King v The Queen

[1991] HCATrans 71

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IN THE--rI-I-GH COURT OF AUSTRALIA

Office of the Registry

Sydney No S59 of 1990

B e t w e e n -

LESLIE MAURICE KING

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

McHUGH J

King 1 13/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 MARCH 1991, AT 3.23 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:  If the Court pleases, I appear for the

applicant. (instructed by Brennan Blair & Tipple)

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

_ South Wales:  I appear with my learned friend,

-=MR o.c. FREARSON, for the respondent. (instructed

by S.E. O'Connor, Solicitor for Public

Prosecutions)

MASON CJ:	Mr Papayanni.
MR PAPAYANNI:	If the Court pleases. The importance of this

case is in relation to the fact that at the first

trial - it was a joint trial of the principal and

the accessory as it first started out. Of course,

the situation was that in relation to that the
second matter that is of importance is the fact

that the way that the indictment was framed in the

first trial and, having regard to what was said by

the Court in the first application to this Court -

which is set out in 161 CLR - and having regard to

that, there was some confusion by reason of the
fact that at the first trial, during the summing

up, the case for the Crown was put in a different

way to what it had been originally put.

It was originally put on the basis that

Matthews was the principal and the applicant was

the accessory. On that basis His Honour the trial

judge had in fact directed the jury that if

Matthews was acquitted, well then, the applicant

would also be acquitted. Now, when it was - a

further direction was asked in relation to that.

It wai then put on the basis - and this was the

basis of the retrial application - that a person or

persons unknown which may or may not have been

Matthews or someone else was the principal and that

the applicant was the accessory before the fact.

Now, that submission, of course, to the first

trial relied upon the fact that, in the first

place, the jury had to decide whether Matthews was
or was not the principal.	Now, the fact that the

jury decided that Matthews was not the principal

meant that if there had have been only one count,
one count as originally framed, then the applicant

would have been acquitted.

But when it came to the situation that what

was put to the jury was that a person or persons
unknown did it, then there was no inconsistency as

the Court decided in the first application that was

made to this Court. But by reason of the fact that

what was put at the first trial to the jury was put

before Matthews was acquitted, and that the same

direction could not be given to the jury on the

King 13/3/91

second occasion is the basis of the submission in

relation to this matter in the first place.

Judgment was given by Mr Justice Dawson, and I

propose to just go through a few of those matters to see where the Court of Criminal Appeal and the trial judge went wrong in relation to the fact as

to how it should be put on the second occasion.

On the second occasion it was put in the same

way substantially as to when the redirection was
made. That was to the effect that a person or
persons unknown, and it may be Matthews or someone

else who could be the principal, and that the

applicant was an accessory before the fact to that.

That direction, in my submission, was

incorrect. The second trial was on the basis that

a person or persons unknown was the principal, and

it could not have been Matthews or anybody else who

was named. It was a person or persons unknown and

the applicant was an accessory before the fact to

that. If that had been the way it had been put and

the jury had brought in a verdict there would have

been no difficulty.

Before going to that, my submission here in

relation to this matter is that the inconsistency

is shown by reason of the few quotes that I will

put to the Court. At page 433 of 161 CLR, it was

said there by Mr Justice Dawson at about point 3: However, in this case the sole reason why it

was said that a new trial was inappropriate

was that, upon .the Crown case as it was

presented, the verdict brought in against King

was unsafe, being inconsistent with the

acquittal of Matthews.

Now it is quite clear that was the only basis on

which it was put to the court.

Now it is quite clear that was the only basis

on which it was put to the Court. Now, in relation

to that the second paragraph becomes important

because it was said then:

It is well established that the

discretion to order a new trial should not be

exercised when the evidence in the court below

was not sufficiently cogent -

et cetera, and then it goes on to say -

In particular, the Crown should not be given

an opportunity to make a new case which was

not made at the first trial: R v Wilkes.

King 3 13/3/91

And then this is the part that is important:

If the verdict against King in this case was

inconsistent with the verdict in favour of

Matthews, then the Crown could properly

succeed against King upon a retrial only by

putting a new case.

Now that was the submission, as I understand it.

Then, what was said then, was the judgment of the

Court:

It certainly ought not be allowed to proceed

in any retrial upon a basis inconsistent with

the jury's verdict with the acquittal of

Matthews.

Now, that was not the basis of the submission of the inconsistency, as I understand it. That was

what was said by Mr Justice Dawson, in relation to

that matter, as being the determination of the

Court.

However, it does not appear to me that the two

verdicts given by the jury were inconsistent.

Well, we do not say that there is anything wrong with that decision. That was quite clearly

correct.

Now the next part I would just like to refer to was at page 435, the last paragraph:

The Crown during most of the trial

presented its case on the basis that King was

an accessory before the fact to a killing by Matthews. If that had been the case left to

the jury then there would have been substance
in the submission made on behalf of King that

the jury's verdicts were inconsistent. For

the case against King would then have been

that Matthews was the principal offender and,

that having been rejected by the jury in the

case against Matthews, there could be no

conviction of King as an accessory before the

fact.

Now that, in my submission, is an important part

there, and then at the last two sentences on that

page:

The identity of the killer was not essential

to King's guilt.

That is in the second direction that was made.

King 4 13/3/91

That was a case which was open upon the pleading because King was simply charged as a

principal. It was open upon the evidence

because it was clearly possible for the jury

to find that the deceased was murdered without

being able to identify the killer. It was not

the case which was presented by the Crown up

to the point at which the redirection was

given. While it was open on the evidence and

on the indictment, it ought not to have been

concealed until the last moment. For that

reason King was entitled to have his

conviction quashed.

Now, if the situation had been, as I

understand the Court is putting there, that if

Matthews had been the principal and that the

applicant had been the accessory to him and that

had continued and Matthews was acquitted, well then

the applicant was entitled to have his conviction

quashed.

The important part about this, in the whole of

that case, is that one matter was not cited to the

Court and this appears quite clearly from what was

said previously, that only section 346 of the

Crimes Act was, in fact, quoted to the Court.

There are two other sections of the Crimes

Act, and the Court has copies of those -

BRENNAN J: Section 346, did you say?

MR PAPAYANNI: Section 346 was the first section that was

quoted in the first case there, but the two other sections were not quoted. Section 346 says that:

Every accessory before the fact to any such

felony may be indicted, convicted, and
sentenced, either before or after the trial of

the principal felon, or together with such

felon, or indicted, convicted, and sentenced,

as a principal in the felony, and shall be

liable in either case to the same punishment

as the principal felon, whether the principal

felon has been tried or not, or is amenable to

justice or not.

Now, the situation in the first trial was that of a

joint count saying that Matthews and King had

committed the murder. That section 346 was relied

upon in that respect to show that on that

indictment as a joint count that Matthews could be

acquitted as it was joint and several, Matthews

could be acquitted and that the applicant could be
convicted as an accessory before the fact to a

person or persons unknown, having been the killer.

King 13/3/91

Section 371 of the Crimes Act, which is not important here but it does deal with accessaries:

In every case of felony, at Common Law or by

Statute, any number of accessories thereto,

whether before or after the fact, may be
charged with substantive felonies in the same
indictment, and be tried together, although
the principal felon is not included in such

indictment, or is not in custody or amenable

to justice.

The third section, which is of importance, is

section 378:

In any indictment against an accessory to

murder, or manslaughter, it shall be

sufficient to charge the felony of the

principal in the manner hereinbefore

specified, and then to charge the accused as

an accessory in the manner heretofore

accustomed.

Now, if one looks back to section 346, the

forms of indictment in relation to that in relation

to a principal and an accessory are set out and a

copy of that has been annexed to the outline of

submissions and it will be seen that where the

principal and the accessory are indicted together -

it states that:

after charging the principal with a felony,

charge the accessory thus, and the

Attorney-General -

Director of Public Piosecutions now -

aforesaid further charges that CD before the

said felony was committed in form aforesaid to

wit on the ..... day of ..... in the year

aforesaid, at ..... in the State aforesaid did

command the said AB to commit the said felony incite, move, procure, aid, counsel, hire and in manner aforesaid.

The second form is:

That some person or persons to the

Attorney-General -

Director of Public Prosecutions now -

aforesaid unknown, on the ..... day of ..... did

feloniously and maliciously murder .... .

and then it says:

King 6 13/3/91

the Attorney-General (DPP) aforesaid further

charges that CD before the said felony was
committed in manner aforesaid to wit, on

the ..... day of ..... in the year aforesaid, did incite, move, procure, aid, counsel, hire and command the said person or persons to the

Attorney-General (DPP) aforesaid unknown to commit the said felony in manner aforesaid.

So, you get there the situation as envisaged

by section 378 that if in fact in the first trial
that the indictment had been in accordance with

section 378, well then the indictment would have

said that Matthews did murder Mrs King and that

Matthews was the accessory before the fact to the

said murder.

McHUGH J:  You mean King?

MR PAPAYANNI:  King, I am sorry, yes. And if that had been

the situation and they had been indicted correctly,

half-way through the summing up when the Crown

said, "You cannot put, if Matthews is acquitted,

well then the accessory, King, must be acquitted

also", the judge would have had to have said,

"Well, it is too late now to put a further count in

and it is too late to amend. You cannot amend",

because under the authorities in relation to that

have always been that you cannot put a further

count in, in any case, and this would have gone

further than being just an amendment.

Now, if we take the situation - - -

DAWSON J: Section 378 does not require that form of

indictment, it merely says:

it shall be sufficient -

and there are numbers of cases in which, of course,

it is appropriate to charge two persons as

principals because it is not known which, in fact,

were the principal or an accessory after the fact

and that is the division.

MR PAPAYANNI:  Yes, but the difficulty about this in this

case, of course: it should never have been a joint

count in the first place. Although one can say,

possibly - on my submission that should never have

been a joint count in the first place because if

you have a joint count, or have any count, you

cannot find an alternate verdict within that count.

Now, if this trial had been put properly it would

have been that Matthews was the principal.

DAWSON J:  Which trial, the first trial?

King 7 13/3/91

MR PAPAYANNI:  The first trial - it would have been that

Matthews was the principal and King was the

accessory, one count. The second count would have

been person or persons unknown was the principal

and King the accessory. The jury would have been,

on the second way it was ..... the jury would have

brought in a verdict of acquittal - - -

DAWSON J: That would not necessarily be. If they divided

it up - it may have been if the Crown had put the

case as it finally put it that he was an accessory

to the fact or, alternatively, to some person or

persons unknown.

MR PAPAYANNI:  Yes, but the difficulty about that is you

cannot have, in one count, an alternative verdict.

DAWSON J: Well, you can have another count, as an

alternative.

MR PAPAYANNI: Yes, that is right. Yes, but you could not,

at that stage, put in another count because it was

too late.

DAWSON J: Well, that is as it turned out. There was a way

of framing the indictment in the first instance so

as to encompass what was put, albeit belatedly, by

the Crown and perhaps that should have been done

but as it was drafted, and it was perhaps not in
breach of any section of the Act, the count as it

was framed covered the situation.

MR PAPAYANNI:  Yes, but section 378 goes further, in my

submission. It says ttshall be sufficient''. Well,

that, in effect - you have got section 346 already

there. Section 371. You have got section 378.

Now, there is no point in putting section 378 in unless it means that it is obligatory to charge in

relation to an accessory and a principal in the

same indictment that if you have two, a principal

and an accessory charged in an indictment, you must

set it out under that section although it does not	specifically state that. There would be no reason
to put it in. If you can charge anybody under
section 346, why put in section 378?

DAWSON J:  I can suggest a reason, because of section 346.

MR PAPAYANNI:  Yes, but this deals with murder only. It

does not deal with every case. And it says, in

relation to murder, that the situation should be -

that is what my submission is in relation to

section 378, in any case, that it should be put on

the basis of an accessory count as set out. Now,

if that had been done, as I said, there would have

been no confusion about what the Crown case was.

You would have had the situation of having two

King 13/3/91

counts in, an alternate count, because under - if

you have got one count in, that A and B did murder

C, under that you can find that A murdered C or B

murdered C or both murdered C; A and B murdered c.

But you cannot find in relation to that that A murdered Band B murdered C.

The court cited Merriman's case in King's case

here. Merriman's case is not law in New South

Wales; Sperotto is the case that overruled.

Merriman refused to follow Scaramanga's case and
Merriman followed Fenwick's case in New South Wales

which was overruled by Sperotto's case. So the law

in relation to Merriman's case is not the law here.

The law in relation to Sperotto's case is the law

in New South Wales.

For that reason, in Scaramanga's case it was a

situation you cannot have two different crimes

within the one count.	You can only have that A and
B murdered C;	you can have A murdered C or B

murdered C or A and B murdered C but you cannot

have that A murdered B or you cannot have an

alternate verdict that A murdered C and B was an

accessory to A murdering C within the one count.

BRENNAN J:	Mr Papayanni, for those of us who are not blessed with familiarity with Scaramanga and
Sperotto, what you have been saying is not
comprehensible. Perhaps you could tell me what is
the point that you are making in respect of the
trial in which the applicant was convicted?

MR PAPAYANNI: That under one count -

BRENNAN J: Which count? The·count of the present

indictment on page 17

MR PAPAYANNI:  Or even a count in the present indictment.

It was only a general account anyway. But I am

talking about the first count in the first

trial -

BRENNAN J:  Why? Why are you talking about that?

MR PAPAYANNI:  Because that was what was before the court in

that particular case.

BRENNAN J:  When the court dealt with it.

MR PAPAYANNI: In the first occasion.

BRENNAN J: Yes.

MR PAPAYANNI:  And the situation here, as put by

Mr Justice Dawson, was saying that the difficulty that arose in that trial, as His Honour pointed out

King 9 13/3/91

on page 436, arose because of the form of the

indictment. Then it was said that:

The section was not intended to give rise to a

form of pleading different to that used at

common law in which the proper course was to specify the degree of participation of these

accused - whether as principal or accessory -

when they were joined in the same indictment

of the same offence. The aim in framing an

indictment should, in fairness, be that

everyone, particularly the accused, knows the

nature of the charge brought against him.

Now, in the first count you had a joint count.

BRENNAN J: But why are we concerned about this?

DAWSON J:  And then it goes on and says Sperotto's case, of

course, establishes that where you cannot identify

the degree of participation it will be proper to

charge a number of offenders as principals.

MR PAPAYANNI:  Yes, but what I am putting is that the

confusion exists being carried over into this

second trial. Now, what happened on the first

trial was that if there had been an accessory count

in that of Matthews being the principal and King

being the accessory, he would have been acquitted.

King would have been acquitted. And, on the second

matter, that a person or persons - - -

DAWSON J:  Or else at the time that the Crown changed tact

there would have had to be an application for an

amendment and so on and with all the difficulties

that would - - -

MR PAPAYANNI: Yes, well, let us assume that was done.

DAW~ON J: Yes.

MR PAPAYANNI:  You see, if we assume that was done and that

it had gone to the jury, the jury would have

acquitted King on the first count, that is that

Matthews was the principal and that King was the

accessory. And they would have convicted him on

the second count which was that a person or persons

unknown was the principal and King was the

accessory.

DAWSON J: Well, the fact was that at the first trial the

count was not put in that form.	It was not
specific.	No particulars were sought and therefore

it offered the Crown the opportunity to manoeuvre

in the way in which it did. It was suggested that

that was not a satisfactory form of pleading in a

criminal case. It was suggested that the

King 10 13/3/91

indictment ought to be framed in a different way.

That was not done in the second trial. If that advice had been heeded, the indictment would have charged the accused with murder by way of being an

accessory before the fact to some person or persons

unknown presumably.

MR PAPAYANNI: That is the point I am making, Your Honour.

DAWSON J: But it did not. But the form of the count is not

fatal.

MR PAPAYANNI:  Yes, but the point I am making is this, that

what happened on the first trial, by reason of the

joint count, was that the applicant was acquitted -

or would have been acquitted - within this

substantive charge there were in fact two counts:

one that Matthews was the principal and King the

accessory. On that, by that jury, he would have

been acquitted. On the second one, within that

substantive count, there was a second - whether it

was right or wrong - count that a person or persons

unknown was the principal and King was the

accessory.

Now, on that second matter he was convicted. It meant that on that second matter on his second trial he came before the jury solely on the basis

of the fact that even though it was a substantive
count he was only being charged that a person or

persons unknown was the principal and King was the

accessory. He could not, on the second trial, be

convicted of the fact that Matthews was the

principal and that he was the accessory to

Matthews.

BRENNAN J: Is that because of autrefois convict or acquit?

MR PAPAYANNI: 

No, I think perhaps it could be autrefois

acquit, but it would be issue estoppel, at least,
or a double jeopardy and that is pointed out in my

submissions. 

McHUGH J: It cannot be issue estoppel, can it, because you

have got no verdict in your favour. At best it has

got to be double jeopardy or abuse of process.

MR PAPAYANNI: Well, in my submission, the issue was there,

in the first trial, within that substantive count

there are these two counts, as I have put, of

accessory, and on the first trial he had to be

acquitted of the fact of Matthews being the

principal and he being the accessory. Now, if the

count had been framed correctly, that count would

have said, Matthews was the principal and King was

the accessory. Now that count, even though it was

King 11 13/3/91

not laid out in that form, was within that

substantive count and therefore he was acquitted.

McHUGH J: Yes, well you do not have to worry about counts, do you? Your point is that you stood trial as an

accessory to the murder by Matthews of Mrs King.

On a new trial you could not be tried on that

charge again, - - -

MR PAPAYANNI: That is true, yes.

McHUGH J: - - - as a result of what Mr Justice Dawson said

and as a matter of general principle anyway, one

would think, but is the substance of your complaint

that in substance you were tried on that identical

charge again?

MR PAPAYANNI:  We were, yes. See the position was that if

the trial had gone through on the basis that a

person or persons unknown was the principal and

King was the accessory, well there was no worry

about that. He could have been convicted. But the

way that it was put to the jury was that a person

or persons unknown, which could have included

Matthews, was the principal and we were the

accessory to that. Now if they had said that a

person other than Matthews, that would have been

all right, but the difficulty was that we were in

this double jeopardy situation of we would have

been acquitted on the first trial; at the second

trial we could have been convicted on the basis

that Matthews was the principal and we were the

accessory.

Now, on the second trial, the whole of the

evidence in relation to Matthews was not presented.

The only evidence that was presented to the jury

was evidence in relation to Matthews and the most damning evidence of all, which was after the fact

of his carrying out this shooting, Matthews was

supposed to have rung Siemsen, who was the

informer, and said, "I've done it, three high, two
low."	And of course the jury would have had to

find on that, that Matthews was the principal.

DEANE J: Is not your problem on Justice Dawson's judgment

in King, on page 435 about 8 lines from the bottom,

where His Honour expressly says:

The different case was that the murder of the

deceased was at the hands of some person who

may have been Matthews.

MR PAPAYANNI:  That is the way it was presented in the first

trial.

King 12 13/3/91

DEANE J:  No, but what His Honour is saying is there was

nothing inconsistent in a conviction on that basis

with the acquittal of Matthews. The words I am

pointing to your attention are "who may have been

Matthews".

MR PAPAYANNI: That is the way it was presented on the first

trial. The situation was - - -

DEANE J: But is that not also the way it was presented on

the second trial?

MR PAPAYANNI:  Yes, but you see the second trial happened

after Matthews was acquitted. At the first trial

the jury would have been instructed - a person or

persons unknown which could have been Matthews, or

Siemsen or someone else was the principal and King

was the accessory. But the jury should have been

told that if you find it is not Matthews and you

acquit him, you cannot convict King in respect of

Matthews being the killer.

DEANE J:  What if Matthews had been acquitted of the killing

in a separate trial?

MR PAPAYANNI: That does not apply, in my submission. The

point about it is there are special rules in

relation to a principal and an accessory being

charged in the same trial. They do not apply if an

accessory is charged before the principal or if a

principal is charged before the accessory. The law

is quite clear on that. But a different situation
arises when the principal and the accessory are

dealt with in the same trial.

DEANE J:  I do not want to take time, but I think what you

are putting is inconsistent with what is said in

that sentence.

MR PAPAYANNI:  The way I understand it, Mr Justice Dawson is

only putting there what was put at the first trial.

McHUGH J:	What was openly put at the first trial.
MR PAPAYANNI: What was openly put, I am sorry.	If at the

first trial the judge had said, "Well now, a person

or persons unknown is the principal and King is the
accessory, you can convict on that basis. But you

can also convict King on the basis that Matthews is

the principal and King is the accessory."

DEANE J:  Why do you not spell out the verdicts on the first

trial? As against your client, the verdict has to

be read as being that -

the murder of the deceased was at the hands of

some person who may have been Matthews.

King 13 13/3/91

MR PAPAYANNI:  No, it has to be "other than Matthews"

because if the jury found at the first trial that

it was Matthews - - -

DEANE J: Well, what you are saying is inconsistent with

what Justice Dawson, with the concurrence of

others, said.

MR PAPAYANNI: Well, I do not see that myself. If the jury

had found that Matthews was the principal they would have convicted him. The evidence was no

different at the second trial.

DAWSON J:  The thing is that so far as your client's

conviction at the first trial is concerned, the

identity of the killer was not at all important.

It was clear that he had engaged in negotiations

with Siemsen to have the deceased killed by

someone - at least the jury could take that view.

It was clear that she was killed.	It was clear
that she was murdered.	But the identity of the

murderer, so far as your client's conviction,

really does not matter.

MR PAPAYANNI: That is correct, Your Honour, but the

difficulty about that situation is that if the

identity of the killer had been Matthews, had been

known - see, the situation is quite simply, if the

identity of the killer is not known there has to be

some nexus between Siemsen and the unknown killer

and there is no such nexus.

The situation was, in the first trial, the jury should have been told that - - -

DAWSON J:  I do not understand that. The jury may well have

come to the conclusion, "Well, it was either

Siemsen or Matthews that killed the deceased.	We
don't know which but that doesn't matter."	It was
clear that whichever one of them did it, your
client arranged for it to be done.

MR PAPAYANNI:  Yes, but they found Matthews acquitted.

DAWSON J: That is right, but that is not inconsistent with

that. I mean, the jury, in the case of Matthews

when he was charged as a principal may well have

had a reasonable doubt but that does not affect the

proposition I put to you.

MR PAPAYANNI: Well, in my submission, it does because they

could not find Matthews was the killer in the first

trial and acquit him.

DAWSON J:  They do not have to. They say, "It may have been

Siemsen, it may have been Matthews, it may have

King 14 13/3/91

been someone else", but whoever it was, you client

arranged for the killing -

MR PAPAYANNI:  What I am putting is that at the first trial

the jury did not find that Matthews was the killer.

They acquitted him. So, they did not find that

King was the accessory to Matthews.

DAWSON J:	What the jury in the second trial could not have done is come to a verdict on the basis that
Matthews was the killer.

MR PAPAYANNI: That is the point I am putting, because they

were told that they could. They were told that a

person or persons unknown - if they had said "full

stop" there and King was - - -

DAWSON J: Yes, and that is where the difference is, because

you see, it was not proved against Matthews beyond

reasonable doubt. He was entitled, therefore, to

an acquittal and you could not proceed in the

second trial on the basis that beyond reasonable

doubt Matthews was the killer. But, that does not

mean that the jury were not entitled in the second

trial to conclude that he may have been - although

it would not have sustained a conviction against

him - within the range of people who were the

possible murderers.

MR PAPAYANNI:  If they could not find that Matthews was the

killer beyond reasonable doubt at the first trial,

they could not convict King of being an accessory to Matthews, but if they found, as they did, that

it was not Matthews but a person unknown and,

therefore, convict King, that was all right. But,

at the second trial what was put to them was,

without giving all the evidence in relation to

Matthews and the evidence on which he was

acquitted, they gave the evidence of Siemsen's connection with Matthews, and the most damming evidence of all, that after the felony, which was

that later - that "I did it", or "I done it", he submitted as not admissible - and I will come to said. On that, the jury would have to come to the

conclusion that Matthews was the killer because

they did not hear all the evidence.

In the second trial, the jury obviously came

to the conclusion that Matthews was the killer. If

you allege - and the indictments are set out there

to show clearly that if you allege that it is a

person or persons unknown - you have to prove that

it is a person or persons unknown and you cannot

prove that it is A or B or C. You may prove that

the accessory met a person, unidentified - - -

King	15	13/3/91
DAWSON J:	I do not follow.	Why you cannot you, if you

allege that it is person or persons unknown say,

"It may be A, B or C, but we can't say which"?

MR PAPAYANNI: That is different altogether because you may

have a situation where the applicant may have gone

to Siemsen and said, "Look, I want to get someone
to kill my wife", and he gets three people and they

are all there at the same time - - -

DAWSON J: Perhaps I should have put this: AB or C or some

other person whom we cannot identify; it may be any

one of those four.

MR PAPAYANNI:	No, but once you say that, that it could be Matthews, you are going against the voting in the
first trial. If you had left out Matthews - see
why was the evidence admissible in relation to Matthews in the second trial, is the important point? What was the relevance of that in relation
to the indictment other than to show that Matthews
was the killer?
DAWSON J:	The evidence against Matthews was that it was

evidence given by Siemsen and one view that could

be taken about it and probably the view that was

taken at the first trial is that Siemsen gave that

evidence about Matthews in order to extricate

himself.

MR PAPAYANNI:  Yes, but there is other evidence from the police in which - - -

DAWSON J: That is true but - - -

MR PAPAYANNI:  - - - there were faked admissions and that is

obviously why he was acquitted on the first trial because they convicted the applicant on the first

trial so they naturally believed Siemsen as to that

part, but the second trial - see evidence was

alleged on the second trial which Your Honour said

was admissible only as against Matthews, was of the

fact that he came to Siemsen and got this rifle

from him and fired a few shots into a slag heap and

they were identified as being similar to the ones
that killed Mrs King.

Your Honour said that was only admissible against Matthews in the judgment here yet that was

given in evidence against King in the second trial

solely for the purpose to show that Matthews was

the killer, and then added to that was the evidence

that Siemsen said after the killing, which we say

the procurement only went up until the felony was

committed and there is an authority for that, I

will deal with that later, but after that this

King 16 13/3/91

evidence was led that Matthews rang up Siemsen and

said, "I did it".

So you have got those two factors - on those

two factors alone and leaving out the evidence that

was given at the first trial which showed that

there were fake admissions and so on in relation to

Matthews and upon which he was acquitted and they

led only that evidence. They could not lead the

other evidence because it was not admissible, but

the evidence in relation to the cartridge was only

admissible against Matthews and the evidence in

relation to what was said after the felony had been

committed was not admissible. Those two factors

showed that Matthews, undoubtedly, on the evidence

was the killer.

Now, if you have got an indictment which says,

as I point out in raising that first matter, if an

indictment says in one count that a person or

persons unknown did it and the second count is that

Matthews was the principal well, then, if Matthews

is acquitted you cannot lead the evidence that was

admissible only against Matthews in the second

trial and that is what happened here, except for

the admissions and the other direct evidence from

the police in relation to Matthews.

That is why the situation became a double jeopardy situation, in my submission. What should

have been done on the second trial was the

direction should have been a person or persons

unknown did it. If that had been left to that

but to suggest that Matthews could have been a

killer went directly against the issue in the first

trial. Now, this was a joint trial still - a

retrial of a joint trial, that is why it was

important.

BRENNAN J: It was not, was it? It was an indictment

afresh.

MR PAPAYANNI:	No, it was a retrial, Your Honour.
BRENNAN J:	It may have been but this trial took place under

the indictment which appears at page 1.

MR PAPAYANNI: That is correct. They put in a new

indictment because the rules in relation to that
are so lax these days, in relation to

indictments - - -

BRENNAN J: Well, whatever the rules may be, that is the

fact. That was the issue joined between the Crown

and the accused.

King 17 13/3/91

MR PAPAYANNI: That is right, but it was not. Matthews was

not in it.

BRENNAN J: Well, the question was simply then whether or

not the accused had procured the murder of his wife

by somebody.

MR PAPAYANNI:	By somebody unknown, not somebody known.
BRENNAN J:	By somebody.
MR PAPAYANNI:	Known to somebody, that is what - I differ

with you, Your Honour.

BRENNAN J: Now, when I say - yes, I understand we differ.

But when you say "unknown", that simply means that

that person is not specified.

MR PAPAYANNI:  No, in my submission, it means unknown to the

Attorney-General because the situation may be that

the accessory goes to a person unidentified and

that person is seen committing the crime. You have

got a situation there where you have got a person

unknown. But if you have got a person who is known

and you want to allege that that person committed

the crime, you must put it in the indictment.

BRENNAN J:  Is it the person who is unknown or the guilt of

that person that is unknown?

MR PAPAYANNI: No, it is the identity, in effect. His name

is unknown, not the guilt.

BRENNAN J: In that case the forms leave a great deal of a

lacuna.

MR PAPAYANNI: Well, yes. The difficulty, my submission is,

in the first place, in any case, is that

section 378 really is an obligatory section where,

that in a case of murder, there would be no point

in putting it in otherwise.	It is worded in such a
way to suggest that the forms of indictment that

are put are the forms that should be carried out.

So, the situation, as I pointed out, in

relation to that, was what the directions were to

the jury were to the effect - the part, on page 165

where the direction was given, line 14:

If I can put it I hope simply in the

terms of this case, if you are satisfied that

Leslie King was a party to an agreement that

his wife be killed by some other person and

that agreement did in fact result in the death

of the deceased, whether it was -

King 18 13/3/91

if he had left it there well then it would have

been all right but when His Honour went on to say:

whether it was at the hands of the man called

Matthews, or Siemsen or anybody else, then the

accused is liable to be convicted.

That direction was also repeated in similar fashion

on page 226.

DAWSON J:	And the next paragraph is relevant too, yes.
MR PAPAYANNI:	Yes.

You have been told that it is no part of

the obligation of the Crown to prove to your satisfaction who it was that actually pulled

the trigger. I will confirm that is correct.

The Crown must prove however that the death

occasioned by the person who pulled the

trigger was caused as a result of the

arrangements which were made by the accused.

We have no cavil about that situation except the

fact that Matthews was included as being the

person. If it had said Siemsen or anybody else,

well, that would have been all right.

DAWSON J:  So it would have been all right if it had said

"by a person or persons unknown other than

Matthews"?

MR PAPAYANNI: Other than Matthews, yes, because Matthew had

been acquitted.

BRENNAN J: But the accused had not been acquitted of a

murder done by Matthews.

MR PAPAYANNI: Well, he had, in effect, because - - -

BRENNAN J:  No, not in effect.

MR PAPAYANNI:  - - - it was a joint trial, he could not have

been convicted.

BRENNAN J:	Why could he not have been convicted?
MR PAPAYANNI:	He could not be convicted - Mr Justice Dawson

said that in his judgment, in any case, but the

situation at a joint trial has always been in

relation to an accessory and a principal where

there is no real difference as in Darby's case,

which is a conspiracy case and which does not

directly apply, perhaps, but is quoted very often

in relation to this type of situation. You cannot

acquit at the joint trial a principal and convict

the accessory and vice versa.

King 19 13/3/91

BRENNAN J: That is a surprising result, is it not, if the

only evidence of the actus reus is evidence

admissible against the accessory and not against

the principal.

MR PAPAYANNI:  The situation may be different, although it

has never ever been said to be different because if

the jury find - you see, we found in Goldie's case,

which was cited the other day, that there was no

offence in relation to one person and there could

not be an accessory or a knowingly concerned in

relation to that.

BRENNAN J:	You can very clearly that if the counselling or procuring, aiding or abetting is directed only to
the acts of one named person and it is found that
that person did not do the act, of course there
must be an acquittal of the accessory.
MR PAPAYANNI:	You see, the form of the indictment is that A

is the principal and Bis the accessory. Now, if

the jury acquit A they cannot convict B, at the one

trial I am talking about, because of this

arrangement that exist there. There is no doubt
whatsoever, the law is quite clear, that different

circumstances exist in relation to - and it makes

provision - the Act. The laws make provision for
the fact that an accessory can be convicted even

though a principal is not brought to trial and even though he is acquitted. He can be tried before him

or after him and we have had a number of occasions

where the law has shown where an accessory is

convicted, a principal is acquitted, then they come

before the court and they say, "We want to be

acquitted also.", and the court says "No." That is

a different situatio'n totally in relation to

separate trials.	But where you have a joint trial
the situation is made easy for the Crown.	The

Crown always like a joint trial because evidence

that is strictly admissible against the principal

and it is lost sight of in the fact that in the is very often not admissible against the accessory	accessory's case you must prove that the principal
committed the murder.

So, as you have got a joint trial, the Crown

leads evidence in relation to the principal to show
that the principal committed the murder and they
lead evidence against the accessory to show that he

was the accessory before or the accessory after,

whatever it is.

BRENNAN J: They have also got to prove, as against the

accessory, that the alleged principal offender

committed the crime.

King 20 13/3/91

MR PAPAYANNI: That is correct and that is the important

part.

BRENNAN J:  But it is not sufficient to prove it as against

the principal only.

MR PAPAYANNI:  And you cannot prove that the principal

committed the crime by heresay evidence, as was

tried to be done in an accessory after the fact, by

saying to the accused, well, did so-and-so commit

the crime? He says, yes. That is not admissible

in relation to the fact of the principal crime

being committed, so in this situation you have got,
in the first place, you must prove that a person

unknown did it. In the first trial, the way it

started off, was that Matthews did it. Then later

on it was any person, including Matthews did it.

That was the way it was conducted. But the jury

obviously would not, or could not, have convicted

King and acquitted Matthews, of King being

accessory to Matthews. They convicted him and that

is what this Court decided by saying that it was

not inconsistent in the first trial.

MASON CJ:  Mr Papayanni, it is now 4.15pm. The witching

hour has arrived.	We will adjourn until 10.15
tomorrow.

AT 4.16PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 14 MARCH 1991

King 21 13/3/91