Mackenzie v The Queen

[1996] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S60 of 1996

B e t w e e n -

ADRIAN SIMON MACKENZIE

Appellant

and

THE QUEEN

Respondent

DAWSON J
TOOHEY J
GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 2 SEPTEMBER 1996, AT 10.17 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR P.T. TAYLOR, for the appellant.  (instructed by W.G. McNally & Co)

MR B.H.K. DONOVAN, QC:   May it please the Court, I appear with my learned friend, MR A.M. BLACKMORE, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR JACKSON:   Your Honours should have a copy of our outline of submissions.  Included in it, your Honours, is a statement of facts which increases the length of it somewhat.

DAWSON J:   Yes.  Could you leave us for a few minutes to read it?  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I commence by indicating the places where three things can be found:  first, the indictment, that is at page 1; secondly, the terms of section 327 and 328 of the Crimes Act 1900 are set out in the Court of Appeal’s reasons at page 529; and the third thing is that the appellant’s evidence at the trial of Barbaro commences at page 337 in volume 2.  It was exhibit B at the appellant’s trial.  I mention it specifically, your Honours, because I must say I have found personally that one tends to go into it thinking at first it is part of the evidence at his own trial because it looks the same, but it is an exhibit which commences at page 336.

TOOHEY J:   Mr Jackson, the outline of submissions seem to be rather tighter than the notice of appeal, which speaks of the verdicts being unsafe and unsatisfactory.  Can we take it that that is not an independent ground of appeal?

MR JACKSON:   Your Honour, it is not an independent ground of appeal, except in the sense that we would say if one looks at some or all of the matters of which we complain specifically, then, even if it be that, for example, two or three of them are not made out, but only one is, the result would still be that the trial was unsafe and unsatisfactory, your Honour.  So, it is not a free-standing thing, no.

GAUDRON J:   You are using it synonymously with miscarriage of justice.

MR JACKSON:   Yes, your Honour.

GAUDRON J:   Substantial miscarriage of justice, yes.

MR JACKSON:   Yes, your Honour.

TOOHEY J:   But with the proviso having some possible application or not if we are speaking of miscarriage of justice?

MR JACKSON:   In our submission, it would not have a possible application, your Honour, in this sense:  first of all, if one were talking about the inconsistent verdicts ground, there is no possibility, in our submission, in circumstances of that kind, of the substantial miscarriage of justice proviso having an application because the right result following from that would have been that there should not have been a conviction at all.  So far as the other grounds are concerned, there is, I suppose, the possibility of the question of substantial miscarriage of justice but, your Honour, if the true situation was that in the case of the absence of a direction the jury had not been given the directions they should have on a core issue in the case, the result would be, in our submission, that one could not treat the conviction as good, notwithstanding that, at the very worst for us it would be a case for a new trial.

If one went to the other possibility and that is the question of the approach taken by the Court of Criminal Appeal, the approach taken by the Court of Criminal Appeal, in our submission, was one that was not the correct approach taken by that court to the disposition of the appeal to it and in those circumstances the result would yet be that the conviction would be set aside.  A question would arise then as to the course that should follow from that.

TOOHEY J:   Yes, thank you.

MR JACKSON:   Your Honours, may I move ‑ ‑ ‑

KIRBY J:   Before you do, we have just passed a fact of the matter which I have not really been able to understand.  In relation to the plan, was it the prosecution case that the plan had never been shown to Mr Barbaro at the time of the police interview on 1 April 1990 and that therefore, being kept in reserve, because it undoubtedly carried his fingerprint, that the theory of the defence that the fingerprints had been attached at the time of the interview could not be the case and that, to that extent, the way in which your client elaborated the statement that he remembered it and had pictured it with the farm of his own property, that that indicated dishonesty on his part?

MR JACKSON:   Yes, your Honour, yes.  I should also add one qualification to that, or one additional thing, and it is that the contention that the occasion on which the fingerprints might have got on the document was 1 April, was not the only contention by way of explanation ‑ if I could put it in inverted commas ‑ on behalf of Barbaro’s side in Barbaro’s trial, because there are references ‑ and your Honours will appreciate that, because this is not Barbaro’s trial, one does not have a full transcript of it ‑ in various parts of the evidence in this case and, in part, in the Court of Criminal Appeal, to the fact that an explanation that was being proffered was that Barbaro’s fingerprints may have got on it when helping another man move house, or something on those lines, at an earlier time than 1 April.

KIRBY J:   Yes.  That is touched on, only lightly, in Court of Criminal Appeal, but also touched on only lightly is the matter which you say is the linchpin of your case, and that, if it was the linchpin of your case, it seems a curious thing that redirection was not sought at the trial, or that this did not seem to loom vary large in the Court of Criminal Appeal.  I think they dealt with it under rule 4.

MR JACKSON:   Your Honour, I am not with respect sure that that is correct.  The non-direction point was the subject of an application for re-directions of the trial and your Honour, I will come to the detail of that in a moment, but first indicate what it was that occurred without taking your Honours to the references just at this point.  What happened was, that at the end of the judge’s summing up to the jury the judge invited applications first from our side for re-directions, a number of re-directions was sought, one of them being in relation to the question of mistake and the state of mind necessary to establish an offence under section 327 or under 328, leaving aside intention and 328 cases.

Now, the judge then indicated that he was not prepared to give the direction that was sought, but was prepared to give one and that he drafted one, which was in a sense a paraphrase of the provision and then the obverse of it, in a sense, your Honour, that is a little too complicated to describe very shortly.  That then, when he had delivered that to the jury he asked again whether there were any applications and counsel who was appearing for the appellant said, at that point, that that seemed unsatisfactory because it may itself confuse the jury.  Now, your Honour, there was a further discussion and the result was that the judge then said he was going to withdraw that direction and that direction was then withdrawn, counsel for the appellant saying he thought that was the best course.  Your Honours, in our submission, saying in relation to that, because he had already been refused the larger direction he wanted, and your Honours, so there was an application in relation to the possibility of a mistake on the part of the accused.

KIRBY J:   Well, no doubt this will all become clearer later.

MR JACKSON:   Yes.  Your Honours, may I move first of all to the summary of the facts.  Your Honours, I will endeavour to go through those as briefly as I can.  They commence in paragraph 4 of our outline of submissions.  What your Honours will see is that the appellant was a solicitor who went with his client to be interviewed by police in relation to the discovery of a large cannabis plantation.  He had been contracted earlier that morning by Barbaro’s mother and your Honours, what appears from the several references that immediately follow that, can be summarised broadly speaking in this way, that the Barbaro, who is referred to, is someone commonly called Pat Barbaro.  He was being sought by the police on the Sunday.  The police were also executing a search warrant at his house, Pat Barbaro’s house, but he was away with his parents-in-law and his parents‑in law’s place some 70 miles or so away.

By mistake, the police had, in effect, bailed up and there was a question whether it was bailed up in the traditional sense using a firearm or not.  His brother, Jo, who had some family resemblance to Pat, when he was driving along a road and had taken him to Pat Barbaro’s house.  Jo Barbaro’s utility had been seen by the side of the road empty with no sign of him being there.  His mother contacted the appellant who had acted for her in some, but not all, matters in the past and asked him to help.  He rang the police, he found out what was going on, went to the police where the search was going on, saw where Jo Barbaro was and in the end arranged to have Pat Barbaro brought to the police station, and that is, your Honours, how he got there.

At the police station, he was asked questions about the written lease of the property on which the plantation was found and about the fingerprints in relation to which there were two yellow markers on the document.  Your Honours, in relation to the document, the prosecution case was that it was a document which consisted of two elements, if I could use that neutral expression, one being a lease of the property, the other being the certificate of title.  The certificate of title was the one that had the plan on it.  Each of them was, in effect, three pages.  The Crown case was that only the lease was present on 1 April.  The other document was not through some not very good reason ‑ ‑ ‑

DAWSON J:   Only the lease was present.

MR JACKSON:   The lease was present, the certificate of title was not.

DAWSON J:   Yes.

GAUDRON J:   Was that said to be an original certificate of title or a copy?

MR JACKSON:   Your Honour, the document was, I think, an original certificate of title.  I do not know that that precise issue was ever explored.

KIRBY J:   I think it was a copy.  I think it was a certificate of title and that was the document that was supposed to have the fingerprints on it, the copy CT, but it became separated, as you say, in circumstances that nobody satisfactorily explained and that caused some embarrassment to the police apparently in the evidence.

MR JACKSON:   Yes, your Honour.  Your Honour, the appellant appeared for Barbaro at his committal and then, at the trial, he was instructing counsel ‑ I am referring to paragraph 6 of our submissions, your Honours.  At some stage in the trial, Barbaro suggested that the lease document had not been distinctively pink, pink being caused by ninhydrin testing to test for fingerprints in the document, at the time when he had seen it on the April occasion and, as your Honours will see, at some stage during the trial, counsel asked the appellant his recollection of the colour of the document when he saw it.  It had not been suggested at all he might be a witness until that point.

He said he thought it was not pink as of 1 April.  He was asked to think about it overnight and confirmed his recollection the next day.  Your Honours, in paragraph 6 in the third last line, we have given your Honours a reference to page 518.  Could I add page 517 commencing at about line 35?

Now, your Honours, may I go then to paragraph 7 of our outline of submissions and your Honours will see that Barbaro had given evidence that he saw the lease quite briefly.  May I take your Honours to that for just a moment.  It is at page 329 in volume 2.  This again, your Honours, is part of an exhibit, being part of the transcript of the trial of Barbaro, and at page 329 about lines 26 to 42 your Honours will see the question commencing:

How long did you look at this document for?

And that goes through to about line 42.  Now, your Honours, he refers, of course, to the fact that he handled the lease and in the succeeding parts of that evidence is the evidence to which we have referred in the next couple of lines in paragraph 7.  The references we have there given are the parts extracted by the Court of Criminal Appeal in its reasons for judgment at page 509 and 520.  Your Honours, the appellant was called to give evidence.  That appears at page 520 and your Honours will see at 520 in the Court of Criminal Appeal’s reasons commencing at about line 20 that the court said:

Mr Spencer called the appellant after Barbaro had given his evidence.  The immediate and obvious purpose of the appellant’s evidence was to corroborate Barbaro -

and the three issues are then listed.  Now, your Honours will see at page 521 about line 45 he referred to the fact that Barbaro had handled the lease and he said that the lease had no “red stuff on it” whatsoever.  That is lines 16 to 21 on page 521 and also lines 45 to 50 on page 524.

TOOHEY J:   Now, when you speak of lease, Mr Jackson, there is some potential for ambiguity, is there not ‑ ‑ ‑

MR JACKSON:   Your Honour, there is.  I appreciate that.

TOOHEY J:   ‑ ‑ ‑ because Barbaro spoke or you said Barbaro spoke of handling the lease, but he also spoke, according to your submissions, of the lease or the document comprising more than three pages.

MR JACKSON:   Yes, your Honour.  That is the top of page 520 actually.  So, your Honour, the appellant’s evidence was to the same effect as Barbaro’s in the sense that the document was one that was more than three pages.  Barbaro’s evidence was that it was six or seven pages.  The appellant said, I think - and your Honours will see the reference in the next line in paragraph 7 - that there were four, five or six pages of which one was the plan.  So, your Honour, the lease is only three pages.  I appreciate that.  So what he is saying is he saw a larger document than the three‑page lease.

TOOHEY J:   Yes, although he goes a bit further than that because the appellant speaks expressly of a plan.

MR JACKSON:   Yes.

TOOHEY J:   Did Barbaro speak of or identify anything more than the lease, accepting for the moment he spoke of a document comprising more than three pages?

MR JACKSON:   Your Honour, the answer, I think, is no.  I will check that, but he spoke of a document that was of a number of pages - six or seven, as he said - and he was asked questions about having his fingerprints on the lease and he said words to the effect, “I have never seen it before,” and so on but did not, your Honour, I think, go into the detail of what was in the lease because your Honour will appreciate that what happened was that the appellant, in effect, volunteered the observation about seeing the plan when giving his evidence at Barbaro’s trial.

TOOHEY J:   But subject to later correction, we can take it, can we, that Barbaro’s evidence does not mention a plan on that occasion?

MR JACKSON:   That is so, your Honour, yes.  And, your Honour will see, effectively, Barbaro’s evidence, at page 519 and the top of page 520 ‑ ‑ ‑

KIRBY J:   Where do we find the police evidence that it was just the lease ‑ the three pages?

MR JACKSON:   Your Honour, it comes from a number of witnesses.  The three police officers who were there, whose evidence was quite lengthy, and they were, Dolan, Bellis and Whittaker.

KIRBY J:   The significance was not the differentiation between three pages or six pages; the significance was, how otherwise did the fingerprints get on the last page of the three if they were not there at the interview on the accused’s theory, which was that he had put it on them at the interview.

MR JACKSON:   Yes, your Honour.

KIRBY J:   So, whether there were three or six, or four, five and six, was a significant matter and would have been appreciated at the trial by your client.

MR JACKSON:   Yes.  Now, your Honours, in answer to your Honour Justice Toohey, what I was going to say was this, that your Honours will see at page 519, between lines 15 and 20, that the document is referred to by Barbaro’s counsel as a lease.

TOOHEY J:   As a lease, yes.  So, the most we can get out of that, I suppose, is at the top of page 520, that there were six or seven pages?

MR JACKSON:   Yes, your Honour.  Your Honours, if I could run with paragraph 7 for a moment, the appellant was convinced, or said he was convinced, that his recollection was correct.  Could I take your Honours to page 527, and your Honours will see that, if one reads through page 527, and in particular to the passages at the Court of Criminal Appeal underlined, he stated his firmness of recollection about the matter, and ‑ ‑ ‑

KIRBY J:   What I do not understand is, Barbaro was definitely being shown a document apparently with fingerprints.  The only way you can check fingerprints on a document is by this process.  This process causes red.  How, in these circumstances, can your client be saying it was not red?

MR JACKSON:   Barbaro was being shown a document that had yellow little stickers on it.

KIRBY J:   Which were verified by the person who had applied the red test.

MR JACKSON:   And the police were saying, “This document has your fingerprints on it.”  Now, if it be that the document was one that did not have the pink tinge, then no doubt the view might more readily be taken that what was being shown was that that document did not have fingerprints on.  Maybe it did, maybe it did not, but, your Honour ‑ ‑ ‑

KIRBY J:   It has to be a conspiracy, as the Court of Criminal Appeal suggests, really.

MR JACKSON:   Your Honour, the Court of Criminal Appeal is speaking, towards the end of last year, and the shock, if I could put it that way, with which it described the possibility of a conspiracy amongst police officers to achieve a particular result is a view that might not be held so widely or broadly today by those in New South Wales, your Honour.  But, your Honour will appreciate that what one had was a situation where you have got someone who is the instructing solicitor in a case.  There was absolutely no suggestion that he was going to give evidence in the case.  He was asked what his recollection was and he gave it.  Now, your Honours, what I was going to - - -

DAWSON J:   Indeed, in one sense, that is in favour of what you say because if it did not really assist one way or the other very much it would point to the fact that he was really just giving his recollection.

MR JACKSON:   Yes.  Your Honours, I am going to refer your Honours also to page 523 where, between lines 40 and 50, your Honours will see the Court of Criminal Appeal referring to the fact that he:

was given every opportunity to say.....that he was only doing his best to recall -

and so on, but it was “emphatic that he had not been mistaken”.  I will take your Honours, in just a moment, to the concluding passage of his cross‑examination, where he recognised the possibility that he might, despite his own view of it, be in error.  But may I come to that in just a moment?

Your Honours, moving, if I may then, to paragraph 8 of our submissions.  He was not charged until July 1992 with the four counts of perjury, and your Honours will see, set out in paragraph 9, the two elements that relate to the charges, and those elements are referred to specifically in the counts at page 1.  Now, your Honours, if I could move then to paragraph 10 of our outline.  What your Honours will see is that towards the end of his cross-examination he conceded that he may have been shown a photocopy of the lease on 1 April 1990.  Your Honours will see that referred to by the Court of Criminal Appeal at page 532.

KIRBY J:   The lease itself did not contain a sketch of the - - -

MR JACKSON:   No.  Your Honours, at page 532, lines 10 to 20, your Honours will see that he adhered to his earlier evidence and, your Honours, if one goes then to page 540, there is then the reference to the photocopy.  Now, your Honours, that appears at page 540, lines 50 to 60, and your Honours will see that what was said there was in the:

He must have realised its strength by then.  In the course of his cross examination he said, for the first time, that he had a “gut feeling” that the document that was shown to Barbaro -

was a photocopy.  Then the court went on to say that was a “desperate suggestion”.  Your Honours, I will take your Honours to the passage in a moment.  Could I preface that by saying this - - -

KIRBY J:   I do not think they say it is a “desperate suggestion” though, do they?

MR JACKSON:   Yes, your Honour, line 60.

KIRBY J:   I am sorry, I missed that.  I think the assertion was that it came up as some suggestion that had never been made before and that this rather - it just could not have been so; in fact, it was destructive of your client’s case.

MR JACKSON:   The way in which the Court of Criminal Appeal seems to have used it, your Honour, is in the sense of desperation.

DAWSON J:   That is so.  This was a desperate suggestion.

MR JACKSON:   Yes.  Your Honour, could I say about that, first of all, the Court of Criminal Appeal of course had before it the material that your Honours have, and that is, one has to read the evidence.  We would seek to say two things about it.  The first thing is that if one reads the evidence, it does not really look like that - I will come to that in a moment, your Honours - but the second thing is that, if one looks at what the trial judge thought about it when he referred to it in his summing up, he refers to it of course, but he does not in any way appear to treat it as having produced a dramatic event in the course of the trial.

Could I in that regard, your Honours, take your Honours to where that evidence appears?  It is at page 273 in volume 2.  Your Honours, this is in the cross-examination of the appellant, and you will see commencing at about line 50, he was asked:

And it appeared to be an original lease document, legal type document?

And he says:

Well, I have thought about it and thought about it - my belief was - well, there was a clearish white sort of a document - I haven’t got specifically in my mind a recollection of seeing original handwriting on the lease, I’m not saying it was and I’m not saying it wasn’t, my gut feeling was that it was a photostat copy.

I will not read it out, of course, but if your Honours look through the remainder of page 274, he refers at about line 10 to a sort of:

whiteish/grey but photostats today are so good -

et cetera, and your Honours will see, the passage goes through page 274 and through 275, and I will have to invite your Honours to read page 275 down to the bottom of that page.  May I mention two things specifically about page 275?  The first is between about line 39 and line 44:

this whole incident took place in a matter of five or ten seconds -

very quick:

And the pages were flicked over?

Then the bottom of the page, he is asked:

What is your best recollection now of what you saw -

He says:

I can’t swear it was the original lease document - my gut feeling is I believe it was a photostat copy.  But, equally, I am not a hundred per cent sure of that.  It was a blue document - that’s what stuck in my mind.

Q.  With yellow stickers on it?

The passage really goes down, your Honours, to about line 17.

TOOHEY J:   Mr Jackson, on page 275 at line 15, there is an answer:

That was in relation to colour that I was referring to then and what I refer to now, in that it was this pink stained document.

That is simply a reference to the document in the form in which it was at the time of the trial, is it?

MR JACKSON:   Yes.

TOOHEY J:   It is not, in any sense, casting back to what happened on an earlier occasion?

MR JACKSON:   That is so, your Honour.

TOOHEY J:   Thank you.

MR JACKSON:   Your Honour, as I was going to say, at page 276, there is further cross-examination in relation to this issue which runs over the next several pages but, your Honours, I do not think I need to take your Honours to the detail of that.

GUMMOW J:   There is a reference at 275, Mr Jackson, line 35.  Does that indicate that the appellant’s father had conducted a practice?

MR JACKSON:   Yes.  That appeared from his evidence in-chief, and he had I think been articled to his father, your Honour.

GUMMOW J:   And there had been a practice of typing the lease up rather than using a standard form, by the look of it, is what that suggests.

MR JACKSON:   Yes, your Honour.

GUMMOW J:   Was this lease in a printed standard form, this document; a printed standard form?

MR JACKSON:   Your Honour, I am told the answer is yes, your Honour; it does not appear unfortunately in ‑ ‑ ‑

GUMMOW J:   Are the exhibits in Court?

MR JACKSON:   Unfortunately they are not in the book, your Honour.

DAWSON J:   No, no, but are they in Court?  That is the usual practice.  We will have to look at it ourselves.  Perhaps you can ask your opponents to arrange for the thing to be produced now.  But you go ahead.

MR JACKSON:   Yes, thank you, your Honour.  Your Honours, I was going to go to what was said about this by the trial judge in his summing up to the jury.  That appears at page 448, and what the judge is doing at this point of his summing up is to recount, as it were, the evidence that had been given on the various issues by the appellant, and your Honours will see, for example, if one goes to page 447, about line 20, he is referring to:

Mr McKenzie confirmed that in May 1990 at the committal proceedings the pages he saw struck him as being this beetroot colour.

And then particularly, your Honours, at page 448, about line 14:

He was asked questions about whether it was the original document or a photocopy -

Then your Honours will see the parts extracted about the “gut feeling”, going down to about line 44, and then, your Honours, the passage really goes to line 15 on page 449.

Now, your Honours, the point I would seek to make about that is that the Court of Criminal Appeal described, as your Honours have heard me say already, as it being a desperate endeavour.  One might have thought, with respect, if it had had that effect upon the trial judge one would have thought there would be something a little more alive in the way in which he dealt with it in his summing up to the jury, rather than just putting it in - and I do not mean this in the slightest degree offensively, of course -in a fairly bland way, not indicating that it bore, to his mind, a particular dramatic significance.

TOOHEY J:   It might depend a bit on how the Crown handled it in its final address.

MR JACKSON:   Yes, your Honour, and your Honour it is, in a sense, likely to reflect what the Crown said about it, because what his Honour did was to sum up the submissions on both sides, but he is really, in effect, in the passage to which I referred, summing up what the Crown had said about it.

Now, your Honours, could I move then to what we have in paragraph 12 and may I advert in relation to paragraph 12(a) to one matter I mentioned earlier and that is this:  that it would be wrong to regard the evidence of the appellant at his trial as being, in effect, blind obstinacy, because he did accept the possibility of error, albeit that he did not think that had occurred.  That appears at page 304.

At the top of page 304 ‑ he had been asked on a number of occasions of the possibility of being mistaken, and your Honours will see at the top of that page, lines 1 to 5, he said he did not believe he was mistaken, that goes through to line 10 that he did not believe he was mistaken, and then, that was so, notwithstanding the evidence, in effect, of the police, and then, if one goes to about line 46 on that page, your Honours will see that he answers the question by saying, at line 51:

I can only reiterate what I have said; that I don’t believe that was mistaken.  The evidence which I gave was the honest, one hundred per cent clear of what I saw on that date and that’s where I stand.  Now, if my memory has not served me well, that would be an innocent mistake but I don’t believe that I have made a mistake.

And he was asked again:

Taking into account the evidence that has been given in this trial, do you accept now in the face of that evidence that you may have been mistaken?

And, your Honours will see what he said there, and the passage goes down to line 15 on the same page.

Now, your Honours, if I could then go to paragraph 12 of our submissions and, in particular, to paragraph 12(a).  What your Honours will see is the Court of Criminal Appeal placed reliance upon the fact that the appellant was emphatic that his recollection was correct.  May I take your Honours to the passages in which the Court of Criminal Appeal has referred specifically to that and, your Honours, I will endeavour to do so very briefly.  At page 539, in the passage commencing at line 50 and going through to page 540, about line 29, and your Honours will ‑ if I could just say something about that.  Your Honours, at about line 50, your Honours will see that their Honours say:

It was pointed out to the jury, and emphasised by some of the character witnesses ‑

Your Honours, the judge did not say that.  It was pointed out to the jury by a Mr Morris, QC, who gave evidence; he made an observation to that effect.  It was not something the judge said -

and emphasised by some of the character witnesses, that there is a difference between giving evidence which is untrue ‑

and so on, and your Honours will see particularly at line 55:

The appellant’s problem, however, was that.....he went out of his way to emphasise that he was not mistaken.

And, your Honours, that continues through to ‑ is elaborated upon ‑ line 29 on page 540.  That is the first passage, your Honour.  The second commences further down page 540, line 32.  The short passage:

Even at his own trial the appellant, in his evidence, again appeared to minimise the possibility that he had made some kind of mistake. 

Then, page 545, lines 50 to 55 - - -

KIRBY J:   What was that last reference, I am sorry?

MR JACKSON:   ‑Page 545, your Honour.

KIRBY J:   The one before that?

MR JACKSON:   The one before was 540, lines 32 to 35, just after the first passage, your Honour.

KIRBY J:   Thank you.

MR JACKSON:   At page 545, lines 50 to 55, their Honours said:

The jury, however, were entitled to be struck by the fact that, when giving his evidence at Barbaro’s trial, the appellant not only rejected the possibility that he could not be mistaken, but also explained why he could not be mistaken.

Your Honours, could I just pause to say one thing, that the Court of Criminal Appeal applied this observation to the giving of evidence by the appellant in both courts, in effect, both at Barbaro’s trial and at his own trial, and that is to the emphaticness, if I could put it that way, of his recollection.  Your Honours, at page 547 between lines 35 and 40 and, finally, your Honours, if I could go back one page to page 546 at lines 25 to 30 where the court said:

When a witness, in the course of giving evidence which is later demonstrated to be untrue, asserts, emphatically giving reasons, that he is not mistaken, there is an obvious danger -

and so on.  Now, your Honours, I think I have taken your Honours to the reference in paragraph 12(b) and I shall not go back to that, but may I move then to paragraph 13 of our outline of submissions where we set out a reference to the passage in the Court of Criminal Appeal’s reasons on the question of mistake and that is at the top of page 554 going through to line 40. 

May I then move, your Honours, to the submissions that we wish to make on mistake more directly.  I am referring to paragraph 14.  The case was not one in which no fact was admitted.  As appears from page 370, many of the relevant facts, as one might expect in a case of this kind, were formally admitted and your Honours will see that at page 370 line 39 through to page 371 line 5.

Your Honours, there were, of course, remaining elements, but the statements that had been made by the appellant at Barbaro’s trial were established by the transcript of the evidence, which was admitted to be accurate.  It is clear that there was a body of evidence from police officers and police employees which the jury were entitled to accept on the ground of actual falsity and, thirdly, there was nothing to suggest that what the appellant had said was, for example, inadvertent or something of that kind.

TOOHEY J:   Mr Jackson, on that second point, at some time, and not now, but could you just let us have the references from the Crown witnesses at Barbaro’s trial, not as to the fingerprinting as such, but as to the colouration of the document at the time of that initial interview?  I know you do make some reference to it, but it is a rather compendious reference, I think.

MR JACKSON:   Well, your Honour, the reason why it is compendious is because there are lot of references and it is not a point that we would put in issue.

TOOHEY J:   Well, perhaps that is enough for my purposes.  You have got to accept that there was a body of police evidence that the document produced to Barbaro was coloured pink at the time of its production.

MR JACKSON:   Your Honour, that is why we have put it in the way in which I think we have in paragraph 14(b).  There was a body of evidence which a jury was entitled to accept, that the original document - that the document shown was the lease document, not that it did not include the plan, and that the document shown had some pink or red staining.

TOOHEY J:   Was that evidence led by the Crown as to colouration, or discolouration, only from police officers who were present at that initial interview, or was there evidence from other police officers that that was the condition of the document before the date of the interview?

MR JACKSON:   Both, your Honour.  The police officers who were present at the interview gave evidence to that effect, and there were some other police officers, or a police analyst who was not a police officer, who spoke about what had happened to the document, and there was evidence on which the jury might find from them as well that the treatment by ninhydrin had occurred in January and that, in consequence of that, the document would be expected to have some kind of pink tinge.  Your Honour, I should say there were differing views about what it might actually look like, or did look like; differing colours and whether there was uniformity, whether the fingerprints would stand out and so on.  But, having said all that, one accepts that there was evidence from which the jury could find in respect of the charge that the two matters were - actual incorrectness, or falsity, was established - could have been established.

TOOHEY J:   I ask that question because in the relevant particulars in the indictment in that respect - that he said that the document produced - and these are my words - but now I go to the indictment:

did not contain any pink or red staining, whereas on that occasion it did contain pink or red staining.

So, that was really the charge he had to meet, apart from the question of the plan.

MR JACKSON:   Yes, there were two, that is right.  Your Honour, I think I said that Whittaker was one of the people at the interview.  I am sorry, he was in the town but not at the interview, and there was some debate about the degrees of discolouration.

TOOHEY J:   But at any rate, that body of evidence extended to witnesses other than the police witnesses who were present at the interview?

MR JACKSON:   Yes, your Honour, inferences might have been drawn from it by the jury - I am sorry, your Honour, from that other end.  Your Honour, what I am trying to say is this, that if one accepted the police evidence, the evidence of the police officers who were at the interview, then that element of each of the charges was something that, on that evidence, the jury was entitled to convict.

TOOHEY J:   Not as a matter of inference, but because there was direct evidence about ‑ ‑ ‑

MR JACKSON:   Yes, your Honour, but what I was also trying to say was that there was evidence from some other people who were not at the interview from which the inference might be drawn that the documents satisfied each of the two conditions referred to in the indictments.

TOOHEY J:   Why would that be a matter of inference?  Why would it not be direct evidence?

MR JACKSON:   Your Honour, only in the sense that they were not actually there on 1 April.

TOOHEY J:   No.  If they said, for instance, that on the day preceding the interview that document was red covered, then that is direct evidence, you do not draw any inference.

MR JACKSON:   Your Honour, there was some evidence that the effect of ninhydrin can fade.  In the particular example your Honour put to me, what your Honour said is no doubt right, it fade or increase.

KIRBY J:   I think the evidence was that the test had been conducted on 10 January 1990.  That was, therefore, some four or five months before the interview which was on 1 April, and that the fading really takes place from a quite a deep colour over a period of a year and the inference from that was that, therefore, at least by the time of the interview, the colour would have been unmistakable.

MR JACKSON:   Your Honour, the coin had another side and that was that sometimes the full effect of it, for example, in demonstrating the existence of fingerprints, might possibly itself take months to occur.

KIRBY J:   Yes, but by two or three months later there would still be strong colouration.  The months have not passed in time to allow it to fade such that an experienced document examiner or solicitor would not have noticed colour and had been so emphatic about non-colour.

MR JACKSON:   Your Honour, I suppose it depends on the degree.  I mean, one is talking about containing pink or red staining, that was the nature of the charge.

KIRBY J:   I thought I saw something that the suggestion is that when it is first done, it has the colour of beetroot.

MR JACKSON:   Your Honour, there was some evidence, of course, that the more handling of it after the application of ninhydrin can increase the colour.  It is not necessarily a matter of coming out of the process like white clothes that had been washed with the dye and ‑ ‑ ‑

TOOHEY J:   I am trying to focus on the indictment, because the indictment is, “did not contain any pink or red staining”.  It is in that respect that he is said to have given false evidence.

MR JACKSON:   Your Honour, I understand that.  All I am trying to say is that we accept that there was evidence on which the jury could so find.

KIRBY J:   You are clearing the tracks at this stage, as I understand it.  You are saying the evidence got in and there was evidence on which the central question is deliberate falsity and the intention to get him up into the second section, the inconsistency between the ‑ ‑ ‑

MR JACKSON:   Yes, and really what I am seeking to do is to say that, if one looks at paragraph 14, many of the facts were admitted, many of the matters were admitted.  In relation to a number of the critical elements, the jury was entitled to find there was actual falsity, but then we say, your Honours, as we say in paragraph 15, that once you get to the view that the evidence that he gave at the trial was in fact false, the decisive issue was whether he had known it was false or had not believed it to be true and that issue was really the, and likely to be, the core issue.  Your Honours, in that regard the case was a little unusual perhaps in relation to perjury cases because there was not any direct evidence adverse to him, for example, an admission made to somebody else that the evidence had been known to be untrue.

Your Honours, I should also say that so far as any evidence was concerned on the issue, the evidence of Spencer, who was the barrister, really supported the appellant - your Honours will see his evidence at pages 306 to 315 - and it was unchallenged and his evidence was to the effect, of course, that there had not been any intention to call him in the first place and then he listed the circumstances that led to him giving the evidence.

KIRBY J:   The Court of Criminal Appeal three times says that that redounds to your client’s advantage.  They acknowledge that.

MR JACKSON:   Your Honour, what it does mean, of course, is that one does arrive at a situation where there is no other evidence to show that he was not telling what he believed to be the truth.  The evidence that the circumstances suggests are circumstances in which one would expect him to be telling what he believed to be the truth, so that for the jury to arrive at the conclusion at which they did, they really had to actively disbelieve him and, your Honours, that is where we say, as we do in paragraph 16, that critical to the resolution of that issue was whether his evidence, though he had given it confidently, dogmatically, if one likes, was given honestly, albeit mistakenly.

Your Honours, may we say, as we seek to in paragraph 17, that a person who gives evidence confidently and dogmatically, if I could use that expression, in relation to past events may or may not be intending to tell the truth and may or may not have a perfect recollection of what went on, but the confidence and dogmatism, in our submission, as such does not reflect dishonesty.  It may be the product of dishonesty, but that is a different thing.

TOOHEY J:   When you move into that area though, where are you taking us?  You seem to be taking us into the area of unsafe and unsatisfactory verdict or is this simply a prelude to saying that the trial judge erred in failing to point out these matters or to point them out adequately to the jury?

MR JACKSON:   Well, I am saying, first of all, your Honour, that in the Court of Criminal Appeal, when the Court of Criminal Appeal was dealing with the appeal, the approach that that court took was one that involved applying to the case a test whereby it said that the jury were entitled to take into account as going to dishonesty the fact that he had given his evidence in both courts emphatically, dogmatically and so on and, your Honours, that is what we submit is the error in that court.  That has the result that the appeal has not been dealt with properly, in our submission.  That is the first stage.

The second stage then, your Honours, is this, that we would submit if one does look at the appeal, what the Court of Criminal Appeal should have proceeded to do was to say, could one, in the light of the absence of any relevant direction on this issue, have taken the view that the verdict is one which is - I am sorry, I am putting it the wrong way - the verdict would then be one that be regarded as unsafe and unsatisfactory, particularly if, as we would submit, one then comes to add on the question of the consistency of the two verdicts.

TOOHEY J:   But are you speaking at this point of the judge’s direction to the jury?  Are you complaining of the direction in that respect?

DAWSON J:   I would have thought you were ‑ ‑ ‑

MR JACKSON:   Well I am, your Honour, yes I am.

DAWSON J: - - - because really what you saying is, it is against this - well I do not know whether this is what you are saying or not but I would have thought that is what you would have said - background that the question of mistake becomes crucial and the judge was asked to give a redirection and he did on this question; it was unsatisfactory and he withdrew it and that left the jury with no direction at all, and in that situation they were not assisted by redirection.  That I thought was what Justice Toohey was asking you.

TOOHEY J:   Well, in effect it was, because you seem to be placing the emphasis on the way in which the Court of Criminal Appeal dealt with this aspect.  I understand that it is a step in arguing that the appeal should be allowed, but I am not clear as to whether you were saying that the trial judge erred in his directions and if he did, well, that is a matter for us to take into account.

MR JACKSON:   Your Honour, I am coming to that.  What I am seeking to do is to say this, that if you look at the way in which the Court of Criminal Appeal dealt with it, the Court of Criminal Appeal applied a test on this issue, first of all, which, so far as its consideration of it, was incorrect.  One moves from that to see how the Court of Criminal Appeal dealt with the directions question and the court’s view on that, in our submission, must necessarily have been affected by the view it took on this issue.  But, in any event, what we would say, your Honours, if one looks at the directions that should have been given by the judge to the jury, they should have included something along the lines that we are now dealing with.

TOOHEY J:   Yes.  I understand that.

KIRBY J:   What I would like some help on is, once the judge had given the direction and then withdrawn it, the complaint then is that the jury were not given proper legal directions on how they should approach the matter, because there was just nothing then, but is it not the duty of counsel, who in this case was experienced counsel, to then ask for a further redirection and if he does not, is that not a problem under rule 4?

MR JACKSON:   Your Honour, could I say this, first of all, and I am going to come to this in just a moment, but the position ‑ ‑ ‑

KIRBY J:   Well you take it in your time.  It is a matter that I foreshadowed earlier that worries me.

MR JACKSON:   Yes.  Your Honour, can I just say about it now, and I will come to the detail of it shortly, it is not as if one is dealing with a case where counsel has not asked for a direction at all.  A direction was asked for; that direction was refused; a narrow direction given; counsel complained about it; the judge said it is really very hard, in a sense too hard, and just working out what he might do and counsel says, “Well you are better off doing nothing more”.  Now, your Honour, rule 4 - I will give your Honours a copy of it in just a moment - of course, is an absolute bar.

KIRBY J:   You say that counsel already signalled his dissatisfaction and was put in the difficult situation that he did not want to recanvass the judge’s earlier directions?

MR JACKSON:   Your Honour could imagine a difficult situation:  you have got a jury that has been hearing a long case.  It is obviously an issue that the judge is finding of some difficulty.  The judge already has given a direction to the jury that he is going to withdraw, and one can imagine, looking at it from the point of view of counsel appearing for the accused at the trial, what are you going to do?  Have another go; try to rewrite it - I do not mean this offensively, of course - for the judge, or make a submission about what should happen, and the judge is going to end up then with the direction that he may not want to give, may chop off part of it, one does not know; it is just a very difficult situation, your Honours.  It is not as if it is the first application for redirections at this point.

KIRBY J:   I do not really see what the big difficulty was.  Justice Dawson, in the special leave application, said in three sentences what really could have been said and should have been said.

MR JACKSON:   I would not disagree with your Honour, but what ‑ ‑ ‑

DAWSON J:   But the big difficulty was, would the trial judge say that if the matter were persisted in?

MR JACKSON:   Yes.

GAUDRON J:   Particularly having got it wrong once.

MR JACKSON:   Yes, your Honour, yes.  The judge seemed to find it of great difficulty, and one can well imagine, in our submission, counsel saying, “Well look, I’ve asked your Honour twice ‑ ‑ ‑

KIRBY J:   Perhaps Mr Toomey was making life a little difficult for the judge.

MR JACKSON:   Your Honour, it does not really look like it.‑ I would not doubt Mr Toomey’s capacity to do that in an appropriate case but, he seems not to have been engaged on an exercise of that kind at the time. 

Your Honours, I think I was talking about paragraph 17 of our submissions.  The Court of Criminal Appeal does seem to have recognised, in parts of its reasons, that confidence of recollection does not militate against honesty.  Can I give your Honours the two references there:  first, at page 546, line 25 to 30, and I have taken your Honours to that passage before, I think, but the court deals with it a little more fully a few pages earlier, at page 532, and what your Honours will see is, lines 35 to 45:

One only needs to reflect upon the warnings which judges customarily give juries about the dangers of identification evidence to understand that point.  Juries are routinely told that the most honest and confident of witnesses have often been proved to be wrong on matters of identification.

Now, your Honours, one can see the position in relation to questions of identification and, if I can give your Honours two references, very briefly: the first, Victorian decision of Reg v Dickson (1983) VR 227, in particular at page 231 the Full Court, commencing at line 24 on that page, going through the remainder of that paragraph ‑ and this deals with identification, of course, but some of the observations made there are germane to the present case and, in particular, your Honours, I would refer to, about line 29, speaking of jurors being:

unlikely to be aware of the extent of the risk that honest and convincing witnesses may be mistaken, especially where their opportunities for observing a previously unknown offender were limited.

And then that is dealt with a little further through the next sentence.  The danger of identification was adverted to by six Justices of the Court in Domican v The Queen (1992) 173 CLR 555, in the last paragraph on page 561, going through to the ‑ ‑ ‑

KIRBY J:   This is often cited, this decision, for many purposes.

MR JACKSON:- - - going through to the end of that paragraph, about point 3 on page 562.  Your Honours, the point we would seek to make, ultimately, is that to which we refer in paragraph 18, and that is that the Court of Criminal Appeal erred in taking the view that confidence and dogmatism entitle a jury to infer that the witness is not telling the truth.

The Court of Criminal Appeal’s reasons on this question seem to adopt two somewhat inconsistent approaches, one being that which we have extracted in that quotation in paragraph 18, but the other being that referred to in the various passages to which we have referred in paragraph 12(a); namely to the effect that the confidence and dogmatism can be relied on by the jury on the relevant issue.

KIRBY J:   But could it not be said that with a solicitor who has experience with courts, has had long practice, knows how without any dishonesty memories can fade, nonetheless obdurately and definitely sticks to his assertions, can that not be said to cast at least - or to be evidence that a jury can take into account as suggesting that he is not searching his mind for the best that he can recall, but is sticking up for his client?

MR JACKSON:   Well, your Honour, one has to bear in mind, of course, that the jury did not find that last element, because the two charges - - -

KIRBY J:   Well, delete that, and that he is giving evidence that is knowingly false - deliberately false.

MR JACKSON:   You Honour, in a case that - the name of which now eludes me, but it was a decision of a Queensland Full Court in, I think, the 1930s - Sir Austin Philp ventured the view that no one is obliged to believe a fact to be so because a police officer, for example, says it is so, and, your Honour, there is no particular reason, we would submit, why a person who is giving evidence in proceedings, be it a solicitor or not, is obliged to tailor recollection to the evidence given by others.  No doubt as various parts were put to the appellant in the particular case - various parts of the evidence of other witnesses and the weight of other witnesses on these issues was put to him - but, as he said, “I recognise the possibility that I’m wrong.  No one is infallible, but this is what I believe to have been the case.”

KIRBY J:   Are you saying it as high as to suggest that it cannot be taken into account - that repeated affirmative statements cannot be taken into account?

MR JACKSON:   Well, your Honour, what I am seeking to say is - well, the answer to that is yes, but I put it in a particular way, your Honour.  What I am seeking to say is this; that no doubt the expression of repeated statements that something was a particular fact can be, if I can use the expression again, the product of dishonesty, but they themselves, as such, do not reflect dishonesty, and that the issue for the jury is the question whether they are the product of dishonesty, as distinct from being the fact they are made may indicate dishonesty.

But, your Honours, if I could then move to our paragraph 19 and it is this, that this was, in our submission, a really critical issue, and it was an issue on which the jury should have been warned about the dangers of relying on evidence given confidently as a basis for finding dishonesty.  Your Honours, the Court of Criminal Appeal’s comments at page 532, lines 35 to 45, to which I think I last directed - almost last directed your Honours ‑
 really reflect that notion themselves.  What we would submit is that, if one looks at the actual directions that were given by the trial judge in the particular case, they were given, first of all, in the most general terms. 

Your Honours, I am happy to take your Honours one by one, if necessary, to the various directions that are set out there, but, in our submission, they were directions which do not touch, in any substantive way, the particular issue.  Can I just give your Honours one example?  If your Honour goes to the first of them, page 354, commencing at about line 15 and going to page 355, line 37, what your Honours will see is that his Honour gives directions dealing with the - which, if I can put it this way ‑ in effect, the usual directions about witnesses and, your Honours, one sees similar things, getting closer of course to the nature of a particular charge, in the various references that we have given in paragraph 20.

Your Honours, as I said, I am happy to take your Honours to any of those if your Honours want to go to them, but we would simply refer to them as illustrating the proposition that we have in paragraph 20.  Your Honours, could I say then that the trial judge, of course, was in fact asked by counsel to give a further direction on mistake.  Your Honours will see that at page - it commences at page 480.  The invitation to ask for redirections is on the preceding page about line 15.  Your Honours will see various matters referred to, including the ninhydrin and so on at line 20.  Then at the bottom of page 480, line 55, your Honours will see Mr Toomey’s request:

to point out to the jury that for a mistake of fact to negative mens rea, it is not necessary that it be a reasonable mistake.  It is a question whether it is genuine, not whether it is reasonable.

Then at the top of the next page:

It goes to the jury’s consideration of whether the Crown has established knowing falsehood.

Your Honours, I will not read out the passage.  It goes through to line 40 on page 481.  Your Honours will see between, for example, lines 25 and 40, the discussion of what the jury have to find and, in particular, the judge saying about line 28 to 30:

is it necessary for me to say anything about mistake?

Your Honours, one then goes from there to page 483, where counsel for the Crown was then asked by the judge about this issue, and that is at about line 22 through to line 30, the judge says:

On the next matter it seems to me that if it is plain to the jury that what they have to be satisfied of is actual knowledge.....that mistake of fact does not really ‑ ‑ ‑

and then your Honours will see the answer that is given.  The judge in fact gave a redirection, which is at page 486, lines 20 to 41.  As your Honours heard, in the end he withdrew it and what led to that, your Honours, commences at page 487, about line 55, where Mr Toomey says:

There are some further matters which have arisen -

Then one goes from there to page 488, and at line 41, Mr Toomey says:

I had a little difficulty with your Honour’s direction on the question of falsehood.  With great respect, I lost it.

Then your Honours will see the passage going from page 488, about line 42, through to line 45 on page 489 where the discussion takes place, and you will see particularly, your Honours, line 38 to 42.

GUMMOW J:   What does the statement on 489, line 17, mean, “I didn’t draft this, obviously”.

MR JACKSON:   Your Honour, I just do not know, I am sorry.

GAUDRON J:   “Speaking” perhaps suggests he was ad libbing.

MR JACKSON:   Yes, I am sorry, your Honour, that is obviously what it does mean, yes.  Now, your Honours, from there one goes to page 490 about line 8 and what your Honour Justice Gaudron just put to me is really supported by what now appears on page 490 about line 12.  He had the direction typed out and that goes through to line 45 and he says:

I am wondering whether I should not simply withdraw it.

TOOMEY:   I would be content with that.

HIS HONOUR:   I think I should reconfirm that an element of the offences charged is actual knowledge or did not believe.

And that goes through, your Honours, to the bottom of that page and over to about line 13 on the top of page 491.  Finally, your Honours, page 491 line 40 the jury is back in the courtroom and so his Honour then at line 40 through to page 492 line 14 directs them to disregard the directions.  So, your Honours, the short fact was on what was, in our submission, ultimately the central issue on these two counts, the jury were left with no directions dealing with this issue other than directions in the broadest form, saying that they had to be satisfied beyond reasonable doubt of the various elements of the offence which had been referred to in the earlier submissions.

KIRBY J:   Having read all that now to us very correctly, my concern about the statement “I would be content with that” is a little enlarged by the fact that Mr Toomey then went on to say that it would be sufficient if the judge reconfirmed the element of the offences as actual knowledge.

MR JACKSON:   Your Honour, one has to bear in mind that what the judge is proposing is that he is going to withdraw the direction that he has given.

KIRBY J:   I know the logic of it, but one matter that concerns courts of criminal appeal throughout Australia is that trials are run in a particular way and in particular circumstances and atmosphere and then new counsel come and see points and raise points that were not significant at the trial and here we have an affirmation by experienced counsel leading for your client that he would be content if that is the way the judge approached it.

MR JACKSON:   Well, there are degrees of contentment, of course, and I do not mean that facetiously at all, but what one does have to bear in mind is that if one deals with this with the immediate thing he is responding to, the judge has given a direction to which he has, in effect, objected, saying this would mislead the jury.  The next thing that happens, your Honour, is that the judge says, “Well, I think the best thing is that I will withdraw that direction.”  And he says, “Well, I will be content with that.”  But if that is going to be withdrawn, your Honour, one can well understand him saying that he agrees with the judge saying:

I think I should reconfirm that an element of the offences charged is actual knowledge or did not believe.

Your Honour, one does have to bear in mind that this was not really a new issue.  It started some pages before and the whole thing got to the position it was in because the judge was not prepared to give a wider direction.

KIRBY J:   How does this square with what was held in Domican, because there it was held that there were elements in the identification evidence that required a stronger direction, and in the Court of Criminal Appeal it had been held, well, notwithstanding that that there were such powerful other evidence, that it was not unsafe or unsatisfactory that this Court said, “Because we can’t known on what basis the jury determines the matter, it must be assumed they obeyed the judicial instruction and, if the instruction is inadequate, then that could be the foundation for the guilty verdict”.

MR DONOVAN:   These things are never closed, and I understand that to start off with.  What Domican says is that you have - as other cases - certain absolute directions which apply in every case, and you have factual-type directions which will apply in some cases; but you have to look at the context.  How can I answer that other than saying that?  One can debate, in the context of this, whether it should or should not have been there.  I kind of thought I had lost that point.  But if it is still open, I will keep pushing it, your Honour.

KIRBY J:   Do not let me encourage you.

MR DONOVAN:   All right.  I have made the point about it.  That is as far as I can take that particular point.

TOOHEY J:   Could I just ask you this, Mr Donovan?  In the course of final address, did counsel for the defence put to the jury the possibility of a mistake and, on the other hand, did the Crown put to the jury the impossibility of a mistake?

MR DONOVAN:   Could I check that with Mr Blackmore, who was actually at the trial?

TOOHEY J:   Yes.  Well, you can do it when it is convenient.

MR DONOVAN:   Well, I can do it now, if that is - - -

TOOHEY J:   Unless you are winding up.

MR DONOVAN:   I am getting very close, but perhaps I should do it now.  All I want to do after this is just quickly refer your Honours to the written submissions because I really have nearly completed.  Mr Blackmore’s best recollection is he does not remember whether it was referred to by the Crown.  He does not recall it being raised by Mr Toomey, but he is not sure, other than in this sense:  Mr Lynton Morris QC gave character evidence on behalf of the appellant. 

I do not think that evidence is in the appeal book.  But as part of that evidence, one of the things he said was, “Even dogmatic, confident people can be mistaken” or words to that effect.  If necessary, I can get the exact piece of transcript.                  During his address, Mr Toomey did make reference to that evidence. I am unable to say whether he simply made reference to it in the context of Mr Morris, or whether he took it further.

TOOHEY J:   Is there a transcript of counsel’s address?

MR DONOVAN:   No, there is not, I am sorry, no.

KIRBY J:   I think we should have that, because their Honours in the Court of Criminal Appeal also refer to that fact.

MR DONOVAN:   I can certainly give your Honour the transcript of the evidence.

KIRBY J:   It does suggest that an issue was presented by the very calling of him, and maybe by the questioning of him, that was trying to deal with the very issue that is now before us; namely, the repeated assertion.  My recollection of psychology is that if you are convinced, then you become more and more convinced.  It is a nature of human conviction and perception to reinforce your belief, because the mind repels the notion that you are wrong and, therefore, it seeks to find foundation and support, not dishonestly, simply - that is the problem with identity evidence.

MR DONOVAN:   None of us like to be wrong.

KIRBY J:   Yes, exactly.

TOOHEY J:   On what basis are we leaving this, Mr Donovan, that as a matter of final address neither side referred to the possibility or impossibility of a mistake?  Is that how we should approach the matter?

MR DONOVAN:   That is as far as I can take it.  If there is something further that my learned friend can add to this, I am certainly flexible on it, but that is as far as I can take it, yes.  Your Honours, I have set out in the pages that follow a number of points such as the stickers over the fingerprints, the claim that he did not understand why he was giving evidence at Barbaro’s trial, did not understand the relevance of his evidence, those types of things.  I do not propose to go through those, but they do appear at paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13.

There are matters there other than the matters that I have read from the transcript, but rather than take up the Court’s time I am quite prepared to leave it as it is there rather than go back to the transcript and take your Honours to particular passages.  Could I just draw attention to paragraph 17 on page 8 of the written submissions and your Honours will see there that there was some difference of evidence between the appellant and Mr Spencer about when he was first asked to turn his mind to giving evidence. 

Paragraph 18 sets out part of the way we attempt to pull these various things together by way of argument and then paragraphs 20 and 21 make reference to M v The Queen and Meissner v The Queen with some passages from the relevant judgments set out there.  I do not propose to read those to your Honours.  They are the submissions we would wish to make, your Honours.

KIRBY J:   Could I just ask you:  you will in answer to Justice Toohey’s question make available to us the transcript of Mr Morris?

MR DONOVAN:   Yes.  I am not sure we have it with us, but if we do not we will have it faxed as soon as we return.

KIRBY J:   It may be the appellant has that available.  It would be handy to have that.

MR DONOVAN:   If we do not, we would certainly fax it.

KIRBY J:   Secondly, was an application for bail made pending appeal in this case?

MR DONOVAN:   I cannot answer that, your Honour, whether an application was made or not.  Perhaps Mr Jackson might be able to help.

KIRBY J:   It cannot be repaired, but I was just interested to know whether it was sought and refused.

MR DONOVAN:   I just do not know the answer to that.

TOOHEY J:   Mr Donovan, so far as Mr Morris’ evidence is concerned, Justice Kirby may have a particular view of that evidence, but just in answer to the question I had earlier asked which prompted the reference to Mr Morris, I take it it is not being said by you, or by Mr Jackson for that matter, that Mr Morris’ evidence was in any way used as a foundation for some sort of address on the question of mistake.

MR DONOVAN:   As I understand it, no, that is our position.  It is always subject ‑ ‑ ‑

DAWSON J:   I thought you said that reference was made to it in addresses.

MR DONOVAN:   I am sorry.  I thought Justice Toohey asked me whether it was used in the address as a foundation for mistake.

TOOHEY J:   That is right.

DAWSON J:   He was, but it was used.  It is just that I do not see how else it could be used.

MR DONOVAN:   Well, perhaps that is right; it might be a matter of interpretation.  Perhaps I interpreted it wrongly.

KIRBY J:   It may be that Mr Morris might have - - -

TOOHEY J:   You would not know unless you have seen what the evidence was.

MR DONOVAN.   Yes.

TOOHEY J:   It would be a curious use of character evidence.

MR DONOVAN:   Could I attempt to take this comfort from it, that it was, before the jury as evidence.  There was no cross-examination to suggest that what was said was wrong, so clearly they had information in their minds that an honest mistake would be sufficient to lead to an acquittal.  On that question of the bail, I am just informed that there was a bail application made after the trial.  I do not know whether there was any bail application made after the Court of Criminal Appeal, but from the fact of what happened I assume that that bail application was unsuccessful.  It was unsuccessful.

DAWSON J:   Thank you, Mr Donovan.  Mr Jackson.

MR JACKSON:   Your Honour, I have just been handed Mr Morris’ evidence and we give your Honours copies of that.  That is the first thing.  The second thing is that our understanding of the use that was made of Mr Morris’ evidence, in the address on behalf of the Crown at the trial, was that something to this effect was said, and I am quoting from a document that is an affidavit that was filed in the Court of Criminal Appeal, deposing to what the address had been, where it was said:

I am not being critical of Mr Morris, but a part of his evidence was not evidence, but an argument on behalf of MacKenzie.  That is understandable.

Then the relevant passage is referred to.  And then what is gone on to say then is that:

As a general proposition, you might think that has merit.  Look at the circumstances of the case.  This is an individual, MacKenzie, who is before you can see that perhaps he was mistaken, but on the issue on which he was called in Albury -

that is Barbaro’s trial -

there was no belief he was mistaken.  MacKenzie was not stupid or obstinate, and a talented and able a legal practitioner.  He recognised the theoretical possibility he was mistaken, but he would not make a concession at his own trial because to do so is the first step along the path to admitting that what he told the court in Albury was false.

And your Honours, that has developed to say:

I suggest an honest man with no obligation to anybody other than the court and his client might concede he was mistaken -

and, your Honour, that goes on a little further, but certainly the issue of mistake seems clearly to have been raised as part of the Crown case.

KIRBY J:   What is that that you just read?

MR JACKSON:   Your Honour, what I am reading from is a document.  It is an affidavit of Mr Sean Clement McNally affirmed on 28 August 1995 which was filed in the Court of Criminal Appeal in Sydney and, your Honour, I am not entirely sure the extent to which it was used, but it was material filed in the Court of Criminal Appeal and it contains typed notes made by Mr McNally of the Crown address to the jury at the trial of the appellant.

DAWSON J:   It was before the Court of Criminal Appeal?

MR JACKSON:   Your Honour, that is the one element I am not sure ‑ ‑ ‑

GUMMOW J:   You are not sure whether it was read.

MR JACKSON:   I am not sure whether it was actually read before the Court of Criminal Appeal, and I think I can hear an answer saying “no”, but your Honours were asking what material is there that demonstrates what took place, and we have an affidavit deposing to what was said by the Crown Prosecutor.  It is clear the issue was raised by him.  I was going to say, your Honours, that it seems apparent enough that the issue also was one that was, obviously enough, before the Court and raised by our side because your Honours will recall is that as soon as the summing up was concluded and there was the application for redirections, one of the things that was said in the application for redirections, your Honours, was - if I could just take your Honours to one paragraph, the part your Honours have gone to already.  That is at page 481.  Your Honours will see between lines 15 and 25, Mr Toomey at line 20 says:

If we have failed to convince the jury on the first leg - that is, falsity - then our defence is that the accused did not know it to be false.  It is then available to us to say -

and so on.  Your Honours will appreciate what is happening then is the judge has asked do the parties want redirections, and it is immediately following the summing up, and what Mr Toomey is saying, “Well, our case really has two parts, falsity the one.  If we fail on that, then the other.”

Your Honours, if I could just go very briefly in the same connection to the summing up, your Honours will see at page 466, which is a page in advance of the ones at which our learned friends started, dealing with that part of the summing up in which his Honour starts to summarise the submissions made by Mr Toomey, and he commences that at line 25 on 466 but, relevantly, at line 35, your Honours will see the passage going through the remainder of that page and going through to page 467, about line 20.  After the discussion about motive, I would refer particularly to page 467, about line 15, where he says:

It was put to you that you would think his motive for giving evidence in 1991 was that he believed that what he was going to say was true ‑

So, the issue of belief is one that is mentioned, not just mentioned there, but elsewhere also.  Could I refer your Honours to page 478, lines 15 to 34, “even if there was staining”, then down to about line 27:

you would not think that when Mr MacKenzie gave evidence in October 1991 he knew that his evidence.....was false.

TOOHEY J:   It is a fairly oblique way of referring to a mistake.  The only person who seems to have used the word “mistake” in the whole of this is the trial judge in his discussion with counsel.  I am not saying that the notion of mistake is not embraced in the sort of language that was used.  All I am saying is that the word itself seems to have been used only by the trial judge in that discussion.

MR JACKSON:   No, at page 480 line 57.

TOOHEY J:   Yes, I beg your pardon.

MR JACKSON:   Also, could I just say that the - and this is the thing I was going to come to next - was that there had been a great deal of evidence in which the proposition was being put to the appellant that there was a mistake, and the expression “mistake” was used.  Could I refer your Honours to page 445 in that regard.  I use this purely by way of example because the judge there has extracted, about the middle of the page:

my belief is that I have not made a mistake.

That is just one of many references to the term.  Could I invite your Honours also to look the four or five lines of the text above that, commencing about line 21, where he says:

Mr McKenzie told you that the evidence which he gave at Barbaro’s trial he believed to be one hundred per cent accurate and he still believes that -

And towards the bottom of the page, also, your Honours.

Finally, the summary of the elements of the offence given by the trial judge to the jury at page 373.  If one goes to page 372 at the bottom of the page you will see the fourth element referred to - knowingly false or lack of belief they are untrue.  Then there is the reference to the fifth element being intention in the section 328 charges.  Then at the bottom of page 373 his Honour goes on to say:

The Crown does not have any direct evidence -

et cetera.  In a passage which goes through to about line 22 his Honour says:

the Crown asks you to infer from facts which the Crown says it has proved that the accused when giving evidence.....made each kind of statement charged, deliberately, knowing the statement to be false -

et cetera.  Your Honours, we would submit the issue was one which was raised at the trial, and arose on both cases.

There is only one other thing I wish to do, I think, and it is this:  I wonder if I could give your Honours copies, in response to something your Honour Justice Toohey raised this morning - a copy of a handwritten document which extracts some, but not all, the references to places where

Crown witnesses gave evidence concerning the colour of the lease on 1 April.

TOOHEY J:   Thank you, Mr Jackson.

MR JACKSON:   There is nothing else, your Honours.

DAWSON J:   Thank you, Mr Jackson.  The Court will consider its decision and adjourn until 9.30 am tomorrow.

AT 3.13 PM THE MATTER WAS ADJOURNED