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

[1988] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P27 of 1987

B e t w e e n -

PETER MICKELBERG

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Perth No P28 of 1987

B e t w e e n -

RAYMOND MICKELBERG

Applicant

and

THE QUEEN

Respondent

Mickel berg

Applications for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 NOVEMBER, 1988, AT 10.21 AM

(Continued from 26/10/88)

Copyright in the High Court of Australia

C2T2/l/ND 218 23/11/88

MASON CJ:	Yes, Mr McKechnie.
MR McKECHNIE:	If Your Honours please. Could I take up where I left off in Perth and deal with the question
of Your Honour Justice Brennan relating to the
submission which is found in outline
paragraph 8 of the appeal, that there is no evidence
at the trial or at the appeal that in July 1982 there was in existence a cast of Raymond Mickelberg's
right index finger capable of use as an instrument of fabrication.

Your Honours will recollect that I had taken

Your Honours to some of the evidence when

Your Honour Justice Brennan asked of the significance

of part of the evidence relating to Mr O'Brien's
evidence as to his experiments with ink as to the

leaving of fingerprints by way of amino acids.

Can I answer that directly, Your Honours, but just

remind Your Honours of the findings of the Court

of Criminal Appeal in respect of this submission.

Those can be found, Your Honours, as the judgments are in volume XIII of the appeal books.

The first passage I take Your Honours to,

working, perhaps, backwards through the judgments

is that of Justice Pidgeon at page 3165, line B -

I do not need to take Your Honours through, of course, the entire judgment, I am only isolating passages here:

There is further evidence to indicate that

an artificial finger of the quality required

was not in existence at the time of the

offence.

And then His Honour summarizes the evidence

which follows the conclusion that he made.

Justice Olney dealt with it and I apologize

for working backwards but Justice Wallace, who delivered the first judgment - it was not such

a part of his judgment - at page 3089 - the passage

really, I suppose commences at the preceding page

from line E:

(Continuing on page 220)

C2T2/2/ND	219	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):

There can be no dispute -

said His Honour:

that since the trial numerous silicone

castings of Raymond Mickelberg's right

index finger have been made which are

capable of producing a good representation

of his fingerprint. At no time either at

the trial or at the appeal has it been

asserted or even suggested that there

existed at 15th July 1982 any cast or other

replica of Raymond's right index finger

capable of producing a representation of

of his fingerprint. Indeed the only

evidence that has been heard concerning

the time when any replica was made is

that the red hand tendered at the trial

was made long after the appellants were

arrested. This was conceded at the appeal

by Peter's counsel. There is therefore

no new evidence that would point to even

a possibility that the fingerprint in

question was other than a mark made by

Raymond's natural finger.

His Honour goes on to deal with other matters which

I will come to later in my submission but, really, repeats what he has just said at page 3090B.

Your Honours, I was before exploring some of the
evidence which related to that. As you will recall,
I read to Your Honours and will not, of course,

read again the evidence of Detective Sergeant Tovey at trial which, in response to a question or talking of brass hands, conceded at the trial, yes, hands

were taken on 15 July, A matter which he-subsequently

explained in later evidence and in evidence

before the Court of Criminal Appeal.	As opposed to
that, there was the evidence of Detective Sergeant

Hooft. The reference is given in the submissions

which denied that hands were taken on 15 July and

said that metal hands were taken on 26 July and,

in fact, drilled to see if they contained gold.

The evidence of the three Mickelbergs were to

the effect that.hands and, indeed, rubber hands,

were taken although nobody had mentioned fingers

at the trial. There was no evidence that fingers

had been taken. At the appeal, Peter Mickelberg

did say that fingers had been taken on 15 July in

addition to hands and Detective Tovey gave evidence,

as I have said, denying that rubber hands or fingers

were ever taken but brass hands were taken on 26 July,

as I think the search warrant showed.

C2T3/l/SH	220	MR McKECHNIE, QC	23/11/88
Mickel berg

MR McKECHNIE (continuing):  Then I was dealing with the

evidence of Mr Bardwell and Mr O'Brien, which

prompted Your Honour's question. It is important

enough to take Your Honours back, perhaps, to

Mr Bardwell. First of all, there are two references, Your Honours, and I am sorry about the state that I will have to be taking

Your Honours to various appeal books. The

first reference is in the affidavit, which

apears in volumeXIIIand Your Honours should have

that before you. That is page 2973.

Your Honours will recall that Bardwell

was the retired detective inspector who was a

forensic scientist who had been called in by the

solicitor for the Mickelbergs in January of 1983,

shortly prior to the trial, to examine handwriting

and to examine fingerprints and fingers and the

like. He deposP.s to that in the affidavit and

says, at paragraph 5 on page 2974:

I had brought my fingerprint equipment (a pad, roller and ink) with me and I experimented with

the rubberized finger attempting to make

inked impressions on paper. Each of these

attempts failed to leave an identifiable print

because the ink ran over the finger without

adhering and the finger slipped causing blurring

of the print.

He then goes on:

I also experimented with the oily hair of one

of the girls from Mr Cannon's office and with

perspiration rubbed on the rubber fingers. I

did not develop the prints with ninhydrin.

I powdered them with fingerprint powder.

Paragraph 8:

Mr Raymond Mickelberg saw the results of my

attempts to transfer an impression using the

fingers. Each time the results of my tests

were just smears. The ink just made a blotch

over the ridges in 1983.

I informed Mr Mickelberg that the rubberized

fingers were not capable of leaving the

fingerprint on the cheque because the transferring

medium would not adhere to the rubber finger

and the finger slipped when pressed on paper.

(Continued mpage 222)

C2T4/l/JM 221 MR McKECHNIE, QC 23/11/88

Mickel berg

:MR.McKECHNIE (continuing):  At that stage, Your Honours,

Bardwell took back two of the fingers for further experimentation in Queensland and subsequently

returned them to Mr Cannon. The further experimentation

was undertaken by a man called O'Brien who was

certainly a fingerprint expert and those experiments

were undertaken in ink. Now, the first reference

to whether the essence - and I will take Your Honours
then to the detail - but the essence of the

submission on this is that the fingers that Bardwell

and O'Brien had were different from those that were

produced and were given to experts in 1984 and were
produced subsequently, indeed, I think up until 1987,

and the appeal, that is the basis of the finding of

the Court.

If I can take Your Honour now to the evidence

of Mr Bardwell in answer to Your Honour's question,

the evidence appears in volume X and I would say,

Your Honours, that Mr King, an expert for the

Mickelbergs,was examined about this very subject

and I will give Your Honours the reference -

I am just digging it out - but King gave evidence as

to the use of black powder and how it would have made

no difference. But Mr Bardwell, Your Honours, at

page 2461 gave evidence at line B:

What ,;;•;ere the results of the fingers

that you had?---They could not reproduce

latent fingerprints or fingerprints of any

description at all.

Then, of course, he experimented in 1985 ¥tlth fingers

which Mrs Yeats had shown him, and those fingers in
1985 were ones that Mr King and other people had had

and they produced good fingerprints.

GAUDRON J:	Do we know where Mrs Yeats got the fingers?
MR McKECHNIE:	Yes, she was given them, Your Honour.

GAUDRON J:  Do we know if they were the fingers that were

collected when the search warrant was executed.

MR McKECHNIE:  No. Sorry, Your Honour - Your Honour is jumping

me ahead, but what.happened in 1984 was that four

affidavits were given to the Crown which deposed in

varying degrees that the mark on the cheque was a

forgery.

C2T5/l/HS	222	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McKENCHIE (continuing): As a result of that Mrs Yates

was given a bunch of fingers, if I might say, which

Mr King has an exhibit of, and are exhibited in this Court and they were shown to various people

including Mr Bardwell. It was not, I do not think,

ever suggested that those were the fingers that

were seized in 1982 and I will come to that a little

later.

While I am on page 2461 it is, of course, not

only the fact that they could not make latent prints or inked prints of the fingers in 1983, Your Honour, although that, of course, is its significance but

the fingers were, as he says at line E:

slightly longer, appreciably longer than

these and they had more of a flesh coloured,

almost translucent appearance.

He was cross-examined about the question which

Your Honour asked me about the effect of amino acids, or perspiration, and the cross-examination

relevantly is at page 2464, Your Honour, by my

learned friend, Mr Wallwork. He was asked:

Did you use a different method in 1985 to what you were using in 1983 to get the inked

prints?---No.

Why didn't the ink run over the fingers in

1985?---Because they were different fingers.

And then at the bottom of the page commencing at

line D, he was asked directly about perspiration.

The prints on the fingers in 1983? .....

Much better than the brass?---Yes.

And you still could get nothing off it with

perspiration?---No.

Nothing at all?---No. With the perspiration

of course - - the print was then - - the finger

was placed on paper, including a cheque, and
it was dusted·with powder, apart from the

fingerprint ink.

(Continued on page 224)

C2T6/l/AC	223	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  Mr Wallwork at the top of the page:

You were trying to bring up the prints - - -?
---I was trying to bring up a latent print.

And again he returns to the subject at page 2467 in answer to Your Honour at about line C, this is when

his affidavit or perhaps his report was put to him and

he was being cross-examined on it:

To date, however, we have been unsuccessful.

However, I have retained two of the moulds

to use.

That is a reference to the affidavit and report that he had taken them back to Brisbane:

Would they have been able to transfer
perspiration prints which could be brought
up with ninhydrin, had you been using that?---

Well, I don't see how they could have been, because they weren't capable of putting latent

prints on the paper.	As I say, I never use
ninhydrin.

Then he was cut off. And at page 2468 he is again

cross-examined on the matter. All of it is relevant,

but the passage or the sentence beginning the question:

Did you try to use the perspiration from

your face?---I did.

How did you do that?---Not with this but with the plastic fingers on my face and on my wrist.

It was January and quite warm and I had plenty

of perspiration, but I couldn't transfer a

print.

Are you an amino acid exuder?

That is a reference to some evidence, Your Honour, that

apparently a percentage of the population do not exude

amino acid in their perspiration and the answer is:

I wouldn't know, but in the past I have had

no problems with my finger.

(Continued on page 225)

C2T7/l/SR	224	MR McKECHNIE, QC 23/11/88
Mickelberg

MR McKECHNIE (continuing): So that, Your Honours, is the

evidence in relation to amino acids. The evidence

of Mr O'Bri~n, while not directly relevant,
of course, to amino acids, is, nevertheless,

part of the materials before the Court that he

could not obtain inked impressions with the 1983 -
and, indeed, says, at the bottom of page 2473

that he was unable to obtain them. And when

asked, at page 2475, about the fingers, at line B:

First of all, how did the fingers that

are now in front of you as exhibits 188

and 189 -

those were fingers which he had been shown and

marked and were exhibited and had come in, I

think, through one of the other experts in the

trial -

compare in looks and the like to the fingers

that you tested in 1983?---Well, those

fingers were totally different to the ones

I saw in 1983 in that the colour of the

fingers were different and the length of

the fingers. The fingers in 1983 were

past the second joint and they were longer

than these fingers.

Then he explains how he was able, in 1985, to

obtain prints and, in cross-examination by Mr Wallwork,

he was asked about the differences and, at page 2481,

again line B:

What colour were they different?---It was more of a flesh colour in the 1983 ones, whereas this is more of a white-ish colour;

the size of them; and I felt the material

must have been different because I could

get clear ink impressions from these 1985

ones and I couldn't get them in 1983 with

similar ink.

(Continued on page 226)

C2T8/l /SDL	225	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McKECHNIE (continuing): And Your Honours, perhaps, for

completeness, to answer Your Honour Justice Brennan's

question, could I take Your Honour~ tu volume VII -

the first, I am afraid, of many reference to that -

at 1721. Mr King, who was one of the experts who

had originally sworn as to the forgery of the print,

about which I shall say more, was being examined

by Mr Wallwork and taken through Mr Bardwell 's

witnesses had been filed in the Court of Criminal	affidavits - the affidavits of all the proposed to the passage which I have taken Your Honours
to at line Band Che remarks about the paragraph 6 which I have read to Your Honours:

Again, sir, when I read this I was

astonished.

Why is that?---It doesn't seem to bear any - -

any correlation with any of my experience.

If you pass your fingers through hair it can

be developed as easy as if you have a very

sweaty hand because there's a certain amount

of oil that gets to hair from the glands in the head, so the hair is fairly greasy, and

if you put perspiration on rubber fingers

one can still be able to develop it either

with powder or ninhydrin if there's amino

acids present. I just do not understand

the - - just don't understand - - I understand

what he says he has done but I cannot understand

his results.

And he goes at the bottom of the page:

The only thing that I can - - I can observe

on this, your Honours, is that if he was using

on this instance a rubber finger he must have

been using one in which the elevations of

the ridges above the furrows were so small

that he couldn't get a reproduction of the

ridges but he was producing the furrows and

the ridges at once as a blot, because with

any of -the fingers which I have made myself,

or any of those which have been supplied to

me by Mr Boase, I can raise a mark without
any difficulty whatsoever.

(Continuing on page 227)

C2T9 /1 /ND	226	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  The only significance of

portion of the evidence of Mr King, Your Honours,

is that he does not disagree with Mr Bardwell's

methodology, if I can refer to it that way,

of endeavouring to obtain latent prints in the

presence of Mr Mickelberg, using oily hair

and sweat and powder. Further, Your Honour - - -

DEANE J: Did he test the original fingers, the 1983

fingers?

MR McKECHNIE:  That is the question I am now about to

answer. The answer is, no, Your Honour, and quite remarkably no, because the fingers were never produced to the Court of Criminal Appeal,

the 1983 fingers. The court had no evidence

of them, other than the evidence that I have

given to Your Honour. But not only did they

have no evidence of it, it is the manner in

which - to use the negative - I might say,

they had no evidence of it.

Mr Wallwork, at page 14 of the transcript

of the hearing in Perth before Your Honours, went

so far as to say to Your Honours: There was a dispute, Your Honour -

in answer, in fact, to a question from Your Honour

Justice Deane. He said:

There was a,dispute, Your Honour, between

the parties. The Crown now says that there

were no rubber hands taken on 15 July. The Crown says there were no rubber hands taken

until 26 July.

Now that, Your Honours, with great respect to my

learned friend, is absolutely wrong. ~he witnesses

on the Crown's side have never ever asserted

either that they observed rubber fingers at the

house of Raymond Mickelberg, or that they ever

took rubber fingers, rubber hands, or anything
of that nature.	The only evidence from the

Crown's side was that on 26 July a brass hand was taken, and I think a child's hand as well,

which was drilled to see if it contained gold.

Now it is quite wrong for my learned friend to

assert that the Crown now says that rubber hands

were taken on 26 July when the Crown's evidence

has steadfastly been that no hands were taken.

Of course, the applicant's case is that

rubber hands were taken on 15 July, and that

was the evidence given at the trial and

confirmed on appeal by Peter Mickelberg. But the

issue between the Crown and the applicants could
not be clearer and it is wrong to say as my

friend did.

C2Tl0/l/JM 227 MR McKECHNIE, QC 23/11/88

Mickelberg

At the appeal, Your Honours, Raymond Mickelberg

and Peter Mickelberg were present. They were in

fact seated directed behind the solicitors' table.

So that everything-that occurred at the appeal

went on in their presence. Following the evidence

of Mr Bardwell there were applications to recall

rebuttal evidence and I should take Your Honours

to those because it is of significance in relation

to the finding of the Court of Criminal Appeal

that no hands were available.

The first point we would make is that

Raymond Mickelberg was available to have given

evidence to the Court of Criminal Appeal, had

he so desired,as to what hands and what fingers

were used. Peter Mickelberg was not, and if

I could take Your Honours - perhaps Your Honours

do not need to see it, but it is volume IX at

page 2058. Peter Mickelberg was cross-examined

by counsel for the Crown at the appeal and he

was asked about Bardwell. He says at line B:

Sir, the,only time I ever sort of had anything to do with the Bardwell situation

was when Mr Bowden showed Ray, Brian and

I a letter from Bardwell stating that rubber

silicone fingers could not deposit a

fingerprint.

That, as Your Honours will see from the letter,

is not in fact a true rendition of the letter

either.

Have you seen that letter since?---I think

I saw it in the Crown's ..... affidavits.

All right. Do you say that you didn't know

what Mr Bardwell had said prior to the

trial?---Yes.	I would have to say
that because - -

All right. That is all we	need to know.
So you wouldn't be able to	tell us what
tests he conducted or upon	what he
conducted tests?---No, sir.	I wouldn't be
able to.

So Peter Mickelberg could not help in the question

as to what fingers may have been used by Bardwell,

but in the supplementary volume, volume VI - here

Your Honours, owing to the way the appeal books

are, I am going to have to jump you from appeal

books because it cuts off at what one might say

is a crucial point.	At page 3848, Your Honours,
at the bottom, line D:

C2Tl0/2/JM	228	MR McKECHNIE, QC 23/11/88
Mickel berg
MR McKECHNIE (continuing):

Sir, that leaves the only remaining

matter, and that is this question of

the fingers which were - -

and the presiding judge said:

What you seek to prove in rebuttal?

Then, there was a remarkable answer which is all

hearsay, and not evidence, and so I will not go

through it but he deals with Peter. He said:

Peter I would ask leave to recall to give evidence of what I outlined to you yesterday, in a word.

The earlier ruling being at 3798 - that is just a

reference to it, Your Honours.	No, I am sorry,
Your Honours, that is the wrong reference.	I will
find it but it matters little. At 3849: What do you seek to have him prove?
And then he says:

To prove that he made prints and took them

to a man by the name of Baker who is available

to give evidence, John Alfred Baker, that he

photographed them, and Peter then took his

photographs to a Subiaco photographic house -

the people who have been contacted but who do

not have any records left, overnight - and that

a board was then prepared for use at the trial

which it was decided in the running not to use.

And then he goes on:

Further, that at no time did they ever use

anything to make these fingers but the

material of which the docket books have

been introduced, and at no time was teflon

or anything like it used, only the rubber as

is exemplified by the dockets - And he goes on about that and Justice Wallace says:

I am finding it difficult to appreciate the relevance of the board.

MR WALLWORK:  Only that these fingers that

were used at the time Mr Bardwell was brought

into it were the same fingers that were used

to make a board for the trial which was

prepared for the trial.

C2Tll/l/SH	229	MR McKECHNIE, QC	23/11/88
Mickel berg

And Justice Olney put in, "Well, what does it

prove?" and then, over the page, at 3850 - - -

GAUDRON J:  Mr McKechnie, I am just puzzled at line Don 3849: That Mr Bardwell and Mr O'Brien used the same

fingers as we have seen in evidence?

MR McKECHNIE:  Yes, well, that was the point, I think.

GAUDRON J:  They being which, the 1983 ones or 1985?

MR McKECHNIE:	1985. Your Honour, the 1983 fingers were never produced. That is the effect of where I am getting
to with this ruling or this application for rebuttal.
Nobody has seen the 1983 fingers except Mr Bardwell and Mr O'Brien, in terms of witnesses and, as
Mr Justice Olney remarks at page 3850:

We have had no evidence about any making,

as I read the evidence. Raymond Mickelberg

is the one who made them.

That, with great respect, was the point. There is further debate about the matter and I was asked my

point and, unfortunately, as I say, it cuts off

there and I then have to take Your Honours to

volume II because of the way that the appeal books

were put together - not the supplementary volume II

but the actual volume II - sorry, volume XI.	I
apologize Your Honours, it is my writing;	volume XI
at page 2484.	I only have to take Your Honours

jumping because this is actually the next page of

the transcript, that is all. His Honour rules, at

the top of the page:

(Continued on page 231)

C2Tll/2/SH	230	MR McKECHNIE, QC	23/11/88
Mickel berg
MR McKECHNIE (continuing):

Mr Wallwork, the conclusion we have reached

in knowledge that we think that Mr McKechnie

is substantially right is that we should give

you leave to renew your application after you
have made further inquiries from the technical

man.

MR WALLWORK:  Yes, thank you, Your Honour.

WALLACE J: And that should not hold up the

process of addresses.

And the like and he is indeed asked for an application

for a short adjournment and he said:

No, I am quite happy, sir.

And no further application, to	my recollection ,was
ever made.	So that the Court of Criminal Appeal in

coming to its decision on this question as to whether
there was available fingers able to be made in 1982
is faced, of course, with this position that the

applicants were saying, "Well, the police had taken

rubber fingers and rubber hands". They had not at the

trial said, "rubber fingers" they had only said,
"rubber hands". And so it is ambiguous whether they

were also saying hands were returned and I will take

Your Honours to the passage for that in a moment. But

it may well be that if the forgery were used that actual

finger was not returned so that the finger used for
the forgery, if I can put it that way, was not returned.

One appreciates that. : In January 1983 the applicants called in an expert to do tests on fingers that were made. The applicant. saw no hand, was shown no hand and

indeed the evidence was that the hand was produced after

his visit and he was not ever shown it. The fingers

that the applicants had given to Mr Bardwell, and one

would have assumed that they were making fingers of the

type available in July 1982,were unable to leave prints

in latent prints or inked prints.

That, coupled with the ambiguous way in which -

in fact I would go further and say the dishonest way

that exhibit A7 came into evidence, and Your Honours

will recollect the passage, it is at volume III at

page 578, when it was tendered in circumstances to

suggest that it had - well I will take Your Honours to

it. It was tendered at page 578. Your Honours at

page 577, from line B:

Cheryl and I were ..... having a drink ..... and

Hancock and Hoofts - in fact, four - came -

they helped themselves to certain items:

C2Tl2/l/SR	231	MR McKECHNIE, QC 23/11/88
Mickel berg

This is when Hancock went to the mantel, took up the bronze hand which we have here

in court, had a look at it and made a couple

of statements about how well made it was,

looked at the fingerprints on it. He looked

at the detail and then said, "Even the whorls

are like mine." There were a few sick laughs

between him and Hooft.

I then led them out into the passage .....

Looking at what has been marked for

identification A2, is this the brass hand?----

That' s it.

That is the brass hand on which they were

commenting on the 23rd of September.

And the evidence had been that these items had been returned and in fact if Your Honours examine the brass

hand you will see a small drill hole in it, the evidence
being it had been tested to see whether it contained

gold. and the conversation which he is giving as of

23 September:

When had that brass hand been first taken

from you?---It was taken on the afternoon of

the 15th. The only reason I know that is because

I heard one of the detectives say so.

That must be a reference to Tovey:

Had anything else been taken from you of a

similar nature?---Numerous other things.

Castings of hands, moulds of hands. My work

is oriented around hands and this was of some

interest to them. They took everything that was

cast in brass, bronze, anything that was cast in

rubber. There was numerous things taken.

MR CANNON:  When you say "rubber" what do you

mean by rubber?---Hands.

Would you look at this? Is this the sort of

work that you were doing?---Yes, that is mine.

Had this been·taken?---All that sort of work

had been taken.

And what he is showing him and what he was being shown,

Your Honour - if I could have exhibit A?, the passage

of time has not worn well on some of the fingers but

it was complete at triaL- is this exhibit, Your Honour,

which once was of a complete hand and that is how it

was put into evidence.by counsel from the witness. An

ambiguous statement, one not corrected until many weeks had

passed in the appeal .when it was conceded that tr.at hand

had been manufactured some time in late January and after

Bardwell' s visit. ·

C2Tl2/2/SR	232	MR McKECHNIE, QC 23/11/88
Mickelberg

MR McKECHNIE (continuing): There was cross-examination

on that which I have read to Your Honours and will

comet~ perhaps later, if necessary. So that what
the Crown was saying at the appeal when the rebuttal
evidence was called was simply, "Well, produce

the fingers. If it said that they are not different,

produce the.fingers. There was a question

whether rebuttal evidence could be allowed but

as Your Honour saw the court was prepared to give

leave to renew the application to the applicant.

At no time did Raymond Mickelberg, who had been

present throughout the appeal ever come into the

witness box to say what hands there were. It is
on the basis of all that evidence and the court
having heard the evidence and having heard all

of the explanations that the court came to the

findings which I have outlined to Your Honours.

Your Honours, might I now turn away from the submissions, or the outline, and rather than turn

away from them I am really dealing now with the

supplementary grounds because that seems to me to be the nub of what Mr Wallwork is saying in relation to this photograph and the Crown concession

about it - something which is allied to that and

which is important, Your Honours. Mr Wallwork

in his submissions to Your Honours,and Your Honours

will recall again - perhaps we could have exhibit 74,

it is the big board. Your Honours will recall,

of course, because this formed the subject of some
debate last time, exhibit 74 which was the board prepared
by then Sergeant Henning are for the purpose simply
of comparing the print on the cheque with the known

prints of Raymond Mickelberg in order to show the

jury that there were twelve points of identification,

a matter which has not really ever been in dispute.

But it was prepared for that purpose, used at that

purpose and there was at trial no issue made about

it and, indeed, no issue as to credit in relation

to Sergeant Henning's evidence. And the photograph

which is correctly described on the board as "showing

position of developed fingerprint" now does appear

to be a photograph which was taken after the
ninhydrin treatment in the sense that it has pinholes

in it.

But what is relevant for what I am about to

say about that photograph and others is this photograph which says, "Developed fingerprint

before enhancement". And Your Honour Justice Deane

was, I think, querying something about the provenance

of that and it might have been because of something

Mr Wallwork, on several occasions, has said about

the photograph. He said in the course of his

submissions to Your Honours, at page 8:

C2T13/l/AC	233	MR McKECHNIE, QC 23/11/88
Mickel berg

There has never been a negative produced to

the applicants or to any court taken prior

to the sending of this cheque to Canberra

on 16 July.

He goes so far, at page 27, as to say, although

there is no evidence of it:

there are no pre-Canberra negatives available

and there is no evidence of that, Your Honours, and what we have to say about that is that that

is a mischievous submission. At the appeal,

Your Honours, the applicant's solicitor - this

is the applicant Raymond Mickelberg - subpoenaed

the originals of-the original negatives of all
photographs taken by Mr Billing and the subpoenas
were dealt with early on in the trial but perhaps

I could hand to Your Honours copies of the subpoenas.

Your Honours, you will see the subpoena asked:

And we also command you to bring with you

and produce at the time and place aforesaid

all the original negatives of all photographs

produced by Sergeant Edward Thomas Billing

and Sergeant Thomas of the W.A.B.S. cheque

no. 551533 or portions of the cheque.

Now, the question of the subpoenas was in

fact dealt with at an early time in the trial,

Your Honours. It appears, and I need not take
Your Honours ta it,but give you the reference -

supplementary volume IV at page 3238 and again

at page 3380.

(Continued on page 235)

C2Tl3/2/AC	234	MR McKENCHIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  What happened was that there were

a number of subpoenas, applicant's subpoenas and
Crown subpoenas duces tecum in relation to the

police commissioner and to various police officers.

There were a vast number of documents that were

produced and the way that the Court dealt with it

was that the police officer, Sergeant Lienert, who
had produced them, had made an answer in respect of

the many matters as to whether they were available,

or whether they were not, or whether privilege was

claimed, and a vast array of documents was brought

into court, counsel was not allowed access to the

documents until relevance and/or admissibility,

and/or privilege were argued and ruled on in relation

to each document, but as from time to time documents

were called for, they were produced.

Now, the answer given by the police officer Lienert

in relation to that document is that the documents are

available and are produced. Your Honours, it was my

learned friend Mr Wallwork who called - by then, by

the appeal, Assistant Commissioner Billing - at the

appeal. He was Mr Wallwork's witness. He was

called at trial only to give evidence as to handwriting.

He was a handwriting expert, but he was called at the

appeal by my learned friend and gave evidence as to

what happened on 15 and 16 July and various other

matters in relation to the negatives. The particular

reference - and I do not need to take Your Honours to

it - to his evidence in-chief from my learned friend

is at volume VII, page 1532 - I do not need to take

Your Honours to it - is where he is led by my

learned friend and gives this evidence.

Now, at no time did either Mr Wallwork or

Mr Searle, who cross-examined extensively, ever call

for the negatives which Mr Wallwork now asserts are

missing and, Your Honours, it is now put before

Your Honours as a matter which goes to the providence,

as it were, of that second photograph ori the board

as if they are missing - it is asserted as a fact -

when they were subpoenaed and they were never called

for. There were, in fact, Your Honour, some - - -

BRENNAN J:	What happened to them?
MR McKECHNIE:	After that, Your Honour?
BRENNAN J:	Yes.
MR McKECHNIE:	Your Honours have not yet made any ruling on

fresh evidence and because of that I have arranged for Detective Sergeant Lienert to be in Court today

with the negatives. In my submission, they are not

now evidence because they were not evidence before

the Court of Criminal Appeal, but should Your Honours

take a different view to the rulings that I have

made, he is here with the negatives.

C2T14/l/HS	235	MR McKECHNIE, QC	23/11/88
Mickelberg

There were some pre-enhancement, I might say, photographs that were tendered, and in the course of

that a negatiy~ was tendered which was described

as being one taken on 15 July and which has pin-holes.

I should take Your Honours to that passage which is

in the evidence of Sergeant Billing, but in the

course of examination by Mr Wallwork reference

was made to some photographs said to have been

taken by the witness at a very very early stage,

that is when the cheque was given to the police -

and the evidence is that that was not until

the 23rd that it was realized something was amiss

when the mint went to cash the cheques and then

the police received them. Because, of course, the

handwriting and the typewriting might have been of

great relevance, although in the end it could not

be established who had typed, or the typewriter,

or the handwriting, the front of the cheque was

photograph by Sergeant Billing, as he then was, and

a question rose in the course of the examination about

those pre-ninhydrin photographs, the ones that

were taken, of course, before the fingerprint people

got their hands on them and muddied the waters, so

to speak, with ninhydrin, and as a result of that -

Your Honours the reference is at volume VII, page 1603 -

the witness was shown photographs of the typewriting

taken pre-ninhydrin.

The negatives were not tendered but the bundle

of five photographs were, and I do not think anything

turns on them, Your Honour.	Then the witness, as
Your Honour sees, says:

(Continued on page 237)

C2Tl4/2/HS	236	11R McKECHNIE, QC	23/11/88
Mickelberg

MR McKECHNIE (continuing):

There is also another negative in here, sir. fingerprint on the back of the cheque taken natural size prior to it being sent over to Canberra.

MR McKECHNIE: That was taken on what date?---That would have been taken on

16th July.

I will tender that as a separate exhibit.

and he tendered exhibit 182, the negative of

which does indicate that it was a post-Canberra

treatment photograph.	So, to that extent, certainly,
the witness was wrong.

That is why we would say that the witness was - and not only Sergeant Billing, as he then was, but Sergeant - by the time he had reached

the appeal he was, I think, superintendent -

Henning, was also called as a witness at the

appeal by Mr Wallwork. At no time were these

negatives, said now to be missing by Mr Wallwork,

ever called for to be tendered through either

of those witnesses.

Mr Mccusker, in relation - just finally

dealing with that matter of the photograph -

was pleased to refer, at page 51, to a hypothesis

which - - -

DEANE J:  Mr McKechnie, could I interrupt you? Am I correct

that what you are saying is that the only new

material about fingerprints which flows from

what the Crown now concedes is that some wrong evidence was given about the photo of the back

of the cheque on exhibit 74? Is that so?

MR McKECHNIE:  About the top photograph on the back of

the cheque?

DEANE J: Yes. This one.

MR McKECHNIE:	Yes.
DEANE J:	And that the Crown's concession has nothing to do with the photograph under that?
MR McKECHNIE:	That is correct, Your Honour.
DEANE J:	And that you dispute any suggestion that negatives
of photos taken of the fingerprint before things went to Canberra simply do not exist?

C2T15/1/SDL	237	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McKECHNIE:	Yes, Your Honour.
DEANE J:	Thank you.
MR McKECHNIE:	Although_-Your Honour has put the Crown

position correctly but, in appellate terms, we would

say that it was never made an issue - or an

issue - in the court below; the negatives,

or anything to do with the pre-enhancement photograph,

that second photograph on the board. And, indeed,

the wrong evidence given about the photograph

on the top at the trial was ambiguous anyway -

I have taken Your Honours to the passage - because

there are times when Sergeant Henning says,
"Well, Sergeant Billing took" - I think he referred

to that second photograph - "and I think Constable Thomas

did the other work on the board." But it was

never an issue at the trial, the board being
simply produced, as I say, to track the photograph

in order to show the comparison.

DEANE J:	What you say may be right but I do not think
it is irrelevant in that sense in that, possibly
due to my own fault, I had understood that what
was being put to us was that it flowed from
the Crown's concession, as it were, that there
was no evidence of photos taken before things went to Canberra and, of course, if that was
so, it placed a very strange light on a considerable amount of the police evidence. Now, no doubt,
it may have been my lack of understanding but
that was what I was suggesting you needed to
clear up.
MR McKECHNIE:	If Your Honour had taken note of what

Mr Wallwork said, that is why Your Honour would

have understood that, I think. The concession

which the Crown made to Your Honours is at pages 24

and 25 of the transcript, and what I had said was:

(Continued on page 239)

C2T15/2/SDL	238	MR McKECHNIE, QC	23/11/88
Mickelberg
MR McKECHNIE (continuing):

Your Honours, perhaps to help my

learned friend could I say this about the

photos, because he has referred several times

to the concession by the Crown, and it is

simply this, that in the process that

Dr Kobus undertook which included immersing the cheque in liquid nitrogen in order to

keep the cheque down, as it were, to be

photographed, he pinned it. Any photograph

in which pin-holes are visible therefore

regardless of the label which may be attached

to it, the Crown would say has had to have

been taken after Dr Kobus' treatment.

Mr Mccusker speculated about that second exhibit

at pages 50 and 51 and said to Your Honours:

The photograph of the cheque which appears

at 9 o'clock, even on the large board, it

will be seen is extremely poor in production.

That is one which as far as can be ascertained does not have pin-holes and therefore may

have been taken, as the evidence was given,

before the cheque was sent to Canberra for

enhancement on 16 July. But none of the

experts found that of any assistance whatever.

Just to interpose, we say that is a wrong comment

because two of the experts called by the applicants,

Mr Bonebrake and Mr King - I will not now take

Your Honours to their affidavits because I will

later but the references are both in volume XII,

Mr Bonebrake at 2855 and Mr King at 2849.

Your Honours will have to actually examine the

exhibits because the photographs are not

reproduced but each of them were, in fact, able
to get from that photograph sufficient points of

identity to identify it as that of Raymond Mickelberg.

Mr Bonebrake was able to identify 12 points and

Mr King 13 points.

It should be said, of course, that that was

not a universal view and, for instance, Mr Olsen,
who was another of the applicants' witnesses, could
not find any identifiable prints but it is wrong

for Mr McCusker to say that none of the experts

found it of any assistance whatever. He then raises

possibilities which he refers to as hypothesis: consistent with the hypothesis of innocence -

the photograph was deliberately blurred because

the print was not then in a condition where

if photographed it would show, as it had

to be, that it was a matured print. It had

C2Tl6/l/ND	239	MR McKECHNIE, QC 23/11/88
Mickel berg

to be a matured print if the evidence

was correct that it was discerned on
24 June.

We would say that is mere speculation on his part and there is not any evidence of it.

Could I come now directly to the Crown

concession and it seemed - Your Honours have not ruled, of course, but Your Honours asked counsel to consider whether or not it, itself, amounts

to fresh evidence.	Your Honours, I think fairly
I must say that we do not re 8ard it as amounting - I	should not say "fresh evidence - whether it amounts
to evidence and is thus able to be received by
this Court.
Your Honours, I think I must say, in fairness that the fact of pin-holes in the cheque and visible
in photographs is evidence which is before this Court regardless of the Crown concession and the Crown concession is merely, as it were, a concession
as to argument not as to evidence, although we
would say very strongly that the evidence is not fresh and, further, that the mislabelling or the misdescription or:the wrons evidence is not relevant
either to the issues of trial or to the issues of the appeal and Your Honours should not consider the matter as in any way affecting the proceedings in the court below.

Could I develop each of those submissions

separately. The first, as to whether the pin-holes

are fresh or new: Mr.Wallwork, again, asserted by the bar table that these were not discovered until after the appeal. That, of course, is evidence

or would be if in proper form and there is simply

no:evidence as to that. Could I have, please,

exhibit 7(ii)? Could I have also, ,whe·n·I have that

exhibit 73?

Your Honours, this is, in fact, the cheque

upon which the fingerprint was found. It is this
colour because it was treated in 1985 by

Scotland Yard with physical developer which is another mode of producing fingerprints, the physical developer having a silver base and reacting with

lipids in the secretion.	So it is a different
manner of producing fingerprints.	Indeed, from

that two further fingerprints in these squares

were produced and I will come to those later. had not been known earlier.

C2T16/2/ND	240	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  Your Honours, on the back is

the pencil mark and the cross and, indeed,

Your Honours might be able to see still some

ridge detail of the print but it is certainly

faded and part of the enhancement process is very

likely to cause a more rapid fading and I will

come to that. But, Your Honours can just, by

holding the cheque up to the light, if Your Honours

were minded to, see the pin holes that are there.
That, coupled with exhibit 73 - now exhibit 73,

Your Honours, are the negatives which were sent from Dr Kobus back to the police and subsequently

tendered. I know questions are now raised about

that but that is the subject of also fresh evidence

and it has not been accepted so I will not conrrnent

on it but Sergeant Henning gave evidence that the

photograph which appears of the enhancement of the

borders - it was still there, it does not matter -

the photograph at 7 o'clock was taken from negative

15.

Now, the photograph is obviously cropped but,

if Your Honours see the pin holes and you see

negative 15, Your Honours will, in fact, see within,

indeed, all of that strip, pins. You see. what

happened, Your Honours, was that Dr Kobus whose

treatment was, at that stage, new in Australia -

when ninhydrin is placed, it develops marks. Some

of those may be of good quality and some of those

of poor quality. This was determined to be of

poor quality and Dr Kobus, at that time, at the

ANU - this is all the evidence at the trial and

at the appeal - was working in order to develop

marks to a point where characteristics might be

identified.

Now, the manner in which he developed, for

enhancing marks that had been treated with ninhydrin

was, first of all, to treat the ninhydrin with a

compound of zinc chloride.	Now, the zinc chloride
reacted with the ninhydrin chemical which had been

formed by a reaction of the ninhydrin and the amino

acids of the perspiration and, by itself, did nothing
but it was found by him - or by others as well - that,

if the object was cooled to a very low temperature

and then a light beam was focused on the object, the

zinc chloride ninhydrin chemical would fluoresce

faintly and, by photographing the cheque in that

state, that is, when the zinc chloride was fluorescing

because of the action of the light of a certain

nanometer wave length hitting it and photographing

it with a filter, the result was that the fluorescence

could be recorded on the photograph.

In order to cool the object the most convenient

way and the way used here was to inrrnerse the object

in liquid nitrogen at very cold temperatures and,

C2Tl7/l/SH	241	MR McKECHNIE, QC	23/11/88
Mickelberg

in order to hold down a floating object such as

this cheque, he pinned the cheque. He did not

purport to take photographs of the whole of the

cheque and, indeed, the evidence was that he had

asked that the suspect print be marked so he would

not spend all his time photographing all over the

cheque and that is why Sergeant Henning put a circle
and a cross around the mark and then it went to

Dr Kobus where, as I say, it was pinned and he took,

as he said, a reel of photographs of the print
fluorescing and it only fluoresces under the
conditions of being excited by a light of particular

wave length while in a very cold condition.

After fluorescing, it returns to its natural

state except, as the evidence discloses, that whereas

a ninhydrin mark is a pinky purple,and I am sure

Your Honours have seen such marks from time to time

and they are in the exhibits, a mark which has been

treated with the zinc chloride is an orangey colour

and chemically more unstable which is why the print

is likely to fade and the significance and, indeed,

really, the only significance of Dr Kobus' evidence

and this :treatment was that the treatment was able

to bring out, by fluorescing the poor quality print,
ridge detail which was not available to an officer

to determine sufficient characteristics for comparison

and that is the significance of the pins and the

evidence of the pinning and the evidence of the

holes has been available since the trial in 1983.

There is nothing new or fresh about the fact that pins were used or left holes and, indeed, if

I might have exhibits 191 and 211 - - -

BRENNAN J:  When was it first discovered that the holes were made by pinning them down in the liquid nitrogen?

(Continued on page 243)

C2T17/2/SH	242	MR McKECHNIE, QC	23/11/88
Mickel berg

MR McKECHNIE:	There is no evidence as to that, Your Honour.
BRENNAN J:	No evidence of that?

MR McKECHNIE:  No evidence of it. Mr Wallwork gave some

being discovered until after the Court of	evidence from the bar table about it not evidence, Your Honour,and we would say that
there are two immediate possibilities as to
that. The first is that - Your Honours, of
course, must recollect that this was a
lengthy and very unusual appeal. There had
been the most serious allegations raised against the police officers in Western Australia.
There were allegations that as early as June 1982,
shortly after the swindle of the mint, the police
had improperly obtained a passport photograph
of Peter Mickelberg and used that passport photograph to trace the sketch, which is
exhibit 21 and which appeared in the newspaper,
a sort of, "have-you-seen-this-man" sketch;
allegations that as early as that stage the
police had determined that the Mickelbergs
would be framed for this; allegations of perjury
and of concoction of oral interviews; allegations that the police had forged the mark on the cheque;
allegations at trial that the SAS had done the
mint swindle and at the appeal that ARPAD, a
security firm, had done the swindle. This was the background of an appeal in which the minutest
detail was examined. Everthing was examined in minute detail, affidavits were supplied and it
is against this background that it is said that
these marks were not noticed until after the appeal.

But Your Honours will see, first of all,

there is no particular significance about this

photograph except that this was an exhibit

produced at the appeal by Mr Wallwork from

Mr King, one of his witnesses. Your Honours

will see it is a blow-up and the only significance

is in the top corner. Your Honours can see a

pin shown. In another photograph, which shows

it even more clearly, a blow-up from the set of

negatives which I have shown Your Honours, exhibit 211,

another exhibit tendered by Mr Wallwork and identified

on this occasion by Mr Bonebrake. The pin is clearly visible and there is a caption on the

back, "negative 15, 21 July 1986, 5 photograph

made from Dr Kobus' negative number 15." So

that these were exhibits tendered by the applicant,

and particularly by Mr Wallwork, which showed the

pins quite clearly.

When we get to exhibit 166 - this was tendered,

Your Honours in volume VI at page 1436 - this is

C2Tl8/1/JM	243	MR McKECHNIE, QC 23/11/88
Mickel berg

how the photograph about which Mr Wallwork now

makes submissions was tendered.	I will hand
1436B- but I will hand Your Honours the photographs.	Your Honours the photograph. There was another one - which clearly, to the left of the print, shows
the pin-holes. As Your Honours can clearly see, at that stage there was no proof of the caption, although it is not in fact disputed
that the caption is on there and there were
photographs produced by the Crown and this was
one· of them. Mr Wallwork tendered this through
Mr Henning. At page 143~ he said, at line B:

Superintendent, that blown-up photograph

on the table in front of you which you

have just been handed by Mr Usher:  does

that depict an enlargement of the area

which is shown by the circle at 7 o'clock

on that backing sheet?---Yes, it does.

I tender that. That emanated from the Crown Law Department, your Honour, and

your Honours might like to have a look

at that -

and then it is tendered. Then the witness is

examined about the pencil mark. At line E:

Yes. I placed that pencil mark in that position for the benefit of Dr Kobus

when I forwarded the fingerprint to Canberra

..... X marks the spot -

he says.

(Continued on page 245)

C2Tl8/l/JM	244	MR McKECHNIE, QC 23/11/88
Mickel berg

TOOHEY J:  Mr McKechnie, that was tendered as exhibit 166?

MR McKECHNIE: Subsequently, Your Honour, another photograph

was tendered through a witness Mr Naughton and so

166,, I .think became 166A and the one through

Mr Naughton which was to like effect and which I have

here, it is just another of the same, it became 166B.

And he is further examined on it at page 1437. The

point of the examination seemed to be that it was said

that the pencil line ran through some fingerprint ridges

which indicated carelessness or worse on the part of the

'Witness. Now, if I could have ba~ exhibit 7 4. There was no dispute

that the pencil mark did run through ridges however there was c0nsiderat

dispute as to whether that mattered in the slightest.

Some witness' experts called by the applicants thought

that it did, some thought that it just evoked

carelessness and some called by the respondent said

that it did not matter. But as Your Honours can see

from this, as to whether it mattered or not, these are
the characteristics which the witness, Henning,

identified well away from the pencil mark and any ridges

that might be there. And so that lends support, in

our submission, to the proposition that it did not
matter. But that seemed to be the reason why

Mr Wallwork tendered it. And although he says glibly the Crown relied on it, it was tendered by him for some

forensic purpose.

It is true that there were photographs which

witnesses saw which had been labelled similarly, and
which witnesses had used and I will develop that as to
why, notwithstanding that, it did not form any part

of their conclusions. It is true, but it is not true

to say that one ..... was such .. But the point, .

I think, Mr Wallwork, in fairness to him makes, is

that there is this wrong evidence, that is, he would

say, evidence of a photograph taken which was said to

have been taken before it went to Canberra and was in

fact taken after. It is a long way, Your.Honours, from

the issue which was fought at the Court of Criminal

Appeal when weeks were spent on the question of whether

the mark was forged - an examination of the mark and

the evidence which I will take Your Honours to.

So, Your Hono.urs, the first submission, to sunrrnarize

what my first submission on this is, is that although

I would have to say that the evidence of the pin-hole

is not evidence in the sense that it would be evidence

not on the court record available for examination by

Your Honours, it is clearly that,in our submission. It

is not anything that counsel could not have by reasonable

diligence explained or sought or clarified at the

Court of Criminal Appeal. It is a new point, in other

words, which is now raised for the first time before

Your Honours without any evidence as to why it is now

raised for the first time before Your Honours and a

point which after a four week appeal, involving the

C2Tl9/l/SR	245	MR McKECHNIE, QC 23/11/88
Mickel berg

most minute detail and when evidence is tendered

through Mr Wallwork's witnesses and by him showing

photographs with pins in them, is a point which we

would say this Court ought not to look at. The other -

it does not matter whether or not it was not noticed

then or whether it was saved up in order to put before

this Court against the possibility of defeat in the

court below. But in any event, in our submission,

Your Honours, Your Honours at various times asked

Mr Wallwork how it affected, or might have affected

the evidence given at the Court of Criminal Appeal or

the findings of their Honours and he may have a

different view, but I do not understand that he ever

answered Your Honours directly. The most he seemed to

be saying was, he said, I think at the end, that the

Hancock tape would be the highlight of the new trial.

He did not even raise the Hancock tape as a ground of

appeal in the Court of Criminal Appeal but it now is

and this would be the second matter.

Well that might or might not be so, Your Honours,

but the question is, has the Court of Criminal Appeal

erred and has there been a fair trial in the court below.

And merely because there is a piece of evidence upon

which one might cross-examine a police officer about,

in our respectful submission is a long way from making

out his ground. But much more than that, I now wish

to take Your Honours to the judgments.

(Continued on page 247)

C2Tl9/2/SR	246	MR McKECHNIE, QC 23/11/88
Mickelberg

MR McKECHNIE (continuing):  And I review for Your Honours

again what the issues were. At the trial the issue

in relation to the fingerprint was, as put by

counsel and, in our submission, not unequivocally

rejected by Raymond Mickelberg either - the issue

at trial was whether, there being no issue that

the print was on the cheque - the issue was whether

it had got on the cheque on 15 July by handling.

I say that - Your Honour Justice Brennan raised

with me befor~ whether or not silently, the question

of forgery was raised by him and, in my submission,

it expressly was not raised by him and I will take

Your Honours to that passage now. But the issue

at the trial, the way in which the cross-examination
proceeded of the witnesses, what Raymond Mickelberg
said about it and what counsel said about it later,

did not unequivocally reject the possibility that

he touched it there. To say, as Mr Wallwork did,

"Raymond says he never handled the cheque" is,

of course wrong. He did say that he handled it,

it is a question of where he handled it.

But the issues, and I have taken Your Honours

to them so I would not take Your Honours back
to the cross-examination of Hancock but there was

a passage of Raymond Mickelberg's evidence which

I did not read to Your Honours and it is to be

found in volume III. Your Honours will recollect

that at page 542 of volume III in examination-in-chief
he said, speaking about how Hancock had handed

him the cheque, a matter of course which was denied

by Hancock and Round. He said at line C:

"There; take a look at this and even you will

know it's yours." I had a look at it. I picked

it up in the corner, maybe both corners.

I had a look at it. It was obvious it wasn't

mine .....

What did you pick up and look at?---It was

one of the cheques. It was obvious. It had

"Mint" written on it ...... It was blue .... ..

Just describe what it looked like?---A WABS

cheque.

It seemed to be the evidence there - he was never

asked, obviously perhaps because of the submissions
that counsel were going to make subsequently to

the jury - but he was never asked the question:

"Did you put your finger where the mark is now

said to be?''. It was left as that and then it was

taken up in cross-examination and no doubt for

good reason counsel for the Crown did not ask him

that question but he, having identified at page 715,

Your Honours, the WABS cheque - and he was asked whether he knew it was that one, and then he is

asked the question at line D at page 716:

C2T20/l/AC	247	MR McKECHNIE, QC 23/11/88
Mickel berg

When did you think, "That would be how my

fingerprint got on it"?---Would you give me

that question again?

When did you first think to yourself, "That

would be how my fingerprint got on it"?---

In fact, until I read the hand-up brief, I

believed that all the information that was

fed back to me from every small police station,

from drunks at Karrinyup Golf Club, that I
was being fed this information to make me

do something, or to say something that might

sound stupid, and when I read the brief I

was astounded. Astounded. Then, I had to

think back over what had happened and then

I started to think of the possibilities.

That was what the jury may have safely concluded

was a lie because it goes on:

Did it not cross your mind when Sgt Hancock

said to you on the 26th, "Your fingerprint

is on one of the cheques"?---On the 26th.

It did not cross your mind then? He said

it to you on the 26th, did he not?---Of course,

by that time I had the hand-up brief months

before that.

Really; before 26th July?---Not correct.

My apologies.

You could not possibly - -?---My apologies.
Yes. You're right. On the 26th, no, I still

wasn't sure that Hancock wasn't bluffing,

but I had doubts when he made reference to

the specialist from the eastern states.

(Continued on page 249)

C2T20/2/AC 248 MR McKECHNIE, QC 23/11/88

Mickel berg
MR McKECHNIE (continuing): Again, when he is, as it were,

given the opportunity, no unequivocal, "Well,

I know that· I didn't touch it at the right spot".

It is left hanging because it has to be explained

in some way by him. And then the passage goes

on, which I have read to Your Honours and I

will not, of course, read again but which cannot
be underestimated in its significance - the
passage on page 717 when he repudiates the idea

or he says that he does not think that the police

took, or forged, - his fingerprint. He was

given that opportunity and he hedged and, finally,

when it was finally put to him:

Not making any suggestion that the police

have used them in any way?---I am not

in aposition to make suggestions about

things like that.

Do you think they did?---I don't think

they did.

Your Honours, this is, perhaps, a little removed

but it is, in fact, leading up to my submission

about the judgment and the relevance of the

cheque now said to be.

BRENNAN J:  Mr McKechnie, were the corners of the cheque

ever examined for the purpose of discovering

whether there was a fingerprint by Mickelberg

to be found there?

MR McKECHNIE:  There is no evidence of it, Your Honour,

but I just simply do not know the answer. Of

course, the allegation that he touched the corners

of the cheque first surfaced at trial. It was

not something that had ever been known about

before and, of course, the police, of course,

had denied ever handing him the cheque. But

whether it has been done since, I do not know.

BRENNAN J:  Yes.

MR McKECHNIE:  That was the position in 1983. In 1984 -

and this is quite clear, Your Honour, from

the affidavits which are filed in volume XII

which I need not take Your Honours to now because

I will take Your Honours to them in due course -

affidavits were sworn and, indeed, entitled,

"Court of Criminal Appeal No" - blank - "of 1984",

affidavits were sworn by King, Bonebrake, Olsen and

Thomson - there are two Thomsons, Your Honour, this

one is a Malcolm Watson Thomson - which deposed,

in varying degrees, that the print on the back

of the cheque was a forgery. In the words of

Olsen, that "it was a forgery of epic proportions"

and that was the allegation which was made,

for the first time, in 1984.

C2T21/l/SDL	249	MR McKECHNIE, QC	23/11/88
Mickelberg

It was as a result of that, and I will take

Your Honours to the evidence, that the Crown

consulted the best experts it could find and,

under the direction of the Solicitor-General,

Mrs Yeats travelled to England - the evidence

I will come to - and consulted with Crown experts,

or with experts called by the Crown, in order

to determine the allegation, of course.

She subsequently returned and spoke with the four experts that I had mentioned. By 1985

they had all, to a some or great degree, resiled

from their earlier affidavit that the mark was

a forgery. Olsen, who had been the most dramatically

in favour of a forgery, having said in an affidavit

to which I will take Your Honours, "If called

on to say in a court right now, I would have

to swear that it is genuine because there is

no evidence of a forgery."

Notwithstanding that, it was not until

the end of December 1986 that appeals were instituted.

There was an immediate problem with the appeal

in respect of Peter Mickelberg. He had, as I took

Your Honours to, appealed to the Court of Criminal

Appeal against some of his convictions. He

had, in fact, applied for special leave to this

Court to appeal against the decision of that court dismissing those convictions but abandoned

that appeal when it came before this Court -

he and his brother - on a question of sentence

only; but he had abandoned the application

for special leave subsequently.

He had also,subsequent to that appeal,

appealed against all of his convictions. The
appeal at the end of 1983, which was heard at

the same time as his brother, Brian's, successful

appeal, was against the convictions for ~rson

and breaking and entering only. Subsequently,

and in early 1984 - and we have made available

to Your Honours the actual decision because	it was part of the Court record but does not
form part of these cases - he appealed against
all his convictions. So he had exhausted his
right of appeal but he petitioned the Governor
and the Attorney-General under the provisions
of section 21 of the CRIMINAL CODE which provides, as I am sure Your Honours are aware of similar provisions:

Nothing in this Code affects Her Majesty's

Royal Prerogative of Mercy, but the Attorney

General on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of

a person on indictment or to the sentence

C2T21/2/SDL 250 MR McKECHNIE, QC 23/11/88

Mickelberg (Continued on page 250A)

(other than sentence of death) passed on

a persop so convicted, may, if he thinks

fit, at any time either -

(a) refer the whole case to the Court
of Criminal Appeal, and the case shall
then be heard and determined by the Court
of Criminal Appeal as in the case of an

appeal by a person convicted -

the second section does not matter.	And that
was done.

And the issues, as pleaded before the

Court of Criminal Appeal in relation to this

particular aspect of the forgery although, as

I say, there were allegations of gross misconduct

by the police even at a very early stage -

fabricating the sketch from a photograph of

Peter Mickelberg; a photograph which was later

proved the police could not have had - I will

come to that.

(Continued on page 251)

C2T21/3/SDL	250A	MR McKECHNIE, QC	23/11/88
Mickelberg

:MR McKECHNIE (continuing):  The appeal ground by Raymond

Mickelberg, which in essence is reflected in the appeal to this Court, is that the mark could not be

proved as genuine. The appeal ground by Peter

Mickelberg - and the appeals were jointly heard -

was a continuation that this mark was a forgery and

that, in relation to the fingerprints, were the issues

to be raised at trial and the issues for the
consideration of the Court of Criminal Appeal,
and it was to that end and for that reason that

experts were called on either side as to the issue,

first of all, as to whether it could be proven, and
secondly as to whether it was a forgery, because that

was the live issue raised by Peter Mickelberg,

notwithstanding the fact that the witnesses he referred

to in his notice of appeal had all resiled from that

position.

Now, that background was a short background, but

it is in essence the Court of Criminal Appeal heard

the evidence, heard the experts and made their

decision. This was somewhat unusually, but for the

reasons which I have really outlined, a case where

not only the expertise of experts may have been on

trial, but also their credit and, indeed, His Honour

Justice Wallace made findings as to their credit.

The finding of the Court of Criminal Appeal that there

was no evidence of forgery did not depend upon the

labelling, or I might say mis-labelling of any

photograph, but it did depend upon the rejection of

evidence called by the applicant in the case of

Mr Justice Wallace, or upon findings by
Mr Justice Olney and Mr Justice Pidgeon that there

was no evidence, new or old, to support the

proposition that the fingerprint is a forgery, even

taking the evidence at its most favourable.

If I can take Your Honours to volume XIII to first

of all the judgment of His Honour Justice Wallace,

page 3028 B.. His Honour at the commencement

of the paragraph which conunenced:

The determining feature, in my opinion,

is the failure of the appellants' experts

to approach their examination of the

document devoid of such extraneous knowledge

as the police's alleged possession of

silicone rubber replicas. The case of

Robert Dale Olsen is an express example

of an expert's opinion having been swayed

in the first place by inadequate material

conveyed to him by the appellant's

representatives. At least Olsen was

honest and courageous enough to finally

express the opinion that he was unable to

tell whether the crime mark was a forgery

and therefore it should be viewed as

genuine. In my opinion - - -

C2T22/l/HS	251	:MR McKECHNIE, QC 23/11/88
Mickelberg

DEANE J:	What does that mean - that if you cannot say
something is a forgery you therefore say it should
be asserted to be genuine?
MR McKECHNIE:	Could I take that question on board, Your Honour,

and when I come to deal with Mr Olsen's evidence -

that is what he said.

DEANE J:	And also, why should experts not approach the question whether it is a forgery on an assumption
that a conceivable means of forgery may have been in
existence?
MR McKECHNIE:	Well, in the case of Mr King and Mr Thomson, one of their primary facts which they based their
opinion on - perhaps I should take Your Honour
directly to them.

DEANE J:  No, do not. It just reads strangely to me.

MR McKECHNIE:  It is probably my fault, Your Honour, for not

taking you to the evidence before the findings, but in the case of King, for instance, his finding was

dependent upon the fact that the police had, on

15 July, rubber fingers capable of making the forgery.

DEANE J:  But it makes no difference to say his finding was

dependent on the fact than to say his finding was
in the context of an allegation that, or a suggestion

that - I mean, it is just a meaningless exercise if

you say to the expert, "Assume that the means of

forgery were not there and now answer the question

'Is that a forgery?'", which is what that passage

seems to suggest.

(Continued on page 253)

C2T22/2/HS	252	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McKECHNIE:  I do not say that that is an entirely

meaningless exercise, Your Honour. Far better,

we would say, to say to the expert, "Have a look

at this document, does it exhibit the traces of

forgery?", rather than - - -

DEANE J:	But why not add to it? In a context where it is
alleged that the police had this type of rubber finger of the person concerned in their possession,
I would have thought it was unfair to ask their
opinion without placing the context before them.
MR McKECHNIE:	Two answers to that: first of all, not all

the experts who were called at the appeal would

agree with Your Honour's view.

DEANE J:	Then they are performing their function.
MR McKECHNIE:	Secondly, Your Honour, in our submission, it

is wrong for an expert to start off with a knowledge

of what is, either a disputed or undisputed fact -

in this case a disputed fact - and say, "I base

my opinion that this is a forgery because the police

had the means of forgery." Better, we would say,

to say, "This mark exhibits characteristics of

forgery. That is where my expertise can take me."

Whether or not, allied to that, there is evidence

that there was the capability of forgery is a
question for others 3' perhaps the jury, if it is
raised by the jury, perhaps others. All, in our

respectful submission, the length of the expertise

can go is to say, "This mark does, in this case,

exhibit characteristics of forgery."

That was, incidentally, Your Honours, really

the approach of Olsen and Bonebrake. The comment

there of His Honour about Olsen being swayed by
inadequate material is a comment referred to the

fact that the four depondents to the affidavits

initially had very poor quality photographs with

which to come to their view.

DEANE J: I do not want to delay you. It does seem to me

that that statement, that Olsen was honest enough

to finally express the opinion that he was unable

to tell whether the crime mark was a forgery and

therefore it should be viewed as genuine is quite

extraordinary in the context of looking at the

evidence in a criminal trial. I would have thought

the relevant result of that would be that Olsen

said he was unable to say whether it was genuine.

MR McKECHNIE:  With great respect, Your Honour, a witness

who has first said, "It is a forgery of epic

proportions.", then says, as he did, "There is

no evidence of forgery.", what he is saying in

C2T23 /1 /ND	253	MR McKECHNIE, QC 23/11/88
Mickel berg

a shorthand way is what I have been saying, if

there is no evidence of forgery exhibited on the

cheque then perhaps you look at other places for

evidence, whether the police had the capability,

whether somebody else had the capability. I have

been referring to the police because that was the

allegation that was open although at times it seems

to be suggested that it may not have been the police

who made the forgery but somebody else, perhaps

ARPAD or someone else, by the applicants'

counsel, they try and back off the fact that it

was the police but, leave that aside, can I simply,
with great respect, disagree with Your Honour but,
perhaps, in the course of looking at the evidence

later expand as to why we would disagreed with

Your Honour.

His Honour goes on:

In my opinion each of the appellants' expert

fingerprint witnesses initially suffered from

the same lack of objectivity as the witness

King whose knowledge of the police opportunity

to have forged the crime mark was basic to
the formulation of his opinion. Peter's ground

of appeal pleads that fresh evidence establishes

the crime mark as a forgery. Knowledge that

a fingerprint could be forged by the use of

human sweat as a medium may constitute fresh

evidence. However that cannot be said to

establish the crime mark as a forgery.

His Honour then goes on to deal with the Crown

evidence and at page 3030, between lines D and E

and the start of the last paragraph:

(Continuing on page 255)

C2T23/2/ND	254	MR McKECHNIE, QC 23/11/88
Mickel berg
MR McKECHNIE (continuing):

In short I have not found the
appellants' technical evidence credible.

And then he goes on to deal with O'Brien and the

passage that I have read. Mr Justice Olney

approached the matter somewhat differently,

Your Honours, at 3086E at the bottom of the page.

It is the last paragraph. His Honour did not

directly, as His Honour Justice Wallace did,

make a determination as to the appellants'

evidence on the fingerprint but His Honour said:

If for present purposes the evidence is

accepted at its most favourable to the

appellants, that is that it is not possible to tell whether the fingerprint in question

was made by Raymond's natural finger or by

a silicone replica thereof it is necessary to consider the new evidence in combination with the evidence at the trial to determine the

cogency of the new evidence and whether had

the jury been in possession of the new

evidence, there is a possibility that it

might reasonably have acquitted the appellants.

I do not want to bore Your Honours by reading

all of the judgments. I am, really, just, as I

say, highlighting, as it were, the findings or the

reasons as to why he reaches the conclusions that

he does. At page 3090B:

This latter argument is of course dependent

upon the appellants making good the fabrications

and so far as the assertion that the police

forged the fingerprint is concerned there is

no evidence either new or old that supports

the proposition that the fingerprint in

question is a forgery nor that the police

had the capacity to create the forgery at the

time it is said to have been made.

His Honour reaches those conclusions having reviewed

also the evidence at the trial and, really, says: In view of the conclusion already reached it

is unnecessary to consider the

further grounds but then he goes on to do so.

Justice Pidgeon at page 3163D, where the

heading is "Fingerprint Evidence':'

There was no witness, who testified, who

stated that the fingerprint is a forgery.

C2T24/l/SH	255	MR McKECHNIE, QC	23/11/88
Mickel berg

The nature of the evidence on behalf of

the appellants was that the crime mark
could have been made by the natural finger

of the appellant Raymond Mickelberg or it

could have been made by a	rubber silicone
finger.	The evidence was it is not possible

to tell and one of the reasons was because

it was a poor print. If the evidence in a

trial stopped at that point it still would

be strong circumstantial evidence adduced by

the prosecution because it w:>uld be unlikely

and not within reason for there to be in

existence a rubber finger and it could not be in

be in existence without the participation

of the suspect.

Then, he goes on to the question that, in this case, there was and the like and goes on to deal with that

question that I have raised about further evidence

to indicate an artificial finger was not in quality

and that is the passage I would wish to take

Your Honours to in relation to him at this stage.

Now, I think I am taking Your Honours, perhaps,

incorrectly to the judgment to show that this was

not, in the end, at the appeal. The Court of

Criminal Appeal, in our respectful submission, very

correctly applied the proper principles for a court

in assessing evidence of this kind, new or fresh,

and, indeed, as Mr Justice Olney remarked early

in his judgment, the principles were not in dispute

between the parties and Their Honours instructed

themselves, if I might say so with respect to them,

as to the principles by going through some of this

Court's authorities on the matter, primarily this

Court, and in particular, having regard to RATTEN

and GALLAGHER and those are submissions of law upon

which I will join issue with Mr Mccusker towards the end of my submissions.

(Continued on page 257)

C2T24/2/SH	256	MR McKECHNIE, QC	23/11/88
Mickel berg

MR McKECHNIE (continuing):  But this appeal did not -

and they did not decide it on the basis of,

"Well, we haye the Crown evidence on one hand

and we find that is very strong; and the

appellants' evidence on the other hand and

we do not accept that, therefore", they are really,

indeed, as Mr Justice Olney said, taking the

evidence at its most favourable to the appellants.

The question of the mislabelling of photographs

does not bear upon the way and the manner in
which the court approached what they were doing,

and it does not bear upon the evidence that was

given. The four experts whom I have referred to,

King and Thomson:- from the United Kingdom,

Bonebreak and Olsen, were examined by Mr Wallwork

who called them. At no stage did he put their

affidavits into evidence. They were put into

evidence by Mr Searle who cross-examined them

on behalf of Mr Peter Mickelberg - their earlier

affidavits.

Their evidence was, in broad terms, because

it is substantial and so is the cross-examination,

reduced to this: "Well, we cannot tell whether

this is a forgery, or whether it is genuine and

nobody else can either." A large part of their

evidence was designed, as it were, to show that

the Crown witnesses who were called could not tell whether it

was a forgery or whether it was genuine. The

Crown witnesses were in fact of the view that

it was a genuine print, and I should, I think

later, take Your Honours to that. But the burden

of the evidence as lead was simply, "We cannot

tell" and really, because their earlier affidavits

and their earlier assertion that these were forgeries -

a point to which they resiled somewhat in

cross-examination, but Your Honours will see the affidavits to determine whether or not they just

simply said they were forgeries. Really, they

said, "Well, look, we did say they were forgeries,

but later on we said, 'Well, we can't tell whether

they're forgeries' and now we say that nobody else

can either." In other words, they were witnesses

who did come with some marks about their credit

and those marks were enhanced as the cross-examination

proceeded and the witnesses' evidence unfolded.

BRENNAN J: Is there any more to be said than this: that

the way in which one determines whether there is

a fingerprint is by examining by scientific means

the deposits which have been left by bodily

secretions on the surface and one cannot tell from

that examination what was the nature of the

thing, whether a finger, or some plastic material,

or otherwise, which left those bodily secretions

on the surface?

C2T25/l/JM	257	MR McKECHNIE, QC 23/11/88
Mickelberg

MR McKECHNIE:  Yes, Your Honour, there is much more to

be said than that.

BRENNAN J: Much more?

MR McKECHNIE:	The first point to make is that the four witnesses whom I have mentioned in 1984 went
further and said by reference to the rubber moulds that they then had and comparison of
the rubber moulds and photographs, particularly
the enhanced photographs of the mark, that these exhibited signs of having been implanted by the
rubber finger. That was a position, as I say,
that they resiled from.

The respondent's witnesses, including

Mr Warboys, who is the senior chief fingerprint

officer at New Scotland Yard and has active
experience in the detection of forgeries, gave

what the court described as compelling or impressive evidence as to why there is a

material difference between marks left by

a natural finger and marks left by a rubber

finger, and how a rubber finger cannot replicate

the mark left by a natural finger.

The evidence of Mr Thomas Thomson, who

was a respondent witness from the FBI, senior

fingerprint supervisor with the FBI and who

has also had active experience in the

detection of forgeries, gave evidence of having

microscopically examined the mark and the

cheque, and I might say, seeing ridge detail when

he examined it in 1985 - that is an aside -

having microscopically examined the mark, having

taken the enhanced photograph produced by

Dr Kobus and computer-enhanced that to show

what he said is a slight double impression which

cannot be replicated by a silicone mould ·finger.

(Continued on page 259)

C2T25/2/JM	258	MR McKECHNIE, QC 23/11/88
Mickelberg

MR McKECHNIE (continuing): Indeed, Your Honour, the question

of forgeries is not new, it was known in 1982. Henning

knew of it in 1982 but was not cross-examined about it.

There have been some celebrated cases of fingerprint

forgery chiefly relating to the lifting of prints.

A print left at another place lifted by tape and put

in a criminal place. Nobody had ever come across a

rubber finger before but the experts, I think all of

them and particularly Mr Tuthill who was called by

the applicant, had given evidence of training and

detection of forgeries by the use of rubber moulds

m<rsuffice it to say, Your Honour, that the science of

fingerprints is far more than simply detecting the

number of characteristics within a given print but goes,
as Dr Kobus' side of it, to enhancing the print - the

chemistry of it and in the case of Mr Warboys and

Mr Thomson and some of the others, they are all trained

in detection·of forgeries-and it is. possible to detect

forgeries. The question really at issue here was

whether it was possible to detect this mark as a forgery

and some of the witnesses said it was not possible one

way or the other, others said, "Well, yes, it is possible".

There was no witness who said, "Yes, it is possible to

detect that this is a forgery;' The only evidence in

fact was is, "Yes, it is possible to detect that this

is the natural mark of Raymond Mickelberg. " The other

witnesses said, r-1It is not possible to detect either way."

DEANE J:  Was there a dispute between them as to whether you

can detect a forgery or was the dispute as to whether
at this stage when they were only, as it were, going

on old photographs and so on, you could detect whether

it was a forgery?

MR McKECHNIE:  Might I take issue with one of the premises,

Your Honour's comment about old photographs. There is

nothing about the age of the photograph that was

relevant - - -

DEANE J:  I had in mind the technology involved in producing the

print and taking the photograph of it? (Continued on page 260)

C2T26/l/SR	259	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKENCHIE:  I see what Your Honour means. I would answer

no. There was no dispute about the technology.

A lot of the evidence - really all of the experts

proceeded upon a fairly common method of determining,

that is, they had the crime mark, of course, they

had the unenhanced print of that and they appear

to have had the unenhanced print with pin.marks

in it - - -

DEANE J:  What I asked you, was there a dispute about whether

or not one could always detect a forgery? You said,

some of the Crown witnesses said they always could

detect a forgery.

MR McKENCHIE: If I said that, I was wrong. Of course,

if it is the perfect forgery it is undetectable

and I think I said that.

DEANE J:  But I thought you said that they said you could

not produce the perfect forgery.

MR McKENCHIE: If I said that, Your Honour, I overstated

the case.

DEANE J: Well, you may not have said it.

MR McKENCHIE:  What the position was was that more than two

of them had active experience in the detection of forgeries and had detected forgeries and in

relation to this print were quite satisfied that

this was the natural fingerprint. I did not mean

to go on, if I did, and say that they could always

detect a forgery but I think the evidence would

go so far as to say that they would say - certainly

Mr Warboys and Mr Thompson and Mr Norton would

say - that with a rubber cast such as these fingers -

perhaps it might be useful if we had the box which

has a number of fingers in it. Your Honours, these,

for what it is worth, are a bag of seven fingers

which were exhibit 188, unfortunately it does not

say who put them it - I think Mr Wallwork did -

and they were the one~ amongst other~ that were

shown to Mr King.

It is, of course, an unusal event for a would-be

forger to have such an object of forgery because

the evidence was to make a cast one must first

make a female mould - the exhibit which is marked

for identification, it looks like a glove.

(Continued on page 261)

C2T27/l/AC	260	MR McKENCHIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  Your Honour Justice Brennan was

referring, I think, last time to a glove. In fact

the only glove was never proved. It was only ever

marked for identification, but it is the latex mould

which, of course, has to be then turned inside out

and filled with quick drying rubber silicone in

order to make the cast of the solid finger which

Your Honours have. That was never proved. It was

put in through Raymond Mickelberg or identified,

I think, through him.

Your Honours will see from this to a lay eye

it reproduces well ridge detail, wells and deltas.

What it does not reproduce, however, which in the

opinion of the Crown experts was significant, it

produces pore holes, but will not, of course, and

cannot reproduce the exudation of sweat from the pore

holes. In order to make a mark with a finger such

as this I nru.st transfer sweat on to it from some part

of the body and then make the mark. I will, of

course, have to work blind in relation to that
because the sweat leaves no mark, unlike when you
are making a mark with ink you can see immediately

the results of what you are doing, and the simple

placing of this is likely to leave a characteristic

forged mark, and one of the points made, of course, is that doing it a forger would have to do it blind

and also would not have another chance to do it,

particularly in this cheque where there was a

fingerprint, in fact, or ridge detail never

identified, underlayed or overlayed right next to

this. So it is not a question of washing off and

trying again till you get it right.

So the forger nru.st place the finger down in

a way not to exhibit the characteristic forged signs,

which the affidavits show and which the witnesses

spoke of. More particularly, as I say, there is no

exudation of sweat from pores because there are no

pores. Finally, the fingers are not flexible.

They appear, of course, to be flexible but they no

way reproduce the natural flexion of the skin of a	finger.	That was of significance to Mr Thomson.
(Continued on page 262)

C2T28/l/HS	261	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McKECHNIE (continuing): All of this, Your Honours, was

simply to, I suppose, give Your Honours a glimpse

of some of the detail which was before the court
for many weeks and the court had the advantage of
hearing in detail the explanations and the witnesses
as they, from their various points of view, explained

to the court the things which I am merely outlining

to Your Honours.

There were other things and other features

about the print. For instance, Mr Warboys found,

as, I think Mr Justice Wallace said, the concatenation

mark made by a natural fingerprint on paper, as opposed

to the more print-like mark of the rubber finger and

Mr Thomson who, as I say, had examined the cheque and

the mark microscopically before reaching his

conclusion, spoke and it might be convenient to have

a look at his exhibit which is - Mr Thomson explained

particularly to Their Honours as to the flexibility

of a natural finger as opposed to a rubber finger and

the mark that would be left.

DEANE J:	Mr McKechnie, does this really all come to this:
that if there were evidence that the police, in 1983,
had had the King fingers in their possession, it would
be extremely difficult to justify the approach that
prevailed in the supreme c~urt but that there is not only nothing co suggest that the police had the fingers of the quality of the King fingers, there is a complete failure to identify what
happened to fingers of the 1983 quality which were known to have been under Raymond's control in 1983?
MR McKECHNIE:	I do not know that it just comes to that,

Your Honour, although that is a convenient way from

the Crown's point of view of explaining the matter

and that was certainly part of Their Honour's findings

but Their Honours did go on, particularly

Justice Wallace, to positively - - -

DEANE J: Well, it is a bit hard to generalize there. What

I am really putting to you is I would have had

trouble thinking or seeing if there was evidence
that the police had the King fingers in their
possession, anybody could have said in the context
of fresh evidence here there was nothing that might

have led to a reasonable jury having very real doubts

about the fingerprint evidence in this case.

(Continued on page 263)

C2T29/l/SH	262	MR McKECHNIE, QC	23/11/88
Mickel berg

MR McKECHNIE:	I hesitate to agree with Your Honour because - - -
DEANE J:	Do not let me drive you to an agreement because

I am not trying to,I am - - -

MR McKECHNIE:  No, let us put it this way. I agree, of course,

with what Your Honour says in relation to the absence
of evidence of 1983 fingers, if I can put it that way,
but I do not think that even if there had been evidence
of 1983 fingers that that would inevitably lead to
the conclusion Your Honour was postulating with me.

In view of all of the evidence that was led before the

Court of Criminal Appeal and the manner of that evidence

it is not - see ,Your Honour,what the appellant

Raymond Mickelberg says in his grounds quite clearly

is that the print cannot be scientifically proven to

be genuine - - -

DEANE J:  Do not let me take you off on to an answer, I was

just trying to identify the issues in my mind but

do not - - -

MR McKECHNIE:  I agree with the issue that Your Honour put, all

I would say is that we would see further issues in any event and it may not be necessary, of course, to

develop those in the long run, as it were, if there

is evidence upon which the court below could have found
as they did in relation to the 1983 fingers.

DEANE J: And can I just ask you this, no doubt it is my lack

of memory, but what on the applicant's case was the

situation in so far as the return of what the police

are said to have taken?

MR McKECHNIE:  Could I take Your Honour directly to it because

I am juat a little thrown by - it is in volume III,

I think, it is the passage I have already cited to

Your Honour at, I think, page - again it is, as it
were inferential evidence that things were returned,
Your Honour, page 577, the passage I have read to

Your Honour is, of course, Raymond Mickelberg speaking

of events on 23 September, when he alleges that

Hancock had gone up and made some comments about a

brass hand which he said had been taken from him.

Now it is obvious that that hand had been returned on

his evidence because it was there in the room on
23 September so it had been returned at some stage on
his hand and then the, as I would describe them,

ambiguous and dishonest way in which exhibit A7 came

into evidence.

(Continued on page 264)

C2T30/1/SR	263	MR McKECHNIE, QC 23/11/88
Mickelberg
MR McKECHNIE (continuing):	He had the rubber	hand,

of course. He said, "Had this been taken?---All

that sort of work had· been taken."	And then
the hand is put in.

DEANE J: In a context where it was part of things, or

taken and presumably returned?

MR McKECHNIE:  Yes. Clearly, Your Honour, what he was

saying about the brass hand, at page 577,

that had been taken on 15 July, because he

heard the detectives, but that had been taken

and returned. He is clearly saying that.

And the rubber hand, which, of course, we

only found out late in the appeal, was

manufactured actually just before the trial,

but the inference of the evidence before the

jury was that the rubber hand had also been

taken and returned.

DEANE J: Before the s,upreme court, the investigatory

hearing, or whatever you call it, did the

a:pplicants ever say that rubber hands taken

were not returned?

MR McKECHNIE:  Yes, before the Court of Criminal Appeal,

Peter Mickelberg gave evidence as to fingers

having been taken and not returned.

DEANE J:	I see.
MR McKECHNIE:	That is in volume IX, Your Honours. It

is in re-examination, Your Honours, I think,

at page 2060. He was asked:

What did they take?---Sir, they took

all of Ray's brass statuettes and

figurines and that, that he had.

There was a - ..... I can remember ....

Well, they took ..... brass hands and·

that was of Ray's hand, Sheryl's hand

and the kids' hands ..... hands and

rubber fingers and the actual moulds
that the hands were made in and the
finger moulds as well -

How many fingers would they have taken? Said Mr Searle at line B:

I can't truthfully say ..... There was a number, a number of fingers and

they weren't just red rubber. There

was red rubber and white rubber and

there was yellow brass, bronze - there

was a variety of items -

described -

as "hands".

C225/2/JM 264 MR McKECHNIE, QC 23/11/88

Mickel berg

MR McKECHNIE (continuing):  I am not at all sure whether he

described when or whether they were returned,

Your Honour.

DEANE J: Then the answer is there is no evidence that

they were not returned?

MR McKECHNIE:  There is no evidence the fingers were returned,

no. There was not, until the appeal, any evidence

that fingers were taken.

GAUDRON J: That means there is simply no evidence one way

or the other?

MR McKECHNIE:  There is no evidence one way or the other,

it is just a question. The police, of course,

denied taking rubber fingers and hands - - -

DEANE J: There could not be police evidence that they

had returned.- - -

MR McKECHNIE:  So there could not be police evidence of it.

Having diverted myself, Your Honours, may I return

to a couple of points which Mr Wallwork seeks to

make in respect of exhibit 166. He makes the point

and makes the point strongl½ it would seem, that

it is significant or sinister because before the

print goes to Canberra Henning cannot identify

sufficient points or characteristics. After it

comes back he said:

Warboys can see 16 -

And Warboys sees 16 in the photograph which was
taken after enhancement and which Henning said

had disappeared and this is said to relate to the

sinister - Mr Mccusker has pointed out to me,

Your Honour, that the question that Your Honour

asked is, in fact, answered by me in mi first question

in cross-examination:

MR McKECHNIE:  You say that hands were taken

by the police on the 15th of July, do you?---

Yes, sir,.I do.

Were rubber hands ever returned?---No, sir, they were not.

And that is at page 2048.

(Continuing on page 266)

C2T32/l/ND	265	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  So there is evidence from him as

to that, Your Honour. The question - leaving

aside what Mr Wallwork seems to make of the

fact - that the unenhanced print which was taken

after the Canberra treatment can see 16 points

whereas before Henning could only see seven

or eight points, he sees as of significance.

Your Honours, several things can immediately

be said about that. Mr Henning could not see

sufficient points of identification in the unenhanced

photograph or in the unenhanced cheque before

it was sent off. That is why he sent it off.

After - I should say "after"..; but during the

enhancement process, when the print was enhanced

and a photograph taken of it he was unable

in fact to see 16 points of identification.

Mr Warboys was shown the unenhanced print which

does have holes in it and used that, primarily,

we would suggest, as a basis of comparing to

see whether the mark on the cheque is that of

Raymond Mickelberg, and he could find 16 points

and described - he said, in his evidence, that

that took him, "after a time", he said. The

evidence - I will not take Your Honours to it -

is at volume IX, page 2171. Indeed, Mr Swan,

in an affidavit, could also see 16 points.

But, on the other hand, Mr Norton could

not, and his evidence appears at volume X at

page 2344. His evidence is this - it starts

at line B:

there's one very prime thing that has

to be reached in Australia and that is,

no matter how many crime marks you make,

they must make the Australian st~ndard

of 12 characteristics. You can have as

many as you like, if it is not 42

characteristics there is no point in putting

the thing on the paper.

There were not 12 characteristics in that

- -?---Most certainly not.

- - and that would be unenhanced?---Most

certainly not.

But there were 12 characteristics once

it was enhanced?

That was in the course of his cross-examination

and he went on:

C2T33/1/SDL	266	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McK.ECHNIE (continuing):

Yes. There are about 12.	I would be
very surprised if you reach the 16.	I
wouldn't be as happy with 16 as some
of these people are. I believe that
you get to the 12 and just hold it.

And then proceeds on other matter~ but he could

not find it. Mr Herold, whose evidence I will go

to, to deal with another point a little later,

described it, that is, the unenhanced photograph

with pin holes in, as a very poor print. One

such that, I think he described, if it were sent

over to records, it would be sent straight back.

So that the only point we would make about this

is that it cannot be unequivocally asserted as

Mr Wallwork does, that before it went, there were

not 16 points and after it went, there were, the

state of the evidence discloses honest disagreement

amongst the experts as to the amount or number of

characteristics that can be.seen in the exhibit or

in a photograph similar to the exhibit.

As I previously advised Your Honours, and just

to give Your Honours evidence of that, the appellants'

experts worked on the developed fingerprint before

enhancement and I will not take Your Honours to the

passages but Mr Bonebrake, in volume XII,:inhis

affidavit at page 2855, said he could detect 12

points and this is the one where Henning could

only detect six or seven. King, in volume XII,

at page 2849, paragraph 16 of the affidavit, could

detect 13 points. Mr Olsen, on the other hand, at

page 2868 of volume XII, said that, in respect of

the same print, it was not an identifiable, latent

print and the only point that one would make of it

is that it is overstating it simply to say that

before it went it only had six or seven points but

afterwards, in the photograph, exhibit 166, people	can identify 16 points. Certainly some people can;
other witnesses cannot. Certainly on the
pre-enhancement print, some people can; other people cannot.

MASON CJ:  The Court will now adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

C2T34/l/SH	267	MR McKECHNIE, QC	23/11/88
Mickel berg
UPON RESUMING AT 2.15 PM:

MASON CJ:	Yes, Mr McKechnie.
MR McKECHNIE:	Your Honour, my submissions this morning

have really been, in so far as they can be related

to our outline of argument, related to what are

called the supplementary grounds, exhibit 74 on

page 4 and page 5 of our submissions,and I have

in the course of that actually dealt with a

number of submissions on pages 1 and 2. I have

really dealt up to submission 9 on page 2 and would

not traverse old ground. Might I just mention

something that arose this morning which I have

been reminded of at lunch-time.

Your Honour Justice Brennan asked a question

concerning any examination of the corners of the

cheque, and I think I said there is no evidence of it.

That is strictly right in that there is no evidence

anybody examined the corners, but in 1985 the
cheque was seen by Mr Thomson and particularly

Mr Warboys and examined or was treated with the

physical developer, the whole of the cheque.	As
a result of that treatment - and this is the
evidence of Sergeant Neville that appears at

volume XII, page 2835. It is not necessary for

Your Honours to go to it - as a result of that there

was a further print which developed and that was the

print of one of the mint employees, Christopher Hunt,

on the front of the cheque. That does not directly

answer Your Honour's question, but the cheque was

at that stage examined for further prints and, in

fact, one identifiable print was shown.

(Continued on page 269)

C2T36/l/HS	268	MR McKECHNIE, QC 23/11/88
Mickelberg

MR McKECHNIE (continuing): At that stage also, Mr Warboys

found fragments of a print on the front of the cheque

in juxtapositio'n to the mark on the back of the

cheque·. Your Honours, could I return then to the

outline of argument and to paragraph 10 which was a

submission by my learned friend,Mr Wallwork, but more

particularly as a ground of appeal. The judges charge,

Your Honour, is to be found in volume V of the papers.

It was a lengthy charge of instructions to the jury

and it would appear that no particular complaint is
made of it in most of its forms until Mr Mccusker makes

some complaints concerning handwriting and conspiracy,

but I will deal with those later. The charge identified

the general matters of principle and indeed it was the

case that as His Honour said to. the jury, "the jury

may well, ..... readily come to the conclusion" and

indeed this was in so far as such a matter can be conceded

by the defence -	it was conceded that there was a
conspiracy to swindle the mint.	The question was who

were part of that and whether the three accused were

part and His Honour dealt with the case, as against

Brian Mickelberg and the case as against· Peter Mickelberg

and the case as against Raymond Mickelberg separately and

with appropriate warnings as to evidence. And as

Your Honours, I thirik,are aware, the jury convicted

Brian Mickelberg of conspiracy and acquitted him of the

tw_o arsons and the two breaking and enterings.

Those were crimes which were said to have occurred

in April and May 1982 at which point home building

society cheques - Perth Building Society and WA Building

Society cheques were, as it later appeared, taken and~.

the premises burned in order to disguise that fact, as

it later appeared because the cheques which were proffered

to the mint came from those respective premises. He

was acquitted of those two matters but convicted of the

false pretences on the mint and the conspiracy,and subsequently, at his appeal, he was, by a majority

acquitted by the court. It is correct~;"-we would say, : -

to say that the members of the majority, that is the

then Chief Justice Sir Francis Burt and Mr Justice Smith

reached their conclusion as to acquittal by a different
means~-	I will take Your Honours to that judgment

if it becomes necessary.

(Continued on page 270)

C2T37/l/SR 269 MR McKECHNIE, QC 23/11/88

Mickel berg

MR McKECHNIE (continuing):  When His Honour came to deal

with the cases against Raymond Mickelberg he did

so at page 1170 and this page contains what is

repeated in the appeal books and was the subject

of considerable comment and criticism in the court

below - the passage about an unforgeable signature.

Now the entire passage reads, commencing in the middle of the page at about opposite line C:

Perhaps the most direct evidence against him

is the fingerprint on the West Australian

Building Society Cheque; one of the three

cheques which was handed over on 22nd June

in exchange for the bullion. Sgt Henning,

who gave evidence on the fourth day.of the

trial, told you of his long experience in

classifying and identifying fingerprints.

He told you that there has been no documented

evidence of two fingers leaving the same print;

each finger leaves a different print. As his

evidence in that regard was not challenged

you may safely accept that a fingerprint is,

in effect, an unforgeable signature.

Sgt Henning went on to tell you of his getting the three cheques on 24th June last, I think,

of examining them and·of his noticing one

fingerprint on the cheque in question that

he could not identify. He went on to tell

you then after 15th July he sent the cheque

to Canberra where it was treated by Dr Kobus

and that after the cheque and photographs

made by Dr Kobus had been returned he concluded

that the cheque in question bore the fingerprint

made by the right index finger of the accused

Raymond John Mickelberg. Sgt Henning demonstrated

to you, as you have been reminded, the position

of the finger when it made the print.

If you find, and there was no dispute about

it it would seem, that the cheque does bear

Raymond John Mickelberg's fingerprint then

you will need to ask yourselves: How did

the print get there? If it was put there
before the cheque was handed over at the Mint

it would seem, and of course this is a matter

of inference entirely for you, that the accused

Raymond John Mickelberg was definitely involved

in the swindle. If he was not involved how

else could his print come to be on the cheque?

The accused has told you that he handled the

cheque in the course of an interview with

Det-Sgt Hancock on 15th July. He said that
Sgt Hancock showed him a cheque, shook it

out of a plastic bag, and told him that his

handwriting was on it and referred him to II II f h II II • • h

t e ts, some o t e ts, appearing int e h

handwriting.

C2T38/l/AC	270	MR McKECHNIE, QC 23/11/88
Mickel berg

MR~McKECHNIE (continuing):

The accused said that he handled that cheque. In evidence he said that he

handled the cheque by picking it up at the

corners. Sgt Hancock told you, when it was

put to him in cross-examination, that

nothing like that happened. He said that

the accused did not handle the cheque in the

course of the police investigations.

I will just read to Your Honours the next

paragraph:

On behalf of the accused it is said that there is no independent evidence to show that

the print was there before 15th July.

Mr Cannon put to you that there was no

photograph taken of the print before then.

Mr Davies has commented on that and reminded

you of Sgt Henning's testimony as to finding

the print on the cheque on 24th June. If

you accept Sgt Henning's evidence you would

find, it would seem, that the print was there

well before the accused Raymond John Mickelberg

was interviewed by the police.

Your Honours, two points that we would make out

of that charge and this, of course, was a charge

that Their Honours dealt with and pointed out,

that, of course, His Honour is not saying there,

in that first passage at page 1170, that

fingerprints are unforgeable. What His Honour

is saying is, "As his evidence in that regard was

not challenged, you may safely accept that the

fingerprint is, in effect, an unforgeable signature."

His Honour then went on to put what he perceived

to be the defence at trial and summarized briefly
the evidence. In the passage that I quoted at

Rage 1172 he really puts directly to the jury,

'If you accept S~t Henning's evidence you would

find that the print was there well before."

Your Honours, the photographic issue at the trial,

of course, was clearly before the jury and

Mr Cannon, in the final address to the jury, made

much of it and it was the case that no photograph

of the print on the back of the cheque did exist

prior to Raymond Mickelberg's apprehension by police.

It matters not for the purposes of this whether

the police implanted the rubber replica finger to make the mark or Raymond Mickelberg handled

it.

C2T39 /1 /ND	271	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing): It was the evidence before the

jury and one of the jury matters that they had to

weigh as to whether the mark was on the cheque on
24 June. They had Sergeant Henning's evidence and

in that they were not assisted by Sergeant Henning

being able to ever produce a photograph and say,

"Here is a photograph which proves what I have said".

Now, this matter has been criticized at the

Court of Criminal Appeal and before Your Honours but

what we would say about it is there is nothing new

about it. It was a live issue at the trial. It

was one of the issues that the jury had to determine.

Now, it would have, I suppose, had - there are whole scale

allegations of police fraud and perjury in relation

to this. If the police had photographs of the mark
before it had been enhanced by Dr Kobus and before

the pencil line had been put in, as Henning said,

it would have, I suppose, been an easy thing to

say, "Well, here is a photograph of the mark". No

such thing was ever said by them and it was a live

issue at the trial and the photographic issue at

the trial was the fact that there were no photographs

taken prior to Raymond Mickelberg's apprehension.

Now, that was a fact in issue along with all

of the other facts before the jury, left to the jury

by His Honour and, clearly, a fact in issue by the

jury. In other words, there is nothing new or unusual

about it now.

DEANE J:	I am sorry, you said the fact in issue was whether
photographs were taken before Raymond's arrest, is
that right?

MR McKECHNIE:  One of the facts, yes - no, sorry. The fact in

issue was whether Raymond Mickelberg's fingerprint

was on the cheque.

DEANE J:  Yes. You said whether the photograph had been

taken - - -

MR McKECHNIE:  I know. I am sorry about that, Your Honour.

on 24 June. As opposed to that, what was said by

It was wrongly put. The fact was whether

counsel and it is a legitimate point, is, "Well, if

it was,why is there not a photograph of it?" and there

was not a photograph of it. All I say is that was

one of the jury issues along with the other evidence

and there is no extra significance about it now or,

indeed, at the Court of Criminal Appeal.

C2T40/l/SH	272	MR McKECHNIE, QC	23/11/88
Mickel berg

DEANE J: But, if one were to take the view that the absence

of a photograph between 24 June and 15 July

was quite extraordinary, it would be a factor

to be taken into account in relation to assessing

the importance of the fresh evidence - if we

are to be concerned with fresh evidence.

MR McKECHNIE:  The fresh evidence at the Court of Appeal,

Your Honour?

DEANE J:	Yes, and what is put as fresh evidence at this
Court.

MR McKECHNIE:  Yes. I have not, of course, addressed

Your Honour on the fresh evidence at this Court

and there is not any, yet, and if .·there were

it would be a totality - - -

DEANE J;	I mean the evidence about the unreliability
of police evidence in relation to when photographs
were taken - which I thought was what you were
talking about this morning?

MR McKECHNIE: It might be, Your Honour, although this

was, of course, an issue raised with the Court

of Criminal Appeal and findings were made on

it as well. I am just - as I could not find

the reference - going to give Your Honours the

reference to·that. But the essential point

that we would make, Your Honour, is - while

perhaps conceding that seeing obviously some

relevance in it - the issue was very live before

the jury; the fact that there were no photographs

taken was known to the jury.

DEANE J:	I am not suggesting it is compelling but all I am suggesting to you is that the more you
say that this was an issue that was live before
the jury, it seems to me the more relevant fresh evidence as to the unreliability of police
evidence in terms of photographs, the more significant
it may be.
MR McKECHNIE:	What we would say, Your Honour, is that

the issue that was live before the jury in
respect of the photographs~ of course, was not

an issue of credit. It was not that the police

were disputing whether photographs had been

taken. I can see Your Honour's point that if

a jury trial were to be held again, counsel

would have an extra suggestion to make to the

jury that would be along the lines as, "Well,

you say there were no photographs taken prior

to 15 or 16 July; prior to Raymond's apprehension?"

"That is correct." And, "Haven't you said that
this photograph was a photograph taken after Raymond's

apprehension but before going to Canberra?" "That is

correct." And, "Isn't that in fact a photograph taken

after Canberra?" "That is correct."

C2T41/l/SDL	273	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McKECHNIE (continuing): That would be the significance

of it, Your Honour, and that is. This very

point was in fact a finding of Mr Justice Olney

in volume XIII at page 3093.

BRENNAN J: Could I just interrupt you for a moment? There

is no evidence as to when those negatives were

taken, the negatives which have never got into

evidence and which you have a witness here today to - - -?

MR McKECHNIE:  My learned friend,Mr McCusker,opened some

evidence, Your Honour, which has not yet formally

been ruled as admissible.

BRENNAN J:	I see.
MR McKECHNIE:	I do not wish to fall into the error.

I have gone, I think, to the limit of saying

that they are now here - - -

BRENNAN J:  No, all I wanted to ask was "There was no

evidence"?

MR McKECHNIE:  Yes, but I do not want to give evidence

from the bar table about it.

BRENNAN J: No.

MR McKECHNIE:	At page 3093, Your Honours, in Mr Justice Olney's judgment, he deals with this very question. It
was not, of course, a live question at the trial,
but it was on appeal.  He simply details the
explanations and at line B says:

the explanations given by the police for

adopting the course of conduct that

was followed has about it the ring of truth

and there is no competing evidence.

Then he goes on and deals with the evidence that:

Henning went on leave for nine days after

the 25th June 1982, returning ..... on 4th
July 1982.

He deals with it. All I say, Your Honours, and I

do not place too much reliance on it, is that

in fact this was an issue agitated before the

Court of Criminal Appeal and there is still no

competing evidence. The fact of the mis-labelling

of the photograph is not, in my submission, competing

evidence and His Honour has held that, having heard

all the evidence.

Your Honours, finally, in dealing with the

question of paragraph 10 and the charge of His Honour

to the jury, it is relevant to recollect that the

evidence was known by the defence that fingerprints

could be forged. That was the evidence of Mr Cannon.

C2T42/l/JM	274	MR McKECHNIE, QC 23/11/88
Mickel berg

I see that unfortunately in my summary, Your Honours,

I have neglected to put the page number, but it

was the evidence of Mr Cannon and the evidence of

Mr Bardwell and, in particular, the letter that

was written to Mr Cannon following Bardwell's

visit, that it was known that fingerprints can

be forged. That fact was not a new fact. It was

not even a fact that could have been discovered

by due diligence. It was a fact that was discovered

by the accused~ as they were, through their

solicitors prior to the trial.

(Continued on page 276)

C2T42/2/JM	275	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  Now, what we say is that there

remains no evidence of the fabrication of this mark,

tactical decisions taken at trial are no basis for

the grant of special leave and I do not, of course,
need to take Your Honours to the authorities but

GREEN in this Court at 61 CLR, particularly in the

judgment at page 175, is authority for that.

Your Honours, before leaving the question of the fingerprint and the evidence of fabrication

perhaps I should just, in brief detail, take

Your Honours to some of the evidence that was called.

I have already alluded to it and in this there is

some difficulty because the evidence was heard over

a long period. There was cross-examination of it

and anything that one might do, in a sense, is

selective, but it is partly in answer to a question

by Your Honour Justice Deane this morning.	The
information that was put, for instance, to

Mr Bonebrake can be seen at volume XII in exhibit 217

at page 2862.

This was a letter which, the evidence disclosed,

had been forwarded to Mr Bonebrake who was then retired

from the FBI and was the material put before Bonebrake

and included, for instance, the comment at the

bottom of page 2862D:

15TH JULY, 1982 - Raymond Mickelberg

arrested and charged with having a false

bank account.	Raymond was fingerprinted
on this day.	Police testimony also

substantiates that on this day, silicone

rubber casts and a bronze cast of

Raymond's right hand were confiscated

from Raymond's house.

(Continued on page 277)

C2T43/l/HS	276	MR McKECHNIE, QC 23/11/88
Mickelberg

MR McKECHNIE (continuing): There is another passage which I

do not worry about. But that was a matter which was put

before the witness and was, as a matter of fact, the

best one can say a disputed or controversial matter of

fact. I should say in fairness to Mr Bonebrake that

he and Mr Olsen both disregarded the questions of

fact but Mr King, whose affidavit appears at page 2845,

did not and regarded this as essential to his findings.

It was, as he described in evidence, a basic fact

upon which to work. Mr King at page 2845 gave evidence

of his qualifications. In evidence he amplified that.

His training at Scotland Yard, I think, was for

three months in 1948 and he rose to the rank of sergeant

in the Bristol constabulary. At page 2846, paragraph 5,

he says:

I am advised and verily believe that on

15th July 1982 (i.e. the same day that
Sergeant Henning 'identified' the print) the

Police raided the home of Raymond John

Mickelberg and seized approximately 20 brass/

bronze and rubber/silicon casts of Raymond

John Mickelberg's right hand and index finger.

Exhibited hereto and marked "B" are true photocopies of pages 746 to 751 of the

Appeal Book. Tovey refers to the raid on that

day and the seizure of the hands.

Now there was no evidence of the seizure of fingers at
the trial from anyone and the evidence of Hooft was

to the contrary but that witness could not recall ever

being seen. All I say about it it is a controversial

fact. But he then proceeds through his opinion as

to the "matk" and at paragraph 22 summarizes his opinion.

(Continued on page 278)

C2T44/l/SR	277	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):

Therefore to summarise my opinion, the

crime mark on the cheque in question is

consistent with having been implanted by a

rubber silicon replica of Raymond John Mickelberg's

right index finger. I repeat the advice given

to me that the Police raided his home on

July 15 and seized a quantity of such fingers.

This was the day on which Sergeant Henning

"identified" the crime mark on the cheque

and thus gave the opportunity and means for

implanting the crime mark.	I cannot speculate
as to any possible motive.

Now, a fair reading of that, in our submission,

is an allegation that the police forged the crime

mark. It was an allegation which he was not prepared

to make in the court and indeed he and Mr Thomson,

to whom I will take Your Honours in a moment, were

driven to say, "Well, anybody might have done it.

It is not an allegation that the police might have, they were one but anybody might have." And indeed, they could not say that it was indeed a forgery.

To Mr Thomson's affidavi 4 which I do not believe

is included in the appeal book~ but simply says

that he has read Mr King's and comes to the same

conclusions. But his opinion is explained in

a letter which he wrote which is exhibited and

found at page 2853 which I will read in full

Your Honours so I do not need later to refer to

it when I come to the ground dealing with Mrs Yeats

and my learned friend, Mr McCusker's submission.

After meeting with Mrs Mary Ann Yeats in

Clevedon yesterday, viewing additional· photographs

of earlier vintage than the copies received

from you and perusing my affidavit I have

come to the conclusion that if the Police

were not in possession of the silicone fingers

before the mark was photographed the impression

on the cheque must be genuine.

He was cross-examined about that, Your Honours,

and tried at first to indicate that he had not

ever suggested that the police had forged the mark

and then apologized for his bad Englisp and

then one of the judges took him to the second paragraph

which says:

Reg King and I have always maintained that

the mark could have been made by a silicone

finger or the true finger and it must follow

that if the Police were not in possession
of the silicone finger before the mark was
photographed then it must be a genuine

impression on the cheque.

C2T45/l/AC	278	MR McKECHNIE, QC 23/11/88
Mickel berg

Reg will be writing to you in greater detail

on our day with Mrs Yeats whom I found to

be most knowledgable in the finer details

of the case. She, in no way, attempted to

make me change my mind in relation to my

statement and projected a most fair approach

to the all the matters we discussed. These,

I might add, were restricted to my affidavit.

So, this was a witness who was prepared to write

that letter a year after an affidavit agreeing

particularly with paragraph 22 of Mr King's affidavit

that the mark was consistent with forgery and basing

his opinion, substantially, on a matter of disputed fact

and not even on the material that was at trial.

Mr Bonebrak~ whose affidavit appears next

in the volume at 2854, details his experience,

details how forgeries may be made and how other

matters may be made and says at page 2857, in

paragraph 10 commencing at line D - his summary:

Based on these imperfections, I find that

the latent fingerprint on the cheque is

consistent with a latent fingerprint made

with the fingerprint made by Raymond John	using a silicone finger and is not consistent appears as part of the charted enlargements, or with the series of inked fingerprints
furnished by Mr Boase.

This is a repeat really of what he says in

paragraph 9, at 9B. D2aling with some detail, he
says:

This would be consistent with a latent

fingerprint made by a silicone finger and

not consistent with a latent fingerprint from

an actual finger.

He then swore an affidavit in different proceedings

and dated 27 January 1987 and at page 2859,

paragraph 7, says:

I confirm that my opinion based on a review of
the additional material made available to
me is that it cannot be determined vith any

degree of accuracy whether the latent fingerprint

on the Building Society cheque was made by

the actual finger of Mickelberg or a silicone

finger.

C2T45/2/AC	279	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE:(continuing): Again, as I am dealing with it

now in orde~ not to go back to it later, dealing

with the ground of Mrs Yeats, he lists the materials

supplied to him in the letter which follows at

page 2860 and the list appears at page 2861A,

so I do not have to go back to it, Your Honours.

Then, the affidavit of Mr Olsen which

appears at 2865, again, details what he had and

his qualifications; and the opinion which he arrives

at, at page 2871, paragraph 15:

In keeping with an objective attitude

required in all forensic examinations, I

cannot completely exclude the possibility

that there may be satisfactory explanations

for many of the questions I have herein

enumerated. I must state, however, that

based upon my studies of the materials

submitted to me, I am forced to conclude

that forensic science in general, and the

discipline of forensic latent print

identification in particular, were ill

served by the fingerprint evidence presented

in the trial of Raymond John Mickelberg.

Many of the discrepancies I have noted

give rise to serious reservations regarding

the quality of the fingerprint work performed

in this case. Of paramount significance,

however, are the indications that the latent

fingerprint used by Sgt. Henning to establish

the identity of the defendant, and which

appeared on the evidentiary cheque, was a

misrepresentation of epic proportions, to wit: that the latent print was falsified or forged, with a silicone rubber cast

made from a mold of the right index finger

of Raymond John Mickelberg.

This witness attended, Your Honours, and gave evidence

at the trial. At the appeal.he was shown a copy of

a 60 Minutes' programme where he had repeated those

comments and he, thereafter, apologized for the
comments that he had made which is why I say that

the credit of witnesses was under attack as well

as their expertise and the affidavit which he has sworn on 12 January appears thereafter at

page 2877. What he says, and His Honour

Mr Justice Wallace summarized this at page 2878:

(a) The better quality material supplied

to me by Mrs Mary Ann Yeats completely
negates the possibility that the latent

print was made by any of the casts or

moulds of Raymond Mickelberg's right index

finger that I have examined.

C2T46/l/SH	280	MR McKECHNIE, QC	23/11/88
Mickel berg

(b) I now find nothing that I can accept as proof of a forgery and if called upon

to testify in a Court right now I would

have to say that it is a legitimate print

because there is nothing to substantiate

a forgery.

You see, in the end, Your Honours, he is perhaps not

putting presumptions or anything, it is his manner
of expression, the fact that it is a legitimate

print.

BRENNAN J:  Is there any description of what the materials

supplied by Mrs Yeats is?

MR McKEeHNIE:  There is a description, Your Honour, in relation

to Mr Bonebrake, at 2861A.

BRENNAN J:  I was concerned mainly with regard to Mr Olsen

and on what it was that he based his conclusion

at the top of page 2878.

MR McKECHNIE:  Yes, and it may be in the evidence as well,

Your Honour, and we will have a look quite what

it was but, as appeared in the trial, in the course

of the trial as it was understood that the Crown

provided to Mr Wallwork in 1985 a list and a

copy of everything that was proposed to be shown

to various people. He appeared in the trial because

Mr Searle had been unaware of that list.

It is perhaps of more relevance too, when we

come to deal with the question relating to Mrs Yeats.

One of the points that each of the -.and Olsen makes

in his original affidavit and they all do, is that

they had poor quality photographic impressions

which I understand were photographs of exhibit 74.

(Continued on page 282)

C2T46/2/SH	281	MR McKECHNIE, QC	23/11/88
Mickel berg

MR McKECHNIE (continuing):  And so they were working from

photographs that were three or four generations

old and, as can be seen, particularly in the

exhibit 211 which I showed Your Honours this

morning - for instance, with Mr Bonebrake, he was

working from a first generation positive of one

of the Kobus negatives of exhibit 15.

BRENNAN J: If you are able to provide material which led

Mr Olsen to the expression of that view at the top of 2878, it may be helpful to be able to

identify it by reference to exhibit numbers in

the trial.

MR McKECHNIE:  Yes. I will leave that, Your Honour, and

look for the answer to that question. This is

really my submission in relation to paragraph 11

and, as I say, there really is no easy way of doing this, Your Honours, and I think it would be tedious
and, in the end, a waste to take Your Honours all

through the cross-examinations of the witnesses

referring in detail to the various parts where

their evidence and their expertise were challenged.

At one point, for instance, it was announced

by counsel to the court that the current view of

the expert's analysis was that it may be that

Peter Mickelberg's fingerprint had been lifted

on to the front of the cheque. That was examined

and it was found not to be. The print that they

were looking at was, in fact, part of the materials

already supplied in Mr Neville's affidavit where

he had deposed that it was Mr Hunt's but that was -

Mr King was one of the current experts.

There are matters throughout. Mr King produced

photographs which he said were of fluorescing prints

which were, in fact - what he had done was taken

a pr i n t and rev e r s e d i t s o th a t i t had w.h i t e do t s ,

the same as the enhanced photographs of Dr Kobus,

entirely misunderstanding that Dr Kobus' white

dots were caused by fluorescence and his were a

photographic inversion. But, as I say, I think,

little point in going through because our primary

submission is the Court of Criminal Appeal heard

this evidence, at depth, at length, and made their

decision on it.

The only other matter which might bear on

the subject, Your Honours, if I could have exhibit 255

which is a letter, this was a letter which was

tendered through Mr Warboys from Mr Searle, dated

11 February 1985, and there was a letter from the

Solicitor-General for Western Australia to

Mr Warboys asking him to examine the matters and

pointing out what would be presented to him. It

is not, unfortunately, in the papers but it is

C2T47/l/ND	282	MR McKECHNIE, QC 23/11/88
Mickel berg

a letter which might usefully be contrasted with

exhibit 217 as to the manner in which matters were

put to witnesses. Because it is not in the papers,

and I only realized it was not in the papers, I

have no copy of it, Your Honours.

Could I move, Your Honours, to deal with

page 3 of my outline. now, and the question of

the availability of comparison prints. This was

a matter which Mr Wallwork raised and the ground

of appeal which is set out in volume XIII at

page 3174 depends on assertions of fact which are

contrary to the evidence and contrary to the findings

of the court. Let me explain what is said about

it, Your Honours, as this: it is said that

further evidence of the fact that the police

did not have the print on the back of the cheque

was the fact that they had Raymond Mickelberg's
fingerprints on file since 1976 and that his

fingerprints were known to have been on file by

the relevant authorities and not only on file in

Western Australia but on file in the Central

Fingerprint Bureau and that it was evidence that

if this was so, why did they not, on a crime of
this magnitude, send across for that fiingerprint

to be searched.

(Continuing on page 284)

C2T47/2/ND	283	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE·(continuing): So, the ground says that

but the evidence is to the contrary. The evidence

is - and I will take Your Honours to it and

then to the findings - but the evidence in brief

is this: back in 1976, Raymond Mickelberg was

arrested and fingerprinted for a charge which

has no relevance to these matters. It was a

minor charge but it was under the CRIMES ACT

and he was fingerprinted by the Commonwealth

Police, as they then were, in Western Australia.

A copy of the prints were forwarded to the West

Australian police, as is the custom, and following dismissal of the charge he approached the West

Australian police and asked for his prints to

be destroyed. They had one copy of his prints

which had been given to them and they destroyed them and the docket and the fingerprint register were so marked that the prints were destroyed.

Therefore, there was nothing in Western

Australia, if the print itself was of sufficient

quality, to have enabled a search to go searching

for. A search would not have disclosed prints.

The evidence, to which I will take Your Honours

to, is that the fingerprint bureau does not

work on the basis of people sending over single

prints in order to track down or eliminate prints

especially when it is a poor print and there

is no, indeed, easy manner of telling - other

than a guess - which finger it might come from.

I take Your Honours to the evidence:

first at the appeal - of course, none of this

was raised at trial - that is incorrect. At

trial Raymond Mickelberg asserted that the police

had taken his prints - had his prints on file -

and that was the passage which I· have referred

Your Honours in the charge to the jury where

His Honour the trial judge dealt with. But,

at appeal, if I can go firstly to volume VI,

Sergeant Henning, on examination from my learned

friend, Mr Wallwork, commencing at page 1479,
was examined about this subject.	I say "examined"

in a somewhat sardonic manner because there

was really no impediment placed on the appellants

as to who they would call or, indeed, how they

would cross-examine them or examine their witnesses;
no application was ever made to declare a witness

hostile and no point is made of it but he says,

at line B:

I put it to you that in 1976 he had been

fingerprinted by the West Australian

police. Are you aware of that?---Again,

I say I don't know wh2ther it was the

West Australian police or some other agency

that actually fingerprinted him.

C2T48/l/SDL	284	MR McKECHNIE, QC	23/11/88
Mickelberg

Were you ever asked whether Raymond

Mickelberg's fingerprints were on file

in Western Australia in June and July

of 1982?---No; I know they weren't.

You know they weren't?---Yes.

Well, what then would you do with the

fingerprints of - - were Peter's

fingerprints on file?---1 don't think

so.

And Brian's?---1 don't know.

With an offender such as that where you

didn't have their fingerprints on file,

would you put them in the fingerprint

record, in the register?---Initially they
would have gone in the register in 1976.

When you fingerprinted the three brothers

on 18th July or 15th July 1982 -

and I. put -

Again,that is an assertion of fact - I apologize for my earlier comments - this was

Mr Searle not Mr Wallwork, who was examining.

If a person, a potential offender, is

fingerprinted and his prints are not on

file, which record would you put them

in; which register ..... The blue one .....

The new offenders' register -

and we will come to that. Brian Mickelberg

is then dealt with and then, at the bottom,

line D:

When Raymond Mickelberg was fingerprinted

on 16th July, 1982, and you didn't have

his fingerprints on file, where did his

record go?---They would have gone in the
repeat offenders' book.

What is the purpose of the repeat offenders'

book?---It is recorded - - to record

fingerprints of persons who have had

a docket number previously allocated to
them.

By '·'docket number" you mean -?----A file

number.
A file number?---Yes.

C2T48/2/SDL 285 MR McKECHNIE, QC 23/11/88

Mickelberg (Continued on page 285A)

Does it indicate that his fingerprints are already on file?---Not necessarily.

What does it indicate, then?---In the normal course of events, it would indicate

that his fingerprints were on file, but

for any reason that his fingerprints had

previously been destroyed, he would still

go in the repeat offenders' book because

he had a docket number allocated previously.

(Continued on page 286)

C2T48/3/SDL	285A	MR McKECHNIE, QC	23/11/88
Mickelberg
MR McKECHNIE (continuing):

If one of the investigating officers said in July of 1982, "I think that Raymond

Mickelberg might be a suspect", what would

you do in terms of trying to find his

fingerprints?---Well, I would look in
his docket and in the - - to find out his

fingerprint classification, and if they are

not recorded, I would inform the officer of

that event.

On this occasion Raymond Mickelberg was

recorded in a new offenders' book. Are

you aware of that?---If that is the

1976 book, yes.

And then it goes on about the book, and about

destroying the fingerprints at page 1481. At

page 1482, he says, at line D:

Where would they be recorded?---They'd be

recorded on the inside of his docket cover.

The docket is then called for by Mr Searle and the

docket came into evidence in due course. He is

told that the docket number was opened up, that

he never fingerprinted him and that the entry on the

of the docket, Your Honours, to tell you. His	docket number - I am just waiting for the number
fingerprints - at page 1484, at about line B:

I am asking you about which entry was
made in 1976 when Raymond Mickelberg

was fingerprinted?---Yes. "Fingerprints

destroyed by request, 11.6.1976", and it

is signed by myself.

This indeed is the - the docket was eventually

put in, Your Honours. It is exhlLb.it 171,
put in by Mr Searle and identified by Henning,

which is in the criminal record docket and

by request, 11.6.1976", signed Henning. That	on the inside it says, "Fingerprint destroyed
was the docket that the witness was referring
to.

Exhibit 174, if I can have that - there

is a photocopy of it, Your Honour, in volume XII

at page 2826. It is a large book. Your Honours,

while the book is being found, the entry, which

is significant, is to be found at page 2826 of

volume XII. It is the third last entry in the

second column at page 2826, and you will note

"F/prints destroyed" is just written in the

register. The prints themselves that were
referred to are at 2824, two pages before. The

only significance I draw from that is they are

clearly marked "Commonwealth Police".

C2T48/l/JM	286	MR McKECHNIE, QC 23/11/88
Mickel berg

BRENNAN J: What is the "B" that is marked on B?

MR McKECHNIE:  The "B",·Your Honour, refers in fact

to the - I advised Your Honour of the subpoenas

this morning and the lengthy documents. That

is all that that relates to.

BRENNAN J:	I see.
MR McKECHNIE:	I cannot find the reference to which

I was going to take Your Honours to Neville,

Your Honour, but in volume VII - could I take Your Honours to volume VII? In an effort to make good this ground of the appeal, the

applicant Raymond Mickelberg called two

witnesses. One was Mr Herold who was of

the federal police fingerprint archives

and the other was Mr Stone of the Australian

bureau.

(Continued on page 288)

C2T48/2/JM	287	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  Mr Herold gave evidence of those

prints which I have just shown you when they were

first received at page 1622, volume VII, the last

sentence dealing with those prints:

Where did they come from?---They would

have come Perth headquarters, which

would have been the Commonwealth police

headquarters in Perth - - -

and, page 1623:

they were in Canberra on 15th June 76 - and held ever since:

And do the Western Australian Police Force

in fact have access to the fingerprint records you hold in the Federal Police

Institution in Canberra?---They could make

application if they so desired.

He then goes on to say that he probably would have

provided them. Then at line C:

I think that on 22nd June 1976 your office

in Canberra sent a copy of those fingerprints

to the Central Fingerprint Bureau in Sydney,

New South Wales, did you not?---That's right.

Actually, my bureau held two copies of these

fingerprints ..... one of which we retained

and one of which records show that was

on-forwarded to the Central Fingerprint

Bureau.

Then at page 1624 he describes how one registers

interest. You send fingerprints once - he says

at line C:

You only have to send them once ..... You

register your interest at the central

bureau -

then at page 1625 - - -

DEANE J:  Mr McKechnie, can I just ask you - perhaps I should

not be asking you - but where does all this lead.
On the question whether they had the prints before

15 July the important thing is whether they did

anything to identify them by checking with sources

that might be able to identify them. What does it

matter on that question whether if they had done the

checking they would have found that the place where

they checked had Raymond Mickelberg's prints?

C2T50/l/HS	288	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McKECHNIE: 

Your Honour, I am really attempting to deal with

the ground of appeal which is said to involve special
leave.

DEANE J: Yes, I follow that, but I am just wondering whether I

am missing something?

MR McKECHNIE: It is a two part answer.

DEANE J:  Why does the Crown say, tpat having identified

the strange print,no effort was made by the police to

check it with central sources, if in fact no effort

was made and, second, to identify my problem, how

does it help on that question to know whether somebody

did in fact have Mickelberg's prints when it is not

suggested that any attempt was made to check out the

strange print?

MR McKECHNIE:  I take Your Honour's point; it was probably

my fault, I was taking Your Honour through to give you

the, as it were, complete picture of the witness in

relation to whether they had them, but very shortly

the position is this. The evidence disclosed that as

far as the Western Australian police was concerned,

they did not have the prints on file and there is no
immediate reason to suppose, from their documentatior.s,

that:""they were on file in Canberra, although in.

fact cney were. Your Honour will appreciate that 1

am also meeting; a case here;. the evidence also is about to
disclose that the,,print itself was so unsatisfactory

as to have precluded a search or inquiry at the

fingerprint bureau.

DEANE J:  I follow that. So the point is that whereas the

print could not base any search at all,if they had

known that a suspec~s print was available it would have

been useful for comparison purposes? Is that what the

point is?

MR McKECHNIE: It is a two page point. Perhaps I should take

Your Honour to the ground of appeal which I am

attempting to meet in volume XIII. The ground of

appeal is set_?ut,I think, at page 3174 to 3177.

DEANE J:  Now I think you have probably answered me by saying

that the identified strange print was not good enough

to enable a search to be done on it. I had not

appreciated~ that was the evidence.

(Continued on page 290)

C2T51/l/SR	289	MR McKECHNIE, QC 23/11/88
Mickelberg

MR McKECHNIE:  That is the evidence I am coming to in this

witness and the next but Your Honour asks what

the point of it is and, at page 3176, the ground (f)

which I am meeting is:

The evidence before the Court of Criminal

Appeal established that the police officers

in Western Australia had access to the

fingerprints of Raymond John Mickelberg

through the Central Fingerprint Bureau .....

or alternatively from the Australian Federal

Police in Canberra and that they could have

compared Raymond Mickelberg's fingerprints

with the ..... W.A.B.S. cheque.

That is the first aspect of the case I am meeting

which Your Honour, I think, has had difficulty with.

Then, the second aspect of the case goes on to say,

at page 3177:

The evidence before the Court of Criminal

Appeal established that the police officers

in Western Australia made no enquiries .... .

as to whether there were fingerprints .... .

on file ...... Contrary to normal procedures -

It goes on about filing:

The police had a file docket for Raymond

Mickelberg from which the police should

have been aware that Raymond's fingerprints

were on file with the Australian Federal

Police and the Central Fingerprint Bureau.

All I am doing, Your Honour, is saying, in effect,

as I do in paragraph 12, that that assertion in the

ground of appeal is contrary to the fact and that

the findings of Their Honours on the point is right.

I am doing no more than that but I see it as a matter

I have to meet, that is all.

BRENNAN J: In what respect is it wrong?
MR McKECHNIE:	It is wrong, Your Honour, first of all that they

had access to the fingerprint of Raymond John Mickelberg.

BRENNAN J:	I suppose that depends on what one means by access.
MR McKECHNIE:	Yes.
BRENNAN J:	They could have applied for it and they could have

got it.

MR McKECHNIE: Well, it presupposes as - they could have applied

for it back on 24 June. Their records, the

West Australian police records - I will say one

step further:  on 24 June they had an unidentified

C2T52/l/SH 290 MR McKECHNIE, QC 23/11/88

Mickel berg (Continued on page 290A)

print which might or might not have been of the

right index finger.

BRENNAN J: Yes, I appreciate that.

MR McKECHNIE:	They could have searched all their records to find out whether they had somebody of that
print on file even though, as the evidence of Henning was, it did not have sufficient points
of identity.  They could never have, therefore,
gone through it. Having done that, they would
not, in their own bureau, have come across
Raymond John Mickelberg's prints. They could not
have searched them.  Tfiey were not there. The
only notation in their records were that the
prints had been destroyed in 1976.

C2T52/2/SH	290A	MR McKECHNIE, QC	23/11/88
Mickel berg

MR McKECHNIE (continuing):  They could have, I suppose,

then thought maybe it is on file somewhere else

and go .to look but it would not be a question of

looking for Raymond John Mickelberg's prints on

24 June, they could not have done that. All they

could have done was to have sent across a copy

of the latent frrint and said, "Have you got this

print on file?'.

BRENNAN J: Why could not they have sent across: "Please

send us a copy of Raymond John Mickelberg's prints?"

MR McKECHNIE:  Because until 15 July, Your Honour, there

was no reason to look at Raymond John Mickelberg's

prints. They had an unidentified mark. The evidence

BRENNAN J: Until suspicion lit on Mickelberg.

MR McKECHNIE:  Until suspicion lit on Mickelbergs. And

suspicition lit on Mickelbergs, Your Honour, and

the evidence - seeing Your Honour has· taken me,

and I will not digress long from the submission

I promise, Your Honours, to volume XII at page 2931.

This was the evidence at appeal as to when the

Mickelbergs first came under suspicion and it is

to be read in association with exhibit 286 which

has not been copied, but exhibit 286 and exhibits

which appear at 2931 in volume XII are part of

the running sheet or serial~ the police giving

evidence that in an inquiry such as this there

are all sorts of leads - they go out and find

things and the nature. Exhibit 286 which I will

read to Your Honours because it is not in the appeal

books is a serial number 222 in relation to the

cheques, and it says:

The account number ..... was opened on

10.3.76 by a person giving the name Peter Gulley

of 144 Barker Road, Subiaco, a fisherman.

The account has always had only a nominal

credit and was last operated on the 27 May 1982

with a $20 withdrawal. Inquiries at

144 Barker Road, Subiaco reveal name, vacant

block, house demolished some time ago. SEC

advise occupant 1976 was a P. Makjelberg who
vacated there November 1979 giving forwarding
address 42 Hammersley Street, North Beach.

That is dated 7 July and then there was an inquiry

on the computer:

probably identical to Peter Mickelberg -

and gives date of birth and the like -

C2T53/l/AC	291	MR McKENCHIE, QC 23/11/88
Mickel berg

process worker, probably involved in

fishing industry as the person Peter Gulley

gave occupation as fisherman on PBS opening

account. Meckelberg traced to unit 7,

112 Rupert Street Subiaco.	SEC check still
shows current address.

Now, on the:evidence of the police that was the

account of Raymond Mickelberg, to which he pleaded

first occasion when the name "Meckelberg" surfaced.

guilty to using that aud that was not an issue

in the trial. And then the document which I referred

you to within the books at 2931 and Your Honours

will see that it is a document where the police

are still looking at all sorts of people. There

are other people mentioned above it and then -

the heading 645:

D/S Round & others to 7-122 Rupert St Subiaco

re Peter MECKELBERG believed identical to Peter GULLEY. No person/vehicles present.

Inquiries with neighbours suggest MECKELBERG

absent from unit at least for past week.

To 1 leach St Marmiom, home of relatives.

Falcon & Fiat owned by him present. Unable

to ascertain if Peter MECKLEBERG present and

BCI attending to photograph occupants for

identification and comparison with identikit

of suspect. Kalbarri police checking several

local address's that area of relatives of

MECKELBERG ... later info ex Kalbarri, MECKELBERG

not in Kalbarri, inquiries continuing there

re White Falcon.

That was the first time that the name of Mickelberg

even surfaced in the inquiry.

(Continued on page 293)

C2T53/2/AC	292	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  At that stage it was

Peter Mickel berg that was being traced. The evidence

proceeded that they then found that Raymond

Mickelberg was overseas, on the 9th; subsequently,

application was made for his passport application

form and Sergeant Billing compared the handwriting

on that with the Peter Gulley account and came to

the view that he was Peter Gulley on 12 July. He
was overseas and it was on 15 July - I think a

day or two after he got back - that he was

appr~h~nded and thereafter he was certainly under

susp1c1on.

I am sorry to digress to Your Honours but

it was a point I .was going to cover a little later
anyway. And so I will take the hint, if hint

it was, and perhaps hurry with this evidence a

little of Mr Herold.	But Mr Wallwork said, at
page 1625D:

If a particular police force, in this case

the West Australian police force, wanted to

identify a fingerprint as is shown in

exhibit 7(ii) and exhibit 166, would you be

able to assist a search with only one print

like that in Canberra?---I am sorry, originally

I thought you were talking about a full set of 10 fingers on a form.

I was?---I wasn't aware that you were

referring to latent marks.

No, I was. I am not onto something different.

I am just asking you a question now. If the

West Australian Police Force discovered a

fingerprint, which appears there blown-up

in exhibit 166 - that is one finger - and

they wanted to know whose finger that was,

would your bureau in Canberra be able to

assist with that?---No, that is one finger.

There are 10 fingers to a form, you are holding

50,000 or 60,000 sets, so that is 500,000

or 600,000 fingerprints you would have to

sift through - an impossible job.

MR WALLWORK:  Do you have those catalogued

and described in any particular manner?---
Only in the 10 finger system, the normal

extension of the Henry system we use. We certainly wouldn't be able to search that

one digit through all our files; it would
be a massive task.

If you had the name Raymond John Mickelberg

given to you, would you be able to go to it
with a picture like that and see if that lined
up?---Yes.

C2T54/l /ND	293	MR McKECHNIE, QC 23/11/88
Mickel berg

So the thing you really want is the name and the print to narrow down your 50,000

pictures? That is the system, is it?---

Yes, he would have to be nominated as a suspect.
We would have to have a name and date of birth,

we would have to establish that we had his

records on record, and then - -

The name would be enough, would it?---No.

People have been known to use false names.

And then, a question:

If you had the name sent to you and a picture

like exhibit 166, you could check to see if

that was that man's print on your records?---

If it was good enough, yes.

And he describes that. That is, I think, the

significance of his evidence, in relation, as I

say, to the ground of appeal. And then the evidence

of Mr Stone, as at volume VIII, Your Honours, at

page 1823 - Herold being the man from the

Commonwealth now federal police who were, as it

were, the owners of the print. He was the man

from the Central Fingerprint Bureau.	He was asked
at 1823D:

Do you have a record as to whether the Western

Australian authorities had the fingerprints

of Raymond Mickelberg or not?---No.

Then, in cross-examination, Your Honours, at the

bottom of page 1825 - and there is not much of

this - the last sentence:

Right; and in 1982 I suppose that if somebody

had contacted your bureau from Western

Australia and said: "Look, can you send us

the - - have you got a Raxmond John Mickelberg,

date of birth X, on file?' that would be a

comparatively simple thing to search?---Yes.

MR McKECHNIE:  And you could answer them

"Yes" or "No" and they could say: "Well, send

us the prints" or not, as the case may be?---

That's correct, yes.

Or alternatively they could send you a copy of prints ..... and you would have a look and

see if you have already got them on file?---

That's correct.

Which, in this case, it appeared you did?---

We did, yes.

PIDGEON J:  Without a surname or with a surname?

C2T54/2/ND 294 MR McKECHNIE, QC 23/11/88

Mickelberg (Continuing on page 294A)

MR McKECHNIE:  Well, with a surname. They

would send a copy of the prints with the

name - the form, the fingerprint form.

WITNESS:  They sent the fingerprint form.

That is a reference to the fact that the form was sent over.

(Continuing on page 295)

C2T54/3/ND	294A	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  Then what we say is the

critical question:

Right. Now, what would be the position

if they sent you a single print and said:

"Look, we're having a bit of trouble.

Could you have a look through your system

for this print?" Is that something

that would have been feasible in 1982?---

Not feasible.

Why not?---Because the number of prints

that we had on record, multiplied by 10 -

each finger - unless the finger was

nominated and unless we had it cut up

into the singles section.

So they would need to nominate the finger?

Then he is taken to exhibit 166: Would you say that is a good quality print

in terms of identification?---No, sir.

Then the question at the bottom:

What if the West Australian Police had

sent you that print over and said:

"Would you mind making a search of that?" -

what would be your reply back?---I would

just send it back to them, sir.

Sergeant Henning's evidence at the appeal was to the

same effect, that there is a rule that you do not

send over until you search your own files first,

which sounds a sensible rule, and the reason why

you would not search is because of the poor quality

of the print.

DEANE J:	But when a Mickelberg became a suspect you would expect a fairly urgent search then, would you not,
of the unidentified print on the cheque?
MR McKECHNIE:	The most you would expect, Your Honour, is

somewhere perhaps between 9 and 15 July.

DEANE J:	Yes. You would expect something to be done.
MR McKECHNIE:	I would not go so high as to say you would

expect something to be done.

DEANE J:  Really, when there is an unidentified print on the

vital cheque and you have a suspect? You do not see

whether they have got his prints?

C2T55/l/HS	295	MR McKECHNIE, QC	23/11/88
Mickel berg

MR McK.ECHNIE:  Your Honour is putting as suspect -

as Detective Sergeant Round said, there were

hundreds of suspects.

DEANE J:  Then one would have thought they would have checked

out the best suspects.

MR McKECHNIE:  Yes, Your Honour, and the Mickelbergs, until a

shortly later stage that I will come to, were not the

best suspects. There were - - -

DEANE J:  Then one would have thought that they would have

checked out the best suspects, which meant that they

would have sent the print with the name of the best

suspects.

MR McKECHNIE:  Your Honour, the point is, first of all, that there

were hundreds of suspects, as Detective Sergeant Round

gives evidence. They were following leads, and indeed

as that running sheet that I put to you shows, the

Mickelbergs were mentioned along with other people and

other leads. There were other things being followed

and as the evidence at the appeal was given, the

Mickelbergs - certainly the police, at that stage, had

an unidentifiable print. It was not even a question of

comparing that print with anybody, that suspect or
anybody else. It was one that Henning was not satisfied

he could get twelve characteristics from, that he could

ever go to court with. What they did instead was to get

handwriting documents in an endeavour to prove

correctl½ as it turns out, by Sergeant Billing, that

Raymond Mickelberg, as it turns out - or to prove who

might be the author of the Peter Gulley account, and

that turned out to be Raymond Mickelberg.

Now, Your Honour says you would expect them to do

it, but all I can say to Your Honour is you would not

necessarily expect them to do it.	It is something
that they might - - -

DEANE J:  All I was suggesting was whether they had

Mickelberg' s prints seems to me to be a complete furphy.

The query is, assuming that they had named suspects

over a period - and we know they had Mickelberg suspects

at the 9th - why would not they have done what the

experts say, and that is check with the name of the

suspect and the print?

MR McKECHNIE:  Your Honour, they could have done that with all

of the suspects that they had.

DEANE J:	Yes, certainly with the best suspects.
MR McKECHNIE:	Well, it depends on their appreciation of the

best suspects and the time of their appreciation of

C2T55/2/HS 296 MR McKECHNIE, QC 23/11/88

Mickelberg (Continued on page 296A)

the best suspects. By 12 July they had become

aware - certainly by the 15th - they had become
aware that the Mickelbergs were worth speaking to.

They had become aware on 15 July and on 15 July

they obtained his fingerprints. Then they had

something to make a comparison with.

They might have sent off for it earlier,

Your Honour, but in our respectful submission very

strongly it is not for the Court to draw a conclusion

adverse to the police or in favour of a forgery, or

anything else, by the fact that they chose to wait

until they got a full set of fingerprints from him

and thereafter moved.

(Continued on page 297)

C2T55/3/HS 296A MR McKECHNIE, QC 23/11/88

Mickelberg	(Continued on page 297)
DEANE J:	But it is part of a very strange context where the

fingerprint is said to have been treated and to be in

possession 22 June and from there until 15 July no

photograph was taken of it and not only that no step

is t-A.ken to identify it with any of the suspects - and
we are told apparently there were many - in a context
where the evidence is that once you had the name of
the suspect and the print that could have been a very,

very fruitful and obvious procedure. Now, I am not saying that you build anything on that, I am simply saying that you need to face up to the fact that it is

a very important part of the context?

MR McKECHNIE:  Might I, with great respect, disagree with

Your Honour that it is a very important part of the

context. If you had a clear, identifiable print that

was only waiting to be traced, if you had a print
which you could look at and say, there are 16, 17

characteristics on that, whose print is it, you would

proceed, no doubt.as crimes proceed every day or

investigations proceed every day.	What you had here
was a print that was of very poor quality.	It was not
up to court quality.	The best you could do at the time

was 6 or 7 points of characteristics. This was an

ongoing very busy inquiry as the evidence was led

involving officers going everywhere interviewing a lot of

suspects and Your Honour presupposes that these were

the best suspects or better suspects, of course - - -

DEANE J:  I think it gets more difficult when you assume that

they were not the best, that there were better suspects,

because we know what happened the moment they became

a clear suspect. They got his prints and they took

immediate steps to do comparisons?

MR McKECHNIE:  They took his prints, yes. They took his

prints, indeed. But until they had identified him as

Peter Gulley, until they had spoken with him, I

strongly dispute that he was either a good or bad

suspect. Your Honour, with the suspects that they had

they would have swamped any erea with requests

for fingerprints. And as Sergeant Henning said

you do not send away until you have searched your own

records and,he was not prepared to search on the

quality print that he had.

(Continued on page 298)

C2T56/l/SR	297	MR McKECHNIE, QC 23/11/88
Mickel berg

DEANE J:	The query would be whether he was prepared, in the
case of a particular suspect, to find whether
his prints were available and to make a comparison.
If he had done that, there would surely have been some record?

MR McKECHNIE: It is not suggested that he ever did.

It was a decision made at the time.

DEANE J: All I am putting to you, and I do not want to

take time, is that it seems to me in a context

of many suspects that nobody thought it was

worth the trouble to check the prints of any

one of those suspects with the unidentified

print up until 15 July.

MR McKECHNIE:	Your Honour, the Court of Criminal Appeal looked at this question, of course. It was
a live issue before them and they found, with
great respect, to the contrary.
The passages - and I wi 11 not read them to Your Honours because I know Your Honours
have read the judgments - appear as I have outlined
in the outline.  Mr Justice Wallace deals with
the point at pages 3031 to 3032, particularly
page 3032 - - -
DEANE J:	Mr McKechnie, I have delayed you too much; do not let me divert you further.
MR McKECHNIE:	I will not quote them, anyway, Your Honour.

The references are there to the passages where

we say this was in issue before the Court of Criminal Appeal; the court had available to the evidence - they had what Your Honour has been putting to me was put to them and they

came to a view which they have expressed. We

would simply say that and we would say-, '·'Well,

it was a view open to them"; it is not a

matter, we would say, of special leave. Can I move on to exhibit 21, Your Honours,

which is paragraph 13. Can I deal with exhibit 21

twice: the first to deal with it in respect

of Raymond Mickelberg's submissions and later

to deal with it in respect of Peter Mickelberg's

submissions.

(Continued on page 299)

C2T57/l/SDL	298	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McKECHNIE (continuing):  The evidence of Mr Pierce

and Mr Henry at the trial both appear at

volume I of the appeal books, Your Honours,

in the passages that I have said.

The evidence at trial was confused as

to who had prepared exhibit 21. The Allens

had asserted that they had prepared - if I

could have exhibit 21. Exhibit 21 is

in two parts and the Allens had asserted

that they had prepared the lower part, that
of the full face and Mr Henry had asserted

at the appeal that he had prepared the lower

part, the full face - at the trial, rather.

Mr Pierce had said that the Allens were able to

complete a full facial feature of the young

man but described the hair and glasses which

he prepared at that stage. Later, when he had

the sketch made by Mr Henry, he put them

together. I will come to what happened with them.

Much of the ground of appeal - al though

Mr Wallwork did not really develop the argument on this; he adopted Mr McCusker's submissions,

I think, in advance, on everything - presupposes

that this evidence was not available to the jury

and first known to the Court of Criminal Appeal,

but that is not so. The evidence of Mr Pierce

at 81 and 83 shows that even at the trial this

confusion was there, particular at page 83.

I think Mr Mccusker read to you page 81, but

page 83, in cross-examination by Mr Singleton,

discussing the Allens:

From about 7 p.m. to about 9.30 or 10.00

on that Friday evening we spoke about the

appearance of a person and I used a

pen rephotofit facility in order to
preliminarily describe the features they

were describing and then a drawing was

subsequently prepared of hair and spectacles.

The face was not - -?---We endeavoured to

draw the face for the majority of that time.

However, it was not successful.

What were you drawing - the spectacles and

the hair?---I was endeavouring to draw the

whole thing.

I realise that, but you ended up with

spectacles and hair?---And hair and various

attempts at drawing facial features. However,

they were not successful.

Then he proceeds to mention it as a photo, but

he is referring to the overlays having been prepared

by them, at page 84. At page 85 he speaks of

interviewing Mr Henry:

C2T58/1/JM	299	MR McKECHNIE, QC 23/11/88
Mickel berg

did you produce a sketch?---I did.

The ground assumes that the evidence at the Court of Criminal Appeal was not available to

the jury and we would say that it was.	I will
deal later upon which the direction was.	But

the conflict was not only before the jury, but

was used to some considerable effect by

counsel for Peter Mickelberg in cross-examination,
because the likeness did not exhibit likeness as

to Peter Mickelberg.

(Continued on page 301)

C2T58 /2. / JM	MR McKECHNIE, QC 23/11/88
Mickelberg	300

MR McK.ECHNIE (continuing): It may have been the explanation as to why that

exhibit was not objected to and that is to be found

at page 36 in. the cross-examination of Mr Henry, still

in the same volume, between lines C and D:

Would you have a look at :MFI21 again? You

have not seen the top part before today?---

No, I have not.

Then he describes the photofit and that is how you

recollect the man, referring then to the underside of

exhibit 21, the sketch,and I think the document that

was handed to Your Honours may be a photograph of

the whole thing, but the witness was referring to the

underlay which Henry had prepared. And the crunch

question, as it were, was at page 37, line D:

Would you say that was a pretty good resemblance

to the fellow you spoke to?---Yes, I would.

Then he goes on to describe it again. And at page 39

he continues the point. I do not want to read it all

but it is at page 39, but at page 41, between lines C

and D he concludes:

So, do we have this: You assisted in the

preparation of an identikit - correct?---Yes.

You were satisfied that when that was there

it was a reasonable resemblance of the person

to whom you spoke?---Yes.

Later, which came first? - the photograph or

the producing of the body for identification?---

I think I was shown this photograph after.

He went on to the photograph.	So that counsel used
the point to defence advantage.	Now perhaps I will not

deal at this stage with point 15 because it rather

develops in relation to Mr McCusker's arguments about

exhibits 23 and 78 as to _the judge's direction and the finding

of the court on it. I make the point at paragraph 16

which I will develop further as to the real significance

of exhibit 21 at the appeal. At the appeal, the
significance was, as Peter Mickelberg had it in the

grounds of appeal, that it was prepared for my passport

photograph of which the police had had as long ago
as early June, shortly after the swindle and I will
develop that when I reach his submissions.

Can I move then to what has been referred to by Mr Wallwork and who read copiously from the Hancock/

Mickelberg tape recording. Now the first point to make

about it is although it is a ground of appeal in

respect of Peter Mickelberg it was not a ground upon

which special leave was sought by Raymond Mickelberg to

appeal to this Court. I apologize, it was a ground here,

C2T59/l/SR	301	MR McKECHNIE, QC 23/11/88
Mickel berg

but it was not a ground of his in the Court of

Criminal Appeal. It certainly was a ground here. It

was not a ground which he sought to raise in the

Court of Criminal Appeal. Now, it is said, and I can
deal conveniently with both the counsels' submissions

on this, that it is fresh or new evidence, that it was

available at trial, Your Honours, and it was

cross-examined upon. And if I can take Your Honours

to the cross-examination at trial: what I do not know

was referred to Your Honours was the fact that not

only did Mr Cannon for Raymond Mickelberg cross-examine

on this tape, but Mr Singleton for Peter Mickelberg

cross-examined on the tape and if I can take

Your Honours to volume II, first of all,to pages 451

to 453.

(Continued on page 303)

C2T59/l/SR	302	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  The cross-examination by

Mr Cannon commences at line E:

Did you come back again to see him?---Yes.

Refresh your memory, by all means?---Yes,

I know in December I did.

Again was there a discussion about the

case in December?---I don't know if it

was about the case.

What did you go back there for in December?---

To return some property that had been - -

What property were you returning?---Do you

want me to read it out?

Just give us a brief idea?

He did, and then at paragraph B:

Again, did the name "De Grussa" come up at

this discussion?---Not that I can recall.

You were telling him that De Grussa was the

person who told him to get a medical certificate

that he had no injuries on him just in case he

got beaten up?---I can't recall any conversation

regarding De Grussa that day.

You have had many conversations over De Grussa,

have you not?---No, not many, at all.

Then there is further conversation and De Grussa is

mentioned at the bottom of the page, line D and then

at line E:

There is a tape recording of that discussion?

---I still can't remember any mention of him.

Could you have had a discussion about De Grussa

on that last visit?---It's possible.

No notes were taken on this occasion?---No,

this wasn't an interview.

And then there are questions about notes and then, at page 453, the trial judge intervenes:

Mr Cannon, you have mentioned a tape-recording

of the conversation with De Grussa. In the

course of your cross-examination should you

not put to the witness precisely what the

conversation was?

And then he does, at line D.	He puts the conversation
and the witness says:

C2T60/l/SH	303	MR McKECHNIE, QC	23/11/88
Mickel berg

No. I do not think that was ever said.

And he said, at line E:

There was a discussion along those lines

at some time or other but I cannot honestly

say it was then.

Then Mr Bowden cross-examined and then, at page 489,

Mr Singleton connnences cross-examination about building

fences and brings the witness to the time and connnents

and, at page 490, after cross-examining about this

event, says at line C:

If I suggest to you that it was and can

establish by tape that it was, can you not,

perhaps, remember it?---If you can establish

that then I will agree with you -

said the witness.

At page 491, he is then asked about whether he

recalled saying it and says:

It is possible I could have said it.

Is it an expression that you use?---Not

to my knowledge.

It is possible that you said it?---It is not impossible.

Also that day did Peter Mickelberg make the

connnent about getting a bashing out at the

police station?---Yes. I can remember him

mentioning getting a bashing.

And you said, "You didn't get a bashing"?

---That is right.

You went on to say, "You don't know what a

bashing is"?---I think I said, "You wouldn't

know what a bashing is" - something like that,

yes.

If I can now take Your Honours to volume X, it was

put to Your Honours by submissions by my friend,

Mr Mccusker, that Mr Cannon did not play the tape because he had come to some view about his school of

African languages, that it was not authentic and it

was also said that the Crown now concedes that the

tape played to Mr Cannon was authentic.	Two comments
need to be made about that.	As to the first, the
evidence at page 2408D:

C2T60/2/SH 304 MR McKECHNIE,QC Q 23/11/88

Mickel berg (Continued on page 304A)

I believe that somebody had concocted

the tape. The voices were genuine but

the position of the answers and the

questions, in my opinion, had been

changed. The rhythm of the tape was

such that I did not believe it was a

continuous tape of a conversation

that had taken place.

(Continued on page 305)

C2T60/3/SH 304A MR McKECHNIE, QC 23/11/88

Mickel berg

MR McKECHNIE· (continuing):

What happened to that tape?---I said I'd

certainly use the tape. At that time

there was a case of LOVE, if I remember

correctly, where an expert had been called

from WAIT to authenticate the tape as

being genuine. I told Peter Mickelberg

that I would use the tape provided that

it was taken to WAIT and I received a

certificate that the tape was a genuine

continuous tape and not a production .....

What happened to the tape -

and page 2409 -

The tape was taken awway.	I never saw
that tape again.

It is not the case that the witness - although

the witness formed a view - what he said is,
the Crown does not know whatever tape was played

in reality, quite different from the way that

to Mr Cannon. All the Crown has ever said is

that the transcript of the tape that is in Court,

as I said in the Court below, I have listened
to the actual tape and heard Detective Hancock

say that, "That is my voice". We do not know

this tape. It is not a great point but - - -

GAUDRON J:  The point arises, does it not, by reference to the next sentence:

We would cross-examine on it but I was

not going to put in that tape unless I

had a certificate of authentication.

The point is, ho~ would he have put it in anyway?

MR McKECHNIE:

as he went on, he said:	I have no idea, Your Honour, but more particularly,
The tape did not go into trial.  We
extracted the best bits that were favourable

to us. We cross-examined on them.

A tactical decision made and although Mr Cannon

has been - my learned friend, Mr Mccusker, made

a submission as to negligence against Mr Cannon,

it must not be forgotten that in his qualification

he has been practising extensively in the criminal

area for many, many years; he was the solicitor

but not the counsel for Peter Mickelberg -

Peter Mickelberg was separately represented

by independent counsel - and that, although

there were allegations made of negligence in

C2T61/l/SDL	305	MR McKECHNIE, QC	23/11/88
Mickelberg

the grounds of appeal before the Court of Criminal

Appeal, of negligence against Mr Cannon~ they

were all abandoned on the first day and, under

cross-examination, Mr Peter Mickelberg also
said that he was not accusing Mr Cannon of negligence.

Mr Mccusker has now put that as one of his submissions to Your Honour.

We do not see it, with great respect,

as a special leave point at all; it was a tactical

decision made at trial and that is the end of

it.

As to Mr Cannon's evidence, I do not believe

that Mr Wallwork really addressed on that question

and probably there is no need for me to do so.

At page 5, exhibit 73 - Mr Wallwork did not argue

about exhibit 73 and, therefore, I will not

address on it. I know that there are said to

be affidavits pending Your Honours' ruling on

fresh evidence about it but until the ruling,

I do not propose to address on it.

I now move to Peter Mickelberg's appeal,

Your Honours.

MASON CJ:  What ground was that, Mr McKechnie? I did

not quite pick that up.

MR McKECHNIE: The ground, Your Honour, is contained

in additional affidavits in relation to exhibit 73

where there is an allegation• that they are not

Dr Kobus' negatives.

MASON CJ:  So it is the last of the two matters to which

you •directed attention in your outline?

MR McKECHNIE:  The last of the two matters, yes. But

it was not argued - these, of course, were prepared

before argument - but it was not argued by

Mr Wallwork.

MASON CJ:	Yes.
MR McKECHNIE:	May I now hand to Your Honours the respondents'

summary of argument in relation to the applicant,

Peter Mickelberg. Your Honours will be relieved

to hear, of course, that I have, in large measure,

covered them.

Can I leave the questions of law until the end,

Your Honour, and all we would say about questions of

law is that. the court correctly instructed itself and

there is an oblique challenge now to the court and

the way in which it approached the evidence, but I will

say more about that later because, in our submission,

Mr Mccusker is trying, obliquely, the argument·of

counsel in GALLAGHER's case which was re)etted by

this Court.

C2T61/2/SDL	306	MR McKECHNIE, QC	23/11/88
Mickelberg

MR McKECHNIE (continuing): Can I move to what I will

describe as Cherry/Proven and that is the grounds

that relate to the rejection by the court of the

evidence of Mr Cherry and Mr Proven as

unconvincing and implausible. And to do that,

Your Honours, I now .will develop what I have said

was one of the major submissions and about which
a great deal of evidence was heard at the Court

of Criminal Appeal and that was the allegation

that in June 1982 the police had available a

p hot o graph o f Peter Mi ck e 1 berg , that the sketch 'Which

Your Honours have seen and 'Which appears in the papers -

the sketch which appeared published throughout

Western Australia was a tracing or exhibited features from a passport photograph.

This was a central issue in the Court of Criminal

Appeal. And it was one on which the applicant

wholly lost but it was an important issue because

it is not to be divorced from the allegation of

forgery. The overall allegations made by the

applicants together, but particularly the applicant

Peter Mickelberg, was that there was a conspiracy

of the greatest order by police officers, commencing

as early as shortly after the mint was swindled

and as overt acts of that,they obtained a passport

photograph, used that to sketch and trace or exhibit

features of tracing that photograph in the

newspapers.

Could I have exhibit 111, please? 111 is

an affidavit by Jean Shepherd. Can I start by

this way, Your Honours, that in 1986 there were -
and they were filed - produced a number of

affidavits and further in 1987 from witnesses who

spoke not only as to the matters which I have

briefly covered in relation to exhibit 21 of

Raymond Mickelberg's affidavit, namely, that there

w a s a con f u s i on be tween the w i t n e s s e s, bu t a 1 s o

as to tracings.

(Continuing on page 308)

C2T62/l/ND	307	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing):  The newspaper is conveniently

exhibited on an affidavit of Jean Shepherd,

which is exhibit 111. It is not in the appeal

books, Your Honours; it was put in by consent,

dated 18 December. It was in fact exhibited

itself.	The newspaper is dated 27 June 1982
and the heading reads, "Gold swindle:	Have

you seen this man? Police have a lead on

the man believed to be involved in the Perth

Mint bullion robbery. If you think you have

seen this man, or any information, please

telephone police headquarters." It is, as

Your Honours will see - I will pass it to

Your Honours - the sketch which Mr Henry had

given evidence, and gave evidence again on

appeal, that he had prepared the day before

that newspaper article had been published.

Now, what was ranged against the Crown was first of all affidavits from various people,

particularly called was Mr Proven.	Mr Proven
had been a Scottish expert in photofit.	Your

Honours will be familiar, I think, with photofit,

and indeed, Your Honours will recollect that the

evidence of Mr Pierce that he used a photofit

to preliminary describe the features, before

moving to sketching. His evidence was that he

used the photofit, which is a box containing a
very large number of features, eyes, nose, mouths,

chins, hairlines, which are slotted in together.

There is one as an exhibit. That was used, it was

said by Mr Pierce, to preliminarily describe the

features. Then he used tracing paper to trace

that and then at the witness's direction added

to the sketch. If I could have a look at exhibit 114,
it is a square box, a heavy glass container. This,

somewhat out of line, Your Honours, is a photofit: just

~arious parts which can be slotted in until the

witness describes precisely, or as best he can,
the features of the suspect offender of whatever

matter it was.

(Continued on page 309)

C2T63/l/JM	308	MR McKECHNIE, QC 23/11/88
Mickelberg

DEANE J:  I should not ask you this because it is probably

the other side but why on this approach would they

get a passport photo and say, "Trace it", why would

they not say, "Draw him"? I mean - I have just

lost what this is all about. I mean, passport photos

never look like anybody,anywa½ to start with.

MR McKECHNIE:  Not only do passport photos not look like

anybody, Your Honour, one might wonder why we would

get a photograph and having a photograph of

Peter Mickelberg you would then produce this which,

with great respect to the artist, not even his

mother would recognize and publish this in the

paper. But nevertheless, that was the allegation

and although there were witnesses called from all

over the world nobody, it seemed, until the Crown
obtained their affidavits and they were called,

bothered to ask the passport office whether, in

fact, anybody had had access to the passport

photograph of Peter Mickelberg, and they had not.

DEANE J:  Was the suggestion they were lookin~ for him and

could not find him? Why would you, 1f you wanted to

produce a drawing of somebody - - -

MR McKECHNIE:  Your Honour is ask:!ng questions rrore properly presented to

Mr McCusker~but I must deal with them because lie made them

as serious submissions and Your Honours must

understand that for over a week the evidence of

the Court of Criminal Appeal was on this issue

and it was designed to show that the police were

involved in the fabrication of evidence and more

likely, presumably, to have fabricated the fingerprints

as well. And in order to show this for ways -

Your Honours, it is a little bit like the

disappeared fingerprint that has been photographed,

why this was done. I cannot really assist

Your Honours and the Court of Criminal Appeal had

difficulty with it too.	Maybe my friend will deal
with it in reply.	But it gets worse from the

applicant's point of view, Your Honours, because

my learned friend says that the court ought to

have accepted the evidence of Cherry and Proven.

Proven, and I can take Your Honours to it - but

all I can say about this is that Proven - he had

no relevant experience at all in composite sketching.

He never saw the need to go beyond the preparation
of photofit. This was foreign to him. He did

not regard it as important or indeed as necessary.

(Continued on page 310)

C2t64/l/AC	309	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE (continuing): What he said further was that

he had exhibited to his affidavit- I will take

Your Honours,. if necessary,to it tomorrow, but I can

really deal with this easily and quickly. - exhibited

to his affidavi~ he had blown up photographs of the
passport photograph of Peter Mickelberg, while he

said the sketch has been traced from the passport

photograph, but not actually the passport photograph,

you have to reverse the passport photograph and then if you blow it up by matching the eyes then you will

find that the eyes match. Now that is what he said.

And if you move it around a bit everything else matches too if you use a big enough blow-up and you reverse

the passport photograph, all as I say, against a

background that there was a passport photograph.

His credit, as Mr Justice Wallace described, was

completely destroyed on an ancillary_ matter in relation

to the date of swearing his affidavit. His affidavit

was, in many respects, identical	to a man called
Ryan.	He denied absolutely ever reading Ryar!s or

using RyanB as a basis even though there were typographical

and other errors of description that were common to

each. And then when it was put to him, ·11·Why is it the

same", he said, "Well, Ryan might have copied mine" and

Ryan had sworn his four days earlier ~han Proven's

and that is a point that Mr Justice Wallace deals with.

The other major witness which Mr Mccusker now

relies on is Mr Cherry.	Mr Cherry was an American who
claimed to have enormous experience at sketching.	And
he disagreed with Mr Prov~n.	He said that this was not

a tracing and that you did not have to reverse the

passport photograph. But he said it exhibits features of the passport photograph - it exhibits similarities, and he came to the view that the sketch had been taken from the photograph. Unfortunately, perhaps, for the

applicant and for Mr Cherry, when counsel handed him

in court a photograph he then proceeded to show

Their Honours, for several hours, the features in that

photograph and how they compared to the sketch. He was

handed the wrong photograph and the photograph he was

handed was one that on Peter Mickelberg's evidence had

not been taken until 16 July 1982 by the police, and

they had given evidence they had taken it on that day.

Re was not handed the passport photograph at all.

Your Honours I note the time. ls it a convenient time to break?

MASON CJ: Yes, that might be a good note on which you end

your address for the day, Mr McKechnie.

BRENNAN J:  Mr McKechnie, at some stage no doubt you will address

in the course of dealing with Peter Mickelberg with the

actual links in the chain of proof of his guilt.	In
other words, assuming that he was involved with the
white car, where does that take you?

C2T65/l/SR	310	MR McKECHNIE, QC 23/11/88
Mickel berg

MR McKECHNIE:  Yes, I will deal with that in the morning,

Your Honour.

MASON CJ:  The Court will now adjourn until 10. 15 tomorrow

morning.

AT 4. 15 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 24 NOVEMBER 1988

C2T65/2/SR	3 1 1	23/11/88
Mickelberg