Karunaratne v The Queen

[1990] HCATrans 146

i~

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B48 of 1989

B e t w e e n -

NEIL DIAS KARUNARATNE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J
DAWSON J
GAUDRON J

Karunaratne

McHUGH J

TRANSCRIPT OF PROCE.ED INGS

AT BRISBANE ON WEDNESDAY, 27 JUNE 1990, AT 2. 50 PM

Copyright in the High Court of Australia

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MR J.W. GREENWOOD, QC:  May it please the Court, I appear

with MR W.T. McMILLAN, for the applicant.

(instructed by A.W. Bale & Son)

MR P.M. TREHEY:  If Your Honours please, I appear with

my learned friend, MR C.B. CATO, for the respondents.

(instructed by the Director of Prosecutions)

MASON CJ:	Yes, Mr Greenwood.
MR GREENWOOD:	May I hand up copies of our synopses together

with a number of cases which I must apologise

we did not send the list of cases down in time

and so we are obliged, of course, to provide

photostat copies; that is the reason for this

rather formidable bundle.

MASON CJ:  Yes, that is what alarmed rre. You will be directing

your energies in the first instance to the question

of special leave, will you not?

MR GREENWOOD:  Yes, certainly, Your Honour. Your Honours,

this is an unlawful carnal knowledge conviction

in which the complainant withdrew her identification

and we ask the_ Court of Criminal Appeal to quash

or grant a new trial.	Dr Karunaratne has served
his sentence.	The significance to him of this

appeal is that he regards himself as unemployable

if the conviction stands.

The special leave point is whether or not

the principles to be applied when a woman recants
her accusation in these circumstances are to be

found in GALLAGHER which was our contention, or
in CODY, which was the view of the Court of Criminal

Appeal. As Your Honours will see from the affidavit

in support of the application for special leave

by the solicitor, virtually the whole of the debate
in this case consisted in whether or not GALLAGHER

or CODY ought to be regarded as applicable.

The view, if I might su·mmarize it, of the

Court of Criminal Appeal was that although GALLAGHER

is the case which governs the circumstances in

which new fresh evidence, as a genesis, as it
were, ought to determine whether a new trial is

granted, that a recantation or a withdrawal of

a complaint by a complainant fell into a special

category and that CODY gave the appropriate test

there.

The particular passage in CODY, to which

I should now turn, which the Court of Criminal

Appeal relied upon, is to be found at page 183

of the report and over the page. This was the

only law quoted by the Court of Criminal Appeal

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1n its judgment, expressing, as presumably was

its view, a sufficient statement of principle.

The passage begins towards the bottom of the page, the last paragraph:

A declaration by a witness that he has

committed perjury -

and carries on over the page down to about line 10 -

Each case should be treated in relation to

its own facts.

The interesting thing about this particular

passage is that it can be divided, I suppose,

into three parts. The first part is almost a

statement that prima facie recantation is not

to be accepted by itself as justifying a new trial;

there must be something more. So that recantation

only leads to a new trial if some added factor

exists and one must show this added factor, something

in the nature of an exception.

The second point, then, is that the added

factor is that the verdict must be open to objection

on a ground affected by the fresh evidence. And

so the added factor is mentioned but no universal

rule is stated.

The third point is that - if I may paraphrase

what in our submission was the approach of the

Court of Criminal Appeal - if the Full Court of

Court of Criminal Appeal can find an explanation

of the recantation, if the recantation is explainable

whether by pressure or some other motive, there

should be no new trial.

In our submission, those tests cannot stand

with GALLAGHER and, indeed, it is doubtful if

they can even stand with the decision of the court

in CODY, itself. If I might now pass to GALLAGHER

and refer very briefly to a few passages.	The
Court will recall that GALLAGHER, 160 CLR 393,

was a murder case. It was a case of murder by

stabbing in gaol. The accused had confessed to

some five prisoners and to the police although

at the trial he set up that he was in another

part of the gaol at the time of the murder and

there were some prisoners who supported him in

this.

The fresh evidence point was a confession

by another prisoner, also called Gallagher -

Arthur Gallagher - that it was he not the accused and convicted Gallagher that was in fact the guilty person.

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At page 394 of the report the Chief Justice Sir Laurence Street, is quoted expressing his

view that the evidence of Arthur Gallagher was

suspect to such a degree that he did not consider

that a reasonable jury might reasonably regard
that evidence as introducing an element of reasonable

doubt in the context of the trial. And, of course,
it is a test along those lines that the Court

adopted in its judgment.

But, in doing so, this Court considered certain

earlier formulations. First of all, those formulations

where the reasonable doubt in the mind of the

Court was the operative factor and the Chief Justice

Sir Harry Gibbs mentions that at page 398, about

half-way down.	And that, of course, was rejected
in favour of the jury test.	And one of the formulations

of the jury test, of course, was also considered

in GALLAGHER and the Chief Justice mentions that

at the top of page 399, whether in the opinion

of the Court of Criminal Appeal the fresh evidence

is likely to produce, in the sense that it would

probably produce a different verdict from the

jury. And, of course, the Chief Justice and the

Court rejected the likelihood test at page 399 and I will refer briefly to the Chief Justice's

formulation on that page and that appears at the

top of the page 399.

The Chief Justice refers to the likelihood

test and then continues in the second paragraph:

It seems to me, with all respect, that

where the trial was by jury, the accused

was entitled to have the question of his

guilt determined by the verdict of the jury,

and that the Court of Criminal Appeal, in

considering the effect of the fresh evidence,

should consider what effect it might have

had upon a reasonable jury. It is not enough

that there is a bare possibility that a jury

might have been influenced by the evidence

to return a verdict of not guilty. On the

other hand, it is too severe, and indeed

speculative, a test, to require that the

Court should grant a new trial only if it concludes that the fresh evidence was likely

to have produced a different result -

His Honour then agrees with the formulation by

Your Honours the Chief Justice and Justice Deane

that the test is whether there is a significant

possibility that the jury, acting reasonably,

would have acquitted the appellant if the new

evidence had been before it.

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Your Honours formulate that test at page 402

point 8 and I turn now to that:

The appellate court will conclude that the unavailability of the new evidence at the

time of the trial involved such a miscarriage

if, and only if, it considers that there

is a significant possibility that the jury,

acting reasonably, would have acquitted the

applicant of the charge if the new e-ridence

ha2 been before it in the trial.

Your Honour Justice Dawson takes up the definition

of significant possibility at page 421 from the

top of the page to about two-thirds of the way

down. Your Honour says:

I do not think that it can now be accepted

that a miscarriage of justice can only be shown to arise

from the discovery of fresh evidence if it
can be established to the satisfaction of

an appeal court that the fresh evidence is

likely to produce a different verdict. It

will be sufficient i~ upon the whole of the

evidence consisting of the evidence at the

previous trial together with the fresh evidence,

a court of criminal appeal reaches the

conclusion that a jury might entertain a

reasonable doubt about the guilt of the appellant.

A court will not, of course, reach such a

conclusion lightly and will bear in mind

that the evidence led at the previous trial

was sufficient in the opinion of the jury

to establish the guilt of the appellant beyond

reasonable doubt. For this reason a verdict

will not be disturbed unless the fresh evidence

is relevant, cogent and plausible. In the

end, however, the question remains whether

on the whole of the evidence, including the

fresh evidence, a jury might reasonably acquit,

not whether it is likely to do so.

And Your Honour goes on, further down the page,

talking about: 

significant possibility that the jury, acting

reasonably, would have acquitted the applicant

of the charge had the new evidence been before

it in the trial. With respect, I do not

think that the use of the expression "significant

possibility" lays down a standard which is

different from that which I have endeavoured

to express in what I have already said.

In particular, the use of that phrase involves

the rejection of any test based upon likelihood

of acquittal. I have thought it preferable

to express myself as I have because it seems

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to me that if there is any real possibility

of acquittal by a reasonable jury, it must

always be significant when considering

miscarriage of justice.

Those then, were the tests. The difficulty in

the application of tests such as this, in my submission,
we have endeavoured to identify in paragraph 4
of the outline of our submissions on the special
leave point and we put it this way, that where
the fresh evidence is affirmatively believed by
the Court of Criminal Appeal or where it leaves

the minds of the Court of Criminal Appeal in some

doubt on an essential element there is no difficulty

in deciding that there should be a new trial or,

perhaps in certain cases, that the verdict should

be quashed.

In applying the GALLAGHER test, the cases

which present real difficulty, in our submission,

are those where the Court of Criminal Appeal does

not itself believe or have a reasonable doubt

after hearing the fresh evidence but regards it

as capable of being believed by a reasonable jury
or capable of creating a reasonable doubt in the

minds of the jury even if they are not themselves

prepared to regard the new or altered facIB referred

to in the fresh evidence as affirmatively established.

This point, of course, relating to the fact

that the jury, although it might not necessarily

believe the fresh evidence, might none the less

find it sufficient to arise in its mind a reasonable

doubt, was a point that was referred to by

His Honour the Chief Justice Sir Harry Gibbs in

GALLAGHER itself at page 397 point 5.	He was
there referring to earlier comments by

Your Honour the Chief Justice, Mr Justice Mason

in LAWLESS.

Now, what Sir Harry Gibbs said, at page 397,

at point 5, was this - it is about half-way down

the page: 

Further, as Mason J pointed out in the same

case -

referring to LAWLESS -

the question will not necessarily be whether

the evidence is likely to be believed by

a jury, because evidence may be sufficiently

cogent and plausible to lead a jury to have

a reasonable doubt, although the jury might

not necessarily prefer it to other evidence

with which it is inconsistent.

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And that, in our submission, is the real difficulty

in cases such as this but it was a difficulty

which the Court of Criminal Appeal did not address

contenting itself, as I said, with the decision

in CODY itself.

If one were to look, as in our submission

one should, at the background of evidence at the
trial and also at the new evidence that was brought

forward, one comes to two broad conclusions:

one is that it can be said that the evidence at

the trial was by no means strong and the other

is that in a number of quite different respects

the fresh evidence believed or not, in many cases,

gives ample ground to justify an alternative verdict.

The outline of the Crown case, we have put

into a separate group of papers, three pages long,

and that is not as detailed as the outline of

the fresh evidence before the Court of Appeal
which we have placed together in a set of papers
with detailed references which is seven pages

long and we have put those before the Court.

The Crown case was simply this, that on Monday,

Tuesday and Wednesday, 2, 3 and 4 November 1987,

the accused drove three young girls home from

school, Tina Baker, Donna Faulkner and

Tracy Imhof~ and that on Wednesday, the 4th, after

dropping off Tracy Imhoff he took the other two
to a motel and there somewhere in the hours between
five and seven he had sexual intercourse with
the girl, Tina Baker, the complainant.

The defence case was that those three days

were the week of swot vac, the university lectures
having finished the previous Friday, that the
accused, an associate professor at the University
of Queensland in international trade, was habitually

in his office from nine in the morning, that he

was that week receiving assignments from numerous

students, one particular subject where he had

200 students had Wednesday, the 4th, as the last

day deadline for the assignment and that, in particular,

on the Wednesday when the offence is alleged to

have taken place he was in his office between

five and seven answering queries from students
in the subject, the international trade.

Other events that week which he mentioned as enabling him to identify what he was doing

at different times was that on 2 November, the

Monday, it was his wife's birthday, on 3 November,

the Tuesday, he won the economics department

Melbourne cup sweep. On 5 November, the Thursday,

the day after the alleged offence, he received

four telephone calls from young women, one seeking

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$5000, or, alternatively, that he would be reported

to the police. I shall return to those mysterious

telephone calls later because, in our submission,

they are one of the unsatisfactory aspects of

this case. Indeed, it will be submitted that

the police knew a great deal more about those

telephone calls than one was led to believe at

first.

After receiving those calls he went to a

friend, a sub dean, asked advice, went to his

solicitor, received some advice and rigged up

a recording device which he then used the following

week. He was ultimately arrested on 20 November.

There were a number of very serious weaknesses

in the Crown case, as soon as corroborative detail

was mentioned.

In the first place, Tracey Imhoff, who was

in the car on each of those days with the man

who was supposed to have committed this offence

was not called. She would have been a most important

witness on identification, particularly in the

light of the fact that identification became the

major issue. Secondly, the remaining two witnesses

when questioned about the colour of the car in

which they rode gave different versions. The

complainant preferred a green Mazda; on her day,

the 4th, Donna Faulkner said the car was reddish

maroon.

It is, of course, noteworthy that the police

took photographs of the two cars when they searched

his house on 20 November and it is true that he
had two cars, one green, one reddish maroon.

One of the disturbing factors of the new evidence now, by the complainant, is that in her original

statement to the police she could not remember,

when asked, the colour of the car in which she

was driven but green and maroon were suggested

to her and it was because -of that suggestion that

statement, that those were the colours of the she put in her statement to the police, her first cars.

Mrs Karunaratne gave evidence in rebuttal

of this and said that the green car was hers,

that she always used it during the week, that

it was specially fitted with the child's seats,

that one of the things she did was to take part

in the university's scheme for child minding and

that required her to go and pick up children at

certain times of the day.

The documentation was produced and that

documentation did indicate that on Wednesday,

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4 November, she was, in fact, picking up a child

at 3 pm and, according to her, was using that

green car which was supposed to be used for this

escapade on that date. So that was the evidence

on the colour of the car.

There was another matter which seemed to

come into this case at every turn and that is

the motif of Kentucky Fried Chicken. The police,

when they searched this house, unexpectedly on

the night of 20 November, found a receipt for

Kentucky Fried Chicken, the receipt being dated
Tuesday, 3 November, and in court both Tina Baker
and Donna Faulkner gave evidence that on Tuesday,

3 November, they were bought Kentucky Fried Chicken

by the man who committed the offence and that

they were bought that chicken at the Redbank Kentucky

Fried Chicken outlet.

This, of course, was in fact the outlet which

is shown on this particular docket. There were

some discrepancies in the cross-examination.

Tina Baker, the complainant, first said that he

bought the chicken for her only on the 4th, that

she then said that he also bought it for her on

the 4th as well as the 3rd. But the purchase of chicken on the 3rd was the vital one, that

was the one that was on the docket.

Mrs Karunaratne said that it was her receipt

and that she bought some Kentucky Fried Chicken

at Redbank on that Tuesday and that she did not

go into the shop but used the drive-in section.
The manager of the shop was called by the Crown.

In cross-examination he agreed that the docket

was coded in such a way that it had to have been

issued in the drive-in section. It could not

have been issued in the other part of the shop.

It had been the evidence of the girls that they

had actually gone into the shop and got the chicken

there.

offence and there getting served - being served	into the shop with the man who committed this So, in other words, their evidence of going
with chicken - could not square with the docket
that was relied upon in the Crown case. The other
very interesting thing is that from the timing
on this docket if the Crown case is correct
then Mrs Karunaratne must have been there at almost
exactly the same time at this Kentucky Fried Chicken
outlet as her husband and these two girls.

So that, too, was a most unsatisfactory aspect

of the Crown case as	soon as it started to descend
into detail.	The next point related to some peculiar
disfiguration on Dr Karunaratne's body.	He suffers

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from a disease known as psoriatic arthritis

and, at the time, the evidence was that he had

blotches in all different parts of his body and

that if he was naked, of course, these would be

quite obvious to anybody with whom he was having

T8 sex.

The relevant photographs are exhibit 12;

they are not reproduced in the record and so I

hand up seven copies of exhibit 12.

The evidence was from him and his wife, that

he suffered from this from about 1984 onwards,

that after about two years he sought medical attention

when the condition spread to his body, that in

November 1987 the treatment had partly worked

in the sense that scabs were beginning to form

and it was beginning to harden but that in many

parts of his body there were red weeping blotches,

red raw angry looking.

These photographs do show the extent of this

disease on his body and I would summarize it this

way, by saying that whichever way you look at this

man's body you cannot fail to see these quite

marked blotches.

The evidence by the compainant was simply

this - and it appears at pages 27 and 28 of the

record:  she says that after they went to this

particular motel she once again felt hungry and

ordered some more Kentucky Fried Chicken and he

went and got this for her, he came back and they

ate it. He finished his first and after he finished

his he started to get undressed. He took off all his clothes and dropped them on the floor.

The evidence was that in this motel there was

one room which was a bedroom cum dining room cum

lounge room and there was also a bathroom and

also a toilet so it was a three room motel.

Now, the lights were on, she had not quite

finished her Kentucky Fried Chicken and so he

began to get undressed. She could see what he

was doing, she could see where he was moving around the room, he undressed, he was naked when he walked

her over to the bed - as she described - after

she had finished her Kentucky Fried Chicken.

She says, at page 28 that she had:

noticed a few things about him ..... that he

had a hairy chest and shoulders -

a fat stomach but no hair on his back. I.twas

just his shoulders and chest that were hairy.

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He was, apart from those features:

quite an ordinary looking figure of a man -

that is at page 28, line 32.

No scars or anything like that, for example?--

No. I didn't take much notice.

If there had been any, well, large scars,

you would have seen it, wouldn't you?-- Yes.

Placed as he was here naked with the lights

on.	So there's nothing noteworthy about
this man's body.	No scars, nothing of that

nature, nothing disfiguring that you can

think of that you saw on that occasion?--

No.

And if there had been significant scarring or significant disfiguration, you couldn't

have helped but see it, could you?-- That's

right, sir.

So from that point of view, too, her evidence

of identification left something to be desired

and the evidence by Mrs Karunaratne and by

Dr Karunaratne as to the changes in the condition

between 1987 and when this photograph was taken

one night during the trial is given at the page

references which we mentioned in this part of

the synopsis.

Another unsatisfactory matter in the Crown

case about the identification of the man who went

to this motel on that particular day was that there

was no direct evidence other than that of the

complainant and Donna Faulkner that Dr Karunaratne

was, in fact, the man there on that day. What

the Crown relied upon were some entries in something

called a day sheet. It was not even a continuous

record; it was not even a book which recorded

of paper dated 4 November and we managed to find	the guests of that motel; it was simply a piece
another piece of paper dated 2 November of the
same sort.

On that piece of paper there were the words

"Mr Knott" and the two proprietors of this motel
gave evidence, first of all Mrs Stephanos, that

Mr Knott was an Indian gentleman and she was prepared

to identify him as being Dr Karunaratne from a

card of photographs that were shown to her.

Mr Stephanos was not prepared to go that far.

He, too, was shown a card of photographs by the

police - this was their method of identification.

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He was shown a card of photographs by the police

and all he was prepared to do was to say that

Dr Karunaratne would be the closest.

So the only evidence was that an Indian

gentleman who went under the name of Mr Knott

had apparently been there on previous occasions.

Now, the person who wrote the entry was available

but was not called. At page 87, line 40, th0re

is a reference to it and Mr Stephanos,the proprietor

is asked this:  '

If I suggest that Mr Knott's name appears

to be written in a different biro from the

other two names, would you agree or disagree

with that?-- It's the same colour except

the front in one is different biro.

Does that look like Mrs Roylance's writing

to you?-- Yes, I think so.

Is Mrs Roylance in Brisbane at the moment?--

Yeah.

Mrs Stephanos went a little bit further than that.

She seems to be prepared to identify the writing

as that of Mrs Roylance who was a lady who lived

down the street who occasionally came in to act

as the receptionist in the afternoons. And at

page 81, line 50, one way of approaching the evidence

is to treat her as identifying that handwriting

as being that of Mrs Betty Roylance.

But the one person who was in Brisbane and

who could have, presumably, identified

Dr Karunaratne as being the Mr Knott whose name

is written there, was available and was not called.

A strong, in our submission, affirmative

case was put up by Dr Karunaratne but before going

to that, very briefly, might I say this - - -

McHUGH J: Before you do, you really have not done justice

to the Crown case, have you? I mean, there were

no less than six witnesses identified your client

as being associated either with the motel or some

other parts of it and there was a total denial.

So, quite apart from the evidence of the complainant,

there was a wealth of evidence on which the jury

could find a consciousness of guilt in your client's

part in that he denied any knowledge of these

women or ever having been to the Kentucky Fried

Chicken place or to the motel?

MR GREENWOOD:	Your Honour, there was no evidence that he had ever been to the Kentucky Fried Chicken place.
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He knew of its existence but there is no evidence

from him that he had been there, only

from these two girls that were called. No admission,

I mean. That was challenged. Our submission,

really, is that the Crown case depends upon the
evidence of the complainant as supported in so
far as it can be by Donna Faulkner and by this

evidence of Mr and Mrs Stephanos.

McHUGH J:  But your case at the trial was that it was a

fabrication on the part of these Crown witnesses,

was it not?

MR GREENWOOD:	Pardon, Your Honour?
McHUGH J:	Your case was that it was not a case of mistaken

identify but it was just a case of fabrication?

MR GREENWOOD:	Your Honour, it was in the alternative and, indeed, what we would now emphasize is the
mistaken identity aspect of it because that is the evidence which the complainant now says is
the truth. That is the way in which we would
put it now, that this man Noel whom these girls knew and who, on 4 November, went with two of
them to a motel is an Indian man but he is not Dr Karunaratne and it is there, of course, that the fresh evidence, the retraction by this girl, Tina Baker, becomes so important.

Before, perhaps, saying anything more about

that, what I should do is say that the method

of identification throughout this trial used by
the police was that of showing a number of
photographs on a card and this, to a certain extent,
was not seriously challenged by us at the trial
but one of the very interesting things about the
fresh evidence is the light that it she& upon
the method that the police used in preparing these

cards because Tina Baker says that the original

card that she was shown, and from which she selected

the person who most closely resembled the defendant,

which she then signed on the back, was a card

of photographs which only had one Indian on it.

The rest of them were of Aboriginal extraction.

The cards, as shown in the court and tendered

in evidence, quite obviously, had a number

of people on it who looked as though they were

Indian in race. So that, one of the aspects of

the fresh evidence is that if that aspect of it
is accepted, the method of operation of the police,

then it does cast doubt on the whole of the

identification evidence of the other witnesses

in this case. But perhaps I am forestalling myself.

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Karunaratne
DEANE J:	Mr Greenwood, are the transcripts of the tapes

that were before the Court of Criminal Appeal

in the material before us? I have not seen them.

MR GREENWOOD:	No, Your Honour, they are not.
DEANE J:	How could you be asking us to intervene without

putting that material before us?

MR GREENWOOD:  Your Honour, I am not quite sure if this

question was raised when the record was being

settled. Actually those transcripts - what happened

was the Court of Criminal Appeal had available to

it transcripts to help them follow what was said on

these tapes. The tapes were, I think, appalling

would be the best description of their quality.

They were almost unintelligible. The witness was

able to say, from time to time, "Jes, I agree that

those words were said" and she was able to say that

either she or somebody else had said them, but in

so far as she did not or was not prepared to agree

to what was being put to her and what was being

played to her, we certainly would be the last to

suggest that anyone should reject what she said,

because they really were so very, very bad.

DEANE J: Well there is quite a bit of them reproduced from

page 309 on, where she asserted she had got between 300 and 700 dollars to change her story and she had

offered money to the other witness to change her

story.

MR GREENWOOD:	Yes, she accepted all that and in so far as she accepts these things, of course, then, in our
submission, that is the way one proceeds, but it
would be our submission that what is in the
transcript is  sufficient to enable the Court to
look at that aspect of the case. What - - -

DEANE J: That raises a special problem though, does it not,

in that it may move you into a particular area when

the personwho says she changes her evidence is

shown to have stated that she received money to

change her evidence and to have offered money to

another material witness to change her evidence,

that other witness having stood firm and refused.

MR GREENWOOD:  Of course it does. It is a most important factor.

DEANE J:  It leads one to the area where, on an application for

special leave to appeal, there are quite extraordinary

considerations operating.

MR GREENWOOD:  Your Honour, what I will say about that very

shortly is that she quite frankly confronted those

issues as they were put to her and answered them.

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Karunaratne
DEANE J:	Yes, except if you read her evidence in its

entirety at times as I read it, she asserted she

was telling the truth in the lower court, which

leaves one with a very uncomfortable feeling

about - - -

MR GREENWOOD:  Your Honour, certainly, but it is, of course,

a question of evaluating her evidence as a whole,

against the other evidence in the trial. The

only point that I wish to make before moving to

that is that there was an affirmative case put up

by Dr Karunaratne. It is adequately dealt with, I

think, in the judges summing up, but all I say about

it is this, that it really was quite a strong

affirmative alibi case. There was a Mr Copp, a

graduate student, quite a prominent public servant

was quite firm on this question that he had seen	from Canberra who came up to give evidence, and he on the afternoon of Wednesday, the 4th. Briefly
the situation was this: that one of Dr Karunaratne's
subjects, International Trade, was lectured in by
him on Wednesdays between 5 pm and 7 pm. The semester
finished the last week of October. It was the
aniversity practice, and was in this case, that the
students would be examined between 5 pm and 7 pm in
that subject, a fortnight after the close of lectures.
The arrangement between Karunaratne and his students was that he would make himself available in
that intervening Wednesday between 5 pm and 7 pm if any of them had any queries and that is what he did.
Now that is the vital time for this offence to have
taken place. Copp is quite firm on it. Some of the
others were less than firm on it. One said that he had written a short note to Dr Karunaratne at his request soon afterwards when Karunaratne was looking for evidence from these students and that he would
not have written it if he had not then been sure that
that Wednesday was the relevant date. So that there
was a strong positive case - this is not the sort of
unusually strong case from the Crown. There were case where one looks at the fresh evidence in the light of a very weak case from the defence or an two other witne.sses , · a research student who had
been doing some typing for him and her husband
indicated that he had come to deliver that typing to
Dr Karunaratne and that Wednesday was one of the two days when he thought was the date when he had
actually delivered it and evidence taken between him
and his wife does certainly seem to point to that
date as being the appropriate day and that it would
have been delivered to him around about half past three
or a quarter to four.

BIT9/15/CM	15
Karunaratne

So there is evidence there in the affirmative case. Now the fresh evidence before the Court of Criminal

Appeal, we have attempted to sunnnarize in the final seven pages which are before the Court. There was

an original complaint to police and Tina Baker was

first questioned on 5 November after her return from
school and her mother and grandmother made certain

threats to her. It is noteworthy that the evidence

is that she had already then asked to leave the

mother's home and go to her grandmother at Goodna

because of some trouble with a man, so that there

was this background of friction between her and

her mother and some apprehension on her part that

this flogging threat might be implemented. She

says that when asked by the police to remember the

colour of Noel's car she could not do so. The police

themselves suggested green and maroon, and those

colours then went into her statement. She later said

that she remembered that, in fact, the colours of

Noel's cars were cream and red or maroon colour.

She did identify a photograph of Dr Karunaratne,

but with considerable reservations. She says that

the cardboard of photographs which she was shown

was full of dark people, but there was only one

Indian. That she picked the Indian. Noel is of

Indian race, and this identification was in the

presence of her grandmother and detectives Vonhoff

and Dance and she says from the first she said to

the police that the man that she selected really

merely resembled Noel. Of course, it is the essence

of her evidence that the man that she identified in

the photograph was not the man at the Paramount Motel

on 4 November. There were a few typographical errors

which were corrected and those references are also

there at page 2 of the notes.

The significance of this method of identification,

as I have already submitted in answer to a question

by Justice McHugh, is that it goes far beyond this

girl's identification of the accused, because it goes

to the whole question of the identification by all
the Crown witnesses,	if,indeed. Tina Baker is to

be accepted by the jury and this method of slipping

new photographs in is the method used with the

other witnesses. She said that she was not satisfied

with her statement nor with her identification, ,but the police refused to listen. When she was signing

it she told them there were some things wrong in it. They said she was lying. She signed to get them off

her back. She cannot now remember the untrue passages.

At an interview with police they named Karunaratne.

They called her a lier when she told them she did

not have sex with him. "They would not let me tell
them the truth. All they were worried about was putting

the man behind bars". One thing she wanted to change

BIT9/16/CM	16
Karunaratne

in her statement was that she had sex with the

man Noel on one occasion. In cross-examination

she first agreed this was the only thing she

wanted to change, but later said there were other

things as well.	She discussed the things she
wanted to change with her mother.	He mother told

her to leave it in. At the time she was 14 and

·she was totally scared of both her grandmother,

who had threatened to flog her, and her mother. She
was also intimidated by her grandmother's tongue and

she gives examples of that.

Now it was this statement,regarded by her as

unsatisfactory in several respects, that she learnt

off by heart for the purpose of giving evidence.

(Continued on page 18)

BIT9/17/CM	17
Karunaratne
MR GREENWOOD (continuing):	She acknowledged that she

maintained her identification of Dr Karunaratne in

both the committal proceedings at Ipswich and in the district court at Brisbane despite extensive

cross-examination and she explained why she did

. that; mostly because she was scared of her mother.

And,. indeed, her mother was in court and kept

gesturing whenever she looked towards her during
her evidence and the various references to the

transcript are there.

There is a reference also at that page on

the occasions when her mother put her out of home

and sent her to live in Goodna with her grandmother

because of her conduct with a young Aboriginal and

she makes the point that her mother was extremely

prejudiced against dark people and was the one who

wanted to put Dr Karunaratne away in gaol.

After the trial in the district court, her

friend Michelle Dale started to hassle her almost

on a daily basis to acknowledge that Dr Karunaratne
was not Noel and to give a statement to his

solicitors and the various references are there and

the various arguments which we used. On the question

of the argument about the money, it may not be

without significance, if I might derive some comfort
from the decision of the Court of Criminal Appeal,

that the court deals with this question of money

at page 34 7 and is far from making a fin ding which

completely disbelieves Tina Baker in this; at the

transcript, page 347, this is said:

In the affidavit material and in

cross-examination Baker denied that she had

been paid money to change her evidence.	She
did however grudgingly admit that she had

received money, which she said was borrowed,

from Michelle Dale and had bought a

nightdress with the money given by Michelle.

Upon being asked whether she had ever spoken

to people about getting money to change her

evidence she answered: 

"Michelle offered me money and I didn't

accept it. She didn't pay me either."

She admitted she told the police officer that

she had got money from Michelle and that she

had purchased a nightdress "from it". On

the taped extract she speaks of being paid

or promised substantial amounts.

So, I mention that in response to the question

directed at me by Your Honour Justice Deane because

it does seem that the Court of Criminal Appeal is

far from rejecting her account on that particular

BlTl0/1/JH	18	27/6/90
Karunaratne

aspect of the matter.	So, that is what she says
about - - -

MASON CJ:  But you do not get much comfort from that, do

you, because when you look at the top of page 349,

. His Honour says:

There is ample explanation for her

recantation being induced in the

circumstances I have mentioned leaving

unaffected the credibility of the original

identification.

MR GREENWOOD:  Your Honour, that, of course, is his

conclusion.

MASON CJ:  Yes, but his conclusion is reached in the light

of an account of the evidence that she gave which

has two princip::rl features:. one, persistent

pressure by Michelle and, two, the evidence relating

to the receipt of money and the offer of money.

MR GREENWOOD:	Your Honour, when analysed in that way - - -
MASON CJ:	And, when you look at the evidence, it is

particularly damning, at pages 309 and 310 which

deals with the conversations about the money in

which she admits that she had been paid or, at least,

offered:

nearly 6/700 bucks -

by Michelle. And, if you go back earlier to

page 297, she says in response to questions, about

three-quarters of the way down the page, that she:

gave truthful evidence about -

the event -

in the District Court -

that -

it is still the truth -

and that, probably, the explanation for her decision

is that the man who paid her money should not go

to gaol.

MR GREENWOOD:  I see that the two questions and answers

which Your Honour is referring to:

And you gave truthful evidence about that

in the District Court, didn't you?

BlTl0/2/JH	19	27/6/90
Karunaratne

I see. I think what the witness is there saying,

Your Honour, is this: it has been put to her

that:

back in November the man who you had

sex with in November 1987 paid you,

didn't he?---Yes, he did.

And, it is then put to her, presumably with respect

to that point, that the man that she had sex with
paid her:

And you gave truthful evidence about that in the District Court, didn't you?---Yes.

And it is still the truth, isn't it?---Yes.

It was, and remains, part of her case that the

man, Noel, whom she had sex with did give her $30

at the end of this escapade on 4 November.

MASON CJ:	But what about the next question and answer?
MR GREENWOOD:

Tina, you have decided, haven't you, that

it is not very fair seeing the man paid

you in November '87 that what you said in

court should result in him going to gaol,

that is what you really think, isn't it?---

Probably.

Your Honour, I must say that that is a difficult answer to understand but, in our submission, what it means is this: the man, Noel, if he should be

charged it is, perhaps, not fair that he should go to

gaol in view of the fact that he gave her money

and she was willing to do it and she probably would

take that particular approach if that proposition
were put to her. But, looking at the question and

answer in isolation, it is certainly difficult to

know what it means, whether it is referring to

Dr Karunaratne or to the man, Noel, and whether the

man, Noel, ought to go to gaol if charged.

Certainly, throughout the whole of this evidence

in the Court of Criminal Appeal - and she was

cross-examined very thoroughly - she, at all times,

maintained that Noel was a different man from

Neil Karunaratne.

McHUGH J:  Yes, but what about the telephone number? Did

she not give herself up on the telephone number?

That was his number and there it was in a diary
and she had admitted that she had had that number
right from the beginning so she could ring the man

she knew as "Noel Knowles".

BlTl0/3/JH	20	27/6/90
Karunaratne

MR GREENWOOD:  Your Honour, certainly and that was

something that my friend relied upon. The original

evidence about the telephone number is at page 289,

line 10, where she is asked this - and this is

what the cross-examination subsequently referred

to.	She is asked:
Did you ever have in your possession
Mr Karunaratne's phone number?---No.
Where did you glean that information?
Where did you obtain that information
from?---When the police were trying to
set the man up.
Listen to my question carefully. When did
you first learn of that information? When
did you come to get that information?-----
Mr Justice Connolly:  Which infort!'~tion?
Mr Gundelach:  The information of the
telephone number.
Witness:  When I gave them the statement.
By Mr Gundelach:  Is that the statement you
have already referred to as being taken
on 18 November?---Yes.

So, she says and, Your Honours, in our submission,

the 18 November can, so far as she is concerned,

fairly be regarded as the beginning of this

particular litigation and investigation or close

to it. She is then asked, at pages 301 and 302,

this is put to her at line 10:

If I may deal with another matter while

the tape is being found, my learned friend

asked you some questions earlier this

morning, Tina, about whether or not you

knew Mr Karunaratne's telephone number.

Do you remember that?---Yes.

And as I recall your-answer you said that you did not know it?---Yes .

Is that so?---Yes.

I have a little book here which I want to show you?---Ah-huh.

First of all just look at it, if you would?

..... Yes, it is my book.

It is your diary, isn't it?---Yes.

BlTl0/4/JH	21	27/6/90
Karunaratne

Just have a look through it, if you

would?---I know what is in it.

You know what is in it, don't you?---Yes.

And Mr Karunaratne's telephone number is

in it?---Yes.

Your handwriting put the phone number in,

didn't it?---Yes, it did.

So when you say you didn't have the number,

in fact you did; it was in your diary?---It

was in my diary.

Just to put it simply, what you said earlier

in answer to my learned friend was

incorrect, wasn't it?---Yes.

The number you have got in your handwriting - show me?--- (Handed to witness.)

377, isn't it?---That one (indicating).

That is your handwriting, isn't it?---Yes.

Mr Justice Connolly: What is the number?

Mr Trehey:	3773552.
By Mr Trehey:	You have had the phone number

for a long time?---Yes.

Right from the beginning of this matter,

really?---Yes.

So you could ring Mr Karunaratne, although you did not know him by that name, did you?

You had the number, so you could ring the

man you knew as Noel Knowles?---Yes.

And, of course, that is a damaging admission on one

view from our point of view.

McHUGH J:  But it is more than that because it is the effect

of her answers that the judges in the Court of

Criminal Appeal saw. They saw, and it may well be,

that she had just given up the ghost completely

and that ~ conclusion to be drawn was that· what she had said

earlier was a pack of lies from beginning to end.

That is an advantage that they have got over us.

MR GREENWOOD:	Your Honour, the cross-examination went on from that page 302, for another 18 pages and
throughout she stoutly contended that what she was

BlTl0/5/JH	22	27/6/90
Karunaratne

saying before the court was, in fact, the truth.

Now I, of course, must concede that that is an

answer which is capable of an adverse interpretation

but those answers on those two pages are also

capable of any interpretation that this number

which appears, I think, only two pages from the

back of the diary was, in fact, in her possession

and that it had been put there at the time when she
learnt from the police in November 1987 just

what the number was. Their Honours deal with it at

the transcript at page 348 and they do seem to

leave the question up in the air to a certain

extent. They say this:

At the outset of these reasons I mentioned

Baker rang the person Noel who she in

effect identified as being the appellant.

In the course of her cross-examination before this Court she denied having his telephone number in her possession saying

that she first learnt of it when she gave

the police a statement on 18 November 1987.

A telephone number entered in her

handwriting appears in her 1987 diary. The

number coincides with the number given by

the appellant at his trial.

Now, that is where it is 17ft.

McHUGH J:  Yes, but can I just ask you this? Is my memory

correct when I - did not the accused give evidence

that on 5 November or some - he was rung on that

number by a girl who called herself Tina?

MR GREENWOOD:  Yes, and I would like to say two things about

that - there was another Tina in this case,

Your Honour.	I would like to say two things about
that.	That whole question of him being run up on
that day, Thursday, the 5th,	does seem to be a

very puzzling one and one of the most puzzling things

about it is that after he obtained advice from his

solicitor and started to tape telephone calls from

females the following week and those tapes were

taken into custody by the police on the night of

the 20th when they searched his room at the

university, there seemed to be no further interest

taken by the police in that whole matter. It is

almost as if they knew that the girls had been

ringing him up on that day, 5 November.	I would
put it as far as this:	that there is grounds for

the inference that those telephone calls that he

obtained on Thursday, the 5th, were, in fact,
stimulated by the police; that this is a case where

the police had suspected this man, that when a

complaint was made about him on Wednesday, the 4th~

they immediately, the following day, put into effect

BlTl0/6/JH	23	27/6/90
Karunaratne

all systems to try and gather evidence about him

and had available a number of girls who rang him

up and who, presumably, were hoping to get responses

from him which would acknowledge his guilt.

McHUGH J:  Were the police ever cross-examined about this,

· · Mr Greenwood?

MR GREENWOOD:  Yes, Your Honour. No, the police were not,

Your Honour, but there was one very, very interesting
thing in the cross-examination and that was this:

that when the Crown p·rosecutor got on to this

question of Wendy - Wendy is the woman who was

asking for the $5,000 - the Crown prosecutor did not

suggest that this was a fabrication by the

accused. What the Crown prosecutor did was to put

to the accused a different version of that telephone

conversation. It was obvious that he had

instructions in his brief on the content of that

conversation and the question is, how could he have

had those instructions? If my thesis is correct, it

certainly explains a lot about the subsequent

police investigation because having been told by the

man of this extortion threat, it is almost completely

disregarded thenceforth by the police. The police

had two of these tape recordings that he took in
the subsequent week in their possession but they

never re-emerged in the course of this case.

McHUGH J:  But on your-case that means that these girls had

got hold of your client's telephone number and -

MR GREENWOOD:  Or the police did. My thesis is that this

man was suspected by the police and they were

endeavouring to make out a case against him. That

is my thesis and that is the thesis that I would

dearly like to be able to put to a jury.

(Continued on page 25)

BlTl0/7/JH	24	27/6/90
Karunaratne

McHUGH J:	Well, did you put it at the trial?
MR GREENWOOD:	No, Your Honour, I did not put it at the first

trial.	In fact it was not until yesterday afternoon
that I thought of it, but that is my fault.	You

see, how else do you explain - and this is the question

I come back to - if a Crown prosecutor, confronted

with a statement by the accused in the witness box

that this Wendy rang him on Thursday and said certain
things, and then he went to his solicitor and did

certain things, the Crown prosecutor starts to put

an alternative conversation, how else can that have

come into his brief? I cannot answer that question,

except by saying that the police and the Crown

prosecutor knew all about those telephone

conversations on Thursday 5 November.

DEANE J:	But coming to the point, must we not proceed on the basis that the Court of Criminal Appeal, having seen the witness, heard her cross-examined, heard the tapes,
had no hesitation in concluding that her change of
evidence had been suborned by pressure and offers of
money. Now, if that is so, is your proposition this,
that if the principal witness can be suborned, there should be a new trial because it is apparent that in her new state, in so far as evidence is concerned,
there is a possibility that she will have no credit
and, that being so, there is an obvious possibility
that the accused will be acquitted on a new trial?
MR GREENWOOD:	Your Honour, that is what in paragraph 7 of

our outline we have described as our alternative

proposition.

DEANE J:	That is a very strange proposition.
MR GREENWOOD:	Well, in our submission, Your Honour, the

way we put it there is having looked at CODY we say,
comparing it with the evidence in CODY, that Tina
Baker's evidence is even more central to conviction
than Stevens' evidence was in CODY and that, even

if wholly disbelieved and regarded by the Court of

Criminal Appeal as someone who changes her story in

accordance with the last person who spoke to her,

such gross unreliability ought to be put before a

jury because it is not unreasonable for a jury to

entertain a doubt when such a witness is a complainant

in a sexual case and is central to it. That is the

way we put it there.

If I might go back to CODY, because you see CODY

is a case where, although the Court took the view

that this fresh evidence was completely discredited

and unreliable, and had to be disbelieved, it,

none the less in those unusual circumstances, and
they must be unusual circumstances, would justify

the quashing of the conviction and a retrial.

B 1T11 /1 /HS	25	27/6/90
Karunaratne

Your Honour will remember that in CODY the

evidence of Stevens was evidence that the accused
had confessed to him and then before appeal he

retracted that and swore an affidavit saying that

was wrong and therefore the appeal was launched

because this confessional evidence had been withdrawn.

Before the appeal was heard he again retracted his

retraction, so we now have a situation where at the

trial Stevens had given evidence that the accused

had confessed to him, subsequently he had said that
that was wrong, he had not, subsequently, yet again,

he said, "No, what I said in the trial was right".

Now, the point about CODY was that the other

identification evidence was fairly weak, but

ultimately the Court came to the view that it was
sufficient with proper directions to justify a

conviction and then they said, "Well, that being

the case, what about Stevens?". Now, in CODY there

had been two trials; there had been an earlier trial

in which the Chief Justice had directed the jury that
Stevens had to be wholly disregarded, but in the trial
thatwas the subject of appeal, the direction to the
jury, although it amounted to a warning that Stevens
was a witness whose evidence had to be treated with

the utmost care, was none the less they were not told

he had to be completely disregarded. What the court

thought was that because this man Stevens was a
fellow criminal, because the jury might in some way
think that because a fellow criminal had been prepared

to give confessional evidence against another

criminal, that the jury might think there was some

virtue in that and so be more inclined to convict,

that while that possibility remained, having come to
the conclusion that Stevens was completely unreliable,
then it was unsafe and unsatisfactory and the

case ought to go back to them.

McHUGH J:  Was there not another important factor in the case

and that is that the trial judge's direction to the

jury on identification was not regarded by the

High Court as a proper warning, so that the direction	was open to objection and when you couple that with	the use that had been made of Stevens' evidence, it
made a case for a new trial?

MR GREENWOOD:  Your Honour, that is always the part of CODY

that I have difficulty with because - - -

McHUGH J:	That is the heart of it, is it not?
MR GREENWOOD:	Well, as formulated by Your Honour it is what

they did say at one part of it, but then when one
looks towards the end of the judgment they seem to
take a slightly different view and say that, "At

the end of the day we are satisfied that the

identification evidence, although subject to

BlTll/2/HS	26	27/6/90
Karunaratne

criticisms was, with proper directions, capable of

sustaining the conviction", and having said that,

they then say, "But there is the possibility that
the jury might have used Stevens' credit in some way",

thinking that it is unusual that a convict should give

evidence against his fellows, but, "they might have

used his credit in some way to make them more likely

to convict", and it was really that, at the end of

the day, which justified the decision in CODY.

But that is why we say in our outline that CODY

is perhaps one extreme example of this difficult problem
that arises when the Court of Cr imina 1 Appea 1 comes to
the conclusion that the witness's evidence, that the
fresh evidence is not worthy of belief, but none
the less, it still has a duty, despite its own view,

to ask itself, "Well, what would the jury make of

it?" and, once again, even if the jury is not satisfied

that it is worthy of belief, there might well be

something that a jury can legitimately regard as

enlivening a reasonable doubt. That is why we say,

in paragraph 4,that the real difficulty in applying

GALLAGHER to a case like this is - - -

(Continued on page 28)

BlT11;3/HS	27	27/6/90
Karunaratne

MASON CJ: Well I think the point is clearly made in

paragraph 4. You do not need to labour that.

McHUGH J:	But the point is that the Crown would not have a case on the new trial, fullstop. They would not
be able to get anybody to go in the witness box to say that the accused had intercourse with the
complainant.
MR GREENWOOD:	No, and it would be demonstrated, in our

submission, that the accused should not be convicted,

which is why we are here. There are a few other

aspects of the Court of Criminal Appeal's process

of reasoning which are subject to quite severe

criticism, in that they made a number of factual

mistakes which I should, very briefly, refer to.

The first one would be at the outset then, they

posed the threshold question at page 346 at the

top of the page, relating to the fact that this

man had been sentenced. They made the point that

the fact that he was:

sentenced to nine month's imprisonment -

was a factor which influenced the complainant in

changing her evidence. Well now, in fact, of course,

that is incorrect. The position here was that

Professor Karunaratne was remanded for sentence and

all this activity took place before his sentence on

9 May, I think Baker's affidavit to his solicitors

is dated 3 May, and of course it was those affidavits

which we then made available to the Director of

Prosecutions and which doubtless stimulated the

investigation by the police with taperecorders and

the like, which subsequently occurred later on and

which ultimately, of course, led to police officers

coming on 10 June to Tina Baker, equipped with her

affidavit to bai¾ and there in front of the mother
started to"question her meticulously", as was put by

the Crown prosecutor and taken through her evidence.

I might say at this stage she had not told her mother- - -

MASON CJ: You seem to be distracting yourself, Mr Greenwood -
MR GREENWOOD:	I do, yes, Your Honour, so that is one factual

matter where the Court of Criminal Apppeal was wrong

in saying that there was this ttnine month'sn

sentence, because he was not sentenced at the time

when all this took place. The other points which

ought to be made were that the Court of Criminal Appeal

took her identification of Karunaratne as really being

the only important thing that emerged from her

evidence before them.	I have already said that the
mode of identification -

BIT12/l/CM	28
Karunaratne

I ~ave already said

that the mode of identification is another important

aspect of the matter which vitiates all the

identification evidence and that becomes more

important when one looks at the Court of Criminal

Appeals treatment of the question of corroboration.

That is at pages 350 to the top of 352 and what it

amounts to is that the trial judge,excluding as

unreliable the corroborative effect of Faulkner,

and this was accepted by the Court of Criminal Appeal,

then had to rely on the evidence of the Stephanos's

for corroboration of the fact that the accused was

at the motel on 4 November. Now in so far as that

corroboration by Mrs Stephanos depends as it does

upon the weight that the jury gives to her
identification of the photographs, then the whole

question of the sufficiency of corroboration is

opened up as soon as Baker makes this criticism of

the method used by the police in the use of the

photographs for identification purposes.

DEANE J:  Mr Greenwood, would you accept the proposition that

the test here is not whethe½ if there be a new

trial, there is likely to be a conviction, but it is

whether there is any significant possibility that

a jury which had heard all the evidence on the old

trial and had then heard the additional evidence,

would have been affected in its verdict by the

additional evidence?

i:1R GREENWOOD:  Yes, Your Honour, that is our submission.

DEANE J: Well it does not help you in that - - -

i:1R GREENWOOD:  Your Honour, if it does not help us,we have lost.

DEANE J: Well, if that is the way you put it. I mean, if the

question were whether, in the light of the fresh

state of the evidence, a jury would convict on a

new trial, the answer would seem to be that it is

unlikely that it would, but if the correct question

evidence, would be ~ffected by this new evidence	is whether a jury, having heard all the original
rather than being confirmed, as the Court of Criminal
Appeal seemed to think, you will, I would have thought,
have a somewhat difficult task.

i:1R GREENWOOD:  I see.

iContinued on page 30 )

BIT12/2/CM	29
Karunaratne

DEANE J: I am really suggesting to you that it must be the

more difficult task fran your point of view?

MR GREENWOOD:	Your Honour, when answering that sort of hypothetical question I suppose the first thing
one has to consider is where,in the trial, do you
inj.ect this fresh evidence.  Do you inject the
fresh evidence of Tina Baker before the original
jury straight after her original evidence in which
she has inculpated the accused, or do you, as it were, substitute the evidence that she gave in
the trial - substitute for the evidence that she
gave in the trial the fresh evidence which she now gives?
DEANE J:	But you see that, really, only leads towards the

problem. In GALLAGHER's case there was no

problem because it was dealt with on the basis you assume all the original evidence was there

and you add to it this new bit of evidence of the

other Gallagher, and there is no problem there. But

in a case such as this must not the proper approach

be: assume that the jury, having had all the evidence that it had, were now confronted with this

additional evidence. Would it raise a doubt in

their mind or, to the contrary, would,as the

Court of Criminal Appeal seemed to have thought,

be likely merely to confirm?

MR GREENWOOD:	Your Honour, if by additional again one takes her evidence at the trial and leaves it there and
then simply adds on, then one gets to a different result from a situation where you subtract her
evidence at the trial and, simply, inject it. Now,
I suppose, from a practical point of view, there
are statements to the police which, perhaps, ought to be included. It is really such an unreal situation that it is hard to come to grips with
a situation where you simply add on what she now
says to what she then said.

~J~ But they may only indicate that we are in a totally

different area of discourse here and at the back

of this case is a question of public policy. It is

for the courts to say whether or not you should

quash this conviction, because there is no question

of a new trial. The Crown has not got a case on tlhe

new trial because, from a practical point of view,

she will not identify the accused, so there is
no Crown case. So, I am not sure that cases like

GALLAGHER have really got anything to do with it.

There is certainly an argument that that is the test,

but I am not sure it is not really a question of

public policy, which is the way they seem to approach

it in DAVIES.

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DAWSON J: In other words, it is really not fresh evidence,

certainly not the sort that you get in GALLAGHER.

It is a denial of the evidence in the trial

which is a different thing.

MR GREENWOOD: Well, certainly recantation has to be looked

at,~£ it is looked at as fresh evidence, as a

special category of fresh evidence and that is a

fundamental problem.

We have referred to a case in South Australia

where recantation was looked upon as fresh evidence,

but I am not sure that there is anything there

which greatly assists, except perhaps a passage
from the Chief Justice, Justice Bray, who was,
I think, the dissenting judge in that case, where
he applies his mind - this was a case where a
Mrs Baker recanted her evidence. This is REG V POULTER,
19 SASJl'. 370. At page 376 the point is briefly made
by the Chief Justice, about two-thirds of the way

down, that:

Evidence sought to be tendered in the

Court of Criminal Appeal by a witness who

has given evidence on the trial and desires

to change his story has been regarded as a

species of fresh evidence and subject to the

same tests.

And he refers to REG V FLOWER, (1966) 1 QB 146 and REG V RADAN, (1966) SASR 346, at 348, and he says:

It may be so, but I think that it possesses special features.

and he says:

The tests to which I have just referred

are as follows. The first question is,

was the evidence available to the defendant

on the trial and if so,. was there any good

reason why it was not called -

He goes on -

The second set of questions relates to

relevance, cogency and plausibility.

Here, of course, the evidence was not in

any releant sense available at the trial.

No one knew then that Mrs Baker had an

alternative story.

He refers, this case is 1978 to DAVIES AND CODY V

THE KING and FLOWER's case.

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MR GREENWOOD (continuing):  But the passage that I had in mind

380 and this is what he says, at about the second	is a passage further on in the judgment at page
paragraph:

I cannot say what verdict the jury would

have returned if Mrs Baker's evidence had not

been given or if they had had both versions

of her evidence before them. I think she has

been shown to be untrustworthy and that her
evidence "ought not to be allowed to enter into

the reasons for any verdict of guilty"

(DAVIES AND CODY V THE KING). I cannot say

that it did not enter into the reasons of the

jury which convicted the applicant. I think that

any reasonable jury properly directed and not

having Mrs Baker's evidence before it, or having

both versions of her evidence before it, might well
have acquitted the applicant, though, of course,

it might equally well have convicted him.

McHUGH J:  But that was a dissenting judgment and the approach

of the majority judges was different.	Mr Justice King
applied the DAVIES AND CODY test.

MR GREENWOOD:  It was, yes. I only mention that because it

was really the only analysis of the problem that

has been put to me by Justice Deane as to whether

you substitute or add on and which I find an

extraordinarily difficult question.

In conclusion, whether this lady's evidence

is to be put in substitutionor in addition to this

evidence, my submission still stands with respect

to her evidence of mode of identification and
the effect of the other witnesses and indeed, also,

with respect to the suggestion that the police

investigation in this case is dangerously flawed

because the suggestion that is already before the

jury of conspiracy - and that is referred to in the

judgment - based on the colour of the cars and

based on the docket from the Kentucky Fried Chicken

outlet is both supported once the jury has the

opportunity to look at that evidence in the

light o.f the additional evidence which is now

available.

On the colour of the cars I have already said

they would now have available to them the fact

that in circumstances where the complainant could

not remember the colour of the car, colours were
suggested to her by the police and incorporated in
her statement which she then learnt off; that
the police knew she could not remember, knew that

they had suggested it to her, and in that respect it

was flawed. And secondly, with respect to the

docket, again, they might not have been prepared from

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the evidence already before them to infer that

the use of the docket and this abundant evidence
about fried chickens was part of guilding the

lily but with this additional evidence before

them they might well be much more comfortable

in arriving at that conclusion. I think those

submissions, too, I would like to add to the
propositions put to me-by Justice Deane.

I have no further submissions on this matter

unless there is some particular point which the
Court wishes me to address.

MASON CJ:  Mr Trehey, could you hand in your outline of

submission at this stage?

MR TREHEY:  Yes, Your Honour.

MASON CJ:  Thank you. The Court will now adjourn until

9.45 tomorrow morning.

AT 4.32 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 28 JUNE 1990

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