Mallard v The Queen

[2004] HCATrans 421

[2004] HCATrans 421

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P101 of 2003

B e t w e e n -

ANDREW MARK MALLARD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 27 OCTOBER 2004, AT 2.46 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR M.J. McCUSKER, QC and MR J.J. EDELMAN, for the applicant.  (instructed by Clayton Utz)

MR B. FIANNACA:   May it please the Court, I appear for the respondent.   (instructed by Director of Public Prosecutions (Western Australia))

McHUGH J:   Mr Jackson and Mr Fiannaca, I was part of the panel that sat on the applicant’s special leave application in 1997 but it does not trouble me sitting on the case, but I just draw it to your attention.

MR JACKSON:   I have seen what your Honour said on that occasion but, of course, the matter has moved on.

McHUGH J:   Yes.

MR JACKSON:   Your Honours will see there are four points raised as the special leave questions in volume 2 at page 316.  The first three are related and may I deal first with those.

McHUGH J:   Yes, Mr Jackson.

MR JACKSON:   Your Honour, I was simply referring to page 316 of volume 2 where there are the four special leave questions set out.  The first three are related and may I move immediately to deal with those.  Your Honours, they come back to the view and approach taken by the Court of Criminal Appeal as to its function on a reference to the Attorney‑General under section 140(1)(a) of the Sentencing Act.

Now, your Honours, under that provision, if I could go there for just a moment and I will indicate if I may the point which I am seeking to make, under section 140(1)(a) of the Sentencing Act the Court of Criminal Appeal is dealing with a case which has been made by petition for the prerogative of mercy.  The part of the Act in which that is found deals with various ways in which the prerogative may be invoked and exercised.  The petition is referred to the Court of Appeal where the case – and in the context that must mean the case presented by the petition – is to be heard and determined as if it were an appeal against conviction, and could I refer also, your Honours, to section 140(2) which requires the court to deal with the matter.

The contention, your Honours, that we advance is that the Court of Criminal Appeal did not do what the provision required it to do and that is reconsider or consider the whole case.  Rather, what it did was to take the view that it would not reconsider matters dealt with in the earlier appeal and to deal only with the additional matters insofar as they were regarded as having merit by themselves.

CALLINAN J:   It seems to me to be clear that is what they set out to do.

MR JACKSON:   Yes.

CALLINAN J:   At paragraph 8.

MR JACKSON:   I was going to say that, your Honour.  That is where one sees that, paragraphs 7 and 8.  Now, the point I am seeking to make, your Honours, is that what they did not do and what, in our submission, the statute required was to look at the evidence before them including the evidence which had been the subject of earlier consideration and, your Honour Justice Callinan referred to paragraphs 7, 8 and 9, I think, altogether.

HAYNE J:   But to look at it all with a view – I understand the point, but with what view?  You have, have you not, identified grounds of complaint?

MR JACKSON:   Yes.

HAYNE J:   Now, where does the problem emerge because they do not look at the whole?

MR JACKSON:   The problem emerges in this way, your Honour, and may I say this, that it is clear, and one can see this referred to in paragraph 33 at page 207 of volume 2, that the principal evidence against the applicant had been the confession.  Now, the applicant, it was also clear, was a man who suffered from mental problems.  You will see that, your Honours, at page 244, 169 to 171.  His contention was that the statements in the “confessions” were statements made when he believed he was theorising with the police about how the murder might have been committed.  Your Honours, what was relied on by the Crown was that it was said that there was information on a list of 15 identified matters – and we have listed those, your Honours, in the annexure to our summary of argument and it was said that those could only have been known to the assailant.

Now, your Honours, the contention that was made in effect on the other side was that the matters that were set out there were information he had gained from a number of sources – the police themselves, from an earlier visit to the store when he had attempted to sell some jewellery, from some media reports and from a photograph that the police had shown to him - all was information, your Honours, that was wrong.

I am sorry to take a moment to answer your Honour’s question, but I am getting there.  Your Honours, and could I just say this – and also what one had was in addition and in some cases covering the same area – there was a large number of respects in which the confession, it was submitted from our side, was inconsistent with known facts, some of which had emerged at the trial, some of which were facts which emerged after the trial.

Now, your Honours, I do not want to burden the Court but could I just give the Court two documents, one a summary of the other, that were given at the Court of Criminal Appeal that set out the various matters.  You will see there are two documents.  One is an outline of the table of comparisons and the second, the fuller version, sets out in the left column the element of the confession that was made and what were the known facts for which we contended.

McHUGH J:   Mr Jackson, to what extent does your case depend upon the notion that there has been a failure on the part of the Crown to disclose material evidence to you and as a result a miscarriage of justice has occurred in the sense that the evidence could have been utilised in various ways.  Is that at the heart of your case or is it just part of the ‑ ‑ ‑

MR JACKSON:   It is part, but a large part, your Honour, I would have to say.  What I mean by that is that if one were to look, for example, at the shorter list that I have just given your Honours, all the matters on the first page, item 1, are matters that were not the subject of matters that – I am sorry, I am putting it badly – had not been disclosed and should have been, in our submission.  There are a significant number of other matters referred to, but could I endeavour, your Honours, to say that if one took the most important matters, they were essentially, I should think, these.  The first was that there had not been disclosed the testing which had been carried out to demonstrate that the wrench which had been sketched by the applicant was not likely to have been the weapon and that there was nothing to indicate that a wrench of the relevant kind ‑ ‑ ‑

HAYNE J:   Well, the case went to the jury, did it not, on the basis that the murder weapon was not identified?  It went to the jury on the basis it might have been a weapon like the one the accused drew.

MR JACKSON:   Well, your Honour, if I may say so, with respect, what your Honour will see is that if one goes to page 319, paragraph 14 of our written submissions, you will see what was said.  Your Honours will see a reference to what was said at the top of page 320 – striking her on the head at least 12 times with the wrench he had taken from the back shed, wrench as the murder weapon used before the jury some 80 times, and the trial judge’s direction then referred to.

HAYNE J:   Yes, went to the jury a wrench of the type drawn.

MR JACKSON:   Yes, but your Honour, the evidence that was not disclosed, and your Honours will see it referred to in paragraph 15, was that a wrench of that kind ‑ ‑ ‑

HAYNE J:   No, the wrench at 45 of the supplementary book, is it?

MR JACKSON:   Yes, your Honour, that is the one ‑ ‑ ‑

HAYNE J:   It seems to me to not to be a wrench of the kind done, but we are perhaps into detail which may obscure us from the point.

MR JACKSON:   I am sorry, your Honour, I was going to say the wrench was one.  It is simply one point.  There was in addition not disclosed the evidence of Ms Engelhardt, a written statement given shortly after the time, in which she had made a statement to the effect two things:  first, that the cap, which was an important matter, was on the hook and he was not wearing it and that when he came in at the time which would have been after the murder if he had committed it, then he was not wearing any headgear.  Your Honours will see that referred to at pages 38 and 39 of the supplementary book.

HAYNE J:   Can I ask you though, for a moment, to step back from the detail.  I understand the importance you attach to the detail, but can I understand the case in broader detail.

MR JACKSON:   Yes.

HAYNE J:   You say there is a deal of information that should have been but was not disclosed.  Now, what is the legal test that then should have been engaged?  Is it questions of fresh evidence, or is it questions of the consequences of failure of prosecutorial duty, or ‑ ‑ ‑

MR JACKSON:   Well, your Honours, could I put it this way.  If it be assumed for the moment that this is evidence which would not be described as fresh evidence, but one simply had a situation that there was before the Court of Criminal Appeal evidence which fell into a number of categories:  first, there was the evidence that had been given at the trial; secondly, there was evidence of matters which had not been disclosed but which should have been disclosed.  If one added those two things together, if I could pause at that point, the test apposite in relation to the matters that should have been disclosed is the test, and there may be some debate about precisely what it is, in relation to setting aside a decision, a conviction, on the basis of material not having been made available when it should have been.

Your Honour, could I just say in relation to that, in determining how that test should be applied the way to go about it is to look to see two things.  First of all, how might that evidence have been used or how might that material have been used, and not necessarily by actually calling evidence but being used as the basis for cross-examination or obtaining witnesses and then seeing what the consequences might be in relation to the whole of the evidence when that was done.

HAYNE J:   Well, could I say, and this is intended in aid of your application not in diminution of it, I wonder whether that is the test.  There seems to be a stream of authority in England, it has been considered a couple of times in Victoria, that seems to precede along this path - obligation of prosecutor to disclose his obligation to disclose what is necessary for a fair trial, failure of disclosure means failure of fair trial, failure of fair trial, ergo conclusion.  Without considering, in effect, would there have been a particular level of effect according to the way it was deployed?

MR JACKSON:   Well, your Honour, one does see references, of course, in the cases to the fact that the material not disclosed has a number of possible types of use on the one hand and then there is necessarily involved having to see what might have followed from making that use.  So, your Honour, sometimes the right answer would be to set aside the conviction.  Sometimes the right answer would not be not to do so.  Sometimes the right answer would be to set aside the conviction and a new trial.

HAYNE J:   According to whether the evidence necessarily would have engendered doubt or not.

MR JACKSON:   Yes, your Honour, but to put it that way, if I may say so, with respect, does encapsulate the notion perhaps a little too narrowly because it is not a question of whether the evidence itself would have engendered doubt in some cases – well, in some cases it is - but in other cases the question might be put slightly differently and that is whether the manner in which the evidence might have been properly used would bring about a trial that might have been conducted differently.

HAYNE J:   But the distinction between set aside and enter verdict of acquittal, and set aside and order retrial may turn, may it not, on whether the evidence would necessarily have engendered doubt?

MR JACKSON:   Quite, your Honour, yes.  Your Honour, I accept that, I am sorry.

HAYNE J:   Yes, that is the only point I was seeking to put.

McHUGH J:   Now, Mr Jackson, one thing that we have to consider in a matter like this is if leave were granted what effect would it have on the Court’s business?  How long would it take to deal with a case like this?

MR JACKSON:   Your Honour, my estimate of the case is that it is one which would be likely to take more than a day but not two days.

McHUGH J:   I see.  We are not talking about weeks or anything like that.

MR JACKSON:   No, your Honour, it is a case that can be very much trimmed down.

McHUGH J:   Yes.

MR JACKSON:   Your Honour, the first point that we really wish to make is that what one sees from the way in which the Court of Criminal Appeal went about it is that they identified various matters, said by itself this does not add much ‑ ‑ ‑

McHUGH J:   Well, we have read your submissions and we have read the judgments but it seems to me your weakest points are the polygraph points, so if you want to spend some of your time on that, Mr Jackson.

MR JACKSON:   Your Honour, could I say this, that the evidence - I accept immediately for the polygraph evidence to get anywhere the Court would be altering the current laws.  That would be the point of the application.  The evidence which was relied on was the evidence which your Honours will see recorded in volume 2 at page 268 in paragraph 239.  It is essentially, what your Honours will see, the last two lines on that page:

He concluded that the petitioner was truthful in his responses that he had never told the police –

et cetera.  Could I pause to say, your Honours, that in some of the decisions and the dicta that favour the use of the polygraph testing, one sees a description of the result not as being that the witness is saying that the person was telling the truth, but rather as saying that he represented or presented responses that would lead to the view that the person was telling the truth.  But the evidence was put in a truthful fashion here.  It went a little further than adopted that way.

The second thing about it, your Honours, is that the evidence was treated as inadmissible for a number of reasons.  The court was prepared to accept that the evidence might be held to be admissible if there was a

change in the law, but at page 297, paragraphs 351 to 352, they expressed the view that the evidence of Professors Iacono and Furedy and Doctor Richardson, which was against us, was most persuasive, against us in the sense of attacking the scientific basis for it.  Your Honours, the view that ‑ ‑ ‑

McHUGH J:   This makes it very difficult, does it not?

MR JACKSON:   I recognise that.  The point I was going to say, however, was that when they came to their view ultimately, which is at page 298, paragraphs 355 through to 357, the test that was applied was, in our submission, too high.  In the circumstances, there was a significant body of opinion and much evidence in favour of the existence of a rational basis for the testing.  Your Honours, if I could go to page 302, your Honours will see the conclusion at paragraphs 369 and 370.  We would note that the decision in Lee v Martinez has been overruled by the Supreme Court of New Mexico.

McHUGH J:   Yes, we were sent a note about that.

MR JACKSON:   Yes, your Honour, and the most relevant paragraphs to that are 1947 and 48.  Your Honour, the issue, in our submission, is one of importance.  Those are our submissions.

McHUGH J:   Thank you, Mr Jackson.  Yes, Mr Fiannaca.

MR FIANNACA:   May it please the Court.  May I start by saying that this was an appeal that turned on its facts.  It will be apparent, your Honours, from the summaries of argument that there remains substantial dispute about the content of the evidence both at trial and on appeal and the import of that evidence.  That is what makes this, in our respectful submission, a difficult case to use as a vehicle in which to deal with the various legal points that have been raised.

McHUGH J:   The Court of Criminal Appeal does seem to have taken a very narrow view of its jurisdiction.

MR FIANNACA:   In our respectful submission, it did not.  It was consistent with what this Court has said in Mickelberg.  In our submission, when one has regard to what was said in Mickelberg by Justices Toohey and Gaudron at page 312 of the relevant Commonwealth Law Report that the Court is entitled to exclude matters from consideration that it would regard as “frivolous or vexatious”, it is clear that their Honours were intending by that to include – and I go to the second‑last paragraph on page 312, those cases where a point:

had already been determined on the merits after full opportunity for argument.

So it is not a question of attaching labels, whether it is vexatious or whether it is frivolous.  It is a question of whether a matter can properly be regarded as one that has been aired, has been decided, is not necessary to be decided again.  In that sense, the Court in this particular case saw no point in revisiting all those matters that had been raised at the trial, that had been raised in the first ‑ ‑ ‑

McHUGH J:   It really does seem to cut down the jurisdiction.  I will just tell you frankly myself, I sat on a special leave in this matter in 1997 and it seemed to me that going by the accused’s confession that it was a very strong case against him, particularly because of the 15 matters that the Crown said only he had knowledge of.  When you look at the totality of the material that has been put before us, the whole case wears a very different complexion.  Why should you not look at the whole case?

MR FIANNACA:   No, well, your Honour, the court did look at the whole case.  The court looked at the evidence that was given, looked at the way in which the new evidence or fresh evidence that was being adduced on the appeal affected the way in which the Crown’s case was presented at trial, affected the way in which the video interview would be regarded by a jury.  What it was not prepared to do was to go back to questions about timing, for instance, whether it would be possible for the applicant to have been there at the time that he was said to have been there.

McHUGH J:   The problem is that you start here with a lot of lead in your saddlebags.  You are under a big handicap.  You have failed to disclose material and in the interests of justice why should one not look at the whole lot of the material rather than be bound by technical rules, if there are any technical rules applicable?

MR FIANNACA:   But, your Honour, what I am trying to impress on the Court is that the Court of Criminal Appeal, when one looks at the way in which it approached its task, did look at all of the material, did look at all of the ‑ ‑ ‑

CALLINAN J:   Well, it must have done something quite different from what it set out to do then, what it set out to do in paragraphs 7 and 8, because it made it clear there that it was not going to do that.  If it did consider the whole of the case, it must have done it accidentally because it certainly was not its intention.  In any event, the passages referred to in Mickelberg allow the exclusion only of vexatious or frivolous matters and you could not possibly suggest that the other matters here are frivolous or vexatious.

MR FIANNACA:   No, your Honour, not the matters that are being raised as new matters.

CALLINAN J:   But the whole context changes, you cannot just consider those new matters in a vacuum.  You have to consider them in the context of all of the facts, not just the way in which the case was presented by the Crown.

MR FIANNACA:   No, quite, I appreciate that, your Honour, but what the Court of Criminal Appeal has said is, insofar as this new or fresh evidence impacts upon the evidence that was given at the trial, of course we need to have regard to arguments about that evidence at the trial.  But, insofar as we are now being asked to revisit every point that was raised by the defence that is not in any way affected by the new or fresh evidence, then we are not prepared to do that.  So, we are not ‑ ‑ ‑

HAYNE J:   This brings us back to a fundamental question about the nature of the process that was being engaged.  It is not.  For the whole case to be heard and determined as if it were an appeal by the offender against conviction, does that engage the ordinary common form grounds of appeal that you find in the Code and other common form criminal appeal statutes?

MR FIANNACA:   That is certainly the way in which the court has approached the matter ‑ ‑ ‑

HAYNE J:   Therefore, what is the question?  Is the question whether there has been some wrong decision of a point of law, et cetera, or on any other ground a miscarriage?

MR FIANNACA:   Yes.

HAYNE J:   Notably, on any other ground a miscarriage.  Now, there are at least two possible candidates in that field, are there not:  one, the consequences of non‑disclosure, whether that of itself reveals miscarriage; second, there is that whole survey of the case ordinarily in the past encompassed by unsafe unsatisfactory notions - M v The Queen and the like.  Now, the petition, presumably, and the amendment to the grounds of the petition plays a role in defining the area for debate.

MR FIANNACA:   Quite, your Honour.

HAYNE J:   Now, what relevantly is the area for debate here?  Is there in effect an unsafe unsatisfactory issue?

MR FIANNACA:   No, that is not the way in which the appeal was approached in the court below.

HAYNE J:   It might not be the way the appeal was approached, but is there in the petition?

MR FIANNACA:   No, the way in which the – well, it may have been framed – as I recall, it was framed in terms of there had been a miscarriage of justice but it was because of the purported ‑ ‑ ‑

HAYNE J:   Non‑disclosure.

MR FIANNACA:   Well, can I say this, your Honours.  It is about that as well.  The appeal was conducted as was the petition framed initially on the basis that this was a fresh evidence case, that is that the non‑disclosure goes to the issue of whether evidence should be regarded as fresh evidence.

HAYNE J:   Well, you see, that seems to meld two perhaps distinct, perhaps not distinct, streams of thought.  If it is fresh evidence, we are in Ratten v The Queen territory.  If it is not fresh evidence but a question of prosecutorial obligation, if the obligation is to disclose that which is necessary to a fair trial, the failure to disclose seems to carry consequences that follow from the definition of the duty.

MR FIANNACA:   Yes, well, your Honour is obviously referring to what was discussed in Grey’s case and the Court here ‑ ‑ ‑

HAYNE J:   But going back, there is a deal more that the very quickest of looks has revealed.  You wish to go back through R v Brown [1998] AC, particularly at 379.  Justice Ormiston gathered them together in Garofalo [1999] 2 VR 625 at 636 and thereabouts and the like.

MR FIANNACA:   Yes, but, your Honour, what I am saying is that in Grey’s Case the approach to be taken is quite clearly spelt out and there is a need to evaluate the impact that the evidence, as my learned friend has quite properly pointed out, there is a need to evaluate the impact of the evidence on the process at trial.  How could the evidence be used ‑ ‑ ‑

HAYNE J:   Why, if the duty is to disclose that which is necessary to a fair trial, the failure to disclose if it is acknowledged to be in breach of that duty seems to be an acknowledgement of the failure to disclose that which was necessary to a fair trial.

MR FIANNACA:   Well, the question of whether a fair trial has been denied must depend on whether the evidence could have been used in a way that may have affected the verdict.  Otherwise, any matter that is not disclosed, however irrelevant to the issues ‑ ‑ ‑

HAYNE J:   No, but that is where the concession below becomes critical.  It was conceded, as I understood it, correct me if I am wrong, by the prosecution that some of this evidence should have been disclosed, should in the sense of prosecutorial duty was to disclose it, is that right?

MR FIANNACA:   Yes, but can I say, your Honour, that the question of prosecutorial duty – when one puts it in those terms, one is delving into the issue of whether any of this material was in the possession of the prosecution in the sense of the prosecutors rather than the police ‑ ‑ ‑

HAYNE J:   It was in the hands of the police, I understand that.  But again, the concession becomes all important.

MR FIANNACA:   I appreciate that, your Honour, but what I am saying is it is not a breach of prosecutorial duty because that does have, it seems to us, with respect, a much more significant consequence if there is a deliberate non‑disclosure of material.  We are then in the realms of misconduct, and that is not the way in which this matter was conducted.  It was not proceeded on on that basis.

HAYNE J:   I understand that.

MR FIANNACA:   So what we are here concerned with is whether, as in Grey’s Case, there was a way in which the evidence could have been used, which having been denied that use, the applicant can say has resulted in an unfair trial.  The Court of Criminal Appeal was very cognisant of the test to apply, applied that test, considered the question of whether there was a lost change of acquittal on the basis that the evidence could have been used at trial in a way which could have affected the verdict.  It came to the view, for instance, in relation to Engelhardt’s evidence, after very careful analysis of that evidence and after having watched Ms Engelhardt give her evidence and what she had to say about the contents of her statement and whether in fact she ever saw a cap on the hook on the back of the door and that sort of thing, came to the view that the evidence simply could not have assisted the applicant at the trial had it been available to him.

The same applies in respect of every other point where there was a non‑disclosure of material that has subsequently come to light into the possession of the applicant.  It had to necessarily examine each of these items of evidence, whether taking the Ratten approach or even going back before that in Craig’s Case, whether taking that approach or whether taking the approach in Grey, it is not simply a matter of saying non‑disclosure automatically results in an unfair trial, automatically results in a miscarriage of justice.

The point we make about these matters, your Honours, is that the court was cognisant of the appropriate test, applied those tests to the facts before it.  All that this Court is being asked to do is to examine the same evidence and to come to different factual findings from those made by the Court of Criminal Appeal.  It seems to us that that is not a proper question for special leave.  There is no uncertainty about the law even in relation to the question of the ambit of the CCA’s jurisdiction on a reference.  There is no uncertainty about the law.  It is clear from Mickelberg’s Case applying principles which have been applied in lower courts such as Matthews & Ford where a matter has been determined on the merits previously after full opportunity for argument the court is not obliged to revisit every point previously raised.

Your Honours, in relation to the first two proposed grounds it is our submission that they do not give rise to special leave questions because the law is settled in relation to them.  This is not an appropriate vehicle.  My learned friend suggests that one or two days might be sufficient for the hearing of the appeal.  I quite frankly do not see how that could be possible when it will be necessary if all of the grounds that are being proposed ‑ ‑ ‑

HAYNE J:   Well, let us look at the grounds at 313 to 314 of the application book.

MR FIANNACA:   Yes, so you need to ‑ ‑ ‑

HAYNE J:   Ground 1 is failure to disclose, ground 2 is the point about ambit of jurisdiction.  Confining attention for the moment to those two grounds, why would more than two days be necessary?

MR FIANNACA:   Because we are talking about an assessment of the evidence, a review, the Court is being asked effectively in ground 1 under the particulars ‑ ‑ ‑

CALLINAN J:   For my part, if a miscarriage of justice has occurred and it takes two days or it take five days is absolutely irrelevant, for my own part.

MR FIANNACA:   May it please, your Honour, I do not suggest it should be relevant but the question was raised.  I am simply saying that it is not a matter ‑ ‑ ‑

CALLINAN J:   Well, it sounded as if it was said in terrorem.

MR FIANNACA:   No, your Honours, all I am saying is that it is not going to be simply a matter of looking at legal principles.  It is going to be a matter of reviewing the evidence.  I get back to my original point that this was a case about the facts.

HAYNE J:   That is, do you say that in answer to ground 1, the contention that would be made would require, in effect, retrial on the papers of the issue tried both in the Full Court and at trial?

MR FIANNACA:   In our submission, it would require certainly a review of all of the evidence that was given relevant to the particulars that are claimed to be exculpatory in ground 1 and which, in our respectful submission, do not in fact have that complexion and there are a number of those points.  The answer, with respect, your Honour, is yes, it must involve a review of those matters because the court was required to examine those matters.  Given that the appeal was dealt with as a fresh – the grounds were that this was fresh evidence.  The issue of disclosure was only ever relevant to the question of whether particular evidence constituted fresh evidence then the tests which should be applied are those which relate to fresh evidence, except perhaps in relation to one or two points where the court took the view, upon our concession, that either way whether you looked at it as fresh evidence or a matter of non‑disclosure there had not been a lost chance of acquittal.

In relation to ground 3 – and the actual proposed grounds are actually at pages 313 to 315.  Ground 3 which concerns psychiatric evidence, in our respectful submission, appears to have no prospect whatsoever of succeeding because it is effectively suggesting that there should be some third category, that is apart from fresh evidence or new evidence, that the court should recognise when this was evidence in any event that the court took the view was not fresh evidence.  It was always available to the applicant at the trial but no attempt was made to lead any psychiatric evidence on his behalf at the trial.

Your Honours, can I say that in relation to the materials that have been handed up today, I have only had a short time to examine them.  My learned friend said that they were materials provided to the Court, but this again highlights the difficulty of the factual dispute in this matter because we do not accept the complexion that is placed upon them by the applicant.  The suggestion, for instance, that certain things were part of a confession is not correct when they were part of an account he gave which the prosecution said was a false account.

The outline on the second page, 5(b) and 5(c), matters for instance which were simply not part of a confession and 1(d) on page one:

A wrench or spanner as depicted in the sketch (if it existed) would not be capable of inflicting Mrs Lawrence’s wounds -

That is not a fact, it is a matter of dispute.  So what I am saying is, as far as those matters are concerned, the Court should not simply accept that they represent objective factual matters that contradicted what was said in the confession.

In the short time that I have, your Honours, can I say that in respect of the polygraph issue, the court properly applied the tests in relation to expert opinion.  No error has been demonstrated in that regard whatsoever.  It was a matter then of assessing in relation to this particular evidence, first of all, whether it was evidence concerning the matter about which a jury would not have the ability to make a judgment itself and that clearly cannot be right and secondly, whether it was part of a reliable body of knowledge and experience that would justify its acceptance on the issue that it sought to relate to, that is the truthfulness of the applicant in relation to the fundamental question of whether he was guilty.

Can I just conclude by saying that the decision of the Supreme Court of New Mexico in Lee v Martinez in the end does not affect the conclusion of the Court of Criminal Appeal here because it made its decision on the evidence before it.  May it please the Court.

McHUGH J:   Thank you, Mr Fiannaca.  Yes, Mr Jackson, what do you say about ground 3?

MR JACKSON:   Your Honour, as to ground 3, could I just say this.  If your Honours were to go to page 324 and to paragraph 35 of our submissions, what you will see is that we sought to have the Court take into account psychiatric evidence of the nature there referred to.  The way in which it was dealt with by the Court of Criminal Appeal appears at page 244, paragraph 170, and what essentially was done by the court there was to say you had this information or information to the same effect at the time of trial.  You only used it then on then on the voir dire but did not use it in relation to admissibility of the confession – I use the term generically – you did not call it substantively at the trial before the jury.

Your Honours, the question before the Court of Criminal Appeal was not whether we should or should not have used that evidence at the time of the trial.  The question was, in the light of that evidence before them, what should be result overall have been?  I am using that to describe the safety of the verdict.  It should have been taken into account in relation to the other evidence that was adduced before the Court of Criminal Appeal.

HAYNE J:   So neither fresh nor new.

MR JACKSON:   Yes, your Honour.  Well, it was new in one sense, your Honour, one of the witnesses gave evidence ‑ ‑ ‑

HAYNE J:   So it is in the same category as the polygraph in that sense, is it not?  It is evidence that is a result of an examination occurring after trial.

MR JACKSON:   Yes, your Honour.  The point I am seeking to make about it though is that it was material before the court.  There is no reason, in our submission, why the ability to deal with the case that was presented – and the case is the case that starts with the petition, of course – why the case that was presented to it, why in that case they would not take into account material showing his state.

HAYNE J:   And in this respect, what is the case that was before them?  A case what?  I was wrongly convicted?

MR JACKSON:   Well, of course, your Honour.  It is – I am sorry, I do not mean that ‑ ‑ ‑

HAYNE J:   I know, but is that not the difficulty?

MR JACKSON:   Your Honour, the case will always be the case unless there is a narrower question as is possible under those provisions.  It will always be the question, but then one comes to deal with the circumstances that are set out ultimately in the form of initiating document, as it were, the notice of appeal, the amended notice of appeal.  You will see at page 182 at paragraph 5, where there are statements about there being a claim for miscarriage of justice and unsatisfactory and your Honours will see “fresh/new evidence” referred to.

Your Honours, could I also say in relation to determining our learned friend’s submission, the matter was determined on the merits.  Now, no doubt a Court of Criminal Appeal dealing with a matter of this kind would not or would not necessarily change its view on a pure question of law, and it may be that in relation to a discrete question of fact, looking at it again, it says no and adopts the same view and we agree with the reasons that were given before.  But its obligation is, at the same time, to look at the whole case.

HAYNE J:   Now, were you granted leave, were the appeal to succeed, what relief would you seek?

MR JACKSON:   We would seek first, your Honour, the quashing of the conviction.  Secondly, we would recognise the possibility the matter might

have to go back to the Court of Criminal Appeal to be disposed of in accordance with the approach said to be the proper approach by this Court.

CALLINAN J:   There could be a retrial, then.

MR JACKSON:   There could be, your Honour, it is a possibility.  Your Honours, those are our submissions.

McHUGH J:   Thank you, Mr Jackson.

Yes, there will be a grant of special leave in this matter confined to grounds 1, 2 and 3.

Mr Jackson, after appeal books have been filed it may be necessary for this matter to be referred to a chamber judge for some directions concerning how argument or evidence should be adduced in some way  It may be necessary as well, even before that, for there to be a directions hearing concerning the contents of the appeal book.

MR JACKSON:   Yes, your Honour.

HAYNE J:   How voluminous is the record, Mr Jackson?  We are not talking small, I assume.

MR JACKSON:   Well, your Honour, one can leave out, of course, a great deal of material concerning ground 4, so that would account for a great deal of material.  We would endeavour to reduce it as much as possible, of course.  A thought that has occurred to me really is that it might be an appropriate case where a draft appellant’s submissions were before the Judge dealing with the issue without particular reference to exact passages but leaving space so that the Judge would have the ability to decide what the nature of the appellant’s case was at least.

HAYNE J:   Is there any advantage, there may be none, in using the record from the court below?  Were appeal books prepared for that?

MR JACKSON:   Yes.

HAYNE J:   These are ideas that can perhaps be dealt with by a single Justice rather than now by the Full Court.

MR JACKSON:   Yes, one needs to look really at the first appeal where there would have been appeal books but the extent of those may have been a little limited.  One needs to look at what took place on the Court of Criminal Appeal on the second occasion because there was much evidence that was given for the first time there.

CALLINAN J:   Well, these tables might be able to be adapted so that we could get the respondent’s response to each of the specific items.  It is just a possibility.  It might avoid the necessity to look directly at pages and pages of new ‑ ‑ ‑

MR JACKSON:   I understand that, your Honour, yes.  Could I just say that we will do our best, but may I perhaps offer that as a suggestion that draft appellant’s submissions be provided to the Court at a time that the Registrar might be able to – may take some time.

McHUGH J:   Yes, the counsel are experienced so when the matter is in a suitable state, you can contact the Registrar about the matter.

The Court will now adjourn to reconstitute.

AT 3.35 PM THE MATTER WAS CONCLUDED