Murphy v The Queen

[1990] HCATrans 81

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S2 of 1988

B e t w e e n -

LESLIE JOSEPH MURPHY

Applicant

and

THE QUEEN

Respondent

Application to vary the

order of the Court

MASON CJ

BRENNAN J

DEANE J

DAWSON J

Murphy(2)

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 APRIL 1990, ATl0.05 AM

Copyright in the High Court of Australia

Cl T 1/1/DR 1 11/4/90

MRS. WETMORE: If it please the Court, I appear for the

appellant - the applicant. (instructed by

Mark Solomon & Associates)

MR K. MASON, QC, Solicitor-General for the State of New South

Wales:  I appear with my learned friend,

MISS M. LATHAM, for the respondent. (instructed by

S.E. O~Connor, Solicitor for Public Prosecutions)

MASON CJ: Mr Wetmore.

MR WETMORE: Basically, the situation is outlined in the

affidavit of Mark Solomon filed and sworn

29 March 1990. The affidavit sets out the situation

that initially there were four appeals from the

judgment, after a trial by jury, wherein there were

convictions for murde~ taking with intent to hold

for advantage; assault and robbery; and inflicting

actual bodily harm with intent to have sexual

intercourse. Your Honours, those are outlined at

paragraph 5.

During the argument, it is my respectful

submission that an error was made and an error of

fundamentai importance. ·Anne4ed to the affidavit of

Mr Solomon are two pages, being transcript from

the argument of the learned senior eo:tm.Sel, Mr Black.

The concession takes place at page 37 of that

annexure and it is at approximately point 2

Mr Black says this:

And as to - the basic defence case about

the murder was that that was Travers' own act

on his own. Oh yes, he did not dispute that

he had taken part in the earlier incidents.

(Continued on page 3)

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Murphy(2)

MR WETMORE (continuing): The words "earlier incidents",

I submit, are somewhat ambiguous but might well
have been taken by the Court to indicate those
other three matters commencing with the abduction,
then, in the venacular, the assault and robbery,

then the assault with intent to have carnel knowledge.

At this stage, Mr Justice Deane asks of counsel:

Is the present appeal restricted to the murder - and that question seems to tail off. Mr Black responds:

Yes.

Mr Justice Deane responds:

It is, is it?

Mr Black,to complete that scenario, says:

Yes, it has to be.

Now, my submission on this is twofold. Firstly -

and it can be taken from the affidavit of Mr Solomon -

there were no instructions to abandon or relinquish

in any way those three appeals. Secondly, I submit

to this Court that that conclusion, "Yes, it has to

be" restricted to murder is on the facts of the

appeal absolutely incorrect.

The evidence from the former appeal books is

clearly this: firstly, the proposed linguist,

Mr Ricki Sharpe, analysed the statements of police and the record of interview, both, and about these

there. were three areas. The first area was upon

the arrest of Leslie Murphy. Allegedly he made

admissions in. the police vehicle as it drove to the

police station. The statements of the police

relating to those admissions, and whether or not

essentially he could have made them or could have

understood the questions respecting the sequential,

or apparently sequential, answers was analysed and

that was dealt with in the report of Mr Sharpe.

I refer to volume 2 of the application book, at page 442.

(Continued on page 4)

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Murphy(2)

MR WETMORE (continuing):  I am terribly sorry, my learned

friend advises me it is also referred to in

the most current book which has been filed by

the learned Crown, at page 619. On the third page

of the report, mid-page, there is a heading:

Analysis of Police Statements and Record of Interview

wherein Mr Sharpesays these words:

I have read the statement of Detective Waters

between Detective Raue and

dated 19 May 1986, the statement of record of interview

Leslie Murphy dated 24 February 1986.

Now these statements of Detective Waters and

Detective Heskett basically, and I might say, almost to the word, were spoken on oath in the

trial. The statements to some extent of the various

other officers who gave evidence as to the three

areas in question, that is, alleged admissions

after arrest, admissions in the record of interview

as recorded and admissions alleged on what was

called "the runaround", which is where the police

took this applicant to various scenes where the

abduction apparently took place and to where the

murder took place. All of these areas then were

dealt with by Mr Shari;e. Various other officers

simply corroborate,basically to a word, what was

said. So it is a case here, I submit, that

Mr Sharpe'sanalysis is not limited solely to the record of interview and that therefore, as a

matter of logic, it must be that all admissions

made by Leslie Murphy, either orally or orally in

a type-written form, being the record of interview,

are, for the purposes of the appeal point taken

at the hearing of this appeal, in the same position.

(Continued on page 5)

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Murphy(2)

BRENNAN J:·· But does that not leave out of account the

reference at page 36 of the transcript to the

material which tended to implicate the accused in

offences other than the murder? I am thinking of

the question put by Justice Deane, about point 7

of the page. Mr Black says:

There was no other evidence of

participation -

he is obviously speaking of the murder then, and

then there is the question about:

common ground that he had been in the

car; that after the deceased lady had

been abducted he had taken some of

the money obtained from her purse and

participated in the purchase of petrol.

MR WETMORE:  My submission is there is no evidence to

support that. I might refer the Court to the

section 405 CRIMES ACT, New South Wales, statement,

and there is no contest to this extent that

Lesley Murphy was present - - -

BRENNAN J: While these activities went on in the car?

MR WETMORE: Well, it is a matter of physical presence

as opposed to active or mental presence.

BRENNAN J: Well, that may be so, but these were applications

for special leave to appeal and what was being argued

was the focusing on the sole piece of evidence

in relation to his implication in the murder,

and the proposition was being advanced that there

was other evidence implicating him in relation to

the offences other than the murder.

MR WETMORE: Well, with respect, my short answer to that is

this: there was never at any time any contest as

to presence in the motor vehicle in the first

instance, at the point of abduction, nor was there

ever any contest of - and I say, within proximity -

presence in the paddock where the murder took

place. But there was never any evidence, nor was

there any concession made at trial or otherwise on

any instructions that there was participation, in

the full legal sense of the word.

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Murphy(2)

BRENNAN J: Well, the full legal sense consists of

presence for the purpose of encouraging,

does it not?

MR WETMORE:  Yes.

BRENNAN_ J:. Well now, if you have the evidence of these group of people involved in this exercise of abduction,what more is necessary?

MR WETMORE:  The only evidence, in my submission, that can

bind Leslie Joseph Murphy in this matter, and I

use the word "evidence" to include the

section 405 . statement, is an admission of

presence. If all of the other admissions,

including the record of interview .. which this

Court has decided was the subject-matter,, really, of
the success of the appeal that that was
questionable and ought to have had the benefit

of Mr Shar~'s testimony then, likewise, the

oral admissions would be in the same position,

with respect. Therefore, there being no

concession, at the trial level nor at the level

of the Court of Criminal Appeal that he was

involved, that he was an active participant,

that he was any more than a mere bystander, is

simply not there. Now, I appreciate_ Your Honour's

question, but my submission is that the only

evidence that Mr Black could have been referring to

would have been the very record of interview which

was challenged.

BRENNAN J: Coupled with the statement that was made by the

accused in the trial, in the absence of any denial

then of his - any objection then to

what had happened in the car.

MR WETMORE: Perhaps I should go to that because what - sorry,

I am just trying to translate to the new book -

page 628 of the current volume, it is a statement -

BRENNAN J: This is the third volume, is it?

MR WETMORE:  Yes,. it .. is.

BRENNAN J: Yes, page?

MR WETMORE:  Page 628 and it is page 1150 at the bottom of the transcript.

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Murphy(2)

MR WETMORE (continuing): Leslie Joseph Murphy, there at

the bottom of page 628, says this:

I was sitting in a front seat of a car

where I was really off my face.

As I recall, the learned trial judge took that

to mean some form of intoxication, whether drug

or alcohol induced. He:

heard a woman scream. She was pulled into

the car by John Travers. I did not even see
the girl before she was pulled into the car.

A short time later I did not hear any of the

others or anyone else talk about pulling the

girl into the car before the girl was pulled

into the car.

And I would submit that refers to any conversation

prior - any pre-concert.

I did not hit her in the car and I am sure

I did not even know her.

And I would submit that that is not the biblical

sense but rather simply know her as a person.

I did not have sex with the girl beside the car or anywhere near Reen Road.

A short time later - can I just say a short

time later I was sitting in the car. I did

not get out of that car for some time. I

remember seeing John Travers taking the girl

into the paddock.

So he is present but he is not imminently present.

When John Travers came back to the car

he was covered in blood.

John Travers had killed Mrs Cobby. I did not know that

Then he goes on at some length to describe his

arrest and it picks up again just towards the bottom

of page 634:

(Continued on page 8)

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Murphy(2)
MR WETMORE (continuing):

I would like to say that I did not know that John Travers had killed the

girl and I had a girlfriend at the time,

I was happy with her. I did not know

he would do that. I did not - I wanted

to tell the police everything I knew but

I just didn't trust them because of what

the papers said and everyone else said.

Then he goes on, in some fashion, to pledge his oath to all of that. My submission there is that this is

the only evidence, apart from the challenged admissions,
that puts him at the scene and it does truly put him

at the scene in some extent which is really - I suppose

it would be churlish of me to argue how far, but it

does not show any indication of any activity. It

does, if anything, indicate if "off my face" can be

taken to mean drunk or in a mental state of incapacity.

Then the only fault that one could say that exists is that he does not rescue, he does not attempt

to rescue.	I believe that is Your Honour's
proposition.	He is present, does he owe a duty,
should he have done something;	and my submission

is that, in the circumstances of his statement, it is not sufficiently strong that a jury could

convict him solely on what he says about his presence.

TOOHEY J:  Mr Wetmore, that may be so if one looks only at

the statement. The question asked by Mr Justice Deane

really was prefaced by the statement by counsel that

the African did not dispute that he had taken part

in the earlier incidents, not merely that he was not

present, but that he did not dispute that he had

taken part.

(Continued on page 9)

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Murphy(2)

MR WETMORE:  I understand that. My submission to that is

that that was not founded on evidence nor was

it a matter of instruction and that is as per

Mr Solomon's affidavit.

BRENNAN J:  How is it said that there were no instructions

when counsel in the midst of an argument puts

the proposition and does not recant from it?

Is a solicitor not instructing at that stage?

MR WETMORE:  The solicitor is present at that stage but

he had not received specific instructions to

abandon, I take it no further than that. But,

of course, my submission is that there are

different types of concessions that are made

pending a trial or an appeal.and it is the very

quality of the concession which is fundamental

to making a determination of whether or not it

can be done without specific instructions. To

illustrate that: if point blank one of two appeals

is abandoned, simply by counsel addressing the

court to state, "We withdraw this appeal· , we

abandon this appeal" then,I would submit,clearly

there would have to be instructions from the

client to take that step.

BRENNAN J: What is a court to do when counsel and an

instructing solicitor present in the court	say
that the appeal is withdrawn or abandoned?	Does
the court then say, "Produce the client to
testify to it"?

MR WETMORE:  No. No, I do not suggest that, Your Honour.

What I say here is that the concession, in the circumstances- and I have referred the Court to the pages ~it becomes apparent, in my submission,

that counsel simply misunderstood.

BRENNAN J: And his misunderstanding was not corrected by

his instructor?

MR WETMORE: That is apparent.

BRENNAN J: And the only evidence we have of the absence of

instructions is the instructor's affidavit?

MR WETMORE: That is correct but my submission is that

it is an affidavit that really stands as a sworn,

unchallenged document and he is simply saying,

''I had no instructions, nor did I instrucct! essentially,

"this abandonment~'

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Murphy(2)

,·,

MR WETMORE:':" I do hasten to point out that it is apparent

from the transcript that the concession was not -

although in retrospect it is - at the moment

something of great moment. It apparently was not.

It was only when the judgment of this honourable

Court was handed down that the sequelae of the

concession became abundantly clear.

MA.SON'CJ:  Why was not the point then taken? At that stage

the formal order of the court had not been taken

out. The consequence of the concession was

abundantly clear from the very terms of the Court's

order.

MR WETMORE:  I cannot speak for another in that regard; I

can only speak for myself and I will. I received

a copy of that judgment apparently some time .after

it was handed out. I also was retained to look

into the matter of the fresh trial - the new

trial for Leslie Joseph Murphy. It was then that

I personally discovered something, to put it simply,

that seemed amiss; it did not make sense. I

then reviewed the document; gave a gratuitous advice

to the instructing solicitor; recommended that
legal aid by sought and shortly after that - legal

aid had been granted on the fresh trial but not on

this matter before the Court.

I then appeared before the Honourable

Mr Justice Wood in the call order and mentioned

the fact. In the meantime, my understanding is

legal aid was being pursued. There was, I am

certain it was a matter of record in the supreme court of the call-over that there was a problem;

there was some small discussion between solicitor

Jenny Betts and myself at the call-over - - -

MA.SON CJ: But the point, Mr Wetmore, is this, that a matter

of this kind should be ventilated before the formal

order of the Gourt is taken out. Once the formal

order is taken out there are obvious jurisdictional

difficulties in the -court engaging in a rehearing

or reforming its order and one of the difficulties

you have to face is to persuade us that we have

jurisdiction in the circumstances of this case to

vary the order or to rectify it.

(Continued on page 11)

ClTl0/1/DR	10	11/4/90
Murphy(2)

MR WETMORE: If I might deal with laches first. Regrettably,

I cannot answer why there was, what is apparently - and I will take it from Your Honour's comment -
an undue delay in bringing this matter back on, save

that the retainer system through legal aid, once

I discovered it - and I cannot speak, regrettably,

for another - the wheels were put into motion

immediately and a considerable amount of reading and

work was required. It took numerous letters and

phone calls with the instructing solicitors at

legal aid who are the primary solicitors to even

get a grant of legal aid and, thereafter, I can only

say the matter was brought on as promptly as possible.

In so far as the Court's question on the finality

and the difficulty from a juridictional point of view,

my learned friend has found in his supplementary

application book certain authorities - now I believe they

a.re a hand-up, "Outline of Respondent's Submissions',

and in particular referring to the case in paragraph 6

on page 2 of STATE RAIL AUTHORITY.

MASON CJ:  I do not think we have the respondent's submissions

at this stage.

MR WETMORE:  Yes, I am sorry, I have not put that properly.

But there is some authority that the Court, with its

inherent jurisdiction, will review an order where

a grave injustice may be done.

MASON CJ: After the order has been taken out?

MR WETMORE:	I cannot say that but my submission is this, that essentially there cannot be an estoppel.
It would be - and I put this fairly strongly - somewhat
difficult to conceive of a situation where a uerson
through an error, a short error but an error that
goes right to the heart of the appellate position of a citizen, would through technical application
of any kind be deprived of righting the wrong,
and. I do not put the word "wrong" in the sense of
blameworthiness but, rather,.here is a man who, if I am correct in my submissions that there ought to have
been four appeals and if it were not for the concession that the Court would have ordered four fresh trials,
if that be the case, then I would submit that surely
it cannot be the case that because there is a time
lapse and because there has been a formality - and I appreciate the intrinsic power of the formality - but despite that, that he would not at the end of the
day be able to have that corrected.  And my submission
is, regardless of the stage of proceedings and if
the laches cannot be attributed to the applicant personally - - -

ClTll/1/LW 11 11/4/90

Murphy(2),'
MASON CJ: It is not so much a question of laches. It is a

question of the Court's jurisdiction, the power

of the Court to do something.

MR WETMORE:  Yes, I will deal with that then directly.

It would be wrong if one could be foreclosed from having a correction to an error for which he was

not responsible, not directly responsible, at the

end of the day because the bottom line of that

situation would be this: that the serving prisoner

would have to say, "Sorreone made a mistake and here

I sit serving a term of imprisonment and I maintain

my innocence, but because someone did not act

promptly I wc;1s deprived of" - and I will not call it

justice - "fairness". It would be, in my respectful

submission, a situation where this Court would have

inherent jurisdiction.

MASON CJ:	Your submissions would carry a little more weight if you were able to point out some authority which
gives some support to what you say.
MR WETMORE:	I cannot find an authority directly on the point

and it may be my stupidity - and I will put it that
way - or it may well be that my search has been

thorough and I simply cannot find a case on all fours

with this one. I cannot find a case directly that

states simpliciter what I am putting to this Court.

MASON CJ: Have you found any cases that deny what you are

putting to the Court?

MR WETMORE: 

Not in the circumstances of the particular facts

of this matter because, in my submission, this is
absolutely unique. If it were, for example, a

situation of·simply a counsel appearing before this

Court and arguing it inadequately, then I could not

be here. It is not a situation at all of saying

by way of submission to this Court, "Let us canvas

the ruling". It is put solely on the basis that there

is - and I put this without flavour and error; it is

fundamental - that if permitted to sit, will deprive

a man of certain rights that he might otherwise,

and my submission is, of course, would otherwise

surely have had.

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Murphy(2)

BRENNAN J:  Mr Wetmore, when you say there is an error, as

I understand what you have been putting, it comes

to this, does it not, that here is a solicitor

who briefs counsel to present an argument here

for special leave to appeal against four decisions

of the Court of Criminal Appeal that dismisses an

appeal against four convictions; the solicitor

attends, hears the argument put, the argument

reaches a point at which one of the Members of

the appellant Bench says, "If you are getting

special leave on this point, how does it run with

regard to these other three charges, there is
other evidence on those, is there not?", and then
the decision is taken, to say, "Well, so far as

those other three are concerned, we are leaving

this argument limited to the murder."; the

solicitor does nothing, the Court reserves its

decision; throughout the period of the reserved

decision no correction is made and the Court is not

informed of any error, as you now describe it; even

after judgment is given, no error is detected;

ultimately new counsel is briefed, new counsel says

"It is go:ing to be hard to run the argument having regard to the

concession", and solicitor then says "A mistake was

made"?. Now where is the error so far as instructions

are concerned in that?·

MR WETMORE:  If I could take Your Honour back to the point when

the concession was made in time, because if the

concession were made through a misunderstanding

and not picked up by either solicitor or counsel,

because it was erroneous, and it was - in the

affidavit the transcript will demonstrate that it

was rather sudden in the sense of time, it was not

a matter that went on in conversation to any great

length, there were very few words that are attributable
to that concession. It was quick in time. It may
well be, and I· submit that it appears to be, that
it was learned senior counsel arguing; solicitor, as

the court would have it, listening, they missed it.

It was quick.

DEANE J:	But are you not leaving out in everything you say
the forens.ic advantages of the concession on a leave application in that there was no comparison
between the murder charge and the other charges and that your client claimed that he was not present
at the time of the murder, but in relation to the
offences that took place in the car, what he said was,
"I was present in the car.  I was one of the number
who, by their weight, intimidated the girl. I did
not utter one word of protest when the people, with
whom I was in company, committed the physical acts
that constituted the offences".  I mean, that is the
effect of his statement from the dock.

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Murphy(2) (Continued'on page 13A)

:MR WETMORE: That could be taken, quite clearly, and I do

not disagree with that, with respect, but - - -

DEANE J: Well now, in those circumstances,there was a

real forensic advantage in not saying to the court

that my client who, at the trial, admitted his

presence, did not deny the part his presence played

in the intimidation; did not suggest he had uttered

one word of protest, none the less says that there

should be a new trial on those three offences. It

may well have been that it may have gone to

considerations of discretion.

(Continued on page 14)

ClT12/2/FK	13A	11/4/90
Murphy(2)

MR WETMORE: 

I appreciate what the Court says and I cannot

disagree that that could have been but my
submission j~. the punt on the forensic

advantage would so outweigh the disadvantage

of conceding, if that was the intention - of

conceding three appeals on very serious matters

which carry very heavy penalties the - - -

BRENNAN J: Conceding one ground on three appeals?

MR WETMORE:  Yes, but as the Court puts it to me and as I

understand it, it is fatal - it is fatal to the

appeal.

DEANE J: But not if counsel took the view that no jury

hearing the evidence, in this case, would have

acquitted your client of the offences in the
car when he conceded he was present and did not

suggest that he uttered one word of protest

about what was happening.

MR WETMORE:  My points to that are threefold and I make three

submissions, firstly, there is no real difference

in the aspect of presence at the paddock where he

is in the vicinity of the car, on his own statement,

at close proximity - that is strictly from the

section 405 CRIMES ACT New South Wales statement - he

admits presence there as well, whether the presence

is in close quarters in a moving vehicle where he is

off his face, as he puts it, someone else driving; he

is not doing anything and presence in the paddock - - -

DEANE J:  But he says he was off his face but.he- ~£8'> says r.e knew

what was happening.

MR WETMORE:  Oh, yes.

DAWSON J: And intoxication is a notoriously unsuccessful

defence.

MR WETMORE: Yes, I appreciate that frequently it. merely

:iar putting petrol on the fire, but my submission

here is that in both the areas, the one with the

three appeals where he is in the car and the one

on the other point of appeal where he is out
of the car, he is present and the evidence too,

of course, is not in airtight compartments.The

evidence as to the assault with intent to have carnal

knowledge, as I recall His Honour's directions in

summing up to the jury, were both in the car and

without the car, that is at the paddock after the

vehicle was stopped and, at least, some of the

occupants got out. So that there is,. again it

would be a tactical - I would seriously challenge

that that would be a· matter of good tactics.

ClT13/l/JL	14	11/4/90
Murphy(2)

The second point is that at all times, on the

evidence which we cannot here challenge and

that is simply the 405 statement, he is saying,

"I had no active participation".

(Continued on page 16)

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Murphy(2)

MR WETMORE. (continuing):  Now, I appreciate Your Honour's

point that sometimes - although a mere bystander
generally speaking is not a man of guilt unless

there are special circumstances - some form of

participation normally would be required there

are circumstances - and I agree with this - where,

of course some action to stop that which you have

set afoot would be required. For example, if -

and I analogize it to this matter and I am not suggesting in giving evidence, if he had said,

"Look let's pick up the girl, let's just rob her

purse" and if, once in the car, one of the other

accused started hitting her and ripping her clothes off then he would have, I must concede, an absolute

obligation to put a stop to it.	He would have
to interven~.	I do not challenge that.

But my submission is there is insufficient

evidence in his statement to the jury to give any

counsel comfort in strategizing at the level of

this Court a concession of those three matters in order to gain discretion. My submission is
that that would be a terribly difficult position

to take and would be shortly a long shot.

If I might direct to Mr Justice Brennan my

finality of the answer that I commenced: the fact
that counsel and solicitor missed what happened

I have expressed; then, I submit to the Court,

neither of those two after the concession was made
which the Court says ought to have been picked
up promptly, of course, the transcript of the argument

and the concession was not then available - I will

put it another way, they were not going to look

at it, apparently, to see whether they had erred

in th~ submissions. It was not on their minds,

I would sumbit. It would be equally easy for me

to say they made the mistake, the misunderstanding

was on, they left this Court and they awaited this

Court's decision. They did not immediately then,

as a matter of logi~ I would submit, suddenly go

scurrying through transcripts to say, "I wonder

if we erred".

BRENNAN J: That is not realistic, Mr Wetmore. I mean, at

the end of a case if they have got any interest
in recapping what had happened one would say to the other, "I think we've got a bit of a chance

on this point", and he would say, "Yes, but that

only runs in relation to one appeal".

C1T14/1/ND 16 11/4/90

Murphy(2)

MR WETMORE:  I cannot quarrel that is what I would be doing.

I cannot quarrel, I hope, with my own common sense,

but we do not know that, with respect.

TOOHEY J:  But not only that, Mr Wetmore. You put the matter as

if there was merely one statement, almost as if it was a statement made accidentally or without thinking, but

there is a lead up as the transcript in the bottom half

of page 36 and the top half of page 37 indicates.

There had been a discussion between a member of the

Court and counsel and about five lines from the bottom

of page 36:

Yes, he admits presence and being part

..... of the abduction.

Then a distinction is drawn between that offence and the

offence of murder and then at the top of page 37 there

is a focus on murder and then the question is asked:

Is the present appeal restricted to the

murder -

and the answer:

Yes, it has to be.

So it is part of a dialogue and a distinction earlier

drawn between the conviction of murder and at least the abduction

conviction and, by implication, the other convictions

as well. So it is really hard to see it, as it were, as

some sort of slip or statement made without thinking.

MR WETMORE:  Yes. If I might be so bold to direct Your Honour

backwards up page 36, in fact it was Your Honour there,

at point 4, that asks this:

When you put it that way, are you going so

far as to say it was based solely on the

record of interview and that there was no

other evidence?
MR BLACK:	There was no other evidence of

participation, no other admissible evidence.

The case against all these accused was on their

records of interview. As I have said, Travers

pleaded guilty and took no part in the trial.

There was no other evidence from anybody at

the scene. It was based on interviews or

confessions -

which I take to mean admissions -

to police officers by each relating to each

applicant.	None of the applicants gave evidence.
DEANE J:	Except in the case of this applicant - - -

ClTlS/1/HS	17	11/4/90
Murphy(2)

MR BLACK: Well, he made a statement.

So Mr Black, at this point, is talking about the

fact that there is no other evidence, save the statement.

Then Mr Justice Deane says:

was it not -

perhaps I should read it as it likely was said:

Except in the case of this applicant was it

not common ground that he had been in the

car; that after the deceased lady had been

abducted he had taken some of the money

obtained from her purse and participated

in the purchase of petrol with the money

that the joint enterprise had stolen

after her abduction?

Now, with the greatest of respect, there is no evidence of that, save in the record of interview which this

honourable Court, for the purpose of a retrial, has

rejected. Mr Black, however, concedes the point:

Yes, I think that is right.

Maybe I am chewing on words, "I think that is right".

It is not right, with the greatest of respect.

Mr Black continues:

We get to his statement if we go back

to that again.

I would take it by that he must have meant the

section 405 statement and referable to that

Mr Black says:

Yes, he admits presence and being part,

as Your Honour puts, of the abduction.

I take it that Mr Black was addressing Mr Justice Deane

and that is where the swords have crossed to some

extent. That is virtually a misunderstanding and with

the volume of work that was thrust on that learned

counsel one might appreciate this but, clearly, by

Mr Black saying, "as Your Honour puts, of the

abduction", relates to the abduction referred by

Mr Justice Deane a couple of sentences before in the

transcript and, unfortunately, that is not correct

on the evidence. Then Mr Justice Deane says:

Well, that is quite a bit of evidence -

referring to the stealing of the purse and the

participation in the petrol transaction, and perhaps

I should refresh Your Honour's memory. The allegation

was that after the abduction these accused went into

C1T15/2/HS	11/4/90
Murphy(2)

a petrol filling station, they stole the lady's

purse which, of course, was in the car with her,

and the allegation was that they jointly participated

in the theft of the money at that time to purchase

petrol to continue this hideous trip.

So, at that point I submit that Mr Black is in error and, of course, Mr Justice Deane, taking that concession at face value, at which it was very clearly

made, states:

Well, that is quite a bit of evidence -

Mr Black interrupts:

Certainly.

Justice Deane continues the sentence, so that it would

read:

Well, that is quite a bit of evidence when

you also get it that he was admittedly

there when she was assaulted and murdered. There again is the presence. So, with respect,

Justice Toohey, I do not see the tactical advantage

at that stage. ·

(Continued on page 20)

C1T15/3/HS	19	11/4/90
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TOOHEY J:  I was not putting it in terms of tactical

advantage. I was simply suggesting to you that

there was a context in which the statement or
the answer to Justice Deane's question, "Is

the present appeal restricted to murder?", must

be taken, that is was not just a question and

answer, as it were, in isolation.

MR WETMORE: Well, what I am really trying to do now is

back up and come into it to the point where

now we have a joinder at the very bottom of

page 36 of the transcript:

assaulted and murdered.

DAWSON J:  But the next sentence on the next page makes

it clear what the attitude was~ that counsel

was differentiating murder from the other offences.

MR WETMORE: That is Mr Black saying:

Yes.	But there, there is a question as to
where

DAWSON J: "There, is a question as to where, because that

was in the open air" and that refers to - - -

MR WETMORE:  The paddock, I would have to think the paddock,

"open_ air".

DAWSON J: Yes. It appears that he is differentiating between the

murder and the other offences in light of the

previous question.

MR WETMORE: If the Court reads it is such that the word

"there" with emphasis relates back to the last

word on page 36, "murdered".

BRENNAN J:  And that is fairly clear from the following

answers.

MR WETMORE: Let me say this , it certainly makes more sense

than anything else, r· concede that.

DAWSON J:  So counsel was continuing to distinquish between

murder and the other offences. It was not just

a momentary slip.

MR WETMORE: My _sul:mission is it was bas~d - any concessiorr, any 1~

of a strict appellate procedure on those appeals

is founded on the error of fact, and that is that

there was common ground; active participation in

the execution of the robbery. If,such a large word -

but if Mr Black had not, for whatever reason,agreed

and simply said, "No, there is no evidence that he

participated in the robbery, it is not common ground,

with the greatest of respect", l:ia.d he said that - - -

CIT16/l/CM 20 11/4/90

Murphy(2) (Continued on page 20A)

DAWSON J: May I take you up there. That first answer on

page 37 indicates that counsel is differentiating

murder from the other offences. It lends support

to the proposition that he sees that there is a

better case in relation to murder than there is

in relation to the other offences. It lends

support to the proposition that it would be

tactically advantageous to concentrate on the

murder and forget about the other offences.	Now
that last answer indicates perhaps the whole

reasoning which goes to the answers which were

in the preceding page.

(Cpntinued on page 21)

CIT16/2/CM	20A	11/4/90
Murphy(2)

MR WETMORE·:· But my submission to that and, firstly, may I

concede t~at if that were his thinking, it is

on the balance of probabilities, no doubt he would

distinguish because one was close presence and one was somewhat more remote. But I must, to complete my argument, go right back to the point where he

has conceded that there was actual participation

and that concession was wrong and then on a

foundation made of very dry sand he puts the bricks.

If he did that, if he decided that it would be advantageous to argue the murder that way he did

so on the foundation of a mistake.

DAWSON J:  The question is rather what concession he made

than the reasons for it.	The concession appears
to be clear.

MR WETMORE: Yes, the concession is ultimately very clear,

"Yes, it has to be" - those are the words - and

my sole argument here is that is not correct.

That is simply not correct.

DAWSON J:  When you say it is not correct,you would say it

was a concession without instructions, that is
what you mean.

MR WETMORE: Well, not only that, but the present appeal

which was the question does not have to be

restricted to murder.

DAWSON J: Well, let us get this quite clear. You are not

contesting that counsel made the concession he is

now said to have made?

MR WETMORE:  I cannot -

DAWSON J: The question is merely whether he had instructions

to make it or not.

MR WETMORE:  - - - and the reason I cannot is because, in

my efforts to determine whether or not there is

any recall, I do not have an affidavit here. So -

DAWSON J:: And, therefore, the Court could only come to the

conclusion that that was the concession that was

made.

MR WETMORE:  I cannot cavil that courts must rely on counsel

and counsel's concessions for the most part.

otherwise justice just could not get done. So, I

agree quite readily. I do not shrug that.

DAWSON J: And is there not authority for the proposition that

a party is bound by the concessions made by his

counsel?

ClT17/l/DR	21	11/4/90
Murphy(2)

MR WETMORE:  That is the very heart of this appeal, with

respect, and my submission is -

DAWSON J:  Is there not authority for that proposition?

MR WETMORE:  My submission is, not on one like this. You

just do not give the whole thing away and that was

just what was done in those several little words;

the whole thing was given away and it was only,

in my submission, and it is more consistent with

logic than not - - -

DAWSON J:  But it was not, you know, because certainly the

question of conviction for murder was not given

away and ultimately counsel was successful on that

point.

(Continued on page 23)

ClT17/2/DR	22	11/4/90
Murphy(2)

MR WETMORE:	Yes, I appreciate that.
DAWSON J:	So it certainly was not given away, the whole

thing.

MR WETMORE:  With respect, the three that are now the subject-

matter of this hearing were and they were given

away in a block after counsel agreed with the

proposition that, with the greatest of respect,

he should not have agreed with and had he not agreed

with it and had he known clearly in his mind, "This
man did not participate save for presence in that
robbery, in those events, in the motor vehicle",

then he could not, with respect, have made that

concession whether it be to assist one portion
of the case or not, whether he felt a weakness,

he could not have felt, with the greatest of respect,

any weaker about one portion of the case than the

other. And I am not playing a syntax game.

DAWSON J:  He could and did make the concession and now the

only question is what is the effect of that?

MR WETMORE:  The effect of the concession, as the matter

develops, is that this Court granted leave and then

restricted its judgment to the one remaining matter

under appeal. And, of course, the judgment was

handed down somewhat later so that, again, the

error - and I do not use that word with any intoncition

than misunderstanding - did not become apparent

until some time later and if it were a situation

where it was missed - - -

DAWSON J:  When you say "misunderstanding" there was no

misunderstanding on the part of the Court, you

have already conceded that.

MR WETMORE:  I concede that. I can do nothing else. It

is all abundantly clear.

DAWSON J:  One cannot say that there was ahy, misunderstand i:--,:!.

on the part of what counsel did because he did

it quite clearly.

MR WETMORE:  Yes, he conceded, firstly, a certain participation

then he said, "Yes," - - -

DAWSON J: It is not a question of misunderstanding, it hoils

down simply to a question of lack of instructions.

MR WETMORE:	On such a fundamental point, it does that.
DAWSON J:	Yes.

ClT18/1/ND	23	11/4/90
Murphy(2)

MR WETMORE (continuing): It does that because it is, at the

end of the day, that is tantamount to withdrawing.

DAWSON J: And if I may put it even more narrowly, lack of

instructions from the instructing solicitor.

MR WETMORE:  Yes, and I cannot think of any other way

in which counsel could take instructions so I cannot

mention client in that, but, obviously, the client

would have to be consulted by the solicitor before

such a dramatic step could be taken. And my submission

on that is this, that although this Court must be able

to take it that when a concession is made it is

properly made,unless there is something that is quite anomalous about the circumstances, such as the client

jumping up and down in the back of the court, but with the apparency of an authorized concession, this Court,

I cannot think, would have any reason to do anything

but to accept it. ·

But if it turns out that the concession ought not to have been made, that it is fundamentally wrong to

have made it, then is there not a grave injustice

through no fault of the prisoner, and is that not

something that ought to be corrected because my

submission is, inasmuch as there is no res ipsa

loquitur in a criminal case, generally speaking there

is no estoppel either in a criminal case. You cannot,

with the greatest of respect, estop. someone from

asserting something has gone wrong. What Leslie Joseph

Murphy might well say is, "Look, I was not there; I didn't
do anything to instruct this; something has gone

terribly wrong" - and not in a wingeing way but in a

rather angry way - "this is not my fault. I didn't-

do it and although, for whatever reason, it was done

it was clearly done"- the concession - "it ought not

to have been done'·'.

DEANE J: Mr Wetmore, but you have to face up to the fact that on

his own statement he was present with his brothers and

acquaintances in a car where these offences were

committed by some members of the group of which he was

onei that he does not suggest he protested; that he

does not suggest he could have got out of the car;

that he does not deny that the car pulled up for

petrol; that he stayed in the car obviously of his

own volition. He does not suggest he did anything at

all to dissociate himself from what happened.

ClT19/l/LW	24	11/4/90
Murphy(2)

DEANE J (continuing): Now, in those circumstances it just

seems to me inconceivable that a properly

instructed jury would acquit him.

MR WETMORE: Well, my submission is that firstly, the fact

of presence, during the acts of others, comes

from his own admission in the 405 statement,but

in the same statement he states he was"off his face",

there is, albeit, no denial, or direct denial "I

did not" - he does make certain denials: "I did not

know her, I did not rape her", he says a few things.

Of course, the Court might well consider aftpr consideration of the initial appeal he is not exactly articulate, but apart from that_· I submit ~hat he

does not have to prove anything,just the basic

common law - he does not have to prove anything.

He denies active participation,coupled with "he is

off his face", in my submission, with the greatest

of respect is, a jury might quite properly acquit

him in those circumstances if that is all thethe

evidence that there is.

BRENNAN J:  Mr Whitmore, however it might be put, it seems

tome that if afterthat exchange that we have been

looking at, at pages 36 and 37 of the transcript,

the Courthad adjourned; senior counsel, junior

counsel and solicitor had gone outside and solicitor

had said, "Go back in there and withdraw that

concession because your argument applies just as

much to these three other charges as it does to

the murder". I would have thought that it would be

more likely than not that counsel would have said,

"Do not be silly, if I do that we will never get

special leave in any of them:and so I will retain the concession that has been made in order to get special leave in the murder".

MR WETMORE:  I hear what the Court says·. I personally think

this - what I think personally does not really matter.

I cannot ;.. and I use that word. very advisedly, I

cannot say by affidavit what counsel might have said

or whether even counsel became aware of anything

until such time that he ;,yas approached of late.

(Continued on page 26)

ClT20/l/JL	25	11/4/90
Murphy(2)

MR WETMORE (continuing):  My submission is that it is a

case here where there was no awareness. There was a misunderstanding. This is a case where,

regrettably, there is a memory problem which

prohibits me from filing an affidavit to assist the

Court.

DAWSON J: You keep saying there is a misunderstanding.

There was no misunderstanding.

MR WETMORE: Well, with respect, the misunderstanding to which

I - - -

DAWSON J: What you say is there were no instructions.

MR WETMORE:  The misunderstanding to which I refer comes out of

page 36, about the common ground.

DAWSON J: Well, there was no misunderstanding about there having

been given a concession?

MR WETMORE:  No. The words are there, they speak for themselves

too loudly, too clearly, for me to put otherwise, and

I cannot produce evidence to this Court otherwise, nor

may I say - but of course the onus is on me to offset

logic, but I will say it for completeness - nor can I

put evidence to this Court that it was done with

meaning. But, of course, I appreciate my position on

that matter; I am blowing against the wind a bit. But

what I am saying is, I am regrettably not in a position

to be able to have evidence to this Court to say, "That

was my mistake". I do not have that. I do not have

memory to put into affidavit form from anyone on that

point.

DAWSON J: Or, if I may say so, for completeness, that "I had

no instructions"?

MR WETMORE:  Yes, I have that.

DAWSON J:  So you have the solicitor saying he gave no

instructions - - -

MR WETMORE: That is correct.

DAWSON J:  - - - but you do not have any evidence from counsel

that he had no instructions.

MR WETMORE:  No I do not. I do not have the other end of the

solicitor, if the Court will,	from the barrister.
No I do not.

ClT21/l/FK	26	11/4/90
Murphy(2)

MR WETMORE' (continuing):  So my wrap-up submission, unless

the Court has further questions of me, is simply

this: that in fact and at law, my submission is,

had this concession, and I will put it at my

worst, had this concession not been so clearly

made, then I submit this Court would, in all

likelihood, in view of the state of the evidence,

have ordered four new trials rather than one.

Of course this Court would not direct its mind

any further after that concession to the other three

matters, but, for all intents and purposes, as

arguments of law, all of these matters fall basically

into one basket, and it is Ricki Sharpe who will

either sway a fresh jury or not. There is, as a

result of this concession, a most remarkable result

and the result, in my submission,is clearly that the
applicant here is deprived of three trials and I

appreciate the counterbalance that the Court has

put to me, of perhaps getting one instead of none,

but I put it this way. And finally that, whatever

happened, however it came about, it should not have

been done. Looking at it,as it is so oft easy to

do,with afterthought, with hindsight and from above,

it should never have occurred and because it did

occur,and it would be to deprive the citizen prisoner

of his privilege of a new trial not to rectify

it, that no technicality should stand in the way of

this Court's inherent jurisdiction to right an

ultimate wrong. Those are my respectful submissions.

MASON CJ:  Yes. Thank you,Mr Wetmore. Now Mr Solicitor, you

have heard what has transpired in the exchanges

between the Bench and Mr Wetmore. Is there any

other aspect of this case that you would wish to

direct our attention to?

MR MASON:  I can do it in three minutes, Your Honours. · I have

got some written submissions and just a couple of

very supplementary corrnnents, if I can just put them.·· ·

MASON CJ: Certainly.	(Continued on page 28)
CIT22/l/CM	27	11/4/90
Murphy(2)
MASON CJ: . Yes, Mr Solicitor.

MR MASON:  Your Honours, GAMSER's case referred to at the

top of page 2 was one in which the application was

based upon facts occurring subsequently. Nevertheless

the case - the principle which the Court appeared

to derive was not limited to such a situation.

In BILLINGTON's case, the critical passage

is at 628.	In CARUSO's case, the point was obiter
but discussed at 477 to 479 and 487.	In the CODELFA

case, referred to in paragraph 6, the application

was made before the orders were passed and entered.

There is nothing on the face of the report of the

WENTWORTH case to indicate whether that was the

situation there. The matter failed on its merits

in any event and the time lapse between judgment

and hearing of the application to vacate· was a

matter of just two months. What, one just does

not know but my submission is it is more than likely

that the application was made before the judgment

was entered up.

We did, as a matter of precaution, issue 78B

notices with reference to the last sentence on

paragraph 6. Your Honour, appropos paragraph 9

and the question from Your Honour Justice Dawson

about counsel's authority, just two references:

Halsbury, fourth edition, volume 3 under the title

Barristers, paragraph 1182, and HARVEY V PHILLIPS in this Court, (1956) 95 CLR 235, at 243.

As to paragraph 11, may we just add two

additional comments: several of the admissions

tendered against this applicant that are referred

to here were admissions in his own words so, in

contradistinction to the record of interview, it

was not a case where he could say, "Well, I didn't

understand the words that were being put to me

by leading questions by the police." Here, if

the admissions were accepted by the jury, and they (Continued on page 29)

were admitted by the judge, they were his own words.

C1T23/1/ND	28	11/4/90
Murphy(2)

MR MASON (continuing):  As to the second-last paragraph in 11,

the admissions to police officers Raue and Heskitt

itm1.1ediately before the record of interview,

Mr Sharpe did not address those in his written

report. The only remaining thing is to inform

Your Honours that the trial date for the murder

trial is 9 July of this year, in case that has any
bearing upon what Your Honours may do with reference

to this application.

MASON CJ:  Thank you, Mr Solicitor. Do you wish to say

anything in reply, Mr Wetmore?

MR WETMORE:	No, I do not, thank you.
MASON CJ:	The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 11.23 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.47 AM:

MASON CJ: This is an application for enlarging an order, since perfected, made by this Court on 30 May 1989 quashing

the applicant's conviction of murder and ordering that

there be a new trial. The applicant now seeks to have

his convictions for the offences of taking with intent

to hold for advantage, assault and robbery, immediately

after such robbery using corporal violence wounding

the victim, and inflicting actual bodily harm with
intent to have sexual intercourse, also quashed
with the result that there would also be new trials

for those offences.

The order for a new trial on the charge of

murder was made after the Court had reserved its

judgment on an application made by the applicant for

special leave to appeal from a judgment of the New

South Wales Court of Criminal Appeal dismissing appeals

from convictions in respect of the four offences already

mentioned. When this Court delivered judgment it

granted the application for special leave, allowed the

appeal in part and quashed the conviction for murder

only. Critical to the order then made by the Court,

limiting the quashing of the convictions to that of

murder, were certain answers given by counsel then

appearing for the applicant during the course of the

hearing of the application for special leave. The

answers were given in response to questions put by Justice Deane. The relevant questions and answers

are as follows:

ClT25/l/DR	29	11/4/90
Murphy(2)

DEANE J:  - - - was it not common ground

that he had been in the car; that after the

deceased lady had been abducted he had

taken some of the money obtained from her

purse and participated in the purchase of
petrol with the money that the joint

enterprise had stolen after her abduction?

MR BLACK: Yes, I think that is right. We

get to his statement if we go back to that

again. Yes, he admits presence and being

part, as Your Honour puts, of the abduction.

DEANE J: Well, that is quite a bit of

evidence -

MR BLACK: Certainly.

DEANE J:  - - - when you also get it that

he was admittedly there when she was

assaulted and murdered.

MR BLACK:  Yes. But there, there is a question

as to where, because that was in the open air.

DEANE J: Yes.

MR BLACK: And as to the basic defence case

about the murder was that that was Travers'

own act on his own. Oh yes, he did not dispute

that he had taken part in the earlier incidents.

DEANE J: Is the present appeal restricted

to the murder -

MR BLACK:  Yes.

DEANE J: It is, is it?

MR BLACK:  Yes, it has to be.

Counsel for the applicant now submits that the

applicant gave no instructions for the abandonment

of the appeals against the three residual convictions and that the concessions made by then counsel for the applicant were incorrectly made because the applicant did not, himself, participate in the events which were alleged to give rise to the three offences. In these circumstances, it is submitted that the Court should

rectify the order made on 30 May 1989 on the ground

of error.

Even if we assume that the Court has jurisdiction

to vacate or vary part of the order made on

30 May 1989, and that may be thought to be a very

large assumption, we are not persuaded that a cise

has been made out by the applicant. It was not

C1T25/2/DR	30	11/4/90
Murphy(2)

at any time disputed that the applicant was

physically present in the car during the events
which gave rise to the three charges in question.

Indeed, his statement from the dock confirmed his physical presence at that time. Moreover, it is

not suggested that the applicant protested at what
occurred, or sought to dissociate or distance
himself from what occurred, or that his continued
presence in the car was other than voluntary. In

these circumstances, we are not persuaded that

the concessions made by counsel for the applicant

led to any miscarriage of justice.	The application
is therefore dismissed.

AT 11.52 AM THE MATTER WAS ADJOURNED SINE DIE

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