Mallard v The Queen
[2005] HCATrans 682
[2005] HCATrans 682
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P77 of 2004
B e t w e e n -
ANDREW MARK MALLARD
Appellant
and
THE QUEEN
Respondent
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 7 SEPTEMBER 2005, AT 10.19 AM
(Continued from 6/9/05)
Copyright in the High Court of Australia
GUMMOW J: Yes, Mr Walker.
MR WALKER: May it please your Honours. Your Honours, I am about to embark on tracking through each of the matters particularised as undisclosed exculpatory material in the notice of appeal in this Court. They are items (a) to (g) to which my learned friend referred in his address yesterday. The purpose of doing so is, I hope, not to repeat matters sufficiently set out in writing but to attempt to persuade the Court that in each case the material is such that it does not satisfy either of the two tests which we argue in the alternative need to be satisfied before a conviction is overturned upon a non-disclosure of the kind demonstrated in this case.
I do not wish to repeat what I said yesterday about the fact that there will be matters of gravity or degree which may cause a change in kind between non-disclosures of the kind which this Court considered in Grey and non-disclosures of another kind not before the Court in this case which would so undermine fair trial values as to render consideration of the proviso inappropriate.
Now, the two tests are, first, the proviso upon which I addressed yesterday and, second, the alternative formulation for so-called fresh evidence which looks to what has been variously described as the likelihood or significant possibility of a different result having been achieved, considered by this Court in Lawless, also a non-disclosure case. In our written submissions we have put an argument, to which our learned friends have responded in writing, to the effect that it is the test in Lawless which ought to be preferred by this Court, it not having been overturned by this Court in Grey.
There is not much I can say further than I said yesterday or in writing about the possibility of reading Lawless and Grey together. That possibility exists or depends upon noting a difference in the perception of prosecution non‑disclosure as demonstrated by the observations in each Court and as demonstrated as well perhaps by the prosecution concession in Grey.
It is clear from the references that are given in our written submission in Lawless that there was a distinct finding by the Court that the non‑disclosure in Lawless was not a breach of an obligation, that is, not a breach of a duty. Rather, it was seen as a breach or a failure to observe something which was desirable or good practice or something that should have been done, language which is still normative but appears deliberately to draw short of the notion of obligation. It is that which distinguishes Lawless from Grey and with that distinction it is, we accept, just possible to read the two together.
There is an alternative approach which says that Lawless treats undisclosed material as primarily or principally to be characterised by its quality of not having been presented at the trial, that is, to be considered as either new or fresh evidence, its principal characteristic being that it was not at the trial. Grey, on the other hand, can be seen as an authority which sees its principal quality as having been material which ought to have been there had the prosecuting authorities done what they should have done.
Now, in our submission, it is very difficult to reconcile those two approaches because, I stress, though in Lawless there is the language of no obligation or duty, there is equally the finding that the prosecution should have produced, or it would have been better, to use Chief Justice Barwick’s expression, it would have been better had it been produced. In other words, there is not an equality of contribution to its non‑appearance at the trial as between prosecution and defence. There is a responsibility on the prosecution.
In our submission, when it comes to considering in an appellate way, including in this synthetic and rather distorted appellate way required in the reference by reason of the statute and the similitude to appeal, when it comes to considering evidence which was not before the trial, therefore not the subject of forensic decisions pre and at the trial by the defence, whether it affects the question of guilt or, to use a loaded word, the safety of the verdict, is always a matter of what effect it might be supposed to have had.
If that is correct consequentialist reasoning, and we submit that emerges from both Lawless and Grey, then it follows that it is the fact that it was missing and what might have been the case had it not been missing which is the functional characteristic of such evidence when produced on an appeal or on a reference as on an appeal. With that functional characteristic, in our submission, the better view which this Court ought to pronounce in this case is that the approach taken in Lawless ought to govern. I have nothing further to say apart from what we have already advanced in writing concerning that matter.
That is why I said yesterday that we need to seek to persuade your Honours under both tests. We accept what Grey has said and we accept the cogent argument that the appellant has put as being an available argument, namely, that Grey is the case that governs. As your Honours know, however, we radically differ from our learned friends as to what Grey means. Grey clearly means the proviso is to be considered contrary to what the appellant says.
Going through the factual material, the two tests to be applied are, would, with this evidence or material available to the defence and therefore deployable at the trial in the way that an appellate Bench is required to contemplate, would conviction still have been inevitable, that being the end point of the loss of a real chance of acquittal, which is the proviso test or, alternatively and more liberally to the prosecution, would this likely, or to a significant possibility, have produced a different result. I will try not to repeat those formulae. Simply referring to the two tests, we submit that all of the matters, (a) to (g) in the particulars, fail to satisfy in favour of the appellant either of the two tests.
Could I start with the question of the wrench, which is item (a). The undisclosed experiment by Dr Cooke with the Sidchrome shifting spanner of the kind shown in the photograph - the actual spanner of the kind tested is found in the appeal books right next to the drawing by Mr Mallard and, to remind your Honours, that reference is in volume 6 of the appeal book 2193. By the evidence to which we refer in our paragraph 65, the Court knows that that spanner, used in the 2002 experiment, was, though Dr Cooke could not recall it, the same as that which the police had supplied for use in the 1994 experiment and that comes from Superintendent Shervill’s evidence to which we refer in our paragraph 65.
KIRBY J: Is this the experiment of striking the pig’s head with the spanner to see what flow of blood and so on was caused?
MR WALKER: It is actually more for the configuration of the wounds.
KIRBY J: I see.
MR WALKER: Your Honours will recall the material turns most particularly on what is called, most usually, profile of the object. The anodes, for example, had a profile which had a relatively sharp edge produced by the rectangular section of the anode. On the other hand, the spanners in question were regarded by Dr Cooke as exhibiting relevantly a rounded edge and thus produced the crushing as opposed to the more incised wound that he was looking for, for this so‑called fit between putative weapon and the injuries on Mrs Lawrence. That notion of rounded is a critical factor for Dr Cooke in the material to which I will come in just a moment.
Now, your Honours, the wrench was the subject of one of the most important disputes at trial advanced by Mr Mallard’s own evidence as to the accuracy of what had been said by him in the interview on 10 June with Detective Caporn. The material is contained in our written submissions, particularly paragraph 33. In short, he had said at trial that there had been no introduction by him of a theory concerning the use of a wrench at the 10 June interview, that it came about only at the 17 June interview as a result of theorising in which he was invited to participate by Detective Brandham.
I have taken your Honours already to the material yesterday, to which I should return immediately in relation to the wrench. Your Honours will find that on volume 1 of the appeal book, page 356. I had taken your Honours yesterday in relation to his mental state to the passage at the top of that page. There is more third person questioning down to about line 12:
I said, “What did he hit her with?” He said, “A wrench. He couldn’t let her tell anybody. He was very scared.”
. . .
I said, “What else can you remember in the shop?” He said, “There was blood everywhere. She was still making noises, gurgling. He hit her again.”
I said, “When did he hit her again?” He said, “After he moved her.”
Now, these are matters of some import in terms of guilty knowledge, we submit, and I will come back to that.
I said, “What else do you remember?” He said, “Just hitting her.”
I said, “How many times?” He said, “I don’t know, a lot. He can’t get caught.”
So there was the evidence to the jury of 10 June, confession as we put it, where he volunteers the use of a wrench, as he there calls it. Then at the trial he disputes that he had introduced on that day anything about the wrench.
At the reference in a passage which, of course, stresses that the consideration of the whole course of a reference cannot be the same as an appeal, notwithstanding the statutory similitude, the accused was called and gave evidence about matters in a way that is very, very difficult to imagine happening on an ordinary appeal. Be that as it may – and we submit that that, of course, was an entirely proper course to be followed – if I could take your Honours to the way in which this introduction of the wrench, a most important dispute by him about the reliability of the confession, fell out at the reference. Volume 4, page 1802 ‑ ‑ ‑
KIRBY J: Apropos the evidence of the appellant in the review Bench and relevant to another case we heard recently, was the Crown careful in questioning of the accused to avoid, as it were, directly suggesting fresh or additional material to show guilt, or did the Crown go for the jugular? I have not read that evidence. Maybe I should.
MR WALKER: The former, not the latter, that is there was no remaking of a different Crown case, if that is what your Honour is asking.
KIRBY J: In the other case a certain measure of Crown reticence was shown in respect of matters adduced in the appeal court on the basis that if the matter were to be retried the Crown did not want to act in an unfair way to prejudice the retrial.
MR WALKER: Yes.
KIRBY J: I am not really asking that for this case but for the other case. Was that a feature of the Crown’s approach on the appeal here or not, the review Bench?
MR WALKER: I submit it was, but in a slightly different context. This was an acquittal reference. Acquittal was being sought on this reference, not a retrial.
KIRBY J: Yes.
MR WALKER: Now, that does not mean there was no potential for a retrial of course. However, on my reading of the material it cannot fairly be said against my learned junior that he conducted matters on behalf of the prosecution at the reference in such a way as to seek to elicit material which had not already been the subject of three or perhaps four bouts of public exposure, the first in what I will call the committal, those pre-trial assembly of material, most importantly the trial, then of course the unsuccessful appeal and then the re-presentation of a mass of material on behalf of the appellant at the reference. The Crown, with respect, seems to have very fairly confined itself to ‑ ‑ ‑
KIRBY J: Matters that were already in play.
MR WALKER: ‑ ‑ ‑ matters which were responsive to those which were raised by the appellant.
KIRBY J: Yes, thank you.
MR WALKER: Now, it is to be remembered that the flagship in the attack on the conviction was the argument that these confessions were not reliable, whether by way of theorising or by way of a pathological state of mind or perhaps a mixture of the two. During the course of that, of course, the way in which things came to be mentioned assumed a major significance. At that point it is important to note, as the reference court noted at their paragraphs 385 and 386 – and this is apropos Justice Kirby’s question – that the reference was not conducted in such a way as fairly to permit, according to their Honours, suggestions of nefarious deliberate concealment. Of course the difference between nefarious deliberate concealment and that which was exhibited in Lawless is a very important one.
Now, against that background on what we would like to call a litmus issue of the discussion of the wrench, one sees at 1802 that from about line 12 to the foot of that page and then at 1803, line 10 it can be seen that at the reference, as he had done at the trial, Mr Mallard was saying, “There was no mention of the wrench by me or, indeed, by anybody until I proposed it in response to a theorising request by Mr Brandham on 17 June.” If one goes over then to 1807 in the same volume, there is then a reference to that which intervened between 10 June and 17 June – 10 June the Caporn interview, 17 June the Brandham interview – which were conversations with Gary, an undercover policeman.
HAYNE J: Is his name Van Aperen?
MR WALKER: No, your Honour.
HAYNE J: Was that a different person?
MR WALKER: That is the polygraph examiner.
HAYNE J: I see, yes.
MR WALKER: Then at 1807, line 10 he agrees that the undercover policeman had asked what he thought the murder weapon might be and then a very ‑ ‑ ‑
GUMMOW J: Is this the first entry of Gary into this narration?
MR WALKER: Into this operation, no.
GUMMOW J: In particular, between 10 and 17 June:
You spoke to him on a regular basis during the period . . . 10 June and . . . 17 June?
MR WALKER: This came out with the polygraph material, your Honour. He mentioned Gary to Mr Van Aperen.
GUMMOW J: Yes, but this material was not in play at trial.
MR WALKER: No, but he had spoken to Gary.
GUMMOW J: Yes, all right.
MR WALKER: So he, Mr Mallard, had spoken to Gary, the undercover operative.
GUMMOW J: Between the 10th and the 17th?
MR WALKER: Between the 10th and the 17th, with which he agrees at page 1807. At line 10:
Gary had asked you what you thought the murder weapon might be, hadn’t he?---Yes, sir.
Then in a significant phrasing of the following answer he refers to what he had earlier told the police:
You had said to him that it wasn’t a monkey wrench like the cops thought, but in fact it was a gasfitter’s wrench and it was that long, indicating to him how long it was, didn’t you?—No, sir, I did not; not exactly like that, sir, no. I tried to explain to him that detectives suggested it was a wrench, a 10‑inch wrench, adjustable spanner.
Now, that, of course, is precisely the kind of instrument that Dr Cooke tested on the pig’s head.
I only ever told them that I thought it may have been some sort of pipe wrench with a ratchet system.
Then the questioning unfolds that he is referring to a conversation before the random occasion in which he was revealing that there had earlier been discussion about a wrench with policemen.
GUMMOW J: Did Gary keep any notes? Do we know anything about this?
MR WALKER: In the material assembled for the purposes of the reference, the notes of this dealing were included, that is, in the material obtained by and assembled for and presented by the appellant.
HAYNE J: So do we have them in the book?
MR WALKER: No – I am sorry, your Honour, it apparently is annexed to an affidavit which was before the reference court. I will have that obtained. If I may proceed and I will give you that reference as soon as I am able?
GUMMOW J: Yes.
MR WALKER: So that at the foot of page 1807 one sees then between lines 20 and 25, culminating at the foot of the page, he accepts that what he had earlier said, and indeed had been saying at trial, was wrong. He accepts it was wrong. At the top of page 1808 his explanation is that it has only been brought to his attention by the questioner at the reference and he insists that what he had said on oath was what he believed, though, of course, he is now accepting that it was wrong.
At line 10, on page 1808, he is asked when did it first come up and he gives a recollection of driving with Gary:
“It could have been – it could have been a wrench but it wasn’t what – it wasn’t a 10-inch wrench; it was some sort of wrench with a ratchet system.”
At the foot of page 1808 he insists that he had never discussed it with Mr Caporn. On the top of 1809, just before line 10, he rejects the notion that the very first time the wrench was mentioned with Mr Caporn, so we have here Mr Caporn saying that it was raised by him. We have him agreeing that before Brandham he had raised it with Gary but in a way that included explicit reference to it having been discussed with the cops or the detectives, that must be Caporn, no other possibility, and most particularly, distinguishing between what he was talking about and the very kind of implement which was the subject of the experiments conducted by Dr Cooke.
KIRBY J: Mr Walker, most people asked this line of questioning in the society and 97 per cent would say, “I have no idea what the person was killed with”. Guilty or innocent, they would say, “I’ve got no idea”. Did this appellant ever, in the reference Bench, give an explanation as to why he went into this and said, “Well, I hear voices”?
MR WALKER: No.
HAYNE J: The nearest explanation he gives is at 1802, 1803. At 1802, line, say 23, onwards over to the top of 1803, which is an explanation of how he comes to enter upon this theorising. I do not know whether that is what Justice Kirby was inquiring about.
KIRBY J: Yes. He puts it down to the fact that they asked him to theorise and so he did it.
MR WALKER: That is right. The invitation to theorise was his version. That was his version, I should say, to the jury as well. This is not new at the reference. But your Honour Justice Kirby asks about did he ever talk about hearing voices.
KIRBY J: I thought I saw some reference to the fact that ‑ ‑ ‑
MR WALKER: In relation to voices, the first thing of course is, I have already drawn to attention, yesterday and today, the passage where he uses both first person and third person. But in relation to the, what might be called, fantasising or imagination or, in a more old‑fashioned word, lies, could I take your Honours in volume 2 ‑ ‑ ‑
GUMMOW J: Just a minute, let us look at page 1802, line17. Gary becomes a little more filled out, line 18:
Gary fellow that had befriended me and was supplying me with marijuana and putting me up in hotels.
This is all going on between 10 and 17 June, is it?
MR WALKER: That is what he is referring to there. Yes, your Honour.
GUMMOW J: That ever denied? Did Gary ever appear to say, “No, no. I wasn’t committing illegal acts” to induce this theorising? Theorising helped along by a little bit of narcotic stimulation?
HAYNE J: Plus, dare one suggest it, an occasional prompt?
MR WALKER: The short answer, which will need some references, is that at trial there was no allegation of this kind.
HAYNE J: Sorry, no allegation of what kind?
MR WALKER: That there had been a policeman supplying him with drugs.
HAYNE J: And was there any material before the jury that the police had put the undercover operative in with him?
MR WALKER: No.
HAYNE J: And was ‑ ‑ ‑
MR WALKER: But neither was any confessional material obtained in these conversations put before the jury.
HAYNE J: No, indeed the jury did not know anything of what had passed between them about who had said what to whom.
MR WALKER: That is right. But no one has suggested of course that the accused was not aware.
GUMMOW J: No, it is on the table now, though.
MR WALKER: Yes. But not in the appellant’s argument, your Honour. There was not a finding one way or the other as to whether there had been any misconduct by any policeman in relation to the supply of drugs.
HAYNE J: I think that is a point, but there is at least another point floating around, Mr Walker, where the central thrust of the defence case at trial is this man repeated, because of his mental condition, what had been fed to him by the police.
MR WALKER: That is undoubtedly a suggestion which is now ‑ ‑ ‑
GUMMOW J: We have to consider whether there is a case for a new trial or not.
MR WALKER: Yes, your Honour. Now, there are two possibilities, that is, a new trial simpliciter or, and I do not suggest this is to be preferred, but another possibility is remittal for conduct of a reference. However, in our submission, a ‑ ‑ ‑
HEYDON J: A further reference.
MR WALKER: That is, to set aside the outcome of this reference.
KIRBY J: Your second proposition is to complete the reference or to perform the reference properly.
MR WALKER: This is after all an appeal from the reference.
GUMMOW J: We got into this because your client – you now want to rely on these communings with Gary to impugn the wrench evidence. You opened it up.
MR WALKER: No, your Honour. This is material – of course the ‑ ‑ ‑
GUMMOW J: No, in your address this morning.
MR WALKER: That is what I mean. This of course is material which was before the reference. That is the evidence I have taken you to. This is not new this morning.
GUMMOW J: I realise that.
MR WALKER: At the reference in relation to the wrench, such an important matter that my friend, correctly with respect, dwelled on, he had said it had been introduced in response to an invitation to theorise with Mr Brandham. The jury had a different version and that conflict had been before the jury, that is, that he had mentioned it in his statement with Mr Caporn, the passages of which, in our submission, bear no sign whatever of theorising. That was an important matter of fact in relation to the man’s case at reference, namely that these were confessions which had been in some way produced by the mixture of nefarious influences to which reference has recently been made.
At the reference, in relation to conversations of which of course he was aware – he gives recollections of them and it has never been suggested they needed to be disclosed to him – he agrees that he had been wrong at trial and in his evidence before the reference court in relation to whether or not the wrench had been raised by him with Detective Caporn. That is why, in our submission, there is nothing new about what we are doing in 1802, 1803 and our reliance upon it. What it shows was that the reference court had a very telling piece of evidence showing that Mr Mallard was simply wrong about a very important matter concerning the genesis, provenance of the entry of the all important wrench into his confessional statements.
The only mention at trial of Gary was not as an undercover policeman but as somebody with whom he had spent time. The appellant gave evidence at trial – and your Honours have seen a deal of it, including in relation to Ms Engelhardt – that he was using cannabis during the period. There was no evidence at trial that Gary had suggested any ideas to him. Indeed, the evidence he gives at the reference is that it was an inquiry by Gary, not a suggestion. Not a planting of an answer, but the obtaining of an answer.
GUMMOW J: At page 1802:
“Gary asked me why – what do you think it was –
et cetera.
MR WALKER: Yes.
HAYNE J: At 1803 the question:
and how did Gary have anything to do with that?---Well, that’s what led me into the theory.
MR WALKER: Yes.
HAYNE J: Now, who knows how far that answer goes?
MR WALKER: Quite, but it is not a planting of wrench or spanner. Of course the undercover policeman was doing his work, your Honour, yes, of course, but what I am submitting is that there is the world of difference between an open-ended question and the planting of something.
HAYNE J: Yes, there is.
MR WALKER: And there is no evidence here of the planting, that is, the leading, “It was a spanner, wasn’t it? It was a wrench. Could it have been a wrench?” That, in our submission, is very important bearing in mind, as noted by the reference court – and there has been no attack on this so far as we can perceive from the appellant in this Court – 385, 386 that the way the reference was conducted did not permit submissions to be made of deliberate actions on the part of the investigating police.
That, in our submission, is an aspect of the administration of justice which cannot simply now be ignored by the appellant.
The reference that I lacked earlier in relation to the notes produced at the reference, not at the trial, in relation to the undercover, that is volume 6 of the appeal book, page 2138 and 2139 in particular. On 2139, just between lines 10 and 15, you will see the reference to “wrench”, that reference to:
wasn’t a monkey wrench like the cops thought but in fact it was a gas fitters wrench –
et cetera. Now, in relation to reliability of confessions, I said yesterday on any view of it the jury always had, not only that this man was somewhat odd, but that he said things that could not be right. But no one ever suggested that it was inappropriate to invite the jury to consider for themselves what part of the reported statements could be relied upon and what could not, and that still of course is not – there is no “all or nothing” argument.
In relation to his fantasising, imagining and lies, there is an important passage at the trial; that is, the jury heard this. In volume 2, pages 746 and 747, he is being cross‑examined, and at 746 he denies that in that week or so before the killing he was living a fantasy life:
telling people these tall stories about being an undercover officer?‑‑‑No, because I told Michelle –
that is Englehardt –
only – Michelle only – that I was supposedly an Interpol agent. Michelle only; nobody else – certainly nobody else at all.
It turns out that ‑ ‑ ‑
KIRBY J: That is a bit weird, is it not?
MR WALKER: It is. Well, it is also wrong, as he rapidly agrees next page. Page 747:
Nobody else?---No.
You told Mr Kelly you were an undercover police officer, didn’t you?---I told him I was an undercover drug squad – nothing to do with Interpol – simply to gain entry into this guy’s unit.
So for a functional purpose:
I did not go around believing that I was an undercover policeman or an Interpol agent. I did not believe that. I used that at the time either to impress Michelle or to try to gain entry to get cannabis or to gain entry into Dell’s place to get his things so he would give back Michelle’s things –
there is a dispute about the custody of a guitar –
Nobody did I say that I was Interpol, undercover, this, that or the other thing. I told other people my name was Andrew.
On the Tuesday when you went up to the convent you told – the Iona Presentation Sisters convent – you told Bernadette Waring that you were a police officer, didn’t you?---Yes, I did.
And when Mr Kostezky was there . . . you told him something about being an undercover policeman, didn’t you?---I didn’t say that. Michelle told him and I had to carry it through.
And Mr Winch down in Fremantle, the pornographic book store . . . you told him about being a police officer, didn’t you?‑‑‑So he would give me a book because I had no money.
So you were lying to people in order for them to give you things?‑‑‑No, I wasn’t lying. I was using my imagination to gain things. Either people would lend me money or to convince them or my situation so they would buy my watch or whatever, or the watch I had.
So that the jury had material. The defence was conducted on the basis that there was a discreditable but rational explanation for what might otherwise have appeared to be pathological, disabling fantasies.
In our submission, given what was available to them concerning his psychiatric state, that is a classic example of a choice made by an accused with assistance from which there has been no sufficient cause given in the reference or in this Court to permit him to depart.
Your Honours, I have drawn to attention the discrepancy that the accused was intent on drawing to Gary’s attention between 10 and 17 June, between what the police thought in relation to the spanner and what he was recalling, and I stress he was drawing a qualitative distinction of moment in his mind between what he was recalling and the very kind of implement which was used on the pig’s head.
At the trial, which was conducted without the benefit of the undisclosed pig’s head experiment, there was cross‑examination by his counsel – volume 1 of the appeal book, pages 111 to 112 – about the profile of the weapon not “being round” – page 111, line 22 or thereabouts. That is the very point, of course, that Dr Cooke later reveals was important to him. It could not be the round profile. The round profile was the one that was typical of the implement he tested on the pig’s head in the undisclosed experiment, so the defence was conducted on the basis that an implement not being the kind referred to by the accused, not being that one was tested.
KIRBY J: Yes, but without, as you say, the benefit of the experiment with the pig?
MR WALKER: I am obviously labouring to persuade your Honours that though it should have been disclosed, it would not have made the difference that one or other of the two tests would require, because they were already ‑ ‑ ‑
KIRBY J: A vivid little piece of evidence, so horrible and disturbing to think about ‑ ‑ ‑
MR WALKER: But they were already committed – there was lots of horrible evidence. They were already committed to a position which would not have been strengthened because it was an absolute position, but this small spanner is not it, not what I talked about, and therefore, they were committed to the position that this was an irrelevant test had they known of the test.
Now, that comes out very vividly in closing address by defence counsel at trial – volume 3 of the appeal book, page 901, where there is a dismissive reference to the kind of implement to be inferred from Mr Lawrence’s evidence of the possible missing spanner, the “shifting spanner”, which was much smaller – to use the expressions that one finds at the top of page 901, about line 5.
KIRBY J: This is counsel’s address for the defence at trial?
MR WALKER: At trial, so it is clear that the position they did take was one which was antithetical to the relevance in terms of the use of a small round profile shifting spanner, antithetical, in short, to the relevance of the test. The test shows that the wounds could not be produced by an implement that the accused said he had never talked about anyhow.
So, to use Justice Stephen’s formula, it may have added weight but it is certainly not moving in any opposite direction, and so for those reasons, in our submission, it can be seen that the forensic course which was taken, compared to the hypothetical forensic course that may have been taken, does not reveal sufficient materiality to satisfy either of the two tests in the case of the undisclosed wrench tests on the pig head.
At the reference, Dr Cooke’s evidence in volume 3 of the appeal book, pages 1196 to 1197 shows his initial view of similarity between Mr Mallard’s sketched implement, which you will recall is about 18‑inches long, and the characteristic nature of its head, and the shifting spanner that he had been supplied to test. But at the end of that passage of questioning it is clear that he had not been asked to deal with something that might be called a ratchet‑type of wrench, and that is, of course, what the accused had in mind, and you will notice his careful scientific evidence at 1197, about line 5, he rejects the proposition, that his conclusions had been:
based on the assumption that it was the same as the wrench that –
he had been provided, and he says, “No.” He can only draw conclusions from the material which was provided to him, and then you see a quotation from his report, which at line 15 emphasises the rounded profile point, instead of the sharp one with “the chopping and penetrating‑type injuries” and then you see at the foot of page 1197 he accepts a difference between what is in the drawing – sorry:
But if the drawing is of something different that has been described as a ratchet‑type open‑ended spanner, you have never seen such a spanner . . . That’s right.
KIRBY J: Where, in your submission, does the evidence come down? It does appear that the wrench was brought into it either by the police suggesting it to Mr Mallard or Mr Mallard hypothesising it or Mr Mallard saying it. The wrench comes in but where, in your submission, is the evidence left as to whether the wrench was the instrument that was used in killing the deceased, given that the injuries are sharp injuries, as I understand it?
MR WALKER: At 1198, where I have just been taking your Honours ‑ ‑ ‑
KIRBY J: Nobody knows for sure what was used to kill the deceased because nothing was left at the scene, therefore, it is a matter of process of deduction from the nature of her injuries and, as I am feeling about the evidence, the wrench, though introduced, is not really very convincing because it is not prone to cause the injuries of the kind of the deceased.
MR WALKER: It depends what you mean by “the wrench”. For example, Dr Cooke, the reference I was just looking for, this really should be added to our paragraph 68, in our submissions; a few pages on, 1201, between lines 10 and 15, that was what was described by my learned friend in address yesterday as, “the merely theoretical possibility”. Well, it emerges as a somewhat different possibility there. What Justice Kirby has referred to as “the wrench” should not, on the material I have taken you to, be taken at all ever to equate to the test implement. After all, that was the very kind of implement that, between 10 and 17 June, he was at pains to say was distinctly different from what he had described to police, what he had in mind.
HAYNE J: On that subject, may I go back to the role of the undercover operative. If we go to 2141 and following, there appears to be what, on its face, is a transcript of a tape including a conversation in which, see 2142, last line, the undercover operative says, amongst other things:
they reckon it was a monkey wrench do they.
MR WALKER: But, your Honour, that picks up what was said at 2140, between 15 and 20:
T1 said that it wasn’t a monkey wrench like the cops thought but in fact it was a gas fitters wrench, and it was this long.
So that has already been said at the time that the undercover operative, at the foot of 2142, returns to what had been said to him, hence the ready acceptance, at the top of 2143:
Nu it wasn’t…
nu nu it reckon it was a gas cylinder fucken,, ring spanner a huge fucken riningy about that big -
et cetera. So that is a big thing of a kind that has never been found and that was clear at the trial. The defence had the benefit of that, never been found, not found off the bridge where he had said it was thrown, not found in searches of usual sources of such tools.
In answer to Justice Hayne, no. At the foot of 2142, that is not an introduction cunningly by a policeman, nor has that ever been sought to be established. That is the policeman returning to the same expression volunteered by the suspect.
HAYNE J: This whole line of inquiry is described by Mr Shervill, 2137, line 24 and following, as an “avenue of inquiry” that “gleaned no further evidence which implicated the accused”.
MR WALKER: Yes, your Honour.
HAYNE J: Yes.
MR WALKER: It is very difficult to see, however, that it is not in a sequence that culminates on 17 June. I do not want to suggest to the contrary, but, in our submission, there is no relevant impropriety in that.
GUMMOW J: You cannot understand the difference between the 10th and the 17th without this material here.
MR WALKER: No, but, your Honour, as I understand it, this is not contested by the appellant. He had said something wrong at the trial and in‑chief and in cross‑examination when first asked about it at the reference concerning the way in which “wrench” had been introduced. It is now, as we understand it, accepted that there was an earlier – that is on 10 June there had been his reference to “the wrench”. In our submission, none of this falls into a category of nefariously undisclosed and exculpatory material – to the very contrary. It is inculpatory, if anything.
I have given your Honours a reference to the way in which the defence dealt with the matter. There is another reference which is significant in that regard. In the cross‑examination of Mr Lawrence, who was of course the closest material available in order to identify the nature of a missing tool, volume 1, page 78, counsel for the accused, lines 15 to 20, clearly put to him at the very beginning of his cross‑examination the difference between what Mr Lawrence was recalling and what one must surmise was the basis of the instructions by cross‑examining counsel, and it shows that there was a significant distinction being drawn in the defence case between the tool of the kind Mr Lawrence was describing and that which the accused was saying had been mentioned as the possible weapon.
The significance for the first of these particulars of undisclosed exculpatory material is that that which was undisclosed was a test of the very kind of implement that Mr Lawrence had described that had been given to Dr Cooke for the test and which was significantly distinct from that which had been mentioned by the accused. Thus, in terms of using a test to show, “Well, he confessed to implement X but implement X had been tested and could not reproduce those kinds of wounds”, the undisclosed material had nothing to do with it, was completely removed. It is for those reasons that the apparently critical factor in relation to the wrench is not one which ought correctly have led the reference court to overturn the conviction.
Now, in relation to the companion proposition, that is, particular (b), the unsuccessful searches for a type of wrench more closely according with the description of the accused, both graphic and verbal, we have dealt with that in paragraph 71 of our written submissions. The short point is the trial was conducted on the basis that there was no production in the Crown case of any such implement that was available to the defence. They have not been able to find any such implement. The counsel’s address made, of course, appropriate play of the fact that if it had been thrown off the bridge, the evidence was it would have been found and it was not found. So that not being found in the immediate sense of not in the estuary and not being found in the sense of no one has been able to come up with a similar implement, in our submission, these are not sufficiently different to indicate that either of the two tests relevant would be satisfied in favour of the appellant concerning the lack of disclosure that there had been an unsuccessful search for a type of implement.
Can I then move to particular (c), which is failure to disclose the earlier version of Ms Barsden’s sketches. We deal with this in paragraph 74 to 78 of our written submissions. Now, the reference court, at paragraph 109 and at paragraph 117, in our submission, correctly reasons why this would make no difference. The shortest way to demonstrate that is to note that the complaint is that the trial did have the identikit but did not have the little girl’s own sketch, earlier sketch.
Now, the first thing to be said, of course, is that she was the source of the descriptions which produced the identikit. She said in the reference court that it was more lifelike of the person she had seen than her own sketches were. We have given the reference – I will not take your Honours to it – volume 4 of the appeal book, page 1716, paragraph 74 of our written submissions. But highly significantly, bearing in mind the weight my learned friend gave to the big moustache, Ms Barsden did not graphically or verbally and graphically in her own sketch or by extension in the identikit portrait, did not include a big moustache or, indeed, arguably, any moustache, depending on how one reads the graphical depiction. That was the position at trial: no moustache.
What extra discrepancy is revealed by what I might call a protosketch of her own before the identikit which was available at trial, of which she was the source, there is no relevant distinction in relation to the big giveaway, the moustache, at all. So it cannot be said even that any weight would be added to anything in relation to the physical identification of the person seen by this little girl. We know – and something was made of this by the defence, though perhaps minds may differ as to how thoroughly – that the discrepancies between the little girl’s identification and the accused were in play at the trial. Your Honours will remember height, there is also the nature and colouring of the hat, there is also hair and, in particular, there is moustache.
Now, my learned friend emphasises the big moustache. The little girl never mentioned a moustache. Defence counsel did not challenge her on that, but he had the photo, contemporaneous, of his client with a big moustache and he had Ms Barsden’s sourced identikit, the produced statement, her evidence-in-chief, and they – none of them – mention moustache. Why does it matter to add to that a sketch which did not have a moustache? It was entirely consistent with what they did have. It is for those reasons that particular (c) does not amount to something which would have satisfied either of the two tests.
KIRBY J: Well, it matters because it was the most contemporaneous portrayal of the person who was suspected to be the offender.
MR WALKER: Your Honour, it is not suggested that the identikit was produced after a delay which materially reduces its usefulness and we have for what it is ‑ ‑ ‑
KIRBY J: But if you give, one why not give the more contemporaneous one?
MR WALKER: Your Honour, I cannot answer that satisfactorily. Of course I cannot. I am dealing with undisclosed material and now dealing with does it satisfy one or other of the two applicable tests as we argue them. I am not arguing about disclosure.
KIRBY J: No, you are being very fair in the way you are putting it, but it is really the accumulation of these things that makes one anxious that anything that got in the way of the theory was not terribly welcome. People are like that with their theories.
MR WALKER: Your Honour, the reference court was the time to explore that calculated corrupt approach. Whether it was done for excess of zeal or wickedly, it would still be corrupt. As paragraphs 385 and 386 of the reference court records, the reference was not so conducted. That is a matter of, as I say, justice as well, including to people who are not given the opportunity in the reference hearing to answer any such suggestion. That cannot now be introduced.
Your Honour’s reference to the doubts, your Honour’s reference to the totality of the matter yesterday, evokes some comparison with Lord Widgery’s lurking doubt as a permissible ground of allowing an appeal for miscarriage. It is, in our submission, still necessary, in order that judicial process be carried out, that there be reasons given for detecting a miscarriage. In our submission, a lurking doubt ought to be reserved as a phrase for the outcome of what is reasoned by components that produce it rather than being an initial and sufficient description of a feeling in the judicial mind upon reading a whole lot of material.
The next particular is (d). These are the undisclosed tests for salt residues, of course I accept relevant in order to verify or not the version given of washing in the river to remove blood. I have already said yesterday – I do not wish to repeat it – that it is quite unsafe to proceed on the basis that this is clothing, all of which could be expected to have had salt on it. We just do not know. I make it crystal clear of course this should have been disclosed.
As to the shoes, however, it is to be recalled, what one knows from that and what can therefore construct by what might have been a hypothetical forensic course had this test been disclosed in time, we know of the shoes that there was a spot of blood on it where it would be highly speculative to suggest that it had either been in or out of the river. Probably, as a matter of lay reasoning, had there been no salt on the shoes and there had been, as it were, yesterday’s own blood drop on the shoe, you would say those shoes had not been in salt water, which of course would accord with common sense, depending upon what had been done. Of course it is to be recalled whether anything was done at all was not a matter the jury had to decide. The jury merely had to decide, are there reliable aspects of this confession sufficient to exclude reasonable doubt to support a conviction. They did not have to reconstruct and make, as it were, findings in detail about every aspect of the conflicting versions given by the accused, whose evidence was riddled with inconsistency, as well as given by others or to be inferred from others.
KIRBY J: The shoes are significant because the evidence was that with such gross injuries and the dragging process the spatter effect would have led to blood on the shoes and yet there was blood on the shoes but it was not that of the deceased.
MR WALKER: But that, of course, was available to the jury. Your Honour, with respect, is right that the defence would, of course, seize upon the fact that the shoes were not shown at trial ‑ ‑ ‑
KIRBY J: Justice Callinan put to you yesterday forensically the fact that the tests were performed and that there was an outcome and that it was available, if it had been in play, would have been one of the things that would have been used to try and nail this theory that was being advanced, the washing of the shoes.
MR WALKER: No, with respect.
CALLINAN J: It might also have gone to the credibility of those responsible in the police force for the prosecution.
MR WALKER: Mr Justice Murphy’s comment in Lawless, I think.
CALLINAN J: You think, Mr Walker, of the forensic capital any competent criminal defence counsel would have made of the suppression of material before a jury had he or she had the slightest wind of it, could have made devastating use of it. You know that yourself from your own experience.
KIRBY J: Do not answer that question.
MR WALKER: No, I can answer that question.
CALLINAN J: But it is true.
MR WALKER: What Justice Callinan says is correct. We are not here to fence with any of that. Of course that is correct. It is a matter of degree, and whether these things pass the test do involve asking and answering questions of the kind that Justice Callinan has addressed to me, of course.
CALLINAN J: Once you start talking about degree, you are really saying at least, this has to go to a jury to decide the significance of that degree, at the very least.
MR WALKER: It is not possible for me to sever questions of degree from jury questions, I accept that, your Honour. Now, the question, however, is on the two tests with whatever unsatisfactory state it lends the jurisprudence or the legislation, on the two tests the appellate Bench, and here the reference Bench, has to ask these questions knowing that they are the kind of questions which ex hypothesi should have been put to the jury.
Now, that is the hypothesis upon which the whole thing operates. It is not enough on the authorities – it is simply not enough to show that there was material that should have been but was not before the trial. What the law requires is to go further and then satisfy one of the two tests that we have addressed. That is why I entirely accept that Justice Callinan’s kind of question needs to be answered. Doing the best I can, this is what I say about it.
There is a difference between non‑disclosure of a kind illustrated in Lawless which on the findings was inadvertent and non‑disclosure of the kind that Mr Justice Murphy was considering in his comment, the weight of which we accept is considerable, that quite apart from what I will call substantive merits about facts that happened there is also the forensic effect that can be rort by casting doubt on the integrity of an investigation and/or prosecution. I accept that, of course. But the latter requires, first of all, there to be something suggestive of that kind of non‑disclosure. After all, there can be no perfect disclosure, or it is unlikely that perfect disclosure will be typical.
There are judgments involved and human beings are involved and records are involved, the combination of which is dynamite for incomplete or imperfect disclosure. That is no doubt why as a matter of policy the law enacted requires something in the nature of one or other of the two tests to be followed, the law as enacted and then as construed by the judges.
KIRBY J: That is why taken on its own I could understand a decision not to put the pig’s head experiment in because one might say the bony structure and composition of a pig’s head is different from a human head and therefore it does not lend much weight, but when one theory is washing the clothing and the shoes to get rid of the blood which would have spattered and there is evidence about that which was not put before the jury, that does seem to me to be quite significant.
MR WALKER: Your Honour, I do not want to repeat what I have said about the pig’s head experiment, however, your Honour should not proceed on the basis that there is material to show that there was a conscious decision not to produce it. There was no evidence to suggest it was a conscious decision. The actual reference to it, your Honours, I hope I have seen – certainly it is in our written submissions – but it is volume 6 of the appeal book, page 2364. It is on page 29 of the so‑called comprehensive summary of facts. The particular reference is between lines 15 and 20 on 2364.
GUMMOW J: Why is there a different outcome depending upon incompetence or malice?
MR WALKER: One, there could be a theory ‑ ‑ ‑
GUMMOW J: In other words, why is incompetence more highly esteemed? It sounds an odd basis for a legal principle determinative of the administration of justice and the adjudication of people’s rights under the criminal law.
MR WALKER: Yes, it may be, your Honour, that this is an example where what I will call, on the one hand, a truth model and, on the other hand, a process model, produce different results. If a truth model is adopted there ought, in principle, be no distinction. It does not matter whether it is mishap or wrongdoing which has produced a wrong result.
GUMMOW J: That is just a question of competence of public administration.
MR WALKER: But, your Honour, it is not only a matter of incompetence. There can also be accident.
GUMMOW J: Yes, that is right.
MR WALKER: In other words, there can be a failure to produce something but not by negligence or failure to reach a requisite standard of care.
GUMMOW J: Not talking about standards of care.
MR WALKER: Well, the standards by which one would be measured competent or not. So even the most competent, careful may occasionally fail and so there are classes of what I will call utterly blameless failure, then there is an incompetent ‑ ‑ ‑
GUMMOW J: Who bears the outcome? That then is the question.
MR WALKER: I agree with that, with respect, your Honour.
GUMMOW J: Why do you tilt it in favour of the administration?
MR WALKER: There is no reason in principle to tilt it anywhere except in favour of an accused? The reasons of principle in relation to tilting are entirely made manifest in our system of law by where the onus lies and the standard of proof.
GUMMOW J: Well, exactly.
MR WALKER: Well, your Honour, I am not arguing to the contrary of any of that and none of our argument is designed to tilt anything in favour of a prosecution where there has been cause shown to interfere with a jury verdict. To return to the answer to Justice Gummow’s first question - on the other hand a process model may see good ground to distinguish between a failure to discharge professional obligations or even criminal offences at one end of the spectrum ‑ ‑ ‑
GUMMOW J: They are not professional obligations, they are public obligations.
MR WALKER: Yes, your Honour, and serious ones. What I am saying is a process model could see ‑ ‑ ‑
GUMMOW J: Obligations of the State.
MR WALKER: Yes, could see a distinction between failures of the State offices, including some of them may be standing in criminal offences, at one end of the spectrum and then failures which are simply an aspect that, like everyone, officers of the State are human, the so‑called inadvertent or blameless but regrettable ‑ ‑ ‑
GUMMOW J: Not blaming the officers, they are blaming the State.
MR WALKER: Yes, your Honour, I accept that, but the State may need to accept responsibility for an outcome when no individual can be blamed in any ordinary use of that word. They can be identified as the cause, but moral blameworthiness does not attach. I am suggesting there is a spectrum by which material may not be disclosed which ought to be disclosed to an accused before trial. On that spectrum it may well be that a process model as opposed to a truth model would say those at the serious end of the spectrum must be regarded as either approaching there has been no fair trial at all, thus not even a proviso, or else they are a miscarriage and of such a kind as it would be unlikely for the proviso to be satisfied. That is, mostly it will result in overturning the result. On the other hand, they may say that there is no miscarriage involved when there has been just one of those things that occur without any blameworthiness. They may.
There is no authority for any of that because the authorities simply do not consider these matters of non-disclosure in that nuanced fashion. In the material which the Court was good enough to supply to us before this morning there is – and I have had it handed up to your Honours – a reference on its page 70, footnote 144, Sansom in ‑ ‑ ‑
GUMMOW J: This is Understanding Miscarriages of Justice published in 2000 by Oxford University Press.
MR WALKER: Yes, for which, with great respect, we are most grateful.
GUMMOW J: Nobles and Schiff.
MR WALKER: Yes. In Sansom 92 Cr App R 115, which I have handed up and which I obtained from, as I say, page 70, footnote 144 of that publication, the first of the three appeals being determined was an appeal about disclosure. At page 120 one finds provisions from the Attorney‑General’s Guidelines set out. Your Honours see that they are in a familiar but not exactly similar form to those that you have seen from around this country as well.
At the top of page 121 and 122 there is a discussion which includes the kind of reasoning about hypothetical forensic course of a kind that we submit is the appropriate approach. After the quotation from Phillipson in the paragraph commencing “In our view” on page 121, that is then held to be in the terms then governing in England and Wales to be a material irregularity, the expression inserted into the British legislation when they removed the word “substantial” from before the word “miscarriage” in the proviso.
Having been an irregularity, one then sees at the foot of that paragraph that their Lordships turn to the question of considering the proviso and say it cannot be applied, by which, we would urge, they mean it needs to be considered ‑ ‑ ‑
GUMMOW J: Sorry, where are you reading from?
MR WALKER: Page 121, second‑last paragraph. This is Sansom’s appeal. The other appeals are not material. Sansom’s appeal concludes as follows:
Since the jury’s question shows that they were at least considering attaching weight to the document, and in view of the possibly inconsistent verdicts on Turner and Denis, we consider the proviso cannot be applied.
In other words, the proviso needs to be considered but these are the circumstances which means that it will not apply to preserve the conviction. That indicates, without any of the analysis of blameworthiness on a spectrum in relation to non-disclosure, that shows a proviso being applied. It is exactly similar to Grey in that regard.
GUMMOW J: No order for retrial, is there?
MR WALKER: No. The order simply says that his conviction was quashed. There is nothing about ‑ ‑ ‑
KIRBY J: That is what I proposed in Dyers.
MR WALKER: But there is no acquittal entered.
KIRBY J: Yes, but if you quash the conviction ‑ ‑ ‑
MR WALKER: Well, someone is no longer convicted.
KIRBY J: ‑ ‑ ‑ there is nothing standing against him, but no order of retrial is made.
MR WALKER: Yes. I cannot explain why an acquittal is not mentioned.
GUMMOW J: There may be some difference practice.
MR WALKER: It may be of course that that is a question of editing of the law report.
GUMMOW J: Yes.
MR WALKER: Now, what we get from that is that in answer to Justice Gummow’s question, there is an area left unexamined, and we would submit not the subject of any holding binding on this Court or persuasive to this Court, as to whether there should be or could be any difference of the kind that Justice Gummow has asked me about. Why should it matter whether the non‑disclosure comes about by reason of perfidy or incompetence? I accept it is an available holding of principle that it need not matter. However, we submit, a process model is at the end of the day a surer guide than a truth model.
GUMMOW J: What do you mean by process model?
MR WALKER: A model which sees the aim of proper outcome of criminal justice as practicably to be obtained by enunciating rules for the conduct of the process and ensuring that they are observed. So that ‑ ‑ ‑
KIRBY J: Do not worry too much about the substance.
MR WALKER: Your Honour, there is a danger of caricature, and I do not suggest there is any dichotomy.
KIRBY J: Well, it is often said that the weakness of English administrative law is its obsession with whether due process has been observed and not been really concerned with outcome, hence the weakness of the Wednesbury principle.
MR WALKER: One of the comments in Nobles and Schiff says of that view that it is a view that seems to flourish even when the processes that are due do not appear to be entirely rational.
KIRBY J: I thought that since the Irish cases and going back in the early 60s and 70s, that inquiry by Fisher into the Confait Case and so on, we have all become a bit more concerned about the substance and about the prospect that a person is sitting in a prison cell who is or may be innocent.
MR WALKER: Yes. That historical, social change, and the ebb and flow and ebb again, is discussed in the chapter which the Court has supplied to us. I do not want to put any argument – there is no tilting to a prosecution, I do not want to put any argument about value process over truth, that is, there is a caricature available by seeing that as a dichotomy. The process approach is obviously, if it is any good at all, only because it is thought this is the humanly practicable way of approaching as closely to truth as can be borne by society and can be administered by human beings.
We entirely accept that the history in England and Wales and the history to be traced in this Court, see, for example, Grey, includes a concern that there not be, by reason of failures on the part of the State and agencies of the State, a failure to give the accused what the law providing for fair trial gives him as a matter of rights.
There is a reference in particular to the dissent in the Royal Commission by Michael Zander in the chapter which we have been supplied, which pointedly makes emphasis on the nature of the rights‑based expectation of an appellant where public requirements have been either flouted in a deliberate case or not complied with in an inadvertent case.
That, of course, is an approach which, were it open in this Court – and it is certainly not open on the way the issues have been argued in this case to date – one could even say the proviso does not apply. But my learned friend has not said that Grey is wrong, he has not sought leave to say so and, in our submission, while ever that remains the case in argument between the parties, we do not need to go on to address the question of the proviso as a matter of authority not applying in this country in such a case.
KIRBY J: There is a paragraph in the appellant’s submissions that refers to the unacceptability of simply allowing a person to languish in detention. You will remember that it refers to the recent cases in this Court.
MR WALKER: Your Honours, there is no doubt my friend has put the argument. There are alternatives in his notice of appeal in this case. There is an alternative of no proviso or of proviso. He has only argued the no proviso. I am sorry, that is not meant as a criticism of him at all and I am not concerned with him arguing the proviso, I want to make it clear.
GUMMOW J: He does not accept that that is the way he puts it.
MR WALKER: Certainly yesterday, in answer to questions from the Bench, he made clear that his position was – we do not intend to limit him at all – that the proviso does not present any obstacle to him because it does not fall to be considered because there has been such a departure that one does not get to consider questions of degree. That, we argued yesterday, is contrary to Grey.
GUMMOW J: We are not going through that again, Mr Walker. We are really not going through Grey and Lawless again.
KIRBY J: Please do not go back there.
MR WALKER: I do not want to go to that at all. All I am saying is that the argument against us is one of no proviso.
GUMMOW J: We are going to get to item (f) fairly soon.
MR WALKER: Your Honours, the next particular is, as I say, the saltwater tests.
GUMMOW J: We have to get to the bandanna, the cap.
MR WALKER: Yes, I am about to come to the – is your Honour talking about the bandanna (f) or the cap on hook (e)?
GUMMOW J: I am talking about (e).
KIRBY J: The cap on the back door, or wherever it was.
MR WALKER: The cap on the back door, or wherever it was, is said to be significant because it would have provided material to doubt the version of events which had him wearing something on his head during the events in question. When I say “during the events in question”, I mean by inference from the little girl’s sighting.
KIRBY J: A girl of her generation would know the difference between a baseball bat turned backwards and ‑ ‑ ‑
HAYNE J: She would certainly know the difference between that. A baseball cap, perhaps.
KIRBY J: I am sorry, baseball cap. It just shows my knowledge of baseball.
MR WALKER: Yes is the answer. We addressed this in paragraphs 92 to 101 of our written submission. I really do not want to repeat what has already been put there. The heart of the matter, in our submission, is that at the trial there was not a case through Ms Engelhardt’s evidence that he was wearing his cap when he entered the flat. In other words, there was not a version that the defence had to deal with contrary to what is to be inferred from a cap, or hat as it is called, in fact, on a hook.
KIRBY J: It was said, was it not, that he came back with his hair wet?
MR WALKER: Wet.
KIRBY J: Wet from the rain.
MR WALKER: He was drenched, volume 1 of the appeal book, 193. When he emerged from the bedroom, volume 1, pages 225, 226, he was drying his hair. The jury no doubt put those together, that his hair had been among those parts of him that was wet. So that at the trial the jury had someone apparently hatless when entering the Engelhardt premise. Engelhardt did not give evidence that he was hatted or capped.
So material which, in fact, as we pointed out in our written submissions lacks all reliability, bearing in mind what was said about it in the reference court, material had it been disclosed, showing that the cap was on the hook, would not have added anything to the position about what Ms Engelhardt – and it is all her evidence – observed about what he was wearing, if anything, on his head. So the trial ran on the basis, he came in with wet hair. The trial ran on the basis of no evidence from her about anything on his head and it is said somehow that had there been disclosed that at one stage – at one stage, I stress – she had a recollection of a cap on a hook at the relevant time, that somehow would have made a ‑ ‑ ‑
KIRBY J: But you have to look at the sequence. The young girl says that he has a bandanna on his head and then it appears that he wears a cap and so the theory becomes he wears the cap reversed.
MR WALKER: Quite.
KIRBY J: But then when he turns up at home his hair is wet.
MR WALKER: And that was at the trial.
KIRBY J: And yet there is another person who has been seen in the neighbourhood with the type of headgear that was described by the young girl looking into the shop from the car.
MR WALKER: That is the next particular and they are obviously interrelated, (f).
KIRBY J: And moreover, it is suppressed. It is taken out of the statement, is it not?
MR WALKER: What is suppressed, so‑called – I will not say “taken out of” - in paragraph 94, we give the references, I do not need to take your Honours to them.
GUMMOW J: Where is her statement, the handwritten statement?
MR WALKER: The handwritten statement is at volume 6, 2004.
HAYNE J: Was it not part of the Crown case at trial the accused man was or may have been wearing the cap at the time of the murder?
MR WALKER: Yes.
HAYNE J: Here was evidence, perhaps not terribly good evidence, that the cap was not available to him at the time of the murder, that evidence was not disclosed. Does that not capture the whole of the point?
MR WALKER: As to that cap, yes. But as to ‑ ‑ ‑
HAYNE J: What, have we now got another cap in play, have we, Mr Walker? Come on.
MR WALKER: No, no. It is just another piece of headgear. This may be – I hope it is not just semantics, but for precision sake, could you note that at 2004 towards the foot of the page her expression is “hat”. Now, I am not suggesting there is another piece of headgear. It is just that everyone uses the word “cap”.
GUMMOW J: Well, it was not a homburg.
MR WALKER: It was velvet, and I am assured by my learned junior there was never any suggestion of more than one, so I want to make that clear. I am just drawing to attention what the word is, “hat” and “velvet” and not a homburg.
Now, as we have tried to explain in paragraphs 93 and 94 of our written submission, the fact is that Ms Englehardt was already there as a witness who aided the defence in attacking the capped assailant. The prosecution case, because he did not have anything on his head, and she did not say he had anything on his head. Question, would the cap being on the hook add anything, so great in weight as to be of the significance, for example, that Mrs Telford’s statement did not achieve in Lawless?
Now, we accept that is the kind of question that has to be asked. I do not suggest for a moment that the answer is a black and white one to draw but, in our submission, on consideration of how that could have been used in cross‑examination of Ms Englehardt, fairly rapidly we come to the point she says, “Well, I never said that he was wearing anything on his head and so far as I know the cap may have been there. I had seen it before.” Hence the uncertainties we refer to in paragraph 94, not a ‑ ‑ ‑
KIRBY J: Yes, but the young girl had said that the likely assailant, the suspect, was wearing something on his head.
MR WALKER: Yes, but Ms Englehardt is the only witness for which this undisclosed material could be used in ‑ ‑ ‑
KIRBY J: I will not repeat Justice Hayne’s analysis, but it seems to me to be unanswerable. It was part of the Crown case that he was wearing his cap and the cap was in his house behind the door and he came home bareheaded, and there was another person who was seen in the vicinity at the time of the murder who did wear this much more unusual headgear.
MR WALKER: The next matter upon which I rely is contained in paragraph 100 of our written submission. The appellant himself gave evidence, which was before the jury – and this all has to be taken into account in answering the question, would this have made a sufficient difference to satisfy one of the two tests. He said in the videotaped record of interview, which was before the jury, that he had obtained the cap and gloves after getting out of the taxi. Now, in our submission, it is very difficult to see how the adequate importance can be given to ‑ ‑ ‑
KIRBY J: What page is that?
MR WALKER: It is paragraph 100 of our written submission, volume 2 of the appeal book, page 834. It is very difficult to see how that being what was in play before the jury that this extra bit of Ms Englehardt’s evidence – and she did not give evidence inconsistent with it, of course – would have added to the weight that could be obtained from the fact that she gave evidence in any event and disclosed and in‑chief, she gave evidence of a hatless Mr Mallard coming in. That is as far as I can take that one. The second‑last one is the other man to which Justice Kirby has referred most latterly, the other man with what I will call a bandana.
We have dealt with that at paragraph 103. In our submission, this is not exculpatory in the sense that other matters may be, that is of pointing up telling discrepancies between the confession and the demonstrable facts, or those facts which could be demonstrated. This was one of the many – I think the number is 136 or so – persons of interest. One finds a reference to them, that is, the fact that they existed as a class in Mr Caporn’s evidence at trial, volume 1of the appeal book page 258 and then at the reference defence counsel was asked about whether he could remember responding to that information in any way, volume 3 of the appeal book, page 1216 at about line 17.
In our submission, it is just not possible from that circumstance to see that a different course would have been followed, particularly bearing in mind that it certainly is probably not even a straw in the wind to exculpate Mr Mallard, that there had been somebody else observed of many others in a way that did not implicate that person at all. There is no suggestion still. Surely, the appellant is not going to suggest that that other person is the murderer.
In our submission, one has to look at the so-called behaving oddly – that is the lady in the shop who fairly obviously sized up that this was not going to be a big buyer and disapproved of the presentation of this person. This is as far from responsibility for a murder as one could imagine. To suggest that any of that would be any contribution towards a case either in a police office or in a court of law of suspecting somebody of implication in homicide three kilometres away is laughable.
It is for those reasons, in our submission, that even assuming that this should have been disclosed – because it certainly was undisclosed – but even assuming it should have been, and we do not accept that, this is not material which could possibly have made any difference. What would the detective have been asked? “Was there anything in that which gave you cause to believe implication?” Answer, “No.” What does the jury do with that? In our submission, there has been no answer to that rhetorical question supplied.
The last of the particulars. This is the closest, in our submission, that the appellant gets to providing substantiation for the suggestion rejected as inappropriate to be made by the reference court, namely of deliberate concealment. This is what might be called the linguistic tag, the expression “locked eyes” removed from a draft Winch statement.
GUMMOW J: I see he told the reference court that he was myopic.
MR WALKER: Yes, badly myopic.
GUMMOW J: Is that referred to in the reference court judgment?
MR WALKER: Yes, his myopia is referred to. There is quite a consideration of it, your Honour, and particularly it turned on whether he could have seen a girl in a car with tinted windows. We have dealt with this in our written submission. There is no evidence that the tinted windows were such that you could not see into a car. The myopia is dealt with in paragraphs 177 to 181 of the reference court.
GUMMOW J: Yes, thank you.
MR WALKER: Now, the locking eyes, as I say, this is used – because it says that had this been disclosed they would have had a kind of Eureka moment in relation to nefarious involvement of the police. Now, either nefarious or overzealous in a way that had contaminated evidence, to use my learned friend’s metaphor of yesterday. Now, this is significant only in relation to what in the appeal court had been regarded as very striking and what in fact in the special leave application from the appeal court had been referred to as striking, namely, Ms Barsden’s evidence of locking eyes.
So one can see, before going to the detail, that the argument being proposed by the appellant goes something like this: if we had had this material suggesting a tendency of this particular detective to use that striking expression, if we had had that for trial, we could have cross‑examined both him and Ms Barsden to show that her evidence had been contaminated and could not be relied upon for this striking image of locking eyes. The difficulty is, of course, locking eyes, locked eyes, does not come in any of Ms Barsden’s material pre‑trial. It is not to be found in her statements. It is not to be found in her evidence‑in‑chief. So already the theory has to be that somehow this was something which contaminated only what she – she used the expression once, in cross‑examination. In our submission, that is a bizarre and weightless theory that somehow there was contamination, the fruits of which came available only when she gave the phrase in answer to cross‑examination by the accused – not in any of her statements beforehand, not in her evidence‑in‑chief.
Now, your Honours, in our submission, this is an extremely flimsy foundation of any argument which could have discredited the investigation for lacking integrity or reliability. In our submission, locked eyes is simply one of the ways in which people talk about making eye contact, or looking into somebody’s eyes. Locking eyes is another of them. I should say it was not attempted during the reference hearing to suggest to Ms Barsden that that was a locution she must have obtained or probably obtained from being worded up in some way by the police and, not surprisingly, what an extraordinary way for it to occur, to fall out only in cross‑examination like that.
So, your Honours, that completes what we wanted to say about the undisclosed exculpatory material which is relied upon for overturning the reference court’s decision. In our submission, there is no warrant shown for that. It remains only for me, very briefly, to address the question of the disclosure standards. Your Honours have the full gazetted form as it applied before you now, supplied by the appellant. Could I draw to attention, please, on page 5423 of that Gazette print, the way in which the matters are expressed.
HEYDON J: Are you sure we have that?
MR WALKER: No, I am not sure of anything, your Honours.
HEYDON J: Is it 5423?
MR WALKER: It is 5423.
HEYDON J: Yes.
MR WALKER: Thank you, your Honour.
GUMMOW J: The Gazette of 6 November 1992.
MR WALKER: That is right. At the outset may I make it quite clear, we are not inviting the Court to construe these guidelines narrowly or in a way which gives, as it were, wriggle room for a prosecution. We are not doing that. But I draw to attention you have had set out in the written reply from the appellant No 58 and No 59. We simply want to draw to attention that No 58 would appear at least to be a companion of No 57, they both appearing under the heading “Disclosure of Crown Case”. No 57 is “a general duty to disclose the case in‑chief”. No 58 talks about “all relevant evidence” in terms of the judgments to be made – and I stress only the judgments to be made – the room for legitimate, reasonable, arguable differences of opinion. No 58 would appear to inform the disclosure of the Crown case, which appears to be the case in-chief. It would certainly not leave undisclosed all the particularised items, certainly not, but, in our submission, it does call into question whether all of them would have fallen under 58.
HAYNE J: What stands behind 57, presumably, is the decisions in Apostilides and Richardson.
MR WALKER: Yes, and in the decision in Sansom that I handed up from England there is a very similar companion concept, namely, “You should have led it. If you did not lead it, you certainly should have disclosed it”. Yes, your Honour. Now, of course, Apostilides is scarcely a warrant in this country for an obligation to lead evidence. It certainly does not stand for a simple, straightforward obligation to lead evidence. It is the authority on the nature of the obligation of the Crown but it does not amount to a blanket requirement to lead evidence in a general category relevant to the proof of the case.
HAYNE J: Other than Apostilides and before Richardson, is there any authority of this Court which bears upon the content of the prosecution obligation to disclose material or to disclose unused material to the defence?
MR WALKER: Your Honours, Grey and Lawless. Now, Lawless is a case about unused and I have not sought and have not been given leave to argue that it is wrong, neither has my friend.
HAYNE J: No, and I understand that we are approaching the case from your concession that the duty would have obliged disclosure but, at least for my own part, I would wish to have a better grip of the content of the duty if only to see what, if anything, that says about the nature of the miscarriage of which complaint is made.
MR WALKER: Yes. To jump to the end of it, the miscarriage is a departure from the tenets as they obtain at the relevant time of a fair trial. Those tenets will alter from time to time, not only by broad perceptual changes in the judiciary – and McKinney representing one of those changes – but also, and most importantly, solemnly promulgated official statements about what will be done and what will not be done.
HAYNE J: But where that leaves me, Mr Walker, is this, that if the complaint is that the failure to disclose meant that there was not a fair trial, there is then a miscarriage in that sense, want of fair trial. Whatever test one applies, the material that ought to have been disclosed in order to achieve a fair trial is material that bore upon guilt or innocence.
MR WALKER: Yes, including in the indirect ways that Justice Callinan has drawn to attention.
HAYNE J: That seems then to lead inevitably to a particular outcome, the outcome of either retrial or, if Mr McCusker makes good the proposition that the undisclosed material must have engendered a doubt, as opposed to could have, that would lead then to the verdict of acquittal, would it not?
MR WALKER: Yes.
HAYNE J: What is wrong with that chain of steps that I identify for your comment?
MR WALKER: It seems to leave out the proviso. Now, there are a number of elements to a fair trial. One element, we submit, is that evidence which should have been admitted or should be admitted, proffered by the defence, for example, is admitted. Another element is that evidence that should not have been admitted when tendered by the Crown is not admitted. They also inform fair trial. The prejudicial value or force of certain kinds of prosecution evidence when tendered is a category the concept of which informs fair trial. Prejudice is the antithesis of a fair trial – unfair prejudice, that is.
GUMMOW J: How do we get these concepts into the wording of section 689 of the Criminal Code?
MR WALKER: Your Honour, the course of case law which has produced it ‑ ‑ ‑
GUMMOW J: When Justice Kirby and I came here the cases used to talk about unsafe and unsatisfactory. I think we got rid of that.
MR WALKER: Yes.
KIRBY J: Most people still do, despite our revelation of the error.
MR WALKER: It is simply known as that by a very misleading use of the label.
KIRBY J: Well, it was used in the English statute. It therefore came into our Parliament.
MR WALKER: Eventually it was. It is interesting to note from the historical material that it was at first an unsuccessfully moved amendment, criticised for its nebulous nature. Now, of course, the English have just the word “unsafe”, presumably ‑ ‑ ‑
GUMMOW J: It has to come in the closing words, does it not, “on any ground there was a miscarriage of justice”?
MR WALKER: Yes. Now, miscarriage of justice is not a category which, in our submission, this Court would be astute to narrow. That is the first thing. There are multifarious ways in which justice may miscarry. Nothing we are arguing is a narrowing. However, we say where this Court has identified, as they have by demonstration, that is by doing it in Grey, that a failure to comply with duties of disclosure of the prosecution produces a miscarriage of a kind which is still subject to the proviso, then that is something which counsel for the Crown, counsel for the accused simply have as the authoritative law, that they are not free to roam, as it were, on first principles in the category of miscarriage of justice and to say, for example, that this is something which is not subject to the proviso.
GUMMOW J: Is the theory then that the proviso does not attach to some species of miscarriage? It has to be, does it not?
MR WALKER: I referred to this yesterday when I referred your Honours to Wilde’s Case.
GUMMOW J: I am just worried about the statute at the moment. I am not worried about the archaeology of the cases at the moment.
MR WALKER: Yes. Your Honour appreciates though the awkward position we are in is that the statute has been authoritatively construed.
GUMMOW J: Well, it has not been construed. It has been assumed, I think.
MR WALKER: I am sorry. It has been administered in a way which yields by extrapolation and implication a meaning which binds us. It is not in question in this case as to whether that encrustation should be cut off. However, I am able, with respect, in accordance with the authorities at least to submit that miscarriage is not a category to be illiberally narrowed. On the other hand, on the presently crucial question dividing the parties before your Honours as to whether the proviso needs to be considered, we do have authority.
I was giving the example of the wrongful admission of Crown evidence or the wrongful rejection of defence evidence earlier. No one hitherto has doubted that the proviso falls to be considered in a case of such a miscarriage, as well it might be. That is the consequentialist reasoning which, in our submission, characterises both the wrongful rejection or admission of evidence – and I stress that is therefore material which was before the jury as well as material which was not before the jury. The same approach, for obvious reasons, because it includes material not before the jury, should apply and does on the authorities apply to new or fresh evidence, including that which is new or fresh because it was produced only after a late disclosure of material that should have been disclosed in time.
That is how, we submit, that on the basis of both the statute and the judicial application of the statute the proviso must apply. Going back to what was promulgated under the protection, if it be protection, of section 24 of the DPP Act in Western Australia in the Government Gazette, I have drawn to attention the way 57 and 58 ride together, and 59 your Honours have already had drawn to attention in the appellant’s reply and that is clearly very important and we need to stress against ourselves that it says “which may be exculpatory”. That of course, however, in support of the position for what appears to be inadvertent non‑disclosure, shows that there will be judgments.
No 65 is also something to which I would need to draw attention. Part of the argument against us may be thought to have rendered 65 entirely otiose, which may well be right in the way these guidelines are written. They are clearly not a statute. But we draw to attention that there is a specific guideline in relation to inconsistent statements. Your Honours have heard the argument about particulars items (a) to (g) where on some of them the material undisclosed is not in truth inconsistent. That is all I wanted to say about the formal position obtaining in relation to the so-called duty of disclosure at the time. As Justice Gummow has noted and as the reference court proceeded, we had made concessions.
Of course, it was only the comprehensive summary with its two-line reference to the pig’s head spanner test which was with the prosecution as opposed to the police. That is the one piece of evidence which is referred to in the reference court’s reasons, paragraph 385.
HAYNE J: Just harking back to the question of innocent versus dishonest error in failure to disclose, in Apostilides 154 CLR 563, particularly at 577, the Court in dealing with its sixth proposition concerning the decision of a prosecutor not to call a particular person as a witness which they say will:
only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against conduct of the trial taken as a whole, gives rise to a miscarriage of justice.
In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases . . . [it] will trace that miscarriage to a wrong exercise of judgment . . . In cases where there has been no error of judgment there will be less likelihood of a miscarriage –
but ultimately the test is, is there a miscarriage, regardless of why it came about.
MR WALKER: That is our position. We certainly do not ‑ ‑ ‑
GUMMOW J: I thought you talked about a spectrum?
MR WALKER: I was talking about what but for the state of the law might have been. It has not been explored in any of the authorities. It might be arguable that there is a spectrum approach to be taken. Your Honour had asked me, “Why should there be a difference?” I do not offer a positive answer as to why there should be a difference. I was saying there might be an argument if you approach this from a particular point of view.
We do not put it. We certainly do not seek to shield the fate of this case against interference by relying on the reference court’s adamant refusal to entertain the late suggestion of impropriety – 385, 386. We certainly do not shield ourselves and say, well, that means there is no misconduct. That means nothing can be done. We do not say that, we did not say it below and we do not take that position here. A miscarriage, we submit, is a miscarriage however produced, and that is it may be produced by persons acting in utmost good faith with great care and applying judgment cogently. It is not a negligence case, a miscarriage appeal.
Your Honour Justice Heydon asked in relation to the videotaped interview and the other untaped – we have used the expression, unrecorded, hitherto, that is ambiguous. There is a record of them but it is untaped, and the two untaped interviews, as we read the notice of appeal so‑called in the reference court, volume 3 of the appeal book, pages 1129 to 1138, as we read that, there was not a reraising in the reference court of the admissibility contention which had been the subject of the appeal. Now, that is not against my learned friend. It is an observation that the reference court was not seized with, and thus this Court should not be seized with, the question of the admissibility of that material.
There was attention paid yesterday during my friend’s argument to the treatment by the appeal court of McKinney. The critical thing we say about McKinney is simply this; McKinney was not authority and is not authority for an exclusionary rule. It stands as an authority for the need for a warning or special direction so that the language of the appeal court in referring to McKinney does not denote an error on their part of any moment, however infelicitous it may be to use the word “comment” in relation to binding dicta of this Court.
The special leave application – I think your Honours now have the transcript – put two points, and the fact that there were two points comes out in an exchange between Justice Toohey and counsel for the applicant on page 3 of 7 of the print your Honours now have. Justice Toohey points out it is not only directions that should have been given, which is the substance of complaint, but also that it should have been excluded. He points out “there is a big difference” and the major point was “the warning”, says counsel, up against the time constraint.
Your Honours then see on page 4 of 7 that there was a concern about the failure to seek redirection; page 5 of 7, a concern about compelling evidence including the locking of eyes and a full reference to some matters of moment there. Again, on page 6 of 7, a concern with no application for directions and then page 7 of 7, the conclusion that there was nothing which establishes:
the likelihood of a miscarriage of justice and nothing otherwise that warrants a grant of special leave to appeal.
In our submission, it would be inappropriate to criticise the reference court for having made the use it did of the appeal court position, bearing in mind how this Court had dealt with the application for special leave to appeal. It would not behove the reference court to say, “That was then and this is now”.
In relation to at least the two untaped interviews, Justice Heydon, I think, raised with my learned friend the question as to whether the admissibility at a future trial, not beforehand but at a future trial, was a matter that was germane to, and was it relied upon by the appellant, if so distinguished between an order of retrial and an order of acquittal in this Court.
In our submission, the circumstances, namely, that it was not a requirement of the law that there be tape recording at the time of these interviews, the state of the law in this Court, namely, that there was no common law exclusionary rule but rather a warnings matter, and the warnings survived scrutiny in the Court of Criminal Appeal and on the special leave application, would mean that in applying section 570D of the Criminal Code, to which my learned friend referred, there will obviously be a need for voir dire consideration, in particular, of the matters contained in paragraphs 570D(2)(b), “reasonable excuse” and (2)(c), “exceptional circumstances”.
For those reasons there cannot be, as it were, a proleptic pessimism about the inadmissibility of those two important untaped confessions as being a reason to anticipate the outcome and to rule for acquittal rather than retrial. If we have failed in our major argument, it therefore ought to be retrial not acquittal.
Finally, we have drawn to attention in paragraph 36 of our written submissions matters upon which, in our submission, it can be seen that notwithstanding all the material drawn to attention as being discrepant between the multiple and conflicting versions given by the appellant and what might be seen otherwise in the record, that there are nonetheless some very telling matters narrated by him before court and then that proved in court, and in court before the jury, which suggests powerfully guilty knowledge. We have listed them. I do not need to elaborate them, but your Honours might care to note that there needs to be laid against the items (a) to (f) in our paragraph 36 this yardstick, what had been revealed in the media because if it had been revealed in the media then there is not much weight, if any, in our observation that he had said this.
You will find the media in a curious form as a result of agreement between counsel, which appears to have been mediated by the trial judge. The record of that process is in volume 1 of the appeal book, pages 369 to 370 and then what happened was the detective gave evidence of a negative kind, volume 1, pages 376 to 377. By negative kind I mean there is a litany of matters, he says, which were not in the media – and some of them were in the media. That was done by an agreement between the parties to save the media being tendered.
GUMMOW J: So whereabouts is this list?
MR WALKER: Pages 376, 377.
HAYNE J: It seems to start earlier than that.
MR WALKER: I am sorry. The one ‑ ‑ ‑
HEYDON J: Page 375, line 20.
MR WALKER: Yes. Your Honours, the ones that are I think relevant to the points that we have – there is a great deal of material about the media. It is on pages 376, 377, but there are the ones germane to our paragraph 36 points, and it goes over to – sorry, 378, 379, 380 – and they are a mixed bag. I am just drawing it to your attention, the peculiar – I do not criticise it – way in which the court is given this yardstick of what is revealed and what is not.
Save, for example, without reading through it, 376, there is no gold braid – an important one for us – there is no girl. The witness being a girl is not mentioned. There is no mention to her being in her teens. There is no mention to her sitting in the front passenger’s side seat, no mention of locking eyes, no mention to the car being stopped back down the hill from the traffic lights. There is no mention of a small pale green sedan, but I should say that, of course, in the video interview you will see that he talks about “white”. He says, “I don’t know why I say white.” “Corolla”, again, I draw to attention it is a mixed bag. The video interview has a Cortina. Between 20 and 25:
Is there any reference in the media to where on her head she was struck . . . ?---No.
That is an important one for reasons I will come to in a moment. The number of injuries – these are yeses:
“Struck about the head at least 10 times”?---Yes.
And also a reference to “more than 10 times”?---Yes.
That was in the media.
Is there any reference in the media to Mrs Lawrence being struck 12 times?---No.
But, of course, there was the 10 and you know that the video reference has “six to 12 . . . max”, he says. Then there is a reference between lines 15 and 20 to:
the anode . . . [being] used to hit Mrs Lawrence about the head?---Yes.
That is mentioned, but of course he does not say anode ever. The notion that this was just taken from media and from police prompting is a bit difficult. Spanner is mentioned, page 378, just after line 5, but not wrench:
Was there any reference to the wrench coming from the rear shed at Flora Metallica?---No.
That is what he says, and then an important one:
Is there any reference to Mrs Lawrence being dragged . . . ?---No.
Is there any reference to the exact position . . . ?---No.
Is there a general reference . . . ?---Yes.
. . . “rear of the shop” . . . ?---Yes.
Is there any reference to Mrs Lawrence making a gurgling sound?---No.
I drew that to attention earlier this morning. She did make a gurgling sound. Her husband and the ambulance officer referred to that and so does the accused. Page 379, just above line 20:
Is there any reference to a shed . . . ?---No.
. . . configuration of those items at the back of Flora Metallica?---No.
To the number of steps including the landing?---No.
. . .
Is there any reference to a flyscreen security door?---No.
But of course these are all telltales that come from his confession before the jury. Page 380, between lines 5 and 10:
Is there any reference to their being no handle on the back door?---No.
To the back door opening inwards?---No.
And to there being a small sign on the back door?---No.
Now, he gets the handle on the wrong side of the door, but interestingly he is right about the nature of the handle. It is a grab handle, a clutch handle, not a nob. So these were telling points and what surely matters are those which import guilty knowledge, not when the jury is considering a mass of conflicting, probably confabulated, material, the stuff that is inconsistent. What matters is could the jury see evidence which contradicted the notion that he had not been there at all by supporting a hypothesis this was derived from media and police, and here is this – we have tried to list them in our paragraph 36 – list of matters, very important and telling matters, well and truly available to the jury.
They are simply an order. The areas of injury to Mrs Lawrence and the way which she was hit, we have given the references in 36(a), Dr Cooke says it fits fairly closely, fits quite well. One needs to compare that with what is said about the explanation for that, that he got it from a photo. Well, I need to draw it to attention what we have set out in 24(i) of our written submission, page 15 of our written submission. In summary it is clear from his evidence at the reference – all the citations are contained in our 24(i) – it is clear that this one phantom photo, never produced, of a kind that is not demonstrated ever to have been made, this phantom photo – even that phantom photo he says would not give him the information to be able to locate as he did, pretty accurately, the injuries: forehead, cranium, temple. It was, as it happened, a photo he said - never shown to exist, a photo he said of her face down with a mass of hair.
Now, the jury had therefore his explanation, “How could I have located so closely, described so closely, the injuries? I had a photo” but there is no such photo. We certainly do not suggest there is a lack of disclosure in relation to that, nothing sinister suggested. It is a story. The jury was entitled to believe, and they clearly so held. It turns out at the reference court after the jury conviction when he is asked about this photo theory, finally he agrees. That one photo could not have given him the material. In our submission, that is a very telling support for what the jury did.
In relation to the wounding, 36(b), we refer to being beaten while she was on the ground. Paragraph 36(c), the dragging. Now, there is a “three pools” versus “two pools” theory of blood which, in our submission, has no support at all and we simply adopt, with great respect, the analysis of that in paragraphs 182 and 188 of the reference court. The fact is he described dragging her in just the way that the evidence shows, particularly when one understands the evidence of the ambulance officers, to which reference was made by the reference court, in the treating of the bandaging.
KIRBY J: What is the relevance of the leaf with her blood that was found in the shed?
MR WALKER: I do not know, and I am not alone in that. As forensic evidence, I am not able to say it goes anywhere. I do not think the appellant says that either. Paragraph 36(d), he talks about a girl. Well, unless the appellant retreats into, “Well, you’re either a girl or a boy” which would not be right because you could be a man or a woman as well, this, in our
submission, is a very telling detail. Paragraph 36(e), the gurgling sound, I have already referred to. Surely the appellant is not going to say, “Well, everybody knows people gurgle as they die.” For a start (a) they do not, and (b) there is no such evidence.
Paragraph 36(f) is of high significance. There is no cogent explanation as to how he could describe as tolerably well as he did, the configuration of the back entrance.
There are references at the foot of our 36(f) which I need to supply or correct. There is a reference there to trial exhibits C33, C46 and C55 which are wrongly said not to be contained in the appeal books. Sorry, it was rightly said then but there has now been a supplement. It goes as follows. They are all in volume 2 of the appeal book. C33 is 845 point 1 – these are added pages – C46 is 849 and C55 is 854 point 1.
I need simply then to draw to attention what we have said in 37(b) and 37(d). We stress there is no evidence for those arguments against us suggesting or hypothesising police suggestion as a source of what would otherwise be damning indications of guilty knowledge. Your Honours, there was a reference yesterday by Justice Gummow in relation to the excursion to the river to wash and the timing.
GUMMOW J: Yes.
MR WALKER: It is to be recalled that there always was confusion and anomalies in the material before the jury in relation to timing, but 5.20, which is quite important to considering the plausibility and the relevance for reliability of the confession of the river excursion, the 5.20 pm comes from Ms Raine, but the defence case at trial was very plainly that Ms Raine was wrong, had not seen him, it was not him. The references to that are the challenge to her, Ms Raine, volume 1 of the appeal book, page 243; Mr Mallard’s own evidence at trial, volume 2 of the appeal book, page 762; and the address of counsel, volume 3 of the appeal book, pages 891 to 892.
So the defence theory of the case would never have embraced the notion of an excursion to the river being something that would blow a prosecution version of timing, if I may say so, out of the water. May it please your Honours.
GUMMOW J: Yes, thank you. Yes, Mr McCusker.
MR McCUSKER: Thank you, your Honours. Your Honours, my learned friend has said, in relation to the question of whether the proviso is applicable, if I can put it that way, in the case of a breach of the prosecution’s duty of disclosure, that the decision in Grey is against us on that point.
Your Honours, in Grey’s Case – and I have read the transcript of the argument before this Court and it appears from that that this question of the proviso being inapplicable was first raised in the course of argument during the address of counsel for the appellant in reply. In fact, it was suggested to the counsel for the appellant, Mr Byrne, that it may be that the breach of the prosecution duty of disclosure carried with it the view that since this was in turn – or in turn it meant that there had not been a fair trial, that there was no question of considering the issue of whether or not conviction was inevitable. Needless to say, Mr Byrne embraced that, but it was a little late in the day and, as I apprehend it but I hope not incorrectly, your Honour Justice Hayne touched on that point at paragraph [84] of your Honour’s reasons where your Honour said:
The issue in this Court having been formulated and argued as it was, there is no occasion to consider any wider question about the construction and application of the proviso.
And the appeal was therefore allowed. The way in which the appeal was formulated and argued was on the basis, an assumption perhaps – not perhaps, but certainly an assumption on the part of counsel for the appellant that the proviso would fall for consideration, notwithstanding that there had been a breach of the prosecutor’s duty of disclosure.
CALLINAN J: I think the issue is in the first paragraph of the joint judgment, is it not? I am looking at the Australian Law Journal.
MR McCUSKER: Yes.
CALLINAN J: That was the issue as argued.
MR McCUSKER: That is so, your Honour, yes ‑ ‑ ‑
CALLINAN J: And the case does not really decide anything more than that issue on those particular facts.
MR McCUSKER: No, but the Court in Grey did consider the question of whether the conviction was inevitable having regard to what is commonly called the proviso, I think, and it seems that my learned friend, Mr Walker, has seen that as support for the view that one must always consider that issue. Coming back to your Honour Justice Gummow’s point that you made in the course of discussion with my learned friend, the real question is whether there has been a substantial miscarriage of justice and we can be somewhat diverted from that by considerations of such questions as whether the conviction was inevitable. The question was considered in Glennon by this Court. That is on our list of authorities, your Honour.
GUMMOW J: Yes, 179 CLR 1.
MR McCUSKER: Yes, and it was considered by Justices Deane and Gaudron. I think the question was considered by all of the Court but in the joint judgment of Justices Deane and Gaudron at page 12 at about point 3, in fact above that, their Honours said:
In our view, it follows from ordinary principles of construction that, as Deane J indicated in Wilde, the common form proviso can have no application in a case where, overall, there has not been a fair trial according to law. The principle that an accused person is entitled to a fair trial according to law is fundamental to the criminal law and is, arguably, the most important of all legal principles. It is simply not possible to discern any intention in the proviso, let alone a clear or necessary intention, that a court of criminal appeal should allow a conviction to stand notwithstanding that, overall, the accused was denied a fair trial according to law.
HAYNE J: At least for my own part, that is a view that seems to give little weight to the fact that one gets to the proviso if, but only if, one has first concluded that there has been a departure from a requirement of the law, as for example the wrong reception of evidence or a wrong decision on a question of law.
MR McCUSKER: Yes, I accept that, your Honour.
KIRBY J: Also the history tells against this approach, except perhaps in the most extreme case, because the history was a great concern in the colonies about courts of criminal appeal, period, and this was the trade‑off that they were persuaded to accept it because there would be this exception in the event that clever argument showed that there was some defect of a legal or other character.
MR McCUSKER: Yes, that is where there was some form of irregularity. In that case it must be a type of irregularity that goes to the root of the trial process itself.
KIRBY J: I suppose if you got a case where the judge summoned forth the accused to give evidence or engaged in such an unjust procedure of the kind that was described in Corbishley, then you might say you do not even get to the proviso because it is just so fundamentally flawed.
MR McCUSKER: One example. Suppose the judge were to direct the jury that the defendant bore the onus of proof in a criminal case.
KIRBY J: Yes.
MR McCUSKER: That clearly would be a fundamental defect in the trial process, and it would not be to the point for the prosecution to say, “Well, look at all the evidence. They would’ve inevitably convicted him had the correct direction been given.” Going back to your Honour Justice Hayne’s point, we have here as a starting point, the threshold is that the Crown has conceded that it should have provided the information that is the subject of the particulars.
It, therefore, breached its duty of disclosure and the duty of disclosure is a duty to disclose that which is necessary to a fair trial. Breach of duty, in our submission, it must follow that there has been an unfair trial and that must surely be a clear instance of miscarriage of justice.
GUMMOW J: I am not sure, and you might come back to this, how you then respond to or what you make of your opponent’s reliance on paragraph 36 of its submissions, the list of matters (a) to (f) that we were taken through, coupled with the media material at 1 appeal book, 376 to 380. In your response, in paragraph 19 in reply, it does not really seem to grapple with it, at the moment.
MR McCUSKER: But, your Honour, dealing with the ‑ ‑ ‑
GUMMOW J: No need to come to it now, I see it is a quarter to one.
MR McCUSKER: No, certainly. Could I say one further matter. My learned friend has take your Honours to the various things that the appellant said and put it to your Honours that these are the things that were not found in the media and, therefore, only the murderer could have known.
GUMMOW J: Yes.
MR McCUSKER: That, of course, is not correct. Not only the murderer knew them, also the police knew them. Some of the things are wrong but to the extent that there are things in there that might be said are correct statements, which only the murderer, it is said, could have known, that simply is not correct because clearly the police did know it.
GUMMOW J: This notion of “only could have been known” seems to have come first in 2 appeal books at 834 to 835.
MR McCUSKER: That was the closing address of counsel for the prosecution.
GUMMOW J: That is right, but it seems to have come forward in the Gary interlude at 834.
MR McCUSKER: Yes, it did, indeed.
GUMMOW J: And it seems to have been put to your client that there were certain things that only the murderer would know.
MR McCUSKER: If I could put it this way, your Honour, from what has now emerged, if the jury had known that during the period 10 to 17 June – remember the 10th was the first interview and the 17th was the second – an undercover officer called Gary was with the accused, was shadowing him, as it were, ingratiating himself with him, as the accused has said before the reference court, supplying him with cannabis but whether he was supplying him or not certainly the accused – the appellant was during that period taking cannabis and becoming increasingly strange in his utterances.
If the jury had known all that and had also known what we now know, the amounts of evidence, that would have been a detraction from the thesis that the accused was confessing and confessing in a reliable way. If they had known all those things and known that the police on whose word so much depended had kept back – and I say this in broad terms ‑ information from them which ought to have been disclosed, then it is difficult to think that a conviction would be inevitable because they have looked at the alleged confessions with a totally different eye.
Even the videotape – bear in mind, your Honours, as the evidence shows – the videotaping session came at the end of a very lengthy session of verbal interview, as they put it, and not only that, that that previous night the accused had had little sleep, almost no sleep, and had been bashed outside a nightclub.
So, his state of mind, affected by drugs, a man who suffers from bipolarity and who has been with an undercover officer and possibly fed information by him and by the detectives, all of that would impinge on the jury’s consideration of whether this man was truly confessing or whether he was simply romanticising and constructing a theory based on information fed to him.
GUMMOW J: Is that a convenient time?
MR McCUSKER: It is, your Honour, thank you.
GUMMOW J: Yes, 2.15.
AT 12.49 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GUMMOW J: Yes, Mr McCusker.
MR McCUSKER: Your Honour Justice Gummow asked me to consider paragraphs 36 and 37 of the respondent’s submissions. Can I go immediately to that. In paragraph 36(a) asserting a significant statement demonstrating the knowledge, and it said:
(a) The appellant’s accurate description of the areas of injury to Mrs Lawrence, and the manner in which those injuries were inflicted. The forensic pathologist, Dr Cooke, was of the view that the appellant’s description in the video record of interview “fits fairly closely” and “fits quite well” –
On that point, your Honour, may I first take you to paragraph 9 of our reply, in which we make the point that it was always the appellant’s case that his theorising was a combination of matters the police had told him and his own supposition. The full sentence from the appellant’s evidence – which we have quoted, it is 2 AB 699.05:
“You know, I believed him so I’m trying to convince him of my innocence, my true innocence, sincerely, and I was remembering what I could and those memories were coming around from all over the place; from Sunday night and around to the state when I was in total confusion to the point where anything that he suggested to me I would adopt”.
So that is his stance on that. As I said before the luncheon break, it is clear that many of these things were known to the police and are said to be indicative of guilty knowledge. Furthermore, the appellant gave evidence of ‑ ‑ ‑
KIRBY J: Is there anything that was not known to the police?
MR McCUSKER: I do not think so, your Honour, no. There is nothing that the police would not have known.
GUMMOW J: On this list, in paragraph 36.
MR McCUSKER: Yes, paragraph 36. The position was that between 10 and 17 June, and I will take you to the evidence again in a moment, the appellant was in an increasingly strained state and that is confirmed by the undercover officer’s report. But there is more to it, still dealing with 36(a). At 4 AB, 1851, this is evidence that the appellant gave at the reference, where he said that, halfway down the page, he made a sketch and he made a sketch based on a photograph of the deceased which he said he had been shown by the police in the course of these interviews.
HEYDON J: Are you sure it is 1851?
MR McCUSKER: It is 1851 point 1, I am sorry, your Honour, volume 4. There is 1851 and followed by 1851 point 1.
HEYDON J: Yes, I have it now.
GUMMOW J: I see.
MR McCUSKER: Then the sketch itself is at 6 AB, 2029, and this was a sketch that he made, his evidence was, based on the photograph that he had been shown by the police in the course of the series of discussions he had with the police. In fact, he said – you see at the top:
Estimated size and appearance of Photograph Caporn forced me to look at!
He gave evidence that he tried to turn his head away because he did not want to look at this. It was a colour photograph, so he was clearly being given information by the police. Then in the video ‑ ‑ ‑
KIRBY J: I thought Mr Walker said there was no such photograph at that time.
MR McCUSKER: The photograph has never been produced, although it was sought, so that what we ‑ ‑ ‑
KIRBY J: If it does not exist it cannot be produced.
MR McCUSKER: It goes this way, your Honour. The appellant said, “I was shown a photograph and based on my recollection of a photograph when I was at Casuarina Prison awaiting trial I made this sketch of what I was shown” – this was well before the trial – “and gave it to my Legal Aid lawyer, Mr Hogan”.
KIRBY J: The likelihood is that there would be photographs if the photographs of scenes like this are commonplace.
MR McCUSKER: Yes, and his evidence was that the photograph was shown to him by the detectives in the course of their interviews and he was in fact, he said, forced to look at them. If I could take you, in the same volume, 6 ‑ ‑ ‑
KIRBY J: Is there any passage in the transcript where the detectives say that there was no photograph taken?
MR McCUSKER: Can I take you to the video. He was referred to the – volume 2. At page 826, point 6, he is being asked in the video:
And you said to us that you hit her how many times?
MR MALLARD: I would say six to 12 at the max.
DET SGT BRANDON: Six to 12 times
MR MALLARD: Judging by the damage that was shown to me in photographs, from the top of the - -
He is cut short. Your Honours may have already seen, but it is clear that at various points during this videotaped interview, when he was about to say something he was cut short. If you take just one further illustration, on the other page, 827 he is asked by Brandon at point 6 - that should be Brandham, not Brandon:
DET SGT BRANDON: Okay. Now, you told us that you dragged her from that location after you’d finished - -
MR MALLARD: That’s correct.
DET SGT BRANDON: - - and you dragged her to another position in the shop?
MR MALLARD: But I’ve some more ideas on that.
He is cut short. I will take you to the evidence of it but I can tell you now that Mr Brandham was asked before the reference CCA, “Why did you stop Mr Mallard when he was about to say something more on several occasions?” and his answer was, “I thought he was about to go into another of his theories”.
KIRBY J: I thought Mr Walker told us that this thesis can only be described as one of corruption on the part of the police officers but that in the review Bench you did not run a case of corruption on the part of the police officers.
MR McCUSKER: Your Honours, can I put it this way: It was not necessary to run a case of corruption as we saw it because, and I think his Honour Justice Gummow remarked this morning, it does not matter whether the non-production or the breach of the duty of disclosure is wilful or negligent, it should not have any different outcome. However, it was put and fairly forcefully at the closing of the case before the reference court that, in effect, the only inference that could be drawn from the combination of the material then before the court was that there was a deliberate withholding of information.
HAYNE J: Had any of that been put to the police?
MR McCUSKER: One policeman was asked why the Engelhardt – not all the police were called but ‑ ‑ ‑
HAYNE J: No, but was it ever put to any police officer that they or other police officers had deliberately withheld information?
MR McCUSKER: No, it was not, your Honour. What was put to the police officer in relation to the Engelhardt matter was the question, “Well, why did you do it?” The answer that was given was, in effect, he could not remember why he had done it. But it is our respectful submission, your Honours, that where there is a clear breach of a duty of disclosure in circumstances such as this it behoves the prosecuting authorities to explain just what occurred. On the face of it, it may be said perhaps that one is an oversight, but where there is a series of failures to produce information it goes beyond, on the face of it, mere oversight.
The case was not run, because our view was, whether it be right or wrong – and it has been put in this Court that perhaps there needs to be, based on Lawless, more than mere failure to produce material, more than mere failure to comply with the obligation of disclosure, but something sinister. Our submission is that it does not matter whether it be sinister or negligence, and we maintain that view.
Now, the further point to make about 36(a) is that in volume 6 at 2142 at 19 – I should mention by the way, I think there is evidence that you have been taken to that at the trial Mr Mallard said that he had been shown a photograph. The sketch was produced at the reference CCA and it was produced from the Legal Aid file. It was not as though it was a recent invention. At 2142 at point 19 you will see there – this is the undercover officer’s recording of a conversation between him and Mallard:
so did these guys um confront ya with this girl had been –
says the undercover officer. Mallard:
yeah they showed me photographs
UCO Yeah,, and what is your theory on it –
and so on. It was not known at the trial – in fact, it was not known until the Attorney‑General’s reference commenced – that there had been an undercover officer involved with Mr Mallard.
While your Honours have that report, you will see at page 2129, which is part of Mr Shervill’s comprehensive report which starts at page 2108, a “COMPREHENSIVE SUMMARY OF FACTS” and which was sent to the Director of Public Prosecutions. At page 2128, based apparently on the report of the undercover officer and other officers, at line 25:
Between June 10 and 17, 1994 the accused’s mental condition showed signs of deteriorating whilst in the community. His behaviour was abnormal, irrational and unpredictable causing various members of the public to approach police and draw their attention to the accused.
So the flavour is very strong of the nature of this person.
During this time the accused’s appeared unable to cope within the community and his odd behaviour consisted of –
and then there is a list of strange incidents of behaviour. I will not read them all through, your Honours, but importantly between 15 and 20 at page 2129:
becoming increasingly dependant on drugs of addiction, particularly cannabis –
If we go from there to 2138, which is his portion of what is called the BCI report, which is the undercover officer’s report. It was a very lengthy report and it was difficult for the appellant’s legal advisers to get any of it, but they ultimately did. At page 2138 you will see at the top of the page there at about line 8:
T1 has then asked me if I wanted to come with the group when they went to find a place to purchase some cannabis, I offered my assistance and offered to drive them around.
At the foot of the page they then talk about smoking cannabis and at the top of 2139:
I have returned awhile latter and found the group totally stoned on cannabis –
and at 2140 at line 4:
the street kids had returned and the group returned to the hotel room. T1 and the street kids then started to smoke more cannabis ‑ ‑ ‑
KIRBY J: Mr McCusker, your client was presumably sentenced to life imprisonment, was he not?
MR McCUSKER: Yes, your Honour.
KIRBY J: Were any prior list of offences revealed to the court in any way, or is that relevant to any issue or not? Is there any pattern of acts of violence?
MR McCUSKER: I am told no prior offences were revealed of any significance. I am not sure about the petty offences, for example, the stealing of the police sergeant’s badge that occurred on 23 May. Still looking at the undercover officer’s report, or the BCI report as it has been called, at page 2146, line 10, which is part of the apparently recorded discussion, there is another discussion which is illustrative of the rather strange state of mind of Mr Mallard where he says:
Yes,, if it stopped turning we would fly off into space I thought about once using a three thousand metre long railing to throw a rocket ship off its trajectory in an anti clock wires movement of the earth’s against the forward thrust of the rocket –
and so on. Now, we go to that just to show that the known state of mind of the suspect, who was then subjected to two interviews, was of deteriorating mental condition. Indeed, at page 2084 ‑ ‑ ‑
KIRBY J: Of course this in one sense might cut both ways, that a man in such a deteriorating mental condition might do something so abnormal to his ordinary life as to strike a woman whom he did not really know with some object 15 times, 12 to 15 times, and kill her.
MR McCUSKER: There is no history of violence but true it could ‑ ‑ ‑
KIRBY J: That itself is a very odd thing for a person to do and particularly not then to steal things from a shop which is a jewellery shop.
MR McCUSKER: Yes, your Honour. An alternative view, of course, is that there was some motivation unconnected with theft, but it could not be motivation of the appellant because he did not know Mrs Lawrence. At page 2084, which is part of Mr Patchett’s report, he makes the observation at paragraph 22, just below line 25, his:
“mental condition showed [signs] of deteriorating whilst in the community. His behaviour was abnormal, irrational and unpredictable –
and he lists all the matters.
KIRBY J: What page was that?
MR McCUSKER: Page 2084, your Honour, and he goes to page 2086, line 15:
It is generally accepted that the use of drugs such as marihuana, amphetamine and alcohol may exacerbate, perpetuate or even precipitate the onset of a manic episode in people suffering from mental illnesses, like Mr Mallard.
Now, bear in mind this is all between the 10th and the 17th so it is after the date of the murder which was 23 May, and what it does point to is a person who was inclined to fantasise in a very strange way. At 2089, Mr Patchett says at line 20, paragraph 34:
I am strongly of the view that Mr Mallard was in a manic state during his 5 interviews with the police and during the First and Second Confessions. His abnormal mental state was well documented by Dr O’Dea in the first report he wrote for the Court on 8 June 1994. It is also evident in the many reports of his disorganised and disinhibited behaviour prior to his first arrest and while at large between the two admissions to Graylands Hospital, and it is again well documented in Dr O’Dea’s final report . . . In my opinion, Mr Mallard’s manic state was one isolated episode commencing in at least early May 1994 and lasting until his condition apparently improved whilst he was at Graylands in June/July 1994.
Over the page, importantly:
Mania is reknown for impairing judgement and I believe there is a great deal of evidence that Mr Mallard’s judgement was quite grossly impaired at the time. Mania can also make individuals much more disinhibited, gullible and suggestible, such that they often indulge in reckless behaviours and make reckless decisions. Furthermore the addition of substances such as cannabis, and amphetamine, complicates these problems through the direct effects of intoxication and through accentuation of the mania.
And 36 he concludes:
an extreme example of the dangers of suggestibility in manic patients. They have great difficulties critically appraising information and are likely to weave in material from a variety of sources to construct a picture of what is happening around them. In summary, I believe Mr Mallard’s ability to process highly significant material for him personally, such as an enquiry into the death of Mrs Lawrence, was markedly impaired.
So the picture is very clear, and it is a picture which was known to the investigating detectives in the sense that they knew that his erratic behaviour and strange utterances were of a person whose so‑called confessions had to be treated with great care.
I take you on that point, still at volume 6, to page 2137. This is Mr Shervill’s report to the Director of Public Prosecutions, at line 10 where he says:
Furthermore, the rambling admissions made by the accused during interview left doubt in the minds of some investigators as to whether the accused had in fact murdered Pamela LAWRENCE.
The same report contained, your Honours will recall, the report about the testing of the wrench. Could I just address a point that your Honour Justice Kirby raised this morning with my learned friend and I think yesterday, and that is the suggestion that perhaps the non‑disclosure of a test on a pig’s head might not of itself be thought of any great importance. The testing of a wrench on the pig’s head was done at the same time, not simultaneously, obviously, but the same time as the testing with an anode.
KIRBY J: Explain the testing of the anode.
MR McCUSKER: What was done there, your Honour, was again with a pig’s head, an anode was used to strike blows on the pig’s head to see whether the anode was capable of producing the same kind of wounds as were observed, in great detail, on the head of the deceased. At page 2364 at volume 6, under the heading, “WEAPON”, it was first observed between lines 5 and 10 that there were:
numerous copper anodes which are suspended in the bath during the electroplating process . . . All the anodes were examined and no blood was detected on them.
Doctor COOKE compared an anode to the wounds sustained by Pamela LAWRENCE . . . an experiment was conducted by Doctor COOKE in conjunction with Mr Bernard LYNCH . . . whereby a [pig’s] head was struck with a copper anode to ascertain what shaped wounds would be inflicted and the amount of copper residue that would be left in the wounds.
The conclusions . . . were that the anode left wounds of a similar shape to some of those sustained by LAWRENCE, but the copper residue left in any of the wounds inflicted by the anode would be enormous and easily detected during laboratory testing. As only minute traces of copper were detected on the wound swabs taken from LAWRENCE it is considered that a copper anode is not the murder weapon.
During this experiment, a crescent wrench was also tested which inflicted dissimilar wounds to those sustained by LAWRENCE.
At volume 6 at 2321, at line 17, Mr Shervill, in an affidavit, says:
The experiment referred to at page 29 of the Summary -
which is the summary I have just taken you to -
was conducted in the presence of Dr Clive Cooke, Mr Bernard Lynch, Detective Sergeant Brandham, Detective Carter, and myself.
Now, significantly, your Honours, evidence was given by Dr Cooke of the experiment conducted with an anode on the pig’s head. I think it has to be inferred, since there were two scientific persons present, that their view was that it was a satisfactory means of testing a weapon to see if it would produce the kind of wounds that were on the head of the deceased, in other words, whether it could be the weapon. Evidence at some length was in fact given by Dr Cooke to the jury concerning the testing of an anode and his conclusion that an anode was not the weapon. That appears in volume 2 at page 638. You will see at the top of the page the conclusion reached.
KIRBY J: Why would the evidence about the wrench then be suppressed?
MR McCUSKER: That is the question, your Honour.
KIRBY J: That is the question, especially as it also came up with a negative result.
MR McCUSKER: Yes.
KIRBY J: And there was the feature of rust as well that – that may not necessarily be conclusive because it may be that the particular wrench had become rusty.
MR McCUSKER: Could have rust on it, yes.
KIRBY J: But it is supposed to be stainless steel, is it not?
MR McCUSKER: It is supposed to be, but the contention of the respondent was, well, it could be rust anyway, at the trial, but the point did not seem to arise. But the contention of the respondent has been, well, a wrench could be the weapon because it could have rust. This was an answer – one of the points that we raised before the reference court, namely, that Sidchrome wrenches do not usually rust. A representative of Sidchrome came forward to proudly give that bit of evidence, but it could have had some rust.
The point, however, is that for a wrench not to produce the wounds that were seen on the deceased is in conflict with what was said to be a confession by Mr Mallard that he had killed the deceased with a wrench, which he drew, and in respect of which Mr Lawrence, the husband of the deceased, said, after having initially you will recall on 8 June said he could not identify anything missing at all, had said after speaking to the detective on 10 June at the time that there was a discussion between the detectives and Mr Mallard, which Mallard said was theorising, he then said, yes, there could be a Sidchrome wrench missing.
So what went before the jury was this. Here is the accused, has admitted to killing the woman with a wrench and he has drawn the wrench, which incidentally, we have put it in our submissions, the jury were asked to take into the luncheon room halfway through the trial. The significance of that wrench, of that sketch, being his admission in effect was very great.
The jury were told in very clear terms by the forensic witness that a testing had been carried out with an anode, and all reference to the testing of the wrench was omitted.
KIRBY J: Dr Cooke does not really say or explain why the blows on the deceased were not consistent with the wrench and the damage it did to the pig’s head.
MR McCUSKER: He did at some length, your Honour, explaining that – well, the short note from Mr Shervill was simply that the wounds were dissimilar. Mr Cooke, in his evidence before the reference court, explained that the shape of the wounds was not consistent with a wrench.
KIRBY J: How did the reference Bench deal with that evidence?
MR McCUSKER: The reference court ultimately said, first, that there was some evidence from the experts that the evidence could not necessarily exclude the possibility of a wrench being the weapon, but in that regard Dr Cooke said he had looked for any wrench capable; that is, having the right shape to produce these kinds of wounds. The detectives gave evidence, although they gave none at the trial and the evidence was never disclosed to the defence, that they had actually gone on a search – I think I mentioned this yesterday – looking for any wrench that might possibly inflict the wounds, and could find none.
The prosecution, respondent, engaged a Dr Jerreat – who is referred to in our submissions – a UK expert. Dr Jerreat was engaged to effectively carry out a further test to see if a wrench could possibly be the murder weapon or, rather, to report on whether it could. His report appears – I put it this way. Dr Jerreat was engaged, his report was disclosed by the respondent prior to the reference, some considerable time after they had received it. The respondent was not prepared to allow his report to be tendered, and in the fairly short time available to the appellant an approach was made to Mr Jerreat, first, whether he was prepared to give evidence on behalf of the appellant by video, and he was not prepared to do so, but he did swear an affidavit for the appellant, which appears at 2448. You will see large parts of the affidavit were objected to successfully by the respondent.
HAYNE J: What is the point you are seeking to make by reference to all of this, other than general notions of the respondent has not helped you.
MR McCUSKER: The point we are making, your Honour, I suppose to come directly to it, dealing with the question of whether a wrench could have caused the injuries, is that as appears at page 2450, a part that was left in, the affidavit, not subject to objection, he says:
Whilst I have not seen a wrench myself that could have caused these injuries, there are so many varieties of wrenches that I cannot exclude a wrench from having caused the injuries.
In paragraph 1 he gives details of his experience in forensic medicine and pathology. There is a further aspect to it dealing with the question of whether a wrench could have caused the injuries that Dr Cooke gave evidence to the reference court that he had been shown by the counsel for the respondent – he had gone on the Internet to see if there was any wrench available on the Internet that might have caused injuries, and he said one was not too bad, but it still was not good enough. So in other words, he has never found any wrench, nor have the detectives, nor has anyone else that could have possibly caused the injuries. Now, all of that ‑ ‑ ‑
KIRBY J: Could you give me that evidence of Dr Cooke, the citation?
MR McCUSKER: I will, your Honour, yes. It is actually in our submissions, your Honour. It is in our written submissions. So the question that your Honour Justice Kirby raised with me is, with respect, a very good question. There is the report at page 2364 of volume 6 to the Director of Public Prosecutions. It is a report on a negative outcome testing an anode on a pig’s head and a negative outcome testing a wrench on a pig’s head, and only the evidence regarding the anode was produced. Your Honour, the reference to Dr Cooke’s evidence is at paragraph 46 of the appellant’s submissions.
GUMMOW J: That is 36(a).
MR McCUSKER: That is 36(a), now I come to the rest of it. I have not gone so far as to have a look at the rest, your Honour.
GUMMOW J: No, I am sure you have not.
MR McCUSKER: There is another aspect to this and, indeed, the rest of 36. Your Honours will recall that there was evidence that Mr Mallard said to the detectives on several occasions, including on the videotape, that the number of blows was “six to 12 at the max” and that, we would suggest, is confirmatory to a degree of his statement that I have taken your Honours to earlier, that he was being, in effect, fed information and what he was saying was the result of theories that were working out between, as he saw it, himself and the police. Now, going to 36(b) it says:
The appellant’s statement that blows were inflicted on Mrs Lawrence while she was on the ground . . . see Mr Bagdonavicius’s evidence at trial {2AB 630.10-.12}.
There are two comments to that. If you go our written submissions on the 15 points which I will be referring to several times, which is appendix 2 to the appellant’s submissions, first, to deal with this point, referring to Mr Bagdonavicius’s evidence ‑ ‑ ‑
GUMMOW J: Is it the position that a written submission to this effect was put into the reference court?
MR McCUSKER: Yes, it was.
GUMMOW J: This is a copy of it?
MR McCUSKER: This is a copy of it, your Honour, with the only changes, I think, being the present appeal book references.
GUMMOW J: Thank you.
MR McCUSKER: Bagdonavicius’ evidence at volume 2 appeal book at page 630, line 10, which is the reference given by the respondent, is not quite as put in paragraph (b). What Mr Bagdonavicius says at line 10:
Right, and I think you say in your report that that splattered blood must have originated from a source on or close to the floor. Is that right?---That is correct, yes, from an area consistent with where that large pool of blood was.
So he does not say actually the blows were inflicted while she was on the ground. Of course, if a person is struck with a heavy instrument and blood starts to flow, then, as the body falls, blood will still be flowing and there could be a splattering effect. So it is not true to say that that was the evidence of Bagdonavicius, that she was struck whilst on the ground. At paragraph 15 of our appendix 2, at page 3, we aver:
The trial judge directed the jury “it would seem pretty clear, you may think…that she was first struck down in front of that partition wall…then, of course, you have got the evidence that she was dragged to the rear . . . The Appellant is alleged to have told Caporn that Mrs Lawrence was hit again after he moved her (to the back of the shop). However, Brandham said that the Appellant told him that Mrs Lawrence was not hit at the back of the shop.
Sorry, that is jumping to paragraph (c), I think. I will come back to that, your Honour. Paragraph 15 and also paragraphs 11 to 17 of the appendix deal with the point paragraph 36(c). You will see we have put the heading of the fourth and fifteenth points “The Appellant said that he dragged her body from the front to the rear of the shop and this was consistent with the evidence of Cooke and Bagdonavicius” and then we set out there the various evidence that relates to Mr Mallard’s verbal interview:
11. According to Caporn, Mallard said (in a verbal interview) that he did not go into the back of the shop despite Mrs Lawrence being found lying at the back of the shop. Later the Appellant is alleged to have said that he dragged Mrs Lawrence to the back door.
12. According to Brandham, the Appellant said (in a verbal interview) that he dragged Mrs Lawrence to the back of the shop.
13. The Appellant gave evidence at trial that he did not say this to Caporn or Brandham. In the video interview he said “what Mr Brandham suggested to me and I just agreed with him.” He said that he marked the X when told by Carter: “Now, don’t forget to put the X in where she was dragged to”; “so I did that and I have tentatively drawn little marks here and also – I think that is supposed to be the rear door. He said, “What about the rear door?” I said, “Okay, there is the rear door,” and he’s put that in”.
So I come back to the opening point which is, of course, that the evidence is strongly suggestive that this man who was very suggestible was being fed information and doing, as he thought, theorising with the police and marking things in diagrams and so forth which the police were suggesting he should put in.
KIRBY J: That is, of course, a terrible suggestion to make of the police officers effectively that they would put a man away for his life, or a very, very long period, deliberately not caring whether he was guilty or not. That brings you to Justice Hayne’s question that one would have thought that such a suggestion would have been put directly to those of whom it is now said that they did such a dastardly thing.
MR McCUSKER: Your Honour, this was not a trial, of course. This was a reference to the CCA.
KIRBY J: No, but still it is a matter of basic fairness to people. If you are going to make these accusations against them that you should put it to their face. I mean, it is in human rights instruments.
MR McCUSKER: It was put at trial, your Honour, and so there is no suggestion of any surprise on this. Furthermore, this was not, as I say, a trial; this was reference. We are simply saying this was what he said, this is what Mr Mallard said had happened. I am not accusing the police officers. We are simply saying there is the evidence from which such a conclusion might be drawn or, to put it at its proper level, that there is evidence which is capable of giving rise, quite clearly, to a reasonable doubt as to whether he in fact was volunteering information of his own knowledge or simply theorising using information given to him by the police in the course of it.
GUMMOW J: Now, item (c) seems to be taken up as 7 in the 15‑point document.
MR McCUSKER: Yes, your Honour, and also I think paragraphs 11 to 17 deal in general terms with that.
GUMMOW J: Yes.
MR McCUSKER: As to item (d) dealing with the description of having noticed a girl, there is a lot, as I have already mentioned about that ‑ ‑ ‑
GUMMOW J: Yes, that is right.
MR McCUSKER: ‑ ‑ ‑ but I could also give you in that document paragraph 25 through to 43 cover that point.
GUMMOW J: Under heading (7).
MR McCUSKER: It is the seventh point, yes.
GUMMOW J: Yes, the seventh point.
MR McCUSKER: Paragraph (e) is dealt with in this document in paragraph 7 and 8, that is the small numbers 7 – I am sorry, that is not right.
HAYNE J: No, it is section (11), paragraph 47, 48, page 8 of the document.
MR McCUSKER: Thank you, your Honour.
GUMMOW J: Yes, that is it.
MR McCUSKER: Paragraph (f), the references there given by the respondent are two of the verbal interviews at 2 AB 502 and 517 and then there is the reference to the videotaped interview at 2 AB 822.
HAYNE J: You deal with this under heading (6), paragraphs 21 and following, do you not?
MR McCUSKER: Yes, we do, your Honour.
HAYNE J: What more do you add to that?
MR McCUSKER: Yes, nothing more except perhaps the observation that at page 822 in the videotape interview at 07 you will see that – yes, it is dealt with at page 11, your Honour is quite right. So we have covered both those matters and indeed the other matters comprising the 15 which were said to be 15 matters that only the murderer could know. Unless your Honours wish me to, I will not go through that in detail. The references are all there.
GUMMOW J: Thank you.
MR McCUSKER: I would like to put to rest at once any suggestion that my learned friend may have made, or inadvertently made, when he made the remark yesterday that the appellant was putting all its eggs in the proviso basket, which is a shorthand way of saying we are relying simply on the proposition that we say emerges from Wilde’s Case and so on. We do not.
We say that this is a case where the series of matters which were not disclosed, four of which were conceded to be in breach of the prosecutor’s duty of disclosure, and all of which go to the central question at trial of whether the accused was theorising or confessing, they are so central that this is a case where the question of the proviso’s application does not arise for consideration, but if the Court were not of that view and concluded that in every case where there is perceived to be a miscarriage of justice of whatever degree there is – or to take this case, that this case does not fall within the range that my learned friend, Mr Walker, suggested may sometimes make that approach appropriate, then we say that it certainly is a case where the onus is on the prosecution, having established that there is a breach of the duty, the onus is on the prosecution – and I think Mraz’s Case for example clear shows that – there is no dispute that the prosecution must then satisfy the court that the proviso should be applied or that, in other words, by application of the proviso it can be seen that despite the non‑disclosure that the accused was not deprived of a fair chance of acquittal.
In that regard, your Honours, we have referred in our outline of submissions to the various matters and their significance. The references are referred to in the summary of issues. If I take them in turn, as my learned friend has in his endeavour to satisfy this Court that the proviso should apply, the test with the wrench I think I have taken your Honours as far as need be taken. That is it has been put to this Court that it is just, as the reference court itself said, another inconsistency. My learned friend has put that on the basis that there were many inconsistencies before the trial.
Now, first, it is important to appreciate the high degree of significance that was attached by the prosecution to the wrench – being a wrench, I should say – and indeed the wrench drawn by Mr Mallard being the murder weapon.
It starts at volume 3, page 903 where counsel for the prosecution, at line 10, refers to what the Crown case is and says:
The confrontation between Pamela Lawrence and Andrew Mark Mallard was not supposed to happen –
the theory was a robbery gone wrong –
and when it did the accused man was quite prepared for it and he had taken the wrench from the back shed after casing the joint from the front to make sure that no‑one was in the premises of Flora Metallica. He took the wrench from the back shed to jemmy the back door latch . . .
brutally and savagely hit her over the head with the wrench that he was carrying and then decamped –
then at line 25, again he refers to the “wrench” as being the weapon used. I am taking your Honours through this because there was some suggestion that there was an alternative weapon perceived to be a possibility by the prosecution and indeed by the defence. It is true that Mr Hogan before the reference court said that at the trial he had thought that there was possibly some weapon other than the wrench, but of course that would have been a bonus for the defence. If it could be shown that it was not the wrench but something else it heightens the likelihood of theorising.
Now, what my learned friends have taken you to is at page 913, the evidence of Mrs Raine at line 20 where she talks about seeing the appellant in a lift – she had talked about “carrying an iron bar” and in closing, counsel for the prosecution says:
“Well, there was iron oxide in the samples from the wounds that were taken and the blows were struck with an iron bar -
quoting Mr Lynch:
So how many people are there in Mosman Park who are carrying an iron bar shortly after 10 past 5, who are so tall that they have to duck down to get into the lift at the Bel Air flats?
It is suggested from that that one might infer that the prosecution is putting it that, well, maybe, it was an iron bar that was used, but indeed, if you just go to the next page, at 915, to see that what, in effect, counsel was putting to the jury is that the iron bar was really a wrench, and I will take you to what his Honour the trial judge said about that. Between lines 15 and 20:
At the end of the day, the crown case comes down to two very simple propositions: firstly, the accused man unlawfully killed Mrs Lawrence by striking her on the head at least 12 times with the wrench that he had taken from the back shed –
and the learned trial judge, in his summing‑up at page 934, dealing with the evidence of Mrs Raine said:
You would need to be satisfied that it was him that she saw. If so, what is the significance of that? She described the person carrying an iron bar. Could it have been part of a wrench that she saw –
So from beginning to end – and I did not take you to the opening – well, I did, in fact, take you to the opening – from beginning to end of the prosecution case, the fact that a wrench was the weapon was emphasised. We have said in our written submissions that there was reference to the wrench including the tendering of the sketch of a wrench, some 80 times through the trial. No suggestion by the prosecution, “Well, it might’ve been something else.”
Now, turning to the evidence regarding Ms Engelhardt, we have referred to that in some detail and I do not propose to read it through, the submissions at paragraphs 60 to 63 and 87 to 89. There is a time line that I have taken you to showing the sequence of events, how her original statement, which was not a draft but a statement signed by her, was changed. The change was made significantly after Mr Mallard had said, “Well, maybe the person that saw me mistook my cap for a bandanna because I sometimes wear my cap backwards.” But the evidence of Mr Mallard at trial, I should hasten to say, was that he thought the detectives were referring when they discussed it with him, to a day some 10 days earlier when he had been in the shop.
Now, if you look at volume 6 of the appeal book, page 2014 – I am sorry, I will come back to that, your Honours. Could I take your Honours to the evidence that was given by Ms Engelhardt at the reference CCA. My learned friend, the respondent, has taken you to some of her evidence and given you some references to suggest that really – I think as the reference court saw it, she would not have given the evidence that appears in her handwritten statement. So I want to take you – and her handwritten statement appears, your Honours – it is quite a short one – at 2002 through to 2007 – that is at volume 6 – and concludes:
I have read this statement and it is true and correct in every detail and I am aware that if I have included anything in this that I know to be false or untrue and if it is tendered in evidence that I will be guilty of a crime.
It was only, as I said, after Mr Mallard said that it might have been his cap that was mistaken for a bandanna that that statement was changed and a typed statement was produced which contained no reference to the cap hanging on the hook which appears at page 2004. My learned friend has pointed that she says “hat” there but the evidence was he only had a cap. That was his only headwear. At 2005, where she refers to, halfway down 2005:
He didn’t have any [sort] of head wear on –
when he returned that late afternoon. If I could take your Honours to her evidence at volume 3 of the appeal book ‑ ‑ ‑
KIRBY J: What page?
MR McCUSKER: Page 1219. She was called because there was an objection to the statement that she had made simply being tendered as a statement that she had made, that is the handwritten statement which was subsequently replaced, or at least never saw the light of day, I should say. She was called in order to prove the statement and she was asked at 1219 about it and she said at line 14:
This is the first statement I made and this was at the time what I saw to be correct.
She was asked some questions at 1224 between lines 15 down to the bottom:
It was really stormy and raining.
It was a particularly, as I said yesterday, stormy day and she gave evidence that it was not like that the day before and it was not like that the day after, it was just a bad storm on that day so the memory of it stuck out.
When you got home, did you notice where Andrew’s hat was?‑‑‑Yeah, it was still on the hook.
That was about 3.30, 3 to 4 o’clock. At the foot of the page:
Can you recall whether he had anything on his head?‑‑‑He had nothing on his head. He was wet and he had a black leather jacket on.
She goes on in some detail at 1225 about the weather and Andrew’s arrival.
I will not take you through all of the cross‑examination, but she was cross‑examined at some length from pages 1227 to 1288 about her current recollection and she said, and I certainly will not take your Honours through all of that, but she said in the course of her cross‑examination that she was suffering from the flu. That is on the day that she was being cross‑examined. Then if she was not believed, if she was thought not to be a credible witness she would like to leave the Court and so on, all of which we say is totally irrelevant to the issue because the only issue is, there was a statement that she made, she stood by the statement, she said that was true “as I believe it at the time that I made the statement”, and she did not resile from that. But she did concede that her memory of events some nine years ago was faulty and she would not like to now say anything unless she was 100 per cent sure and with some things she could not be.
On re‑examination at page 1290 she was asked about the process whereby the – well, perhaps I should start at 1288 at the foot of the page, she was asked about the process whereby the new statement – at the foot of the page she says:
“In retrospect, I believe the police kept interviewing me.” I changed that to “I wonder if” and the next one –
and so on. It does not take us anywhere, I am sorry. At page 1290 she is asked about the police interviews and at line 20:
There was a further typed statement that was prepared and which you signed on 27 June, nearly a month later . . .
Do you remember how it came about . . . Actually I don’t really remember how it came about.
Do you remember where it was that you signed the typed statement?‑‑‑No, it was either Perth or Fremantle CIB headquarters and I can’t really remember which one it was.
Do you remember who it was, what policeman it was that you saw when you signed this typed statement?---Yes, with the typed statement it was definitely Shervill and Caporn.
She could not remember the circumstances she said. So her recollection of the events surrounding the signing of the typed statement was not clear. But she did say at page 1292 that she kept – at line 15, as she had said earlier:
the cap seemed to be important?---They asked me how – I remember them asking me how did he wear it, did he wear it with the peak to the back, the side.
All right?---Just a lot of little detailed questions –
In the course of her evidence she also said that the police had come to see her on a number of occasions after she had made the handwritten statement. At page 1285 under cross‑examination she said - this is at the top of the page:
All I remember is just being asked over and over and over again and having to re‑rewrite it all again and I got less and less sure of things the more and more I had to go over them, over and over again.
The picture that she paints in the evidence that I have referred to, the cross‑examination is of a woman who has signed a statement, handwritten, which is her best recollection. She believed it to be true. Then subsequent to Mr Mallard having referred to the possibility of his wearing his cap backwards, she has been visited repeatedly by the police and she becomes less and less sure of things under questioning.
All that aside, coming back to the main point, this was evidence of which great forensic use could have been made at the trial. Not only could it have been used for the purpose of showing that he could not have been the man seen wearing his cap backwards or a bandanna‑looking cap, if there is such a thing, in the shop by Ms Barsden, because his cap was on the hook, and in addition to that, as your Honour Justice Callinan has remarked and we have made reference to it in our written submissions, the use that could have been made of that, of the altering of the statement by the police or the – I should not say altering of the statement, but the failure to produce the first statement by the prosecution could have been used to great effect before a jury who would have a doubt starting to be engendered by what the prosecution had failed to disclose.
The Lynch report, your Honour, Mr Lynch’s report, the first point to make about that is that whatever else may have been washed, and not all the clothes were – the shoes certainly were not – and if I could take you to – and our submissions deal with this matter at paragraphs 47 to 52, but if I could take you to volume 6, appeal book 2441. There are some photographs – these are copy photographs. They are exhibit 33, if we could call for that, and there are some additional copies. The only point to be made of it is that the amount of blood that was on this floor of the place of the murder was such that it would not be possible for the murderer to have left without getting blood on his shoes.
CALLINAN J: There was some blood, his own blood, found on his shoes.
MR McCUSKER: A spot of his own blood, yes, but none of the deceased’s, no other blood.
CALLINAN J: No.
MR McCUSKER: These photos were not disclosed to the defence until the reference hearing, but that is by the by. The point is that the blood ‑ ‑ ‑
KIRBY J: Their existence would be consistent with the photograph of the victim, one would think.
MR McCUSKER: Yes, certainly. The blood was such, as I say, that it would be impossible for the murderer, whoever it was, to have left without having blood on the shoes. The reference court referred to that particular aspect of the Lynch report, because the Lynch report clearly said there was no visible sign of any blood and there was no sign of any salt on the shoes. They referred to the possibility, as I read their decision, that the appellant was not wearing shoes, because sometimes he did not.
GUMMOW J: Whereabouts is that? In the reference judgment, is it?
MR McCUSKER: Yes. The problem with that hypothesis, which was not based on any evidence ‑ ‑ ‑
GUMMOW J: Was it suggested by anybody?
MR McCUSKER: No, and it was contrary to the evidence. The taxi driver, for example, referred to what he was wearing. No one suggested that he was without his Doc Martens shoes that evening and he would have very chilly feet if he did because it was a particularly stormy wet night. So it is a hypothesis or a speculation that takes us nowhere. I am reminded that there is a video taken on the Westrail train on which he left from the Mosman Park Station ‑ ‑ ‑
GUMMOW J: Yes, I was wondering about that. He was wearing shoes for that.
MR McCUSKER: Wearing shoes, yes. He was wearing shoes then, but nowhere in the evidence is there the slightest suggestion – I will take your Honours to it when it is found – that the appellant was not wearing his shoes that evening. Furthermore, the evidence as to his having washed his clothes was not that he had washed all of his clothes. He had washed some of his clothes, the clothes that he handed over, but the rest of them, there is no suggestion that all of the clothes were washed.
Now, he had a very small wardrobe, but the evidence regarding what clothes were worn and what clothes were washed is a little tangled, but the main point is that there is no evidence that he had washed all of his clothes before they were taken for testing. Some, clearly, were not, as my learned friend, Mr Walker, I think agreed. Some appeared not to have been washed and ‑ ‑ ‑
KIRBY J: Unless he changed his shoes, the existence of some blood on the shoes but not that of the deceased, the grouping of the deceased is a telling contrast.
MR McCUSKER: The evidence was he only had one pair of shoes, a pair of Doc Martens shoes. At paragraph 144 of the judgment at page 2541 at the foot of that paragraph:
The question of whether he was wearing shoes at the time of washing –
that is washing in the river –
(he frequently going barefoot) and, if so, whether he immersed the shoes in water or removed them for the purpose of going down to the water is all entirely speculative.
The “frequently going barefoot”, there may have been some evidence that sometimes he went barefooted but certainly not on that night. Again, the same forensic point can be made, why was Mr Lynch, who had produced a report which dealt with the question of immersion in saltwater, why was he on the same day requested when the answer was negative – there was no trace of any salt water on any of his clothing and no salt water visually, because they did not test the shoes in a chemical way, no visual sign of salt water on his shoes – why was he instructed to remove all reference to the saltwater testing?
Could I take your Honours on that point to volume 6 appeal book 2052. You will see there the first report that he made. At the first page, at 2052, item (d) he shows:
A sample of river water taken near Stirling Bridge in Fremantle and miscellaneous items of clothing.
So he was supplied with all of the material to test the clothes for salt water.
The items of clothing were examined to determine whether they contained residues consistent with immersion in such water.
Then the next page the heading “EXAMINATION OF RIVER WATER AND CLOTHING FOR IMMERSION” and the result of the examination over at page 2056, the heading “EXAMINATION OF CLOTHING FOR IMMERSION IN RIVER WATER”, “RESULT OF EXAMINATION” and it is all set out there, and the comments at the next page:
1. The residual soluble salts detected in the clothing items are not consistent with immersion in river water as represented by the sample from adjacent to the Stirling Bridge, Fremantle, unless they were subsequently washed in fresh water.
2. A pair of shoes and a leather jacket ex suspect . . . were examined visually. No visual indications of immersion were evident.
If you then go to 6AB 2036, there is an affidavit from Mr Lynch, and at page 2041 he refers in paragraph 20:
At the request of Detective Sergeant Shervill, I prepared two separate reports . . . One report was a consolidated compilation of all testing carried out.
That is BFL8, and that is the one I have just taken your Honours to.
21. The second covered only the examination of the samples obtained from the Deceased’s head wounds.
That is BFL9, which is at page 2058. The one at 2052, reporting the river water sampling, was never produced.
Now, in our submissions in reply, your Honours, can I just make one correction, and that is at paragraph 30 at page 13. At about line 25 it is stated incorrectly no explanation for that direction, that is to do the second report, has ever been given. That is not correct and I apologise for that. I will overlook the fact that at volume 4, appeal book page 1609, Mr Shervill, under cross-examination by counsel for the prosecution – you will appreciate that we were obliged to call Mr Shervill to prove various things, so asking Mr Shervill leading questions was certainly not open to us but it was open to the counsel for the prosecution and he asked him ‑ ‑ ‑
KIRBY J: Why were you required to call Mr Shervill?
MR McCUSKER: There were various reports and material that we were required to produce and could only produce it through Mr Shervill.
KIRBY J: Why did the prosecution not call him?
MR McCUSKER: We asked them to.
KIRBY J: This does seem to have been a ‑ ‑ ‑
CALLINAN J: I am worried about that. Why would the prosecution not have called Mr Shervill?
MR McCUSKER: Your Honour, I cannot answer that.
KIRBY J: I remember Mr Cock once turning up in Melbourne, before the Full Court of this Court, and saying, “We cannot defend this decision of the Court of Criminal Appeal and we will consent to an order being made allowing the appeal”, and I said to my associates at the time, “This is exactly how the Crown should act”. I must say this case does not seem to have been conducted in that same spirit.
MR McCUSKER: I must say in fairness to Mr Cock that when there was public agitation in 2002 regarding Mr Mallard’s conviction and it came to his attention he made available his papers from the DPP’s file which included Mr Shervill’s comprehensive summary.
KIRBY J: That is consistent with the way he acted in the case that I am referring to, but it just seems not to have been in the spirit in which these proceedings, which were on a reference, a review ‑ ‑ ‑
MR McCUSKER: Yes.
CALLINAN J: Where does Mr Shervill’s evidence begin in the transcript?
MR McCUSKER: Page 1549, your Honour, of that volume.
CALLINAN J: Which volume?
MR McCUSKER: Page 1549 of volume 4. It was to prove, among other things, the comprehensive summary of facts that he was called.
CALLINAN J: Where is his affidavit?
MR McCUSKER: It is 6 AB 2321, I am told.
KIRBY J: On a review Bench would it not have been open to the court itself to call a witness whom the prosecution refused to call?
MR McCUSKER: Possibly. There is an interesting area of law there as to whether ‑ ‑ ‑
KIRBY J: I know at the trial it would be entirely exceptional but on a review Bench – anyway, it did not happen.
MR McCUSKER: It did not happen, your Honour, no.
GUMMOW J: The cross‑examination started at 1594.
MR McCUSKER: Yes, and at 1609 the question of Mr Lynch’s report arose when counsel for the prosecution asked him at line 10:
Did you have a role in that process in relation to Mr Lynch’s reports?---Yes.
We will deal with them one at a time. In relation to Mr Lynch, are you able to recall on what basis ‑ first of all, what was your role, what part did you play?---I would liaise – when it come time to compile the brief, I would liaise with Mr Lynch to determine what – well, I would determine what exhibits I would rely on . . .
In this case, for instance, the reference to Mr Lynch’s findings in respect of whether items had been emersed in river water was not included in the report that went on to the prosecution brief?---That’s right.
So we get to that point, and then the question was:
Are you able to tell us how that came about?
Now, the answer is interesting:
Yes. My advice from Mr Lynch is –
not “was”, “is” –
that if the clothing had been subjected to either washing, laundry, or had been drenched with rainwater, for example, then the salt would be washed out and the test would be negative. So to that end I had him not included.
That should read “it”.
GUMMOW J: What page is this?
MR McCUSKER: Page 1610, at the top of 1610.
GUMMOW J: Yes, we have seen that before.
MR McCUSKER: And he said:
What was your understanding about the items that Mr Lynch had examined –
but the sequence in which all this occurred was that originally ‑ ‑ ‑
HAYNE J: It is a bit much to fasten on the present tense in light of what appeared in the original report at 2057, is it not, Mr McCusker, whether Mr Lynch positively gives the caveat “unless they were subsequently washed”?
MR McCUSKER: Yes, but they were not all subsequently washed.
HAYNE J: I understand that, but you are making a great song and dance about the present tense as though this is some recent invention by Mr Shervill. Now, really, if you are going to make those suggestions, you put them to the witnesses at the time. They have a chance to answer it.
MR McCUSKER: Your Honour, I will not dance around that point any more. It was the case that the sequence was this way. When the question arose of why the report regarding salt water was not produced, initially the proposition was that it had been washed out by the rain. That was the approach of the respondent to the reference court; indeed, it was part of its written submissions.
When the appellant obtained a report on a test of the clothing or clothing, not the clothing, immersed in river water and then subjected, as I mentioned yesterday, to a very high degree of assimilated rain, about four times greater than the rain that evening, and there were still salt traces, it was only after that that the proposition was advanced, and it was only in cross‑examination of Mr Shervill, for the first time, that the reason for withholding the report or for not producing the report and simply having another one with no reference to saltwater traces in it was that Mr Shervill’s understanding was that the clothing had been washed. But there was no evidence that anyone had said all the clothing was washed, and certainly not the shoes. We come back to the shoes. The shoes were not washed. No one ever suggested they were washed to Mr Shervill or anyone else.
Now, can I take your Honours next to the Barsden material and take you in particular to the sketches that Ms Barsden drew.
GUMMOW J: We have seen that before, have we not?
MR McCUSKER: Yes, you have, your Honours, and what I was going to invite you to do was simply to compare her sketches with what ‑ ‑ ‑
GUMMOW J: The indentikit?
MR McCUSKER: Well, no, compare the sketches that she showed with – not the identikit photograph, but with the photograph of Mr Mallard taken on the same day.
GUMMOW J: Yes, we have looked at that.
MR McCUSKER: The identikit drawing was a drawing that was made by a police artist, as it came out at the reference hearing, with her assistance, but that was not the evidence given at the trial. The article in the newspaper that was produced was part of a bundle of media reports that were tendered to the Court ‑ ‑ ‑
GUMMOW J: Where are we going with this, Mr McCusker?
MR McCUSKER: Just to explain, your Honours, the significance of Ms Barsden’s sketches and to tell you simply this. It is a short point. At trial there was no evidence to the effect that the identikit sketch was a sketch to which she was a party, so that there was no opportunity to compare her sketch with the photograph of Mr Mallard taken on the day. The identikit sketch was part of a bundle – it is at 6AB 1994 – of media items which did not identify her as the author. I will give you the references. It is at volume 1 appeal book page 373 and volume 2 appeal book 857.
KIRBY J: This is really bottom of the barrel stuff though, is it not, because we know that she co‑operated in the drawing of the identikit sketch?
MR McCUSKER: We do know that, your Honour, but the point is that if the defence had had her sketches of the man she saw in the shop, they would have had the opportunity to show the jury how different her sketches were from Mr Mallard. As it was, all that they had was her verbal evidence, the evidence she gave as a witness at the trial. The evidence she gave at trial, it has been pointed very forcefully by counsel for the respondent that the evidence she gave at trial referred to a man with a light beard, but did not refer to a moustache. That is true. She did not say whether he did or did not have a moustache.
Now, the sketch showed clearly that he did not have a moustache and if it had been in the possession of the defence, if it had been made available to it, it could have produced that sketch to the jury and said, “Look at the difference between the accused on that day and the man she sketched on that day.”
KIRBY J: But she is not a professional drawer.
MR McCUSKER: No, she is not.
KIRBY J: Whereas the police officer is used to doing identikits.
MR McCUSKER: Yes, that is true. The police officer’s identikit sketch did not show a moustache of the type that Mr Mallard had either. But the important point there is that the sketch that she drew on the same evening that she saw the man is so markedly different from Mr Mallard’s picture.
GUMMOW J: Yes, well we are seized of that.
MR McCUSKER: I take it no further, your Honours. Now, the material that we have supplied your Honours with in our written submissions in relation to the other matters that were not disclosed is in our written submissions. I do not intend to take it further, except to make one point in relation to the evidence of there being other persons in the vicinity - or seen in the vicinity with a bandanna. Your Honours have been taken to it so I will not do it again – the trial judge directed, and it is at 3 AB, 932, that the two persons who had given evidence at the trial of seeing a man around 4.45 wearing a bandanna, a man of about six feet in height, your Honours will recall his direction very fairly was that they could not conclude that that was the accused.
The evidence of Phillips and Laurie, to which we have referred in our grounds, our particulars, was evidence of seeing a man somewhat similar and certainly with a bandanna at an earlier time. See at 4.45 to 5 o’clock, round about that time, it is conceivable that Mr Mallard might have been there, he might have been the man. The question is why were those two witnesses called but not the two witnesses who saw a very similarly dressed man and similar height and somewhat suspicious at about 3.30 that afternoon when it could not have been Mr Mallard because he was in the lock-up. That is really the short point to be made about that evidence.
Now, could I come to the question that your Honours raised with me yesterday, and my learned friend, whom I alerted to this point, has already addressed your Honour, and that is dealing with the question of whether it would be an appropriate order, if the appeal is allowed, to order a retrial or not. Now, your Honour Justice Hayne has raised with me yesterday the proposition that it would be necessary to show that it is not likely, perhaps even higher, that on a retrial Mr Mallard would be acquitted or, putting it another way, that there is not sufficient evidence on which a reasonable jury could convict.
First, one must consider what evidence would be before a reasonable jury, and I have gone through some of that and I do not propose to do it again. But section 570D of the Criminal Code, which was not in force at the time of the trial, is now of course in force. Section 570D in its terms provides, and your Honours are familiar with similar legislation ‑ ‑ ‑
GUMMOW J: We had a case on these sections.
MR McCUSKER: We did indeed, your Honour, Coates’ Case was one at least in which I and my learned junior appeared. The terms of the section are to effectively exclude the admission to evidence of a non-videotaped record or confession.
KIRBY J: Was that the outcome in the Western Australian case? There was an earlier Tasmanian case.
MR McCUSKER: There is a decision of the Western Australian Court of Criminal Appeal, T (a child) v The Queen (1998) 20 WAR 130, and in that case it was accepted that although the interview in question took place before the coming into force of section 570D of the Criminal Code, but it was in force by the time of trial, therefore, the evidence would be excluded but for the exceptions that were provided in the Criminal Code, one of the exceptions being whether exceptional circumstances, but it was not said that an exceptional circumstance was that the videotaped legislation was not then in force at the time of the interview.
So it comes to this. In our submission, this is a case where, if there were to be a retrial, given the evidence that is now available, including in particular the psychiatric evidence ‑ ‑ ‑
CALLINAN J: Just pause there. You say that about the psychiatric evidence but it was not enough to persuade the trial judge on a voir dire that it made the confession unreliable.
MR McCUSKER: No, it was not.
CALLINAN J: So I do not feel I can be confident at all that that evidence would not be received and might not be acted on by a jury.
MR McCUSKER: No. I take your Honour’s point and, with respect, I accept that that is at least a prospect, but with the enactment and coming into force of section 570D of the ‑ ‑ ‑
HAYNE J: Was there no relevant transitional provision?
MR McCUSKER: No, your Honour, there was not. It took a long time to come into force ‑ ‑ ‑
GUMMOW J: Four years.
MR McCUSKER: ‑ ‑ ‑ but when it did it came into force without any transitional provision and it was accepted by, as I said, the Court of Criminal Appeal in Western Australia in the case referred to that the section would operate, in effect, retrospectively but not really, because it is a provision which excludes from the trial process any confession which was not videotaped unless there are exceptional circumstances. So unless it could be said, in this case, that there were exceptional circumstances so as to permit of the introduction into evidence of the verbals of 10 and 17 June, it is clear that section 570D would exclude the admission of that evidence at a retrial.
CALLINAN J: Even though there is no transitional provision - I do not have it in front of me - it must necessarily be construed, you say, as applying to any current trial.
MR McCUSKER: Yes.
GUMMOW J: Has that decision been accepted since?
MR McCUSKER: I have asked my learned junior to check to see if it has been discussed since and nothing since has been found.
KIRBY J: We hope that it has been accepted.
GUMMOW J: Time has passed on anyway, I suppose. The point has disappeared until this case came along.
MR McCUSKER: Until this case, yes. If it is accepted that section 570D would apply to any future trial, then the only question that could arise in relation to the exclusion of the verbal interviews would be whether it could be argued by the prosecution that the exceptional circumstance provision applies.
Given that in this particular case videotaping material was available, it seems unlikely that that exception would be applicable. So for those reasons, your Honours, it is our submission that this falls into one of the categories of cases where it would not be appropriate to order a retrial, because as all courts below have said, the Crown case depended entirely upon the evidence of the alleged confessions, much of which were disputed at trial.
KIRBY J: I know that there are some passages that say that and some passages that say it is the confessions mainly, but there was circumstantial evidence. Is it not for the jury to decide the sort of matters that you have been arguing on the 15 points?
MR McCUSKER: We only argue them, your Honour, really to point out that on analysis what was said to be the strength of the Crown case is very weak.
KIRBY J: Normally, that is a jury question. Weakness or otherwise is a jury question.
MR McCUSKER: Well, it may be, your Honour, depending upon the circumstances.
KIRBY J: I am still chastened by Dyers, you see, where ‑ ‑ ‑
MR McCUSKER: I have read that.
KIRBY J: ‑ ‑ ‑ the Court very properly pointed out, if I can say so respectfully, that that is our tradition. Courts decide process and it is for the prosecutor to decide whether to put the person up again.
MR McCUSKER: That is true, and one approach – well, there is suggested to be three alternative approaches. One is to quash the conviction and make no other order. Another is to quash the conviction and order a retrial. Quashing the conviction, it seems to me, is just illusory in terms of the effect of it, because it seems to me that would be the end of the road. I do not know that we could then have a retrial. Could I just mention that your Honour said there is other circumstantial evidence. With respect, there is not really any and the trial judge himself at page 951 at line 15 said this ‑ ‑ ‑
KIRBY J: There would be the evidence on the recorded video?
MR McCUSKER: Yes, there is definitely that. The question is whether that would be enough for a reasonable jury to convict, having regard to all of the evidence we now have. The trial judge said – I will not read the passage in full, but it was to the effect that unless the jury was prepared to accept the police evidence that he had confessed on 10 and 17 June, that was the end of the case. There was no circumstantial evidence pointed to which would be available independently of that.
Can I just mention the videotape. I will give you the references. It was remarked by the reference court itself that it was a most peculiar videotaping session in that this was not a question and answer so much as a request for affirmation of things said to have been said previously. The references I would like to just mention, where every time Mr Mallard wanted to go beyond the question and say something more about his theory, he was stopped. I say that advisedly because that is what the detective said in evidence, that he thought he was going to give him another one of his theories.
GUMMOW J: We have seen that material.
MR McCUSKER: The references are at 819, point 10; 821, point 24; 822, point 25; 823, point 5; 824, point 5; 825, point 5 to 10; 827, point 9; 828, 829 and 830; 832, point 24 and 834, point 6. In many places that was the situation. He would attempt to go beyond in some way and was, in effect, cut off.
Can I come back to a matter that your Honour Justice Gummow raised with me, paragraph 37(d) of the respondent’s submissions. The references there that we would rely upon in answer to that are volume 2 of appeal book 707, line 10 where the evidence of Mr Mallard was that the police insisted with him that an eyewitness had made eye contact.
GUMMOW J: That is 2 AB?
MR McCUSKER: Page 707, point 10, his evidence to the jury.
GUMMOW J: Just give me the references.
MR McCUSKER: Certainly, and 2 AB 796, point 13.
GUMMOW J: Thank you.
MR McCUSKER: In paragraph 37(d) of the respondent’s submissions it is put that no evidence supports the proposition that the police had told Mr Mallard that the girl had said he was wearing a bandanna. They are the two references that we rely upon to show that his evidence was that the police told him that.
Your Honours, one final matter is that my learned friend told your Honours yesterday in relation to the principle involved in the court hearing the whole case and the appellant’s contention that the reference court failed to do so, my learned friend said that the way that he was putting it on behalf of the respondent yesterday was the way it was put before the reference court by counsel for the respondent.
I will just hand up a copy of the transcript to show, we say, that that is not the way in which it was put. Quite to the contrary, there was a battle in which I was contending on behalf of the appellant that that was the wrong approach – that is the approach that my learned friend eschewed yesterday – and counsel for the respondent there was contending that that was the right approach, that is to simply quarantine all matters that had been dealt with by the first Court of Criminal Appeal.
KIRBY J: Do you remember yesterday when you took us to Brown and to Lord Steyn’s statement I said, “Where are the authorities of this Court?” and I was thinking of Apostilides, but when you look at that decision and also Lawless they are not really very detailed, I do not think, with respect, to them ‑ ‑ ‑
MR McCUSKER: No.
KIRBY J: I was wondering whether you looked to see whether there was any authority in other final courts such as the Supreme Court of Canada or the Court of Appeal of New Zealand ‑ ‑ ‑
MR McCUSKER: No, your Honour.
HAYNE J: In Garofalo [1999] 2 VR 625 Mr Justice Ormiston, in the context of failure to disclose prior convictions, from paragraphs 55 onwards examines such authorities as his Honour was able to find, including the relevant New Zealand and Irish cases.
MR McCUSKER: Yes, your Honour.
HAYNE J: Are you aware of any other authorities other than those Mr Justice Ormiston identified in Garofalo?
MR McCUSKER: No, your Honour. The question that his Honour Justice Kirby raised was whether there was any decision of this Court, as I understood it, rather than the House of Lords, and the answer to that is no we could find none, but we have of course Garofalo in our list of authorities, which I think your Honour Justice Hayne mentioned in the course of the special leave application indeed.
CALLINAN J: But Grey really says it, does it not?
MR McCUSKER: Grey does not really say it ‑ ‑ ‑
CALLINAN J: It is implicit in it, is it not?
MR McCUSKER: It is implicit.
CALLINAN J: Inescapably so, I would have thought.
MR McCUSKER: Indeed, the Court in effect adopted or approved of the concession that had been made in that case, that is that there had been a breach of the prosecutorial duty of disclosure.
CALLINAN J: There may have been a bit of encouragement for that concession to be made by the Court, but it was a concession that I would have thought had to be made.
MR McCUSKER: Yes. Just as the concession was, I must say, that the respondent has made throughout in this case.
KIRBY J: It may be that there are relatively few cases because of the fact that normally the Crown does act in a scrupulously proper way and I have seen many instances where that has been done. I may look to other cases and maybe the European Court of Human Rights on the general principle that is involved here, because I can see a point that Justice Hayne raised during questioning, I think of Mr Walker, that you get borderline issues and it may be that there is nothing one can say that clarifies what is to happen in those borderline issues where a decision is made, “Well, this just is not relevant.” In other cases, especially in cumulation where you get an uneasy feeling about it, about the way the case is being presented for the prosecutor.
MR McCUSKER: Many counsel who are briefed for the prosecution take the approach, and I am sure it is the correct one, when in doubt, disclose.
CALLINAN J: Exactly. How can anything else be proper?
MR McCUSKER: If there is the slightest doubt, it should be disclosed. But going to the legal principle is another ‑ ‑ ‑
KIRBY J: Irrelevancy. You could understand how sometimes maybe even a mistaken decision but a bona fide and genuine one is made by the person imbued with the traditions of the prosecution in this country.
CALLINAN J: Well, Mr Walker conceded, and I think very properly conceded, that the test was not dissimilar to a Peruvian Guano sort of test, and I think that was a very proper concession.
MR McCUSKER: With respect, so do I.
CALLINAN J: And that certainly imposes a fairly high standard.
MR McCUSKER: But of course, although it is a very important point of principle, it only arises here perhaps with respect to three of the seven matters that were not disclosed and the subject of complaint by the notice of appeal because four of them are conceded.
GUMMOW J: There is an unreported decision of the New South Wales of Court of Criminal Appeal that Justice Ormiston referred to in Garofalo which we had better be supplied with, I think. It is R v CPK 21 June 1995. It is referred to in [1999] 2 VR 625 at 634. Our library will get it for us.
HAYNE J: Now, the statement of the relevant principle becomes important, for example, in connection with what was to be done with the undercover operative’s material.
MR McCUSKER: Yes.
HAYNE J: It would be a large proposition for the Court to say that in every investigation in which undercover operatives have been used the defence is entitled invariably to see every bit of paper or record that was produced as a result of the undercover operation.
MR McCUSKER: I, with respect, totally agree. One could not take that broad approach or that extreme approach.
HAYNE J: So that the proposition then has to be more refined.
MR McCUSKER: Yes. The starting point in Brown was that can be seen on sensible appraisal and then they list the various matters such as relevant and so on. But you take an undercover operative who has simply obtained information that goes to the question of alibi, that may be something which is debatable as to whether that has to be disclosed or it may simply go to character. There are those kind of areas perhaps which may be said to be ‑ ‑ ‑
HAYNE J: But the existence of the concession may make it a difficult case in which to establish any general principle about the nature and extent of the prosecutorial duty to disclose.
MR McCUSKER: Unless your Honours are troubled by the three where there is no concession and no finding, one of those being Barsden.
CALLINAN J: I think, with all due respect, there is often a lot of exaggeration about the confidential nature of undercover material. Usually you can be quite surgical about it and if it is relevant to the case or to the defence usually there would be a way of presenting it without endangering any public interest or the undercover officers concerned.
MR McCUSKER: Of course, your Honour, and it is commonly done by means of blanking out.
CALLINAN J: Exactly.
MR McCUSKER: Yes.
KIRBY J: We had that in the case involving the Chief Commissioner of Police recently, some of these issues.
MR McCUSKER: I am not aware of it, your Honour, but ‑ ‑ ‑
KIRBY J: The Chief Commissioner of Police in Victoria.
MR McCUSKER: But that kind of approach can be easily taken, yes. Unless your Honours are troubled by any other matter, they are our submissions in reply.
GUMMOW J: We are troubled.
MR McCUSKER: I am sorry, just one moment.
GUMMOW J: It is our job.
KIRBY J: Your job has been to create trouble.
MR McCUSKER: Yes, may it please your Honours.
GUMMOW J: We should ask Mr Walker one thing though. This decision of Re T, Mr Walker, that Mr McCusker referred to, is that accepted on your side?
MR WALKER: Yes. May I say one thing about the 570D matter which I did not anticipate? I did not expect my friend would, as it were, argue the merits of the 570D excuse. May I say one sentence on that?
GUMMOW J: Yes.
MR WALKER: As I did anticipate and said earlier, issues would arise, we say, if there were a retrial in relation to a retrial under both of paragraph 570D(2)(b) reasonable excuse and (c) exceptional ‑ ‑ ‑
GUMMOW J: Subsection (b) says “the prosecution proves, on the balance of probabilities” ‑ ‑ ‑
MR WALKER: “[T]hat there is a reasonable excuse” ‑ ‑ ‑
GUMMOW J: Yes.
MR WALKER: Now, I have no precedent. There presumably will be no other case. But the reasonable excuse argument that one can anticipate, but this Court should not anticipate, let alone foreclose, is that the law not being in effect and what evidence I do not know about and are merely speculating from the Bar table about of practice there may be a case of reasonable excuse. That is the first point. The possibility is one which this Court should not foreclose. The second point is that “under exceptional circumstances” will include a matter of which your Honours are well aware deriving from the peculiar nature of the third, the actual taped interview, to which my learned friend has already referred.
GUMMOW J: You cannot understand the third without looking at some other material.
MR WALKER: Exactly, and “the interests of justice”, “exceptional circumstances”, would require, if I may call it, an incorporation by reference. Thank you.
GUMMOW J: Does anything arise out of that, Mr McCusker?
MR McCUSKER: Your Honour, yes. The question of reasonable excuse does not go and, in our submission, could not possibly go to the question of whether there is a practice for this reason, that before the first Court of Criminal Appeal your Honours will remember the court there said, never again, signalled to the – this was before the enacted legislation. They said, “This is not the way to conduct interviews and we will never allow this kind of evidence again” ‑ ‑ ‑
KIRBY J: “We will just give this one a cachet.”
MR McCUSKER: ‑ ‑ ‑ “but we will let this one through.”
GUMMOW J: Yes, thank you. We will consider our decision in this matter and the Court will adjourn until 10.00 am tomorrow morning.
AT 4.10 PM THE MATTER WAS ADJOURNED
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