Lagopodis v The Queen; Kiely v The Queen

[1992] HCATrans 283

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S41 of 1992

B e t w e e n -

DIMITRIOS LAGOPODIS

Applicant

and

THE QUEEN

Office of the Registry

Sydney No S47 of 1992

B e t w e e n -

MICHAEL KIELY

Applicant

and

THE QUEEN

Respondent

Applications for special leave

to appeal

Lagopodis 1 1/10/92

DAWSON J TOOHEY J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 1 OCTOBER 1992, AT 2.55 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI: May the Court please, I appear for the

applicant Kiely in this matter. (instructed by

Brock & Partners)

MR G. D. WENDLER:  May the Court please I appear with my

learned friend, MRS M.T. BRIDGER, for the applicant

Lagopodis. (instructed by Warwick Hunt)

DAWSON J: These two cases can be heard together, can they?

MR WENDLER:	Yes.
MR R.O. BLANCH, QC:	I appear for the Crown with my learned

friend, MR W.G.ROSER. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

DAWSON J: Well, who goes first?

MR PAPAYANNI:  I will go first, if the Court pleases.

DAWSON J: Yes, Mr Papayanni.

MR PAPAYANNI:  I take it that the facts of this matter are

known to the Court. They are fairly simple,

really. I just might say this, that of the persons

participating, the two applicants here were
convicted of murder and Julian Whippy, who was the
other person who was in the room, he was dealt with
on 1 July this year, charged with murder, assault
and accessory after the fact, and the Crown

accepted a plea to assault and accessory after the

fact, and he was given a substantive sentence of

four years with an added sentence of one year. The

other person, Clare Winter, of course has not been

charged in relation to this matter.

The first matter that I intend to deal with is

the question that was dealt with by the

Court of Criminal Appeal in relation to common purpose, a somewhat similar argument probably that

the Court has already heard today and in that

regard, perhaps I could just refer first to the

judgment of the Court of Criminal Appeal which is

on page 189 of the Appeal Book.

GAUDRON J: There is not much doubt it was common purpose in

this case, is there?

MR PAPAYANNI:  It is difficult in this case to say that it

is common purpose. It is really a case of - - -

GAUDRON J: It was a joint venture, was it not? They -

MR PAPAYANNI: Well, the difficulty is this. You see, Kiely

was in the position, as the judge below got mixed

up in the two cases - there was an application for

separate trial, and the Court of Criminal Appeal

Lagopodis 2 1/10/92

got mixed up in relation to the two cases, and

quoted matters from Lagopodis' record of interview

in support of the matters in relation to Kiely.

And, of course, it became so confused, and the case

was so confused in this particular case, and what
my submission really is, whether it is common

purpose in the strict sense, simple sense like

Mahon and those sort of cases, or whether it is a

situation where it is a principle in the second

degree, which no direction was given to the jury in

that respect; that whatever directions were given

were wrong. The simple direction in the first

place by the court in relation to common purpose

was the one that was given and left out the vital

part.

I will just mention what the Court of Criminal

Appeal said on page 189. They said:

Complaint is made of what Sully J said to the jury on the subject of common purpose.

These complaints have not been made out. The

Crown case was not one of "common purpose" in

the narrow and technical sense, but was one

relating to joint conduct of a kind that has

been said by this Court in the past to be

aptly described as "common purpose" -

and refers to Sinfield's case.

TOOHEY J: This is not a case, Mr Papayanni, in which it is

said that the actions of one of the two accused was
responsible for the death of the man, is it? That
is, the actions of one as opposed to the actions of

the other.

MR PAPAYANNI:	The difficulty about this case is that you have a principal and agents, if we can put it that
way.  You have Kiely who is supposed to be the
principal, he is standing by and on his case, he is
doing nothing. He was the one that agreed that he put the person on this table which was in the form
of a rack. That was as far as he went in his case, to teach him a lesson.

You then have the difficult situation - - -

TOOHEY J: Well, I am sorry, you say that is his case, but I

am thinking of it from the point of view of the between the two men in terms of their contribution

to the death of the deceased?

MR PAPAYANNI: Well, they had to rely upon the fact that the

acts of the other people, in the first place, were

the acts of Kiely. By that, of course, they had

Lagopodis 3 1/10/92

to rely on the doctrine of common purpose.	Now,
the difficulty about that - - -

TOOHEY J:  I am sorry, I do not follow that. Are you saying

that Mr Kiely, himself, did nothing that

contributed to the death of the deceased?	As the
Crown put its case, not as he put it.

MR PAPAYANNI: Well, the only evidence about the applicant,

Kiely, was that somebody said that he had a couple

of slaps. Now, no one could possibly have said

that those slaps were given with an intent to

inflict grievous bodily harm. So, the Crown case

really relied upon what the other people did.

The difficulty about this matter was that

never at any stage did the trial judge ever tell

the jury what the intent was, and all that was said

here in relation to the matter was, by those

assaults, was there intent to inflict grievous

bodily harm. Now, the difficulty also arises

because you have somebody who is alleged to say,

hit the deceased, you then have to show that that

act caused the death and that that act was done

with an intent to inflict grievous bodily harm.

You have a number of acts which are alleged,

all done by other people. You have a Clare Winter,

who comes into the room, and she does certain

things which Dr Oettle said could have caused

death. Now, in order to tie the applicant up with

that, His Honour gave a direction in relation to

that which was completely wrong at law, that if he

stands by and watches and does nothing, well then

he is guilty.

In that regard, of course, there was no

evidence that he even saw what was done. In

Kiely's case there was nothing at all as to what

Clare Winter did.	In order to overcome the fact of
the cause of death here was one of the vital

matters. Cause of death could have come from any

one of a number of assaults, we put, or punches or

whatever, but it could have come from a number of

other matters as the doctor, himself, admitted.

So, if the applicant, Kiely, was to be made

liable, you had to show that a particular act was

done with the intent to inflict grievous bodily

harm, and that particular act in fact caused death beyond reasonable doubt. Now, there was never any

summing up in this particular case along those
lines. If I may just read the matters that were

said - - -

Lagopodis 4 1/10/92

TOOHEY J: Just before you do, was there any request, at

. least on behalf of your client, for further

direction?

MR PAPAYANNI:	Yes, common purpose.
TOOHEY J:	On the matter of common purpose.
MR PAPAYANNI:	And His Honour then went into a dissertation

of what His Honour thought was common purpose and

the Court of Criminal Appeal apparently agreed with
that, but as I just wish to point out quickly in

that respect, there are a number of mistakes that

were made and the jury never ever had a direction

on which they could rely upon in relation to

murder. There was never any indication to the

jury, a direction, showing what the intent of the

applicant had to be. It was left in a very dubious

sort of atmosphere, along the lines that if these

assaults caused death, then Kiely was liable for murder. That is as far as it went, and although

His Honour mentioned intent, he alleged that if the

assaults were by intent, not if Kiely had any

intent, but if the assaults - and he was not
alleged to have made any assaults except a few
slaps - if those assaults were by - there was an

intent to inflict grievous bodily harm and those

assaults caused death, well then Kiely was liable

for murder. That is not the law, in my submission.

If one may look at this situation in its totality, the difficulties about this matter are,

and I will come to that in a moment, but the

difficulty about not having a separate trial - in a

separate trial, one of the essentials of a separate

trial is to set out the cases for each accused

separately. In this case there never was any

defence put separately.	The Crown case was put
separately.	As part of the Crown case His Honour

read the statement of the accused, Kiely, and said

that is the end of the Crown case, but never at any

stage did he say what the accused's case was.

If he had of, it would have made it clear then

as to what the position was, and the jury would

have been required to have a direction in

accordance with the law - - -

DAWSON J:  Now, you are going to direct us to the portions of the charge that you relied on.

MR PAPAYANNI:  Yes, I will just run through it quickly. On

page 9, line 20:

The law is this: where two or more

persons embark on a joint unlawful enterprise,

each is equally liable for the consequences of

Lagopodis 1/10/92

the acts of any one of them, provided that

those acts are acts done in pursuance of the

joint unlawful enterprise.

Nothing wrong with that, except that it did not add

the part that is required as in Anderson's case

with which there is a reference in (1966) 2QB 110:

Held, that where two persons embarked on

a joint enterprise each was liable for the

acts done in pursuance of that joint

enterprise including liability for unusual

consequences if they arose from the agreed

joint enterprise, but that, if one of the

adventurers went beyond what has been tacitly

agreed as part of the common enterprise, his

co-adventurer was not liable for the

consequences of the unauthorized act -

That was not put, not said at any time. Then

His Honour went on in relation to this question, at

page 26, line 5:

Has the Crown proved beyond reasonable

doubt -

This is one of the elements His Honour gave.

that the accused, Michael Kiely, assaulted

Mark Soyka with intent to inflict grievous bodily harm upon him?

That is the only time that His Honour ever put

that.

DAWSON J:  What page is that?

MR PAPAYANNI: That it was necessary to prove the intent in

relation to Michael Kiely. Then at page 31 - - -

GAUDRON J: Well not only intent, but assault with intent.

He is putting that it has to be established against

Kiely that there was assault with that intent.

MR PAPAYANNI: Yes. That is the only time His Honour put any

intent at all on the part of the applicant,

Michael Kiely.

Then at page 31 at line 22 His Honour deals

there with intent, very shortly:

When upon inquiry as to a person's

intention, you may find that intention is

something admitted, or you may find it by a

process of inference from words or conduct

proved by the evidence -

Lagopodis 6 1/10/92

et cetera. His Honour just says what intent is.

Then the next time that His Honour goes on to

intent is on page 63. Before that he just deals

with - if I may just go to page 62 first, at

line 12:

Those are the three strands in the Crown

case on question 2. Let us take a moment to

see how they might be thought to come

together. Go back, if you will, to question

two, as I put it to you yesterday, so that we

have our attention focused carefully upon what

it is that we are finally to decide: has the

Crown proved beyond reasonable doubt that the

accused assaulted Mark Soyka? I have already

told you that, on the accused's own version -

it does not say with any intent there -

on the accused's own version the things that

happened to Mark Soyka in that room are

capable of constituting, in law, assaults upon

his person. Even if you accept that Mr Kiely himself did not, in a narrow pedantic sense -

whatever that may mean -

lay hands on the boy but got his three

henchmen to do it for him, -

there is no evidence of that -

that is enough to make him responsible, in

line with what I told you at the beginning of

the summing-up yesterday, to the criminal

liability of persons who join in a joint

unlawful enterprise.

Each is responsible for the acts and for the consequences of the acts done pursuant to

the joint enterprise. If one man instigates

three others to assault a person in the way
that has been described, and himself stands or

sits by -

and of course the instigation here, is relied upon

in what was said in Lagopodis's record of interview

and of which there was no direct evidence, it is

possible there may be inference to that effect, but

it seems that the incident occurred only as from

the time that Mark Soyka was put on the table.	And
then:

and himself stands or sits by, watching,

encouraging, permitting, not interfering to

stop it -

Lagopodis 7 1/10/92

which is not the law -

intending that the assaults should be

committed as part of the arrangement which the

four of them have got to get the boy and teach

him a lesson -

and there is no evidence of that, at all -

then even if he does not put his hands on the

boy himself, he is responsible for the fact

that his henchmen did it for him and he is
responsible for the consequences - found

properly, of course, on the evidence according

to law - of those acts having been carried

out.

And then the question of intent.

Was there an intent, is the next thing

you have to ask yourself, to inflict grievous

bodily harm upon Mark Soyka by those assaults.

By whom? By the person who did it.

Or, again and let us be precise, has the Crown

proved beyond reasonable doubt that there was

such an intent so to inflict grievous bodily

harm.

Not a mention of what the intent was in relation to

the applicant Kiely. If I may just refer back to

31 - - -

DAWSON J: But if you read the next passage, there was

evidence from Kiely's own statement.

MR PAPAYANNI:  From?

DAWSON J: His undisputed record of interview, a number of

things - - -

MR PAPAYANNI: There was not in Kiely's record of interview.

There was a number of things in Lagopodis. See,

all Kiely said was he put him on the rack - - -

DAWSON J: Well, if that is so then the next passage is

wrong. But would you read the next passage?

MR PAPAYANNI: Well, the next passage is correct as to

putting him on the rack to teach him a lesson.

On the view of the evidence most

favourable to Mr Kiely - that is to say the

view which comes directly out of his own mouth

and which sets aside Mrs Kiely and Miss

Murray - you have this. He formed the view,

Lagopodis 1/10/92

correctly as it would seem, that Mark Soyka

had stolen money from him. He formed the view

as he says in his record of interview that he

would, in his own words, "Get him" and in his

own words "Teach him a lesson". The way in

which that was done, on his view - on his view - was by getting the boy up into the bondage room and putting him on that rack.

Never mind whether he was clothed or

unclothed; on any view that was part of

getting him and teaching him a less, on Mr

Kiely's own view in his own undisputed record

of interview. Part of that teaching a lesson

was slapping him around even if only three or

four times while he was held motionless in the

rack.

Well, that was not in the record of interview, and

that was not the evidence, that was not his case.

Mrs Kiely gave evidence that she saw him hit at

least once but there was no evidence that it was a

punch or anything of that nature. And, if we come

back to 31 where it says at line 5:

If you are satisfied beyond reasonable doubt

that he was subjected in the circumstances

which the evidence discloses to what has been

described variously, and as we shall see in a

short time, as, "verbal abuse", that would be

capable, as a matter of law, of constituting

an assault in the sense in which I defined it

for you a moment ago.

Now, how could that possibly be relevant? How

could verbal assault, verbal abuse, be given with

an intention to inflict grievous bodily harm in a

murder case, even if it was the law, which it is

not. So, we come to 64, 62, 63 in relation to not

interfering to stop it - - -

GAUDRON J: But that has to be taken in context. His Honour

did not isolate not interfering to stop it, he puts

it as a rolled up situation as it were, indicating

that not only had all these things taken place, but

he did not at any stage resile from the - - -

MR PAPAYANNI:  But the only trouble was, he rolled it up and

put in Lagopodis's record of interview. The

difficulty about this case was also that the only

evidence came from Mrs Kiely, except from

Miss Murray who was an accomplice and she said that

Mr Kiely had admitted to her there had been

torturing and bashing and her evidence was suspect

for a number of reasons, but if you come back to

the fact that on Kiely's evidence, the only matters

there in relation to what had happened was the fact

that Mrs Kiely had been bathing the baby, she had

Lagopodis 9 1/10/92

walked from the bathroom where a partitioned

corridor towards the bar, and near the bar was a

microwave. She was there for a few minutes, during

that few minutes when she was heating something for

the baby, she saw these assaults that she alleged.

She saw Kiely more than once hit Soyka. She

saw Clare Winter come into the room and that is

all. She did not see what Clare Winter did and

there was no evidence of that in Kiely's case at

all. There was evidence in Lagopodis's record of

interview of what happened, but it was not in - and
yet the Court of Criminal Appeal referred to the

fact of what was in Lagopodis's record of interview

as being evidence of the overall situation. They

said Clare Winter came in and said can I have some

fun and she was permitted to do so. There was no
evidence of that at all in Kiely's case. There was

evidence in Lagopodis's record of interview to that

effect, that she came in and said can I have some

fun.

TOOHEY J:  Do we have the records of interview?

MR PAPAYANNI:  Yes, Your Honour, I have it here. I was

going to refer to it on the separate trial matter.

Perhaps I could just refer to it now, it may make

it easier.

TOOHEY J: But this is Mr Lagopodis, but what about your

client?

MR PAPAYANNI:  I do not think I have got that. I think I

quoted it in the pages in the supplementary

submissions, that is all. Perhaps I could just

read Lagopodis's at this stage.

TOOHEY J: That may not advance or even detract from the

submission you are making at the moment. It seems

to be that there was nothing in the record of

interview of your client that, put broadly,
incriminated him.	Is that what you are putting to
us?

MR PAPAYANNI: There was nothing in there, yes, that is the

situation. His case, on his record of interview,

what he said in the record of interview, was that

he admitted he was the person who put him on the

rack and all he intended to do was to put him on the rack and that was to teach him a lesson. He did not intend him any harm, he admitted there

could have been two or three slaps by other people

while he was on this rack. It was a table which

was a form of stocks at each end, the head went

through one end and the arms went through the two

holes here, made of wood, and at the other end a

similar thing in relation to the feet. It was a

Lagopodis 10 1/10/92

difference of evidence as to the fact whether there

was a hole in the middle of the table. Kiely said

no, and Mrs Kiely said yes.

In relation to his -

TOOHEY J:  From what you just said to us, Mr Papayanni, I

took you to be saying that your client made no

admission of any physical activity at all.

MR PAPAYANNI: That is correct, and he denied that he

intended him any harm, in the record of interview,

but that was never put to the jury as a fact.

DAWSON J:  He denied he intended to do him any harm in doing

what?

MR PAPAYANNI: In putting him on this table.

DAWSON J:	So he admits that he put him on the table.
MR PAPAYANNI:	Oh, he admitted that, that is what I said.

He admitted putting him on the table, but he said that was to teach him a lesson and there was no intention to do him any other - assault him, or any

other harm at all.

DAWSON J: But the Crown case was that it was a common

enterprise.

MR PAPAYANNI:  The Crown case was different, that is right.

But that case was never put to the jury.

DAWSON J: It was put to the jury.

MR PAPAYANNI: Well it was never put as a separate entity.

DAWSON J: Youjust read the passage

MR PAPAYANNI:	No, as a separate entity.
DAWSON J: What was a separate entity? It is not separate

if it is a common purpose.

MR PAPAYANNI: So, in relation to - the difficulty about

this situation is, if any of the assaults were done

by anybody else with an intention to inflict

grievous bodily harm, therefore'the applicant,

Kiely, was guilty of murder. That was what the

judgment, to that effect. Not -

GAUDRON J: Well, not what you have read, because indeed the

way the trial judge left it, it was on the basis

that Mr Kiely would have to have an intention to

inflict grievous bodily harm and perhaps on one,

when you look, he would also have had to engage in

assault.

Lagopodis 11 1/10/92

MR PAPAYANNI: Assault, but no intent. The only time - - -

GAUDRON J: Well, he is talking only about Mr Kiely's case

at page 63 of the application book, "Was there an

intent ..... to inflict grievous bodily harm ..... by

those assaults". "Has the Crown proved beyond

reasonable doubt that there was such an intent",

and if you read the next passage, it is quite clear

that what His Honour is talking about is the case

against Mr Kiely, so they have to find out in

respect to Kiely. He puts it very favourably.

MR PAPAYANNI:  But not on any occasion has he said what the

intent was of Mr Kiely.

GAUDRON J:	To inflict grievous bodily harm.
MR PAPAYANNI:	Yes, but he did not inflict any assaults.

See, if you read back over the page, he said:

in a narrow pedantic sense -

Mr Kiely himself did not:

lay hands on the boy but got his three

henchmen to do it -

GAUDRON J: Yes.

MR PAPAYANNI:  So if the three henchmen, any one of those,

had an intent to inflict grievous bodily harm - - -

GAUDRON J:	No, you cannot read that into it.
DAWSON J:	Mr Papayanni, there is no dispute at the trial

that the two accused placed this man on the rack.

MR PAPAYANNI: That was the situation that Whippy and

Mr Lagopodis put him on, yes, that is right.

DAWSON J: Well, one way or another he was placed on the

rack and they were there and the Crown case was

that they - - -

MR PAPAYANNI:  And Kiely was responsible for that.

DAWSON J: Yes, and the question arose whether what was done

to him on the rack, and there was various evidence

about that in both statements and from other

witnesses, but whether what was done when he was

placed on the rack was done with intent to inflict

grievous bodily harm. That was the real issue, was

it not?

MR PAPAYANNI: Well, that is what the Crown was putting.

Lagopodis 12 1/10/92

DAWSON J: That is what the Crown was saying and that was

being denied one way or another by the accused and

then the next matter which was in dispute was

whether the deceased died from what was done to him

on the rack. That was the big issue, was it not?

MR PAPAYANNI:	No, really, he would have to die from an act that was done with intent to cause grievous bodily
harm.

DAWSON J: It was admitted, one way or another, by the

accused, that they placed him there for the purpose

of teaching him a lesson, in Kiely's case - - -

MR PAPAYANNI:  That is right.

DAWSON J: For inflicting some harm on him, some form of

torture.

MR PAPAYANNI:  No, that was not admitted.

DAWSON J: Well, perhaps you object to that, but there was

evidence that they placed him there for the purpose

of teaching him a lesson, for the purpose of doing

some harm to him.

MR PAPAYANNI:  The difficulty there is that Lagopodis admits

putting him on the table -

DAWSON J: Yes.

MR PAPAYANNI:  But he does not admit that he had any part in

what the other people - - -

DAWSON J: Well, there was some purpose of putting him

there. The Crown case was that he was put there,

not to make him comfortable, anyway, but to do him

some harm. Whether it was to inflict grievous

bodily harm or not is another matter.

MR PAPAYANNI:  That is correct. I understand what

Your Honour is saying, but the difficulty about

that is, that at no time was there a direction that

anything done outside the common purpose, that

Mr Kiely was not responsible for it.

DAWSON J: But there was no evidence on which one could base

an allegation that anything was done outside the

common purpose.

MR PAPAYANNI:  Clare Winter came in. She did certain things

to the deceased's genitals.

DAWSON J:  The Crown is not relying on what Clare Winter

did, is it?

Lagopodis 13 1/10/92

MR PAPAYANNI:  Yes, they were, because the evidence from

Dr Oettle was that what Clare Winter did could have caused her death. So, in order to do that, well then, that is - - -

DAWSON J:  Was the accused present while Clare Winter was

there?

MR PAPAYANNI:	Yes, he was there, but the point about it was
GAUDRON J:	And she asked, she sought permission, apparently.
MR PAPAYANNI:	No, that was no evidence in his case.

GAUDRON J: Well that is right, it is not - - -

MR PAPAYANNI:  No, the difficulty about that was that in

that respect, that His Honour gave a specific

direction in relation to Clare Winter and that was

on page 77 and this was to overcome what Dr Oettle

had said, at the bottom of page 76, line 25 :

It is for you to consider whether the

evidence, in Mr Kiely's case - I repeat again,

not in Mr Lagopodis' case, in Mr Kiely's

case - enables that to be put forward as a

reasonable hypothesis at all: but on the

assumption that you think that it does, then

again you must consider that overriding

principle of joint common purpose which I put

to you before; if the person who has

instigated this common assault -

of which there was no evidence that Kiely did

that -

sees somebody else come into the room in which

he is then present and overseeing, on the most

confined victim, and if that person sees a new	favourable view, a bit of slapping around of a
addition to the group do something else to the victim -

there was no evidence that he saw anybody. In fact

in his record of interview he said he did not see

what happened.

sees a new addition to the group do something

else to the victim and does nothing to stop it

Well, that is not the law. That is directly

against the law:

Lagopodis 14 1/10/92

then, I direct you as a matter of law, that

you are entitled to regard that additional act

done by the new arrival on the scene as an

adopted part of the common purpose.

DAWSON J:  Now, what is wrong with that passage?

MR PAPAYANNI: Because the law is quite clear, that if a

person is standing by doing nothing -

DAWSON J:  But that is not the situation. You take it in

context. Here the two men engaged in some sort of

an enterprise. They put him on the rack and

someone comes along and does something else to them

and they accede to that and accede to that by not

doing anything to stop it. That is the situation.

MR PAPAYANNI:  If the situation had been, he had put them on

the rack and said well, that is it, do what you

like, then you have got no answer to that, but when

somebody comes in and what she did to him was well

outside any physical assaults, I mean - - -

DAWSON J:  What you are saying applies to the case of a

disinterested bystander, but these people were not
disinterested bystanders by any stretch of the

imagination.

MR PAPAYANNI:  Yes, but he can hardly be said to concur in

something which he says he has never seen.

DAWSON J: That is his evidence, and if he did not see it

then this passage does not apply to him.

MR PAPAYANNI: That is right. But the jury would have to

decide that he did in fact see what happened.

DAWSON J: Yes, that is right. That is what the - if

the ..... sees in the ..... , that is what His Honour

says.

MR PAPAYANNI: Well His Honour is directing it as a matter

of law. But as a matter of law His Honour is

telling it: this is the situation.

DAWSON J: If he sees it, in this situation then, they are entitled to regard that as an additional act done by the new arrival as an adopted part of the common

purpose.

MR PAPAYANNI: Yes, as a matter of law, without them even having to consider whether he saw what was there

and without having -

TOOHEY J:  Mr Papayanni, look at line 1 on the page:

Lagopodis 15 1/10/92

if the person who has instigated this common

assault sees somebody -

And then it goes on:

and does nothing to stop it, then, I direct

you as a matter of law, that you are entitled

to regard that additional act ..... as an

adopted part of the common purpose.

His Honour is not saying: you must regard whatever

this woman did as part of the common purpose. He

is saying that if in all these circumstances the

accused saw her come in and did nothing to

interfere with what she was doing to the victim,

then they could regard that as part of the common

purpose. What is wrong with that?

MR PAPAYANNI: If there had been evidence that -

TOOHEY J: That is another question, but you are arguing the

direction to the jury.

MR PAPAYANNI:  Yes, but the point about that is that if you

are going to tell a jury what the law is, you have

to give them the facts. You have to say, now, if

you decide that these are the facts, if you decide

that Mr Kiely was there and that he instigated

these assaults in relation to these matters, and

as a view of that that it was part of the common

purpose and not something foreign to the common

purpose, then in those circumstances you would be

entitled, as a matter of law, to regard that as

part of the common purpose. But that is not what

is put there, that is put there as a direction to

them to do that in those circumstances and to

accept that law. That law, the law comes from what

Lagopodis says in his record of interview.

This was a case where you have one person who

is supposed to be instigating all these assaults

and you have a number of people that are coming in

and going, and all those assaults are supposed to

have been instigated by one person. If any one of

those assaults, if a person has gone outside the

common purpose, which may have been to do some harm

- even at the worst, in my submission, would have

been the position - you would not expect in a case

of any assault at all to have a verdict of murder.

The worst that you would get would be manslaughter.

DAWSON J:  Now, Mr Papayanni you seem to be approaching this

in an undisciplined way. Which of the proposed

grants of appeal are you directing yourself to?

Lagopodis 16 1/10/92

MR PAPAYANNI:  Well, I have dealt with the matter of common

purpose, I just thought I would go on to this

question of - - -

DAWSON J: Well have you finished with what you want to say

about common purpose?

MR PAPAYANNI:	Yes, Your Honour.
DAWSON J:	What are you proceeding to next?
MR PAPAYANNI:	In relation to the separate trial. As I

pointed out earlier, in relation to the separate

trial, the situation is that if there is to be a
joint trial, it is essential that the Crown case in

relation to each of the persons concerned in the

joint trial be given separately, which was done.

It is also essential that the defence case be given

separately, which was not done, in this case.

Besides what was argued beforehand in relation to a

separate trial - - -

DAWSON J:  Can you direct us to the portion of the charge

where the judge deals with defence cases.

MR PAPAYANNI:  I was going to deal with the Court of

Criminal Appeal, in relation to the Court of

Criminal Appeal.

DAWSON J: Well, if you would like to do it by directing us

to where the Court of Criminal Appeal went wrong,

it may be quicker.

MR PAPAYANNI:  On page 185, line 33 the Chief Justice said:

Both appellants complain that they should

have been tried separately, and that there was

a miscarriage of justice by reason of the

circumstance that they were tried together.

The Crown case was that they had acted

jointly in physically abusing the deceased,

and that the deceased had died as a result of

their joint conduct. Furthermore, there was a
substantial body of evidence common to the

Crown case as against each accused. In particular, the evidence of the eye witness,

Mrs Kiely, was an important part of the Crown

case on one of the few disputed areas of

primary fact. That is to say, the extent of

the ill treatment the deceased received at the

hands of the appellants.

There was an attack on the credibility of

Mrs Kiely, and it was suggested that her state

of domestic conflict with her husband gave her a motive to exaggerate her evidence. Even so,

Lagopodis 17 1/10/92

the story she gave to the police, and later at
the trial, was direct evidence against both

appellants.

The appellant Lagopodis complains that,

since Kiely -

et cetera. And then on the next paragraph:

Both throughout the course of the trial,

and in his summing up Sully J, repeatedly gave

the jury careful directions and warnings as to

the separate cases against each accused, and

as to the evidence that was admissible against

each.

In my view no miscarriage of justice has

been shown - - -

DAWSON J:	Now, you dispute that last paragraph, do you?
MR PAPAYANNI:	Yes.

DAWSON J: Well, can you point us to where the Court of

Criminal Appeal went wrong in making that

observation?

MR PAPAYANNI:  The main matter in relation to the separate

trial was what was said in the application for a

separate trial to be made before, and discharge the

jury after a separate trial was denied during the

trial, His Honour said he made up his mind about it
and he did not propose to change his mind in
relation to it. Then, as His Honour would not give

a separate trial at that stage, it was then asked for a discharge of the jury. That was during the

trial.

The first point that was argued was in relation to what was in the record of interview.

That is not mentioned at all by the Court of

Criminal Appeal.

DAWSON J: Well, what are we turning our attention to now?

Whether there should have been - - -

MR PAPAYANNI: This is a record of interview of Lagopodis.

DAWSON J: But are we turning our attention to whether there

should have been separate trials? Is that the

point?

MR PAPAYANNI: That is correct, yes.

DAWSON J: All right.

Lagopodis 18 1/10/92

MR PAPAYANNI:  On question 9 of Lagopodis, he is asked about

the assault in question 9 and then his answer was:

I remember what happened, he was only a young

bloke -

and so on. He goes down to say:

He started lying and that and Mike said 'stop

your lying and that', speak the truth', he

kept on lying and denying it. Then Mike gave

a hint to Julian -

that is Julian Whippy

to put him on the rack and then after that we

both put him on the rack and gave him a bit

of a flogging while he was on the rack, and
then after that we were still giving him a

flogging and he still denied it and then after

that he admitted the truth and we asked where

the money was -

and so on -

he and friend took the money together, then we
had him on the rack for about five or six

hours -

Five or six hours is what he said there:

and then we decided to take him off because he

had been on the rack for so long, he couldn't

move his legs we put him on the floor and then

he just died on us.

Question 25:

Can you tell me what you saw when you got to

the 'black room'?

That was the bondage room where this rack was.

I seen Mike goin' off his head at this young

bloke, Mike told Julian to strip him off and

we both put him up on the rack and Mike told

us to continue on and that so we both started

flogging him.

And question 27:

Will you describe how the assault took place?

Answer:

Lagopodis 19 1/10/92

I bashed him with me fists all over, Julian

was using some rope or whip, Mike was sitting

there telling us what to do.

Question 28:

Apart from you, Michael and Julian was there

any other person in the room during this

assault?

Answer:

Sue was but then she left, there was a sheila

Clare who came in and tied a bottle of Scotch

to his prick and she was sticking things up

his arse.

DAWSON J:  What you are saying about this is that that was

only evidence against Lagopodis and that - are you
suggesting that it was the trial judge either

expressly or impliedly told the jury that they

could use that evidence against Kiely?

MR PAPAYANNI:  No, but it was evidence that was so

prejudicial that - see, there was no evidence in

Kiely's case at all of any flogging, except for

what Mr Murray said.

DAWSON J:  I see. But the trial judge did tell the jury

that they should treat each case separately as

regards the evidence.

MR PAPAYANNI:	Separately, yes. Then during the trial, the point about that was that if the jury looked at
Lagopodis' case and accepted that the deceased had been bashed and flogged and been there for five or
six hours, they are hardly likely to accept what
the applicant Kiely said that he had not been -
anything had happened to him on his part at all and
that he had only been on the rack for 20 minutes,
then he was taken down stairs and spoke to his
father on the telephone and the police had in fact
contacted his father - he was not brought to give
any evidence - and he brought him back upstairs and he was on the rack for another 20 minutes.

There was no evidence at all that any assaults

took place in that second 20 minutes. So you have

Lagopodis saying that he was on the rack for five

or six hours, you have Kiely saying that he was

only on for 20 to 30 minutes and then took him down

stairs another 20 or 30 minutes, about 50 minutes

altogether. The only assaults, the only evidence

of any assaults, were the time when Mrs Kiely saw

them, and that was at the beginning when

Clare Winter came into the room.

Lagopodis 20 1/10/92

That was a completely impossible situation

when it was put to Dr Oettle, in order to get his

opinion as to what the situation was in relation to

the cause of death. It was put to him that he was

flogged and bashed during this period of one hour.

They opposed this case, of course. It was put that

it could have been over a period of five or six

hours.	Dr Oettle gave evidence that a slap in the
face could have caused his death.	If that was the

situation, well then that slap on the face would

have to be given with an intent to inflict grievous

bodily harm - and that would be absurd. But

looking at the situation in relation to what was

said in the record of interview, there was no

possibility that when they looked at that record of

interview, in relation to Lagopodis, that they could possibly ignore it in relation to Kiely.

Then you go on to the prejudicial nature of

evidence that was brought in the trial by cross-
examination of Miss Harris that Kiely was in fact

giving heroin to this young person Soyka, which was

a matter of character that was brought in in

relation to Kiely, which put him in a further bad

light, if he was not in a bad enough light already

as running this place where prostitutes came.

So you had those situations: that his

character was raised by reason of cross-examination

by counsel for Lagopodis and you have the

impossible situation in relation of putting two

different versions to Dr Oettle. So, in those

circumstances, when one looks at it in hindsight,

one has to say:  how could the accused Kiely - - -

GAUDRON J:  When one looks at it in hindsight, the question

is whether a miscarriage of justice resulted.

MR PAPAYANNI:  That is correct. And when one looks at it

that way, one looks at it and says "Was the

accused, the appellant - - -

GAUDRON J:  Was he deprived of a chance of acquittal that

was fairly open?

MR PAPAYANNI: That is right.

GAUDRON J: Well what is your submission on that?

MR PAPAYANNI:  The situation was, as I have set out the

evidence, clearly here that the evidence that was admissible against Kiely, if that had been put as an entirety, excluding all the prejudicial matter

that had been put to the jury in relation to

Lagopodis, and the fact that Kiely's character had been brought up in relation to heroin, then on that

evidence he would have had a chance of acquittal,

Lagopodis 21 1/10/92

but he would surely have had a very good chance of

manslaughter. Because there was just no evidence.

DAWSON J: No evidence against? If you look at page 80 and

the following pages, where Kiely's unsworn

statement is set out, and that is said to be by the

Court of Criminal Appeal in line with his record of

interview, that implicates him in no uncertain way,

Mr Papayanni.

MR PAPAYANNI:  Page 80. Which part, Your Honour?

DAWSON J: It starts:

Mr Kiely continues:

It actually commences at page 79, the statement.

MR PAPAYANNI:  Yes, that is right.

DAWSON J:  He admits he was placed on the rack. He

describes the rack. He said that the boy had

stolen money from the premises, he said he was

slapped in the face, he says not with a fist, 20

minutes on the rack, taken down stairs and:

stated to me that he would get the money that

he had stolen from my premises, for myself and

for the girls.

And so on.

MR PAPAYANNI:  Yes, of course he had also said that he had

not intended that any harm would come to the boy.

DAWSON J: Yes, he did but the circumstances are such as to

implicate him in a quite definite way.

MR PAPAYANNI: Well they certainly implicate him, but the

question is: do they implicate him in an offence of

murder?

DAWSON J: That is right and the trial judge told the jury

that the two cases were to be considered separately

so far as the evidence was concerned. What I am

putting to you is that it is not a case in which

your client was implicated only by reason of what

was said in the statement of the other accused, by

no means.

MR PAPAYANNI:  Yes. But it was not that he was implicated.

He admits that he put the boy on the rack to teach

him a lesson -

DAWSON J:  And that he was slapped.

Lagopodis 22 1/10/92

MR PAPAYANNI:  The jury could not possibly accept what he

said, that he did not intend him to have any harm,

when Lagopodis says in his record of interview that

he was bashed and tortured. How could anybody

reasonably accept a defence by an accused person

that he did not intend any harm to come to him in

those circumstances.

DAWSON J:  I think we have that point.

MR PAPAYANNI: Just briefly, my friend is going to deal with

this in a bit more detail, but I might just refer

to the fact in relation to causation situation. It

is set out in the matters that I put to the Court

in relation to the evidence. The Court of Criminal

Appeal did not refer to Dr Gilbert's evidence at

all. Dr Gilbert's evidence was the effect that:

1. The assaults could not have resulted in his

death. 2. That he could have died, not from an

overdose of drugs, but he could have died from drug

contaminants or heroin contaminants - which he had

been taking, heroin - and he could have died from

drugs also.

Dr Oettle's evidence was that in relation to

subdural hematoma that he could have died from

that. He could have died from many other

possibilities, he said, and he also said that he

had not seen his medical record which was open to

the Crown to produce because he had been in

institutions all the time. They had ample

opportunity to produce medical records in relation

to him and no evidence was produced that he did not

suffer from epilepsy or some other type of heart
trouble that could have caused him to die.

So you had, in relation to what Dr Oettle said, there were many other possibilities. In

relation to what he said, of course, that a slap in

the face could have caused death, if a slap in the

fact could have caused death, as I said before,

that that was the situation where that would have

to be with intent to inflict grievous bodily harm.

And it could not have been. So you had a situation

there, Dr Oettle said, that this Clare Winter, what

she did could have caused death and that is set out

in the different pages of the evidence. He agreed

that an overdose of benzodiazepine could have

resulted in collapse and death, and many other

possibilities.

Dr Gilbert said, and as I say, the Court of

Criminal Appeal made no reference to this at all in

causes of drugs causing death and he could not

relation to the cause of death, he gave slaps to

the face and assaults unlikely to cause death.

Lagopodis 23 1/10/92

exclude drugs as the cause of death.	It could have
been heroin contaminants.

Now what was said, of course - it was relied

upon as a circumstantial case and in that respect,

of course, what was said here was that there were

many possibilities in relation to - I am sorry -

His Honour put that there were two possibilities.

One, His Honour put, was an overdose. That was

never put.	The second one was that he died from
the assault.

DAWSON J:  What ground of appeal are we directing our

attention - - -?

MR PAPAYANNI: This is the last one, in relation to the

cause of death.

DAWSON J:	I see, yes.
MR PAPAYANNI:	So that was a circumstantial case relying on

possibilities, when most possibilities had in fact
been waved aside by Dr Gilbert, who was also an

expert. This Court, and Your Honour also dealt

with this question of circumstantial evidence in

Shepherd's case, which is on page 170 CLR 579.

Your Honour said:

On the other hand, it may sometimes be

necessary or desirable to identify those

intermediate facts which constitute

indispensable links in a chain of reasoning

towards an inference of guilt. Not every

possible intermediate conclusion of fact will

be of that character. If it is appropriate to

identify an intermediate fact as indispensable

it may well be appropriate to tell the jury

that that fact must be found beyond reasonable

doubt before the ultimate inference can be

drawn.

Et cetera.	And Your Honour was dealing with
Chamberlain's case.	The situation here is, of

course, we have a circumstantial case where, if

there is any other reasonable hypothesis consistent

with innocence, in this case consistent with the

cause of death being other than due to the

assaults, then the situation is the jury should

acquit.

You cannot raise a possibility into a

reasonable hypothesis, because in this particular

case, as Your Honour said in Shepherd's case, the

cause of death has to be proved beyond reasonable

doubt. If the cause of death has to be proved

beyond reasonable doubt, a possibility cannot be

relied upon to make it a reasonable hypothesis. It

Lagopodis 1/10/92

has to be proved beyond reasonable doubt. If we

look at Peacock's case, of course there is a

different situation there. In Peacock's case they

knew the cause of death. They knew that it was due

to a miscarriage, and it was only a question there

in Peacock's case as to whether that cause of

death, which was a miscarriage, happened

accidentally or occurred from what the doctor did.

My submission is, in relation to that matter, that

this is an important matter in relation to cause of

death, that Peacock's case and the principles

there, in relation to Peacock's case, should be

applied to the cause of death. If you do that, in

relation to the situation where what was said in

Peacock's case - and a simple situation is in

13 CLR 634 - and it is a simple proposition of law

which has been said over and over again:

The rule is sometimes stated that the

circumstances must be such as to be

inconsistent with any reasonable hypothesis

other than the guilt of the accused. I

enquire, then, Was this the only reasonable hypothesis or the only rational conclusion? and ask, first, What was the physical cause of

death? before coming to the question of who
caused it. In ordinary cases of death by

violence, it may be caused by suicide; or by

the act of another person or of several
persons, any one of whom may have done it. In
the present case we know what the cause of
death was, if we know anything about the case

at all. It was the result of a miscarriage.

So, in Peacock's case you had the miscarriage

and the question then - the circumstantial case was

relied upon in relation to whether the accused, in

that c~se, had in fact done the abortion, or

whether it had been accidental. I do not propose

to refer to all of Peacock's case but - - -

DAWSON J: But are you complaining about any direction that

the trial judge gave in this regard?

MR PAPAYANNI:  Only in relation to - you see what

His Honour put in relation - - -

DAWSON J:  You may be complaining about the result, but did the trial judge - - -

MR PAPAYANNI: His Honour gave the correct matter in

relation to circumstantial evidence, but the only

thing that I am complaining about is that he should

have taken it away from the jury in the first

place, because they were only possibilities and the

possibilities were of such a sketchy nature that

the jury were not in a position then to be able to

Lagopodis 25 1/10/92

decide the question - it should not have gone to
the jury in any case.

At page 664 it states there that if it had not been for the evidence of Poke in that particular

case, page 662, point 5, in the second paragraph,

Mr Justice O'Connor said:

I agree with my brother the Chief Justice that

it is for the Judge to determine, in regard to

circumstantial evidence, as in regard to any

other kind of evidence, what amounts to that

degree of proof which will in law justify the

jury in drawing an inference of guilt, and, if

he is of opinion that the facts are

insufficient in law to justify a jury in

drawing that inference, he is bound to

withdraw the case from them. Otherwise the

jury might go through the form of bringing in

a verdict of guilty which the Court on appeal

would immediately set aside as being founded

on facts insufficient in law. If it were not

for Peke's evidence I think the learned Judge

at the trial would have been bound on that

ground to have withdrawn the case from the

jury.

My submission is that this is a case where that

should have been done.

DAWSON J: Thank you, Mr Papayanni. Yes, Mr Wendler.

MR WENDLER: If the Court pleases. It is a little over two

years ago now that my client was sentenced to life

imprisonment for murder. He complains that in all

the circumstances he has suffered a miscarriage of

justice. The miscarriage of justice of which I

speak is made up of four parts. They concern first

an instruction which was held to be a correct

instruction by the Court of Criminal Appeal

concerning how the jury should treat the disputed

record of interview in relation to the applicant

Lagopodis.

The second ground concerns the application for

a separate trial made by the applicant Lagopodis

and that ground has a number of component parts to

which I shall refer in a moment. The third ground

concerns the introduction of expert medical

evidence, in particular, the way it was introduced
into the trial over objection. This was held, in

the end, by the Court of Criminal Appeal, to be a

correct ruling by the learned trial judge in the

circumstances of the trial. A correct ruling in
the sense that the evidence was admissible and

probative of the issues joined. The last component

which makes up my submission concerning a

Lagopodis 26 1/10/92

miscarriage of justice is that in all the

circumstances it is open that the verdict of the

jury is unsafe and unsatisfactory.

Can I move back now to identify the first

ground concerning a miscarriage of justice. A

convenient starting point is in the judgement of

the Court of Criminal Appeal at page 191 of the

application book. This is the ground that concerns

the instruction which was given to the jury about
the circumstances concerning the compilation, or

the existence of Lagopodis' record of interview, a

copy of which Your Honour has already had. At

page 191 the Court of Criminal Appeal handled the

instruction given by the learned trial judge in

this way in point 7.

In dealing with the arguments of counsel

on this point Sully J, having drawn attention

to the seriousness of the allegations made

against the police officers, went on to say:

Over the page into 192 is that part of the

instruction to the jury, but is not the only part

of which this applicant complains. It is curious

that it is only that part which is contained in the

judgment, and I say it with the utmost respect,

that that is not the only part of which the
applicant complains and of which the applicant

agitated before the Court of Criminal Appeal.

In order to understand how this instruction

came about in the trial it is perhaps appropriate

that I come back a little bit and invite

Your Honours to page 90 of the summing up. There

was a head on collision in the trial in the case of

Lagopodis and the prosecution case was that he was

arrested and he co-operated in relation to the

record of interview which Your Honours have already

scrutinized.	The applicant's case was that he was
arrested, he was assaulted by the police, the

record of interview was a fabrication, his
signature upon it was obtained through threats and

intimidation and violence, he was denied access to

a solicitor and following all this the police made

overtures to him that if he were to remain silent
about his treatment they would make sure that he

obtained bail.

The applicant also said that he had trouble

reading, so it was a head on collision in the trial

in relation to this. The applicant, of course,

made a statement that he called evidence, he called

a solicitor who saw him a day after in the

afternoon and gave evidence about the condition in

which he found the applicant. At page 90 of the

summing up, at point 5, the learned trial judge

Lagopodis 27 1/10/92

introduced the topic of the record of interview in

this way:

Exhibit C is of course a point of very

great contention in the case of Mr Lagopodis.

As indeed it was.

His case in relation to it is that it is a

fabrication as to its contents and that his

signature, which admittedly appears upon it,

was extorted from him by ill treatment at the

hands of the police.

His Honour then says something else about some pre-

record of interview conversation. The next

significant part is on page 91, if the Court

pleases, about point 3:

The record of interview having been

challenged, it becomes part of the Crown's

burden to satisfy you beyond reasonable doubt

of the authenticity of the document and of the

authenticity of what is contained in it.	How
you resolve that matter will depend upon a
whole variety of things.

So at that stage His Honour is introducing a style,

as it were, a style of resolution which he invites

the jury to embrace. His Honour then proceeds

further.

It will depend, of course, in a very large

degree upon the views which you formed of the

credibility on the one hand of the police

witnesses - but, remember, there were

Mr Beresford, Mr Gordon, Sergeant Shepherd -

He identifies three police officers who were

involved in the compilation of the record of

interview.

in a sense, at least those police witnesses

who gave evidence about the photographs. I

will bring you to those presently -

and so on. His Honour then continues a little

further down:

I repeat, reasoning - which you will undertake

in choosing between the competing versions

about this disputed record of interview.

His Honour then says:

First, you have to consider whether or not he

was assaulted at all as he suggests. Once

Lagopodis 1/10/92

again, the plain fact of the matter which

cannot be run away from is that both versions

cannot be right. The police say he was not

assaulted at all; he says that he was quite

seriously assaulted.

This is where the momentum in relation to what is

complained of commences:

Somebody plainly is not telling the truth.

His Honour instructs the jury.

There is no middle way of reconciling those

two versions; they are totally opposed.

And so they were.

So that is the first thing you should

consider: Are you satisfied that he was

assaulted at all?

In that regard you might be assisted -

and so on. At that stage of the trial His Honour

read out the statement made by the applicant at the

trial, where he gives a description as to what

happened to him.	He says that he tried to tell
them the truth, they said they had statements: they threw the statements to me face.	I told

them I could not read and they kept on

assaulting me.

and so on. Then the next significant feature is on page 93 at point 7. His Honour reminds them of the

allegation made by me:

What I am suggesting to you is that this

record of interview did not take place in the

way you have described, it is a fabrication?

That is incorrect. It took place as I have

described.

The next significant feature in relation to

this direction which is complained of is on

page 102, and this is the main complaint of this

ground for special leave to appeal. At page 102,

at point 1, His Honour picks up the dispute

concerning the record of interview again, and

His Honour says this:

There is of course another matter that

you really will have to think through very

carefully in connection with the record of

interview, and it is this. Once again there

is a direct conflict in the two points of view

put before us. Somebody is plainly telling

Lagopodis 29 1/10/92

lies. For, once again, the versions are

diametrically opposed. There is no nice,

easy, compromising, middle way that enables

one to bring all the points of view into

reconciliation; either the document is a

deliberate fabrication signed as the result of improper pressure by the police, or it is not.

His Honour then commences this part:

If it is a complete fabrication then

certain things ineluctably follow.

I am not sure whether anybody on the jury

understood that sentence, with the greatest respect

to His Honour.

One is that Mr Beresford, Mr Gordon and

Mr Sheppard at least, at least those three,

have given perjured evidence in this Court;
have conspired to pervert the course of

justice, which you can take it from me is a

serious criminal offence -

His Honour is giving judicial authority, now, to

this instruction to the jury that there may be this

allegation or insinuation by the defence that there

is some conspiracy by the police in relation to

perverting the course of justice; His Honour then

says:

which you can take it from me is a serious

criminal offence particularly when it involves

a conspiracy to fabricate evidence. They

committed, not as to Mr Sheppard but as to

Mr Beresford and Mr Gordon, serious criminal

assaults upon a citizen then in their custody

and they conspired between their two selves
and with Mr Sheppard to cover it up. At least

that follows if the total fabrication version

is correct.

His Honour then says, further:

Now, I do not have to tell you, I am

sure, that those are very, very serious
consequences, very serious things to suggest
consequences is not the word - they are very

serious things to suggest.

An emollient submission was put to you -

I am not sure that that expression would have been

understood either -

that you can, as it were, step around the

problem, in that the police are not on trial,

Lagopodis 30 1/10/92

as, in a direct and primary sense, indeed they
are not; and that you do not, in order to

reject the confession, have to find positively

that the police misconducted themselves in any

way at all. It is sufficient, so it was said,

that you simply say that you were not

satisfied beyond reasonable doubt that the

confession was authentic.

His Honour then takes up that general submission made by counsel and suggests that it is partly

correct and partly incorrect. Perhaps, down at

point 3, His Honour says:

But it would seem to me, ladies and gentlemen,

that in coming to grips with that question as

so framed, it simply is not possible in the

circumstances of this case to walk away from

the very cardinal contest upon which that

matter turns -

in other words, he is hammering home to the jury

that there was this contest concerning the record

of interview and part of that contest concerns

whether or not the jury, in resolving the contest,

should incorporate into their resolutions this

police conspiracy theory. His Honour then moves a

little further:

You cannot put the question aside and sensibly

address the problem, the end problem, of

whether the confession, being the record, is

authentic or not and if you cannot just shrug

your shoulders and walk away completely from

what the defence asks you to accept about the

record of interview, then neither can you walk

away as part of the rational process by which

you look at the question from the consequences

that necessarily follow because a

consideration of those consequences might, to

say the least, assist you in coming to where

you think the truth lies in terms of the

Crown's obligation to establish positively

beyond reasonable doubt that it is an

authentic document and its contents also are

authentic.

His Honour then proceeds further:

So, you should consider those matters and you should ask cognately with them what motive do the police officers or any of them have for

having done any such thing implying, as the

allegations do, the consequences of the kind I

have outlined to you.

Lagopodis 31 1/10/92

If the Court pleases, I am almost at the end of it.

Page 104 is just the last portion which is

complained of:

Of that it is sufficient to say no motive

was put to them in cross-examination. It is a

matter for you to decide what you think about

that. You should simply be even-handed about
the question of motive and to consider

whether, by contrast, the accused has a

motive, whether or not the little episode -

His Honour then moves over to identify a statement apparently attributed to the applicant Kiely that

he made what may be considered an admission

indicative of consciousness of guilt at the point

of his arrest where allegedly he said to

Mr Lagopodis in the dock, "I'll take the fall".	So
His Honour ties this instruction up to that

expression, "I'll take the fall", which was

contested in the case for Kiely as never being said

at all.

Your Honours, the instruction that I have just

read out, in my respectful submission, is not a

correct instruction in law. It is an instruction

which has been disapproved of not only in this

Court, in Duke v The Queen and recently in McKinney

v The Queen and Judge v The Queen. It was also

.expressly disapproved of in Towner's case, a case

which the Full Court had and, in the circumstances

distinguished, and it is to that decision I propose

to move. Can I just invite Your Honours to - - -

DAWSON J: Well, of course, the Court of Criminal Appeal

said that that passage, part of the passages that

you read, was susceptible of criticism, but that in
the light of the overall direction on the question

of the onus of proof it did not occasion a

miscarriage of justice.

MR WENDLER:  In my respectful submission, it did, because -

and this is one of the components in this

application - the Full Court first held that it

could distinguish that instruction from the

instruction in Towner. In my respectful

submission, it cannot distinguish it. In fact, in Towner's case the instruction is not as extreme as

it is in the present case.

DAWSON J:  I do not know that it did say it could

distinguish it from Towner. It said that it was

undoubtedly true that in light of the decision in

Towner that, in the above directions His Honour was

operating in a dangerous area, and there is some
force in the criticism to be made of that part of

the summing up, but they go on to say:

Lagopodis 32 1/10/92

However, in the light of everything that
his Honour said in the summing up about onus

of proof -

and this is at page 193 -

and in the light of what he said about that

subject in the context of the disputed

confession, I do not consider that the jury

would have been left under any misapprehension

as to the issue they were to decide.

MR WENDLER:  But the most important issue they had to decide

was who was responsible for the death of this

person, that was fundamental, and in deciding that

issue they had to rely on what was contained in the

record of interview of the applicant Lagopodis.

That record of interview first provided the measure

of his own criminal responsibility, if it were

accepted beyond a reasonable doubt, and second, it

was used by the expert as evidence of the

possibilities in relation to cause of death. It

was relied on by the expert in so far as he drew

inferences from it in relation to the cause of
death, because in the record of interview there are
statements like, "We gave him a flogging" and the
insinuation in the record of interview that it was
a piece of medieval horror that took place in that

room and they administered to this unfortunate man

a relentless beating.

So, in that sense it was a very very important part of the trial and what is complained of is that

that instruction may well have deflected the jury

from their considerations as to whether or not the criminal responsibility of Lagopodis had been made out in the circumstances. That was a clear

instruction in graphic language, inviting the jury to speculate, why would the police get involved in

this conspiracy to pervert the course of justice,

and so on and so forth.

The instruction went further, in fact invited

the jury to consider whether there was some motive
that they had to fabricate this record of interview

and the fact that counsel had never suggested some

motive to them, as appears at page 104 of the

application book where that part of the instruction

appears.

.So, in my respectful submission, the

instruction suffered from the same problems that the instruction suffered in Towner's case, where
the Court of Criminal Appeal were moved to quash

the convictions and order a retrial because of an

instruction of that kind, even though there was

other evidence and even though, in Towner's case,

Lagopodis 33 1/10/92

counsel never asked for that instruction to be

withdrawn from the jury. And that was done in this

case; His Honour was asked to withdraw that

instruction from the jury and His Honour declined

to do so.

Can I invite Your Honours to Reg V Towner?

Coincidentally, Towner involved the same trial

judge. This was a decision, of course, involving a

case of murder. The facts in Towner were that the

accused had murdered a four-year-old girl, after he
attempted to have sexual intercourse with her.

They were a particularly distasteful set of facts.

At page 5 of the judgment in the Court of Criminal

Appeal, in Towner, there is identification of the instruction which was complained of in that case,

at point 7. His Honour the learned trial judge

apparently instructed the jury in Towner in this

way:

And indeed, let us not walk away from what is

plainly the fact, that in this case there is

no middle way. Somebody is telling lies on

oath; that is to say, somebody is committing

perjury. Courts are normally reluctant to say
it as bluntly as I have just done, preferring

to shelter behind traditional formulas such

as, "they prefer this version to that" and the

like; but here, as it seems to me, there is no

middle way; somebody is telling deliberate

lies.

And His Honour then proceeds further to instruct

the jury and, at the bottom of page 6, commencing

with the last paragraph:

Now I want you to understand very clearly -

very clearly indeed - that in having said to

you what I have just said, I am not intending

to convey to you, and you are not to

understand otherwise, a view as to how you

will resolve the dispute -

at least His Honour there mollifies the instruction

to a certain extent; he did no such thing in the

case for the applicant -

That is your function and not mine. Nor do I

intend in what I have just said, to in any way
inflame you to the point where your prudent

independent judgment is affected. My purpose

is to get you to understand the reality of the competing choices between which you are called

upon to decide and I suggest to you that if

you are going to find that there has been a

deliberate pattern of perjury, of conspiracy,

and at least in one respect of forgery; if you

Lagopodis 1/10/92

are going to find that, at the very least, you
will expect to find evidence - I repeat
evidence - the weight of which is proportioned

to the gravity of what those findings imply.

His Honour Justice Allen gave the leading judgment

in Towner, with whom Justices Priestley and

Badgery-Parker agreed. At page 9, His Honour puts

it very well. He says:

What is argued for the appellant is that whilst his Honour's general directions as to

the onus of proof were correct his specific

directions in relation to the confessional

evidence posed the method of resolution of the
ultimate issue of whether the Crown had
discharged the onus of proving the appellant's
guilt as being, insofar as it turned upon the

confessions, that the jury were to determine

which they would prefer out of the two

"competing choices" namely, on the one hand,

the police version that the confessions were

made voluntarily -

and so on, and

the appellant's version that there had been "a

deliberate pattern of perjury -

and so on.

His Honour then identifies the passage or

principle of law in McKinney and Judge v The Queen,

and I propose to repeat it. That is at page 9, if

the Court pleases. This Court said:

It cannot be sufficiently emphasised that a jury should never be directed in terms which

suggest that it is necessary to decide that

latter question.

That is language in imperative terms. It is saying

to all courts in the Commonwealth, all criminal

courts, to all trial judges directing juries, that no instruction should be given to a jury which, in

some way, suggests that they have to decide when

they come to decide the issue concerning the

authenticity of a record of interview whether the

police have perjured themselves or engaged in some

conspiracy to pervert the course of justice.

DAWSON J:  The Court of Criminal Appeal does not in any way

resile from what is said in Towner. Indeed, it

addressed itself to what was said there, but in

Towner's case the confessions were the central issue; the Court of Criminal Appeal did not regard

that as being so here or, at least, it said that

Lagopodis 35 1/10/92

having regard to the charge as a whole it did not

think that there was any miscarriage of justice. Now, in saying that the Court of Criminal Appeal

did not err in principle at all, did it?

MR WENDLER:  Not in that sense. However, with the greatest

respect, as I read that passage of the judgment of

the Court of Criminal Appeal in this application

there appears to be a suggestion that, in some way,
the instruction in the present case was not as

extreme, as it were, as the instruction in Towner's

case. In my respectful submission it was of the

same calibre. On top of that, it had the tendency

to undermine or to deflect from the real purpose

that the jury had, which was to determine whether

they were convinced beyond a reasonable doubt that

the applicant's role in this enterprise attracted

criminal responsibility. It had that tendency and,

on top of that, it has to be considered in the
light of the case to some extent of the applicant

Kiely because his case was he co-operated with the

police; he co-operated with the police. There was

no contest between him and the police as to what

occurred in the record of interview that was taken

from him.

So in that sense the jury may have been, as it

were, influenced to a very large degree by that

instruction, having once again the tendency to

deflect from the real issue that they had to

decide, namely the level of this man's, the

applicant's, criminal responsibility. That is not

a correct instruction, in my respectful submission,

and by itself should move this Court to grant

special leave to appeal on the basis that that

instruction has led to a miscarriage of justice in

the circumstances.

DAWSON J: That must be the point, because there is no error

of principle on the part of the Court of Criminal

Appeal; you say that they were simply wrong in

saying - not simply wrong, you give reasons for it,
but that they were wrong in coming to the

conclusion that there was no miscarriage of

justice?

MR WENDLER:  Yes, by reason of the circumstances and the

position of that instruction to the jury.

DAWSON J: Yes, I follow that.

MR WENDLER:  If the Court pleases, the next component of the

application so far as a miscarriage of justice is

concerned that I propose to handle is the medical

evidence.

DAWSON J: That was your third point.

Lagopodis	36	1/10/92
MR WENDLER:	Yes, it was.	I am sorry, I have - - -

DAWSON J: It does not matter.

MR WENDLER: If the Court please, if I could just handle

that first and I will move to the separate trial

issue. The prosecution called, over objection, an

expert by the name of Dr Oettle. He said that he

was a forensic pathologist. There was no dispute

that Dr Oettle was an expert in forensic pathology.

What there was a dispute over was as to whether he

had sufficient materials on which to base a

reliable opinion concerning the cause of death.

In other words, the exception to the rule -

the witness cannot give opinion evidence, the

exception is when it relates to experts, but there

is a difference between being an expert and being

an expert who has sufficient material and

information upon which to base his expertise.

There is a vast difference. I can go into

Macquarie Street and convince the best doctor, the most brilliant doctor in Macquarie Street, to come

to a court of law and give evidence, but his

evidence would not be so useful or reliable if he

was not in possession of adequate materials upon

which to base that expertise.

There was a challenge upon that basis before

His Honour the learned trial judge and the

applicant sought a voir dire to challenge that,

sought a ruling of law as to the reliability of the

evidence that this person was about to give. He

came into this trial three days before he gave his

evidence; he was supplied with some of the evidence

taken at the trial; and he was a witness who was

going to give evidence upon which the jury would
have to determine the issue concerning causation or

cause of death.

TOOHEY J:  What evidence otherwise was there, Mr Wendler?

MR WENDLER: There was no other evidence.

TOOHEY J:	What about the post-mortem report?
MR WENDLER:	The post-mortem report was compiled by a

government medical officer by the name of Dr Malouf

who said, in his report, he was not able to

determine the cause of death.

TOOHEY J:	And was that report tendered in evidence?
MR WENDLER:	Yes, the report was - yes, it was, if the Court

pleases, tendered in evidence. If the Court
pleases, can I just invite Your Honours to some

parts of the transcript which would be of

Lagopodis 37 1/10/92

assistance in relation to this ground. Can I also

invite Your Honours to that part of the evidence

which concerned the evidence given by the forensic

expert which the defence sought to rely upon.

TOOHEY J: 

Who is Mr Gilbert?

MR WENDLER: 

Mr Gilbert was a forensic pathologist, a very

experienced forensic pathologist, in the sense that
he had given evidence in court, not just the

Supreme Court of New South Wales but other supreme

courts in this country, and he was a forensic

pathologist working in Adelaide actually.

TOOHEY J: 

And Dr Malouf was the doctor who carried out the

autopsy?

MR WENDLER:  Yes. What happened: the remains of the

deceased were found approximately three-and-a-half

to four months after the allegation concerning the
time when the deceased was supposed to have been in

this room and had these things administered to him.

So, necessarily, the remains had suffered to a

considerable degree from exposure and

decomposition. When Dr Gilbert gave his evidence -

and he gave his evidence in the trial and he was in
court when Dr Oettle gave his evidence, he sat in

court listening to the evidence of both Dr Malouf

and Dr Oettle.

Your Honours have page 323 of Dr Gilbert's

evidence in the trial.

TOOHEY J: Just before you get to the evidence of

Dr Gilbert, are you putting that up, as it were,

against the evidence of Dr Oettle, or are you at

the moment arguing that Dr Oettle's evidence was

inadmissible?

MR WENDLER: Inadmissible, if the Court pleases.

TOOHEY J: Then what does Dr Gilbert's evidence have to say

about the admissibility of the other evidence?

MR WENDLER: That is what I am about to refer to at

page 323, Your Honour. At point 3, he was asked

the question:

Now, in relation to Dr Malouf's autopsy report

and this is the report Your Honour Justice Toohey

just mentioned -

do you have that in front of you at the

moment? A. Yes.

Lagopodis 38 1/10/92

You had an opportunity to assess that report,

didn't you? A. Yes.

After assessing that particular report were

there any matters which concerned you in

relation to the adequacy of that report?

And I think he misheard the question there and then

it was asked:

The adequacy?

and then he commenced in this way:

The adequacy, yes. Firstly, Dr Malouf is not

a forensic pathologist. He, as I understand

it, would not on a day to day basis ordinarily
be involved in performing autopsies, only on

special occasions he might be invited to do an

autopsy, and some other matters concerned me

as well.

Firstly, that in the case of an

apparently suspicious death, the body found

decomposed in bush, a forensic pathologist

would ordinarily want to visit the scene of

the death to assist in the collection of trace

evidence and the collection of insect larvae

and so on.

Oettle never, in his life, examined the remains of the deceased and the important point to which I am

about to refer, was that the remains, to a forensic

pathologist, had some forensic value, even in the

state that they were found. His Honour then asked

a question and Dr Gilbert said:

And assist in the collection of trace evidence

from the body and the scene and also to

collect insect larvae from the body and assist

the body and generally to make himself	in the collection of soil samples from beneath
familiar with the scene and the location of the body at that time. That apparently was not done in this case.

Next, the autopsy examination concerns

me. In a case of this type in a badly

decomposed body which consists only of dried

leathery skin and bones, even though the body

is in this condition a forensic pathologist

would x-ray the body to look for not only

fractures of bones that might not be apparent

to the naked eye but also to look for other things such as bullets in a body like this,

and this apparently was not done.

Lagopodis 39 1/10/92

Now, I have seen photographs of the

remains that were taken at the scene and as I understand it from Dr Malouf's autopsy report

and his evidence yesterday, he did not make a

detailed examination of the skull and in

particular the facial structures. If it is

indeed true that Mr Soyka was beaten about the
face forcibly, one would be particularly

concerned to make a detailed examination of

the facial bones looking for fractures which

might indicate evidence of the degree of force

that was applied to his face. Those are the

main things that concerned me about this
autopsy report.

In other words, the other question on page 324, at the top of the page:

It is possible if a forensic pathologist had

examined this body, we may well have been able
to reach formal conclusions as to the cause of

death in this case.

TOOHEY J:  Can I just interrupt you, Mr Wendler? Was

Dr Gilbert giving evidence as part of the voir dire

or was - - -

MR WENDLER:  No, he is giving evidence there in the defence

case.

TOOHEY J: Well then, how does that bear upon the voir dire

which had already been - - -

MR WENDLER:  Your Honour, I made an application to the trial

judge for a voir dire in relation to this issue

which was refused.

TOOHEY J:	I see.
DAWSON J:	And then Dr Oettle was called?
MR WENDLER:	Yes, that is right.
DAWSON J:	And in the defence case you called Dr Gilbert?

MR WENDLER:  Yes, that is right. My submission was always

that Oettle should have been challenged - I had

sought to challenge Oettle before he got in the
witness box to give the sort of evidence that he

was given, given that he had never examined the

remains. He did not even know that at the

committal hearing Dr Malouf had said that when he

examined the skeletal remains he could not find any

fractures.

TOOHEY J: But these would unquestionably be matters that

would support cross-examination of Dr Oettle and,

Lagopodis 40 1/10/92

indeed, an attack on his conclusions before the

jury, but you are arguing, as I understand it, the

admissibility of that evidence.

MR WENDLER:  In my respectful submission, all of Dr Oettle's

evidence was inadmissible.

TOOHEY J:  That may or may not be but it is not Dr Gilbert's

evidence, is it, that determines or helps to

determine the admissibility of Dr Oettle's

evidence?

MR WENDLER:	It does in this sense, that the trial judge, having heard Dr Gilbert on the voir dire, may have
been moved to rule as a matter of law that the evidence that Oettle was about to give would be so
unreliable that - - -

DAWSON J: Gilbert's evidence was not given on the voir

dire.

MR WENDLER:	No, it was not.
DAWSON J:	And you had a voir dire?
MR WENDLER:	Yes.

DAWSON J: Yes, I see.

MR WENDLER:  If Dr Gettle had been called on the voir dire,

I would have called Dr Gilbert on the voir dire.

DAWSON J:  Yes. And your point is that you are not disputing Dr Oettle's qualifications?

MR WENDLER:  No, of course not. You could not.

DAWSON J: But you are saying that there was not a

sufficient factual basis?

MR WENDLER:  That is right. He did not have the materials

to give the sort of speculative evidence - - -

DAWSON J:  Upon which he could express an expert opinion.

MR WENDLER:  Yes, that he was giving. He was giving a load

of transcript. He was sitting there in court with

transcript, saying, "Well, that's a possibilityi

that's another possibility." Well, I could do

that. Anyone could.

DAWSON J: His evidence was entirely theoretical, you say,

yes.

MR WENDLER: Entirely theoretical.

DAWSON J:  We follow that point.

Lagopodis 41 1/10/92

MR WENDLER:  Of course, the jury then had to rely on that as being the basis for the issue of causation.

The next issue concerns the application for a

separate trial. This was made before the learned

trial judge and before the trial commenced.

His Honour ruled that in the circumstances he would

not grant a separate trial, and this ruling was

held to be correct by the Court of Criminal Appeal.

The first issue, or principle of law is this:

it is as to whether or not, in all the

circumstances, the applicant had suffered, to use

Justice Brennan's expression, "impermissible
prejudice" by reason of being tried jointly with

the applicant, Kiely, and whether or not, in all the circumstances, he is being dispossessed of a

fair opportunity to an acquittal.

The first submission was that because the

circumstances of the compiling of the record of

interview in relation to Lagopodis was so disparate from that of Kiely, that was a very powerful factor

which should have moved His Honour the learned

trial judge to exercise his - - -

DAWSON J: May I persist here, Mr Wendler. It would be vary

rare in a case in which common purpose was being

put that you would succeed in obtaining a separate

trial, would it not?

MR WENDLER: Generally, Your Honour is correct. However, in

the circumstances of this case - - -

DAWSON J:	The circumstances justifying it being the confession on the part of Lagopodis.
MR WENDLER:	Yes, that is right, and the circumstances of the making of it, where there was, in the case of
Lagopodis, a direct head-on collision - - -
DAWSON J: That is the point, is it not, that it is the

confession that made all the difference in this

case, you say?

MR WENDLER:  Yes. That was the main point but there were

two other, as it were, matters which were relevant to the exercise of the discretion in favour of the

applicant, Lagopodis, and they concerned first the

evidence of Mr Kiely's former wife, the woman

Sue Kiely. She said - and the defence knew what

she was going to say because she had made

statements to the police, and part of the evidence

which was not admissible against the applicant,

Lagopodis, but would have been directly admissible

against the accused, Kiely, concerned some of the

Lagopodis 42 1/10/92

matters which appear on pages 128 and so on in the

evidence.

If I can just pitch this scene to

Your Honours:  Sue Kiely, the former wife of the

applicant, Kiely, were on very bad terms. It

appeared from the evidence at the trial that there

was a dispute over a child. There was no doubt

from watching her in court that she had a massive

hatred for Kiely - massive hatred. She gave

evidence that first, was admission to perjury in

relation to one aspect of the case but it was

obvious that she had massive resentment towards

Kiely.

At page 128, the first page, she was asked a

question:

I asked him if everything was all right -

this is a question by the learned Crown prosecutor.

Point 2:

Q. What was that conversation? A. I asked

him if everything was all right and he said

"Yes, we got rid of it".

It is referring to the deceased.

Q. Did he tell you where?

Q. From that day on did you ever see the man

Mark Soyka again? A. No.

And then later at point 4:

Q. What was that conversation? A. He

commented that the body had been found and

that he didn't really have anything to worry

about as long as Julie and myself kept our

mouths shut.

That is not evidence against my client, and yet my

client is carrying that prejudice in the

circumstances of a joint trial.	And then further,
the next page, 139 - - -

DAWSON J: Well, I am not sure about that. It is an

admission, I suppose, on his part.

MR WENDLER:  But my client was not present; had no way of

controlling that. The defence knew what this woman

was going to say - had detailed statements from

her - and this is another one of the reasons why
the defence for Lagopodis sought to distance - if
the Court pleases, on page 139, there was some

cross-examination by me in relation to her

Lagopodis 1/10/92

allegation that there was a whip or something in

the room and that it was used on the deceased.

What had happened was that some months prior there

had been a bail application. Both Lagopodis and

Kiely sought bail in relation to this charge. Part

of the case for the Crown in relation to the bail

application involved an affidavit raised by

Sue Kiely as to what occurred in that room. She

said she saw what occurred and she said in her

affidavit that she saw whips and a blow torch being
used and so on, and when she was cross-examined

about this, she admitted that none of that was

true.

At page 139 point 6:

Q.	Didn't you also suggest that Mr Soyka was
assaulted with a whip? A.	I don't know.

There was a whip in the room but I didn't see

it used.

Q. You didn't see it used? A. No.

Q. But didn't you suggest to Det Beresford

you saw a whip being used on Mr Soyka?

And then she said she could not remember that. And

then I put in her hands her own statement where she

says:

"They also used a whip or a riding crop" -

this was in a statement she made to the police.

Then on page 141 I made a suggestion to her at point 8 that there was a very poor relationship

between her and her husband. She agreed with that.

And then I introduced this topic concerning the

bail application and apparently this affidavit she

raised for the prosecutors which concerned a

description of whips and blow torches and so on
being used.	I took her through the affidavit at

page 143 point 6:

Q. But yet you say there in your affidavit,

"whips", is that right? A. Yes, it is right

here, yes.

She actually used the word plural, "whips" in her

affidavit.

Q.	And you go on to depose that you saw
riding crops, more than one.	How many riding
crops did you see being used? A.	I didn't
see any being used.
Q.	And then you say, "A blow torch"? Yes.

Lagopodis 44 1/10/92

Q. When did you see this blow torch? A. It

was in the room the whole time.

This woman was a liar. She was prepared to come to

court and to do anything that would damage her

former husband.

DAWSON J:  And that was what you were in the process of

demonstrating to the jury, yes.

MR WENDLER:  Indeed, but I did not want to do that with

being tried alongside, as it were, Mr Kiely. That

went further in the evidence of a woman by the name

of Julie Murray, and this was another reason I

sought - in particular, at page 162 - this is a

woman who had been given an indemnity against

prosecution in relation to other matters for giving

evidence in court in relation to this matter. At

page 162 at point 5 - apparently there was a

conversation between her and Kiely. The question:

Q.	"Why did you kill him" and he answered,
did he? A.	Yes, he said that he didn't mean

to actually kill him, it got out of hand and

he just died.

CROWN PROSECUTOR:  Q. Did he say anything

else that you can remember that was said? A.

He said, "What does it matter, just an arse

hole junkie like that anyway, who's going to

miss him".

My client was never present when any of that sort

of conversation was going on.

DAWSON J: But the trial judge gave directions that the two

cases were to be treated separately, did he not?

MR WENDLER: Well, he did give those directions.

DAWSON J: But you say, "Well, directions can go so far"?

MR WENDLER: That is right, in the circumstances in this

case.

DAWSON J: In the circumstances, not far enough here.

MR WENDLER:  In my respectful submission, by being tried

together in the circumstances of this case the

applicant, Lagopodis, has been unfairly

dispossessed of a real possibility of being

acquitted in relation to this charge. He sought to

distance himself at all times from Kiely.

The last ground of appeal concerns the issue of whether or not the verdict in all the

circumstances was unsafe and unsatisfactory. In my

Lagopodis 1/10/92

respectful submission, having regard to all of the

matters - - -

DAWSON J:  Was that a point that was taken before the Court

of Criminal Appeal?

MR WENDLER:	Yes.
DAWSON J:	And they dealt with it where?

MR WENDLER:  I will pick it up, if the Court pleases: near the end, page 189, point 7: right

Both appellants submit that the verdicts

were unsafe and unsatisfactory.

And so on.

There is no, as it were, treatment by the

Court of Criminal Appeal as to why, in particular,

that ground should not succeed. There is no

examination of the medical evidence, there is no

treatment of the evidence of the two witnesses,

Murray and Kiely, there is no treatment of the

disparate circumstances in relation to the

compilation of the record of interview.

DAWSON J: But the Court of Criminal Appeal obviously had in

mind the correct principles. They refer to

Chidiac's case which, of course, sets them out.

MR WENDLER:  Yes. I do not dispute that the principle is

identified in Chidiac. I do not dispute that for a

moment. Indeed, that is the principle upon which I
rely.

If the Court pleases, the totality of the matters I have just mentioned, in my respectful

submission, in particular the medical evidence and

the way in which it was introduced into the case,

together with the instruction concerning police

conspiracy, the fact that the applicant, Lagopodis,

suffered from what might be described as

impermissible prejudice, all matters which are

relevant, in my respectful submission, to a

consideration as to whether or not the verdict, in

the circumstances, was unsafe and unsatisfactory.

Your Honours, I am asking Your Honours to

grant this applicant special leave to appeal. In

my respectful submission, he has suffered a

miscarriage of justice and it is a demonstrable
miscarriage of justice. Unless there is anything

else, I think I have come to the end of it. They

are the matters that I rely on.

Lagopodis	46	1/10/92
DAWSON J:	Thank you, Mr Wendler.	Mr Blanch, the only point

we need trouble you about is what I might call the

instructions regarding how the jury should treat
the police evidence, on the one hand, and the
evidence of the accused in relation to the

interview.

MR BLANCH:	The confession.
DAWSON J:	The Towner point, if I can put it that way.

MR BLANCH: That point, of course, Your Honour, was

identified by the Court of Criminal Appeal and was

recognized as a deficiency, as it were, in the

summing up. As my learned friend, Mr Wendler, has

said, the case of Towner involved a summing up of

the same -

DAWSON J:  What the Chief Justice said was, at page 193: However, in the light of everything that his

Honour said in the summing up about onus of

proof, and in the light of what he said about

that subject in the context of the disputed

confession, I do not consider that the jury

would have been left under any misapprehension

as to the issue they were to decide, or the

proper approach to be taken in reaching that

decision.

Now, can you identify what it was that

His Honour said that saved the situation?

MR BLANCH:  Your Honour will recall that at page 91 of the

application book, the whole passage of the trial

judge's summing up began with a very clear

direction at line 9, that it is necessary for the

Crown to prove:

beyond reasonable doubt of the authenticity of

the document and ..... what is contained in it.

That was the very introduction of the whole

passage, that that was what he was doing. And

then, of course, there are the usual directions at

the - - -

DAWSON J: That is really in the accused's favour, is it

not?

MR BLANCH:	Yes, Your Honour, yes.
DAWSON J:	I do not think you have to go as far as that.

MR BLANCH: That is so, Your Honour. That is the beginning

of the passage of directions that are complained

Lagopodis 47 1/10/92

about by my friend. He goes on then, of course, to

identify particular parts from there on.

But that is the way the trial judge began his

dealing with the matter and, of course, it is all
in the context of a case where His Honour had begun

by giving the usual directions and separating them

up.

DAWSON J:	The correct direction was given in Towner too, but nevertheless the directions that are very
similar to the directions which follow on page 91
were held to vitiate the trial.  Now, why do they
not in this case?
MR BLANCH:	Your Honour, it is obviously a question of fact

and degree in each case as to whether what was said

was enough to divert the jury's attention from

their proper inquiry. The courts reach different

conclusions in the cases. From the point of view of this Court, it would be my submission that the

Court can feel comfortable that so far as the law
of New South Wales is administered through the

Court of Criminal Appeal, that the Court of case that it is not appropriate to be giving

directions that would have the effect, in a

particular case, of confusing that issue in the

minds of the jury or diverting the jury's mind in

any way.

DAWSON J:  Was the trial in this case after the decision or before the decision in Towner?

MR BLANCH: It was before the decision in Towner. It is the

same trial judge who was obviously giving a

standard direction that he had formulated in this

form and the warning about doing that had been

given in Towner and the trial overturned. In this

case, the court found that it was able, as a matter

of balancing the -

GAUDRON J: Well, there was no suggestion here that they had

to make a positive finding that the police had

perjured and conspired.

MR BLANCH:	No, that is correct.
GAUDRON J:	And it ends, again, at page 103, "You must

find":

where the truth lies in terms of the Crown's

obligation to establish positively beyond

reasonable doubt that it is an authentic

document.

MR BLANCH:  Yes.

Lagopodis 48 1/10/92

TOOHEY J:  The difficulty about that approach is that, if

you go back to page 91, the passage to which you

took us, Mr Blanch, while the judge says:

it becomes part of the Crown's burden to

satisfy you beyond reasonable doubt -

and so on, what follows might be thought to suggest

that that burden is at least partly met by the jury

asking themselves rhetorically, "Well, why would

the policy perjure themselves?", and it is in that
sense, I think, that earlier decisions such as

Duke, and a decision of the South Australian

Supreme Court, speak of that type of instruction as

diverting the jury from their real task.

MR BLANCH:  I certainly accept that, Your Honour, and the

Court of Criminal Appeal in New South Wales accepts

that. But that is really what I am saying to this

Court, that in so far as this Court is concerned about what the New South Wales Court of Criminal

Appeal is doing in this case, there is no point of

special leave arising out of the fact that there

needs to be some correction of some misapprehension

in the Court of Criminal Appeal in New South Wales

about this. Whether that occurs in an individual

case sufficient to cause the conviction to be

overturned is a matter for assessment and, in our

submission, the Court of Criminal Appeal has made

that assessment and has made it in the context of

these various statements - - -

DAWSON J: Well, can you say that the confession in this

case was any less central than it was in Towner's

case?

MR BLANCH:  It is very difficult with a confession,

Your Honour, because whenever a confession occurs

the confession becomes central.

DAWSON J:  ..... conceded in this case there was an amount of

other evidence.

MR BLANCH:	Yes, there was a body of other evidence.
DAWSON J:	And the way in which the case was conducted did not deny, at least, a degree of what was said in the confession. It was never suggested that the people were not present; that the man was not put
on the rack, it was the detail of the confession. nearly as central.
MR BLANCH:	Yes, it was not as central, yes, in that sense.

DAWSON J: So, really, the confession was not a matter of:

you believe the confession, you convict; you

Lagopodis 49 1/10/92

disbelieve the confession, you acquit. It was not

that sort of case?

MR BLANCH:	No, it was not that sort of case in that sense.
TOOHEY J:	Mr Blanch, once the Court of Criminal Appeal

moved to a consideration of miscarriage of justice,

are they simply looking at the operation of a

proviso or does it have some other connotation? I

mean to say, "Yes, there has been a misdirection'' - I am not saying the court went that far, but if you say, "Yes, there has been a misdirection but there

was no miscarriage of justice", are you doing

anything more than applying the proviso?

MR BLANCH: Well, they did not actually get to the proviso

in this case.

TOOHEY J:  No. Well, that is really what prompted me to ask

you the question, what are you doing or what is the

court doing when it is saying, "Well, there may

have been a misdirection", or to use the court's

words, "the trial judge is operating in a dangerous

area, but we're not satisfied that there was any

miscarriage of justice"?

MR BLANCH:	I tend to read the judgment of the court on that point, Your Honour, as rather as saying, "Well, it
was a dangerous area.  The judge has said some
unwise things but we can't say in this case, in all the circumstances, that there was a misdirection",
and they did not get on to the point of the
proviso.  I mean, if they had got to the
point - - -

DAWSON J: They were saying that it would not have misled

the jury because they had to turn to these other
matters and it was not a simple case of the word of

the police against the word of the accused, there

were other things. So, it would not have misled
them.	I suppose that is what - - -

MR BLANCH:  Yes, yes, they went through that weighing

exercise and could not reach that point. If they

had reached that point, no doubt they would then

have gone on to the proviso.

TOOHEY J: Yes, thank you.

DAWSON J:  Now, it is really your point, Mr Wendler, but do

you want to add anything, Mr Papayanni?

MR PAPAYANNI:  No, Your Honour. Just that that point may

come in - discretion about the fall. That point

may come in to what His Honour said in relation to,

"I'll take the fall".

Lagopodis 50 1/10/92

DAWSON J: Yes. Mr Wendler?

MR WENDLER:  If the Court pleases, there are two matters.

Your Honour Justice Dawson asked a moment ago my

friend a question, "If that instruction miscarried

in Towner, why on earth does it not miscarry in

this case?" I do not mind telling Your Honour that

is a question I asked myself about a million times.

Indeed, in the Towner situation there was

other evidence, other circumstantial evidence,

which would have been enough to find beyond

reasonable doubt the charge of murder. However, the court was moved in the circumstances of that case to quash the conviction because of the

graphicness of the language and the way the

instruction had a tendency to undermine the real

issue.

DAWSON J:  They did describe the confession as central,

however, whatever that may mean.

MR WENDLER: Well, it was central in the sense that it

provided the most graphic contest in the case: the

accused saying, "Look, things happened this way", the police saying it happened in another way, and

that is, in a criminal trial, often the most
graphic part of the trial, when there is a contest,

a head-on collision like that between the police

and the person charged. So, in that sense it went

to the core of the issues joined.

The other matter which I think it was

Your Honour Justice Dawson mentioned to my friend was this, that if you take the confession away

there would have been a significant body of

evidence in any case to -

DAWSON J: That was not quite what I had in mind. It was

the whole way in which the case was conducted did
not deny certain significant facts.	I think it was

put by the Court of Criminal Appeal in saying,

"Well, look, the case of the two accused went a

long way to establishing the Crown case."

MR WENDLER: In my respectful submission, if you, as it

were, take out the component of the interview, it
would have been unlikely that in law there would

have been - - -

DAWSON J:  The passage I have in mind is at page 190,

Mr Wendler:

In any event, the account given by the

appellants themselves as to what happened to

Soyka went a long way towards establishing the

case for the prosecution.

Lagopodis 51 1/10/92

MR WENDLER:  Yes. With the greatest respect, that is not

entirely an accurate assessment because if you take

out the component of the record of interview, you

take out that question or answer attributed to the

accused which locks him in to the type of

criminal -

DAWSON J: But both accused made statements?

MR WENDLER:  Yes, they did. However, the accused,

Lagopodis, called a witness, he called the

solicitor who saw him the day after who said,

first, the applicant complained that he had been

assaulted by the police and, second, it was obvious from the solicitor's observations of him in custody

that something had happened to that man.

Can I just invite Your Honours back to the record of interview to put this in context? The

most incriminating answer given by the applicant, Lagopodis, appears on page 2 of the interview and

it is the answer to the ninth question. In that

large answer at point 2 there is a description

concerning what can only be inferred as a ferocious

attack. That description was used by Dr Oettle as

a basis for the opinions that he gave in court as

to the cause of death. If you take that way, all

you have left - well, in law, there would be no

case to answer, in my respectful submission,

because all that would be left would be the

evidence, really, of Sue Kiely, the perjured
evidence of Sue Kiely, in relation to what she saw:

the person being slapped and things like that.	In
other words, the sufficiency of the medical
evidence would have been such that you could not,

in the circumstances, have attributed the applicant

Lagopodis's involvement as being indicative of cause of death. That is why this record of

interview was so central and the circumstances of

its making was so central to the case overall.	It
had also the tendency to collaterally affect the

case of Mr Kiely. If the Court pleases.

DAWSON J: Thank you, Mr Wendler. The Court will retire

shortly to consider the course which it will take.

AT 4.58 PM SHORT ADJOURNMENT

Lagopodis 52 1/10/92

UPON RESUMING AT 5.15 PM:

DAWSON J:  The circumstances of these applications reveal no

error of principle. Having regard to the matters

which were in issue in the trial and the admission

by each applicant in his unsworn statement of his

participation in such events as occurred

immediately before the death of Soyka, we are not

persuaded that the conclusion of the Court of

Criminal Appeal was wrong. Accordingly, special

leave is refused in each case.

AT 5.16 PM THE MATTER WAS ADJOURNED SINE DIE

Lagopodis 53 1/10/92