Knibb v The Queen

[1988] HCATrans 196

..

,(p . ..

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B24 of 1988

B e t w e e n -

ERNEST ARTHUR KNIBB

Applicant

and

THE OUEEN

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

BRENNAN J
DEANE J

GAUDRON J

Knibb

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 SEPTEMBER 1988, AT 10.18 AM:

Copyright in the High Court of Australia

C2T 1/1/MB 1 6/9/88

MR W.T. McMILLAN:  May it please the Court, I appear with my

learned friend, MR P.J. ALCORN, for the applicant.

(instructed by the Public Defender)

MR A.V. LAKSHMAN:  May it please the Court, I appear with

MR P.G. NASE, for the respondent. (instructed

by the Director of Public Prosecutions)

MASON CJ:	Mr McMillan.
MR McMILLAN:	I hand up submissions and some additional material, Your Honours.
MASON CJ:	Thank you. Yes.

MR McMILLAN:  Thank you, Your Honour. I was informed by

my learned friend just prior to the Court connnencing

that there was some material which got into

exhibit folders. My instructing solicitor's clerk,

I had asked to obtain ·some information as to the meteorological readings of that area just for my

own information and also a map. Now, I understand

from my learned friend that that got into a folder

which was delivered to him. Of course, it was not

an exhibit before the Court and I will not be seeking

to rely on it. It does not do any harm really

because it more or less confirms ,some of the

information that came in through the course of

the trial.

WILSON J:  That is just the meteorological report, is it, Mr McMillan?

MR McMILLAN: That is so, yes, and a map of the Cairns -

WILSON J: I noticed it was there. I assumed it was an

exhibit.

MR McMILLAN:  Yes. Well, it was not an exhibit and I would

certainly apologise to the Court for that being

overlooked when it emanated from the office of

my instructing solicitors.

MASON CJ:  Yes, you need not be concerned.

MR McMILLAN:  Yes, thank you, Your Honour. This application

concerns the death of a Miranda Downes on

3 Augus~ 1985.

(Continued on page 3)

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Knibb
MASON CJ:	We have read the judgments below, so you need
not be concerned to outline the circumstances of events to us.
MR McMILLAN:	Thank you, Your Honour. Perhaps I should take Your Honours to exhibit 1 and exhibit 2
here and point out some significant points
which will assist as the address goes on.
MASON CJ:	Yes.
MR McMILLAN:	This is Buchans Beach; that, in fact,

is Buchans Point. The beach itself is some

six to eight kilometres north of Cairns and

beyond it again is the town of Mossman to the

north. At the northern end of Buchans Beach

is the beach of Ellis Beach, which is referred

to in evidence. There are a collection of rocks,

which also figure in evidence, at the northern

end of the beach and at that point there is a

solitary rock which has also assumed significance

as to location on the beach itself. The main

coastal road is this bitumen road which, as the

Court will observe, winds around, and there will be some evidence referred to where vehicles

travelling towards Cairns come around this bend

and the bend that they are referring to is

obviously on that corner there.

MASON CJ: Is that the first point where the coastal

road comes on to a beach north of Cairns, after

the coastal road leaves Cairns?

MR McMILLAN:  I have not been to the area, Your Honour.

I do not believe so. I think there is a

southern contact between the road and the beach.

MASON CJ:	I see.
MR McMILLAN:	Bu4 as you would observe, it has come from

some point inland at this point. There is also

another bend that one of the witnesses refers

to and that obviously is that one there.

Now the car-parks assume some significance

and they are located in this area here. It is

a densely wooded area, as will be seen from some

of the other exhibits. The car-park is in

fact an informal design located amongst the

trees and persons who wish to drive on to the

beach just merely drive out of the car-park

on to the sand composition of the beach.

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Knibb

WILSON J: You use the plural, Mr McMillan. Reference is

made, in the papers, I think, to two car-parks.

I had not appreciated they are together or in the same vicinity.

MR McMILLAN:	Yes, they are located together and there are also two entrances, the evidence relates,
to the southern car-park. There is a southern entrance and a northern entrance.
WILSON J:	From the road?
MR McMILLAN:	From the beach. There would appear to be

only one entrance from the road and that will

be seen there.

BRENNAN J:	Where are the beach entrances in relation to the single rock?
MR McMILLAN:	The single rock is there and the beach entrances

would be there.

BRENNAN J:	Thank you.
MR McMILLAN:	The Dent house would appear to be located

up on this headland. That is the point from

which the deceased left to go for her walk along

the beach. She would have been heading in that

northerly direction along Buchans Beach - or

some reference is made to Buchans Point Beach.

The first point I invite the Court to look

at is what is compendiously called the Leslie

tapes. At the core of this submission lies the

contention that Mr Leslie during his time at

Cairns was used by the police as an agent for them in the investigation of this crime. It

will be noticed in some of the material handed

up that there is a chart setting out the contact

between Mr Leslie and Mr Knibb, commencing on

2 February 1987 - that should be directly under

the written synopsis.

(Continued on page 5)

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Knibb

MASON CJ: What do you mean by saying that Mr Leslie was

used by the police as an agent for the investigation

of the crime?

MR McMILLAN: Well, there is no evidence, of course, that he

was directly engaged but my submission is that the

police used his considerable resources to further

investigating the crime to questioning Mr Knibb at

length and that, having done that, and no doubt

obtained the wash-up of those interviews, there was

an arrest effectl:d on 5 February. Our submission is

that it must follow, the clear inference is that

Mr Leslie and the police investigators between

2 February and 5 February co-operated quite closely.

MASON CJ:  But does it mean any more than that there was

co-operation between them; that the police made

certain material or information available to

Mr Leslie and then took advantage of whatever

he managed to obtain from the accused?

MR McMILLAN:  No, it means no more than - there is nothing

sinister. There is no suggestion there was a

cabal. It is a convenient expression that he

furthered the interest of the police and that will

be seen from a quick overview of that longer chart.

WILSON J:  But any media investigation into an unsolved crime

might properly be taken up by the police in

furtherance of their own investigations. Was there

contact between - and collaboration or co-operation

between Mr Leslie and the police before the

60 Minute interview was shown?

(Continued on page 6)

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Knibb

MR McMILLAN:  Yes. That appears from the evidence that

Mr Penlihgton, who is the producer of the 60 Minute

programme, had spoken with police investigators and

no doubt facilitated the journey to Cairns, and

the evidence would be that Mr Leslie, or one of the

researchers, I think is the convenient term,

contacted Mr Knibb who, at that time, was living

in western Queensland and arranged for his flight

to Cairns. At first Mr Leslie was somewhat shy

about the financial involvement, but he conceded in cross-examination that there was a fee paid, some $300 or so, to permit Mr Knibb to fly to

Cairns and, of course, all his expenses were paid.

After the party arrived in Cairns Mr Leslie

then went to the police station and spoke with

the police. He returned to the motel and Mr Knibb

then queried the nature of the information, what

did he have, and - - -

DEANE J:  But are you not leaving out an important part?

I mean, the start of it all was your client made

accusations against the police and that led to this

television programme approaching your client to

investigate his allegations and they first went to

the police with your client having said that they

were going to hear the police side of the story.

MR McMILLAN:	Yes.
DEANE J:	That really provides a slightly different setting

than saying that they went there, as it were, as

agents for the police, or so on.

MR McMILLAN:  However it commences, Your Honour, with respect,

the clear fact is that after arrival in Cairns there

was this very close contact and no doubt Mr Leslie, as a good reporter, was seeking to gain the maximum

amount of information that he could put to Mr Knibb.

(Continued on page 7)

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Knibb

MR McMILLAN (continuing):  But when one looks at the

transcript of the various interviews, and I must
take the Court through them, it will be seen

that the questioning is quite interrogative,

the information - there are speculative matters
put to Mr Knibb, more than, I would submit, a

mere seeking of some assistance to Mr Knibb to

get his story across because there is a very

long interview on 3 February - that is the Tuesday -

and it runs for some 45 minutes on the actual

tape which was run before the jury.

Then there was a short interview on the

beach that afternoon which was interrupted by

bad weather. Then there is the hypnosis session

and the hypnosis session itself shows up the

police monitoring the hypnosis session in the

corridor outside the motel room and there had

been contact between Mr Leslie's staff and the

police for that arrangement.	They were told
at the time.	Then we have the beach interview

on the afternoon of 5 February and further

questioning and further interrogative, and deeply

interrogative questions were put and then when

they arrived back at the motel the police arrested

Mr Knibb and that was filmed.

It was put on television - the film - and

it was played to the jury as well and it is our
submission that that whole course of conduct

over those four days shows a very close co-operation

between the police and Mr Leslie. And when one

looks at the form of the interview, one would

not say that Mr Knibb was being looked after

and his point of view was being solely considered.

(Continued on page 8)

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Knibb

MR McMILLAN (continuing):  Mr Leslie is a well-known media

personality. He is a skilled interviewer and

our submission is that there were loaded questions

material went to air in Queensland until after the

put to the accused on the eve of his arrest.

trial. That question does not arise at all. But,

by the same token, the playing - and this is gravamen

of our complaint - of that video in front of a
jury rather than it coming out in the form of

viva voce evidence,with Mr Leslie,a well-known,

well-acknowledged public news personality,

had a considerable, and would have a considerable

significance for the jury.

Perhaps if I could take the Court to the tapes themselves.

BRENNAN J:	What are we to look for when you take us to the tapes, Mr McMillan?
MR McMILLAN:	I beg Your Honour's pardon?
BRENNAN J:	What are we to look for?
MR McMILLAN:	At the style of questioning, Your Honour, the

style of questioning and the repetitive nature

of the questions.

BRENNAN J:	In order to show what?
MR McMILLAN:	In order to show that when it was played back

before the jury there was a speculative content

which normally would not be allowed, in our

submission, to be put before a court through the

police,, speculative questions as to "How do you
think it happened?"; "How do11.you say this came
about?"; "What type of person would have done

this?"; "Who do you say the police are looking

for?".

(Continued on page 9)

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Knibb

MR McMILLAN (continuing): Then, questions directed to

"Why are you so concerned?"; "Who do you say

is the suspect?". Knibb, it appears, had a

collection of newspaper articles and said, ''Well, it's m2."

Now that, in our submission, is highly

prejudicial and it was allowed in.

BRENNAN J:	Do you say that that evidence was inadnissible?
MR McMILLAN:	We are, Your Honours.
BRENNAN J:	Not that it should have been excluded in the

exercise of a discretion that it was inadmissible?

MR McMILLAN:	Your Honour has taken the point. Yes, in the exercise of the Court's discretion.
It is an IRELAND and BUNNING V CROSS point.
BRENNAN J:	Was there an objection taken at the time -

MR McMILLAN: Objection - - -

BRENNAN J:	- - - to particular questions?
MR McMILLAN:	Yes, at pages 11 to 15 of the record. This

is defence counsel making submissions regarding

material which the prosecution sought to

introduce.

WILSON J: What page is it, again, Mr McMillan?

MR McMILLAN:  Page 10. Now that is dealing with the

hypnosis evidence.

BRENNAN J: That is an objection on the basis that this

was hypnotic evidence that was given?

MR McMILLAN:	That is right.
BRENNAN J:	Was there any objection taken to the content

of particular questions along the lines that

you have just been indicating?

MR McMILLAN:  No, there was not, Your Hor~urs,not at the

trial. However, the Court of Criminal Appeal

allowed the ground to be raised and allowed the

ground to be argued and the Court of Criminal

Appeal, in the judgment of Mr Justice Williams,

deals with this point in detail. But there was
no precise, specific objection taken at the
trial by the defence as to the type of

questions and the extent of the questions.

BRENNAN J: Were they admitted without objection, apart

from the hypnosis evidence?

MR McMILLAN: Apart from the hypnosis evidence.

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Knibb

BRENNAN J: Admitted without objection?

MR McMILLAN: Without objection.

DEANE J: His Honour does not seem to have thought so.

If you look at the bottom of page 315, he says

the material has been edited to deal with

certain objections.

MR McMILLAN:  But it was certain evidence in which

Mr Knibb admitted some previous offences and yes,

there was editing.

DEANE J:  So they were edited to conform with objections

taken on behalf of Mr Knibb?

MR McMILLAN: That is so.

DEANE J: But no objection was taken in relation to these

matters?

MR McMILLAN:  That is so, yes, Your Honour.

(Continued on page 11)

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Knibb

BRENNAN J:  You have that as a barrier, of course, before

you.

MR McMILLAN: It is a barrier.

BRENNAN J:  Yes. How to you propose to overcome it?

MR McMILLAN: I must fall back on PEMBLE, Your Honour, and say

that this is a matter which does strike considerably

at the conduct of criminal trials and that where an

point is not taken at the trial, that a court of injustice is worked against an individual and the

appeal, nevertheless, is entitled, because of the

gravity of the question to look at it and rule on

the point.

MASON CJ:  And put the State to the enormous expense involved

in having a retrial if the point be upheld.

MR McMILLAN:	That would follow, yes.
MASON CJ: Yes.
MR McMILLAN:	That would follow.  We would have to concede

that.

MASON CJ:  Well, that is one of the reasons why courts insist upon

points being taken at the trial, points that are

capable, if upheld, of remedying whatever the

procedural defect may be.

MR McMILLAN:  Yes. That must be fully acknowledged,

Your Honour. The other plea that we would make

is that the point was raised in the Court of

Criminal Appeal, the intermediary court of

appeal, and no objection was taken and it was

extensively canvassed and dealt with by the court.

The view of the Court of Criminal Appeal of

Queensland· 'was that it was not unjust, was not

DEANE J: Of course, there is a particular problem in a	unfair and the evidence was properly admitted.	case like this, though, is there not and that is
on one view these interviews assisted your client
in that under, as you put it, persistent
questioning, he maintained his innocence.

MR McMILLAN:  Yes.

DEANE J: Well, now, it would be conceivable that some counsel

would look at it and tr.ink, ''We want this in" an~ then
when a verdict of e:uilty is brought in, as it were, want to

have a second thought and who knows, if we ordered

C2T9/l/SH	11	6/9/88
Knibb

a new trial, it might all go in again by - without

objection.

MR McMILLAN:  Your Honour, this is, unfortunately, the lot

of counsel for the appellant who did not appear

at the trial. One takes the points that one sees

can be properly taken to protect the interests of
the accused, and I take Your Honour's point as to -

there is some material there which shows a persistence

of claims to innocence but when one looks at the

overall picture, it is our submission that Mr Knibb

was more badly done by, if I could use that expression.

WILSON J:  You have got perhaps the further hurdle - it

is not very encouraging perhaps to continue in this
vein, Mr McMillan, but when it comes to a special
leave application and we are dealing with a question

of the discretionary role of the trial judge in

relation to evidence, this becomes very much a

question turning on the exigencies of the particular

facts of a-particular trial. It is more difficult

to extract a general principle, a principle of

general importance out of it.

(Continued on page 13)

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Knibb

MR McMILLAN:  Yes, it has a peculiar disadvantage with the

special leave point. I must concede that.

WILSON J:  And even the failure to object; it may well be

that that is not altogether - certainly it is not

altogether overcome merely because the Court of

Criminal Appeal was prepared to take it on board.

When it comes to this Court it is a question

that falls into the reconsideration again.

MR McMILLAN:  Yes, but it comes in with more than a side wind,

if I could say that, Your Honour. It really boils

down to this Court seeing the injustice of what
transpired at the trial and being so concerned that

notwithstanding the failure to take the point that

it says, "Look, we will deal with the point, we will

lay down certain principles" and flowing from that,

it may or may not take a further point. That is all

I can say on this preliminary aspect of whether

this Court should proceed with looking at the special

leave point.

MASON CJ:	Mr McMillan, you have not yet persuaded the Court
that the case is one in which it is appropriate to
grant you special leave to raise this particular
point, so can I ask you to elaborate the point for
us and would you do so as succinctly as you can.
In other words, we do not want to shut you out from developing this point, but I would ask you to bear
in mind that we are still not persuaded that it is appropriate to grant you special leave to raise this
point.  So if you would you might endeavour to
develop the point as succinctly as you can.

(Continued on page 14)

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Knibb

MR McMILLAN:  Perhaps if I could merely develop what was

said in the affidavit in support of special leave

on his point. That is at page 1154 in volume V,

paragraphs 17 through to 18.

BRENNAN J:  The reference to the basis it was "wholly

inaccurate". Is that in relation to

Miss Cunningham's failure to come up with proof?

MR McMILLAN: That is so: six questions in a row which were put

in a different form and the factual
information which was put was that Miss Cunningham

had seen the accused drive northwards along the

beach. The accused denied this in various forms,

but it was put in different ways and that, put

before the jury on video, had to compete with the

evidence given by Miss Cunningham where she was asked in examination in-chief, did she see what

happened to the accused after he passed her and

she said, "No."

DEANE J:  But that puts your finger on the point. I mean,

if the video were going in that is the very part
of it that counsel for the accused would insist

went in because the accused stood up to the falsely

based questioning well, maintaining his innocence

and then at the end of the hunt counsel can say,
"And the whole thing is now shown to be based

on a false premise."

MR McMILLAN:  Yes. It must be seen in the overall context,

Your Honour, of a television replay in front of the jury, the significance of the interviewer

stating as a fact that this thing happened and

that would assume, in our submission, undue

significance notwithstanding his denials.

(Continued on page 15)

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Knibb

MR McMILLAN (continuing): It is the overall impact and

that is why it goes to discretion. At the end

of the day you look at how this will affect the

jury and it is our submission that it must have

had an undue effect - it would have an undue

effect, and it should have been excluded.

Your Honours, I do not want to read the

extracts from IRELAND and BUNNING V CROSS because

with IRELAND you have the curt observation by	they are well known to this Court but commencing interest, the protection of the individual from unlawful and, we say in this case, unfair treatment. Convictions obtained by the aid of unfair acts
may be obtained at too high a price. Hence the
judicial discretion.

So putting it succinctly, Your Honours,

the applicant says that where a video-taped

interview is conducted by a nationally known

media figure who would bring with him a degree

of credibility perhaps rarely found in an

investigating police officer, and you have

speculative questions, you have reiteration of facts which were not accurate on a vital point

because it is the last leg down that beach that

was significant, then in the court's discretion

those interviews, the two between Leslie and

the accused, should have been excluded.

That is the point, as succinctly as we can

put it.

(Continued on page 16)

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Knibb

MASON CJ:  Can you take us to some sample parts of the

evidence, to reflect what you say is the unfair

nature of the questioning?

MR McMILLAN:  Yes. I take Your Honours to page 324 in

volume II. This is the tape of the interview

at the Harbourside Motel carried out on the morning

of Tuesday, 3 February. He is allowed, at the

foot of page 325, to expand on the reaction of

people, particularly in the Maryborough area.

MASON CJ:	What line is this?
MR McMILLAN:	This would be line 42:
Since Miranda Downes died have you been
subjected to any harassment?

He was not compelled, of course, to give more than

a simple yes, but he goes on and expands

considerably on a positive answer.	At line 49,
or so:

Because they're afraid I killed this

woman. Like one woman in Maryborough,

she came out to serve me, took one look

at me and ran back inside, and the man

came out and he said, 'Oh, I' 11 serve you.'

Then he refers further down, at line 55, or

thereabouts:

I had another woman come out not so long

ago.

Her retort, he says:

'We don't want criminals hanging around

here.' And she continually, four or five

times said about criminals to me.

(Continued on page 17)

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Knibb

MR McMILLAN (continuing):  Then pn the next page, 326 -

this is where newspaper articles have been

referred to, and the question at line 20:

"Those are stories written about the

Miranda Downes murder case?" -

Answer -

"Oh, yeah, definitely. Arh, there's a police

statement here, 'Police track down Miranda

Downes, Mirdanda's murderer. Police have

tracked down a sex killer of moviescript

writer Miranda Downes, but must play a waiting game to put him behind bars. 111

The qwestian:

"Who do you think they are referring to,

Ernie?"

Answer:

"Me. There's no doubt whatsoever -

And then, further, at 32 or thereabouts -

"It says here that I am the killer. They

have branded me in this here, which is written

by or stated by a police officer -

And then, towards the foot of that page, at

line 55, the question -

"So you're saying there's no way, from those stories, that it could be anyone else but----- 11

Answer:

"Oh, there's no doubt whatsoever. There's

no doubt.	Anybody reads this would know
it was me."

And then he is asked the question: did he kill	her? The answer is 11 No 11 • Then there are some
questions about taking a lie detector test which
I will not go into. At the top of page 328,
line 10, or thereabouts, he is giving his view
of what had happened:

See, if they bring somebody into Court and

charge them with the murder case they want

this sex business in as well because that

makes another charge against this man.

But if the6 say, "No, she wasn't sexually assaulted,', then they can't turn around .....

C2Tl4/l/ND	17	6/9/88
Knibb

So, they've gotta keep playing this	II
up.

Question:

"The official cause of death of Miranda

Downes - the official cause of her death

was drowning. Do you go along with that?"

And he is asked to speculate:

"Well, I didn't know this before, but, yes,

I'll go along with this completely."

And so on, with the similar questions there.

Down at line 45 there is a question:

"If she was murdered - if someone killed

Miranda Downes, would you have any idea,

any theories, how she might have been illed,

how the killer would have gone about it?"

Answer:

"Um, since, ah, this incidence first happened

I believe there was two people on the beach -

so he is asked to speculate about how the person

would have gone about it. And, quite significantly,

on the next page, 329, approximately half-way

down, line 35 - the question:

11

••••• And if this woman was murdered -

I withdraw that, that is a comment by Mr Knibb.

" ..... And if this woman was murdered then

I would say the person who did it was a

very cold-blooded killer."

Question:  "A rapist?"

Answer:

"A rapist and a murderer and had done it

before because for this woman to have been

dumped in the water -

et cetera.	So he is asked to, as it were, qualify
the person.

(Continued on page 19)

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Knibb

1:1R McMILLAN (continuing): Over on the next page, 330,

question:

"Ernie, do you think it's possible that

Miranda Downes met one such person?"

That is a person he has been describing in less than glowing terms.

"Oh, well." "On the beach that night?"

"Anything is possible."

Then next:

"Ernie are you saying it's possible that

Miranda Downes might have met on that

beach that night one such person, a sex

killer?"

Answer:

"Yeah, it is possible, someone lurking

behind a rock?"

Then he is asked to comment, on page 331, in

similar vein. It is repetition. At line 12 or

14:

"In your estimation what are the chances

of murder? Slim chance or a big chance?"

Answer:

"I'd say 60/40 against.	I'd say there's
40% chance that she was	murdered and
there's 60% chance that	she died an
accidental death."

Question:

"So, you favour the drowning?"

Now, at line 30, he puts to Mr Knibb obviously

what he obtained from the police: "Police found bruising on Miranda Downes'

neck which suggests she might have been

strangled."

Answer:

"It may have suggested it, but you can go

in the water and be chucked about on the

rocks -

So he is asked to give his speculative view on how

that bruising could have come about. He is asked

C2Tl5/l/SH	19	6/9/88
Knibb

the same question again, at line 38:

"According to the pathologist the bruising

on her neck was consistent with manual

pressure."

And, if I could take the Court to page 332.	He
is asked a question at line 25 or thereabouts about what one police officer had said to him:

"What do you think the policeman is trying

to do?"

Answer:

"Cover himself for his big booboo that

he'd made in the first place because they

made the statement that somebody had run

up behind her, hit her with a blunt

instrument, viciously strangled her and

raped her and I can't run at all, I'm a

cripple."

And then he is asked this corrn:nent:

"Are you saying the policeman - a senior

policeman - was trying to trap you?"

"Oh, he was -

is the response. And then he returns, again, to

the theme about the bruising on the neck at line 55:

"We've seen the pathologist's report which

says that the bruising on Miranda's left

shoulder could have been caused by her being

struck by your rear vision and its bracket,
the mirror on your four wheel drive bronco

van."

The answer is:  "Impossible."

The same question again is put almost in similar

words. The next page, 333, line 5 or 6, towards

the end of the line:

"The pathologist also says that the bruising

could have been caused by her being struck

by your rear vision mirror and its bracket,
a solid bracket."

So he repeats it again and, again, in line 28: "You see, the pathologist's report is

suggesting that bruising on her left

shoulder could have been caused by the

C2Tl5/2/SH 2 0 6/9/88

Knibb (Continued on page 20A)

the kind of rear vision mirror and

bracket -

he has already got his response earlier on and

this is the third occasion that the question is

put and, although, he gives the same answer, the

information is being embedded in the jury's mind.

(Continued on page 21)

C2Tl5/3/SH	20A	6/9/88
Knibb

MR McMILLAN (continuing): In a different vein, in line 45:

"You're saying that it was impossible that

your rear vision mirror and the bracket

would have caused the bruising on Miranda

Downes' shoulder?"

He gives the same response.	Then at page 336
a different subject is touched upon.	He is

asked to consider what the police have done to

him and he then gives a catalogue of events

which could only indicate that the police had

him constantly under suspicion and the tactics

they used. He is asked a similar question at

line 55: "What do you think the police have done

to you over their investigation of Miranda

Downes' murder?"

His response:

they've caused public harassment against

me.

And so on. He is then asked at page 338 after

he has given this long catalogue of what has

happened; he has lost his vehicle and his caravan -

at line 15:

"Do you blame the police for this?"

And he once again gives a response expanding on why he thinks the police have done this to him.

There is also another reference to it at

approximately line 22.	He is then asked at
line SO:

"Ernie, what are you asking people to believe

as a result of you presenting your story

on 60 Minutes?n "I want people to understand

just how deceitful the police department is.

And at the top of the next page he asked the same

question again.

MASON CJ:  Well, it explains why the accused participated

in the interview.

MR McMILLAN: That is so, Your Honour.

MASON CJ:  He thought it offered him the opportunity of

putting his side of the case to the public.

MR McMILLAN: Well, Your Honour, the same comment perhaps

could be made, with respect, to a suspect who goes

voluntarily down to the police station and goes

C2Tl6/l/MB	21	6/9/88
Knibb

there to clear his name but is asked a series

of questions which would not, and could not, be

given in court. This is a similar situation.

The fact that the man volunteers is of some

preliminary significance, in our submission, but

once he has gone on that road he should not have

his rights stripped away.

MASON CJ:	There is nothing unlawful about this, is there?
MR McMILLAN:	Nothing unlawful.
MASON CJ:	And you have got to establish, if you can, that there
is some degree of unfairness that approximates

unlawfulness in relation to a voluntary participation

in an interview of this kind?

(Continued on page 23)

C2T16/2/MB	22	6/9/88
Knibb

MR McMILLAN:  It is something less than unlawfulness,

Your Honour, because the two terms are separate,

as used in the· authorities. It must be so

unfair. It is a difficult hurdle for an applicant

such as this to get over when you are dealing with
unfairness as distinct from unlawfulness, but as
we have been endeavouring to do, the style of
questioning, the speculative nature of it, the
allowing him to run on, as it were, putting himself

in and then having this material run before the jury

amounts to unfairness.

BRENNAN J:  Say this was in a police interview and appeared

in the depositions and that a case was about to

open before the jury. The first thing that would

happen would be counsel for the defence would say,

"I would ask Your Honour to exclude this evidence",

and some debate would take place as to whether

it should be excluded or not.

MR McMILLAN:	Yes.
BRENNAN J:	As Justice Deane has pointed out, sometimes counsel

want to have in an inadmissible question or answer,

or a question or answer that should not ordinarily be

allowed for tactical purposes.	Is not this a
classic case of that?

MR McMILLAN:  It must be met, Your Honour, with the abrupt

stop that one gets when one looks at the effect

of the whole of those tapes, that although the

point was not taken, although counsel for the

defence did not seek to raise it, yet it is such a

serious and important point that it must be raised

at the appellate level, and it was no doubt

considered so important by the Queensland Court

of Criminal Appeal.

BRENNAN J:  I was not thinking so much of the question

of the special leave here.	I was thinking largely
of the fact that here is a piece of evidence which

might contain material which, if it came in a

police confession, might be excluded. The counsel,

one can readily understand, would want it in.

"Pressured time after time, ladies and gentlemen

of the jury, were these	allegations, none of
them substantiated here.	What answer did he give?"

It makes great stuff for a jury address,

Mr McMillan, does not it?

(Continued on page 24)

C2Tl7/l/HS	23	6/9/88
Knibb

MR McMILLAN:  Your Honour has lost none of his touch before

a jury. I cannot argue with that, Your Honour,

and I will not repeat my submission. But that

aside, absent that, this is such an important

point - it IIllSt have affected the course of the

trial and the deliberations of the jury - that

we come here and ask this Court, the final Court

of Appeal, to look at this issue. It is not an

isolated issue, as Your Honours would be aware,

of media investigating serious crimes. So much it

was looked at in the aecision of REG V SAVUNDRANAYAGAN

AND WALKER, ( 1968) 1 WLR.

Perh~ps if I could take Your Honours just very

briefly to that to see what the House of Lords -

(1968) 1 WLR 1761.	I apologize, it is the
Court of Appeal.	Now this is where there had

been a television interview with a company

director who was eventually charged with

a white-collar offence. There were a number

of interviews taken. On appeal against conviction

the actual question of whether the interview

shortly before his arrest affected the conviction,

and at page 1764, at approximately point 8, is

the cormnentsmade by Lord Justice Salmon, who

delivered the judgment of the Court. He says:

The court, however, takes a very

different view of the television programme

of February, 1967, in which the appellant

Savundra was interviewed shortly after his

return to England. At this time it must

surely have been obvious to everyone that he

was about to be arrested and tried on charges

of gross fraud. It must not be supposed that

proceedings to commit for contempt of court can

be instituted -

that does not arise here -

No-one should imagine that he is safe

from cormnittal for contempt of court -

that does not arise here -

with the appellant Savundra was deplorable

With no experience of television, he was

faced with a skilled interviewer whose

clear object was to establish his guilt before

an audience of millions of people.

That latter part of the sentence does not apply

here:

None of the ordinary safeguards for fairness that exist in a court of law were observed, no doubt

C2Tl8/l/JM	24	6/9/88
Knibb

because they were not understood. They may

seem prosaic to those engaged in the

entertainment business, but they are the

rocks on which freedom from oppression and

tyranny have been established in this

country for centuries ..... On the other hand,

surprisingly and regrettably, virtually the

whole interview was reproduced verbatim in

one of the Sunday newspapers.

That does not apply here. I go on:

The court has no doubt that the television

authorities and all those producing ..... are

conscious of their public responsibility

and know also of the peril in which they would

all stand if any such interview were ever to

be televised in the future. Trial by
television is not to be tolerated in a

civilized society.

MASON CJ: But that is not the point that you are raising

here and His Lordship was not dealing with

an objection of the kind that you are now

arguing, namely that a number of the questions

were unfair and should have been excluded on

that ground. You will notice in the next

paragraph His Lordship went on to say that: regrettable though this interview

undoubtedly was, it affords no ground for quashing the appellant Savundra's

conviction.

MR McMILLAN:  Yes, that is so, Your Honour, but the general

comments - that is all I am seeking to gain any

comfort from - are the joint bases of our

submission on this point,that faced with a skilled

interviewer, he just opened up; there was no

warning and the second interview is more revealing

on this point, in my submission, and that is the

beach interview. (Continued on page 26)

C2Tl8/2/JM	25	6/9/88
Knibb

DEANE J:	Mr McMillan, am I right that no evidence at all
was called on behalf of the accused?

MR McMILLAN:  No, none at all.

DEANE J:	Which would have made counsel's task in deciding
whether to object or not a somewhat difficult
one

MR McMILLAN:  It would have because it is the only

material - - -

DEANE J:	- - -	in that by these means he got the accused's denial before the jury which he could not otherwise do unless he called the accused as a witness.
MR McMILLAN:	Yes, that is so. That may well have led counsel forthe defence to take the course he did.
DEANE J:	It is not a surprising decision, is it, when you
have got the accused on video before the jury proclaiming his innocence and standing up to someone
who, as you say, is a very experienced questioner.
MR McMILLAN:	Yes.	The form of the answers shows that

Mr Knibb would not be among the mincer group in

the community. He certainly thought that he could

trust this interviewer and tell him everything.

DEANE J:  Yes, I see the great force in what you say. This

had been admitted against the accused over objection,

but the more we go into it the more it seems

to me that counsel may well have had very good

grounds for deciding not to object.

MR McMILLAN:	We have to take that aboard and bear that point.
DEANE J:	And it would be a rather brave counsel, if a new

trial was ordered, who objected to this video
evidence in circumstances where he did not propose

to call his client.

MR McMILLAN:  Yes. Yes, those comments are well founded,

but all that can be said is the overall impact

had a more deleterious effect. The short interview

on the beach - if I could take Your Honours very

shortly to it.

(Continued on page 27)

C2Tl9/l/HS	26	6/9/88
Knibb

MASON CJ: This is the second interview?

MR McMILLAN:  This is the second interview on the beach

and at page 348 are the relevant passages -

still in volume II. At line 48 or thereabouts

he is asked this question:

11 Ernie, there's a point in your story which,

according to statements to the police doesn't

II "Wh I h ?" "Y

seem to stan up. d at st at. ou

said you turned off the beach." "Hmmmm." "After you waved and talked to the blonde

lady. II

Answer:

"Yeah, I waved and said 'Don't worry love

I'm just trying out me new car', that's

right."	"And then you left the beach. 11
11 That's	right."

Question:

"According to her statement to the police you continued down north in the direction

where Miranda Downes was last seen."

Response:

11Well, she is wrong." "That's the statement

she gave to the police."

Response:

"She is wrong then. Perhaps when I was coming off the beach here somebody else was going on the beach -

he expands.	The last line, the third time it
is put:
"She says she looked back and she saw you."

And then, the third line of the next page:

"She said she was."

Answer:

"Well, if she was looking off at me all

the way up the beach she's made a mistake -

And then, at line 8, or thereabouts:

"But she was" -

C2T20/l/ND	27	6/9/88
Knibb

He responds to that and then the question again, the sixth time:

police by the blond lady. 11 11 I'm telling you a statement given to the

So there it is being reinforced, in our submission,

before the jury and that is evidence which did

not come out when Miss Cunningham was examined.

She could not go that far at all and that is

of particular importance and significance because

it is the basis of the Crown case that it was

after he drove north from after seeing Cunningham

near that rock that he met the deceased. So

the jury had this before them in televised form.

(Continued on page 29)

C2T20/2/ND	28	6/9/88
Knibb

MR McMILLAN (continuing):  That is all that we can say on

that point.

MASON CJ:	Yes.
MR McMILLAN:	If I might deal next with the hypnosis point.

Now, this was a matter which was strenuously

objected to. The objections will be seen at

record 10 to 14. If I could just preface this

submission by referring to the factual events.

60 Minutes organized this hypnosis session. They

also did, it would appear, organize a lie detector
session but nothing came of that in evidence.

It was carried out by a local Cairns psychologist called Dr Milne. The interview was carried out

with Mr Knibb on a couch in the motel room.

There is clear evidence that the police and the

60 Minutes' reporters were outside in the corridor.

The police were observing it on a monitor and one

junior police officer was taking down notes of

what was being said.

The Crown put that tape in and called evidence,

not only from Dr Milne but from two experts in the
field; a Professor Sheehan and a Mr Mcconkey. It

was the last two people who were put up as experts

who said that the accused was faking the interview,

that he was not under hypnosis. The Crown, no doubt,

relied on that evidence as consciousness of guilt

relying on the WOON point. So that is the background

to the objection to the televised hypnosis session,

and it was played on a number of occasions to the
jury. It was played when Dr Milne gave evidence

and it was played through in portions on each of

the experts' evidence.

}

(Continued on page 30)

C2T21/l/MB	29	6/9/88
Knibb

MR McMILLAN (continuing): Well, the objection appears

at the foot of page 10 and goes through to page 14.

Now, there is a ruling by His Honour and that

appears at page 43. It is a conditional admission

because at line 28, at page 43, he says:

Notwithstanding the novelty involved

in allowing this material into evidence

I think it should be allowed although
again I repeat that it will require to be

done by editing out the reference to criminal

history in accordance with what I have already

said. This material produced on what has been

described as the hypnosis session contains

the accused's own statements of his movements

and observations at relevant times and is

capable of being viewed as assisting in the

determination of his guilt.

And then, the last paragraph on that page:

This ruling means that it will also be a condition of admissibility that the Crown

calls expert evidence providing scientific

opinion of the processes involved in

hypnosis and the results upon an

individuals ability, tendency and preparedness

to reveal matters known to him.

So that is the ruling by the learned trial judge.

It goes over the page but I need not weary the Court

with it.

Now, if I could now take the Court to page 420. That is in volume II. This is in the evidence of

Dr Milne and at line 12, my learned friend says:

I am not going to ask you some questions before we play the tape.

That should really be, "I am now going to ask you

some questions".

Is it possible to discover whether a person

is simulating or faking hypnosis?

So then he gives his view on that particular question.

I take the Court then to page 424, half-way down,

line 30, defence counsel says:

This appears to be approaching the question

of expressing opinion about an issue which

I understand my learned friend seeks to lead

from him. I want to argue what has been

said, the capacity of the witness to express

the opinion -

C2T22/l/SH	30	6/9/88
Knibb

ct1.d he ccrt:inues his objection that the witness had not gone far enough to express an opinion and at

page 427 there is an interim ruling at the top of

the page:

HIS HONOUR:  I am not in any way expressing a

final view, it is that consideration which

leads me to think the video should not be

shown at this stage.

Then, at page 428, there is a question asked of him by my learned friend:

Then in your opinion, was the accused

hypnotised or not?

And his response was:

Probably he was not.

Now, that is the response by a person who was actually

in the room and carried out the hypnosis test.

The next reference to the question of whether

the hypnosis session was faked or not will be found

at page 508 in volume III.

(Continued on page 32)

C2T22/2/SH	31	6/9/88
Knibb

MR McMILLAN:  This is where Professor Sheehan gives his

qualifications, and it would have to be acknowledged

they do appear to be formidable in this particular

area, and at page 513, line 22:

You saw the tape you told the Court, saw the accused, how he performed;

can you tell the Court whether in your

opinion the accused was hypnotised or

not?---Not hypnotised.

There is then run the whole of the tape. It concludes

at page 524 and from page 525 onwards appears the

basis of Professor Sheehan's opinion that the

accused was not hypnotized.	For example, at line 28
he talks about reflection,	he says it is not usual.

At page 531, still in-chief, he is asked by the

learned trial judge, at line 25, or thereabouts - - -

WILSON J:  Before you get to page 531, Mr McMillan, is it

relevant to draw attention to page 526, at line 30,

as another indicator -I think was the overplaying

of the role?

MR McMILLAN:  Yes, Your Honour. That is another indicator.

He is cross-examined at some length and at page 558

at the commencement of the cross-examination - I
will only take Your Honours to one passage of the

cross-examination -

MASON CJ:	What page is this?
MR McMILLAN:	Page 558, Your Honour, line 15 or thereabouts,

the question commencing "In summary", and the

response to a question about the objective

patterns is:

I think there are some patterns of

behaviour which I would say would be

reliable and definitive in that sense

but they were not tested in this case.

At line 30 the response:	I think there are few reliable
indices that only a hypnotised
subject will show.

(Continued on page 33)

C2T23/l/HS	32	6/9/88
Knibb

MR McMILLAN (continuing):  Mr Mcconkey gives similar

expert evidence. The only passage in-chief that

I wish to take the Court to is at page 584

line 10:

Is reflective thinking part of the typical

behaviour of a subject under hypnosis?---No,

it is not.

Your Honours, evidence arising out of a subject

being hypnotized has caught the attention of the
courts over a number of years. There is one

reported decision. It is, in fact, an unreported

account of WENTWORTH V ROGERS (No. 5). Although

that decision itself is reported in the New South

Wales Reports, this section dealing with

hypnotherapy was not reported. It is one of

those unreported decisions in the folders before

you. It is a decision of the Court of Appeal.

BRENNAN J: Are you seeking to challenge the views expressed

by Sir Owen Dixon in SINCLAIR's case.

MR McMILLAN:	Which case again, Your Honour?
BRENNAN J:	SINCLAIR, 73 CLR.
MR McMILLAN:	As to - - -?
BRENNAN J:	A challenge to the admiss.ibi:lity of the evidence on the grounds of the mental capacity of the person
from whom the evidence comes.

MR McMILLAN:  No, Your Honour, no. The basis of the

challenge is that the evidence itself should not

have been led in the first place, that is, the

hypnotherapy session - we would use the expression

used in WENTWORTH - because courts are reluctant,

or have been reluctant to admit evidence ,gained

under hypnosis, then that session itself, the tape

should not have been led. It is not as high as

being dangerous but the courts have not yet

convinced, have not laid down tests and guidelines

for the admission of this class of evidence.

It is a simple point that we seek to advance here.

WILSON J:  Is it a feature of any of the other cases that

you are aware of that there was expert evidence

that the subject was not hypnotized at the time?

MR McMILLAN:	No,. Your Honour.
WILSON J:	That seems to be an interesting aspect of this - - -

MR McMILLAN:	A feature that is different here, yes. appreciate the point, Your Honour.	I
C2T24/l/MB	33	6/9/88
Knibb

WILSON J:  And if it was open for the jury to, of course,

have regard to that and if they accepted that then,

perhaps, there would not be the danger that might

otherwise attend hypnotized evidence?

MR McMILLAN:  Yes, we must take that aboard but by the same

token this evidence - class of evidence, has been

subject to so much judicial adverse comment that

in the absence of a clear ruling from a court
of appellate level that the evidence, in the first
instance, should not have been led. That is

the simple point.

(Continued on page 35)

C2T24/2/MB	34	6/9/88
Knibb

WILSON J:	Were there any relevant directions with respect
to, for example, directing the jury that they
should only take that evidence into account
in so far as they were satisfied that the
expert opinion that the accused was not
hypnotized was accepted?

MR McMILLAN:  Yes. The judge gave a direction similar to

that and we would have no quarrel with his

direction, no quarrel at all.

WILSON J: Yes. So that thejury's consideration of what

was said by the accused during the hypnosis
session was confined to evidence which, on

the jury's finding, he was not hypnotized.

MR McMILLAN:	That is so.	He left it to the jury.
WILSON J: Yes.

MR McMILLAN:  He said, "It's a matter for you, members

of the jury, to be satisfied whether he was

hypnotized and then if you are not satisified

the Crown prevails upon you that you take. that

into account when assessing his credibility and the

consciousness of guilt." That is the approach

adopted.

DEANE J:  I do not quite follow: satisified on the

probabilities or beyond reasonable doubt and

that he was, or that he was not?

MR McMILLAN:  I would have to go to the exact ruling,

Your Honour, but my appreciation is that it did not offend my reading when I read the

direction ...

GAUDRON J:  But is that not really leaving the question

of admissibility to the jury? If it is

evidence emanating from hypnosis, is there no

question of voluntariness to be determined?

MR McMILLAN:  Yes, that question does arise, Your Honour.

GAUDRON J: And must surely be governance admissibility,

I would have thought, if it is tendered as confessional evidence, as it were, even though

it does not amount to a confession.

MR McMILLAN:  It was plainly tendered on the basis,

Your Honour, of differing versions of what happened and introducing some new factors,

particularly another vehicle that had its lights

on, and a concern which he exuded in the

television interview - that can be seen on the

tape, he becomes quite agitated when he reaches
this point in the dialogue. But there was no

confessional aspects, I would have to say.

C2T25/1/JM	35	6/9/88
Knibb

DEANE J:  But if we come to the question of voluntary, does not

the middle of page 317 dispose of that? As I

understand it, Mr Leslie's evidence,that they

only did this after the persistent requests of

your client that they do it, was not challenged

in cross-examination.

MR McMILLAN:  No. I see Your Honour's point. Yes, he

volunteered - right from the start this man

volunteered for tests. He offered tests to the

police right from approximately 5 August 1985

and then when he was being interviewed by

Mr Leslie he indicated that he would take

lie-detector - he seemed to waiver at some

stage on hypnosis testing but then he came up

with it. There is no suggestion that he did not

go into it voluntarily.

(Continued on page 37)

C2T25/2/JM	36	6/9/88
Knibb

BRENNAN J:  Mr McMillan, could I delay you just for a moment

because it seems to me that .:t.his matter was

considered in SINCLAIR's case by Sir Owen Dixon,and

I wanted to know whether you had any comments

on it and the passages that I have in mind are

in 73 CLR pages 334 to 337. His Honour there

refers to an Alberta case called BOOHA in which

a confession was rejected because it was not

voluntary, as being induced by hypnotism. And

His Honour goes on to consider the general principles

and deals with the question of the admissibility

of evidence on the supposition that the medium

of proof is untrustworthy. And, with reference

to the Alberta case, he assimilates that, perhaps,

to the case where evidence of what is said in

sleep is not taken to be legally admissible:

for here the suspension of the faculty

of judgment may fairly be presumed complete.

His Honour goes on to say, at page 337:

The suggestion that the complete suspension

of the faculties as by sleep makes what

is said inadmissible perhaps covers the

case in Alberta of hypnotism.

That kind of test, · 'complete'.suspens ion of the

faculties", seems to find a precise echo at

page 427 of His Honour's ruling in this case.

In other words, ''I am not dealing ·with the question

of voluntariness but with the test of admissibility."

Then His Honour goes on, at page 337, to say

these are questions which are always left to

the jury. Does not what happened in this case

accord precisely with the view expressed by

Sir Owen in that passage?

MR McMILLAN: Yes, it approximates it, Your Honour; it

does.

DEANE J:  Mr McMillan, while you are being interrupted,

have you a reference to the passage in

His Honour's summing up which dealt with this

aspect of the case?

MR McMILLAN:	Yes.	Page 992 through to page 993, Your Honour.
DEANE J:	Do not let me delay you;	I will just glance

at it myself.

MR Mc~l1LLAN: In response to Your Honour Mr Justice Brennan,

I would like to look at that point, perhaps

over the luncheon adjournment and perhaps respond

to it very briefly after lunch.

C2T26/l/SDL	37	6/9/88
Knibb

BRENNAN J: At the moment, as you can see, it is a matter

which concerns me to some extent and I would

be grateful for your best and most reflectful

response to it.

(Continued on page 39)

C2T26/2/SDL	38	6/9/88
Knibb

MR McMILLAN:  As we indicated earlier, it is a simple

point. Despite the clear objection from counsel

for the defence the tape itself and the expert
evidence was let in. It is our submission that
if the Court were to indicate that the original
hypnosis session itself should not have been
lead - put before the jury, then, of course,
the expert evidence would also be rejected as

being irrelevant. That is our point on that

particular issue.

I want to press on, if I might.

GAUDRON J:  Could I interrupt you, Mr McMillan. I have

just had a quick look at pages 992 to 993. Is

there a more specific direction to the jury about

the circumstances in which they make use of it?

MASON CJ:  The problem about that seems to be that His Honour

did not focus upon any question for the jury

to consider in relation to the evidence.

MR McMILLAN:  At page 1018, I am reminded by my learned

junior, he does not give a specific direction

there, Your Honours. He is referring to that part of the hypnosis evidence to link up what else has been said by the accused in the other

interviews. This is the "a woman standing in

front of him", particularly at 1019, 1020.

GAUDRON J: It seems to be left to them on the basis of

weight rather than use that they might make of

it.

MR McMILLAN:  Yes.

GAUDRON J:	Or to exclude a use being made of it if the hypnosis was genuine.
MR McMILLAN:	Yes, that appears to be how it has been left,

it is the weight to which they would put it when

assessing the other evidence. There is one other

reference to the evidence given under hypnosis

and that is in redirections.

MASON CJ:  Where is that?

MR McMILLAN:  At page 1041, line 20. Once again he goes

into - the learned judge does - portions of the

account given under hypnosis or during the course
of that session, I should rather say. And at

the end of that passage, it is at 1043 line 20,

he says:

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Remember, he is in a state of alleged and

possible hypnosis at the time but I do not

think anyone has ever claimed hypnosis

enables one to know facts never previously

known to the person being hypnotised.

Until I assess what is in SINCLAIR's case I will

leave this point but I do not expect to be long

when I return to it.

(Continued on page 41)

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MR McMILLAN (continuing): The next point at issue that I

wish to take the Court to is the unsafe or

unsatisfactory ground and there is a preliminary

point here that deals with the approach adopted

by the Queensland Court of Criminal Appeal in

ruling on the approach -

MASON CJ:  I think Justice Gaudron would like to ask you

a question.

GAUDRON J:  I am sorry. Could I take you back to the hypnosis

evidence. When eventually did the trial judge say

that that hypnosis evidence could go to the jury?

At page 427A he said he had given a ruling earlier

but that has been somewhat altered by Mr Milne's

evidence.

MR McMILLAN:  Yes. Would you just bear with me, Your Honour.

GAUDRON J:  I am sorry. Perhaps if you could do that after

lunch when you come to Justice Brennan's question.

MR McMILLAN: Yes, I will. Yes, there is a reference, I

believe, that has missed my glance at the moment.-

GAUDRON J: Yes.

MR McMILLAN:  - - - but is there.

GAUDRON J: And I am sorry to have taken you out of your course.

MR McMILLAN:  Not at all. I certainly appreciate Your Honour's

concern.

The preliminary point that I was taking the

Court to deals with the attitude adopted in the

Court of Criminal Appeal in Queensland since a

decision of SCOTT V COLLINS in November last year.

That decision followed on the heels of the decision

of this Court in MORRIS and SCOTT V COLLINS were

two accused who appeared for themselves and, obviously,

wished to raise what they referred to as the MORRIS	point and His Honour Mr Justice Connolly in SCOTT V
COLLINS, and a copy of that is in your folder, adverted
to the question of not allowing the whole issue of the evidence that was before the jury to be canvassed but
putting the appellant on notice and asking them to
identify critically the evidence. Now, it commences
at page 1 of Mr Justice Connelly's judgment which
was delivered on 16 November 1987. He refers to
the fact that the only ground was:

That the weight of the evidence is such that

a jury properly instructed could not have returned a verdict of guilty.

And deals with, as he refers to it, the recent restatement by this Court in MORRIS.

C2T28/l/SH	41/42	6/9/88
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MR McMILLAN (continuing):  There is then an extract from

Your Honour the Chief Justice's judgment in that

decision. At the foot of page 2 of those

unreported reasons appears the following passage,

which I will not take Your Honours to because it

is a restatement of what was said in MORRIS, but

at the foot of page 3:

The third is that the characterisation

of the court's function as the decision of

a question of fact, is not to be taken as

an invitation to embark upon general

appeals on the facts. It must be

remembered that any appellate court's

assessment of the evidence is, of

necessity, severely limited by the fact

that it has not seen and heard the

witnesses.

At the top of page 4:

The High Court in -

MORRIS, it should be -

granted special leave and allowed the

appeal by reason of what it saw as a

failure "to make a careful and

independent assessment of the critical

evidence ..... Should a similar situation

occur·in the future, the court will

expect the notice of appeal to identify

the critical evidence and its

deficiencies.

Now, in this particular case the matter is dealt with

again by Mr Justice Connolly at page 1096 of the

record, volume V. Half-way down that page - - -

MASON CJ:  What are you complaining of here, Mr McMillan?

I have not quite understood what the point is.

MR McMILLAN:  The point is that an appellant should not be

asked to identify, as particulars in his grounds
of appeal, those areas of the evidence which

he says should be reviewed.

MASON CJ:	Why not?
MR McMILLAN:	Because it is the whole evidence that is before

the court - the whole evidence that was before the

jury, I should say, has to be looked at. Now,

that does not mean that counsel for the appellant

stands up and starts at line 1 and finishes with the last passage of evidence. What it does mean

is that counsel for the appellant should be able

to point to those areas he identifies as being

C2T29/l/HS	6/9/88
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critical, but can address the court and show that,

taken as a whole, the evidence is such that the

jury's verdict is unsafe or unsatisfactory.

To limit, as was done in this case in the Court

of Criminal Appeal, to particular issues is rather

dealing with the matter as if it is a question

of law, namely was there sufficient evidence

to support a verdict, a different thing altogether

from the issue under the unsafe or unsatisfactory

ground.

MASON CJ:  But to ask a party to identify the critical

evidence and its deficiencies does not necessarily

shut a part out, does it, from making a submission

based on the totality of the evidence?

MR McMILLAN:  That would appear to be the approach which

was taken by the Court of Criminal Appeal because

the Court will observe during the course of

Mr Justice William's decision, which is the long

decision which deals with each of these issues,

he goes through and deals with the points which

I identified at their request as being important,

and the critical areas that had to be addressed.

BRENNAN J:	Did you lose anything by that?
MR McMILLAN:	Speaking reflectively, yes, because the

Court of Criminal Appeal, when they are sitting
and hearing an appeal based on this ground, must

look at the whole of the evidence, the feel of

the whole of the evidence before the jury. Even

taking into account such things as credibility

of witnesses one does not expect the court will

read the evidence, as I said earlier, from A to Z,

but it would expect that the whole impact of
the Crown case is to be looked at, as is the case here
where defence calls evidence the whole of the

evidence, but not to limit it to those points.

(Continued on page 45)

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MR McMILLAN (continuing): That is the way that Mr Justice Williams

approached his .. task because while a litigant is left

with a reservation of doubt that the whole of
the evidence has been addressed when these points

are addressed and then the final conclusion is

made.

BRENNAN J:  It may raise particular difficulties in a

circumstantial evidence case where the proposition

is that the substratum of facts was insufficient

to support the inference of guilt?

MR McMILLAN:	Yes.
BRENNAN J:	But in a case of this kind surely it is incumbent

upon counsel to take the Court to the passages of

the evidence which might be thought to support the

verdict and to demonstrate that those passages do

not, in fact, demonstrate or support the verdict.

MR McMILLAN:  Yes, and as was done before the Court of

Criminal Appeal.

BRENNAN J:  Well, that is why I asked you what did you lose

by it.	I mean, if you have done that, you have
done it?

MR McMILLAN: Well, I made a positive response because one is

left with this feeling that the Court of Criminal

Appeal only dealt with (a) to (g) of the particulars

and left it at that when they were dealing with

this particular ground.

BRENNAN J:  Was there an (h), (i) or (j)?

MR McMILLAN:  No. Counsel was left then to say that that

because one was brought into the confine of those

evidence, the critical evidence, taken overall,

left the court with that doubt which it must have.

particulars of that ground.

DEANE J:  Mr Justice Connolly seems to have taken the word

"critical" out of the context in which it was used

in MORRIS but, really, is he meaning anything other

than important and if it does mean that you have
to identify the important evidence, is there anything

wrong with that?

MR McMILLAN:  There is nothing wrong with that, Your Honour,

in my respectful submission, if counsel can then

address the court and indicate that those are the
important aspects of the evidence but take it into

account with other evidence and identify it, the

jury, a reasonable jury -

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DEANE J:	But you must be able to do that?	I mean, you must

be able to say there was no evidence of something?

MR McMILLAN:  Yes. It is particularly important, as

His Honour Mr Justice Brennan observed in the

circumstantial evidence case, as this was.

DEANE J:	But there v.10uld still be nothing wrong in requiring an
identification of the important evidence even if
no particular item of evidence could be said to
be critical, as it could in MORRIS' case?

MR McMILLAN:  Yes. It may be, at the end of the day, that

it is really a question of emphasis and degree

but it is the way that the Court of Criminal

Appeal in Queensland has sought to, in our respectful submission, confine counsel for the appellants

when addressing this ground.

DEANE J:  And do you suggest they read that sentence from

the Chief Justice's judgment at the top of page 4

as meaning that they do not have to bother about

any other evidence?

(Continued on page 47)

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MR McMILLAN:  That would appear to be the interpretation

which can reasonably be placed upon it.

BRENNAN J: That would be inconsistent with what has been

said in all the cases in this Court about the

duty of an appellate court, would it not? If it

was confined in that way, in other words, to

regard evidence in isolation from its context.

MR McMILLAN: Certainly, I will be addressing the Court

on several issues under this ground but I would

also be inviting the Court, with respect, to

see those important areas against the background

of the overall case. And the court when it reserves

decision, should not be confined in arriving

at its decision to those critical areas which

counsel for the appellant was required to identify.

The court should be free - an appellate tribunal

should be free to range over the whole of the

evidence.

If that is what the CCA in Queensland is

saying, we can have no quarrel but if what they

are saying is that, "We will only look at that

evidence which the appellant has identified."
then, with all respec½ that is an incorrect approach.

I do not believe we can put it any higher than

that.

When one looks at the authorities, from PLOMP

onwards, HAYES, CHAMBERLAIN up to MORRIS, that seems to be the basis of the way in which this

Court has approached this ground, that it looks at the whole of the evidence but it is assisted

by counsel for the appellant identifying important

areas and it is our submission that in adopting

the COLLINS' point as it has in this case it

is too restrictive and this Court should rectify

the matter by indicating that, in our respectful

submission, the Court still has an overall

supervisory role and can identify other

unsatisfactory ·elements of the jury's verdict.

That is our submission on that preliminary point.

If I could then go to several of the issues

which we say can be identified as important:

the Crown case, essentially, is set out at

page 913 - it is in volume IV.

WILSON J: Before you go on, Mr McMillan, did the direction

of the Court of Criminal Appeal and the consequent

submission of grounds of appeal that identified

certain parts of the evidence, did that inhibit

the presentation of the accused's case in this

particular case - of the applicant's case?

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MR McMILLAN:	Yes, in my submission, it did because one could only point to those particulars and address
on those particulars.
WILSON J:	I guess it gets back to what has already been
discussed as to why that should have shut counsel out from a totality argument in the light of those important parts of the evidence viewed as a whole?
MR McMILLAN:	Yes.
WILSON J:	And was that not argued?

MR McMILLAN: It was argued in the dying moments, as it

were, that the totality of the case had to be

looked at but when one reads the judgment the

court, particularly Mr Justice Williams' judgment,

appears to be addressisng itself only to those

particulars.

WILSON J:	Of course, an appellate court must depend, and
can rightly depend, on counsel to draw its attention
to all the aspects of the evidence that are
there on the submissions.

MR McMILLAN:  Most assuredly. But the appellate courts

often, themselves, range outside those points

if, on reflection, they peruse other aspects

of the transcript. In a nutshell, the concern

of the applicant in this case is that if that

ruling does not prevent a Court of Criminal

Appeal looking at the totality of the evidence

and comparing evidence which has not been adverted

to, then we can have no quarrel.

WILSON J: It is directed to counsel, not to itself?

MR McMILLAN:	Counsel does not know if other issues have been looked at, if this appears to be the approach
of the court. Counsel must then identify
perhaps 20 or 30 separate particulars - otherwise
he is not performing his function.  That is
the danger that we submit to this Court, that the Court of Appeal should not be restricted
when it is considering this ground but counsel
should identify what he or she considers are
those important aspects.  We could have no quarrel
with that.
WILSON J:	Thank you.
MR McMILLAN:	At page 913 appears the observation by my

learned friend as to what the Crown case essentially
was. It is at line 40. There was then a dialogue
for some pages between my learned friend and

the learned trial judge but one is left with

that being the essential point. It is the nub

of the case.

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At page 958 in volume V, His Honour addresses

the jury on what is the Crown case. It starts

at line 1. As His Honour directed the jury,

the Crown case was:

that Miranda Downes was run into by a motor

vehicle ..... and ..... that manu~l pressure

was applied to her neck and throat, that

she was manually choked but that her actual

death was caused by the fact that she

was drowned.

The trial judge then puts to the jury what can

be the particular verdicts that they can arrive

at after considering the evidence.

(Continued on page 51)

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MR McMILLAN (continuing): And, at line 49, he introduces

the actual evidence or case of the Crown:

If the accused deliberately ran into

Miranda Downes with whatever motive and

left her immobilised in the path of the

tide so that she drowned you could then

conclude that he had caused her death.

And then, at line 10 on the following page:

He could equally cause her death, if after

a deliberate collision he manually choked

her, that is, he applied manual pressure
to the neck and throat and thereby left

her immobilised in the course of the tide

so that she drowned or he partially choked

her and drowned her in the sea.

Then, half-way down the page, he deals with an unintentional collision and then a manual choking:

And left her immobilised by that action in

the path of the sea ..... he would be causing

her death and depending on what intent -

certain verdicts would flow.	Then, at line 50, he
says:

If the accused collided with the deceased unintentionally ...... for example, panic or

a desire to escape responsibility, he simply

left her on the beach so that she drowned he

might in a sense, as you will see, be causing

her death by his actions, but he would not in

such a case be criminally liable because

there would be no willed or intentional act

by him in relation to her. That is in the

case where he unintentionally collided with

her and performed no other relevant willed

or intentional acts in respect of her.

So that is the Crown case as put by His Honour.

At 1045 - - -

BRENNAN J: Well, that is as to the element of causing death

unlawfully.

MR McMILLAN:  Yes. That is dealt with, Your Honour, at 960,

in the sentence at line 20. He also deals with it

in the redirections at page 1045, line 15:

I mentioned to you this morning going

carefully through it the two possible cases

where, dependent on the view which you took

of the fact of the Crown case, murder or

alternatively in that context, with changes

C2T33/l/SH	51	6/9/88
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being made in the two cases, manslaughter

might be found. I recall I did mention to

you in that same context another case, that

is, another set of circumstances wherein you

would not be able to find him guilty. The

last one was that if you thought the proper

conclusion was that he collided with the

deceased unintentionally and then did

nothing more, that is, for whatever reason

out of panic or a desire to escape

responsibility, he left so that she was on

the beach and drowned, that although in a

sense he might be causing her death he would

not be responsible because it was not an instance of a willed or intentional act.

(Continued on page 53)

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MR McMILLAN:  Then he went on to explain that further, and

at line 55, or thereabouts, says:

So, to make it abundantly clear I propose

to tell you again what I said of those two

cases -

and over the page he then repeats and spells out

again what they must be satisfied of. At line 40: you can ..... only find murder if you find

the acts causing death were accompanied at

the time with one or other of those two

relevant intents.

That is, he manually choked her and left her

in the path of the tide, or he partially choked

her and drowned her in the sea.

The second case, and the only other possible

basis upon which I am directing you ..... is

on the basis he collided with her unintentionally,

and if that is what happened, if he then, for

whatever reason, choked her by holding her

throat and neck with his hands and left her

immobilised by that action in the path of the

sea, so that she drowned, I said to you this

morning, and I say again, you could conclude

he would be causing her death and depending on

what intent might be deduced, it might be

murder -

down to half-way down the following page.	So that
is the case that the jury was left with.

This was a case where the timings were critical

as to presence of the accused on the beach, and the

presence of other people. In the evidence of

Mr Lutton at page 371 - that is in volume II, he

speaks about the time it took to travel along the beach, that is from the northern end of the rocks down to the large single rock. So much appears

on page 370, at line 40, and at the top of page 371

he is asked as to the estimate of time travelling

at 30 kilometres an hour and at that speed he

said it took 3 minutes 35 seconds, and this was

in a Toyota four-wheel drive vehicle.

Then what happened?--We commenced again at

a speed of between 15 and 20 kms ..... and

recorded the time as 5mins. 55 secs.

Now the evidence of Cunningham and the evidence

of the accused, which he gave in all of his varying

versions, is that he drove on three legs: he came

down on to the beach, drove up to the northern end,

drove down to the south, to the large rock, turned

C2T34/1/JM	53	6/9/88
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back again, and his version is he then came off

the beach. Cunningham speaks about a similar

number of trips and she can only speak about -

she is down near the rock on that last leg and
he passed her going northwards. Mr Murphy, who
was a person described as the older person, and

he and his wife were parked in a Mercedes Benz

vehicle in that car-park - c~n I take Your Honours

to page 608, line 35?

(Continued on page 55)

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MR McMILLAN (continuing):  The accused had come to that

beach earlier that afternoon. He had helped

three young men to debog their vehicle on the

beach. He then spoke to Mr and Mrs Murphy and

then, at this reference 608, 40, he is asked

this question:

at approximately what time did he go on

to the beach?---About 15 minutes past 6.

Then he is asked, on the follow page, at line 23:

About what time did he come back again?-- Estimated time of the time he had been away and the time it took us to get into that position, I'd say about 6.45 when he came

off the beach.

So Mr Murphy puts him on the beach for a period

of half an hour. If one used the slower speed

of an estimate of 5 minutes 55 seconds to do

one leg, then it is incumbent on the Crown case

that there had been a minimum of three lengths;
that is, if he did have contact with the deceased

it was on the third leg, the leg going north. And from a timing point of view he would then

have to come off the beach to be back in the

car-park for Mr Murphy to see him at approximately

6.45.

Three runs up the beach would be, at that

speed, 18 minutes or so. Four runs up the beach,

of course, would put it at 24 minutes. He has

to go on to the beach and come off the beach

and even allowing for only a minute for him to

get from the car-park on to the beach itself,

which is a rather short time, one gets very close

to that half hour period that one infers from

Mr Murphy's evidence. And that, the applicant

says, is one of the Crown's major obstacles.

GAUDR0N J: Is that really what the evidence of

Mr Lutton was, at page 370? The measurement

he made was from the southern entrance to the

northern rocks and round, back to the southern

entrance, around the rock and back. And that

was said to take 3 minutes 35 seconds, not

3 minutes 35 seconds - - -

MR McMILLAN:  That is at 30 kilometres an hour.

GAUDR0N J:  But not 3 minutes 35 seconds per leg. And

similarly for the 15 to 20 kilometres.

MR McMILLAN:  Yes, Your Honour, you are quite right. It

is a double trip. It is a complete trip.

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GAUDRON J: It is the trip that the accused said he made,

is it not?

MR McMILLAN:  Yes, and slightly more, to get and off the

beach. And that is at between 15 and 20 kilometres

and not allowing for any stopping at the northern

end or stopping at the southern end and there

are witnesses who will speak to that, seeing

the vehicle stopped.

(Continued on page 57)

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MR McMILLAN (continuing):  On times: if I could merely

indicate the presence of other witnesses at or

around the time.	Miss Fairfield and Mr Alexander
were travelling together.	They were on the beach

at approximately 5.30 and so much will be seen

from the record at page 239, line 50, and page 245,

line 50. Mr Murphy - - -

WILSON J:  For how long were they there, Mr McMillan~

if they were on the beach about 5.30?

MR McMILLAN:  They were there for some length of time.

Fairfield says she went for a walk on the beach at

5.30 and she sat on the rock at the northern end

for approximately 20 minutes. She gives other

versions of it could have been up to 40 minutes.

That comes out at transcript page 239, point.50,

and when one comes to 5.45 to 6 o'clock you

have Cunningham - her evidence - she was only guessing,

she said she had no watch, and she gives an account

of being on the beach approximatley at 6 o'clock.

I take the Court to that evidence. It is important.

She got home, she says, at approximately 6.20,

and that appears at record 650, line 1, and at

line 8, or thereabouts she says that she:

probably saw the vehicle for

the first time -

saw the accused's vehicle -

for the first time around 6 o'clock.

As to her giving estimates, at page 652, line 28

she is asked in cross-examination:

Did you think it might have been

inaccurate in that the 10 minutes

allowance which you had really made from

the rock to the house and the 6 o'clock

estimate might have been inaccurate in

that you probably saw the vehicle closer

to ten past 6 or before 6?

(Continued on page 58)

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MR McMILLAN (continuing):  She said:

I am pretty sure about my timing walking, but as far as the time when, you know - I

know from a place to a thing up there how

far it will take me to walk, but I don't

know in relation to just walking along a

beach exactly the time that I saw somebody

walk by me and the time I saw lights.

And at 653 point 30 she is asked this question:

We can go back to the proposition that it

is really hard for you to say when it

was that you first saw the vehicle on the beach coming towards you?-- I know it was

definitely getting pretty dark out there.

Now, Fairfield's evidence, as to what is happening

at this time, will be found at record 236 line 30.

This is where she said that she had been walking back:

As you walked back did you actually look

right along the beach?--Yes.

As you were walking back no vehicle at all?--No.

Earlier up that page, at lines 4 and 5 is where

she says:

It could have been about 20 minutes or so -

that she was sitting at the northern end of the beach.

BRENNAN J: What are these times designed to show, Mr McMillan?

What are we looking for here, absence of opportunity?

MR McMILLAN:	Yes, opportunity, evidence of opportunity.
BRENNAN J:	Well, you are saying evidence of lack of

opportunity?

MR McMILLAN:  Yes, from the Crown's point of view. From

the defence point of view the times are important

because it indicates numbers of other people who

were around the beach at that time; Murphy fixes

the accused coming off at 6.15 to 6.45.

(Continued on page 59)

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BRENNAN J: There is only one couple who had any reference

to watches, at this stage, was there not? The people

who were going to go and launch their boat at

Ellis Beach were the only ones who looked at

a watch.

MR McMILLAN:	Yes, they particularly were conscious of the time because they were wanting to time that
journey.  They were going to launch a boat at
Ellis Beach either the next day or shortly - I believe it was the next day, it was the Sunday.
So they timed themselves from Cairns to Ellis Beach and the time they left Ellis Beach.

DEANE J: Mr Murphy looked at his watch, too, though, at

one stage?

MR McMILLAN:  No, from my memory, and I will confirm this

later, he relied on the darkness aspect and

the next night, so I understand it. That is

how he fixed the time in relation to 6 o'clock.

DEANE J: · At page 608, line 40, he says:

Did you make any notes of the time?

---Not just then, I just happened to look

at my watch because I was thinking as we

were going to move across the park, to

park for the night.

(Continued on page 60)

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Knibb
MR McMILLAN: That is 609, line 20:

You said when he left it was about 6.15

because you happened to look at your

watch?---Yes.

Yes. It must have been the sunset time that I

am thinking of, Your Honour. That is why particular

times are critical and the presence of other vehicles

on the beach likewise is critical. If I could take

the Court to the evidence of Mr Gilbert. Mr Gilbert

was a young man who was camped at the car-park and

he was preparing a meal at the time that he saw

lights at the top end of the beach.

GAUDRON J: That is the northern end, is it?

MR McMILLAN:  Page 222, Your Honours. 291, I am sorry. Now,

Mr Gilbert was not an ordinary camper. His

occupation was ,that of a mechanic.	That appears at
line 8 or thereabouts.	He had been a mechanic

since he left school but at page 293, approximately

line 35, he was cooking his tea and he estimates

the time at being 7 o'clock because:

The sun set about half past 6 and it got dark

about 7 and then that is when I started to

cook tea.

At approximately line 28, he indicates that:

As I was cooking tea I noticed to the north a set of lights. They were flickering and

as it is, the cars sweep north up there to

the headland and come down past as you can

see on the photo.

(Continued on page 61)

C2T39/l/SH	60	6/9/88
Knibb

MR McMILLAN (continuing):  He is obviously referring to the way the cars

come along here and turn at the headland.	He is
referring to the north.	Then if I could take

the Court to page 295, at line 3, approximately:

Then what is the next thing that

happened, if I might put it that way?--

I proceeded to cook my tea, ate it, ate

my tea.and then I didn'.t relax or

anything, I just got up so that was a

time lapse of 15, 20 minutes, went down
to the beach, washed up my utensils,

turned around, walked back up, walked

back up the beach to where I was staying

at the second carpark and just as I got
to the top of the dune I heard a motor to
my right just to the north and then I

turned around and this car proceeded to

go - a short wheel base - four-wheel drive,

solid looking car, stood tall, proceeded

to go past me in front of me.

He says it was a V8 further down:

You could hear the noise and it

then it proceeded to go down.

He did not see where it went after it had gone into

the major car-park. He is asked how he estimates

the times, at line 30, and he once again uses

the estimate, the 20 minutes after he finished

cooking his meal. Then to identify that particular

vehicle at the foot of page 296 he is asked a

question at line 52, or thereabouts:

When dealing with the vehicle you saw that night in relation to size and shape was

that in any way consistent with what you

are seeing in that photograph or not?-- statement, it was a short wheel base - 4

wheel drive with boxed shape ..... It had

a canopy on the back - this has got a

canopy on the back.

(Continued on page 62)

C2T40/l/HS	61	6/9/88
Knibb

MR McMILLAN· (continuing):  Then, in cross-examination,

he was asked questions to describe the vehicle

and, at the top of page 300, line 3:

Did you also suggest that your

description of the vehicle was it appeared

to be a short wheel base international

scout, four wheel drive?---I wasn't using

that as a definite - I was using that as

a reference, like as a reference to describe

a solid boxed shape car, I don't know what

it was - it looked like an international

scout.

I am only asking you whether that was in

your statement, for a start, "I saw that

the vehicle was what appeared to be" - not definite - "appeared to be a short wheel base international scout, fawn in

colour", is that what you said?---Yes.

He is then asked to clarify the timings and

is particularly asked whether that vehicle went

past later than 7 and he said:

Definitely.

The learned trial judge, at line 50, asked him

to give how he estimates the time. He said:

I know when it got dark - at half past

six. Sunset about half past six, it got

dark to turn on the lights at seven o'clock

after the twilight.

That is the evidence of Mr Gilbert.

MASON CJ:	It might be a convenient time. We will adjourn
until 2. 15, Mr McMillan.
AT 12.46 PM LUNCHEON ADJOURNMENT

C2T41/l/SDL	62	6/9/88
Knibb

UPON RESUMING AT 2.20 PM:

MASON CJ: Yes, Mr McMillan.

MR McMILLAN:  Thank you, Your Honours. Your Honour

Justice Brennan raised the SINCLAIR decision

and the judgment of Mr Justice Dixon. I had

a look at that over the luncheon break and as

I recall it, there were two sections of

His Honour's judgment that Your Honour was

directing me to, that is, at pages333 and 335,

the paragraph on 333 commencing with:

In the principle -

and the other paragraph on 335 dealing with:

A confession obtained after the use of

hypnotic suggestion -

In so far as the first paragraph is concerned,

His Honour, of course, was directing his mind to a confession as such and whether it could be

admitted or no because of its lack of
voluntariness. That, as I apprehend it, is not

the situation here, Your Honour. It is the - - -

BRENNAN J: I am afraid we stopped a page too short in that case.

It was 337 that I had in mind.

MR McMILLAN:  337.

BRENNAN J: Yes.

MR McMILLAN:  Yes. If Your Honour could direct me to it.

BRENNAN J: The bottom of 336 and the top of 337 down to the

end of the first complete paragraph there.

MR McMILLAN:  Yes. Well, that paragraph starting with:

The suggestion that the complete

suspension of the faculties -

of course, Your Honour, would tend to support

those authorities later in time than SINCLAIR
that caution against the admission of evidence

which has been obtained through hypnosis. They

do not put it in those terms. For example, that

New Zealand decision of McFELIN raises general

concern and lays down some guidelines but what

Mr Justice Dixon is raising there is certainly

one item for concern when one comes to deal with

hypnosis evidence as such and I certainly embrace what

Mr Justice Dixon is saying there.

C2T42/l/SH	63	6/9/88
Knibb

BRENNAN J:  Then he goes on to say modern practise is

to admit evidence and to allow the jury to

determine the question of weight, but however

there is no objection to the admissibility of
this evidence except that which you showed us

earlier today?

MR McMILLAN:  Yes. Justice Gaudron, you raised the

question of any direction other than the directions

that I had referred to. There is no direction

later in time than that contained at page 507 of

the record. It is left up in the air, as it were,

and counsel has proceeded to allow the evidence

in after_that point. Yes, page 507 is the

latest in time - there is no other mention of it.

There is a direction at page 506, and the previous directions are at pages 426, 427 and 427A.

If I could continue, Your Honours, with a

brief conspectus of the evidence that seeks to

evidence of Mr and Mrs Frank. That commences at

link the accused with the events on the beach and

page 692. Justice Brennan referred to it earlier

today, and this is the couple who were seeking to

find out the timings for leaving home to launch their

catamaran the Ellis Beach Yacht 8lub, and so

Mrs Frank in particular was clocking the time and

the distances. At page 692, at line 30, they

left home at 5.58 and they were endeavouring to

get back before the 7 o'clock news. At line 48

they pulled into the Ellis Beach Yacht Club at

6.15. Ellis Beach, of course, would be the beach

to the north of Buchans Point Beach.

(Continued on page 65)

C2T43/l/HS	64	6/9/88
Knibb

MR McMILLAN (continuing):  Then they walked down to the beach

and got back - to come home - into the car.	It was 6. 38.
That is at line 18. They say_they arrived hone at 6~55.
That appears from line 25.	She is then taken

back to recount what she saw and as they are

driving north they saw a vehicle as they come

over Buchans Hill, and it was stopped on the beach

at the southern end of Buchana Beach. "It looked

out of place", she says.	So that would have
occurred shortly before 6.15.	She estimates

it at 6.13 - that is at the top of page 694 -

because she says:

it's a two minute trip from that	point
through to the yacht club, but I	didn't
look at the clock then, I wasn't	timing
it.

So that is only an estimate. Then they ·eturn -

and reference to that is found on page c;15 & 696 -
it is a double-page reference - at line 38 or so.

They are on their way back.

From there tell us what you saw at Ellis
Beach?--We got into the vehicle, drove back

out into the main road and we proceeded.

We had to slow down because there is a bend

just at the north of Buchana Beach. We

Straightened up around the bend and then

we looked over.

(Continued on page 66)

C2T44/l/MB	65	6/9/88
Knibb
MR McMILLAN (continuing):

I looked onto the beach -

she corrected herself -

and noticed the vehicle driving on the

beach.

.... It was driving southwards.

.... it appeared to be the same, or similar

vehicle, to the one I had seen stationary

She says she had a better view of the vehicle

because they were closer and:

it seemed strange it was driving along

the beach.

And the colour:

appeared to be a yellow colour ....

Further on, after the luncheon adjournment, at

line 30, the colour appeared:

to be a soft yellow colour and it was

lighter on the roof - now, the evidence was that the accused's vehicle

was a yellow type of colour. Mr Frank cannot

shed that much light on the sub_iect. His evidence

is quite short. It is his wife who carries out the

observations.

If t might then turn to the quite short

evidence of a Mr McGregor? He is at page 823.

Mr McGregor is a manager, living at Trinity Beach

and he went up to the Clifton Village Service

Station to get fuel before 7 o'clock. At line 25,

or thereabouts, he says, while they were:

talking and filling the fuel a Ford Bronco drove
in and the driver shouted, "Where's the air?"

He was asked whether he could recognize the accused in Court and he replies:

I would say that is the man.

(Continued on page 67)

C2T45/l/JM	66	6/9/88
Knibb

MR McMILLAN (continuing): There is a conversation between

the two of them and he is asked evidence about the distance between Buchans Point and Clifton

Beach and he cannot give it. He gives the

estimate of 7 o'clock, because he was under the
impression that that is when the service station

closed and he says that this happened again at

6.45. He says:

It was a yellow Ford Bronco -

was the vehicle and -

it had N.S.W. plates.

And he looks at a photograph of the vehicle -

exhibit 37 - and says the vehicle was similar.

He is asked how the person was dressed and he

says:

A light coloured shirt and dark trousers

from memory.

In the statement which was given to the police,

which is exhibit 42, Mr Knibb says, at page 4

of that statement:

I cannot recall exactly what I was wearing on this date but I seem to recall that I

was wearing blue track suit pants and

possibly a white top.

That tends to fit in with the description as

being at this service station at 6.45.

DEANE J: But where is all this going? Is it to show

inconsistency, or what?

MR McMILLAN: It is going to show, Your Honour, that the

accused was at this service station at

approximately - - - (Continued on page 68)

C2T46/l/ND	67	6/9/88
Knibb

DEANE J: Well, I was really talking about all of the time.

In Mrs Frank's evidence, as I follow it, is that

she saw the vehicle stationary on the beach and it was still on the beach 25 minutes later when

she drives back.

MR McMILLAN:  Yes.

DEANE J: Well, now, if it were your client's vehicle and it

was the only vehicle on the beach, what do you get

out of her evidence that is helpful?

MR McMILLAN: Well, we do not resile from that evidence but

when you look at Mr Gilbert's evidence that, after

7 o'clock at night, there was another vehicle. He

says originally it was something like an international

scout comes rushing off the beach and that is later.

DEANE J: Are we referred to Mrs Frank's evidence only for

completeness rather than - - -

MR McMILLAN:	Yes, that is so.
DEANE J:	I follow.

MR McMILLAN:  Yes. I do not wish to avoid it at all but it

was only a short reference.

So, at this point, one can make the submission

that the accused is seen by somebody else quite openly

at approximately a quarter to 7 at some service station.

We do not know how close it is to Buchans Beach. Now,

as His Honour observed in his summing up to the jury,

this was a case which essentially required an

examination of circumstantial evidence and as the

case was put to the jury he either struck her vtlb.7. intent

to injure her or to kill her and left her in front of
the tide or took her out into the water and drowned
her or he struck ner uninterttionna.lly and took the
opportunity to place his hands round her neck and

then leave her in front of the incoming tide or took

her out into the water. (Continued on page 69)

C2T47/l/SH	68	6/9/88
Knibb

MR McMILLAN· (continuing): All this other evidence, in our

submission, does not get to the point of linking

the accused himself with driving a vehicle which

struck the deceased. There is another vehicle

on the beach, if Mr Gilbert's evidence is taken

into account; there were other people generally

on that beach, and on the basis of looking at

a rational hypothesis consistent with innocence,

it is our submission that even at this point

one finds some difficulty in embracing with approval

the verdict of the jury.

The verdict of the jury can be explained,

in our submission, by the introduction of other matters which reallydid not go to the Crown case

and I refer particularly to the sexual evidence,

as it has been termed in the court below.

There is evidence that a pair of female briefs

were found in the car-park in which the defendant

egressed from the beach. They were found the

morning after the timing of death. There was

a recognition of sorts by the mother of the deceased,

that is Mrs Combe - that is at record 473 line 21

to page 475.

That evidence on its own could not satisfactorily

identify those particular undergarments as being

referable back to the deceased and no one else.

(Continued on page 70)

C2T48/l/SDL	69	6/9/88
Knibb

MR McMILLAN (continuing):  It is a public beach and, in

fact, it is - there was a reference to it being

a known nudist beach. That comes out in the

evidence of Detective Gray, page 172, line 33.

The prosecution spent some time on analysing the

findings by the pathogist of spermatoza in the

vagina of the deceased and the scientific evidence

was that it could remain after original introduction

of up to four days. A concession was made by the

defence whereby another person, a male person,

some three days before these events admitted

having intercourse with the deceased. It is

somewhat difficult then to see how that evidence

could advance the Crown case. It could not have

been probative but it was highly prejudicial

and it is well recognized that evidence
particularly involving a murder of any sexual
connection is, in itself, prejudicial.

So we submit that that is one basis which can explain the general concern which a jury

would have when that evidence was brought in.

The learned judge did, in his summing up, speak

to the jury about the matter, and that will be

found at page 967, at approximately line 40.

He has dealt with evidence of the cutting and

ripping of a T-shirt belonging to the deceased

which had been found some days after her death.

He refers to the weighting of pockets of the

track suit and then goes on:

The bringing of the pants to the

car-park - if you are satisfied they

are hers, if you are satisfied that all

this, in the terms in which I described

it was done. But, be careful since in

these actions there might be some attempt to disguise an accidental

collision.

There is no warning, as such, contained there.

There is no warning contained in a passage at

page 980, line 11. There is some detail of when

those briefs were found and comment made about the

common material in those garments, and His Honour

the learned trial judge really leaves it up to them

as to how they got there.

(Continued on page 71)

C2T49/l/HS	70	6/9/88
Knibb

MR McMILLAN (continuing):  He makes the interesting

observation of Mr Murphy: did not see the accused

stop at the point where the garments were found.

So, all in all, it is our submission that the

introduction of that evidence could not have

advanced the Crown case, as they finally put it

to the jury, one iota and yet its prejudicial

effect must have been substantial.

WILSON J:  In what way was it prejudicial, Mr McMillan?

It did not point to the accused in any way,

did it?

MR McMILLAN:  No, it did not, it did not point to the accused

at all. He voluteered, as Your Honour will recall,

for tests when asked upon - I should withdraw that.
He had no objection to any test when asked on

5 August.

WILSON J:  Yes, I can appreciate that it may well have been

inconsequential. I just have not gathered why you

say it was positively prejudicial.

MR McMILLAN:  Yes, it was inconsequential.

WILSON J:  Yes, I can see that. In what way was it

positively prejudicial?

MR McMILLAN:	Any connnent or suggestion of sexual activity - - -
WILSON J:	But the body was found naked so clothes were somewhere?

MR McMILLAN:  That is right. It appears that there was

sperm within her.

WILSON J:	But the pants did not show any confirmation of that?
MR McMILLAN:	No, they did not, but they might not have been

her pants.

WILSON J: But that simply underlines the inconsequentialness

of it. I am searching for the prejudice, from the

introduction of it.

MR McMILLAN:  Well, the prejudice is that this evidence is,

as it were, thrown in to the court room and the accused is on trial and a jury could not be - I

withdraw that. The jury would have some difficulty

in coping with that evidence.

WILSON J:  Well, the judge made it plain that it was for

them to decide whether it had anything to do with

the case at all?

C2TS0/l/MB	71	6/9/88
Knibb

MR McMILLAN:  Yes, but I am indicating how this verdict,

which does not appear to be, in our submission,

a safe one, could be arrived at by a jury. This

is one basis of doing it, that is, the

prejudicial effect of this evidence of sexual

activity.

MA.SON CJ:  Yes. You are merely using this at the present

time to explain how it was that the jury might

have arrived at this verdict on a basis of prejudice,
you are not using it as a ground for special

leave on its own?

MR McMILLAN:  No, I am not, I should make that clear. I have

abandoned that as a special leave point. It is

part of the major ground of unsafe and unsatisfactory

verdict. It is at this point that the evidence

of the Leslie tapes becomes critical under the

umbrella of this ground. Given that they were

appropriately and properly admitted, you have

evidence of a man who speaks out quite openly and

quite generally and in a sense puts the finger on

himself. Now, he does it voluntarily but,

nevertheless, it is also a basis for considering

why the jury came to this point and arrived at their

verdict.

(Continued on page 73)

C2TS0/2/MB	72	6/9/88
Knibb

MR McMILLAN (continuing):  He was not a person who could

say 11 No 11 to a question and Leslie kept pressing

him. And those questions and answers that I

referred to this morning are of particular

significance when they relate to this ground.

The Crown also did refer to the inconsistencies

and the changes in the - he gave, of course,

the original statement to the police at the police

station on 5 August. He then, of course, gave

the version to Leslie on the Tuesday morning.

There was the hypnosis session, there was the

further beach interview in the afternoon of the

5th but in the morning of the 5th there was,

of course, the long interview he· had with Brooks

and Gray.

His Honour did go to some length to explain

to the jury that inconsistencies can be brought

about by a person who is innocent but fearful.

There was an absence of time. We are looking

at a period of 18 months between the events on

the beach and his interrogation in early February.

And that, in our submission, explains why there

is this variation in timings and distances by

Mr Knibb. This question of how far inconsistencies

can be looked at by a jury as representing

consciousness of guilt was dealt with by the

Court of Criminal Appeal in Western Australia

in MICHELBERG's case. And if I could briefly

take the Court to that decision, (1984) WAR 191,

and in particular the decision of

Chief Justice Burt at page 198.

He was dealing there with lies told by an

accused out of court and whether they were capable

of corroborating a charge. The object of referring

the Court to this case is that it brings together

a number of authorities which are well known

to this Court and it is a useful reference point.

The decision of the Privy Council in TUMAHOLE's

case - TUMAHOLE BERENG V R, (1949) AC 253,

is germane:

"It is, of course, correct to say that these circumstances - the failure to give evidence or giving of false evidence - may bear upon

an accused and assist in his conviction

if there is other material sufficient to

sustain a verdict against him. But if the

other material is insufficient either in

its quality or extent they cannot be used • h II

as a ma ewe1g t. k

There is a recent decision of the Court of Criminal

Appeal in Queensland and that is THOMAS and that

is in the folder before you, (1987) volume 2.

C2T51/l/ND	73	6/9/88
Knibb

BRENNAN J: Is it WILLIAMS' case?

MR McMILLAN:  Yes, REG V WILLIAMS.

BRENNAN J:  WILLIAMS.

MR McMILLAN: Sorry, Your Honour.

WILSON J:  REG V who?

MR McMILLAN:  REG V WILLIAMS. I apologize. Defaming one

of the members of the court.

Now, that raised quite ..... this very question

and in a unanimous verdict a new trial was directed.

The Court considered the effect of WOON's case.	Now,
WOON is referred to by Mr Justice Williams in the
Court of Criminal Appeal decision in this case to

meet the suggestion that these inconsistencies and

inaccuracies do not amount to a consciousness of

guilt. If I could take Your Honours to the decision

of Chief Justice Andrews at page 780, approximately

line 36:

Where however, nothing in the surrounding circumstances is shown which could reasonably

be thought to compel a denial by a person

interrogated or where he gives an answer which

is ambiguous, neutral, equivocal, or otherwise

not plainly inconsistent with a consciousness

of innocence it ought not to be left to the

jury with a direction to the effect that it

is left to them as a fact for their consideration

and thus that they might regard it as probative

and press it into service of the Crown.

Mr Justice Thomas refers on the opposite page, 781,

to a misapplication of WOON's case and at the top

of page 782 refers to the fact of a Crown case

which:

hinges on the story of a principal witness,

and the Crown looks for "supporting" or

"confirmatory" evidence to strengthen that

witness's story, or generally to incriminate

the accused by evidence from a source other

than the principal witness.

Mr Justice Thomas looks at a number of authorities

at page 786. The usefulness of that decision,

Your Honours, in this case is that a mere catalogue

of inconsistencies, when put against the factual

substratum of facts, just cannot, as it were, lift

that substratum up by its boot straps. There is

no direct evidence of the accused striking the

C2T52/l/SH	74	6/9/88
Knibb

deceased; no direct evidence of his having taken

her out into the sea; no direct evidence that he

knew where the spot that she may have fell would

be covered by the tide so any reference to WOON's

case,with respect, cannot assist, cannot assist at

all.

(Continued on page 76)

C2T52/2/SH	75	6/9/88
Knibb

MR r:1cMILLAN (continuing):  The Crown case has proceeded,

Your Honours, on the basis that the police investigators saw the accused originally two

days or so after the events and proceeded to
watch for him and observe him and the evidence

that was brought out fits in with their preconceived

notions of his involvement in the case. There

is no direct evidence. Applying the CHAMBERLAIN

test, no jury could hold properly that this

man committed the offence. Those various items

I have referred to, of inconsistencies in timing

and involvement of the accused, certainly forebode

ill for the Crown on their own case. It is

my submission that this Court would evaluate

the approach taken by the Court of Criminal

Appeal in Queensland that they did not critically

review the evidence - that can he seen by any

examination of the evidence that I have referred

to here today - and that it is a fit case to

grant special leave and grant the appeal.	Those
are our	submissions.

MASON CJ:  Thank you, Mr McMillan. Yes, Mr Lakshman?

The only matter on which we need to hear you,

Mr Lakshman, is the reception into evidence of the material consisting of questions and

answers whilst the applicant was apparently

under hypnosis and, secondly, the directions

given by the trial judge with respect to the

use that the jury could make of that material.

MR LAKSHMAN: Yes, Your Honour. I would make an outline

of my submissions available.

MASON CJ:  Yes.

MR LAKSHMAN: Thank you, Your Honours. Your Honours, first

of all, so that a proper assessment can be made,

might I mention that the Crown made a submission,

which appears at page 21, dealing with the basis

on which it has been suggested by the Crown

that the evidence was admissible.

Your Honours would notice that the contention

for the Crown was that that evidence was clearly

admissible and that the admissibility did not

depend at all on whether the accused was hypnotized
and the Crown relied on a series of those cases

and it was thus that the Crown was saying that

the evidence ought to be received. It is true
that whilst the basis for its admissibility,

based on SINCLAIR's case and other cases that

were cited, was wider, the Crown made no bones

about the fact that the Crown case was that

the accused was faking his hypnosis. Your Honours

would see that one example of that - it was

a rather lengthy trial but one example of that

C2T53/l/SDL	76	6/9/88
Knibb

appears at page 507 at about line 7 where, after

some discussion, I had clearly stated to the

Court as to how the case would be fought.	So
that the question of admissibility was on a
wider basis; the actual application of the

Crown, on page 507 - there is an exchange there

in which the approach that the Crown would take

was clearly stated in the course of some other

discussion because I told the Court that whilst

the evidence that would be led from Professor Sheehan,
and so on, they will not talk about faking but
the Crown case was that the Crown forcibly

were telling the jury that the prisoner, the applicant,

was faking it.

(Continued on page 78)

C2T53/2/SDL	77	6/9/88
Knibb

MR LAKSHMAN (continuing):  So that was how the evidence

was dealt with. His Honour admitted it; the

Crown insisted that for its admissibility

there was no need for the Crown to frame the

question of admissibility on a narrow basis,

that it could argue the proposition that it

was admissible whether he was hypnotized or

not and essentially relied on SINCLAIR's case.

Now, Your Honours, of course, there is

then a further ruling that occurred. First

of all, His Honour's ruling which has been

referred to is on page 43 and it was my

understanding that -

MASON CJ:	Page?
MR LAK.SHMAN:	Forty-three. Your Honours will see that

at about line 30, or thereabouts, His Honour

commences to deal with the matter, subject

to certain conditions, and as I understood it,

the essential part of the reservation was that
the Crown should produce evidence to show that

the witnesses the Crown,intended to call, namely,

Professor Sheehan and Dr Mcconkey, were really

experts in the field, including Dr Milne.

Your Honour, thereafter we reach a position

which was referred to by Justice Gaudron, that on

page 427 there is some further discussion.

Your Honours, I am not in a position to inform

the Court in the short look I had as to how that

came about, but my impression was that what

had occurred was that during the course of the

evidence of Dr Milne there was some objection

that sufficient basis had not been laid for the

playing of the tape and I think that is why

during his evidence the tape was not played -

that was the hypnosis session - until the Crown

could lay a much more firmer basis. And that

area of his expertise, then giving the evidence	giving, first of all, evidence that it was an came about as a result of Professor Sheehan	that there were certain indicators that one could
accept and went on to give the evidence that he could indicate whether a person was simulating
it or not, and thereafter the tape was played.

GAUDRON J: It was admitted, though, on the basis - it was

treated as admissible whether or not the accused

had in fact been hypnotized, whether or not

at any stage he was in hypnotic trance and

whether or not he was fully conscious.

MR LAKSHMAN:  Yes.

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GAUDRON J:  And indeed, all the evidence was, was it not,

that there was a distinct possibility of

hypnotic trance at various stages of the

interview?

MR LAKSHMAN:  A possibility.

GAUDRON J: Yes.

MR LAKSHMAN:  And I think Dr Milne actually is the only

witness who speaks - - -

GAUDRON J: Yes. So the evidence did not go to the fact -

did not positively assert that it was faked

throughout?

MR LAKSHMAN: No, Your Honour, that is correct. In other

words, one had to take into account the

actual position as far as the evidence was

concerned that as far as Dr Milne was concerned,

I think he was making that suggestion that

there were stages where he was not hypnotized.

I think the evidence of Dr Mcconkey and Professor Sheehan was very positive and
they asserted that he was not hypnotized.

But, Your Honours - - -

GAUDRON J:  But they do not say, though, that he was

definitely fully conscious in a normal mental

state throughout.

(Continued on page 79)

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MR LAKSHMAN:  Your Honour, perhaps they do not, but as I

understood it the essential thrust of the

evidence was that - - -

GAUDRON J:  And they do not go on further, do they, to

indicate those points at which they would concede

he might have been in hypnotic trance?

MR LAKSHMAN:  No, Your Honour. As I recall it, I think

they dealt with all the indicia that clearly

indicated that he was not in a hypnotic state

and I am not sure whether the crime - - -

GAUDRON J:	But not in a hypnotic state at all stages?
MR LAKSHMAN:	That was the thrust of the two, Professor

Sheehan and Dr McConkey.

GAUDRON J:	Yes, and was there evidence of the effect of hypnotic trance, temporary hypnotic trance?
MR LAKSHMAN:	Your Honour, I think, both·- Dr Mcconkey

certainly dealt with it and I think

Professor Sheehan also dealt with what occurred

when a person is in a hypnotic -

GAUDRON J:	They dealt with the indicia of hypnotic trance?
MR LAKSHMAN:	Yes, Your Honour. That was given by

Professor Sheehan.

GAUDRON J:  Was there evidence of the effect on the mind

during temporary hypnotic trance?

MR LAKSHMAN:  Your Honour, that depends on how one reads

Professor Sheehan's evidence. This is my

assessment, that he did seem to deal with that
because he was describing what occurs when a person

is in a true hypnotic state, so he dealt - - -

GAUDRON J:  It is your submission that admissions - we will call them admissions - made whilst a person is in

hypnotic trance are admissible?

MR LAKSHMAN: 

Yes, Your Honour.

GAUDRON J: 

Why is that?

MR LAKSHMAN: 

The way - perhaps wrongly - I understand

simply this case is that, Your Honour, such
evidence is admissible, that the question of
its weight is for the jury and His Honour was

really clear• in his direction in that he did not

just leave it on the basis that it was merely a case
of his faking it, and if I could take Your Honour
to ·the directions - - -

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GAUDRON J:  Well, you say the law is that evidence of

admissions made under hypnotic trance are admissible,

by reason of the possibility that the mind is	they are not subject to any exclusionary rule
not attending what was said?

MR LAKSHMAN:  Your Honour, here, of course, the Crown

contention was that if one looks at SINCLAIR's

case one cannot imagine a more extreme example

than the admissibility of evidence, that dealing

with statements made by someone who was suffering from schizophrenia. I mean it would still remain

to see how credible it was - - -

GAUDRON J: In SINCLAIR's case there was other evidence,

was there not?

MR LAKSHMAN: Well, the Crown contention was that here, too,

there was other evidence.

GAUDRON J: Well, other evidence of what, because you are

really using this as indicative - well, perhaps

I will put that another way. As I understand the

Crown case you use what was said in the hypnotic

session to show inconsistency with what was said

on an earlier occasion, possibly the faking itself

and to indicate consciousness of guilt?

MR LAKSHMAN:	Yes.
GAUDRON J:	Now, leave aside for one moment the question of

whether or not in that session he revealed

information that he could only have known if

certain things had happened. That is somewhat different, is it not, from the situation where

you are using an admission to prove an actus,

reus in the ordinary sense as evidence directly
bearing on the corm:nission of an offence, when you

are simply using a man's own word not bearing

directly on guilt to establish consciousness of

guilt, you say that is admissible whether or not

his mind attends what he is saying.

(Continued on page 82)

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MR LAKSHMAN: 

Your Honour, I am saying that and also saying

as SINCLAIR says, that - the second aspect -
one still lo.oks at the reliability of that

material by testing it against reality, in other

words, the more it fits in the more the jury

is entitled to act on it; for example, in the

hypnosis session, whether he was hypnosized or

not, he was giving a large volume of material,
credible material, in the sense that he spoke

about events that were real, he was relating

matters that could not be suggested to be a figment
of his imagination. It tied in with other bits

and pieces of material which the jury could use

to test that and it was thus that the crime was

putting that first it is admissible, that its

reliability is a question of -

GAUDRON.J: 

Then do you concede that if there is a question

that.- if there is a possibility that the mind

did not attend what was being said that there

is necessarily a discretionary factor involved,

if it is?

MR LAKSHMAN: 

On the part of the learned trial judge?

GAUDRON J: 

Yes.

MR LAKSHMAN: 

Yes, Your Honour.

GAUDRON J: 

At what stage did he have regard to evidence

as to what might or might not have been the parts
of the interview in which the subject was in an
hypnotic trance and the consequence~ if he were

in an hypnotic tranc~ to exercise that discretion?

MR LAKSHMAN: 

Your Honour, that was a matter for the defence

to raise.

GAUDRON J:	They objected to the evidence.
MR LAKSHMAN:	Your Honour, they did object and, .Your Honour,

it was not necessary, in my submission, for the	learned trial judge to look at it as a separate
matter because -

GAUDRON J:  He really does not give any account of on what

basis he admitted it or on what basis he ruled

against the objection.

(Continued on page 83)

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:MR. LAKSHMAN:  Your Honour, that is true that he did not say

it in so many words.

GAUDRON J: Well, how can one be sure that he even exercised

the discretion that you concede he had.

MR LAKSHMAN: Well, Your Honour, the Crown was seeking its

admissibility not in the exercise of a discretion.

The Crown was simply stating that as a legal

proposition it was admissible. Once it is admissible,

in my submission, the Crown does not have to - - -

GAUDRON J:  It may be admissible but when the defendant has

objected and, as I understand the objection, objects to the admissibility and raises also the prejudicial impact of the evidence, it must surely be incumbent

on the trial judge to turn his mind to those matter raised by the defendant. If you are right that the

evidence is admissible no matter what, we can safely

leave aside the first part but, on that assumption,

he must, at least, turn his mind to the question of

the balancing of the prejudicial impact as against
probative value of material the uttering of which

was not necessarily intended by the consciousness of

the mind and is there anywhere that was done?

MR LAKSHMAN: Well, Your Honour, I do not think that the Crown -

the Crown was not put in a position where the Crown

was saying that it should be admitted on some

discretionary basis. The Crown simply said that it

was admissible. It was admissible because - - -

GAUDRON J:  Mr Lakshman, evidence is not admitted on some

discretionary basis. It may be rejected on some

discretionary basis.

MR LAKSHMAN:	Yes, well, he may not have, Your Honour, but the point is that that was not discretely - separately raised but if there was any defect,
His Honour approached it in his summing up because Your Honour, that seems to be cured in the way there he dealt with the matter, in our submission,
very clearly and gave a number of directions on the
evidence and how the evidence was to be used.

(Continued on page 84)

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MR LAKSHMAN (continuing):  Your Honour, first he, of course,

dealt with the general direction as to the
statement, the use of a statement made by an

accused person,and if I could perhaps take

Your Honours to the relevant passages. I draw

Your Honours' attention to page 953 where, first

of all, he gives a general direction in relation
to the use of any statements attributed to an

accused person, and at about line 40 and from

there on he deals with that and gives a general

direction.

Then, Your Honours, I take you to page 992

where His Honour then deals with the hypnosis

episode and there, if Your Honours look at it from
about line 50, or thereabouts, he dealt with this

aspect by saying, at about line 55:

He said it is an altered state of

consciousness. A person in a

hypnotised state, he said, speaking

from his experience, could tell you more

detail but it may not be true, and he

seemed to say, it is a matter for you to

judge whether this is what Dr. Milne was

saying, he seemed to say even in good faith

a hypnotised person may say things that

are false.

Again, just continuing from there, he referred to

the evidence of Professor Sheehan and the indicators,

and went on to deal with the opinion he expressed

that he was not hypnotized during the session that

he recorded and he dealt with Dr Milne's evidence

that it is an abnormal state that cannot be

objectively determined. He made it clear that

Sheehan had claimed that, as a result of his skill, that he could tell by the presence or absence of

certain indicators; he had dealt with McConkey's

evidence, and then on page 1018, at about line 50

he makes this observation:

Then there is the hypnotic session, it 1s

a question of what value this is at all.

There is the debate about whether the

accused was hypnotised. The Crown has

called experts who say they have particular

skills in judging the matter and two of

those experts say the accused was not

hypnotised. Other evidence on the Crown

side indicates that there may be difficulties

in deciding whether someone is hypnotised or not and the significance of all this is that if a person is hypnotised and says things

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he seems to be in an abnormal mental

state, disturbed mental state, he may not

be reliable in what he says and, therefore,

it may not be appropriate to attribute to

him responsibility for what he says.

(Continued on page 85)

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MR LAKSHMAN (continuing):

But, if he says, in a state of alleged hypnosis,

or possible hypnosis, that he observed

something, or knows of something which

he could only -

if these two conditions are satisfied, I might

read on -

know of,if it conforms with true events,

real events, which he could only know of

if it had been something known to him

before he was hypnotised, then there may
be some significance in the remarks he makes

under hypnosis.

There may be just a little bit more on page 1022.

There, of course, he deals with the salient feature of the Crown case, that under that session he is describing the deceased in great detail that

the Crown was contending he would not have known

had he not actually seen her.

GAUDRON J: Well, the Crown was contending that but was there

any evidence to support that? Was it clear, for

example, that no description of the clothing of

the deceased had been circulated prior to this

hypnosis?

MR LAKSHMAN:  Well, Your Honour, certainly there was nothing

in the Crown possession to suggest that there

were descriptions given. We had difficulties in

that it was some two years after the event - - -

GAUDRON J:	The clothing was found the next day, was it not?
MR LAKSHMAN:	Yes, Your Honour.

GAUDRON J:  Now, one might think that the clothing might then have been publicized in terms of the time that

publicity was given to the desire to locate a man

with a four-wheel drive vehicle?

MR LAKSHMAN:  But, Your Honour, not perhaps the detail

such as that she had a jumper tied around her

waist, for example. That piece of evidence came

from - I think it was Dr Lewis - that when she

left she had a jumper which he described -

GAUDRON J:  You see, certain statements had clearly been

made available to Mr Leslie.

MR LAKSHMAN:	Yes. There was no suggestion - - -
GAUDRON J:	It is not a question of whether there was no

suggestion. You ask - this is a part of the evidence

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one might think which directly resulted in the

arrest. One might think this evidence was

critical in terms of the Crown case. One might

think that the real evidence of consciousness of

guilt is in the fact, if it be established, that

in a session in which the accused was faking

hypnosis on your case - although again, as I say,

allowing for the possibility of hypnotic trances
at various stages - he identified, or gave a
description of clothing that he had not otherwise

given, but in a context in which statements have

clearly been made available to Mr Leslie,in which

conversations have taken place between Mr Leslie

and the accused. Now, are we to assume that the

statement was never conmrunicated to anyone.

It is not a question of what the defence must

prove, it is a question of whether it is legitimate

to use that as evidence of consciousness of guilt

in the absence of a proper foundation.

(Continued on page 88)

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MR LAKSHMAN:	Your Honour, I can only go according to the evidence that emerged in the trial in that you
have Dr Lewis making such a statement. I have
no recollection as to whether he had included
it in the proof of his evidence as to how it
was he was saying that she had a jumper tied
around her waist.  But it did emerge from his
evidence as well as from the evidence of
Cunningham to the effect that at some stage he saw - she described the deceased and that she had a jumper of some description on her.
GAUDRON J:	And the Cunningham statement had clearly been

made available to Mr Leslie?

MR LAKSHMAN:  None of these statements had been made

available. I think the evidence was - - -

GAUDRON J:  I am sorry, the details of Miss Cunningham 1 s

statement had clearly been made available to

Mr Leslie.

MR LAKSHMAN:  I am unable to say the extent of it but

apparently there was evidence that Leslie had

discussed the matter with some police officers

and not that he - - -

GAUDRON J:	And in some detail.
MR LAKSHMAN:	And he had some details. But, Your Honour,

it is not as if that was the only evidence on

which the Crown was relying. There was a really

substantial other body of evidence apart from

that on which the Crown - - -

GAUDRON J: It was a very substantial part though of the

Crown case of consciousness of guilt.

MR LAKSHMAN:  No - well, Your Honour, it was a significant

matter, but it certainly was not the only one.

There was a lot of material on which the Crown

was relying on consciousness of guilt, there

was a lot of conduct that the Crown could point to and if it is necessary perhaps, Your Honour,

I could refer to you some of the material on

which the Crown could rely. The Crown, of course,

could rely on the number of indicia that went

to the question of his awareness of guilt. And

I do not attempt to be exhaustive because to

do so I would need to canvass some of the evidence

to put it in its proper context.	But I will
give the salient features.

He was observed - we start with the proposition that you have Cunningham's evidence of actually

seeing the deceased and the applicant on the

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beach. There was that evidence. There was the
conjunction of time and place he was on the beach.

And then, of course, we had the evidence, if

it was accepted from Murphy that Murphy saw him

going to the beach at about 6.15 or thereabouts

and he had looked at his watch and when he came

back - the indicia. When he came back he saw

the accused was examining the vehicle, he was
looking, as he described, the side and the front

of the vehicle and he gave details of his actually

examining the vehicle.

So you had a person who was there and he seemed to be examining the vehicle which the

Crown said was involved in a collision with the

deceased.	Then, of course, the other conduct
on which the Crown relied:	he is - according

to the different version he gave, there was the

feature that he had loaded his vehicle and he

was on his way to Cooktown.	For some reason
there is a change of plan.	He left at night -

late at night - he returns to a motel in Cairns

and he kept to his motel for several days. He

washed all his clothes, as he told the police,

and when he was seen by the police officers,

at the very first opportunity in the statement
he gave to the police, again keeping to the salient
features, he has the opportunity to explain his
presence.

He told the police, in effect, that he had gone to the police station because he had seen

something on television or found out about it.

At the very first opportunity he denies ever seeing a female on the beach; that he had not

seen what was called "the American woman", any

female at all.

(Continued on page 90)

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MR LAKSHMAN·(continuing): That is his conduct; he was later

to immediately acknowledge that he had but he

was attempting to distance himself from that.

Then, apart from the denial, he presents another

sanitized appeal and turns up in his three-piece

suit and tells the police, of course, "Look,

I am a pensioner and I lack mobility; I can't

walk and I can't run", and he gives that picture

which, of course, is demolished later, at a later

stage. He maintains when he was first seen that

he was on the beach for a matter of a minute

rely on as going to the question of consciousness

or two - two or three minutes, as I remember.

of guilt. In other words, the Crown does not

have to look at individual indicia but all his

conduct.

In the course of the whole of the investigation

he shows and manifests a desire to talk about

the killing. For example, he speaks to Swindells;

he gets Swindells to see him, Swindells appears there but he then declines to discuss anything.

He just wants to see a police officer but he

did not tell him anything. When he sees Rapp

he talks about it: he says that if all this
happened it could not be murder; that he could

help the police - there was all that type of material. He tells Swindells, for the first

time - he was to say to the police at an earlier

stage that, of course, he was there and he had

seen Murphy, '-'the old people", I think he called

them, and so on, but he tells Swindells for the

first time that there was a blue four-wheel drive

on the beach -none of that account given earlier -

and he is placing another vehicle that he says is on

the beach.

In addition to that you had the material that came - it was for the jury to say if the jury accepted that he was not hypnotized, they

could act on that indicia on which the Crown

with his description of the female, and in the	relied that I have just referred to, dealing
course of the material he attempts to throw suspicion
on others. So, basically, the Crown was not
saying that the jury was entitled merely to look
at his consciousness of guilt by looking individually
at these matters, but collectively - the way it is stated in Wigmore that when one looks at it
in a broad way.

That is why it is that that evidence, on

hypnosis, is important. but certainly, by no

means it was the only evidence on which the

Crown relied to establish a really substantial

case against the prisoner.

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Those are the only matters that I can refer

Your Honours to on the question of the hypnosis session and, as I understand, that is the only

area that Your Honours would want me to address

you on.

MASON CJ:  Yes, that is the only aspect of the applicant's

case that we need trouble you on.

MR LAKSHMAN:	Your Honours, as I have said, there are other features as well but I have only dealt with the
salient features dealing with the indicia of
consciousness appeal as well as the hypnosis
session.  Thank you.
MASON CJ:	Thank you, Mr Lakshman.  Yes, Mr McMillan.

MR McMILLAN:  There is only one reference I wish to draw

to the attention of the Court and that is in

response to a question of our learned friend

concerning the showing of statements by the police

to Mr Leslie and particularly that of the woman,

Cunningham.

(Continued on page 92)

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MR McMILLAN (continuing): At page 359, in cross-examination

of Mr Leslie, at line 25 or thereabouts, he says
in response to a question as to what was indicated

about the statement by the police to him, he says:

The police did not suggest to us anything,

they merely showed us some of their evidence,

they showed us their brief statement by Janice

Cunningham - that was one of those statements

I looked at. I read that carefully and I

used that statement in a question to the

accused.

MASON CJ:  Now, Mr McMillan, can I take you to pages 1141 and

1142 of the application book where Mr Justice Williams

deals with this question.

MR McMILLAN:  Yes.

MASON CJ: Perhaps the relevant passage commences at 1140

where His Honour views the evidence relating to

this aspect of the case. Do you accept that that

is an accurate account of the evidence and what

transpired at the trial? That is, 1140, line 10

over to 1142, line 33.

MR McMILLAN:  I have been seeking to compare what His Honour

Mr Justice Williams said here with the SUIIlliling up

and any redirections or SUIIlliling up pursuant to

redirections and I cannot find anything to support

the observations made from line 29 onwards, on

page 1141.

MASON CJ: Yes.

MR McMILLAN:	The learned trial Judge in his sUIIlliling up (and there was no challenge to it on this
aspect) left it to the jury to deal with the statements on the same basis as those
made in the Leslie interviews if they were
satisfied that at the material time the
appellant was not hypnotized.

I could not find any content that supports that observation in the sUIIlliling up and then, likewise,

from line 40 - - -

MASON CJ: Well, that may well be how Mr Justice Williams

characterized it in effect rather than asserting

that the trial judge specifically said that to

the jury.

MR McMILLAN:  Yes, that is so.

MASON CJ: And, on that footing, you would not have any

objection to it.

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MR McMILLAN:  Only to this extent: that it does not come

out as positively as Mr Justice Williams seems

to suggest.

MASON CJ: Yes. Now, what is the other point you want to

make about it?

MR McMILLAN: Further down, at line 41:

At some stage during the interview, the learned trial Judge correctly pointed out to the jury that it was for them to decide

whether the appellant was hypnotized or not

at the time of making the statements.

Now, again, we cannot find any support for that

in a direct sense, in the summing up. The rest

of the comments go over the page - - -

GAUDRON J:  The next sentence does not seem to be borne out

by the summing up either:

Therefore His Honour directed the jury on

the relevance of the evidence if they

concluded that the appellant was hypnotized.

MR McMILLAN:  Yes.

GAUDRON J: What His Honour did do in his summing up relevant

to that was alert them to the nature of the evidence

of - the significance of the evidence if it was

otherwise not known to - if it could not be

known to him otherwise than by his presence on

the bench, if it were significant as

hypnosis evidence in those circumstances.

MR McMILLAN:  Yes.

(Continued on page 94)

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MR McMILLAN:	Yes.	The judge certainly was not at all

fixed in his mind as to whether it could be

described as a hypnosis session. So much

appears at page 1019 of the summing up.

At approximately line 28 he referred to the

significance of remarks made under hypnosis

and he then says:

There is something I just wish to

draw to your attention briefly that

emerges in the hypnosis session, or
alleged hypnosis session or possible

hypnosis session, however is the

correct way to look at a session.

That would appear to be the closest His Honour

comes to of indicating to the jury that there

may not have been a hypnosis session; there was

a possible session. Apart from those comments,

•hat His Honour is saying there in the Court

of Criminal Appeal certainly accords with our

understanding of what happened at the trial.

MASON CJ: Yes, thank you.

MR McMILLAN:	I have nothing further, if it please the Court.
MASON CJ:	The Court will take a short adjournment in
order to consider the course it will take in
this matter.

AT 3.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.10 PM:

MASON CJ:  What I am about to say reflects the view of

a majority of the Court.

Counsel for the applicant has argued several points in support of this application for special

leave to appeal. First, he seeks to challenge the reception into evidence of the video tapes

of two interviews of the applicant by Mr Leslie

a television personality, as well as evidence

of Mr Leslie of those interviews, on the ground

that the questions and answers unfairly prejudiced

the applicant. The short answer to this submission

is that no objection to the reception of the

evidence was taken at the trial. We should mention

that the applicant readily agreed to particpate

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in the interviews because he wished to have the

opportunity of asserting publicly his innocence

of the crime and his criticism of the conduct

of the police in their investigation of the crime.

Counsel rightly conceded that, in the absence
of any evidence being led on behalf of the accused,

there may have been sound tactical reasons for

not objecting to the evidence.

The second point relates to the reception into evidence of questions put by Mr Leslie and

answers given by the applicant when the applicant

was supposed to be under hypnosis induced by

Dr Milne. Counsel for the applicant objected

to the admission of this evidence at the trial.

It was admitted by the trial judge. The primary

basis on which the Crown pressed the admission

of the evidence was that the applicant was "faking"
throughout the whole of the hypnotic session

which had been arranged and filmed at the

applicant's request. This was expert evidence

to the effect that the applicant was probably

not under hypnosis at the time.

The trial judge gave directions to the jury

concerning the value of the questions and answers.

No objection was taken to the sufficiency of these directions and there was no challenge in

the Court of Criminal Appeal to the adequacy of the directions on this point. This being so, the case is not a suitable vehicle for the

Court to grant special leave to appeal to consider the circumstances in which evidence can or should

be received of statements made by a person whilst

under hypnosis.

The third point relates to a submission

that the Court of Criminal Appeal failed to

scrutinize adequately the evidence in considering

the applicant's contention that the verdict of the jury was unsafe and unsatisfactory. We do

not consider that there is any substance in this

submission, nor do we understand the Court of

Criminal Appeal to be denying that in an

appropriate case it may be necessary to assess

the evidence in its totality in order to determine

whether an inference of guilt can be safely drawn.

Finally, we are not persuaded that there

was any error on the part of the Court of Criminal

Appeal in concluding that the verdict was not

unsafe and unsatisfactory. For these reasons,

by a majority, the Court refuses the application

for special leave to appeal.

The Court will now adjourn.

AT 4.14 PM THE MATTER WAS ADJOURNED SINE DIE

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