Leaman v The Queen

[1990] HCATrans 46

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H9 of 1988

B e t w e e n -

MAXWELL KEITH LEAMAN

Applicant

and

THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J TOOHEY J GAUDRON J

Leaman

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON TUESDAY, 13 MARCH 1990, AT 12.04 PM

Copyright in the High Court of Australia

HlT 5/1/LW 1 13/3/90

MR W.M._ HODGMAN, QC:  May it please Your Honours, I appear

in this matter with my learned friend,

MR R.A. BROWNE, for the applicant. (instructed by

James Crotty)

MR A.G. MELICK:  If it please the Court, I appear with my

learned junior, MRS~ ALLSTON. (instructed by

the Director of Public Prosecutions.

MASON CJ: Yes, Mr Hodgman?

MR HODGMAN:	May it please Your Honours, Maxwell Keith Leaman was sentenced to life imprisonment on 19 May 1987,
following his conviction for murder. The deceased
had died on or about 23 May 1969, some 18 years
beforehand. The Crown case, such as it was, against
the applicant comprised two parts: one, circumstantial
evidence which we will respectfully submit was weak
and incapable of sustaining a conviction for murder,
let alone proving that a murder had in fact been committed; and, two, the evidence of the convicted accomplice, Larain Gail Leaman, whom it was not
known until after the trial had begun was to give
evidence against her husband.

I might just pause there to indicate to the

Court what happened. It is in the judgment of

His Honour Mr Justice Neasey that what happened was this, and I will put it in as neutral terms

as I may to avoid disputation with my learned

friend, Mr Melick.

It was common ground that the deceased had been living with the accused as man and wife.

She had borne him some children. They lived together

for a number of years. In 1969 the accused struck

up a relationship with the woman who later became

his legal wife, Larain Gail Leaman. At the time

of the death - to use a neutral term - of the
accused de facto wife, all three were living under

the one roof: the accused, his de facto wife and

the then quite young Larain Gail Leaman, she being,

at that stage, I think, a girl of about 18 or 19

years of age.

The accused de facto wife disappeared -

extensive searches. Some 18 years later, for

reasons which she admitted, and to which I will be

referring, motivated by envy of what she perceived
to be her husband's relationship with another

woman, Diane Clifford, desire for revenge,

hatred of her husband to the extent that she went

to commit suicide and admitted lies. Mrs Leaman

went to the police and said:  "I was with my

husband on the night he murdered his de facto wife".

HlTS/2/LW	2	13/3/90
Leaman

She told the police, "We went in a car to Clifton

Bluff". When she, in fact, gave her evidence in

the second trial - I will come back to the first in

a moment - she gave an account which was quite a

brief account. I can give it to you almost verbatim.

She says that the car pulled up at Clifton Bluff;

all three were sitting in the front seat.

Max Leaman was driving, the de fact wife, the

deceased,was in the centre. She, Mrs Leaman, was in the passenger side. She said that Mr Max Leaman got out of the car and opened the rear door of the car

and from that position leant forward into the car,

picked up a piece of wood with which he then struck

the deceased, causing, on the Crown case, the death of

his de facto wife from, amongst other things, a

fractured skull.

Mrs Leaman did not assert that the piece of wood

ever hit her and one can only just conjure up how on

earth this could have happened but that was her

version. She then said that she and her now legal

husband buried the deceased de facto.

Now at the first trial- it is important that I

should inform Your Honours,and Mr Melick will correct

if I put anything wrong,	I did not appear at either
trial but the facts are not in dispute.	At the first

trial the accused, Maxwell Keith Leaman, gave evidence

on oath in which he strenuously denied, as he denied

to the police, that he had murdered his de facto wife.

Mrs Leaman made an unsworn statement at the first trial and in the course of that unsworn statement matters were raised and, I think, in addition at

some stage during his actual evidence, she called out

something in the court as the result of which, when

he was convicted of murder, she was convicted of being

an accessary after the fact and sentenced to three

years imprisonment. The Court of Criminal Appeal

later quashed his conviction on the ground that he

should have been granted a separate trial.	I do not
need to go into it in detail.

So as at the time of the second trial, the scene

is this: Leaman is to be retried for murder.

Mrs Leaman, the convicted accessary to murder, is

serving her three-year sentence. She has not appealed.

The Crown opens the second trial and the case against

the accused is simply this: it is a circumstantial

case. No admissions whatsoever; no direct

independent evidence implicating him.	The whole of
the case is circumstantial.	When my friend,

Mr Melick, opens the Crown case, he says to the Court,

"We say there was a murder", and he also said in

passing, "Only one of two people on the Crown case

could have committed the murder, either Mr Leaman or

Mrs Leaman",who on the facts was a much bigger woman

HlTS/3/LW	3	13/3/90
Leaman

than the deceased de facto, a very small woman on the

evidence. And Mr Melick said, "The Crown

case is, of course, that Mr Leaman killed his

de facto to get her out of the way so he could then

cohabit. Instead of three under the roof, he could

then cohabit with Larain Gail Leaman".

The trial goes on. Mr Melick informs the trial

judge, Mr Justice Cox, "We brought Mrs Leaman over

from the prison. I have spoken to her in the cells.

I do not know what she is going to say'.'. Under our

law, of course, and I guess in other parts of

Australia, a wife is a competent though not compellable

witness against her husband. She is brought up from

the cells. Mr Melick, I submit, quite clearly,
having not briefed her, asks a few questions and then
she proceeds to give the story which I have just

given to the Court, namely, that on the night in

question there was a fight, an argument at for a drive out to Glenorchy rivulet, or was it
86 Swanston Street. They left Pauline, the de facto.

Lehan Valley, and then returned. She had said, of

course, on a previous occasion, that when they

returned her husband, as he later became, went into

the house and to her surprise came out with the body

of the de facto wife.	He said she was swinging.
She had hanged herself.	But she then said, "Well,
we had better get the police".	He said, "No, it is

too later for that". This was the first version

she had given. They then went across and buried -

Mr Max Leaman and she buried the de facto wife.

But when she gave evidence before Mr Justice Cox

she said, "Oh no, the three of us went in the car.

We went to Clifton Bluff. Max got out of the car,

opened the back door, got a piece of wood, struck

Pauline from behind, striking her on the head".

The circumstantial case in this instance was

quite extraordinary, Your Honours, because of the
period of time from the death of the deceased until the

discovery of the body, a crucial part of the physical

anatomy had gone. The hyoid cartilage in the neck

which pathologists, such as Dr Royal Cummings, as I

will refer to his evidence, said, "That is the one

that_ you can look at to see if a person has died

as a result of hanging, whether judicial execution

or suicide". You see, in this case, because the

passage of time had gone, and as Dr Cummings said, he could not exclude on the pathological evidence,

that it was as consistent that the deceased had been
murdered by being struck with a piece of wood as it

was that she had killed herself by hanging. So the

pathological evidence, we respectfully submit,

was quite equivocal.

ClTS/4/LW	4	13/3/90
Leaman

MASON CJ:  Now, can you identify the page in the appeal books where that evidence is to be found?

MR HODGMAN: Yes, indeed, Your Honour. In relation to

Dr Cummings's evidence, I will get you the specific

reference.	I have the passage marked but if my
junior can assist me.	I was going to come to that

in just a moment, if I may because I was going to -

MASON CJ: Yes, certainly.

MR HODGMAN:- - -seek leave to read an affidavit.

MASON CJ: Yes.

MR HODGMAN:  If I can just interrupt myself because this is

crucial that I should reveal this to the Court and

I now seek leave to read an aff davit sworn by

myself this morning and filed in this honourable

Court. I have delivered - - -

MR MELICK:  Your Honours, I perhaps should indicate at this

stage I would object to that affidavit being read

to the Court.

MASON CJ:Yes .. We will need to read the affidavit in order to

rule upon it.

MR HODGMAN:  I will remain silent, Your Honours, while that

is being read.

MASON CJ: Yes, Mr Melick, what is your objection?

MR MELICK:  I do not understand on what basis the aff .davit

could possiblybe relevant to the proceedings, Your F.onour.

I do not mow 'Whether my learned friend __ is ~lleging

incompetence on the part of Mr Leaman's then counsel

on the basis of SWAN's case, or is alleging it

is fresh evidence that is capable of this Court

having to payattention to in accordance with the principle perhaps in RATIEN' s case· or ASHTON Is case.	It just seems meaningless. It does not seem to
appertain to any ground of the appeal unless it is perhaps unsafe and unsatisfactory.

MASON CJ:  What were you seeking to use the affidavit for?

MR HODGMAN: That is precisely the point - the unsafe and

unsatisfactory. Your Honours, I have indicated

in that affidavit which was, in fact,prepared

last night after the document was bound, that,

I respectfully submit, it is a very, very new

and significant ingredient to the question of

unsafe and unsatisfactory. You see, what was

HlTS/5/LW	13/3/90
Leaman

put at the trial was that she had written, or,

in fact, had started off as said - and as you will

see from the transcript passages from page 296,

volume 2, Mr Slicer cross-examined her about a

number of accounts. Perhaps I should turn to it

because this is crucial and this is why this document,

I submit, is proper to be before Your Honours.

If Your Honours look at volume 2, and the

passage to which I will refer cormnences on page 296.

You will see that Mr Slicer starts by putting it on

the basis of,· "You· have said something previously."

And as it goes on you then find out, of course, that

she has written something previously. Perhaps if

I can take it up from line 12. I think, perhaps,

I should take it from line 9, on page 296.	So this
is where Mrs Leaman is giving her evidence.
Mr Slicer says this:

Now, you have said in this Court that Max

murdered his wife, have you not? ...... I have.
Have you ever told a different story? ...... Yes.

Have you ever told a story -

note the words "told a story" -

along these lines, that on the night that Pauline

went missing in May, 1969 there was an argument at 86 Swanston Street, you left and walked down Swanston Street, Max came and picked you up

saying he'd take you out and you went to

Stepka's place, a friend you had worked with once?

Have you said that story to anyone?

She said:

I haven't said it to anyone but I've wrote it.

Have you written it? ...... I have written it, yes.

Then it goes into quotes:

"She was out so Max and I went and parked near
a rivulet or creek out Glenorchy way." Have

you written that? ..... Yes.

"Or Lenah Valley. We were there quite a while and

on returning to Swanston Street Max entered the

front door." Have you said - written that

story? ...... I have written that.	I complied to
somebody's wishes by doing it.

HlTS/ 6/LW	6	13/3/90
Leaman

"I was closing the car up when he told me to

stay where I was. It was only a matter of

minutes, I suppose, and he asked me to open the

side gate." Have you said that? ...... Yes,

I wrote that, Mr Slicer.

In writing? ...... Yes, Mr Slicer.

"I was astounded with what I saw, he had his

de facto wife and she appeared to be dead."

Correct, you've said that? ...... I wrote it, yes.

"She had that pink mohair coat on.	He said she
was swinging, had hung herself.	I wanted to get

the police but he said it was too late and to

open the car door or back up". You have

written that? ...... I have, Mr Slicer.

And signed it? ...... Yes, sir.

In May, 1986? ...... Yes, sir.

Thank you. "He put her in the back of the car

and went back inside through the front door,

came out, went to the garage and yelled for the

keys." Have you written that? ...... Yes,

Mr Slicer.

And that you then travelled to Clifton Beach
where Max dug a grave and put her in it.

You have written that? ..... Yes.

And is that something you wrote on the

Second of May -

Now he is g_iving the date, 2 May 1986 -

1986?~ ..... I don't know what the date was but

I was but I wrote it yes.

And is that the only time you have written that

account. Have you written it on more than one

occasion to other people or another person?

Have you written a similar account in another

letter or another piece of paper? ...... Yes, I did.

How many times ? ...... I wrote it once to Max,

because it is what he wanted me to write.

Just the once or more than once? ...... Just the once

as far as I can remember.

Eleventh of February, 1986? Did you write that version or that account and send that account

to Max?

HlTS/7/LW	7	13/3/90
Mr Leaman

She said:

I don't remember.

Now I pause there. His Honour Mr Justice Neasey

in his judgment at page 918, which you will find

in volume 4, Your Honours .

TOOHEY J:  Mr Hodgman, just before you take us to 918 is

that letter referred to at any other stage of the

cross-examination or any other stage of the evidence

of this witness, or at any other stage of the trial?

MR HODGMAN:  No.

It was never identified as to whom it had been written and you will see how His Honour

Mr Justice Neasey thought that it was a reference to letters written to her husband,as she said,

under her husband's request. It was never revealed to whom it was sent. My learned friend, Mr Melick_.

and Mr Slicer, had had some discussions on a voir dire

earlier in the trial about the cross-examination

which might follow in relation to documents and

Mr Melick had made it quite clear that the Crown would

exercise its right, which it has in this State,

of forcing the defence to lose. their right of last

address which is lost in Tasmania if you adduce

any evidence. In other words, Mr Slicer was warned.

The law in our State is this, Your Honours:

If an accused person only adduces evidence, his or

her counsel has the right of last address the order
being,at the end of the defence case, the Crown must

address, then the defence addresses, and then the

judge sums up. But if any evidence is adduced,

even one document, then the order is reversed so the

penalty for even tendering a document in Tasmania is that

you lose your right of last address; something which

this Court, I think, in APOSTILIDES's case - it will

come to me in a moment - something which is of some

significance because it means that tactically the	Crown has the last address. Just one document is	sufficient. If you unintentionally identify an
exhibit or you ask somebod:y about the contents of an
exhibit and reveal to the court what it is rhP. Crown
will force you put it in; in Tasmania you lose
your right of last address. So it is a pretty
important matter and explains, perhaps, why Mr Slicer
cross-examined as he did.

Why this affidavit is important is that this

document, which, as I freely admit, I saw for the

first time in my life last night, is a very

significant document because it is not a document to

a husband trying to help him~ It is not a document

which she could say she has written to her husband at

his insistence. It is a document written to a

HlTS/8/LW	8	13/3/90
Leaman

solicitor and in circumstances in which she explains

crucially what we contend is the most cogent evidence

that there was never even a murder in this case,

let alone that Max Leaman committed it.

MASON CJ: Mr Hodgman, how can we receive the letter? It is

fresh evidence and we have held that we have no

jurisdiction to receive fresh evidence.

'MR. HODGMAN:  Your Honour, I am conscious of that and it was the

dilemma that was crossing my mind last evening.

McHUGH J: But the doCl..lIIEnt was not admissible anyway. It would

only be admissible for the purpose of contradicting
any denial of its contents by Mrs Leaman.

'MR. HODGMAN: That is correct, Your Honour, technically correct.

But in this State, the Court of Criminal

Appeal has laid down that the Crown is a minister of

justice in trials and does have a duty to be fair and

that sometimes the Crown should not, too rigorously,

apply the rules· of evidence or take technical points

which might have the effect of denying to the jury

all the material upon which it could make a proper

verdict. I put it as incredible and fantastic that

this trial went its whole length without that written

an officer of the supreme court, not only saying

document, which I cannot refer to in open court,

why she said things, but what would happen to her if

she changed her story. But for the trial to have

gone in that manner, without that document being

tendered, as I say either by the Crown or by the

defence, I submit, is almost outrageous.	And I
respectfully submit that while Your Honour is	technically correct in saying . ·11It v,;ould only have
become admissible under our EVIDENCE ACT if she
denied the passages that were put to he~' -
I would accept that - the Crown must have
known of the existence of that document
and my respectful submission is th~t
this Court has said the duty on the
Crown. is to put before· the Court
all srich mate~ial as will enable
the jury to· reach a true verdict. And my
respectful submission is that rather than waving a stick at Mr Slicer and saying, "You identify that
document.' We will force you to put it in. You will
lose your right of last address'.' , this document,
which is a total answer to the charge of murder and a total answer to the fact - - -

DAWSON J: That is putting it a bit high, is it not, Mr Hodgman?

This witness told various stories at various times

and she could just as well have written this under the

influence of her husband as any other document that told

a story. Why does the recipient make any difference?

HlTS/9/LW	9	13/3/90
Leaman

:MR HODGMAN:  Because it is a document that goes to a third

party. My respectful submission is that the letter

to her husband in the prison is one thing. That trial

went through without it everbeing known that she had

written a letter in which she had admitted that the

story that there was ever a murder was a complete

fantasy and a fabrication; that she had tried to

extract herself from the position that her own

lawyer had said, "You change your story on this and

you will be in big trouble for making a false

statement to the police"; that she then puts down

exactly what the truth is; namely, that the de facto had

hanged herself.

DAWSON J: And admits that she has written that.

:MR HODGMAN:	But the difference between that and Your Honour's long experience, I respectfully submit, as
Solicitor-General in the State of Victoria, there
is an enormous difference between telling a jury
what somebody has written or said, to taking it into
the jury room and every member of the jury h~ving a
copy of that, and that was kept from them the world
of difference. In my respectful submission it comes
down very similar to the arguments you had years
ago in relation to the difference between alleged verbal admissions without any supporting evidence or alleged verbal admissions where notes or a record
of interview attended. I appeal to you to take this aff davit de bene esse at this stage because I believe
I can argue and persuade you that this does go to the
unjust, unsatisfactory nature.  I am not asking for
an adjournment.  I am not asking for some direction
that it go to the Court of Criminal Appeal on a
petition fi'r the prerogative of mercy. I am asking
you, in the context of my application, for leave on
behalf of Ml:'. Leaman to take it into account. It is just one of a number of factors on which we rely.

MASON CJ:	But what do you mean by de bene esse?
:MR HODGMAN:	To receive it at this stage.	We have it in our

courts here, Your Honour, where the document is

simply marked for identification and that its later

admissibility is then ruled upon.

MASON CJ:	You mean we ought to take it provisionally?
MR HODGMAN:	That is basically what it is in de bene esse in

this stage, Your Honour, yes.

MASON CJ: That is what you are asking us to do?

:MR HODGMAN: Yes, Your Honour, rather than holding up the

argument now. I am surprised	the Crown is objecting
to you finding out about it.	I do not know why they are,
the fountain of justice.

HlTS/10/LW	10	13/3/90
Leaman

MASON CJ:  Mr Hodgman, it may be sufficient for your purposes

that we have actually read the document at this

stage.

MR HODGMAN:	Yes, thank you, Your Honours.
MASON CJ:	We do not need to rule on whether or not we are

going to receive it but I think sufficient has been

put to you already to indicate that the prospects

of the Court actually ruling that the document

is receivable by this Court at this stage of the

proceedings is difficult and formidable.

MR HODGMAN:  I know, Your Honour. It is just like the

situation we have confronted - if I might just

say in passing -	get it out of the way now
with the Court of Criminal Appeal.	We tried to raise

at the appeal and the Court of Criminal Appeal would not

Mr Justice Neasey rejected it outright. The very

significant fact that after being brought to the

e,ourt unproofed and unbriefed, brought in and put in

the cells down below, Mr Melick brings her up.·
She then gives evidence that her husband is a murderer.

Mr Leaman is then convicted two days later and two days later she was parolled. Now, we wanted to raise

that matter before the Court of Criminal Appeal

but they would not entertain it. I guess this is in

a similar situation but I am content, with respect,

with what Your Honour has said.

Coming now to the merits of the matter and why

this case is such an extraordinarily interesting one,

what we are going to put to you is this: that the

Crown case, as it went to trial, was in two parts. There was a very weak circumstantial case on which you would not have convicted anybody of anything

and which, we submit -

McHUGH J:	Why do you say that?
MR HODGMAN: Perhaps I will give you the references.

McHUGH J: The evidence was, first of all, that he buried her;

secondly, he had a motive; thirdly, he gave a story

which was suicide and which was open to the jury which
fotmd it was false because there was evidence she had

a non-suicidal disposition; that she had made

arrangements inconsistent with suicide; that

he had fortuitously hired a motor car that day

or the day before; that his account of the man hole

from where she was supposed to have hung herself was

untrue - it did not exist in the placewhere he said it

was - and there was the pathologist's evidence which

pointed, as a probability, that she probably was hung

and then there was the fracture of her arm. Why

could not a jury have been convinced beyond reasonable

doubt on that evidence if there was not another piece

of evidence of the case?

Hl TS /11/LW

Leaman	13/3/90
MR HODGMAN:	I would like to take them one by one and could

I promise you -

McHUGH J:	But you cannot because - - -
MR HODGMAN:	Yes, I can.

McHUGH J: Circumstantial evidence works in a geometrical

progression. One piece of string may not be very

strong but you put them altogether and they become

a very tight rope.

MR HODGMAN:	Yes. Would Your Honour permit me, and I ask this with great respect, if I could come to each - I am,
in fact, going to deal with every single one of those
points. Your Honour the Chief Justice asked about
the suicide matter.  I will come to that inrrnediately, at
page 474 - in fact, it is probably helpful if we
start from page 473, and this is Mr Slicer
cross-examining Dr Royal Cummings who was the only
pathologist called in the case.  He was called by the
Crown and he was the State Government pathologist. This is what is said on page 4 73 at line 14:

Right, and the other proposition that I wanted

to put to you on that fall is, if you assume

the person was hanged, that is suspended about

three foot from the ground and they are five

foot, as you found her height or the height

of this body to be -

the deceased therefore being a very small person -

if a person was up trying to free the body and

was holding her round the waist and upended

by the fall of the body from that height. the body, you could find that sort of injury of being removed or cut down?

Dr Cummings says: 

In 'What  circumstances?

Being removed from a hanging position where the

head is about eight feett from the ground?

Answer:

I suppose that would fit within, would fit

within the criteria that I have described for

this type of fracture, yes.

Now that is dealing with the fracture.

HlTS/12/LW	12	13/3/90
Leaman

McHUGH J: Yes, but was not your client's account that she fell

on him, not that she fell on -the floor?

MR HODGMAN:  No, Your Honour. I would challenge that, with

respect. I think there was a comment that she fell

on, in the sense of passed, him as it went down.

I will get the exact reference for you. But the

point of Cummings' s evidence, you see, is crucial
because the Crown to prove the murder relied

primarily on the evidence of fracture to the skull

and other fractures to the arm.

(Continued on page 14)

HlTS/13/LW	13	13/3/90
Leaman

MR HODGMAN (continuing):  Right, that was basically their

case. We know that the hyoid cartilage was

missing and if that had been there, Dr Cummings says,

"I could have said one way or another that, in fact,

she had hanged". What we now know is that

Dr Cummings agrees with the hypothesis that if she was cut down in the manner put by Mr Slicer and had

then fallen, that could have produced precisely the

same fracture to the skull as the fracture which the

Crown said was caused by striking.

Where the fracture to the arm becomes relevant

is that in the written statement of Mrs Leaman to the

solicitor which is attached to my affidavit, she says,

"In the grave. Pauline was in a sitting position and

~	as he filled up the grave, her arm was out and he
struck her arm with the spade".

McHUGH J:  But, he said that himself, did he not? But, he

said it was the right arm.

MR HODGMAN:  Here it is corroborated by the convicted

accomplice.

McHUGH J:	But, he said it was the opposite arm that was - - -
MR HODGMAN:	Well, I am sorry, you may have me at a disadvantage

there and I apologize for my imperfections in this

matter. I did not appear in the trial and I apologize

that another matter unrelated to this Court has been

somewhat engaging my attention in recent weeks and

added to which the sad death of Sir Reginald on the

weekend - I am sorry, I would ask if my learned junior

could just follow that through. I am sorry I am taking

a long time to come to the point but what I am about

to put to you is this. The Crown case was (a)

circumstantial: half-way through the trial we have got an accomplice. The accomplice, we submit, is a matter

of law and I appreciate that this Honourable Court

is going to deal, or is about to deal, in a Full Bench

with the position of accomplices but beyond doubt,

at this stage, when this man went to trial the law in

this country was that the accomplice must be

corroborated before a jury could safely convict

because of the experience of the law, of the reasons

why accomplices for many motives might make an untrue

allegation.

Now, what we have here, and I can only put it in

this way, is the case of the Crown hauling itself

up by its own bootstraps because what, effectively, we

finish at the end of the day is Mr Justice Neasey saying,

"The accomplice is corroborated if, on the circumstantial

evidence, you reach the view that Leaman must have been

lying because of the inherent improbability of
his story". Circular reasoning which has bedevilled

the courts and I respectfully submit here th~t neither

HlT6/l/JH	14	13/3/90
Leaman

the circumstantial case on its own would have been

sufficient to convict him nor was the uncorroborated,

as we contend it was, evidence of the accomplice

because we rely strongly on what was said in the

Court of Appeal in LUCAS' case as to the criteria

which, we say, had been properly applied in this country but not by this Court, the High Court of

Australia, namely, that whilst it is one thing for

a learned trial judge to say, "You may prefer the

evidence of (a) to (b)", you have to be pretty certain

before you say categorically that (b) is a liar

and you have to be further certain that that lie is a conscious lie to cover up guilt and nothing else.

And, as the Court of Appeal said, in LUCAS' case

to which we will be referring, the fourth criteria is,

you have got to prove that lie either by an admission,

the person admits that he has told the lie, or by

independent testimony and where this case becomes

crucial is that this Court, the High Court of Australia,

has not, in our respectful submission, dealt with the

question of lies as corroboration of accomplices to

clarify what has happened here because, effectively,

the argument will be, was the Court of Appeal

correct in LUCAS' case since applied when it said,

"You will only use a lie on the fourth criteria when

it is established by an admission" - in other words

he has admitted he has lied and that is not so, he

denied it here - "Or independent te.stimony".

This effects a matter of enormous public

importance. It is what Mr Justice Neasey, on behalf

of the Court of Criminal Appeal has said, "I don't

think the Court of Appeal in LUCAS meant to be

exhaustive. I follow what Professor Reydon has said,

namely, that you can prove a lie on the basis of

inherent probability. Now, what we are saying in this

application is, the way the Crown sought to prove the
lie here was to say to the jury, "Accept the

circumstantial case" which begs the whole question

and you get into that situation in one of the old

affiliation cases where the learned judge said, and

I will refer to this later if I may, "How

extraordinary it is that if you prefer the evidence

of the girl complainant that you can use your

preference of her evidence as being truthful to make

a finding that the defendant male has lied - - -"

DAWSON J:	No, no that is not the circumstantial evidence.
MR HODGMAN:	No, but it is the use of the lie to corroborate

her, the complainant.

DAWSON J:  No, the circumstantial evidence,apart from her

story, may be sufficient to indicate a lie.

MR HODGMAN:  That is what Mr Justice Neasey says that the

Crown could do in this case because of the inherent

improbability and I have to go through every one of

HlT6/2/JH	15	13/3/90
Leaman

the matters that His Honour Mr Justice McHugh

mentioned and some which His Honour Mr Justice Neasey
mentioned to put to you that not only did they not

establish that Mr Leaman was a murderer, in many

instances they do not even establish that a murder

has been committed.

I suggest if there is one injustice one can

think of as being the worst of all, it would be to

be hanged for a murder which you had not committed
but I suggest that even worse than that - because
we do not have capital punishment, thank heaven,

in this State - is for a man to be serving a life

sentence for a murder which he not only did not

commit but was not committed in the first place

because, the Crown case did not prove beyond reasonable doubt that she was murdered. And, Dr Cummings, on every point in the most, I submit,

brilliant cross-examination by Mr Slicer, on the

fracturing of the skull, Dr Cummings admits that that

could have been caused by the body being cut down

after she has hanged herself. In relation to the

hyoid artery, it is not there so he cannot negate

hanging. In the case of the arm, I will check that

point, Your Honou½ but I thought he was quite clear

in accepting Mr Slicer's proposition that after
death, that is when the body was there, the deceased

was dead in the grave, that the use of the spade to

push down the arm - - -

McHUGH J:  I may be mistaken. I thought it was the left arm

that was fractured and he said that it was the

right arm that was sticking up.	I may be wrong
about it, though.

MR HODGMAN:  I do rely on my friend, Mr Melick, if that is not

correct then I accept that point. But, how much

further does that take it down the track, with

respect, if there is a mistake as to which arm it

was that was protruding out of the grave. I mean,

the body is dead before it is put in the grave because

it was dead at 86 Swanson Street. If he said, "I	think it was the right arm", and it turned out it
was the left, it does not prove there was a murder, I respectfully submit.

McHUGH J:  No, but it only answers your point about the use

of the letter and that the arm was fractured by what

happened at the grave site. That is all, Mr Hodgman.

MR HODGMAN:  Yes, so that what we would then have, Your Honour,

is that not only does he kill her - I will put it to

you as I put it to the Court of Criminal Appeal,

that the method in which Mrs Leaman says the murder
was committed was inherently improbable itself,

and I repeat, they were not under any misunderstanding

if I can put it clearly as I hope I am, Mrs Leaman

HlT6/3/JH	16	13/3/90
Leaman

said this, she is sitting in the passenger seat of

this Ford vehicle - it was a hire car, a Ford Falcon -

the deceased is in the centre, the accused gets out
the front door, goes to the back door, opens it and,

on her evidence, gets in, at least part of his body

gets in, picks up - one can only imagine unless it

was a backhand stroke - with his left hand a piece

of wood and is able to so manipulate that that he

strikes the deceased on the back of the head causing

her skull to fracture, that misses Mrs Leaman in

the passenger seat. I put it to you that is

inherently improbable, that story. What a way to

commit a murder. You have got two people in the

front seat, you come around to the back seat, pick

up a piece of wood and you are able to so strike the one in the centre that you miss the one on the left,

it is an inherent - but that is how she says the

murder was committed because even in her evidence

Mrs Leaman did not claim that there was further

bashing or hitting once her body was in the grave

and Mrs Leaman said that she helpa:lcarry the body to the

grave, dragged it to the grave.

Now, if I say one thing wrong, Mr Melick will correct me and I am putting it to the best of my

recollection with the distractions I have had, that

that is how says the murder was committed. Now, I

just put to Your Honours as a matter of, I submit,

a proper submission for me to put - how on earth it

could have been committed that way. The man inside

the back seat of the car wielding a piece of wood

never found - weapon never found - wields a piece

of wood and is able to hit the lady in the centre

and miss the lady in the passenger side. That is

inherently improbable in its own. Now, they come

back - I am sorry, Your Honours, if you would forgive

me, I am not sure what Your Honours Court times

for the luncheon adjournment are.

MASON CJ:	We will adjourn until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2. 18 PM:·

MASON CJ:  Yes, Mr Hodgman?

MR HODGMAN:  Thank you very much, Your Honour. Before the·

luncheon adjournment, Your Honour Mr Justice McHugh,

directed a number of questions to me about some

matters in relation to the circumstantial case and

HlT6/4/JH	17	13/3/90
Leaman

if I may briefly respond and I hope I cover all

the matters to which Your Honour referred. I have

dealt with the question of the fracture of the

skull and my respectful submission is that, clearly

on the evidence of Dr Cummings, that was

equivocal. It could have been as the result of

murder or it could have been as the result of being

cut down from the hanging position as put to him

by Mr Slicer. The absence of the hyoid bone, of,

course, prevented Dr Cummings from making any

assessment as to whether there had been death by

hanging.

You raised the question of motive and I would

respectfully submit that there was no evidence of

motive before the court at that trial. Unlike PLOMP,

where there was clear evidence of motive because

in PLOMP's case, you will recall, Plomp had talked

about his then living wife as if she were dead and,

furthermore, had made a commitment to the fiancee

that he would marry her. In this case, the evidence

was that the three of them were cohabiting under the

one roof. There was no evidence, no evidence at all,

that he wanted the de facto out of the way because

the evidence, you will recall, was that he had left

the de facto, gone to Launceston with Gail Leaman,

as she later became, lived with her and then returned.

Your Honour mentioned the medical evidence that she

was not a person prone to suicide. With respect, that
was the evidence of a general practitioner and no

more. It was not called as expert evidence by a

psychiatrist or anything like that. It was simply

evidence of a general practitioner that he had not
noticed anything about her to indicate she was likely

to suicide and, as Your Honour recalled correctly,

there was some evidence of things she was planning

to do. I can only put it as a hypothesis, and no

more than this, that it can be found in the text books

that for some reason people planning to suicide

decide to do it months in advance and then, it is

said in the text books, will go through a period of

total calm until the time comes when they are

determined to end their life.

Now, I am simply saying, with the greatest of

respect to Dr Watson who, you may well infer from the

transcript, was not unknown in Hobart as a general

practitioner, no more, before he went up to

Queensland to practice. All that he said was, that
he observed nothing about her to indicate she was

contemplating suicide but in respect to that I submit,

and I can put it no higher than as an hypothesis,

she may well have fallen into that category of

persons who make up their mind months before that they

will suicide, then go through a period of calm before

they actually do it.

HlT6/5/JH	18	13/3/90
Leaman

I think, Your Honour, they were the main points.

If I have missed one, I am certainly not dodging

you. It is just that I - - -

McHUGH J:  No, well there was the question of a manhole,

I think I mentioned.

MR HODGMAN:  Yes, now, Your Honour, in respect to that,

there was an argument about not the existence of a

manhole but where it was and detailed evidence
which you have, no doubt, read in the volumes as to

what he could have seen from a particular angle.

My respectful submission is that that particular

matter did not negative the thrust of what he was

saying - they had not been in that residence for

long. The statement he makes about the position of

the manhole was subject to very lengthy cross-examination by

Mr Slicer. It was not that there was not a manhole, I

respectfully submit, it was the exact position and

what you could have seen. But, at the very worst,

all it meant was that he may not have seen what he

said he saw from the position in which he said he

saw it, not that he did not see it at all, and	it
is a pretty slender peg on which the Crown hung its
case, in my respectful submission, it got blown,

I respectfully submit, out of all proportion. And so,

I put to Your Honours, with respect, that on every

point that is raised by the Crown there is at least

the possibility of an answer consistent with

innocence and in those circumstances applying

PLOMP, the dictum of His Honour the late

Mr Justice Menzies, applying what this Court has

said in CHAMBERLAIN, you have to be satisfied that the
circumstantial case is such that the only conclusion

to be drawn from it is that of guilt and that it

must, therefore, be established beyond reasonable

doubt and -

McHUGH J:  But, that is a jury question and unless there is

an equality of consistency between the competing

hypothesis of one for and one against, then the

case must go to the jury for the jury to determine.

MR HODGMAN:  I am very conscious of what this honourable Court

has said about not retrying or reassessing, from

its point of view, what the jury must or must not

have found and in a few moments, if I am permitted,

that matter will be further argued. My respectful

submission to the Court is that, taking PLOMP,

taking CHAMBERLAIN, one still is left with an

overwhelming view that this Court has indicated

on circumstantial matters you must be satisfied beyond

reasonable doubt that no explanation consistent

with innocence is fairly open. And, I put that as

a rough summation of what you have said in far more

eloquent terms than I can. But, to take a man's

HlT6/6/JH	19	13/3/90
Leaman

freedom for his term of his natural life away from him on this case, we submit, on the circumstantial

case alone was not fairly open, was not available.

The Court of Criminal Appeal has dealt with, and

I will be dealing briefly in a moment with the

question of the basis upon which our Court of

Criminal Appeal should quash convictions on the

grounds that they are unsafe and unsatisfactory.

Your Honours, I have prepared a long list of

references from His Honour Mr Justice Cox's
summing up and in relation to the question of

corroboration which I will just barely open at this
stage, His Honour referred to the pathological

evidence of Dr Cummings, the fact that the accused

had lied to the police in 1969 about the

disappearance of the deceased and,finally,

the applicant's version of the events of 1986-1987,

namely, that the deceased had committed suicide.

We respectfully submit that the circumstantial case,

in the absence of the evidence of Larain Gail Leaman,
of which there were cogent reasons to

disbelieve her and these are, in fact, referred to

in the summing up by His Honour Mr Justice Cox in

dealing with the, I respectfully submit, outstanding

cross-examination of Mr Slicer and you will find it

on page 838 of the appeal books and, perhaps, if I

can just pause to refer to them now because

His Honour quoted verbatim from the transcript.

On page 838 of the appeal books, you will find that

in volume IV, His Honour says at line 12:

At page 340, the four principal reasons, as by Mr Slicer and he put it to her on this

basis:-

"Do I understand your evidence now to

be this - I went to the police (1)

because Di -

that is the woman, Diane Clifford -	had called me a liar.	Was that one of
the reasons? ..... Yes.

(2) Because I believed my husband was

having an affair with Di and I wanted

to hurt her? ..... Yes.

(3) Because I thought that Max was

going to leave me? ..... Yes.

And (4) because I was scared of him? ..... Yes.

All four? ..... Most of all I was

terrified of him."

She advances, under cross-examination, four reasons

for going to the police and saying that her husband

had murdered his previous de facto wife. Yet, in

HlT6/7/JH	20	13/3/90
Leaman

the document attached to the affidavit which I

have sworn, there is the clearest statement:

This is hard for me to write, Max has

done me a great wrong, but what I have done

to him is far worse. I guess I convinced

myself of the murder which never was.

I tried to change my facts and make it

right, but I was kicked in the face with

what could happen to one for false

allegations, by none other than my own

solicitor -

and I read it no further. That is a letter to a

third party in respect to the very matters that

Mr Slicer cross-examined her at some length to which

I referred earlier this morning. That document,

taken into the jury room, I submit, would have had

a crucial impact on this trial. I do not criticize

except to say that neither the defence nor the

Crown saw fit to tender that document.	The jury
never, ever saw it.

In relation to the circumstantial case, I have

referred briefly to PLOMP and also to CHAMBERLAIN,

particularly the joint judgment of Your Honours

the former Chief Justice Mr Justice Mason,

Your Honour the present Chief Justice,

Justices Murphy and Brennan, that where a jury is

required to establish an inference, it must be

established beyond reasonable doubt. We submit,

in the present case, the jury could have clearly

held a reasonable doubt as to the commission of

a murder by the applicant and,I go further,

as to the commission of the murder at all. The

accomplice admitted having told lies, her evidence

was full of inconsistencies and the circumstantial

case was, in the absence of Gail Leaman's evidence,

consistent with suicide.

We criticize before the Court of Criminal

Appeal, the summing up of His Honour Mr Justice Cox,

and indeed, we respectfully submit without going

through it chapter and verse, that on pages 832 and

834, you will find two examples of corroboration

in quotes given to the jury which were clearly

erroneous and could not fall within BASKERVILLE

or any of the authorities. Why? For the very

simple reason that the examples he gave did not

implicate Mr Leaman in the murder and on that matter

alone, and I deal with it briefly now, this trial

miscarried because on page 832, at line 18,

His Honour Mr Justice Cox in his summing up said this:

Now let me give you a purely hypothetical

example -

this is of corroboration:

HlT6/8/JH	21	13/3/90
Leaman

I emphasize this is a purely hypothetical

example, merely to illustrate the point.

If there was evidence that the accused had

told somebody 'in his cups': "My wife

Pauline didn't suicide. She was killed at

Clifton." - that evidence would be capable

in law of corroborating Gail Leaman.

I pause there to say, with respect, it would not

because whilst it could corroborate her assertion

of a murder, it did not corroborate that

Max Leaman was the murderer. Her statement that a

person is killed at Clifton, as His Honour went on

to say, is equivocal but this is what he told

the jury:

That is to say if it was said to somebody

else. If it was said to her it wouldn't

corroborate her, because it wouldn't be

independent of her. But supposing it was

said to somebody else - "My wife didn't

suicide. She was killed· at Clifton Bluff." -

that would be capable in law, I, as a

judge, would have to say that that was

capable in law of corroborating Mrs Leaman's

story.

Respectfully, we submit, wrong again	because it did
not implicate Leaman as the killer.	And, not to
leave it at that, His Honour went on	on page 833
at line 34:

Now what then is capable of constituting

corroboration if you believe it and are

content to accept it as amounting to

corroboration? Well, firstly, I tell you,

as a matter of law, the pathological

evidence is capable in law of constituting

corroboration.

I respectfully submit it is not because it does not

implicate Mr Leaman as the murderer and unless the

law is changed to be corroborating evidence,it must

not only establish the commission of the crime

but implicate or tend to implicate the accused as

the perpetrator. ·

(Continued·on page 23)

HlT6/9/JH	22	13/3/90
Leaman

MR HODGMAN (continuing): You cannot have half corroboration,

I respectfully submit, and to put as an example

the proposition which I have just read, I respectfully

submit, was wrong because it made the jury think that

if there is anything in the circumstantial case, or

anything at all which in anyway tends to corroborate

Gail Leaman that is it.

TOOHEY J:  Mr Hodgman, do you make that submission having

regard also to what the trial judge said at the top

of page 833,. "Secondly, we wouJ:d have to be satisfied

that, in fact,_.it did implicate him"?

MR HODGMAN:  Yes, indeed, Your Honour, because in the previous

example he did not make that statement. He did in

relation to the pathological evidence. In relation

to the previous one, he did not. What he did say,

and I should read it in full, is he said is was

"equivocal".	He said - I am now back to page 832,
at line 30:

But whether it did or not would depend,

firstly, on whether you, the jury, accepted
the evidence that he did say that to begin

with. It is the sort of thing that might very well be hotly disputed as to whether

he did say this or not. So you would have

to find, as a question of fact, whether he

did say it to begin with. And secondly, you

would have to be satisfied that, in fact, it

did implicate him. You see, it is a

somewhat equivocal statement. It is not a

full confession that he killed her.	He
doesn't say he killed her.	He simply says

she was killed at Clifton Bluff. But,

equally, it certainly resiles from the

suicide story and it acknowledges that she

was killed and there is no suggestion that

anybody but he killed her.

The Crown opened saying, "either".

McHUGH J: But it frequently happens that what is put

forward is a piece of evidence corroborating a

witness, or corroborating some evidence, does

not by itself and divorced from the surrounding

circumstances implicate the accused. Bruises in a

rape case are a common illustration, but if the

accused was with the woman and she ends up with

bruises, the bruises do not implicate in themselves

but in context it is capable of constituting

corroboration.

MR HODGMAN:  I accept that, of course, Your Honour, but that

is not what was being put here. You see, what was

being put here was a quite bald statement as an

H1T7/l/DR	23	13/3/90
Leaman

example and, therefore, one might assume a

which was, with respect, erroneous because the	considered example to the jury of corroboration
statement, "She didn't suicide, she was killed at
Clifton Bluff", per se, does not come within the BASKERVILLE provision in terms of implicating the
accused.

McHUGH J: His Honour said of the evidence, "which would be

capable in law of corroborating" and then he went

on to tell the jury that they will have to be

satisfied that there being no suggestion that

anybody else killed her, that he was the person who

did it.

MR HODGMAN: Well, that, with respect, was part of the flavour

of the surmning up that it went on the assumption,

with respect, that if it was not him who was it?

Whereas the Crown, in fact, in their opening - it is

not in your appeal book, but the Crown will not

dispute it and if I am saying it incorrectly

Mr Melick will correct me - the Crown opened by

saying, not at that stage knowing that they would

be calling Mrs Leaman, that either one of two
people, on the evidence, could have killed the

deceased. The Crown's case was that it was one

Maxwell Keith Leaman but the Crown itself conceded

the equivocality of its own case from the beginning

woman, the deceased was a very small woman.

that one of two - and as I indicated,

The summing up is criticized in the affidavit

for the application for special leave and I do not

stay to go through it as I assume Your Honours have

read it, there were a number of unfortunate

aspects: there had been a gap in period of time

between the evidence of Mrs Leaman as dealt with

in His Honour's surmning up and then, for whatever

reason, he chose not to remind the jury in detail

of the cross-examination of Mrs Leaman. With great

respect, it is respectfully submitted that days

into the surmning up, where there is a break, that
there is an obligation to at least remind the jury

of the basic outlines of what, in this case, I

submit, was a very extensive and very effective

cross-examination by Mr Slicer. There are
unfortunate phrases referred to by His Honour,

and I do not want to appear petty, but he refers

at one stage to the "unfortunate Pauline"; at

another stage he talks about the suicide and

says, "the Crown is saying that suicide is a lie"

but then he did not put any of the points put by

Mr Slicer as to why suicide was a real possibility.

It is all set out in detail. It is completely

relevant to every single point in the surmning up

with the transcript references to every matter

24

H1T7/2/DR	13/3/90
Leaman

that the learned trial judge dealt with in the

SU11lIIl.ing up and I have but one copy but I would hand it to the Court if I may if it will be of

assistance to you because the sutmiling up has been

fairly carefully dissected and all the matters,

every point that Your Honour raised is dealt

with in some stage by His Honour in sU11lIIl.ing up

but, with great respect, did not put, we

respectfully submit, the defence. In a case

such as this where the jury must crucially have

depended on the direction and guidance of the

learned trial judge, at the end of the day, we

do not resile from our contention that the

defence was not fairly put. I hand the transcript

breakdown to Your Honours. Your Honours, before

I conclude can I - - -

McHUGH J: Just before you do, I put to you before lunch

that the accused had said that she fell on top

of him. The passage I had in mind was at the top

of page 906 of his statement where he said:

Suddenly the piece of wood gave way and

Pauline finished up on top of me, more

or less.	The piece of wood hit me on the
head.

MR HODGMAN:  Yes, Your Honour. Your Honour, in relation to

that I did, myself, pick up that point. Perhaps

before I do, can I just go back on one other matter

you raised? In the unsworn statement he did not

say which arm had been fractured so that the

point -

McHUGH J: But he did in his record of interview, I think.

MR HODGMAN: Indeed, I accept that, but in the unsworn

statement, and I would not need to remind this

honourable Court that there may be very good

reasons why a person totally innocent may opt to

exercise that right and that this supreme court

has held, and no doubt the High Court would hold

likewise, that no inference adverse to any person

should be drawn because he chooses to make an

unsworn statement as opposed to giving evidence on

oath - a man might be quite inarticulate; cannot

explain his position and so on. In the unsworn

statement which was his defence he did not in fact

indicate which arm had been struck by the shovel
in the dark at Clifton Beach at the time of the

burial.

In relation to the passage that Your Honour

refers to specifically - it starts on page 905:

25

HlT7/3/DR	13/3/90
Leaman

When I opened the front door, all I could

see was, I am not sure now if it was

Pauline or her shadow as the light was on

in the lounge room.	I told Gail to stop
there -

and I just simply note, if I may, briefly, please

that in the annexure to the affidavit:

I was closing the car up and he told me to staywhere I was. It was only a matter of

minutes -

but he says:

I told Gail to stop there and pulled the

front door closed. I got up to release

the piece of wood, by standing on the chair

which was lying on its side near to her feet.

I think there was a small step ladder leaning

against the wall. Suddenly the piece of wood

gave way and Pauline finished up on top of
me, more or less. The piece of wood hit me

on the head.

The passage put to Dr Cummings was in the situation

that she was being let down - cut down - and had

then fallen over. Now, you will see from the

transcript, Mr Slicer has demonstrated to

Dr Cummings that the words confirmed the form of

the demonstration, namely, there is a cutting

down and then the head has gone down landing in a

situation where Dr Cummings said, "Yes, that is

consistent with how you could have fractured the

skull." Then he confirms it and says, "and in

that way also the jaw could have been fractured."

So, it was not just the fracture of the

skull. Dr Cummings agrees the fracture of the

jaw could have been caused in that manner.

McHUGH J: But what I was putting to you this morning was

that the hypothesis of the question was that there

had been a straight fall from the cutting down to

the floor and that was what the doctor was assenting

to.

MR HODGMAN: Well, that is consistent, I respectfully submit,

with what is in there because whilst he says she

"finished up on top of me, more or less" that may

be the lower part of her body, it might be - I mean,

it does not spell it out but it does not negate
the proposition of a fall from the perpendicular

it this way, that you and I can put this exchange

in the manner put by Mr Slicer and accepted by

it is almost, I submit, in every single point in

HlT7/4/DR	26	13/3/90
Leaman

this case, for a point against Leaman, you can find

a point for him, not just on whether he was the

murderer but whether there was ever a murder in the

first place.

McHUGH J: There is nothing unusual; in law every argument

has got a counter-argument.

MR HODGMAN:  Not always, Your Honour, I am told. I wish it

was.	I have tried in the past but without success
with our Full Court with that	proposition.

TOOHEY J:  Mr Hodgman, has it always been the applicant's

account that the body of the deceased was found by

him swinging in the front passage - or in the

passage?

MR HODGMAN:  I have got to answer that: in relation to 1986-87

yes; in relation to 1969 was that she had disappeared.

TOOHEY J: All right, then in relation 1986-87?

MR HODGMAN:  So, in relation to the 1986-87: I do not know

if it is the practice of this Court to have the

exhibits here but one of the points I made to the

Court of Criminal Appeal which I would like to

make to this Court if the exhibits are available
is that,whilst we did not at that stage have video-
taped interviews or even filming at the scene of
the alleged crime, in this case, for whatever
reason, they took a number of photos of Max Leaman

at the scene when there was the searching for the

body and at a number of other places to which he

was taken that night. Those were, in fact, tendered

in the trial and they would be in the registry of

this Court.

I put it no higher than this, but if ever you have seen, as I put to the Court, a more relaxed

person in the circumstances where being confronted

with what he was alleged to have done, even in one instance, holding, at the request - I think the	evidence was - of one of the police officers, a spade
while they were digging. The whole picture, in so
far as you are dealing with a circumstantial case,
is not of a man who has made any admission because, Your Honour, he has never made a single admission -
in fact he has denied it - - -

TOOHEY J: Well, can I come back to my question, which was

to ask you whether, at the time the body was

discovered, the applicant's account was that he

found the deceased's body swinging in the passage

and as I understand the evidence, it was swinging

because a piece of wood had somehow been wedged

across, or placed at the top of the manhole so

that a piece of wire could be attached to it.

HlT7/5/DR	27	13/3/90
Leaman

MR HODGMAN:  Rope, I think, sir, but in any event - - -

TOOHEY J: Well, it is described as nylon wire or something of

the sort.

MR HODGMAN:  Yes.

TOOHEY J: What I do not quite understand is: it seems clear

beyond doubt that the manhole was not in the passage

but in some other room.

MR HODGMAN: Well, the room adjacent to the passage in fact

called the lounge room.

TOOHEY J: Well, yes, but not in the passage.

MR HODGMAN: Well, I did not appear in the trial and I have

to admit I have not seen the inside of the house

but there were photographs and I would submit, on

the photographs that I recall seeing at the

Court of Criminal Appeal, it was arguable as to

whether it is in the hallway, adjacent to or in

the actual room. This point got blown up, I

respectfully submit, out of all proportion.

Yes, I am obliged to my friend, he has given me -

McHUGH J: You knc:Jw: what they say about beware of Greeks bearing

gifts?

MR HODGMAN: I would like him also to produce the photographs

of Max Leaman, I submit, an innocent man, on the

night he was spoken to by the police - you have got

them all there, have you not? Some people laughed

about this proposition when I put it to the Court

of Criminal Appeal; I submit the High Court of

Australia will not, and where it is involving a

circumstantial case and - - -

TOOHEY J:  Mr Hodgman, I am sorry, I just want to bring you

back to this point because it has not been suggested,

as I understand the evidence, that the deceased	could have hanged herself from anywhere but the
manhole because, obviously, she needed some sort
of attachment from which the wire could hang. Well, if the manhole was not in the passage where the applicant says he saw the deceased hanging, was it
ever explain how she might have hanged herself.

MR HODGMAN:  No, Your Honour. I hand you photograph 72 and

you will see if it is not in the passage, it is

six inches from it and that photo is worth

10 minutes of my coIIllilents. You will see what the

argument was all about. It is six inches: whether

it is in the passage; or whether it is in the

lounge room; it might be technically in the lounge

room but there is only six inches in it - ·the

manhole. My friend asked me to show you photograph 73.

It is right next to the passage. That is the point

I am making.

H1T7/6/DR	13/3/90
Leaman

My friend asked me to tell you photograph 73

is taken from the front door. Now, can I ask

Your Honours to contemplate a body hanging there - and is it such a wrong thing if he says, "body

hanging in the passage". It is adjacent to the

door. I mean, the whole thing became, I respectfully

submit, on a fair reading, a stupid semantic

argument which the Crown seized upon in some way to

indicate guilt and you are talking about six inches;

whether it is in the lounge room or in the passage -

no more, no less - but there is the manhole and you

could put a bit of wood across that without much

trouble and suspend somebody from it by the neck.

McHUGH J: The manhole was in the kitchen, was it not?

MR HODGMAN:  I think the lounge room, Your Honour. Mr Melick

agrees with me, it is in the lounge room. The

argument is: was the body in the lounge room or

the passage? That was what all this was about.

That is the other thing: there had been some changes

done to the house between the alleged murder in 1969
and the condition the house was in in 1986-87,

Your Honours.

TOOHEY J: You mean of a structural nature or just - - -

MR HODGMAN:	Yes, Your Honour.
MASON CJ:	Was there any suggestion that the position of the

manhole had been changed?

MR HODGMAN:  I am not sure. I will ask Mr Melick. Could I

defer to my friend, Your Honour?

MASON CJ: Yes.

MR MELICK: Perhaps I .could assist. The Crown called witnesses

who owned the house both before and after Mr Leaman

had, !.lived there.	A fair sunnnation of the evidence
at the trial was there was never a manhole in the
hallway; there was one in the lounge	there

never was one in the kitchen but a false ceiling -

or a skillion-type ceiling had been placed in the kitchen

and that was the ceiling that appears in those

photographs as, it looks like, a wooden panelling-type

ceiling and there was some suggestion put to the

witnesses that, perhaps, there had been a manhole

in the kitchen which at a later stage had been

removed but the witnesses did not agree with that and said, "No, there was never a manhole in the

kitchen." There was another photograph somewhere

which said when Mr Leaman went to the house with

the police he said, "Well I may be confused, maybe

the manhole wasn't in the hallway, it was in the

kitchen" because if you look at photograph 73 it

was a very small house and you are looking down

HlT7/7/DR	29	13/3/90
Leaman

the hallway and straight through the kitchen and
the only way the accused could have, on the Crown

case, seen the body swing, was if the manhole was

either in the hallway or the kitchen but, as my

learned friend puts, the manhole in the lounge

room was just off slightly to the right-hand side

by a matter of inches and that could account for

why the accused by confused.

TOOHEY J:  Do you mean the area between the passage and the

lounge room was open or was there a wall?

MR MELICK:  No, the wall was always there, Your Honour,

there was no structural change to the house apart

from the -

TOOHEY J: Well, how could you see a manhole in the lounge

if you are looking down the passage from the

front door?

MR MELICK:  No, our evidence was you could not. As I

understood, the accused's case was that he could

see the body swinging - either the body or the

shadow because of the proximity of the manhole

to the doorway of the lounge room.

TOOHEY J: Yes, thank you.

MR HODGMAN:  I am very obliged to my friend for his fairness

because that was one of the important things: that

the accused's statement about the body swinging

was as equivocal that it was the body as it was

a shadow. But, in any event, it is an argument

about six inches. Now, the Crown very fairly

concedes- you see, that this was really, I

respectfully submit, a clutching at straws and in

the case where you meet or see your de facto or

your wife fdr that matter swinging either in

substance or in shadow-form,to be 18 years

afterwards pursued to conviction on the basis

that in someway that indicates guilt, I

respectfully submit, is not on.

So, as I conclude, Your Honours, I put, with respect, the circumstantial case was weak,

insufficient to sustain a conviction for anything

let alone sufficient to even prove a murder. The

evidence of the accomplice was as clearly destroyed

in cross-examination by Mr Slicer - evidence of a

woman who had admitted three other reasons for

lying to the police about the murder, only one of

them - one reason only - imputing that she was in

fear of Mr Leaman. In fact she admitted that
because she thought he was having an affair with

Di; because she thought that he was going to leave

her; because she thought - the fourth reason was

HlT7/8/DR	30	13/3/90
Leaman

the last one. It is interesting. She did not

say, "I thought he was going to do to me what he

did to Pauline." She did not put it as high as

that.	She says, "I was terrified of him" yet
she remained and lived with him.	I take it no

further than this, that her state of mind is

indicated by the suicide note that she wrote which

is in the exhibits and which you will find in

appeal book volume IV, page 902. This is when

she proceeds - plans to go to the Tasman Bridge

and throw herself off it:

My Dearest Max,

Our marriage was finished months ago, with

you and your secrets. I tried to do

something about it and I am the worst.
The lady I saw wanted you to see her, but

I said all would be alright. I'll never tell you where I went, and who I saw but

it doesn't matter, of late there has

been no trust, togetherness or

companionship, so I guess my darling it

is finished.	You have been writing little
notes I know that.	You can do as you

wish with my things I'll not be wanting

them. You think I have somebody else,

well you should know better even your

friend (who I can't stand) has to keep

hands off.

Good bye dear.

I only wished I had some-one to care

for me as much as you do Diane.

I'll take your love I used to have with

me.

And, by the way, you killed Pauline 18 years ago. It does not say that. Your Honour Chief Justice,

could I propose that the Court will permit it that

my learned friend, Mr Roland Browne, who has

worked very hard on this matter, be permitted to

simply give Your Honours the references to the

cases upon which we rely in relation to application

for special leave?

MASON CJ: Yes, Mr Hodgman. It is unusual for two counsel

to be heard on a special leave application but we

will hear what Mr Browne says but could I ask you

this question first?

MR HODGMAN:  Thank you, Your Honour.

MASON CJ: What directions were sought at the trial by the

defence in relation to the inadequacy of the

directions of which you complain?

Jl

H1T7/9/DR	13/3/90
Leaman
MR HODGMAN:	We do not have a complete transcript,

Your Honour. Mr Slicer made very long and very

strong submissions midway through the sununing up.

MASON CJ:  But what submissions did he make as to the

directions?

MR HODGMAN:  You mean at the completion of the summing up,

Your Honour?

MASON CJ: Yes.

MR HODGMAN:  We do not have a transcript of that and I

cannot answer but he was complaining about the

direction in which the summing up was going mid~my

through and you will find the passages, Your Honours,

in the sununing up.

MASON CJ: They do not go to the issues in relation to

corroboration, do they?

MR HODGMAN:  No, because they have not been reached. They

came later in the sununing up.

MASON CJ: Did he make any objection later in relation to

the directions on corroboration?

MR HODGMAN:  I am sorry, Your Honour, I do not know. We

do not have the transcript. I was not at the trial

and I do not know. I am not hedging, ir, I just simply

do not know. I was briefed only as counsel in the

appeal to the Court of Criminal Appeal and I just

do not know but I would respectfully submit that the

High Court itself has said that if counsel fails

to take a point - I am not saying Mr Slicer failed
to take any point but that is not fatal to an appeal.

It would be terrible if because of fault on my part a wrongful conviction was allowed -

MASON CJ: Well, he is fatal in most cases, Mr Hodgman.

GAUDRON J: At pages 876 and 877, there was some discussion

about matters that Mr Slicer asked the trial judge

to raise.

MR HODGMAN: Yes, I am obliged to Your Honour, thank you very

much. I am obliged. I noted that part. There is

a very lengthy - and I am sorry, I think I might

have misinformed Your Honour the Chief Justice a

moment ago, I apologize. I apologize, Your Honour, I did innocently misinform you. The corroboration

passages are 832 and 834. You will see on 849,

which was presumably at 10 o'clock on 19 May 1987,

there had been some discussion before the Court

adjourned the previous afternoon and then

Mr Slicer does raise a number of matters - does

mention corroboration, yes. Makes a number of

comments in relation to corroboration. The crucial

H1T7/10/DR	32	13/3/90
Leaman

point is though whether or not it was said at the

end of summing up and, unfortunately, the practice

in this State is that the judge usually sends the

jury out and then asks counsel if they have got any

submission about his summing up and, more often

than not, it is not transcribed and I am sorry,my

learned junior, Mr Browne, was not involved in the

case either at the time.	I could find out if
Your Honour - - -

GAUDRON J: But there is a transcription at pages 876 to 878

where His Honour the trial judge asked Mr Slicer:

Are there any submissions before I send

the jury out?

Then Mr Slicer asks for a number of matters and

then Mr Melick asks for two directions. That would

seem to be a transcript of what was sought in

respect of further directions at the end of the

trial judge's summing up.

MR HODGMAN:  I would agree with Your Honour. Certainly, up

to the time of retirement of the jury - I am sorry

I was dealing with the matter - I do not know if there was any further - - -

MASON CJ: Well, now, if you look at page 855, it seems that

His Honour, after a short adjournment when he considered the submissions that had. been made by counsel

for the accuse~ said:

I will give the jury a reminder, which I

think will solve the problem that you have

raised.

Quite obviously His Honour was referring to the submissions made by Mr Slicer and then he proceeds,

in the second-half of that page, to deal with a

matter of uncorroborated evidence of an accomplice.

Now, thereafter, as I read the .application book, there

is no further application by Mr Slicer for

redirections on the matter of corroboration.

McHUGH J: But more than that: at page 851, Mr Slicer

abandoned, did he not, the case that corroboration

was required. At page 851 he says:

The attack of the defence is not that

you are because you are an accomplice -

et cetera -

is the Crown case that she ..... that so far

as this trial is concerned she is any way

can be regarded as an accomplice.

33

HlT7/ll/DR	13/3/90
Leaman
MR HODGMAN:	Yes, but with great respect to Mr Slicer,

His Honour determined that she was, in fact, an accomplice and I just say in passing, she happened

to be, as a matter of record, a convicted

accomplice - a convicted accessary - and

His Honour then proceeded down the track of

dealing with her on that basis. Now, I can

understand what Mr Slicer was saying. What he was

saying is, "If you tell that jury that she is an

accomplice they will think that you are thinking

and telling them therefore he must be the principal.

McHUGH J:  But on no view of the case was she an accomplice.

I mean, on the Crown case, she was just sitting

there innocently when this attack occurred. She

'	may have been an accomplice to the burying, the
concealment of the body, but not to the murder itself and, likewise,on the defence case she
was not involved in anyway. So - - -

MR HODGMAN:	She was a convicted accomplice.
McHUGH J:	- - - this was a non-issue in this trial -

corroboration was a non-issue.

MR HODGMAN: Well, with the utmost respect, I say not only

was she an accomplice, she was a convicted accomplice

at the time she gave her evidence serving a sentence

of imprisonment for having been convicted as an

accessary to the murder of the deceased. My friend

says, "accessary after the fact". The plain fact

is she had been convicted and His Honour, once he

had decided to deal with her as an accomplice

which, I submit, as a matter of law, was correct

that he should give the direction that the jury should

not convict on her evidence; that it would be unsafe to convict unless they found her to be corroborate,

my respectful submission, is, with &reat respect,

to the point Mr Slicer took.

I can understand that po:int as a ~t~ point dur:ing the trial.

I appreciate very much because the moment a judge

says to the jury, "That person could be an accomplice"

there is a very great risk the jury will think the

judge is saying to them, "That person is an

accomplice" ergo the accused is the principal and

is therefore guilty.

MASON CJ: Yes, Mr Hodgman.

MR HODGMAN:  Your Honours, if I may - - -

MASON CJ: Yes, we will hear Mr Browne.

MR HODGMAN:  Thank you very much, Your Honours.

MASON CJ: Yes, Mr Browne.

HlT7/12/DR 34 13/3/90

Leaman

MR BROWNE:  If it please the Court. The case, as my.learned

1enior has referred to, is made up of the circumstantial
case and also the evidence of Larain Gail Leaman.

That evidence, we submit, must have been corroborated

or was required to be corroborated. The learned

trial judge did give a direction as to the

corroboration of her evidence on the basis that she

was an accomplice. That direction raises three areas

of the evidence that was capable of corroborating

the evidence of Larain Gail Leaman.

McHUGH J:  But was a direction required, Mr Browne, having

regard to what appears at the bottom of pages850

and 851 where Mr Slicer said that Mrs Leaman could

not be regarded as an accomplice on the Crown case

or on the defence case?

MASON CJ: And you can add to that page 852, at about line 12.

You see, the point was that Mr Slicer was anxious

to disavow any notion that the jury should regard

the witness as an accomplice because, as he points

out on page 852, that would harm the defence case.

(Continued on page 36)

HlT7/13/DR	35	13/3/90
Leaman

MR BROWNE:  Yes, that is accepted, Your Honour, but the result

was, I would submit, that Mr Slicer conceded that that

direction was going to be given. In my respectful

submission, at page 852 he was thinking aloud, so

to speak saying to the learned trial judge that on
the one hand he wished there not to be an accomplice

direction because it hurt the defendant, on the other

hand he was accepting of the perhaps inevitability

of there being an accomplice direction and, if I may

respectfully say, in the results, an accomplice

direction was given.

McHUGH J:  That may be, but let k be a~umedthe trial judge had

refused to give such a direction and you then came

along to complain that a direction should be given.

What basis would you have for saying that an

accomplice direction should be given?

MR BROWNE:  The basis would be, Your Honour, that she was

convicted as an accessary after the fact previously.

McHUGH J:	That does not make her an accomplice in this context.
MR BROWNE:	Perhaps I could put it another way, Your Honour.

She would be an accomplice in the sense that the

accomplice direction is necessary where it is seen

that another person or a witness in that position

could have some reason for giving evidence that is in

need of corroboration. In a factual sense she would

be an accomplice. I accept what Your Honour says that

in a legal sense she may not have been found guilty
as being directly an accomplice but, in any event, her
evidence, and as it was clear from the trial, raised

the possibility that she may have been giving evidence

for reasons other than because it was what actually

happened and that, in my respectful submission, is the

basis of th~ accomplice direction, or the requirement

for an accomplice direction. She was involved.

That is my submission, Your Honour.

As to the result that the learned trial judge gave an accomplice direction it was on the basis of three

areas, or three areas were held to be capable of

corroborating Larain Gail Leaman's evidence: firstly,

was the evidence of Dr Royal Cummings, secondly was

lies told in 1969 and that referred to the applicant's

story that the deceased had gone off and he had not

seen her since. The third area was the alleged lies

in 1986 and 1987, being the suicide story, in the form

of his record of interview with the police and in the the suicide story.
form of the unsworn statement that he gave at the trial.

It is my submission, Your Honours, that that area

of whether those lies could corroborate the evidence

of a convicted accomplice is one that is uncertain at

this stage. I refer the Court to a decision of

HlT8/l/HS	36	13/3/90
Leaman

REG V LUCAS, (1981) 1 QB 720. In that case,

Your Honours, the Court of Appeal reviewed some

authorities relating to that area and laid down,

on page 724, four requirements before a lie told out

of court could be capable of amounting to corroboration.

Two-thirds of the way down page 724 the requirements

are:

To be capable of amounting to corroboration the lie told out of court must first of all

be deliberate. Secondly it must relate to

a material issue. Thirdly the motive for

the lie must be a realisation of built and

a fear of the truth. The jury should in

appropriate cases be reminded that people

sometimes lie, for example, in an attempt

to bolster up a just cause, or out of

shame or out of a wish to conceal

disgraceful behaviour from their family.

Fourthly the statement must be clearly

shown to be a lie by evidence other than

that of the accomplice who is to be
corroborated, that is to say by admission

or by evidence from an independent witness.

Your Honours, it is the submission of the applicant

that, in this case, there was an absence of admissions

or independent evidence to satisfy the fourth rule as

required in LUCAS. In this case the alleged lies t~at

were sought to be corroborated was his version that the

deceased had committed suicide.	I refer the Court to
the appeal books at page 835, at line 19.	The learned

trial judge directed the jury that this evidence that

I have referred to:

would be capable of amounting to

corroboration -

of the evidence of the accomplice -

if it is a deliberate lie and ..... made

to conceal guilt.

But there was in that case nothing to qualify that lie,

nothing to show that that was a lie. There was no

independent evidence and no admission by the

appli~ant that it was a lie. This matter was dealt

with in the Court of Criminal Appeal where His Honour

Justice Neasey interpreted the decision of the

Court of Appeal in LUCAS in relation to the fourth rule that there was no requirement or that the Court of

Appeal did not mean to be exhaustive in laying down

that requirement. His Honour held at page 931 of the

appeal book that:

inherent improbability -

HlT8/2/HS	37	13/3/90
Leaman

could be -

part of the independent evidence tending

to show that the suicide story was a lie.

I submit to the Court ·that that extension is unwarranted

in both the circumstance of this case and generally.

I submit that there is no authority for the extension

of that rule, other than the article referred to by

the learned judge, an article by the author Heydon

reported in (1973) 89Law Quarterly Review, and at page 556,

Your Honours, in the first paragraph, the author in

that article comes to a conclusion, after a review of
the area in substantially the same terms that the

Court of Appeal arrived at some seven years later, that:

The conclusion that a statement is false

can be drawn from its inherent

improbability; direct testimony to this

effect is not necessary.

It is my submission to the Court on the basis of the

application for special leave to appeal that there is

no authority for this proposition. In the cases that

have been referred to in the written submissions of the applicant and also the cases referred to in the

written submissions of the respondent, a view of those

cases reveals that in all but two instances there is
independent evidence that a person or the defendant

was lying or, alternatively, the report fails to indicate the nature of the evidence that showed

that the defendant was lying. In addition, there would

be evidence in some cases from the defendant that he

had changed his own story, in other words, an admission.

DAWSON J:	What do you mean by "independent"? Do you mean
independent of the person whose evidence is to be
corroborated?

MR BROWNE:  Yes, that is the case, Your Honour.

DAWSON J:  It does not have to be direct evid~nce in that event.

It can be independent and indirect can it not?

MR BROWNE:  On the basis of the authorities it would appear that

the requirement has been independent evidence in the

terms of evidence from another person and that is the

whole problem, I submit, in this case, that we do not

have independent evidence, or there has not been

independent evidence, because once we move away from

the evidence to be corroborated I submit that, that apart

from lies there was nothing to corroborate the

evidence of Larain Gail Leaman. The problem becomes

one of circularity. If the Court rs to rely on

inherent improbability the only thing that makes the

suicide story inherently improbable is the evidence

of the accomplice.

HlT8/3/HS	38	13/3/90
Leaman

TOOHEY J: There may be something else. There may be, for

instance, the matter that was discussed with

Mr Hodgman a few minutes ago, the position of the body

as it was said to have been seen by the applicant and

objective facts which, assume for the moment, disclose

that the body could not have been seen in the

position where it was deposed to by the applicant -

deposed to is perhaps the wrong terminology since

an unsworn statement was made in the record of

interview. But I can understand, Mr Browne, the

fourth of those criteria if it stopped at the end

of the second line, namely:

the statement must be clearly shown to
be a lie by evidence other than that of

the accomplice who is to be corroborated.

But you seem to be suggesting that there must either be

an admission or direct evidence from someone who was

present at the time of the event. Do you exclude the

possibility that corroboration can be established by

reason of objective facts?

MR BROWNE:  No, I do not, Your Honour. My submission is - and I

refer very briefly to a decision of TRIPODY, a

decision of the High Court, where, on an application

for special leave from the Supreme Court of Victoria -
the result of that case was the High Court said it

does depend on the circumstances of the case. That is what I put forward in this case, Your Honour. We have

particular circumstances, or special circumstances,

where the evidence, as my learned senior counsel has

put forward, was consistent with suicide. I do not

take issue with the possibility of that evidence going

against the defendant but as to corroboration of the
accomplice's evidence, I submit that the use of his

lies - and that is the issue I am addressing at this

point, Your Honour - the use of lies requires

independent evidence to show that it is a lie.	The
authorities reveal that lies have to be treated very

cautiously.

McHUGH J:  But what do you mean by '1ndependent evidence"?

It can just be a fact proved by evidence other than

the evidence of the alleged accomplice, or accomplice.

Take the common case that you used to strike years ago - I do not know whether they are still around -

child maintenance cases, paternity case, where you

had to prove, in New South Wales anyway, corroboration.

The defendant might deny any association with the

woman but you would call witnesses to prove that

there was an association. That constituted

corroboration.

MR BROWNE:  Yes, and that is the case, Your Honour. In a case

like that if the witness gave evidence that the father

was lying in the type of case you have referred to,

that would be independent evidence that he had lied

HlTS/4/HS	39	13/3/90
Leaman

and therefore his lie could be used as corroboration.

As well, the independent evidence could also

corroborate the accomplice. We do not have such a

straightforward situation in this case at hand because

whatever evidence is used to demonstrate that he was a
liar is the same evidence that we find coming from

the accomplice to be corroborated.

McHUGH J:  Well, what about what was put to you about the

c e i 1 i ng . He said, "I came in the door and I found her hanging from

a manhole in the passageway". The Crown proves that

there was no manhole there in the passageway.

Why is not the jury entitled to infer that that was

a lie on his part?

MR BROWNE~ I would come back to LUCAS's case, Your Honour. A

lie in that situation has to come from a realization

of guilt. The jury must be instructed in that way.

As my learned senior counsel has put forward, he said

it was a matter of six inches. That may be something

to be dealt with if the matter is left to the jury.

At this stage, though, the evidence that was sought

to corroborate Larain Gail Leaman was the totality of
the suicide story and, as I have submitted to the

Court, that area only appears to be a lie on the

basis of her evidence.

GAUDRON J:  Well, it only appears to be a lie if the Crown

allegation is accepted as correct, wherever it comes

from. It can only be corroboration at a point at

which you probably do not need corroboration, that is,

if you accept that there was a murder, rather than

a suicide.

MR BROWNE:	Yes, that is the case.
DAWSON J:	In other words, the jury have to be satisfied that what

he said was a lie, not because the witness said so, but for some other reason independently. That is

all, and that is enough.

MR BROWNE:  Yes, that is the case, Your Honour, but that

evidence must be shown, as I said, independently

by admission, and the case - - -

DAWSON J:  Well, as long as it is not just because the witness

said so; but for some other reason which is disclosed

by the evidence, that is sufficient, the totality of

the evidence.

MR BROWNE:	My submission would be that the totality of the evidence can not be separated from the accomplice's
evidence to go to show that he was a liar.
McHUGH J:	Well, take her evidence out of the case altogether

and then test it that way.	He puts forward the story
that she suicided.	Do you test that as to whether it

HlT8/5/HS	40	13/3/90
Leaman

is a lie by looking at the fact that he buried

her, that he had a motive, that he had hired a

motor car that day or the day before, that the

manhole was not where he sRid it was, that there was this

e vi den c e of fr a c tu re s ? From a 11 th a t the j u r y c o u 1 d

come to the conclusion that she did not suicide and

it is a short step then to use that to corroborate the

wife's evidence and come to the conclusion therefore

he must have murdered her because nobody else could

have murdered her.

MR BROWNE:  Your Honour, the issue is, though, that the

circumstantial case was not separated from the
corroborative evidence in the terms of the direction.

I am not addressing the Court in respect of the

strength of the circumstantial case but merely on

the issue of whether the lies were sufficient to

corroborate her evidence.

DAWSON J:	But it is the circumstantial case that is the
corroboration.
MR BROWNE:	But that is the whole problem that I am putting

forward, Your Honour. The circumstantial case is

not capable of corroborating that there was a murder.

It may go as far as showing that there was a killing

but it does . not show there was a murder and it

can also be put that it does not show that Maxwell

Leaman was the murderer. As my learned senior counsel

has referred, the evidence -

DAWSON J:  Well, that is putting it too high. The corroboration

only has to support the story of the witness

implicating the accused in some material respect.

McHUGH J:  Could I put it this way to you. The circumstantial

evidence was capable of proving it was not a suicide.

If it was not a suicide, then your client's story was

a lie and therefore, since nobody else could have

been responsible for her death, it implicated your

client.

MR BROWNE:  That may be the case, Your Honour, but on behalf

of the applicant I would not be able to accept the

conclusion that because there was a death and

because the accused had buried the body that he was

the murderer or he caused the death. On his version

he admitted burying the body and he gave reasons for

that in his unsworn statement and in his record of

interview.

HlT8/6/HS

Leaman 41 13/3/90

MR BROWNE (continuing): It is very much open, as has been

referred to earlier, there is	proposition and
there is	counter-proposition as to the cause

of death and it is very difficult to separate

out the evidence of the accomplice from the

circumstantial case. I come back to what I try

and distil as the main point, that in relation

to the use of lies to corroborate her, her evidence

was not separated from the circumstantial case.

The circumstantial case was used in the

form of inherent probability in the mind of the

Court of Criminal Appeal to find that the accused

had lied. And I submit that that is something

that is unwarranted in a case such as this where the circumstances are so finely balanced between the defendant's evidence and the evidence of

the accomplice.

I would seek to refer the court to a decision

of the New Zealand Court of Appeal, the case

of COLLINGS.

MASON CJ:	From what point is this, Mr Browne?
MR BROWNE:	I was seeking to cite that case, Your Honour, as a case where inherent improbability has been
adopted to support the contention that the defendant
had lied. I IDUld put it on the basis. that the Court
of Appeal also found that there was other evidence
to show that the defendant had lied.
MASON CJ:	What part of this case do you want to take us

to?

MR BROWNE:  Page 118, Your Honour. That was a rape case,

Your Honour, where there were numerous defendants and the Court of Appeal was considering the test

to apply in whether evidence was capable of

corroborating the complainant. After a review	of the evidence, at page 118 - at page 116 the
court referred to the article by Professor Heydon,
Can Lies Corroborate? and looked at the question
of inherent improbability. And then, at page 118
the court referred to the evidence as to what
was put forward to show that there had been a
lie.

At the top of page 118 the court had to

rely on the notes of counsel and at line 8:

Mr Larsen's notes also mention that there

was some who had changed their story,

referring specifically to Collings as having

said originally that he had not touched

the girl but later that he had only touched

her on the hips.

42

HlT9/l/ND	13/3/90
Leaman

The evidence that was before the Court of

Appeal was thus a change of story and implied

admission that there had been a lie. I put forward

that there is nothing in the case before the

Court to show that the accused, Maxwell Leaman, had lied.

I would seek to refer the Court to the submissions that have been tendered in this matter.

At page 3, the evidence of Dr Cummings, I would

submit, is not capable in law of corroborating

the accomplice for the reason that it did not

implicate the applicant and I seek to rely on

the decision of BASKERVILLE, as has been referred

to by members of the Bench, that the requirement

is that it corroborates the accomplice in a material

particular and that it implicates him in the

crime.and I submit to the Court that there is

nothing in the evidence of Dr Cummings to implicate

Maxwell Leaman, the accused, in the commission

of the murder.

There was evidence, as my learned senior

counsel has put forward, of an unlawful killing

but not that Maxwell Leaman had done that and

I would submit that there is no way that Dr Cummings

would have been able to put that forward as evidence.

MASON CJ:  But it has already been put to you that if the

evidence tends to destroy the accused's explanation

of suicide, why does it not implicate him?

MR BROWNE:  With respect, I would pose that a different

way to Your Honour: "Why should it implicate

him?", for the reason that the presumption of the accused to explain, with his back to the wall so to speak; rather, he has put forward
innocence is still going to apply to the accused

a version of suicide and I would submit that

direction where they could be told somebody killed	it would be improper to give the jury an effective
the deceased and if it was not a murder therefore
it must have been Maxwell Leaman. I do not seek to go over the summing up
or the directions that were given to the jury
in that regard but I would submit that where
lies are involved, as is the crucial issue in
this case, courts have continually stated
that it is extremely important that the direction
given be very careful.

I return to the second area, as to the lies

in 1969, a direction that was given.

H1T9/2/ND	43	13/3/90
Leaman

McHUGH J:  I thought you conceded that in the court below.

I thought that was capable of constituting

corroboration.

MR BROWNE:  As Your Honour has drawn to my attention, that

matter was not argued in the court below. If

that single issue was brought before this Court

it would not be worthy of an application for

special leave on the issue of that particular

piece of corroborative evidence. But what I

do put forward, Your Honour, is that that was

part of a mosaic of corroboration at the trial

and I would submit that whilst it has not been

argued in the court below as part of the mosiac

of corroboration,it is worthy that it is raised

in this Court as part of an application for special

leave to appeal to the High Court to raise the

area of corroboration and how the matter is to

be dealt with in the form of the direction by

the trial judge.

I submit that the direction that was given

to the jury, at page 834 of the application books,
lines 27 to 30, where the learned trial judge

stated - and I paraphrase at the beginning:

Now, the second area which is capable in

law of amounting to corroboration ..... is

the fact, if you find it to be a fact, that

the accused lied to the police in 1969 -

and at line 29:

that he lied to the police out of a sense of guilt to cover up a killing at Clifton

Bluff -

My submission is that it is necessary before that can be put as corroborative evidence, in

should have put it as a question of whether he the direction to the jury the learned trial judge	lied out of a sense of guilt to cover up a murder
at Clifton Bluff. It is necessary that the
corroborative evidence goes to implicate the
accused in the commission of the crime. And
it was equally consistent with his versiqn that
he had buried the body and had covered up the death of Pauline Glover rather than a murder.

The only evidence before the court of a

killing at Clifton Bluff was that of the accomplice

who it was sought to corroborate and I submit that

that circularity is the same circularity as I

have referred to in respect of the 1986 or 1987
lies that the Crown sought to rely on as corroboration

of the accomplice's evidence.

H1T9/3/ND	44	13/3/90
Leaman

I also put forward to the Court that on

the evidence before the trial judge and before
the jury, Gail Leaman had a greater reason to
have the deceased out of the way than did the

defendant himself.

Your Honours, if I may conclude as to the

application for special leave to appeal, I submit

that there is - and I refer Your Honours to the final page of the written submissions that have

been tendered - a question of public importance

in this application because the use of lies as

corroboration is very common in criminal trials.

The matter is not clear in as far as the Court

of Criminal Appeal has attempted to extend the
test that allows lies to be used as corroborative

evidence.

I also submit to the Court that the decision

of the Court of Criminal Appeal in extending

the rule in LUCAS is incorrect and the applicant

makes application to this Court to appeal on

that basis. If it pleases the Court.

MASON CJ:  Yes, thank you, Mr Browne. The Court will take

a short adjournment in order to consider the

course it will pursue in this matter.

AT 3.35 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.01 PM:

MASON CJ:  The Court need not trouble you, Mr Melick.

This application for special leave has been argued

on the footing that the trial judge was in error

in giving inadequate directions to the jury as

to corroborative evidence.

In our view, this argument is misconceived. Neither on the case presented by the Crown nor

on the case presented by the applicant was

Gail Leaman an accomplice. Indeed, counsel for the witness that character would prejudice the
the applicant requested the trial judge not to
give the jury directions on the basis that

defence case. Furthermore, no further or different

directions were sought at the conclusion of the

summing up.

H1T9/4/ND	45	13/3/90
Leaman

Accordingly, we are not persuaded that there

has been any miscarriage of justice. We would

add that reliance was placed on the remarks of

Chief Justice Lane in REG V LUCAS,

(1981) 1 QB 720, where His Lordship, speaking

of lies as corroborative evidence said,

at page 724:

Fourthly the statement must be clearly shown

to be a lie by evidence other than that
of the accomplice who is to be corroborated,

that is to say by admission or by evidence

from an independent witness.

We do not read this passage as excluding

a case where the statement in question appears
to be a lie as a matter of inherent improbability

or as a result of circumstantial evidence.

The application for special leave to appeal

is therefore refused. The Court will now adjourn.

AT 4.03 PM THE MATTER WAS ADJOURNED SINE DIE

HlT9/5/ND	46	13/3/90
Leaman