Kenney v The Queen; Perkins v The Queen
[1990] HCATrans 182
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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A9 of 1990 B e t w e e n -
IRENE KENNEY
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Adelaide No All of 1990 B e t w e e n -
WESLEY HAROLD PERKINS
Applicant
and
THE QUEEN
Respondent
Applications for special
leave to appeal
MASON CJ
BRENNAN J
DEANE J
TOOHEY J
GAUDRON J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON WEDNESDAY. 22 AUGUST 1990. AT 10,18 AM
Copyright in the High Court of Australia
| Kenney | 1 | 22/8/90 |
MR s. TILMOUTH. QC: May it please the Court, I appear with my learned friend, MS T.M. JOHNSON, for the
applicant Kenney. (instructed by the Legal
Services Commission)
MS M. SHAW: May it please the Court,! appear with my learned friend, MR M.A. GRIFFIN, for the applicant
Perkins. (instructed by Rainford and Associates)
MR J.J .. DOYLE, OC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with
MSG. DAVISON. for the respondent in both matters.(instructed by the Crown Solicitor for the State of
South Australia.
MASON CJ: Yes, Mr Tilmouth.
MR TILMOUTH: May it please Your Honours, I understand Your Honours already have the outline of
submissions.
MASON CJ: We have. MR- TILMOUTH: May it please the Court, the appeal obviously from the outline focuses upon the evidence of one
witness, a Crown witness who gave evidence againstMrs Kenney at her trial, and the effect of that evidence, was on one reading of it at least,
virtually a complete confession; on another
reading, in any event, it was clearly very damaging
evidence to her.
Your Honours, the witness in question was the
witness Turrell and very briefly before going to
his evidence for a few passages, his relationship
with Mrs Kenney was as followaa he knew the
Kenney• for some years beforehand through their son
fr011l school days apparently. He also at relevant times was living with and later married a woman by
the name of Shearer. Shearer was related to Mr
Kenney who, of course, died in the fire in August1987. It followed, therefore, that Turrell knew
through those two avenues the Kanney• in a general
kind of way. What had happened however, Your Honours, was that when Shearer left the man who i• referred to
throughout the paper as Raad she took up living almost 'mediately with Turrell and there was a
great deal of acrimony, animosity, squabbles over
custody of a child and so on, to the point where
Raad was harassing them and indNd to a point where
Turrell acquired an illegal sawn-off shotgun to protect th- fr011l him, such was their degree of fear of Raad.
Kenney 2 22/8/90
The involvement of Read was - and it runs
like a thread throughout the whole of the
evidence - that he was an intermediary between
Perkins, whose house was burnt of course, and Mr
Kenney on the Crown case who was hired on the Crown
case to set fire to the house. So the references throughout to Read are important, not only because
they show a relationship between Turrell and the and the firing of the house.
kenneys beforehand, but they were the link that the
Read was, incidentally, not charged in the superior courts, Your Honours.
He was charged in
the lower court but no case to answer was found
against him because there was no direct evidence of
his involvement. It was, to summarize it in a
word, all hearsay or indirect evidence.
Your Honours, our submission is this in
effect. I have already referred to the gun - the sawn-off shotgun that Turrell acquired. He acquired it in fact shortly before, it seems,
Christmas 1987 when this conversation occurred, for the purpose of protection as I have mentioned.
Later on in the next year, it is imprecise when, the gun went off in a car-park of a supermarket in
Adelaide and Shearer was shot, she was injured and
went to hospital. Turrell was taken to the police
station where he was questioned about the gun going
off and the long and short of the evidence is, in
our submission, that Turrell at that time was
facing potentially very serious charges relating
to, not perhaps the accidental discharge of the gunwhich he purported to say was the cause of the
accident, but perhaps relating to a deliberate
assault upon Shearer.
The effect of the evidence is, in our
submission, that at that time he mentioned to the
police that he had the gun.which was illegal - was
unregistered, uninsured and cut down and so on - to
protect himself and Shearer from Read and the police then said to him, "Well, we have been after
Read for a number of years. If you can give us information about Read well then it might have an
effect perhaps on the charges or the seriousness of
the charges or, indeed, on the outcome so far aspenalty is concerned". Now, there are arguments
both ways about how high that went but, in our
submission, the evidence is capable of that
interpretation quite plainly.
What we submit, Your Honours, is that Turrell plainly had a twin motive for telling lies or
implicating Read and/or Mrs Kenney because of those
events but the one motive, of course, was because
| Kenney | 22/8/90 |
Read was harassing them so badly that any reason he
could implicate Read in other matters might be a
way of getting him off their backs, as it were, but
more importantly, our submission is, that the
evidence plainly shows that Turrell believed that
if he gave information about Read, and then about
the fire, that that would help either the charges
he ultimately faced and certainly the penalty which
he faced.
Our argument is following from that,
irrespective of Davies case and the closed category
so far of accomplices that, not only was the danger
in the way we have submitted it plain, but the
policy behind what gave rise to the Davies rules,
namely, that a witness who was in a position to
bargain, as it were, with respect to the charges
which he faced or the penalty which was ultimately
given, is the very sort of witness who has the very
type of motive to lie, and that of course was thepolicy reason behind the corroboration rule.
Our submission is, that excepting Davies case
for the moment that this Court in Bromley and
Karpany and Longman, cast itself more widely than
simply saying a judge has a general discretion.
This Court, in our respectful submission, said,
"Where there is a perceptible risk of miscarriage a
judge ought to give a warning", and that really is
the essence of our appeal, and it follows that we
say of course that the trial judge gave no such
warning.
Certainly, Your Honours, he never referred to
what we submit is the central factor, that is in
relation to the charges and how Turrell's going to
the police arose, and we say further that, with
respect, the Court of Criminal Appeal's error was -
and this really is the special leave point - to toonarrowly confine this Court's decision in Longman
and Bromley and Karpany, by confining them to the
cases of witnesses such as witnesses with a mental condition which required a separate warning. We submit that this Court was casting general
principles more widely than the narrow confines of
the facts of those two cases.
Your Honours, without wanting to read very
much of the evidence of Turrell could I endeavour
to shortly take Your Honours to key passages. His
evidence is in book II and his evidence commences,
for general purposes, at page 514. Your Honours,
what happened here was, Your Honours will recall
that the house was burnt down in August 1987,
Turrell and Shearer had come to Mrs Kenney's house
on New Year's Eve 1987 where there was a New Year's
| Kenney | 4 | 22/8/90 |
Eve party and also because they were moving house
in order to avoid Read finding out where they were. There was a conversation struck up on the
evidence before midnight between Shearer, Turrell,
Mrs Kenney and perhaps some other people were
present; one of them was Mrs Kenney's elderly
mother in the house, at least or nearby; one was a
Mrs George who was a defence witness in the trial
court and children who were not relevant because
they were going in and out. The key conversation, Your Honours, is at the bottom of 514, and it began
at about line 25, as follows:
Q. Was there talk about the sort of trouble, and did you say anything to her about what was
happening.
A. Yes, the harassment over my being with Tracy and his child and him wanting to see his
child and that.
The "him" is a reference to Read.
Q. Was that in fact happening. A. Yes, we were being harassed by him. Q. Did Mrs Kenney say anything. A. Yes, she said there was a way she could stop him for causing trouble.
Q. Did she go on to say what that way was. A. Yes, she was explaining the fire was an insurance job, and Andy had set it all up.
Andy is Andy Read.
Q. Who said that. A. Irene did.
That is Irene Kenney the applicant. Page 515:
Q. What did she actually say, try and think of the words she used ..
Line 3: "There is a way I can fix his little red
wagon, stop him causing trouble', and then
went on to explain about the fire.
"The red wagon", Your Honours, is a reference to a
red van that Read apparently used and drove. And further down, Your Honours, at line 13: Q. There was talk about a fire. and I said 'Yes', she said 'It was an
insurance job, a set up. Graham was supposed to get a thousand dollars for lighting the
| Kenney | 22/8/90 |
fire, and Andy was getting paid for setting it
all up', and that was just about it, explained
that it was an insurance job, and that if she
told the police, then he would get done for
it, and he wouldn't be able to harass us.
So, that was the Crown evidence in-chief and
clearly, I would submit, on any view it was very
damaging. As I put it to Your Honours it was capable of being virtually a complete confession to
both offences that she was charged with at thattime.
The evidence however, Your Honours, about how
this matter came to the attention of police is a
different matter. The evidence was that Turrell
did not mention it to the police until April of the
following year, 1988, and on our submission on a
fair reading of the evidence, arising out of the
fact that he had been charged with the gun
offences. The evidence about that is scattered, Your Honours, but the key passages commence at
about page 526, and at this stage I simply
paraphrase to gain the sense of it, but
Your Honours will see at about line 9:
that Tracy got shot in the leg with this gun.
Line 12 that it happened:
at a supermarket parking lot at Port Adelaide.
She was taken to hospital, as a consequence, line
15; he was taken to the police station, line 17,
and at lines 19-21, he understood that he: might be on serious charges.
And he then purported to say, at line 28 that:
The gun discharged itself.
In other words, that it was an accident. But at the bottom of 526 and 527 is an important piece of
evidence, line 37:
Q. But at all events, when you were first taken to the police station there were
suggestions that it might be more serious
charges going beyond a mere accident, weren't
there.
A. That is right.
Q. And the situation is eventually that you were charged with certain offences after the
police spoke with Tracy, weren't you.
A. That is right.
| Kenney | 6 | 22/8/90 |
Q. And those offences included offences related to the unregistered use of the gun.
Line 9:
..... unregistered, uninsured and unlicensed.
So, clearly when he was taken to the police station there was a suggestion, at least, in his mind that
he might be facing an offence involving a wilful
shooting rather than an accidental discharge. And at line 22, some flesh is added to that, still page
527:
Q. And at that stage -
That is the arrest stage when he is at the police
station -
things looked pretty bad for you, didn't they.
A. Yes, pretty bad. Q. And you were worried that something more than an incident -
that may be accident or the sense of it may be
accident, Your Honours -
had happened.
A. Yes. Q. Isn't it the position that about that time Tracy had been talking with you about <lobbing
in Andy Reid.
A. Yes.
And there is some evidence about that,
Your Honours, but again hoping not to misread it
picking key passages, the next I go to is at 529,
at line 23:
Q. And is it not the position that there was
a discussion between you and the police, the
effect of which was, that if you could giveinformation about Andy Reid that might go lightly on the charges you were facing in relation to the gun. A. That's right.
Q. And did the police say they wanted to get or wanted information about him. A. Yes.
Q. And this happened on a number of occasions didn't it. A. Yes.
Q. The police spoke to you a number of times. A. Yeah. Q. And the effect of it is isn't it that you first gave a statement about this New Year incident only after you had several
| Kenney | 22/8/90 |
discussions with the police, the sum of which
discussions were that information you gave
might assist you with the charges.
A. That's right.Q. In fact suggestions were made were they
not that the charges or the outcome might go a
lot lighter for you if you gave the policeinformation.
A. That's right.
Q. And the police came down to see you a number of times in relation to that, is that
right.
A. That's right.
And, Your Honours, at 531, line 19:
Q. So this accident occurred and you found yourself possibly in a situation where you
might be charged with serious matters going
beyond mere unlawful possession of a gun and
perhaps indicative of a deliberate assault.
A. Right.
Q. Subsequently there were different and
lesser charges.
A. Yes. Q. Subsequently you pleaded guilty in June of 1988 to lesser charges.
A. Right.
Q. And irrespective of what may or may not have been said by the police, your belief was
that the information you would give would help
you significantly on those charges.
A. That's right.
And likewise, at 532, Your Honours, I was putting
to him that he first went to the police in about
April, line 13. His evidence was earlier, page
524, it was about April although he could not agree
with the exact date, and then this was asked at
line 22:
Q. So you gave your statement to police, if those dates are right, within about five or six weeks of going to court didn't you.
A. Yes. Q. In the hope that it would significantly help your penalty.
A. Yes. Q. And it was the fir~t time that you had raised this issue. A. That's right. Q. With Detective Kokegei. A. That's right.
Q. In the context of negotiating the outcome of your charges.
A. Yes.
| Kenney | 8 | 22/8/90 |
And at 533, Your Honours, I pressed Turrell as to
why it took so long for him, apart from what hadalready transpired, to go to the police and give
information about this matter, particularly sinceduring relevant times he and Shearer wanted Reid
off their backs, and the implicit argument was,
"Well, you had the perfect reason to tell the
police about him. Why did you not to do it earlier?", and his answer was this, may it please
Your Honours, I begin from line 23 to introduce it
properly:
Q. And your belief was that by giving that information, and it wouldn't cause any effect
on Mrs Kenney.
A. That's right.
Q. You had no reason to believe that she would be in trouble.
A. That's right.
Q. And what I'm saying to you is the reason why you left this so late was that it never
happened, the conversation on New Year's Eve
never happened.
And his answer was this:
The reason it was left so late is because I
let Tracy do all the talking. They asked me,
right, I went to the Port Adelaide police
station where they locked me up -
And, Your Honours, this seems to be a reference to
when he was taken back immediately after the
discharge of the gun in the supermarket car-park -
where they locked me up and I got out on my
own accordance and when they asked me why I
had the gun I told them it was because of Andy
Reid they said 'We have been after Andy for a
long time now can you give us any
information'. I said 'Not myself because I don't know nothing on him'. That's when I
mentioned about Tracy.
And over on to 534, Your Honours, I leave out a few
lines, line 11:
Q. Isn't the position you really decided to give this information because by that time you
were deciding that you were going to look
after yours first.
A. Well the police officer come to me when I
went to the courthouse, to the police station.
Now, pausing there again, Your Honours, the best ·
reading of it seems still at the time when he was
first about to be charged with the respects of the
| Kenney | 9 | 22/8/90 |
discharge of the firearm. It may be otherwise, but that appears to be the context.
The policeman come into me when I was taken to
the back room where I was being held because
they heard why I had the gun, right, and they
said they were after him -
that is Andy Reid -
and they wanted to know if I knew anything
else about him. I said 'I think Tracy does'. They went and seen Tracy. That was the reason why.
Q. Did the police say to you that they had been trying to get Andy Reid for five years.
A. That's right.
Q. And if you could come up with any information that would help you on your case.
A. Yes, that's right. Q. And you didn't tell them about this conversation on New Year's Eve at this stage.
A. No, I wanted to stay out of all of her family domestics as it was.
So, Your Honours, there are other passages it is true and I hope I do not do injustice to the sense
of Turrell's evidence but, in my submission, they are the key passages and what they come to, in my
submission, is this on a fair reading. Turrell
says that he was present on New Year's Eve when
plainly a very damaging conversation occurred
implicating Mrs Kenney in the fire and Shearer, at
that time, had every reason to go to the policewith any .information which might help them get Reid
off their backs. He did not do so. More that that it is plain, in my respectful
submission, that the sine qua non of him going to
the police and making a statement which must have
been a statement in accordance with his evidence,
arose directly out of the charges or the
negotiations between the time of the original charges and the court hearing in June 1988,
specifically out of, on the one hand, the clear
police desire on his evidence to get information
regarding Reid - clearly his evidence was that they
were keen to do it; they said it on a number of
occasions they came back to him - and on the other
hand, the other twin reason is that he plainly
thought that by giving information it might affect
both the seriousness of the original charge that
was laid against him or, perhaps later prosecuted,
and in all events clearly the penalty that might be
the outcome.
| Kenney | 10 | 22/8/90 |
It is clear as well, of course, that when he went to court in June that there were lesser
charges, simply the unregistered unlicensed firearm
et cetera, regulatory type offences rather thanmens rea offences and his plea in the court below -
I did not read the passage - but the plea included
a plea that he was going to help the police as part
of the mitigation.
So, Your Honours, one might argue a little bit
about emphasis but, in my respectful submission,
Turrell's evidence arose out of that very situation
and, in my respectful submission, to lawyers at
least, that kind of context gave every reason to be suspicious, to use a neutral phrase for the moment,
about his evidence. And as I mentioned earlier,
Your Honours, without labouring the point, there is
a considerable degree of parallel between the very
factors that motivated Turrell to go to the police
and then give evidence with the situation in which
commonly informers give evidence.
Your Honours, His Honour's summing up did not deal with this central theme about the context of
Turrell's disclosure arising from the context of
his charges.
BRENNAN J: | Mr Tilmouth, before you come to that, the proposition is, in essence I suppose, that the |
| circumstances gave rise to a motive to fabricate | |
| this allegation, the motive being to fabricate an | |
| allegation against Reid, and the manner in which | |
| that motive, if it was implemented, was not to | |
| attribute to Reid any admission but to attribute | |
| the admission to Mrs Kenney? | |
| MR TILMOUTH: | Yes. |
BRENNAN J: Well, now, does that make a difference from the
line of argument that you were seeking to draw?
| MR TILMOUTH: | I can see, with respect, what Your Honour is |
driving at but Your Honour may remember I read a passage where Turrell said he did not think that he
was implicating Mrs Kenney and the fact of the
matter is, as we know, that he was directly
implicating her, but he did not believe that he was
implicating her at all. It is true, therefore,
that he does not have a direct motive against
Mrs Kenney but he did not realize that. He had the
motive that Your Honour mentions and, perhaps, also
the other motive of wanting to do something serious
to get Reid off his back. But I accept what
Your Honour says, there was no direct link with
Mrs Kenney but he did not realize that.
| Kenney | 11 | 22/8/90 |
BRENNAN J: That may be so, but it does make this case stand
apart from the accomplice cases, does it not?
MR TILMOUTH: Well, it does in that sense but it does not
alter, in my respectful submission, one jot the
fact that the motivation still gives rise tosubstantial doubts about his evidence, and he
believed that to be the case. The fact that in the end result it did not turn out to be a motive
directly against Mrs Kenney is of no influence on
the doubtful circumstances in which he went to the
police. It just had an unexpected effect, in my
submission.
BRENNAN J: Your argument does have this implication, does
it not, that if in the course of evidence there
appears to be a motive which is attributable to a
material witness in relation to the material
evidence that that witness gives it is a duty on
the part of the trial judge to warn the jury that
it may be unsafe, in the light of that motive, to
act upon that evidence.
| MR TILMOUTH: | Yes, I agree with that. |
BRENNAN J: It is a very broad proposition.
MR TILMOUTH: Well, with respect, I accept that my case
would be stronger if there were a direct motive to
lie against Mrs Kenney but, in my submission, there
is really no cause and effect as it were here
because Turrell went to the police believing,
perhaps, that he was only implicating Reid but,
nevertheless, the very reason that he went to the
police is doubtful for the same reason, and the
fact that it happened to implicate Mrs Kenney inthe end result does not affect that doubt in the first place arising. But I accept that if there
was also a direct motive against Mrs Kenney the
case would be stronger, but it does not alter the
original basis upon which he came forward which
clearly were, in doubtful circumstances as I put it
to the Court, the charges were to sine qua non of him coming forward. But, in any event, I would
submit, I would be saved by the policy
considerations which I have already outlined to the
Court which do very strongly parallel the
accomplice policy considerations.
Your Honours, coming to the summing up, that
is in book IV, and the passages are few;
His Honour mentioned the evidence at 1114,
Your Honours, in the context of summarizing the
Crown case, and I read it because it shows what I have put to Your Honours that it was clearly damaging. Line 18 on 1114:
| Kenney | 12 | 22/8/90 |
There is the evidence of Mrs Kenney's
alleged statement to Mr Turrell. It is of
course only admissible against her. If trueit is a very damaging item of evidence. It
would explain her presence and that of her
late husband at the scene. It would explain
what there was in it for them if they were
implicated in the burning down of the house.
It would point to a link between Mr Perkins and the Kenneys, Mr Andy Read. If her
statement is true he set it up and did so for
a payment of $5,000 to him and $1,000 to Mr
Kenney. Mr Andy Read is the father of a child to the Kenneys' niece.
That the woman, Shearer, that I have referred to.
Mr Perkins' evidence is that it was Mr Andy
Read who was asked to look after his place while he was away as well as being an acquaintance of him. Given the potentially
damaging effect of the statement you must look
closely at the evidence -
and, with respect, that is, in our submission, the
closest His Honour gets to any warning at all -
including that of Mrs George, the lady called
by -
counsel -
and who was present for some of the time on
New Years Eve at the end of 1987. You must
take account of the criticisms of -
it reads "her", but it may well be "him" -
including Mr Turrell's delay in corning forward with explanation and the discrepancy as to the
time of Mrs Kenney's alleged statement.
I leave out the next few lines, Your Honours. The effect of that was Mrs George gave evidence that
she was there until after midnight because it was a
New Year's Eve party and she was genuinely present
and heard no such conversation. That is what that
next passage relates to. Then, I read on from
line 22:
My task is to summarise the cases put
forward by the Crown and the two accused and I
have in a large measure dealt with their
respective cases in addressing the various
items of evidence which I have seen fit to
mention so far. In those circumstances it is
sufficient if, during the remainder of my
| Kenney | 13 | 22/8/90 |
summing up, I refer in brief to the salient
features of the cases which have been
presented to you.
Now, what is happening here, with respect, is that
His Honour has moved from the directions at 1114 to
1115, from general directions to now putting the
respective cases and His Honour then goes on to put
the case for the defence on the issue with respect
to the Turrell evidence at 1118, at line 31:
Mrs Kenney, through her counsel, Mr
Tilmouth, maintained with respect to the
conspiracy charge, that there was no evidence
of any connection between Mr Perkins and Mrs
Kenney. Now, of course, the Crown says you could infer such a link, namely through Mr
Andy Read. You will, however, consider this
very carefully what Mr Tilmouth said in that
respect. Very fairly he conceded that the
parties to a conspiracy -
et cetera, and it goes off on to another
subject-matter, and then His Honour continues with
this issue at about line 23 on 1119, as follows:
But as I have explained to you, the cases
against each must be considered separately.
They turn on different evidence, and in the
case of the conspiracy charge, in Mrs Kenney's
instance, the Crown could not, as a matter of
practical reality, succeed unless you accept
the evidence of Mr Turrell as to the allegedNew Year's Eve conversation with Mrs Kenney.
Now, as Your Honours know, she was convicted
originally on the conspiracy charge although that
was overturned on appeal but plainly the jury must
have, in the conviction, given that direction, have
acted on and accepted Turrell's evidence.
At page 1120, Your Honours, and this is the
last passage I read, at line 4 - and this is where
His Honour is putting the defence case with respect
to Turrell:
As to Mr Turrell's evidence, Mrs Kenney,
through her counsel, emphasizes that he took
some months before saying anything about it to
detectives, and that alone casts doubt on it.
Mr Tilmouth argues further that the alleged
admission was lacking in detail. He refers to Mr Turrell's evidence that he didn't say
anything about it earlier, because it was
Tracy Shearer's problem, not his, whereas MrTurrell's action in buying a gun, so it was
put to him, was suggestive that the whole
| Kenney | 14 | 22/8/90 |
problem of Andy Read was very much his, as
well as Tracy's.
He seized also on the words that Mr
Turrell used to the police at one stage about
Mr Andy Read:
'I didn't know nothing of Andy Read'.
You must, of course, consider that in the
context of his evidence as a whole.
Mr Tilmouth argued also that if Mr
Turrell and Tracy Shearer were so desperate
about Andy Read, why didn't they use this
information about her earlier?
He pointed also to the lack of motive, as
he put it, on the part of Mrs Kenney, to say
such a thing, and the fact that if she said
those things, it would be implicating herself
in a serious crime; and he drew attention to
the evidence of Mrs George, and her evidence
as to timing, which she said, indicates she
must have been present at the relevant time.
So you were invited to reject Mr
Turrell's evidence, substantially on those
grounds. You must consider all of those criticisms, and what the Crown says; but,
above all, in the end, you must act on your
own impressions of the evidence, after giving consideration to what counsel has put to you.
Now, Your Honours, it follows that nowhere in
His Honour's charge to the jury either whether it be in what might be called general directions and,
more particularly, in the context of unreliable
witnesses, were there any directions about the
unreliability of Turrell going beyond the passage Ialready read, especially at· 1120, and nowhere was
by this Court in Bromley and Karpany and our Full there a general warning which has been sanctioned Court in James' case asking juries, in effect, to scrutinize it carefully, to take head of a warning before they act on it, although they may do so. I am not suggesting, Your Honours, for one
moment that a judge necessarily must use the words
"dangerous" or "unsafe" but I do submit that
somewhere there must be a warning in line with the
similar warning given in Bromley and Karpany's
case.
| MASON CJ: | No warning was sought. |
MR TILMOUTH: It was, with respect, Your Honours.
| Kenney | 15 | 22/8/90 |
| MASON CJ: | Was it? |
| MR TILMOUTH: | The warning was sought at the close of the |
Crown case, volume III, Your Honours, at pages 815
to 817. Your Honours, at the close of the Crown
case, an application was made for a direction of
acquittal on conspiracy on the basis there was no
evidence and an application was also made for the
judge to invite the jury to direct an acquittal on
the other arson charge on the basis that it was
dangerous and unsafe and relying on Turrell's
evidence. At page 815, Your Honours, without
reading, Your Honours will see about lines 25 and
those that follow that I made submissions about
Turrell's evidence in the New Year's conversation.
I put to His Honour at page 816 that he was
unreliable - line 2; that he "had a purpose of his own to serve" - line 5, and so on, and at lines 33 to 34 I put to His Honour that Turrell's evidence
"was highly unsatisfactory and unreliable" and I
invited His Honour to make the directions that were
suggested.
At page 817, Your Honours, the argument rather
focussed more on what would happen if the matter
went to the jury. I made an analogy on Davies's
case at line 15, mentioned Davies's case in
particular at line 23 and went on as follows:
Davies, the case in the House of Lords and
James and Karpany -
two separate cases -
but these are points really more appropriate
to what directions but what I would submit to
your Honour is irrespective of whether one
strictly called him an accomplice or one said
he had a motive of his own to serve or some
combination of those two we would be
submitting his evidence is suspect for those
reasons and a warning would clearly be
appropriate and the case we would argue is Bromley and Karpany in the High Court, so to answer your Honour's question more particularly, although he is not an accomplice strictly so-called, it is clearly that class of case which would call for some kind of warning and I do not want to go on to exactly what kind now because that's a directions point but he would have that taint as well in
addition to the other unreliability features Ihave already put to your Honour.
MASON CJ: Where do we find His Honour's rejection of your
application? ·
| Kenney | 16 | 22/8/90 |
MR TILMOUTH: There is not further discussion about that
matter, Your Honours, and it is conceded the matter
was not raised after His Honour's summing up to the
jury.
MASON CJ: Yes, that prompted my question to you at page
1128.
| MR TILMOUTH: | Yes. | It did not arise again, Your Honours. | I |
was not present unfortunately during the summing up
and I accepted it would have been better if it was
perhaps raised afterwards but that is where the
application was made, Your Honours.
| MASON CJ: | I see. |
| MR TILMOUTH: | This matter incidentally was debated briefly |
in the Court of Criminal Appeal and it seems
evidence, if I may submit it - I know it does not
bind this Court - but it is clear that the court
accepted that that was a sufficient raising of the
point and clearly I referred to the very case which
we argued here.
MASON CJ: Yes.
| MR TILMOUTH: | I accept entirely it would have been better it |
it was raised afterwards and it was not, but the
point was made.
So, Your Honours, then, moving to the Court of
Criminal Appeal, the relevant passages are again
short. In book IV, page 1198, His Honour
the Chief Justice deals with the evidence of
Turrell with respect to the conspiracy, between lines 6 and 20. His Honour says - to paraphrase
it - between lines 14 and 15 that, in effect, there
was no evidence indicating that her knowledge of
what she allegedly told Turrell on New Year's Eve
1987-88 was knowledge at the time that the offence
occurred in August of 1987 and His Honour concludedfrom that, line 19:
The evidence was insufficient to support an y inference that Perkins and Mr and Mrs Kenney
conspired.
However, on the topic of - - -
BRENNAN J: Well, that is "had conspired" in respect of the
conspiracy charge.
MR TILMOUTH: Defrauding.
BRENNAN J: Yes.
| Kenney | 17 | 22/8/90 |
| MR TILMOUTH: | Quite, but what His Honour was saying was, |
"Well, even accepting that Turrell's evidence was
there, we have no evidence that that was her degree
of knowledge at the time the arson was committed".
BRENNAN J: As to the insurance fraud.
| MR TILMOUTH: | Yes, that is right. |
BRENNAN J: Yes.
| MR TILMOUTH: | I only point out that passage out, Your |
Honours, for completeness. I do not rely on it for any particular purpose. The passage I do point to, however, more
particularly is page 1201, line 15, which deals
with the very point that I am now putting to
Your Honours:
A point raised by Mr Tilmouth, QC, on
behalf of Mrs Kenney, related to a witness,
Turrell, who gave evidence of the statements
alleged to have been made by Mrs Kenney at the
New Year's Eve party. Mr Tilmouth drew our attention to a number of matters in the
evidence suggesting that Turrell may have had
interests of his own to serve by telling lies
about Mrs Kenney and may have been motivated
by malice. He contended that these factors within any of the categories which at common
required the judge to caution the jury as to
the danger of accepting Turrell's evidence.
law require a corroboration warning.
Mr Tilmouth drew our attention to cases in which the desirability of some caution as to witnesses whose evidence may be unreliable for one reason or another has been indicated. The
strongest of these is Bromley v The Queen
(1986), 161 CLR 315 at 319-20 and 324-5, but
that was a case of a mentally unstable
witness. Where a witness does not fall within one of the categories requiring a corroboration warning, the omission of a
caution is not an error of law. Generally
speaking in such cases the giving of a cautionand the terms in which it is given are a matter for the discretion of the trial judge. There may be cases where the omission of a caution would result in the inadequate presentation of the defence -
per Justice Brennan in Bromley -
Such an omission may be material to the
question whether there has been a miscarriage
| Kenney | 18 | 22/8/90 |
of justice. I do not think that the omission to give a caution in relation to Turrell
resulted in an inadequate presentation of the
defence to the jury, nor in a miscarriage of
justice. Counsel made a number of criticisms
of Turrell as a witness and his reliability
was attacked. That was a matter for the
consideration of the jury. Some of those criticisms were referred to by the learned
judge in his summing up. I do not think that the learned judge was obliged to repeat all
the criticisms or to give any caution of his
own. Whether a caution was called for was a
matter for his judgment.
So, in my respectful submission, the court is
saying two things, essentially, in that passage;
the other two judges agreed, of course. In my
submission, what has been said, with respect, is
that in those cases falling short of the existing
categories it is very much for the discretion of
the trial judge to frame a warning and the test on
appeal is really whether either the defence case has been adequately put and/or whether there has been a miscarriage of justice.
Our respectful submission is that that reads
down to an extent what we have put already where
more general matters of principle set out by this
Court in Bromley and Longman and, incidentally,
Your Honours, the cases I referred to, apart from
Bromley, were Longman and Prater's case, in the
English Court of Appeal essentially. There were some others but they are the high point of those
authorities.
DEANE J: But, Mr Tilmouth, can you dispose of the absence
of a request for a direction as simply as you have?
I mean, true it is - at page 817 in particular -
these things were canvassed at an earlier stage but
then, in the summing up that you have referred us
to at 1120, His Honour dealt with most of the
criticisms that had been made and repeated them including Turrell's action in buying a gun and it
was suggested that the whole problem of Andy Read
was very much his as well as Tracy's.
| MR TILMOUTH: | Yes. |
DEANE J: Then, at page 126, His Honour expressly asked were
there any suggestions and then says:
May I take it then that there is no further
direction that any counsel wish me to give?
| MR TILMOUTH: | Yes. |
| Kenney | 19 | 22/8/90 |
DEANE J: Well, now, we are now asked to go over all the
comments that he made about Turrell's evidence,
find that there was a gap in the context where he
asked counsel was there any further they wanted and
he was told, "No".
MR TILMOUTH: Well, Your Honours, that is a plain hurdle
that must be faced. I cannot add to, really, what I have put. As I said, I was not there and it
should have been raised. I accepted entirely it is not only a duty to raise objections, to maintain
them.
DEANE J: Yes.
MR TILMOUTH: But, Your Honours, if you read, with respect,
not just the passages that I have isolated from
Turrell, but the point I was making about the
essential weakness in Turrell's evidence through
the cross-examination ran like a thread throughout;
it was the prominent point and that was the pointthat I put to Your Honours about the charges giving
rise to it and the dangers inherent in it. His
Honour did not, in my respectful submission, on any
view, put that matter which was the prime matter of
consideration.
Now, accepting all that has been said already
and that it should have been raised again at the
end, in the end result, in my submission, what
really was being driven at as the essential
weakness in Turrell's evidence through the cross-
examination was never put to the jury in any
context, whether it be in the context of generaldirections or the defence case and, in my
respectful submission, it plainly called for some
comment; whether one says simply that it was
essential simply to put the defence case fairly or
goes further and say there was a requirement
through Bromley and Karpany that, in the
circumstances, a direction was required.
So, I suppose, with respect, I would go on to say in any event there was a miscarriage of
justice but, Your Honour, I cannot answer it any
further. I accept the criticisms which must follow from it but, in the end result, the real question
is, in my submission, was there a miscarriage and,
in my submission, His Honour the trial judge was
plainly acquainted with the crux of the matter we
wished him to put to the jury and it is the crux ofthe argument we put here, of course. In the end
result, the plain fact is that the whole basis, the
central basis, of the cross-examination - there are other subsidiary ones, of course - was never put to
the jury in any context.
| Kenney | 20 | 22/8/90 |
Your Honours, I have submitted in effect that
Their Honours have read down Bromley's case. Can I take Your Honours quickly to the passages which we
submit show that there is a duty in some cases
falling short of the established categories to give
a warning. Bromley v Reg (1986), 161 CLR 315 - Your Honours should have a book of cases which my
learned friend, Mr Doyle, and I have agreed together
and it is the first case in that book.
Your Honours, I do not trouble with the facts.
It is conceded as the Chief Justice said in the
Court of Criminal Appeal, that it related to a
mentally defective person, a schizophrenic, and it
can be distinguished on its facts but the question
of principle we rely on is stated at page 319, by
the former Chief Justice with whom Your Honour the
Chief Justice, Justice Wilson and Dawson agreed.
It is the passage, Your Honours, at 319, occurring at about one third of the way down the page.
His Honours said this:
What is required, in a case where the evidence
of a witness may be potentially unreliable,but which does not fall within one of the
established categories in relation to which
the full warning as to the necessity of
corroboration must be given, is that the jury
must be made aware, in words which meet the
justice of the particular case, of the dangers
of convicting on such evidence. Where a warning is required as to the way in which the
jury should treat the unsupported evidence of
a witness whose evidence is potentially
unreliable, the question is, "Was that warning
sufficient? Did it in clear terms bring home
to the jury the danger of basing a conviction
on the unconfirmed evidence of the
complainants?" There is nothing formal or
technical about this rule.
Then, His Honour goes on to consider the particular
note that, at 320, a direction was approved which facts and, without reading, I ask Your Honours to included phrases such as "considerable caution",
"scrutinize" the "evidence with special care", "acton his evidence if you are convinced" it is right,
and so on.The same kind of warning was given in James's case, in our State Reports, Your Honours. That
case is included in our list of authorities in and Your Honours' books, but I do not go to it. Your Honour Justice Brennan in this case dealt
with the issue perhaps more as to whether or not
the defence case was adequately put, at 325. There
| Kenney | 21 | 22/8/90 |
is an important precursor to the passage I am about
to read at 325, but I point it out to Your Honours
but I do not read. The passage we rely on at 325 is at point 6 and, although it deals, generally
speaking, with a person with a mental disorder, we
submit that Your Honour's words can be taken as
general words going beyond the case:
It follows that there is no universal
rule of practice that a trial judge should
give a warning - much less a warning according
to a prescribed formula - whenever a jury
might convict on the uncorroborated testimony
of a witness who is suffering or who hassuffered from some form of mental disorder.
It may be that the circumstances will require
some caution to be given - not because of a
particular rule of practice affecting
witnesses suffering from some form of mental
disorder but because a warning is necessary toput the defence case fully and fairly.
Perhaps no more can be said than this: when
the danger in acting upon the evidence is real
and substantial -
as I submit it was here -
and when the conduct of the trial and evidence
as to the witness's mental disorder are such
that the jury may not have fully perceived or
the jury's attention may have been diverted
from the danger, a warning should be given.
This was such a case.
And I submit the case at bar was also.
Your Honours, in Longman's case, which is the
second case in the materials at page 13, again the
facts I do not trouble Your Honours with but a few
brief passages if I may which, we submit, emphasize
the points now made. At page 167, in a short
passage, Your Honour Justice Brennan,
Justice Dawson and Your Honour Justice Toohey said
this at line 2: Apart from the special rule, the general law requires a warning to be given whenever a
warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case - and the very passages that I have just mentioned to
Your Honours are cited.
At page 173, Your Honour Justice Deane, in a
short passage at the bottom of that page, line 47,
said that:
| Kenney | 22 | 22/8/90 |
A trial judge has the general
responsibility of giving appropriate directions to assist the jury in the
performance of their function as the judges of
fact. That responsibility includes the giving
of an appropriate caution or warning in
circumstances where there are potentialdangers in acting upon particular evidence
which may not, without such a caution or
warning, be appreciated by the jury.
Finally, Your Honours, at page 182, His Honour
Justice McHugh likewise, at line 10, referred to
Bromley again and then added this, at line 17:
Except in the limited area marked out by
the section -
which is not relevant -
complainants in sexual cases no longer fall
into a category of witnesses in relation to
which the "full warning as to the necessity of
corroboration must be given". If, however,
the evidence discloses any circumstance whichsuggests that the evidence of the complainant
may be unreliable, the trial judge has a duty
to make the jury aware of the dangers
concerning that person's evidence. As in any
case where the prosecution depends solely upon
the evidence of one witness, the trial judge
is entitled to point out that the evidence of
the complainant requires careful scrutiny
before acting upon it. But cases willfrequently arise where the circumstances will
require a stronger warning. The terms of that wa~ning will depend upon the particular
circumstances of the case.
What is noticeable there is that His Honour uses
the words, "The trial judge has a duty" et cetera.
Now, in my respectful submission,
Your Honours, this case case was clearly one where
the prime reason for doubting Turrell's evidence
and the whole basis of the cross-examination really was not put and it was wrong, with respect, for the
Court of Criminal Appeal by reason of the passages
I have just read from these two cases to read down
as it did the expressions from this Court in those
two cases.
My submission is that those two cases laid
down a rather more general principle; that is, that
in cases going beyond established categories where
there is a perceptible risk or a real risk of a
miscarriage, then there is a duty to give an
| Kenney | 23 | 22/8/90 |
appropriate warning and, in my respectful
submission, one was not given here.
Your Honours, can I add two points: a matter
has occurred to me in further answer to Your Honour
Justice Brennan about the motive directly
attributable to Mrs Kenney. There was evidence, Your Honour and Your Honours, that in fact after
February of 1988 Shearer and Turrell had an
argument and fell out with the Kenneys. I do not need to refer to that evidence but, after February,
they did have an argument and they did not contact
each other further at all. The evidence of that is 525; I do not read it. Finally, Your Honours -
| BRENNAN J: | Does that not really all place some emphasis |
upon the passages that you have been drawing our
attention to, which stress the importance of
tailoring the warning to the circumstances of thecase and, if that be so and, as you have accepted
in your exchange with Justice Deane, no adequate
particularization of what was sought was-stated at
the end of the summing up, we are really in the
situation where you say in this case, in these
circumstances, something additional was needed
although the judge was never asked to give it.
| MR TILMOUTH: | Yes, and as an alternative but lesser than |
that, in any event the defence case was not
adequately put, focussing more on Your Honour's
comments in Bromley and there was, therefore, a
miscarriage of justice obviously.
Your Honours, the final point and I can put it
briefly, is: the proviso is not applicable. I would submit clearly that the evidence was extremely damaging and there can be no doubt, of
course, the jury acted upon it by virtue of theirconviction on the conspiracy charge and
Your Honours will remember as well that in the
first passages I read of His Honour's summing up
His Honour did put the evidence of Turrell very
generally, crossing both counts as being very damaging to her and not as isolated to the
conspiracy charge itself. But, in my submission,
Your Honours, if this decision is allowed to stand despite the difficulties pointed out by Your Honour
Justice Deane, trial judges certainly in this State
and, perhaps interstate, may well read the general
statements of principle in Bromley and Karpany and
Longman as confined as the Chief Justice has
confined them in this case and, in my submission,
that would be to apply principles which this Court
is endeavouring to overcome.
Your Honours, there is on our list as well the
Canadian decision, Vetrovec. It is not necessary
| Kenney | 24 | 22/8/90 |
for the purpose of our argument to argue that case.
The point I simply make there is that what we are
submitting is the effect of Bromley and Longman is
not inconsistent - in fact, is entirely consistent
- with the direction the common law is taking as
consistent with what has been the practice over many years in England through Prater's case.
reflected in that decision of the Canadian Supreme
It is in our materials and I do not read it,
Your Honours, but the Court of Appeal said there,
and it has been the principle ever since, that
where a witness has a purpose of his own to serve,
it is desirable - I submit it is an optional word -
desirable to give an appropriate warning. Here, I
submit, the law has gone a step further and made it
virtually mandatory if there is a perception that
there would be a risk of miscarriage of justice
without it.
| GAUDRON J: | Mr Tilmouth, that rather begs the question, what |
is the appropriate warning? In this case, the
trial judge pointed out all the matters that
brought the evidence into question, did he not?
| MR TILMOUTH: | Well, no, with respect. He did not refer at |
all to the central point we were making about the
charges, him speaking with the police about Andy
Read in order to minimize the charges. The judge never mentioned those matters at all.
| GAUDRON J: | No, but that was presumably dealt with in |
addresses and it was the subject of cross-
examination?
| MR TILMOUTH: | Yes. |
GAUDRON J: Yes.
MR TILMOUTH: Yes, there is no doubt I dealt with it
extensively. It was our main point on Turrell.
GAUDRON J: And so, according to your argument, the
deficiency in the summing up is the failure to
mention that.
| MR TILMOUTH: | Yes. |
GAUDRON J: And not the failure to say, "You must use
extreme caution" or anything like that.
| MR TILMOUTH: | No, with respect, it goes further. | It is not |
only the failure to mention it but it is also the
failure to use some words akin to those words
approved in Bromley and Karpany. The words I
mention "quickly", "scrutinize carefully", he - - -
| Kenney | 25 | 22/8/90 |
GAUDRON J: But I wonder, do those words ever add anything
if the matters that bring the evidence into
question are sufficiently dealt with?
MR TILMOUTH: Well, with respect, in my submission, they do.
These matters may not have been at all obvious to a
jury for many years, hundreds of years, perhaps.
The very reason that has led judges and appeal
courts to say that accomplice warnings must be
given is because those kind of considerations would
not generally be known to juries.
GAUDRON J: But the rationale of an accomplice warning is a
little bit different from the rationale that you
would ascribe in this case, is it not?
MR TILMOUTH: Well, it is a little bit closer to the witness
in question, I accept.
GAUDRON J: Yes.
| MR TILMOUTH: | But, the reason to doubt the evidence is the |
same, it just arises in a different way.
GAUDRON J: Well, they have got an interest of their own to
serve, but that is a very general - - -
| MR TILMOUTH: | Yes, but it is a very potent reason to tell |
lies, with respect. If I can put it crudely, as I
suggested to Turrell, it was really his skin or
somebody else's.
DEANE J: But is that not the real point? In the case of
the accomplice warning, a jury is unlikely to
appreciate the reasons which make the evidence of
an accomplice something that should be the subject
of very careful scrutiny. They ~ight well think,
"They're accomplices; that being so one's going to
help the other.", but when you look at your grounds
in paragraph 2, they are all factual matters which
a jury can appreciate every bit as well as a judge;
that is, if somebody is going to get a benefit out
of giving the information, you should take that into account in assessing the reliability of the
information.
MR TILMOUTH: Well, can they, with respect - could the jury
really appreciate the points as being obvious?
DEANE J: Well, which one in paragraph 2, do you not think a
jury would appreciate?
MR TILMOUTH: In my submission, Your Honours, the courts
have always given the corroboration warning partly
because it seems to be accepted that the jury would
not appreciate the full reason for the danger on
acting on the evidence.
| Kenney | 26 | 22/8/90 |
| DEANE J: | Do not misunderstand me, Mr Tilmouth, I am not |
suggesting for one moment that if at the end of
His Honour's summing up someone had got up and said
to His Honour, "Well now, the defence makes a real
point of this, we suggest you put that to them".
It is done in front of the jury, the judge, no
doubt, would have said, "You've heard what's said"
and there's force in it", otherwise he might have
done it, but we are concerned with the distinction
between where a failure to give involves of its
nature a defect in the trial, such as an accomplice
warning, and the case where, if the defence
requires it and, if necessary, the judge should
consider it and exercise his discretion.
| MR TILMOUTH: | Yes. Well, obviously, I would put that this |
was a defect in the trial. It was no mere matter of a misdirection on the facts, as it were, it was
a misdirection in the end result, albeit based on
facts, it had to be one of law, if we are right.
But, Your Honours, if I anticipated what
Your Honour was putting to me earlier, could I addthis as well? It may well be that juries could reason that if somebody has been charged by the police and gone through the courts, the due process
of law, that they might think that everything has
been done orderly and properly and that the court
has, perhaps, anaesthetized any wrongdoing by the
police or any inducement to come forward with
information and lay lesser charges and, in my
submission, a jury, in a case like this, would notappreciate the real dangers of this type of
evidence for, perhaps, that reason and others.
Lord Ackner in Hester's case said in a passage
that, traditionally, the accomplice warning - the
reasons for it - would not be appreciated by
jurors. Unfortunately, His Lordship did not go onto say why but, in my submission, it would not be
obvious at all to a jury and I would add as well
that the very purpose of giving a warning is to add
judicial weight to the real dangers of the warning.
It is not simply making a point about the weakness in a compendious way summarizing what defence
counsel has put. The whole thrust of the authorities, whether they are category authorities
or the later authorities, are to give judicial
weight to the reasons why the evidence is to be
doubted. If the Court pleases.
MASON CJ: Thank you, Mr Tilmouth. Yes, Ms Shaw?
| MS SHAW: | Your Honours, I hand up eight outlines of |
submissions, lists of authorities, if the Court
pleases, and in addition, the applicant, Perkins,
has prepared a chronology as to the facts and a
summary of evidence.
| Kenney | 27 | 22/8/90 |
If the Court pleases, the special leave points
that arise in this case come from the determination
of the learned trial judge that the Crown case of a
course of conduct which embraced all three counts
meant that all the evidence in the case was
admissible on all counts. As a result of that
determination the learned trial judge considered
and ruled that the counts should not be separated,that all the circumstantial evidence, which was the
Crown case, was capable of corroborating the
accomplice Sandell, who was an accomplice for one
count in particular and, thirdly, that the jury
should determine from all the circumstantialevidence in the case as a whole, which elements of
the various offences were made out.
The Court of Criminal Appeal upheld this approach and, in particular, upheld the trial
judge's approach that there was no requirement for
the jury to be directed as to the use of evidence
in relation to any particular count.
The accomplice question was important because
on Mr Sandell's account, Sandell being the witness
who was at the applicant Perkins' home, and alleged
that Perkins said to him at the time that a
contents insurance policy was taken out, "Do you
want a job? Clean this out.", and from that,
Mr Sandell gave evidence that he believed that
Mr Perkins was referring to his house for an
insurance job although those words were not used by
Perkins.
Mr Sandell passed that information on to his
brother and, although this occurred on 2 June, the
activities of Mr Sandell and his brother and
Zena Oakes, his girlfriend, and two other
associates, a person called Phil Murphy and a
person called Colin Bird, the burglaries that
subsequently took place, occurred not until a weekbefore the fire. Mr Perkins, himself, did not
leave the State until early August; that appears
from those dates set out in the chronology. Therefore, there was a consideration of the three counts; of course, on everybody's case Mr Sandell
was an accomplice in a burglary.
On the defence case, he was not an accomplice
in the false pretences because a statement was
never made and no false pretence ever occurred but
on the Crown case, clearly, he was an accomplice
because he took up what he viewed as an invitation
by Perkins to remove property from his home so
that, thereafter, Perkins could make a false claim
on his contents insurer. As to whether or not he
was an accomplice for the arson depended on the
view that was taken of there being any relationship
| Kenney | 28 | 22/8/90 |
between the burglary and the subsequent fire and,
of course, as for the conspiracy charge, on the
Crown case, that was a combination, as it were, of
everything with the additional element of an intent
to defraud so that I am not certain how one fits an
accomplice into that kind of charge but if there
was some justification for saying and concluding
that all of these offences were linked, then
through that route, perhaps, he may be an
accomplice. Because Perkins was disputing any
liaison of an incriminatory nature with Mr Sandell,
the direction as to whether or not he was an
accomplice and the nature of the direction and, in
addition, the direction as to whether or not there
was corroboration, was crucial.
The Crown case against Mr Perkins, apart from
Mr Sandell's evidence, depended only upon his financial situation which was consolidated after
the statement to Sandell in about July, but he
still had outstanding accounts at the time of the
fire. In addition, a statement to Osborne in about
October the year before when he had said to this
man, Osborne, he would rather burn down his house
than let the house get it and, in addition, of
course, there was the proximity in time of thesevarious events. So, in that context, Sandell's
evidence came to be very important.
The summing up of the trial judge and the
direction he gave in relation to corroboration
appears at page 1109 of the appeal books.
MASON CJ: | Now, can you itemize for us what you say are the defects ·of the directions given by the trial judge |
| to the jury and can you tell us what directions he | |
| should have been given according to the case that | |
| you are presenting? | |
| MS SHAW: | The first direction he should have given was that |
it was a matter for the jury to decide whether or
directed the jury, at page 1109:
not Sandell was an accomplice at all. In fact, he But in deciding whether or not the statement
was made, you will bear in mind that as a
matter of law Bob Sandell stands in the
position of an accomplice.
So he directed them, as a matter of law, that this man was an accomplice.
GAUDRON J: That is in your favour, is it not, Ms Shaw? You
take the advantage of that direction.
| MS SHAW: | You often take the advantage of the direction if |
you, indeed, do have a liaison with the man and you
| Kenney | 29 | 22/8/90 |
often take an advantage from it if there is no
corroboration but the disadvantage is not only lost
but the prejudice is multiplied when you say there
is corroboration so that any advantage that might
have occurred in another case where there was no
corroboration does not apply to this case. But in
my submission, here, it was important to
differentiate between Mr Sandell's role as an
accomplice because of the differing nature of the
offences.
The trial judge did not, at any stage in his
summing up, separate the evidence relating to the
different counts nor, indeed, identify what was in
issue in respect of any of the counts. The applicant, Perkins, not only denied that this
statement was made but he also denied even knowing
the Kenneys and there was no evidence that he did
know the Kenneys. Therefore, the fire, the
lighting of the fire, occurs because of, if what
you like, a third party having performed the act. If you had a case where, for example, a man had a
motive to light a fire, his circumstances were
dubious, he had opportunity, then one could mount a
case based on inference, therefore, that he was a
likely candidate, but here the difficulty with such
a case, in my submission, is that the fire was lit
by somebody else.
| GAUDRON J: | Ms Shaw, it was Mr Retalic, was it, who was |
appearing below?
| MS SHAW: | Yes. |
GAUDRON J: And he had no suggestions, it seems, from
page 1126 to make to His Honour the trial judge
about the summing up?
MS SHAW: That is so, Your Honour, but Mr Retalic had
debated at length with the learned trial judge on
three separate occasions in relation to the
proposal that the Crown case could be presented as
a course of conduct without separation of the counts and that the corroboration that was proposed
could be presented as a body of circumstantial
evidence and I will take Your Honour to those
various passages.
First of all, at the time when he asked for separation of the counts -
MASON CJ: But, Ms Shaw, if I could bring you back to my
initial request, could you itemize for us what, on
your argument, were the defects in the trial
judge's summing up and what directions do you
submit should have been given by the trial judge to
the jury - and specific directions?
| Kenney | 30 | 22/8/90 |
| MS SHAW: | Yes. | I have indicated to Your Honour the first |
direction, namely, that the question of whether or
not he was an accomplice was a matter for the jury.
DEANE J: Well now, what does that mean?
| MS SHAW: | I am sorry. That it is for the jury to decide |
whether or not, in fact, he is an accomplice.
DEANE J: So, he should have told them that if they decided
he was not an accomplice in relation to some of the
offences no corroboration would be necessary?
| MS SHAW: | No, Your Honour. | In my submission, the only |
offence that required or called for a corroboration warning was the offence relating to false pretences
so that when he directed the jury as to whether or
not, in relation to corroboration, it was for the
jury to determine whether, in fact, he was an
accomplice because he could only be an accomplice
if a statement was made.
DEANE J: But, what is the complaint about saying that he
was an accomplice, that it implies that there - - -
MS SHAW: That the statement was made~
| DEANE J: | I see. |
| MS SHAW: | There is no clarification as to whether or not he |
is referring to an accomplice in a lay sense as
though they were simply involved in a crime
together or whether or not he was an accomplice in
law because he had an involvement in the offence
either directly or indirectly. I do not put that point as highly and as strongly as I do the
criticisms I make of the failure to refer this
witness's evidence to any particular count and tothe direction as to corroboration.
DEANE J: But it does not really imply that the statement
was made, does it, when you say legally he is to be
of, you look at his evidence with great care and so regarded as an accomplice and for that reason, sort on?
MS SHAW: Legally, he is an accomplice in the crime of burglary, that is not in dispute, that he has
passed on information. Whether or not he is an
accomplice at all in relation to the false
pretences depends on whether or not that statement
was made.
BRENNAN J: But, if one looks at what the judge said at
page 1109, it is first of all introduced by saying:
| Kenney | 31 | 22/8/90 |
in deciding whether or not the statement was
made -
that is the first qualification. So the judge is not telling them that the statement was made, he is
directing them in relation to that issue of fact.
Then, he says that Mr Retalic explained that he
stood:
in the position of an accomplice.
So, the judge is picking up counsel's submission there and then he goes on to say "and because of
that position, it now becomes my duty to give you
the warning" and he warns them. Now, should he have not given them a warning in relation to
whether or not the statement was made?
| MS SHAW: | He certainly should have given them a warning. |
BRENNAN J: Well then, he has given it to them.
| MS SHAW: | He has given them a warning but His Honour the |
Chief Justice specifically asked me my first
complaint; I did raise that as a first complaint
but I do not suggest it is a matter of greatprejudice that he was described as an accomplice in
law. What I am putting to the Court is it did not
help the matter that he did not leave that matter for the jury in the proper way in accordance with Davies in the House of Lords but it is a matter
that strictly speaking should be left to the jury
but I am not suggesting to the Court that that
matter alone, or even in conjunction with the others, adds much to the prejudice that I say arises from the balance of his direction.
When Mr Retalic addressed the jury, which
appears at page 1048 of the transcript, he did tell
the jury that Mr Sandell was an accomplice and he
does not, of course, present it in a legal fashion to the jury. In my submission, the effect of what
Mr Retalic was putting to the jury was that Sandell and his associates were all involved in a burglary
and, in effect, therefore, they were all
untrustworthy. He does not relate his address to a consideration of whether or not he was an
accomplice in the false pretences, as such, by the
statement having been made. In my submission, he
is really telling the jury that this man is
untrustworthy because on his own evidence he is a
crook.
As I say, that is the first point that, in my
submission, is the correct direction to a jury.
Secondly, the direction when he tells the jury that
the way he puts the warning, I accept that that is
| Kenney | 32 | 22/8/90 |
a correct direction but my major complaint is as to
corroboration. As I have said, there was no
relationship between this total direction on the
accomplice and any specific count. In my
submission, that must be part and parcel of the
direction. If he is dealing with corroboration in
relation to an accomplice, he must relate the
witness's evidence to each count if it, in fact,
does have a relationship. If it does not have a
relationship to that count, then he must tell the
jury that it does not have a relationship to a
particular count so that the jury do not use
evidence or, indeed, the corroboration in relation
to a charge to which it may not be relevant.
TOOHEY J: Is that an attack, Ms Shaw, upon the suggestion
that the jury could find corroboration in the
combined weight of the circumstantial evidence?
MS SHAW: That is so, Your Honour.
TOOHEY J: And is the criticism that the combined weight of
the circumstantial evidence could not constitute corroboration in respect of each of the charges?
| MS SHAW: | The criticism as to the use of the combined weight |
includes a number, Your Honour. First of all, the
circumstantial evidence is drawn from evidence
pertaining to differing counts. For example, the
examples of the statement to Osborne; now that is the statement a year before when he said to this
man at his garage, "I would burn down my house
rather than let the bank have it". Whether or not
that statement has any relevance to the false
pretences count which was related entirely to the
burglary, not to the arson, is an importantconsideration when deciding whether or not there is
any nexus between these accounts anyway.
The contents claim, that is the subject of
count 3, was only relative.to the burglary
although, as part of his claim, he did include
contents that were lose in the fire; the charge relates only to the burglary itself. Therefore, in
relation to the count of false pretences, thequestion for the jury was whether or not there was
a false pretence, namely, that there was a burglary
and in that respect whether or not Osborne's
evidence had any relevance at all was a crucial
issue. It could only have relevance if one accepted the basis upon which the trial judge and
the Court of Criminal Appeal proceeded, namely,
that because the Crown said this was a single
project all evidence was relevant to everything;
all evidence was admissible on everything and with
that contention, of course, I disagree. So that the evidence of Osborne, I say, involves a
| Kenney | 33 | 22/8/90 |
different offence to the offence in respect of
which Mr Sandell's evidence was probative.
In addition, His Honour, in his body of
circumstantial evidence referred to the burning
down of the house and the circumstances in which it
was burnt down. Now, in my submission again, the circumstances of the house burning down and the
circumstances in which it was burnt down could haveno probative value as to whether or not the
applicant, Perkins, was a party to a burglary that
was, in fact, an attempt to defraud his insurance
company.
Then, the only other item of circumstantial
evidence in the body that is left to the jury is
the obtaining of the insurance policy as to the
contents and, clearly, that could not amount to any
kind of corroboration of Sandell because the
evidence was, in any event, that it was Mr James
who encouraged Mr Sandell to take out the policy
against his better wishes but, of course, it cannot
confirm the fact that the allegation that there was
any fraud in relation to events that occurred
afterwards.
TOOHEY J: Well, apart from those passages on 1109 and 1110,
did the trial judge return in his direction to the question of circumstantial evidence as a basis for corroboration?
| MS SHAW: | No, this is the only direction in the entire |
summing up in relation to corroboration and
accomplice evidence. There is another direction in
relation to Sandell generally as a witness but not
in relation to the topic of corroboration.
DEANE J: What if there had been direct evidence that
Mr Perkins had burnt down the house, would you say
that was not corroboration?
T4/DR
MS SHAW: It could only be corroboration if there was a link
between these offences so that one could seek a relationship between the items that you are
proposing to put in to your body of circumstantial
evidence.
DEANE J: Well, what I was asking you is: if there was
direct evidence that Mr Perkins had burnt down the
house, would that be corroboration in the
circumstance of this case of the evidence that, in
anticipation of a house being burnt down he hadasked somebody to stage a burglary?
MS SHAW: In my respectful submission, in this case, no; the
reason being that the evidence was that, first of
| Kenney | 34 | 22/8/90 |
all, there were contents still in the house that
were recoverable under the policy anyway.
DEANE J: Well, that is the real question, is it not, because
if direct evidence that Mr Perkins had burnt down the house was corroboration, the circumstances in which it was burnt down to the extent that the jury
accepted those circumstances as implicating
Mr Perkins would be corroboration. It is just a
different way of getting to the same question.
MS SHAW: Yes, well, in my submission, even if Mr Perkins was
connected with the fire it still does not amount to
a circumstantial case of corroboration as to
Sandell's evidence because Sandell's evidence
implicated Perkins in a contents insurance fraud.
| DEANE J: Yes, I follow that. | I was just suggesting to you |
that the answer to the question must be the same
regardless of whether it is circumstantial evidence
or direct evidence that he burnt down the house.
MS SHAW: Yes, my submission to Your Honour is that the fact
that there is no connection between him and the fire makes this case even more removed from any
suggestion of a nexus between the offences which
was, of course, the basis upon which this direction
proceeded. If I can return to Your Honour the
Chief Justice's question to me, the submissions I
make as to the correct direction finally, of
course, is that there was no corroboration of
Sandell's evidence.
The direction should have been to the jury
that Sandell, because of his evidence, could be
viewed as an accomplice to the false pretences, a
warning applied and His Honour gave that warning
but then the direction should have been that there
is no corroboration of his evidence. In those
circumstances, of course, the full force of the
warning would attach to the witness but once the
corroboration direction is given then that warning
is, in effect, neutralized. Not only in this case is the warning
neutralized but what was put as corroboration of
Sandell's evidence was the entire Crown case.
Therefore there were two prejudices: one in that
it incorrectly enhanced the credibility of Sandell
but, secondly, in that by telling the jury that
this entire body of circumstantial evidence was
capable of corroborating Sandell, the judge in
effect left it to the jury that that entire body of
circumstantial evidence was capable of implicating
Perkins - as a body.
| Kenney | 35 | 22/8/90 |
Indeed, His Honour's directions are
highlighted in that respect by what he had said to
direction on the accomplice warning. At the jury immediately before he commenced his page 1109 - he had commenced dealing with Sandell at page 1106, if the Court pleases, by initially setting out what he had said. Then, at page 1107, referring to Mr Retalic's criticisms of him in relation to the time lapse between 2 June and when he passed on the information and the date in August when the event occurred - Mr Retalic's criticism that there was a change in story by Sandell in November after an initial failure to mention anything about a statement on 2 June. But, coming to page 1109 line 5, what His Honour said was this:
Even if you entertained a reasonable doubt
that that statement was made, or made a
positive finding in your mind that it wasn't
made, you must still consider the body of
circumstantial evidence upon which the Crown
relies in determining whether or not the
charges or any of them have been made out.
Then he follows on to give the accomplice warning
and again referred to the body of circumstantial
evidence as corroborating Sandell but, in my
submission, what His Honour was putting to the jury
was that even if they had a doubt about Sandell's
evidence they could still, in effect, look at the
rest of the evidence and then determine whether or
not the charges were made out.
It is my submission, if you excluded Sandell's
evidence from the case against Perkins there would
not have been a case to consider as to whether or
not the charges had been made out. So, I say thatthe preliminary direction increases the prejudice that arises by the subsequent reference to a body
of circumstantial evidence and gives some credence
to a Crown case as it was presented based on such a body of circumstantial evidence.
In my outline of submissions I have referred to the complexity that has arisen in relation to
the application of Davies' case -
MASON CJ: Yes, but before you get to that, Ms Shaw, we
still want to know what are the points that you
wish to argue in terms of errors made by the trial
judge and then you have to demonstrate to us that
the points you seek to argue are sufficiently
important to attract a grant of special leave. In
other words, we want to hear from you why we should
grant special leave before we embark on a
| Kenney | 36 | 22/8/90 |
consideration of the substantial points that you
want to argue. What we want you to do is to identify for us the points that you are going to
argue and then to persuade us that we ought to
grant special leave so that you can argue it.
| MS SHAW:- Yes. | The points that I wish to argue - this relates to the accomplice direction - |
MASON CJ: Yes.
MS SHAW: - - - is that on a trial of multiple counts when
the witness is described as an accomplice in law and there is potential corroboration as evidence,
it is necessary for a trial judge to direct the
jury as to the particular count to which his
evidence relates and as to whether his evidence is
potentially corroborated in respect of that count.
| MASON CJ: Yes. | Now, you have covered that and you have |
given us some examples of what you say are the
difficulties that arise.
| MS SHAW: Yes. | The second point that I put to the Court is |
that a trial judge should determine whether a
suggested combination of items of circumstantial
evidence excludes a reasonable hypothesis
consistent with innocence before leaving such acombination to the jury as potential corroboration.
In this particular case the body of circumstantial
evidence which he left to the jury, in my
submission, did not have the required probative
force to be left as corroboration and, in my
submission, that is the determination that the
trial judge should make rather than simply leave it
as a matter for the jury to assess when certain
items are put forward. That is the second point I
wish to make -
MASON CJ: Yes, but the problem about each of these points,
if I may say so, is that on their face they appear
to be related to the facts of this particular case.
| MS SHAW: The first general point I make, if the Court |
pleases, is that in describing the witness,
Sandell, as an accomplice His Honour was adhering to the principle of Davies which required a strict
direction irrespective of the status of the witness
in relation to various counts. That complexity
that has arisen from Davies is a complexity which,
in my respectful submission, this honourable Court
should reconsider.
If there is a witness who has a different
status in relation to the defence case, the Crown
case and on his own account, it is in that
circumstance that to describe him as an accomplice
| Kenney | 37 | 22/8/90 |
in law and then take up the complex directions as
to corroboration can lead to an injustice. This is
a case where the Court could consider, in my
submission, adopting the approach that has been
adopted in Canada in the case of Vetrovec that
there is a discretion as to whether or not a
. witness should be described as an accomplice as such when there are difficulties that emerge in
relation to such a joinder.
BRENNAN J: But the problem is not a question, really, of
whether he is described as an accomplice, is it? I
mean, the warning is given with respect to a fact
finding exercise and the jury is told, "Have a carebefore you accept this witness's evidence and look
for some corroboration". The complexity that you refer to always arises in connecting that which is
advanced as corroboration by the prosecution to the
proof of the elements in given cases. Is that not where the difficulty lies?
| MS SHAW: | Yes. |
BRENNAN J: So, the real problem in this case is no more
than this, is it: what evidence, other than the
evidence of Sandell, was admissible
circumstantially to prove the elements in the
respective offences charged?
MS SHAW: Yes, that is a matter that, in my submission, as a
result of this judgment, is left in a state of
confusion - in this State, in any event - because
the judgment, in effect, allows circumstantial
evidence to encompass multiple counts and, in
addition, not necessarily bear upon the issue in
relation to a specific count.
TOOHEY J: But it is not so much because it is
circumstantial is it, Ms Shaw? I thought your real complaint was that a mass of evidence, which as it
happened was circumstantial, was allowed to be
considered by the jury as corroboration of more than one charge without allocating, as it were, particular areas of evidence to particular charges and, in that sense, it may not have mattered whether it was direct or circumstantial evidence.
| MS SHAW: | That is so but the follow-up question, of course, |
is when it is circumstantial evidence what are the
appropriate tests that justify such circumstantial
evidence to be led as corroboration?
TOOHEY J: Yes, I understand now.
MS SHAW: That is really a second point.
| Kenney | 38 | 22/8/90 |
BRENNAN J: But do you not have to face then another problem
and it is a factual one: that the circumstantial
evidence went to show motive and opportunity to
engage in a fraudulent course of conduct coupled
with instances of particular acts which might
amount to offences in the course of a single course
of conduct and if that is the way in which the
evidence can be looked at then is it not right to
say that the whole of the body of circumstantial
evidence could be looked at in relation to each
count of the indictment?
| MS SHAW: | The way that Your Honour has put that, in my |
submission, relates more to admissibility being
dependent upon what is the Crown contention and,
indeed, to some extent embraces guilt rather than a
consideration of whether or not one fact in issue
is enlightened by another fact in issue and if one
wishes to rely on a course of conduct, in my
submission, it is not appropriate to do so where
there are joint counts and the joint counts do not
meet the requirements of similar fact evidence
because, in that circumstance, the evidence has a
different use in relation to each particular count.
If one was to rely on a course of conduct and
only one count was charged then the question arises as to the admissibility of all of that evidence and the difficulties are, of course, not so complex.
| BRENNAN J: | Can that be right? Let us assume that you have |
got a bank robbery and you have got a number of counts in the indictment, the first of which is
stealing the get-away car; the second is being in
possession of stolen goods, mainly the get-away
car; the third is driving in a fashion which was
dangerous to the public while getting to the bank;
going armed - the usual paraphernalia that might
accompany such an offence and one has no instance
of particular offences which are related one to the
other in terms of their elements but which each of
them goes to make up, in fact, the whole course of
the conduct. Could you not give circumstantial evidence relating to one of those counts as being
material to the rest assuming that the evidence is
capable of proving a course of conduct?
| MS SHAW: | In that situation, of course, the qualification is |
that each offence must necessarily be proved or
directed - there must be directions in relation to
each offence separately because they involve aparticular progress in time; one after the other.
Here you have a conspiracy count joined with two
substantive offences and a conspiracy count, in
effect, embraces the two of them. So that, but forthe conspiracy count, perhaps one could formulate a
direction as to the admissibility of evidence
| Kenney | 39 | 22/8/90 |
pursuant to a course of conduct leading up to a
particular result.But, in my submission, here the criticism of
the use of the phrase "a course of conduct" is
borne out and if I can take Your Honour to those
criticisms, this point relates to the second part
of my application, namely, that by finding all
evidence is admissible on all counts it does not
remove the requirement that a jury be directed to
give separate consideration to the various counts
which was the finding of the judge of the Court of
Criminal Appeal.
The criticisms that have arisen in relation to
the use of the phrase, "a course of conduct" -
first of all I refer the Court to Kilbourne's case.
MASON CJ: But, Ms Shaw, we are only concerned, at this
stage, with considering your application for
special leave to appeal. We are not going into the arguments you want to present on the appeal in
depth at this stage; we just want to get an outline
of what you are presenting and we want to hear from
you why we should grant special leave to appeal.
MS SHAW: Yes. Well, coming back then to my special leave
points, I have referred the Court to this
particular case in relation to the complexity ofthe Davies direction. Secondly, in relation to the nature of corroboration, in my submission, there is
uncertainty in the decided cases and, of course,
the importance of any misdirection as tocorroboration generally results in an unsafe
verdict.·
The uncertainty, in my submission, can be
related to three specific areas: first of all, the
extent to which the evidence that is said to be
potentially corroborative must support the account
of the witness to be corroborative, whether it must
confirm that witness's evidence in a material particular or whether it must, simply, have a tendency to support; and, secondly, whether or not it must implicate the accused in the crime; that
is, whether it must implicate an accused in thespecific count - which is what we are concerned with here - or whether it must simply implicate an
accused in general fraudulent conduct; that is, aCrown case that rests on fraudulent conduct. In my submission, the cases say, in Buck for
example, that the evidence must implicate the
accused in relation to the specific count charged.
In this case the court has taken the view that it
may simply be corroborative in a general sense of
what is the Crown case. The other area, in my
| Kenney | 40 | 22/8/90 |
submission, of uncertainty and conflict which
arises directly on this case, is the extent to
which the corroborative evidence can be consistent
with the prosecution and defence contentions.
The dissenting judgment of His Honour
Chief Justice Bray in Lindsay's case took the view
that it could not be consistent with prosecution
defence contentions whereas the majority held that
it could. In this particular case, of course, in
my submission, the circumstantial evidence that was
left as corroboration was entirely consistent with
the defence case. And, thirdly, whether or not
circumstantial evidence can be constituted by a
body of circumstantial evidence or whether or not
the circumstances relied on must have some
connection with each other so that, therefore, theycan be described as "a course of conduct" or have
probative force because of their relationship to
each other.
Those matters, in my submission, are dealt with, first of all, in Lindsay's case, when the majority held that there could be a body of
circumstantial evidence provided that it was
interconnected and interdependent. In Duke's casethe Chief Justice held that circumstantial evidence
could be constituted by a body of circumstantial
evidence. Whether or not it was interconnected or
interdependent was not adverted to.
In my submission, what I am putting to the
Court is that the application of the English case
of Thomas v Jones has seen a different approach
adopted .in this State than has been adopted
elsewhere and the direction in which corroboration
directions have gone generally is such that now the
effect of this case - the majority in Lindsay and
Duke - is that evidence which is capable of being
corroboration in that it is consistent with a
prosecution contention that it is probative of
guilt, can be left as potentially corroborative
rather than a determination of whether or not that potential corroboration has probative force
initially before leaving it to the jury.It is an important question, in my submission, as to whether or not a learned trial judge should
make an assessment of probative force before the
evidence is left to the jury as being potentially
corroborative. That is a matter which, in mysubmission, warrants special leave. In addition,
in my submission, this is the only case, that I am
aware of, where corroboration has been constituted
by evidence encompassing a number of counts when
those counts are not joined pursuant to the
principles of similar fact. Therefore it is a
| Kenney | 41 | 22/8/90 |
novel approach, in my submission, and one which is
not supported by authority and is not an approachthat would assist a jury in the determination of
the issues when multiple counts are tried.
Those are the special leave matters in
relation to the questions of corroboration. The second aspect of the special leave application
relates to the initial joinder of the counts andthe directions to the jury. The Court of Criminal
Appeal held, in its judgment, that the counts were
founded on the same facts and, in addition, that
there was no occasion to sever and that because all
evidence was admissible on all counts then there
was no requirement to direct the jury in relation
to the evidence admissible as to those separate
counts.
It is my submission that special leave should
be granted as to those points. First of all, the
meaning of "founded on the same facts" has not been
the subject of a determination by this Court
although Sutton's case dealt with the discretion
that arises as to severance. The determination of what is meant by "founded on the same facts",
although the judgment of the Court of Criminal
Appeal in England in Barrell and Wilson says that
that means "having a common factual origin", but
there is no authoritative determination in this
country of the meaning of that phrase.
The Queensland case of Reg v Crawford
interprets "founded on the same facts" as not
necessarily meaning "all evidence admissible on all
counts". Rather, the Court refers to "founded on
the same facts" as indicating that the facts to
prove the offence must have some common features.
TOOHEY J: | Ms Shaw, can you direct us to the ground of appeal in the draft grounds that seeks to give | |
| effect to this particular matter you are dealing | ||
|
| MS SHAW: | Page 1226. It relates, if Your Honour pleases, to |
grounds 6 and 7 of the draft grounds of appeal.
TOOHEY J: Yes, thank you.
| MS SHAW: | In my submission, the equation by the Court of |
Criminal Appeal of "founded on the same facts" with
"all evidence admissible on all counts" is an
important question about which this Court should
make a determination because of the consequences of
such a determination to joinder, in the first
instance and, secondly, in relation to the
directions to the jury. In addition, of course, on
this case, the determination that "all evidence is
| Kenney | 42 | 22/8/90 |
admissible on all counts" arises on the basis of
the Crown case being a single project.
The High Court has in a number of cases now
dealt with what I have referred to as
"cross-admissibility"; that is, all evidence on one
count being capable of being admissible on other
counts and vice versa in circumstances where
similar fact principles apply. But, there has been
no case, that I am aware of, where it has been held
that evidence can be admissible on all counts even
though the offences are not joined pursuant tosimilar fact principles. That, in my submission,
is an important question.
I distinguish the question of whether "evidence admissible on all counts" and vice versa,
in relation to similar fact principles - I
distinguish that question, of course, from where,
as His Honour Justice Brennan put to me, you have a
number of offences which are dependent on each
other in a progression because, in those
circumstances, one offence may have to be proved
before another offence is proved but what the Court
of Criminal Appeal has said here is that ifevidence is admitted, pursuant to a Crown case of a
single project or a course of conduct, then
cross-admissibility arises in relation to all of
the offences without distinction.
In my submission, as I have said, that is an
important matter which this Court should consider.
I say that that is wrong in principle and it is an
incorrect precedent in this State and should be
rectified. It applies to every case in which there are multiple counts and it, in effect, in my
submission, is placing the test of admissibility at
the level of what the Crown contend is their case
rather than a consideration of the evidence. In my submission, in no circumstances should the
requirement that the jury be directed as to theseparate counts be removed·because evidence is found to be admissible on all counts. I say that that is a matter that is so fundamental to the right to a fair trial that it
must warrant the grant of special leave in any
event. That this man did not have a trial in
relation to three separate offences; he had a trial
in relation to whether or not a Crown case of a
single project was made out and not whether or not
he was connected to each of the offences. Of course, the quashing of the conspiracy count, in my
submission, in addition, resulted in a miscarriage
of justice to him because when there was no
separation of the counts the jury might well have
decided that he was guilty of the conspiracy first.
| Kenney | 43 | 22/8/90 |
~hat, in my submission, could not enable the other
two counts to remain afoot.
So, in my submission, there was a substantial
miscarriage of justice in relation to the trial of this applicant by reason of the non-directions and
by reason of the count of conspiracy being joined
in respect of which the Court of Criminal Appeal
held that there was no sufficient evidence. In my submission, it is a special leave point that if
there are a joinder of counts and different issues arise, what are the obligations of a learned trial
judge in relation to directions to a jury. It
would, in my submission, govern the directions to a
jury in every trial upon which there were multiple
counts.
| BRENNAN J: | But is there any real doubt about that? I mean |
the duty of the trial judge is to ensure that the jury do not take evidence which is not admissible
into account in determining the verdict and in some
instances it may be necessary to sever the counts
even after the trial is started. There is no doubt
about that, is there?
MS SHAW: Well that is not what the Court of Appeal said
here, with respect, because at 1201 of their
judgment, the court said that, in relation to the
submission to that court:
Mrs Shaw argued that the summing up was
defective in that the learned trial judge did
not direct the jury as to the use to which
they could put individual items of evidence in
relation to the separate charges. I do not think that there is any substance in this
argument. The learned judge rightly treated the case as one in which the circumstantial
evidence directly relating to one count, alsosupported the case in relation to the other
counts. Some judges might have been more specific as to how the circumstantial evidence
might be applied in that respect, but the jury is quite able to use its common sense and I think that the trial judges directions were quite adequate in the circumstances.
BRENNAN J: That is a different proposition, is it not?
What Their Honours were there dealing with was
whether or not, the evidence being admissible on
all counts, the connection between a particular
piece of evidence and an element in one of the
counts charged was to be traced out by the trial
judge, or whether the jury could be left to work it
out for themselves. And they said the second. It was not a question of admissibility; it was a
| Kenney | 44 | 22/8/90 |
question of the way in which a jury might regard it
as being probative.
| MS SHAW: | It is not only a question of admissibility, in my |
submission. It is a question of use in that there
must arise an impermissible use as to one count in
relation to another, for example, or in relation to
evidence of complicity in a burglary as to an
arson. So it is not a matter of whether or not there is a link. It is a matter of what use can
the jury make of evidence - either permissible
use - impermissible use and to which issue does it
relate. The complaint to the Court of Criminal Appeal was that there was no relationship to the
issues. At the very least the learned trial judge
should direct the jury as to what evidence is
relevant to the respective issues and the use they
make of that evidence, once the determination ofrelevance or possible relevant has been made, is
the question, in my submission, which Your Honour
Justice Brennan has put to me, but I say that the
Court of Criminal Appeal here has a precedent for
this State that, if all evidence is admissible on
all counts, there is no requirement to divide up
the counts and direct the jury as to what is in
issue.
In my submission, that must be a special leave
point. It did not occur in this case and I say
that there is a substantial miscarriage of justice
to Mr Perkins, because of the failure of the
learned trial judge to direct the jury separately,
and I point to the prejudicial evidence of Turrellthat existed in the case, which would not have
helped his situation. That was described by the
learned trial judge as being the link between the
Kenneys and the man Read and Read was described as being the link between Perkins and the Kenneys. So
that Turrell's evidence, although the learned trial
judge did give a direction that it was notadmissible against Perkins, was there and it was
evidence to the effect that this was an insurance
rip-off and that people were getting paid, including the man, Andy Read, who was accepted was
known to Perkins. So that I say that it is a matter of special leave that there was a
substantial miscarriage of justice for Mr Perkins,
in addition to the other matters of law that I have
raised with the Court. Those are the matters of
special leave, if the Court pleases.
| MASON CJ: Yes, thank you, Ms Shaw. | The Court will take a |
short adjournment in order to consider the course
that it will take in relation to this matter.
AT 12.26 PM SHORT ADJOURNMENT
| Kenney | 45 | 22/8/90 |
| UPON RESUMING AT 12.42 PM: |
| MASON CJ: | The Court need not trouble you, Mr Solicitor. |
In the application by Kenney for special leave
to appeal, we are not persuaded that, in the
particular circumstances of this case, the omission
to give the jury further directions with respect to
the evidence of the witness Turrell, including a
warning of the danger of acting on that evidence,
was an error of law or that it resulted in an
inadequate presentation of the defence case or a
miscarriage of justice. In reaching that
conclusion, we have taken account of the fact that
at the end of the summing up the trial judgeoffered counsel the opportunity of seeking further directions and counsel for the applicant sought no direction of the kind now contended for, being
content to rely on general submissions made earlier
in the trial.
In the application by Perkins, what I am about
to say represents the view of a majority of the
Court. We are not persuaded that there was any
error in the joinder of the counts in the
indictment and, having regard to the conduct of the
trial, including the omission of counsel to seek
further directions at the end of the summing up, we
are not persuaded that there was any miscarriage of
justice.
For these reasons the applications for special
leave will be dismissed.
12.42 PM THE MATTER WAS ADJOURNED SINE DIE
| Kenney | 46 | 22/8/90 |
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Appeal
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Charge
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Sentencing
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