Mallard v The Queen

[2005] HCATrans 679

[2005] HCATrans 679

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 TUESDAY, 6 SEPTEMBER 2005, AT 10.18 AM

Copyright in the High Court of Australia

MR M.J. McCUSKER, QC:   May it please the Court, I appear with my learned friend, MR J.J. EDELMAN, for the appellant.  (instructed by Clayton Utz)

MR B.W. WALKER, QC:   Please the Court, I appear with my learned friend, MR B. FIANNACA, for the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

GUMMOW J:   Yes, Mr McCusker.

MR McCUSKER:   Thank you, your Honours.  This matter comes before you by way of an appeal from the Court of Criminal Appeal of Western Australia which heard the appeal by way of a reference from the Attorney‑General of Western Australia.  The Sentencing Act (WA) 1995 section 140, which is referred to in our submissions ‑ ‑ ‑

GUMMOW J:   On page 29?

MR McCUSKER:   Yes, your Honour.  There has been one slight amendment to the Sentencing Act but it is of no consequence and that is that the “Court of Criminal Appeal” now reads the “Court of Appeal”.  That provides for a petition that may be referred by the Attorney‑General to the Court of Criminal Appeal in the relevant part for the whole case to be heard and determined as if it were an appeal by the offender against the conviction.

GUMMOW J:   And that was this case?  It was (a), not (b)?

MR McCUSKER:   It was (a), not (b), your Honour, yes.

GUMMOW J:   Section 140 reproduces, essentially, section 19 of the English Criminal Appeal Act of 1907?

MR McCUSKER: It does indeed, your Honour, yes. As to how an appeal should be dealt with thereafter, section 689 of the Criminal Code (WA) provides that:

(1)      The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice –

and there was a proviso, which has been well and truly ploughed over over the years as to precisely what the proviso means, and I will come back to that.  The grounds of appeal, your Honours, are set out in volume 7 of the appeal books, where the notice of appeal appears at page 2543.

KIRBY J:   You were given special leave to appeal only on grounds 1, 2 and 3.

MR McCUSKER:   We were, your Honour, yes.

KIRBY J:   And not 4.  Was 4 the polygraph ground?

MR McCUSKER:   Ground 4 was the polygraph.  We were not given leave ‑ ‑ ‑

KIRBY J:   What a shame.

MR McCUSKER:   It is a feeling which we certainly share, your Honour, but perhaps in another way.

KIRBY J:   I notice you slip it into your written submissions.

MR McCUSKER:   Obliquely.  Your Honours, ground 1 may be said to be the principal ground of appeal because that deals with the important question of a breach of the prosecution’s duty of disclosure, and you will see there that the particulars of exculpatory evidence not disclosed which was in breach of the duty of disclosure are set out.  There are seven in all.

Of those particulars, taking each in turn, and dealing with them perhaps by way of shorthand, the first one refers to the test with a wrench and the second is evidence that unsuccessful searches by the police to find any wrench that could have caused the injuries suffered by the deceased.  Both of those particulars, or the evidentiary material which was not disclosed, have been conceded or found by the Court of Criminal Appeal to have been material that ought to have been disclosed by the prosecution.  The third ‑ ‑ ‑

KIRBY J:   What paragraph is that in the Court of Criminal Appeal?

MR McCUSKER:   If I could take your Honours to paragraph 69 of our submissions.  It is conveniently summarised there.  We note the Court of Criminal Appeal observed that it was not in dispute, going to the first of the particulars, in (c) the experiments and inquiries in relation to the murder weapon which were conducted prior to the appeal should have been disclosed, and the reference there is to the Court of Criminal Appeal volume 7 of the appeal books, 2533.

KIRBY J:   You have quoted Brown.  This Court has said things about the duty of prosecutors to disclose on several occasions. 

MR McCUSKER:   Yes, it has, your Honour.

KIRBY J:   Why are we having English law lords quoted to us?  We have grown up in this country or has that message not spread over to the west?

MR McCUSKER:   It certainly has, your Honour, but what was said in Brown was, in fact, endorsed.

KIRBY J:   More powerful, you thought.

MR McCUSKER:   No, your Honour, certainly not.

KIRBY J:   It is an elegant passage by Lord Hope.

MR McCUSKER:   And it is a passage that has been adopted by courts in this country with approval on a number of occasions so that is the only reason that we refer to it.  It has been accepted as being a correct statement of the duty of disclosure of the prosecution.

KIRBY J:   It is actually Lord Steyn’s words, is it not, that passage?

MR McCUSKER:   Yes, it is, your Honour.

GUMMOW J:   It does not allow for Chapter III either, actually. The English always talk about their unwritten Constitution.

MR McCUSKER:   Yes, they do.

KIRBY J:   That is all they have.

MR McCUSKER:   Coming back to the particulars, your Honours, the first two of the particulars at page 2543 are matters which the Court of Criminal Appeal has found should have been disclosed to the defence by the prosecution.  The third, which I will come back to – because there are some others in that same category - refers to sketches and a description by an eyewitness, that was a Ms Barsden, Katherine Barsden, then a 13 year old girl, on the evening of the murder and just by way of elaboration on that, the girl, Katherine Barsden, was being taken in her grandmother’s car from school and drove up Glyde Street, where Flora Metallica, the shop, the scene of the murder, was. 

Fortuitously, the car stopped almost directly opposite, on the left‑hand side of the road, of course, and was directly opposite Flora Metallica, which was to the car’s left.

GUMMOW J:   The car had tinted windows and they were up.

MR McCUSKER:   They were indeed, your Honour.  She looked through the window, nevertheless, and the reason for her looking into Flora Metallica was that her mother was a part-time worker there, although this was after five and the mother was not then working.

GUMMOW J:   What time of year was this?

MR McCUSKER:   This was in May, and it was a particularly dark and stormy day.  It was in fact remarkably stormy and wet, and between 5 o’clock and 6 o’clock it rained.  It was a torrential downpour almost – almost reminiscent of Sydney, your Honour, but not quite.

KIRBY J:   No need for you to say that.

MR McCUSKER:   The girl looked in and saw a man standing in front of a display cabinet where, as she said later, customers do not normally stand, and it was also after 5 o’clock.  So she thought there was something odd about that.  When she looked towards the man he bobbed down.  Later, not much later, when she got home she told her mother what she had seen and her mother said, “Sketch the man that you saw and write down a description”, which she did.  So she had sketches and a description of the man, and I will come to it in a moment, but the sketches showed of the face of a man, showed a man with a light beard she had drawn with texta but no moustache, and what she described as a gypsy‑style bandanna tied around his head showing no hair underneath the bandanna.

GUMMOW J:   Did she say whether the shop was shut?

MR McCUSKER:   Yes, the shop was shut.  She could not see the proprietor, Mrs Lawrence, in the shop.  It was the following day, of course, that the news of the murder of Mrs Lawrence, the proprietress of the shop, came to light and that same day, 24 May 1994, she was interviewed by a detective, or a police officer I should say, who took a statement from her, to which he quite properly annexed all of her sketches and notes.

The sketches and the notes were never disclosed to the defence.  It was contended before the Court of Criminal Appeal that the non‑disclosure was a breach of the prosecutor’s duty.  In relation to the sketches and notes, the Court of Criminal Appeal said that they were not disclosed, and that was common ground, but they were not different in any material respect from her evidence.  Implicitly, although the court did not say it in these terms, the court must have taken the view that there was no breach of the duty of disclosure.

GUMMOW J:   You set out the guidelines, do you not, in your submissions?

MR McCUSKER:   We do.

KIRBY J:   At some stage would you give us, or have sent to us, the authority of this Court on prosecutors’ disclosures?

MR McCUSKER:   Yes, certainly, your Honour.

KIRBY J:   Because I think that is the proper starting point.

MR McCUSKER:   Yes.

KIRBY J:   And then we can use the English authority to support it or elaborate it.

GUMMOW J:   Page 12 of your reply, paragraph 26, and these were gazetted pursuant to statute in Western Australia.

MR McCUSKER:   That is so, your Honour, yes.  That is the guidelines themselves.  Also, of course, this Court has dealt with the question, but perhaps not so directly, in Grey’s Case.  I say not so directly because there was a concession made that there was a breach of the duty.

KIRBY J:   That is not the case I am thinking of.

MR McCUSKER:   No.

KIRBY J:   The case is in the 1980s, but, anyway, you will find them.

MR McCUSKER:   Your Honour, I will come back to it if I may.  The particular (d) refers to a section of a report of the forensic chemist.  Perhaps before I leave (a), (b) and (c) I should very briefly explain the significance of that material and I will come to it in more detail.  Particular (a) and (b) refer to test with a wrench and unsuccessful searches to find a wrench that could have inflicted the injuries.  The significance of that to the defence case was this.  The Crown case depended entirely upon confessions which the Court of Criminal Appeal itself said were of a peculiar nature made by the appellant.  Part of the confession was that it was said to be that he had admitted killing Mrs Lawrence with a wrench and he drew, at the police request, a wrench which, for someone who was not an artist, was quite a good sketch and even to the point of putting “Sidchrome” on the drawing, “Sidchrome wrench”. 

He said in his defence that the things that he did tell the police, some of which he denied, were part of his theory as to how the murder occurred.  So that the more his theory or confession departed from fact, the more likely it would be that he was merely fantasising, as he was prone to do, and not confessing.

KIRBY J:   What is your theory as to how he postulated a wrench?  Was it by reason of the conversations with the police officers that were not recorded?

MR McCUSKER:   Yes, your Honour.  Could I perhaps come directly to that to show how it evolved.  I think your Honours have a statement or summary of issues that we supplied as a result of a direction given by this Court. 

KIRBY J:   Was the pig’s head evidence disclosed?

MR McCUSKER:   No, your Honour.

KIRBY J:   That is another matter?

MR McCUSKER:   The test with a wrench on a pig’s head were carried out at the same time as tests with an anode to see if – now, the anode was used because there were a number of these metal anodes kept in a shed at the back of the jewellery shop.  At the same time as the testing was done with an anode to see if that could have been the weapon, testing was done of a wrench which was as close as they could get to the kind of wrench drawn by the appellant in his sketch of what he said he thought the weapon would look like, but although the testing of the anode was the subject of evidence given to the trial court and to the jury, there was no reference to the testing of a wrench. 

The conclusion in relation to the anode was that in some respects it looked as though it could have inflicted the wounds, but for various reasons the forensic scientist who observed the test thought that it probably was not an anode, but no mention was made of the fact that a wrench was used on a pig’s head to see if that could have inflicted the wounds and the answer was that the wounds were dissimilar, as it was put, to the wounds inflicted on the deceased.

KIRBY J:   Because, as I understand it, they were the wounds of a blunt instrument, like a mallet?

MR McCUSKER:   Yes, that is so.

KIRBY J:   Whereas the wounds inflicted by the wrench were rather sharp and focused?

MR McCUSKER:   No, it is the other way round, your Honour, sorry.  The wounds on the deceased’s head were indicative of some form of a wedge shape and the wounds inflicted by the wrench were not capable of creating the same wounds.  Some were, but a number of wounds were dissimilar.

KIRBY J:   There was the presence of rust, too, was there not?

MR McCUSKER:   There was a presence of rust and there was also ‑ ‑ ‑

KIRBY J:   In the wounds?

MR McCUSKER:   In the wounds themselves.

KIRBY J:   Whereas this was postulated to be a rust‑free wrench?

MR McCUSKER:   That is so, your Honour, yes.  Now, no reason has ever been given, your Honours, for not disclosing this piece of evidence, that is, that the test with the wrench did not produce or it produced wounds which were dissimilar to the wounds on the deceased.  There was further evidence that was not disclosed and that was that the detectives ‑ ‑ ‑

KIRBY J:   It might have been taken that that was a rather unscientific test on the pig’s head, that the bony structure and analogy was poor to a human head?

MR McCUSKER:   The evidence regarding the testing of the anode was disclosed in great detail to the court, but not a mention made of the fact that there had been a testing with a wrench.  Furthermore, the evidence given by one of the forensic scientists, Mr Cooke, was that he had searched unsuccessfully for any wrench that was capable of inflicting the kinds of wounds that were inflicted on the deceased, and that is particular (b).  The police had also conducted searches of tool suppliers to see if they could find any wrench capable of causing the injuries suffered by the deceased.

Now, the state of the evidence after the Court of Criminal Appeal heard this, plus some further evidence, was this, that the experts said, well, in effect, it is theoretically possible that somewhere in the world there may exist a wrench capable of causing these injuries, but they could not find one.  They had never found one which would cause wounds consistent with those inflicted on the deceased.  So the overwhelming probability was that a wrench was not the murder weapon.  There is a further aspect of a wrench being the murder weapon.  In his confession, which he said was simply his theory, the appellant ‑ ‑ ‑

GUMMOW J:   You keep saying “the wrench”.  We do not know, do we, that any such object ever existed?

MR McCUSKER:   “A wrench”, yes, you are quite right, your Honour, but could I take your Honours to ‑ ‑ ‑

GUMMOW J:   Is there any evidence as to, if there was a wrench, what happened to it?

MR McCUSKER:   I will come to that, your Honour, if I may right now.  I was going to take your Honours to the summary of issues and appeal book references, and at page 13 of that summary, we have set out a time line, and if we start with 8 June 1994 where:

Peter Lawrence tells the police that he “could not offer any missing objects or other weapon.”

Peter Lawrence was the husband of the deceased and Peter Lawrence had made a search to see what, if anything, was missing from either the shed where various tools were kept or, indeed, the shop itself.  His evidence, the evidence in relation to that, Mr Shervill at volume 4 ‑ ‑ ‑

GUMMOW J:   Should we go to that?

MR McCUSKER:   Yes, your Honours, volume 4 at 1566, about point 8 of that page.  Shervill is giving evidence of an interview with Peter Lawrence and I mention by the way, although it is not one of the particulars, but this note of Shervill and, indeed, the evidence, itself, of Shervill on this point was never disclosed to the defence either and that becomes of some significance in relation to the non-disclosures.  He was taken to his notes before the Court of Criminal Appeal:

“Re possibility of some other weapon or instrument which may have been used to kill Pamela Lawrence that may be missing from the premises” -

He was asked about that note -

Yes.

Or being present at the premises.  “Negative result on weapon or missing object.  Lawrence could not offer any missing objects or other weapon.”  That’s on 8 June?---Yes.

Did you interview Peter Lawrence subsequently or speak with him about any possible missing object that might have been used as a weapon?---Yes.  Mr Lawrence later advised me that he thought there may be a shifting spanner or wrench missing, but he wasn’t sure.

You spoke to him about that?

To get back to the time line, on 8 June then, Mr Lawrence tells the police he “could not offer any missing objects or other weapon” and bear in mind the murder took place on 23 May so that is some 15 days after the murder.  On 10 June there is an interview, an unrecorded lengthy interview, of the appellant by two detectives which started at 12.30 pm and was still running at 5 pm and, in the course of that interview, the evidence was the appellant said that he had a cap which he sometimes wore backwards – I will take you to the significance of that – and that a wrench was the weapon used for the murder.

The reference to that evidence regarding the wrench appears just below that note, it is 356 point 12, that is the evidence of Caporn, and again at 357.  I will not take you directly to those references, your Honour.  That is what the evidence of Detective Caporn was that at that interview he was told by the appellant that a wrench was the weapon.  Now, on that point, it was not viewed as being a confession, or at least a reliable confession.  It was unrecorded and the appellant was not charged or arrested. 

GUMMOW J:   Did the appellant, at any stage, volunteer what he had done with the wrench?

MR McCUSKER:   Yes, he did, your Honour, but he says it was part of his theory and that, too, seems to be most likely because he said he had gone to the Stirling Bridge, which is about at the estuary towards the mouth of the Swan River, and thrown the wrench into the Swan River off the Stirling Bridge.  Police divers gave evidence that they had gone to the area and done a search for the wrench said to have been thrown off the bridge and they said, “If it had been there, we would have found it and there was no wrench there”. 

KIRBY J:   He also said he threw off the purse, did he not?

MR McCUSKER:   He said he threw the purse and the handbag.  They did not find ‑ ‑ ‑

KIRBY J:   But they are more likely to be carried away by the stream, whereas the wrench ‑ ‑ ‑

MR McCUSKER:   Yes.  Well, the purse was not there, but significantly he said that he threw the deceased’s handbag, but the handbag was never taken.

KIRBY J:   I am not quite clear on this.  Is the postulate on that theory that he carried the wrench in the taxi cab, dripping ‑ ‑ ‑

MR McCUSKER:   No, your Honour.  The sequence of events was that he had been arrested that afternoon for petty theft, taken to East Perth lock‑up – that morning in fact.  By about 3.30 that afternoon he was released from the East Perth lock‑up after having been photographed and then caught a taxi and arrived at Mosman Park where Flora Metallica is and where he was living in fact as well, at 5’ish.  According to the taxi driver, Mr Peverall, he arrived there at 5’ish, it was put.  Closer to 5, the taxi driver said, than quarter to 5.  That is all he could really say, but the taxi driver also gave evidence that he later, after waiting for the appellant who had done a runner, to use the colloquial, waiting there for about 20 minutes, he got another call, which was at 20 past 5.  So that puts him in the vicinity but within walking distance, depending on how fast you walk, of two or three minutes from the Flora Metallica shop where the murder occurred.

KIRBY J:   I thought the distance was given as a kilometre.  The Bel Air flats to the shop was a kilometre.

MR McCUSKER:   To the shop it is about a kilometre, but evidence was given by a detective that he walked it in about two or three minutes, or five if you do not walk so fast.  To get there, if he had done it ‑ ‑ ‑

KIRBY J:   He would have to walk past the taxi driver.

MR McCUSKER:   ‑ ‑ ‑ he would have to walk past the taxi, yes.  Going back to this time sequence regarding the wrench, if I may, the position was that according to Mr Shervill on 8 June Mr Lawrence said he “could not offer any missing objects or other weapon[s]”.  On 10 June there is the interview where the appellant allegedly says that a wrench was the weapon.  Indeed, the appellant did say in evidence that he told the police he thought a wrench would be the weapon as part of his theory.  He went into some elaboration.  He said that the perpetrator, as he sometimes used the term and sometimes he interchanged that with the first person, would have taken a wrench from the shed at the back of the shop near the toolbox because she would have used a wrench for the purpose of fastening or loosening acetylene gas tanks, but she did not have any acetylene gas tanks and there was no toolbox.

KIRBY J:   Can I ask, was there any doubt that it was the appellant in the taxi cab?

MR McCUSKER:   No doubt whatever, but when the ‑ ‑ ‑

KIRBY J:   Is your theory that the taxi cab, in practical terms, has the appellant in another place a kilometre away.

MR McCUSKER:   At 5 o’clock.

KIRBY J:   At 5 o’clock.

MR McCUSKER:   Yes.

KIRBY J:   And the postulate is that the actual homicide occurred at about 5.20 because there was a phone call at ‑ ‑ ‑

MR McCUSKER:   No, your Honour.  The Crown case at trial was that the murder had occurred – this is all based, of course, on the appellant’s confessions – had occurred at the time that the girl, Ms Barsden, looked in the shop and saw the man, because that was the way ‑ ‑ ‑

KIRBY J:   At about 5 to 5 which does not square with the taxi, or a few minutes ‑ ‑ ‑

MR McCUSKER:   Well, it would have to be before 5.02 and so it would have to be ‑ ‑ ‑

KIRBY J:   Before 5.02?

MR McCUSKER:   Yes.

KIRBY J:   So that does not square with the taxi.  The taxi is for that a complete alibi if it is accepted?

MR McCUSKER:   Yes, but there was more to it than that which complicates the timing.  Evidence was given by a Mrs Raine that she saw a man that she identified as the appellant in the lift in the flats where he had been left by the taxi driver at 5.12 that same day.  Now, that tallies with the evidence that the appellant gave at trial which was that when he did a runner from the taxi he stayed in the flats watching to see that the taxi had gone.  He said he waited there for quite some time to see whether the taxi had gone before he finally left.

KIRBY J:   Now, you have been answering questions, but it is important that we do not lose the structure of your argument.  You are dealing at the moment with seven non-disclosed matters?

MR McCUSKER:   I am indeed, your Honour, yes.

KIRBY J:   And you have got to the wrench. 

MR McCUSKER:   Well, if I can take you back to the wrench and the time line, I was referring to page 13 of the summary of issues.  So we have it 8 June Peter Lawrence says he “could not offer any missing objects”; 10 June the appellant is said to have said that the murder weapon was a wrench and then on that same day – and this again was not disclosed, but in fact the circumstances in which this was revealed were that a subpoena had been issued to the police to produce all of their running sheets and notes relating to the matter and this was not disclosed to the defence, but a note was made by Malcolm Shervill, which is now volume 6 appeal book 2011.  It was not disclosed in response even to the subpoena. 

HAYNE J:   Is this a subpoena at trial or a subpoena at the CCA?

MR McCUSKER:   CCA, your Honour.

HAYNE J:   Yes.

MR McCUSKER:   At volume 6 appeal book 2011 you will see a note by Mr Shervill, fairly cryptic, 10 June:

Ex Peter Lawrence
Large shifting spanner may be missing – Sidchrome @ 10”/11”.  Round hole in end.

The evidence was elicited from Mr Shervill in cross‑examination at 1566 at line 20.  I am reminded sotto voce by my learned friend’s junior that it was actually evidence-in-chief because the appellant was obliged to call Mr Shervill who was then cross‑examined later by the Crown.  But he was asked:

Do you have any record of when it was that the question of a wrench being possibly missing was raised or was discussed between you and Mr Lawrence?---After looking at the investigation file, the record is that Mr Lawrence advised me on 10 June.

Down the foot of the page:

My memory is that he rang me, but he was never confident that this tool was actually missing.

At 1569, line 15, he was still asked about this:

Did he telephone you or did you telephone him?—I don’t remember . . . 

Can you answer this:  after you got this information from Mr Lawrence that he couldn’t be sure, I think you said, but there might have been a wrench missing, did you inform Detective Caporn or Detective Emmett of that?—No, I didn’t, and the reason I say that is that Mr Lawrence was never confident that that wrench was missing and for me to inject that piece of information into an interview would be irresponsible -

as he put it, but your Honours ‑ ‑ ‑

KIRBY J:   What was the significance of not producing the running sheet?

MR McCUSKER:   The significance, in the sense, that although there was a subpoena to produce all relevant material – and this record was clearly relevant because when he spoke to Mr Lawrence it was not produced on subpoena.  It was only elicited in the course of his giving his evidence.  The running sheet itself, I should say, was, the running sheets, but not this note that he had made which was not incorporated into the running sheet.

Now, we then have a situation on 8 June Mr Lawrence is saying, no missing objects or other weapons, and he has made a search.  On 10 June, in the course of a lengthy unrecorded interview of the appellant, Detective Shervill, who said he was not party to the interview but was in the office, speaks to Mr Lawrence and then the information comes to light, yes, a wrench could be missing, a 10 to 11 inch wrench could be missing.  On 17 June a further lengthy interview, unrecorded, and then followed by a videotaped interview when the appellant sketches the wrench.

GUMMOW J:   What is the significance of this videotaping and non‑videotaping and confessional material of sections 570 of the Code and following?  They were in force then, were they not?

MR McCUSKER:   No, your Honour, they were not then in force.  They came into force not that long after ‑ ‑ ‑

GUMMOW J:   They were enacted in 1992.

MR McCUSKER:   They were not in force at the time of the trial itself.

GUMMOW J:   What date was the trial, 1995 – late 1994?

MR McCUSKER:   Late 1994.

GUMMOW J:   There must have been a big delay between enactment and commencement?

MR McCUSKER:   No, 1995, I am sorry, it was 1995.  There was a delay in its commencement, and indeed, your Honour, a question was raised at the voir dire of the trial as to whether the unrecorded interview should be admitted into evidence at all, and at the voir dire, apart from the circumstances in which they were taken, and the fact that there was videotaping facility available but not used, there was also the question raised of the undoubted psychiatric history of Mr Mallard, the appellant, who had been in and out of Graylands, which is a psychiatric hospital, during this entire period.

KIRBY J:   But that would not be an undisclosed fact because that would be known to you.

MR McCUSKER:   That was not an undisclosed fact, no.  I am just explaining that the voir dire at the trial – before the trial – an attempt was made to exclude, and indeed, there was an appeal.  The first appeal by Mr Mallard was on the ground that none of the evidence should have been admitted, that is the unrecorded interviews, to which the Court of Criminal Appeal in rejecting his appeal said – and I am paraphrasing – “We will not allow this ever to be admitted again – police take note – but we will allow it on this occasion”, and that is the way it went.

GUMMOW J:   Justice Hayne points out to me that it looks as if the date was 4 November 1996 for the commencement of section 5 of the 1992 Act.  If your junior can check that at some stage?

MR McCUSKER:   Yes, but it is quite clear that it was not in force at the relevant time, the time of the trial, and so although the Court of Criminal Appeal made some strictures about the way in which the evidence was taken, when there were videotaping facilities available, it nevertheless rejected the appeal on that ground.  Now, the evidence of Mr Lawrence at trial which is at 1 appeal book 77 ‑ ‑ ‑

KIRBY J:   What point of undisclosed material does this go to?

MR McCUSKER:   This still goes to the wrench issue.

KIRBY J:   What page are you going to?

MR McCUSKER:   Volume 1, appeal book page 77 and this was evidence clearly led to reinforce the prosecution case that the appellant was not theorising, as he said, but giving a confession that he had used a wrench for the murder, a wrench was the murder weapon.  It starts at page 77 where Mr Lawrence is asked in evidence‑in‑chief:

Shortly after Monday, 23 May 1994, were you asked by the police to check through those tools in the back shed to see whether any were missing?---Yes, I was.

In fact, he was asked on 8 June, which may be viewed as shortly after 23 May, I suppose, that the answer given at the top of page 78:

And were you able to ascertain whether any were missing?---I was not 100 per cent sure.  I thought an expanding spanner might have been missing but I wasn’t sure . . . 

The spanner I felt might have been missing was a Sidchrome spanner about 10 inches in length with a screw-type adjustable head.

Would you also describe that as a wrench . . . 

Mr Lawrence, you wouldn’t describe that particular spanner as an open-ended spanner, though, would you – one of those unadjustable open-ended spanners?---I am really not sure.  It was the type that has the screw on the side, so the head did adjust in and out.  I don’t know whether that’s clear -

and he said it was about 10 inches in length. 

On 17 June, the appellant had been asked by the police in the further interview by the interviewing detectives to sketch a wrench of the type that he said would have been used as the murder weapon and he did so, and he used quite a large sheet of paper for that purpose and drew the wrench, which works out to be about 10 or 11 inches and it appears – I will take your Honours to it – at volume 2 in the appeal book at page 885.  The oral description he gave of the wrench was about 12 inches and the actual length of what he drew was 12 inches approximately. 

KIRBY J:   This sketch that we have is bigger than 12 inches.  Is this the actual size of the sketch that he drew?  It is more like 15 inches.

MR McCUSKER:   That is the actual size.  It looks a bit longer than 12 inches but that was his description, about 12 inches.  We start with Mr Lawrence saying he could find no missing weapon.  We have an interview at which the appellant says that a wrench he thought was the murder weapon, and on the same day while the interview is still going, Mr Shervill speaks with Mr Lawrence and from that discussion there emerges, yes, there could be, I have got a feeling that there is a Sidchrome spanner missing. 

At trial the earlier doubts of Mr Lawrence or the earlier answer of Mr Lawrence on 8 June that there was nothing missing is, in effect, skipped over and he says that shortly after the date of the murder he was asked to check and came to the conclusion that there was probably a missing Sidchrome wrench of about 10 or 11 inches.

Now, the important thing though, of course, in all of this is that that is just the evolution of the missing wrench, which the appellant at all times maintained was simply part of his theory, or our theory, as he sometimes put it, between him and the police, as to what the murder weapon would have been.  That theory would have been shown, or at least there is a good chance it would have been shown, to have been no more than a theory and not a confession had it emerged at the trial that the murder weapon, which on the Crown case was confessed by him to be a wrench, was not a wrench.

The sketch that I have just taken your Honours to, the sketch of a wrench, was produced as evidence at the trial and from the opening to the closing the prosecution case was that a wrench was the murder weapon and that the appellant had confessed to having used a wrench as the murder weapon.

HAYNE J:   Is that founded on the transcript of the videotaped interview, particularly pages 821, line 12 and following:

DET SGT BRANDON:  You told us that you got a wrench.  Is that correct?

MR MALLARD:  A wrench, from the tool-box.

MR McCUSKER:   Yes.

HAYNE J:   And where does he say anything about the victim being struck with the wrench?

MR McCUSKER:   In the unrecorded confessions.

HAYNE J:   Is that right?  Page 826, lines 1 and following?

MR McCUSKER:   Lines 1 and following he talks about the way in which she was hit, but he does not say what with.

HAYNE J:   Then the sketch is tied into the record of interview at 830 ‑ ‑ ‑

MR McCUSKER:   Yes.

HAYNE J:   ‑ ‑ ‑ lines 12 and following, where a sketch is produced to him as one that he has previously drawn.  Is that right?

MR McCUSKER:   That is so, your Honour, yes.  That is at line 13:

DET SGT BRANDON:   All right.  No problems.  Now, you also drew another diagram of the weapon that you said that you obtained.  Is that the diagram there?

MR MALLARD:   Yes.

KIRBY J:   It is curious that he nominates six to 12 and the evidence was, I think, that there were 12 blows.

MR McCUSKER:   Yes.

KIRBY J:   Where would he have got that from?

MR McCUSKER:   The report of the pathologist said that there were 12 wounds, which one might take to be 12 blows, but in fact the pathologist gave evidence before the CCA that in fact he had identified at least 15 blows to the head.  The remarkable point is that the police had a report from the pathologist which suggested that there were 12 blows and here is the appellant, according to the unrecorded interview, saying that there had been six to 12 blows.

KIRBY J:   How would he know that if ‑ ‑ ‑

MR McCUSKER:   How would he know it, yes, and that was one of the ‑ ‑ ‑

KIRBY J:   No, but what is your theory as to how a person who is a stranger to the homicide would say 12 times and that just happens to be the number of wounds?

MR McCUSKER:   The short answer to that is that ‑ ‑ ‑

KIRBY J:   You have to say ‑ ‑ ‑

MR McCUSKER:   ‑ ‑ ‑ the police told him.

KIRBY J:   ‑ ‑ ‑ it was contaminated and it was put in his mind by the detectives.

MR McCUSKER:   Yes.  You can put it on two grounds.  First, if there was a murderer with panic, which was the Crown case, striking, well, he is hardly likely to count the blows.  Second, how could he possibly know unless the police had told him, in effect, the precise number of blows?  At the time of the interview when he said six to 12 blows, 12 blows max, meaning maximum, the police already had the pathologist’s report which suggested to the lay reader that there were 12 blows, although there were in fact 15.  So there is a strong inference that could be drawn that his confession, as it were, was contaminated, or his statement was contaminated. 

The evidence I was going to just mention, your Honours, of the striking with the wrench appears at volume 1, page 356.  This is all unrecorded verbal interview.  I am reminded that according to the pathologist’s evidence it was at least 15 blows, not 12.  Taking your Honours to page 356, according to Caporn’s evidence, at 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.”

You will notice that time after time there is this third person.

I said, “What did he do then?”  He said, “He saw a girl in a car.  She saw him.  He had to get out.  He was very scared, can’t get caught.”

So the sequence according to the alleged confession is that he, the perpetrator – he is talking the third person – hit the deceased with a wrench and then was seen by the girl in the car and all this has to be before 5.02, 5.03, and then leaves the scene after dragging the deceased.

KIRBY J:   By the way, the identikit drawing at 857 is not the drawing done by Ms Barsden.

MR McCUSKER:   At 857?

KIRBY J:   That is a police – yes, 857.  It is in the newspaper.

MR McCUSKER:   Yes, it is in the newspaper and it is a ‑ ‑ ‑

KIRBY J:   That is not the drawing you were referring to?

MR McCUSKER:   No, it is not, your Honour.  No, I will come to the ‑ ‑ ‑

KIRBY J:   But presumably it was done with the assistance of what that witness said?

MR McCUSKER:   It in fact was.  The evidence at the CCA was that that drawing was done with the assistance of the girl.

KIRBY J:   Do we know or can we be told as to whether there was any similarity between that drawing and the appearance of the appellant?

MR McCUSKER:   Could I perhaps illustrate that by ‑ ‑ ‑

KIRBY J:   Yes, do that in your own time.

MR McCUSKER:   I will get the photograph of the appellant and I will show you.

KIRBY J:   Because we have to finish your list of seven.

MR McCUSKER:   Yes, we will get there, your Honour, but it is an important point, and the photograph is at 6 AB 1977 ‑ ‑ ‑

KIRBY J:   There is another identikit in that section, 857 point 4, with a person with long hair, but I think that is a different offender.

MR McCUSKER:   It is a different person, yes.  I should mention, too, before we leave that identikit drawing, that a man called “Moon”, a Mr Moon had identified a person he saw as similar to the identikit photo but it could not have been Mr Mallard, the appellant, in the vicinity that afternoon.  The photograph of Mr Mallard, the appellant, at 1977 volume 6 shows two features, in particular, extraordinarily different from the identikit photo.  The first is that he has a large moustache and some stubble, but certainly not a beard, and that was taken that afternoon – the afternoon of the murder – at the East Perth lock‑up and you will see that he has quite long hair ‑ ‑ ‑

CALLINAN J:   The page, I am sorry, Mr McCusker?

MR McCUSKER:   Page 1977, your Honour, volume 6.  So there is a ‑ ‑ ‑

KIRBY J:   He was six feet six inches tall?

MR McCUSKER:   Six feet six or sometimes it said six feet seven, but yes, very tall.

KIRBY J:   And the witness had said five foot eleven inches, I think.

MR McCUSKER:   Six foot, I think she said, about six foot, and the witness – that is Ms Barsden – had actually, when she gave evidence of the deceased at the Court of Criminal Appeal, she had gone back to the scene and looked in the window – this was some time later, of course – and looked at the area where she saw the man in order to, in effect, verify the height as she had first seen it, so that it was not a case of just a glance and said, “He is pretty tall, he is about six feet”.  She had gone back later and looked in the window and, as it were, lined up the vision against the backdrop that she had seen and maintained it was six feet.  She also said that ‑ ‑ ‑

HAYNE J:   Where are we, Mr McCusker, in the development of your argument?  We seem to have about three points in play at the moment.  Which point are we dealing with?

MR McCUSKER:   I agree, your Honour.  We are dealing with, I think, some important digressions, with the particulars, and if I could go on, going back to page 2544 of volume 7, I have dealt briefly with (a), (b) and (c), (a) and (b) being admitted, in effect, breaches of prosecutions duty.

HEYDON J:   It is actually 2594.

MR McCUSKER:   I am sorry, 2594.  My numbering is a bit ambiguous.  Item (d):

Section of a report of a forensic chemist –

that is a Mr Lynch – 

(which, at the request of the police, was removed from the report provided to the defence) that tests conducted on the Appellant’s clothing had shown no residual soluble salts (contrary to the Appellant’s alleged “confession” that he had washed blood off his clothes in salt water).

I will just deal briefly with that but I want to come back to it.  The police requested Mr Lynch to do a report based on Mr Lynch’s examination of the clothing of the appellant.  Included in the report was a report that the clothing had no traces of salt water and, for the purpose of doing that experiment – it was not just a casual approach – he got clothing supplied to him including the appellant’s shoes.  He did not test the shoes other than a visual inspection but said that the shoes showed no signs of salt either.  When the appellant was asked how did he get rid of the blood, the alleged confession was that he washed them in the salt water near the Stirling Bridge, the estuarine water of the Swan River.  Notwithstanding that, when a test was run, no salt water was found. 

All reference to the saltwater testing was excised from the report at the request of the police and the results of that testing for salt water were never supplied to the defence.  It is true that there is evidence that some, but not all, of the appellant’s clothing had been washed by him.  When the detectives executed a warrant and took some clothing away, he said, “I’ve done all my washing”.  He conceded that, but there was other clothing that was not washed and, of course, his shoes were not washed and the testing was done on all of the clothing and none of it bore traces of salt water and on visual inspection of the shoes, as I said, no evidence of any immersion in salt water.

KIRBY J:   The shoes are quite significant because there was evidence that a body damaged in that way and dragged out would have left spatter and there was some blood on the shoes but only the blood of the appellant.

MR McCUSKER:   Only a spot of blood of the appellant and the evidence was he cut his finger some time before that and that is how he got the spot of his own blood.

KIRBY J:   The theory was that the rain of that day had washed away the blood.

MR McCUSKER:   Yes, it was put before the jury that he had confessed to washing his clothes in salt water and one must bear in mind that on every occasion that there is a conflict between what he said to the police and the reality, it heightens the probability that he was merely theorising, as he all along said.  Of course, to most people, it would seem very strange indeed that someone would be offering his theories to the police about how the murder occurred but this, on the evidence that was before the court, was a very strange person.  Not only was he in and out of Graylands Mental Institution but he fantasised frequently, for example, referring to, in flights of fancy, the fact that he spoke six languages, remembered everything and forgot nothing and very strange statements that he made.

If I go next to (e).  Of course, having his own blood on his shoe but no blood of the deceased whatever – and they were tested – having his own blood on his shoe seems to negate the possibility that her blood, the deceased’s blood, would have been on his shoes and washed off in the rains.  It is possible, I suppose, and the same with the salt water.

KIRBY J:   Did he submit to examination of his body for the presence of blood, or was he subjected to that form of examination?  He did say at one stage, “This will help clear me”.

MR McCUSKER:   Yes, that was when he offered a blood sample.  He offered a blood sample in the hope that that would clear him, but on the morning following the murder he was actually arrested again, for something unconnected, and was strip searched.  I can only put it in negative terms that the police who carried out the strip search did not report that they found any blood on his body or on his clothing.

Item (e) in the particulars at page 2594 is a further important piece of undisclosed evidence.  A statement of a witness, a Ms Englehardt, was taken a few days after the murder.  It was referred to in the reference court as being a draft statement, but I should clarify that.  It was a draft only in the sense that it was handwritten.  It was signed by her and witnessed with the usual provision at the end.  So it was more than merely a draft.  The statement was taken from her in which she said that she knew the appellant because he lived in her flat, supposedly for a few days, but he had outstayed his welcome.  She was not on good terms with the appellant by this time.  But when the police came around to take a statement from her she said in the statement that on the afternoon of the murder she was in the flat from about 3.30 onwards, that the appellant’s cap was hanging on the door of her flat and that the appellant came in later that afternoon, late afternoon, with nothing on his head and his hair dripping wet.

Now, the prosecution case against the appellant at trial was that he was the man seen in the shop, Flora Metallica, by young Katherine Barsden, who saw a man with a bandanna tied around his head, gypsy style.  When this was put to the appellant by the police, that he had been seen in the shop by a girl, he said, “Well, I’d been in the shop”.  He had been in the shop about 10 days earlier to try to pawn a piece of jewellery.

He said, “Well, it could have been.”  He said, “I don’t wear a bandana, although I do have one, but I tie that round a staff.  I don’t wear it round my head.”  He tied sometimes a bandana round a staff and one round his leg but they were, in any event, of the wrong colour or shade.  The girl actually described the colours of the bandana round the man’s head.  He said, “Well, it could have been my hat, my cap turned backwards.  I sometimes do that.”  So the Crown case at trial ‑ ‑ ‑

KIRBY J:   It was red, was it not?  The cap was red, was it not, or am I wrong?

MR McCUSKER:   It was an orangey colour.  It had a border.  I will take you to the detail.  It had a gold border.  It had some colours similar to the colours that were described at trial by Katherine Barsden, but some of the colours that she put in her notes were not in the cap, but the notes were never disclosed.  In any event, the hypothesis of the Crown was he was the man seen, he was not wearing a bandana, but he was wearing his cap turned backwards so that it looked to the girl like a bandana.  The cap was produced at the trial as that is what the accused was wearing at the time.  But Ms Engelhardt, who was in the flat that afternoon, had given the police a statement that the cap was on the hook behind the door all that afternoon.  He came in with his hair wet. 

So on that evidence at the very least there was great doubt about whether he could have been wearing his cap turned backwards on the afternoon of the murder, as the Crown case hypothesised.  So everything was fitting rather well in the sense that the wrench which he had allegedly described as the murder weapon was, according to the evidence of Peter Lawrence, possibly a Sidchrome wrench missing.  The cap on the appellant’s head, however, if it was turned backwards, could not be there on the hook behind the door.  So about five weeks later the police went back to Ms Engelhardt and got a new statement, which was typed, and it deleted the reference to the cap hanging on the back of the door and it also deleted reference to his having come in that afternoon with his hair dripping wet. 

KIRBY J:   Was this ever the subject of cross‑examination of the police as to why they deleted that?

MR McCUSKER:   The only evidence given on this question was that Detective Shervill said that he deleted matters that were irrelevant or ‑ ‑ ‑

KIRBY J:   Irrelevant or unhelpful.

MR McCUSKER:   ‑ ‑ ‑ immaterial.  That is on this question.  He really had no direct recollection, he said, of why this deletion occurred.  It was hypothesised by the reference court that the deletion may have occurred because the girl had started to become less certain of what she had said in the first statement, but the girl, Ms Engelhardt, gave evidence at the reference court hearing, which I will take you to, in which she said that the statement she had signed a matter of a few days after the murder was what she believed to be correct.

She then, before the reference court, became quite upset.  She was being cross‑examined, as the reference court itself said, at some length and at one point in the cross‑examination she said that she had tried to block all of this out of her mind and she also said, “You obviously don’t regard me as a reliable witness, so can I please leave?”  So you can imagine that she was in a state of some agitation.  The reference court dealing with that particular matter, the first statement that she had made, hypothesise that she may have started to become less certain and, in any event, said that she would not have been a credible witness, but they were basing that, of course, upon their view of this woman some nine years later after she had made the statement.

KIRBY J:   When in relation to the murder had the statement been made, the first statement, that is?

MR McCUSKER:   If I could take you to the index of issues, your Honours.

GUMMOW J:   Her original statement is 29 May, is it not?

MR McCUSKER:   Thank you, your Honour.

GUMMOW J:   So it is quite close.

MR McCUSKER:   Yes.  Again, I hope helpfully the summary of issues, if I could take you to that, starting at the top of page 13:

First statement obtained by the police from Ms Engelhardt (not disclosed to the defence):

and the handwritten statement appears at volume 6 of the appeal book, 2002 to 2007.  Your Honours will note that the first of the unrecorded interviews takes place after that on 10 June, at which he allegedly says “he has a cap which he sometimes wears backwards”.  He repeats that, according to the police, on 17 June.  Then on 27 June, going over the page, a second statement is obtained by the police from Ms Engelhardt omitting all the references to the Appellant’s cap being on the hook on the day of the murder and omitting the reference to the appellant not wearing any headwear when he returned home on the day of the murder with, as she said in her first statement, a wet head.

Now, Ms Engelhardt gave some evidence before the reference court about quite a number of visits made to her by the police before that further statement was obtained, but the first statement that she made on 29 May, only six days after the murder, she adhered to as being her best recollection or, as she saw it, the truth at the time.  There has no satisfactory explanation ever been given for the failure to reveal to the defence the important evidence that Ms Engelhardt had said on 29 May that the cap that was supposed to be on the appellant’s head and in the shop that afternoon seen by young Kate Barsden, the cap was hanging on the hook.

Your Honours asked me what explanation had been given by the police for this.  If I could take your Honours to volume 5 appeal book, page 1879, line 10:

Detective Sergeants SHERVILL and CAPORN to 3/83 South Street, Beaconsfield where locate Michelle ENGELHARDT conveyed to Fremantle CIB office where further interviewed re Andrew MALLARD.  Statement amended to exclude hearsay, supposition and irrelevancies.

It is the appellant’s submission that that material, had it been available to the defence, would have been highly significant as again pointing to the appellant not confessing to having been in the shop with his cap turned backwards, not confessing to have used a wrench and killed Mrs Lawrence with it, but simply giving, as he repeatedly put it, his theories of how it had all occurred.

GUMMOW J:   He told her that he was on assignment for Interpol.

MR McCUSKER:   Yes, he told Ms Englehardt that.

GUMMOW J:   Yes, page 2005.

MR McCUSKER:   Yes, he did.  He was giving the most fanciful assertions, and there is a lot of evidence of that kind of thing.  He told the taxi driver he was a rock star, although that might have been in order to gain the taxi driver’s confidence.  He told various people that he was an expert in Celtic jewellery.  So he was full of romanticising, which is a particular aspect of bipolarity, or unipolarity, as it was described.

The next item of undisclosed evidence listed at page 2594 are the witness statements describing a man who could not have been the appellant wearing a bandanna, as described by the eyewitness, and behaving erratically in proximity to the scene of the murder several hours before the murder.  Now, the witness statements were those of Mrs Laurie, Mrs Phillips and a Mr Moon, who gave evidence to that effect, and it could not have been on the timing the appellant because the appellant at that time was in the East Perth lock-up.

Importantly, if I could take you first to the evidence of Phillips at volume 5, page 1960 and following.  She says on the afternoon of the murder:

About 3.30 pm the power went off in the shop.

It was a very stormy day.  In fact, the power went off later that evening and stayed off until after midnight.

Around 3.45 pm a male person came into the shop.

Interestingly:

He was aged between 28 to 30 years, of average to heavy build.

He was about 5’11” tall with blue eyes, wearing a bandanna which was tight over his forehead and was tied at the back with a tail.

There was blonde hair showing at the back of his ears . . . The bandanna had a pattern . . . 

unshaven with fair hair around his chin.  He had a distinct smell of urine on him.

And she describes his clothes.  The importance of that evidence to the defence would have been that it pointed to a person in the vicinity of the murder place, it was in the Stirling Highway but within easy walking distance down Stirling Highway to Glyde Street where the jewellery shop was, who answered the description that was given by young Katherine Barsden of the man that she saw in the shop, certainly much better answered the description than did the appellant.  

HEYDON J:   But there must have been hundreds of people about six feet tall in the neighbourhood in the hours ‑ ‑ ‑

MR McCUSKER:   I am sure, in terms of height, yes, your Honour, perhaps not hundreds but quite a few, but the important thing was he had this bandanna around his head – not too many would be wearing bandannas – and that was the important part of that piece of evidence.

HEYDON J:   But even if you have the unsavoury characteristics described by Mrs Phillips it does not mean you are likely to have committed a murder.

MR McCUSKER:   No, it certainly does not, but it does raise a doubt, it helps to raise a doubt.  By itself, of course, it takes you nowhere.  Can I mention Mr Moon at volume 3, page 1341 at line 18.  He knew Mr and Mrs Lawrence.  He saw the identikit picture circulated and he said there was a recognition.  He said down the foot of the page:

For a period of a couple of weeks there was a gentleman that came into the post office on a regular basis -

and he wore a bandanna.  At 1342, he says he:

was pretty unkempt in his appearance.  The thing that struck me, of course, was the fact that he wore a bandanna –

predominantly red, sort of tied back behind the head and he said, at line 8:

I’ve only ever seen one or two people in my whole life wear that sort of head gear and one was Willie Nelson who wears one on a regular basis . . . 

most of the time unshaven -

HAYNE J:   Why ‑ ‑ ‑

MR McCUSKER:   I do not know, your Honour.  He told the police that he thought he could identify that person, being a person who he did not see again in the area after the murder.  That appears at 1343.

KIRBY J:   This, you say, fits in with the theory that there was indeed another person about six feet tall with a bandanna tied in gypsy style who could have been the person in the shop that was seen by the girl ‑ ‑ ‑

MR McCUSKER:   Exactly, your Honour.

KIRBY J:    ‑ ‑ ‑ and that had you had that evidence that might have been fruitful source of pursuit of that theory.

MR McCUSKER:   Yes, that is so, your Honour, because if that were evidence before the jury, it might have raised a greater doubt as to whether the right man had been arrested or whether there was this man who answered much more accurately the description given by Katherine Barsden.  Central to the prosecution case was the evidence of Katherine Barsden of the man she saw.  That, the prosecution was, was the appellant.

Now, finally in (g), the original statement of a witness, a Mr Winch - Mr Winch was a witness from whom a statement was taken and in the statement that the police prepared for him the phrase “locked eyes” was used.  Now, it is perhaps a minor thing in the scheme, but an important ingredient of the prosecution case and one which was said to be very significant by the first Court of Criminal Appeal, not the reference court, was that according to the police the appellant had locked eyes with the girl in the shop and she had locked eyes with him.  So it was as if there were two sides of the same picture.  But although that was a very important part of the Crown case, the question is whether indeed that was the appellant’s term at all. 

The police had taken a statement from a Mr Winch who had seen the appellant later that night in Fremantle.  He had gone there by train, and there is a video of the appellant just before 7 o’clock on the train going to Fremantle.  He saw Mr Winch, who was a bookseller, and using a confidence trick, saying that he was a police officer who wanted something to read, managed to get Mr Winch to supply him a book without payment.  Mr Winch described him and said that he had locked eyes with him, according to the police first statement, and then they deleted the reference to that, and it was put to the police that really this was Mr Brandham’s phrase, the “locked eyes”.  It was one that he used.  It crept into the proceedings and assumed a very large significance on the basis that the appellant had used the phrase “locked eyes” and so had Ms Barsden. 

Now, that is really, as it were, an overview of the evidence that was not disclosed, some of which, as I have explained to your Honours, some of which was – and I will take you back to paragraph 69 of our submissions where we have noted those matters which it was accepted by the Court of Criminal Appeal should have been disclosed, the Engelhardt statement, the report of Lynch regarding lack of salt traces and the experiments, inquiries in relation to the murder weapon.  That brings us – I will have time to revisit those various matters, but I want to at this point deal with the significance of the non‑disclosures.  We deal with that starting at paragraph 70 of our submissions and I will endeavour, your Honours, to refer also to the Australian authorities dealing with what was said by Lord Hope.  I think it may have been Lawless that your Honour was referring to, but I will come to that.

The concession, we put in paragraph 71, by the Crown and the findings by the CCA of non‑disclosure of information which should have been disclosed, would, in our submission, of itself suffice to establish that the appellant was deprived of his right to a fair trial and it follows, in our submission, that there has been in terms of the section a miscarriage of justice.

GUMMOW J:   No, but it would not necessarily entitle you to a quashing and a judgment of acquittal.

MR McCUSKER:   No.  I accept that, your Honour.

GUMMOW J:   Which is what you want here.

MR McCUSKER:   That is what we want, and that is ‑ ‑ ‑

GUMMOW J:   It is a step along that path.

MR McCUSKER:   It is indeed.  In order to reach the point of a judgment of acquittal, we need to show the court the entirety of the case and the ‑ ‑ ‑

GUMMOW J:   The whole of the case.

MR McCUSKER:   The whole of the case, yes.  And that is what we endeavoured to do before the Court of Criminal Appeal, to show them the whole of the case, but they would not consider the whole of the case, taking the view that it was not for them to consider matters that had already been dealt with by the Court of Criminal Appeal.

GUMMOW J:   Now, is that a view that comes from some notions of autrefois acquit and autrefois convict ‑ ‑ ‑

MR McCUSKER:   They did not say so, your Honour.  In our submission, they certainly cannot.

GUMMOW J:    ‑ ‑ ‑ and estoppel.

MR McCUSKER:   No.

GUMMOW J:   Double jeopardy and those notions?

MR McCUSKER:   No.

GUMMOW J:   Where does it come from?

MR McCUSKER:   It was stated ‑ ‑ ‑

GUMMOW J:   It does not come out of the words of the section.

MR McCUSKER:   No, it does not.  In fact, it is contrary to the words of the section, which talk about ‑ ‑ ‑

KIRBY J:   And authority.  And English authority on it.

CALLINAN J:   And the reality, because how can you consider the new, or fresh evidence, whatever you want to call it, in a vacuum?  It does not have any meaning unless you know what the other evidence is.

MR McCUSKER:   No.

CALLINAN J:   And unless you put it altogether.

MR McCUSKER:   Yes.  We approach it, your Honours, on these bases ‑ ‑ ‑

CALLINAN J:   Because you do not know what the jury has accepted anyway at the trial.

MR McCUSKER:   No, it is impossible to know.  Once it is accepted that there was relevant evidence, which the Crown had a duty to disclose and failed to disclose it, in our submission, it does follow there is a miscarriage of justice.  We go further and say that it also follows that there is no room for the application of the proviso test, that is, the test which is sometimes put in terms of lost a fair chance of acquittal or sometimes inevitability of conviction.  Whichever way it is put, if the breach of the prosecution’s duty of disclosure has resulted in an unfair trial, which, in our submission, follows, then it follows in turn that there has been a miscarriage of justice and, stopping there, at least a new trial must be ‑ ‑ ‑

KIRBY J:   In a sense the economical deployment of the functions of this Court could be, if we were with you on that point, simply to say, “The Court of Criminal Appeal and the review Bench did not properly perform its functions, therefore it has to go back to that court to complete its task.”  Against that is that the Court of Criminal Appeal has had two goes at this and therefore it ought to, one way or the other, be brought to some finalisation.

MR McCUSKER:   Yes.

CALLINAN J:   If you can point to, as you say you have, that you were denied access to arguably relevant evidence capable of raising a doubt, then that is the end of the matter, on one view.

MR McCUSKER:   That is the way we have put it at paragraph 71, your Honour.

KIRBY J:   It is the end of the retrial matter?

MR McCUSKER:   Yes.

KIRBY J:   It is not the end of the acquittal matter?

CALLINAN J:   I think it is very difficult for you to get an acquittal here.  In fact, I do not think you can, at the moment.

MR McCUSKER:   One way that this Court could approach it, your Honours, is – taking up your Honour Justice Kirby’s suggestion – and that is to conclude that there has been a miscarriage of justice which in this case there is a substantial miscarriage of justice, so that there should be either a new trial or a verdict of acquittal and send it back ‑ ‑ ‑

KIRBY J:   That is a pretty important “either”.  I mean, you ask for acquittal and that can only really be done by us if we are to examine all of the facts and come to a conclusion that a verdict of guilty is not reasonably open to the jury.

MR McCUSKER:   You do not necessarily have to go that far on the authorities.  It may be that in some cases, as has been said, there may be a case – and I think Ilich, which is in our list of authorities, in which this Court said, it is not an invariable rule that there should be a retrial even when there is evidence upon which a jury could convict, but I accept, your Honours, of course, that in order to decide that there should be a verdict of acquittal, there will have to necessarily be a survey of all of the evidence, and that is why we have introduced all this evidence and that is the course we would prefer to take, of course, so the matter could be resolved here.

GUMMOW J:   Do we have the text of section 24 of the DDP Act of WA?

MR McCUSKER:   Yes.

KIRBY J:   I think we have that Act.  The Court discussed the issues of this kind in the case of Dyers v The Queen in which there were different views expressed.  I think I was of the view that enough was enough and it should stop, but the majority of the Court, respectful of the right of the prosecution to decide matters of this kind and of juries to try matters of this kind, said that the proper role of the Court was to send it back for retrial.

MR McCUSKER:   Was that Spies, your Honour?

KIRBY J:   Dyers v The Queen, about three years ago or so.  That also was a saga case.  It had a long history, and I think I said that it ought to be concluded by the entry of the verdict of acquittal, and I think reference is made in those reasons to cases where that has been done by this Court but the orthodox view is the one which the majority took which is that respectful of the right of the differentiation between the role of the courts and the role of the prosecution and the Crown that normally it is left to the prosecution to decide such matters, not the court.

MR McCUSKER:   If, however, this Court were to take the view that on a survey of all of the evidence against the accused, and essentially the only evidence against the accused – not essentially, the only evidence against the accused is the alleged confessions, nothing else.

KIRBY J:   The Crown put its case that that was so but that there was some circumstantial evidence such as, for example, his entry into the shop a few days before the endeavour to sell the opal there, so that there was a little circumstantial evidence but substantially it was confessional.

MR McCUSKER:   Yes, it was, and if, of course, there is such doubt thrown on the confession that it could not be accepted by any reasonable jury as being truly a confession as distinct from a theory, then such small matters as his having gone into the shop about 10 days earlier to try to pawn an opal ring must fall away.

HAYNE J:   Can I examine two aspects of the submissions you have just been making?

MR McCUSKER:   Yes, your Honour.

HAYNE J:   First, how do you characterise the material which was not disclosed which you say should have been?  Do you characterise it as material that could have engendered a doubt in the jury’s mind or do you characterise it as material that must have engendered doubt?

MR McCUSKER:   We take the latter approach, your Honour, and that is wading ‑ ‑ ‑

HAYNE J:   If that is so, why are we engaged in surveying the evidence as a whole?  That is, if the undisclosed material must have engendered doubt, do we not get to the conclusion you desire?

MR McCUSKER:   Well, yes, we do, your Honour, most certainly we do.

HAYNE J:   The second point which you may need to return to rather than give me an answer now is this.  If we are to engage in a survey of the evidence as a whole, how are we to assess the credit that should or should not be given to the evidence given by Mr Caporn in the form of “I said, he said” statements made by the accused as against whatever conclusion we might reach, whether by viewing the videotape of the recorded statement or reading its transcript?  That is, how can we, on a survey of the whole evidence, if that is the point to which we come, form a conclusion on underlying questions of credibility, particularly the credibility of Mr Caporn, that seem to underpin so much of the Crown case at trial?  Now, as I say, that is a rather larger question ‑ ‑ ‑

MR McCUSKER:   Yes, it is.

HAYNE J:   ‑ ‑ ‑ that you may wish to reflect on and answer later or answer at once pointing out a singular error in my ways in asking the question.  It is entirely for you.

MR McCUSKER:   Thank you, your Honour.  One way in which that could be answered, perhaps not the only way, is this.  If everything that Mr Caporn said were to be accepted, that is, “I said, he said”, at the end of all that there must still be a doubt not as to whether it was said, as to whether he was confessing.  The reason for that is that with these vital pegs in the prosecution case taken away, that is, the wrench as the weapon, being confessed to be the weapon, even if Mr Caporn thought he was confessing there is so much in the confessional material, if I can put it that way, which is in the third person and so much which is now inconsistent, such as the wrench was a weapon but it really almost certainly could not have been the weapon, the question of wearing the cap backwards when it was on Ms Engelhardt’s – all those doubts mean that even if everything that Caporn said is accepted and there is no question of judging his credibility, there would still have to be a reasonable doubt as to whether he was confessing.  That was the central issue throughout the trial.  Was he confessing or was he merely theorising? 

If he was confessing in terms of, as he sometimes, according to Caporn, said, “I hit her”, was that on all the evidence something that could be said to be reliable, because, of course, it is not uncommon for people to make confessions to things they have not done.  The police are plagued by it.  When people ring up and say, “I did it”, in fact, on investigation, even though they have said it to the police, there is no doubt about that, it is not a confession that can be relied upon.  That is why we would say that you do not have to look at the question of credibility and assessment of credibility.

HEYDON J:   Do you make an additional point which is that the Court of Criminal Appeal at the first appeal erred in failing to exclude the non‑tape recorded confessions?  Do you wish to re‑agitate that point?  I do not read your written submissions as having re-agitated it, but do you wish to?

MR McCUSKER:   For the issue of acquittal we certainly would.  It is then a factor to be considered as to whether ‑ ‑ ‑

HEYDON J:   Your point is that if the confessions were held by this Court to have been wrongly admitted, there would be too little evidence to justify a further trial.

MR McCUSKER:   Yes.

HEYDON J:   But if they were admitted, then it is a different question.

MR McCUSKER:   That is so, your Honour, yes.

HAYNE J:   Where do we find it in your notice?  Where do we find this point reflected in your current notice of appeal?

MR McCUSKER:   You do not, your Honour, because it only relates to the verdict of acquittal.

KIRBY J:   Not an unimportant little thing.

MR McCUSKER:   Very important, your Honour.  You do not find it and ‑ ‑ ‑

KIRBY J:   The first thing I did in this case was to look to the orders you sought.

HEYDON J:   There is no argument advanced either. 

MR McCUSKER:   What we would say in relation to it is, although it was a ground of appeal on the first appeal, that it should not have been admitted at all.  In considering whether there should be a retrial, considerations other than the evidence as such come into play.  One of those is if there were to be a retrial, would it be proper for such evidence to be admitted in a retrial. 

We say even if this Court took the view that that is a matter for the prosecution as to whether it would seek to introduce the confessional evidence on a retrial, coming back to the earlier point I made to your Honour Justice Hayne, we say that that evidence, when viewed in the context of the undisclosed material, is not evidence on which a jury reasonably or properly instructed could return a verdict of guilty.  They could not be satisfied beyond reasonable doubt that the accused was confessing in a sense of a reliable confession.

GUMMOW J:   Do we have the first CCA judgment?

MR McCUSKER:   Yes, we do, your Honour.

GUMMOW J:   Where do they deal with the admissibility of the so‑called confessional material?

MR McCUSKER:   At volume 3, 982.

HEYDON J:   It starts around 1001.

MR McCUSKER:   Yes.  That is “Failure to Use Video Equipment”.  The court there deals at some length with decisions such as Sell v The Queen where evidence of this nature was excluded.  At page 1009 ‑ ‑ ‑

GUMMOW J:   It is no good stressing the desirability of something and criticising a practice unless it leads to a result. 

MR McCUSKER:   Yes.  At page 1009, your Honours, at lines 12 and following ‑ ‑ ‑

KIRBY J:   It salves conscience.

GUMMOW J:   We are not in the conscience business; we are in the legal business.

MR McCUSKER:   It does, your Honour.  It rubs salt in the wounds, so to speak.  Your Honours, the court there, at the end of that survey of the law and the views that had been previously given, in particular Sell v The Queen, at 1009 at line 12, having referred to the new provisions in the Criminal Code not yet in force, said:

The Commissioner’s Guidelines, however, reflect the desirability of using video equipment whenever it is available.

They referred to this Court’s decision in McKinney and then at line 18:

This Court has now clearly stated what the desirable practice should be, but it would be inappropriate to give that practice retrospective effect.  It should be clearly understood, however, that the practice described in Sell as desirable will be given effect by the courts in respect of interviews conducted ‑ ‑ ‑

GUMMOW J:   McKinney was decided in 1991.  It was a big event.

MR McCUSKER:   Yes, it was, your Honour, indeed, a very important decision.

GUMMOW J:   But is the theory that the reasoning in McKinney only applies in Western Australia, some Western Australian courts as it does?  I am just looking at page 1009, line 19.

MR McCUSKER: Well, that seems to be the approach. Yes. Although we have not – and your Honour Justice Kirby is quite correct – directly raised this issue in submissions, if this Court were of the opinion that, given both the authorities and the existing section 570D in the Criminal Code, the evidence of so‑called confessions would not be admissible at a retrial, then that would be of itself a good reason for directing a verdict of acquittal.

GUMMOW J:   I am looking at page 1011, line 22:

In all the circumstances . . . I consider that having regard to the state of the authorities ‑ ‑ ‑

MR McCUSKER:   Yes.

GUMMOW J:   What authorities?

MR McCUSKER:   I do not know whether the court was referring to McKinney.  It did refer to ‑ ‑ ‑

GUMMOW J:   I think it is referring to the cases at 1002.

MR McCUSKER:   I think it is, your Honour.  That is Sell v The Queen, which was in 1995.

GUMMOW J:   And McKinney is degraded to a series of comments at line 16.

MR McCUSKER:   Yes, I see that.  This would have to be one of the extreme ‑ ‑ ‑

HEYDON J:   There is just one problem though.  Was there a substantial dispute about the sounds which the accused made, as distinct from the meaning to be attributed to them?  McKinney arises where there is a contest as to what was said.

MR McCUSKER:   Yes.

HEYDON J:   Your primary point is that whatever he said it did not mean that he was admitting guilt.

MR McCUSKER:   No, there was also a contest as to what he said, so there was both, but we say even if everything that he was supposed to have said is accepted, there is still then a question of whether that could be looked upon as a reliable confession.  Just stepping back from that, there was ‑ ‑ ‑

GUMMOW J:   Well, it has to be linked then to your point about psychiatric material, does it not?

MR McCUSKER:   Yes, it does.  That is the primary reason for introducing that ground, that the psychiatric evidence shows – and that is evidence that certainly would be available on a retrial – that any so-called confessions by him would be totally unreliable because he is a person given to flights of fantasy and grandiosity.  Grandiosity translates into such actions as here, sharing his theory with the police as to how the murder happened and, as the psychiatric report says, Mr Patchett’s report says, even at times putting himself in the position of the murderer as he would imagine it to be.

So with all of that evidence, in our submission, it would be not possible for a reasonable jury properly directed to reach a verdict of guilty.  There would have to be a strong doubt, a reasonable doubt at least, even if everything that Caporn said were accepted, whether he was truly confessing in the sense of giving a reliable confession.

KIRBY J:   Are this Court’s reasons for refusing special leave in the appeal book?

MR McCUSKER:   No, they are not, your Honour, but I have read them, of course, and the primary reason, as I recall it, was the 15 things said to be things that only the murderer could have known, and we have analysed those.  The reference court would not look at that, but we have analysed those in a schedule to our submissions to show that on analysis ‑ ‑ ‑

GUMMOW J:   They are equivocal.

MR McCUSKER:   ‑ ‑ ‑ they are equivocal and, in some cases, they are just wrong.  For example, one of the things said to be a thing that only the murderer could have known was that the murdered woman was wearing dark slacks and a jumper, but in the same interview – you will see in the videotaped interview, he says, no, that would be the shop assistant.  She, being a woman of taste, would have been wearing a skirt, a nice skirt.  Well, in fact, she was wearing neither dark slacks nor a skirt, she was wearing light‑coloured blue jeans.  So it just shows you the degree of unreliability of these 15 things.  That is just one of a number of instances.

Some are matters which anyone could have known or easily speculated, such as he said she had a black handbag.  That was said to be one of the things that only the murderer could have known.  In fact, it was not black, it was blue.  In any event, if most men, I would have thought, were asked, what colour handbag and took a guess, they would probably go for black, but it is something that was wrong and trivial.

KIRBY J:   We are getting a little lost again, I think.

MR McCUSKER:   I agree, your Honour, yes.

KIRBY J:   May I ask at some stage if you would hand up the Court’s reasons in that application ‑ ‑ ‑

MR McCUSKER:   In the special leave application?

KIRBY J:   ‑ ‑ ‑ or give us a reference to it so that we can have a look at it.

MR McCUSKER:   Yes, certainly.

KIRBY J:   You were dealing with the issue of approach and the question of whether the whole of the case warranted the course.  Is anything you would need to say about that that is not in your written submissions?

MR McCUSKER:   No, there is not, your Honour.  We have put it all in our written submissions.

KIRBY J:   So you say there was a fundamental approach and that the Court of Criminal Appeal did not really discharge their function.  In a sense, logically, that is the first step, because if they did not discharge their function, prima facie, the remedy is send it back to them to discharge their function.  Then you take it the next step and say there were these seven non‑disclosed matters, then you pick up Justice Hayne’s point and say that they are such that a reasonable jury properly instructed must have a reasonable doubt, and that that leads to acquittal.  But I suppose the next step is that even if we were not convinced on that, that the so‑called 15 matters that the accused could not have known if he were not guilty are further reasons for undermining the acceptability of the verdict.

MR McCUSKER:   Indeed, they are, your Honour, yes.

KIRBY J:   Is that the overall structure of your case?

MR McCUSKER:   That is the overall structure, your Honour, yes, and it is contained – I was going to mention a few matters relating to where there has been a breach of the prosecutor’s duty of disclosure, the consequence of that.  In our submission, the consequence is it is an unfair trial and in turn there is no room for the application of proviso.  There must be either a new trial or, as we seek here, a verdict of acquittal.  Do your Honours wish to hear me further on that or any other issue at this stage?

KIRBY J:   The issue of approach?

MR McCUSKER:   Yes, on the issue of approach.  We say that in Grey’s Case, if I can put it this way, the question of whether there had been a breach of the prosecutor’s duty was conceded ‑ ‑ ‑

GUMMOW J:   There is some debate in your opponent’s material on Grey and Lawless, but I think you have exploded that in your written material.

MR McCUSKER:   Yes, I think we have explained it, your Honour, in our reply, yes, in Lawless, so we will not go further on that.  So essentially that is our position.  Now, we have given detailed submissions in relation to the evidence and the importance therefore of the evidence concerning the locking of eyes, the cap which was not on his head backwards, the evidence

of the salt traces, there being no salt traces, and we have also dealt with the other material there.  I am just wondering whether your Honours would like me to take you to that in detail or is it sufficient that I provide the references to it?

GUMMOW J:   I think the references at the moment will be enough.

MR McCUSKER:   May it please your Honours.  Then at this point perhaps I need take you no further, unless your Honours would like me to.

GUMMOW J:   Yes, Mr McCusker, we will see what is said.

MR McCUSKER:   Thank you, your Honour.

KIRBY J:   I should just finally say, Mr McCusker, I am not absolutely clear that I have in my mind all of the 15 items which apparently influenced this Court in the earlier refusal of special leave and which you say are not reliable.  Now, if there were any in addition to what you have in your written submissions you wanted to deal with, then I would like to hear it.

MR McCUSKER:   No, there are none.

GUMMOW J:   We might hear if Mr Walker resuscitates them.

MR McCUSKER:   They are quite a lengthy schedule to our submissions, your Honours.

KIRBY J:   Yes, they are indeed.

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours, I am going to approach this, if I may, by starting with some matters of principle which are in the main matters of rules of law and there is a deal of common ground.  Second, I wish to have an attempt at reassembling the fragments that Justice Gummow has described as having been exploded, that is, to draw a distinction which places us on the opposite side of a line from that which my learned friend has drawn concerning, for example, no operation of the proviso.  The third area to which I will come ‑ ‑ ‑

GUMMOW J:   No, the explosion was the interrelation between Grey and Lawless.

MR WALKER:   Quite.  The third is to deal in particular with depending upon the principles which apply, an argument which, on one view of those principles, would advance the Crown’s position, namely that there is insufficient materiality – my word designed to embrace a number of tests to which I will come later – in the undisclosed material to justify coming to a different decision from that reached by the reference court.  In that scheme of course we will end up with an argument which we think is common ground about the nature of the deemed or assumed appeal, which was the statutory method dictated by Parliament to the reference court.

GUMMOW J:   Do you accept Lord Diplock’s speech in Chard [1984] AC 279?

MR WALKER:   Yes.  In large measure ‑ ‑ ‑

GUMMOW J:   It does not seem to have been cited to the reference court.

MR WALKER:   No, it does not, it was not, indeed ‑ ‑ ‑

GUMMOW J:   They fixed upon a 1973 decision in Victoria, which had some of its source in that decision of Lord Goddard which Lord Diplock was not too attracted to.

MR WALKER:   No.  The position that ‑ ‑ ‑

GUMMOW J:   That is [1984] AC 279.

MR WALKER:   Yes.  There is a passage in Lord Diplock’s speech, first of all, picking it up at page 293G ‑ ‑ ‑

GUMMOW J:   Well, it really begins at 292, does it not?

MR WALKER:   Yes, your Honour.

GUMMOW J:   He says Lord Goddard is “characteristically robust”, which suggests something is about to happen.

MR WALKER:   Yes, and it did.

GUMMOW J:   Then it happens at the bottom of the page, “It is not wholly clear” – robust but unclear – and then two meanings are attributed and one is said to be right and one is wrong.

MR WALKER:   Yes.

GUMMOW J:   This is the 1907 Act where he is saying ‑ ‑ ‑

MR WALKER:   Yes, this is unquestionably a highly persuasive authority and it is our argument, to put it shortly, that there is nothing here inconsistent with the approach we take now, because there is nothing here inconsistent with what Sir Frederick Jordan had held, in our submission, a lot earlier obviously than the House of Lords and in passages which are not affected and are not inconsistent with anything said in the House of Lords.

GUMMOW J:   I am not sure about that.

MR WALKER:   Your Honour, there are of course a number of points referred to in the ‑ ‑ ‑

GUMMOW J:   You are referring to 43 SR?

MR WALKER:   Yes, your Honour.  There are a number of points decided in the House of Lords which were not at stake in the old New South Wales case.

GUMMOW J:   Indeed.

MR WALKER: The first one of course is at [1984] 1 AC 279 at 292 where the point about limiting the reference, hearing and determination to those things which had been raised in whatever form of approach to the Executive had led to the referral is indeed exploded. But the point which at least at the stage of special leave being sought in this case divided the parties and divided them radically is also dealt with in the Lords but had also been dealt with by Sir Frederick Jordan a long time beforehand, and that was given the expression “the whole case”, what if anything was the use that may be made, or ought to be made, by the reference court of any earlier appellate consideration.

When I say, any earlier, that follows because these references are by no means to be seen as a further appeal.

GUMMOW J:   No, they come out of a prerogative.

MR WALKER:    Quite, as the text ‑ ‑ ‑

GUMMOW J:   They are a delegation by the Executive of the prerogative into the courts.

MR WALKER:    Quite, and as the history to which we have drawn attention shows ‑ ‑ ‑

GUMMOW J:   Which in England does not cause any problem, but for us does to an extent.

MR WALKER:    I was about to say, as the history to which we have drawn attention shows, at least in its genesis both here and in Britain – I am referring, of course, to the State Parliaments here – there are utterances which place the process very close to a kind of judicial advice to the Executive for the Executive’s use.  There are two qualifications to that, some introduced, it would appear, by reference to the delicacy of such a position appearing, the inappropriateness of such a position appearing.

The first, of course, is that there is effect to be given by the Executive to the determination of the court.  The second has been, partly at least, a result of judicial interpretation of the statutory words – Sir Frederick Jordan’s, in our submission, being prime among them – whereby there is an approach required by the reference court from the reference court as a result of Parliament’s command to determine the whole case.

KIRBY J:   I am not familiar with Chief Justice Jordan’s approach, so if you want to refer to it you will have to tell me what he said.

MR WALKER:    May I do so after I have dealt with the question of how the Lords dealt with it?  Now, the second point, going beyond Lord Goddard’s view that if you had raised three good points that had persuaded the Executive to refer, they were the only points that the court was going to look at.  The second point which was looked at in the Lords was what, if any, was the use which could or should – there is a difference – be made of any previous appeal, and that was the point at which I was emphasising that this, of course, being, as Justice Gummow has emphasised, a statute which stands outside the appellate hierarchy and provisions - it is significantly introduced, of course, in the same wave of reform - will not always follow upon there being any appeal, but when there has been an appeal, what is the use that can be made, bearing in mind that Parliament had used the words of similitude that I have perhaps inaccurately described as a deeming provision, as to the judicial method to be adopted, the appeal referred to in the provisions.

The first thing to be said about any appeal is, of course, that what the jury did do at trial is not to be ignored unless there is a point taken successfully about what I will call the trial which was not really a trial, using phrasing that is taken from the authorities to which I am going to come in the second part of my argument about principle.  But in all other contexts in ordinary criminal appellate statutes with which this country is familiar, what the jury did may not be ignored.  That does not mean, of course, that it trumps any appellate argument, far from it, but daily in the criminal appellate jurisdiction, there is wielded – quite often with effect – the answer – quite often from the bench - to argument or at least from an opponent, but the jury clearly did not accept that or the jury clearly did accept that.

Building no doubt on that, the approach taken, first by Sir Frederick Jordan, and then one sees it in the Lords, is that, my words, there is no more reason to ignore an early appellate consideration of these matters than there is to ignore what the jury did or did not do.

GUMMOW J:   That is a different question.

MR WALKER:   It is, that is the second ‑ ‑ ‑

GUMMOW J:   “Ignore” is one word.  That is not suggested against you.  What the court below did is to impose a watertight compartment.

MR WALKER:   What appears to divide the parties, however, can be expressed first as a matter of principle or rule, which I am addressing at the moment, and second, as a matter of what did the reference court actually do.  I accept that I have to persuade your Honours that what the reference court in this case did conforms with the principles which may well be common ground between the parties, that is what I refer to as probable common ground, concerning the use that could or should be made of the earlier appellate consideration.

But so that the Crown’s position is crystal clear about that matter and answering Justice Gummow’s inquiry concerning the possible persuasive force of Lord Diplock’s words, could I then come to this second aspect of what his Lordship was referring to in Chard, and I am now up to page 293 in that report, between letters F and G it commences.

In what might be another indication of the atmosphere of that hearing, there is a reference to the briefness of the additional time it has taken to hear, et cetera, and referring to what seems to have been some kind of floodgates argument, between G and H, his Lordship says:

Where, on such a reference an appellant seeks to argue grounds of appeal which not only are unconnected with the reasons in the Home Secretary’s letter referring the case, but also have been unsuccessfully relied upon in a previous appeal or application for leave to appeal against conviction in the case that has been referred, the court which hears the reference will have had before it and have read, as your Lordships have done in the instant case, the judgment of the Court of Appeal in the previous appeal or application for leave to appeal.  While it is true that the doctrine of issue estoppel plays no part in criminal law, the court that hears the reference will give weight to that previous judgment, from which it will be very slow to differ, unless it is persuaded that some cogent argument that had not been advanced at the previous hearing would, if it had been properly developed at such hearing, have resulted in the appeal against conviction being allowed.

There is a little bit of flavour in that that reminds one in the civil jurisdiction of the same judges, that is Lord Diplock’s, what I will call, “quick sniff” test about leave to appeal from arbitral awards and it was not necessary for his Lordship to explore exactly at what point the reference court changes speed from very slow to differ with a previous appellate consideration to treating it as just another part of error, sequence of error, that needs to be corrected.

But, in our submission, one thing that emerges very plainly from that as it emerges, in our submission, in the New South Wales authority and the Victorian authorities, is that one does not put to one side as of no moment or treat as tabula rasa the matters and the way in which they have been dealt with which have already been the subject of appellate review.  It may be that there is complete common ground between the parties before your Honours on that point by now, although one could be forgiven for thinking at special leave point that there was a more radical difference between us.  Now, that leaves quite to one side – and I am going to come back to this later, not now, if I may ‑ ‑ ‑

GUMMOW J:   What does the word “case” mean, “the whole case”?

MR WALKER:   It has been ‑ ‑ ‑

GUMMOW J:   One does not usually talk about cases in terms of this sort of – the ordinary criminal legislation.

MR WALKER:   No.  I do not mean this disrespectfully of the draftsman or of those who have interpreted the words later to the contrary, but it is, of course, the colloquial, including journalistic way of talking about what the French call “un affaire”, that is, the so-and-so case.  It is not only Sherlock Holmes.  So that there is, as it were, a ‑ ‑ ‑

GUMMOW J:   It is also the language of the royal prerogative, is it not?

MR WALKER:   Yes, your Honour, yes, drawing from exactly the same use of language.

GUMMOW J:   Yes.

MR WALKER:   Now, it has been interpreted, in our submission, in a way that does not call for this Court to change the law.  It has been interpreted as meaning that everything relevant – and in this case that is a sensitive word obviously – goes to the reference court and is to be considered by them.

GUMMOW J:   As if it was something else, namely, an appeal.

MR WALKER:   That has always been the difficulty.

GUMMOW J:   And there is a transmogrification.

MR WALKER:   Quite, because, for a start, you are there talking about applying judicial technique to material which, in most cases, would never get to an appellate court.  But necessity requires that as many elements of the parliamentary command be observed in substance and the case law now resolves difficulties in a way that the appellant certainly does not challenge and we certainly do not challenge, namely, that “the whole case” relevantly means, perhaps not exhaustively, all the material which comprises the record which would be available to a true court of appeal, that is the first category; second, the record and result of what had had happened on any appeal if there had been a preceding true appeal; third, any other material extraneous to those first two categories which had been the subject of, or referred to in, the representations which produced the reference itself.  Classically, that would be, to use a technical term non-technically, any supposed fresh evidence.

Now, it may be that there are other categories including, for example, material obtained by the Executive upon receipt of the representation going beyond, or perhaps differing from, that which had supported or been referred to in the representation.  That would be a fourth category.  I do not wish to be exhaustive, but those four categories comfortably cover everything that was considered in this case by our reference court.

Now, once that is material which consideration of “the whole case” requires to be determined, there then comes about the need to comply with the statutory admonition to the reference court to proceed as if on appeal.  Already, there has been a radical shift away from what an appeal actually has, but it has been interpreted in authorities, particularly including Sir Frederick Jordan’s decision, to which I am about to come, and also by the Lords, in a way that clearly permits – I do not think I can say on the authorities’ requires – clearly permits a reference court to consider how an earlier true appellate court had dealt with a matter, to consider whether that matter was sufficiently closely in that same form and context before then the reference court, and to decide that there was in the whole case no other matter, either of fact or argument – I stress of argument as well – which justified redoing, to the same degree of detail, for example, what had been done by the earlier appellate Bench.

CALLINAN J:   Mr Walker, I wonder whether the reference to the words, “as if it were an appeal”, are merely meant to convey that the proviso could be applied in an appropriate case.

MR WALKER:   Your Honour, with great respect, were the matter res integra, there is obvious policy merit in such an approach, but it is not.  In particular, there is the question of so-called fresh evidence.

CALLINAN J:   Sometimes the proviso might be applied in the case of fresh evidence in an orthodox appeal.

MR WALKER:   But obviously there are more than just proviso issues to consider in relation to fresh evidence.  There is also the question of whether it is relevantly “fresh”, to use that odd word, plus what might be summed up in the label “cogency” or the dual label “plausibility and cogency”.  So they are more than just proviso.

The second principal dancer to your Honour’s suggestion is this.  Bearing in mind what was being effected by the legislative reforms at the time here and there, it would be curious if the proviso alone were intended to be a control on a reference court, but those words not be reproduced.

KIRBY J:   The problem with your theory of the delineation of the earlier proceedings and then dealing with the matter on the new material is that facts considered in an earlier context may take on a different colour by being considered in a new case.

MR WALKER:    May I attempt to persuade your Honour that that is not a problem with the way we have enunciated the approach, but it will be a ready answer by the, I will call them, pseudo‑appellant, in a reference, it would be a ready answer to an argument on behalf of the prosecution that a matter dealt with by an earlier appellate court should not be looked at, say, in detail in the reference.  We entirely accept what your Honour has said, and that is why the different task of persuading your Honours that the reference court in this case did not fail in its task to consider the whole case is a separate task.

It is applying the principles I have just talked about to what they actually did, and in doing that I hope I shall not be mistaken at any point, we accept what Justice Callinan said earlier today and Justice Kirby has said just now to me, namely, that it is one thing to use a hypothetical example, that the admissibility of one piece of evidence had already been considered in great detail by an earlier appellate Bench, it is another thing to say that it is therefore shielded from scrutiny by the reference court because, obviously, the admissibility of one piece of evidence may well be affected by the nature of other evidence, particularly evidence which had not been before the trial or the appellate Bench.

GUMMOW J:   What is the prosecuting authority’s present attitude to paragraph 9 of the reference court judgment on page 2513?  It talks about re-adjudication of a ground of appeal.  Do you accept that that is too narrow a view?

MR WALKER:   That is one of the paragraphs which unquestionably pose a challenge to us in persuading your Honours that what the reference court did complies with the principle ‑ ‑ ‑

GUMMOW J:   No, the first question is, do you accept what they say there is the correct statement of the law of the construction of the section?  I do not think so from what you have been saying. 

MR WALKER:   No, insofar as ‑ ‑ ‑

GUMMOW J:   You are not going to say properly understood. 

MR WALKER:   I was not going to, your Honour, but I probably will now – accidentally, I stress. 

KIRBY J:   We can never say that or Justice Gummow jumps on us.

MR WALKER:   No.

GUMMOW J:   Justice McHugh, actually. 

MR WALKER:   I hope I am not going to invite your Honours to any revisionism to save, as it were, authorities which are wrong.  I am not going to do that.  However, in the context of a reference, as this one was, with a number of different points, we say ‑ ‑ ‑

GUMMOW J:   However connected points. 

MR WALKER:   Yes.  Your Honour, I was going to try and deal with that point.  We say that if, and I stress only if, a point connection with other points and other circumstances, particularly circumstances raised for the first time in the reference, if on consideration those points are not sufficiently altered by the new context, then the way in which they have been dealt with before ought to be the way in which the reference court treats them for the purposes of the reference.

That is what Lord Diplock was saying, in our submission, though in much less detail and not having to deal with the new arrangement of some of the old beads plus some of the new beads on the new string.  That is what Lord Diplock was saying in Chard.  It is certainly what Sir Frederick Jordan says in the quite different and much simpler context of the case with which he was dealing in Gunn, but paragraph 9 is obviously a good foundation for the argument against us that there was a closing of a door contrary to authority.

If your Honours, after I have attempted a later argument, are persuaded that that is the entirety by self‑description of what the Court of Criminal Appeal did in relation to certain points, then it is going to be very difficult for us to defend ‑ ‑ ‑

GUMMOW J:   That was under the heading – (i) was “Reference of the ‘whole case’”, and then they move on.

MR WALKER:   Yes, but then one has to actually look at what they actually did.  As your Honours have seen from our written submission, what they actually did under this rubric is not at all a case of shutting doors or treating certain aspects of the case as un‑examinable and coming in, as it were, a given parcel from the earlier Court of Criminal Appeal.

HEYDON J:   You are talking about pages 14 and 15, that sort of place in your written submissions?

MR WALKER:   Yes, your Honour.  I hope I have made it clear unless we succeed in that endeavour then there has been an error of method.

GUMMOW J:   There is a New Zealand case of Ellis [2000] 1 NZLR 513. Has anyone looked at that?

MR WALKER:   I am afraid I have not, your Honour, I am sorry.  I will.  Could I take your Honours back then to 1942 in New South Wales, R v Gunn (No 2) 43 SR (NSW) 27. In one sentence, in our submission, Sir Frederick puts the point which we say is the true principle. We do not ask the Court to alter it, though particular cases may require elaboration of it, and we accept that it provides the test against which the actual conduct in the reference court is to be measured. At page 29, at the very beginning, after stating the facts, his Honour proceeded:

In a case in which there has already been an appeal which has been disposed of on the merits, I am of opinion that the Court, in the case of a reference such as the present, is not called upon to re‑adjudicate upon any ground of appeal which has been already heard and disposed of, unless –

and it is all in the proviso –

some new matter has come to light which makes a reconsideration of the ground necessary or desirable.

It is not an illiberal approach at all, as those closing two words “or desirable” makes clear.

Then his Honour proceeds to demonstrate in that case how one might apply that.  The conclusion is expressed in the last paragraph on page 31 appropriately to the way in which his Honour had described the test:

Treating the whole of the accused’s case as before the Court, I am of opinion that there is nothing in any matter brought forward by the petition –

so that is matter going beyond what was at trial –

which would justify a reversal of any determination arrived at by the Court –

Now, that is very similar to Lord Diplock’s “slow” to depart from.  It would appear that the argumentative or persuasive burden is on those who would seek to have the reference court differ.  Certainly that is what one would gather from Lord Diplock’s speech and, in our submission, it is certainly the actual technique practiced by Chief Justice Jordan.  Now, that does mean that in applying those principles to how the reference court actually proceeded in this case and, as we have attempted to argue in our written submissions, the practical question will be, was there ‑ ‑ ‑

GUMMOW J:   But what they said was, they said:

the jurisdiction of the court was confined to fresh material and . . . that it could not re-adjudicate a ground of appeal already heard and disposed of. 

That is not what has been said in the other cases.  That is what is being said here, “the jurisdiction of the court was confined”.

MR WALKER:   That is certainly how the respondent’s argument based on the Victorian decision of Matthews is paraphrased, yes, your Honour, and furthermore it is important to point out that there is then the reference to the 1997 Mickelberg decision and at lines 20, 21 it is said that that “is authority which supports the submission of the respondent”, and I accept that it is the submission of the respondent that includes the formulation that your Honour has just read.

That is probably reinforced or perhaps merely repeated by the quotation or the citation from page 6 of Chief Justice Malcolm’s decision in Mickelberg, going down to between about lines 23 and 25, and then the actual quotation going to the top of the next page.  The qualification that Chief Justice Malcolm refers to in Ratten ‑ ‑ ‑

KIRBY J:   Just before you leave the decision of Chief Justice Jordan and the even more emphatic decision of Justice Halse Rogers, it just seems to me, with all respect to their Honours, it is hard to reconcile their approach with the words “whole case to be heard and determined”.  It just seems to me that that is not consistent with the language and the purpose of the legislation which is exceptional.  I mean, you do not get these every day of the week.  In fact, one was apparently refused in this case at an earlier stage.  So they are exceptional, they are to prevent a miscarriage of justice and then add into it the contextual element that we are all a little wiser in the judiciary since Gunn.  I mean, Gunn was written before the terrible revelations in the 1950s, 1960s and 1970s of miscarriages of justice and people being wrongly convicted and sitting away in prisons, and I just think if you add all that together we would just read the words today differently than they read them in 1943.

MR WALKER:    Your Honour, the words in question particularly include this required similitude with an appeal.  Now, no doubt because of that, no doubt because of the way in which the prerogative of mercy was understood to be exercisable and exercised, it has never been suggested and is not suggested by the appellant in this case that the other phrase “whole case” carried with it the notion of back to scratch, starting the inquiry into guilt and thus into the outcome of a trial upon which a conviction had been secured from scratch.  No one has ever suggested that.

KIRBY J:   Well, (b) is an indication that if what is troubling the Attorney‑General on the complaint is a particular matter, a specific matter, then he or she can confine the court to that, but where you refer the whole case and it is to be determined as if it were an appeal it just seems to me, particularly in the light of everything that has happened since those cases of wrongful conviction on the basis of identity evidence, the Confait Inquiry and then the Irish cases in the United Kingdom and cases in this country, that if we, with our spectacles of today’s age, read those words, it just seems to me it is really hard to argue against that they have to go back to scratch.

HAYNE J:   It requires consideration of the relationship between 140 and 689 of the Code.

MR WALKER:   It does.

HAYNE J:   Such things as whether “the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”.  Which evidence?  Evidence led at trial?  Evidence led at reference?

MR WALKER:   There is an answer to that question, but it is a demonstration of the tension and resolution required by these phrases used by Parliament.  The answer to the question is it will most certainly include evidence brought forward after the trial, that being the almost classic reason for one of these ‑ ‑ ‑

GUMMOW J:   The useful reference in the case of McGrath in the English CCA, [1949] 2 All ER 495 at 497, where they say:

When, however, the case came before the court on a reference from the Home Secretary different considerations arise.  Cases come before this court on such a reference because representations have been made to him that they are proper cases for the exercise of the royal prerogative.  The Home Secretary has a much wider discretion than this court.  He can hear and consider any evidence he likes which would influence him in considering whether or not he should advise the exercise of the royal prerogative –

and so on.

MR WALKER:   Yes, quite.  That is why unquestionably the phrase “whole case” then requires this notion of appeal being applied to material which may be fresh in the colloquial sense, but need not be fresh in the legal sense at all, but then the question ‑ ‑ ‑

HAYNE J:   But also recognises the bifurcation between 138(2), “A pardon does not quash or set aside” and the engagement in 140 of 689.

MR WALKER:   Yes, that is what I meant earlier when I said this is not part of the ordinary appellate process.  On the other hand, there can be little doubt but that the difficulties, if they are difficulties, are introduced by the statutory formulation which has been there since the beginning to proceed as on an appeal.  It is that which I am straining against in relation to Justice Kirby’s inquiry.  It does not follow that that means that there is, as it were, a hearing de novo into guilt.

KIRBY J:   Yes, but you cannot receive the new evidence and then consider it for the purpose of the inquiry unless you have considered in the context of and with the old evidence.

MR WALKER:   Quite so.  I accept that, your Honour.  I am not arguing against that at all.

GUMMOW J:   Not now.

MR WALKER:   I am sorry, your Honour?

GUMMOW J:   Your client is not now arguing against that proposition?

MR WALKER:   Yes, I am not arguing that.

GUMMOW J:   All right.  Is that a convenient time?

MR WALKER:   Yes, your Honour.

GUMMOW J:   We will adjourn until 2.15 pm.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GUMMOW J:   Yes, Mr Walker.

MR WALKER:    If it please your Honours.  I was in the course of seeking to defend what the reference court did in light of or perhaps notwithstanding their paragraph 9 at volume 7 of the appeal book, 2513.  Paragraph 9, of course, under the heading “Reference of the ‘whole case’” is expressed after in 7 there had been an unexceptionable though unelaborated paraphrase of the requirement, namely:

consider the case in its entirety, subject only to the limitation that it is bound to act upon legal principles appropriate to an appeal.

Then in paragraph 8 a reference to a perceived tendency on the part of the petitioner to proceed:

without regard either to the verdict of the jury or to the previous decision of the Court of Criminal Appeal –

in other words, to proceed contrary to the principle that I rather suggested earlier today was really common ground between the parties in argument now, because it is not said, we think, by the appellant here, that there could be no regard to the previous decision of the Court of Criminal Appeal.

The reference to the jury is highly significant in the last sentence of paragraph 8 of the reference court’s reasons, bearing in mind the way in which the jury and what it did and what it was able to do and what it was asked to do is a standard appellate way of dealing with miscarriage, on the evidence, appellate arguments which was adopted by the Court of Appeal, the appellate Bench in this case, and which was adapted and adopted by the reference Bench in this case.

HAYNE J:   You say “adopted” and “adapted”.  The complaint was that the jury did not have material that it might have or should have had. 

MR WALKER:   Of course, and that is true every time there is, whether by reason of non-disclosure or not, deliberate or not, every time there is something in the nature of new evidence, be it fresh or otherwise, there is always a question as to how one should marshal that, as an appellate Bench, in relation to the decision of the jury.  That is why the various tests have evolved in terms, for example, of losing the real chance of acquittal, the functional indication of which is that it is not possible to say that conviction in an unblemished trial would have been inevitable, or, in relation to the fresh evidence test, that there would likely be or, alternatively, there would be a significant possibility of a different result.

Those two different tests with which your Honours are, of course, well familiar do underlie the consequence of one of the differences that still obtains between the parties before you, namely, is this evidence to which there ought to be attached the fresh evidence test or was it evidence to which there ought to be attached to the miscarriage test.  We have to embrace both tests in order to persuade your Honours in relation to the case generally, that is we have to satisfy both.

Returning to paragraph 9, it is in that context that, in our submission, there is the shorthand that one finds in its first sentence, summarising a submission which, on my instructions, was not put significantly differently from the way in which I have put it, that is the notion that there had to be regard to the verdict of the jury and to the previous decision of the Court of Criminal Appeal, was something which was put by the Crown.

The reference to “could not re-adjudicate” really has to be understood as being a reference to the way in which, unless the qualification in Ratten applied, matters or arguments which were being put without material change from the first appeal, did not call for being dealt with afresh by the reference court.

Now, if I can first take your Honours to Ratten because that is the reference that the reference court incorporate by their quotation from the Mickelberg decision contained in paragraph 9 of their reasons. In 131 CLR 510, the qualification to which Chief Justice Malcolm was referring, quoted in the reference court, follows upon the exposition of the nature of an appeal by Chief Justice Barwick in light of the nature of the trial, ending in the paragraph:

But he –

that is the accused –

must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted.  The accused, nevertheless, will have had a fair trial.  But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair.

Then his Honour moves to a different case, a different category of case:

Of course, if by reason of new evidence accepted by it though it may not be fresh evidence –

so if it does not qualify as fresh evidence –

the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.

Now, that is a sentence which positively requires, of course, acceptance of the proposition that the court of reference may be asked to consider and therefore will consider whether or not it is satisfied of innocence or entertained such a doubt on the basis of new evidence not being fresh evidence notwithstanding the trial was fair. 

Now, that, in our submission, being introduced as a qualification by the reference court in their quotation in paragraph 9, clearly shows that they were not directing themselves on the basis that what the Court of Criminal Appeal had done in the actual appeal somehow put beyond scrutiny for the purposes of considerations of innocence or sufficient doubt as to guilt of the material, even if it be not fresh, which was new in light of how that may have affected the result.  It is for those reasons, in our submission, that the text of paragraph 9 should not be regarded as concluding the inquiry as to what the reference court did in this case and saw itself as doing in this case concerning its relationship with and the status of the findings of the earlier Court of Criminal Appeal. 

Paragraph 10 also makes that clear because in describing what actually happened in Mickelberg their Honours note that that application was not dismissed.  In a proceeding by way of preliminary objection there was a difficulty of evaluating the way in which matters which were either fresh or new in the relevant sense would interact with issues already determined.  So that their Honours were not directing themselves as if “issues already determined” could not be looked at.  They accepted that there would be the outstanding issue of interaction. 

As has already been observed in our written submissions, we have tried to capture in the passage that commences in paragraph 23 on page 12 and continues to paragraph 30 on page 17 the way in which the reference court here expressly advert to consider, including by reference to what the Court of Criminal Appeal had done in the earlier appeal, and in light of the fresh argument and new material in which they do consider the case put by the petitioner.

What they do not do is put to one side altogether what the Court of Criminal Appeal had done in the earlier appeal.  Now, we do not understand the appellant’s argument as a submission to the effect that they should have put it to one side but, in our submission, the appellant’s argument is difficult to justify in light of the way in which the passages to which we have drawn attention in detail in those paragraphs, it is difficult to see how the appellant can complain about the use which was made of the Court of Criminal Appeal’s findings and approach.

In short, on the authorities, and in particular the pithy way in which Sir Frederick Jordan put it, to which I drew attention before the adjournment, on the authorities it is always a proper approach for a reference court to ask, does the new material, be it technical, fresh evidence or anything else, and the new argument, does it cast such a light on the whole case as to require in the areas where an earlier appellate court has already considered and ruled, an upsetting of or departure from any of the conclusions of that earlier Bench on the issues with which they were seized.

Now, that is an approach which naturally embraces as a premise that the earlier Court of Appeal was not looking at the same set of issues and certainly not in the same statutory context as the reference court.  That much goes without saying, which for what it is worth, the reference court here did say that in the paragraphs to which I have drawn attention, 7, 8, 9, and 10.  Rather, on the authorities it would have been, in our submission, an error for the reference court to have left out of account what the earlier appellate Bench had done in relation to the material.

Now, it follows from the way in which the so‑called qualification expressed by Chief Justice Barwick in Ratten is expressed, as well as the way Chief Justice Jordan expressed it in Gunn (No 2), it follows, of course – and we accept this – that the reference court in a case such as the present is susceptible to criticism and will have committed an error if it does not truly consider whether or not the new material – be it fresh evidence or not – and the new argument casts such a light on the whole case as not to justify continuing to decide matters already argued and disposed of in the way they have been disposed of.  We accept that that is an appropriate kind of criticism which can be levelled at the reference court, but for the reasons we have put in writing in the paragraphs to which I have just drawn attention, that error was not committed.

Your Honours, in relation to authority, there are two others to which I should refer.  The first is one to which the Court drew attention yesterday.  That is Re MJR (2000) 1 VR 119 where the Court of Appeal at page 127 in paragraph [17], towards the foot of the page – it is about an inch and a half or two inches up:

upon a reference of the “whole case” . . . the Court will have before it the entire record of proceedings which have preceded the reference, it will nevertheless be required to act only upon such parts of the material before it as are admissible and relevant to the determination of the appeal.  And, as we have previously stated . . . where the record discloses that an appeal has been previously heard and determined, it is not contemplated (at least in this country) that a ground of appeal already regularly dealt with and disposed of in that appeal should be re‑adjudicated –

and there is an expression which would suggest that paragraph 9 of the reference court here was not out of kilter –

unless some new matter has come to light which makes re‑consideration of the ground necessary or desirable –

Chief Justice Jordan’s formulation, and his is the first citation.  Then there are observations about what might be called the difficulties of the position falling out from the way in which the statute has used the concept of an appeal. 

The decision to which Justice Gummow drew attention just before the break, R v Ellis [2000] 1 NZLR 513, in that decision the Court of Appeal was in exactly the same vein, at page 517, I think paragraph [13], there is a citation from a case of Morgan, which itself has within it an ultimate source in Chief Justice Jordan in R v Gunn (No 2).

KIRBY J:   Is their statute in the same terms relevantly?

MR WALKER:   Yes, it is and your Honours ‑ ‑ ‑

GUMMOW J:   It does not have the phrase “the whole case”, does it?

MR WALKER:   No.  At the top of page 517, the equivalent of the first leg is:

Refer the question of the conviction . . . and the question so referred shall then be heard and determined –

One sees that the reference ‑ ‑ ‑

GUMMOW J:   “[A]s in the case of an appeal”.

MR WALKER:   Yes. 

KIRBY J:   But it is the reference to the whole case and the obligation to determine that are the words that work this section.

MR WALKER:   Yes.  It does not appear – and I stress it does not appear – that any weight was given in the reasoning in New Zealand to that textual difference and I do not wish to deprecate the importance of that textual difference, but certainly the reasoning in New Zealand seems to have taken holus‑bolus as being an appropriate authority the way in which Sir Frederick Jordan expressed it and, for that matter, the way in which Mr Justice Halse Rogers did in the immediately preceding decision to which your Honour Justice Kirby drew attention. 

GUMMOW J:   Yes, but the Halse Rogers formulation is narrower still.  The Halse Rogers formulation says:

In my opinion on the reference of the whole case this Court starts from the position that certain matters have been heard and determined and then proceeds to a hearing and determination on any new matter which is brought before it.

KIRBY J:   That just seems to negative the purpose of the inquiry.

MR WALKER:   May I say that is not the way in which I have put the case.  It is the way Sir Frederick Jordan put it in the first sentence of his reasons as reported in 43 SR, which is the way we put it.  It may be significant, whatever may be thought about the formulation by Mr Justice Halse Rogers, that has not been the citation which has been continually made thereafter, notwithstanding its presence in that New Zealand decision.  Your Honours, in light of those approaches ‑ ‑ ‑

KIRBY J:   References to Chief Justice Jordan in some quarters take on a saintly sort of character.

MR WALKER:   Yes, they do. 

KIRBY J:   I believe they even have a portrait of him now in the President’s court in Sydney or somewhere there.

MR WALKER:   I am not quite sure what is in the President’s court.I think your Honour is trying to make me say the word “icon”.  I will not.

GUMMOW J:   Sir Maurice Byers used to say that Sir Frederick presided over the Court of Criminal Appeal with the air of a convert from the equity jurisdiction to the criminal jurisdiction that was very, very zealous.

KIRBY J:   There have been others like him.

MR WALKER:   Your Honours, if I may press on with the argument.

GUMMOW J:   Yes.

HAYNE J:   What you have said about the significance to be attached to the decision of the Court of Criminal Appeal in its hearing of the appeal turns, does it not, upon the particular grounds that were argued on that appeal.

MR WALKER:   Entirely.  That point is only as good as the comparison and relation of points taken in the earlier appeal and arguments sought to be adumbrated on the reference.

HAYNE J:   In particular, insofar as the applicant in the petition case, the reference case, sought to make out miscarriage on any other ground whatsoever ‑ ‑ ‑

MR WALKER:   Yes.

HAYNE J:    ‑ ‑ ‑ the first Court of Appeal’s conclusions about ground 3 of the appeal to that court on that occasion, reproduced at 1046, namely verdict unsafe and dangerous, are irrelevant, are they not?

MR WALKER:   The overall conclusion ‑ ‑ ‑

HAYNE J:   Let me tell you where the questioning is going so that you can deal with it.

MR WALKER:   Yes, your Honour.

HAYNE J:   Why has the reference court gone on as it has about the significance to be attached to the earlier decision of the CCA?  What was the duplication?

MR WALKER:   There was very large overlap in the area of timing.

HAYNE J:   In relation to unsafe/unsatisfactory?

MR WALKER:   Yes, your Honour, timing and the flaws in the 15 points.

HAYNE J:   But that takes you back to M v The Queen.

MR WALKER:   Yes, your Honour.

HAYNE J:   And the fact that what for so long was known as the unsafe/unsatisfactory ground requires the appellate court to have regard to the whole of the material.

MR WALKER:   Yes, your Honour.

HAYNE J:   And it is error, is it not, to pick out point by point by point and say, “Look, the jury could’ve decided that point as they did.  They could’ve decided that point”.  You are losing sight of the forest by fastening on the trees.

MR WALKER:   Which does not mean, of course, that where the appellant puts forward certain trees as characterising the forest as showing what kind of forest it was, you do not have to look at those trees very carefully.

HAYNE J:   Sure, but the Court of Appeal in the reference appears to have laid a degree of weight upon the notion that there were limits to the task it had to engage in.

MR WALKER:   Yes, I accept that.

HAYNE J:   The point I want to put to you is that it is not apparent to me at all why there was any relevant limit, even if the most favourable view of the authorities, to your side of the record, were to be adopted.

MR WALKER:   Yes, first of all, may I say that the word “limit” is an awkward one for me to advance and I will not try to defend a word “limit”.  It may be that a different word such as “deference” or “reticence” might capture the flavour better.  But the passage, for example, from the speech of Lord Diplock being “slow to differ” and the permission, the permission given - your Honours will recall this morning I said I did not think I could go so far as to say requirement imposed – the permission given by the approach illustrated by Chief Justice Jordan, is not to deal afresh, as if there had been no actual appeal.  The permission is given not to deal with it afresh if you are not persuaded that the new material, the new argument, casts such a different light as to justify departing from the way in which those matters were dealt with in an earlier appeal.

KIRBY J:   The question is whether the earlier appeal is historical and background or whether it is functional.

MR WALKER:   It appears to be both, your Honour, because of course in a reference what happens in an appeal may be part of a historical narrative.

KIRBY J:   Well, that I can accept.  The problem I have is when you try to make it functional given that this is a new, different, separate, subsequent function on new material.

MR WALKER:   Your Honours will have appreciated, I hope, to date that we do not say we are advancing anything new.  We are not trying to make it functional and if your Honours, at the end of this argument, are persuaded that the reference court in this case went beyond what Sir Frederick Jordan said concerning the relationship between an earlier appellate determination and the reference proceeding, then error was committed.

KIRBY J:   The problem is not going beyond it.  The problem is not going up to the standard that the statute requires.

MR WALKER:   I accept, your Honour.  The question is, have you heard and determined the whole case as on an appeal?

KIRBY J:   Yes.

MR WALKER:   I entirely accept that.  I am dealing now with what Justice Hayne has raised and which I accept is appropriately raised in terms of an apparent minute, a word that I obviously find awkward because I do not have authorities.

HAYNE J:   It is my word, I should say.

MR WALKER:   I understand that, your Honour.

HAYNE J:   It is not the Court of Appeal’s word.

MR WALKER:   But if this is, as it were, a self-denying ordinance imposed by the reference court, it was not one – and this can be gauged from the passages to which I have referred in pages 12 and following in our written submission – which deterred them from looking at all the material, hearing all the argument, considering whether the new material justified departure from the way in which those points, and I stress those points, had been dealt with by the earlier appellate Bench.

HAYNE J:   Can I try to make it a bit more concrete?  My memory of the reference court judgment is that they disposed of the 15 things known only to the killer by saying that, “Look, all this has been gone through before and we do not get into it”.

MR WALKER:   Bottom line, bottom line, the first part of that, yes, but not the second part.

HAYNE J:   Where do we find it in the judgment?

MR WALKER:   The best way to do that, your Honour, is to go - as I am trying to pick my way through the material which is particularly contained, as I say, in pages 12 to 17 of our written submission – for example, in relation to timing which overlaps ‑ ‑ ‑

GUMMOW J:   The passage where they deal with 15 points is the critical one.

MR WALKER:   Yes, your Honour.

GUMMOW J:   I just cannot lay my finger on it at the moment.

HAYNE J:   My memory may well be playing me tricks, Mr Walker.

MR WALKER:   I do not think so, your Honour.  The first reference in the reference court reasons is to be found in paragraph 33, that is introductory, a reference to:

the petitioner correctly detailed certain aspects of the crime –

and then that introduction culminates at page 2524, paragraph 58:

The principal grounds of appeal –

that means in the reference court –

relied upon by the petitioner were concerned with the confessional evidence.

GUMMOW J:   There were some written submissions which it is said the second court would not consider.  We have a document of nine pages.

HAYNE J:   Mr McCusker’s submissions in reply on page 8 say:

although there is no explicit refusal by the reference court to consider –

the 15 matters, in fact there was no consideration of them.

MR WALKER:   Yes.  We had anticipated that matter.  In our paragraph 23, in-chief it had been said there had been a refusal.  We said we cannot find any reference to a refusal.  In reply it emerges there is no explicit refusal.  We have then, in relation to the appendix two matters, detailed material in paragraph 29 of our submissions and then in 30 we make the point which we submit is entirely in accordance with Sir Frederick Jordan’s approach:  no new matter had come to light before the reference court that made a reconsideration of those submissions necessary or desirable.  That is what we have submitted and that is what Sir Frederick says.  So paragraphs 29 and 30 are where we have our references.  What I cannot say yet is that is a neat reference to the 15 that Justice Hayne has asked me about.

HAYNE J:   It may be more efficient if you come back to it, Mr Walker, but the underlying problem that at some point I would be grateful if you could address is this.  The Court of Appeal begins its judgment by saying, in effect, significance is to be attached to the fact that there has been an earlier appeal.

MR WALKER:   Yes.

HAYNE J:   What I want to know is what effect was given to that idea.

GUMMOW J:   Either by commission or omission.

MR WALKER:   Yes.  We accept that the omissions are at the heart of the appellant’s complaint here.

CALLINAN J:   There is a qualification expressed at the beginning of paragraph 81.  It does not state the qualification completely, but their Honours say:

Third, to the extent that it is necessary for us to assess the whole of our case for ourselves ‑ ‑ ‑

MR WALKER:    Yes.  We would submit respectfully that should be read as follows, the statutory command is to herein determine the whole case but the case law says that that does not mean that we have to leave out of account the way in which certain matters have already been disposed of – to use the language of the authorities.  It does not mean that they are questioning the statutory command.

Your Honours, the whole passage of reasons – and we have tried to capture this in the written submission of ours which was referred to, which, for example, starts at 2528, paragraphs 82 and following ‑ are reasons which are consideration by this Bench for themselves, and I think that goes all the way through that material.  There is a reference to this general problem right at the end in paragraph 383 but I do not think that falls into the category.  Your Honour, if I can track down what it is your Honour has in mind, I shall draw that to attention.

GUMMOW J:   This distinction that is drawn between new evidence and fresh evidence, beginning at paragraph 11, that in a way reflects their construction of “as if”?

MR WALKER:    Yes, it does.  It captures, on the one hand, the approach taken in Lawless as well as – it is all discussed in Lawless – and in particular the difference in tracing through consequence which is ‑ ‑ ‑

GUMMOW J:   New evidence and fresh evidence makes sense in the first proceeding.  That is the problem. 

MR WALKER:   It is a problem.

GUMMOW J:   But the problem is the translation of that to the second.

MR WALKER:   Your Honour, we entirely accept that.

GUMMOW J:   When the first process was not about evidence, it was about an appeal.

MR WALKER:   May we say that there does not seem to be any trace in the reasons below or in the argument of the appellant here of criticism of the procedure adopted in terms of applying appellate tests, that is, a true appeal, statutory appeal from a trial to, for example ‑ ‑ ‑

GUMMOW J:   But if it was an appeal from the trial, you would ignore the first appeal process.

MR WALKER:   Yes.

GUMMOW J:   But you do not, according to this judgment.

MR WALKER:   According to the authorities, one does not.

GUMMOW J:   No.

MR WALKER:   And I do stress, at least at the moment, I am not answering an argument that all those authorities are wrong because there has been no such submission.  We would certainly wish to be heard in relation to what, if any, different principle should apply, but at the moment our position is simply that Sir Frederick Jordan provides the touchstone to how to understand in practice the difficult words of a reference informing the exercise of the prerogative of mercy, but decided as on an appeal.  Can I come back to the question that Justice Gummow has just raised?  The question in particular of new evidence as opposed to fresh evidence is that which proves ‑ ‑ ‑

GUMMOW J:   Novelty compared to what?

MR WALKER:   The word “fresh” I use only because it is established jargon.

GUMMOW J:   I know that.

MR WALKER:   It is an extremely inapt expression.  I use it to describe that which is evidence not available actually or constructively, to use another unfortunate word used in the area, to the defence.  That all being understood in light of the liberality to be extended to the defence to which in particular this Court in Grey gave further emphasis by reference in particular to the inappropriateness of requiring defences to fossick in order to unearth something, in short, the chain of inquiry is not to be elaborate or long which you would hold against an accused in relation to fresh, but “fresh” simply means, therefore, something which is both relevant and also passes the negative test of whether it could have been discovered with reasonable diligence, was it available, et cetera, et cetera.

There are two other matters which flow in relation to fresh evidence.  The first is what is the consequential requirement before such evidence will give rise to an overturning of the verdict?  That is established and we wish to say nothing by way of departing from this principle.  It appears to be common ground.  It is established that it need only be a significant possibility. 

GUMMOW J:   Well, against that background we have to get to some facts sooner or later.

MR WALKER:   Yes, your Honour.  I am going to come to the facts, in particular, about the wrench in just a moment, but before I do I should complete what I wanted to say in relation to this consequential test because, with respect, for example, to the wrench to which I will be coming it matters as to whether this is a case about the application of the proviso or not.  My learned friends have said there is no call for the proviso.  This is the kind of case which by reason of the non-disclosure means the proviso does not come up at all. 

In our submission, that is not a correct reading of what the Court did in Grey v The Queen (2001) 75 ALJR 1708. Could I start, if I may, with that decision. In the reasons of the Chief Justice and Justices Gummow and Callinan ‑ ‑ ‑

KIRBY J:   This is also reported in 75 ALJR 1708. That is what you are giving us, is it?

MR WALKER:   That is the citation I gave your Honours.  It is also in the Australian ‑ ‑ ‑

GUMMOW J:   It has escaped the attentions of Mr Merralls.

MR WALKER:   Yes, thus far.

KIRBY J:   We must not criticise Mr Merralls.

MR WALKER:   Your Honours, the facts in this case, for us at least, bear a useful comparison with the facts of our case concerning non-disclosure and the forensic setting of it.  On the one hand, there is no doubt that the defence was aware in Grey’s Case of Mr Reynolds and his unsatisfactory relationship by inference with the police.  One picks that up, for example, in the “No Bill” application from which quotation is made at paragraph [13].  In paragraph [14] his credit, which was obviously very important, was clearly enough the subject of cross‑examination.  Then in paragraph [15] there is a reference to the prosecution’s failure being “inadvertent”, but in paragraph [16] there is a reference to “a disingenuous basis” upon which, quite regardless of the inadvertent non-disclosure, Mr Reynolds was presented as a witness.  That, it emerges from paragraphs [17] and [18], was because in the letter – I am sorry – as well in the very letter there was a compounding of the disingenuous basis for the presentation in court because in the very letter, had it been available to the defence, there was something which was described as worse underlining the presentation of him as a reliable witness, a statement which, to put it mildly, may have engendered misunderstanding about Mr Reynolds’ relations with the particular criminal enterprises in question.

That is why in paragraph [18] the reference to “a quite different complexion” for a case which the appellant in general terms was already well and truly on top of, namely the attack on his credit and his possible nefarious relations with the police, that is the way in which it was then determined.  However, when one then goes to paragraph [25], which is the application of the appellate statutory principle or rule to the particular case, in our submission, the reasoning in paragraph [25], reinforced by paragraph [27], shows that what your Honours were doing was going through the process of reasoning in relation to the proviso.  Paragraph [25] turns upon what is the content to be given to the substantial miscarriage test in the proviso.

KIRBY J:   This has been around for a long while, has it not, and Justice McHugh has referred to it many times, that the proviso is said to operate where there has been a trial but if what has happened is so bad and falls so far short of ordinary standards that it is not really a trial then you do not get to the proviso.

MR WALKER:   It does not apply, quite so.  Now, that is why I draw this to attention because it is clear from what is being decided in [25] and [27] that the proviso is being understood and applied.  So that Grey was a case which, with this characterisation of the prosecution conduct as inadvertent non‑disclosure but disingenuous presentation of a witness, added to which that which was inadvertently not disclosed itself contained something which was even worse, that did not rise to the position of such a departure from the requirements of fair trial as to amount not really to a trial at all, so as to render the discourse of the proviso entirely inappropriate.

To the contrary, the way in which those paragraphs are expressed shows that the proviso was that which was the final step to be taken in order for the appeal to be upheld.

KIRBY J:   I think Justice McHugh explored this in Green v The Queen?

MR WALKER:   Yes, your Honour, but your Honour will see that the language of paragraph [27] in that part of the reasons in Grey is the language of the judicial explication of the proviso:

unable to say that, had the letter been made available to the appellant so that he could cross‑examine on it and introduce it into evidence, he would inevitably have been convicted.

That is, of course, the language of the repeated explications in this Court of how one detects the substantial miscarriage, deprived of a fair chance and that in turn has its content from “but for the blemish” or “without blemish” was conviction inevitable and it is for those reasons, in our submission, that Grey does not supply the support that my learned friend attempted to gain from it this morning when he put all his eggs in the basket of “no need to consider the proviso”.

Grey does not stand for the proposition, as it were, regardless of the circumstances or regardless of the gravity, it does not stand for the proposition that any non‑disclosure in breach of prosecutorial duty or in breach of good practice leads inevitably, as a rule, to the proviso not being applied, and Grey cannot be read in that way at all.  Now, in our submission, there is nothing in the reasoning of your Honours Justices Kirby and Hayne in ‑ ‑ ‑

KIRBY J:   Justice Hayne says in [84] that it was not really necessary to explore the wider questions, but I in [78] appear to have been applying the proviso, because I say a miscarriage of justice occurred in his trial.

MR WALKER:   Yes:

It cannot be said –

et cetera, and your Honour uses the language of the proviso as well.  So I was about to say there is nothing in your Honour’s reasons ‑ ‑ ‑

KIRBY J:   And I talked of where the conviction was inevitable, which is the language of the cases on the proviso.

MR WALKER:   Quite.

KIRBY J:   I mean, there is a lot of talk about this theory that it falls so far short that it was not a trial, but finding a case that actually says that is very rare because the standards of our courts and of the judges who conduct trials is generally such that you cannot say that there is no trial, though theoretically that could happen.

MR WALKER:   Your Honours, yes, the classic passage, that upon which my learned friend really must be relying, but which for the reasons I have just put is quite inapposite, at least on authority and by comparison with Grey, that classic passage is found in Wilde’s Case 164 CLR 365, and if I could take your Honours briefly to that. The particular passage is found after the famous passage cited in Grey. It starts at 372 and goes over to 373.

The submission under consideration was one which arose where the error was fundamental – your Honours pick up that at about point 6 of the page – and then there was a submission:

In such a case, it was submitted, it does not matter what the strength of the prosecution case or weakness of the defence case was.

Citation from Mr Justice Gibbs in Quartermaine, which is endorsed by Justices Brennan, Dawson and Toohey:

is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all.

KIRBY J:   That is the sort of case that Justice Holmes in Corbishley called a case that would take a Dickens to describe in words or a Hogarth to portray on paper.  I think that is the type of reserve case that is being talked about.  For a normal case you apply the proviso.

MR WALKER:   Yes.

HAYNE J:   How apt is this discussion to the exercise in which we are presently engaged where there is a reference?  The proviso is engaged in the ordinary appeal in cases where there has been an irregularity at trial.  Here, the complaint is that the trial could have, and likely would have, been conducted differently had police provided information through the prosecution that they were bound to supply and irregularity does not intrude, save in that limited way.

MR WALKER:   My proposition in answer to that start with something very general, that perfection is not the test of a fair trial and, in particular, perfection is not the test of the flawed trial to which, on appeal, the proviso must be applied.  That appears to be common ground, that is ‑ ‑ ‑

HAYNE J:   Hypothesis in the ordinary appeal is that something has gone wrong at trial.

MR WALKER:   Yes, the hypothesis of the proviso is that there may have been irregularity ‑ ‑ ‑

HAYNE J:   No, there has been.

MR WALKER:   I am sorry.  The proposition upon which the proviso was enacted was that there would continue ‑ ‑ ‑

GUMMOW J:   Something may have gone wrong at the trial but something may have gone wrong at an earlier stage in the prosecution and that is what went wrong here. 

MR WALKER:   Yes, your Honour, but then that happened in Grey as well.  In our submission, non-disclosure ‑ ‑ ‑

GUMMOW J:   All I am putting to you is I do not regard myself as shackled one way or the other by what was said in Grey.

MR WALKER:   I hope, your Honour, I have not been putting shackles.  I am trying to put an argument on what the authority in this ‑ ‑ ‑

GUMMOW J:   This field is bedevilled by formulae that creep in.

MR WALKER:   Your Honour, it is too late, however, for counsel to put an argument simply on statutory language because it has been, for us, authoritatively construed and for the Crown conducting prosecutions ‑ ‑ ‑

GUMMOW J:   Miscarriages of justice, as the very circumstances that led to the 1907 reforms indicate, happen sometimes by steps taken outside and anterior to the immediate engagement of the judicial process.

MR WALKER:   There is no question about that.  We do not wish to say anything to detract from that, and indeed Grey ‑ ‑ ‑

GUMMOW J:   Particularly where the agents of the oppression are the agents of the State.

MR WALKER:   Quite.  Hence the whole notion of disclosure, hence the phrase which is not just words “duty of disclosure”, hence the relationship of that to fair trial values, none of which we wish to be heard against.  To the contrary.

GUMMOW J:   In the absence of an inquisitorial system of which the judges are part, it is a very important distinction because the judges are not implicated in this.

MR WALKER:   No, we are not talking about a misdirection.  We are not talking about a wrong admission or a wrong rejection of evidence.  We are talking about conduct of the trial which, on our concession, in the reference court, included non-disclosure of certain material which should have been disclosed.  That is the basis upon which I start this argument.  Now, we cannot, absent change of authority in this Court, we cannot depart from the ‑ ‑ ‑

GUMMOW J:   It is not just what should have been disclosed.  It is what was going on and the conduct of the police force of its business and this “doctoring”, to use a loaded term, of these statements.

MR WALKER:   Yes.

GUMMOW J:   That should not be happening.

MR WALKER:   The Parliament obviously think so, your Honour.

HAYNE J:   Not just the accused’s statements.

GUMMOW J:   It is the public interest in all of this.

MR WALKER:   We do not resist any of that, your Honour, at all.  If I could simply conclude from the passage at Wilde’s Case I was going to.  That is the passage that uses the language of something that is fundamental or radical, something which means the proviso is not applied.

Grey’s Case illustrates exactly what, with respect, Justice Gummow has been raising with me, namely, that the miscarriage to which the proviso is to be applied will include some shortcomings which stem from and are due to pre‑trial process and it is not only pre‑trial, it may even be at the investigative stage.  We accept that and the appellant of course argues that.  There does not seem to be any controversy.  Nonetheless, that is the kind of miscarriage which – and now I insert a qualification – depending on its gravity will nonetheless call for proviso test to be applied. 

The appellant comes before your Honours to argue that the proviso does not come to be applied at all.  In our submission, that would require one of two steps to be taken in this case.  First, to depart from the approach taken recently in Grey, for which there is no justification or argument advanced on the question of the proviso; second, to hold that the non‑disclosures in this case were of a kind and gravity which so far exceeded what happened in Grey’s Case as to put this case on the other side of the line, namely, as having exhibited radical or fundamental flaw as opposed to the curable flaw by application of the proviso which Grey’s Case exemplified.

Now, in Grey’s Case it failed the proviso test, but it was the kind of irregularity leading to miscarriage which required to pass the proviso test.

Now, the first thing we say about the non-disclosures in this case is that unlike in Lawless and even indeed unlike the detailed reasons in Grey, which was argued on the basis of a proper concession, this case does raise for consideration the status of statutorily promulgated guidelines in relation to disclosure but not in a way, we think, that poses any controversy.  The provisions to which attention has already been drawn in written submissions ‑ ‑ ‑

GUMMOW J:   The text of section 24 is something of a revelation.

MR WALKER:   I am sorry, your Honour, I did not catch ‑ ‑ ‑

GUMMOW J:   The text of section 24 of the Director of Public Prosecutions Act 1991:

(1)      The Director may –

(a)      issue a statement of guidelines intended to be followed . . . 

(3)      An act or omission of the Director or a person acting on the Director’s behalf shall not be called in question or held to be invalid on the grounds of a failure to comply –

What is the Parliament saying?

MR WALKER:   There are two choices.  It is saying ‑ ‑ ‑

GUMMOW J:   A duty of imperfect obligation of some sort?

MR WALKER:   Well, of nil obligation.

GUMMOW J:   Yes.

MR WALKER:   Or it is saying that the calling into question is nothing more than an immunity of recourse against an officer personally.

GUMMOW J:   I think that is how one would interpret it.

MR WALKER:   If this came to be argued – and maybe it is now being argued, though the appellant has not relied on this – we would certainly take the position that the proper approach to statutory interpretation with the thumb heavily on the scales in relation to fair trial values would certainly not have that statute work any perverse result concerning miscarriages of justice caused by non-disclosure.  Could I just unravel that a bit.

We know that at common law there are fair trial values which, regardless of statutorily promulgated disclosure obligations, will include shortcomings in the trial process by reason of conduct before the trial commenced in the nature of non-disclosure.  That is the first step.  Second, Parliament cannot be taken, except by tolerably plain words, to have intended to overturn that canon of conduct.  There is no suggestion on any hand that that has happened.  Third, we would say it would be a most odd result if some but not all of the aspects of a duty of disclosure were promulgated in guidelines with the effect that, on an expansive reading of what I will call the privative provisions that Justice Gummow has drawn to attention in section 24, if you failed to observe the ones that were promulgated nothing could be done, even on a criminal appeal, but if you had failed in those things which the parliamentary draftsman had not thought of there could be an appeal.

That would be extremely odd, bearing in mind that the most important ones are the ones most obviously that are going to be promulgated statutorily.  For those reasons, we do not of course submit that section 24 worked an effect by a side‑wind of removing a well-established ground of complaint about process as a ground of criminal appeal to which, in the usual case, the proviso would apply.

However, even with that lack of dispute between the parties, we still have the language of the promulgated guidelines bespeaking the range of judgments in individual cases by individuals where there may be no exactly right answer.  Can I draw to attention in particular that paragraph 58 of the guidelines refers to “full disclosure of” what is called “all relevant evidence” and then paragraph 59 talks about something which is “information which may be exculpatory”.  These are overlapping categories surely and both of them, in our submission, involve matters of judgment. 

HAYNE J:   Do you accept that the prosecution ordinarily regards itself as obliged to disclose to the defence every statement made by a witness whom the prosecutor intends to call?

MR WALKER:   Yes.

HAYNE J:   And they did not.

MR WALKER:   Yes.  I think that has been conceded in writing, your Honour.

HAYNE J:   Yes.  Where are we getting to?

MR WALKER:   I am, of course, up against the question as to whether or not ‑ ‑ ‑

GUMMOW J:   Up against the facts, I think.

MR WALKER:   Without any doubt, your Honour, but on that last point I am up against the question whether or not the proviso applies or not.  My friend argues the proviso does not apply.  Now, in our submission, bearing in mind what was disclosed, bearing in mind – and I will be coming to this in more detail later – the differences between what was not disclosed and what was disclosed in some of the statement examples and in particular bearing in mind the reconstruction of forensic consequences which the authorities show is what ought to be done, then the reference court did not err in taking the approach it did and finding that there was not such a miscarriage as to require the setting aside of the verdict.

Now, all of that involves questions of degree and it is for those reasons, in our submission, that it matters for there to be demonstration by the petitioner with whatever evidentiary shift during the course of argument may occur to the Crown, there still needs to be demonstration by the petitioner that if they had had what was not disclosed, à la Grey’s Case, it cannot be said that conviction was inevitable.

Now, that is important in this case by contrast with Grey’s Case on the following view of the facts.  In Grey’s Case it was necessary for the Crown to succeed in having the jury accept Mr Grey as a man whose inculpatory words of the accused could be accepted.

In this case it is the so-called confessions which are at the heart of the matter.  They are, of course, the words of the accused.  The setting of this appeal did not include in the reference court what I will call wholesale contest – there was detailed contest – wholesale contest to the fact that the accused had said certain things against his interest relevant to the events in question in interviews which had not been recorded. 

Now, I stress “had not been recorded”, because there was an important form of corroboration of some of that material, namely, the interview which was recorded.  Your Honours will have noted one of the peculiarities of that particular interview is that it invites from him a sequence of admissions by a repeated form of question, admissions as to what he had said to his interlocutors beforehand at an earlier occasion.  I will come back to that in a moment.

The jury had before it some challenges to what had been said, and in particular concerning the wrench.  I am going to come to a passage which, in our submission, tells heavily against the accused at the reference, because facts emerged at the reference for the first time, that is, that had not emerged in front of the jury, which rather cast a different light on this notion of the wrench and how that had come into the so-called confessional interviews.  The jury did however have before it the whole, if I can call it this, theorising theory. 

Now, it may be argued against us and correctly, with respect, that in that regard that bears a close resemblance to what happened in Grey.  As I observed earlier, in Grey the attack on the credibility of Reynolds, including by a sinister possibility of relations with the police, were front and centre.  So in this case the question of these are not true confessions, they are the theorising of an odd person, that also was front and centre.

What that involved on any view of this case, on any view of this case, was the jury being told – and, as it happens, by the defence and also by the Crown and also by implication in the summing‑up – that the case could not simply be determined as one which looked at the so-called confessions and treated it as an all or nothing exercise, “Believe everything in this confession in order to convict, disbelieve anything in the confession and you must not convict”.  Yet the approach being taken in the argument post‑reference, that is, at the reference and in this Court by the appellant now, is one which in principle says, if we find discrepancies between the alleged confessional statements and what by inference or other demonstration had in fact happened, then the case is one which calls for an acquittal, that being the case they put here.

There is a huge fallacy in that approach because at trial everybody proceeded on the basis that the confessions were fit to go to the jury as material upon which they would make a factual decision, depending upon their impression of the accused, the reliability of his statements in a trial in which it was established beyond any doubt, including by prosecution stance, that there were aspects of the confessions which could not be right, and there were also aspects of the confessions that could not be corroborated.

Now, the wrench, as it happens, plays a role in a number of those, but the important point which certainly distinguishes this from a relatively much simpler case, such as in Grey, one big witness letter of comfort withheld, the important point was that the trial in this case ‑ and it is the miscarriage of justice in the trial that is the object of the reference – the trial in this case was one which already had before it a large number of discrepancies and inconsistencies between the confessions as among themselves and between the confession and what could be proved, and also the omission by or the inability of the Crown to make good other aspects of the confession.

Now, the question as to the wrench falls into that category.  The wrench, on the Crown case, was a description of weapon introduced by the accused.  At trial he denied that.  When my learned friend addressed this morning he addressed on the basis – I am trying to quote it correctly – that at all times – my learned friend’s phrase – the wrench was said to be just part of Mr Mallard’s theorising.

That, with respect, is not correct, because as was shown at the reference hearing, at the trial, far from him saying that he had introduced this as part of this theorising; he denied that he had raised it.  It came into the picture because of the police, and then in the reference he backs off that in a passage to which I am going to go in just a moment.  But to continue the difference between this and a straightforward case like Grey in relation to non‑disclosed material, as soon as one has a conviction produced after a trial before a jury which had before it major discrepancies between confession and events, urged by defence counsel as a reason for them to find a reasonable doubt, then anything in the same vein would need to be of such a kind that it was not simply adding weight, that being an expression that one can find in, for example, if I may take your Honours to it, Lawless in Justice Stephen’s reasons.

May I take your Honours to that in 142 CLR 659. The particular passage is at 673 to 674. Your Honours appreciate, of course, that Lawless will no doubt attract a reading today in light of the fact that there was a difference, shall I say, in relation to duties of disclosure.  At the foot of 673 there is reference to an eyewitness’ statement.  I draw to attention that this was not an eyewitness the Crown intended to call but when Justice Hayne asked the question earlier about Crown practice we did not understand that to be exhaustive of those things which need to be disclosed.  There is also, of course, the case of witnesses such as eyewitnesses that you do not intend to call and they cannot be hidden either.  He refers to an eyewitness not intended to be called and then makes statements about the nature of that, I will call it, shortcoming, namely, it was not a:

conscious act designed to prejudice the defence, still less that it constituted an impropriety or any misconduct such as to give rise to any miscarriage of justice.

He then refers to what could have been done or was in fact done in any event concerning the cross-examination of the alibi witness and then uses the expression at 674:

Thus Mrs Telford’s evidence would not have disclosed any new fact or circumstance but would only have added weight to matter already in evidence and upon which the defence relied.  Mrs Telford’s evidence, while in part of assistance to the defence –

et cetera.

HAYNE J:   Mrs Telford’s evidence is described at 660 of the report immediately above the reference to Mr Kelly.

MR WALKER:   Yes.  It is actually then set out in full on pages 662 and 663, your Honour. 

HAYNE J:   The only eyewitness was Rayma Joyce.

MR WALKER:   She is an eyewitness because she saw passengers coming in and out.  That is what she saw.  I was going to use the barbarism “earwitness” earlier, your Honour, but it is what she heard and also what she saw, as one sees from that statement.  There is a barking dog as well as passengers opening doors, interior lights coming on, et cetera.  It is the kind of statement which, with respect, nowadays would be to the forefront of disclosed material and, as I say, the decision needs to be read in light of what your Honours may perceive to be changes in that regard. 

But the point of my taking your Honours to that passage is that making full allowance for those differences of era and practice it was regarded as a relevant part of reasoning by Mr Justice Stephen in rejecting an argument in favour of the appellant or the applicant that all this would do would be to add some weight to material in generally the same area.  That, in our submission, is precisely the case in relation to all, I think I can say, to different degrees, all of the undisclosed material in this case.  The question, therefore, does become one, and we accept this, of degree.  If your Honours are persuaded ‑ ‑ ‑

KIRBY J:   So it becomes one of totality as well.

MR WALKER:   Totality, not in the sense that seven bad points become one middling attack, but in the totality approach to what a reasonable jury may have regarded as giving rise to a reasonable doubt.  Yes, your Honour.  But not totality in the sense that it deflects attention from the need to look at points on their merits, but that one does not ‑ ‑ ‑

KIRBY J:   Yes, but you might think that giving evidence about the experiment on the pig’s head, if that was not disclosed and if it was on its own, you would say, “Well, perhaps they took the view that that was not really analogous and that is a view that is open” but it is when you combine that with the sketch of the young girl who saw the person in the shop, the test on the appellant’s clothing and the statements of Ms Englehardt, the change in the statements, a combination, it does not seem to be the normal way in which a prosecution case is constructed and presented, especially the rewriting of statements.  That is slightly disturbing.

MR WALKER:   Yes.

KIRBY J:   It is as if anything that was embarrassing or difficult was being minimised or cut out so that it would not upset this theory that was being presented for the jury’s consideration.

MR WALKER:   Well, it is certainly not the case that anything that left matters unexplained or presented anomalies, it is certainly not the case that that was left out.   The wrench alone is an excellent example of evidence adduced in the Crown case by reason of the confession which was not supported by other aspects of ‑ ‑ ‑

KIRBY J:   They were stuck with the recorded confessions.

MR WALKER:   Not a matter of being stuck with it, your Honour, but that is what was said by the accused.  Certainly, there is no pattern that can be discerned of material which is, as it were, awkward or does not fit a killing with a wrench.  There is no evidence of that having been suppressed.

Your Honour asked my learned friend were there references to the police explanations of those statement alterations in particular.  I will not go to them now, but if I could give your Honours the references.  In relation to the saltwater clothing test in Mr Shervill’s evidence in the reference, it is volume 4 of the appeal book, pages 1609 to 1610.  In relation to the Englehardt statement, the hat - the cap, or the hat on the hook, Mr Shervill’s evidence at the reference, volume 4 of the appeal book pages 1615 to 1616.  That bears some relation of course to what the witness, albeit years later, said herself at the reference.  My learned friend referred to this this morning, that is volume 3 of the appeal book, pages 1269 to 1271 and 1283 to 1285.  In relation to the alteration of the little girl’s statement and sketch, Mr Shervill, volume 4 of the appeal book, 1584 and 1607 to 1608, and then the witness herself in relation to that material, volume 4 of the appeal book, 1715 to 1716.

I will come back in to deal with them in a little bit more detail later, but may I say about some of the matters that Justice Kirby has just raised, the forensic report about water requires more detailed dealing with, but as a matter of how the matter arose, this was his evidence, that is the appellant’s evidence, about what he had done.  The evidence does not include a description in detail of what he had done when washing in the river.  Thus, for example, there was not, it would appear, investigation of details from him about what items of clothing had been wet with river water on his supposed confession.  In particular, there is no evidence to show one way or the other whether the shoes had been, as it were, walked into the river.  There is no evidence as to whether he had walked total immersion style into the river so as to soak every item he was wearing.

KIRBY J:   Had he done that one would have expected, according to the evidence, that there would be some evidence of salt on the clothing.

MR WALKER:   Quite.

KIRBY J:   Which there was not.  This was not a man with a large wardrobe.

MR WALKER:   No, and most of it had been washed.  What we cannot tell from the record is whether to take the silk shirt, which apparently he did not wish to wash, or give it special treatment or whatever, it had not been washed, on his evidence.

GUMMOW J:   The address for the prosecution was that – at page 908:

He told the police that he went down to the river . . . and washed his clothing and that explains the lack of blood . . . 

in cooler temperatures the blood doesn’t dry as quick and it’s easier to wash off –

and there was some temperature chart.

MR WALKER:   But, your Honour, what he did not tell the police – this is not a criticism of him may I say - what is not, in other words, in play in the investigation was any knowledge of how much of his clothing is being described in the evidence to which the prosecutor is referring and the passage drawn to attention by Justice Gummow, he was claiming to have washed.  Now, it is not appropriate to speculate, but equally it is not appropriate to infer that every stitch, including his shoes, had been immersed in salt water and that the failure of the tests to reveal that would have been damning of the reliability of his confession.  That is not possible from the record to say that.

CALLINAN J:   But it does not have to be damning.  It can fall much short of being damning and it would still be cogent.

MR WALKER:   Quite so.  Thank you, your Honour.  I accept that.  There is no material that shows that there could have been relevance, say, in a jacket not having salt water on it, particularly as, as your Honours know from the references you have been given in the written submissions and from the discussion in the reference court’s reasons, the blood splatter on the assailant was not something about which there was any confidence one way or the other as to how much would have hit the assailant.

CALLINAN J:   Mr Walker, it is very like discovery in a way, is it not?

MR WALKER:    Yes, your Honour.

CALLINAN J:   To give you a line of inquiry may be sufficient or it may lead to something else, you know all the civil tests.  This is very similar.

MR WALKER:    It is not quite Peruvian Guano but it is more like Peruvian Guano than modern civil discovery rules are which, of course, have very decidedly turned away from it.  Certainly, lines of inquiry which may conduce to exculpation is one of the hallmarks of material to be disclosed.

CALLINAN J:   Particularly when the test is reasonable doubt.

MR WALKER:    I accept that, your Honour.  I will come back to the matter that Justice Callinan has raised, particularly in relation to the other persons of temporary interest, material to which my learned friend has referred.  Staying with my answer to Justice Kirby, our answer in relation to the water will be that it is not possible to say that there was any use to be derived from negative saltwater returns from garments which had not been laundered.  If they had been laundered, then the negative saltwater return is irrelevant.

KIRBY J:   But does it not pitch up the question as to the prosecutor’s duty that they have to explain a way in a case where a human being is struck on the head 12 to 15 times with a sharpish instrument in such a way that one would expect there would be a great extrusion of blood and spatter, and then dragged into the back of the shop where one would again expect there to be an effusion, at least on the shoes, that are difficult to get out.  Many a criminal has been convicted on blood and yet when this evidence of the washing theory is contrary to the prosecution it is kept from the jury, as was the experiment with the pig’s head, which was also contrary to the prosecution’s theory, as was the sketch of the person seen by the young girl.  You really have to go through all these one by one and then you have to look at the totality, the unpleasant business of facts.

MR WALKER:    Yes, there is no question.  I accept all of that, your Honour, yes.  We do not dispute what your Honour describes in relation to method.  I was trying to answer your Honour’s question about these matters.  Unless and until consequences do not have to be traced through – and that we think is the way in which the appellant puts their case, that they do not need to observe the proviso – unless and until that be correct then there does need to be exploration as to what this would have added.

KIRBY J:   You keep coming back to that because you obviously love it.  You think that is a real good point.

MR WALKER:   No, your Honour, that seems to be the law.

KIRBY J:   Let us assume just for the moment you have passed by that Rubicon and you are in the realm of the proviso.

MR WALKER:   I accept I am in the realm of the proviso, your Honour.

KIRBY J:   Let us assume that just for the purpose of argument.  Then you have to look at all these horrible facts that do not help you.

MR WALKER:   No.  The most important fact is what the appellant told the police.

KIRBY J:   Well, that would be very, very important with a normal human being, but this is a person with bipolar disorder, or unipolar disorder, and we know that such people are given to fantasy and to invention and to grand eloquent claims.

MR WALKER:   But we are not in this case dealing with a complaint on its own, standing independently, that there was insufficient attention given at trial to possible psychiatric difficulties, psychological explanations.  The appellant here has been, with respect, careful to make clear that the forensic choice taken, with obviously adequate knowledge of the psychiatric aspects, was one which was flawed in a way against the Crown because of their inadequate knowledge of the other material, which in turn is said to be more material than they already had in relation to discrepancies between the confessions and the facts or the confessions and what could be proved.

KIRBY J:   More material than they wanted in respect of the pig’s head and the sketch and the other materials that they did not give to the jury.

MR WALKER:   Your Honour, I am saying the way they put the question of the psychiatric or psychological evidence is, as we understand it, they accept that if that were their point standing alone then there was a forensic choice taken and there was a fair trial.  Who knows how the jury would have reacted perhaps to questions being put before them, somebody fit to plead, capable of answering for criminal acts and there being shown to be, for example – I am theorising here myself – impulsive.  That would have been a forensic choice.

KIRBY J:   The reference court had to look at the whole case, and the condition of this man’s mentality was therefore before them.

MR WALKER:   No, it was not, with respect.  Not as on appeal.  It was only before them if it had not been made much of before the jury because of – and I do not say sole cause, a cause would do – because of a course of shortcoming on the part of the Crown, the prosecution, the investigators, which had deprived them of material of a certain kind which, according to the argument before your Honours, had they had, there may have been, would have been – it is a bit difficult to tell – a different calculus applied to whether or not to call the material to show just how psychologically disturbed their client was.

KIRBY J:   Yes, but it had these elements of the pig’s head experiment and the other – the deletion from the statements and so on.  Then at least the forensic choice would be starkly presented to counsel at the trial.  The question would then be presented, “Given that we can show that these were not shoes that had been washed with salt water, the clothes were not washed with salt water, the sketch did not fit, so why would this person make these statements?”, then they would have to run the risk, or at least consider the risk of presenting the fact that this was a person with a schizophrenic disorder.

GUMMOW J:   He was said in the prosecution closing address to have offered 12 alibis.

MR WALKER:   Yes.

GUMMOW J:   Well, he is the sort of person who would offer 12 alibis we now know.

KIRBY J:   The unsettling thing is that the one about the taxi is a pretty good alibi.  It is hard to reconcile the timeframe with objective statements as to seeing him.

GUMMOW J:   The prosecutor said that he cannot satisfactorily explain his whereabouts.  At the end of the day that is the real question, the missing two hours, page 902.

KIRBY J:   Two hours is not what we are talking about.  We are talking about something like 20 minutes.

GUMMOW J:   This was said to be between 5 and 7.

MR WALKER:   Yes, your Honour.

KIRBY J:   The death occurred at 5.20.  The husband came back ‑ ‑ ‑

MR WALKER:   At 5.12 there is a telephone conversation.

KIRBY J:   That is right, 5.12 the deceased was still alive and the husband rang at a certain time – I think it was 5.30, was it not, and there was no answer?  Then he went around soon after that.  So it is some time between when the husband rang and there was no answer and 5.12.  It is only a quarter of an hour or so.

MR WALKER:   But, your Honour, all of that was before the jury.  The “as on appeal” requirement in the reference process certainly starts with the proposition this has been before the jury. 

GUMMOW J:   What is the “this”?

MR WALKER:   The problems of making all the times match.

GUMMOW J:   Well, it was suggested he had used the time to nip down to the river and wash his clothes.

KIRBY J:   Moreover, carrying a wrench which would presumably have blood and brain matter through a public street of Perth and threw it off the bridge.

MR WALKER:   But that was before the jury too.

KIRBY J:   Well, the search of the river did not find the wrench.

MR WALKER:   And that was before the jury.

KIRBY J:   Yes.  Well, we are looking at the whole case, or at least that is what the Court of Criminal Appeal in the reserve ‑ ‑ ‑

GUMMOW J:   Well, the washing theory does not seem to hold up very well with what we now know, and the fact that it would not hold up very well was concealed.  So when you say “it” was before the jury, you are talking about a creature with one and a quarter legs rather than two legs.

MR WALKER:   I was not talking about the last matter your Honour referred to, not at all.

GUMMOW J:   That was then used as the suggestion of what he was doing in the missing period, you see.  It all gets tangled up in itself.

MR WALKER:    There is no doubt about it that conduct after the killing narrated by the accused is to be taken into account in considering what was before the jury in light of what the jury decided in relation to the undoubtedly less than neat chronological narrative or sequence which was before them.  Now, the fact that a chronological sequence or narrative is less than neat has never been, in our submission, of itself sufficient to constitute any miscarriage of justice or doubt at all, not least, of course, as your Honours have seen, there are approximations of time and one cannot start with an assumption that anyone’s particular recollections of time is correct.  There are some that are more or less reliable in this case than others, as has been observed in the written submissions.

KIRBY J:   Yes, but Mr Walker, I have often, over 25 years in criminal appeals, pointed to my associates and said you mark that, you mark the way the Crown did that because that was done out of its sense of a duty of fairness, and here we have a catalogue of things that were not put before the jury which do not seem to accord with the standard of the fair presentation of an honest presentation of the case.  I have to say that in this case there were things, deleted things, suppressed things not put forward and it leaves one with a real sense of disquiet – it leaves me with a real sense of disquiet and does not seem to conform in its totality with the normal way in which the Crown prosecutes in this country.

MR WALKER:    Your Honour, in relation to particular conduct, say, by investigating police, that was something for which there was full opportunity of exploration and challenge, and there were challenges but, with respect, the appellant has put the best of what can be obtained from those challenges in the reference court to this Court, and they do not include sinister or corrupt goings on.

KIRBY J:   But he was of constant attention to the police.  I mean, even in these days he was arrested on at least two occasions, quite separately from this one, so he was the sort of person who was, as it were, “round up the usual suspects” and along came Mr Mallard.

MR WALKER:    That would need, surely, to be the subject of some material to substantiate it in the reference court, and there is not.  Now, the fact that he was in trouble with them more than for just this was, of course, well known to him and to those who advised and appeared for him at trial, including before trial, and if there was to be, for example, an attack or criticism on investigating and interviewing police about what I would call loading up or bias in relation to how interviews were conducted, then that has to be the subject of challenge.  There has been specific challenge, but the best that can be produced has been drawn to your attention and there is not material upon which it would be proper to find that the investigating police set out in a way which can only be described as massively corrupt.

The reason for that - no doubt it is a forensic decision at trial - is very plain.  The videoed interview is a form of corroboration of a number of things.  First of all, the fact that there were previous interviews, that is not contested.  Second, that their subject matter included discourse by the appellant about what had happened.  I have to use that general expression because your Honours have seen the kind of third person language that my learned friend has referred to and which is the subject of both the appellate court and the reference court, again references your Honours have seen.  May I, for example, take your Honours in volume 1 to page 354.  This is in evidence which was given at trial by Mr Caporn, a man whose evidence was obviously of real importance.  Towards the beginning ‑ ‑ ‑

HEYDON J:   This is record made by a colleague which he is reading out.

MR WALKER:   Yes, that is right.  One sees the reference to a document, for example, on page 336 at line 17 after an interruption.  This is a very lengthy document.  We are up to page 76 by then.  Does your Honour pick that up?

HEYDON J:   Yes.

MR WALKER:   These are the joys of the completely oral process, your Honour, long documents are read out.

HEYDON J:   Classical common law trial.

MR WALKER:   Just picking up at the foot of page 354, about line 24 you have:

“What do you know?”  At this point the accused broke down and started crying.

I said, “What do you know, Andrew?”  He said, “I know there is a lot of blanks – all blanks.  He was very scared.  He didn’t want to get caught.  He was evil.”

Then a comment by the policeman about the mien of the interviewee.

Who are you talking about?”  He said, “This person that did this thing . . . 

“It was evil.  He was scared.  He just kept on hitting her.  He couldn’t stop.”

Just to stop there, the jury having heard that, would be entitled to see this rather academic expression that my learned friends have been using, “theorising” in a rather different light.

This is not the raising of scenarios by a Walter Mitty amateur detective helping the police.  This is a very, very different kind of introduction of material.  Syntactically, it speaks as, it sounds as somebody who was an observer, but not only an observer, a confidante.  Of course the jury was entitled, on the basis of the first person, as to which one also comes, to say that this was the not unknown phenomenon of people, odd or not, talking about themselves in the third person, particularly if there is a form of dissociation going on.

KIRBY J:   That is one phenomenon.  The other phenomenon is people with this form of disturbance that he suffered from talking in the third person of some other evil person whom he imagines, and into his head he thinks he can get.

MR WALKER:   But neither the reference court nor the trial court had a fitness to plead or other psychological or psychiatric issue before them of that kind.  There has been no suggestion of course – this mercifully has nothing to do with non-disclosure on our part.  That is entirely in ‑ ‑ ‑

KIRBY J:   We do know, looking at the whole case, that he was a person who was in and out of a mental hospital.

MR WALKER:   Yes, your Honour.  But all of that – I stress, the psychiatric material in this case, which is the subject of the appeal to this Court, is there because it is said if the non-disclosed material had but been made available, it would have made a difference to that which we already had, on the incomplete basis of which we made forensic decisions including, as it happens, not to make an issue of psychiatric defects.  That is the way the argument – and we accept, just to make it quite clear, that the reasoning of that argument is perfectly sound, with respect.

It raises the question of a kind in a much more straightforward case that Justice Stephen dealt with by saying this is material that just adds more weight.  Now, of course, all advocates want weight on their side, but there is weight and weight.  There is not much more weight and there is a whole lot more weight.  There is something that really does not qualitatively change what was already in play and something which adds a new aspect or dimension, and that is why, in our submission, applying the proviso, the material, even non‑disclosed, is not material which would have overcome what this jury, hearing this confessional material, regarded not as theorising but as truly confessional.

When you see the material in Mr Caporn’s version, 354, 355, 356, there is more reference to ‑ he is asked the name of the evil person at 355, line 10:

“I don’t know his name.”

I said, “What happened?”  He said, “Just looking to steal something; just something to get by -

words which the jury, of course, would be entitled to think described his position:

“How did he get into the shop?”  He said, “Back door; up the stairs to the back door.”

Now, that is something upon which we do place emphasis.  That is material which is (a) not in the media, (b) not otherwise explained, (c) consistent and indicative of somebody at the scene.

GUMMOW J:   The jury would have known this man had been at Graylands.

MR WALKER:   There is a reference ‑ ‑ ‑

GUMMOW J:   At 355, line 7.

MR WALKER:   Yes, and that aptly named ‑ ‑ ‑

GUMMOW J:   To a local jury that would give a clear message, would it not?

MR WALKER:   Yes, I think that is accepted, but, as trial counsel would obviously be entitled to calculate, there is a limit to how much you want to go into that material.  In any event, this is not a case about the inappropriateness of a judgment not to say more about psychiatric position than they did, except in the sense that that is one of the ways in which they say the outcome may have been different, putting it very neutrally, had the other material been available to provide a different background for the forensic decisions.  Now, at the top of page 356 we actually have ‑ ‑ ‑

HAYNE J:   Sorry to go back to the grail on this point.  The trial judge in a redirection dealt with the matter at 962, line 20 and following.

MR WALKER:   Yes, your Honour, in a way which was certainly not the subject of protest on behalf of the accused:

You heard no evidence about the state of mental health of the accused person . . . 

That is that the accused person is simply presumed to be of sound mind unless evidence establishes to the contrary, and there is no such evidence in this case.  It would not be a matter for you to usefully speculate about . . . you may rest assured that it can have no bearing upon case or your decision of the case, otherwise you would have heard about it.

And there is no objection to that.

KIRBY J:   How did the police in the first instance inculpate the appellant?  He had been arrested on the morning, then on the next day.

MR WALKER:   There was information, the source of which is not in the record – I am reminded, he was held – another of these extraordinary aspects of the accused ‑ ‑ ‑

KIRBY J:   He was in the watch house, was he not, the next day?

MR WALKER:   You may remember the evidence about him having a police badge and crest, tiepin I think it was and crest, a badge, which he claimed to one of his acquaintances he had been given as some talisman against future police harassment.  The police were interested in quite a different way in that conduct.

KIRBY J:   He was a man with a very active imagination.

MR WALKER:   He is also a man who, imaginative or not, clearly committed offences.  Being imaginative does not disqualify one from committing offences.

KIRBY J:   The question becomes, in a sense, did the police, with this highly imaginary human being before them, as it were, lead him on in a way?  That is one possibility, but more worrying from our point of view is then when occasional factual elements that cast doubt on their theory came to light such as the scientific evidence about the absence of salt in the clothing and the sketch of the young girl who saw the offender or somebody who was in the shop, the experiment with the pig’s head, and so on, and the difficulty of fitting the wrench with the theory because it is too blunt, that when they had all that they kept the relevant material from the jury because it cut across their theory of the case. 

MR WALKER:   But, your Honour, there simply is not a pattern of challenge and response of that form at all.  The gaps and anomalies ‑ ‑ ‑

KIRBY J:   I have to tell you it is what appears to me.  I am not saying this is corrupt.  People with a theory of a case hate anything that gets in the way.  I tell you as a judge you go out, you have a theory of a case and then you see suddenly some fact that makes your whole theory a shambles.  It is very distressing.

MR WALKER:   Your Honour, on page 356, as it happens, there are a number of matters there that we call in aid as strongly indicative to the jury and to the reference court properly instructed, self-instructed, that there was no miscarriage, that is there would not have been a difference.  I am about to draw to attention, to finish off one point, that the language that he is reported to have used at the top of page 356 actually shows the mixing of the first and third persons in a way that undoubtedly would have not struck the jury as theorising about anything.  “Was he by himself?”  A fair question, bearing in mind the language as if he had been observing.  “Yes, I can’t stop him when he’s like that.”

What that gives rise to in relation to the mental state of the accused, or the person being interviewed, springs to mind immediately on reading that, but it also must have sprung to the minds of everybody pre-trial on the defence side.  This is not a case, either on the first appeal or on this reference, where on its own as an independent point the mental state of the man either at the time of the offence, or perhaps equally or even more relevantly at the time of the interviews, is something which is relied upon, or could be relied upon.

There was full access to all the material, and I stress this is not a fitness to plead case.  My point is that that kind of material being before the jury, one thing is for sure the jury could not have thought he was, as it were, an ordinary person.  They must have been struck by these narrations of his interviews with police as revealing a very odd person indeed.

HAYNE J:   The course of events at 360 over to 363 where the police press him about these matters, he then asks for a toilet break, comes back, starts hitting himself on the head and then when restrained by Caporn attacks Caporn.

MR WALKER:    Yes.  This was all before the jury, so that ‑ ‑ ‑

CALLINAN J:   Mr Walker, the trouble about it all – I mean, if everything you say is right, what troubles me is that on any view material was suppressed which he could have exploited forensically and it seems to me that once that is identified, and it is not merely trivial material, then he must succeed.  It is as clear as that.  Let me take as an example, the Superintendent Shervill summary and the experiments with the wrench referred to in paragraph 87.  That alone, I would have thought, really entitles him to a new trial.

HAYNE J:   Does not that chain of thinking throw you back to a clear understanding of what is encompassed by the concession you make about obligation to disclose?

MR WALKER:   Yes, it does.

HAYNE J:   Why is there the obligation to disclose?  The obligation is there for a purpose.  What is the purpose?

MR WALKER:   They are fair trial purposes.

HAYNE J:   If then that which ought to have been disclosed for a fair trial is not disclosed for a fair trial, where does your argument then go?

MR WALKER:   The proviso and then if it does not pass the proviso, as in Grey, verdict overturned.

HAYNE J:   But by hypothesis the fair trial that the accused was denied was a trial at which extra material at least could have been deployed in his favour at trial.  Now, how do you assess proviso then?

MR WALKER:   You have to assess proviso and it was assessed in Grey.  It may be a straightforward assessment.  I was about to make it clear, I think by way of another concession, in answer to Justice Callinan.  If this Court comes to the view that what Justice Hayne has just compendiously called the extra material, if it comes to the view that the forensic deployment of that would satisfy what we know from Wilde’s Case, what we know from Grey’s Case is the final hurdle to success for the appellant, then it is exactly as Justice Callinan has said, there should be a new trial.

GUMMOW J:   There are two matters before we adjourn.  The first one is Justice Kirby reminds me that he was on the panel in the unsuccessful special leave application in this case.

KIRBY J:   Might I say that when I looked at the appeal books I looked for the disposition order of this Court and they are not in the appeal books so that I was not immediately alerted.  I saw in the special leave that Justice McHugh announced that he had sat in them but was not embarrassed.  I had no recollection whatever of this case back in 1997.

MR WALKER:   And I apologise for not having drawn that to your Honour’s attention but there is no difficulty so far as the Crown is concerned at all.

KIRBY J:   I do not feel personally embarrassed but I think it is probably for Mr McCusker really, but ‑ ‑ ‑

MR McCUSKER:   We have no concern, your Honour.  We do have, incidentally, a copy of the transcript ‑ ‑ ‑

GUMMOW J:   Yes, that might be helpful if that could be handed up after we adjourn.

MR McCUSKER:   Yes, certainly.

GUMMOW J:   The other thing is, how far are you advanced, Mr Walker.

MR WALKER:   Your Honours, I should be able to complete what I want to say in supplementation of the factual material in about an hour and a half.

GUMMOW J:   Very well.  Thank you.  We will adjourn until 10.15 tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 7 SEPTEMBER 2005