed to cross‑examine Hore about something that Scott Austin, who was her brother, told her that Roughan had said and her Honour ruled that was inadmissible because it was hearsay also.  That is what is referred to in the next sentence.  But it is important, in my submission, that at all times counsel below only ever wanted to cross‑examine witnesses in the Crown case.

KIEFEL J:   Putting it on the more objective basis, are you saying that at no point was it sought to adduce any admissible evidence about the facts relating to the charge and therefore it could not be said that counsel was foreclosed.  There was no ruling, as the Court of Appeal points out.

MR MOYNIHAN:   There is no ruling.

KIEFEL J:   And, unless you can glean from what passed at the level it got to in the transcript you cannot form a conclusion that such a step was foreclosed.

MR MOYNIHAN:   Quite, particularly when her Honour pointed out that the course proposed was the evidence would have been inadmissible and before any ruling or concluded ruling was made that was told to counsel and counsel maintained that the only evidence that they wished to adduce was by cross‑examination of the police officer.

FRENCH CJ:   If that is what her Honour was addressing it was unnecessary to go on and say that she was not going to have a collateral trial of the issue as to whether Roughan had committed the attempted murder.

MR MOYNIHAN:   It was unnecessary but when one ‑ ‑ ‑

FRENCH CJ:   And, it pre-empted, in a sense, any application in relation to such evidence.

MR MOYNIHAN:   Except that, looking at it in terms of what was always asked for, it is not confusing.  Counsel was not confused as to the application and the ruling because ‑ ‑ ‑

FRENCH CJ:   And not deterred from coming back again, I suppose is your point?

MR MOYNIHAN:   Not deterred from coming back again, here, for the application for a separate trial or a mistrial and then, importantly, his client is called on – determines not to call or give evidence in his defence.  Almost immediately after that an application is made for permission to lead that evidence from the police office of the QP9 in the Crown case and the Crown Prosecutor would reopen the case to allow that to happen.  In my respectful submission, that is a clear course of conduct to elicit hearsay evidence from the police officer which it was known was inadmissible.

The ruling did not and could not have prevented the appellant applying to call that evidence in his own case even after the ruling had been made as to the Crown case.  There is no, in my respectful submission, error in the decision of the Court of Appeal on that point.  It is also important, as your Honour pointed out earlier, that the ground of appeal before the Court of Appeal, also, was that the trial judge was in error in not allowing counsel to fully cross‑examine Detective Williams about the attempted murder.

The ground had to change.  The ground had to change because it is obvious that for the most part anything that Detective Williams had to say was inadmissible hearsay not falling within any recognised exception to the rule.  So the ground changed fundamentally when the appellant was forced into the untenable position of, as counsel below was, of insisting that inadmissible hearsay was admissible, to prove some propensity.

If the ruling did prevent the appellant calling the evidence in his own case, there has been no actual miscarriage of justice for a number of reasons.  The first is the appellant had the benefit of the fact that Roughan was on bail for stabbing another man and, importantly, he had the benefit of his counsel’s submissions and the judge’s erroneous direction that the jury could use that fact to reason that Jones was of less serious disposition than Roughan.  So, in effect, the appellant had the benefit of the propensity reasoning in circumstances where it was not in law open to him.

The second reason is that, although relevant admissible evidence may have been admissible to prove a propensity, as Justice Keane observed at paragraph 23 of his reasons, there really is not evidence on which this Court could determine how the evidence could be relevant to a fact in issue.  There is no indication of what witnesses might be called or what they might say that would make it relevant.  A mere propensity to violence proves nothing in relation to the fact in issue and there is nothing in the detail presently known that is apt to prove the appellant would not have acted in concert with or aided Roughan, and that really is the point that your Honour Justice Hayne was making to my learned friend earlier.

There would be real problems, on a strict application of the relevance test, to say what it was about the incident if we knew in real terms what it was that it made it relevant to prove – the fact in issue in Jones’ case – that he would not have acted in concert with Roughan or aided Roughan if he had had acted.

In my submission, your Honours, in relation to the submission that the admissions, or what are so‑called admissions, were made by Roughan to the arresting officer were somehow admissible, there are a number of difficulties with that submission.  The first is that the appellant did not seek to lead it.  The appellant always sought to lead the details of the offence, no confessions.  All of that which is said to be in admission is exculpatory, apart from that which was already led, that is, that Roughan had stabbed a friend or had stabbed another person. 

So he, having admitted that, takes the appellant nowhere and, beyond that, anything that Roughan said was exculpatory in that it raised self‑defence and accident and probably add in there intoxication, reducing murder to manslaughter, but, in any event, there was nothing to be gained from that.  In any event, it is inadmissible hearsay on the Bannon principle.  It could not be led.  A third party ex curia statement or admission could not be led in favour of the appellant on his trial.  I can give your Honours the reference to the passage in Bannon that expressly says that. Your Honours will find that at (1995)185 CLR 1, per the majority, page 22.

Can I turn now to the issue of the case against the appellant below.  In my submission, this Court would be satisfied on the whole of the evidence beyond reasonable doubt of the appellant’s guilt.  The finding by Justice Keane that the case against the appellant was an overwhelming one is a very good starting point.  There is some complaint as to how the court, particularly Justice Keane, approached the application of the proviso below, but, your Honours, at page 1149, at paragraph [62] of his Honour’s reasons, his Honour there correctly states the test, although in terms of Roughan’s appeal, but it would have been unnecessary, one would think, ordinarily for his Honour to then have to repeat it when considering the proviso in Jones’ appeal.  So his Honour has expressly, correctly, stated the test.  Then one goes to paragraph [83] where his Honour is considering the proviso in relation to the error in relation to Jones’ character.  His Honour says, “having regard to” – that must be the whole of the evidence which his Honour had set out at paragraphs [6] to [41] of his reasons.  So his Honour has regard to the whole of the evidence, which he sets out, finds it is overwhelming, and the use of the language in the finding that the error “was entirely unlikely to have deprived” the appellant “of a fair chance of acquittal” also demonstrates that his Honour, as this Court said in Weiss at paragraph 40, emphasised the high standard of proof that was required to be applied by him and it nowhere infects that with any jury considerations.

So, in my respectful submission, there is no improper application of the test in this case.  That leaves one to return to the case itself against the appellant and in my submission it is an overwhelming one.  They were the only two alone with the victim at the time of death.  There is evidence that the appellant and the deceased argued a month prior to the death in which there was a threat that he would be seriously assaulted about a drug debt.  The injury to the appellant’s hands proves at least his involvement at the time the knife was being used.  There were observations by a number of witnesses that the appellant and Roughan were together after the killing in circumstances which were certainly inconsistent with any fear of each other. 

HEYDON J:   If we left out of account these five witnesses and concentrated on the rest of the evidence, is that a permissible enterprise to undertake in applying the proviso, if one concluded that there was no substantial miscarriage of justice, taking the agreed facts into account and the non‑controversial facts into account?

MR CALLAGHAN:   We would come back there to my proposition that it is impossible to say that anything in the balance of the evidence can take anything further with certainty than that he was an accessory after the fact.  To go any further than that necessarily entails reliance upon at least some aspect of some evidence from some of these witnesses.

In that regard, I mean the so‑called prison van conversation has been the subject of some concentration by the respondent.  Again, as I said in our submissions, we were not going to trawl through the point‑scoring exercise that might be involved in something like an analysis of this, but can I take you, for example, to the exchange at the end on page 1105, a clear assertion by the appellant that he did not do anything.  There is nothing in the context of that assertion which could attribute it to a denial of having been the one who has put ‑ ‑ ‑

HEYDON J:   We are not disadvantaged compared to the jury in examining Roughan and Mr Jones in contest.

MR CALLAGHAN:   That is so.

HEYDON J:   We are entitled to bear in mind that at this stage of their lives they would be seeking to exculpate themselves and, therefore, one is entitled to downplay that part of what is said and give more weight to the inculpatory parts.

MR CALLAGHAN:   Just going back a couple of questions, they may well have been wanting to exculpate themselves had they known anyone else was listening and there is no suggestion that they did.  The reasons for caution which might apply to what he asserted in his record of interview do not necessarily apply – at least not with the same force – to the self‑serving assertions made here.  But our ultimate submission as regards the prison van conversation is, even if you found something inculpatory in there, you could not, on the basis of that, exclude the possibility that Roughan was the guilty party.  You were taken I think to a passage at the top of 1112, whether the reason for the other witnesses coming forward was the fact that the appellant had threatened them.  The response to that is incoherent.  It is not necessarily adopted.

BELL J:   It may be possible to conclude that one would reject as not reasonably possible the account given by the appellant in his interview with the police having regard to what the whole of the prison van conversation tells you about the relationship between these men and something of the attitude to the events that occurred in the aftermath of the killing.  But your point is that would still leave you with evidence that two men were present at the time of the death, but that it is reasonably possible that the death was the result of a single stab wound to the neck and the prison van conversation would not assist in resolving that.

MR CALLAGHAN:   There would be a distinction between finding that the appellant had a guilty conscience as opposed to the proposition that he was guilty of murder.  There may well be statements made and evidence which establishes that he was feeling guilty, but not necessarily of murder, guilty for his role in all that happened thereafter.

BELL J:   I was taking up a different point with you concerning the account that he gave of his role in a context of his fear of Roughan and so forth.

MR CALLAGHAN:   Yes.

BELL J:   It seems to me that one might safely put that to one side, having regard to the whole of the prison van context.

MR CALLAGHAN:   Quite.  That is an example, I suppose, of what we were talking about a moment ago, where you would filter claims made in the record of interview.  Those self‑serving claims could be viewed with some scepticism without leading to a conclusion that he was guilty of murder.  The prison van conversation would be part of the reason why that scepticism would be applied.

Can I just deal briefly with the statement which was made after the verdict and before the appellant was about to be sentenced and, again, say that is something which can be susceptible to different interpretations.  The very syntax of the statement is fractured.  It is impossible, in my submission, to exclude the possibility that he is only talking about his involvement insofar as it has been of an accessory after the fact.

BELL J:   Would it be appropriate for us to take that statement into account, in any event, in determining the proviso?

MR CALLAGHAN:   I was wondering about that, because the authorities on the proviso speak about being satisfied on the evidence, query whether that is evidence to which you can have regard.  I do not know, to be honest.

HAYNE J:   We touched on it in Cesan because one of the accused there had written to the judge thanking him for the trial he had undergone.

MR CALLAGHAN:   Yes.  I cannot recall what the Court said though.

HAYNE J:   I think it was pointed out that when you are convicted, standing for sentence, there are some pressures upon you.

MR CALLAGHAN:   I suppose the point to be made against us there is that nothing this appellant could have said would have made any difference to the sentence that he was going to receive, but as to whether he was particularly alive to all that was going on at that point, it is a bit speculative.

HEYDON J:   Mr Lynch and Mr Martin had just said it in his hearing, “There is only one sentence your Honour can impose”.

MR CALLAGHAN:   Yes.  As my learned junior points out, these things are examined at a later stage on parole applications.  Finally, your Honour Justice Heydon has identified the deficiencies in the notice of appeal with respect to the second ground.  It should more properly read perhaps that the

Court of Appeal erred in failing to uphold the appeal after having found that the jury had been misdirected.  If it becomes necessary, we would seek leave to amend the notice of appeal to read in those terms.

FRENCH CJ:   Mr Moynihan, would you have an objection to that course?

MR MOYNIHAN:   No, your Honours.

FRENCH CJ:   Yes, you could file an amended notice of appeal accordingly.

MR CALLAGHAN:   Thank you, your Honours.

HEYDON J:   If I could just raise one other thing about the proviso.  Your contention in relation to the first ground of appeal, if made out, would point to a fairly serious miscarriage in the trial.  The Court of Appeal’s conclusion about the misdirection, which goes to the second ground of appeal, on one view might be regarded as a much less serious matter.  In applying the proviso, does the standard, as it were, vary depending on the egregiousness of the error being looked at?  In other words, need one be much more strongly convinced in relation to the first ground than the second?

MR CALLAGHAN:  To answer the first part of the question, I would suggest the answer must be yes, the degree of error is relevant, and that is what the Court necessarily – that must follow from the terms of the judgment in Weiss – that there are some errors which ‑ ‑ ‑

HEYDON J:   The word “substantial”, I suppose, in the statute.

MR CALLAGHAN:  Yes.  It has to be substantial.  That is right.  Those are the terms of the statute, that it has to be a substantial – you have to be satisfied that no substantial miscarriage of justice has occurred.  There is one obvious difference between the two and that is this, that if we are right about the first ground, then part of the reason we say you cannot apply the proviso is because the record might be different on a retrial.  That would not obtain in respect of our second ground.  So there is a basis for distinguishing between the two, and we are not on as strong ground for our second ground of appeal as we would be if you found error in the first.

HAYNE J:  The matter is considered in paragraph 43 of Weiss 224 CLR 300 at 317, paragraph 43. What is said there is said there.

MR CALLAGHAN:  Yes.  Unless there was anything in particular the Court required assistance with, those are our submissions.

FRENCH CJ:  Thank you, Mr Callaghan.  The Court will reserve its decision and will adjourn until 9.30 tomorrow morning.

AT 12.21 PM THE MATTER WAS ADJOURNED