P. Mickelberg v The Queen; R. Mickelberg v The Queen

[1988] HCATrans 285

~

• ~

.

• ~

IN THE HIGH COURT OF AUSTRALIA,

Office of the Registry

Perth No P27 of 1987

B e t w e e n -

PETER MICK.ELBERG

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Perth No P28 of 1987

B e t w e e n -

RAYMOND MICK.ELBERG

Applicant

and

THE QUEEN

Respondent

Applications for special

leave to appeal

Mickel berg

MASON CJ

BRENNAN J

DEANE J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 24 NOVEMBER 1988, AT i0.2T AM

(Continued from 23/11/88)

Copyright in the High Court of Australia

C2T 2/ 1 /SDL 312 24/11/88

MASON CJ:  Yes, Mr McKechnie?

MR McKECHNIE: If Youi Honours please, I was dealing yesterday

evening with the submissions on Peter Mickelberg
and .our point 7 on the outline. There is not

much more I need to say about these grounds

other than this: Mr Cherry freely conceded

before Their Honours that although he had been

aware that the police artist had used a pen

rephotofit to preliminarily describe the features

of the suspect, whoever it was, he had never

compared the sketch with a pen rephotof it to

see whether those features were also present

in the sketch. He did that under cross-examination.

Ultimately he pointed to a number of photos

which he said could have b#en used as the basis

of the sketch and, in the end, it was conceied

by counsel for the applicant in final address

that he wished to amend from passport to any

photograph - never being any evidence as to where

the police would have got the photograph from.

Your Honours, the importance of this submission,

in our respectful view, is that it highlights

the lengths which were being gone to by the

applicant to prove, first of all, that the police

artist was fabricating evidence and, inferentially,

that the whole of the police case was fabricated

including the fingerprint. I. will not detain

Your Honours with the point other than to refer

to one portion. During the cross-examination,

which I say advisedly, Mr Searle for the applicant

called the police artist, Pierce, but thereafter

really cross-examined - putting it to him, at

times, that he was lying. A number of sketches

which had been produced by the artist in other

cases were produced and one of them was this
sketch which is exhibit 144 at the appeal -

if I could hand this to Your Honours -·where

it says:

Deprivation of liberty; attempted rape

Toodray - Throwing of knife at Narembeen.

(Continued on page 314)

C2T2/2/SDE.	313	MR McKECHNIE, QC	24/11/88
Mickelberg

MR McKECHNIE (continuing):  That sketch was put to the police

artist and the allegation was made to him that he had

in fact use~.photographs to trace that sketch

and, indeed, that it seemed to be his practice to
use photographs to trace his sketch, a matter denied.

Brought into court under subpoena and tendered was a photograph of one Gregory David Purcell, which was exhibit 147, this photograph, and it was suggested

that perhaps the artist had used that photograph to

sketch - Purcell, as can be seen, had been known to

the police but, in fact, as the Crown led evidence,
the actual offender for which the sketch had been

prepared had never been, and I think to this day

has not been apprehended, but in order to lend

support to the allegation that the police artist

had fabricated the sketch in this case, and that he

was a person who fabricated sketches, this exhibit

was put to the artist. It is exhibit number 148.

What has been done is that there is another

photograph, never been proved but one assumes it is

Purcell. It is certainly not the police

photograph which I showed Your Honours, but it is

another photograph . It has been blown up.

Your Honours will notice the small sketch which is

consistent with the size of what might be described

"mug shots" and the police artist's evidence was that
sometimes he used the pen rephotofit for suspects

and when he did the sketches became about that

size, such as exhibit 21 here. At other times he

would show people mug shots and say, "Are these

features similar?", and when he did · the photos would be

of that size.

But what was done was to take another photograph - nobody ever knows how or when this was taken - and then

to take a photograph of the sketch, which I have shown

Your Honours, and then blow up the photograph of the

sketch, and as Your Honours will see,-· al though the

validity of the exercise might be questioned on many

many grounds including, if it was a tracing or

exhibited features of tracing why not have it at

the same size as the sketch, but even then, as

Your Honours will see from its cut, it cannot fit

together and has to be put in in four or five

different pieces. There is not great significance

about this, other than to give Your Honours the flavour

of the nature of the appeal and the allegations that

were being made.

Finally, all that need be said about Cherry

and Proven's evidence is that the court did not accept

it. The references I have given Your Honours and

will not take Your Honours to are all in volume XIII

and they are outlined in point 9.

C2T3/l/HS	314	MR McKECHNIE, QC	24/11/88
Mickel berg

MR McKECHNIE (continuing): Their Honours found the evidence

quite unconvincing and implausible. And there is the

Crown evidence in two forms. First of all, and I do

not need to take Your Honours again to it, the
reference is there, the evidence of Mr Henry who was

the first person who had taken part in the sketch gave

evidence again at the appeal that indeed he was there

and while he was there the police offi~er never used a

tracing, and that the finished sketch and the one that he

identified at trial as exhibit 21 and the one that

appeared in the paper the day after was indeed the

sketch which he had participated in and the evidence from

the archival people, I say it that way, because there

were a number of them to put all the documents together,

that the photograph of Peter Mickelberg which had been

said by Proven, at least, to have been used as a

tracing, had at all times been in the archives.

Raymond Mickelberg's photograph had been released in

July of 1982, or his passport application, in order for handwriting samples to be obtained but there had been

no application for Peter Mickelberg's photograph, I think,

until 1985. And certainly, I do not think that was the

police, that was not the police; the first was when it was

released under the FREEDOM OF INFORMATION ACT.

Could I, before moving to point 11, Your Honours, on the question of conspiracy answer Your Honour

Justice Brennan's question yesterday about the material

that was supplied to Mr Olsen and the evidence can be

found, I will not take Your Honour to it, but it is in

Mr Olsen's evidence when he was examined by Mr Searle

for the applicant, Peter Mickelberg, who called him .. It is

at volume VIII at lines 1980A and B, at 1982D and E,

1983A, 1985C and at 1986A and B. And those are the

only references we could find, although it appears that

a por t·i on of his cross-examination does not appear to

have been reproduced in the volumes or supplementary

volumes. In short, he was saying that he had better

quality photographs of the same material which he had

formed his affidavit on and in court he relied extensively

for illustration on exhibit 211 which had been tendered

through Mr Bonebrake and which I referred Your Honours to

yesterday in another connection.

(Continued on page 316)

C2T4/l/SR	315	MR McKECHNIE, QC 24/11/88
Mickelberg

MR McKECHNIE (continuing):  I turn now to deal with the

general grounds raised in respect of conspiracy.

DARBY's case was before the Court of Criminal

Appeal at the time of the first appeal by

Peter Mickelberg against conviction. The

Court heard argument at the same time - it was a joint appeal - as it considered

Brian Mickelberg and published it reasons on

the same day. In those, the majorit½ by

different routes, came to the view that the

appeal against Brian Mickelberg should be

quashed.

It was at that time, and within that

judgment of Peter Mickelberg, that the passage

which I quoted to Your Honours in Perth was

made that he never appealed against his conviction

for conspiracy. It was conceded that he was

convicted and that there was ample evidence of

that.

BRENNAN J:	When you say it was conceded, by whom?
MR McKECHNIE:	Can I take Your Honour to the report?
BRENNAN J:	By Peter personally, was it?
MR McKECHNIE:	By his counsel, Your Honour, in the report,

which I think should be with Your Honours, if

I could refer to the case of PETER MICKELBERG V REG,

judgment delivered on 4 November 1983. It was

unreported, that of Brian Mickelberg was reported.

That passage is repeated in the judgment of

Justice Wallace in the matter now under application.

The passage is at page 3, Your Honours.	The
Chief Justice said:

In deciding this appeal it is important

to appreciate that the appellant was

convicted of the conspiracy as charged

and of the commission of each of the

offences which were the offences agreed by

the conspiracy to be committed. There was

ample evidence to support those convictions

and they are not challenged on appeal. And

it was, in the course of the argument

addressed to us on the hearing of this appeal,

conceded and in my opinion rightly conceded

that there was evidence upon wich the jury

could conclude, and I think safely and
beyond reasonble doubt conclude, that this

appellant entered into the conspiracy prior
to 7th April 1982, and hence prior to the
date of the first count of breaking and
entering and the first count of arson.

That is a passage which is repeated in the judgment

of Justice Wallace, Your Honours.

C2T5/ 1/ JM 316 MR HcKECBNIE, QC 24/11/88

Mickel berg

BRENNAN J:  We were informed that Peter Mickelberg conducted

this appeal in person. Is that right?

MR McKECHNIE:  No, Your Honour. I am sorry if I confused

Your Honour. He had two appeals in 1983 and I

was going to take Your Honour to the second one

a little later.

(Continued on page 318)

C2T5/ 2/ JM 317 MR McKECHNIE, QC 24/11/88

Mickel berg

MR McKECHNIE (continuing):  The first appeal was heard at

the same time of Brian Mickelberg's appeal and

he was at that time represented by counsel who

had been his counsel at trial, Mr Singleton, and

that was an appeal only against his conviction

for the breaking and enterings and arsons. He

subsequently appealed, in person, to the Court
of Criminal Appeal and that appeal was heard and

disposed of in February or March - I will take

Your Honours to the reference later - and that

was appeal in person against all convictions.

BRENNAN J: And this judgment that you have just been

referring us to was on the first appeal.

MR McKECHNIE:  Yes, Your Honour.

BRENNAN J: Well, obviously there was no concession on

a second appeal, I take it.

MR McCECHNIE:  No. I will take Your Honour to the second

appeal in due course but that first appeal, there

was an application for special leave to this Court

in respect of the convictions which was abandoned

and there was an application which came before
this Court on special leave in respect of sentence
only. Perhaps I should take Your Honour to the

second matter and clear it up now, rather than leave

it hanging. Your Honours, we made copies available of

the decision delivered on 2 April 1984. It was

really an application for extension of time within
which to appeal, Your Honours, although it would

have run into fundamental problems in view of the

earlier appeal in respect of some of the convictions.

He had not, of course, appealed against some others

and the Court looked at, at page 2 - it is the

first page of the judgment - the merit of the appeal,

and His Honour quoted the passage which I have

quoted to Your Honours, and Their Honours said:

In my opinion it is not open to him to have

another day in court for that purpose. There

must be an end to litigation. Those appeals

should therefore be dismissed -

And then dealt with questions of fresh evidence,
some of which were raised again in the matter before

Your Honours, and, finally, a list of allegations

against the Crown prosecutor in the trial. It

is not weighty and I do not place really any great

reliance one way or the other on it, other than

to draw Your Honours' attention to it as part of the record that was before the Court of Criminal

Appeal.

C2T6/l/AC	318	MR McKECHNIE, QC 24/11/88.
Mickel berg

MR McKECHNIE (continuing):  It was not, of course, just

a concession by counsel at the appeal in relation to the conspiracy. There was no challenge by way

of appeal to the conspiracy conviction.

Your Honours, it was really never in doubt, as

the trial developed and the manner in which the trial

was argued and put, that the mint was swindled. The

question was always who had done it and, again - not
that these are matters of concession or admission but

there was no real issue that it was done by more than

a number of people and when I have completed my
submissions, Your Honour, in answer partly to

Your Honour's question yesterday, I will give

Your Honours an overview of the case at trial to

develop that.

We would simply make the point that there was no motion to quash the indictment or application

for separate trials made at trial and the indictment,

we would say, is legal and necessary to reflect the

true criminality. We refer to WEAVER's case and

JONES' case but they do no more than state a common

principle. Perhaps I should just remind Your Honours

commission of conspiracy to corrnnit

of section 412 of the CRIMINAL CODE which - the offences for the

a crime in another chapter but in chapter XL

"Obtaining Property by False Pretences: Cheating"

after the provisions in relation to false pretences

and cheating, conspiracy to defraud:

Any person who conspires with another by

deceit or any fraudulent means to affect
the market price of anything publicly sold,
or to defraud the public, or any person,

whether a particular person or not, or to

extort any property from any person·, is

guilty of a crime, and is liable to

imprisonment with hard labour for seven

years.

We would suggest that it is within the

CRIMINAL CODE not a conspiracy to commit a crime

as was, for instance, the case in HOAR but a

conspiracy of, really, a substantive offence and

we would see, and never argued to the contrary and

do not see the Court of Criminal Appeal as laying

down any new principles in relation to conspiracy

and we do not see the effect, as DARBY's case is
to always affirm the conviction of one conspirator
following the acquittal of another. It always, of

course, depends on the circumstances of the case

and that is, as far we see, DARBY going and, more

particularly that, in our submission, is the way that

the Court of Criminal Appeal saw the matter and, in

the circumstances of this case, their view was that

C2T7/l/SH	319	MR	McKECHNIE,QC	24/11/88	a
Mickel berg

the conspiracy count was there was evidence in

respect of it and that he was properly convicted.

I do not see it as raising complicated matters of

law in relation to conspiracy but merely an

application of the principles that have been laid

down by this Court to the particular circumstances

of the case.

(Continued on page 321)

C2T7/2/SH	320	MR McKECHNIE, QC	24/11/88
Mickel berg

MR McKECHNIE (continuing):  Your Honours, if I might move

on to the question of handwriting, it is perhaps

necessary, in view of the submissions which have
been made which are not the grounds of appeal before

this Court and largely have never been argued by

any person before in relation to this matter, the

original grounds were pleaded in relation to

handwriting as the negligence of Mr Cannon in

failing to do certain things. The grounds were

amended, the reference was granted, the case was

referred to the Court of Appeal without any
question of fresh evidence but on the morning of

the appeal fresh grounds in relation to handwriting

were added.

They can be found because they are not repeated in the books but in the judgment of

Justice Olney at volume XIII. The ground,

Your Honours, appears at page 3067, in paragraph 10.

Paragraph 10 commences:

There is new evidence which establishes that

there has been a miscarriage of justice -

There then is set out a series of particulars,
the Hancock tape which I have referred to, allegations

about Cannon and Arpad which I would return to,

allegations of conflict of interest with

Mr Cannon which did not seem to have been argued

before Your Honours and I will not in particular

deal with allegations of fresh evidence and then:

(e) Evidence that Exhibit 20, commonly known
as the "Talbot Note" tendered through

Mr and Mrs Allen purportedly as a document

written by a person who allegedly bought a

1965 white Falcon for $400.00 on the 25 May
1982 could not be proved beyond reasonable

doubt to have been written by Pet~r Mickelberg.

This evidence is in the form of an affidavit

sworn by Geoffrey W. Roberts on 19 August

1987.

(Continuing on page 322)

C2T8/l/ND	321	MR McKECHNIE, QC 24/11/88
Mickel berg

MR McKECHNIE (continuing): That was the ground before

Their Honours, a true, as it were, fresh evidence ground,

not as it is n·ow put, questions about warnings to the

jury as to the dangers of handwriting evidence and

the like,and in this Court in the application book
of Peter Mickelberg, the grounds to this Court are set
out and the only reference that we can find to the
question of handwriting is at page 1 of the application

book in the draft notice of appeal to:

further take notice that the grounds of

Appeal are as follows:-

(1) That their Honours were in error in

ruling that the evidence of the Appellant's

experts on the fingerprint evidence, the

photofit evidence and the handwriting evidence

was not capable of belief and was not likely

to be believed by reasonable men.

Paragraph (2) really follows from that. And we really

cannot find any other material reference in the grounds

of appeal. The points which my learned friend in his

submission makes about the special nature and the reasons

why the Court could find special leave are not reflected

in relation to handwriting or in other areas as well to

which I will turn in the affidavit which supported

the application for special leave. But to turn to the

evidence, Your Honour. First of all, section 31 of

the EVIDENCE ACT,· to which Your Honours will be familiar

because it is repeated in, !'.·think, all States in

different sections. But section 31 of the EVIDENCE ACT

of Western Australia provides that:

Comparison of a disputed hand-writing

with any writing proved to the satisfaction of
the Judge to be genuine may be made by witnesses,
and such writing and the testimony of witnesses
respecting the same may be submitted to the

Court and jury as evidence of the genuineness or
otherwise of the writing in dispute.

It really cleared up a common law debate a century ago
and is common.	Now perhaps I should first of all say,

in relation to the evidence, that it is neither fresh

nor new and this is point 21, if I can deal with that

first. In Mr Bardwell's evidence in volume XIII in

his affidavit at page 2974, really he said:

While in Perth I examined various documents

for handwriting but I am unable now to recall

any details of my examination or of the nature

of those documents. I have no written record
of my handwriting report to Mr Ron Canncn but

I do recall that the outcome did not assist

the accused men and I was not called as a

witness at trial.

C2T9/l/SR	322	MR McKECHNIE, QC 24/11/88
Mickelberg

The second reference which I have there, Your Honours, is just a reference to a finding, I think, of the

judge -no, I do not know the second reference there.

And the second and more important evidence, perhaps,

is that of Mr Gregory which is to be found in the

supplementary volume VI at page 3791. The calling

of Gregory had been the subject of earlier debate and

the Crown indicated that his evidence was confined
to the fact that he was a document examiner and indeed

his considerable experience is set out in the

connnencement of his evidence and the fact of his

examination and that he was not called at the trial.

He was cross-examined, and indeed his notes were tendered, and at page 1996 he was cross-examined by Mr Searle

for the applicant, Peter Mickelberg at line B: As a result of that analysis, you concluded

that the writing in exhibit 20 was written

by Peter Mickelberg?---As a result of a

complete examination of all the documents

pertaining to Peter Mickelberg, yes.

(Continued on page 324)

C2T9/2/SR	32 3	MR McKECHNIE, QC	24/11/88
Mickelberg

MR McK.ECHNIE (continuing):  So the evidence of Gregory

who was very experienced but, relevantly, before

the trial W~$ that, and more particularly it could hardly be said, in our respectful submission, that

there is fresh evidence on handwriting when it had

been examined by two persons on behalf of the defence

prior to trial - and I will, of course, take

Your Honours to Mr Roberts' evidence -but to put

Mr Roberts' evidence in setting perhaps if I could

refer to what Mr Mccusker said at page 61 of the

transcript before Your Honours about the evidence

of handwriting at court. He said:

The evidence which was given at the trial

in purported identification by handwriting

was that of a police officer who had had

with him the Talbot note. He had a number

of samples which were produced in court of

printed handwriting acknowledged to be

Peter's. From those samples of handwriting,

he selected and cut out letters, printed

letters, with which he then reconstructed

the Talbot note, the words in the Talbot

note. He admitted in evidence under

cross-examination at the trial that the

method of reconstruction was by selecting
the letters which generally speaking best
matched up with the printed letters of the

Talbot note and that means of identification

was put before the jury on a chart .....
showing the Talbot note alongside the

mocked-up version of the Talbot note

derived by the selective process.

He returns to the theme at page 68 when his submission

to Your Honours in terms of what he sees the special leave point is. although as I say not raised before,

is that:

there should be a clear reminder to a jury
who may not be conscious-or even know of

this that in the case ot iden.t,i,fication of

this kind the possibility exists that quite

~ number of people may print in a similar manner; that where there is such a small sample the dangers of wrong identification

are magnifi.ed and that Detective Sergeant

Billing, by admittedly going through a

selective process to match up, has

effectively destroyed the value of any such
identification evidence or, if it goes to

the jury perhaps one cannot say that, but

almost destroyed it. So it would be highly

dangerous for the jury to rely upon that as

a means of identification.

C2Tl0/l/HS	324	MR McKECHNIE, QC	24/11/8
Mickelberg

That is the way that my friend put the argument,

Your Honours, but it is not the evidence at the

trial below, or the manner in which His Honour

the trial judge left it to the jury. The evidenc2

at the trial below was, first of all, that Billing

had available to him all the documents and that

evidence appears at volume I at page 153 - I will

not take Your Honours to the actual passage - but
he formed his opinion not from the selection process
but from all the documents.

Further, the handwriting sample board which Your Honours saw in Perth he prepared as an aid to

the jury and he had his own numbers referring

to the documents that he had got, that the

prosecution prepared and gave to the jury,

all in open court, of course, a schedule whereby

the jury were able to link Billing's identification

with the actual exhibit.	Perhaps it would be of
use to see the large identification board.	I think
it is about exhibit 78.

GAUDRON J:  Mr McKechnie, could I ask how the board and

schedule become admissible as an aid to the jury if

they are not the basis of the opinion evidence?

MR McKECHNIE:  It is wrong to say that they are not the basis

of the opinion evidence.	Let us put it this way - I
will find the board first,	Your Honour, and then, I
think, be able to argue - exhibit 79.	When we find

it - to answer Your Honour's question, what

Sergeant Billing did was have all the documents available to him that were, as it were, the proved handwriting of Peter Mickelberg. It is exhibit 87, thank you.

(Continued on page 326)

C2Tl0/2/HS	325	MR McKECHNIE,	QC	24/11/88
Mickelberg

MR McKECHNIE (continuing): This was one, of course, of

a number of boards because concessions were

made in the trial, or admissions were made in
the trial in relation to the handwriting of

Raymond Mickelberg and Brian Mickelberg - not made until trial. What he did was he formed

his opinion on documents and gave the jury

the basis of his opinion and the jury also

had the documents, and in order to illustrate -

and no more than that - what he was talking about

he pointed to samples which are taken here in

the purported writing of Peter Mickelberg to
say to the jury, "These are the samples I am

talking about in the documents to compare." That

is all he did. That is all the significance that

the board ever was. I say that because I will

take Your Honours now to the charge of His Honour

about that.

GAUDRON J: There was some·other significance though, was

there not, in relation to the matching up, if

you like, of the Talbot note?

MR McKECHNIE:  There was great significance in matching

it up to Peter Mickelberg indeed.

GAUDRON J: Yes, and the exhibit w~ich had the matched

up -

MR McKECHNIE:	Exhibit 87 is the matched up.
GAUDRON J: Yes.

MR McKECHNIE:	It had no other significance than it was Your Honour, also had with them Mr Billings'	prepared to illustrate to the. jury - the jury,
written report which had been tendered, which
set out what he had done and they also had
his oral testimony on the matter.  They
also had the exhibits and they were also able to find the exhibits and relate them to the board.
had been done; convenient and important certainly, So the board was just an illustration of what
but by no means, as it were, the only evidence
of the witness.

They jury had before them, as it were,

primarily, the testimony of the expert opinion
of the witness, "I have examined the documents.
In my opinion this is the handwriting of

Peter Mickelberg". That, at its baldest, was

what the jury had before them.

GAUDRON J:	And the board?
MR McKECHNIE:	And the documents by which he had found it,

and the board saying this is how, in the same way,

C2Tll/l/JM	326	MR McKECHNIE, QC 24/11/88
Mickel berg

Your Honour, and precisely the same way as

Sergeant Henning. They had Sergeant Henning's

evidence, "I have examined the mark on the

cheque with the known fingerprints of Raymond

Mickelberg. In my opinion that is the

fingerprint of Raymond Mickelberg. I have

prepared a board to illustrate my findings."

It is cormnonplace and that board can be seen

in no other light than that. The primary

evidence was the opinion evidence of the witness

and the board was an illustration for the jury.

GAUDRON J:	But I still do not understand what it was an illustration of. It was not an illustration
of the opinion; it was to confirm the opinion,
was it not? The tendency of the board was to
confirm the opinion.  Now, if it was the basis
of the opinion, that is one thing.
MR McKECHNIE:	Can I take Your Honour to the evidence

at page 153, at line C to D, the passage: Taking each of the letters in the Talbot

note -

-

this is the witness being re-examined -

were there any of the letters, or other

structures to cover the "care of", in

that note that you were unable to find

corresponding letters in the Mickelberg

documents which in your opinion were

similarly formed?---No, sir. All of the

letters used in the Talbot note were

consistent with all of the writings of
the same type letters in the writings
of Peter Mickelberg.

In coming to that conclusion, indeed in selecting the ones you did, did you make

any allowances for, first of all, variations,

and secondly where the letter was in

relation to the one it followed or preceded?

---Yes. I tried to select letters from the

documents of Peter Mickelberg which connected

to the next letter in the same manner as those

on the Talbot note. The reason why there may

be letters taken from different areas and

may only be one letter cut out was the fact
that a different letter followed the one I

used.

C2Tll/2/JM	327	MR McKECHNIE, QC 24/11/88
Mickelberg

MR McKECHNlE· (continuing):  What I say about the board,

Your Honour, is that it is an illustration.

The evidence of the witness is his opinion evidence

and I keep aligning it to Sergeant Henning's

evidence which, on this point, I think, was

uncontroversial. That they form an opinion,

give the jury the opinion and say, "And this

is to ill • strate my opinion."

GAUDRON J: There are limits, are there not, to the

illustrative material that may go to a jury?

MR McKECHNIE:	Indeed, Your Honour, and if it were only the illustrative material that went to the jury
one would be entitled, I think, to be critical.
If all that went to the jury, in this case, in
relation to the handwriting was the board one could, I think, fairly say -·or fairly be critical.
But that was not ever this case.
DEANE J:	But where the board is a trifle unfair, is it
not, is that what the witness was comparing
were letters - that is one thing.  But to produce
something ~that reproduces spacing and angle
ofi letters can create a quite misleading picture
in that it conceals differences. Let me give you the example of - look at the "t" in "post". It is,
when you examine it very closely, somewhat different
but when you look at it in the context of that equal spacing and equal angling and reproduction, the difference really seems to be missed. If you had those two "t"s out in isolation it could
be quite different, I would have thought. I
do not know how significant it is but it strikes
me·as a problem in doing things that way.

MR McKECHNIE: It, I suppose, is always open, in the illustration,

for - as in this case - a counsel in cross-examination

to put to a witness that very thing, Your Honour,
in order to diminish the value or effectiveness

of the board or to diminish the value of the

opinion of the witness and that was what was attempted to be done here.

No objection was taken to the tender of

the board. In our submission, no objection could
be. I do not concede that it is unfair and

I say that because a witness at the appeal,

a very eminent witness, Mr Ellen, had a look

at it and did not come to such a view. But,

perhaps I should, to clear up what is, I think,
perhaps troubling Your Honours and take you
also to the manner in which the judge directed

the jury as to this, and that can be found at

volumeV, between pages 1156 to 1158. There

were, Your Honours, I say by way of introduction,

three main areas of evidence against Peter Mickelberg,

C2Tl 2/1 /SDL	328	MR McKECHNIE, QC	24/11/88
Mickelberg

leaving aside, for the moment, the circumstances

once he was linked to the conspiracy. There

were three main areas: that of visual identification

which the judge entirely took away from the

jury's consideration; that of the handwriting;

and that of the statements made to the police.

I will leave for a little later how the handwriting

tied in with the other evidence but, leaving

that aside, there were those three main areas

and he took away, entirely, visual identification

from the jury.

Dealing with handwriting, he deals with

it from page 1156B:

The main evidence of identification,

the main evidence connecting the accused

Peter Mickelberg with the car, is that

of the handwriting on the note, the second

part of the evidence to which I referred.

And then he says to the jury:

look again at exhibit 87, the card -

when it has been discussed and~

has been the subject of comment -

by both counsel.

I have suggested that you look at the

card but remember, that is merely an

illustration. You should look beyond

the card, look at its author or rather,

its editor, Sgt Billing.

(Continued on page 330)

C2T12/2/SDL	329	MR McKECHNIE, QC	24/11/88
Mickelberg

MR McKECHNIE (continuing):  And then to summarize it rather

than take time reading the slabs: he really invited
the jury, "Well, first of all, look at Billing
as a person, then go about how he went about his

comparison, did he go about it in a fair way, in

an objective way, in a way calculated to produce the

result?" and then, at page 1158, he said, at the
top of the page:

The Crown Prosecutor has demonstrated to you how you can go to those documents yourself.

You do not have to rely upon Sgt Billing at all. In fact, in comparison of handwriting

there is a call by you to examine the original

evidence. Have a look at it yourself. See

whether, in fact, you need the guidance or

assistance of anyone else in reaching a

conclusion. If you feel you need that guidance

or assistance, consider whether you can accept

it from Sgt Billing.

Having approached the evidence in that

way then ask yourselves, I suggest, in the

end are you satisfied that Sgt Billing's

conclusion is the correct one. If you accept

his conclusion, and probably at this stage

at least you would need to consider whether

you are satisfied of that beyond reasonable

doubt - I say in relation to this piece of

circumstantial evidence because it tends to

stand out on its own and it is so important -

if you are satisfied beyond reasonable doubt

that his conclusion is correct then it would

seem quite clear that the accused Peter Mickelberg

was the young man who bought the car at
Armadale on 25th May.

Then he goes on to the matters I will advert to later. The issue at appeal was not a challenge

to that charge or to the handwriting,rather it

really came down to this; there is fresh evidence

of Mr Roberts. The effect was, to put it at its

highest, was that although there were similarities

between the Talbot note and Peter Mickelberg's

handwriting, there were also differences and he

would not be satisfied beyond reasonable doubt

that it was Peter Mickelberg's handwriting. And

in that the court simply, in the end, rejected

his evidence - and I will ·not take Your Honours

to the passages, but they are set out in paragraph 19

of our summary.

And so, it really relates to other points

which my learned friend raised about evidence and

once there is evidence fit to go to a jury and

the like. But, if the court has found in respect

C2Tl3/l/AC	330	MR McKECHNIE, QC 24/11/88
Mickel berg

of evidence, and they have in respect of Mr Roberts,

that his evidence is not cogent, not credible,

not compelling, it really is saying there is no

evidence. It is as simple as that. So, in answer

to the handwriting matters we really have three

short answers: one is that what is now really put

has, substantially, never been put before and is
not the ground of appeal; secondly, that it is

not fresh evidence, evidence as to handwriting

challenge being available prior to the trial; and

thirdly, that the jury's answer to the question

has really foreclosed the matter in the manner

in which the case was left.

Can I turn now to the exhibits 23 and 78 grounds,

if I can put them that way? And, again, I do not

wish to say too much about it, partly for reasons
of time. Exhibit 23 was tendered without objection
as was exhibit 78. Counsel for the accused,

Peter Mickelberg, in his final address made considerable play about them, pointing to them

as assisting his argument of the lengths the

police were prepared to go to doctor evidence and

thereby creating unreliability in the minds of

the jury in relation to the oral confessional evidence

and in relation to the fingerprint evidence generally.

And so there was, perhaps, for defence a forensic

purpose in having them admitted - at least they

were not objected to.

The exhibit 78 was prepared in circumstances

outlined, and for the reasons outlined, by

Justice Pidgeon - and again I will not take

Your Honours to the passage but it is at 3143,

and the reasons being, of course, that the Crown

allegation was that on each occasion Peter Mickelberg,

or the person, was in disguise - that is the

significance of the matter - and that the person

who purchased the Allen's car and the ·person who

was seen at Barker House was not inconsistent with

Peter Mickelberg and it was never really put any

higher than that. (Continued on page 332)

C2Tl3/2/AC	331	MR McKECHNIE, QC 24/11/88
Mickel berg

MR McKECHNIE (continuing): But, Their Honours considered

in any event that the strong direction by the

trial judge overcame prejudice or unfairness so
even if there is an argument that the exhibits

which were admitted without objection are

prejudicial or, put properly, I suppose that

their prejudicial effect outweighs their

probative value.

GAUDRON J: Well, did they have any, bearing in mind the

onus of the Crown?

MR McKECHNIE:  In our respectful submission, they did,

Your Honour, for the reasons outlined by

Justice Pidgeon.

GAUDRON J: Well, admissible? I mean, I know there was no

objection.

MR McKECHNIE: Well, the Crown considered them admissible,

Your Honour. They sought to tender them. They

tendered them.	The judge, in respect of exhibit 23,
invited comment from	defence counsel in relation

to them; received none and, in our respectful
submission, they were admissible for the limited
purpose for which they were admitted and the manner

in which they were dealt with.

GAUDRON J:	The limited purpose being that the persons seen were not inconsistent - - -
MR McKECHNIE:	And were in disguise.
GAUDRON J:	- - - with the accused if he were disguised in

that manner.

MR McKECHNIE: Yea,,Your Honour. Well, Your Honour, I can see

is, perhaps, troubled by it - - -

GAUDRON J:  I am very troubled about the question of

admissibility. However, as no objection was taken,

that probably is not a point that need concern you.

MR McKECHNIE: Well, not only no objection taken, it was a

matter, of course, argued before the Court of

Criminal Appeal and, their view was - and when

Your Honours .read the charge by His Honour the trial judge which is set out, I think, in full and conveniently in the judgment of Justice Olney

who came to the view that, in any event, that

direction overcame the prejudice or unfairness,

if there was any.

As I said to Your Honours, there were three areas - leaving aside the other circumstances,	t'.1ere
were three areas of possible evidence against

Peter Mickelberg and His Honour entirely took away. He

C2Tl4/1/SH	332	MR McKECHNIE, QC	24/11/88
Mickel berg

did not simply warn the jury of the dangers of

identification evidence; directed them positively

"You cannot take it that Peter has been identified

by any person. You must entirely put that to one

side". It is in that context, Your Honours, that

we say that the decision of the Court of Criminal

Appeal was right. As we really say, in any event,

although I think there has been argument to the

contrary, there is not a fundamental question of

principle here. It is a question whether, in the

end, evidence was correctly admitted or not. The

court below, in our submission, has not gone beyond

or purported to lay down any principles different

from those which this Court has said and which the

Court of Appeal in England,in dealing with photofit,

has said - that is COOK's case but I do not need to

take Your Honours to it.

Your Honours, moving to the unsigned confessional

statements; again, no challenge was ever taken at trial
or on appeal to the trial judge's directions. What is

now sought to be mounted as an argument on CARR's case

some five or six years after the trial but, more

particularly, no argument was ever mounted either pre-CARR or post-CARR as to the unfairness of the

confessional evidence. There was before the jury

all the circumstances of the confessional evidence

and the manner in which it was obtained. It was the

subject of much comment by counsel, of course. Those

matters which, I think, Mr Mccusker has touched on

which would say that rendered it unreliable were

raised and argued strongly before the jury and it

was something that the jury considered in combination

with all the other evidence.

(Continued on page 334)

C2Tl4/2/SH	333	MR McKECHNIE, QC	24/11/88
Mickel berg

MR McKECHNIE (continuing): The grounds of appeal in the

court do not seem to raise it, either in the court

below or as _far as we can see from the grounds

that are filed here on the application for special

leave. It really is - in our submission, it is

a submission by my learned friend, Mr Mccusker,

now made for the first time in a case which is

six years old - five years old.

I can pass briefly through the next heading

which is Walsh and Lewandowski. This was evidence

which was fresh evidence in the true sense,

conceded to be fresh by the Crown; evidence of

a Mr Walsh, I think in June 1987, a comparatively

short time before the appeal, of a conversation

that he was said to have had with a man called

Lewandowski in a bar in a suburb of Perth. The

conversation - Lewandowski had been one of the
officers who had been present when Peter Mickelberg
was interviewed on a number of occasions and had
been one of the investigating officers, still a

member of the serving police force and he was alleged

to have made what might be regarded perhaps as

admissions. It was put that way, "We stitched

them up properly.", or words to that effect.

So to that extent, because it was fresh evidence in the sense that it was new, it was added as a

ground of appeal without objection by the Crown. There were a number of other people at the table who did not entirely support Walsh's account of

the matter or, perhaps more fairly so, they did
not hear the conversation one way or another.

But the court did not weigh Lewandowski 's evidence

against Walsh and come to a view. They rejected

Walsh's evidence decisively and entirely as a witness

who could not be believed and also that the admission

said to have been made by Lewandowski in any event

was not capable of the interpretation put on it.

But they rejected his evidence.

It is true that they went on_- I think,

r.articularly Mr Justice Olney went on and said,	'In fairness to Mr Lewandowski I should examine
his evidence and say that I accept it.", but it
was not a balancing exercise. They rejected it
as unconvincing and it really is against a finding
of fact as, indeed, in our submission, when it comes down to it, most of this appeal was against the findings of fact of a very lengthy Court of Criminal Appeal.
The question of Arpad Security: will recollect that my learned friend, Mr McCusker, Your Honours
made mention of this and it arises perhaps first
of all in the opening in supplementary volume IV,
if I can take Your Honours to that. The opening

C2Tl5/l/ND	334	MR McKECHNIE, QC 24/11/88
Mickel berg

at the appeal of Mr Searle at page 3210 was:

One of the reasonable hypotheses consistent

with innocence that I will put to your Honours

in relation to the petitioner is that there

is another party, to wit Arpad, which had

the care and conduct at all times of that

gold, in respect to which there is much more

direct evidence of their involvement than

there is of the petitioner. In my submission,

that fact put Mr Cannon in a conflict of duty

and interest of the most extraordinary degree,

and the relevant dates can be gone through.

That was at the time when there was an allegation of duty of inference against Mr Cannon which was

later pursued and which Their Honours have dealt

with. The allegation, as Mr Justice Wallace remarked,

received, of course, wide publicity. It was

different from the allegation which was at trial.

At trial defence counsel for Raymond Mickelberg

seemed to be suggesting that the SAS had swindled

the mint ; at a pp ea 1, Arp ad . Arp ad was a sec u r i t y

firm who had supplied a security guard to be in

the office at Barker House while the gold was

sitting there for a short time until taken away

and I will tell Your Honours more about that in
a moment but that was their connection with the

case.

It is most serious and the court treated most

seriously, of course, allegations against a third

party of implication in a very serious crime.

Those allegations were made, the managing director

of Arpad Security - a man called Lazlo Arpad Bacskai -

was finally called in evidence before the court

by Mr Searle. He gave his evidence in-chief and

not one single question was asked of him directed

to making good the assertion in the opening.

(Continuing on page 336)

C2Tl5/2/ND	335	MR McKECHNIE, QC 24/11/88
Mickel berg

MR McKECHNIE (continuing):  He was cross-examined by the

Crown and the opening was put to him and he denied it most vigorously and pointed out that he had been himself interviewed and interrogated by the police and

his company along with lots and lots of other people.

Now the court, in our submission, properly rejected

the ground. They did so.in, one might describe

as stineing terms in view of the manner in which the

allegation has been raised. I see it is still raised

before Your Honours. It is perhaps sufficient to

say that it was a question of fact about which there

was, in our submission, not a skerrick of evidence

and there remains not a skerrick of evidence against a

company which has just simply been mentioned and

vilified,but Their Honours found against it.

I think the only other ground with which I would need to deal was that involving my learned junior,

Mrs Yeats - - -

BRENNAN J: Before you go to that, at page 3210, counsel

saw fit to say in respect of Arpad:

there is much more direct evidence of their

involvement.

Do you say that there was no evidence at all of their

involvement?

MR McKECHNIE:  Yes, Your Honour.

BRENNAN J: And there was no occasion when any evidence was

produced?

MR McKECHNIE:  No occasion when any evidence was produced.

In relation to Mrs Yeats, the ground, Your Honour, is

in page 2, paragraph 3 of Peter Mickelberg's

application book. The ground reads:

That there was a disputed question of fact

as to the material placed before the experts

by the Appellants and the Crown, and

particularly the activities and participation

of Ms Marianne Yeats. This question was

decided by their Honours without hearing the
whole of the evidence and particularly the

evidence of Ms Marianne Yeats. Counsel on

behalf of the Appellant was refused permission
to examine the said Ms Marianne Yeats. That

their Honours erred in law in refusing leave

for the Appellant to call Ms Marianne Yeats
to give evidence at the Appeal.

As I have advised, Your Honour, in 1985, and it was

common ground, Mrs Yeats had travelled overseas and

visited each of the four witnesses, Thompson, King,

Bonebrake and Olsen and had supplied them with materials.

C2Tl6/l/SR	336	MR McKECHNIE, QC 24/11/88
Mickel berg

Each of those four were called by one or other of the applicants - three by Mr Wallwork and one by Mr Searle.

Each were examined.	Each were able to say what they
had or had not been supplied with.	They were

cross-examined but we would, with respect, take issue
with the fact that there was a dispute as to what

material they had. Their recollection as to what

they had was one of the matters in issue in the

cross-examination - not what they actually had. More

particularly in supplementary volume IV, page 3236,

within that same opening the easiest reference and I apologize a little for that, is to a conunent which I

had made. The reference to the court had included

within it a document signed by a number of counsel,

including Mr Searle, which detailed a whole range of

misconduct including serious allegations of misconduct

by Mrs Yeats. On the morning of the appeal there

was an application to abandon certain grounds - the

grounds not only, I might say, were allegations of

misconduct against Mrs Yeats, there were allegations

that Detective Sergeant Hancock, the officer-in-charge
of the investigation, had been associated with a man

called Dawson in Victoria who had sold the gold from the

mint and there were a series of, one might say, unusual

allegations which were all abandoned, but particularly,

as is clear from page 3236, really and what I am dealing

with is what has been abandoned.

(Continued on page 338)

C2Tl6/2/SR	337	MR McKECHNIE, QC 24/11/88
Mickelberg

MR McKECHNIE (continuing):  The allegations of misconduct

against Mrs Yeats were entirely abandoned. So,

it is against that background that, at page 3521,

the question of calling Mrs Yeats appeared.

It is in the supplementary volume V, Your Honours,

at page 3520. Your Honours can see what happened:

there was just a sudden application to call

my junior and I asked what evidence she could give

that was admissible to the court and thereafter

counsel sought to justify the matter and the

court ruled at page 3522 that she should not be

called. Their ruling, Your Honours, in our

respectful submission: it is a matter which arose

in the trial; they dealt with and are entirely

proper. One might ask really what admissible

evidence relevant she could have given anyway,

having regard to the fact that no issue was

taken by any witness as to what she may have

done or said. It would have probably in any

event been entirely hearsay, occuring as it did

in 1985. The most one would have got from it -
and this was not even the evidence, but the

most one might have got was that if a witness

had said, "Well, Mrs Yeats told me this" and

one might have called Mrs Yeats to say, "No,

I didn't; I told him this". It did not seem,

in our respectful submission, to take the

matter anywhere.

In our respectful submission, what Mrs Yeats

may or may not have said was just simply not

admissible in the trial, apart from anything else,

but against, as I say, the background that

allegations of misconduct against her had been

abandoned.

Now, Your Honours, finally, to wind up my

submissions, might I deal :indirectly, as it

were, with the question posed by Justice Brennan

yesterday, and just remind Your Honours what the

case was all about at trial. It is summarized

by Justice Brinsden in the reported decision of

BRIAN MICKELBERG, (1984) WAR 191 and particularly

the passages from 204, where he outlines in

brief what he describes in Peter Mickelberg's

judgment as a brief resume of the Crown case,

and that is what it was. I refer to Mr Justice Brindsen

because although he was in dissent in the decision

in PETER MICKELBERG, his statement of facts was

adopted by the Chief Justice in the decision

Peter Mickelberg, which I have handed to Your Honours, soi

is realfy the statement of fact.,

The case really arose in this way: in 1982

prior to June a number of things happened. On

7 April premises in a suburb of Perth, north Perth,

were broken into, an estate agent, and, as later appeared, a quantity of WABS cheques were taken.

C2Tl7/l/JM	338	MR McKECHNIE, QC 24/11/88
Mickel berg

The building was burnt and their theft was not

discovered, but one of those cheques was one

of the cheques handed to the mint. On 13 May,

at a chemist shop in Bull Creek, another suburb

of Perth, the same thing happened. On this

mainstream of Perth, Barker House, which is a

occasion a quantity of Perth Building Society

cheques were taken and the premises were burnt.

suite of individual offices which one can rent

or lease, in March and April, premises were

rented, suite 3 and suite 15 - suite 15 does

not matter perhaps very much - in the name of

Fryer Investments.

(Continued on page 339)

C2Tl7/2/JM 339 MR McKECHNIE, QC 24/11/88

Mickel berg

MR McKECHNIE· (continuing):  The arrangements were concluded

by telephone; the rents paid by bank cheques.

Immediately prior to the payment of the bank

cheque there was corresponding withdrawals in

cash from one of Raymond Mickelberg's false

named accounts, a Wilson account.

Also during the period, two people, a

Mr Blackwood and a Mr York, on quite a number

of occasions rang the mint inquiring about gold.

At that stage one could telephone the mint and

be quoted a figure for a purchase of gold:

"I want $100,000 worth of gold", or presumably, "I want 100 ounces", or whatever. But, because

of the exchange rate, there would have to be
some working out of figures and then the collections
would normally be made in the afternoon ..

Raymond Mickelberg certainly had had experience

of buying gold with using building society cheques

for payment. I do not think now building society

cheques are acceptable.

Closer to the morning of the mint swindle,

a number of people were engaged - all, again,
by telephone. There was a Mrs Armstrong who
was engaged to be in the office on a particular
day to answer the telephone and do other things;
there was engaged a Mr Duynjak who became most
important, who was engaged to be a courier -

one of his qualifications was that he be able

to drive his own car and that it hav~ a CB radio.

In late May, in response to an advertisement

in the newspaper, Mr and Mrs Allen, who lived

in an out-of-Perth suburb~ had sold their white

Falcon vehicle, registration number WN - something

or other; and the Crown case is that, at the

time that they had sold it - that is, according

to Mrs Allen, the purchaser had worn a wig and

glasses and had given a false name and false

address - that of Robert Talbot, Post Office,

Meekatharra. One has to fill in forms and they

had no forms to fill in for transfer so they

had him write out his name and address and that

is the "Talbot note" which the Crown says is

written by Peter Mickelberg.

So a car was purchased. Coming closer

to 22-June, the calls from Mr Blackwood and
Mr York ·increased to the mint and Mr Duynjak

was told to be available on a Friday or a Monday.

In fact, 22 June was a Tuesday. Finally, firm

orders were placed by Mr ·Blackwood and Mr York

for the purchase of gold on 22 June. A' number

of things had happened;	a number of :things
had to happen.	At about 9.30 on 22 June, the

mint was telephoned by Mr Fryer, who wanted

to buy a quantity of gold and there was a problem -

because of the two previous orders by Blackwood

and York, coupled with the others, there was a question

C2T18/1/SDL	340	MR McKECHNIE, QC	24/11/88
Mickelberg

whether there was sufficient gold to supply his order.

He wanted $250,000 worth of gold. So the mint

employee offered to ring him back but he was

not there - he said, "I will ring you", and

he d id , "ri o 1 a t er than 1 0 . 3 0 " . Th a t $ 2 4 9 , 0 0 0 ,

as the amount worked out, was, in fact, the

WABS cheque - the one with the fingerprint on it - and had to be delivered.

The phone call confirming the amount was no later than 10.30 and the cheque had to be

delivered, as did the others, because Mrs Armstrong

arrangement. Mrs Armstrong came at 11 am and had been advised and in the room then were

had been arranged to come to the office at 11 am.

three envelopes containing the three cheques,

each addressed in relation to the security guards. to come, Transurety, Armaguard and people called

ASAP Armed Couriers. It matters not, but they
were staggered to come so that one would come,

take away a box that was there, and the cheque,

go to the mint - the mint releasing the gold

in the afternoon - present their cheque, receive

their gold, return it to these premises, leave

the box and leave and, perhaps due to fine planning,

all of this happened without any of them meeting

each other. So that one would come and go. So that

Mrs;Armstrong, who was, no doubt, wondering

what was happening at this time, was there and
there is a late suggestion from someone, a Mr Pearce,

who had worked for Arpad, had been engaged to sit

with her in the office because of the presence

of the gold; she knew that there was ·gold. So one

has the situation that eventually three containers of

gold arrive from the mint, paid for with the three

false cheques.

(Continued on page 342)

C2Tl8/2/SDL	341	MR McKECHNIE, QC	24/11/88
Mickelberg

DEANE J:	Did the security guards know it was gold?
MR McKECHNIE:	The security guard in the office?

DEANE J: That delivered it?

MR McKECHNIE:  They knew it was gold, Your Honour. They went to the mint and collected it.

DEANE J: And ...... They do it without a receipt do they,

just leave gold in a empty building?

MR McKECHNIE:  Not in an empty building, Your Honour - in

a room with Mrs Armstrong and I think the evidence was that on one or two occasions she actually gave them a receipt for it.

DEANE J:  I see.

MR McKENCHIE:  Yes. It was not leaving it in an empty building.

So one gets to the situation where in the suite

in Barker House there are three boxes containing

a large amount of gold. To return now to the vehicle

and the significance of the vehicle in all of this.

The vehicle when it was sold by the Allens did

not have a CB radio fitted or anything of that

nature. It was, in fact, seen on the weekend before

in Jolimont, a suburb next door to Subiaco, in

a fast chicken outlet - seen by police in a routine

search and at that stage it had been fitted with

a bracket and, I think, wing nuts lying on the

floor but not a CB radio.

On the morning of 22 June that was the car

in which Mr Henry observed a young man leaving
and it was observed at that stage - he was incensed

because it was parked in his parking bay, he was
the next building up, and he called the police
and the police took the number and I think he,
but certainly the police who attended, also

observed that the car was then fitted with a CB

radio. The young man who was observed by Mr Henry

was observed acting strangely - wiping down the

boot and the hands - wearing gloves, wiping down

various parts of the car and walked off towards

Barker House. And I think he was observed on two

occasions by a Mr McCracken as well as Mr Henry.

It matters not. It was of course important - - -

BRENNAN J: Whereabouts was he observed?

MR McKENCHIE:  Near the car and heading off in a general

direction of Barker House. This was another suite

major road and this was just a back access lane

of offices, one or two blocks up in a back lane.

with parking and parking was difficult.

C2Tl9/l/AC	342	MR McKECHNIE, QC 24/11/88
Mickel berg

MR McKECHNIE (continuing):  The first time he was observed

he was leaving the car and wiping it.	The second
time he was observed in the car.

Now, Mr Duynjak had been engaged, the man whose

qualifications included a car and CB radio, and he

whom, it seems, to be a somewhat naive chap, was

engaged and he believed that he was to take mining

equipment out and he had, in fact, been ready to do

it a little earlier but he was engaged; he was

telephoned; nobody to telephone back to and,

eventually, told to wait in his car and the

significance of the car is that somebody had to

observe, some member of the conspiracy had to
observe the coming of the gold and the arrival of
the gold at the house to know when Mr Duynjak should

move and he was given instructions about when to move - it is all in his evidence and I am just surrnnarizing it,

Your Honour - over CB radio and, finally, he was

instructed to go and get the containers of what he

regarded as mining equipment and he did and he was

challenged by the Arpad security. I think he showed

him his gun licence as credentials. They each

transferred the gold out to Mr Duynjak's car. He,

then, on instructions, took it to Jandakot airport

where he placed it down between two hangars.	Nobody
has ever seen it again.

BRENNAN J: Well, now, Mr Justice Brinsden said, at page 205,

with reference to Peter that:

There is evidence if accepted by the jury

that on the morning of Tuesday 22 June Peter,

again wearing a disguise, parked the white

Ford Falcon car off a laneway near Barker

House then, before the hired secretary arrived,

placed three forged building society cheques

in Suite 3. ·

Is there any evidence of that?

MR McKECHNIE: Well, that is the inference that the Crown would

ask the jury to draw.

BRENNAN J:  Based on the fact that he was seen in a parking lot at the time and walked in the direction of Barker House.

MR McKECHNIE: Well - - -

GAUDRON J: There is no evidence he was seen, was there? He

was not identified.

MR McKECHNIE:  No, no evidence that he was seen. T~e Crown

case was that he had purchased the vehicle using a

false name and in a disguise - not from the

identification evidence but the handwriting expert

evidence.

C2T20/l/SH	343	MR McKECHNIE, QC	24/11/88
Mickelberg

DEANE J: Well, assume just for a moment that, in view of

their relationship, his brother told him to go

and buy a vehicle and make sure he would not be

identified because he wanted to use it for something.

What other evidence is there against him?

MR McKECHNIE:	There would be the evidence in the confessional material to the police, Your Honour.
DEANE J:	And nothing else?

MR McKECHNIE: Well, other than the description of the young

man.

DEANE J:	But the witness said he was not the man he saw until he was shown a doctored sketch with a wig on it and not told that what he was shown had had a wig put on the
photo.

MR McKECHNIE: Well, that is not entirely accurate, Your Honour.

DEANE J: Well, I am sorry, you correct me.

MR McKECHNIE:  In fact, in court it was put to the witness

directly. Peter Mickelberg was asked to stand up

and he said, "And that is not the man, is it?" and

the witness said, "No, I couldn't say that. He is

very similar, indeed, in many ways".

DEANE J: Well, then, we need to modify it.

MR McKECHNIE:  But, Your Honour, to get to the identification,

and I do not make any bones about it, one needs to

link the handwriting to Peter and that, really, has

to be established.

GAUDRON J:  But that only links him to the car that was seen.

It does not put him in the car. For all we know

he may, as suggested by Justice Deane, have bought

the car at the request of his brother and,at the

request of his brother, taken it to that location

but not have inquired for what purpose.

MR McKECHNIE:  Then, Your Honour, and I commenced by saying

that I was. :giving Your Honours an overview of the

case and I would say again that, in the last day -

and I am very nearly finished - all I have attempted

to do is give an overview. This was a trial, I think,

that ran for three or four weeks; an appeal that ran

for three or four weeks and I have not attempted to

do other than give an overview but - - -

GAUDRON J:  But the challenge here is that the only evidence

to link Peter Mickelberg is the car and the argument

put is, "So what if he bought the car?'. As he said

in his so-called confessional material, it does not
provide a sufficiency of evidence consonant with the
rules to be applied related to circumstantial cases,

to support a conviction.

C2T20/2/SH	344	MR McKECHNIE, QC	24/11/88
Mickelberg

MR McKECHNIE:  That is the argument put, Your Honour, and

the reply to that is, we say, that a consideration

of all the evidence linking him to the car, the

description of the young man not as identified

as Peter Mickelberg but not as inconsistent with
him, coupled with all of his confessional evidence, the

defence at trial - because after all the jury were in

a position also to see him and to hear him and to

evaluate him along with all the other witnesses -
provide the sufficient foundation as Their Honours,

now in three appeals, have in three appeals

unanimously dismissed his appeal.	But we would
say if the - - -

GAUDRON J: Is there no other reasonable hypothesis open on

the evidence?

MR McKECHNIE: In our respectful submission, no.

GAUDRON J: It is not a reasonable hypothesis that he bought the

car at the request of his brother, took it to the lane

way at the request of his brother, later discovered

perhaps, if you like, what his brother had been up to,

but declined to assist the police in inquiries which

might result in the brother's inculpation?

MR McKECHNIE:  It is an interesting speculation, Your Honour.

GAUDRON J: It is not a question of whether it is an interesting

speculation. The question is, is that a reasonable

hypothesis on the evidence?

MR McKECHNIE:  No, because there is simply no evidence of most

of what Your Honour puts to us.

GAUDRON J:  But that is not the point. It cannot be the point,

Mr McKechnie. The Crown has to prove the case, has

to prove it beyond reasonable doubt.

MR McKECHNIE:  Yes, Your Honour.

GAUDRON J:  In particular it has to prove, by reason of the

way you have charged this indictment, that Peter

Mickelberg defrauded the mint. You have not only

charged him with conspiracy to defraud; you have

charged him with actual defrauding of the mint and he

has been convicted on that. Now, the only evidence

which goes to the defrauding of the mint as a substantive

offence is circumstantial evidence, is that not right,

against Peter Mickelberg?

MR McKECHNIE:  Circumstantial coupled with the confessional

material, but Your Honour - you see, Your Honour is

putting to me as a reasonable hypothesis consistent

of innocence or if the Crown case is the only one to

be drawn, but as I understand it, what Your Honour is

putting to me has not been put before, although I may

C2T21/l/HS	345	MR McKECHNIE, QC	24/11/88
Mickelberg

well be corrected by that shortly, but it has not

been put before -

GAUDRON J:  I understood it to have been put on the first day of

this case.

MR McKECHNIE:  All I can say again, Your Honour, is that one can

speculate about it, but there is not, for instance,

any evidence from Peter Mickelberg or anybody else.

GAUDRON J:	There does not have to be.
MR McKECHNIE:	There may not have to be, Your Honour, at some

stage of the trial, and there certainly would not have
to be at the close of the Crown case, but at the end

of the trial, after the evidence is in, and on the

evidence that was before the jury, they were satisfied

beyond reasonable doubt on what the ground that

Your Honour is putting to me now is, in effect, an

unsafe and unsatisfactory verdict ground, the jury was

satisfied beyond reasonable doubt - - -

GAUDRON J:  It may go further. It may be just a plain

insufficiency of evidence.

MASON CJ:  Was that question agitated in an earlier appeal to the

Court of Criminal Appeal?

MR McKECHNIE:  It, of course, certainly was not agitated in

1983, Your Honours, where the concession was made and

no appeal was made against the conviction for

conspiracy. It is but obliquely raised, if at all,

in the grounds of appeal to the Court of Criminal

Appeal, in my respectful submission, where the thrust

of law conspiracy could not stand.

of the grounds of appeal in the Court of Criminal

(Continued on page 347)

C2T21/2/HS	346	MR McKECHNIE, QC	24/11/88
Mickelberg

MR McKECHNIE (continuing): And that was certainly the case

that the Crown met on appeal. What Your Honour

is putting to me -I can only repeat and say is

we do not accept that at this stage such speculation

can be used to quash a conviction which has had

this consideration.

DEANE J: The last appeal you mentioned was the one ~his

is an appeal from?

MR McKECHNIE:	Yes, Your Honour.
DEANE J:	You must be feeling rather giddy.-
MR McKECHNIE:	Sorry, Your Honour, the three appeals.

DEANE J: - - - all these matters are thrown at you.

MR McKECHNIE: 

I do not really make this a great submission

but the time for such a submission, really, was
in 1983. It does not depend on the fresh evidence

that formed so much part of the 1987 appeal. The

appeal, the reference, was granted on the fresh

evidence. It does not, of course, preclude this

argument but it must be a question in relation

to the grant of special leave.  If Your Honours

please, those would be my - - -

BRENNAN J: Before you proceed any further, do you place

any reliance on any of the evidence that was given

by Peter Mickelberg as inculpatory of - - -

MR McKECHNIE:	Yes, Your Honour.
BRENNAN J:	Could you draw attention to any specific parts?

MR McKECHNIE: It is probably easiest to do that, Your Honour,

rather than going to the evidence is go to the

judgments which set it out. Your Honour, I will

not, at this stage, read Your Honour the evidence.

Could I simply give Your Honour the reference?	It is in the judgment of Justice Wallace, in	volume XIII in the heading "The Trial", from
page 3046 on. He really sets it out, Your Honour,
and sets out that evidence of Raymond Mickelberg as well.

TOOHEY J: This is largely professional material, Mr McKechnie.

Is there reference in those judgments to the

evidence given by Peter Mickelberg?

MR McKECHNIE:  I am sorry, I think I might have misunderstood

Your Honour Justice Brennan's question.

BRENNAN J: My question? Peter Mickelberg gave evidence.

Do you rely upon anything that arises out of the

evidence that was given by Peter Mickelberg as

strengthening the Crown case against him?

C2T22/l/ND	347	MR McKECHNIE, QC 24/11/88
Mickel berg
MR McKECHNIE:	I am sorry, Your Honour.	1 did misunderstand

the question. It is now a little difficult for

me to consider any particular aspects suffice

it to say that, of course, each, Raymond and Peter
gave evidence. There was a question certainly

in relation to Raymond's evidence which was not

the question Your Honour is asking' me that we would

rely on.

BRENNAN J: That is against Peter?

MR McKECHNIE:  No, as against Raymond. 1 will come to Peter

in a minute but 1 am just searching now for the

evidence, Your Honour. As against Raymond there

were questions of alibis which he sought to give

in relation to notebooks and things. He had claimed

a t the tr i a 1 - Raymond had c 1 a i med th a t he ha d a clipboard where he had kept the Peter Gulley account and that had gone missing in May and he

had made various steps to go and look for it and

there was evidence by which the jury could conclude

that that was a false explanation.

(Continuing on page 349)

C2T22/2/ND	348	MR McKECHNIE, QC 24/11/88
Mickel berg

J:1R McK.ECHNIE (continuing): Peter gave evidence of an alibi

in relation to the building of a fence on the particular

day. That was supported by Raymond and there was

evidence in relation to that upon which the jury

could conclude that he was not telling the truth in

relation to that. I have not, otherwise, particularly

turned my mind to the question that Your Honour has

asked me so I unfortunately cannot at this stage be of

any greater assistance tj:iari that, which is no practical

assistance. Certainly, I can say that the judgments

so far have not, in dealing with the matter, picked

up anything that Peter has said as saying this is

confirmatory of his guilt.

BRENNAN J:  Was there any explanation given by him of his

movements on the day of the swindle?

MR McKECHNIE:  Yes, he claimed to have been building a fence

at his parent's house with his brother Brian.

BRENNAN J: .- Was there any evidence produced by the Crown to

establish any falsity of that alibi evidence?

MR McKECHNIE:  Yes, there was, Your Honour, and it was indeed

an issue at the trial as to when the fence had been

finished. Indeed some of the fresh evidence which was

raised before the Court of Criminal Appeal related to

that. But it was an issue at the trial as to when

the fence was finished and whether they were working
there. Brian Mickelberg, for instance, gave evidence

that he had been working on the fence and had then

gone sailing and called a witness who did not confirm

him in several material areas. That is relevant as
to Peter because Peter had said that he was there as

well building the fence and the like .. so there was

that alibi, if I can call it an alibi in evidence,

Your Honour.

I think that is what Your Honour is·getting at in terms of inculpatory evidence. There was certainly,

the Crown would say, an abundance of evidence given

which the jury might disbelieve in relation to other

evidence in relation to the assault which he said

had taken place on his person by police and evidence

as against that. But evidence, one way or ther other,

does not inculpate him in the crime - I would not put

it that way.	It may lead to a rejection of his
evidence - - -

BRENNAN J: The fact that a person might tell an untruth is

one thing, but the false denials with respect to matters

which go directly to the proof of the offence is

another?

MR McKECHNIE:  Yes, it may be a part of my difficulty, I am

not really putting to Your Honour, except perhaps in the area of the alib~ which may be a false denial of

C2T23/l/SR	349	MR McKECHNIE, QC 24/11/88
Mickel berg

which is ¥JPlicatory. He gave evidence, it was open

to the jury to disbelieve him, but his essential

evidence was, "It wasn't me, I wasn't there, I didn't

do it and I didn't confess". Now, disbelief on most

of those matters does not indicate proof and I

accept that. That really is the alibi evidence in

relation to the fence, Your Honours, if any, but as

I say, I do not believe that the judgments, really,

have concentrated on his evidence to find in that

implicating evidence in relation to the trial.

BRENNAN J:  One further question. Was the question that has

just been debated with you over recent minutes, was

that in fact raised and argued on any of the appeals

prior to the appeal from which this appeal is brought?

MR McKECHNIE:  I cannot remember, Your Honour, it certainly,

I do not think, was argued last year as it is the

first time I have turned my mind really to the question.

I do not believe that it was argued in the earlier

appeal, Your Honour, but I cannot be sure, I was not

counsel then.

BRENNAN J:  Is the concession which is recorded in the judgments

of the earlier courts - is that an accurate description
of the concession that was made?

(Continued on page 351)

C2T23/2/SR	350	MR McKECHNIE, QC 24/11/88
Mickelberg

MR McKECHNIE (continuing):  My learned junior, who was

there, says "Yes" and, of course, coupled with
that is the question of what was taken on

appeal as well.

BRENNAN J:  Yes.

MR McKECHNIE: If Your Honours please - - -

DEANE J:	Can I just add to that, the third time round,
did this question of sufficiency of evidence
against Peter raise itself at all as a
separate issue?
MR McKECHNIE:	Not to our recollection, Your Honour.

In 1983 - the whole basis of the appeal in

1983 against the arsons and breaking and

enterings was sufficiency of evidence to link

him with those and the court then unanimously
held that there was sufficient evidence to

link him with those.

In 1987, to the best of my own and my

junior's recollection, this was not an issue.

But if others assert that it is, I could not

confidently deny it.

Your Honours, the one thing I have not done,

and I do not propose to do either, is to deal with the submissions of law that were made in

any other way than to say, as I have said before,

Their Honours set out the relevant law. In

our respectful submission, Their Honours set

it out correctly; Their Honours applied it

correctly. They way in which Mr Mccusker would

have their errors exposed, as he says, in our submission,would be an incorrect application

of the settled principles of this Court.

Finally, as to the question of fresh

evidence, we would say, as I have said before,

that the question of pin-holes is not fresh.

As to any other evidence which has been opened,

if there is any fresh evidence, then, first

of all our submission is this Court has no

jurisdiction over it and secondly, in any event,

after all this time and with all the water that

has passed under the bridge, if there is

evidence fit to be considered, obviously it is

not going to be an affidavit, but lengthy

consideration and perhaps examination and

cross-examination. The proper approach which is

still open to the applicants would be to petition

the Governor and seek a reference, if there

were fresh evidence not previously canvassed.

In that regard, I note that there were affidavits

filed which my friend opened which were filed the

day before the hearing in Perth and have not been

the subject of any consideration. If Your Honours

please, those are my submissions.

C2T24/l/JM	351	MR McKECHNIE, QC 24/11/88
Mickel berg
MASON CJ:	Yes, thank you Mr McKechnie.	I should say

to you that the Court is indebted to you for

your assistance in this matter.

Yes, Mr Wallwork?

MR WALLWORK:  If the Court pleases, if the Court will

agree, we had agreed that it would be preferable

if Mr Mccusker went first, but we are in the

hands of the Court in that.

MASON CJ: Certainly, Mr Mccusker may proceed first.

MR McCUSKER: May it please Your Honours, may I take

up as my first noted point the_ last point

of substance that my learned friend finished

on.

MASON CJ:	Yes.
MR McCUSKER:	That was the question of the car and the relevance: where does it lead if it be
established, as it is contended the Talbot
note would establish, that the car was purchased. there may be other evidence, I think, which is inculpatory of Peter Mickelberg, other than the confessional evidence. In my respectful
submission, I have searched in vain throughout
Peter's evidence and there is none which could
be said to be fairly· inculpatory of him, nor
was any evidence given by Peter relied upon by the judgments in any court below.

(Continued on page 353)

C2T24/2/JM	352	MR McKECHNIE, QC 24/11/88
Mickel berg

BRENNAN J:	What about if the jury came to the view that there was a false denial coupled with an acceptance
of the so-called confessional statement that, "we
agreed that nothing should be said".
MR McCUSKER:	The question is false denial of what,

Your Honour, I think. If the jury came to the

conclusion that there was false denial of the purchase

of the motor vehicle - - -

BRENNAN J:  Should we say a false alibi?

MR McCUSKER: False alibi. Your Honour, in that regard

the alibi evidence was not falsified by any direct
evidence. It, indeed, was rather strong alibi

evidence: there was -evidence that the Mickelberg

mother and father, the family, had recently purchased

a house - it was a new house, and there was fencing

material, the-purchase of ·which evidence was given,

which was purchased, I think, some two or three

days before. There was evidence that fencing of

the block on which the house was built was started

by the brothers on the weekend which preceded the

mint swindle. According to the evidence of the

brothers, they were all engaged in doing fencing

work - finishing it off, on the day of the swindle.

There was no evidence whatever which directly refuted

that assertion. There was some evidence that

Brian Mickelberg, who had said he was fencing the

whole day, had for some part of the day - there
was a question of whether he had, for part of the day, gone off with a Mr Holtz to go on a boat but none of that refuted the alibi evidence tha~ for

at least the major part of the day, the brothers

were engaged in doing fencing work on their parents'

block. So there is nothing in that that one could

point to as in any way enabling the jury,· by

reference to direct evidence to conclude that he

was lying about a material matter going directly

to the swindle.

MASON CJ:  Where do we find that evidence? I do not want

to be taken to it now but we need to have some

identification of the pages in the tr~nscript

where all the evidence for the Crow~ and for the

accused, on this issue is available to be read.

MR McCUSKER:	May it please Your Honour, I will endeavour to do that. May I just further, in relation to
this motor vehicle, add several other comments.
The evidence relating to the vehicle is evidence,
which like the vehicle itself, went nowhere
because not only was· there evidence of the
push-starting of this car when it was first
pucchased but there was evidence - and this is to be found in supplementary volume I, pages 214 to 215, that the vehicle in question -

C2T25/l/AC	353	MR McCUSKER, QC	24/11/88
Mickel berg

this was evidence from a Mr·Thompson. It starts

at 213A, Your Honours.

BRENNAN J:	What book are we looking at?
MR McCUSKER:	Supplementary volume I, Your Honours.
MASON CJ:	And 213A?
MR McCUSKER:	213A. He says he was on duty on 19 June 1982.

He went to Jolimont, the Red Rooster store at about

4.47 pm and found what he thought was the

abandoned vehicle - that appears at 214 line B:

Was there anyone with it? ---No; the vehicle

was abandoned. That was the nature of the

call.

And 214D:

We made inquiries with the manageress of the

store and had Armadale police make further

inquiries to ascertain the owner.

With any result?---No.

And at 215 line B, he says he had examined the

vehicle on 19 June:

There·was no sign of any article in the car?

---No.

It was unlocked?---Yes ..... .

Did you go back at all at any later stage

to see if the vehicle was there still?---No.

So there is a peculiar element about this vehicle.

It is purchased supposedly, on the Crown hypothesis, for the purpose of a mint swindle. It is push-

started by the purchaser, so it is obviously not

in good order; it appears to be abandoned on

19 June 1982; it is seen in the parking lot of

City Business Brokers which is down the road from

Barker House where the gold was taken to on the

day of the swindle and Your Honours may recall

that there was evidence that the young man, whoever

he was, was having difficulty in starting the vehicle

on that occasion too.	And that is the sum total
of the direct evidence about the vehicle.	On no
occasion is there any direct evidence that

Peter Mickelberg was, in the sense of identifying

him, connected with the vehicle, save the Talbot

note. Your Honours, one of the major problem with

C2T25/2/AC .354 MR McCUSKER, QC 24/11/88

Mickel berg (Continued on page 354A)

the conclusion that the jury may have drawn- indeed,
obviously did draw from the evidence regarding
the vehicl~ and the purchase of the vehicle, is

to be found in the directions of the trial judge

at page 1158 in volume V.

DEANE J:	Mr Mccusker, how are we involveo in this?
MR McCUSKER:	In what sense, Your Honour?

DEANE J: Is one of your appeal grounds, insufficiency of

evidence?

(Continued on page 355)

C2T25/3/AC	354A	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER:	Not directly, Your Honour, no.
DEANE J:	Well, at all?
MR McCUSKER:	I did address Your Honours, of course, on this

before when I opened the - - -

DEANE J:  But it has now been pointed out to us that this

was not taken as a distinct separate ground in the

court below, there is no ground of appeal from it,

and in relation to two of the offences it was dealt

with in an appeal apparently years ago.

MR McCUSKER:  Your Honour, taking each in turn, I am assured

by my learned junior that in the court below the

question of the sufficiency of evidence was certainly

canvassed by him. He referred to the principles in

CHAMBERLAIN's case as not being observed. So far as

the appeal is concerned, Your Honour, I will have to

turn to it, but as to the appeal to this Court or

the application for special leave - - -

DEANE J:  In the court below, what, it was open slather, was

it? It was not a reference simply on new evidence?

MR McCUSKER:  Your Honour, corning directly to the point you are

raising, there was no ground which specifically and

clearly raised this point in the terms in which I

did, however, raise it when opening the case for the

applicant before this Court. It is raised,

Your Honours, in the supplementary affidavit which

was filed in support of the application for special

leave.

DEANE J:  What I asked you was the reference to the Court of

Criminal Appeal, it was an open reference was it?

It was not restricted to - - -

MR McCUSKER:  It is difficult to answer that with certainty,

Your Honour. There was a petition, there were grounds

of appeal which were filed, but as to the

circumscription of the reference, I really would

hesitate to venture an opinion.

DEANE J:	We have to know why it is that we can deal with a
submission of insufficiency of evidence on an appeal
from the Court of Criminal Appeal. Now, all I am asking you is was it included in the reference to
the Court of Criminal Appeal? If it was, was it taken as a point before the Court of Criminal Appeal? If it was, is it mentioned in the notice of appeal
to this Court?
MR McCUSKER:	May I turn to the material, Your Honour?

DEANE J:  Yes. I am not suggesting it was not. I just want

to know what we are doing about it.

C2T26/1/HS	355	MR McKECHNIE, QC	24/11/88
Mickelberg

MR McCUSKER:  Perhaps I could come back to that and I will

just get the references for you.

BRENNAN J:  Section 21 of the CRIMINAL CODE provides for a

reference of the whole case or, if the Governor

desires, the assistance of a court on any point.

MR McCUSKER:	Yes.
BRENNAN J:	Was this a reference of the whole case?

MR McCUSKER:  Yes, it was, Your Honour. There was a response

to the petition referring the whole matter to the

Court of_ Criminal Appeal, and that is in the - - -

BRENNAN J: And then were grounds of appeal drawn up?

MR McCUSKER:	There were grounds of appeal drawn up after that, and there was also filed with the court a quite lengthy memorandum prepared by three counsel
in support of the arguments.  Your Honours, I
will undertake to provide you with a copy of the petition itself, and the response to the petition. It was a reference of the whole case to the Court
of Criminal Appeal.  My learned friend, Mr McKenchnie,
has kindly pointed out it appears in papers which
are not actually before this Court.
MASON CJ:	It seems vigorous efforts have been made to obscure

what now appears to be the most important point in

the case, Mr Mccusker.

MR McCUSKER:  Your Honours, I must say that one's initial

impression on considering the entire case so far as Peter is concerned is, as Justice Gaudron remarked, "so what", in relation to the evidence concerning

identity and the purchase of the vehicle. In other

words, to put it in legal terms, there is - no proper

conclusion can be drawn on the basis of chat

circumstantial evidence linking Peter with the

commission of the offence.

(Continued on page 357)

C2T26/2/HS	356	MR McCUSKER, QC	24/11/88
Mickelberg

BRENNAN J:	Where does one find that expressed as a proposition
in a ground of appeal?
MR McCUSKER:	A ground of appeal to this Court, Your Honour,

or to - - -

BRENNAN J:	To any court.
MR McCUSKER:	In those succinct terms, it is not to be found,

Your Honour. In the terms in which I have put it, it appears in the supplementary affidavit or the

exhibit thereto which was filed with this Court

comparatively recently before the hearing of the

application.

DEANE J:  Well, what comes closest to it in the grounds

filed in the court below?

MR McCUSKER:  While I am finding that, Your Honours, could I

just mention that the observation by the trial judge -

not an observation but a clear and specific direction which appears at page 1158, volume V, at line C, is a

direction which, of itself, having regard to the

principles in CHAMBERLAIN's case, must be wrong in

law and that is the direct-ion:  ·

· If he bought the car -

and he has canvassed there the identification

evidence -

you may well conclude that he was involved

in the Mint swindle.

And the problem, as I said, in opening the case for the applicant some weeks ago, is that there was simply

no evidence at all that the car was involved in the

mint swindle.

BRENNAN J:  Was that direction ever objected to?

MR McCUSKER:	Not at the trial, Your Honour, no.
BRENNAN J:	Or since?
MR McCUSKER:	Certainly not by Peter Mickelberg on the two

appeals that took place in 1983. I will come to

those in a moment, Your Honours, because there are

somewhat peculiar circumstances I would like to

mention relating to those appeals.

DEANE J: Well, was the Court of Criminal Appeal referred to

that the third time round?

MR McCUSKER: Without turning to it, Your Honour, I cannot be

sure. Speaking of the grounds of appeal that were

C2T27/l/SH	357	MR McCUSKER, QC	24/11/88
Mickel berg

before the Court of Criminal Appeal, probably
the most convenient reference is at volume XIII
where the grounds are set out in the judgments

themselves and it is somewhat general in its terms and that is that - at page 3068B to C.

That is preceded, of course, by a large number of other grounds but ground 14 is a general contention

that:

In all the circumstances the verdict

of the Jury is unsafe and unsatisfactory if - - -

TOOHEY J: Well, that is not quite right, is it, Mr Mccusker?

It is only if itis coupled with the reference to

fresh and new evidence.

I:1R McCUSKER:  Yes, Your Honour, I was going on to say:

the fresh and new evidence referred to

above is considered in combination with

the evidence given at the trial.

This was a difficulty with which I struggled before

Your Honours before.

(Continued on page 359)

C2T27/2/SH	358	I:1R McCUSKER, QC	24/11/88
Mickel berg

MASON CJ:  But it is not a no-evidence point?

MR McKECHNIE: It is not directly a no-evidence point,

Your Honour, I accept that.

DEANE J:	But it must distract attention from the point
that you are now arguing.

MR McKECHNIE:  Without doubt, Your Honour.

DEANE J:	And quite obviously no member of the Court of Criminal Appeal felt himself obliged to deal with
this which is what makes one feel that it simply was not raised there.

MR McKECHNIE:  The question of sufficiency of evidence was

raised in broad terms, Your Honour.

DEANE J: Regardless of new evidence?

MR McKECHNIE: It was in the context of new evidence,

Your Honour.

DEANE J:	Yes, but that is quite different.
MR McKECHNIE:	Yes. However, if I could put it in this way,

the gr ea t er may we 1 1 inc 1 u de the 1 es s er tll-:a~t

the	proposition was - the primary proposition before
the	Full Court -

DEANE J:	But that depends what the greater is and what the
lesser is, does it not?

MR McKECHNIE: It certainly does, Your Honour.

DEANE J: 14 is the lesser. It says, "With new evidence

it is unsafe and unsatisfactory.", which means

if the court says, "We don't think anything at

all of the new evidence", you never come to what

we are now discussing.

MR McKECHNIE:  We would take the matter one step further

and that is, even without new evidence, and the

way that 1 endeavoured to address this proposition

before Your Honours, before and do again, is that

once the question of new evidence is before the

court, then the ~ciurt must have regard to that

in the context of the evidence against the applicant

at the trial itself and that evidence, when one

considers it, is so insubstantial as to not to

amount to a sufficiency of evidence in any event.

And that being so, the Court of Criminal Appeal
ought to have said, "There is insufficient evidence
as the matter stands viewed against the fresh evidence

or not."

DEANE J:	Even though nobody asked it to say that on the
third time round?

C2T28/l /ND 359 MR McKECHNIE, QC 24/11/88

Mickel berg (Continuing on page 359A)

MR McKECHNIE:  The third time round, Your Honour: can I

address that point because I can see that a number

of Your Honours are concerned about that? The

first appeal by Peter Mickelberg in 1983 was an appeal which was contrary, he has sworn, to his express direction, limited to an appeal against

the arson and break and entering convictions.

(Continuing on page 360)

C2T28/2/ND	359A	MR McKECHNIE, QC 24/11/88
Mickel berg

MR McCUSKER (continuing): Following that first appeal, on

which he was unsuccessful and represented there by

counsel who appeared for him at the trial, Mr Singleton,

he immediately applied for an extension of time within
which to appeal against both those convictions and also
the convictions on conspiracy and on the false

pretences charges. And that matter went before a

Court of Criminal Appeal presided over by Mr Justice Wallac,

who was presiding at the Court of Criminal Appeal

in this matter. Before Mr Justice Wallace, the point

was made and taken up by His Honour, that in the appeal,

the first of the appeals limited to the breaking and

entering and the arson, a concession had been made by

counsel that there was evidence on which the jury

could have convicted Peter. That concession was made,

it appears, and it is reflected in the judgment of

the Chief Justice then, Sir Francis Burt,when he

simply refers to the concession. That concession having

been made, of course, it was open, wibhout examining

the basis of the concession, to the Court of Criminal that the jury could convict him as well of these

convictions of break and entering and arson.

The concession was then referred to, and I think

Your Honours have copies, in face, of the extempore

judgment given by the Court of Criminal Appeal on the

second of Peter's appeals, and that concession was referred to by Mr Justice Wallace at page 3 of his

brief reasons. It is true, Your Honours, that before
that court, Peter Mickelberg did not canvass the
question of sufficiency of evidence in the terms in
which I am seeking to canvass it before Your Honours.

One of the grounds of appeal with respect to him is simply impossible to sustain and that was an attack

on the Crown prosecutor who conducted the trial based
on what he referred to as fabrication of evidence before

the jury - misunderstanding the function of counsel.

(Continued on page 361)

C2T29/l/SR	360	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER (continuing): Peter was unrepresented at that

appeal. It was not, in fact, an appeal; it

was an application for an extension of time

within which to appeal against the conviction on

the conspiracy. I have been provided, Your Honours,

with a copy of the argument before the court -

the argument conducted by the applicant,

Peter Mickelberg, in person, as well as the grounds

of appeal. The grounds of appeal read:

The trial judge erred . in allowing the

prosecutor, in his final address, to

fabricate evidence which removed my right

to a fair trial.

Th-at new evidence -

that is the second point -

is available which disproves a section

of the Crown's case.

In relation to the new evidence, there were

three matters, one of which he did not pursue

because he sought an adjournment in order to

adduce evidence relating to handwriting and

that adjournment was refused.

The argument - I have a copy of the arguments,

Your Honours, which, if you were to think it helpful, I could provide. It does not last

very long and the applicant at no time during

the course of that argument canvassed the question

of sufficiency of evidence in these terms.

But, in my respectful submission, one could

not really expect an applicant who was appearing

in person, as he was, before the Court of Criminal

Appeal, unrepresented, to appreciate the legal

propositions relevant to the question of drawing

of inferences in a case of circumstantial evidence.

He sought, in short, to challenge the jury's

verdict on the conspiracy charge by referring

to new evidence and by referring to what he

said were faults in the Crown prosecutor's address

to the jury.

That application for an extention]of time was refused and it is in that context - and it was

refused, His Honour Mr Justice Wallace having,

as I said, expressly adverted to what had been

said by the Chief Justice.Sir Francis Burt.

C2T30/l/SDL	361	MR McCUSKER, QC	24/11/88
Mickelberg

MR McCUSKER (continuing):  So the concession which was

made on what Peter Mickelberg says was,against

his instruG~ions, a limited appeal, - was

used on the first appeal against him in

dismissing the appeal against convictions on

break and entering and arson. It was used

again against him on the application for an
extension of time. Clearly it weighed heavily

with the Court of Criminal Appeal on that

occasion. The concession had been made. It was

quoted an extempore judgment by

Mr Justice Wallace. In short, Your Honours,

this point has never been properly canvassed.

It has been, in broad terms, canvassed in terms

of in all the circumstances the verdict being

unsafe and unsatisfactory. But, in my

submission, all of the primary facts are before

this Court. There is no dispute as to the primary

facts before this Court and it would be an

appropriate case, in my submission, if it were
thought necessary to do so, notwithstanding the
matter has been raised in the supplementary
affidavit, to allow an amendment of the grounds
of appeal so as to specifically include this

ground. The matter has been canvassed in opening before this Court and it has been

adverted to by my learned friend and indeed

is the subject of discussion with Your Honours.

MASON CJ: What is the application you make in relation

to amendment?

MR McCUSKER:  The application would be, Your Honours, or is,

to amend the grounds of appeal, which are draft

grounds, of course, before this Court so as to

include the sho~t ground, that there was no

evidence from which a jury properly directed

could draw an inference of guilt against the

accused Peter Mickelberg.

I say, if Your Honours were to think

that necessary because I - - -

MASON CJ: There is not an actual notice of appeal on

foot - - -

MR McCUSKER:  No, there is not.

MASON CJ: - - -because it is a special leave application.

MR McCUSKER:  That is so, Your Honour.

MASON CJ: What you really are asking us to do is to permit

you to argue this point?

MR McCUSKER:	Which has in fact been argued, yes.
MASON CJ: Yes.

BRENNAN J: That would be an overstatement, too, would it not?

It was not develo~ed in the course of the argument.

C2T31/l/JM 362 MR McCUSKER, QC 24/11/88

Mickel berg
MR McCUSKER: It was certainly developed, Your Honour, by

me in opening,- the argument for the applicant

several weeks ago. It is also the subject of -

as I said, the supplementary affidavit refers to

this problem, that if the motor vehicle was

purchased, what is the consequence of that. So

the point has been directly raised and, of course,

directly raised with my learned friend,

Mr McKechnie.

BRENNAN J: I can only say that if I look at the transcript,

at pages 72 to 73, it is a very brief allusion

to a point that is now sought to be put in

centre stage.

MR McCUSKER: Brief though it is, with respect, the point

is a short point.

MASON CJ: It is but, I think you are taking too much credit

upon yourself in asserting that you have raised

it. It seems to me the point has been raised by

the Bench.

MR McCUSKER: If I could perhaps refer Your Honours to the

supplementary affidavit. However, Your Honours,

I am not seeking, as it were, to suggest that the

Bench did not raise it; however, it has, at

all times been a matter which has been - so far

as the applicant is concerned, been, though not

the major argument in terms of time - - -

MASON CJ:	Very much in the background.
MR McCUSKER:	The background in the sense that we have

canvassed the other evidence but, at the same time

said, 11 S0 where does it lead?".

BRENNAN J: Mr Mccusker, the problem is that in the first

time that it reached the Court of Appeal there was a concession. It may have been in relation

not matter because on this footing, one in all	to four out of the eight charges but that does
in, one out all out; the second time around,
there was the application for an extension of time
in which the first concession proved fatal and there was nothing shown on the material then advanced, I take it, which alerted the court to the fact that this was a major problem.

(Continuing on page 364)

C2T32 /1 /ND	363	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER: That is so.

BRENNAN J:  The third time around, the Court has had the problem

concealed from it by reference to a conditional

allusion to it; that is, if one takes into

account ·the fresh evidence then there is an

unsafe and unsatisfacto~y situation.

MR McCUSKER:	Yes.
BRENNAN J:	Then it comes here without the Court of Criminal

Appeal ever having been seized of the problem which is now to be considered and, I suppose,

the question really is: assuming that there

is importance in this point, is there any way

in which you can ~ave this matter considered

by the Court of Criminal Appeal?

MR McCUSKER:  In my submission, Your Honour, probably

not. I see no way in which the Court of Criminal

Appeal could consider the matter, having delivered

its judgment, other than by way of a fresh petition~

BRENNAN·J:  Is that in contemplation? Perhaps I will withdraw

that question. I would not ask you to answer it.

MR McCUSKER: My learned friend, Mr Wallwork, did mention that

matter, Youn Honours may recall, saying, in relation

to the pin-point evidence, if I can call it

that, that an application had been made or an

approach had been made to the Attorney-General,

whose response had indicated that it was unlikely

that a ·fresh petition would be received favourably.

Your Honours, notwithstanding the difficulties

that Your Honour Mr Justice Brennan has pointed

out, as to the background of this matter, the

fact that it was not raised on the original

appeal, of course, is obvious enough. Why it

was not raised is because the conspiracy charge
was not challenged; the concession made by

counsel before that Court in a sense is understandable

because he was counsel who:had conducted the

trial itself and, obviously, was not seized

of the problem and did not raise any objection
to the trial judge's directions. Notwithstanding

the :fact that ,ft was not raised by the applicant

in person, one can understand that - the point

is, with respect, a fairly clear point - a very

clear point, indeed - and it eme£g~s :from a
consideration of all of the evidence which is

not in controversy.

DEANE J: But you have to add to that; unless you have

something more to show us, so far as I am concerned

it seems crystal clear to me that this point

was not properly raised at all in the Court

of Criminal Appeal and, looking at the supplementary

affidavit, it does not even seem to me to have

C2T33/l/SDL	364	MR McCUSKER, QC	24/11/88
Mickelberg

been squarely raised there, except to identify

the importance of the identification evidence.

Our starting point must surely be that we frankly

ascertain what the position is rather than that we

be obscured by statements, "Oh, it was adverted to"

and that ground of appeal could be tortured

into it.

MR McCUSKER:  I understand Your Honour's point, certainly.

(Continued on page 366)

C2T33/2/SDL	365	MR McCUSKER, QC	24/11/88
Mickelberg

DEANE J:  Now should we not start on the basis that this point

has never squarely been raised anywhere at all including

the Court of Criminal Appeal on the reference?

MR McCUSKER:	I am hesitant to do that, Your Honour - - -
DEANE J:	Then perhaps - we will be going after lunch - you

might give me an answer· then.

MR McCUSKER:  Yes, if I could refer to my learned junior on

that point, but without referring to him I would be hesitant to do it because my understanding was that

in canvassing the evidence 'before the Court of Criminal

Appeal, admittedly in the light of the fresh evidence that

was sought to be relied upon - - -

DEANE J: That is a different matter.

MR McCUSKER: It is,. yes.

GAIJDRON J:  In relation to that, althou~h perhaps not directly so, I would be

assisted by ?t'£'j !T!..aterial or argurent that might be available as

to what really is the function of this Court as an appellate court

say, is there any difference in that Court I s function, when doing	in relation to an inquiry arising by way of petition? That is to
an inquiry and does it have aI'!,Y consequences for this Court?

MR McCUSKER:  Yes, the whole matter, as I have mentioned earlier,

was referred - the whole case was referred.

GAUDRON J: Yes, well I wonder what follows from that?

MR McCUSKER:  Yes. My submission would be, but I would seek to

support it with some reference to authority, is that
because the whole case is referred, despite the fact that

grounds are filed, it does not limit the basis of the

argument.

MASON CJ: Could a court reverse its previous decision if it came

to the conclusion that it was wrong on a particular

point on which an earlier appeal had been dismissed?

MR McCUSKER: Yes, Your Honour, I think it could. There is no

right of appeal where the court has given a decision

on that point, but if the matter goes before the court

by way of petition,·on the same point it must be dealt

with by the court and the court, of course, is not bound

to follow its previous decision.	That is certainly said in the
case.

(Continued on page 367)

C2T34/l/SR	366	MR McCUSKER, QC	24/11/88
Mickelberg

MR McCUSKER (continuing):  May I during the luncheon

adjournment perhaps simply refer to my learned

junior on that point and go on to deal with the second broad question that was raised, and that

was the reliability of the police evidence.

That lies at the heart of this case and the various

deficiencies in the police evidence are these.

My learned friend referred to the failure to

photograph the alleged crime mark as being

explained, I think, by oversight that Henning went

on holidays.	This is in the context of a major
crime.	There is a failure to check the print of the
prime	suspect and the explanation given by my

learned friend to Your Honour Justice Brennan was
that there were hundreds of suspects.

Now that, wtth respect, may have been so,

although the evidence does not disclose hundreds of
suspects, but the question was, "Were there any
prime suspects?", and the evidence does disclose that
there was a search warrant issued for the search of

Raymond Mickelberg's home on 9 July which would seem

to suggest, unless everyone else was receiving search

warrants,that he was clearly a prime suspect by them,

and perhaps one would expect some few days before.

There is also evidence before the Court that

Peter Mickelberg was, as early as 7 July, suspected of being Peter Gulley, and that appears in the police record, the running sheet. Again, what is the reason for the police failure to seek to check the fingerprints of one or both of the Mickelbergs at that early date

if they had a fingerprint on the cheque.	The answer
can only be perhaps oversight again.	There is a

failure to put to Raymond Mickelberg on 15 July when

he was in custody, or 16 July, the fact, as they

alleged, that they had a crime mark on the cheque,

a fingerprint which was identifiable and they at

that stage did have his fingerprint. It is

extraordinary that they would not have, if they

had the fingerprint developed at that stage - that

they would not have, having also got his fingerprint,

compared one with the other and put it to him that

his print was on the cheque.

Instead of doing that he was simply released on 16 July after pleading guilty to a charge of using a

false name. There was a failure to record any

photograph in the photographic register, that is a

photograph of the fingerprint in the photographic

register until 28 July when one may assume or infer

that the entry on that date may relate to a photograph of a fingerprint, although there is no direct evidence of that either, and what is the explanation for that?

Again, is that oversight or carelessness?

C2T35/l/HS	367	MR McKECHNIE, QC	24/11/88
Mickelberg

MR McCUSKER (continuing): There is the fact that, as

my learned friend put it, the evidence given

as to the photograph which was said to be taken

on 15 July was wrong. That evidence was given

to the jury by the police and that evidence, as

it now appears, was wrong and there was wrongly

telling the experts that exhibit 166 - and I do

not here cast any asperions on Mrs Yeats, but

someone gave her an exhibit which was wrongly
labelled and which was relied upon by all of the

experts - we do not know to what degree - in

reaching their conclusion.

That wrong label showed exhibit 166 to have been taken - the photograph taken on 15 July.

We now know that that was quite wrong. And again,

the police wrongly telling the Court of Criminal

Appeal that the date was 16 July. All of those

things may be said to be simply an unfortunate

series of mistakes or careless behaviour on the

part of the police but it all goes directly to

reliability of the prosecution case.

My learned friend's description of wrong

labelling is, with great respect to him, rather

bland for a description of what did occur. It

was false evidence - perhaps consciously false,

perhaps carelessly false, but in either case, it

was false evidence that was given.and false

information that was given to the experts. The

series of errors, of departures from both common

sense and accepted police procedure, of course,

can be given and, in our submission, it would be

likely to be given a more sinister connotation

and whilst one may have one or two strikes against

one, a series of strikes like that leads to some
conclusion that these, really, unexplained
irregularities suggest a deliberate course of

concealment and suggest the absence of any crime

mark as alleged.

Your Honours, one is reminded of, I think,

the suggestion to ~rnest in The Importance of

Being :Ernest that "to lose one parent was

unfortunate but two was gross negligence~. Here

it is beyond that; there are a series of unexplained

errors, discrepancies, all referred to as either

careless or simply blandly wrong.

(Continuing on page 369)

C2T36/l/ND	368	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER (continuing):  In our submission, the learned

prosecutor, or counsel for the respondent,

in dealing with these matters has failed

to appreciate and grapple with the gravity

of these anomalies. Your Honours, in relation

to exhibit 166,it is not just a matter of the

Court of Criminal Appeal having been misinformed
and the defence having been misinformed as to the

date, it is also very importantly a fact that

exhibit 166 with its wrong labelling was given

to all experts. I have prepared a sheet which

gives the page references in the material

before the Court showing all of the experts

who received this material.

MASON CJ:  Mr Mccusker, the Court will adjourn now and resume at 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

C2T37/l/MB	369	MR McCUSKER, QC 24/11/88
Mickel berg

UPON RESUMnr; AT 2.15 PM:

MASON CJ: Yes, Mr Mccusker.

MR McCUSKER:	Your Honours, dealing with the point of the circumstantial evidence, if I could just remind
Your Honours of the history of this matter very
briefly as to how it came before the Court of fresh evidence, inter alia, evidence from a
Mr Domingo and others which discounted the possibility of exhibit 21, the photofit sketch,
being the product of two sets of people; that is,
the Allens and Mr Henry. That, of course, at the hearing before the Court of Criminal Appeal, became an accepted fact that· it was not.the joint product of those persons. That is accepted on the basis of the evidence of Mr Pierce, the police artist.
But it was against that background that, until the Court of Criminal Appeal evidence by
Pierce, there was in evidence before the jury a
sketch, exhibit 21, which purportedly was the product of both sets of persons, the Allens and
Pierce, that ground 14 was formulated; that is,
the ground 14 which appears at page 3008 in
volume XIII. It is picked up there in the judgment of one of the judges of the Court of
Criminal Appeal.

The broad ground which Your Honour

Justice Deane pointed out is expressed against

a background of fresh evidence. It was so expressed

because, as it was perceived, there was some evidence

in the form of the photofit sketch which formed a
link or a bridge,as I have described it~between the

purchaser of the car and the man seen by Mr Henry

that the ground was formulated in that way.

Now, taking that up to make it clear that that

was the thrust of it, in argument before the Court

of Criminal Appeal in volume XI, page 2630 and

following, the issue that I was discussing with

Your Honours was fairly and squarely raised by

counsel for the applicant. It starts at 2630A

where Mr Searle said:

(Continued on page 371)

C2T38/l/SH	370	MR McCUSKER, QC	24/11/88
Mickel berg
MR McCUSKER (continuing):

There is no evidence of any connection at all,

in my submission, between the car's proximity

at Business Brokers to Barker House. Mr Henry's

evidence was that the man ..... ran up the lane .....

the wrong way.

Then at line B he continues there:

In order to draw an inference that the car was involved, surely one has to go back

to CHAY.t.BERLAIN's case. Surely one has to say,

"Look, all facts have to point to that

inference and that inference alone, and that is
the only inference reasonably open", and

there are many, many explanations for a car

being illegally parked at City Business Brokers,

together with a whole lot of other cars in a

busy area, at that time of day. That is the

sole effect.

A little later, just above line D,he put it:

that there is no direct evidence against

Peter Mickelberg in relation to the Mint

swindle. There is no direct evidence, no

fingerprint on a cheque, no Gulley account,

not seen going into Barker House or out, not seen

with any gold, not seen with any of the boxes -

and so on. That argument was continued at page 2631
and discussed with Mr Justice Pidgeon, one of the
members of the court, who said at j.ust above A:

It goes no further.

He was apparently in agreement.

It does not prove that he committed the

offence. A stage would be that he -- certainly

the car he bought was there, if they accept

this, and there is no evidence to impugn that;

there is no inadmissible evidence. There is
the evidence that the car that the Allens sold

was there.

And His Honour said:

And there is evidence that, at worst from the

defence point of view ..... would indicate that

he was at this point at this time - not

committing the offence, but it is just one of

the chains of circumstances.

And Mr Searle said:

No ..... I do not think ..... that there is evidence .....

that Peter Mickelberg was there.

C2T39/l/SR	371	MR McCUSKER, QC	24/11/88
Mickelberg

To which His Honour said:

That is it. At worst.

That is the evidence. Mr Justice Olney said:

Ort the Crown case, at the very worst, his

Honour is putting to you, the evidence goes

thus far and no further.

And it is clear that - Mr Searle responded to that.

It is clear that the debate there was whether the evidence
even put Peter Mickelberg at the scene at Barker House,

as distinct from merely being,at the wors~ the

purchaser· of the car.

(Continued on page 373)

C2T39/2/SR	372	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER,(continuing):  Mr Searle went on to deal,

at page 2632! with the elements of the circumstantial

evidence and the inadmissibility; in particular

directing his argument to the inadmissibility
of exhibit 21, the photofit sketch, which is

referred to at page 2632, just below line B.

He reverted to the theme at page 2632C:

There is no direct evidence. All of the

evidence really comes back to a question

of these alleged admissions.

Then he went on to deal with the admissions

briefly and at page 2633 there is more to the

same effect, dealing with the question of the

Talbot note.

BRENNAN J:  What do you say about the proposition advanced by Mr Searle at page 2632:

nothing there to show anything other than

that at a particular point in time he

may have known where the gold was?

MR McCUSKER:  He is talking there, Your Honour, of the

alleged admissions. He is dealing specifically where - in the context of the alleged admissions.

He says:

All of the evidence really comes back

to a question of these alleged admissions.

And one part of the admission, so called, was
a reference by Detective Sergeant Hancock asking

him where the gold and something to the effect

of, "I can't tell you". I cannot pick up the

exact reference to it, Your Honour, but the

point that was made this morning was apart from

the alleged admissions, what other evidence

is there and, in our submission, none.	In particular,
if the Talbot note were evidence of the purchase

of the car, that could not be said to connect

him of itself with the mint swindle.

GAUDRON J: Mr Mccusker, in volume XIII, page 3008, there

is a reference to Peter having purchased gold

bullion. Is that established by the evidence?

(Continued on page 373)

C2T40/l/SDL	373	MR McCUSKER, QC	24/11/88
Mickelberg

MR McCUSKER: Yes, Your Honour, there was some time earlier

a purchase of gold bullion. One does not have the

record of how· many other people in world or in

Western Australia purchased gold bullion, but there

was evidence that he had. There was some evidence,

of course, that Raymond also had purchased gold bullion on several occasions in the past but, in our submission,

that fact does not take the matter any further. It

could not possibly be relied upon as leading to an

inference.

Your Honours, passing from what occurred at the

trial, therefore we say that the matter was clearly

before the Court of Criminal Appeal.

DEANE J:	What matter?
MR McCUSKER:	The matter of whether there was any direct

evidence, or any evidence from which it could

reasonably be concluded by way of inference that than the alleged admissions.

DEANE J:  Where does that take you? Was there a submission

that the jury's verdict could not be supported by the

evidence and the concession that had been made should

not bind and was wrong, because Justice Wallace clearly

did not understand that any submission had been made,

if one reads his judgment.	He puts the concession
at the beginning of it - - -

MR McCUSKER:	Yes, he does.
DEANE J:	- - - and never comes back to it.

MR McCUSKER:  Yes, I understand that, Your Honour. There was

no submission - at least I do not think there was a
submission - dealing with the concession that was
made, but it must be remembered that that concession

was made in the context of an appeal against a

conviction other than conspiracy and the argument

that I have referred Your Honours to, which appears

at page 2630 and following of the submissions are

clearly directed to this point, and that was the

reason we pass on from there to the application book,

that is Peter's application book, Your Honours,

page 13A, ground 10:

That it is unsafe and unsatisfactory to rely as His Honour Justice Wallace did at page 58 of his judgment on alleged admissions which

are disputed and on evidence of identification

from the Talbot Note alone, which at best if

accepted by a jury would prove that the

Appellant purchased a white Ford Falcon on

May 25th, 1982.

C2T41/1/HS	374	MR McCUSKER, QC	24/11/88
Mickelberg

Having formulated a draft additional ground, and

looking at that, I would respectfully submit that

no additional ground is really required because that

raises the point that was raised before the

Court of Criminal Appeal. Perhaps with the benefit

of hindsight one could have perhaps more concisely

more concisely draft the ground, but it clearly

is the issue which is raised there.

If I could then pass on, Your Honours, to the

question of the matter being argued before this Court.

have unwittingly directed Your Honours to the wrong supplementary affidavit since there are two.

If I could, with respect, refer Your Honours to - may

There is a supplementary affidavit to which is

exhibited a sununary of further specific questions

by reason of which special leave ought to be granted.

It is the most recent of those affidavits and at

page 13 of that sununary there ap~ears as item 4

in the sununary under the heading tircumstantial

Evidence - Clarification of the evidentiary rule

and the direction required:' the proposition that:

(1) The case against Peter Mickelberg was

circumstantial. Even the "verbal confession"

depended upon

(a) inferences being drawn from the

(largely equivocal) content of the

alleged statements, and

(b) further inferences then being drawn

from other objective facts.

I will not take Your Honours right through it,

but it is a lengthy submission which is all directed

to this point, and if I could take Your Honours to

page 15 of that sununary, still under the same

proposition, it is put:

(Continued on page 376)

C2T41/2/HS	375	MR McCUSKER, QC	24/11/88
Mickelberg
MR McCUSKER (continuing):

This circumstantial evidence was not fairly capable of leading to an inference of guilt

beyond reasonable doubt, because -

(a) no reasonable jury, properly instructed,

could have safely concluded, from that evidence,

that the car was used in the Mint swindle,

and in a case based on circumstantial evidence

of this nature, that was the first question

to be answered. The question of whether

Peter Mickelberg had bought the car from the

Allens was not relevant unless that question -

that is, the first question -

could be safely answered affirmatively. At

their highest, these facts raised only a

suspicion.

The same point is made under (b):

No reasonable jury, properly directed, could

in any event have safe:by. concluded that

Peter Mickelberg had purchased the car.

It is a separate but.::.re1:ated point, I should say.
Then:

(c) Even if there had been evidence that he had purchased the car, there was no evidence

that he was at the scene on the day of the

swindle.

At item (4), page 16:

The Trial Judge failed to direct the jury

(and should have directed them) in relation to

the key question of whether the car was used

in the swindle, that the "circumstances" to

which he referred could not establish beyond

reasonable doubt that the car was used in the

Mint swindle. Instead -

and I have there referred to the direction, or part

of it of the trial judge at page 1152B -

that the abovementioned circumstances "point to

its involved" -

he said there, and:

that (1152E) the jury might think those

circumstances pointed "clearly, inevitably,
perhaps" to its involvement; "If he

bought the car you may well conclude that he was

involved in the Mint swindle'.

C2T42/l/JM	376	MR McCUSKER, QC	24/11/88
Mickelberg

So, Your Honours, we have, we believe,

squarely raised the point that was discussed this

morning both before the Court of Criminal Appeal

and before this Court in our submissions. The

written sunnnary is in turn to be found in the

outline. It is referred to by reference in the

outline of the submissions which were tendered

at the connnencement of the hearing just by a

reference.

Your Honours, apart from that matter - which,

of course, was raised in the sunnnary~being

referred to in the course of discussion before

this Court at pages 71 to 73 in the course of

submissions on behalf of the applicant, it again

appears in the transcript of those submissions

at pages 142 to 144.

(Continued on page 378)

C2T42/2/JM	377	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER (continuing): It is our submission that the

reference by petition meant that the whole case

went before the Court of Criminal Appeal and clearly,

in the context of this argument at least, it has

considered and dealt with, though in our submission

quite unsatisfactorily, this point. It is true

that this point was not the subject of any argument

in the two 1983 appeals but, in our submission,

that, in a sense, favours the applicant's case

rather than the contrary. It is not a case where

the Court of Criminal Appeal was being asked to

reconsider an issue which had been ventilated before it in 1983 but rather to consider that matter afresh,albeit in 1987,against a background

that there was no longer the link, as I have called

it, constituted by exhibit 21.

If that were not so, although in our submission

it is clearly so, nevertheless we would submit

that this Court ought in the circumstances of this

case, in any event, to entertain the argument.

There are no facts in disupte which would need

further consideration or evaluation. One instance

of several instances where this _has occurred, of

course, was in the GIANNARELLI (NO 1) case,

(1983) 154 CLR 212. That, of course, was, as it

was said, an exceptional case~ It was exceptional

truly because there the matter was not even

considered in the court below and was not the subject

of any ground of appeal in the court below but

nevertheless special leave was granted, time for

the application was extended and then the appeal

was allowed. And Your Honour Justice Deane referred

to it, with some doubt - the question, at page 231,

as having:

come to the view that, on balance, it is

appropriate to consider the merits of the

question of admissibility which each

applicant wishes to raise -

and special leave was, accordingly, granted. There

is, Your Honours would be well awar~ other authority

in support of that approach being taken even if
it were the case which, we submit, is not the case
here that the mattei was being, as it were, raised

for the very first time as distinct from· having

been ventilated before the Court of Criminal Appeal.

It was referred to in a very early decision of

the Privy Council. I am afraid I have not supplied

Your Honours with a list of references since I

have only referred to this in the luncheon adjournment.

CONNECTICUT FIRE INSURANCE COMPANY V KAVANAGH,

(1892) AC 473, I refer in particular to page 480 -

that is a civil action as is the further reference

/ '

C2T43/l/AC	378	MR McCUSKER, QC	24/11/88
Mickel berg

I have: WAREHOUSING AND FORWARDING COMPANY OF

EAST AFRICA LIMITED V JAFFERALI & SONS LIMITED,

(1964) AC 1 at pages 10 to 11, referring there to

CONNECTICUT FIRE INSURANCE COMPANY case as a

precedent.

There is also a decision - I could not find the authorized version, Your Honours -

DONAGHEY V O'BRIEN & ANOR, (1966) 2 All ER 822

at 828-9. But having done that research,

Your Honours, and cited the authorities it is

our respectful submission that those authorities

are really not necessary or germane because in the present case this particular issue has been

the subject of both a ground of appeal before the
Court of Criminal Appeal, debate on th~ matter

and a decision on the matter and it has, in turn, come to this Court on the application for special

leave. It has been the subject of argument and

is contained within the draft grounds of appeal.

Your Honour Justice Gaudron raised with me

the question of th~ Court's power on petition and

whether there is any difference in dealing with

a reference by way of petition. Section 21 of

the CRIMINAL CODE does provide, if there is a

reference by way of petition, that the whole matter

may be referred to the Court which will then deal

with it as on an appeal.

(Continued on page 380)

C2T43/2/AC	379	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER (continuing): In the decision in DAVIES AND

CODY, which is on the list of authority,

Your Honours,·DAVIES AND CODY V R, (1937)

57 CLR 170, that was a case which was constituted

or instituted by way of reference. In the first

instance, as the judgment at page 172 shows, it

came before before the Court by way of application

for special leave and the Court considered, because

there was an application for the Court for the

first time to consider fresh evidence, that it had no power to consider that evidence and the

matter was then, as a result of a suggestion by

the Court, dealt with by way of a petition. It

was a very strong suggestion and one which was

taken up by the government of the day.

Having gone to the Victorian Court of Criminal

Appeal by way of reference, it was then dealt with

in (1937) VR 150, and the Court of Criminal Appeal

there, in its joint judgment, Your Honours, at
page 154 and following, again referred to the history
of the matter. There had been a motion to set
aside the previous judgment of the court in that
case sitting as a Court of Criminal Appeal and

the court there said:

This judgment on appeal having been

pronounced on the 11th March and particulars

thereof having been duly entered on the

records of the Supreme Court there is, in

our opinion, no jurisdiction in this Court

either under its general powers or under its

special powers as a Court of criminal appeal

to entertain the motion, which was

accordingly dismissed.

The motion to set aside the jud~ment was based

on the availability of fresh evidence. But before

the court at that stage there was also a petition

resulting from the High Court's suggestion and

the court then referred to the petition and dealt

with the matters said to be fresh evidence.

Essentially the court there considered that the

matters raised went only to credit. There was

an admission of one of the witnesses after the

conviction of the appellant, there was admission

by one of the witnesses subsequently recanted to
the effect that he had not given fresh evidence
and the Court of Criminal Appeal in Victoria, having

reviewed that matter, said that that was not

sufficient to allow the appeal.

Dealing with the question raised by

Justice Gaudron, the Court said, at page 157 - and I must confess I am not sure whether this is

peculiarly referable to a petition or simply general -

it may be generally:

C2T44/l/ND	380	MR McCUSKER, QC	24/11/88
Mickel berg

The first essential to a just

conclusion upon the present case is that we
should consider the new material in relation
to and together with all the rest of the

evidence and all that occurred at the trial -

see CRAIG V THE KING

The phrase, "and all that occurred at the trial", 1n our submission, is of importance, as here, on a consideration by the Court of Criminal Appeal of

all that occurred at trial, in our submission,

it points inexorably to there having been a

miscarriage of justice.

The decision not to allow the appeal went

before the High Court, again in the same reported

decision to which I have referred - DAVIES AND

CODY V R - by way of an application for special

leave and the High Court, in considering the matter,

first at page 177, noted that the matter was by

way of:

reference by the Attorney-General under .....
a provision which enables him to refer the

whole case of a person convicted on indictment

to the Full Court, and provides that the case
shall then be heard and determined by that

court as in the case of an appeal by a person

convicted.

(Continuing on page 382)

C2T44/2/ND	381	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER (continuing):  The Court then reviewed the

identification evidence which was a primary
matter of consideration and, at page 183, having

concluded that the direction which was given in

relation to identification could not be described

as a warning, said:

The present case does not, in our

opinion; · call for any .discussion of the

difficulties which arise from the use

of police photographs as a means of

identification.

and referred to authorities and went on to say:

If the only ground were the manner in

which the learned trial judge dealt with the question we have discussed, we might have hesitated in intervening and granting

special leave. But, as we have attempted

to show, the whole question of identification

is necessarily bound up with the nature of

the other evidence in the case.

A little later noted:

The subsequent discovery that some evidence

(as in this case) is said by the witness

who gave it to be false, or is actually

proved to be false, cannot, as a general

rule, be allowed as a ground in itself for

setting aside a verdict or judgment. But

if the verdict is open to objection upon a

ground affected by such evidence, the case

is different. It would not be wise to

attempt to frame a universal rule even for

such cases.

Then, having noted that the supreme court had taken -

the view that Stevens' recantation and his

subsequent withdrawal of his recantation

threw no further light on the credit to be

attached to his evidence.-

nevertheless concluded, in these terms, at page 184

to 185:

Whether the jury believed his evidence or gave

any weight to it in fact cannot be known, but

all the other evidence implicating the accused

depended upon evidence of identity, and, in
this case, the jury was not, as we have

already said, adequately instructed with respect to the matters which they should

C2T45/l/SH	382	1-'IR McCUSKER, QC	24/11/88
Mickel berg

consider. in determing the value of that

evidence. In these particular circumstances,

the facts relating to Stevens' evidence are

sufficient, in our view, to entitle the

accused to a new trial.

So, what occurred there, Your Honours, was that,

as I understand the approach taken, once the

question of the credit of Stevens came forward
as it did on the basis of there being new evidence,

it required the Court to consider the entire

conduct of the trial and,ih the course of so doing,
concluded that the direction given by the trial

judge as to identification, as to identity, was

not satisfactory and that, really, was triggered -

that review - by the evidence that Stevens had

recanted and concluded that, to the facts relating

to his evidence, were therefore and not viewed in

isolation but against the background of the conduct

of the trial -

sufficient, in our view, to entitle the accused to a new trial. We are clearly

of opinion -

the Court said -

notwithstanding the mode of identification

adopted, the evidence, without the testimony

of Stevens, is enough to support a conviction

if there were a proper warning to the jury.

I have been unable, Your Honour··Justice Gaudron,

to find anything further which is of assistance but

that approach, in our submission, is of some assistance

in considering how the matter should be dealt with

and, in particular, the view expressed which, I

suppose, is not as helpful as one might hope, that

one cannot lay down any hard and fast rules. The

important matter, in our submission, is that once

any fresh evidence is before the Court, then the

Court must consider, for the purpose of evaluating

the impact of that fresh evidence, the whole of
the conduct of the trial and it would be our

submission that, even if there had not been before

the Court of Criminal Appeal, as we submit there

was, clearly a ground raising the sufficiency of

the circumstantial evidence to show that Peter was

party to the swindle or that the car.was used,

even if that were:'.not the case, it would still be

necessary for the Court to examine the entire

background and conduct of the trial and look at that

question for the purpose of ultimately determining

whether or not the fresh evidence was sufficient,
weighed in the light of the conduct of the trial,
to warrant a new trial or here, we say, quashing

the conviction.

C2T45/2/SH	383	Mr McCUSKER, QC	24/11/88
Mickel berg

BRENNAN J: Well do you have to address yourself to the strength

of the confessional statements?

MR McCUSKER:  Yes, Your Honour, I have,to some extent. There

are several matters that I have said in brief about that,

I do not propose to recapitulate but,first,that the confessional statements are at their highest ambivalent.

They are not a direct confession of participation in

the swindle, they are statements - these alleged
confessions are statements from which, perhaps, an
inference might be drawn but,in our submission, there

was equally open to the jury an inference that all

that was being said was some admission as to knowledge

of Ray's participation. That is one possible view that

one could take of the confessional statements - that

is dealing simply with the question of the interpretation

of what was being said. Of course, our - - -

BRENNAN J:  The problem about that, as it seems to me, is that

if we are asked to consider it now, as I gather you

are asking us to consider it now, we would have to
consider what it was open to the jury to conclude,as a

result of hearing and accepting the police evidence of

what was said, in the context of a trial in which the

accused had given evidence?

MR McCUSKER: Yes, that is true, Your Honour.

BRENNAN 1. J:  I, for my part, have no idea of what the accused

said in his evidence about all of this and I do not

know whether - - -

MR McCUSKER:  I think my learned friend, Mr McKechnie,has fairly

and briefly stated that.	He denied having made the
admissions alleged.	He said that he was beaten but that

the beating, his proposition, it was not as severe as

it would have been, that being because of the existence

of the medical certificate which he and his brothers

had obtained as a precaution. And he· also gave evidence

regarding the letter which he had from Mr Cannon, his

solicitor, saying that he had been advised of his

rights and did not propose to make any statement. That

is effectively the evidence which he gave - a complete

denial and therefore an allegation of police fabrication

of the alleged confession. It was not a case of saying,

"Well, I did say this, but I meant something else", nor

was it a case of "a c·onfession,-was beaten out of me".

Your Honour, in considering the confessional

evidence, of course, as must be the case, regard also has

to be had, at this stage, it is all·right for my

learned friend to say, "Well, this trial was conducted

pre CARR" as he put it, but one mu.st consider

nevertheless what the conunon law is in relation to, and

always was, to this kind of confessional evidence. And,

in o.ur-submission, in considering the fresh evidence

C2T46/l/SR 384 MR McCUSKER, QC 24/11/88

Mickel berg

and indeed in considering the question of the weight

of the circumstantial evidence, regard has to be had
to the fact that no warning, whatever - caution, putting
it at its lowest, was given to the jury, notwithstanding

these circumstances which I have touched upon; the

extraordinary circumstance, we would submit, that a man

who has been warned of his rights, I think I had

addressed Your Honours before on this point and so on,

should nevertheless make a verbal admission unsigned,

unacknowledged.

And, in our submission, having regard to the

nature of the confessional material, in terms of its
content, the way in which it is said to have been obtained,
the lack of any caution and then the complete

insubstantial nature of the circumstantial evidence, which

was nevertheless referred to by the trial judge in his

direction as, in effect if accepted, pointing inevitably
to involvement in the mint swindle, the conviction

could not, in justice, stand. It has not been a fair trial. That was essentially, not in those words, but

essentially the submission before the Court of Criminal

Appeal which was rejected and in our submission these

are important points which are raised which is why we

come to this Court. It is an important question, of

course, the nature of the circumstantial evidence which

can fairly or properly be relied uponr. The Court of

Criminal Appeal appeared to accept the trial judge's

direction that once there was evidence that might lead

the jury to conclude that Peter was the purchaser of

the car,the rest inevitably followed.	In our submission,
it did not, and that needs correction.

(Continued on page 386)

C2T46/2/SR	385	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER·(continuing):  The Court of Criminal Appeal

again appeared to accept the trial judge's view,

perhaps unspoken, that - no, indeed, it was

expressed - for the purpose of considering the

confessional evidence they should simply have

regard to whether it was put to the jury as

to their assessment, I should say, of the police

witnesses as fellow human beings which is, if

it is helpful at all, certainly not helpful

to the degree that a trial judge should direct

a jury in those circumstances.

Does Your Honour Justice Brennan - would

there be any assistance derived by my referring to specific parts of the confessional evidence?

I have before - - -

BRENNAN J:  If you could just give me the page references,

it would be sufficient, Mr Mccusker.

MR McCUSKER: It is referred to in the judgments themselves;

it is set out in extenso in the judgments,

Your Honour.

BRENNAN J:	Yes, very well.
MR McCUSKER:	And in reading it through one is struck

by the lack of any direct acknowledgement.

One comment can fairly be made of that; one

comment was but we say there is a counter to

it - the comment that was made of it, I think,

on behalf of the prosecution, was: well, if

the police were fabricating evidence, why would
they not go all the way and fabricate it in

much more positive terms so as to contain a

complete admission? Of course, we are talking
here simply of inferences to be drawn. But,
a counter to that is that in fabricating evidence

in detail, the risk is run, and very clearly,

that the greater the detail the greater chance

there will be of the admissions being shown
to be false.	The broader the brush the more

likely·- the less detail the more likely it

is that it will be accepted that these confessions

are genuine confessions.

Quite apart from detail, having the possibility -

the seeds of danger - that the confession may

be upset; there is also the greater believability

that enables the prosecution to say, "Look, this is not a fabrication because if it was

a fabrication then a complete confession might

be expected. But it was not." And yet, a further

comment could be made that the detail was not

there because the police simply did not have

sufficient detail, in any event, and all that
they could do in terms of producing an alleged
unsigned confession was to put it in very broad

terms.

C2T47/1/SDL	386	MR McCUSKER, QC	24/11/88
Mickelberg

DEANE J:	Have you a reference to your client's evidence in
relation to the police questioning or what
have you?
MR McCUSKER:	Yes, I will have it for you in a moment, Your Honour. There may have been, Your Honours,
just in conclusion on that point, cases of a more extraordinary nature in terms of the
circumstances in which the alleged confession
was taken but this is, surely, one of the most
extraordinary, where you have a man who is advised
and given written advice that his rights are
to remain silent and that written advice contains the statement that this man has said that he
intends to rely upon that advice and make no
statement.  And then you have the circumstance
that the man has obtained in anticipation of
a beating - and that was his evidence - and
that evidence is corroborated by the production
of a certificate - had obtained a medical
certificate to show that at the stage that he
got the certificate he was in good health and physically fit.
And you have added to that, Your Honours, and this jumps to the Hancock tape, a reference
in the Hancock tape-recording to Mr De Grussa
who had put these men on the alert that they
might get a bashing, according to Peter's evidence;
to Mr De Grussa being discussed and Mr Hancock
saying that De Grussa had made things difficult
for them; and some discussion, which is clearly
directed to Hancock's concern - or being upset -
at the fact that they had obtained a medical
certificate.

(Continued on page 388)

C2T47/2/SDL	387	MR McCUSKER, QC	24/11/88
Mickelberg

MR McCUSKER (continuing):  So, in the light of those

circumstances, coupled, of course, with the

fact that despite the alleged admissions

freely and voluntarily given, there is

no semblance of an acknowledgement, no

signature, no initial, no nothing, it is

submitted that this is a case where, looking

at the conduct of the trial in the context

of a consideration of fresh evidence, one

would have to say that this is a circumstance
weighing heavily against the conviction

standing.

If I could just briefly mention,too,

the question of exhibit 166 once again? This

goes back to the fingerprinting evidence.

My learned friend,Mr McKechnie,referred to

what he was pleased to call the mischievous

submission of Mr Wallwork to this Court regarding

the lack of any photographic negatives, but the

evidence, and I will refer Your Honours to it,

belies the proposition that that assertion was

in any way mischievous.

At the trial, Mr Billing, under cross-examination.-

he was called by the applicants - produced, he said

under subpoena, photographs of the cheque and one

negative that was with the photographs. That was

in reply to the subpoena. There was no suggestion

then or since that any other negatives, apart

from the negatives of those particular photographs

which were of the front of the cheque, existed.
Yesterday my learned friend, in addressing Your Honours,
did give, despite his disavowal of giving any

evidence from the bar table, of course, did

precisely that.

In the course of addressing Your Honours in

relation to exhibit 166 he said that the Crown

would seek to call further evidence, which he

said had been brought to this Court in the form

of negatives, but was not prepared to say what

the negatives were. That in itself, of course,

is the giving of evidence from the bar table.	The
fact that this Court is not told what those

negatives. are, and despite a request, nor are we,

in my submission, leaves the matter a completely

unhelpful assertion by counsel for the respondent.

The question of whether or not this Court should

have regard to this fresh evidence, the pin-point

evidence, should be considered without, as it were,

sitting in the back of the Court a threat of

some evidence undisclosed being produced, or

sought to be produced by the respondent.

Furthermore, Your Honours, another point

which my learned friend for the respondent raised,

which, in my submission,is totally unsupportable

C2T48/l/JM	388	MR McCUSKER, QC	24/11/88
Mickel berg

is the suggestion that this pin-point evidence

was discernible, could have been discovered,

by reasonable diligence, to which the question

straight away is: why then did not the police,

or the prosecution discover it and advise the

defence of it; and further suggested that

this could be - I do not say "was" - the saving

of a point for appeal, which is an extraordinary

proposition.

The photofit evidence has been referred

to at some length, Your Honours. If I could

touch just briefly on what we consider are the dual purposes, or importances, of the photofit evidence? One, and most importantly, is that

it served a link between the Allens and Henry

so that what went in as exhibit 21 would have

been perceived by the jury to prove, or tend to

prove that the man who purchased the car was

the man who was at the scene, seen by Mr Henry.

That link, however one views the photofit,- whether one views it as a good likeness or

whether, as Mr McKechnie suggested, not even his own mother would know him, is beside the

point. The proposition that the jury had

before them was that the two people independently -

two sets of persons - the sellers of the car

and the man on the scene on the day were both

able to describe the same person. Once it was

established by the Talbot note that that person

was Mr Peter Mickelberg, as that Talbot note was

produced to do, then it became a simple step in

logic to conclude that Peter Mickelberg was at

the scene.

(Continued on page 390)

C2T48/2/JM 389 MR McCUSKER, QC 24/11/88

Mickel	berg
MR McCUSKER (continuing):	The removal, as it now occurred,

of that link, as a result of the evidence of Pierce

given only at ·the Court of Criminal Appeal,removes

effectively that proposition. So far as the

second importance of the photofit evidence, however -

and my learned friend made much of the evidence given
which he said was discredited, although it was evidence

by very eminent people from various parts of the

world, evidence that this particular sketch was not

the product of a photofit, could not have been made

in the way described, and was indeed either a copy

or tracing from a passport photograph. That is a

matter which, in our submission, is of lesser

importance but would go to the question of the entire

reliability of the police evidence, but we do not

press that. We do not seek to urge upon Your Honours

that it is otherwise important because the proof
that it came from a photograph or proof that it was
traced from a photograph would only go, we say, to

the question of bona £ides of the police.

However, what we do quarrel with before this Court

is the approach taken to the evaluation of the

photofit evidence by the Court of Criminal Appeal,

their assessment of the objectivity of the witnesses

looked at simply - as a simple conclusion, of course,

one would well say, "How can an appeal be brought
against the assessment of objectivity?", but the

underlying reasons, when examined, do not support the

conclusion. The lack of objectivity is said to

be based on, in our submission, a fallacy.

There is reference been made to Peter's past

appeals - I have referred to those circumstances,

Your Honours. The circumstances, in our submission,

show that Peter has not, to date, ever had his case

properly dealt with or reviewed by any court of

appeal. I accept, of course, the Court of Criminal

Appeal from which we are now appealing but on no

prior occasion in 1983 has the whole of his case

been dealt with.	On the first occasion the
conspiracy charges were not considered and the

deletion or the exclusion of the conspiracy

charges from consideration had the inevitable

consequence that the appeal against the other

conviction stood and then the concessions said

to have been made in relation to the conspiracy by

counsel in the course of argument was relied upon in
the Court of Criminal Appeal on the application by

Peter for an extension of time to appeal as a major

reason for not allowing the extension of time.

On the question of the handwriting, my learned

friend has dealt with the basis of Mr Billing's opinion

and our short point in relation to that is that the

real objection is not Mr Billing's opinion, but to

the board going in evidence, and it was more than,

C2T49/l/HS	390	MR McCUSKER, QC	24/11/88
Mickelberg

with respect to Your Honour Justice Deane, a trifle

unfair. It was clearly unfair because to cut out

letters and to select letters for that board as was

conceded by Mr Billing the process that he had

undertaken - that appears at page 1156 - - -

GAUDRON J:	It was not objected to.
MR McCUSKER:	It was not objected to, Your Honour.
GAUDRON J:	Although that may assume less significance if

you give the remarks in DAVIES AND CODY their full

significance.

MR McCUSKER:  Yes, Your Honour, that is our submission.

The other answer to that that we would make, with

respect, is that in any event there is an obligation

imposed on the trial judge independently of the

adversarial process engaged in by counsel to ensure

a fair trail. Certainly a trial judge would not

readily intervene where defence counsel acquiesced
in the admission of evidence which might conceivably
be for the benefit of the defence, albeit objectionable.

But this is a case where there could be no conceivable benefit and it was clearly simply a mistaken view by

counsel, in our respectful submission, which in the

end prompted him not to object to that evidence

going in.

I have referred Your Honours to RE KNOWLES,

the decision in Victoria, and that, of course, has

been the subject of discussion more recently in

GIANNARELLI in this Court. In fact the two decisions

I would seek to refer to, Your Honours, are in the

Victorian Supreme Court, WRAITH V GIANNARELLI,

(1988) VR 713, where at page 727 the Full Court

said at line 40 and following:

Lest it be thought, however, that we overlook,

in the case we have supposed, that the convicted

plaintiff must ex hypothesi have suffered an

injustice, there is one other matter we should

mention. The possibility of an accused

person's suffering an injustice by being

wrongly convicted through the negligence of

his counsel is.reduced by the fact that, if

it can be shown to the Court of Criminal

Appeal without, of course, any questioning

of the jury, that such a thing is likely to

have happened, that Court will set aside the

conviction. It must be said that it is

not a ground of appeal against conviction

that receives any encouragement from the

Court and evidence is not generally received

to establish that it has occurred, but

C2T49/2/HS 391 MR McCUSKER, QC 24/11/88

Mickelberg (Continued on page 391A)

convictions have been set aside for that

reason ..... Courts of Criminal Appeal

have a wide discretion and are always

alert to ensure so far as they can that

there has been no miscarriage of justice.

I think Your Honour Justice Brennan reminded me

of the decision of this Court in GIANNARELLI when

I last appeared before Your Honours, and if I could

refer there to what was said by this Court, it is

in the unreported, of course, decision delivered on

13 October 1988. At page 27 of his reasons

Justice Wilson referred with approval to the

decision IN RE KNOWLES saying:

(Continued on page 392)

C2T49/3/HS	391A	MR McCUSKER, QC	24/11/88
Mickelberg

MR McCUSKER (continuing):

In criminal law a conviction may be set

aside and a retrial ordered where justice

miscarries because an accused is represented

by incompetent counsel.

I should add, Your Honours, lest it be thought

that this is some form of broadside against counsel,

that incompetence or negligence in these terms

do not imply other than a mistake and - - -

DEANE J: But, of course, the problem at this distance is,

if the evidence of the expert that the writing

on the Talbot note was your client's handwriting

was convincing and unshaken,the production of an

exhibit that can be said to be unfair will,

obviously, be something which a defence counsel

may well like to have admitted as a means of

questioning the impartiality of the expert and

from this distance, when no objection is taken,

it becomes extraordinarily difficult for this Court

to say, in the overall perspective, that was

prejudicial to the accused.

MR McCUSKER: Well, Your Honours, I accept the point taken,

most important piece of evidence against him apart

6f course, but looking at the nature of the board

and the importance in terms of the evidence against

from the confessional evidence.

DEANE J:  The_, handwriting?

MR McCUSKER:  The handwriting, I am sorry. But the board

itself must have played a major part in the jury's

consideration and to say, there might have

been some slight benefit to the accused because

of a potential to challenge the impartiality - - -

.DEANE J: It depends on how strong the evidence was. I can

well imagine circumstances in which that board
would be very helpful in attacking the witness

of an otherwise, unimpeachable expert.

MR McCUSKER:  One way of doing that, with respect, which

readily occurs is that since defence counsel has

the board in any event and, therefore, knows the

basis upon which the opinion o~ at least, what

is said now to be the illustration of the opinion,

then it is an easy matter for counsel looking at
that to challenge the impartiality and the selectivity

of the process without at any time admitting the

board into evidence. The admission of the board,

in my submission, really, of itself served no
forensic purpose so far as the defence is concerned,

except to damage the defence.

C2T50/l/AC	392	MR McCUSKER, QC	24/11/88
Mickel berg

Could I also refer Your Honours to page 52

of GIANNARELLI where, again, in the judgment of

Justice Dawson, RE KNOWLES is referred to with

approval.

Your Honour the Chief Justice asked for some

information regarding alibi evidence. I think

it may be simpler, since there is an abundance of

it, if I were to undertake to supply the Court with

a typed list.

MASON CJ:	Yes, that would be more suitable, Mr Mccusker.
MR McCUSKER:	I could, however, mention that, in reply to

a question raised by Justice Brennan, at page 758

and 778 of Peter Mickelberg's evidence, he deals

with the question of the police questioning of

him.

BRENNAN J:	758 and?
MR McCUSKER:	758 and 778, Your Honour, and following pages

but that is where it starts.

(Continued on page 394)

C2T50/2/AC	393	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER (continuing); There were, my learned junior

points out, in all, some 12 witnesses dealing

with the question of alibi, none of whom was

unfavourable to the accused on this point, none

of whom destroyed the alibi evidence by any

direct evidence of any nature.

Mr learned friend, Mr McKechnie, referred to several matters in his concluding remarks: one was the question

of Mr Bacskai of Arpad Security. He made several

propositions. If I could deal briefly with the

significance of Arpad. The proposition was put

to the Court of Criminal Appeal, really in the

context of circumstantial evidenc~.and the

proposition which was put was, "look at the

circumstantial evidence against Peter, compare

it with the much stronger evidence that exists
as to the involvement of Arpad Securities.", the

proprietor of which was Mr Bacskai. Arpad, after

all, was the company which was there to receive

all the gold and, on its evidence and that of

Mr Duynjak delivered the gold to Mr Duynjak

and there was evidence that it knew that it was

gold, on the production of a shooter's licence

by Mr Duynjak who t-0ok it to Jandakot Airport,

delivered it at a point where two people who

happened to be working there at the time, nearby,

said they saw no one but, nevertheless, the evidence

was, delivered.it there, left it there, it was

never seen again.

The evidence relating to Mr Bacskai,

furthermore, is not as my learned friend,

Mr McKechnie, suggested without any proposition

being put to Bacskai that his company was involved.

The proposition was put and I refer Your Honours to supplementary volume V and pages 3586, 3588

and 3589A to B.	So it was not some, as it were,
idle action on the part of defence counsel.	At

3586C he was asked whether his company had been

involved in connection with the loss of gold in

the same year from a TAA flight, that company having

taken delivery of the gold.

And at 3586 he admitted that the gold went

missing but he went on with a great explanation

of what had occurred. At 3589 - - -

BRENNAN J: Before you leave that, I have not read the great

explanation but is it a convincing one?

MR McCUSKER:  I am sorry, Your Honour, I should not have

used, perhaps, the perjorative "great explanation".

It was a fairly lengthy explanation and we do not

submit, and never have contended that Arpad was

the swindler. How could that be said? There is

C2TS 1 /1 /ND	394	MR McCUSKER, QC	24/11/88
Mickel berg

no evidence sufficient from which to draw that

inference. The proposition, however, was put that

in terms of to whom the finger of suspicion might

point, it might well be said that Arpad Security

had much more evidence of possible involvement

against it than Peter Mickelberg. And at 3588 - - -

BRENNAN J: There is one thing I do see there is that TAA

was never a client of Arpad.	What has TAA got
to do with it?

MR McCUSKER:  Your Honour, the evidence, I think, was that

Arpad Security were engaged to deliver a consignment of $250,000 worth of gold to a TAA flight and there was a dispute as to what happened to the gold but

it never was found. TAA said they did not receive

it, Arpad said they delivered it.

(Continuing on page 395)

C2T51/2/ND	395	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSK.ER (continuing): There is further evidence in relation

to that, and indeed, in relation to the mint swindle,

Your Honour, in terms of the way that they had performed

their function as a security agency. They were in

breach, on both occasions,of their security agent

licence. And it was put to Bacskai at page 3589B:

Some 11 days .•... after that offence -

that is an offence relating to breach of security -

agents licence -

was company involved in what is commonly

known as the Perth Mint swindle?--No.

So it was squarely, we would have thought, put to

Mr Bacskai for what that point is worth and it is only worth this in the end, that my learned friend sought

to perhaps make some forensic point out of it by

saying that Bacskai was called, but nothing was ever

put to him. The only relevance of the Arpad point

was that there was a lot of circumstantial evidence,

as it were, about and stronger circumstantial evidence

pointed to the involvement of Arpad. Dealing with
the question of my learned friend's junior, Mrs Yeats,
the sole point in relation to that and we maintain

it strongly is that Mrs Yeats provided information

to various expert witnesses. Now we do not contend that

that information was provided improperly, but it is

relevant and important to know what that information

was for the purpose of being able to assess or
evaluate the expert opinions which were based on that
information.

I am reminded, I think, that Your Honours did ask my learned friend, Mr McKechnie,to provide you with

a list or some reference point for information provided

by Mrs Yeats. I do not think that has yet been done

and certainly the point of the contention that

Mrs Yeats should have been allowed to be called by the

defence for cross-examination was in order to obtain

information which was simply not before the defence.

There was, prompting that, and when I say this, I do not

associate myself with the comment made by one of the

expert witnesses, but there was indeed a complaint by
one of the expert witnesses, at least, that he

was saying . is, "I have read the transcript'; because each witness called for the defence was provided with

thought he had been misled as to what had occurred.

the transcript of what had occurred at the trial

relevant to this question of fingerprinting - "I have

read the transcript and my understanding is that there

was evidence that rubber fingers et cetera were

seized, but I have been told by Mrs Yeats that that is

not the case" and so he was complaining of being misled.

C2T52/l/SR	396	MR McCUSKER, QC	24/11/88
Mickel berg

Now, the question really is, focusing. on this point, is it wrong, is there anything necessarily detrimental or adverse to the expression of an expert opinion,

which expert has been provided with information which

is, in this case, information that there had been

rubber fingers and moulds seized~ This expert, the

man who did have some complaint, said that that was

his understanding but he had been told differently.

But the real point of the contention of the applicant

is that where expert opinion is given, and there was

considerable expert opinion here, based on information,
then it is not proper for the defence to be denied

the right to call witnesses who can clearly give

relevant evidence as to what that information precisely

was.

Now, Your Honours, I am conscious of the pressing

nature of time and I have prepared a sunnnary of
reply in written form which deals with many of the other
points which have been raised by my learned friend,

Mr McKechnie,in the course of his address to

Your Honours.

MASON CJ: Yes, thank you, Mr Mccusker.

(Continued on page 398)

C2T52/2/SR	397	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER (continuing): Points 1 and 2 I have already

dealt with, Your Honours. Point 3, the fabrication

of the crime mark, my learned friend,Mr McKechnie,

referred to Raymond's evidence. It is clear

that Raymond's evidence, despite the fact that

he knew, of course, in advance of the trial where

the alleged crime mark was, was that - and he

steadfastly maintained - he had held the cheque

at the corners and not - - -

DEANE J: What is the evidence about the restriction

of the appeal being contrary to his instructions

and so on?

MR McCUSKER:  That is the evidence really relating to

Peter, Your Honour. There is an affidavit, which my learned friend Mr McKechnie reminds

me he has not yet agreed should be before the

Court, but we say it is properly before the

Court. It is an affidavit in support of the

application for special leave.

DEANE J:	But why should - I mean, you say we should
believe that? Reading his evidence as to other accusations he has made against Mr Cannon would not inspire me with any inclination to believe it.
MR McCUSKER:	Your Honour, we are dealing with

Peter Mickelberg and his - - -

DEANE J:	He made some very strong allegations against
his previous lawyer which he expressly withdrew
in his evidence.  Why should we believe this
lot of allegations?
MR McCUSKER:	Your Honour, I can only say that the evidence

is before Your Honours, that his - -

DEANE J: Is it really before us, in the sense of evidence

we can act on?

MR McCUSKER:  Only in the sense that you can act on it

for the purpose of a special leave application,

Your Honour, where evidence on affidavit is

customarily accepted by the Court. If it were
to be the case, Your Honour, that on the question

of special leave the fact that he had appealed

initially only against the convictions for

break and entering and arson, then, in our

submission, the reason for his having done so

is stated in the affidavit which is there for

Your Honours to consider.

I cannot take it any further than that, but

I can add as an adjunct to it, as it were,

that it is clear that Peter Mickelberg did in

C2T53/l/JM	398	MR McCUSKER, QC	24/11/88
Mickel berg

person seek leave to appeal against those

convictions ip the same year.

DEANE J: But on a completely different basis to that

which was involved in the first appeal?

MR McCUSKER:  There was none in the first endeavour,

Your Honour; there was simply no ground of

appeal put forward on the conspiracy charge

at all, because there was no - the first

appeal was not on conspiracy. Peter Mickelberg's

affidavit deposed to the fact, he says - I accept

that Your Honours do not have to accept that -

deposed to the fact, as he puts it, that his

instructions were to appeal against all convictions

and at least the fact that he in person, and

represented in person, appeared before the

Court of Criminal Appeal inan appeal launched in

the same year seeking leave to appeal and

an extension of time, because he was by the then
out of time on the conspiracy charges, perhaps

adds some weight to what he says.

He repeated that assertion, Your Honours,

in the course of his appearance in person before

the Court of Criminal Appeal, that is the second of the appeals, but the first conspiracy appeal.

He said there, at page ..... I did undertake,

if Your Honours thought it would be of some

assistance, to provide Your Honours with a

transcript of what did proceed at the Court of

Criminal Appeal in 1983-84.

It is not some fresh invention, Your Honours.

When he appeared before the Court of Criminal Appeal

in person he said at the outset that Mr Singleton

had, contrary to his instructions, not appealed

against the conviction on conspiracy.

But, in my respectful submission, Your Honours,

this is not a valid reason in any event.	The
background of two earlier appeals: one not

against conspiracy, the other in person against

conspiracy, not a good reason for denying special
leave, if that were the proposition advanced,
which I apprehend it is, by the counsel for the

respondent.

(Continued on page 400)

C2TS3/2/JM	399	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER (continuing): The matter has been

properly instituted in the Supreme Court of

Western Australia by a petition.

This application comes before this Court as

a result of the Court dealing with that

petition. There is no question of the

application being out of time nor is there

any question of the matters sought to be

ventilated, having been ventilated in the

two earlier hearings in 1983-84.

Could I just mention, dealing with paragraph 3,

cheque at the corners but that evidence was relied upon by the prosecutor in his address to

the fabrication of crime mark, that not only did the

point out to the jury that any question of a	the jury - I have referred to 989E and 990B-to
inadvertent or trapped putting on of the crime mark
was not on by virtue of Mr Mickelberg's own evidence.
The trial judge, in turn, in his direction to the jury
reminded the jury of that.
Now, the criticism which was made of the expert witnesses called to give evidence that the print was
consistent with forgery, Your Honours, is based on
an asserted lack of objectivity but, in my submission,:
to have, as it was described, I think, by
Mr Justice Wallace, recanting I think was the
description he used, was not really that. It was
a modification of their opinion which initially,
based on the information they had, which was initially
that the crime mark was a forgery; t:M:>,it was consistent with a forgery and a denial that it could be established that it was genuine, having regard to the poor nature of the material.
The evidence given by the experts for the Crown was the subject of criticism by Mr Little, who was
an expert called - this appears at page 1999. He
was critical of the Crown experts' ·opinion. He
gave reasons for that. He was not cross-examined
as to that but no reference to that whatsoever
appears in the decisions.and, in our submission,
as appears at paragraph 6 of this reply; ... the
approach taken by the Court of Criminal Appeal was
wrong, fundamentally wrong in the way that it dealt with the matter. Ind it should be added, Your Honours,
that Justice Pidgeon, dealing with Raymond's case,
appears at 3164B to C, clearly misunderstood Raymond's
case as being that the crime mark had been placed
there inadvertently or accidentally or by a trap.

Furthermore, :i.f I could refer Your Honours to

page 3165A to B ·and th.is is in the context of evidence

C2T54/l/SH	400	MR McCUSKER, QC	24/11/88
Mickel berg

that rubber fingers and moulds had been seized

on 15 July. That was evidence which was given

at the trial and not contested at the trial. It

was said to be not in issue at the time but,
nevertheless, the evidence was there. His Honour

Mr Justice Pidgeon said, in relation to that

evidence,and he had heard none of the witnesses

save Peter Mickelberg, that:

It would appear to me that once the police

explained -

this is hypothesizing evidence given by the police

at a trial -

what they seized and supported the evidence
with what was written in the warrants it
would have been accepted.

Now, with respect, that is simply a wrong approach.

How can the Court of Criminal Appeal, on an application

or a hearing of this nature, hypothesize as to what

or heard the witnesses who gave evidence of the	the jury would accept when His Honour had not seen
seizure on 15 July and there can be no compelling
conclusion drawn from the fact that the police
referred to warrants because, indeed, the police
evidence was ultimately that the warrants._were not complete and were not a concise statement of all that had been seized. There were books on moulding which were admittedly seized and other material which
is referred to in the evidence of Mr Tovey.

The major reason for, in particular, His Honour

Mr Justice Wallace finding that the evidence of the

experts called by the defence was not plausible or

cogent or not acceptable~ not believabl~, perhaps -

was his perceived lack of their objectivity and,

in our submission, that when it comes down to it,

is based on the fact that they changed their view

from, certainly a fabrication of the crime mark to

consistent with fabrication but cannot tell.

(Continued on page 402)

C2T54/2/SH	401	MR McCUSKER, QC	24/11/88
Mickel berg

MASON CJ: This is really canvassing matter that you

dealt with in-chief, is it not, in so far as

this is an attack on the judgment of the Court

of Appeal; it is not really a matter in reply?

MR McCUSKER:	I have endeavoured to make it so, Your Honour. The paragraphs follow the assertions made by
the learned counsel for the respondent and some
of the matters, indeed, most of them which he has raised, are new matters.
Perhaps I could refer to the production of exhibit A7 and I refer here to the fifth
page of this summary of reply , the red rubber hand which is referred to. T.his was referred
to both by learned counsel for the respondent
as well as at least one of the judges in the Court of Criminal Appeal as being, as it were,
some evidence of lack of bona fides.
First, at trial, Raymond Mickelberg did not say that this red rubber hand had been seized;
he referred to it as the sort of work that had
been done and, if Your Honours read the evidence
that he gave there, it is clear that he was
not saying that this hand had been seized.
He was asked whether it was, which was a rather
extraordinary question to put to him by his
own counsel, but he simply said, "That sort
of work."

It was never asserted at the trial, on

his behalf, that that hand had been, in fact,

seized on 15 July. Peter, at the Court of Criminal

Appeal, gave evidence at page 204a and his evidence

preceded that of Mr Cannon, .who was called by

the Crown, and his evidence was that this hand
he believed to have been prepared for the trial

and was not asserting that it had been the subject

of seizure on 15 July although he gave evidence that other things, other hands and moulds were. My learned friend has referred, as a reason

for the police not having sought to make a comparison

or a check of fingerprints, to there being hundreds

of suspects. I have referred in paragraph 12

of the summary to the abundant evidence which

shows that the Mickelbergs were prime suspects -

there can be no other description - by the 7th or, at the latest, 9 July. The evidence there

is in the form of police running sheets_.

Detective Sergeant Tovey's evidence	all clearly
supports that.	How could one have a more prime

suspect than someone suspected to be Peter Gulley,

the person in whose name the particular accounts

were opened and, surely, there must be a prime

susp~ct if warrants for search and seizure

are taken out, as they were on 9 July.

C2T55/1 /SDL	402	MR McCUSKER, QC	24/11/88
Mickelberg

My learned friend said that the conflict

between the Allens and Pierce was before the

jury; in our submission that is not so. The

conflict was not clearly before the jury. The

Allens were not called before the Court of Criminal

Appeal, only Mr Henry was called, and Pierce.

So we cannot say just what the truth of the

matter is.

Your Honours, I did undertake to my learned friend, Mr Wallwork, that I would allow some

time.	He said he wanted only about half an
hour within which to respond.	Could I just

indulge the patience of the Court a little longer

by first handing to the Court a summary of some

further submissions in reply to my learned friend
on the question of the effect of DARBY's case.

In our submission, the point in DARBY's case

has not been dealt with in the two earlier

appeals~ Of course, the first appeal, in 1983,

could not possibly be said to have been dealt

with; the appeal later in the year - the point

was not raised, as one can well imagine, by

Peter Mickelberg in person, and that is contrary to my learned friend rs assertion.

MASON CJ:  We may be faced with a prospect of giving

Mr McKechnie the opportunity of replying to

this submission, now?

MR McCUSKER:	In relation to DARBY's case, Your Honour?
MASON CJ:	Yes.
MR McCUSKER:	Your Honours, the outline of submissions

which I have there elaborates upon the submissions

which were put to Your Honours in writing at

the outset.

(Continued on page 404)

C2T55/2/SDL	403	MR McCUSKER, QC	24/11/88
Mickelberg

MASON CJ: Yes but, again, you see, it comes back to what

I said to you earlier. It is an elaboration which

should have formed part of the argument in-chief.

MR McCUSKER: There isan anticipation of a more elaborate reply,

Your Honours, if I can put it that way. The short

reply to my learned friend's response for the

respondent is simply this, that he says that the

point in DARBY's case was dealt with before the

earlier courts. It was not, it did come before

the Court of Criminal Appeal but that is the point

of this appeal.

Your Honours, I have provided my learned friend

with an outline of some further submission which

we prepared in relation to the question of

consideration of new evidence. I provided them

yesterday morning to him. I was not, at that stage, sure of the basis upon which he intended to approach

the question of the admission of new or fresh

evidence.	He has not sought to deal with it in
any depth.	I am hesitant, in view of Your Honour's

last remark, to tender these but the work has been

done and the research is there if Your Honours

were minded to receive this further outline which

deals, in our respectful submission, with the question

of the power of the High Court to receive fresh
evidence and in the research, in short,_ demonstrates
that this Court does have the power and previous

decisions are based on a misconception.

MASON CJ: Again, you see, that should have been dealt with

in-chief.

MR McCUSKER: It was, Your Honour.

MASON CJ:  But what I am saying to you is that the elaboration

should have been presented in-chief.

MR McCUSKER:  Yes, I am mindful of that, Your Honour, and

I accept that. However, I have prepared this and

delivered it to my learned friend yesterday morning before he commenced his address so that there would

not be any taking by surprise.

MASON CJ: Mr Mccusker, we will receive it but it is obvious

that Mr McKechnie must have the opportunity of

replying to it.

MR McCUSKER:	I accept that, Your Honour.
MASON CJ:	And I must stress that the usual procedure should

be adhered to in cases and, in particular, in

complex cases like this one.	Very well, hand
it in.

C2T56/l/ND	404	MR McCUSKER, QC	24/11/88
Mickel berg

MR McCUSKER:	May it please Your Honour.
MR McKECHNIE:	That doe~ raise, Your Honours, another question

as the submissions, to me, seem clearly to

raise questions that should be the subject of

section 78B notices. The second submission says:

The issue involves the interpretation and

construction of section 73(ii) of the

CONSTITUTION -

So it would clearly seem to us to necessarily raise

section 78B, if Your Honours please.

MR McCUSKER:  May I briefly address that point, Your Honours.

When I handed this outline ot my learned friend yesterday - - -

MASON CJ:  How much time are you going to leave

Mr Wallwork because we are adjourning at 4.15,

Mr Mccusker?

MR McCUSKER:  I understand that, Your Honour, and I have

my learned friend's assurance that he does not

need more than half an hour.

MR WALLWORK:  I can cut it back••···

This is in the applicant/claimants' interest as

well. Thank you.

MASON CJ:	What, to cut it back?
MR McCUSKER:	Your Honours, just replying to my learned friend, Mr McKechnie, he mentioned the constitutional
point. In our submission this does not involve
a constitutional point in the sense that he raises
it.  Of course, the High Court's power derives
from the CONSTITUTION but it is not a matter which
the CONSTITUTION deals with in any way: It is
simply a matter which the High Court itself has
considered over the years and the point of our
submissions in that further submission is that,
with respect, the High Court has incorrectly
restricted its powers and that it does indeed have power of a like nature of the House of Lords.
Your Honours, we have prepared a bundle of the authorities that are referred to there.
MASON CJ:	Why is it not a matter for 78B notices,

Mr Mccusker? Look at page 12, paragraph 23, it

involves the interpretation of the CONSTITUTION.

MR McCUSKER:  In a, strict sense, in our sul:rnission} jt does not;..

Your Honour, but if it were thought to do ao, it was open to my

learned friend or the State that he represents to have sought to
have,notices given. In the absence of that, in our submission,
it would be a matter for this Court, in its discretion, to

determine whether it was appropriate that there be notices given.

C2T56/2/ND	405	MR McCUSKER, QC	24/li/88
Mickel berg	MR McKECHNIE, QC

MR McCUSKER (continuing): It should be said, Your Honour,

that the respondent itself did raise the constitutional

issue, as it were, before this Court when it first

sat on this hearing. Other than those matters,

Your Honours, thank you for your courtesy, I have no further submissions.

MASON CJ: Yes. Yes, Mr Wallwork?

MR WALLWORK:  If it please , Your Honours, we have prepared a

list of appropriate pages concerning where the evidence

of our appeal grounds are for easy reference. It is

not in the form of a submission, it is in the form of a

page number and the references within the transcript

to where the evidence is found. And I would seek your

leave to tender that up for convenience purposes. I

do not intend to go through it. It gives the pages.

If I may refer to the evidence, in reply to my

learned friend. First of all if I can refer to

volume I, page 59D and I am now referring to the evidence

concerning this fingerprint~at line D· Mr Henning

said at the original trial, when asked by the learned

Crown prosecutor:

How clear was that print that you wished
to pursue· further, sergeant?---It was clear

enough for me to satisfy myself that I

would be able to make an identification from

it.

(Continued on page 407)

C2T57/l/SR	406	MR McCUSKER, QC	24/11/88
Mickelberg	MR WALLWORK, QC

MR WALLWORK (continuing): That is a very important piece

of evidence pecause it put the police within the

power of identifying a suspect, if they had one,

even though it was said that there were only

seven or eight or however small a number of

identifiable characteristics available. The

police were able to identify a suspect although

not use it in a court where they required 12. page 1454, where Detective Sergeant Henning again said - he was being examined, between C and D:

Anyway, so far as you understand, there is

a file somewhere with what exactly happened

to this fingerprint in existence. There is

a file. The police have got a file somewhere
about it?---I left a file there in 1982.

It was a running sheet of suspects and any

person.who may have touched the cheque -

being eliminated.

Is it correct that the reason in 1982 that

these cheques were photographed by fingerprint

officers was because they tended to fade just
as quickly as they appeared?---They can fade
over a period of time; yes.

That is referable, Your Honours, to the questions that came from the bench as to whether or not there

were suspects and apparently there was a file of

suspects which in turn has gone missing. If I

may refer to Mr Tovey's evidence in volume X at

page 2438B. Mr Tovey was one of the police officers

and, if I can refer to that page - 2438, he said

at B·:

By the way, at any stage were any photographs

taken?---On the second occasion there was

a photograph taken of Peter Mickelberg. We

didn't actually know Peter Mickelberg existed

until the 7th of July 1982 when a Peter Gulley

inquiry or serial was raised for inquiry,

and Sergeant Hancock asked us if we had an

opportunity to get a photograph of
Peter Mickelberg.

{Continued on page 408)

C2T58/l/AC	407	MR WALLWORK, QC	24/11/88
Mickel berg

MR WALLWORK (continuing): It should be mentioned that as

at 7 July, or even in the time between

7 and 15 July, they were trying to get a photograph

of Peter Mickelberg, they were trying to get samples

of Ray Mickelberg's handwriting but the only thing

nobody tried to do was compare the fingerprint they
had with any fingerprint that either Peter or Ray

Mickelberg might have had with the police, and he

was then asked:

Did the opportunity come up?---The opportunity did come up. He was taken - - a photograph

was taken of him in the driveway.	He was
called out to and he turned around.

Those three references I have now given you, that

Detective Sergeant Henning had a clear enough print

to identify somebody, they had a file of suspects
which they were trying to identify and that they were
trying to get photographs and handwriting samples is
relative to the evidence of Mr Gaspar which appears

in volume I, page 51E. At page 51E, Your Honour, there is a reference - he was asked - this was when

Raymond was brought in about midday to have his

fingerprints taken and the question was:

Was any remark made, "It's a long time

since you've been down here to take prints",

made by any person?---I don't specifically

recall that, no.

You knew that you were taking prints in

connection with a person suspected

of the Mint swindle?---That is correct.

It is submitted that where you have Mr Gaspar at

12.30 knowing he was taking prints of somebody

connected with the mint swindle, at 12.30 on the 15th,

and Detective Sergeant Hancock is there, and also

Detective Sergeant Henning, the man in charge of the fingerprints was there, and nothing was done at	all by any of those gentlemen, then the proposition	is that this is a matter which was very very
important evidence from the defence point of view.

(Continued on page 409)

C2T59/l/HS	408	MR WALLWORK, QC	24/11/88
Mickelberg

MR WALLWORK (continuing): If I may refer to volume VII,

the evidence of Mr Billing at page 1533. There

is a further reference which is relevant to

this question and about six lines - he is talking

about what happened on an evening of the 15th

after some people had gone home, and about five

lines down:

Amongst those fingerprints -

which were brought into him -

was a set which would have been taken

by Van Den Eulen, or whatever it is; a

set taken at the East Perth Lock-up

on the 15th.

I interpolate there, Your Honours, that that is

a different set to the ones Mr Gasper took

at 12.30 in the day with which nothing was done

so far as any evidence is concerned.

He told me that he had Raymond Mickelberg's

fingerprints there, and I asked him - - I

had the cheque, the WA Building society

cheque which was locked in my custody. I handed that to him ..... and asked him if
he would check the outstanding fingerprint

on the back of the cheque.

It is again relevant to the question of how it

was, and how soon it was, that any action was

taken, that it was purely by chance that a

different constable to the Mr Gasper, whose

reference I have given at 51E, and who knew

he was taking a mint suspect's prints for the

mint swindle, another constable-,altogether~ purely by chance

was asked to go and check out the print~

So, in so far as the Crown evidence brings

forward this checking out - and at the appeal,

of course, that was the first mention ever made

of that - to the evening of the 15th, it is a

purely chance encounter that did it and, again,

it is referable to the weight which Your Honours

would put on this question of the discovery of

the comparison of the fingerprint on that evening

even then.

If I may go to Mr Stone's evidence, at

volume VIII - there is no need for Your Honours

to have it, I can read it in two minutes - page 1821B.

Mr Stone was the gentleman from the eastern States.

He said, at page 1821B:

C2T60/l/JM	409	MR WALLWORK, QC	24/11/88
Mickel berg

MR WALLWORK (continuing):

Did you have any correspondence or

requests from the Western Australian

authorities in June or July of 1982?

That is concerning fingerprints. And his answer was:

Not according to our records.

So there was no effort made, not only not to check Raymond'~

fingerprints but anybody's fingerprints, or any suspect's

fingerprints and I mention those matters in answer to a

question, I think, which originally was asked by

Mr Justice Deane yesterday. If I may on that matter refer

to the search warrant which is exhibit 249. At
exhibit 249, the first search warrant which was sworn out

for a search on Raymond Mickelberg's home was sworn out

on 9 July and that was to search Leach Street., So

again you have the Mickelberg's house being searched as

early as that. With respect to the page 12, my

learned friend, Mr McKechnie, yesterday mentioned something

about us doing something wrong here about this negative.

At page 12 of the transcript, dated 25 October 1988,

it was advised to this Court that:

There is one photograph at 9--:6'-clock~on

the main comparison board which is probably taken

on 16 July but that negative has never been

produced for examination. But the main comparison

photograph, the back of the cheque, was said

by Detective Sergeant Henning to have.been

taken by him on 15 July and that is it up there.

That still remains true, that statement, there is no

attempt in any way to mislead this Court. The fact is

that the negative of the photograph at 9 o'clock on

the board has never been produced because it has not
got pin-holes in it and Your Honours have not got any

negatives that have not got pin-holes in them. That

is relative to what my learned friend, Mr Mccusker

mentioned earlier on, that volume VII, at:•page 1603,

if I may.refer to that, that was the evidence of

Mr Billing and there was a subpoena asking Mr Billing

to be present at the s·upreme court in Perth on the

Friday the 28th day and to produce all the originals/

negatives of all photographs produced by Sergeant Edward

John Billing and Sergeant Thomas of the WABS cheque,

or portions of the cheque, and at page 1603, in answer

to Mr McKechnie, Mr Billing was asked:

(Continued on page 411)

C2T61/l/SR	410	MR WALLWORK, QC	24/11/88
Mickel berg
MR WALLWORK·(continuing):

Perhaps I could have what has been brought

into court under subpoena issued on Friday,

the original negatives of all photographs

produced by Sergeant Billing, which is

in box number 3, I think.

(TO WITNESS):	Would you have a look at
these photographs, please?	Do you recognise

those photographs?---Yes, sir. These

are photographs of the WABS cheque prior

to it being treated with ninhydrin. These

are photographs of the complete cheque,

just contact photographs. That would

be the size of the negative, a 4 by 5

negative, and these other photographs

are of portions of the typewriting and

enlarged up to ..... which were taken on

a larger magnification with the camera.

I tender that as a bundle that series

of five photographs.	I will not tender
the negatives.-

which was the front of the cheques.

EXHIBIT 181 .... Bundle of five photographs - and the witness volunteered:

There is also another negative in here, sir.

This negative is a photograph of the fingerprint

on the back of the cheque taken natural

size prior to it being sent over to Canberra.

And that is exhibit 182 which Your Honours have

in the folder, and that is the only negative

that was ever produced and it was produced in
answer to the subpoena asking that all negatives

be produced.

DEANE J.:	Mr Wallwork, is there any evidence that at the
time when, according to your side of the argument,
the rubber fingers were taken that the police
were told they were your client's, or as to
how they would know that they were reproductions
of your client's hands with his fingerprints on them?

MR WALLWORK:  Yes. I am not quite sure that I can take

you to the page at the moment, but there is

evidence that one of the police officers said,

"What's wrong with you, you've got a funny sort

of a hobby, haven't you? Making imprints of

your own hands?" And that was - I'm not sure

of the date of that but there was evidence.

Raymond Mickelberg on the 23rd, my learned friend

tells me. I would have to research that aspect.

C2T62/1/SDL	4 11	MR	WALLWORK, QC	24/11/88
Mickelberg

DEANE J:  But the answer is, your client's evidence was

that that happened when?

MR WALLWORK: On the 23rd - - -

DEANE J:  Of July?

MR WALLWORK:  Yes sir. But there was - it was later than

that,my friend tells me - evidence of

Cheryl Mickelberg that rubber hands were taken

on 15 July and evidence from the other - - -

DEANE J:  The police would have needed to have known they

were your clients prior to the cheque being sent

to Canberra. Is there any evidence that they did?

MR WALLWORK:  I think there is but I cannot point you to

the exact page at the moment - I cannot tax the

old memory - but I am pretty sure there is, sir.

There was taken from their house anyway -

GAUDRON J: If there is not, the whole fingerprint arguments

become irrelevant, do they not?

MR WALLWORK:  If they did not know they were his prints -

yes,they might, Your Honour, I would - - -

DEANE J: Unless they decided to implicate whoever it was

who might happen to have had a print that corresponded
with whatever was there.

MR WALLWORK:  Yes. Your Honours, I have not thought to

research that in advance and I am caught flat-footed

on the answer to that question.	I do not think
it has ever been asked -

BRENNAN J: It looks like the old memory is going to have

to be taxed.

MR WALLWORK:  Yes. I undertake to provide Your Honours

with a list of where that evidence might be if	it is there - I am sure it is there. If I can
refer to Mr Bonebrake's evidence, volume XII,
there is no need to also have that but it is an
important matter what Mr Bonebrake and other experts
were given and at page 2861A there is a list of materials that he was given and the first one was
the back of the cheque, which is in the bundle of those four photographs we handed up on day one,
which is exhibit 186 which is labelled as having been photographed on 15 July 1982 "before cheque sent to Dr Kobus" and 11 3. Enlargement." - the
third one he was given was exhibit 166 which was
the latent print on the cheque photographed on
15 July 1982 before enhancement.

C2T63/l/AC	412	MR WALLWORK, QC	24/11/88
Mickel berg

MR WALLWORK (continuing): There is evidence concerning

whether or not the Mickelbergs had the expertise

to produce rubber fingers capable of putting

fingerpints on. Exhibit A2, which I will not

hold Your Honours up by having produced now,

but the brass hand, it is obvious to the lay
person that there is a good print on the index

finger of that brass hand in particular. There

is evidence as to the fact that that brass hand
is produced from a rubber mould. It is a further

stage down the track. It was never a contest

at the original trial as to whether or not

Raymond - or the extent to which Raymond Mickelberg

had the ability to make good fingerprints.

It came up in the course of the appeal

but there was evidence called at that time

that since September '81 he had been purchasin,g

both red and white mixtures which are the ones

the rubber fingers have always been made out of.

If I can just briefly mention that; that appears

at page 2065 of the papers. There is also

evidence at page 1671 of the Canadian expert,

Mr Tuthill's opinion of the experiments done

by Mr Bardwell, and it is very significant,

that evidence, because Mr Tuthill was the expert,

so far as we can gather, in Canada and he gave

his candid opinion of Mr Bardwell's efforts to

produce a fingerprint, from a rubber finger of

the type we were talking about, with greasy ink,

and he said that he was not a bit surprised that

he could not get any fingerprints.

(Continued on page 414)

C2T64/l/JM	413	MR WALLWORK, QC	24/11/88
Mickelberg

MR WALLWORK (continuing): Finally, Your Honours -

second finally - I would like to say that

so far as Peter is concerned - - -

DEANE J: It is semi-finally, I think.

MR WALLWORK: Semi-finally, yes - if Your Honours came

to the conclusion - I was a little disturbed to
hear one or two members of the Bench mention that

maybe he did it for his big brother, Raymond - if Peter was granted a quashing of the conviction or a new trial, it would be our submission that it

would automatically follow that Raymond ought to

have the same treatment irrespective of or,

perhaps, in combination with the fresh evidence

we have been talking about because this was a

joint trial and anything that prejudiced Peter,

prejudiced Raymond. All the alleged verbal

confessions were put in the sense that they were

both in it and it was a combination and it would
be, in our opinion, apart from DARBY's case or

anything like it, it would be nearly impossible,

prejudiced in some way which removed his fair trial.

in our submission, to get Raymond a fair trial if

DEANE J:	But that would not be so, would it, if the only ground
for interfering with Peter's conviction was that the
evidence was insufficient to justify a verdict against him on the criminal onus of proof?
MR WALLWORK:	We would submit that it would be, Your Honour,

for the reason that the jury were looking at this

as a conspiracy and, of course, it was charged as

a conspiracy. Overall, it was a joint effort by

these brothers. Originally the Crown charged the
three brothers and, as you know, one was found not

guilty on appeal; that is, the conviction was quashed.

That only left the two and it would be our submission

jury would not have brought in - I know juries are	that it would be impossible, really, to say that a
not supposed to, but the practical approach to a
matter like this is that if theY. thought it was Peter
Raymond they would have considered the evidence
concerning them together because the evidence was
led by the Crown as a joint enterprise. I would
submit, with respect, that it could not be said that if Peter had not had a fair trial or had not been
properly convicted, then Raymond should not get a
retrial.

C2T65/l/SH	414	MR WALLWORK, QC	24/11/88
Mickel berg

DEANE J:  You might find a better answer to my question in terms

of the admissibility of the evidence in relation to
the car against Raymond, which no doubt was admitted

against him on the basis of a conspiracy with Peter.

MR WALLWORK:  Yes, Your Honour.

DEANE J:	I do not know.	I am just - - -
MR WALLWORK:	Yes.	I would submit that, practically,a jury

does not consider a situation like these charges

separately and it would be impossible really to say
that they had disregarded the evidence which was only
evidence against Peter or which really, as you say,

might have been considered to be evidence against

Peter and was not evidence against Peter if Your Honours

came to that conclusion, and in our submission it

would be most unsafe to allow such a conviction to

stand.

It has be·en pointed out to me that in the learned

trial judge's direction he said they could use the

evidence of one against the other so far as the

conspiracy is concerned. Finally, Your Honours,

and I am conscious of the time - would you like me to

stop at ten past or a quarter past?

MASON CJ:  I would have liked to have stopped earlier.

MR WALLWORK:  I will just say this, Your Honours. The outline

of Raymond's submissions which was put in the first

thing on day one, if it is read through today, has

not been detracted from really hardly at all, and I
would make that submission and I would ask

Your Honours if you would mind reading again the

outline of Raymond's submissions because we aay that

Mr McKechnie, although he went through the grounds of appeal and made some comments about them, did not face

up to and did not answer the outline of· the

applicant Raymond's submissions which are quite clear

and, we would say, really not detracted from by the

address. Thank you, Your Honours.

MASON CJ: Thank you, Mr Wallwork. The Court will consider its

decision in relation to the matters that have been argued

before the Court, but the Court directs that the

applicants give section 78B notices under the JUDICIARY

ACT in relation to the applicant's submission concerning

section 73 of the CONSTITUTION and the Court will

adjourn the matter for hearing before a single Justice
of the Court on a date to be fixed with a view to

ascertaining whether the Commonwealth or any of the

C2T66/l/HS 415 MR WALLWORK, QC 24/11/88

Mickel berg

States wish to make submissions in consequence

of the service of the section 78B notices.

Before we adjourn, Mr McKechnie, I should

ask you do you wish to exercise or to	have a right
of reply in relation to the materials	that were last
handed in by Mr Mccusker?

MR McKECHNIE:  The only matter, Your Honour, is the question

of fresh evidence and I will abide and see whether other States submit. If they do not, then I am content to rest on the submissions I made in Perth.

MASON CJ:  Yes, very well. We will ascertain your situation

at the hearing before the single Justice in connnon

with the States and the Connnonwealth.

MR McKECHNIE:	Yes, thank you.
MASON CJ:	The Court will consider the-.,matter.

AT 4.12 PM THE MATTER WAS ADJOURNED SINE DIE

C2T66/2/HS	416	24/11/88
Mickelberg