Mallard v The Queen - [2003] WASCA 296

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MALLARD -v- THE QUEEN [2003] WASCA 296

CORAM: PARKER J
WHEELER J
ROBERTS-SMITH J

HEARD: 10 - 14 JUNE, 11 - 15, 18 - 21, 25, 28, 29 AUGUST, 17 - 21 NOVEMBER 2003

DELIVERED : 3 DECEMBER 2003

FILE NO/S: CCA 135 of 2002

BETWEEN: ANDREW MARK MALLARD
Petitioner
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Earlier appeal dismissed - Appeal by reference from Attorney-General of petition - Approach to be taken by Court in determining appeal by reference of petition - Principles

Evidence - New or fresh evidence - Distinction - Principles applicable

Evidence - Non-disclosure by the Crown - Effect of - Whether resulting in miscarriage of justice

Evidence - Confession by petitioner to police - Statements made by him in the third person - At trial claimed to be his "theories" about how the crime was committed by the killer - Whether genuine "confession" or mere "theorising"

Evidence - Polygraph or "lie detector" examination - Whether results admissible

Legislation:

Sentencing Act 1995 (WA), s 140(1)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Petitioner: Mr M J McCusker QC, Dr J J Edelman & Ms C L Sargent
Respondent: Mr B Fiannaca & Mr P D Yovich

Solicitors:

Petitioner: Clayton Utz
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bonython v R (1984) 38 SASR 45
Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Clark v Ryan (1960) 103 CLR 486
Craig v The King (1933) 49 CLR 429
Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579
Easterday v The Queen [2003] WASCA 69
Frye v USA (1923) 293 F1013
Gallagher v The Queen (1986) 160 CLR 392
Grey v The Queen [2001] HCA 85
Hocking v Bell (1945) 71 CLR 430
Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828
In Re Van Beelen (1974) 9 SASR 163
Kluck v Borland 413 NW 2d 90 (1984)
Lawless v The Queen (1979) 142 CLR 659
Lee & Ors v Loudes Martinez (New Mexico) No CS2003‑00026 (Supreme Court No 27,915)
Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970749; 30 October 1997
Murray (1981) 7 A Crim R 48
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997
Osland v The Queen (1998) 197 CLR 316
People v Kelly Cal 3d 24 (1976
People v Young 391 NW 2d 270 (1986)
Phillion (1974) 53 DLR (3d) 319
R v Apostilides (1984) 154 CLR 563
R v Beland and Phillips [1987] 2 SCR 398
R v Brown (Winston) [1994] 1 WLR 1599
R v Gallagher [2001] NSWSC 462
R v Gilmore [1977] 2 NSWLR 935
R v Hadland [1969] VR 725
R v Jarrett (1994) 73 A Crim R 160
R v Karger (2001) 83 SASR 1
R v McHardie and Danielson [1983] 2 NSWLR 733
R v Pantoja (1996) 88 A Crim R 554
R v Runjanjic and Kontinnen (1991) 53 A Crim R 362
Ratten v The Queen (1974) 131 CLR 510
Re Knowles [1984] VR 751
Re Matthews & Ford [1973] VR 199
State of Idaho v Perry Idaho Supreme Court 2003 Opinion No109, 5 November 2003
State Rail Authority of New South Wales v Earthline Construction Pty Ltd (in liq) (1999) 160 ALR 588
United States v Crumbie 895 F Supp 1354, 1363 (D.Ariz. 1995)
United States v Downing 753 F 2d 1224 (3rd Circ 1985)
United States v Scheffer 523 US 303 (1998)
Wong (1977) 1 WWR 1(BC)

Case(s) also cited:

Button v The Queen (2002) 25 WAR 382
Committee of Concerned Social Scientists, Amicus Brief to the United States Supreme Court in United States v Scheffer, August 1, 1997
Hunter and Sara v R (1999) 105 A Crim R 223
Kumho Tire Co Ltd v Carmichael (1999) 119 S Ct 1167
Lowery v The Queen [1974] AC 85
McKinney v The Queen (1991) 171 CLR 468
R v Brown, unreported; High Court of New Zealand; 19 September 1997
United States v Galbreth 908 F Supp 877 (D NM 1995)
United States v Padilla 908 F Supp 923 (SD Fla 1995)

JUDGMENT OF THE COURT:

History of the reference

On 23 May 1994 Pamela Suzanne Lawrence was killed at Mosman Park. On 2 November 1995 the petitioner's trial commenced, and he was convicted on 15 November 1995 of wilfully murdering Mrs Lawrence.
By notice of appeal dated 20 November 1995, apparently prepared by the petitioner himself, he appealed against conviction on the ground that the learned trial Judge erred in admitting into evidence certain oral conversations at the CIB police office on 10 and 17 June 1994. At the outset of the hearing of that appeal, application was made by his counsel for leave to amend the grounds by substituting five other grounds together with a ground 6, which referred to "new and fresh evidence" and asserted that particulars would be provided at or before the hearing of the appeal. No such particulars were ever provided, and on 11 September 1996 the Court of Criminal Appeal dismissed the appeal. There was no appeal against sentence.
On 8 July 2002 a petition for clemency was forwarded on behalf of the appellant pursuant to s 140 of the Sentencing Act 1995 (WA). The Hon Attorney General decided to refer the case to the Court of Criminal Appeal pursuant to s 140(1)(a) of the Sentencing Act, which relevantly provides:
" (1) a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, ... may be referred by the Attorney General to the Court of Criminal Appeal either –
(a)for the whole case to be heard and determined as if it were an appeal by the offender against the conviction ... ."
The notice of appeal has been the subject of a number of amendments both prior to the hearing of this reference and at the hearing. The final version of that document is an amended notice of appeal dated 18 August 2003, pursuant to leave granted and orders made on 15 August 2003 during the course of the hearing of the appeal. A perusal of the reference and of the various applications for leave to amend the grounds of appeal, and a comparison of the grounds of appeal with the submissions actually made by the appellant's counsel in closing, reveals that the appeal has been something of a moveable feast. We will return to that subject briefly later. For the moment, it is sufficient to note that we have chosen to deal with the issues arising largely in the order in which they were dealt with in counsel for Mr Mallard's closing address.
It should also be noted that there was some controversy between counsel for Mr Mallard and counsel for the respondent, as to whether Mr Mallard was truly an appellant, or was rather to be referred to as an "applicant". We consider, consistently with authority, as a person whose petition has been referred to this Court by the Hon Attorney General pursuant to s 140(1)(a) of the Sentencing Act, he is properly to be described as "the petitioner".

Relevant legal principles

Leaving aside for the moment, issues surrounding polygraph evidence, there are four broad areas of legal principle which need to be considered, however briefly. There was not a significant difference, as to most of them, between the submissions put on behalf of the petitioner and on behalf of the respondent. However, it is desirable to set out what appear to be principles of significance for the determination of this appeal.

(i) Reference of the "whole case"

It was accepted on both sides that on reference the Court had a duty to consider the "whole case". The Court is required to consider the case in its entirety, subject only to the limitation that it is bound to act upon legal principles appropriate to an appeal.
However, there was at times a tendency for counsel for the petitioner to refer to this proposition as if it justified the hearing afresh of evidence at trial and evidence called on the appeal, without regard either to the verdict of the jury or to the previous decision of the Court of Criminal Appeal in this case. That was particularly noticeable in the petitioner's opening submissions, in which very detailed submissions were put as to discrepancies between the evidence of various witnesses as to the timing of certain events. Those matters were before the jury at the petitioner's trial, although of course they were not marshalled and emphasised in precisely the way in which the petitioner now seeks to marshal and emphasise them.
The respondent relied particularly upon Re Matthews & Ford [1973] VR 199 as authority for the proposition that on a reference the jurisdiction of the Court was confined to fresh material brought before the Court and that it could not re‑adjudicate a ground of appeal already heard and disposed of. The petitioner relied upon a decision of this Court in Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970749; 30 October 1997. That decision is authority of the Court of Criminal Appeal of this State bearing directly upon the question of the way in which the Court ought to approach a decision of a previous Court of Criminal Appeal in relation to the subject matter of the reference. However, it is authority which supports the submission of the respondent. At page 6 of the reasons for decision of Malcolm CJ (with whom Steytler and Wheeler JJ agreed), his Honour noted that the basic submission of the respondent in that case was that the reference to the court of "the whole case" contemplated that decisions on issues already heard, after full opportunities for argument have been offered to both parties, should not be re‑opened and again heard and determined on the same grounds of appeal. His Honour canvassed the various cases in a number of jurisdictions which shed light upon that proposition, and observed as follows (at 13):
"Counsel for the Crown rightly contended that s 21(a) of the Criminal Code and s 140(1)(a) of the Sentencing Act 1995 do not contemplate that the whole case should be retried on appeal. It was submitted that the provisions contemplated confining the jurisdiction of the Court to fresh material and do not contemplate that any matter, which had been previously dealt with at a trial and disposed of on an appeal which had already been heard and determined, should be re‑opened in the absence of cogent fresh evidence. This submission is correct, subject to the qualification regarding new evidence in the last sentence in the passage quoted from Ratten above [referring to the passage in Ratten v The Queen (1974) 131 CLR 510, at which Barwick CJ said – page 517 – that if by reason of new evidence which is not fresh the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the court will quash the conviction]."
Of course, as counsel for the petitioner pointed out, the court in the Mickelberg decision to which we have referred did not grant the Crown's application to strike out certain grounds of appeal as attempting to raise issues already determined against the appellants. However, that application was not dismissed because the principle for which the Crown contended was unsound, but because of the difficulty, in a proceeding by way of preliminary objection, of evaluating the way in which matters which were either fresh or new in the relevant sense would interact with issues already determined.

(ii) New evidence/fresh evidence

Subject to questions of non‑disclosure, which will be dealt with shortly, evidence which has not been produced at trial falls into two broad categories. One is evidence which was available at the trial or which could, with reasonable diligence, have then been discovered. The other consists of evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered. Only the second category comprises "fresh" evidence. The first category is frequently described as "new" evidence.
It has been suggested on a number of occasions that the distinction between fresh evidence and new evidence is of minor, or of decreasing, significance in the context of criminal appeals, a proposition which is supported to a degree by observations in some decisions of this Court (eg Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997 per Malcolm CJ with whom Pidgeon and Murray JJ agreed at 62 – 63). The distinction is nevertheless one which continues to be recognised. It was a distinction reasserted as recently as this year in a decision of this Court (Easterday v The Queen [2003] WASCA 69 at [204]). It has been repeatedly recognised in decisions of the High Court. In Mickelberg v The Queen (1989) 167 CLR 259, for example, Toohey and Gaudron JJ explained that the underlying rationale for a Court of Criminal Appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was in effect a miscarriage of justice (at 301); see also Gallagher v The Queen (1986) 160 CLR 392 at 395, 402 and 410). However, in respect of new evidence, their Honours in Mickelberg went on to say, at the same page:
"There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen (1974) 131 CLR 510 at pp 516 – 517, per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials."
Not only is the distinction between fresh and new evidence one which is well‑established in the criminal law, but, as has been explained on a number of occasions, the distinction is one soundly based in principle. That principle was adverted to by Toohey and Gaudron JJ in the passage from Mickelberg already quoted. It was explained in somewhat more detail by Mason J in Lawless v The Queen (1979) 142 CLR 659 at 675 – 676. His Honour said:
"However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. ... If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand."
Of course, as was noted in Ratten, the accused person in the case of a criminal trial is afforded considerable latitude, because of the difficulty of the accused's position and the discrepancy between the resources perceived to be available to the Crown and to the accused. Evidence not actually available to an accused will often be treated as fresh evidence, notwithstanding that it could on a narrow view have been discovered by diligent enquiry. That is something which falls to be evaluated having regard to the circumstances of each case.
If the evidence is new but not fresh evidence, the Court of Criminal Appeal will quash a verdict of guilty only if that material either shows the appellant to be innocent or "raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand": Ratten v The Queen, supra, 520 per Barwick CJ. If there is fresh evidence, a number of authorities have explored the way in which such evidence may demonstrate that a miscarriage of justice occurred. In Lawless, (1979) 142 CLR 659, Aickin J at 684 – 686 explained the task of the Court of Criminal Appeal by reference to the joint judgment of Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429 at 439, which read:
"The Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and a plausibility as well as relevancy. Fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced."
The same passage was quoted by Menzies J in Ratten, and by Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 396. In Gallagher, Mason and Deane JJ expressed the test in terms of a "significant possibility of a jury bringing a different verdict" (at 402). Gibbs CJ at 399 agreed with that view, although his Honour emphasised that:
" ... no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial."
Dawson J expressed tests similar to that enunciated by Gibbs CJ and Mason and Deane JJ (at 421) stating that the court would need to conclude that "a jury might entertain a reasonable doubt about the guilt of the appellant".
"In Mickelberg v The Queen (1989) 167 CLR 259 Mason CJ (at 273) followed the test endorsed in Gallagher v The Queen by four of the five justices and expressly approved the remarks of Dawson J which we have quoted. . Brennan J (at 275) expressed his preference for a test expressed in terms of 'likely' and not 'might'. Deane J adopted the 'significant possibility' test. Toohey and Gaudron JJ (at 302) said:
'In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at the trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the other evidence had been before it ... or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted the [accused] ...". For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it.' "
To the extent that evidence is properly regarded as "fresh", we propose to apply the test as formulated laid down by the majority in Gallagher v The Queen and Mickelberg v The Queen, namely, whether the petitioner has established that there is a significant possibility that, in the light of all the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted him.

Although the ultimate question concerns the court's opinion as to the effect of the fresh or new evidence on a jury, it is inevitable that, in the process of answering that question, the court will form its own assessment of the credibility of the witnesses. Regard will be had to the fact that, as Mason CJ, Deane, Dawson and Toohey JJ pointed out in Mickelberg v The Queen (at 494):
" 'a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced'. Regard, however, will also be had to the possibility that, in some instances, a witness regarded by the court as credible beyond reasonable doubt, may be seen by a jury in a different light, and that a jury might have a different view of a witness, regarded by the court as not being capable of belief."

(iii) Material Non‑Disclosure by the Crown

The respondent formulated its submissions of law in respect of these issues in terms which appear to us to be generous to the petitioner. So far as the duty of disclosure is concerned, the respondent asserts that the prosecution had a duty to disclose:
"That which can be seen on sensible appraisal by the prosecution:
(1)to be relevant or potentially relevant to an issue in the case;
(2)to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3)to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."
In support of that proposition, the respondent cites R v Brown (Winston) [1994] 1 WLR 1599 at 1606, Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997 and Easterday v The Queen [2003] WASCA 69 at [195] – [197].
While the respondent's concession represents, it seems to us, an accurate statement of the current law concerning the prosecution's duty of disclosure, the question whether it precisely reflects the law applicable at the time of the investigation of Mrs Lawrence's death is one which might be open to argument. The principles enunciated in R v Brown (Winston) are, for example, different from the summary of the prosecution's duties arrived at after a detailed consideration of the then currently understood position in In Re Van Beelen (1974) 9 SASR 163 at 249, by the Supreme Court of South Australia. They also appear not to be entirely consistent with the views expressed in Lawless v The Queen, a decision of the High Court delivered in 1979, which we propose to consider shortly.
Given that the respondent has conceded that its duties at the time of the petitioner's trial fall to be considered in this case against the standards set out in R v Brown (Winston) and the other cases to which we have referred, we propose to accept that concession and to apply that standard. However, it is worth noting that there has been an apparent broadening, to some degree, of the view taken of the prosecution's duties over the course of the last 20 years or so. That change, in either the substance or the emphasis of the law, illustrates the difficulty, in a reference such as the present, in appreciating and giving due regard to the atmosphere of a trial conducted some considerable time ago, at a time when the law may, in principle or in practical application, have been perceived somewhat differently. Accepting the prosecution's concession in this respect gives the petitioner the benefit of the most generous view which can be taken towards his appeal.

(iv) Effect of Non‑Disclosure

Similar comments can be made in respect of the concession by the respondent that cases of material non‑disclosure by the Crown fall to be considered somewhat differently from the way in which evidence not available at trial (whether new or fresh) is generally to be considered. The respondent concedes that where there is found to be a departure from the requirements of a properly conducted trial, by reason of non‑disclosure by the Crown, it cannot be said that there has been no substantial miscarriage of justice if the petitioner has lost "a chance fairly open to him of being acquitted". In that respect, the respondent cites Grey v The Queen [2001] HCA 85.
The respondent's submission in this case builds a concession upon a concession, since it appears that in Grey's case the respondent had conceded that the case was not to be determined by reference to the principles relating to fresh evidence but by reference to the principles governing the obligation of the Crown to make disclosure in criminal cases (at [9]). It appears from [23], from the observations of Gleeson CJ, Gummow and Callinan JJ, that the court regarded that concession as well made.
What is not apparent from the report of Grey is whether the court had cited to it Lawless v The Queen ((1979) 142 CLR 659), a decision in which, save for Murphy J in dissent, all Justices of the High Court apparently considered that, where the prosecution had failed to disclose to the defence the contents of a statement made by an eye witness to a part of the relevant events, an important question for the court's consideration was whether the evidence was to be treated as relevantly "fresh". All Justices seem to have been of the view that it would have been preferable for the prosecutor to have disclosed the material, with the strongest view being taken by Mason J who, at 678, observed that although there was no rule of law requiring the prosecution to produce that material he did "not condone" the failure to do so. Different views were expressed as to whether the evidence was fresh (Barwick CJ and Mason J finding it was not, Stephen J contra, Aickin J not deciding). All four of the Justices in the majority took the view that even if the evidence were fresh it would not have been likely to have led to a different result on a new trial.
Certain observations, particularly of Stephen J at 673 and Mason J at 678, tend to suggest that non‑disclosure might result in a miscarriage of justice, even where the evidence was not fresh, if deliberate concealment or misconduct on the part of the prosecution were involved. The court later held, in R v Apostilides (1984) 154 CLR 563 at 577 that misconduct of the prosecutor is not an essential condition precedent to a miscarriage of justice. However, that was in a somewhat different context of a case in which there was a failure on the part of the Crown to call a witness, copies of whose statements were made available to defence counsel. So far as we can ascertain, Lawless has not been overruled, nor its correctness doubted, save to the extent that the decision in Grey may be seen as inconsistent with it.
Again, as in the case of the prosecution's duty of disclosure, the respondent has accepted a view of the law which is most favourable to the petitioner. For the purpose of this appeal, we propose to accept that concession as rightly made.

The Crown Case

So that what follows can be understood, it is desirable to outline briefly the Crown case against the petitioner as it was at trial. We do so by adapting the reasons of Malcolm CJ in the decision of the Court of Criminal Appeal delivered on 11 September 1996. At one or two points there are matters in respect of which we interpolate a comment which appears in square brackets. His Honour the Chief Justice's summary is as follows.
The Crown case against the petitioner was that the murder occurred on the night of Monday 23 May 1994. This was the night of a storm which was of some significance to witnesses in their recollection of relevant events.
Mrs Lawrence was a shopkeeper and jewellery maker who conducted a jewellery making business and jewellery shop known as "The Flora Metallica" in Glyde Street, Mosman Park. She was assisted in the business by a Mrs Jacqueline Barsden who was working at the shop on 23 May between 9.55 am and 3.00 pm. Mrs Barsden explained the nature of the business and the daily routine and what happened on that day. There was a shed at the back of the shop which was used as a workshop. Mrs Lawrence spent most of the day in the shed where there was equipment for gold plating and coppering. It seems that in the middle of the day Mrs Lawrence said that she was going shopping. She went out and returned to the shop at 2.00 pm. At about 2.10 pm she went down to the shed. Mrs Barsden left for the day at about 3.00 pm. She closed the front door of the shop so that it could only be opened from the outside with a key, but it was not deadlocked. It could be opened from the inside.
Mrs Barsden had a daughter named Katherine who was a pupil at St Hilda's Girls School. At about 4.20 pm that afternoon Mrs Barsden telephoned her Mother, Mrs Wood and asked her to pick up Katherine from the school.
That evening some time after 6.00 pm Mrs Lawrence was found face down on the floor of the shop in a pool of blood. She was a woman 160 cms tall and weighed 66 kgs. She had suffered severe head injuries which had caused underlying fractures of her skull in three different locations. Some of the wounds or lacerations had bluish or greenish material in them. [The material contained Prussian Blue, a relatively common paint pigment.] There was a group of injuries on the right side of the front of the head involving the forehead and just above the forehead. There was a group of injuries on the left side involving the forehead and the temple. Finally, there was a group of injuries on the back of the head. There was bruising to the right side of the forehead and the right temple consistent with a fall or collapse. The injuries were consistent with a number of blows to the head in each of the areas of injury resulting in fractures to the skull. The injuries were consistent with Mrs Lawrence having been struck with a blunt instrument. [The evidence as to the likely weapon at trial is complex, and requires elaboration.]
There was no immediate suspect identified by the police who examined some 664 possibilities. As a result, the police identified 136 persons of interest, one of whom was the petitioner. [He was interviewed on a number of occasions, and allegedly confessed to the offence. The alleged confession is dealt with in detail under the next heading.]
The petitioner gave notice of alibi and at the trial advanced a further alibi, which included him knocking on various doors on the night in question and getting no answer. The significance of this alibi was that the notice of alibi was tendered into evidence, the petitioner gave evidence of it, but his evidence was rebutted by the evidence of Crown witnesses who said that they were at home at the time but had heard no‑one knocking at their door. In one particular case, a Mr Clark had painted his front door that day. As a result of the storm, he had put up cardboard in the door frame. The Crown placed considerable reliance on this evidence by way of rebuttal of the alibi.
It was clear that evidence of the alleged confessions was essential to the Crown case at the trial. The confessional evidence was said to be of particular significance because the Crown case was that, during the interviews on 10 and 17 June 1994, the petitioner correctly detailed certain aspects of the crime and accompanying facts which only the perpetrator could have known.
The confessional evidence was not the only evidence. There was also a body of circumstantial evidence which formed part of the Crown case. The petitioner had been placed in the lockup at Police Headquarters in East Perth at about 2.40 pm on Monday 23 May 1994. He was released approximately an hour later. A taxi driver gave evidence that he picked up the petitioner in Perth between 4.00 pm and 4.10 pm and took him to the Bel Air Flats at 2 Murray Avenue, Mosman Park. The taxi driver could not be precise about the time, but it was between 4.45 pm and 5.00 pm. There was evidence that, at the preliminary hearing, his recollection was that he had dropped off the petitioner just before 5.00 pm. There was also evidence that the taxi driver's next fare was shortly after 5.20 pm when he received a call outside Mosman Park Railway Station.
Two witnesses, Mr Mouchmore and Mrs Murtagh, gave evidence describing a person they had seen in Glyde Street about 4.40 pm or 4.45 pm. The learned Judge commented to the jury that it would be difficult to conclude on that evidence that the person they described and the person they saw was the petitioner. A Mrs De Florenca gave evidence of two persons she described as having been in the area of Mrs Lawrence's shop at around 5.00 pm. The trial Judge commented that this evidence was not such as to give rise to a doubt if the jury concluded, on the basis of other evidence, beyond reasonable doubt that the petitioner killed Mrs Lawrence.
Mrs Raine described a man she had seen on the ground floor of the Bel Air Flats on the evening of 23 May. Her evidence, if accepted, strongly suggested that the person she saw was the petitioner. Her evidence was contested by the petitioner. If the encounter took place, it would have been about 5.15 pm or as late as 5.25 pm. Mrs Raine described the person she saw as carrying an iron bar. The person she saw also had a carton of Choc Milk. This particular fact did not tie in with other evidence. According to the police record, the petitioner had only $2 in his possession when he was in the lockup that day. When dropped off by the taxi he absconded without paying the fare.
The learned Judge in his summing up said that the evidence of Mrs Raine was only relevant if the jury were satisfied that the person she saw was the petitioner. Mrs Raine also gave evidence that the person she had seen on the night of 23 May was the same person as she saw in Murray Street the next morning. At that time, the petitioner was in the process of being arrested by police in Murray Street. Mrs Raine later identified the petitioner as the person she saw by picking him out from a photo board. The jury were given a comprehensive warning regarding the dangers involved in relation to identification evidence generally and the use of a photo board in particular.
Significant evidence was given by a Miss Katherine Barsden, the daughter of Mrs Jacqueline Barsden who worked at the shop. As at 23 May 1994 Miss Barsden was 13 years of age. She was aged 15 at the time she gave her evidence. On the evening of 23 May 1994 she was picked up by her grandmother at St Hilda's Girls School in Bayview Terrace, Mosman Park. Her grandmother was driving a light green Toyota Corolla Seca sedan. Miss Barsden's evidence was that when she got into the car she observed the time to be 5.00 pm on the digital car clock. Between two and five minutes later, but much closer to two than five, the car pulled up at the traffic lights at the T junction of Glyde Street and Stirling Highway, opposite Flora Metallica.
Her evidence in chief was:
"I looked into the shop, the lights were on and the front door was closed. As soon as I looked into the shop there was a man standing there, so I kept looking and he was standing not where a customer would normally be - next to the right hand side of the pinup board - next to or behind the L-shaped display area."
She described what she saw as follows:
"The man was 30‑35 years old, medium build, slight beard, orange strawberry blond colour, scarf on his head, rustic orange border, slight pattern of blue or green.
I kept staring and I felt the moment that he saw me or we made eye contact he bobbed down and I kept looking for another 30 seconds and he didn't reappear. In those 30 seconds the lights changed to green and the car moved off. I didn't see Mrs Lawrence."
In his summing up the learned trial Judge commented that Miss Barsden gave the time quite precisely and identified with precision the position of the person she saw in front of the counter in the shop. Her evidence that she made eye contact with the person, who behaved suspiciously by ducking out of sight, was important evidence.
Mrs Wood, Miss Barsden's grandmother, confirmed Miss Barsden's evidence of the time she got into the car at St Hilda's and the vehicle stopping at the Glyde Street traffic lights. Her evidence was that Miss Barsden said:
"There's someone in mummy's shop."
Mrs Wood then said:
"Have a good look."
A police officer gave evidence that he had checked the clock in the vehicle shortly afterwards and it was found to be accurate.
The petitioner himself gave evidence which, subject to a question of interpretation to which we will refer later, was an admission that he was in the shop and that he was seen by a passenger in a car which was stopped at the traffic lights and with whom he locked eyes. The importance of the evidence was that, if it was accepted that it was the petitioner seen by Miss Barsden in the shop, it placed him there just after 5.00 pm. It was significant evidence of opportunity.
There was an "A" frame outside the shop on the afternoon of 23 May. At 3.00 pm, Mrs Jacqueline Barsden, who had been attending the shop, brought in the "A" frame, left the shop and locked the door. Later, it appears that Mrs Lawrence found herself locked out. Mr Lawrence then attended at the shop. He was there between about 4.00 pm and 4.20 pm. His house was about two minutes away by car. When he arrived at the shop the "A" frame was inside the shop.
A Mr Barry Whitford gave evidence that he received a telephone call from a woman who said that she was from Flora Metallica. They spoke about some salt and pepper shakers. His evidence was that this telephone call was made about 5.10 pm. Mr Whitford confirmed the accuracy of the time of the call by checking with Telecom and checking the accuracy of his clock. The only person who could have made the call from the shop at that time was Mrs Lawrence. As the learned trial Judge pointed out to the jury, if the call came from Mrs Lawrence, then she was still alive at about 5.10 pm or very close to that time.
In this state of the evidence the learned trial Judge told the jury that there were various questions they had to consider. As formulated by the learned trial Judge, these were:
"I am just simply referring to these pieces of evidence to bring together perhaps some of the pieces of evidence which bear upon the question of the events that occurred immediately surrounding the killing of Mrs Lawrence. You would have to consider for yourselves what you thought the evidence carried you to as to a conclusion as to what happened to her. How did the person who killed her get into the shop? Was it through the back door? If so, how did that person get through the back door? Was it because the door had been left on the rag or had been left ajar, or was it because she had already come into the shop before the person who killed her did? Was the person who killed her already in the shop having got in through the back door by being able to push it open because it was not properly secured? Was that person then seen by Kate Barsden, ducked down and was in the front part of the shops being secret when Mrs Lawrence came in and disturbed that person by making a telephone call from the rear.
There are a number of different ways you can look at that evidence and it may help you to make a conclusion about those matters or you may find that of no assistance whatsoever either to understand or to know how the killing occurred or perhaps more importantly to evaluate what you think of what the accused person said, if you find that he said these things, later to the police about what occurred.
They are matters which you could consider. Certainly you may have had some confidence that you know where in the shop she was killed, so how did she get there? Did she come forward having made the telephone call to commence the locking up process and did she there surprise and come upon the intruder? These are matters for you, you will see, but it would seem pretty clear, you may think - again it is a matter for you - that she was first struck down in front of that partition wall where the display board is and you have got the evidence firstly of Dr Cooke and also of Mr Bagdonavicius who also observed the scene about that and the nature of the blood spattering and the smearing in that area which indicates that blows were struck to her head low down at that point.
Then of course, you have got the evidence that she was dragged to the rear of the shop later and perhaps you may think, but it would be a matter for you, that the spattering in that area - the region of the back door and on the fridge and on the sink cabinet may indicate that one or more further blows were struck there, perhaps not. The matter is entirely for you.
You would want to give careful consideration I would suggest to you to that aspect for the reasons that I have mentioned. You would look to the timing of that also. You may think you need to reconcile in some way the evidence given by Kate Barsden and by Mr Whitford about times. It may not concern you. It is a matter entirely for you."

Mr Lawrence gave evidence that he began to be concerned that his wife had not arrived home by 6.15 pm. He telephoned the shop. There was no answer and the answering machine had not been switched on. He drove to the shop. The lights were still on. There was a pot outside with a eucalyptus tree in it. He opened the front door with his key and took the pot inside. The "open" sign was still above the front door. There was still a mat outside the door. The "A" frame was inside. Mr Lawrence noticed some blood on a partition and he heard a groan. He found his wife lying on the floor. She had blood in her mouth and was making gurgling sounds. He turned her onto her side and telephoned 000. The ambulance arrived shortly afterwards. He found the back door shut but unlocked. He found the door to the shed at the back open and the lights on. This was a work shed. There was a copper bath which was operating.
Mr Lawrence then went back into the shop. No jewellery was missing. No cash was missing from the cash box under the display counter. Mrs Lawrence's handbag was on the shelf behind the partition. A brown Oroton wallet was missing, as were her credit cards. She normally had $100‑$150 cash in her wallet. Mr Lawrence's evidence was that on the night of 23 May Mrs Lawrence was wearing jeans and a [dark blue] jumper.
Mr Lawrence said that Mrs Lawrence's policy was that, if anyone was confronted in the shop by another person or in danger, they should hand over whatever was required of them without dispute. He said there were various tools in the back shed such as adjustable spanners, screwdrivers, pliers and clippers. They were used in the business. Shortly after 23 May 1994 Mr Lawrence checked the tools to see if any of them were missing. He thought an expanding spanner was missing, but he was not sure. The spanner he thought was missing was a Sidchrome spanner "10 inches in length" with an adjustable head. He would also describe it as "a wrench".
A possible inference from Mr Lawrence's evidence was that Mrs Lawrence may have been in the shop, but had gone out to the shed at the back to do some work, leaving the shop unattended. The intruder may have entered the shop and been disturbed by Mrs Lawrence. Alternatively, Mrs Lawrence may have been waiting in the shop and had been disturbed by the intruder.
The calling of the ambulance was logged at 6.37 pm. The ambulance arrived at 6.45 pm. In the meantime, the police had arrived at 6.42 pm. On this evidence, an important question for the jury was to determine where the petitioner was between 5.00 pm and about 6.20 pm when Mr Lawrence arrived at the shop. There was evidence that the petitioner was short of money, but the learned Judge warned the jury that this evidence did not carry the matter anywhere.
The petitioner's evidence was that after he left the taxi, he went to Ms Michelle Engelhardt's flat at 3/10 Murray Avenue at about 5.30 pm to change his clothes. On his account, he was there for about one minute. He said that after that he was walking around trying to score some marijuana. He was with a Mr Damien Kostezky. They visited a corner delicatessen between 6.00 pm and 6.30 pm to buy food. They then went to Ms Engelhardt's flat arriving there about 6.40 pm. Mr Kostezky, however, gave evidence that he met the petitioner at 7.00 pm. Ms Engelhardt gave evidence that the petitioner called at her flat at about 6.30 pm and stayed until after 7.00 pm. She recalled that it was after 7.00 pm because he left while a television programme called Home and Away was on and this programme had commenced at 7.00 pm.
Ms Engelhardt's evidence that the petitioner left her flat after 7.00 pm could not have been correct. There was irrefutable evidence that the petitioner was on a train travelling between Mosman Park and Fremantle at 6.58 pm. He would have boarded that train a Mosman Park a few minutes before. This means that he must have left the flat some time before 7.00 pm. It also follows that Mr Kostezky's evidence that he met the petitioner at 7.00 pm could not have been correct.
There was a body of evidence from various witnesses at a number of flats in the area that they had been visited by the petitioner on the previous night, Sunday 22 May, when the petitioner was endeavouring to obtain drugs. The petitioner's evidence regarding his pursuit of drugs placed these activities on the Monday night rather than the Sunday night. The learned Judge directed the jury that it was for them to consider where the truth lay, but that the evidence raised questions whether the petitioner was confused or whether he was lying about these issues taking place on the night of Monday 23 May. His Honour said that the acceptance or rejection of the petitioner's evidence regarding his movements was significant, as it was the basis of his alibi. The jury were told they had to consider whether the evidence was deliberately untrue or simply mistaken in the context of the evidence given by other witnesses. If the alibi was rejected, the petitioner was left in the situation where he was unable to account for his movements. The learned Judge commented that this could be taken no further than giving rise to an opportunity or a motive for being in the area of Flora Metallica, or in the shop itself, with an opportunity to commit the killing.
It was in this context that the learned Judge gave the following direction to the jury:
"You need to have very clearly in your minds, in my view, the fact that there is this further step to be taken. What we are concerned with there is evidence of opportunity. By itself it would seem to me that would not carry you to the conclusion beyond a reasonable doubt that it was this accused person who killed. As to that, I would have thought that was a conclusion which you could not reach adverse to him unless you accepted the police evidence of the confessions he made. As to that there are some very clear questions for you to consider."
The principal grounds of appeal relied upon by the petitioner were concerned with the confessional evidence.

The petitioner's "confessions"

The central issue at the trial, and the principal issue canvassed at the earlier appeal, was whether it was open to the jury to conclude beyond reasonable doubt that the petitioner was actually confessing and if so, whether his confessions were reliable. Because of the peculiar circumstances in which the alleged confessions came to be made, the first issue was whether the petitioner had confessed at all to killing Mrs Lawrence, and if so precisely what he had said by way of confession.
The competing view, advanced by the petitioner, was that as to some of the things he was alleged to have said, he had not said them at all; to the extent that he had said things which might be understood as confessions to the killing of Mrs Lawrence, he had not intended them as confessions but had in his own mind merely been formulating hypotheses (or theories) to assist the police in their enquiries. If the jury accepted that he had indeed confessed to the murder of Mrs Lawrence, the question arose as to whether those confessions were to be understood as reliable accounts of what he had done, or as the product of a disordered mind responding in part to suggestions made by the police and producing, in part, flights of pure fantasy.
The course of the petitioner's confessional conduct is central to the submissions advanced by the petitioner on this appeal. It was said by the Crown witnesses to be as follows.
On 26 May Detectives Caporn and Emmett interviewed the petitioner at Graylands. The conversation was relatively short. He was asked about his movements on the afternoon and evening in question and about whether he had been to Flora Metallica. He told them that he had walked past the shop at about 7 pm and had thought that there was a burglary because he had seen police there, and that he had passed the shop later on the same evening at about 9 pm and noticed police tape around it, and a van outside. He gave an account of his movements which he abandoned during later interviews, the thrust of which was that it had taken him a very long time to find a taxi from his first attempt in Perth at 5 pm, which he said accounted for his arrival at Ms Engelhardt's flat at about 6.30 pm. He said he had been to Flora Metallica about a week beforehand in order to attempt to sell some jewellery. He spoke not to Mrs Lawrence, but to the other lady that worked in the shop. He asked whether the detectives were able to tell him what Mrs Lawrence had been killed with.
On 27 May 1994, again at Graylands, the same two detectives interviewed the petitioner about some discrepancies between the account he had given them and information they had obtained from the taxi driver. When asked about his movements, he asked them whether it mattered. They replied that it did matter because Mrs Lawrence had been murdered and the petitioner's whereabouts were not accounted for. He asked whether he was a suspect, and the detectives told him that if he were not they would not be there. He gave them an account of his movements which revolved around attempting to score drugs.
On 30 May 1994 the detectives seized certain items from the petitioner at Graylands, including clothing. He was advised that he was a suspect. He again asked what Mrs Lawrence had been killed with.
On 2 June 1994, interviewed at Graylands, he told detectives that he had tried to sell jewellery to Pamela Lawrence. There was some discussion about whether he owned bandannas. He again asked what she had been killed with and told detectives that he knew from the news that it was a blunt instrument. There was some rather unusual conversation about his interests, during the course of which he made claims which included a claim that he could speak six languages.
On 10 June 1994 the petitioner was out of Graylands and interviewed at detectives' offices. The interview was a very long one. Like the previous interviews, and as was the practice at the time, it was not recorded on video. The process that was followed was that one detective asked questions while the other took notes. Given the course which events then took, it obviously would have been preferable for the interview to have been videotaped or otherwise independently recorded. The failure of the police to take that course, and the admissibility of the resulting evidence, was the subject of the earlier appeal.
In broad terms, the interview was as follows. The petitioner gave a detailed account of his movements on the evening in question. He again talked about trying to sell jewellery at Flora Metallica previously, but said he had not otherwise been in the shop and never in the backyard. After lunch, it was put to him that the account that he had given did not fit with aspects of information available to police. He said that he was unable to remember details. He said he needed to think and there was a further break. He gave them another and different account of his movements and was told that that did not "check out". He said he was getting upset and nervous but did not know why and gave a further account of his movements. There was another toilet break.
He then said that he went into the shop on that night to "case" it for a burglary, that he heard someone and ran out. He said he had "locked eyes" with a girl in a green car outside. He then said that he had made up the story about going to the shop and about locking eyes with the girl. There was a further toilet break. He then said he was going to the shop to case it, saw people coming and left. He denied seeing any witness. He denied killing Mrs Lawrence.
He then said a number of things which were, to say the least, odd.
It is apparent from what the petitioner was alleged to have said that he was by then becoming somewhat upset. He accused detectives of "fucking me around". He then said: " ... it's murder and that's not me. There's a rush, people get scared, don't want to get caught. It doesn't mean anything in the end, in the end it doesn't mean anything, nobody cares". He began to cry and said that there were a "lot of blanks". He said that he said that "he" (that is, speaking in the third person) was "very scared" and was "evil". He referred in a variety of ways to the "evil person" who had killed Mrs Lawrence and to what "he" had done. He observed "I can't stop him when he's like that". He gave a detailed and vivid account of the way in which "he" had surprised Mrs Lawrence while she was locking up, had been scared of being caught, and had hit her. He described certain areas of the shop. All of that was in the third person except for occasional comments such as "I can't remember". Shortly after he was told that detectives needed to know more about "this person", he asked for a break and there was a 10 minute break while he went to the toilet.
On his return from that, he denied being in the shop and denied murdering Mrs Lawrence. He said that everything he had said had been lies and that he did not kill her. He began hitting himself on the forehead and when Superintendent Caporn attempted to restrain him he bit Superintendent (as he now is – so far as possible, we refer to witnesses in the appeal by their current titles) Caporn on the leg. The interview was then terminated.
There was extensive cross‑examination at trial as to why Superintendent Caporn did not conduct a videotaped interview immediately following that conversation which we have just summarised. It seems the reason at least in part was to do with the petitioner's extreme agitation at the time. In any event, it was on 17 June that he was interviewed again, but on that occasion by Detectives Brandham and Carter. Superintendent Caporn explained that it was thought that it would be preferable for detectives unconnected with the earlier interviews to interview the petitioner.
On that occasion, the evidence was that the petitioner confessed in detail and in the first person to the killing of Mrs Lawrence. Certain aspects of statements he made during the course of that confession did not apparently fit with the known facts, and those matters were raised with him during the course of the confession. In the petitioner's submission, those matters demonstrate that either he was not intending to confess that he was the murderer, or that his confession was unreliable. The alternative view, which the jury presumably accepted, was that he was persisting in a pattern of grudging confession as his untrue accounts were rejected, together with a continuing attempt to mislead where possible. In any event, at the end of that detailed first person confession, it was said that the petitioner had again retracted the confession, saying that he had made it all up, had guessed about the killing from the media and from what he had heard, and that his explanation for the detail which he had provided was "I got inside the killer's head".
That history explains the very unusual nature of the videotaped interview which was taken. It was not a videotaped confession in the normal sense; that is, it was not a series of answers by the petitioner to questions about the offence itself. Rather, it is in form a confession by the petitioner to having confessed at an earlier time. The questions put to him were along these lines:
"Question: You told us that you went out front on Glyde Street and that you were looking back and you saw that the Flora Metallica – the door was shut?
Mallard: Yes.
Question: And that you thought it was closed so it was safe to do a break. Is that what you told us?
Mallard: That's correct."
Shortly thereafter the following exchange occurred:
"Question: Okay, now you said you went into the shed –
Mallard: Yes.
Question: At the rear.
Mallard: Yes.
Question: And you said the door to the shed pushed
Mallard: Inwards.
Question: Inwards.
Mallard: Because being a small shed, being cluttered – being a small shed, you don't – I don't know, I just see it 'inwards'. I just feel – most sheds I know about are inwards."
A passage which exemplifies a number of features of the videotape is as follows:
"Question: [Referring to the back door] There was a key in it?
Mallard: No. I don't know. I didn't see a key.
Question: Alright. No problem. Okay. You described the steps to us and you described the rear door, and the flyscreen door you –
Mallard: May I say something else?
Question: Yes okay. Go on.
Mallard: If Pamela Lawrence was locking the store up, maybe she came in through the back way; the front door was already locked. Maybe –
Question: Okay.
Mallard: And she left the key in the back door, and that's why he had easy access and that's why she didn't hear him until he was marching down the store."
Those passages quoted give something of the flavour of the videotape. For the most part it consists of questions by the detective about whether the petitioner had previously told police that he had done certain things, and his agreement with the proposition that he had told them that he had done those things. On occasion during the course of the interview the petitioner spontaneously speaks of himself participating in those acts and does so in the first person, as in "I didn't see a key". On other occasions, he makes statements which appear to have the purpose of demonstrating that he is basing his knowledge on speculation (as in "maybe she came in through the back way") and on occasion he refers to the events he describes as if they involved some person other than himself (as in "that's why she didn't hear him").
The petitioner's case at trial in relation to these interviews had three aspects. As to some of the alleged confessions which were not videotaped, he denied that he had said certain things at all; if they had been said, he suggested that they had been put to him by the police rather than volunteered to the police by him. He said that on more than one occasion he had been threatened and mistreated by police officers (including being kicked, having a pistol shoved in his face, and threatened with being "killed") and that he had in effect said what he thought they wished to hear in order to avoid further mistreatment.
He also said that, to the extent that he had described the killing of Mrs Lawrence, he had done so only as part of a process of attempting to assist the police officers by sharing with them his theories of the way in which the murder may have been committed, based on information which he had obtained from the media and from the police officers. It was this last aspect of the petitioner's case at trial which was re‑agitated forcefully before us. That is, it was submitted that the very peculiar nature of the videotape, together with discrepancies in certain respects between what was said by the petitioner on that videotape and the known facts, together with information available to the court about the petitioner's mental state, gives rise to a reasonable doubt as to whether the petitioner was confessing to his own involvement in the killing or merely theorising about how the true killer might have behaved.
Certain aspects of that submission will be revisited during the course of these reasons. For the moment, there are three observations we should make briefly about it. The first is that there has always been, and was maintained before us, a difficult ambiguity or inconsistency in the petitioner's account of why and how he came to discuss these theories with the police. In his evidence before us, for example, in answer to a question about why he had said to police that he had "locked eyes" with a girl, he said: "Because I trusted the police. I was trying to help them. They had beaten and intimidated me in interviews." There is, of course, a degree of contradiction in the notion that the petitioner would have trusted those who had so recently mistreated him. Further, it appeared to us that there was no reason ever advanced by the petitioner as to how it could "help" police to tell them that which he did not believe to be true.

The second observation is that this was an issue squarely before the jury at trial. We discuss below the extent to which the view taken by a reasonable jury about this issue might have been affected, if at all, by the matters raised by the petitioner on this appeal. However, the jury would no doubt have been greatly assisted in forming a view not only by hearing the evidence of the petitioner at trial, but also by viewing the videotape in which it was said that, as on other occasions, the petitioner had thought that he was discussing theories of the night in question with detectives. The trial was a complex and difficult one, involving an assessment of credibility and a consideration of all the surrounding evidence we have described, but it does not seem to us that the jury could have been unaware of the importance of a careful assessment of the alleged confessional evidence.
Third, to the extent that it is necessary for us to assess the whole of the case ourselves, we note that on the previous appeal, Malcolm CJ, with whom other members of the court agreed, said:
"There was a significant issue whether the statements made by the [petitioner] in the third person were intended to convey what he himself did. In my opinion, looking at all of the evidence relating to the interviews, the jury were entitled to infer that the [petitioner] was clearly referring to himself when he spoke in the third person. There were times when I gained the distinct impression that some of the things said by the [petitioner] in the third person in the video interview were a deliberate attempt to cloud the issue or simply an attempt to be clever." (Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996.)
Having had the opportunity to view the videotaped interview ourselves, we would agree with those observations.

Fresh/new/undisclosed evidence relating to the murder weapon Grounds A, B(iii)

According to Superintendent Caporn, in the interview of 10 June 1994 he asked the petitioner "What did he hit her with?" and the petitioner replied "A wrench". Inspector Brandham said that, when asked to draw the murder weapon, the petitioner drew a wrench. That drawing became an exhibit. Mr Lawrence said that he felt that there might have been a Sidchrome spanner missing from the back shed. ("Wrench" and "spanner" are of course synonymous terms.) However, the back shed appears to have been one primarily used by Mrs Lawrence for her business purposes in creating jewellery. The evidence was that it contained a variety of different sorts of tools, and that Mr Lawrence could not be quite sure what, if anything, was missing. There was evidence that there was also in the shed a variety of copper anodes, used in the electro plating of jewellery, many but not all of which had a considerable quantity of copper sulphate adhering to them.
At trial, the petitioner denied saying that Mrs Lawrence was killed with a wrench. He gave evidence that his sketch of the wrench was "a sketch of a supposed weapon that we were talking about in our theory which I said was a gas wrench to be used on acetylene equipment. I have no idea what a gas wrench looks like. That is what I assumed it would look like in my theory." At the time at which he drew the wrench the petitioner described it as a "big pipe wrench that had a ratchet system and was rusty". He said it was similar to the one he had drawn.
The Crown opened and closed the prosecution case on the basis that the wrench drawn by the petitioner was the murder weapon. It apparently did so largely relying upon his confession. It was acknowledged that there were other possibilities. In closing, there was reference made in passing to the iron bar which Ms Raine said she had seen the petitioner holding and in that connection there was reference to the fact that particles of iron oxide (that is, rust) had been found in Mrs Lawrence's wounds.
His Honour, the learned trial Judge, directed the jury:
"You may need to form a conclusion about the nature of the weapon. Certainly it would seem not the anodes, not the copper anodes, but is it a wrench of the type that was drawn in the sketch and that sort of size ... "
It is to be noted that his Honour apparently did not regard it as essential for the jury to form a view about the nature of the weapon.
As noted earlier, as well as evidence relating to iron oxide there was also evidence that there was some blue pigment in Mrs Lawrence's wounds. There was no significant amount of copper, which on the evidence at trial ruled out at least those anodes which had deposits of copper sulphate on them. The evidence of the petitioner's witness Dr Jerreat, on this appeal, was that even a clean anode would cause copper deposit in the wounds, so we can rule out the anodes altogether.
In the light of the evidence at trial, the petitioner submits that the following material, adduced in evidence on this reference, establishes that a wrench of the type drawn by him could not have been the murder weapon, and that the non‑disclosure of that material which was not disclosed, together with the fresh or new evidence obtained on the point, leads to the conclusion that he has lost a chance reasonably open to him of acquittal. That material is:
•In a comprehensive summary of facts sent to the Director of Public Prosecutions, Superintendent Shervill stated that a crescent wrench was tested which inflicted dissimilar wounds to those apparently inflicted on Mrs Lawrence. That was a reference to an experiment conducted by the forensic pathologist and certain police officers, in which both a copper anode and a wrench were used to hit a pig's head in order to attempt to replicate Mrs Lawrence's wounds.
•Sidchrome wrenches (that being the brand written on the drawing by the appellant) are because of their composition not likely to rust.
•Sidchrome has never supplied the Australian market with a Sidchrome wrench or spanner painted in any blue colour, while a blue paint layer from a forklift located near the deceased's premises did contain Prussian Blue pigment.
•A wrench "could not have caused many of the injuries to the deceased because it had a blunt crushing‑type mechanism rather than a chopping‑type mechanism" according to the forensic pathologist Mr Cooke.
•Dr Cooke had inspected a variety of tools, including spanners, in a friend's workshop and had been unable to find one which appeared to be capable of matching certain of the wounds sustained by Mrs Lawrence. Similarly, Detectives Brandon and Carter had attempted without success to locate a wrench which would be likely to produce wounds similar to certain of those described on the scalp of Mrs Lawrence.
•Finally, in 2002, at the request of those acting on behalf of the petitioner, Mr Cooke performed a further experiment with a pig's head, using a Sidchrome spanner supplied to him, and was not able to replicate certain of the injuries sustained by Mrs Lawrence.
The material relating to the rust and the paint can be quickly disposed of. Although the petitioner's drawing of the wrench labelled it a "Sidchrome", he also described it as "rusty". Two obvious possibilities, if a wrench/spanner were the relevant weapon, were either that he was mistaken in his recollection as to the brand, or alternatively that rust had adhered to it as a result of its having been stored with or used on some rusty object.
So far as the paint was concerned, it does not seem to have been suggested at trial that the entire weapon was blue. Rather, it appears from the outset to have been more likely that it had some blue adhering to it. A layer of blue paint from the forklift was indistinguishable from the blue paint specks found in the deceased's head wounds. However, paint of that colour and composition is relatively common. There were further layers in the paint from the forklift, which were of a composition not reflected in material found in Mrs Lawrence's head wounds. For that reason Mr Lynch, principal chemist at the Chemistry Centre WA, said in evidence on this appeal that he considered it unlikely that the forklift was the source of the paint in Mrs Lawrence's wounds.
So far as the rest of the material is concerned, although it has a number of nuances and variations, the broad thrust of the petitioner's submission can be summarised as being to the effect that: a wrench could not have been the murder weapon; and this fact was known to the prosecution but not disclosed to the defence. Had the jury known that it could not have been the weapon, doubt would have been cast on the petitioner's confession to use of a wrench as the weapon. That proposition falls to be evaluated against the evidence given at trial, and the evidence given before us, as to the likely weapon.
Dr Cooke, the forensic pathologist, gave evidence at a preliminary hearing. It is to be noted from the transcript that at that preliminary hearing defence counsel was assisted by Dr Pocock, also a forensic pathologist, who sat with defence counsel, heard the evidence of Dr Cooke, and viewed the photographs tendered through him. Dr Cooke's evidence commenced with a description of the injuries. As to the weapon, he was asked: " ... Are you able to say what might have caused these particular injuries?". His reply was as follows:
"It's always difficult to make that assessment, of course; certainly a heavy type of object. Some of these injuries have a non‑specific look about them. They could be caused by almost any blunt object, but some of them also have a chop‑like appearance to them. I was subsequently, as shown on page 11 of my report, shown a metal bar, which I understand was a copper anode or cathode used as part of electrolysis, and I thought that showed – that type of weapon bar may have fitted some of these injuries quite well."
In response to a further question, he reiterated that some of the lacerations were non‑specific but others fitted the anode very well. He was asked: "Right, so it may have been caused by that implement or some other blunt instrument?". His answer was "or something similar ... ". Some further cross‑examination revealed that for a short time counsel appeared to have been under the impression that Dr Cooke had been shown an iron bar, rather than the copper anode. However, Dr Cooke then described the copper anode in some detail.
At trial, Dr Cooke's evidence was along the following lines. He again explained that he was shown the heavy copper bar or anode. He described it in more detail and identified photographs of it. He described the experiment with the pig's head, to the extent of explaining that he had struck the pig's head with the anode to establish what the result would be in terms of the shape of wounds. (We note that it was Dr Cooke's evidence before us that at the time of the hearing of the appeal, he had forgotten any experiment involving a crescent spanner; whether he recalled that experiment at the time of the trial is simply not known.) He described the shape of the injuries to the skin of the pig's head as being "close" to the injuries on Mrs Lawrence's skull.
However, he noted that the anode was very heavy and unwieldy and that it was difficult to strike the pig's head with it. He noted also that the copper sulphate on those bars was deposited in the pig's head and that no similar deposits were found in Mrs Lawrence's wounds.
He was then shown the videotape of the appellant's confession and made the observation that he thought it "fits fairly closely" with the sites of the injuries actually found.
Asked whether the injuries to Mrs Lawrence were consistent with being struck with a blunt object, he answered that they were. Cross‑examined about the copper anode and the injuries, he agreed that one of the things which led to his conclusion that the implement fitted the injuries reasonably well, was the sharpness of the edge of the anode. He went on to explain that it was not tremendously sharp, like a knife edge, but that it "has a degree of pointiness" to it. By way analogy, he suggested that if one pictured a ship's hull with the bow and the stern, viewed from above, then the bow would have the right sort of profile for the injuries. That was discussed in some detail. He was not specifically asked at any time whether a wrench or spanner could have caused the injuries, nor did he suggest that such a weapon could have caused them.
At the appeal, he gave evidence in more detail, but to the same effect, in respect of the copper anode, explaining precisely what it was about the profile of that anode which fitted with aspects of the injuries to Mrs Lawrence's skull. He again noted that certain of the injuries were non‑specific and could have been caused by almost any heavy object, but that others appeared to have a particular sort of profile. He explained that the anode was very heavy and unwieldy and that it was difficult to inflict injuries with the anode; indeed, the anode deformed when used. He again referred to the bow of a ship analogy in describing the type of implement which he considered to be relevant.
He referred to an experiment he had conducted with a block splitter subsequent to the trial, and told the court that the head of that implement caused an injury which resembled a portion of the wounds to Mrs Lawrence's head, but that because of the lack of a "shoulder" where the head joined the handle, the block splitter was in certain respects inconsistent with the injuries inflicted. He accepted that there were wrenches which could have the "shouldering" shape which he considered would fit with the injuries.
As we have noted, Dr Cooke told the court he had no recollection of an experiment with a wrench. However, he also said that he was asked several times prior to trial whether a wrench could cause injuries of the type found. It appears that those questions came from the investigating police or from the prosecutor. He said: "A specific type of wrench was never put to me, but I was many times asked could a wrench cause them. My answer then, as now, was yes, a wrench could cause them." Although he was ready to admit that a wrench could cause the injuries and he was still of that view, he had not yet been shown a wrench which he felt comfortable with, because none had a shape similar to the anode.
He described attending a friend's mechanical workshop prior to trial to examine a range of tools including wrenches, but not finding a tool which fitted the profile he was looking for. He did not visit a gasfitter's workshop, since the possibility of a gasfitter's wrench was not at that time put to him.
During cross‑examination and re‑examination, he was shown pictures of two different types of wrenches, taken from the internet, and a variety of other possible wrenches or spanners were hypothetically put to him. Some of those he agreed had, or might have, features which would take them closer to being an implement capable of inflicting the precise wounds which he had found on Mrs Lawrence.
In the end, his evidence on this appeal is perhaps best summed up in the following questions and answers from re‑examination:
"But you said that you have always accepted ... that it's possible that a wrench could inflict those injuries? – Yes.
Have you ever found such a wrench that would do that – Not to my entire satisfaction, no. No not at all."
The position then seems to us to be as follows. At trial, it was clear that the implement which Dr Cooke described as best fitting the profile of the wounds found on the head of the deceased was an implement which was different in shape from an ordinary Sidchrome adjustable spanner. Although there was some argument before us about the interpretation of the petitioner's very roughly sketched drawing of the murder weapon, it seems reasonably clear that the description given at trial of the implement best fitting the profiles of some of the wounds, was an implement not identical with that drawn by the petitioner.
The evidence at trial was not that the wounds were consistent with being inflicted by either a spanner or a wrench, but that they were consistent with infliction by a blunt instrument, albeit that some were consistent with one which had some sort of chopping edge. It was always Dr Cooke's view that the injuries could have been made by a wrench of some type, and that was the evidence which he would have given at trial, had he been asked. We note that the appellant's witness on this appeal, Dr Jerreat, "could not exclude" such a weapon.
Looking at that material in the light of the petitioner's description and drawing, the evidence would appear to support two propositions; first, that the petitioner had not drawn the murder weapon with precision; second, that an implement with some similarities to that drawn by the petitioner might have been capable of being the murder weapon. The evidence before us of Mr Hogan, the petitioner's counsel at trial, was that he understood (in our view accurately) that the Crown asserted the weapon to be "similar" to that drawn by the petitioner, and that he always took the view that the jury could have found that the weapon was not a wrench.
In our view, nothing in the evidence before us relating to the likely murder weapon alters the position as it was seen to be at trial. The more detailed material which is before us as to the experiments of Dr Cooke, both before and after the trial, with different implements, and the material concerning the efforts to find an appropriate implement, go no further than establishing that no wrench which can clearly be said to be capable of inflicting injuries of the type seen on the deceased has been found. Indeed, no implement capable of inflicting precisely those injuries has been found.
There must at trial have been room for doubt about the murder weapon, in part because of the evidence of Dr Cooke as to the appropriate profile, and in part because of the evidence of Ms Raine as to the iron bar which, if the jury accepted that she had seen the petitioner, would have suggested an entirely different weapon. Although the evidence as to the experiments and enquiries in relation to the murder weapon which were conducted prior to trial should in our view have been disclosed to the defence, the petitioner has not thereby lost a chance of acquittal reasonably open to him. All that that evidence was capable of doing, was giving greater weight or emphasis to evidence already before the jury which suggested that the identity of the murder weapon could not be established with certainty.
Finally, it is desirable to refer briefly to the apparent significance of the murder weapon at trial. In some cases, it might be that even a "greater emphasis" upon uncertainty surrounding this issue would be critical, so that non disclosure of material touching that issue would inevitably affect the fairness of the trial. This is not such a case, for a number of reasons. First, as we have noted, an iron bar was an alternative weapon, on one view. The identity of the weapon, though often referred to as a wrench (no doubt because of the petitioner's description) was not advanced by the prosecution as one of the "15 things", known to the murderer, which had been described by the petitioner. The issue about the weapon, to the extent there was an issue, arose in the context of a trial in which it was clear that the petitioner had at some points confessed in a manner inconsistent with the known facts (as, for example, in the video interview in which he described Mrs Lawrence's purse as a "glomesh" purse). Some, but not all, of the inconsistencies between the confessions and the known facts were specifically referred to by the learned trial Judge in his directions to the jury. A confession to the use of a weapon which may not have been that actually used, would have been but one more inconsistency. Last, we note that before us, there was evidence of a conversation the petitioner had with an undercover police officer, in which he informed the officer that the weapon was not "a monkey wrench like the cops thought, but in fact a gasfitter's wrench ... ". This emphasises the possibility of some deliberate misdescription of the weapon by him, consistent with what the jury may well have found to be his deliberate misdescription of the purse and other matters.

This was the "Rosenthal effect" which in his oral evidence he explained has to do with the fact that as human beings we have a certain expectation that things are supposed to turn out a certain way and will conduct ourselves, perhaps inadvertently, to get the effect that we expect.
This effect was discussed by Knowles DCJ in Lee v Martinez (supra, at page 21):
"49.The Rosenthal Effect is a phenomenon that has been recognized in psychology for approximately thirty years. It recognizes that psychologists and scientists and others who have an investment in a theory are likely to unconsciously arrange an experiment in such a way that they get favourable results. It is the reason that it is necessary that test results need to be replicated by an independent researcher.
50.The Rosenthal Effect can affect an individual polygraph examiner because the hypothesis in an individual test involves the examiner's sense of whether the test subject is guilty or not. The examiner necessarily has access to the case facts and interviews the examinee in a pre‑test interview. Based on the case information and how the interview develops – for example the examinee might seem truthful – it can affect the attitude of the examiner. The Court noted the following statement from Dr. Honts: 'In my experience in New Mexico in testifying before juries clearly indicates that, (the jury will make use of the polygraph as they see fit) and that they have decided to convict despite a polygraph that showed the person was truthful.' TT, 7/3/03, 114. the context of the statement and the observation of the witness led the court to conclude that Dr. Honts was invested in the outcome and that he was surprised that a jury could reach a different conclusion.
51.The risk of the Rosenthal Effect is exacerbated by the lack of standards in the profession."
We accept Professor Iacono's evidence that the result of the polyscore software scoring of Mr Van Aperen's CQT tests, that the "probability of deception is less than 0.01%" is simply indefensible. The NAS report found the software methodology to be "unscientific and flawed" and as Professor Iacono explains, it is not possible to diagnose or predict human behaviour with accuracy to four (sic) decimal places. Secondly, as he says, this probability statement means in effect, that for every 10,000 people tested under circumstances just like those under which the petitioner was tested, only one with a score like his would actually come from a deceptive person. There is no database to support such a conclusion. In fact, he says, if one took all the subjects studied in all the scientific research ever published on the accuracy of polygraph tests, one could not identify 10,000 confirmed innocent study subjects.
We apprehend there appears to be a view in some quarters that the polygraph machine itself tells whether or not the subject is lying. That view is possibly the result of deliberate assertions by polygraph examiners, part of whose technique involves seeking to convince the subject that the machine will detect any lie he or she tells. The purpose of this is to instil in the subject an apprehension about the consequences of lying, and so increase the autonomous response. This aspect has attracted the following comment from Freckleton and Selby (supra, Vol 1 – 1890):
"For its effectiveness, it has been suggested that polygraphy depends on implanting into the subject a belief in the infallibility of the machine and on the design of effective control questions. 'The whole fragrant stew of imposition, trickery and downright lying (by the examiner, not the subject) is reminiscent of a certain type of hard police interrogation of subjects whom the interrogators "know" to be guilty': Elliott (1982. pp 104, 108)."
One obvious difficulty with this approach is that for example, an innocent person who recognises a relevant question may produce a strong autonomous response because he or she is either afraid they may wrongly be shown to be lying, or simply because the mere allegation is upsetting. Be that as it may, we mention this only to make the point that it is important to be clear about the nature of the evidence sought to be led. It is opinion evidence. It is the opinion of the examiner that the subject is or is not lying.
Put shortly, the opinion is formed on the basis of the assumption that every person will provide an autonomous response when telling a lie, the examiner's formulation of the control and relevant questions, the readings actually recorded on the machine, a comparison of the responses to relevant and control questions and an entirely subjective assessment by the examiner of the significance of differences between the results.
Counsel for the petitioner put it that whatever may have been the state of knowledge and professional acceptance in the past, polygraphy has been the subject of continued development over the last 20 years or so to the extent that evidence of that kind ought now to be admitted. We do not accept that submission. To the contrary, the evidence (including that of Professor Honts) shows that the examinations conducted by Mr Van Aperen do not represent any improvement in the technique over what was available 10 or even 20 years ago, except in the area of the computerised statistical analysis conducted by the Polyscore software programme, which we are satisfied has been shown to be entirely unscientific and worthless. The polygraph evidence therefore cannot be said to be "fresh evidence" in that sense.
On the whole of the evidence of the other material before us, it has not been shown that the polygraph technique is a reliable method for determining truth or untruth and nor is there the degree of acceptance within the relevant scientific community which would indicate that it is seen as being so. That being the case the evidence of the polygraph examination would not have assisted the trier of fact (the jury).
We respectfully agree with the reasoning and conclusions of Knowles DCJ in Lee v Martinez, which we think reflect in large measure the conclusions to which the evidence on this appeal leads us.
There is insufficient basis to regard Mr Van Aperen's opinions as any more than expressions of subjective belief or speculation about the credibility of the petitioner with respect to self‑serving statements made by him out of court.
The evidence would go beyond bearing merely on an issue relevant to the petitioner's credibility – it purports to present an opinion directly on whether the petitioner is truthful in his denial of the offence. That is for the jury to determine and given the lack of scientific support for the polygraph technique, they would not properly be assisted by the evidence of opinion based on that.
In our view, the polygraph evidence is not admissible and would not have been admissible on the petitioner's trial. That being so, the fact that Mr Hogan did not seek to lead at that trial was not an error, much less an error of the kind referred to in Knowles.
This ground must fail.

Conclusion – Appeal Dismissed

For the reasons set out above, it is our view that the appeal should be dismissed. However, there are also some observations about the conduct of the appeal, rather than its substance, which we believe it desirable to make.

The conduct of the petitioner's case

We have already raised, earlier, one limited aspect of the conduct of the petitioner's case which has been the cause of some concern to the court. There are two others we wish to mention. The first of our concerns finds an echo almost 30 years ago, in the reasons of the Supreme Court of South Australia in relation to another petition, that of Van Beelen. In In Re Van Beelen (1974) 9 SASR 163 at 251, the court said the following:
"Before parting with this judgment, we feel constrained to refer to the opportunities afforded to the petitioner's counsel, during the period of twenty‑one days for which this Court was occupied in the hearing, to present the petitioner's case. Some may think that the time occupied, and the expense incurred, was out of all proportion to the nature and difficulty of the issues which properly arose for our decision, and that much of the argument received amounted to the extrapolation of a red herring. But whatever warrant there may be for such strictures, we simply say that we entered upon the hearing with the firm resolve that the petitioner's counsel was to be accorded every opportunity of arguing any submission which seemed to him worthy of presentation"
Save that this hearing occupied 22 days, the passage quoted is precisely apt to describe this hearing.
Although we too have acted in accordance with the resolve that the petitioner's counsel should be able to argue any submission which seemed to him worthy of presentation, it should be pointed out that such a course, however desirable fom the point of view of the petitioner, is not without cost. There is an obvious cost to the public, which pays for the Judges, court staff, and officers of the DPP, not only for the time occupied in hearing but in preparation and, so far as the Judges are concerned, in considering and deciding each point. There is the cost to the public of the time of those witnesses who are public officers, who are diverted from their ordinary duties to prepare for and to attend at the appeal. There is an emotional and sometimes financial cost to those other witnesses who are required to revisit events occurring many years ago, and to attend at court for what is sometimes lengthy cross‑examination. There is a cost to all of those who could be regarded as victims of such an offence, generally the family and friends of the deceased, who have vividly put before them memories which one would hope the passage of time would be beginning to soften.
The power of the Attorney General to refer matters to this Court pursuant to s 140 of the Sentencing Act is a very important and necessary power, directed to ensuring that justice is done in an individual case and that public confidence in the administration of the law is maintained, by providing a mechanism for dealing with those exceptional cases where, notwithstanding a regular trial and an appeal, there is nevertheless reason for concern about a verdict. It would not be desirable to circumscribe in any way the power of the Attorney General to make a reference, or the circumstances in which it was open to him to do so.
However, it must also be recognised that there are potential difficulties with the procedure. Although, as we understand it, the normal practice is for the Attorney General to seek advice as to whether or not a petition should be referred, and although it is open to those advising him to make whatever enquiries and have regard to whatever material they see fit, it nevertheless in the general run of cases is only open to the Attorney General in a limited way to test the strength of any claims which might be made in a petition. Further, because the matter is to be dealt with as on an appeal, once the reference is made it is open to the petitioner to apply to amend in a way which may have little or nothing to do with the original grounds upon which the reference came to be made. It would therefore appear to be possible, for example, for a petition to be made, and for a reference to flow from that petition, based on grounds which are limited in compass and which perhaps may fairly readily be shown to be unsustainable. Nevertheless, because making the reference gives rise to the opportunity to issue subpoenas and to obtain additional information, even a reference limited in its original scope, or perhaps lacking in substance, would give rise to the opportunity to fish through a great quantity of material to see if anything can be found to support any additional grounds.
We are not suggesting that the present appeal was embarked upon as a fishing expedition, although it appears to have developed that characteristic. It does however illustrate some of the problems which it appears to us may arise from the procedure. In the present case, the only material in the petition which eventually found its way into the grounds of appeal as they appeared in their final form before us, were allegations relating to the unlikelihood of the wrench as the murder weapon, the evidence relating to the blue paint, the material relating to Dr Patchett's allegedly fresh evidence and a polygraph (although not the particular polygraph examination ultimately relied upon by the petitioner). As will be apparent from these reasons, it is our view that of those matters, only the issues concerning the wrench raise any serious matters for consideration. A large quantity of other material contained in the petition was abandoned by the petitioner, and even a cursory inspection of the petition suggests that the decision to abandon those matters was well made.
The myriad of other issues raised by the amended notice of appeal dated 18 August 2003 were added as the appeal progressed, some of them at a very late stage. Again, as will be apparent from these reasons, only a small number of those matters appear to give rise to serious issues.
The foregoing considerations do not bear upon the task of this Court in determining the matters which were raised by the final version of the notice of appeal. However, it seemed to us desirable to record some of the broader public interest issues which might be thought to be raised by the progress of this reference. The relevant authorities might at some stage wish to consider whether there is any value in amending s 140 of the Sentencing Act. It might be possible to arrive at some procedure by which some of the disadvantage and some of the public cost which we have identified which flows from this type of procedure could be limited, without unfairness to a petitioner. For example, we note that in his letter of 22 July 2002 to the petitioner's legal adviser, the Hon Attorney General requested a notice of appeal prepared "in conformity with the matters raised by the petition". In the present state of the law, it was not open to him to confine the hearing to those issues. Because of the relatively low threshold applicable to applications to amend in such a case, this Court was obliged to permit amendments which went well beyond the petition. Some statutory power in the Attorney General to confine the grounds pursuant to s 140(1)(a), or the prescription of a statutory test for amendment, appropriate to the situation where a petitioner has already had one opportunity to appeal, may be worthy of consideration.
We should also record briefly our other final concern, which is about the way in which the closing submissions on behalf of the petitioner were made. That concern relates to the raising for the first time in closing submissions of material which could not have been anticipated as arising from either the notice of appeal or from the manner in which the appeal was conducted on behalf of the petitioner. It has two aspects.
The first is that, as is clear from these reasons, a number of aspects of the petitioner's case were concerned with non‑disclosure of material, largely by the police but as to one document apparently by counsel for the Crown at the petitioner's trial. That was always understood. However, in closing, the petitioner's counsel spoke for the first time not in terms of non‑disclosure, but of deliberate concealment of material. The flavour of the closing submission was to the effect that there had been deliberate decisions made by a number of persons not to make material available to the defence, with the intention thereby of wrongly strengthening the prosecution case and depriving the petitioner of a fair trial.
Allegations of that kind were never aired prior to closing submission, and were not put to any of the witnesses to whom it might be thought that those allegations related. There was some cross‑examination of some witnesses about their reasons for taking certain decisions – for example, for altering words of a statement – but it could not reasonably have been understood from that cross‑examination that any such allegation was contemplated. It is not necessary to determine whether there was misconduct by any person, in order to dispose of this appeal. However, we do wish to record our view that it was improper to raise that issue at the time at which it was raised.
The other issue raised for the first time in closing submission in reply we understood to be a suggestion that there might be occasion for a reasonable bystander to apprehend bias on the part of the members of the Court hearing this appeal. It was submitted that it was a "matter of concern" which counsel submitted should be "ventilated but put to one side", that at the time of trial the then Director of Public Prosecutions was a person who had subsequently been appointed to this Court, being McKechnie J. It was submitted that "in other jurisdictions ... it may have prompted the court to call in outside Judges".
Senior Counsel appeared immediately to resile from the suggestion which had been made, saying " ... we place reliance upon your Honours' ability to act with judicial impartiality". However, the suggestion of bias was of concern to us, and has been carefully considered by us. An electronic search of the transcript of the appeal has been undertaken. It contains no mention of McKechnie J by name. It contains a number of references to the "DPP" or to the "Director of Public Prosecutions". Most of those references are plainly references to the office generally, so that witnesses would refer to material being provided "to the DPP" in the sense of being delivered physically to that office, without any indication as to the person to whom material may have been delivered.
Looking to references to the Director of Public Prosecutions personally, rather than generic references to the office, there appear to be two. One is in the context of some mild criticism about a failure to comply promptly or perhaps completely with a subpoena; that subpoena was clearly directed to the present occupier of the office of DPP. The other is in evidence by Superintent Shervill that he had had discussions with the then Director of Public Prosecutions about charging the petitioner with the killing of Mrs Lawrence. As we understand it, there is nothing in the materials before us which could be understood as suggesting that there was any impropriety, or even lack of judgment, in the decision to charge the petitioner, as opposed to criticism of the way in which the prosecution was conducted.
When one looks at the statement of agreed facts, which refers to material which was not disclosed to the defence, it seems clear that most of the material which was not disclosed was material which was in the possession of the police and was not disclosed to any person at the office of Director of Public Prosecutions. The material which was delivered to the office of Director of Public Prosecutions was a comprehensive summary of facts. In the normal course of events, one would have expected the prosecutor at trial, rather than the Director of Public Prosecutions personally, to determine which of the various materials available to the prosecution should be disclosed. There is no suggestion in any of the materials in this appeal that that usual course was departed from.
The result of our consideration of those issues is that it is plain that the suggestion made during the course of closing, that it was possible that the matters raised during the course of this appeal could reflect adversely on the then Director of Public Prosecutions personally, was simply factually incorrect. It was never a question appearing to arise on the face of the grounds of appeal. Of course, in a very broad administrative sense, any falling short of the standards required of a prosecutor, or any error or omission in the conduct of a prosecution, is in one sense the "responsibility" of the person whose duty it is to supervise and guide those prosecutors. Criticisms of that kind are routinely made in criminal appeals without it being thought by any person that they are inappropriate for determination by this Court. We do not however understand the submission made on behalf of the petitioner to be concerned merely with that abstract level of responsibility.

We would conclude with the observation that, had the submission made on behalf of the petitioner had any factual foundation - that is, had it been reasonably open to suggest that there may have been a cause for concern in relation to the question of bias – Senior counsel for the petitioner would have been failing in his duty to his client and to this Court in failing to raise it prior to the hearing of the appeal, at a time which might have permitted the making of some alternative arrangement. His raising it for the first time in closing submissions in reply (even if only to immediately step back from it), was not only pointless but improper.

Appeal dismissed

It is the order of the Court that this appeal be dismissed.