King v The Queen

[1991] HCATrans 73

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IN THE HIGH 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 22 14/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 MARCH 1991, AT 10.16 AM

(Continued from 13/3/91)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Papayanni?

MR PAPAYANNI: If the Court pleases. Yesterday I was

dealing with this question of double jeopardy and allied to that, of course, would be the situation that at the second trial the trial judge refused

the application to allow the acquittal of Matthews

to come before the jury. I just referred to

Storey, in that regard, 140 CLR 364,

Mr Justice Jacobs at 407, 408 and 409 and at the

bottom of 408, the last paragraph:

In my opinion, it is not open to a jury

in a later trial to conclude that all the
elements of an offence for which the defendant

was tried and acquitted in an earlier trial

are proven in the later trial. To find all
the elements of an offence proved is to find

that the defendant committed the offence. It

is widely recognized that this is not

permissible.

Then he quotes certain quotes and then said:

Consequently, every effort should be made at

the later trial to avoid evidence in that

later trial taking such a form that the jury

could conclude therefrom that all the elements

of that offence are proven; if despite those
efforts the evidence for some reason or

another comes to be admitted, then the

clearest and most specific direction is

required to be given to the jury that they

must not reach the conclusion that all those

elements are proven. The determination in the

earlier trial that all the elements were not
proven against the defendant must be accepted

as a correct finding.

And also on page 410, where His Honour said, in the

last paragraph and also the second paragraph - I

will not read the second paragraph - but the last

paragraph:

Upon analysis it will be found that there

is double jeopardy both where the matter

sought to be proved is an element of the

second offence and where that matter consists

only of a fact relevant to the establishment

of an element of the second offence. The

defendant may be convicted of the second

offence upon the strength of the conclusion

reached in respect of the fact, even though no

more than a fact relevant to a constituent

fact of the second offence, and, if that
conclusion is contrary to a fact which is a

constituent of the first offence and which has

King 23 14/3/91

been found in favour of the defendant, then

that is double jeopardy. He is convicted of a

second offence upon the strength of a fact

which was an element of an offence for which

he had been tried and which could be shown to

have been conclusively determined in his

favour.

Of course, in that respect at page 236 of the

appeal book, line 32, it was put by me there:

If there was a person unidentified, one

person unidentified or a number together, it

does not matter very much, but one person

unidentified who killed by arrangement with

Mr Siemsen, that is one crime. If there is

Mathews, and the Crown has submitted to the jury that it was Mathews, then if Mathews

committed that crime and we are alleged to

have been an accessory before the fact to

Mathews, that is another crime, a second

charge and if somebody else at Mathews'

instigation committed that crime, it is

contained in that Mathews crime because

Mathews was indicted for murder, which means

that he can be an accessory before the fact or

a principal in the first degree.

So you have two charges, in effect, in relation to this matter if the Crown, as they have

submitted to the jury, that Matthews or somebody at

his instigation committed this crime, you have two

charges, and so on.

On that situation there, where it was asked

for a direction, and in the last paragraph:

It is incumbent therefore that

your Honour has to direct the jury and
your Honour has ruled against me on this, but

I am putting it, your Honour has to direct the

somebody at Mathews' instigation committed	jury that they cannot find that Mathews or
that crime because that is not the charge.

BRENNAN J:  Mr Papayanni, it has never been found in a trial

as between the Crown and King that Matthews did not

kill?

MR PAPAYANNI:  The position is that we say that an element

of the offence, if King had been charged, that

Matthews was the principal and that he was the

accessory, in a properly accessory count, then the

situation would have been that it was an element in

the charge against King that Matthews be found to

be the principal.	And that King be found to be the
accessory.

King 24 14/3/91

When the situation comes about that the charge

is that a person unknown committed the crime and
King is the accessory, the elements are, one, that

a person unknown committed the crime; and, B, that

King was an accessory to that person unknown.	But
the way it was put in this case, of course, was

that King instigated an agent to get somebody to

kill his wife.

You have got the situation there, the connection between King and the agent, but you have

to have the connection between the agent and the

person unknown. And the only evidence that was led

in that respect was in relation to Matthews as

being the killer. And the Crown, which, as I

understand Mr Justice Dawson's ruling, was that the

second trial was not to be conducted upon the basis

that Matthews was the principal and yet the Crown

addressed on the evidence - as I will come to in a

moment, the two vital matters in this case that

were led in the second trial, without leading the

admissions on which he was obviously acquitted,

they led the two vital elements: one, this

conversation after between Matthews and Siemsen,

"I've done it."; and then, the second matter was

that Siemsen gave evidence that Matthews received
the rifle and fired certain cartridges into the

slag heap and those cartridges were identified as

coming from the weapon that murdered Mrs King.

DEANE J:  Mr Papayanni, can I divert you for a minute?

Assume that on the first trial the evidence had

been quite different to what it was and in addition
to the evidence that was admissible against

Matthews and King there had been a confessional statement by King that he had given Matthews money

to kill his wife and that he had seen the killing

from a window of the house and that that

confessional statement was not admissible against

Matthews. Now, as I understand your proposition,

if the charge against King had been of being an

accessory to the killing by Matthews, if Matthews

was acquitted it would matter not that that

confession which was not questioned had been made,

King would have to be acquitted as a matter of law.

Is that so?

MR PAPAYANNI: Well, as I understand it, that is the

position.

DEANE J:  What is the best authority that supports that

proposition?

MR PAPAYANNI: Well, as a matter of fact it is not reported

but the Giorgianni first appeal was on the basis -

on that case, the Giorgianni reported case, you may

remember, but on the first trial there was a joint

King 25 14/3/91

count that Giorgianni and the truck driver had in

fact murdered these people. Then, on that basis,

there was a verdict of manslaughter against

Giorgianni and an alternate verdict of culpable

driving against the driver. Of course it was held

there that as the principal was not convicted in

relation to manslaughter - that was by the Court of

Criminal Appeal - that he could not be convicted.

DEANE J: Are you aware of any statement in this Court that

supports that proposition?

MR PAPAYANNI:	Not offhand, Your Honour.
DEANE J:	Thank you.
MR PAPAYANNI:	I am sorry, Your Honour. But Glanville

Williams refers to that situation in the second

part. Usually the situation is that there may be

an admission of, say, in this case, from King, that

Matthews committed the crime. But if he were

present at the crime and saw it and was nearby

ready to assist, he would be charged as a principal

in the second degree.	You would not have him
charged as an accessory before the fact.	And if he

were charged as a principal in the second degree,
well then Matthews could then be convicted and King acquitted - I am sorry, the other way around. King

could then be convicted because he would be a

principal in the second degree.

Normally, the situation would not go as far as

Your Honour said. There would be a situation where

if he said, "I was present and saw it" he would not be charged as an accessory before he would be

he might say, as a matter of hearsay, "Yes, I know

charged as a principal in second degree. Well, in

those circumstances, King could be found guilty and

Matthews acquitted.

Now, the situation shortly - I do not propose

to go through all the evidence in relation to this

matter because much of it is the same - the

situation was that Siemsen, as the Court probably

knows, gave evidence in relation to what Terry

Siemsen had said and he had got him to do certain

acts. One of those acts was to attempt to kill

Mrs King at the family court by use of a syringe with poison in it - strychnine I think it was - and

that was reported back to the applicant and he was

told about it and that is how that evidence got in.

We say, that evidence was not admissible

because under no circumstances could Terry Siemsen
be an accessory before the fact to the murder of

Mrs King. He died shortly afterwards but he could

King 26 14/3/91

not have been an accessory, so any evidence in

relation to him did not come within the accomplice

rule. He was not an accomplice to the murder of

Mrs King so the usual Baskerville direction in relation to the dangers to convict on the evidence of an accomplice could not come in in relation to

Terry Siemsen.	The same situation applied to
Miss Scealy.	She was not an accomplice in the

crime of murder, she was assisting Siemsen in

relation to keeping wait while he went out there

and he made one effort himself. Siemsen could not

then have been an accessory by reason of - he did

not go so far as to attempt, he only went there and

pointed a gun at her and could not do it. And then

after that, of course, there was Matthews.

Now, Matthews could not be an accessory before

the fact to the murder of Mrs King because he was
charged with an indictment giving a substantive
offence and by reason of his acquittal, by that

count he was acquitted of murder; he was also

acquitted of being an accessory before the fact of

murder. So he could not be an accessory before the

fact in a sense that he obtained somebody else to

do the murder for him.

So it was maintained that all this evidence in

relation to Terry Siemsen, Matthews and Miss Scealy

was inadmissible. And, of course, a lot of the

evidence was in a narrative form. There would be a

report back to Siemsen by his brother as to what

had happened, which was not admissible anyway under

Tripodi's case as being a statement or an act with

a statement in furtherance of a common purpose.

Now, the evidence that was most damaging, which I pointed to, was shown on page 38 - 37 it

started. On page 38, this is Siemsen saying that

Matthews rang him on the phone shortly after he had committed the act:

A. He said on the phone -

this is Matthews "said on the phone" -

"It's done, three low, one high.	Have the
money ready by Saturday."	And I said, because

I was waking up, "What was that?" and he said

"I've done the job, three low, one high. Get

the money ready by Saturday." and I said

"Banks aren't open on Saturday, he would

probably have to wait till Monday. I would

have to get in contact." and he said "Ok, I'll

ring on Sunday and see how you're going." and

hung up.

King 27 14/3/91

That was after the shooting of Mrs King. The Court of Criminal Appeal, on pages 279 to 280, dealt with

this matter and they dealt with the whole of the

evidence starting on page 277, line 5, he referred

to Tripodi v Reg:

once reasonable evidence of the preconcert is
adduced, evidence of acts or words of one of

the parties in furtherance of the common

purpose which forms an element of the crime

becomes admissible against the other or

others -

and referred to a reference there. And then -

The basic reason for the admissibility of

such evidence "is that the combination or

preconcert to commit the crime is considered as

implying an authority to each to act or speak

in furtherance of the common purpose on behalf

of the others".

The other element going to my opinion

that the evidence was admissible is that on

the account given by Mr Siemsen, it was open
to the tribunal of fact to be satisfied that,

so far as the appellant was concerned, he and

Mr Siemsen acted in pursuit of the one common

purpose from the time they agreed that

Mr Siemsen would arrange for Mrs King to be

killed, until she was in fact killed in

October 1983. The only person with whom the

appellant made any direct arrangement was Mr

Siemsen. It was not until after Mr T.

Siemsen's deat~ that Mr King was told that he

had been the one paid by Mr Siemsen to kill by

Mrs King and who had made the unsuccessful

attempt to do so. The appellant was aware of

the name of Matthews -

et cetera. And then on page 278 -

It may be that a tribunal of fact could have

found, if asked, that there were two separate

criminal enterprises undertaken between the
appellant and Mr Siemsen, the first ending

with Mr T. Siemsen's death and the second

beginning when the appellant and Mr Siemsen

agreed to pay Mr Matthews to do the killing.

To my mind however, it seems more realistic to

regard what was going on between the appellant

and Mr Siemsen as a single criminal

enterprise, the common purpose of the two of

them being to bring about Mrs King's death.

In my submission, that is not correct because it

does not go to the elements of the charge because

King 28 14/3/91

the elements of the charge here are not the attempt to kill Mrs King and the element of the charge here

is a person or persons unknown.

Tripodi's case is quoted and so on, and then

on page 279 at about line 12:

The same submission was made concerning

Mr Siemsen's evidence about his dealings with
Mr Matthews. On the basis already mentioned,

I think it also was admissible. There was a

further submission in regard to the evidence

concerning Mr Matthews. This was that the

phone call Mr Siemsen said he had received

from Mr Matthews early in the morning of

28 October 1983 was in a different category

from his evidence about earlier phone calls

and conversations. It was said that this

phone call took place after the common purpose

had been completed.

Well, the submission was that it had taken place

after the felony had occurred.

Thus, immediately upon the death of Mrs King

the basis for receiving what would otherwise
be hearsay evidence against the appellant came

to an end. This submission, in effect, seeks to adopt the idea recognised in Tripodi, that

although the actions of all those engaged in furtherance of a common criminal purpose are

wholly unlawful, nevertheless each, when doing
something in furtherance of that common

purpose, will be treated as an agent of all

the others. Somewhat ironically, this idea

fits in well with the language of "contracts"

to kill which criminals are popularly supposed

to use when, to use another legal term, they

"hire" themselves out for the purpose. In

this area quasi contract and unconscionability

go hand in hand. If the appellant wants to

rely on the language of contract, however, the

submission must fail in the terms in which it

is put, because in those terms the common

purpose involved both the killing of Mrs King

and the payment of whoever killed her.

Of course, the authorities say that the procurement

to commit a felony only goes up to the time when

the felony is committed. It does not go after

that. So what happens after that in any case is a

narrative for what happened, but in any case it is
not admissible, because it was not said to the
appellant. At no stage was anything said to the
appellant in relation to that. It was a
conversation between Matthews and Siemsen on the

telephone after the shooting.

King 29 14/3/91

Now, the authority in relation to that is Reg

v Blake & Tye, 115 ER 49. That was a conspiracy

case, but nevertheless the situation was set out

there quite clearly that in relation to this case

there was a conspiracy to defraud. On page 49 it

says:

A count for conspiracy charged that T and B

conspired to cause certain goods which had

been and were imported and brought into the

port of London from parts beyond the seas, and

in respect whereof certain duties of Customs

were then and there due and payable to the

Queen, to be carried away from the port and

delivered to the owners without payment of a

great part of the duties, with intent thereby

to defraud the Queen; not further describing
the goods or the means of effecting the

objects of the conspiracy. Held sufficient,

on motion in arrest of judgment. T did not

appear; B pleaded not guilty. On his trial

it was proved that Twas agent for the

importer of the goods, Ba landing waiter at

the Custom House; that it was T's duty to

make an entry describing the quantity of the

goods; that a copy of such entry was

delivered to B, who was to compare this copy

with the goods, and if they corresponded, to

write "correct" on T's entry; whereupon T

would receive the goods on payment of the duty

according to his entry. It was further proved

that T's entry was marked "correct" by B, and

corresponded with B's copy; that payment was

made according to the quantity there

described, and that the goods were delivered

to T. Evidence was then offered of an entry

by Tin his day book, of the charge made by

him on the importer, shewing that T charged as

for duty paid on a larger quantity than

appeared by the entry and copy before

mentioned. Held admissible evidence against

B. It was proved that B received the proceeds

that is, the landing rate, I think it was called

of a cheque drawn by T after the goods were

passed.

That was his half share.

The counterfoil of his cheque was offered in

evidence, on which an account was written by

T, shewing, as was suggested, that the cheque

was drawn for half the aggregate proceeds of

several transactions, one of which

corresponded in amount with the difference

King 30 14/3/91

between the duty paid and the duty really due

on the above goods. Held, not evidence

against B.

That is the situation in this case, in effect,

in relation to payment. Now, on page 54, the

judgment of the Court, Lord Denman, Chief Justice,

on the second paragraph there, he says:

As to the counterfoil, I felt much doubt

at the time of the trial. The admission of

the evidence was, however, pressed for on the

part of the prosecution; and I thought that

it, perhaps, proved an act necessary to be

done, as Mr. Pollock puts it, to carry the

conspiracy into effect. But, on

consideration, I think that is not so. The

conspiracy was fully effected before that was

done.

And then, later down in the same paragraph towards

the end of that paragraph he refers to another case

of Hardy and said that case was:

an authority against the admission of this

evidence.

Then Mr Justice Patteson said:

I entirely agree on both points. As to the

first, it is laid down that you must establish

the fact of a conspiracy before you can make
the act of one the act of all. But you are

not bound to bring the parties into each

other's presence -

and so on.

The day book here was evidence of what was

done towards the very acting in concert which

was to be proved.

That was the first part. As to the counterfoil, it seems to me to

have nothing to do with the conspiracy.	What
is the charge?	A conspiracy to defraud the

Customs. That appears to have been done before the cheque was drawn; the cheque had

nothing to do with carrying the conspiracy

into effect.

Here we say that this conversation did not have

anything to do with carrying the felony or having a

commission of felony in furtherance of the felony.

Mr Justice Williams was the same - about three

paragraphs down, starting:  ·

King 31 14/3/91

The writing on the counterfoil is, in

effect, a declaration by Tye for what purpose

he had drawn the cheque, and how the money was

to be applied. To what did this relate? To a

conspiracy at that time completed.

And then he went on to say:

As to the counterfoil, it is quite clear that no declaration of Tye can be received in

evidence against Blake which was made in

Blake's absence, and did not relate to the

furtherance of the common object. What then

was this statement? It was made by Tye after

the common object was effected -

And even though it refers to "common object" then
you substitute "felony" it is a simple situation in

relation to that matter that that did not apply.

Now, that evidence, in my submission, was not

admissible. The other evidence that I referred to

was on page 34 and that is at line 33 - this is

Siemsen's evidence again:

When Mr Mathews came around to pick up the

Sportco rifle was anything done with the rifle

at the caravan? A. Before he picked up the

Sportco he just fired it outside of the

caravan just to make sure it worked and to the

effectiveness of the silencer, how quiet it

was.

And then he asked:

Whereabouts ..... did he fire it? A. within

four or five feet of the caravan door facing

towards the mound of dirt that was behind the

caravan.

That was later obtained by the police and the

cartridges compared and evidence was given that

that was similar to those fired from the rifle - or

gun, whatever it was - that killed Mrs King.

Of course Mrs King, the wounds that she had,

were one on each upper arm and one to the neck and

one in the back and, of course, that was not

exactly as was reported in there, that is shown on

page 191 in the summing up.

The remarkable think about the admission of

all this evidence was what His Honour said, his

reason was, that is the trial judge - not what the

Court of Criminal Appeal said, they said it was

admissible under Tripodi's case - the trial judge

admitted it but on page 168 he said he admitted it

King 32 14/3/91

not as evidence of the fact but evidence of what

was said in order to show the intention of the

person who said it. On page 168, line 8:

Before you make use of any evidence of

what is said to have been done by any of

Phillip -

he said Phillip Siemsen also -

or Terrence Siemsen or Sandra Scealy or

Bernard Mathews as incrimatory of the accused

in any way, you must first be satisfied that

the action by the individual that you are
considering, be it action by either Terry or

Phillip Siemsen or Sandra Scealy or Bernard

Mathews, was an action done pursuant to and in
furtherance of an agreement to kill Delys

King, to which agreement the accused was a

party.

You should understand clearly that the

evidence of actions by the four people I have nominated is not available to prove initially

that the accused was a party to such an

agreement. It must first be proved that the
accused was a party to the agreement in the

sense that he counselled, procured, incited or

instigated arrangements to bring about the

death of his wife.

A second matter to which I should make some reference is to give you a direction

concerning testimony of what was said on

various occasions between Terry Siemsen,

Sandra Scealy, Bernard Mathews and Philip

Siemsen. I am referring to the evidence that

you have as to conversation among those

people, one saying one thing to the other.

The evidence of what they said, if you

accept it, is incapable in law of proving as a

fact the content of the statement.

And 169:

What it may prove however is that such a

statement was on the occasion revealed by the

evidence in fact made by the person to whom it

was attributed. It may also reveal the state

of mind of the person making the statement. In my submission - - -

BRENNAN J:  What was the issue to which that evidence was

relevant?

King 33 14/3/91

MR PAPAYANNI:  The four, you see it was not correct to say

that about Siemsen in the first place. You see the

evidence that Siemsen said, he said, "Well, Mr King

came to me and asked me to get somebody to get rid

of his wife". Now, that was admissible as a fact

because it was something that was said by Mr King

to him. The evidence he was referring to was then

after that the conversations that Siemen had with

Terry Siemsen, his brother, who died; with Scealy

who was used as somebody to wait in the car while

he went round to Mrs King's place on a number of

occasions and to the conversation between Matthews

and Siemsen. Now, in my submission, all that

evidence was inadmissible because it did not

relate - this was not a conspiracy, it was not a

conspiracy to commit murder - they did not relate

to the felony itself.

Now, Tripodi's case is well known to the Court

and I do not wish to stress it, but it stresses

there that it is not common purpose, not the

evidence in furtherance of the common purpose, it

is in furtherance of the elements in the specific

charge. That is made quite clear in Tripodi's case

at page 6 and 7 of that report.

I might just read that, again, 104 CLR at

pages 6 and 7.	It deals with - at the bottom of
page 6 and 7:

For upon a charge of conspiracy the proof of

the crime may well consist in evidence of the
separate acts of the individuals charged

which, although separate acts, yet point to a

common design -

and this is what the Court of Criminal Appeal said

in this case, they were dealing with it as it was a

conspiracy -

and when considered in combination justify the

conclusion that there must have been a

combination such as that alleged in the

indictment. When that is so evidence may

readily be let in of what each party to the

conspiracy alleged may do or say in

furtherance of the common purpose.

"In furtherance of the common purpose", that is

conspiracy. And then the Court said:

But when a substantive crime, not a

conspiracy, is charged in the indictment it is

the ingredients of the substantive crime that

must be proved, not combination for a common

purpose.

King 34 14/3/91

Now, what the Court of Criminal Appeal was

saying: that this was a combination for a common

purpose and therefore what Siemsen said to his

brother, what he said to Miss Scealy and what he

said to Matthews was all a common purpose

situation.

BRENNAN J:  The element in the present charge which had to

proved is that what was said by King bore fruit.

MR PAPAYANNI:  Yes, but that was only to show that there had

to be a nexus between the person who committed the

crime and the agent, Siemsen. But Terry Siemsen

did not commit the crime. If the accused had been
charged with attempted murder, Terry Siemsen would

have been charged as an accessory to that. But

Terry Siemsen could not be charged as an accessory

to the murder because he did not take any part in

it.	He could have been a party to a conspiracy, he
could have been brought in in a conspiracy.	You

see, if one person - if King had said to Siemsen,

"Get somebody to kill my wife" and he had got four

people, well now, as in this case, almost the same.

If one of those four people had committed the

crime, well, the other three who were obtained to

kill Mrs King, they could not be an accessory to

the murder.

BRENNAN J:  Why is it that evidence of Siemsen having gone

around after having a conversation with King - having gone around trying to get the murder of

Mrs King effected was not admissible to prove the

element?

MR PAPAYANNI: Well, there are certain circumstances where

you may get in some evidence but you could not
possibly get in evidence of what Siemsen said to

Matthews because Matthews rang him up on each occasion and he said, "What's happening?" This is

a report as to progress. This is a narrative of

what happened, and all that evidence went in. And

the last part of it was a similar narrative,
"What's happened?---I've killed Mrs King."	Now,

that was after the event anyway, but that was a

narrative.

Now, the only way that evidence gets in in relation to either a conspiracy or to a substantive

offence is the simple situation where one of the

conspirators or one of the persons involved in the

offence does some act, and when he does that act he

says something in relation to it. It might be

drugs. He might say, "Look, how much will you give

me for these drugs?" That is something that is

said by him in furtherance of the conspiracy to

sell the drugs.

King 35 14/3/91

But you cannot have, in this case, a

substantive crime of murder and have evidence of a
person who attempts to murder on another occasion

admissible. See if King had been charged with

attempted murder, and with murder, you could get

the evidence in in relation to Siemsen on the

attempted murder but that evidence would not be

admissible against King in relation to the murder.

BRENNAN J:  Mr Papayanni, the evidence is not tendered to

prove the truth of the facts stated in it, it is

tendered as original evidence of, as it is called,

verbal facts. Now why is it not admissible to show

what Siemsen was doing in consequence of the

incitement by King?

MR PAPAYANNI: Well the simple situation of it is that it is

only admissible as a statement in order to show, as

in Walton's case, that there was the intention of

the person who said it, as His Honour said, and

address the jury. But the intention of Terry

Siemsen, was not a part of this trial. The

intention of Miss Scealy as to why she said certain

things and did certain things was not admissible as

part of the murder of Mrs King. What Matthews said

to Siemsen was not admissible to show that a person

unknown committed the crime. None of that was

admissible. See, if you had said to Siemsen,

"Look, did you endeavour to find somebody?", and he

says, "Yes I did".	"And did you find anybody who
would do it?" and he says, "Yes I did".	And that
is as far as it could go.	You could not put in the

conversation, because it was not in furtherance of

the felony - the murder of Mrs King.

BRENNAN J: If Siemsen had gone into a hotel after speaking

to King and had said to all and sundry, "Is there

anybody here who is willing to perform this

contract?" Would that have been admissible?

MR PAPAYANNI: Yes, that was in furtherance of this specific

matter.

BRENNAN J:  And if somebody had replied to him then, "I

would not, but I am prepared to find somebody who

will.", would that be admissible?

MR PAPAYANNI:  If eventually it was shown that that person

committed the crime, otherwise not.

BRENNAN J:  Why not?

MR PAPAYANNI: Well because it is the murder, the felony,

that is the vital matter here. The one issue that

has to be determined, or the two issues really, are

firstly: did a person unknown commit the murder?

If it had been Matthews - let us say it was

King 36 14/3/91

Bill Smith - and they went in there and Matthews

was there in the hotel and Bill Smith was there and

Matthews went away and he said, "Yes I will do it."

And Bill Smith said, "I went away" and he said, "I

will do it." Now the evidence against Matthews, if

he did not commit the crime, was not admissible. admissible, because he committed the crime of

murder.

BRENNAN J: That is using that statement as proof of the

facts stated. Why is it not simply a case - - -

MR PAPAYANNI: Well it would be admissible as proof of the

facts stated; it would be admissible under

Tripodi's case, as proof of the facts stated, if

the person had committed a murder, because he would
then be an accessory before the fact; or principal

in the first degree, whatever it was. If Bill

Smith had gone away and got somebody else and then

the evidence showed clearly that Bill Smith had got

somebody else and that somebody else, who was

Tom Jones, had committed the crime, then it would

have been that Tom Jones committed the crime and

that King was an accessory to that. King's

procurement could go through an agent to Bill Smith

and then to Tom Jones who committed the murder and

you prove that Tom Jones and all that evidence
would be admissible. But none of the evidence
would be admissible, in relation to that matter, to

show that Siemsen said to Matthews, "Well you do

it." And he says, "Yes." That would not be

admissible because he did not do it. But if they

had charged a conspiracy, all that evidence would

have been admissible evidence.

See the situation here comes about - if you

look at it in the opposite way - if Terry Siemsen

had come in to give evidence and he said, "Now I

did not kill Mrs King.", would that have been

evidence to show that he in fact was a party to the commission of that felony, the killing of Mrs King?

If, for argument's sake, Matthews had been

called by the Crown on the second trial and he had

said, "I did not do it." or "I was acquitted of the

crime.", would that have been admissible?

His Honour says, "No, it wouldn't have been."	The
situation was that the defence could not call
Matthews because it was a condition of his bail
that he not indirectly or directly contact
Matthews.	And what happened, of course, was that a

private investigator was employed, saw the police

and they said that would consider a breach of his

bail if Matthews was approached.	The OPP said the
same thing.	They would not allow us any access to
Matthews.

King 37 14/3/91

We did not know, until a short time before the

trial, that Matthews was going to be tried as an

accessory. There had been a trial in which they

had told us that he was going to be charged with

conspiracy to murder. That trial did not get on

because the judge was not available. It came on

again and just a few days before the trial they

told us that they were going to go on the accessory

to murder, not conspiracy.

So, no further inquiries were made in relation

to Matthews. It was too late then. But if the
defence had wanted to call Matthews in this trial

to say, ttI was acquitted.tt, His Honour would have

ruled against that. Yet, it was admissible

evidence. That is the situation.

So, the most damning evidence was the two

matters that are pointed out. And

Mr Justice Dawson, on page 435 in that King's case had referred to the fact, as I understand it, that

when comparing the evidence that was admissible

against King and against Matthews, on 434, he dealt

with the evidence against King and on 435, 161 CLR,

His Honour said - this was about Matthews, the

evidence admissible against Matthews:

On the other hand there is corroboration of the evidence given by Siemsen against

Matthews. There were disputed admissions to

the police and there was evidence of reverse
telephone calls made to Siemsen. In addition,
there was evidence that cartridges recovered

from the ground where the test firing of the

rifle had allegedly taken place, were fired

from the same weapon as that which was used to

kill the deceased.

Now, that was understood there, that that was

evidence which was admissible against Matthews and

Matthews alone. Yet, on the retrial, that evidence

was put in against objections and, especially, the

most damning evidence of all was the telephone

conversation. I mean, how could a jury, on that,

not find that Matthews did it? There was no

evidence to show of any disputed admissions in the

second trial because they were not admissible.

So you had on the first trial that the accused could not be found guilty on the basis that

Matthews was the principal; yet, on the second

trial, the jury undoubtedly found him guilty on the basis that Matthews was the principal and the Crown

even addressed on that basis. So, I mean, the

situation was, in my submission, a double jeopardy
situation, quite clearly, and a situation where the

whole of that evidence was inadmissible, especially

King 38 14/3/91

the most damning parts, about the cartridges, and

there is a lot of other evidence. I could go

through it all but I do not wish to because that is
the most damning part of all. On that evidence the

jury had to find that Matthews was the principal

and what is what they did not find on the first

trial. They are my submissions, if the Court

pleases.

MASON CJ: Thank you, Mr Papayanni. Yes, Mr Solicitor.

MR MASON:  Your Honours, I have an outline of our

submissions. Your Honours, I will not read the

submissions. If I may just perhaps develop a few

of them. Paragraph 2: my learned friend's

submission seems to be construing section 346 as if

it was confined to a subsequent trial following a

verdict of guilty against the principal felon,

whereas the words clearly encompass permission to

conduct a subsequent trial, whether or not the

verdict against the principal felon at the earlier

trial was guilty.

Your Honour Justice Deane asked my learned friend whether there was any authority in this

Court which addressed the question of whether - had

the trial taken place jointly and the Crown case

been that Matthews alone did it, if there were a

verdict of guilty against King but not against

Matthews, could the verdict stand. In my

submission the answer is yes. Darby's case, 148

CLR 668, as applied in King itself - and if I could
just take Your Honours to a passage in King, 161

CLR 423 at pages 433 and 434 where, about five

lines up from the bottom of the page in the

judgment of Justice Dawson:

Even where two persons are tried jointly upon

the one charge as participants in the same

degree, it does not inevitably follow that

both must be convicted or both must be
acquitted.	An indictment charging two persons

on the one count is both joint and several.

The evidence -

I stress the word "evidence" -

may be sufficient to prove the case against

one accused beyond reasonable doubt, but be

insufficient to prove the case against the

other. In that event, the conviction of the

one and the acquittal of the other involves no

inconsistency. Of course, where there is no

material distinction in the evidence

admissible against each accused to establish

an element to be proved against both,

different verdicts may be inconsistent.

King 39 14/3/91

Now, in my submission, that would answer the

question that Your Honour put to my friend.

DEANE J: Justice McHugh pointed me to some passages in

Friedman on double jeopardy which, not referring to any decisions in this Court, lend some support to a

different view when the charge is principal and

accessory.

McHUGH J: In the same trial.

MR MASON:  In the same trial, yes.

DEANE J: It is hard as a matter of principle to see why,

apart from the fact that it looks rather strange.

MR MASON:	Clearly, in an accessory situation it must be proved against the accessory that the principal offence took place, but the principle of Darby
would establish, in my submission, that that is
both logically and in principle possible even though one cannot prove that against the principal
offender.

McHUGH J: That is the point of it, is it not, that Darby is

a logical decision and so is the submission you made of impeccable logic, but from the point of view of society at large it does not fit very well.

It really does indicate there is something the

matter with the administration of justice if you

have a case where a man is charged with being an

accessory to the murder of his wife by x.	They
stand trial together.	The jury hold that X did

not - acquit X, and yet the man is found guilty of

being an accessory to that. I think logically -

MR MASON:  The life of the law is not logic, but experience,

and also this was not the charge. I reiterate that

here the charge in the first trial and in the

second trial was that he was murdered by possibly

Matthews, but not necessarily so.	So the case was
never confined and the verdict that acquitted

Matthews did not, as this Court found, involve even

that sort of inconsistency to which Your Honour is

referring, and we address that in paragraph 4, in

effect, by the submission that given the way the

case was ultimately put by the Crown in the first

trial, Matthews had to be acquitted because the

Crown were not able to go beyond saying that he was

within the range of killers; but equally, King had

to be convicted once the causal connection was

established and the instigation.

McHUGH J: But on Siemsen's evidence you had a direct

admission from Matthews as well as evidence of

giving him the gun which fired the bullets which

was used to kill the deceased.

King 40 14/3/91

MR MASON:  Yes, there was a possibility that Siemsen was not

telling the truth in that respect, but otherwise

corroborated. There was a possibility that

Matthews had, in fact, subcontracted the job.

Again I accept that these are theoretical.

DAWSON J: There are all sorts of possibilities. It may be that Siemsen's jury thought that Siemsen said this to exculpate himself.

MR MASON: That was what I meant by the first alternative,

yes, Your Honour. This evidence was, of course,

only part of the chain of material that was led

against King through Siemsen.

McHUGH J: Well, if you accept the force of your major

premise that the acquittal by Matthews is

irrelevant, then the rest of your argument seems to

follow logically.

MR MASON: 

In my submission, yes. Your Honours, my learned

friend has spoken on a number of different
occasions as if the indictment here did allege that

this was murder by persons unknown. That was not

the form of the indictment nor the substance of the
case that was put against King, and he therefore

has erected a straw person.

Indeed, the very fact that he has made this submission perhaps, and one is only speculating,

provides some justification for the indictment

remaining in its present form in that had it

alleged "persons unknown", presumably, much would
have been made about the inconsistency with such an

allegation with a Crown case that included Matthews
within the range of possible killers.

Your Honours, on the Tripodi aspect, the

substantial error which, I submit, my learned

friend's submission falls into is that it fails to

see Tripodi as a rule of evidence. It is a rule of

evidence which as Tripodi itself illustrates is

available in charges other than conspiracy charges

provided there is a joint enterprise and my learned

friend would wish to confine the principle to its

use of evidence in a charge that is framed in the

very way that attracts the Tripodi principle. I

have not put that very well but the common purpose,

as I submit at the end of paragraph 10, which can

be relied upon as the basis of the agency which

leads to the evidence being led need not relate to the very offence charged. It is sufficient if the

acts or statements pursuant to it are relevant to

the proof of the offence charged.

King 41 14/3/91

McHUGH J: Well, except at page 7 in Tripodi,

Chief Justice Dixon, Mr Justices Fullagar and

Windeyer say:

evidence of the acts or words of -

one of the parties -

in furtherance of the common purpose -

which constitutes or forms an element of the crime

becomes admissible.

MR MASON:	Yes. Well, it can form an element of the crime though the crime not be charged in that form. To
put it another way, there was evidence here which
could have justified one or arguably two or more
charges of conspiracy but that same evidence was
admissible and relevant on the charge that was presented in the form that was presented, namely,
murder. In my submission, it does not cease even
within the narrower expression Your Honour has put
to me from Tripodi - it does not cease to be
applicable though it be not the - - -

DAWSON J: But the whole basis of Tripodi is that once you

have proved the common purpose, that one is acting

as agent for the other.

MR MASON:  Yes.

DAWSON J: That makes their statements and acts admissible

against each of the others. It is really just a

question of agency.

MR MASON:  Yes, and a way, as it were, of carrying that

through. Once you establish the agency through

Tripodi, it is as if the act was the act of the accused, putting it very broadly, and one then

asks, "Assume Mr King himself had had this

conversation with Matthews, assume Mr King himself

had laid in wait in the car as did Miss Scealy",	the Tripodi, in my submission, is an evidentiary
means to linking it with the accused. Having done
that, it must obviously be relevant but if it is
relevant it does not have to be relevant only to the crime that is charged, or the form of the
charge that is in the present case.

BRENNAN J:  It is not an agency to make admissions is it?

It is an agency to do things?

MR MASON:  It is an agency which leads to acts and

statements which are themselves evidence of guilt

being attributed to the accused.

BRENNAN J: Verbal acts?

King 42 14/3/91

MR MASON:	Or non-verbal acts.
BRENNAN J:	Or non-verbal?
MR MASON:	Yes.

BRENNAN J: Yes, and so long as the verbal or non-verbal

acts are links in the chain of the crime charged

then they are admissible.

MR MASON:  Yes, and so on that basis it does not matter if -

the Court of Criminal Appeal proceeded on the basis

that there was one conspiracy and, we submit,

correctly so. When one looks at the fact, it was a

matter of indifference to King who the ultimate

killer was. He was not even told about Siemsen

deceased until after he had died and he just said

"Well, keep going" as it were.

But if it were separate conspiracies so long as each conspiracy and the acts done by those

involved in it tended to show guilt in the murder

then it would not matter that they were separate.

The conspiracy just is the means via Tripodi to the

evidence being admitted against King.

McHUGH J:  The Crown is entitled to prove all acts and

conversations which tended to show that King had

procured the murder of his wife. But how does that

make the conversation between Matthews and Siemsen

after the killing admissible?

MR MASON: Right. Well, in my submission - I suppose I am

cavilling at your premise that you put to me, the

joint purpose. It depends how you characterize it

but, in my submission, one would characterize the

joint purpose which triggered off Tripodi as being

a conspiracy to effect a killing for money. That

brought anything pursuant to that conspiracy, if

relevant to the crime of murder, into the scope of

the Tripodi principle.	And just as flight after
the killing - - -

McHUGH J:  You are departing from the language of Tripodi

and that is why Tripodi concentrates on the common

purpose being directed to the elements of the

crime. The common purpose here was a common

purpose between King and Siemsen to get somebody to

murder Mrs King.

MR MASON:  I would add, for money.

McHUGH J: Well, let it be said, for money although "for

money" is just part of the evidence, is it not,

really? It is not one of the elements.

King 43 14/3/91

MR MASON:	It is not one of the elements of the crime charged but neither is the narrower version which
Your Honour has put to me.  The crime charged is
murder and the case against King is that he was an
accessory before the fact to murder. That crime as
charged did not necessarily involve any third party
other than the killer.
DAWSON J:	The reporting back that what was sought to be

procured had been done and the arrangement

completed is surely part of the whole thing
provided the person purports to be the agent who

did it.

MR MASON:  I would submit, for several reasons, one is

because one characterizes the conspiracy as

including the money. But, secondly, it was, in

effect, saying "Look, the police are going to start

making their inquiries". This was not a narrative

long after the event. This was in the early hours

of the morning just after the woman had been shot.

McHUGH J: What difference does that make? Supposing he

reported three weeks later? Suppose he had rung up

three weeks later and said "I carried out that job

three weeks ago. I shot her three low and one

high" - or whatever he said - "Can I get my

money?". Would that have been admissible then?

MR MASON:  On my first argument, it would. On my second

argument, it may not. But, on my second argument,

because it was so close in time, it was pursuant to

the - no doubt it was part of the plan these people

would get away with it and, pursuant to that plan,

to be informed when the job had been done, when the

contract had been out for 12 months, I think it

was, was clearly of advantage to all those who are

party to the common conspiracy.

In a sense, if one take the strict rule that

is being put against me, flight from the scene of

the crime, presumably is outside of the scope of

the Tripodi principle.

McHUGH J: That is admissible against a person by way of an

admission.

MR MASON:  But flight of a confederate. If the three people

in the car make separate getaways, on the principle

that has been put, it is only the getaway of the

person charged that is admissible and yet, in my

submission, the flight is so clearly part of the

common purpose to effect a crime without being

caught that it speaks against all.

McHUGH J:  What was the purpose of the admissibility of this

evidence? What purpose did it serve in the trial,

King 44 14/3/91

in the sense of what issue did it go to, what did

it prove?

MR MASON: It proved, in my submission, as it were, the

link. It confirmed the evidence given by Siemsen.

It was, as it were, corroborated in a non-technical

sense, the evidence he gave that he was the

middleman between the contract and the killing and

it was material which, because it was verified by

Scealy, by the bullets being found, by the coincidence of the "I've done it" call and the
death itself, it all tended to add strength to what

he was saying.

His Honour put it to the jury, at 168 and 169,

in the passage my friend read, in ways that,

really, were very favourable to the applicant and

it is little wonder there was no complaint made at

trial or in the Court of Criminal Appeal about that

basis. It was favourable, firstly, because he left

to the jury the task which Ahearn's case says was

the task of the trial judge.

McHUGH J: But the prejudicial value of the evidence was

enormous. Despite the form of the summing up,

there could be little doubt that the jury would

have retired to consider its verdict on the basis

that Matthews was the killer. It is impossible, at

least to me, anyway, to think that the jury would

have come to any other conclusion that Matthews was

the person who killed Mrs King.

MR MASON:	Yes, and I -
DAWSON J:	I do not know about that.  They did not come to

that conclusion in the first trial and the same

evidence went in. And what did it matter? I mean,

obviously, Mrs King had been murdered. There was

no dispute about that at all in the trial.

McHUGH J: It was not the same evidence, was it, because you

did not have Matthews' account in the second trial.

Matthews denied that he was the killer and had

other evidence.

DAWSON J: But the point of it is that here was a case

against the accused that he procured the murder of his wife. Now, the fact that someone reports back and says, "The job is done.", to the person who, on

all the evidence was the agent for procuring the

job to be done, surely, without even Tripodi, is a

relevant fact?

MR MASON:	Well, I would - - -
DEANE J:	You are going to interrupt, are you, Mr Solicitor?

King	45	14/3/91
MR MASON:	I will physically stand back.	The Court would

understand whose statements I would wish to adopt

as my submissions.

DAWSON J:  Cannot you develop that, our point? You might

not want to but - - -

MR MASON:  Your Honours, we put it also, as

Mr Justice Priestley hinted, as an alternative on

crime. This is not a res gestae in the sort of Bedingfeld v Dunn situation, this was a statement made in the very course of the situation like the

the basis of res gestae, because this was - and
again one comes to a question of how you

characterize the offence, but if one thinks of

"get away" situation.

McHUGH J:  Does the evidence suggest that the telephone call

was made within a very short period of her death?

MR MASON:  Oh yes, in fact there was evidence from Telecom

too, that there was this system whereby he would

make a collect call using the name Hounslow, and so

the making of the call was corroborated and the

timing was - - -

McHUGH J:	2.20am or something like that.
MR MASON:	Yes, it was in the early hours of the morning upon which she was killed, yes. So, in my
submission, it was admissible on that basis as
well.

Blake's case cannot be elevated to a

proposition of law; it is a decision on its fact,

and it is distinguishable in at least two respects.

Here, the conspiracy was, as I have submitted

before, to kill for money and therefore the money

aspect was part of the effectuating the purpose;

and secondly, the conspiracy was not fully effected
at the time this conversation took place.	Those

are the submission I would wish to add to the

written submissions I have given to the Court.

MASON CJ: Yes, thank you, Mr Solicitor. Yes, Mr Papayanni.

MR PAPAYANNI: Just on that question of the conspiracy, two

people charged at the one trial, I have been

thinking about it and I thought Goldie's case could

be, even though that was a "knowingly concerned"

case, it dealt with an accessory and they found in

that case that the principal matter in relation to

the immigrant was not proved and therefore the
accessory could not be found guilty. I gave the
reference to that the other day in the Courtney-

Smith case, I have not got the reference here with

King 46 14/3/91

me.	And also in Bull's case, the same thing
applied.	Under section 233A the captain was

charged with having been directly or indirectly

concerned in the use of the ship in the

importation. That was an accessory-type situation

also. That was charged under section 236, which

was an accessory section and Goldie's case was

charged under section 5, which was an accessory

situation.

The only other matter I wish to add is that

Blake and Tye: the conspiracy to defraud was for money there and the money was paid over afterwards

and that was held not to be admissible in relation

to the person who had made his notation on the

counterfoil.	They are the only matters I wish to
put.

MR MASON:  May I have leave to say one further thing that

has come to mind?

MASON CJ: Yes, Mr Solicitor.

MR MASON: There was no point taken as to the evidence

being prejudicial and therefore should have been

excluded on discretionary grounds.

BRENNAN J: Unduly prejudicial, you mean?

MR MASON: Unfairly prejudicial.

McHUGH J: All incriminating evidence is prejudicial.

MASON CJ:  The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 11.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.38 AM:
MASON CJ:	The Court is of opinion that the only point

argued which could properly attract the grant of

special leave is the first point. The first point

is that as a consequence of the acquittal of

Matthews at the first trial, the trial judge was in
error in leaving the case to the jury on the

footing that Matthews, Siemsen or a person unknown

was the actual killer. The applicant submits that

Matthews' acquittal at the first trial established

his innocence for all purposes and that the case

should not have been left to the jury on the

King 47 14/3/91

footing that Matthews was possibly the killer.

This submission is contradicted by the majority

judgment of this Court in King v The Queen, (1986)

161 CLR 423, especially at pages 435 and 436. At

page 435 Justice Dawson expressly referred to the

Crown case at the end of the trial as one of murder of the deceased at the hands of some person who may

have been Matthews, Siemsen or someone else. The

retrial ordered by the Court was to enable that
case to be presented and tried.

In the circumstances the application for special leave to appeal is refused.

AT 11.40 AM THE MATTER WAS ADJOURNED SINE DIE

King 48 14/3/91