Kalajzich v The Queen; Orrock v The Queen

[1989] HCATrans 269

~

~ -,~JO

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S47 of 1989

B e t w e e n -

ANDREW PETER KALAJZICH

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S48 of 1989

B e t w e e n -

KERRY NEIL ORROCK

Applicant

and

THE QUEEN

Respondent

Kalajzich

Applications for special leave

to appeal

MASON CJ

BRENNAE·J

TOOHEY J. DAWSON J

McHUGH J

C2T32/l/HS 1 8/11/89

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 NOVEMBER 1989, AT 12.03 PM

Copyright in the High Court of Australia

MR C.A. PORTER, QC: May it please Your Honours, in this matter

I appear with my learned friends, MR B.T. STRATTON, QC
and MR R.A. BAKER, for the applicant KalaJztch.

(instructed by John Webb Symons & Co)

MR K. MASON, QC, Solicitor-General for the State of New South

Wales:  I appear with my learned friend,

MR D.C. FREARSON, for the Crown. (instructed by the

Crown Sol1c1tor for New South Wales)

MR M.C. RAMAGE:  If it please Your Honours, I appear for the

applicant Orrock. (instructed by Newman Freeman)

MASON CJ:	You again appear for the respondent.
MR MASON:	Yes, Your Honour.
MASON CJ:	Yes, Mr Porter.
MR PORTER:	May I hand up my outline of argument.
MASON CJ:	We have not granted special leave in this case

already, have we, Mr Porter?

MR PORTER:  I know, if Your Honour pleases, but the reasons for seeking special leave are, I was going to say, set out

quite clearly in the affidavit in support of that

which appears at page 1583 of the last volume of the

application book. I am not too sure of the extent

to which Your Honours may or may not have read the

judgment of the Court of Criminal Appeal.

MASON CJ:  Yes, we have read the judgment in the Court of

Criminal Appeal.

MR PORTER:	Then Your Honours will be aware from that that it was a case, so far as my client was concerned, turning entirely on the evidence of Elkins and Vandenberg, both of whom were accomplices and there was no possible
suggestion they were not accomplices and the question,
and the only question, which we raise is the question
of the sufficiency of the directions with regard to

C2T32/2/HS	2	8/11/89
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corroboration of those accomplices. Your Honours,

we do not seek to raise before this Court the ground

of appeal that the verdicts were unsafe and

unsatisfactory. We simply raise the question, if

Your Honours please, that, in our submission, as is

pointed out in paragraphs 3 and 4 of the affidavit
in support of the application for special leave,

important questions arose as to what is in law

corroboration, questions which have arisen in the

past concerning which the superior courts of Australia

have given conflicting decisions which we point out

at page 6 and we say in effect that, having regard

to the enormous number of these cases at the present
time, that is cases depending upon the evidence of
accomplices, it is now perhaps one of the most
important aspects of the criminal law as to what are
the appropriate precautions to be taken by a trial

judge with reference to the evidence of accomplices.

MASON CJ:  Yes. Well, as I understood the affidavit in support

of the application, it sought to raise the question
whether the evidence relied upon as corroborative

evidence fulfilled the requirements.

MR PORTER:	Yes, but that of itself, if Your Honour please, would not be a special leave point. It raises, if
Your Honour pleases, two particular points: one is
whether you can have corroborative evidence which
depends entirely for its significance and force
upon the evidence of the accomplice himself and the
second is whether you can have corroborative evidence
which is merely a straw in the wind or not intractably
neutral, whereas we say the corroborative evidence has to be significant and substantial, otherwise
it serves no point.

Now, we would submit that if, in fact, this

judgment stands and is not the subject of - if the

Court refused special leave and it became the law

of New South Wales, then the consequence of the

judgment would be that in many cases the precautions

traditionally applied by the courts in the case of

accomplice evidence would become a hollow sham. (Continued on page 4)

C2T32/3/HS	3	8/11/89
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MR PORTER (continuing):  I am not suggesting, Your Honours,

that one can obtain special leave by simply

saying that the court at first instance, unlike the Court of Criminal Appeal, wrongly held that

certain items were corroboration which were not,

that these items have a cormnon thread running

right through them as the Court of Criminal

Appeal's judgment shows. We were arguing for

a principle, and a principle, if Your Honours

please, which has been upheld by many courts

and we are in effect seeking this Court's decision

on a matter concerning which there are a

considerable number of conflicting decisions

throughout Australia.

Your Honours, the Court of Criminal Appeal

itself tended to state the principle we were

seeking for along the lines that corroborated

evidence had to corroborate a matter imnlicating
the accused in dispute between the parties. That

is, of course, how it has been expressed in quite

a number of the decisions, such as NANETTE in

Victoria, I think LINDSAY in South Australia

and so forth, and although that way is a fairly

convenient way of expressing the matter in

many cases,in our submission, it has a weakness

which was exposed in RE McK	because as
was said in RE McK	it cannot be the law

that something which is clearly corroboration

can cease to be corroboration simply because

the accused admits it.	The very admission he
makes is the corroboration.	So we would prefer

to express the principle on the basis that,

as was said in BASKERVILLE's case, the

corroboration must in fact be independent of

the accomplice's evidence, which means in the

particular application that if the significance

of the corroboration depends entirely or

substantially upon the evidence of the accomplice
himself, then it is not corroboration at all.

It is not independent and it is not corroboration.

Thus you find in this particular case that

His Honour Mr Justice Maxwell, when summing up

to the jury on a number of these matters, was

putting to them alleged corroboration evidence

and asking them to say whether as to that

particular matter of corroboration they accepted
the evidence of Mr Elkins, or the evidence

of the accused Kalajzich.

(Continued on page 5)

C2T33/l/JM	4	8/11/89
Kalajzich

McHUGH J:  But can the proposition be accepted in the form

that you put it? Supposing, in this case, Elkins

had said, "I was paid $20,000 in cash on one day"

and on that very day there was a cheque drawn by

your client for the $20,000. Why would that not

be corroborative evidence?

MR PORTER: Well, because, if Your Honour pleases, there is

a distinction between the evidence of the accomplice

in so far as it creates a setting and the evidence

of the accomplice in so far as it seeks to be the

very corroboration of his own evidence.
Your Honour's example is the former. It is a

setting for the accomplice's evidence but the

accomplice is not, in effect, pulling himself up

by his own boot straps. The distinction is at

times, like many distinctions in the law, they are

cases that are close to the line.

McHUGH J: What about a rape case where the girl has got a

black eye or bruises on her arm?

MR PORTER: Well, the bruise on the girl's eye is something

entirely independent of the accomplice's evidence.

It is true, in all of these cases - - -

DAWSON J:  So is the drawing of a cheque for whatever the

sum was that was mentioned.

MR PORTER: Well, yes but, if Your Honour pleases, it is a

question of degree.

DAWSON J: That is not a question of degree.

MR PORTER: Well, in our submission, it is one thing to set

a background of facts for the alleged corroborative
evidence; it is another thing altogether for the

alleged corroborative evidence to come substantially

from the accomplice so that, in fact, without his

evidence it has no significance whatsoever.

MASON CJ: You mean if there was independent evidence of the

evidence? But it is not because the accomplice drawing of the cheque it would be corroborative says the cheque was drawn.

MR PORTER: Well, if Your Honour pleases, if as part of the

crime - assume for the sake of argument, the

accomplice says that the accused was with him;

went to a bank; held up the bank; they went away;

$20,000 was taken £ran the bank and the accused kept

the $20,000. The finding of $20,000 in the accused's
possession immediately after the hold-up, or soon

after the hold-up, would clearly be corroboration.

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MR PORTER (continuing): Similarl½ in a rape case, although

one enters in a more controversial area here, but

assume consent is in issue, the fact that the

victim was serious injured, or even that her
clothes were badly torn, may well be relevant to
the question of consent, and that purport of

corroborative evidence does not depend for its

significance upon the evidence of the girl herself.

DAWSON J: That is what you are saying: the evidence said to

be corroborative must have a relevance independently

of the testimony of the accomplice?

MR PORTER:  That is so. Perhaps I should mention very early

in the piece that although many of the cases - - -

DAWSON J:	Can I just stop you there, so that I understand what the problem is? But that of course can be so,
can it not, even where the story that the accomplice
tells is not irrelevant?  Why can the jury not
test the matter this way, and say, "Well look, tnat
is the story he, the accomplice tells. Now, if you accept that story, then this other evidence supports it; if you
do not, well it does not"; why cannot in that
situation the other evidence be corroborative?
Having an independent relevance, but dependent upon how
you look at the accomplice's evidence?
MR PORTER:	Yes, but you see, if you take a simple case like,

an example in this case - one of the examples where

a cheque is given the day after a trip to Adelaide,

to buy silencers; the cheque is not for the amount of
the silencers or the air fares; there is no way you
reconcile the amount of the cheque with either the
cost of the silencers or the air fares, or the two

together.

DAWSON J:	The jury may decide that does not really amount
to corroboration.
MR PORTER:	In fact, the cheque is the day after, and the only

way you link it up to the crime at all is that

Elkins says, "Well, that is what the cheque was for".

So it has got no independent thrust.

McHUGH J: Well, I must say -I have not heard the Crown on that) assuming we get to that stage, but I must say it did

not seem very much like corroboration to me, that

particular incident.

(Continued on page 7)

C2T35/l/FK	6	8/11/89
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DAWSON J: Can I take another instance? There was

a bag, a satchel, was there not?

MR PORTER:  A brief case.

DAWSON J:  A brief case. Now that, if what the accomplice

was saying was correct, fitted into his story and

supported it. Of course, if he was telling a story

about that which was not true the bag had no

relevance.

MR PORTER:  But, you see, the sinister aspect of an apparently

perfectly innocent act depends entirely on the

accomplice's evidence. That is our point.

DAWSON J: But that did not, you see. There are witnesses

who said that they saw a bag - - -

MR PORTER: Quite, but, Your Honour, the accused said he handed over a bag, two other witnesses saw him handing over a bag, there was quite a deal of

conflict between the precise circumstances of
handing over the bag, but on no account was there
anything sinister about the handing over of the

bag. There was nothing unnatural or unusual about

an employer giving his employee a bag. Unless

you accept Elkins' evidence theEe was money in

the bag the whole thing is quite irrelevant.

DAWSON J: That is right, but there was something objective

outside his evidence ~hich went to support it.

MR PORTER:  In my submission, there was nothing outside his

evidence that went to support him in an independent

way.

DAWSON J: That is what I do not know that I follow.

BRENNAN J: When you say an "independent way", Mr Porter,

is it not the fact that the Crown case is to be

found in the accomplice's evidence? That raises

the issues that are in contest between the Crown

and the defence. There is no question of accepting
the accomplice's evidence.	For example, if there

was no accomplice's evidence, it would be hard
to see why the drawing of a cheque for $1300, or
whatever it is, is even relevant to the charge

of murder. It is only because the Crown case is

"Well, was $1300 drawn1 11 that $1300 was drawn that one looks to discover,

MR PORTER:  That may well be so, Your Honour, but let me put it this

way:  if you get away fran this case, take an ordinary bank

robbing case, it may be expected -_and assune the bank robber says, in effect, that he did the bank robbery but the accused put him up to it and was the brains betl:ind it and so forth, it

would be expected that the bank robber would know the ccmplete

details of how the bank was robbed. So the accomplice's

detailed evidence of the robbing of the bank, which may turn out to be perfectly correct on the evidence of eye witnesses,

is no corroboration at all of the Crown case.

C2T3ti/l/ND	7	8/11/89
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MR PORTER (continuing):  The Crown case has to be

independent evidence implicating the accused

and if that so-called independent evidence

depends, as one Queensland case put it, for

its thrust or force upon the very evidence of

the accomplice himself, then it is not

corroboration at all.

DAWSON J: That cannot be right. Take a bank robbery

and the accomplice gives evidence that they

had stolen a blue Ford motor car - that is

his story - and a witness is called to say

outside the bank at the time was seen waiting

a blue Ford motor car. It only gets its

relevance from what the accomplice said, but

surely that is corroboration.

MR PORTER:  No, if Your Honour pleases. In that particular

case it is still not corroboration because it

does not implicate the accused. It has got to

do two things. It has got to point to the

commission of a crime - well, there is no

dispute about that; it has got to implicate

the accused. The whole point about - - -

DAWSON J: Let us say that the accused was the one who

sitting in the motor car waiting. The point

of the identification of the motor car in

that form is only relevant because of what

the accomplice said.

MR PORTER:	Yes, but there are many things that the accomplice's evidence identifies that are relevant in the sense of giving a verisimilitude
to his narrative, but there are only some parts
of it that are corroboration in the sense that
they implicate the accused.

McHUGH J:  Does this illustrate your point: on the

theory of the Crown case that is put against you

in this case it would have been equally

corroborative for the security men to say

that the accused and Elkins got in the accused's

car and drove off because Elkins said that they

got in the car and that is where he was handed

the money.

MR PORTER: That is right.

McHUGH J: It just happened it was in a bag, but it could

have been just handed to him in the car.	In
both cases you say - - -

MR PORTER:  The entire significance of it - it has no .

significance whatever unless you add Elkins' evidence

and, of course, I suppose, the test of it is

that very example when Mr Justice Maxwell directed

C2T37/l/JM	8	8/11/89
Kalajzich

the jury that in deciding whether it was

corroboration at all Hls Honour invited

the jury to decide, "Who do you believe,

Elkins or the accused?" If you once get

to that point, you are not dealing with

corroborative evidence at all and that is

our point.

McHUGH J: That was on the size of the bag, though,

was it not, when he asked about - - -

MR PORTER: There was a difference between Elkins and

the accused as to whether it was a big bag
or a normal-size bag and Elkins got some

support for his version from the fact that

a couple of security men thought, without

being particularly definite about it, that

it was a normal-size bag. On the other hand,

Elkins' version got no support from the security

men as to what happened to the bag after it was

handed to Kalajzich. They simply said it was

simply put in the car; they did not confirm at

all that he got in the car with Kalajzich.

But so what? The 'Whole thing is a completely

innocent and insignificant occurrence unless

you accept Elkins' evidence it was money in

the bag. Unless you accept his evidence there

was money in the bag, then you have got no

corroboration at all, so you get to the rather
paradoxical situation where the judge says

to the jury, "Well, look it's dangerous to

convict except upon the evidence of an accomplice.

Now here's evidence that may well be corroboration

but before we can give it any signficance, you

have got to decide who you believe, Elkins or

the accused." In our submission, that just

cannot be so with corroborative evidence. I mean,

if I can, as it were, illustrate the type of

evidence that we would say is corroborative: now

obviously an admission by the accused is

corroborative. It does not in any way depend

upon the evidence of the accomplice.

(Continued on page 10)

C2T37/2/JM	9	8/11/89
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MR PORTER (continuing): The sighting by an eye witness is

corroborative, because that again does not depend

in any way upon the evidence of the accomplice.

I mean it may be that you might depend upon the

evidence of the accomplice to say which bank was

robbed, but even that is doubtful.

BRENNAN J: That is all cases of principal in the first degree

if you are talking about the actual bank robber. The

problem here is whether or not there was a conspiracy
or, putting it on the charge of murder, whether or

not your client was a party to the offence committed

by the actual murderer. Well now that all depends

upon the contacts between and the relationship between

the person who is put forward as the accomplice and
your client. And why is it not then relevant to see

what other evidence than the accomplice's evidence

is there to establish that there was some relationship

between them?

MR PORTER:  To establish some relationship between them, yes, but

in this particular case of perfectly common ground

that there was a relationship between them, because

Elkins was employed in the hotel.

BRENNAN J:  Be it so, so that to a certain extent there is the

i.rn:iocenc.e associated with oome of that association.

MR PORTER: If I can take a very simple case. Say for the

sake of argument Elkins says that he goes to

Kalajzich's office two days.before the murder and according to Elkins he may say on that day it was decided that the murder were to be done in two days

time. Now the fact that half a dozen hotel

employees saw him going to Kalajzich's office

could hardly be corroboration, because in no way

does that evidence indicate that there was a murder

discussion in Kalajzich's room. The fact that

Elkins was going to his room - he did that every day.

McHUGH J:  But is the law ofcorroboration in practice consistent

with your submission? I remember when I was at the

bar it used to worry me about bruises in rape cases.

I must say,notwithstanding the practice and the authorities, I could never understand how that was

corroboration of implicating the accused, unless there

was some admission of it.

MR PORTER:  Your Honour, I have gone, 'if I might say so, ·right off

my script from the very beginning of my argument.

If perchance I could come back to the way rwould prefer

to argue it, I could come to that. I might say, as

a starting point, that Sir Garfield Barwick did

suggest, and there are others who have suggested the

same, that it is a little dangerous to equate

precisely, corroboration in the case of six-offences,

and conoboration in the case of accomplices.

C2T38/l/CM	10	8/11/89
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He said that in KELLEHER's case 131 CLR 534 at 542,

but I think probably everyone is familiar with that.

In the case of injuries inflicted or allegedly

inflicted during a rape, there will always be some

dispute as to whether they are truly corroborative
or not. One gets to an even more disputed area when
no injury is alleged, but the distressed condition
of the girl is alleged. For instance, there is

one case in the Federal Court where the girl alleged

that she had been raped by about four persons and

the defence was consent. Now the fact that she was

seen at 2 o'clock in the morning in a highly distressed

and naked condition running down the street in sheer
fear , by her apparent appearance was held to be

strong corroboration of the lack of consent.

(Continued on page 11)

C2T38/2/CM	11	8/11/89
~a-laj zich ·

MR PORTER (continuing): In our submission, that is perfectly correct. That evidence is quite independent of the

evidence of the girl herself.

McHUGH J:  How does it implicate the accused?

MR PORTER: It implicates the accused because, in a case

where the intercourse has been admitted and the

only issue is consent, it certainly implicates the

accused on the issue of consent.

McHUGH J:  But that means it depends on the nature of the

case, does it not?

MR PORTER:  I am sorry, Your Honour?

McHUGH J: The nature of the issues between the parties.

MR PORTER:  The distressed condition of the victim, or the

damaged condition of the victim's clothes,will often
be corroboration of her story if the issue is consent.

On the other hand, if the issue is identity it

would be no corroboration at all.

DAWSON J: Really,what you are saying is, is it not: where

the corroboration consists of circumstantial

evidence which is capable of more than one

explanation, only one of which would be consistent

with the story told by the accomplice, it can never

amount to corroboration?

MR PORTER:  No, if Your Honour pleases. What Your Honour is

putting would be correct assuming it is done on the

basis of taking each item and putting it to the

jury separately as an item of corroboration, which

is what was done in this case. Your Honour, we

would concede, as in the case of, say, GALLUZZO,

where that corroboration can be circumstantial

evidence and circumstantial evidence can consist

of a bundle of pieces of evidence, none of which by itself is sufficient to indicate the guilt of the accused but the total may. But that is not

how it was put to the jury in this case. Each

item was taken and put to the jury as a separate
item of corroboration. That, in our submission,

is where the Court of Criminal Appeal was in error.

That these matters that are said to be not intractably neutral or straws in the wind are only

relevant - can only be corroboration - if, combined

with other matters in the same series, they
together form a circumstantial chain which has

substance and significance.

C2T39/l/DR	12	8/11/89
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McHUGH J:  But to what what extent must they have substance

and significance because you would not need the

accomplice's evidence if they proved the case

themselves?

MR PORTER: Well, Your Honour, we co not suggest that the

circumstantial evidence required for.corroboration

has to go as far as the CHANBERLAIN test. We do

submit that it has to go sufficiently far to

implicate the accused in a substantial and significant

way; that at the end of the day, when you add

together the items of alleged circumstantial

evidence, then the sum total will amount, fairly,

to significant implication of the accused.

McHUGH J:  Do you rely on Chief Justice Bray's dissent in

LINDSAY's case in this?

MR PORTER: Well, if Your Honour pleases, only to a degree.

As I said when I opened this argument, I would

prefer not to express the matter in the way

Chief Justice Bray did for the reason that there

is one basic weakness to what he has expressed,
even though he faced up to it and denied it was a

weakness. But, you see, what he said was that it

has to be evidence which materially corroborated

the matters in dispute between the parties.	Now,
in most cases, if Your Honours please,	in a

great majority of cases, we would think that is

a fair way of putting it but as often happens when
you try and sum up a proposition of law along comes
an exception and McK's case was that. And, you see,

on Chief Justice Bray's test, McK's case was not

corroboration and we would not go that far. You see,

McK's case - the Court will remember - there was, I

think, a father charged with incest and he admitted

indecent assault so that the only issue of

substance before the jury was whether he had gone so

far as to penetrate but the Court held, and we

would not dispute it, that the very fact that he

admitted indecent assault on his own daughter had

to be corroboration of a charge of incest. It

So that, with the exception that the accused

would be a classic corroboration.

is not, as it were, entitled by reducing the issue

to turn corroborative evidence into non-corroborative

evidence, we would adopt Chief Justice Bray's

statement but we would prefer to put it a different

way on the basis that the evidence must, in fact,

by truly independent - truly independent - of the

accomplice.

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BRENNAN J:	What do you mean by truly independent?
MR PORTER:	Truly independent in that it stands on its own

without the accomplice's evidence.

BRENNAN J:  Do you mean its relevance appears by itself?

MR PORTER: Its significance appears without the accomplice's

evidence.

BRENNAN J:  You do not mean that the source must be other

than the accomplice. You mean that the relevance

and significance of it must appear without reference

to anything the accomplice said?

MR PORTER:  Without having to decide whether the accomplice

is telling the truth.

BRENNAN J:  But is it sufficient that the accomplice's

testimony sets, as it were, the parameters within

which issues are joined?

MR PORTER:  You see, that may well not prevent it being

corroboration. You see, take this case as an

example, that is the KALAJZICH case, it would appear

to have been pretty common ground between the parties

at the trial that Megan Kalajzich was killed, that

she was killed by a conspiracy involving Elkins

and Vandenberg and that will do for the moment. The issue was whether Kalajzich was, in effect,

the brains behind that conspiracy, the instigator,

whether he was a party to it, if you like.

The actual details of how the conspiracy was

carried out were, in many cases, not in controversy.

Sometimes there will be no controversy whatever

about the actual nature of the crime and how it

was carried out and the accomplice's part in it.
And in such cases the accomplice·'s evidence forms

the matrix of facts by which you have a look and

see whether this is corroborative evidence.

BRENNAN J:  But it seems to me that you are talking about it

as a matrix of fact and that involves questions

of acceptance of the evidence. My proposition

to you is that it is not a matrix of fact but a

matrix of issues and one determines whether or

not evidence is admissible and relevant by reference

to the issue. And if one looks at the testimony

of the accomplice in order to see what the issues

are, one then goes to see whether or not there

is independent evidence which supports one or other

of the issues.

MR PORTER:  Your Honour, our submission would not disagree

with what Your Honour has said and what

C2T41/l/ND	14	8/11/89
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Your Honour has said, in effect, is how it was

expressed in Victoria in NANETTE's case, in New

South Wales in RALPH's case, in the Australian

Federal Court in BROWN's case. But I have to

make the proviso that the only exception to what

Your Honour said is that if the accused, by an

artificial reduction of the issues, makes an admission which is clearly corroboration, it still remains corroboration even though he purports

to narrow the issues. Now, with that proviso,

our submission would accept everything Your Honour

has just put.

(Continued on page 16)

C2T41/2/ND

8/11/89

Kalajzich

BRENNAN J: 

We do not have to worry about whether or

not Mr Vandenberg or Mr Elkins' evidence was
acceptable to the jury; we just have to see

what was it that they said.

MR PORTER: 

But what was in issue, Your Honour.

BRENNAN J: 

And then we look to see whether there is

other evidence which tends to establish it.

It may be simply that he went to the office

of Mr Kalajzich on a certain day.

MR PORTER:  With respect, Your Honour - - -

BRENNAN J: Whether it is truly corroborative then

• .	depends on whether or not it can be regarded
as implicatory.

MR PORTER: That is right, because the whole point of

an accomplice's evidence, and this perhaps

is somewhat different from the sexual

complainant's evidence, you see the danger

of his evidence is that he, having performed

the crime, he can be expected to give a

pretty accurate account of how the crime was

committed and one can expect a great deal of

confirmation from independent sources of his

acGount of how the crime was committed.	But
what is important is whether on the issue between him and the accused, namely the
implication of the accused, the concern of the accused in the crime itself, the great
thing is whether he is confirmed on that
issue. If he is confirmed on that issue
then it is true corroboration.

McHUGH J:  But it is sufficient if it is confirmed in

a material particular.

MR PORTER:  He does not have to be confirmed on everythin8,

no, but he has to be confirmed on the

material particular implicating the accused.

McHUGH J: Well, take the satchel case, supposing your

client was observed handing $20,000 to the

Elkins, you could hardly dis~ute that that was corroborative evidence, can you?

MR PORTER:	If Your Honour pleases, that would very much depend upon the circumstances in which he was
seen handing it.  I mean, if he was seen handing
hotel money - and $20,000 is not a large sum of money in the hotel business - if he was seen
handing $20,000 to Elkins openly in Dalley's bar
so what?

C2T42/l/JM	16	8/11/89
Kalajzich

MR PORTER (continuing):  Most people would say that it is the

surreptitious, secret handing over of money that is

the matter.

BRENNAN J:  If he was seen handing over a satchel at 1.30 am in

the morning in a suburban street, what then?

MR PORTER:  Openly, in front of two security men?

BRENNAN J: Yes.

MR PORTER:	You see, there is nothing secret about it.
BRENNAN J:	No.
MR PORTER:	Openly, in front of two security men, why not?

BRENNAN J: Well, is it not then a question for the jury then

to evaluate it?

MR PORTER: Well, no. In our submission, no, because

for the jury to evaluate that, as Your Honour puts it,

how do they evaluate? They decide whether they

believe Elkins or they believe Kalajzich as to what

was in the suitcase.

DAWSON J:	No, no, that is the point that was being made to you.
Take the Crown case as being everything that Elkins said, forget Elkins - that is what the Crown said
happened.
MR PORTER:	Yes.
DAWSON J:	Now, that case is supported a, by what Elkins said, and b, by other evidence, the satchel.
MR PORTER:	Yes, but, if Your Honour pleases, the satchel by

itself does not incriminate Kalajzich, that is what we say. The satchel by itself does not incriminate

Kalajzich - - -

DAWSON J:  Only in the setting of the Crown case, that is righ 4

but that is - - -

MR PORTER:  - - - it is only Elkins' evidence that does, and in

that case it cannot be corroboration.

DAWSON J:	When you talk about supporting in a material particular;
the materiality comes from the Crown case.
MR PORTER:	The materiality comes from the Crown case, but it - - -

DAWSON J: And in that setting that particular is material.

MR PORTER:  It may be material, if Your Honour pleases, but it is

not - - -

C2T43/l/FK	17	8/11/89
Kalajzich

DAWSON J: Well, that is all that you need; material and

implicates the accused.

MR PORTER:  No, in our submission, the implication part comes

entirely - - -

DAWSON J: 

But it does implicate the accused, because -

MR PORTER: 

from Elkins' evidence.

DAWSON J: 

No, that is the point you make. It has

got nothing to do with Elkins' evidence.	The Crown
case happens to coincide with what Elkins	said and
therefore Elkins supports it, but so does	this

other particular.

MR PORTER: Well, in our submission, with great respect,

if Your Honour pleases, the example Your Honour has

given there is a simple case of Elkins supporting

himself with his own evidence - - -

DAWSON J:	No.
MR PORTER:	- - - because the only matter in conflict between

the accused and the Crown case at that stage is as

to what was in the bag upon which the Crown entirely

depends upon Elkins' evidence.

(Continued on page 19)

C2T43/2/FK	18	8/11/89
Kalajzich

:MR PORTER (continuing): In other words, the conflict, the only conflict, the

only issue between the parties, is whether there was
money in the bag or not, or money to pay for the

murder in the bag and the only source of that

evidence is Elkins himself. So, you are using Elkins

to corroborate himself on a crucial issue of the

case. I mean, that in a nutshell is the point we make.

BRENNAN J:  Mr Porter, leave aside for the moment, the rules

of law, but understanding the nature of the

allegations that are made against your client, and

there is evidence that at 1.30 in the morning he

is seen handing over a bag to this man in the
suburban street, would you think that it is prooably

very desirable for him in order to escape the

prospect of jury inference that might be dra\-m
against him to give some explanation of what is in

the bag and how he came to give it to him?

MR PORTER:  Well, if Your Honour pleases, I would have thought

that in the particular case of this case one would

not have thought it was relevant at all unless

someone - it would not even be admissible in the

case at all unless Elkins had said there was money

in the bag. It would not even be admissible. I

mean, there is no reason why the proprietor of a hotel

should not hand a briefcase over to an employee on duty

at 1.30 am in the presence of at least two other peo?le.

Now, that would prove nothing; it would not even be

evidence relevant to the case unless Elkins says,

"There's money in the bag", and that is the whole

point.

BRENNAN J: Well then it is a question of admissibility on

that basis; anyhow, we have been through that already.

MR PORTER:  Might I, if Your Honour pleases, come back to

now to my outline of argument? (Continued on page 20)

C2T44/l/JH	19	8/11/89
Kalajzich

McHUGH J:  I think you were dealing with the grounds of

special leave. They are two separate questions.

MR PORTER:	They are two separate questions.
MASON CJ:	Yes, you have to establish in the first instance that

the submissions that you want to make on this matter
of principle, as you describe it, are sufficiently

substantial to warrant the grant of special leave

to appeal.	That is the first hurdle you have to
overcome.

MR PORTER:  That is so, if Your Honour pleases, and to a

considerable extent I have to expand the principles

from my outline of argument to properly illustrate

what the principles are. We have tried to get there

by a fairly short-cut method, but with great respect,

Your Honour -

MASON CJ:	But that is the task that confronts all counsel in presenting an application for special leave.
MR PORTER:	That is so, and as we point out, if Your Honour

pleases, that whether the point be that the corroborative

evidence has to be independent qua an issue between the
parties or whether the point goes, as we have

expressed it, that the accomplice cannot corroborate

himself, the fact is that on that particular matter

there is a great deal of difference between the

various courts of Australia. At the present time,

if this decision stands, there will be a considerable

conflict between the Court of Criminal Appeal in

New South Wales and its own decision in RALPH's case;

the Court of Criminal Appeal and the Victorian

Supreme Court in a line of decisions illustrated

by NANETTE's case; there is a difference of opinion

in South Australia where a large number of South

Australian cases support our point and then there

is another line of authority in Brisbane, or in

Queensland, some of which is with us and some of which

there is the decision of the Full Federal Court in	is against us and, finally, if Your Honour please,
BROWN which is, in our submission, entirely with us.

Now, in those circumstances, we would submit,

if Your Honour please, that having regard to the

enormous number of cases that are now coming before

the courts on the question of corroboration, it is

highly desirable that this Court should, in fact,

adjudicate on the matter.

(Continued on page 21)

C2T45/l/HS	20	8/11/89
Kalajzich

MR PORTER (continuing):  I might point out, Your Honours,

that there is quite a scarcity of decisions

from the High Court on the general question

of corroboration. BASKERVILLE's case was

followed more or less contemporaneously in

RIDLEY V WHIPP. PEACOCK's case, of course,

was before BASKERVILLE's case. There has

been the comparatively recent case of

KELLEHER which is applicable in a very

restricted area. But this whole controversial

question as to what is the appropriate rule
as to corroboration, whether evidence can be

corrorboration if it corroborates the Crown

case on a point that is not in issue, whether

an accomplice can in effect corroborate himself,

and finally whether corroboration can be so

slight that it can be termed not in fact to

be neutral, or straw in the wind. Those are

all, in our submission, important points.

MASON CJ:  Mr Porter, we will take this up at a

quarter past two.

AT 12.49 PM LUNCHEON ADJOURNMENT

C2T46/l/JM	21	8/11/89
Kalajzich

UPON RESUMING AT 2.20PM:

MASON CJ:  Yes, Mr Porter. Now, the Court appreciates the

principle for which you contend in the way in which

you have formulated it. What impact would that

principle, if accepted, have on the decision of

the Court of Criminal Appeal?

MR PORTER:  In our submission, it would clearly entitle my

client to a new trial and it would completely reverse

the - - -

MASON CJ:  Would it exclude reliance on all the corroborative

evidence?

MR PORTER:  Your Honour, that is clearly a matter for argument

as to whether it would exclude reliance on all

of them. Some, we would say - if the principle

was once excluded, some, we would say, would clearly

come our way without much difficulty.	One or two,
I would think, perhaps it might still stand.	Our

submission would be, of course, the whole lot would

go - if you are asking m~ and I think I appreciate

the nature of Your Honour's question, To give some

sort of estimate, I would say, Your Honour, at

least three-quarters would go and it would certainly

entitle us to a new trial.

MASON CJ:  Can you identify the ones that would go?

MR PORTER:  Yes, if Your Honour pleases. A convenient way

of doing it would be to turn to	the appeal book
at page 1591 where we list them	all and the proposed
grounds of appeal.

(Continued on page 23)

C2T47/l/ND	22	8/11/89
Kalajzich

MR PORTER (continuing):  We would say, if Your Honour please,

that (a) would go; (b) would certainly go; (c) would
go; (d) we would say would go but we could understand
that the Crown might be able to mount some argument

on (d); (e) would go. Then, coming over the page to

deal with Vandenberg's corroboration: (a) would go;

(b) would go although (b) does not really so much depend on the point but we would say it would go; (c) would go; (d) would go - (c), (d) and (e) are all

closely related and we would say they would all go; and for some reason or other the last one should be

(f) and it has been called (iv) but it would go too,

Your Honour.

The point runs right through the whole lot. So

far as the tapes are concerned, Your Honour, although

the point is there for the tapes I would concede
we are not as strong on the tapes as we are on the

other points.

MASON CJ: Yes.

MR PORTER:  I am not conceding that we lose on the tapes,

Your Honour, but I am -

MASON CJ:  I have never known you to make concessions like

that, Mr Porter, but I was going to say to you, now,

is there anything else you want to put in support
of the special leave application, that is, the

grant of special leave?

MR PORTER:  Yes, if Your Honour please. What we would like

to put on the special leave application is this,

if Your Honour please - I did say before lunch

it was an important point because this sort of

case is cropping up all the time under the present

craze of law enforcement. I mean, to illustrate

it: this Court has had GRASSBY's case before it

quite recently; now that Mr X er Mr Smith, as the

case may be, he was the witness, of course, in

RALPH's case; at the present time before the Sydney court, there are two prominent cases depending upon

accomplices, that is ROGERSON and SAVAAS; there is

TIMOTHY ANDERSON's case on commital.- all of these	cases depending upon accomplices, really, of the
nature of Vandenberg and Elkins.

(Continued on page 24)

C2T48/1/DR	23	8/11/89
Kalajzich

MR PORTER (continuing):  We say that this case is a good

vehicle for testing the point. If I could

illustrate that just by a couple, at page 1189,

in volume IV, in relation to the damage to the

skirting. At line 10 His Honour says in

surmning up, and this is not in criticism of

him because if our point is wrong, this is

inevitable, but His Honour says, in effect:

Members of the jury, as I say, you

will bear in mind Elkins' evidence. He

says Kalajzich was there. Kalajzich has

sworn to you he was not there.	You heard
the whole of the evidence.	You have heard

the submissions of counsel ..... You are

the judges of the fact and I leave that

to you. All I have decided is that it is

capable of corroboration of what Elkins

said.

Without reading further, Your Honours see that something is corroboration by deciding whether

they believe Elkins or Kalajzich, which has to

be wrong. The same point occurs at page 1195

with regard to the briefcases and over the page,

starting at line 24:

You will have to look at all the

relevant evidence using your cormnon sense.

Do you accept what Elkins says? If that

is so, he got $20,000 plus the bugging

equipment, which is worth $1,000. But,

that is what he has sworn, that this was

part of the pay-off to Vandenberg. You

say: all right, what does the accused say

about it?

And then he goes on. Over the page, at page 1196

line 24:  If, in fact, you do not accept the

evidence of Mr. Kalajzich in this regard,

that evidence of Elkins and Packer and Stear

would be corroborative of what Elkins said.

(Continued on page 25)

C2T49/l/JM	24	8/11/89
Kalajzich

MR PORTER (continuing):  Now there you have got the final

paradox where you are saying in effect that the

evidence of the accomplice is corroboration of

what the accomplice says. Now I am not putting

those in criticism of what His Honour said because

if our point is wrone then that sort of paradox

is inevitable for the surmning up.

MASON CJ:  Yes.

MR PORTER:  So what we put to Your Honours is this, that the case is a very good vehicle for the point. Then

may I put this to Your Honours: assume for the sake

of argument all my submissions are wrong, well then

I am not alone in those submissions. I mean there

are decisions of numerous courts in Australia which

are referred to in the affidavit supporting and I

have been referring to in my argument this morning,

whether I am right or wrong in my submissions, we

would submit that it is high time that the High Court,
which is the ultimate Court in this country, gave

guidance on this topic~ And of course my learned

friend has referred to a Canadian case. I do not know

whether Your Honours have looked at that Canadian

case.

MASON CJ: Well, I have not.

MR PORTER: Well,that Canadian case in 1982 says in effect,

''W:11 the law is so terribly confused on this topic

that we will start again and we will do away with

the rule al together in BASKERVILLE' s case:' But it

does illustrate that the law is complex in this
area - is very complex, indeed,_,and we would submit that

it is an area in which the High Court should give

guidance, because KELLEHER's case was about a rape

case. It is no real guidance on any of these questions

and there has been no real guidance from the High

Court on these very difficult questions for a long

time and yet on the other hand we say this, that few matters could be more important than what is

really corroboration.	I would rather put it on
basis	of what are the appropriate steps that ought

to be taken to eliminate so far as possible the

chances of frightful injusticesin this area. Now

the recent decisions in cases such as RALPH illustrate

only too clearly the enormous danger of accomplice~s

evidence.

(Continued on page 26)

C2T50/l/CM	25	8/11/89
Kalajzich

MR PORTER (continuing):  The traditional way of getting over

that danger has been to say to the jury, "It's

dangerous to convict on the evidence of an accomplice

unless it is corroborated", but if, as the case now

before Your Honours, and numerous other cases tend to show - and they are the cases against my point - if the case is that very slight matter indeed

will amount to corroboration and matter depending
considerably on the evidence of the accomplice

himself, well then the whole point of this branch of

the law is gone because the whole point of

corroborative evidence is to eliminate the danger

and in my outline of argument I quote a few

authorities for that proposition.

When the presiding judge says to the jury,

"It's dangerous to convict on the evidence of an

accomplice unless it is corroborated", what you have,

in effect, said is, on the other hand, "If it is

corroborated the danger goes". The cases say that

again and again. Now, if the judge then says to the

jury, "Items (a), (b), (c), (d), (e) and (f) are all

capable of corroborating", then two things happen, of

course. All those items against the accused are

stressed and the jury then feels, and quite properly,

on the direction, there no longer is a danger, there

is corroboration.

Now, if the corroboration is in fact slight, a

straw on the wind, substantially depending upon the
evidence of the accomplice himself, then, in our

submission, it does not eliminate the danger at all,

and that is why this point is an extremely important

point because, in our submission, as the authorities

now stand, it is quite possible for a person to be
convicted on the evidence of an accomplice, to be

given the traditional warning when there is no

substantial corroboration in a real sense, and by

in a real sense I mean corroboration which

eliminates the danger, which is what the direction says.

McHUGH J: 

Mr Porter, in many cases where an acomplice gives

evidence and there are allegations of corroboration
the trial tends to focus around the alleged

corroboration.

MR PORTER: 

That is so, yes.

McHUGH J: 

Did that occur in this particular case, or was it

a more general case?

(Continued on page 27)

C2T51/l/HS	26	8/11/89
Kalajzich

MR PORTER:  Your Honour, I think the fair way of answering

that question is this, that the case was so large
and there were so many aspects to it that during

the hearing there was not all that much concentration -

I mean, the concentration on all sorts of things,

but it is perfectly true to say that towards the

end of the case, in both the - you see, His Honour's

items of corroboration which are the subject of appeal are the items selected by the Crown. So

that at the conclusion of the case, at least, both

in the Crown's address, in my address and in

His Honour's summing up there was an enormous

concentration on these items.

But there is no question about it, that no

one would maintain that either Elkins or Vandenberg were the type of accomplices which are occasionally found of whom one could say, "Well, he may be an

accomplice but he is a truthful man and we can rely on him without worry.", and both of them, as His Honour says in the summing up - because

His Honour's summing up was perfectly fair in this

regard, His Honour refers to the various matters

in which their credit was seriously challenged

and destroyed.	So corroboration was quite crucial
in this case.

I mean, it ultimately boiled down to a question

of Elkins' evidence, Vandenberg's evidence versus

Kalajzich's sworn evidence - he gave evidence,

of course, himself and corroboration had to be

the resolving fact in the case. I mean, as a

vehicle, this is a case where corroboration was

crucial to the whole case. If His Honour had summed

up to the jury on the basis that a large number

of these items were not corroboration, then the

case may well have gone a different way.

It was also a case, Your Honour, where the

distinction was made both by the Crown and His Honour

in the summing up between matters of confirmation

of that, the fact that Elkins tried to recruit	and matters of corroboration. To give an example
a man named Stokes. The fact that a gun was obtained
per medium of a Blackjack Johnston, or something. All of these matters provided confirmation without
corroboration.

So His Honour did, quite clearly, in his summing

up, draw the distinction between confirmation and

corroboration. Of course, the whole stress then

became on these matters of corroboration.

C2T52/l/ND	27	8/11/89
Kalajzich

MR PORTER (continuing): If perchance the jury decided these

matters on His Honour's direction against my client,

well then, of course, my client was gone. As a

matter of fact, His Honour says quite frequently in
his summing up with regard to these items of

corroboration - some of them - that if the jury

found against my client, well, it would have a very
considerable impact on the result.

In effect, if Your Honour pleases, what my

outline of argument seeks to do is to show that

corroboration is something that is extremely important,

the law has recognized that. Some sort of safeguard

is needed in cases depending upon the evidence of an

accomplice. Corroboration has been the chosen way and

if corroboration is to fulfil its task on the

traditional summing up as authorized by DAVIES' case,

then it has, in effect, to eliminate the danger, because
the standard form of summing up has been for many

years that you may convict upon the evidence of Elkins -

you may convict upon the evidence of Vandenberg, but it

is dangerous to do so unless it is corroborated. That,
of course, carries with it the message that if it is

corroborated the danger goes, and what we say, in effect,

is this, that unless the corroboration is such as to

eliminate that danger then you are in grave danger
of an injustice. In this ultimate Court one is not
particularly concerned with the merits of Mr Kalajzich's

case, but we say that this case has an effect right

across Australia on numerous similar cases.	With respect,
we would say that it is really high t:im: that the	,
administration of criminal law in this country was
assisted by the type of judgment that one could
expect from this Court in resolving the questions
raised in this case. Wnether my submissions are right
or wrong, it is equally helpful to the administration of justice.

If it is the fact that some of my submissions are

way astray, well then that is equally a point of public
importance, with respect, Your Honour.	Now, I have,

so far, confined my argument entirely to special

leave; that is what I have to say on special leave.

(Continued on page 29)

C2T53/l/FK	28	8/11/89
Kalajzich
MASON CJ:	Yes, I realize that, Mr Porter.	Yes, Mr Ramage.

MR RAMAGE:  Your Honours, might I, as one who was not in

the trial, adopt with diffidence the remarks

of learned senior counsel in the sense

I would urge upon Your Honours the importance

of corroboration in this case. Might I hand

up to Your Honours the summary of ar8ument

for the applicant Orrock?

MASON CJ:	Yes, thank you, Mr Ramage.
McHUGH J:	Were you in the Court of Criminal Appeal,

Mr Ramage?

MR RAMAGE:  No, Your Honour. My learned leader that

was to be, Mr James, was in the Court of Criminal

Appeal. Your Honours, the grounds of this

application seeking special leave are set out
in the affidavit of Rosemary Janet Freeman

of 23 June 1989 to be found in book V of the

appeal book, pages 1744 to 1747. The challenge that

is made to the judgrrent of the Court of Criminal Appeal

is pn page 2 of that affidavit, that is page 1745

and the first challenge is that:

The Court erred in holding:-

1. In its application of Rule 4 - - -

MASON CJ:  You might allow us, I think, a little time,

Mr Ramage, to read your outline of argument.

MR RAMAGE:  It is submitted on behalf of this applicant

that the rejection by the Court of Criminal

Appeal on the basis of the application of

rule 4 raises a significant question which would

warrant the granting of leave. Perhaps if I

could outline how we come to that, at pages 1556

appeal in the Court of Criminal Appeal. That	to 1558 of the appeal book, Your Honours will see set out details of the first ground of
ground was that:

"His Honour erred in directing the jury that the following matters were capable of affording corroboration of the evidence

of the accomplices when those matters:

(1) did not tend to implicate the appellant;
(2) did not tend to prove the crime

independently of the testimony of the

relevant accomplice;

Your Honours will see that at page 74 of the

judgment, page 1559 of the appeal book, the

court concluded that:

C2T54/l/JM	29	8/11/89
Kalajzich

none of the material referred to in

paragraph one of -

the -

grounds of appeal was capable of being

treated by the jury as corroboration of
the evidence against him of either

Vandenberg or Elkins. However -

the court went on to say -

as no redirection was sought -

by counsel appearing on behalf of Orrock, leave

was required under rule 4 of the Criminal

Appeal Rules and the court went on to determine

that it:

did not consdier that this is a case in

which such leave should be granted.

(Continued on page 31)

C2T54/2/JM	30	8/11/89
Kalajzich

MR RAMAGE (continuing):  The court made that determination

on the basis, it would appear, that counsel
appearing for Orrock had sought a redirection in
respect of some of the matters in respect of

corroboration and those redirections were, in fact,

given by His Honour as is set out in the appeal

book at page 1558. The court, in our respectful submission, apparentl:-·

assumed that ·experienced counsel for Orrock made a de l 1 berate

decision to object only to some of the matters left

as constituting corroboration and he stood by and

allowed the remainder to go to the jury.

Your Honour, apart from the very fact that some

objection was taken to those matters and no objection

was taken to the other matters, there can be nothing

to support the proposition that is usually advanced
in such cases that counsel deliberately did so
seeking to obtain a tactical advantage by so doing.

The court in fact did not conclude that it was for

any tactical advantage nor would we respectfully

suggest could it have been for any tactical
advantage. Try as one can, in examining the whole
of the material, there seems to be no purpose that
could have been served by counsel objecting to any

of those items but not the other items, unless it was

some diffidence on the part of counsel, in fact, in

making such submissions, and the court did not examine

whether counsel made a serious but honest mistake in

this case.

Your Honour, the court went on to say that in

the application of the principles which have been
long applied in this Court they determined that leave
should not be given and in the application of those
principles leave was refused apparently equating
rule 4 to the test in the case of REG V WILDE, but
the court relied upon, in particular, REG V MORABITO
& TRIPODINA and the cases cited in that case which,
in turn, was a decision of Mr Justice Yeldham and

others of the same court. It is submitted on behalf

of the applicant that when one looks at the cases

cited in TRIPODINA, which I will come to in a moment,	it is hard to see any justification for the statement
that leave would only be granted where an irregularity
has occurred which is such a departure from the
essential requirements of the law that it goes to the
root of the proceedings which is the test that the
court postulated for itself at page 1560.

The basis of this in TRIPODINA is said to be

the test laid down in WILDE and His Honour cited the -

C2T55/l/HS	31	8/11/89
Kalajzich

the Australian Law Journal reference 1 have here,

cited before this Court, I am sorry, the Australian

Criminal Reports reference, that case is to be

found at (1988) A Crim R 331. Our submission,

Your Honour, is that it is quite clear that in

WILDE's case what was being discussed was the

application of the proviso and the proviso that is
set out in section 6(1) of the CRIMINAL APPEAL ACT.

It is submitted that this was not and could not be

the test for the application of rule 4 and rule 4

could not be used in such a way to block an appeal

on a question of law.

(Continued on page 33)

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MR RAMAGE (continuing): We would refer this Court to

section 5 of the CRIMINAL APPEAL ACT for New

South Wales of 1912. That says, section 5(1):

A person convicted on indictment may appeal

under this Act to the court -

(a) against his conviction on any

ground which involves a question

of law alone; and

(b) with the leave of the court -

in certain circumstances. Your Honours,we submit

that the ground that His Honour had misdirected

the jury in respect of evidence that was capable of corroborating the evidence of the accomplices was a question of law, and that the application of

rule 4 cannot be used to, as it were, write down the

clear provisions of section 5 of the	COURT OF
CRIMINAL APPEAL ACT.	Your Honour, if I can briefly

go to the cases in TRIPODINA itself which is

recited by the Court of Criminal Appeal - - -

BRENNAN J:	Can you tell us what rule 4 says, Mr Ramage?
MASON CJ:	Can you tell us what Criminal Appeal rule 4 says?
We do not have a copy of that.
MR RAMAGE:	I am sorry, it should have been before

Your Honours. Criminal Appeal rule 4 is that:

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial,

shall, without the leave of the Court, be

allowed as a ground for appeal or an application

for leave to appeal unless objection was taken

at the trial to the direction, omission, or

Now that is very precise in its terms. If it is decision by the party appealing or applying for leave to appeal.

to be read completely on its face, Your Honours,

it would appear, in our respectful submission, to

be ultra vires . the rule-making power which is

contained in section 28 of the CRIMINAL APPEAL ACT

itself.

BRENNAN J: Was that point taken in the Court of Criminal Appeal?

MR RAMAGE:	Your Honour, can I answer you in this way by saying the practice of that court has been to, in most cases
and I understand this was one such, to allow argument on the point and then if the court so determines

C2T56/l/CM	33	8/11/89
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then to apply the rule if they feel the circumstances

warrant it. In other words they will hear the

appeal and hear what is argued and apply the rule and

indeed of course that is what they did in this case.

MASON CJ: But the answer to Justice Brennan's question is no.

MR RAMAGE:  Well ,it did not arise Your Honour. It would not

have arisen.

MASON CJ: Well it must have, otherwise the argument would have

been beside the point.

MR RAMAGE:	Your Honour, the argument was accepted by the court in the sense that· the court has ruled that His Honour
was in error.  If the question of rule 4 had been
raised by the Crown as a complete bar, the argument
could not have got any further than that.

(Continued on page 35)

C2T56/2/CM	34	8/11/89
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MR RAMAGE (continuing):  The court actually considered the

argument that despite the fact that counsel had

not taken the objection this material was not

admissible and after accepting that argument they

applied rule 4.

BRENNAN J:  I take it that in the course of the argument

it must have been said that no application was

ever made for a redirection.

MR RAMAGE:  That would have been true, Your Honour.

BRENNAN J: Well, that would have been irrelevant if rule 4

was ultra vires.

MR RAMAGE:  Your Honour, I was not present at the argument

and it is not recorded but the fact that the court

determined the point in favour of the appellant

and then applied rule 4 would seemed to indicate

that the court certainly did not, as it were, knock

the argument out to begin with by an application

of rule 4.

BRENNAN J: Perhaps my question was not quite accurately

stated to you because it may be relevant, I suppose,

to a proviso situation in any event.

MR RAMAGE:  Your Honour, the proviso is a separate proposition.

It may well be that this Court will rule, I do

not know, that the proviso was appropriately applied this appeal solely on an application of the
but my first point is this, that if the Court of

principles of rule 4, that rule could not reduce

or cut down the effect of section 5 of the COURT

OF CRIMINAL APPEAL ACT.

BRENNAN J:  Mr Ramage, why should~ entertain an argument

on the validity of rule 4 when that matter, which

is so much a matter of daily practice before the

Court of Criminal Appeal,was not raised by counsel

before it and when we have not had the benefit

of their view upon it?

MR RAMAGE:  Your Honour, let me say that it is a matter that

is daily used by the court in the fashion that

appeals are heard and then, if the court so determines

after hearing the appeal, then that they feel it is

is a matter that they should apply rule 4, they

do so.

BRENNAN J: That is not a matter of pulling something out

of the sky, it is part of the rules. It is part

of the rules of the game which is played day by

day in the court.

McHUGH J:	And it is	a procedure which counsel for	the appellant
is usually	only too happy to embrace, is	it not,

C2T5 7 /1 /ND	35	8/11/89
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because it enables him to get the whole of his

argument before the court and hoping to prejudice

the court in his favour by the merits of the case

whereas if it was just a straight leave point the

argument may not get off the ground? I understand

under the new Chief Justice that is what is being

done, is it not?

MR RAMAGE:	Your Honour, it is of no advantage to counsel for the appellant in that situation if then rule 4
is applied in such a way as to say, "Well, even though you have won on the ground of an appeal
on a point of law, we are going to apply this on some principle extracted from the cases where both
prior to the coming into force of rule 4, a similar rule 4, in 1925 there was a common law approach and then afterwards certain principles are said
to have been bu i 1 t up".  It is no advantage to
counsel for the applicant -

McHUGH J: It is no advantage in the long run if the court applies rule 4 against you but the point is that

if you can put the whole of your argument you have

got a better chance of getting the discretion

exercised in your favour.

MR RAMAGE:  Our point is, Your Honour, that rule 4 cannot

be read to prevent an argument being put on an

appeal involving a question of law.

(Continued on page 37)

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McHUGH J:  But it says so in terms.

MR RAMAGE: Well, for that reason we say that if it is to be

applied in that way that it is ultra vires the

Act and ultra vires the rule-making power of the

Act under section 28.

TOOHEY J:  But when you say that, Mr Ramage, you run into

the difficulty that Justice Brennan directed you to,

do you not, that if that be the case, then the

matter should have been aired before the Court of

Criminal Appeal?

MR RAMAGE:  If counsel adverted to the fact that the rule was

going to be applied against the applicant in the

Court of Criminal Appeal, Your Honour.

McHUGH J: Well, it is.

TOOHEY J:  I am not sure that you could have it both ways

but there is nothing to prevent the appeal being

initiated on the basis that the rule itself is

under attack.

MR RAMAGE: Well, Your Honour, I do not know whether the Crown

or anyone else took the point - the rule 4 - that

this appeal should not be allowed to succeed because

it had not been argued - that this particular issue

had not been argued. That is all I can, I cannot

assist the Court.

McHUGH J:  But the rule in TAM says you shall not argue it.

You come along as a mendicant, you have got to ask

for the leave in your favour, it is always there.

MR RAMAGE:  The Court obviously accepted, in part at least,

the application that the appellant was entitled to

argue or that they would listen to the argument.

They heard the argument; they ruled in favour of the appellant and then they dismissed it by purporting to apply the principles in respect to

rule 4.	Now, I propose to take the Court to those
principles, very briefly, because there are very

few principles, I would suggest, which can

be extracted from the cases referred to in

MORABITO & TRIPODINA. Indeed, each of those cases

that are cited there in the judgment of

MORABITO & TRIPODINA was a situation where the

Court determined that there was nothing, there was

no point, which would be upheld.

In other words, it was not one such case

where one was looking at, yes, the appellant has

got a good case but we will apply rule 4 to block

it. In each of those cases the principles -

whatever principles can be extracted and I find it

C2T58/1/DR	37	8/11/89
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very difficult, with respect, to determine what those

principles are - that they were not used in cases
where there was a good appeal point. If the Court
would like me to I will take the Court to those

cases cited in - or briefly say what we submit are

the principles, if any principles can be extracted.

We would suggest that whatever this Court did it

did not apply those principles.

BRENNAN J: Well, Mr Ramage, speaking for myself, it seems to

me that the two obstacles in your way of arguing

this are first, that the argument as to the

validity of rule 4 was not raised and detennined in the Court of

Criminal Appeal; and the second is, if you accept

that that point is not open to you then the

application of rule 4 to the particular circumstances

of this case does not raise a question of general

public importance.

MR RAMAGE:  Your Honour, the application of rule 4 was one basis

on which the Court purported to determine the

matter. We say that - - -

BRENNAN J:  But that submission, if I might say so, seems to

put the Court in the position of a litigant.	The
Court is not the litigant.	The question is whether
the parties raised it?

MR RAl'1AGE:  I am sorry, Your Honour, I was not cavilling with

that because I am not in a position to answer

whether there was any discussion about rule 4.	What
I was about to say was that may well be true, Your Honour, that there was no discussion. The
Court of Criminal Appeal used rule 4, as can be
seen on page 1560, and then went on to use the proviso, as it were, on the basis that no
substantial miscarriage of justice has actually
occurred.

(Continued on page 39)

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MR RAMAGE (continuing):  They relied on the cases cited in

SAAD V REG and REG V WILDE. In our respectful

submission, in reaching that conclusion they

relied also on the admissibility of other

corroborative evidence and they said, in effect,

there was a record of interview by the applicant,

Orrock, and that is corroborative of what is

contained in the - that is other corroboration apart

from the corroboration of the accomplices. In so

doing, Your Honour, the court, in our respectful

submission, using that as part of its argument,

ignored the fact that the records or interview

themselves were very much in dispute, and in fact,

His Honour had been asked to rule on a voir dire and after the voir dire when His Honour ruled

that, we say, without considering the real issue
of voluntariness and not determining the facts in
respect of an issue of voluntariness, that after

His Honour had in fact ruled in respect of the

admission of the record of interview, there

was a further lengthy and detailed evidence given,

which put the reliability of the record of

interview in issue. So, to say that one can in part

reject the problem created by the admission of this

evidence against the appellant as corroboration

of the accomplice against him; that one can take

that and rely on the fact that there be no miscarriage

of justice because there is, apart from that, a

record of interview. When that record of interview

itself is in great dispute, in our respectful

submission is seeking to corroborate with something

which is, at the very least, contentious.

BRENNAN J:	But it was admitted in evidence.
MR RAMAGE:	Your Honour, I appreciate that, but it is considered

one cannot in those circumstance determine this, did

the jury rely on the record of interview to find that

Orrock was guilty, or did they rely on that alone, or

did they use the directions given by His Honour in

respect of corroboration - and the other material in

respect of corroboration to prop up or eliminate any	doubts they may have had in respect of the dispute
that was in respect of the record of interview, and it
is our submission that that is what, in fact, the Court of Criminal Appeal had done in this proposition
where they say that:

Even if we were disposed to allow the

matters concerning corroboration in the
case of Orrock to be raised, notwithstanding
the failure to take objection to them at the
trial, we would none the less be of the
opinion that,having regard to the strength
of the case against Orrock, it would be

appropriate to apply the proviso.

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And what Your Honours were referring to there,

it was apparent, is the records of interview

in respect of Orrock, which as I say were very

much in dispute.

We would say, Your Honours, that if one was

to take the principle regarding whether there has
been a departure from the requirements of a

properly conducted trial, the principles laid

down by this Court, and I will just read from

headnote of this Court in REG V WILDE,

(1987) 31 A Crim R 331:

(Continued on page 41)

C2T59/2/FK	40	8/11/89
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MR RAMAGE (continuing):

where there has been a departure from

the requirements of a properly conducted

trial it cannot be said that there has

been no substantial miscarriage of justice

if the applicant has thereby lost a

chance which was fairly open to him of

being acquitted. Unless it can be said

that there had been no blemsih in the

trial, an appropriately instructed jury,

acting reasonably on the evidence properly

before them and applying the correct

onus and standard of proof, would

inevitably have convicted the accused;

the conviction must be set aside.

In a situation where a mass of material, as in this case, was admitted against the appellant on the

basis that it was corroboration of the accomnlice

against him, with respect, we would submit the court could not be satisfied that a jury would not have used that material for the purpose of reaching a conviction.

McHUGH J: Yes, but the failure of experienced counsel

to object to this may indicate that in the

atmosphere of the trial he just saw it as

unreal to think that the jury would be

regarding the matters not objected to as evidence

of corroboration so far as he was concerned,

whereas in respect of the four matters to which he drew attention, the tapes and the payment of

the money, it might be thought that it could
have some connection with the case against

Orrock.

MR RAMAGE:  I am sorry, Your Honour. You are saying it

would be unreal for them to believe it could

be connected, or not connected?

McHUGH J: The jury might - in respect of the payment of

money and what was on the tapes it may be that

the jury would think that it was corroborative

without a direction and the trial judge, in

accordance with the request of counsel for

your client and the Crown, gave the direction

that it could not be regarded as corroboration, but Mr Van Aalst made no objection to all these other points~ For instance, take the question

of shooting in the pillow, or the shooting in

the office. And the focus here in the trial,

what did that have to do with Orrock; was anybody

seriously thinking that that ;.;as going to be

corroborative evidence against Orrock?

MR RAMAGE:  Your Honour, I would have thought not and that

is what makes it even more inex~licable. It is

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such a case as is set out in those cases

recited in MORABITO where one can say that

counsel lay by with a hope of achieving a

forensic advantage, or adopted an approach

where he contradicted himself for the ournose

of hoodwinking the Crown, or hoodwinking the

judge in setting up an appeal point.

McHUGH J:  I must say I would incline to the view,

not having yet heard the Crown, that it

was more likely that counsel thought those

matters just really did not count at all in the case against his client and that is why

he let them go.

MR RAMAGE:  With respect, Your Honour, they were pretty

horrific matters to let go.

McHUGH J: Yes, but they were matters that were

really in contest between Kalajzich and the

Crown.

MR RAMAGE: That may well be right, but he let them go

on the basis that there was a direction there
that these were matters which could corroborate

the evidence of the accomplice against his

client artd one is always diffident about being

critical of another counsel's conduct of the case.

It becomes even more difficult when you can see no logic, rhyme nor reason for so doing

and no forensic advantage to be gained.

McHUGH J:	But he is sitting there, he is hearing the summing up and he makes a few notes that he
wants to take objections to and obviously it
must not have struck his mind that the jury would be acting on those matters against his
client.  You have got to look at these things
in the atmosphere of the trial.
MR RAMAGE:
I appreciate that that is a problem and it

Yes, Your Honour, I appreciate that and

is a problem that the Court of Criminal Appeal

were well aware.

(Continued on page 43)

C2T60/2/JM	42	8/11/89
Kalajzich

MR RAMAGE (continuing):  But to say, as the Court of Criminal

Appeal did, that he stood by and allowed the

remainder to go to the jury, using that in its old sense of standing by in the sense of being devious or dishonest or endeavouring by a forensic

trick to gain an advantage, there can be no foundation

for that in this case, I would respectfully have

thought. And in those circumstances, it was, one

would have thought, looking at all those cases
that are cited in MORABITO, that it was not a case
where the rule should be applied with such rigidity

to prevent an otherwise important misdirection

to, as it were, go by the board, unless this Court

was of the view that the balance of the evidence

against the appellant was so strong as to say there

could be no miscarriage of justice and it is, in

respect, when we get to that, Your Honour, that

we say that the record of interview was clearly

in dispute. And if one was to look at the record of interview - and it may not be contained in the

appeal book before you, Your Honour, it was printed

so it should have been - there is no doubt that

it was a strong series of admissions but it was

no doubt that it was also part of Orrock's case

that the admissions had been induced because he

had been offered by the police an immunity.

That was, of course, denied by the police

but there was no doubt that that was a strong issue

in the trial. Now, once the record of interview

went before the jury, who knows whether the jury

used that to bolster the evidence in respect of

the corroboration of the accomplices or vice versa
if they were uncertain about the evidence of the
accomplices and the record of interview, of course,
I can tell the Court, related almost entirely to
his dealings with Elkins who was the accomplice.

So you have got this circularity of approach.

McHUGH J:  But also the fact that he was paid $2500 and that

he spent it in certain ways, was it not?

MR RAMAGE:	In the record of interview, Your Honour?
McHUGH J:	Yes.

MR RAMAGE: Vandenberg, I am sorry. it was Vandenberg, yes.

My learned friend is more up to date. Your Honour,

the other matter we would submit is a matter

on which this Court should or would grant special

leave to appeal is that it is submitted that the

court was in error - the Court of Criminal Appeal

was in error in holding that no appeal was open

by way of a rehearing on the admissibility of the

record of interview of the applicant.

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At page 1569 of volume V of the appeal book,

the court dealt with, on page 1568, the objections
that had been raised to the admission of the record

of interview in respect of Orrock in this form:

Each of the findings of the trial Judge,

both discretionary and otherwise, were open

to his Honour upon evidence which he was

entitled to accept. As this Court pointed

out in REGINA V O'DONOGHUE (unreported 22nd

July, 1988) an appeal to the Court of Criminal

Appeal from the findings of fact by a trial

Judge upon which he based his ruling -

that is the admissibility of evidence

is not by way of rehearing.

The court laid down the following principles:

Error may be demonstrated if there is no
evidence to support a particular finding,

or if the evidence is all one way, or if the

Judge has misdirected himself. There are

well known limitations which apply to the review of any discretion exercised by the

trial Judge in making that ruling.

(Continued on page 45)

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MR RAMAGE (continuing):  We would submit in the authority

of WARREN V COOMBES,Your Honours,that - - -

McHUGH J:  But all that Their Honours mean, do they not, in

that passage at line 25, 26 is that in this sort

of case it is not as though the Court of Criminal

Appeal starts afresh and reviews the matter as if

it was sitting at first instance. That is all

they are meaning. Is that not made plain by the

following two sentences and it is a discretionary

judgment?

MR RAMAGE:  In respect of discretion we cannot argue that,

Your Honour. In respect of the facts that are found by the trial judge,it is a matter of record,

particularly shown in the case they cite of

REGINA V O'DONOGHUE.	Also it is a matter of
record	in cases such as MURPHY & ORS, the

unreported decisionof the. Court of Criminal Appeal

given on 14 December 1987 and KYRIAKOU, again an

unreported decision on 6 August 1987, the

Court of Criminal Appeal has steadfastly maintained

that it will not examine, afresh as it were, the

facts of the primary trial judge, and we say that

on the authority of WARREN V COOMBES that that

approach is unduly restrictive and that indeed they

should so examine what the trial judge has found

or in some cases has not found at all and in those

cases it would be necessary for the Court itself

to determine the facts. WARREN V COOMBES is

suggested as authority for the proposition that it

is the duty for the appellate court to decide the

case, the facts as well as the law for itself.

This, we would submit, is the situation even

if the appeal be on law alone and I would of course

make the point that the judgment appealed from

in respect of the voir dire is a judgment appealed

by the judge alone. Even though this was a jury trial,

that particular judgment is a judgment by him alone.

WARREN V COOMBES of course is an authority of this Court to be found at 142 CLR 531.

BRENNAN J: That was a case of an appeal under a provision

which gave an appeal by way of rehearing,

is that right?

MR RAMAGE:	I think that is correct, Your Honour.
BRENNAN J: Whereas	here we are concerned with an appeal

involving a question of law alone.

MR RAMAGE:	Yes, Your Honour.
BRENNAN J:	What is the question of law?

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MR RAMAGE: Sorry, Your Honour?

BRENNAN J: What is the question of law which answers the

description of 5 (1) (a) of the CRIMINAL APPEAL ACT?

MR RAMAGE: 

The question of law is whether the record of

interview admitted against the appellant was
voluntary.

BRENNAN J: And that turns on a question of law?

MR RAMAGE:  I am sorry, Your Honour?

BRENNAN J: That is a question of law?

MR RAMAGE:  We would so submit.

McHUGH J: Well cannot you put it differently? Is it not

an appeal on the ground that there was a miscarriage

of justice?

MR RAMAGE:  Yes, Your Honour. I mean the whole appeal is

on that ground and that is one - - -

McHUGH J: That is an independent ground. I mean, there are

three grounds, are there not, under section 6?

(Continued on page 47)

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MR RAMAGE:  Yes, Your Honour, certainly put on that basis.

In respect of that decision of WARREN V COOMBES,

•Your Honours, we would rely on what was said.

Perhaps if I can read - and I have to concede it

was a case of negligence.	I read from the
headnote:

An appellant court, which, after having

carefully considered the judgment of the trial

judge, has decided that he was wrong in drawing

inferences from established facts, ought not

then to uphold his erroneous decision. The

duty of the appellate court is to decide the

case - the facts as well as the law - for

itself.

BRENNAN J:  I have difficulty for myself understanding how

it is that if - I can see that you can put the

question of whether evidence is rightly or wrongly

admitted, you can describe it, if you wish, as

a question of law, but if that question turns upon
a finding of fact as to whether a confession was

voluntarily made or whether it was procured by a

false representation or the other provisions of

section 410, then it seems to me that the finding

that is made is a finding of fact and it is

difficult to convert that into a question of law.

McHUGH J: That is why you have got to rely on miscarriage

of justice. The same as when the trial judge

misdirects the jury on questions of fact, you can
bring an appeal under section 6 but it is the

miscarriage of justice point that covers those.

MR RAMAGE:	Yes, with respect, Your Honour, I think that is in fact correct and I do have to so rely on
the miscarriage of justice.
BRENNAN J:	Then that is distinct from the ground of a wrong

decision of any question of law, is it not?

MR RAMAGE: It is a distinct ground, Your Honour, but would

embrace part of that ground in the sense that this

was one of a number of decisions which we would

say led to a miscarriage of justice.

TOOHEY J:  But does not section 6 deal with the way in which

an appeal, properly instituted, may be disposed

of?

MR RAMAGE:  In terms of the proviso, Your Honour is talking

about?

TOOHEY J: No. Section 5, as I read it, is the section which

grounds the right of appeal. Section 6 then provides

how the appeal may be determined. In other words,

C2T63 /1 /ND	,4 7	8/11/89
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you can appeal as of right on a question of law

alone and if you do then that brings into operation

the relevant parts of section 6 or you may appeal,

with the leave of the court, on a question of fact

alone or a question of mixed law and fact or any

other ground and if that leave is granted then

the appeal is disposed of in accordance with that

part of section 6 which is appropriate. But you

appear to be answering as if section 6 itself

confers a right of appeal.

MR RAMAGE:	No, I am not saying that section 6 instanter confers a right of appeal. Section 5 allows a
right of appeal on a question of law. Section 6
allows an appeal which - in effect, the right is determined by the outcome of the appeal in that
case.

(Continued on page 49)

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TCOHEY J:  Well, it does not appear to be what the section says
because it begins by providing that:

The court on any appeal under section 5(1)

against conviction shall allow the appeal - and then it goes on to provide the various bases

upon which the appeal mainly allowed.

MR RAMAGE:  If Your Honours are against me on the proposition

that WARREN V COOMBES is not relevant or applicable

in this situation of an appeal involving a miscarriage

of justice, then the points that I would seek to

make in respect of what was said in WARREN V COOMBES

and its importance in the operation of criminal law,

particularly the way it has not been applied in the

case of MURPHY, MURDOCK and KURAL and even the case

of KYRIAKOU which came before this Court and where

this Court, although it did not uphold the appeal,

left, as I understand the issue, open in its decision,

an unreported decision on 11 May 1988 where

Your Honour the Chief Justice as he and the Court

said:

Although the judgement of the Court of
Criminal Appeal does not accurately express
the role of an appellate court when a
challenge is made to such a finding of

fact by a trial judge, the Court is not

persuaded that the Court of Criminal Appeal

failed to examine for itself the critical

issue of fact -

in that case.

MASON CJ:	What was the question in that case, Mr Ramage?
MR RAMAGE:	Your Honour, the question in KYRIAKOU was -

perhaps if I can read from the unreported decision

of the Court of Criminal Appeal on 6 August 1987

and I will take it up from page 11 of that

judgment. His Honour held that the confession

was voluntary. That was a finding of

fact which it was open to him to make,

and I am quite unable to conclude that

he erred in that conclusion. This court

does not sit in judgment from factual

findings made by trial judges on the

voir dire. If there is no evidence

to support a finding, or if a judge has

applied wrong principles, or if the

evidence is all one way, then this court, in

order to prevent injustice, will intervene,

et cetera. So, the issue that was sought to be

raised before this Court, Your Honour, in KYRIAKOU

was, in fact, whether that, in view of WARREN V COOMBES,

C2T64/l/PLC	49	8/11/89
Kalajzich

was correct. Now, I am unaware, Your Honours,

whether the court in hearing and determing

KYRIAKOU did draw a distinction between appeals as
of right and appeals on questions of law or appeals confi,

to law alone or appeals as provided for under section 5

or section 6. Perhaps if I complete that by saying,

Your Honours, that this proposition that the Court of

Criminal Appeal has, in effect, refused to allow

the findings of primary - the judge at the trial

to be examined and has refused to examine them himself

is illustrated in the decisions of MURDOCK, MURPHY

AND OTHERS which is the unreported decision 01

14 December 1987; it is illustrated in KURAL V REG;

it is illustrated in the case of MERRIT V ROSA which

T64	is another unreported decision of the New South Wales
Court of Criminal Appeal of 30 August 1985. W€
say, Your Honours, that if the Court does have an
obligation to determine the facts itself, particularly
in circumstances such as were exhibited in this case
where His Honour, in fact, determined the admission
of the record of interview as follows:

~roof of the voluntariness of the records

of interview lies upon the Crown again on

the balance of probabilities -

and we have no objection with that.

Mr Van Aalst very properly has conceded

that the success of this ground relies

upon the success of the first ground; that

which relates to the giving of the inducement

as to inn:nunity.

His Honour went on to say:

I am not satisfied the records of interview

were involuntary or not free and voluntary

and I reject this ground.

His Honour, with respect, appears to have posed the

wrong test for himself in his rejection.

It is our respectful submission that when one comes to examine His Honour's judgment, he did not

deal with what was really being alleged which was

that a series of conduct on the part of the police

itself act as an inducement which included Orrock

being held in custody for something in the vicinity

of - I think the record of interview took 8 hours
but something in the vicinity of 14 or 15 hours,
then placed in the cell, held there, then brought

back for a further record of interview and after that

was completed, after being held for the weekend,

then released on bail,·which has its own

significance when one comes to consider whether or

not these allegations that he was offered inn:nunity

by the police were, in fact, likely to have been true.

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Kalajzich

But the point was, Your Honours, that this was

certainly one such situation where it was appropriate,

we would submit, for the Court of Criminal Appeal

itself to examine the facts and determine for itself

the facts.

BRENNAN J: It was having some difficulty in doing that, I

gather, if I look at page 1570 and 1571. Perhaps

I should go back to page 1569.

MR RAMAGE:  Where they say:

We found the argument of senior counsel for Orrock on this issue to be somewhat

difficult to comprehend.

BRENNAN J: Yes.

MR RAMAGE:  The court there, Your Honour, may well not have

appreciated what was actually being put in respect

of the overall effect of the alleged inducement.

BRENNAN J: Well, I do not know, because that seems to be

reproduced, does it not, at page 1571?

MR RAMAGE: 

Your Honour, it had been put to the court that

certain matters amounted to an inducement and it is
quite clear His Honour seems to have rejected -

even  the test that is actually posed seems to

have been the wrong test. I do not really rely on

that because I am sure it is only a misplacement of

the words by His Honour in that situation.

(Continued on page 52)

C2T65/2/PLC 51 8/11/89

Kalajzich

MR RAMAGE (continuing): It was put there were several

ways that one could look at inducement. One

was the actual words that were said when the

person was taken into custody and that was

a matter for His Honour to determine, and

he did determine. Another way which was put,

and which we say he never dealt with, was

the overall effect of the length of time

where he was kept, how he was kept, all that material which went - indeed that Orrock was

taken from hospital - from the cells - - -

McHUGH J:  But Mr Justice Maxwell's judgment on the voir

dire is not even in the appeal books, is it?

MR RAMAGE:  Your Honour, I had realized that and I was

about to try and rectify that. Can I hand

up to Your Honours a copy of that judgment

together - I apologize for this. It was

certainly included in the material that was

put in the draft.	How it came to go out again
I	..... details.

The final proposition we would make

is that the Court of Criminal Appeal did not

consider what category of culpability attached

this appellant and we say that while IBS V REG,

which is the authority we rely on for that

proposition, was a case dealing with categories

of sexual misconduct it is an appropriate matter

for this Court to give some aavice to the

oractitioners of criminal law in Australia as
to the way in which courts are to determine

categories of guilt in such crimes as murder

where the statute itself. does not provide any,

as it were, limitation, and while it is quite

clear that my client was charged, among other

things, with being a conspirator, the actual

material against him was more consistent

of course, with him being an accessary before

the fact, whether or not this Court will

entertain the notion that it should give some

guidance as to how a court should approach

the sentencing of such offenders in those

situations.

(Continued on page 53)

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Kalajzich

MR RAMAGE (continuing): So, Your Honour, briefly - - -

BRENNAN J: It is a bit hard for a party to a contract killing

to advance himself as an appropriate vehicle for

consideration of those problems.

MR RAMAGE:  He may not be able to advance himself as a person

of any great merit. What, perhaps, he can say is
this: that all the evidence points to the fact

that the killing would have taken place without any

involvement on his part and in those circumstances

it may be that he warrants no diminution of

sentence but we would submit that if the Court

reached that conclusion, that is, the conclusion

that the evidence points to, that that does, in fact,

warrant a reduction in penalty. Butitis more a matter

of whether the principle requires any assistance

from this Court than for me to argue that the

length of sentence is or is not appropriate here.

Your Honours, I have not dealt with and

perhaps it is inappropriate in my position in

view of the limited nature of the submissions I

would make to this Court to deal with the

submissions of the learned Solicitor-General,

except that we would respectfully submit that

this was a case where directions of corroboration

were given in respect of accomplices and given,

as the Court found, incorrectly in respect of my

client. It would be inappropriate, we would submit,

for this Court to determine without the real

assistance of argument·from, probably,

representatives of all States, in respect,

whether a law which has stood at least for, I

think, 73 years should be modified, adopted, or

abandoned in total, that is, as set out
in BASKERVILLE's case - and while I have not had

the opportunity to research this, I would

respectfully believe that this Court, itself,

would almost certainly have adopted the reasoning

or approved of the reasoning in BASKERVILLE's

case over the years. It is our respectful submission, too, that

if it becomes a discretionary matter the burden of

the appellate courts is likely to increase rather

than diminish.

MASON CJ:  But I am not sure what this submission is directed

to, Mr Ramage.

MR RAMAGE:  I am sorry, Your Honour, perhaps it is not before you

yet. It is directed in anticipation that the

Solicitor-General will argue as he has argued in

the - - -

C2T67/l/DR	53	8/11/89
Kalajzich

MASON CJ: Well, we know nothing about it at the present time.

MR RAMAGE:  Well, unless I can assist Your Honours in any

matter, those conclude my submissions.

MASON CJ: Yes, thank you, Mr Ramage. The Court will take

a short adjournment in order to consider the course

it will take in this matter.

AT 3.41 PM SHORT ADJOURNMENT

C2T67/2/DR	54	8/11/89
Kalajzich
UPON RESUMING AT 4.14 PM:

MASON CJ:  The Court need not trouble you on either of these

applications, Mr Solicitor. In the application of

Kalajzich, although the questions relating to the

nature of corroborative evidence raised by the
applicant are important and would, in an appropriate
case, warrant the grant of special leave, nothing

has been said which persuades us that the actual

decision of the Court of Criminal Appeal was
attended with sufficient doubt to justify the grant
of special leave. That is not to say that we would

agree with everything said by the Court of Criminal

Appeal, but we would not regard the attack which

the applicant seeks to make on the corroborative

nature of the particular pieces of evidence as

having sufficient merit to engender a misgiving

as to a miscarriage of justice in this case.

The application is therefore refused.

In the application of Orrock, in so far as this

application for special leave rests on the submission

that rule 4 of the Criminal Appeal Rules is

ultra vires, we would not entertain the application

as the point was not taken in the Court of

Criminal Appeal and this Court does not have the

benefit of that court's consideration of the question.

In so far as the application seeks to challenge the

refusal of leave under rule 4 of the Griminal Appeal

Rules and to question the directions of the trial judge in relation to corroborative evidence, it

raises no question of general principle or of public

importance. We would add that the point was not

taken at the trial and the Court of Criminal Appeal
was entitled, in the exercise of its discretion, not

to entertain the point.

Having regard to the terms in which the trial

apparently made to the Court of Criminal Appeal in	judge expressed himself and the submissions
relation to the grounds of challenge to the admission of the applicant's two records of
interview, this case is not a suitable vehicle for
considering the role of a Court of Criminal Appeal in reviewing findings made by a trial judge in determining the admissibility of confessional evidence.
There is no other point which justifies the grant of
special leave. The application is therefore refused.

AT 4.16 PM THE MATTER WAS ADJOURNED SINE DIE

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