P. Mickelberg v The Queen; R. Mickelberg v The Queen
[1988] HCATrans 257
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 P 28 of 1987 B e t w e e n -
RAYMOND MICKELBERG
Applicant
and
THE QUEEN
Respondent
Applications for special
leave to ap.peal
MASON CJ
BRENNAN J
DEANE J
TOOHEY J
Mickelberg GAUDRON J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON WEDNESDAY, 26 OCTOBER 1988, AT 10.04 AM
(Continued from 25/10/88)
Copyright in the High Court of Australia
PlT 1/1/SDL 108 26/10/88
MASON CJ: Yes, Mr Mccusker.
MR McCUSKER: May it please Your Honours. May I take Your Honours to page 8 of the summary of further
specific questions and the question of the unsigned
confessional statements in relation to which
the Hancock tape, so-called, has a considerable
bearing contrary, in our submission, to the view taken of it by the Court of Criminal Appeal that
it was, in the end, of no relevance.
This Court has ruled recently, in fact
last month in CARR's case as Your Honours are
aware, that where the prosecution case depends, if not
either largely or entirely on unsigned confessional
statements which are uncorroborated save by other
police witnesses, then a warning ought generally
to be given in recognition of, as it was put,
the perceptible risk of fabrication of such statements ..
There is a considerable amount of material dealing
with the concern that such material may, because
of various factors, be fabricated. That concern
is not, of course, fanciful, as would be common
knowledge.
The Australian Law Reform Commission, indeed,
in its works has referred to the special dangers
posed by the admission into evidence, at least
without warning, and very careful warning, of
unsigned confessional statements. In its report - - - BRENNAN J: That has been considered by this Court, has
it not?
MR McCUSKER: I think it has, Your Honour. I will not take Your Honours to it. It was considered, in fact, in CARR's case. The trial judge, in
this case, gave no warning whatever with regard
to the unsigned confessional material which was,certainly in Peter's case, if one puts to one
side the highly suspect or dangerous identification
evidence which, in the end, in any event, leads nowhere except to a white Ford Falcon which played
no part, on the evidence, in the commission of
the offence - there was no evidence whatever
to show that the Ford Falcon did. So if we put to one side all of that, the only evidence of
any significance against Peter Mickelberg was
the unsigned or the unsigned confessional statements.
The learned trial judge's directions, which
appear at page 1162E, volume V, Your Honours,
at the foot of that page:
PITl/2/SDL 109 MR McCUSKER, QC 26/10/88 Mickelberg If you accept the police evidence as
to what happened in the course of those
interviews then that really is very strong
evidence that the accused Peter Mickelberg
was involved. You would be entitled to find, among other things, for example,
that when he saw Mr Henry on the morning
of 16th July he recognised Mr Henry as
the man who had come out to the car on
22nd June and that he broke down thinking
that he had been recognised.
I mentioned yesterday to Your Honours the fallacy
in that supposed reverse identification, the
fallacy being that Peter's own counsel was instructed
by him and on the basis of those instructions cross-examined Mr Henry, who agreed that when
Mr Henry saw Peter on the day in question, Mr Henry
said, "No, he's too tall". So that the police evidence which was given - they could not give evidence
that Mr Henry had identified Peter as the man
he had seen on 22 June because Henry's evidence
was that he could not. The police evidence, however, was this rather strange concept of reverse
identification because Peter, allegedly, had
broken down and said things which impliedly suggested
that he had recognized -or thought he had been
recognized by- Mr Henry.
One could say at once that even if that
were the truth, that he had broken down and thought
he had been recognized, there is more than one
inference that could be reasonably drawn from
that. For example, a man who was under suspicion, knows he is under suspicion for a major crime, and who is confronted on a one-man parade with
a witness who he knows is supposed to be a witness
in some way connected with the crime, may well
think that the witness gives some flicker of recognition and causes him to, indeed, panic
and worry that he is now becoming more and more suspect. So that is one possible explanation if it had occurred but, as I said to Your Honours,
an analysis of the facts makes that unlikely
in the extreme because his counsel knew in advance
and cross-examined Mr Henry, who agreed that
Henry had said, "Too tall, hair's wrong". No recognition whatsoever either then or at Court.
His Honour went on, at page 1163:
You would be entitled to find that he made
the implied admissions that I have mentioned
to Det-Sgt Hancock and Det-Sgt Round on
26th July -
PITl/3/SDL 1 10 26/10/88 Mickel berg that is what I have referred to as the "Belmont
statement" where the police had, well, picked-up -
certainly not arrested but picked-up - Peter
from a shopping centre without warning and "taken
him" - to use a neutral term - not to the nearest
or the most logical place, which was the Perth
CIB headquarters, where a special room had been
set up for this particular police investigation,
but taken him instead by a circuitous and much
longer route not to Perth central CIB but to
Belmont police station. The evidence of Peter was that when he arrived there the ordinary police
officers who were about were told to disappear.
No explanation was given for him being taken
to this somewhat remote point by the police,
in evidence, other than that Detective Sergeant
Hancock happened to be there on some other business.
Detective Sergeant Hancock was the man who was
in charge of this most important criminal investigation.
His Honour went on in his direction:
You would be entitled to find that he admitted
to the police officers on 23rd September
that he knew where the gold was.
The so-called "implied admissions", Your Honours,
which I will take Your Honours to, are not express
admissions. One may comment that,perhaps, on
the hypotheses that these admissions were not
made at all, for the police to have said that
the accused, Mickelberg, confessed that he had
been a party to the swindle and knew where the
gold was, would invite the further question:
"If he so readily confessed to that, why did
he not tell you where the gold was?"
So that the nature of the alleged admissions
is in a somewhat subtle form: they are implied rather than express. His Honour said: you would be entitled to find that he was
deeply involved in the Mint swindle -
on the basis of those matters. Then His Honour referred to the evidence of Peter Mickelberg
and, at page 1164C to D, said:
However, in respect of the police officers
I suggest that you adopt much the same
approach as I suggested should be adopted
in the case of Sgt Billing who is, of course,
a police officer.
I interpolate to say that Sergeant Billing,
Your Honours will recall, was the detective who
gave evidence regarding the rather strange Talbot
note identification. Detective Billing had put
together his selected letters of the alphabet,
PITl/4/SDL 1 1 1 26/10/88 Mickelberg put it up on the board, and in dealing with his
evidence a little earlier in his directions to the
jury, the learned trial judge had invited them
that is proper identification to have regard to whether Detective Sergeant Billing
to consider that identification evidence on the indeed,
basis of their assessment of the reliability
and honesty, et cetera, of Billing which, in
our submission, is a totally unhelpful directionto give in the case of that kind of evidence.
seemsa nice bloke. His Honour said: Think back on the police officers when
they, each of them, were in the witness
box. Think back as to each of them as a human being. What did you think of him at the time? What did you think of her?
What impression did you get as to the honesty,
the reliability and the fairness of that
particular man or woman? Did you find that that person was a person upon whom
you could rely? Did you find that what
that person said was convincing? It is
important ..... that you should not bundle
them altogether as it were and say, "That's
the evidence of the detectives." -
and more in the same vein. Not a hint there to the jury of the danger of accepting evidence
of this nature but, rather, suggesting to the
jury - implying to the jury - that provided the
witnesses appeared to be honest and decent people,
then they should, perhaps, accept that unquestioningly.
The way that the learned trial judge directed
the jury on that point, really tended to reinforce
the prosecutor's propositions which appear atpage 1100A to llOOE in the same volume when he
put to the jury, dealing with the various police
witnesses - he listed all of them:all of whom gave evidence before you - he said, and then he, in rather ironic vein,
said:
a vile, rotten, conspiracy to pervert the
course of justice -
he is inviting the jury to look at the police
evidence on the basis that either the Mickelbergs
are lying or else the police are involved, as
he put it, in "a vile, rotten conspiracy" -
PITl/5/SDL 112 26/10/88 Mickel berg to put fingerprints on to documents,
to make up confessional material, to come
forward one after another in a carefully
orchestrated, well planned, well worked
out, well documented, rotten conspiracy
to try and persuade you to convict innocent
people. The defence would say, "No, only because they thought they were guilty",
which is not quite so bad -
that is the defence proposition to the jury,
Your Honours, was the police, no doubt, had good
cause to suspect these people - and, indeed,
they did. In a number of respects these people, that is the three Mickelberg brothers, as it
were, fitted the bill ideally and, perhaps I
should mention to Your Honours the various factors
as we see it which certainly provided justification
for the police suspecting these men to the point
where they would have been remiss if they hadnot at least made an investigation of them in
a careful investion. Those factors, first and
foremost, were that Raymond Mickelberg had, in
his pseudonym, which he used, he said, to avoid
taxation - he was an abalone diver who apparently
was in receipt of fairly large income and he
was quite wrongfully seeking to avoid taxation
by the use of a false name or names. He had an account or accounts, two accounts in fact,
in the name of a Peter Gully - that was a false name that he used - and those two accounts bore
the account numbers which were the same numbers as the numbers on two of the three cheques used for the mint fraud. The police, quite rapidly, traced back, by reason of the numbers on the
cheques, which had been placed on the cheques
by the swindler - they quite easily traced back
to the building society account, Peter Gully -
those cheques were drawn on an account number
in the name of Peter Gully - and in turn, without much difficulty, managed to trace that
to the Mickelbergs because the address given by the psuedo Peter Gully was an address which the
Mickelberg family had, not so long before, lived
at.
So there was that circumstance which certainly
would have excited the justified suspicion of
the police and, in addition to that, there wereother factors which seemed to raise suspicion.
For examole, Peter Mickelberg had a flat in
Park Street, Subiaco, which was not all that
far from the scene at Barker House. The police suggested, in a kind of hearsay manner, at the
trial that that flat had not been occupied and
that it was really being used for the purpose
of planning the swindle although there was evidence
that was given before the Court of Criminal Appeal
that that was quite wrong: that the flat had
PITl/6/SDL 26/10/88 Mickelberg been quite continuously occupied; there were signs
of continuous occupation when a visit or a check
was made by the agent for the owner on, of all
days, the day of the mint swindle. The agent
had gone and visited the flat and found there
signs of recent occupation. The stove was in
need of cleaning, and so on. But that was another circumstance. The fact that Brian Mickelberg was a pilot
who flew from Jandakot was, indeed, a further
circumstance which would have, undoubtedly, excited
the suspicion of the police. Brian Mickelberg,
however, was acquitted on appeal on the basis
that there was simply insufficient evidence against
him and that is a matter I will deal with later
on the question of the application of DA.t.'WY's
case and the principles there stated.
Reverting to page 1100, Your Honours, the
learned prosecutor went on, before the jury,
in the same vein, in effect putting it to the
jury that this was a case where what was being
alleged by the accused amounted to an allegation
of a "vile, rotten conspiracy" against, as heput it at line E:
experienced police officers who after all
are ordinary family men and women, goingabout their duty -
now, that was calculated to raise the very kind
of problem which, in my respectful submission,
Your Honours addressed in CARR's case.
DEANE J: Was any direction sought in relation to these matters? MR McCUSKER. No, Your Honour, there was not. DEANE J: What you are saying now is that there should
have been a warning or are you saying the directions were - - - MR McCUSKER: I am saying, Your Honour, that there should clearly have been a warning in the light of
Your Honour's decision in CARR's case.
DEANE J: Was that raised before the Court of Criminal Appeal?
MR McCUSKER: I do not think so, Your Honour. Again, Your Honours' decision in CARR's case had not
been given and I presume that the view that was
taken was that a warning was, on the law, not
something which was mandatory. If that was a
misconceived view of the law, as, in our submission,
it clearly was, that, of course, should not be
something for which Peter Mickelberg has to bear the penalty.
PITl/7/SDL 114 26/10/88 Mickelberg
BRENNAN J: What does all this have to do with CARR's case? MR McCUSKER: The question of a warning, Your Honour? BRENNAN J:
What the Crown prosecutor said to the jury and you seem to think that because of what he said
to the jury, this is a case where it is compulsory
to give a warning?MR McCUSKER.
No, Your Honour. The point I am seeking to make, and perhaps I have over-emphasized what
the Crown prosecutor said, is that far from there being any warning in this case as to the dangers of the police confessional evidence, there was, to some degree, an emphasis on the apparent honesty
and reliability of the police both by the prosecutor
and, in turn, impliedly, by the learned trialjudge. So that there was not only no warning but, to some extent, a reassurance. BRENNAN J: What is wrong with that? If the trial judge
thinks it appropriate to make those observations,
so long as he makes it clear to the jury that
those are his observations and not binding on
the jury, is there some inbuilt unfairness there?
MR McCUSKER: Yes, Your Honour. Not so much an "inbuilt unfairness" but an inbuilt danger of a miscarriage;
a mistrial in the sense that the jury may well not appreciate - just as they are taken not to appreciate the dangers of identification evidence -
the dangers of fabricated confessional evidence,
and that is the reason, in our submission, why there should be a clear warning to the jury.
Not simply a warning that it is dangerous to
act but, indeed, something more than that. !he
precise nature, of course, as this Court has
said in CARR's case, is not something one can
lay down as a hard and fast rule but, in this
case, to take but one point, the learned trial judge ought, in our submission, to have pointed out to the jury that this was a case where the
accused, Peter Mickelberg, had been virtuallykidnapped and taken to Belmont police station; he had been held there for a considerable time
and he had in his possession a letter written
by Mr Cannon, his solicitor, in which Mr Cannon
had stated - in fact, I think, it was "To whom
it may concern" - the police called it "Cannon's
joke" - that is the way that they regarded it;
and it was a letter saying that Mr Mickelberg
had reason to fear that he might be arrested
or apprehended and he had been advised of his
rights and had stated that he did not intend
to make any statement to the police.
PITl/8/SDL 26/10/88 Mickelberg MR McCUSKER (continuing): That was given by Mr Cannon,
an experienced criminal trial lawyer, out of
the justified concern that the police may arrest
his client and verbal him. Despite the existence
of that, despite the fact that he was, as I said,
taken to a somewhat remote police station,instead of central, he was, as it were, kidnapped;
despite the fact that, according to the police,
he was co-operative for a considerable time in
making all kinds of implied admissions but made
no signed -statement, all of those things, the trial judge
should have pointed to the jury, militated . against the probability of that confession, in fact, having been made. And they are the matters which should have
been put fairly and squarely before the jury
but they were not.
BRENNAN J: What you are really saying is that to say only, "Have a look at the policeman and see whether
you think he is a decent sort of a fellow.",
is to direct them in an imbalanced fashion?
MR McCUSKER: Yes, Your Honour, and it is probably not even a helpful fashion, bearing in mind that
police witnesses - police officers generally
by the time they are of senior rank are very
experienced at giving evidence and to ask the
jury to assess the evidence by looking at the
apparent reliability of people in the witnessbox in this context is again a further danger.
DEANE J: But you cannot take it further, can you, than to say that you turn a question whether an
alleged confessional statement has been fabricated
into a question of whether the police have beenguilty of a vile, rotten conspiracy is to put the matter quite wrongly? But you have still got the problem that you are running a point on which objection was not taken at the trial and Appeal.
which was not raised in the Court of Criminal
MR McCUSKER: No, Your Honour, it was not raised with the Court of Criminal Appeal in that sense, in
terms of a direction being required, but thebroader question of the confessional evidence
was raised against, in particular, the context
of the new evidence - at least it was so argued -
that i~ the Hancock tape, because whilst the
factors that I have mentioned would, of themselves,
have called for a clear direction, if not exclusion
of that evidence, the Hancock tape and the contents
of that, had it been put before the jury in the
context of a clear warning direction, would have
made it, in our ~espectful submission, almost
PlT2/l/ND 116 26/10/88 Mickel berg overwhelmingly likely that the jury would have
rejected that confessional evidence. And to say, as the Court of Criminal Appeal did, that
it appeared in the end unlikely to affect the
result-~ that is the effect of it - and therefore
they put to one side the Hancock tape is, with
great respect to the members of the court, to
have taken, in the case of one member, a somewhat
naive view of the contents of that tape.
BRENNAN J: But the Hancock tape was available at the tr.ial and was deliberately not used by counsel for
the defence.
MR McCUSKER: Yes, by counsel for Raymond Mickelberg. BRENNAN J: What is the complaint, that if the Court of
Criminal Appeal had treated that evidence as
fresh evidence, then it may have been different?
MR McCUSKER: No, Your Honour. The Court of Criminal Appeal did not appear to reject it in terms of whether
it was properly before the court but rather to
take the view - and I will take Your Honours
to the passages - that it being before the courtnevertheless they could see no likelihood that
it would have affected the outcome of the trial, had it been before the jury.
BRENNAN J: What do you suggest we should do, treat it
as though it was properly before the court?
MR McCUSKER: Ye~, Your Honour. BRENNAN J: Why?
MR McCUSKER: For two reasons, Your Honour: the first is that the court itself seemed to treat .it as being properly before the court and the matter
was, so far as Peter Mickelberg is concerned,
whole matter, in our submission, was before the before the court by way of a petition and the court.- I realize that RATTEN's case dealt with an aspect of that - but the second reasons, perhaps more cogently, is this, that it was the evidence of Mr Cannon - I mentioned gave evidence before
the Court of Criminal Appeal for the prosecution -that he decided that the Hancock tape was a
fabrication, that it was not authentic. And it was on the basis of his decision tha~ although there was some cross-examination on some parts ?f the Hancock tape, it was not put before the
Jury. The reason for his decisio~ or his view,
was an extraordinary one, with respect to him,
because he gave evidence that at an early stage
PlT2/2/ND 117 26/10/88 Mickel berg of his career he had some training as a musician
and that he had developed an ear for cadences
and that on that basis of that early traininghe had formed an opinion that the Hancock tape
could not be genuine. He also referred to it as being "too good to be true", I think, at one
stage.
Counsel's wrong view of either the law or
misconduct in - I do not use that in a pejorative
sense but misconduct in a sense of not calling
evidence which clearly was authentic, it has
been conceded to be authentic, should not be
held in the end against the client - and I refer
t,o RE KNOWLES. I am reminded by my 1 earned friend, Mr McKechnie, in dealing with this question of
a concession that the Hancock tap~ which is before
Your Honours and which was before the Court of
Criminal Appeal, was conceded to be a genuine tape and is conceded to be a genuine tape by the Crown.
The point, I note, was never resolved as
to whether Mr Cannon, when he gave evidence before
the Court of Criminal Appeal, was talking about
that tape which one would assume he was or some
other tape. If he was talking about some other
tape, then there was no evidence given as to
just what that was but my learned friend,
Mr McKechnie, quite rightly points out that he
did not, in fact, identify the Hancock tape at the Court of Criminal Appeal as being the
one that he was talking about that he thought
was not authentic. It is hard to imagine what
other tape he would have been talking about but
that is the state of the evidence.
The matter was before the Court of Criminal
Appeal. The Hancock tape was there. It was
conceded to be authentic, although initially, in the course of the proceedings at the Court
of Criminal Appeal, Peter Mickelberg, apparently on information given by Mr Cannon,was cross-
examined as to there being a fabricated tape
which he denied and said, "The tape was genuine.",
and it was later conceded by the Crown when the
point was raised with a view to calling expert
evidence if necessary to prove the genuineness.
It was conceded by the Crown that the Hancock
tape was, indeed, genuine. Detective Sergeant Hancock
was never called to give evidence by the prosecution.
It was simply a concession which was made that
it was, indeed, genuine.
BRENNAN J: Mr McCusker, for my part, unless RE KNOWLES
or some other authority leads to the contrary
conclusion, it seems to me that it is going a
PlT2/3/ND 118 26/10/88 Mickel berg long, indeed, to ask a Court of Criminal Appeal
to act upon material which counsel for an accused
person at the trial consciously determines not
to put before the court for reasons, whateverthey might, best known to himself and perhaps
_ best kept to himself.
MR McCUSKER:
Your Honours, of course, are in no way bound by RE KNOWLES which is a decision of the Court
of Criminal Appeal in Victoria but, in that case,
in RE KNOWLES, the court there admitted as fresh
evidence evidence relating to the predisposition
of the deceased person to violence, evidence
which counsel had, at the trial itself, mistakenly
thought not to be admissible or relevant andthe court - and this was on a petition. It was referred to the Full Court by way of petition. It is in the list of authorities, Your Honours. MASON CJ: No 15.
MR McCUSKER: Thank you, Your Honour. (1984) VR 751, and I would, with respect, submit that the approach taken by the Full Court in Victoria in that case
is a proper approach to take in matters of this
kind although caution has to be exercised, obviously,
because there must be an end of litigation and
it may well be that the same approach would not
necessarily be adopted in a civil action. But Their Honours, there, considered the decision to omit, as they put it, the evidence and at
page 766, under that heading, proceeded to examine
what is described as:the nature of the defect or omission which the petitioner alleges. It is put for the
petitioner that fundamental error leading
his counsel at the trial to refrain from
calling the evidence of Swaine and Saundersamounted to a defect or omission which caused
a submission that miscarriage of justice the trial to become unfair. In considering arose through an error by counsel, it is important to bear firmly in mind the nature
of a common law trial and the function of
counsel in it.
And the court there referred to RATTEN's case.
In RV SAREK (1982) VR 971, at pp 982-3,
Mclnerney J, in a judgment in which Kaye J
agreed, said: "It is obviously dangerous
to embark on a course of determining whether
a new trial should be mounted on a basis
of inexperience or remissness or defect
of judgment or neglect of duty on the partof the legal practitioner appearing at the
trial.
PlT2/4/ND 119 26/10/88 Mickel berg But having reviewed the decisions, at line 25
of that page, Their Honours said:
Nevertheless the fundamental question must
always be whether the conviction involves
or has brought about a mis~arriage of
justice: see MARIC V R ..... per Gibbs J.
And the court there proceeded to review the evidence
and the basis on which counsel's decision was
taken and concluded that it was proper despite the fact that the evidence had not been called·
as a result of a deliberate decision by counsel,
that decision being based, as it were, on a false.
premise. n did not bar the court from hearing
the evidence.
GAUDRON J:
What do you say is the mistake that was made by the Court of Criminal Appeal in relation to
this matter you are now addressing? MR McCUSKER: In relation to this: given that the material was before the Court of Criminal Appeal,
Your Honour, in our submission, the mistake was
that on its face it simply misunderstood the
relevance of the Hancock tape. It was not a
question there of assessing anyone's credibility
or reliability, it was a fundamental misunderstanding
of the relevance of the Hancock tape and, indeed,
we would say, Your Honour, the wrong approach
was taken. The approach espoused by GALLAGHER 1 s case was not taken essentially by the court.
It really took its own view and the accused had
not the benefit of a trial by jury on this
aspect but a trial by the Court of Criminal Appeal.
The Hancock tape was clearly relevant to the questions of whether there had been, indeed,
an voluntary admission. There are passages that
my learned friend, Mr Wallwork, read yesterday
which go to that point and there are other passage
I can refer Your Honours to; for example, the reference to pressure being put on the accused,
Raymond Mickelberg, by the abduction of his
wife and children i~ the early hours of the morning -
I say abduction because it was without any warrant -
and, 'When that did not work, we had to try something
else". What can that, in the mind of a reasonable
jury, amount to but, coupled with the other evidence,
going into the odd nature of the way the confession
was allegedly obtained, amount to an admission
impliedly by the police that all else having
failed, because pressure would not work on getting
him to make a statement, they fabricated one.
It is there, implicit in what is being said.
PlT2/5/ND 120 26/10/88 Mickel berg The further fundamental mistake, in answer
to Your Honour Justice Gaudron, that the Court
of Criminal Appeal - or at least one judge took -was simply the matter of interpretation that
he looked on the words I have just referred to
as being perfectly innocent and perhaps the jury
might have taken that view that it amounted to
nothing in the end but that was a jury question.
The further fundamental mistake, if I can
add one more to it - the further problem - is that the Court of Criminal Appeal approache~
this matter without directing itself, as it should
have, as to the need in all these circumstances
for a proper caution being given to the jury,
warning them of the dangers. That did not happen.
What the Court of Criminal Appeal should have considered was: had the matter gone back for
a retrial with the Hancock tape evidence and
had the jury been properly directed as to the
dangers of admitting or acting on this kind ofevidence, unsigned confessional evidence, was
there a significant chance, taking those factors,
not just the tape in isolation, that the jury
may well have declined to believe beyond reasonable
doubt that the accused had given this alleged
tacit admission.
DEANE J: What was the function of the Court of Criminal
Appeal on the reference?
MR McCUSKER: In terms of the assessment of the evidence? DEANE J: I mean) why is it you say that it was not relevant for them to turn their mind to the ultimate question
but to say fue . trial m i s c a r r i e d be c au s e o f a g round that was not taken at the trial? MR McCUSKER: There are two problems, and one that I think Your Honour has posed to me but, putting aside
for a moment the question of the ground not being
produced at the trial, and taking it that on taken at the trial or the evidence not being the basis of a principle suggested in KNOWLES,
it was proper for the court to consider the Hancocktape. Then, if that be the case, the question is: did the court, in its consideration of this
evidence, give it sufficient weight bearing in
mind the other evidence relating to the allegedconfessions? And the court's approach to that was simply that those confessions were strong
evidence.What the court should have directed its
mind to was this: if this material which was
notriut forward at trial were-now to be uut before . ~ a jury - - -
PlT2/6/ND 121 26/10/88 Mickel berg
DEANE J: I follow you say that but why, when the defence has withheld material from going before the jury,
should not the court say, "Well, they decided
to w i th ho 1 d i t , but , none the 1 es s we w i 11 have a look at it and see what we think its weight
was." Why have they got to go through this thing. of saying, "If the defence have decided to put
· this matter before the jury instead of electing
to keep it from the jury"?
MR McCUSKER: Because, Your Honours, it was a decision not by Peter Mickelberg but by counsel for
Raymond Mickelberg.
DEANE J: You are getting us in very dangerous ground there, are you not? MR McCUSKER: Yes, Your Honour, but that is the ground that the Full Court in Victoria, in a sense,
traversed also. It is proper to consider not
simply whether the evidence was available and whether
it was a deliberate decision but whose decision
it was. And in this case, because it is a charge
of conspiracy - - -
DEANE J: What, it would hav£ been different if counsel
had said to his client, "My advice to you isthat I don't use this.", and the client had said,
"Y I II?
es, agree. .
MR McCUSKER: It may have been different, Your Honour,
yes. But in the end one must bear in mind the realities of the conduct of a criminal trial
where, __ to a large extent, the accused is in the hands of his counsel.
DEANE J: I was just taking you up on your distinction between the decision being that of counsel and
not that of the client.
MR McCUSKER: I accept Your Honour 1 s point. There is
probably not much of a distinction in real terms. But we do submit to Your Honour that if the tape
had been before the jury - I take Your Honour's
point, "Well, why wasn't it before the jury and
should the court have considered the matter?",
we say that the principles put forward in KNOWLEScase really do deal with that, if Your Honours
were inclined to adopt them. But if it had been before the jury it is impossible to say that
it would not have had a significant effect on
the result. Why it was not before the jury, we have the evidence of Mr Cannon, given at the
Court of Criminal Appeal, as to the view he took
of what may have been this tape, or some other
tape - my learned friend says that the point
was left in doubt - but there is no suggestion
that it was Peter Mickelberg's conscious decision
PlT2/7/ND 122 26/10/88 Mickel berg that this tape should not be before the jury
and of course there is nothing in the tape which
would even suggest that there was a good reason
for any of the accused wanting to keep it from
the jury. It really went to a question of
.Mr Cannon's view of its authenticity, we think, or the authenticity of some other tape, if my
learned friend would put it that way.
TOOHEY J: Mr McCusker, in relying on KNOWLES case and
answering Justice Deane in the way that you have,
are you suggesting that the Court of CriminalAppeal, in so far as it was dealing with the
reference or the petition, is in any different
position than if it had been hearing an appeal?
MR McCUSKER: I would, Your Honour, although I have some trepidation in putting that forward because - - -
TOOHEY J: Section 21(a) seems to suggest that on the hearing
of a petition in the Court of Criminal Appeal
is doing no more and no less than it would be
doing if it were entertaining an appeal.
MR McCUSKER: Ye~, the whole matter goes before the court so it 1s a question, perhaps, of an interpretation
of what is meant by those words.·
(Continuing on page 124)
PlT2/8/ND 123 26/10/88 Mickel berg
MR Mc CUSKER (continuing) : But accepting that they are limited to an ordinary Court of Criminal Appeal hearing,
I take Your Honour's point to be: should theCourt of Criminal Appeal have considered the evidence? Well, in KNOWLES' case, they certainly
did.
TOOHEY J: No, I am asking you whether the answer that you gave was in any way influenced by the fact that the
court was hearing a petition?
MR McCUSKER: In the nresent case? TOOHEY J: Yes.
MR McCUSKER: No, it is not, Your Honour. The court in KNOWLES' case was also hearing a petition so I do not think that - - -
TOOHEY J: But under like legislation, does section 21 of
the Code? ?
MR McCUSKER: Yes, there appears to have been no difference in principle. There is no provision there which
enable them, as it were, to open up the new evidence
and the basis upon which the court approached it was
simply to consider whether, although the evidence
was available and could have been called, whether
the failure to do so as a result of a conscious
but wrong decision was something which inevitably
precluded being dealt with by the Court of Criminal
Appeal. The answer was "No". It must depend, in the
end, in our subnission, on what is meant by the
requirement that the court consider whether there
has been a miscarriage of justice and miscarriage
of justice may include the failure of counsel to
call evidence which was available.
It is a view which must be - - -
DEANE J: Well, when you say, to call evidence, this would
only have been admissible in cross-examination to attack Sergeant Hancock's credibility, would it
not? How else was it admissible?
MR McCUSKER: It would have been admissible also to - well,
yes, essentially, I think, Your Honour, yes, but,
in our submission, likely to have had considerableimpact if it had been. DEANE J: Yes, I follow that.
MR McCUSKER: Yes, as my learned friend reminds me and, I think it is made clear already, it goes to an
important issue: Peter Mickelberg had said not
that 'k confession was belted out of m~~ although
he gave evidence that there was some physical
violence, but that he just did not say the things
that were alleged to have been said.
PlT3/l/SH 124 26/10/88 Mickel berg
DEANE J: Yes, that might be so, but assume Sergeant Hancock had not been called as a witness, this tape would not have been admissible, would it? MR McCUSKER: Well, if Sergeant Hancock had not been called
as a witness, then how would the confessional
evidence have got into court?
DEANE J: But we come back to what I put to you and that is
you refer to the tape as evidence.MR McCUSKER: Yes. DEANE J: All I am putting to you is that it was only
admissible as an instrument in cross-examination
which may have been rendered admissible as
evidence in the light of the answers given in
cross-examination.
MR McCUSKER:: I do not necessarily concede that, Your Honour.
I would have thought that it may be admissible in
any event in the course of the evidence of
Mr Peter Mickelberg if he were, himself, to be
cross-examined as to the denial by him that there
was any such statement, as alleged, but that is
perhaps investigating a fairly complex area of
evidence but my submission would be that it would
not be confined necessarily to a cross-examination
and introduction through that means of Detective
Sergeant Hancock.
Now, there is a further - it is not merely,
Your Honour, the talk by Hancock which, by
implication, at least, suggests that there may have
been a fabrication of the confessional evidence.
I would not put it any higher than that but there
is also, on the tape, material which goes directly
to some important matters which Hancock, on the
tape, agrees had been discussed but which, in
evidence, he denied and in evidence regarding the confessional statements, it was said that what was given in evidence was the complete
record of what had been said by Peter.
The point I am making, perhaps slightly
ineptly there, Your Honours, is that Peter said
that he had been warned by a police constable,
De Gross~ that he might be bashed by the CIB 1 that
he, therefore, with his brothers, had gone to get
medical certificates; that he had said at the
Belmont Police Station - he had spoken at some
length about that to Ietective S:rgeant Hancock -
h3 had said, "We've got medical certificates and",
in effect, "so if you bash me I'll have evidence
that I was in good health before" and that there
was some discussion at the police station as to
PlT3/2/SH 125 26/10/88 Mickel berg who had alerted him to the possible bashing
and De G:t:ussa 's name was mentioned. All this
was Peter Mickelberg's evidence, and that
things had been said by Hancock at the police
station to the effect that he was not happy
with De Grussa having done that and so on.
Now, all of this was denied except there
was some admission that there had been mention
of there being a medical certificatebut the
rest of it is quite an extensive discussion about
De Grussa and medical certificates and so forth was effectively denied when the police gave
their evidence of the alleged confessional
statements but, on the tape, it is quite clear
from the tape that such a discussion must have
taken place because there is considerable talk
about those facts.
If I could take Your Honours to page 372 of
volume II of the application book - could I hand
up to Your Honours an index to application books
that we have had prepared which simply gives the
volume and the page numbers.· lt:. page 372, just above line C, Hanc.ock gives his evidence and he
says:
I introduced myself and Sgt Lewandowski to
Peter because I hadn't met him. I said,"Peter, I want to ask you some questions about the gold fraud on the Perth Mint." He said to me, "You'd better read this first.
Cannon said you would call it 'Cannon's joke'."
He handed me a letter. He then said to me, "We've all been medically examined, too."
I said, "Why?" He said, "We've been
told that we'll all get a hiding."
I said to him, "You've been watching
too much TV, Peter."
and so forth. Now, to that point, that Peter
says, "Well, there was a discussion about who
warned us. There was a discussion when Hancock
was clearly upset about the fact that Constable
De Grussa had given the warning" and so on but none of that appears there. Then we go through
to page 373 to deal with the content of the the evidence of - I will just take Your Honours
alleged admissions and it goes to the so-called
identification evidence, Mr Davies, the nrosecutor
said: - Would you look at exhibit 78, please?
That is just below line B.
PlT3/3/SH 126 26/10/88 Mickel berg See if you can find on there a copy of the same photograph you say you showed
to him?---Yes. The photograph on the
left-hand side there ..... .
That's the one without any hair added?---
That' s right. He said "Where did you get that?" .....
I said to him "The couple who sold the
car say that the young man who bought
it was wearing a wig and dark-rimmed
glasses. Our police artist has superimposed a similar wig and glasses
on your photograph - - and the couple now
say that you are the person who purchased
the car."
Quite false, of course. The couple never did say
that.
He said, "Can I have a look at the photo
with the wig and glasses on?" I showed
him then the other photograph, or one of
the other photographs that are on thatboard, the one with the wig and glasses.
At line B:
He looked at it and didn't say anything and
I said, "What do you say about that?" He said,
"It still doesn't prove that it was me." I
then showed him -
the Talbot note -
I said, "The young man who bought the car -
that is at line C:
wrote this note and gave it to the couple in Arrnadale and police handwriting experts say it is your handwriting." He said, "So what if I bought the car?" I said, "Did you buy the car?" He said, "I can't say."
All that is taken as confessional material:
"Why? It was obviously you?" He said,
"I know, but we made an agreement that we
wouldn't say anything."
I said, "I'm not concerned with that. I am trying to establish to what extent you are involved in this business." He said, "I
can't tell you. I would like to but I can't."
PlT3/4/SH 127 26/10/88 Mickel berg
And then, at line E - I will take it -
"On the morning that the gold was obtained
from the Mint, that car was parked at the
back of Barker House from about quarter past
eight till about half past ten. A man from a nearby business actually spoke to the
driver as he was leaving and I have reason
to suspect that that driver was you." He
said, "I know him. You took me up there last time. Did he recognise me or not?". I said, "When he saw your photo with a wig
on he recognised you." He said, "I thought
SO, II
That goes back, of course, to the exhibit 78 and
exhibit 23 and all of that went before the jury.
DEANE J: But without objection? MR McCUSKER: Yes, Your Honour, without objection. DEANE J: I mean, if, for example, you look at page 375,
the first two paragraphs on that page are plainlyinadmissible. MR McCUSKER: Yes. DEANE J: But there is no objection to them so - - - MR McCUSKER: No, there was not.
DEANE J: No. What is the Court of Criminal Appeal expected to do about it -
MR McCUSKER: Well, Your Honour, the fact that there has
been - - -
DEANE J: - let alone this Court? MR McCUSKER: Well, taking the Court of Criminal Appeal's
function, Your Honour, looking at the entire conduct of the trial and looking at the evidence that was
then before it, it ought to, in my submission,
have said, looking at the prospect of a new trial
and the possible effect on a jury if properly
directed - ought to have said evidence of this
nature should never go in. It would not go in
at a trial properly conducted and if there were
such a trial with this further evidence, then
there is a significant prospect, particularly
having regard to this further evidence, that the
jury's decision would have been .1different. What
the Court of Criminal Appeal, in fact, did, was
to say, without any criticism, uncritically
considering the confessional evidence and itmust be taken it looked at all of it, all of
PlT3/5/SH 128 26/10/88 Mickel berg that is very strong evidence against the accused
so that - - -
GAUDRON J: What you predicate though, do you not, in that answer, Mr Mccusker, is that the Court of Criminal
Appeal should have embarked upon a Royal Commission
as to the conviction of your client?
MR McCUSKER: No, Your Honour. GAUDRON J: Well, you certainly go beyond strictly appellate
functions in that argument, do you not?
MR McCUSKER: I did not intend to, Your Honour. Perhaps I - in fact, in my submission, no. If I can put it
this way: if the Court of Criminal Appeal, in a
matter of this nature where it has come before it
by petition because of fresh matters and so on,
new evidence, if it considering the impact or likely
impact on a jury on a retrial of the further evidence,
it ought to consider - - -
GAUDRON J: But that is exactly the point at which you bring in some function different from that normallv
performed by an appellate court. When you say, "If it were to consider:' and you suggest thereby
that it should, what would be the likely effect in
a subsequent trial. The appellate function is to
determine whether or not a chance of acquittal
was lost.
MR McCUSKER: Or a significant chance, whatever - however, yes. GAUDRON J: Yes.- You turn around, now, to suggest that the
Court of Criminal Appeal should hypothesize as to
what will happen in a future trial.
MR McCUSKER: Well, if we are looking at a case of fresh
evidence, Your Honour, what the Court of Criminal
Appeal could only do, with respect, is to consider
what impact that fresh evidence would have if there
were a retrial because it cannot simply consider whether a chance of acquittal was lost without
considering, in the case of fresh evidence, whether
there would be a significant chance of acquittal
with the fresh evidence. There are two different
things, with respect. If the Court is considering -
a Court of Criminal Appeal is considering misdirections
or evidence which has been wrongly admitted and that
is the only point of its consideration, then it is
at that point simply looking at the question, as
Your Honour put it, whether a chance of acquittal was lost by reason of the misconduct or miscarriage
that is said to have occurred but it is a different
situation, in my submission, where one is looking
not at what did occur but what may occur by reason
of the introduction of fresh evidence.
PlT3/6/SH 129 26/10/88 Mickel berg GAUDRON J: Yes, well, I do not understand the tape to be
fresh evidence as that is normally understood.
MR McCUSKER: Well, it would be fresh - yes, I understand
Your Honour's point but if the Court of Criminal
Appeal considered in terms of KNOWLES' case that
that evidence was something which could properly
go before a jury on a retrial, in other words,
it could influence the decision to have or not
to have a retrial then it must, then, in turn,.
consider not a retrial in the way that this was
conducted,which is really what it did, but to
consider the likely impact on a jury, properly
directed, with some of the confessional evidence
simply excluded, of the Hancock tape which was
omitted by error and is, therefore, something
which the jury never had before it. That is,
really, my submission, Your Honour. There are
two different propositions and the second
proposition -we say, this is a second type of
case, not where one is looking simply at theconduct of the trial and what occurred and
whether that caused a lost chance of acquittal
but, rather, whether if the matter went back to
a jury on a trial, properly conducted, with all this evidence, there would be a significant
chance.
MASON CJ: Where do we get an authoritative statement of the court's function under the section that supports
the view you are now putting?
MR McCUSKER: Essentially, Your Honour, from this Court's
decisions in GALLAGHER and RATTEN, in my submission.
MASON CJ: Well, I would not have through RATTEN supported
you on that.
MR McCUSKER: Well, GALLAGHER, at least.
MASON CJ: Well, can you take us to the passage in GALLAGHER that you say supports you?
MR McCUSKER: Well, if I can take Your Honours to RATTEN's
case first, and what the then Chief Justice said
at page 518, towards the foot of that page:Further, when the material before
the court satisfies the court of a
miscarriage of this kind, it will not
matter that the new material or some
part of it is not fresh evidence, in
the sense that it was not or could not
have been available at the time of the
trial. Thus, until the court decides that
there is no miscarriage of this kind, it
PlT3/7/SH 130 26/10/88 Mickelberg
will not need to consider whether or
not any part of the new evidence
satisfied the criterion of fresh
evidence. The court's acceptance that guilt beyond reasonable doubt
is not established, means inevitablythat to maintain the verdict of guilty
would be a miscarriage of justice.
Also, as I have already said, it will
not matter in such a case that the
trial was fair and without blemish.
But if the material before the
court of criminal appeal does not convince the court of such a miscarriage, or if the
appellant's claim is only for a new trial,
the fact that the new material is not
wholly fresh evidence in the sense I have
described will be material.
way down:
And towards - a little later at that page,
In considering the material before it for
this purpose, the element of credibility will
be satisfied if the court is of the opinion
that the evidence is capable of belief and
likely to be believed by a jury. The court
in this instance will not be directly
acting upon its own view of the evidence
but rather upon that view most favourable
to an appellant, which in the court's viewa jury of reasonable men may properly take.
And we would add to that, a jury of reasonable
men, properly directed, with only before it that
evidence which was properly admissible.
DEANE J: But His Honour has, there, turned to a strict fresh
evidence point. MR McCUSKER: Yes, he has, yes.
DEANE J: Whereas, put in legal terms, your argument is a
fact that this trial miscarried by reason of the
negligence of counsel for the defence.
(Continued on page 132)
PlT3/8/SH 131 26/10/88 Mickel berg MR McCUSKER: Yes. That is the submission, Your Honour.
MASON CJ:
But His Honour deals with that point at the foot of page 517 in a statement which appears to be
quite opposed to what you are putting to the . Court.
MR McCUSKER:
Well, Your Honour, that is put in very broad terms, unqualified terms - - -
:VJ.A.SON CJ: It is. MR McCUSKER:
- - - and His Honour was not there adverting to the particular situation we have here, he was
simply saying what is, perhaps, unquestioned as a broad proposition that: there will be no miscarriage simply because
evidence which was available to him .....
was not called by the accused, even though
it may appear that if that evidence had
been called and been believed a different
verdict at the trial would most likely have
resulted.
I would not take the Court of Criminal Appeal in
Victoria, Your Honour, in KNOWLES case to be
in any way departing from that broad proposition
but rather to be looking at the circumstances inthe particular case and saying that without
detracting from that there may be a miscarriage
where it appears that counsel has acted on a
wrong view, not necessarily negligent.
MASON CJ: The statement in KNOWLES at page 770 is a
very broad statement. Now, apart from the Victorian authorities quoted in support of the proposition, the proposition that contains the expression "defect of judgment", are there any
other authorities that support such a wide ranging
statement of the position?
MR McCUSKER: Your Honour, I cannot say. I think there are
but I have not got them readily to hand.
DEANE J: The reasoning of the majority of the Court in the recent case of GIANNARELLI would be very
much against what you are suggesting. that is, thatexcept in the most absolutely extraordinary
circumstances the Court should entertain an
appeal on the basis of counsel should haveconducted his case in another way?
MR McCUSKER: Yes. Well, extraordinary circumstances leaves the door, as it were, ajar.
PlT4/l/MB 132 26/10/88 Mickel berg
DEANE J: Except you come back to your problem here and, that is, that the Hancock tape was only of relevance in terms of attacking somebody's
credit and would have been a double barrelled
weapon in terms of that sort of attack on a police
witness in front of a jury.
MR McCUSKER: In the circumstances of this case it would not have mattered in the slightest. There would
have been no, as it were, answering shot that
had not already been fired.
GAUDRON J: But you have to go even further, do you not? You have to say that the miscarriage arises
by reason of the way counsel for another accused
elected to conduct his case?
MR McCUSKER: Your Honour must bear in mind the extraordinary circumstances of this case, that counsel for Raymond was also the solicitor for
both Raymond and Peter, so he was performing a
dual function. Your Honours,there is as a distinct, though allied matter, this point to be made. Until
this Court's very recent definitive ruling in
relation to unsigned confessional statements,there was no clear view held in the courts of
Australia as to the proper direction to give or,
indeed, whether there should be any direction.
BRENNAN J: Which case are you speaking of? MR McCUSKER: I am talking of CARR's case, Your Honour. BRENNAN J: What do you understand CARR to be an authority
for?
MR McCUSKER: That where there are circumstances which
suggest a danger of fabrication then the jury
should be warned by the trial judge of that
danger and of the circumstances which point towards that possibility. No such warning was
given here. I do not put it any higher than that, Your Honour.
BRENNAN J:
Perhaps CARR's case would warrant a more close reading than that what you have thus far given it,
Mr Mccusker. MASON CJ:
You have only read Justice Deane's judgment, have you not?
MR McCUSKER: No, Your Honour. I thought in stating that that I was stating, perhaps, the view which was
slightly less favourable to the applicant than
that of Justice Deane. But whatever analysis one makes of the judgments in CARR's case, what
PlT4/2/MB 133 26/10/88 Mickelberg does clearly emerge from the decision of the
majority was that in an appropriate case, which
we say is clearly this one, some direction ought
to be given to the jury. In this case not only
was no direction given but if anything there was
a certain soothing direction given in terms of
the way that they could look at the police
evidence. We say that is a separate point, quite apart from the Hancock tape,which is worthy of
consideration by this Court because the accused,
when one looks at CARR's case, simply did not
have a fair trial.
The Court of Criminal Appeal did not have
before it the decision of this Court in CARR's case and perhaps may well be excused therefore from not considering the problem of there being
a lack of any direction by the trial judge.
That is a matter which, we say - this does not
raise any problem of the kind that was referred
to yesterday in terms of this Court receiving
new evidence; this is simply that that being the
law, the declared law of the common law of
Australia the Court has failed to act upon it
either in the trial or in the Court of Criminal
Appeal, and the matter should be looked at in
that way.
Your Honours, I will not take you to all
of the material, of the confessional material
so called, I am conscious of the time, but if
I could just direct Your Honours' attention
at page 9 of the summary and mention the relevant
transcript pages, apart from those I have referred
to, at volume V 465C and 483C. Lewandowski's
evidence relating to the confessional material
is at 480B, 435C and 3077A. There is also
reference - perhaps, Your Honours, rather than laboriously go through it, I could provide you with a list of these transcript pages which
refers to the point.
In my submission, Your Honours, the matters
are set out there and I will provide the list
of transcript references. Points 1, 2 and 3
which go over to page 10 are clearly matters
which are open as inferences, and very strong
inferences, from the contexts of the Hancock
tape, those matters that I have stated. The
further factor which militates against the
uncritical acceptability of this confessional
evidence was, as I have noted,(b) but if the
evidence were correct it is at least unlikelythat Peter Mickelberg would have refused to
sign the notes or identify them as his.
PlT4/3/MB 134 26/10/88 Mickel berg At page 11 point (c), Your Honours, I have
referred to there being evidence that before any
of the alleged confessional statements were made
Peter Mickelberg and his brothers had had legal
advice that they were not obliged to say anything
· to the police, and that is the letter described
as "Cannon's joke". It appears at 197 to 198
in volume I. It is a very clear statement:
we act for Mr Mickelberg who has
consulted us in respect of various
matters. We have advised our client of his rights, duties and obligations. We
have indicated to him that he is obliged
to tell the police officer his name,
address and occupation and that he isnot obliged to make any further
statement. Our client understands the situation and has indicated to us that
under no circumstances will he make any
statement to the police in connection
with the various offences.
It could not be a clearer statement of the position.
We have also advised him that he is not
obliged to accompany police officers to the CIB headquarters or elsewhere until
such time as he is arrested. He has indicated to us that he will not accompany
police officers anywhere until such time
as you arrest him. Once arrested, he will make no statement to the police officers
and wishes to be brought before the court
at the earliest opportunity to allow him
to go to bail.
Now, that was a letter which was given.to the
accused, Peter Mickelberg. It was produced to
the police and the police in the face of that
say that nevertheless, contrary to the advice that he had said he was going to act upon, he
had made these alleged statements which he denied
utterly.
BRENNAN J:
Now, is that submission directed towards the question of whether the verdict was unsafe and
unsatisfactory or is it directed towards the question of warning again? MR McCUSKER: It is directed towards both, Your Honour. It is directed towards the question of warning
principally, but it also goes to the question
of the verdict itself being unsafe and unsatisfactory
based on that evidence and against that background.
PlT4/4/MB 135 26/10/88 Mickel berg
BRENNAN J: Well, I think I understand what you say about"warning"subject to a view that perhaps
is not quite the same as yours about the effect
of CARR's case, but in the case of"unsafe andunsatisfactory"what do you suggest that
. submission that you just made should -how it should be regarded by a Court of Criminal Appeal?
MR McCUSKER: Your Honour, in this way, that the jury was not directed - it comes back to a warning
in CARR's case, in a sense - at all as to the·
danger of accepting this evidence. The evidence was, clearly, that it was highly unlikely that
Peter would have made the statement that he is alleged to have made and the jury - we do not know
what the jury acted upon - acted upon either the
identification evidence, which I have gone through,
or the confessional, or a combination of both.
Looking at the matters that I have referred to,
including the "Cannon's joke" - the letter-it
is simply, in broad terms, a verdict which is
based on unsatisfactory and evidence which on its
face is so dangerous that it ought really to
have been excluded.
BRENNAN J: This is a case where there would have been a
· central question at the trial, there was cross-examination no doubt, impassioned addresses
perhaps, and at the end of that the jury say,
"We find that this is reliable beyond reasonable
doubt."MR McCUSKER: But at the end of that, Your Honour, with no direction to remind them and with intervening
between whatever impassioned addresses there
were and the trial judge's direction, or lack
of it, on this point, there was the learned
prosecutor's address to the jury which put it
in terms of, "Are the police honest, reliable
types of people, or are they scheming rascals?"
BRENNAN J: What is wrong with that as a matter of advocacy?
MR McCUSKER: Nothing wrong with it as a matter of
advocacy, Your Honour I do not criticise that for a moment, in some respects at least, but the
trial judge ought at least to restore the balance
and remind the jury of the dangers of thisevidence having regard to all these factors.
This was a factor, or th~ existence of this
letter and the advice that was given, which was
not, of course, present in CARR's case. We would say it heightens the danger of the acceptance
by the jury of this evidence,particularly on the
basis of a direction which simply asks them,
in effect, to look at the honesty and reliability
of the witnesses.
PlT4/5/MB 136 26/10/88 Mickel berg
BRENNAN J:
Well, Mr Mccusker, some modest experience in the criminal jurisdiction leads one to the
conclusion that a skilful police officer - I am not saying can kidnap somebody and take them to a police station but can frequently secure
. their co-operation to answer questions, despite the best advice by the solicitors given the day before?
MR McCUSKER: We do not say that that is impossible, Your Honour, and it must happen, but also it is not
impossible and does happen that police officers
convinced of the guilt of an accused tend to go
a bit too far in proving the guilt.
BRENNAN J: But your proposition is the Court of Criminal Appeal then should look at the document and come
to a conclusion adverse to the reliability of
the confessional evidence?
MR McCUSKER: We say, Your Honour, that that is an important factor. It should not have been excluded by
whether the jury's verdict was unsafe and
the Court of Criminal Appeal in approaching the of
unsatisfactory. The Court of Criminal Appeal misdirected itself because it simply looked at the
police confessional evidence and said that that
evidence was very strong. It did not say, "Well,
are there factors which should be taken into
account, in which the jury should have reminded
itself, or been reminded of, which militate against
the strength and indeed the acceptability." Therewas no such approach. So we say the Court of Criminal Appeal, sitting as it were as a body
in a sense, adjudicating on evidence, has
misdirected itself on these essential points justas the jury itself was misdirected by not being
directed of the danger. I can see Your Honour
is not fully happy with either that proposition or,
indeed, with CARR's case.
BRENNAN J: Well, it seems to me to lead very closely to an invitation to a Court of Criminal Appeal
to engage for itself in the function which is
really a jury function of determining the reliabilityof confessional evidence.
MR McCUSKER: Not entirely, Your Honour. If the matter goes, as it did here, before the Court of Criminal
Appeal on the question of whether the jury's
verdict was unsafe and unsatisfacory, in a sense
the Court of Appeal is upsetting a jury verdict
if it says, on the basis of all the evidence, "The
verdict is unsafe; not just on the basis of all
the evidence but on the basis of the directiongiven, it is an unsafe verdict." Now, there is
P1T4/6/MB 137 26/10/88 Mickel berg
nothing unusual about that proposition. The Court of Appeal should not shrink from the
proper evaluation and assessment of the evidence
that was before - it has been said many times - before the jury, in order to reach a
conclusion as to whether it was unsafe or
a dangerous verdict. That is all I am submitting
to Your Honours, that if one looks at all of
these factors the verdict based on this
confessional evidence was unsafe and the
unsafe nature of it was exacerbated by the
lack of any direction that was given, whichrenders it even more likely that the jury's
verdict in the end was based on a false approach.
I should add too, Your Honours, there is
still a further point to be made in relation
to this kind of confessional material, havingregard to the way that it was obtained, the
abducting of Peter Mickelberg, the disregarding of
the letter which he produced. These are
matters which this Court can take into account
in approaching the question of this evidence in terms of policy as to whether if this Court were
to simply leave matters as they are, as the
Court of Criminal Appeal has done, that is
consistent with sound public policy. I should add a further matter, Your Honours, which was
adverted to, I think by Your Honour Mr Justice Deane,
in CARR's case, and that was that no attempt
was made to tape record any of these alleged
confessions and yet there was evidence that
there_were tape-recording facilities available
readily to the CIB and, indeed, there was
evidence - and there is an abundance of it, and
I will refer you just to one part - that the
accused persons were at various times tape recorded
for the purpose of voice identification~ All
such attempts failed.
(Continued on page 139)
PlT4/7/MB 138 26/10/88 Mickel berg
MR McCUSKER (continuing): When, at the Court of Criminal Criminal Appeal, an answer to· a subpoena
was given requesting the police to
produce, among other things, the tape recording that
had been made of portions of the interviews of the
·accused, the answer which was given: that the tape was
no longer available because it had been recycled.
Now, the availability of tape recording facilities and
the failure to use them is simply unaccountable. It
is quite inexplicable. Perhaps I could refer
Your Honours to page 285 -just as one illustration -
volume II of the application book, whereDetective Sergeant Hooft is referred to an incident.
It is the Central interview of
Raymond Mickelberg. It starts at 284C and
Hoeft is asked:
Did you walk into the room whilst Round
and Hancock were questioning Ray Mickelberg?
---Yes; that was some time later.
How much later?---I would say probably about
2 o'clock.
You had a tape-recorder?---Yes, I did.It was hidden in a parcel?---No, it was not.
Not hidden at all?---No.
You started to tape the conversation between
Ray Mickelberg,Hancock and Round?---Yes.
And presumably you had a tape-recorder capable
of operating for some minutes?---Yes. It was
run on batteries.
But you did not record the whole of the
conversation?---No.
Why did you not record the whole of the conversation?---It is not the practice to start
off with and it was not my interview.
You realise, of course, that if there is a tape-recording
of the interview, if something is said we can
hear it back on the tape?---Yes, but tapes can
be fiddled with, can't they?
Not by the police though?---No, that is right.
It would be alleged.
So the response of the police - I guess I should go on:
PlTS/1/VH 139 26/10/88 Mickel berg The part I taped he was talking about having
some bars of gold in his garage so he definitely
said something.
These were the bars of gold that had been found
in his garage and found to have nothing at all
to do with the Mint?
I should add that was another reason for the justified
suspicion of these men by the police because they initially
on the first raid found that Raymond Mickelberg had
bars of gold at his home, but they then discovered
that they had been purchased legitimately:
Yes, but I was only getting a sample of his voice.
Then, over the page:
Pure coincidence that you turned up with a tape?
---No, I took it off my own back to get a tape
of his voice.
Where was the tape-recorder put?---It was on the
desk right in front of him.
I suggest it was under the table so that he would
not know he was being recorded?---That is entirely
incorrect.
Now, if I could refer Your Honours next to page 414E
in the same volume. That is Hooft's evidence that
there was a tape recording which has now been recycled,
apparentl~ and was never produced at the trial.
Then Detective-Sergeant Hancock, in cross-examination
at the trial, line E:
What about Sergeant Hooft?
This is 15 July:
No, except for one stage when he walked into
the interview room - - With a tape recorder?---As I found later, with
a tape recorder.
You did not know it was a tape recorder?---Not
at the time.
Even when he put it in the middle of the desk?
---He didn't put it in the middle of the desk.
Where did he put it?---In actual fact, I'~ not sure where he put it; whether he held it in his
hand.
PlTS/2/VH 140 26/10/88 Mickel berg Do you mean to say that Sergeant Hooft walked
in with a tape recorder and you did not know
that he was using a tape recorder?---That is
correct, yes.
How long afterwards did you find out that it was
a tape recorder?---At the end of the interview.
So, I make the point, Your Honours, that there was
clear evidence there and elsewhere that tape recording
facilities were available for use by the polic~. They
used them when it suited them for the purpose of
attempted voice identification, which we can only
sumise since, although there were many attempts, no evidence was given of them - were unsuccessful.
Point G, Your Honours, I have already dealt with at
some length, that is the alleged breaking-down in
the one-man identification parade by Peter Mickelbergbefore Mr Henry, which simply does not bear analysis,
as I would submit.
Now, in our submission, the approach taken by
the Court of Criminal Appeal is fundamentally wrong
in principle when they have, for the purpose of
determining ultimately on a review of all of the
evidence- which they must- whether there was amistrial; whether there was an illlsafe or dangerous
verdict. The Court of Criminal Appeal ras uncritically looked at. that confessional evidence without directing
itself as to the manifest dangers of it and, indeed,
has even, one must assume, looked at those parts of
the evidence which, in our submission, just on their
face are clearly inadmissible and ought not to have
been put before the jury.
BRENNAN J: Could you give us the page references of the grounds of appeal to the Court of Appeal?
MR McCUSKER: Yes, Your Honour. They ap?ear in the judgments of the Court of Appeal.
BRENNAN J: Were each of the grounds argued? MR McCUSKER: Yes, Your Honour. RRENNAN J: We can take it from the Court of Appeal's judgments that those are the - very well, do not worry, thank
you.
MR McCUSKER: They are set out fully in, I think, the judgment of Mr Justice Wallace.
BRENNAN J: Yes.
PlTS/3/VH 141 26/10/88 Mickel berg
MR McCUSKER: Could I take Your Honours, whilst I am on this summary, to page 13, which raises a question, the
circumsrantial evidence point? There were various
proven facts from which the court or the jury was
ir.vited to drawn inferences. Dealing with the
case against Peter~ the most important conclusion
·which had to be drawn was whether the car, the white
car, was indeed used for the purpose of the mint
swindle. I outlined ~o Your Honours yesterday the proven facts which simply shew that a white car,
which was the same car as the one purchased from
the Allens was parked in someon1:: else's parking bay
some distance from Barker House. Mr Henry saw the white car; took the number, and that was the
same as the Allens' car that they had sold. But,
assuming even that there was sufficient evidence
to identify Peter Mickelberg as being the young man
whom Henry himself did not identify, the first
primary question is: was that car used for the mint swindle, and there simply was not any evidence
that it: was.
There was, perhaps,at the highest, suspicion based
on the fact that the car was there. Although one could
well say, rather strang~ that a mint swincl~er, whosehas organiz2d a somewhat gigantic fraud and deception,
should, as part of a swindle, use a car that: tended to break dawn all the time and park it in someone else's
parking bay with the probability that that personwould complain, note it, and even,~s he did, c~ll the
police. But those factors aside that militate against it being likely that it w~s uced, there is simply
no evidence that at any time the car was used for
the purpose of the mint Gwindle. The prosecution
poinced to there being a CB radio in the car, but
what inference consistently with the views expressedby this Court as to the drawing of infe1·en1.:es in
CHAMBERLAIN' s case -what inference could be drawn .Crom
that? It is simply, with respect, a factor which was
overlooked by the learned trial judge and, indeed, by
properly directed in relation to this particular and the Court of Criminal Appeal. The wrong approach was taken and, in our submission, if the jury had been vital point, it should have been directed that it could not conclude beyond reasonable doubt, on the basis of those proven facts, that there was no inference open to it - reasonably open to it - other than that the car was used in the mint swindle. Well, Your Honours, dealing with the learned trial
judge'sdirection, and it appears at 1152E, what the learned trial judge did say there was, having narrated the circumstances,which he said at line B pointed to
its involvement - I am sorry,-Yours Honours,
that is volume V. He said: So they are the circumstances, or some of them
at least, which you may think point clearly,
inevitably perhaps, to the involvement of the
car in the Mint swindle.
PlTS/4/VH 142 MR YicCUSKER, QC 26/+0/88 Mickel berg Your Honours, by no fair view of the decision of
this Court and the directions given by this Court
in relation to the drawing of inferences, could
one say that the jury might think the circumstances
listed in B, at lines B to D, inevitably pointed
to the involvement of the car in the mint swindle,
though circumstances were it was present in the
. parking area about 100 metres from the rear of
Barker House on the morning of 22 June. So too were many other cars, both further away and closer.
MASON CJ: Can you tell me where this point was dealt with in the judgments of the Court of Criminal Appeal?
MR McCUSKER: Yes. MASON CJ: . ~arrely, that the evidence was not sufficient to support an
inference th.at the car was used in the mint swindle. But cb
not take tim: on it now.
MR McCUSKER: I will find it, Your Honours. It was dealt with and· I will take you to the passages but it was dealt with in a rmst uncritical
f~shion. It was, as it w"Bre, accepted as a fact th.at the car was being used in the mint swindle rather than it
being referred to as an inferenc~.
MASON CJ: Well, was the ground of appeal directed to it?
MR McCUSKER: Yes, Your Honour. at page 4 of our application
book. that is Peter's application book, it is
put - the page reference is the page of the
transcript of the judgment itself, so I will just
have my learned junior turn up the page.
His Honour Mr Justice Wallace stated, in the course
of his judgment:
There is evidence, if accepted by the jury,
that on the morning of Tuesday the 22nd June
Peter, again wearing a disguise, parked the white Ford Falcon car off a lane way near
Barker House the~, before the hired secretary
arrived, placed three forged Building Society
cheques in Suite 3.
And, Your Honours, there is no evidence that Peter was there; that the young man was wearing a disguise,
the young man seen by Mr Henry. He did not say he
was wearing, or appeared to be wearing, a disguise.
There is no evidence that whoever the young man was, he had gone into Barker House, and there was no
evidence that the young man, whoever he was, had
placed any building society cheques in s•uite 3.
That passage~ referred to there, Your Honours, appears
at page 3009 in volume XIII of the application book.
BRENNAN J: Was this point ever considered by the Court of Criminal Appeal?
MR McCUSKER: Yes, it was, Your Honour.
PlTS/5/VH 143 26/10/88 Mickel berg Well, in the sense that the argument was put
that there simply was not evidence that - - -
BRENNAN J: There is no evidence against Peter except his
confessions.
MR McCUSKER: Essentially, yes, and that the confessions
themselves were confessions which could hardly be
said to be really confessions at all.
BRENNAN J: Yes. DEANE J: If the handwriting evidence is regarded as very
strong, is not the chain this: that that handwriting
evidence would establish that Peter purchased the
car?
MR McCUSKER: Yes. DEANE J: Other evidence establishes that the car that he
purchased was in the vicinity of Barker Street when
the cheques were deposited.
MR McCUSKER: Yes. DEANE J: Evidence establishes that the driver of the car
in which he purchased,. behaved strangely, and evidence
establishes that the car which he purchased was
fitted with a -
MR McCUSKER: CB radio. DEANE J: - - - presumably at the time of the crime, and evidence establishes that after the crime the car
which he purchased was gutted.
MR McCUSKER: Well, Your Honour, taking each of those in turn,
and I think that they are, in effect, the matters that the trial judge adverted to at page 1152, to
some extent. But taking each of them in turn, starting from the last one, there is now some doubt
but I really need to address Your Honours on this
in the context of further evidence - the Court's
power to receive further evidence - but there is,
indeed, evidence available, if Your Honours were
prepared to consider it, which casts doubt on the
question of whether that car was indeed the 1965
Falcon sold by the Allens to the young man. That is
in the form of affidavit evidence which we would seek
to tender in the context of our submission that this
Court ought to receive new evidence - seek to tender
from the Ford Motor Company.
The car in question, in brief, was identified
by its chassis number as being the car that the Allens
had sold to the young man. The Allens had their car registered and, as must happen, the vehicle registration
papers require a reference to a chassis number. The chassis number and the engine number were identical
PlT5/6/VH 144 26/10/88 Mickel berg
on the registration papers. The Ford Motor Company say that that could not have been the case in 1965.
The car that was burnt out was identified solely by
the alleged chassis number, according to police
evidence. The Ford Motor Company say it could not
have been a 1965 Falcon::-.. That number was not
current until sometime after 1971, they think.
DEANE J: But really- this is not said critically of you - somewhere there must be an end to this, must there
not be? I mean, years after the conviction your
clients were successful with having the whole case
reopened and dealt with before the Court of Criminal
Appeal. There, a large part of the case was : "1hings
were not done properly at the trial, we have now
found new evidence. "
MR McCUSKER: Yes. DEANE J: Now, you are asking us to, as it were, disagree with the Court of Criminal Appeal - - -
MR McCUSKER: No, Your Honour - well, disagree, yes. DEANE J: - - - on the basis of after you had the inquiry that you got - talking of "you" in terms of your clients -
you are now corning up with evidence that you did not
get for the Court of Criminal Appeal.
MR McCUSKER: Well, yes, Your Honour. The difficulty, of course,
that an ad.cused person faces, is that so much of what
is put forward by the police in various, apparently
minor, .matters, is taken at its face value. Whereas
an accused person, to stop, particularly having regard
to resources - now this information simply became
available recently when someone, I am instructed, with
some experience, noticed the chassis number and said
that could not be right. But I take Your Honour's point, there must be an end to it.
DEANE J: I was not being critical of anybody, I was just wondering wtrere it does all end.
MR McCUSKER: I understand the point of principle, yes. Perhaps, Your Honours, it may be appropriate to address you on that question that was raised yesterday
(Continued on page 146)
PlT5/7/VH 145 26/10/88 Mickel berg
MASON CJ: Well it would be, Mr Mccusker, because we did
invite argument on the question. But I do think that it is the responsibility of counsel, in
presenting an appeal, at the outset of the appeal,
to apprise the Court of the totality of thefresh evidence that he wishes to introduce, rather
·than dealing with it in dribs and drabs as you
have done yesterday and today. In other words, we
ought to have known immediately, when you rose to
your feet, what you were proposing to do in the
way of tendering fresh evidence.
MR McCUSKER: Your Honour, of course, Your Honours were aware of the major aspect of the fresh evidence which was
the pin-:_pomt and that is a ground of appeal. So far as this further evidence is concerned, I mentioned it to my learned friend yesterday. I would
have gone further, but, of course, at the point the
question had arisen whether the Court had the powerto receive some fresh evidence.
MASON CJ: That still remains a formidable obstacle in your
path.
MR McCUSKER: We see it as not so much of a formidable obstalce. If Your Honours would like to hear me on that now?
MASON CJ: Yes, and you will deal with the concession as well
because that may stand in precisely the same
position.
MR McCUSKER: Yes, I appreciate that, Your Honour, and that
would certainly be our submission. Your Honours, in the-time available I have had prepared an
outline of submissions in relation to this. It is not necessarily complete but I would like to speak
to it. There are four categories of evidence which
we seek to have this Court consider which were notbefore the Court of Criminal Appeal and the first of those is the conceded fact that evidence given by police witnesses at the trial as to the date
of photographing the crime mark,and at the Court of Criminal Appeal as to a different date,
was in each respect wrong and so was the evidence
that the crime mark had disappeared when the cheque
was returned from Canberra. They are conceded matters and I appreciate that this Court may take a
different view of those matters than of the other
evidence.
There is evidence on affidavit which we would
seek to introduce regarding the Kobus negative
to establish that the negatives alleged to have beenthose of Dr Kobus, in fact,were not but copies or
copies of copies. There is the evidence of the
affidavit of the applicant which is in the application
book. And may I pause there to say that, in our submission, this falls into a different category.
PlT6/1/SR 146 26/10/88 Mickelberg That is the affidavit deposing to the fact that
he gave instructions to counsel to appeal to the
Court of Criminal Appeal but those instructions
were not carried out and the Court of Criminal Appeal
refused an application for extension of time toappeal. We say that is in a different category
because that kind of information has always been
considered to be relevant by this Court when looking
at an application for special leave. As I understand the position, Your Honours, an application for
special leave is something which is dealt with. by
this Court in its original jurisdiction and
certainly the time honoured practice has been for
this Court to receive evidence pointing to reasons
why the application raises special matters, as
for example, the Commissioner of Taxation customarily
puts before the Court material to show that a
particular point is of widespread public importance
because of a number of assessments turning on it.There is the further evidence, at point D, that I
have just referred to.
Your Honours, the CONSTITUTION, section 73, which is the starting point for this, contains no
fetter on the power of this Court as a court of
appeal.
GAUDRON J: Mr Mccusker, what is the relevance of the fresh
evidence referred to in paragraph (c)?
MR McCUSKER: Your Honours raised the matter yesterday, that is the question of what had occurred and whether
the matters had not already been dealt with on an
appeal-by Peter Mickelberg, I think,going to the
question of whether special leave ought to be
granted if some of these matters had already beendealt with by the Court of Criminal Appeal on an
appeal by Peter Mickelberg some years ago• The answer is to be found in the affidavit of Peter Mickelberg, that an application for an extension of time for an appeal against his conviction for conspiracy was denied and he gives the reason
for that. It is a short point, it is not really
relevant to the substance of the appeal.
GAUDRON J: I wonder if it is properly characterized as fresh evidence at all?
MR McCUSKER: No, I simply raise it because my learned friend, Mr McKechnie,objected to the reference being made
to Mr Mickelberg's affidavit.
GAUDRON J: I take it you do not concede that the evidence referred to in each of those paragraphs - and
perhaps we should leave aside (c) necessarily bears
the same character for the purposes of consideration?
PlT6/2/SR 147 26/10/88 Mickelberg
MR McCUSKER: No, it does not. We say it is all of importance
but that which is of a major importance, in ranking, is(a)which is the subject of a concession.
That is the photograph of the crime mark.
GAUDRON J: Strictly, it is the concession that is the new
.. evidence, is it?
MR McCUSKER: Yes, in the absence of the concession we would have sought to introduce the evidence by affidavit
but the concession has been made. Your Honour is quite correct, it is the concession, that
there was a factual basis on which the court below
proceeded which has now been agreed to be incorrect.
Your Honours, the history of the Court's consideration of the power to receive new evidence goes back to
the first volume of the Commnwealth Law Reports and in the course
of the first reference to it that I could find
was in NEWLAMBTON LAND & COAL CO LIMITED V LONDON
BANK OF AUSTRALIA LIMITED, where in the course of
argument in that case, the then Chief Justice Griffith
said:
I do not think that we can take
fresh evidence on an appeal from the
Supreme Court. An equity appeal to the Supreme Court is a re-hearing but this is
not a re-hearing in that sense.
There was no argument addressed to the Court on
that point. Then in DIGNAN's case the Court had before it a quite different question and that was
whether the disallowance- they say "subject" there
it should be "after" conviction - disallowance
after conviction of regulations under which theapplicant had been convicted ought to be considered
by the High Court. In other words, whether the
High Court should have taken into account, in
considering the order nisi to review. the fact that
the regulations had now - since the conviction had been
disallowed. And the court there said, no it could only consider the position as it was at the time
that the tribunal had dealt with the matter. Now that raises, in our submission, a quite
different issue from the present because the court
is there simply being asked to look at the decision as
being a decision according to law as the law then
stood. But in DIGNAN's case, Justice Dixon as he
was then said:
It is established that upon such an
appeal it is for the Court to form its own
judgment of the facts so far as it is able
to do ..... for this reason an appeal to this
Court is often said to be by way of re-hearing.
PlT6/3/SR 148 26/10/88 Mickelberg And His Honour referred a little later to the analogy
of the English Court of Appeal which was put forward
in argument as not being a sufficient foundation
for holding that the appeal to the Court involve
a rehearing of the cause at the date of the appeal.
But the question that is before this Court was not
before the court there. He also referred, however, . ·and with apparent approval -certainly not disapproval -to the fact that the court had refused to hear fresh evidence in the past and he referred
to the NEWLAMBTON LAND COMPANY case and
RONALD V HARPER, 11 CLR. In that case, Your Honour, in RONALD V HARPER, Mr Justice O'Connor had said:
To determine as a Court of first instance
the facts upon which these new grounds of
appeal rest would be obviously to exceed
the jurisdiction vested in this Court by
the CONSTITUTION.
So the Chief Justice said that the Court had no
jurisdiction to receive the further evidence for
the purpose of impeaching the judgment given by the
supreme court and he referred there, in the course
of his dealing with the matter, to the statutory
authority of the judicial committee of the Privy
Council to receive fresh evidence and noted there
that the High Court was given no express statutory
authority. So he was contrasing the position of the High Court with that of the judical committee
but pointed to nothing in terms of the CONSTITUTION
which would prevent it from so doing. And he said:
We have no such authority given to us.
So his approach was on the basis of "in the absence
of express statutory authority we have no such power."
But he further said:
and I think we should by undertaking a
task of that kind assert a jurisdiction
which would not be conducive to the
administration of justice.
The matter was further considered in SCOTT FELL V LLOYD
and it was there pointed out the Court of Appeal
in England would allow further evidence to be given
before it:
if necessary to do justice between the
parties.
The submission was, which was rejected, that the
same practice ought to be adopted by the High Court.
The Chief Justice there said that the Court of
Appeal in England was different from the High Court and that:
the House of Lords has no power to hear
further evidence on appeal.
PlT6/4/SR 149 26/10/88 Mickelberg So His Honour's approach there seemed to be that
since the House of Lords, which had no specific
rules, had no power, there was an analogy between
the House and the High Court. That was shown to be
wrong I am sorry I do not have the authorized
report for a quick reference, but the All England Report,
· (1969) 2 All ER 949, by a decision of the House
of Lords, MURPHY V STONE WALLWORK (CHARLTON) LTD,
which, as I say, show that what the Chief Justice
had said in SCOTT FELL V LLOYD was incorrect, at
least the House of Lords took the view that it. was
incorrect because they said that they did have
power to hear further evidence on appeal. And
if I nay refer to the All England Report - and I will obtain copies
of the authorized report, Your Honour - that the
House of Lords said there, at page 955, was simply
this, at line H:
Your Lordships' House -
dealing with the Court of Appeal and the specific
rules -
has no similar rules of procedure governing
Your Lordships, but I have no doubt that
your Lordships have ample power to admit
further evidence in cases which seem proper
to your Lordships.
That was Lord Upjohn who continued:
CURWEN V JAMES, in the Court of Appeal
shows that the jurisdiction must be exercised
sparingly and with due regard to the great
principle that a judgment once obtained is
not to be disturbed without "solid grounds".
That case was, in my opinion, plainly rightly
decided.
And to the same effect, Your Honours, Lord Pearson,
at page 959, at the foot of that page and over:
I think it is quite clear that if on appeal fresh evidence is admitted as to subseqent
events (events occurings after the date of
the judgment appealed from) and the fresh
evidence justifies a re-assessment of the
damages, the damages should be re-assessed
in the light of the relevant facts.
Then he turned to questions of policy and said:
It is in general undesirable to admit fresh
evidence on appeal, because there ought to
be finality in litigation. Interest rei
publicae ut sit finis litium.
PlT6/5/SR 150 26/10/88 Mickelberg Your Honours, I should say at once that that decision was referred to oefore this Court or before the
then Chief Justice Sir Garfield Barwick in
CROUCH V HUDSON. There is a brief note of it in
(1970) 44 ALJR. It was put forward as a reason
for reconsidering this Court's previous approach,
· no doubt, in particular, having regard to the,
at least,partial basis of the approach taken by
Chief Justice Griffith in SCOTT FELL V LLOYD. But Chief Justice Barwick refused to depart from previous decisions saying he saw no reason to.
depart from those decisions.
MASON CJ: That was a decision of the Full Court,was it not,
in which he delivered a judgment with which other
members of the Court agreed?
MR McCUSKER: I think that is correct, Your Honour, I'll just - yes, it was Your Honour. Sir Garfield Barwick delivered the judgment of the Court of himself,
Justices McTiernan, Menzies, Windeyer and Owen and
I accept what my learned friend, Mr McKechnie says, that the weight of authority in terms of precedent,
at least, is against us. In DAVIES ·AND CODY - - -
GAUDRON J: It is not simply a question of authority though,
is it? It is also the fact that whatever might
be permissible by way of appeals by way of rehearing
in civil matters, in criminal matters what one is
concerned with is the verdict of a jury. It is
therefore never the case that there is, in any
relevant sense, an appeal by way of rehearing in a
criminal matter. In criminal matters fresh evidence
may be ··considered for the purpose of determining
whether or not a chance of acquittal was lost. Itis thus open to a Court of Criminal Appeal to
consider fresh evidence for that purpose. Were this Court now embarked upon an appeal from the trial
it might be the case that you could consider freshevidence for that purpose, but this Court is now
or otherwise of the Court of Criminal Appeal's embarked upon a consideration of the correctness decision. How does that exercise ever bring in as a real possibility that this Court would
accept fresh evidence?
MR McCUSKER: Your Honour, I would accept that the circumstances,
of course, must be exceptional, perhaps, but in
principle there is no reason why this Court - giventhe fact that the reception of fresh evidence was open
to the Court of Criminal Appeal, why this Court
should consider that it too cannot in appropriatecircumstances receive fresh evidence for the purpose
of the determination of the ultimate question and
that is whether there was, indeed, a loss chance
of acquittal.
PlT6/6/SR 151 26/10/88 Mickelberg GAUDRON J: That might be the ultimate question
as perceived by people concerned with the litigation,
in one sense, but the immediate question and
the only question is was there an error by the
Court of Criminal Appeal? That is to be assessed
by reference to what went on at the trial and may
··reveal the answer to what you call the ultimate
question. But that is only an ultimate question in the sense of what will happen at the end of the
day, it is not the question that is here in issue?
MR McCUSKER: Your Honour, there is no- if I could say on this approach - statutory or other restriction
on this Court receiving so-called fresh evidence.
There is no reason in principle why this Court
should not, if it considers it in the interests
of justice to do so, take the same approach as the
House of Lords and that is that though the
occasion be rare, nevertheless the House did not
express its - - -
GAUDRON J: :What is in issue is a jury verdict, is it? MR McCUSKER: No, Your Honour, at this stage what is in issue is not merely the jury verdict but the question of
whether there is fresh evidence on which a jury
might reasonably take a different approach. The matter having got before the Court of Criminal was the jury's verdict unsafe, but on a further
basis, that there is further evidence which renders
it unsa.fe, there are two prongs. This Court
looking at the second of those prongs is in no way
inhibited if it sees it in the interests of justice
to do so. May I take, a, .. perhaps, parallel to
this:. suppose before this Court on the CHAMBERLAINappeal there had been, up to the stage of the
commencement of the appeal, clear and undisputed - well,undisputed, at least, evidence that the blood
in the car was foetal blood, but before the appeal
commenced it was established that that was not so,
it was paint. I would submit, that it would be extraordinary for this Cour~ to simply then take
the approach that it would regard the entire appeal,as it were, in a vacuum, divorced of that knowledge.
GAUDRON J:, No. It might, however, say: "institute an
appeal elsewhere on the grounds of the availability
of fresh evidence."
PlT6/7/SR 152 26/10/88 Mickelberg
MR McCUSKER: That would be in the present case - in DAVIES AND CODY, that is what the Court did, but
in the present case, as it has already been stated,
that is simply not possible. There is only one
right of appeal; you cannot continually appeal,
of-course. And the other avenue, as has alreadybeen explained, has been closed, and that is the
petition which was open as an alternative in
DAVIES AND CODY has been sought and rejected.
So we are here - there is finality at last - before this Court as the final prospect.
BRENNAN J: How do you mean "sought and rejected"?
MR McCUSKER: Your Honours, an application was made. I think my learned frien~ Mr Wallwor~ mentioned
this in his address to you yesterday morning,
that as a result of the obtaining of this furtherevidence - he was referring to the evidence
regarding the pin-holes - an approach was made
to the authorities - the Attorney-General, in fact -
in the hope that the matter would be resubmittedto the - - -
BRENNAN J: Was a petition lodged to the Governor seeking the pardon? Is that not the way in which
it is done?
MR McCUSKER: No, a petition as such was not formally lodged, Your Honour.
BRENNAN J: That·is what is required, is it, under
section 21?
MR McCUSKER: Yes, it is. BRENNAN J: That has not been done.
MR McCUSKER: Well, it has not been done, but the end
result would be a foregone conclusion as a result of the response that was given to the letters.
I suppose one cannot say in absolute terms,
Your Honour, but the response was that theAttorney-General said he would not recommend
to the Governor that there be a reference back
to the Court of Appeal and on that basis it seemshighly unlikely that the course which the Court
saw in DAVIES AND CODY to be open is open here.
BRENNAN J: That is speculation, perhaps, Mr Mccusker.
MR McCUSKER: My specualtion, Your Honour? BRENNAN J: It is speculation to say what may be the
result of a recommendation by this Court along the
lines of the DAVIES AND CODY recommendation.
PIT7/l/JM 153 26/10/88 Mickelberg
MR McCUSKER: Yes, Your Honour, I do accept that, yes. In DAVIES AND CODY the High Court did give a very clear - it could not give a direction, but it gave a very clear statement of its view that the matter ought to go back before the Court of
Criminal Appeal. But the Attorney-General - - -
MASON CJ: It stood the application for special leave
over, did it not?
MR McCUSKER: Yes, it did.
MASON CJ: Pending action.
MR McCUSKER: Yes. BRENNAN J: And that has been done by this Court more
recently, if my recollection serves me right,
in a Queensland case where I think something
was sent back to Queensland - not sent back to
Queensland, but the application for special
leave was stood over until a petition was
presented under the provisions of the Queensland
CRIMINAL CODE corresponding with section 2l(a)?
MR McCUSKER: I am not aware of that, Your Honour, of course. So, Your Honour, they are our submissions
that the Court does have the power. We are asking, of course, that this Court reconsider the line of precedent which supports my learned friend and we
say it ought to be reconsidered because there is
no statutory or constitutional fetter on this
Court's power to receive fresh evidence, if in the interests of justice it thinks it a proper case to
do so. To refer this matter back to the Court of Criminal Appeal would be, in our submission,
unsatisfactory in that there are many other
matters apart from this question of fresh eyidence,
which need to be determined and on which the
Court of Criminal Appeal has already reached its
conclusion. This is not a case where there is,
as there was in DAVIES AND CODY, essentially one point and one point only; it is quite a
different situation.
TOOHEY J: Mr Mccusker, you seem reluctant to treat the evidence regarding the crime mark on the cheque
as falling into a different category to
paragraphs (b), (c) and (d), and you may be right,
but is there no difference between the situation
in which a concession is made by the Crown that
evidence given at the trial was in error, and what
you have described as fresh evidence in relation to
the negatives, the instructions given to counsel
and the evidence regarding the chasis number on the
car?
MR McCUSKER: Yes, I have not expressed myself clearly,
Your Honour. I intended to say that I do see that 154
PIT7/2/JM 26/10/88 Mickelberg there is a real difference, but it is a difference
in terms of policy, perhaps, rather than one of
power. But as a matter of policy, certainly one can see a clear difference because this Court need
not , in the face of that, concern itself with
hearing the evidence and indeed, the foreshadowed
contesting evidence that my learned friend mentioned.
If the ·court has the oower to c•nsider it
then there is no reason in policy why it should notconsider it.
But there is, perhaps, a further point,
the question of whether indeed it truly falls within
the category of fresh evidence, rather than being,as it were, an agreement; an agreed state of facts being that the Court of Criminal Appeal proceed on
a wrong basis - wrong facts. The problem with that is that I understand my learned friend's
concession to be that the fact is conceded if this
Court considers that it has the power and should
receive and proceed on that evidence. So all the Crown has said is, "We dispute the proposition
that this Court should, or could, consider the
matter, but if it considers otherwise, then we
concede the point in factual terms."
TOOHEY J: We have not heard from Mr McKechnie, and Mr Wallwork did not surround the concession with
any qualifications.
MR McCUSKER: No, but I think my learned friend
Mr McKechnie does, if I apprehend it correctly.
BRENNAN J: Mr Mc-Cusker, if the question of pin-holes were dealt with on one basis that is different
from the remainder, would I not be right in
saying that you are concerned not only with the
pin-holes, but also with the authenticity of
exhibit 73?
MR McCUSKER: Yes, we are~ We are not as concerned, but we still are concerned with that because it is
a basis upon which the expert evidence which was
before the Court of Criminal Appeal was given.
We do not know to what degree it depended upon it,
but it clearly was a basis.
BRENNAN J: Would you be content to have the matter dealt
with on the basis of pin-holes and excluding the
authenticity of 73?
MR McCUSKER: We would be more content with that proposition, Your Honour, than the alternative, if the alternative
were to be that this Court should not consider any
of that material. But there is, with respect, some force in what Mr Justice Toohey has put that there
is a distinction between a fact which is conceded
before this Court for the purpose of its consideration
PIT7/3/JM 155 26/10/88
M ickelberg and facts which are put forward as fresh
evidence.
TOOHEY J: I have not said there is a distinction, Mr Mccusker.
MR McCUSKER: Suggested - - - TOOHEY J: I invited you to make a submission as to whether there was a distinction.
MR McCUSKER: I was perhaps too ready, Your Honour, but we would submit that there is a distinction because
if a matter comes before this Court with both parties,
if that be the case, agreeing that this Court shouldconsider it to be an established fact that the
police have given evidence wrongly before the
Court of Criminal Appeal, then there would seem
to be no reason why the Court - in fact it would
be somewhat perverse for the Court to approach it on any other basis. But I do not think that my learned friend does make that concession in
its absolute terms.
BRENNAN J: Mr Mccusker, could I take you back to exhibit 73 again, because the pin-hole argument
relates to the police evidence as to what wasor was not available to be photographed before
and after the cheque went to Canberra.
MR McCUSKER: Yes. BRENNAN J: Whereas the evidence with respect to exhibit 73 touches the very existence of authentic photographs
of anything at all. Is that not right?
MR McCUSKER: No, Your Honour, I do not think that I could put it on that basis, but rather that that
exhibit, the negatives, if our evidence were
accepted, would be shown to be not Dr Kobus'
negatives. We do not say that they were not originally - in their original form - Dr Kobus'
negatives but we say that they are later generation
by reason of copies upon copies - there is no
evidence of where the originals are. And that does no more, I suppose, than heighten, but heighten
very strongly a suspicion that the evidence which would
enable experts to examine the material for a forgery
is just not there. It should be there, but it is
not there.
BRENNAN J:
Even though exhibit 73 was identified by Dr Kobus as being his negatives,
MR McCUSKER: Yes, that is right, Your Honour, but
Dr Kobus is not a photographic expert. He is an expert in the enhancement of, among other things -
he is a chemist, in fact and he did not identify
PIT7/4/JM 156 26/10/88 Mickel berg them by holding them up to the light or going
back to his original source; he simply took it,
I think one can say, that they were his negatives because
that is what the police showed him.
BRENNAN J: I wonder if there is another chapter of this long saga about to be opened?
MR McCUSKER: I hope not, Your Honour, but yes. I think those submissions are all I can usefully put forward
to the Court for its assistance on this importantquestion.
DEANE J: Mr Mccusker, in (b), that is expert evidence, is it?
MR McCUSKER: Yes, it is, Your Honour. It is expert evidence.
DEANE J:
I mean, the negatives, as I follow it, contain the fingerprints of Raymond obtained on 15 July?
MR McCUSKER: That is right.
DEANE J: Well, now, is that what the evidence is?
MR McCUSKER: Yes. I said yesterday that one could perhaps take the approach that (b) does not
need expert evidence.
DEANE J: But is that what it is, though?
MR McCUSKER: The evidence, as it stands, is that those negatives-are the negatives of photographs taken by Kobus in Canberra later than 15 July and sent
back to the police and they are photographs
solely of the negatives of the crime mark and
no more, just the cheque, his evidence being
that he did not receive a copy of Raymond's·
fingerprints for the purpose of identification;
he is not an identification expert.
DEANE J: But on that the position could be either that
Dr Kobus was mistaken and he did have the
fingerprints taken on the 15th, or that what you
say in (b) was the explanation.
MR McCUSKER: Yes, that is true. DEANE J: But the fresh indicates that the explanation is not that Dr Kobus was mistakeni
MR McCUSKER: No, the fresh evidence would be consistent with Dr Kobus' evidence, that is that the did not have
the fingerprints.
DEANE J: I see.
PIT7/5/JM 157 26/10/88 Mickelberg
MR McCUSKER: But showing that he has been mistaken when he identified exhibit 73 as his negatives.
One could well understand the mistake, because holding them up to the light, they look just the same.
DEANE J: ·And as you understand the situation, the Crown
disputes that those two negatives are photos of
the print taken, or negatives of the print taken
on 15 July?
MR McCUSKER: No, I would not like to say that, Your Hono·ur.
I am not sure what the Crown disputes on this.
DEANE J: Well, do not deal with it.
MR McCUSKER: No. I have only heard fr©m my learned friend yesterday that they would seek to introduce evidence
relating to it, but I have no idea what the material
is.
Your Honours, I am mindful of a question
from Your Honour Mr Justice Brennan yesterday about
the question of whether a fingerprint is an
unforgeable signature and the expert evidence to
the effect that the crime mark is consistent withbeing implanted by a rubber silicon replica and
that the crime mark cannot be scientifically proven
to be a genuine fingerprint. I think Your Honour directed a question along those lines. I have had prepared a sunnnary of the relevant evidence
going to that issue.
Your Honour, Mr Justice Deane raised
a question with me regarding the accessibility
of the central fingerprint bureau and my learned
junior has had prepared a sUIIllllary of the evidence
relating to that. I do apologize that there is some handwriting on it, because time did not permit
it to be retyped, but if I could tender that, perhaps, to
Mr McKechnie.has pointed out, and they are to be Your Honours. that it contains connnents, as my learned friend, I should say, Your Honours, also, taken as simply comments by counsel as to the
proper interpretation of the evidence that is given.Your Honours, if I could turn - and I have covered a great deal of the ground, so I
will not be repetitious - back to the outline of submissions on behalf of the applicant in dealing
with grounds 1 and 2, those grounds are to be found
in the application book, starting at page 20. The evidence given by the experts referred to was to the effect that the photo-fit, or the sketch, could not be the product of the Allens and Henry, as I mentioned yesterday, and was either a tracing of or a copy from a photograph of Peter Mickelberg. The experts whose evidence is referred to there,
PIT7/6/JM 158 26/10/88 Mickelberg Your Honours, are, it is submitted, quite clearly
some of the world's most highly qualified people.
For example, Mr Cherry, I think, who gave evidence,
was a man who was called, came from the United States
of America to give evidence, and said, at page 3247
of the transcript, and volume IV of the supplementary
book, at line B, that he was a man who was:
in charge of all the evidence gathered at the scene of the Watergate break-in.
And has given - I will not take Your Honours through
the detail - extensive evidence of his experience and
qualifications. And those other experts who were called
fell into a similar eminent category.
The Court of Criminal Appeal assessed the
expert evidence in a way which, in our submission,
was fundamentally wrong. It should have approached
it on the basis of simply asking whether the evidence
was such as to be capable of belief by a reasonable
jury. Essentially Their Honours - and I have marked
the pages there - approached it on the basis of their
view as to the credibility of the evidence and the
approach of Mr Justice Pidgeon was that he did not
consider a jury would reject the evidence of Pierce,
even in the light of that expert evidence because oftheories advanced, and seems to have, as it were,
weighed up his view of Mr Pierce against-his view
as to the credibility and weight of the expert
evidence that was given. In our submission, that
is clearly a fundamental error in the approach taken
by the court.
Mr Roberts, dealing with the handwriting - I
have referred already to Your Honours some of the matters touching that handwriting evidence - gave the opinion that there was a significant doubt
regarding the matter - I am referring fo p~ragraph 3 of
this outline - and listed the major problems.
(Continued on page 160)
PIT7/7/JM 159 26/10/88 Mickel berg
MR McCUSKER: Detective Billing at page 138 conceded
that he had selected printed letters which matched
best and our submission is that would not be a
tolerated approach. Mr Billing also, at page 1578, admitted in the appeal that he had given erroneous
expert evidence as to handwriting in another
criminal trial. Now, we do not put that forward
as showing that Mr Billing was claiming
infallibility and was shown to be wrong, but
rather it is an important matter to consider that
handwriting expertise is very much fallible, as
indeed is any, and the short proposition is thatthe jury was not given any or sufficient warning -
I mentioned yesterday.
DEANE J: On what basis was this evidence before the Court of Criminal Appeal, that it was new
evidence that was not available, or what?
MR McCUSKER: It was new evidence, yes, Your Honour. DEANE J: In the fresh evidence sense in terms of new technology, or - - -
MR McCUSKER: No, new evidence I think, Your Honour, rather
than the fresh evidence sense. It goes also, I suppose, to the - as my learned junior pointed out -
to the question of whether the proviso ought to be
applied, that is the proviso that there has been
no miscarriage of justice. The Court of Criminal Appeal once again dismissed this expert evidence
on the basis that it was lacking in objectivity
but when one looks at the evidence given by
Rorrerts, all that he was saying was that there was
doubt and one could not be sure. There was no
partisan approach that was displayed. In any
event, our submission is that the proper approach
of the Court of Criminal Appeal is not to say
"We don't like him", or "We don't like his
evidence", or "It's lacking in objectivity",
but rather, "Is it evidence which was capable
of belief?", if we are considering the basis on which it might go back.
It was similarly characterized by
Mr Justice Olney and Mr Justice Pidgeon did not
a great deal about Mr Cherry's evidence, but at
think that Roberts' evidence would affect the result.
page 3278, just above line A, he gave evidence that:
I have dealt in this business for so
long - about 20 years of doing drawings -
that I understand what can be done by a
police artist. I have no problem with that whatsoever - if it looked identical
to Peter Mickelberg. The problem is that this drawing incorporates features from
PlT8/l/HS 160 26/10/88 Mickel berg a photograph of Peter Mickelberg. this is not the kind of evidence I enjoy
giving. This drawing was put together
using the photograph of Peter Mickelberg.
This man had given evidence in, I think, thousands of cases and in all but one for the police
and his evidence would certainly have been, in oui
respectful submission, cogent evidence and it is
unlikely that a jury would have rejected it as
being incapable of belief. ·
DEANE J: But we are faced with the same problem, are we not? I mean, if you look at your grounds of appeal,
ground 2 has great force and it should have been,
if the defence wants to rely on it, put before the
jury for decision, but what we are concerned
with is whether the verdict of the jury should
be disturbed because the defence elected to
conduct their case the way that did not put
it before them.
MR McCUSKER: Not entirely, Your Honour. The matter went before the Court of Criminal Appeal on the basis
that it was new evidence directed to the possibility
of the sketch being - it was accepted at the sketch was not as described by the Allens and the
Henrys in their evidence. So to that extent there was fresh evidence there, and going to the
question of a sketch there was also new evidence which suggested that the sketch was the product of
a copy or a tracing.
DEANE J: I can follow the way you put it if you put
grounds 1 and 2 into the context of admitted
mistake or fresh evidence - - -
MR McCUSKER: Yes, we do, and we say - - - DEANE J: - - - but unless you do that, I do not see how
we get off on it.
MR McCUSKER: I am conscious of that, Your Honour, and we say that once there is an admitted mistake
the question of the importance of that mistake
falls to be determined by, inter alia, other
material, and the Court of Criminal Appeal does
seem to have accepted that approach. It is simply
that having accepted that to be the proper
approach - eIBe why would it accept and hear the
considerable evidence that was adduced on this
point - but having accepted that was the proper
approach, then simply rejected the expert evidence,
effectively as lacking in objectivity, and that,
we say, was a jury question.
PlT8/2/HS 161 26/10/88 Mickel berg If I could take Your Honours to ground 3,
there was a question which arose
in the course of the hearing betore the Court
of Criminal Appeal as to whether Mrs Yeates could be called to be cross-examined on the basis
that she, on the evidence of various experts who
were called by the Crown and, indeed, by the defence
had approached them, gore to see them - and there
is nothing improper, we are suggesting, at all - had
gone to see them and had provided them with certain
information and material upon which they had
ultimately based their conclusions and it was seen
as appropriate by learned counsel that the ·basis
of the conclusions expressed by these various experts
should be brought forward and the information madeavailable, but the learned trial judges at the
Court of Criminal Appeal rejected that application.
The ruling appears, as well as the debate on
the point, at pages 3521 to 3522, and to simply
illustrate the point, apart from exhibit 166 which
was clearly incorrectly labelled when shown to the fingerprint experts, there were other matters, on
which the experts relied to varying degrees, of
information and there was no means of testingthis without calling the provider of the
information. For example, it appears that
the experts were informed, and again we say
in good faith, that the search warrants had been
meticulously filled in and it was on that basis that
some of the fingerprint experts took the view that
if that was so then there could not have been the
means on 15 or 16 July of forging a print.
We now know that the search warrants
were not meticulously filled in, in that, on the
admission of the police witnesses, a number of
items were seized on 15 July which were simplylabelled under the category of 'various documents"
That w-.a.s .not, as it turned out, a small point ·
because Lil particular Mr Justice Wallace - this
appears at page 3025 - made reference to the
experts ultimately being fully advised, and that seemed to loom large in his rejection of the
expert evidence given for the applicants, but
that was rejected. An illustration of the point, Your Honours, can be seen at page 2841 in volume XII of the application book where, in the
report which was tendered and which was proved
through Mr King - page 2841, volume XII, just below line E, the report of Mr King refers to
Mrs Yeates having given him:
to understand in no uncertain terms that
the hands etc., were not seized by thePolice until the following 26th day of
July. Being much disturbed by this, I called for copies of the trial
transcripts and I now note -
PlT8/3/HS 162 26/10/88 Mickel berg and he refers to various transcript pages -
mention is made of such seizure on
the 15th.
Now, I think he has perhaps over-expressed himself there, in fact he certainly has, but the point that
was being made was that various experts did rely
upon information as well as simply analysis;
information in order to, as it were, go to the
question of probability, but the defence was deniedthe opportunity of examining the basis on which
they proceeded. We say that is a fundamental error made by the Court of Criminal Appeal in
approaching this matter.
If I can take Your Honours through ground 4
fairly briefly, we say that a number of the matters
which are referred to there - we say (a) is a
jury question at page 21. Quite clearly the
lacking in objectivity was not the question. The question was whether it was capable of belief. The finding which appears in the course of Mr Justice Wallace's decision - it appears in volume XIII, page 3025 of the application book at line C: It was only when the prosecution intervened
to ensure that the appellants' experts were
fully advised that each in turn recanted his
original opinion toexpress the view that the
crime mark was equally consistent with
having been made by a silicone rubber cast
and a genuine finger.
There was no evidence, in our submission, to
support that proposition and we refer to ground 3
in relation to that and the information put forward
to the court. Item (c) in this ground, Their Honours found by way of contrast that the
and again we say it is the same point as (a), this experts called for the respondent were independent
is a question for the jury to determine. The only question for the Court of Criminal Appeal
to determine was not a balancing, as it were,
on a balance of probabilities, or otherwise,
of the respective independence or objectivity
of the witness, but simply are they capable ofbelief by a reasonable jury. There was a finding that the crime mark of itself
and its position militates against the suggestion of
forgery. There was expert evidence given to the contrary. The Court of Criminal Appeal turned itself, as it were, into an expert tribunal for
this purpose. Subground (e): there was a finding that the Hancock tape was not relevant and I refer
to what I have already said about that to
Your Honours, but in particular if I could refer
PlT8/4/HS 163 26/10/88 Mickel berg to the finding by Mr Justice Wallace to illustrate
that he did not fully appreciate the point behind
the tape. He said that it went to the question
of whether or not Peter was bashed. This is at
page 3041 in volume XIII, Your Honours. I should not say it in those terms. His Honour said, above line C: The miscarriage of justice alleged is said to arise out of the conversation
recorded evidencing the commission of
violence against Peter so as to make.
inadmissible admissions of guilt said to
have been made by him at Belmont Police
Station on the 26th July 1982. However
Peter in his trial denied having made the
admissions later set out herein. The factual issue thus arising was well and
truly before the jury from which it may
be taken that Peter's denial was rejected.
We say in dealing with the question of the tape -
he was there dealing with it and its relevance -
His Honour simply failed to appreciate the broader
relevance of the tape going to the question
of whether or not there had been an admission by
Peter, as alleged by the police. Subground (f):
His Honour Mr Justice Wallace said in his judgment -
this appears at page 3009 - that:
an inference could be drawn that the
rental payments -
that is the rental payments for the office that was
used -
were made by Commonwealth Bank cheques
with money drawn from an A.N.Z. Accessaccount operated by Raymond in the false
name of Colin Wilson.
It is difficult to do other than say that there was no basis in the evidence for such an inference
to be drawn. His Honour's reasons there appear
at page 3008 to page 3009, and again His Honour
said an inference could be drawn that a $20 bank
cheque - this appears at page 3009, line C to D:
an inference could be drawn that the
cheque may well have provided a model
for forging the cheques which
eventually were presented at the Mint.
It is entirely neutra~and it illustrates again the
difficulty that I referred to in relation to drawing
inferences that the white car was used for the
purpose of the robbery as well. His Honour also said on the following page - and this is, in our
submission, illustrative of the problem that arose
PlT8/5/HS 164 26/10/88 Mickel berg as a result of the introduction of the identification
evidence - His Honour said at page 3010 at line C:
There is evidence, if accepted by the jury -
I think I have referred Your Honours to that passage
yesterday, in fact -
that on the morning of Tuesday the
22nd June Peter, again wearing a disguise,
parked the white Ford Falcon car off .a
laneway near Barker House then, before
the hired secretary arrived, placed three
forged building society cheques in Suite 3.By then the man who called himself Fryer
had ordered $250,000 of gold -
and so on, but not the slightest evidence that that
was so, and in our submission, on the evidence
before the Court, the proven facts, one could not
draw that inference. One could suspect it perhaps, but certainly no inference was available. There His Honour Mr Justice Wallace again in his judgment
said that:
Instructions ..... were given to the
courier by means of the use of a
Citizen Band radio said to have been
fitted to the white Falcon car.
Now, that may be just a matter of interpretation
of the wording of His Honour's reasons, but if
His Honour means by that that there was evidence
th~t the radio fitted to the car was used to give
instructions - there is no evidence whatever to
support such a finding. There is evidence that some instructions were given to the courier by a
CB radio. The matter referred to Your Honours in ground (j) I have already mentioned. In
ground (k) - - -
TOOHEY J: Mr Mccusker, this material is coming from the application book, is it?
MR McCUSKER: Yes, it is, Your Honour. TOOHEY J: It is just that my copy seems to go from page 4 to page 5 with no difficulty, but from subparagraph (h)
then to subparagraph (n).
(Continued on page 166)
PlT8/6/HS 165 26/10/88 Mickel berg
MR McCUSKER: I think in the first part of the application book, is that right - yes, in my copy -I had hoped it was not
for the entire Court - the pages have been transposed.
TOOHEY J:
You mean the pages are there, just to be picked up somewhere else, are they?
MR McCUSKER: They are there, yes, Your Honour. I think if Your Honour turns over to the next page -
TOOHEY J: Yes, thank you.
MR McCUSKER: Your Honour, it would be easier, I think, to follow if Your Honour were to turn to page 24 because the
grounds of appeal have been duplicated and I do not think
that there is a transposing of pages there.
Your Honours, the matter I mentioned was
subground (j). There was evidence as to the position of
the crime mark making it improbable that it was put there
in the course of the crime, that is, as distinct from
being forged and I can, rather than take you to the
detailed evidence of that, explain in general terms
that explanations were given by experts called for the
defence that it would be unlikely that the person who
used that cheque would have put his finger in that
particular place. An explanation was given as to how, when forging a print, one would need, if using these
type of moulds, or rather replicas, to put the forged
mark at the edge of the document as this was done here
to avoid a rippling effect which would occur if one
tried to put it in the middle of the document. That, I
think, was the extent of it, but His Honour rejectedthat on the basis that it could not be the subject of
expert evidence. We would submit that it could be and it was evidence which was capable of belief and could
have gone before the jury to assist it.
BRENNAN J: What was the particular field of expertise?
MR McCUSKER: It was expertise in fingerprinting, Your Honour,
and it was from experts who had many years of experience in detection from fingerprints and also who knew something
about how - were experts in respect of the possibility
of forging fingerprints. If I could turn Your Honours'
attention to page 2853 in application book volume XII
there is a letter there - I am sorry, I beg Your Honours'
pardon, it does not go to that.Subground (k): again, it is an observation by His Honour which is not borne out by the evidence.
For example, in volume XII, page 2853, it is clear that
Mr Thomson, as just one example, had approached the
matter on the basis, as he stated:
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
PlT9/l/PLC 166 26/10/88 Mickelberg affidavit I have come to the conclusion that
if the Police were not in possession of thesilicone fingers before the mark was
photographed the impression on the cheque
must be genuine.
So experts were given material from which they reached
conclusions.
The general approach or the general view of the
experts called for the defence was that the print could
be genuine but it could be, also, a forgery.
BRENNAN J: I am sorry, I am just not following (j) and (k)
at all. I do not know what you are saying about them?
MR McCUSK.ER: Mr Justice Wallace, in his assessment of the expert evidence, Your Honour, and the view that he took
of it in ultimately rejecting it, proceeded on an
incorrect basis which is demonstrably incorrect when one
has regard to the evidence which was before the court.
That is, I think, the short point to be made.
BRENNAN J: What, he mistook the evidence that was there, is
that what you are saying?
MR McCUSK.ER: Yes, essentially, and the matters ·I have referred to under (k) in the outline demonstrate that point.
Again, His Honour, in subground (1) took the view that
the appellant's technical evidence in relation to the
fingerprint crime mark was not credible. We say, again, that really is not a finding which could possibly be open
on the weight of experience of those who gave evidence
and His Honour ought to have left that
as being·a jury question rather than his assessment of
the credibility of the witnesses.
Your Honours, I have referred already to
subground (m) where His Honour fell into t~e same error
as the jury was likely to have done and that is that
he seems to have thought that the evidence of Henry was
fact, the evidence was to the contrary: he said he that he saw Peter on the day of the conspiracy when, in could not recognize Peter as the man he saw. Subground (n) , referring to Mr Justice Pidgeon - His Honour .
said what is quoted in subground (n) at page 3145,
volume XIII of the application book but the jury, withrespect, could not have drawn the inference suggested because Mr Henry said it did not appear to him that the man that he saw was wearing a wig. He said he looked normal. That appears at page 2424 in volume X of the
application book. He said he could not identify Peter as the man that he had seen and noted differences in
height and hair, and that appears at 2418. His HonourMr Justice Pidgeon clearly must have taken the view that he expressed, again, on the basis of exhibit 23,
the photograph, and did not advert to the dangers that I have already referred to.
PlT9/2/PLC 167 26/10/88 Mickelberg His Honour also, in his judgment, said that the
photo-fit evidence given by Mr Cherry and Mr Proven,
both highly experienced men of repute, was no higher
than theories based on experience. To the extent
that that suggests that the evidence could not berelied upon, we would submit that that applies, that
description, to all expert evidence and His Honour
has taken an approach there that the evidence was not
to be accepted because it was merely theories based
on experience, has taken a wrong view of the assessment
of expert evidence.
In subground (p) His Honour Mr Justice Pidgeon
stated as is set out at page 2~ and the comment to be
made on that is, again, that His Honour proceeded on a wrong view of the evidence in that the documentary
evidence shows that the warrants were deficient. The evidence of Sheryl Mickelberg, Peter and Detective To~ey
at the trial, but not at the appeal, was that hands -
that should not read "rubber hands", Your Honours but
"hands" - were seized on 15 July 1982 which was the
third raid on that day. Raymond Mickelberg gave evidence to the same effect at the trial. There was
no cross-examination of them at the trial on that
evidence, but on appeal Detective TOYey said that he was confused when he had given the evidence referred
to at the trial. Your Honours, the passage that I have
referred to in which the evidence appears could hardly
have allowed for any confusion at the trial. But the short point to be made there is that Detective Tovey
acknowledged to the Appeal Court that the warrants did
not list items such as books on casting, photographs
of Raymond pouring gold and diary, which he admitted,
nevertheless, had been seized. So that His Honour's view that the evidence that they gave was supported by
what was written on the warrants is simply wrong
and that appears at page 3164, that particular
observation, of volume XIII.
Mr Justice Olney, dealing with his observation,
dealt with in ground (q): the evidence that was
before the court, both before the trial, the jury and the Court of Criminal Appeal was that there were hands which were replicas of Raymond who had this extraordinary hobby but, nevertheless, beyond doubt that was his hobby -
they were seized; they were not returned and the defence was therefore never able to determine whether they had
been capable of producing Raymond's prints. Now, what His Honour Mr Justice Olney said was that it has never been suggested or asserted, either at trial or appeal, that there existed as at 15 July any cast or
other replica of Raymond's right index finger capable of producing a representation of his fingerprints. "The only evidence that has been heard", he said "concerning the time when any replica was made is the red hand tendered at trial. It was made long after the appellants were arrested. This was conceded at the appeal by Peter's counsel. There is therefore no new evidence which would
PlT9/3/PLC 26/10/88 Mickelberg point to even a possibility that the fingerprint in
question was other than a mark made by Raymond's
natural finger''. Well, the concession was not that
there was no cast or replica seized but, simply, that
it was impossible to produce what was seized because
the police have never returned, what, on the evidence of
four witnesses, in fact, have been seized.
BRENNAN J: How were these things made? Is there evidence of it?
MR McCUSKER:
Yes, there is some evidence of it, Your Honour. I think it is in Raymond's evidence, Your Honour.
The
material which is used is a kind of a latex which is put
over the finger. The end result - I could perhaps provide Your Honours, to demonstrate more graphically,with
the end result of this particular method so Your Honours
could see for yourselves what it is.
There was the evidence of Mr Coulter, Your Honours,
which goes to the point. There were some rubber fingers
which were produced to the Court of Criminal Appeal
in order to demonstrate how life-like these casts
can be and perhaps Your Honours might care to see those
because they do demonstrate, very clearly, thetechnology and Your Honours would see the ridge marks
on the replica fingers. They are, I am instructed - I have not examined each one - of varying quality but
Your Honours can see that the technology is there and
the evidence which was given was clear and, indeed,
unchallengeable that a forgery could be made by this
means and that the technology existed in 1982.
MASON CJ: Mr Mccusker, we might adjourn now and we will resume at 2 o'clock.
AT 1.00 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.01 PM: MASON CJ: Yes, Mr Mccusker?
MR McCUSKER: If it please Your Honours. One of Your Honours asked before the luncheon adjournment if there was
evidence before the Court as to how these fingers were
made. There is, Your Honours. It is the evidence of
Mr Coulter and it appears, in particular, at pages 2070
to 2071. The procedure is quite a simple one and it
involves pouring a molten latex rubber solution over
the hand and letting it dry and having done that, to
use that as a mould and pour silicone rubber into
the mould and from that one simply takes away the latex
PlT9/4/PLC 169 26/10/88 Mickelberg rubber and one is left with a proper rubber hand.
From there, as Mr Coulter said, the graduation is to metal and there was a metal hand seized and, indeed,
was part of the exhibits before the court.
Your Honours, in subground (q), I do not think
I have quite dealt with that point: the evidence
that there were hands, replicas of Raymond, which were
seized. I should just explain the position there. The evidence was that Sheryl Mickelberg - that is
Raymond Mickelberg's wife - said that such hands were
seized on 15 July on the third raid, apparently, of that
day. Raymond Mickelberg said, also, to the same effect -
Peter Mickelberg. Now, Detective Tovey did not say that rubber hands were seized. He said "hands were seized" and that evidence from Detective Tovey appears
at page 348 and following in volume II of the
application book.
I refer to page 348 because at line E he is asked
specifically about the third time that they went back:
In the afternoon you came back a third
time?
And that goes over to page 349D where he is asked:
I think you picked up a brass hand at one
stage, did you not?---Yes; hands were
taken back to the office.
And to page 350:
You picked up the hand, you looked at it. Right?
---There were several hands there. I can't recall specifically picking one up and looking
at it.
Did you say to Peter, "What sort of a brother
have you? He makes hands, he seems to only make hands. He's got rubber hands, fingers.
All he ever seems to do is his own hand"?---No, I didn't say that.
And then at line C, page 350:
But you took the hands?---Yes.
So that clearly related to the events of 15 July. In
the Court of Appeal Detective Tovey said that he had
been confused when he gave that evidence and that he was intending to refer to a later date, 26 July, I
think it was. However, in the sequence of that evidence,
at page 351B he was asked under cross-examination,
after those events:
PlT9/5/PLC 26/10/88 Mickel berg When was the next time you saw Peter Mickelberg? -
the next day?---On the 16th July; yes.
So there could be little room, we would have thought,
for confusion on that. In any event, the sum total of
the evidence, quite clearly, was that there were hands
seized and, on the evidence, quite clearly, of the
three witnesses I have mentioned, the Mickelbergs, they
were rubber hands that were seized.
| T9 | Subgrounds (r) and (s), Your Honours, I have |
already dealt with. Subground (r) has been deal~ with; (s) is already dealt with. Turning to (t): the evidence
there - Mr Justice Olney, in his reasons at page 3123D
in volume XIII, dealing with the question of the
occupation of a unit in Rupert Street, Subiaco, which,
on the Crown's hypothesis, was used as part of the mint
swindle, referring to answers said to have been given
by the accused, Peter Michelberg, said:
Whether or not Peter made those responses
to Round was an issue before the jury and
the new evidence can have no bearing uponthe jury's assessment of that evidence.
Now, the responses allegedly given by Peter to Round appear at the previous page of His Honour's reasons -
3122D toe. His Honour says:
In the course of this conversation the following
exchange took place -
that is between Peter and Detective Round -
I sald, "Did you ever live at the unit with
anybody?" He said, "No".
I said, "The neighbours said you were hardly
ever there but the lights used to be on at
the place". He said, "Yes. Ray gave me one
of those time switches that put the lights on
and off so it would look like someone was
living there." Now, that evidence, in effect, had possibly a twofold result: that, first, it was evidence from which some form of admission was sought to be derived, that is, an
admission, at least, that the unit was not being occupied
from which the inference was sought to be drawn that itwas used for the purpose of the crime and, second, it
was intended to be used as evidence - well, perhaps I
should put it this way: it could have been looked on
by the jury, unless properly instructed, that it was
evidence that the neighbours had, in fact, said that
Peter Mickelberg was hardly ever there. But there was
no evidence that any neighbour had, in fact, said such
a thing and, indeed, the fresh evidence or the new
evidence that was before the Court of Criminal Appeal,
PlTl0{l/PLC 26/10/88 Micke berg from a number of witnesses, was that Peter, indeed,
contrary to the alleged admissions, was in occupation
of that unit and it would not be correct for him to
have admitted, if he did - and he denied that - that
he never lived at the unit with anybody because the
contrary was factually the case. The evidence
that I have referred to Your Honours is that a Mr·s Rebarkus who was a neighbour, at page 3577;
a Pauline Lee, a real estate agent, at page 1261,
and there is also an exhibit, page 289, that is
relevant to this.
Now, all of that evidence, without going into it
in detail, was referred to by His Honour Mr Justice Olney
as having no bearing upon the jury's assessment of the
evidence given by Round. But the submission is that it clearly would have had a bearing on both of the
possible twofold effects of the evidence given by Round. It
would have cast doubt on the very evidence that Round gave
as to Peter's alleged admissions in response.
Turning to subground (u), Your Honours,
His Honour Mr Justice Olney referred to allegations which were made, as he put it, against Arpad Security Pty Ltd and Bacskai, who was the proprietor or the managing
director, perhaps more accurately, of that company.
Arpad was the security firm, a representative of which
arrived to take custody or control of the gold until
Mr Duvnjak, the courier, took it out to Jandakot airport.
I think I made an error yesterday, Your Honours, when I referred to Mr Duvnjak's evidence being that he was
given to understand that it was insurance documents.
It was not that. The evidence of Duvnjak was that he was given to understand that it was mining tools and
equipmenE. He might have thought it was somewhat heavy if it was insurance papers. His evidence was that he
was told it was mining tools.
If I could make the short point, Your _Honour, there
that on all of the facts before the Court, drawing
inferences from those facts would lead more compellinglyto a conclusion - and we do not for a moment suggest this
is a conclusion that must be drawn - more compellingly to a conclusion that Arpad was in some way involved
rather than Peter- and that is the short point to
be made there. Grounds 5 and 6, Your Honours, deal with the rather unusual situation where the solicitor for
both Peter and Raymond was actually called by the Crown
to give evidence before the Court of Criminal Appeal and
did so, and in doing so referred to the tape and his
suspicions. Now, I said this morning and I repeat that I was in error in saying that his evidence was that the
Hancock tape had been, in his opinion, a fabrication.
He did not, in fact, say that by identifying the tape.
He said that he had had a tape given to him, he hadplayed it and he had reached a conclusion on the basis
of which he made a decision not to produce the tape in
evidence; that it was not authentic. He did not,
PlTl0/2/HS 172 26/10/88 Mickel berg it is true, actually identify the tape 1n
question as being the Hancock tape.
TOOHEY J: Mr McCusker, was objection taken to Mr Cannon giving evidence?
MR McCUSKER: Yes, very strong objection, Your Honour, but ·that objection was overruled by the Court of Criminal
Appeal.
DEANE J: If you make good this ground, what do you ask us to do about it?
MR McCUSKER: We say that there has simply been a miscarriage before the Court of Criminal Appeal. It is one of the
factors. We do not say that on that ground alone this Court would necessarily determine that the
Court of Criminal Appeal had erred.
DEANE J: Send it back to the Court of Criminal Appeal?
MR McCUSKER: If it were that alone, Your Honour, yes. At page 2405, Your Honours, at volume X the matter was
raised where Mr McKechnie said:
I am conscious that Raymond Mickelberg may not be said to have waived privilege, and I do not have an affidavit or a statement from Mr Cannon. I have certainly discussed the
matter with him, and he has indicated to me
orally -
that is Mr Cannon -
that there are some areas of privilege,
but the areas upon which I have cross-
examined and therefore have given notice
to both counsel -
by which he means cross-examinedPeter Mickelberg -
he cross-examined Peter Mickelberg on the alleged
denied that there was anything false about it -falsification of the tape. Peter Mickelberg had and therefore have given notice - he said by virtue of such cross-examination -
to both counsel at the bar table, are
areas which he has not regarded as within
privilege, and has therefore disclosed
them to me for those reasons and I have
cross-examined on them.
So that was the proposition that was put, and at
page 2408 in the same volume Mr Cannon then gave evidence
regarding the tape and he sai4 at lines C to~ that
he had:
PlTl0/3/HS 173 26/10/88 Mickel berg instructed the Mickelbergs to tape any
conversation when the police visited.
Peter Mickelberg brought in a tape to me
and a big machine. I am completely useless at operating machines; I am Irish, I can
hardly switch on and off the light. I told him that he could play the tape to me because I would not be able to work the
machine. He played the tape to me ..... I thought the tape was too good to be true.
I do not know, Your Honours, what being Irish has
to do, incidentally, with lack of facility with
machines, but he saw some, no doubt.
DEANE J: Was that objected to? MR McCUSKER: What part? DEANE J: Was any of this evidence objected to? MR McCUSKER: In its entirety, Your Honour, yes. DEANE J: Except if you look at the basis on which it was admitted, the presiding judge said that objection
should be taken to specific evidence. That is at the
top of page 2406.
MR McCUSKER:
The objection which was taken was that all of the evidence proposed to be given was subject to
privilege. It would have been repetitious, in our
respectful submission, to have continually objected,and Mr Cannon said - - -
DEANE J: Well except that is just not so. I mean, the first two questions, for example, were not subject to
privilege and the presiding judge specifically said:
when areas of that evidence ..... be~ome
objectionable, we will listen to those
objections as they arise.
MR McCUSKER: Yes, Your Honour, except that, going back to page 2405, the areas on which it was proposed to lead
evidence from Mr Cannon had, as learned counsel for
the prosecution saw it, been signalled by the nature
of the cross-examination and that having been signalled
and the debate having taken place on that basis as to
the calling of Mr Cannon to give evidence of that nature
it would have been seen to be somewhat futile to objectto that kind of evidence being led. Peter Mickelberg
had already been cross-examined on these areas which
Mr Cannon then gave evidence upon, and it was clear,
in our submission - clear to counsel at least - that
the ruling by the court was that that area of
evidence could be led. He said on page 2408: In 1952 I was trained at the London School
of African and Oriental Studies in languages.
PlTl0/4/HS 174 26/10/88 Mickel berg
I listened to the tape. I was also trained as a musician when I was younger. 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
take place -
and so on. And at page 2445, that evidence having been given, at line B, Mr McKechnie said:
I do not seek to challenge the authenticity
of the tape because I have heard Detective - -
then Sergeant Hancock on his oath say that
that was his voice and that was the
conversation.
So that in the end the challenge that seems to have been
threatened was dropped and.Detective Sergeant Hancock
was not called to give evidence and there was no
challenge to the authenticity of the tape.
DEANE J: But really, are we not reaching a slightly absurd
stage here? I mean, your complaint is that you should have been allowed to use the tape and rely on
the tape and that the Court of Criminal Appeal did not
pay enough attention to it. Now you are complaining that you were not allowed to conceal from the Court
of Appeal why it was that the legal representativedid not use the tape.
MR McCUSKER: No. I understand well the point Your Honour is making·,- but the proposition is not that. It is that
the Court of Criminal Appeal not only allowed Mr Cannon
to give the evidence but then placed some reliance
upon the evidence that was given seeming to take
the view that a considered decision had been made by
Peter Mickelberg, the applicant.
DEANE J: But you would have been a lot worse off if you had said to the Court of Appeal, "We won't te 11 you why it
is that the legal representative made the decision not
to use the tape".
MR McCUSKER: I think Your Honour is correct, yes. I will not
press that further. Your Honours, ground 7 I have already dealt with in the previous part of the outline
and ground 8 has already been dealt with, the question
of the visual identification. If I may turn to ground 9
which raises an issue of law,at page 15 of the outline:
the charge which Peter faced and on which he was convicted
was on indictment for conspiracy between himself,
Raymond and Brian. All three were convicted of that conspiracy. The conviction of Brian was quashed by the Court of Criminal Appeal in MICKELBERG V REG,
and I do not think Your Honours have a copy of that
decision, or if it is and it is like my copy, it is not
PlTl0/5/HS 175 26/10/88 Mickel berg
a very good one. Without taking Your Honours in evidence against Brain, based essentially on equivocal alleged admissions, was simply insufficient and it was
detail to the reasons given by the majority in that
case in the Court of Criminal Appeal the then
an unsafe and dangerous verdict and ought not to be
·allowed to stand. The evidence is summarized at
pages 199 to 202 of that report. The evidence ranged over both admissions and out-of-court lies said to
have been made the appellant, Brian Mickelberg.
That is referred to at page 199, line 15, but at
line 40 His Honour concluded that: ·
in the particular circumstances of iliis case
the out-of-court lies -
which had been made were -
not, either severally or in combination,
capable of giving rise to an inference that
the appellant had committed the offences of
which he was convicted.
They were out-of-court lies which dealt with matters
allegedly relevant to the mint swindle. The case presented to the jury, being a conspiracy charge,
was a case which embraced all of the evidence whichtended to implicate the accused in the conspiracy -
that is all three accused in the alleged conspiracy.
So far as Brian Mickelberg was concerned, one factor which was of importance was that he was a trained
pilot with access to aircraft and who frequented
Jandakot as part of his duties as a pilot. That factor, put before the jury, was calculated to have
played, in our submission, a fairly important part in
their consideration of whether or not there was a
conspiracy as alleged.What I am putting to Your Honours is that this is a case where the involvement of Brian in the alleged
of whether or not the conspiracy did exist, based as it conspiracy was likely to have been considered by the jury as an important factor in an ultimate determination
was on entirely circumstantial evidence. In our submission, what has occurred here is that - we put it on two bases; first, we say that Brian, Raymond and Peter were charged with a conspiracy between the three of them and once Brian was acquitted, then the conviction of Raymond and Peter was inconsistent with
that acquittal and could not stand. We realize, of course, that that raises a question as to the decision of this Court in DARBY's case as to whether what was said in DARBY's case in relation to a conspiracy between A and B where A is convicted but Bis acquitted - the High Court in DARBY's case did say, and I am
paraphrasing, it is not necessarily the case that A'sconviction is inconsistent with B's acquittal. It did not say, of course, that A's conviction must stand in
PlTl0/6/HS 176 26/10/88 Mickel berg such a circumstance. It depends upon the
circumstancesof the case.
The High Court in DARBY's case did not deal with the question of a conspiracy between A, Band C,
where C is acquitted and A and Bare convicted of a
-~onspiracy between all three of them and
Mr Justice Murphy, although of course he was
dissenting in DARBY's case, expressed his view that in
such circumstances - this was at page 679 of the report -
that where you have a charge of conspiracy against A,
Band C, and C is acquitted, then the conviction of
A and Bon that charge cannot stand.
BRENNAN J: What is the proposition for which you contend?
MR McCUSKER: We put it on two bases, Your Honour. We say, first, nothing that was said by Mr Justice Murphy
there at page 679 can be said to be clearly
inconsistent with what was said by the majority
because they were dealing with a two-person
conspiracy, not a three-person conspiracy. The judges in the Court of Criminal Appeal took the view
that the statement of the majority in DARBY's case
extended to three or more persons. We say that doesnot necessarily follow, but we say further that what
was said by the majority in DARBY' s case - and this
appears at page 678 - did not justify the approach
taken by the Court of Criminal Appeal in simply sayingwithout examining the circumstances, "Well, it doesn't
matter that Brian has been acquitted. The conviction
of the others,consistently with DARBY's case,will
stand".
(Continued on page 178)
PlTl0/7/HS 177 26/10/88 Mickel berg MR McCUSKER ( continuing) : What they should have done ·was
to examine the circumstances of the case and
Your Honours will see that there has been no
examination by the Court of Criminal Appeal of the
circumstances of this case to see whether, in all
the circumstances, the conviction of Raymond and
Peter may stand, notwithstanding the acquittal of
their alleged co-conspirator. The essence, of course, of this proposition is no mere academic
point or technical point. The very nature of conspiracy involves a meeting of the minds.
It is trite to say that but, in our submission,
the evil that is perceived or was perceived when
conspiracy charges were first introduced was a
combination so that the larger the combination then
the greater, perhaps, the evil. Now here we have an alleged combination of three but a conviction
of only two, charged with combining, as it were,
with a three-party conspiracy. And we say that ought not to stand as a matter of principle and any
conspiring with themselves and another, where the
other is acquitted, ought generally not to stand.conviction of two persons who are charged with stand because it is a different conspiracy. It
could - - -
BRENNAN J: How do you identify the conspiracy, by reference to the names of the conspirators or the subject-matter
of the agreement?
MR McCUSKER: Both, Your Honour; bot~ in our submission. Not so much, perhaps, the names as the numbers. But
the combination, the meeting of a number of minds, being the evil that is perceived or was perceived,
then the larger the combination - well, the more
different and perhaps more heinous the offence that
is alleged. A conspiracy between A and B would be quite different in quality from a conspiracy between
A, B, C, D and so on. But in any event - - -
DEANE J: That might be so when the evidence against all three is identical, but how can it be so when the
evidence against the alleged conspirators is quite
different?
MR McCUSKER: Your Honour, there could be a case, perhaps, where there is a charge of conspiracy against A, B
and C. A admits the conspiracy as charged, that between himself,B and C and so does B, but C denies
it and is acquitted. In those circumstances - - -
DEANE J: Let us presume A and b plead guilty?
MR McCUSKER: Yes, they plead guilty and C defends and is acquitted, then if the principle in DARBY's case
PlTll/1/SR 178 26/10/88 Mickel berg stated by the majority extends to that situation
then in those circumstances the conviction could stand
because they have admitted and they could be tried
separately so that you - - -
DEANE J: What say, A does not plead guilty but has confessed
-~nd does not dispute his confession?MR McCUSKER: Quite. In those circumstances, arguably - we
do not concede it but, arguably, the conviction
could stand because he has admitted the conspiracy
as charged. But here if the meagre evidence against Peter is examined, there is no basis upon which it could be said that he has admitted, by act or word,
a conspiracy between himself, Raymond and Brian.
And that was the charge; Brian has been acquitted
of the charge, the circumstances of the case were
such that although evidence against each was different,
as Your Honour rightly suggests, the circumstances
were such that Brian's involvement is likely to
have played a considerable part in the jury's overall
view of the case. And it is the overall view that the jury is invited to take in a case of a conspiracy
and,indeed,one based on circumstantial evidence.
Now what we have is an entirely different case if
we take out of the evidence evidence that Brian was
a pilot at Jandakot and is in some way privy to
the alleged swindle. In other words - - -
BRENNAN J: Why do you take it out of the evidence? MR McCUSKER:
It is only evidence against Brian in the event and he is - - -
BRENNAN J: Why is that? MR McCUSKER: Your Honours, because things said by Brian, for example, could not be evidence agai~st Peter
and Raymond. Things done by Brian,or perhaps
Brian's status,might be viewed by the jury in an
entirely different way if there is no suggestion
that he is a party to the conspiracy, he is innocent of any alleged conspiracy, from a
situation where he is alleged to be part of the
conspiracy, in part by reason of the so-called
admissions.
BRENNAN J:
Is not the question whether or not, as against Peter, there is evidence that Raymond and Brian
were parties to a conspiracy with him?
MR McCUSKER: Yes, it is,and where is the evidence? And we would say there is none.
BRENNAN J: That is another point, is it not?
MR McCUSKER:
Yes. Your Honour, with respect, is quite correct, but that really is the issue:was there any
evidence as against Peter.
PlTll/2/SR 179 26/10/88 Mickelberg
BRENNAN J:
Now that comes to another point, does it not? Let us assume that there is no evidence admissible
against Peter, that Brian was a party to the
conspiracy to swindle. In those circumstances,your argument is that you cannot therefore convict Peter of that conspiracy? MR McCUSKER: Yes, Your Honour. BRENNAN J: But if you identify the conspiracy as a conspiracy
to swindle the mint and that there were conspirators consisting of Peter and others, then, of course, the question is a somewhat different one?
MR McCUSKER: Yes, it is. That was not, however, the charge, of course.
BRENNAN J: It depends how you construe the charge?
MR McCUSKER: Yes, well that, I suppose, raises the question, Your Honour, as to whether a conspiracy between
A and B is the same as a conspiracy between
A, B and C so long as the object is the same.
BRENNAN J: There never is a conspiracy between A and E,
simplicitor, it is a conspiracy between A and B to do something.
MR McCUSKER: Yes, I meant that, Your Honour. A conspiracy between A and B to swindle the mint is the
same as a conspiracy between A, ·n and ·c to
swindle the mint, that is really the question.
In our submission it simply could not be the same,
it is a different conspiracy.
BRENNAN J: Now have you any authority that deals with that? MR McCUSKER: Your Honour, some authority to that effect is referred to by Mr Justice Murphy in his dissenting
judgment -dissenting but not on this issue - in
REG V DARBY at page 679. The issue,as I apprehended upon which Justice Murphy differed from the majority, was his view as to the effect of an acquittal saying that on
a verdict of an acquittal or a quashing of a
conviction meant that the person was innocent. If
he was innocent of the conspiracy alleged against
him, conspiracy with others named, then so must
the others be and it is a fundamental proposition,
Your Honour, which the majority, amongst whom,
of course, was Your Honour Mr Justice Brennan,did not seem to differ because at page 678 it was put
not in terms that the conviction would necessarilystand, but rather that it:
may stand ..... unless in all the circumstances
of the case his conviction is inconsistent
with the acquittal of the other person.
PlTll/3/SR 180 26/10/88 Mickelberg And that, I would take to be, with respect, a tacit
admission of what has long been, I think, accepted
that it is a different conspiracy, although there
may be cases, because of, for example, a confession
by A that he conspired with B and C that
mean that his conviction may stand notwithstanding
. the acquittal of C , but this is not such a case. There is nowhere in the material anything from
which one could conclude, taking the prosecution
case at its highest against Peter, that Peter was admitting to a conspiracy between himself and his
brothers,Raymond and Brian.
GAUDRON J: Mr Mccusker, if you concede that in the face of evidence of a confession of the conspiracy
the guilty verdict can stand, it must be becauseof the evidence available and the question of
inconsistency of verdicts must be irrelevant, is
that net so?
MR McCUSKER: We do not concede that the conviction must stand or should stand, of course, we are arguing to
the contrary.
GAUDRON J: No, what I am suggesting is the critical
consideration is sufficiency of evidence and the
consideration of inconsistent verdicts is irrelevant?
MR McCUSKER: The majority in DARBY's case do not appear to have taken that view.
GAUDRON J: No, but I am asking you on your concession? MR McCUSKER: I am not making that concession, Your Honour. In our submission, just as a matter of principle,
and we adopt, with respect, Mr Justice Murphy's
approach to this which we say is totally orthodoxand well accepted and well entrenched in the law,
the High Court in taking the approach it did in
DARBY's case departed from an established approach
but did not depart so far as to run counter to
Mr Justice Murphy's statement of the law that if you have a conspiracy charge between A, B and
C · that is a different conspiracy from one between
·A and B or B and ·c or A and C, the
various possible combinations.
BRENNAN J: Is this not the subject that was discussed in
GERAKITEYS?
MR McCUSKER: It was, yes, Your Honour, yes.
BRENNAN J: How does your argument sit with that? MR McCUSKER: In our submission, there is nothing in
GERAKITEYS which is in any way inconsistent. I refer to that at page 17 of my outline, Your Honour.
PlTll/4/SR 181 26/10/88 Mickelberg There is nothing in the proposition I am advancing
which is in any way inconsistent with GERAKITEYS
and the approach there taken. Corning back to Your Honour Justice Gaudron's point about insufficiency
of evidence~ ~rtainly that is a relevant consideration,
we must accept, in the case of a two-person
. conspiracy because then the question is, despite the acquittal of ·A may B's conviction stand
because there is evidence in any event that B
conspired with A as for example an admission. But there is no such evidence at all and the Court of
Criminal Appeal failed, with great respect, to.analyse
what the majority of this Court said in DARBY's case.
It was not said in DARBY's case that you do not
examine critically the basis upon which the conviction
of A is to stand. The implication is tha~ indeed,
there must be an examination to see if it is
inconsistent. The Court of Criminal Appeal seems to have taken the approach that there is nothing inconsistent as a broad inflexible proposition.
GAUDRON J: You say that inconsistency arises by virtue of
the innocence of one of the named conspirators and
that is the only inconsistency?:MR McCUSKER: No, Your Honour, we say there are two inconsistencies, because it is a three-person conspiracy. If Brian is acquitted then we say, adopting the approach of
Mr Justice Murphy, the conviction of the other two
cannot stand, it is a different conspiracy from that
charged. But we say if the principle in DARBY's
case extends to a three-person conspiracy, which wasnot decided there, then looking to the circumstances
of the-·case, we say that here the conviction of
Peter cannot stand consistently with the acquittal
of the brother, Brian. And, of course, it was not
simply a question that was put as to sufficiency
of evidence at page 678 in DARBY's case by the
majority of the Court. It was not confined to that,
it was a question of whether, in the circumstancesof the case,the conviction was inconsistent with the
acquittal of the co-conspirator.
GAUDRON J: Where does that sort of inconsistency come in? :MR McCUSKER: In this way - I have already dealt with the first proposition, which is really a matter of
principle, but the second is that there is noevidence at all capable of giving rise to an
inference that Peter conspired with Brian and Raymond.
And the second is that the cas~ as it was fough 4
was a conspiracy between all three and Brian's
involvement in the alleged conspiracy, that is the, as
it were, capacity of that combination to achieve
the result that the gold disappeared from Jandakot
airport must have loomed large in the consideration
of the jury when considering its verdict. Just as
PlTll/5/SR 182 26/10/88 Mickel berg the capacity of Raymond Mickelberg to purchase
gold from the mint was said by the Court of Criminal
Appeal, and Peter's past experience in purchasing
gold from the mint was said to be in some way
relevant to the jury's consideration leading to
inferences, so was the fact that Brian was a pilot
-and operated from Jandakot. The other two were not, they did not operate from Jandakot, so that
was the connection and we would say that looking
at all the circumstances of the case, the
conviction of a charge of conspiracy with his
brother Brian could not stand. And we say that that was brought before the Court of Criminal Appeal on
the basis that that was of itself new evidence,
that is the acquittal of Brian as, indeed,it was
because it had not occurred at the trial.
Your Honour Mr Justice Brennan, I think, asked for
some authority on the point too: PLUMBER's case, RV PLUMBER was one of the decisions, I do not have
at the moment the reference. REG V PHIL MARIA
(1957) St R Qd 152 has some bearing on this issue
of the importance, in a converse way,and THOMPSON's
case an old decision. Your Honours I do not think I have the correct reference there to THOMPSON's case, I will arrange through the associates to
let you have it. They are in fact referred to, Your Honours, in the course of the reasons given
by the majority, as well as Mr Justice Murphy in
REG V DARBY and it is acknowledged there that the
step being taken by the majority was contrary to a
well-established line of authority. And the question is how far that step is to go, but what is
clear is that it did not go far as saying that the
conviction stands regardless of the circumstance
of the case. And we say the circumstances here are such that the conviction of Peter is inconsistent
with the acquittal of Brian because for one reason-
not the only reason- Your Honour, but for one reason,
there is simply insufficient evidence left as
against Peter to establish a conspiracy with Brian
and Raymond.
BRENNAN J: What do you say to the proposition that on a true construction of the indictment the conspiracy
is to be treated as a conspiracy to swindle- I am
using now, of course, an abbreviation- and thatthe parties to that conspiracy were A, B and C ,
so that you can quit or convict as many as you
wish, but the relevant conspiracy is identified by
reference to its object?
MR McCUSKER: That is on the basis of not the wording of the
indictment but on a construction of it, the parties
are irrelevant to it. That would run counter to allestablished authority, Your Honour, in my submission, and it would indeed run counter to the basic premise behind charges of conspiracy, and that is that the combination of these minds that is important.
PlTll/6/SR 183 26/10/88 Mickelberg One could have, of course, a charge of conspiracy
between A and a person unknown, that is
well established, but the person unknown must at some
point of time be identified, not by name, but by
at least some feature which shows that the person
did exist. For example -
BRENNAN J·: Well you must prove the agreement has the gist
of the offence.
MR McCUSKER: Yes, you cannot agree with yourself and it must be shown that there is some person who is.
identifiable in some manner. So if the charge were with a person unknown and the identification was a
man with a particular accent who rang from a hotelin Hong Kong or whatever it might be,that would
be one means of identifying the conspiracy. But to simply say, with a person unknoT•7!1 and never get
anywhere except to show that ·A did certain
things without in any way identifying with whom
he agreed, is to charge a substantive offence underthe guise of a conspiracy.
(Continued on page 185)
PlTll/7/SR 184 26/10/88 Mickelberg BRENNAN J: This seems to me that if you charge a conspiracy
of Raymond,Peter and Brian to swindle the mint
and then you do not prove as against Brian, that
he swindled the mint or agreed to swindle the mint,
but you do prove that the other two agreed to swindle
the mint, your argument, with each other - - -
MR McCUSKER: Yes. BRENNAN J: --- - your argu:rrent is, as I understand it, that there
has to be an acquittal on that indictment.
MR McCUSKER: Yes, Your Honour, yes. There could be an alternative charge, perhaps, or they could be
reindicted on a charge of conspiring with each other,
but they cannot be convicted of conspiring with Brian.
BRENNAN J: Yes, you may be right but the implication of it is that the permutations and combinations ought to be
pleaded in the alternative by every prudent prosecutor.
MR McCUSKER: Well, that is a matter for the prosecuting
authorities.
BRENNAN J: Yes. MR McCUSKER: One might, perhaps, comment that prudent
prosecutors may resile from charging so frequently
with conspiracy rather than the substantive offencesand, despite the observation of this Court as, for example, in HOAR's case, this, of course, as Your Honours will have noted, was a case where the accused were charged with both the conspiracy and the substantive offences and, indeed, were convicted and sentenced to very heavy terms of imprisonment on both the conspiracy and the substantive offences -
separately charged. So that as a matter of principle, approaching this from any viewpoint, there is nothing contrary to principle, but everything in accord with principle in saying if you charge a conspiracy between A, Band C, that is what you must prove, and
an agreement between A and B alone; it is a different it is not sufficient to prove that after all, it was agreement. The essence, Your Honour -although the object
is an important part, in our submission, the essence
is clearly the meeting of minds and it is a question
of how many minds met;_ whose minds met. Their Honours
in the court below I have referred at paragraph 29
page 18 of my outline - Their Honours in the court
below did not deal with this matter in accordance withauthority but took a wrong view, in our submission,
of DARBY' s case.
Your Honours, ground 10 has already been dealt
with at length, the Talbot note question. Ground 11:
in our submission - -
GAUDRON J: Are you going back to ground 9?
P1Tl2/l/VH 185 26/10/88 Mickelberg MR McCUSKER: I did not intend to, Your Honour. I am certainly more than happy to do so if Your Honour
had any point that I may be able to assist you with.
GAUDRON J: No, no, I just - - -
MR McCUSKER: I did not want to take more than my fair share,
·which I have already taken, of the Court's time.
GAUDRON J: Yes, thank you.
MR McCUSKER: If there is any point that is troubling Your Honour, I would be happy to deal with it.
GAUDRON J: Well, what do you say is the consequence of your
assertion?
MR McCUSKER: We say that the conviction ought to be quashed. GAUDRON J: Which conviction? MR McCUSKER: The conviction of Peter. GAUDRON J: For what?
MR McCUSKER: On the conspiracy and from which it would follow, in our submission, that so should the
conviction on the substantive offences.
GAUDRON J: Well, I do not see why that would follow.
MR McCUSKER: Well, perhaps not necessarily. It does not
inevitably follow, but we. would - no, I accept
Your Honour's observation there; it would not
inevitably follow. But so far as a conspiracy
is concerned, the conviction ought to be quashed.
GAUDRON J: And what is the reason that producea that result? MR McCUSKER: Because there could be no conviction on a charge of conspiracy with Brian,in the circumstances
of this case, where Brian has been acquitted of
that charge. There is no evidence against Peter.
GAUDRON J: No, I am talking about ground 9, not ground 8. MR McCUSKER: I am sorry. Yes, the way that the grounds of appeal have been drawn - Your Honour is looking, I
take it, at ground 9 as it stood before the Court
of Criminal Appeal?
GAUDRON J: Well, I have got it in the application book.
MR McCUSKER: Yes, at page 12. GAUDRON J: Page 31. MR McCUSKER: Yes.
PlT12/2/VH 186 26/10/88 Mickel berg GAUDRON J: Aspects of which you touched on in passing,
it seemed to me.
MR McCUSKER: Yes, thank you, Your Honour. That, in fact, is a particular of ground 9, as it reads there.
If I could take Your Honour back to page 30, the
way that the grounds of appeal have been drawn,?~ound 9 is that Their Honours erred in law in
rejecting grounds 8 and 9 of the appellant's grounds
of appeal. The particulars of those two grounds are then set out, so we are dealing with particular 2.
GAUDRON J: Yes. MR McCUSKER: Can I just briefly mention, Your Honour, on that point, that this proposition is based on what
is seen to be the result in HOAR's case; that is,
that the Crown elected to present the conspirac·y
charge - well, elected, I should say, to present as the overt acts supporting the'conspiracy charge,
acts which were, in fact, the substantive matters
set out in the indictment and the proposition,
Your Honour, is simply this: that once the conspiracy
charge fails then so must the substantive charges.
I do not wish to pursue the argument further.
GAUDRON J: Yes, thank you.
MR McCUSK~R: Perhaps I could just mention that.
in the application book, volume XI, from page 2671 to 2673, that matter was raised before the Court of Criminal
Appeal·- that particular proposition, and I will simply adopt that argument without taking it further.
GAUDRON J: Yes. BRENNAN J: Mr Mccusker, have the provisions of section 16 of the CRIMINAL CODE ever fallen for consideration
in the context of a conviction for conspiracy andfor a substantive offence?
MR McCUSKER: I cannot readily assist Your Honour on that. Peter Mickelberg's case: -I am told by my learned
friend, Mr McKechnie, - my learned friend, Mr McKechnie, tells me that it was considered in
Peter Mickelberg's case on the question of sentence.
I prefer not to attempt to assist you further at
this stage but perhaps I can gain some further
information. I am not familiar with it.
BRENNAN J: Well, perhaps you might - yes.
MR McCUSKER: If I could turn, Your Honours, to ground 11.
His Honour Mr Justice Olney referred to the conversations
deposed to by the several police officers as being,
if accepted by the jury, a tacit admission of the
involvement of the accused. In our submission, that
is not so; that, at best, they are equivocal statements
which, in the circumstances in which the accused,
P1T12/3/VH 187 26/10/88 Mickel berg Peter Mickelberg, was placed, are equally capable
of giving rise to inferences consistent with innocence.As, for example, to take but one of the many matters that is said to be an admission, when told that he had been
identified by the Allens as the purchaser of their
car, "So what, if I bought the car?" It is an
·inquiry which is totally equivocal. Can I just mention the pages, Your Honour, without taking you
to them? There were three alleged confessional
statements. The first I have mentioned in some detail,
16 July reverse identification was put_, when Mr Henry is supposed to have not recognized Peter
but Peter is supposed to have broken down thinking he had been recognized. 26 July is the major confession said to have taken place at the Belmont police station
in the presence of Detectives Hancock and Lewandowski, and 23 September 1982, before Detective Tovey. I will
simply give Your Honour the page references for those:
volume II,page 269, page 372 for the major confessional
statement, and page 340 for the one of 23 September.A consideration of those alleged admissions, in our
submission, would show that they are entirely
equivocal in any event.
The evidence of Walsh was referred to in ground 12,
Your Honours. It appears at page 3541 in the
supplementary book, volume V, and over to the next
page, and it concerns, if I may explain it, evidence
that Mr Walsh gave of a meeting between himself and
Lewandowski and others. some considerable time later,
that is, after the conviction, in a hotel. Now,
Mr Walsh gave evidence that he knew that Lewandowski
was a policeman, and it should be said at once that
Mr Walsh was shown to be a person who had been
previously a member of the Victorian Police Force and
had certainly - I think he had falsified claims for
expenses whilst in the force; he had also had some
dispute with a member of the police force there,
and there matters which undoubtedly would have gone
to his credit had he given the evidence before a
jury that he did. But the evidence which he gave,
which appears at page 3541, was of a conversation in the course of which, at page 3542. A to B
he referred to Detective Hancock and himself ashaving:
"stitched them up properly -
referring to the Mickelbergs -
when he fixes a brief it stays fixed - "
he said and, a little later, that same page, line D:
I said to him -
this is Walsh -
P1Tl2/4/VH 188 26/10/88 Mickel berg "Who dropped the brick in the fingerprint
evidence?"
the meaning of which, after some discussion, was
clarified at page 3543A to be:
Who fabricated evidence?"
I will not take in detail, Your Honour - simply this: that was evidence which was capable of giving rise
to an inference, or, at least, I should say, raising
a serious doubt as to the authenticity of the Hancocktape and it ought not to have been simply rejected,
as it was by the Court of Criminal Appeal as being
evidence which was not capable of belief and not
capable of giving rise to such a doubt. The court ought to have considered the cumulative effect of the evidence rather than considering, as it were, piecemeal.
The approach which was taken by Mr Justice Wallace -
I am referring to paragraph 33 of the outline -was
wrong in that he said, at page 3046B:
I would prefer Lewandowski's word to that
of Walsh.
And he also said his word could not possibly be
accepted. The reasons he gave for that, in our submission, are. certainly reasons that could be
advanced to a jury but not of themselves sufficient
to render. Walsh's evidence simply incapable of
causin& serious doubt to be raised. Again,
Mr Justice Olney referred to this evidence as being
quite innocent in its explanation and, again, in our
submission, that was a matter for the jury to consider.
May it please Your Honours, they are the submissions for the applicant, and I thank you for your patient
hearing. Unless there is anything further you wish
me to address on - - -
MASON CJ: Yes, thank you, ,Mr Mccusker. Now, Mr Wallwork, before
we call on Mr McKechnie, do you wish to address any additional argument to the Court on its power
to received fresh evidence, particularly in reJ.ation
to the concession on which you are asking the CJurt
to Act.
MR WALLWORK: Yes, Your Honour, but it will only be very brief. Your Honour, I found the same authorities, of course.
They were referred to in the latest decision of this
Court which my learned friend has referred to, where
Sir Garfield Barwick, giving the ·
joint judgment of the Court, said that he did notintend to depart ~he long-established practice
whereby this Court had not admitL~d that kind of
evidence before. However, there do not appear to be any more recent authorities than that from this
High Court, but I would like to just refer to the
P1Tl2/5/VH 189 26/10/88 Mickel berg decision which my learned friend has already referred
to. I had a different report and I have not got photocopies, but I would supply them to the Court.
If I can just say what Lord Pearce said in
MURPHY V STONEWALLWORK, and I am referring to
(1969) 1 WLR 1028. I. that case, giving his ·judgment in the House of Lords, Lord Pearce said:
Thus, in normal circumstances there are two
stages in the finality of a judgment. First,
during the time within which an appeal may
be launched, it is final, subject only to a·nappeal which in normal circumstances can only
be allowed if there is some error in the
adjudication on the evidence produced at the
trial. There is, however, a discretion to allow
fresh evidence if the unusual circumstances
justify it. Secondly, after the time for
appeal has expired, the judgment is final,without
recourse to appeal. Even then the appellate court has a discretion to re-open the matter
on fresh evidence if the particular exigenciesof justice clearly outweigh the general
undesirability of doing so.
And, of course, the general undesirability of not re-opening has been always been this question of
finality of matters before the courts, and if I may
just interpolate here to say that it would be, in
our submission, a thing which this Court which is
ultimately responsible for the administration of
justice in this sense in Australia, would not be
likely to allow to happen if it were the fact that
you came to the view that there was a chance that a jury , properly directed, might reasonabl v acquit in accord
with the dicta in MRAZ' case and WHITEHORN' s
case and the cases following on those. If it were the fact that you came to the view that there had been
a serious error in the presentation of the Crm..m
evidence in this matter against the three men at
exceptional circumstance, where a court, in this the time, then it would, in our submission, be an case, the High Court, which is not precluded from hearing fresh evidence, would interfer. That would be our submission; that it ought to be interfere rather than in Raymond's case, for whom we appear, allow him to remain in gaol on this sentence that he has got; it could not happen, with respect. The only alternative he has got, if this Court
did not interfere, is for the government to make
some order quashing the conviction or quashing thesentence and the Attorney-General in this State has already indicated he was not prepared to refer it
back to the C'.)urt. So his really only avenue, subject to any directions you might give, which have been referred to earlier today, is to come here, and that is why, of course, this application was made.
P1Tl2/6/VH 190 26/10/88 Mickel berg But if I may, there was a little bit more said
about when this would be done. Lord Pearce said: The appellant comes to your Lordships' House
during the first stage, having launched his appeal within the time allowed. The burden
on him is,therefore, less severe than it would
have been had he come later. Even if the appellant cannot say that the entire responsibility for
the erroneous assumption of the Court of Appeal
lies on the resp.ondents since the question could
have been specifically raised by either side,
yet the appellant, like the court, was acting
reasonably throughout.
And that is a very important consideration in this case.
It is submitted that Raymond Mickelberg, in particular, is not responsible for the misleading evidence which
we claim was led at the trial in the form of the - to paraphrase it - the pin-holes and the fact that
the print was not there when it was said it was there -
et cetera, which is set out. That was the Crown
responsibility.
(Continued on page 192)
PlT12/7/VH 191 26/10/88 Mickel berg MR WALLWORK (continuing): If the Crown chooses to
mount a case against an accused person and
fails or, in this case, misleads the jury, it
cannot ever be the responsibility of the appellant
because he cannot prove himself innocent if he
. does not know what.has happened and this is the
case now. That is a very, very important consideration and it was referred to at another
place in this case. If I may refer to Lord Upjohn's
judgment at page 1030. He said: Thus the basis of the judgment of the
Court of Appeal was falsified, however
innocently, by the conduct of the
respondents -
and we say here and it has never been Raymond's
case that he can establish forgery - or the other
word for it - of .. this fingerprint. He just says,
"I don't know how this fingerprint got there.
You've set out to prove its mine". It has not been proved beyond a reasonable doubt and Raymond
does not have to prove to be acquitted of this
charge, that the police forged this fingerprint.
He only has to raise a reasonable doubt in the
minds of the jury.
MASON CJ: Yes, but I think you are covering ground that has
already been covered, Mr Wallwork.
MR WALLWORK: Yes, I appreciate that, Your HonQur. I just wanted to make that point that they did, in this House of Lords
decision, place a considerable amount of stress on
the relative innocence of the parties where theexceptional circumstances would be brought in and
I will not read it but - - -
TOOHEY J: Well, Mr Wallwork, there may he a problem here
which does not arise in the other jurisdictions.
There is a theme in some of the decisions of this
of the CONSTITUTION and that, to receive fresh appellate jurisdiction derives from section 73 Court, the earlier decisions, that the Court's evidence is, as it were, an exercise of original jurisdiction which may not be available to the Court.
MR WALLWORK: Yes, Your Honour, that has not been finally laid down,
in our submission, on the authorities in Auscralia
and I would submit that following this decision
in the House of Lords where the court said it
did have the power in exceptional circumstances
to admit fresh evidence, that this Court has notprecluded that in any of its decided cases so far.
I am aware of the dicta which has been cited by
both Mr McKechnie and my learned friend but it
does not seem, on the Australian authorities, to
PlT13/1 /SH 192 26/10/88 i.'-fickelberg have been precluded. It has never been said
this High Court, in no circumstances, will enter into an - or in no circumstances will entertain fresh evidence, as I understand it,
under the section. That is all I wish to say.
MASON CJ: Yes, thank you. MR WALLWORK: Thank you. MASON CJ: Yes, Mr McKechnie.
MR McKECHNIE: If Your Honours please - - -
MASON CJ: Now, perhaps I ought to say to you, at the outset, that the Court may not be able to conclude this
case in Perth, having regard to the very considerable
amount of time it has already taken. We will have to review the position at the end of this afternoon
but it may be that we should, tomorrow morning,
take up the remaining cases that are in the list otherwise, it is possible that they will not come
on at all. So that, in addressing us this afternoon, you might bear that possibility distinctly in mind.
MR McKECHNIE: Thank you, Your Honour. Could I hand to Your Honour's the respondent's sunnnary of argument
in relation to Raymond Mickelberg. Bearing
distinctly in mind the warning given by
Your Honour, could I nevertheless just commenceby reminding Your Honours of what were the issues
in the Court of Criminal Appeal and how the matter
arrived there.
In the case of the applicant, Raymond Mickelberg,
it arrived, as it were, on appeal although well out
of time, leave having been given, no appeal ever
having been mounted by him. In the case of the
applicant, Peter Mickelberg, he had appealed in
1983 and had had two appeals, one heard in 1983
and one heard in 1984. This was all part of the material before Their Honours. In his first
appeal, in 1983 - the judgment was given at the
same time as his brother and I will make reference
to that in due course - he had not appealed and
by his counsel had conceded that there was
sufficient evidence for his conviction on the
conspiracy and the three counts of false pretences
but had appealed against the conviction in relationto the two counts of arson and two counts of breaking
and entering.
He subsequently appealed,or sought to appeal, against all of his convictions.
Now, they may have
been barred but the court, nevertheless, heard him
and argument on it. I think he did it in uerson and raised at that time some fresh evidence,
PlT13/2/SH 193 26/10/88 Mickel berg including some evidence raised again on the
petition.
The records showed that in 1984 the
applicants, particularly Raymond Mickelberg
because the affidavits which are filed have
that heading, obtained affidavits from four
persons overseas deposing in varying degrees
to the fact that the crime mark on exhibit 7(ii)
was a forgery or was inconsistent with the natural
finger or consistent with a replica.
In 1985, again as the exhibits will show,
each of those four altered their views significantly.
Nevertheless, in 1987,the issues before the Court of
Criminal Appeal - and there were others - the
issues raised by the applicant, Peter Mickelberg,
amongst others, were these: that the crime mark
on the cheque was a forgery; that the sketch,
exhibit 21, was constructed by use of a passport photograph and those were issues,and much of the
time of the Court of Criminal Appeal was taken up
with those issues, although some of the other
matters to which my friend,Mr Mccusker, has made reference were certainly live and evidence taken
on them and many of the matters which my learned
friend now raises were not live before the
Court of Criminal Appeal and so it was somewhat
unusually but, in our respectful submission,
entirely and in accord with the authorities, that
the Court of Criminal Appeal embarked on an
exercise not as my learned friend keeps saying
to take evidence to see whether it was a juryquestion but to see whether the evidence was
cogent and compelling that, having regard to all
the matters: unfairness of the trial as a result
of fresh or new evidence, time, tactical decisions
made at trial, there ought to be a retrial and Their Honours unanimously held against each of
the applicants on the material they had heard and
on the other arguments. What stripped, really, we would submit, of
the rhetoric is essentially put, is not that this
case raises such special or unusual or differentquestions of law but, rather, that the Court of
Criminal Appeal in its decisions as to fact was
in error and I proposes for the rest of the afternoon
and hopefully, that is all, to go through the actual
evidence which we just point to to show that the
Court of Criminal Appeal decision was open to it.
The first matter which is raised and I will
come - - -
BRENNAN J: Before you go to that, could I just ask you, you
said that Peter Mickelberg, in his first appeal,
PlT13/3/SH 194 26/10/88 Mickel berg made concessions with respect to the sufficiency
of evidence.
MR McKECHNIE: His counsel did, Your Honour, and that appears conveniently in the judgment of His Honour
Mr Justice Wallace at page 2998 of volume XIII
when His Honour quoted - and I will, in due course,
hand to Your Honours the full decision:
"In deciding this appeal it is
important to appreciate that the appellant
was convicted of the conspiracy as charged
and of the commission of each of the offences
which were the offences agreed by the
conspiracy to be committed. There was
ample evidence to support those convictions and they are not challenged on appeal. And it was, in the course of the argument
addressed to us on the hearing of this
appeal, conceded and in my opinion rightlyconceded that there was evidence upon which the
jury could conclude, and I think safely and
beyond reasonable doubt conclude, that this
appellant entered into the conspiracy prior
to the 7th April 1982, and hence prior to
the date of the first count of breakingand entering and the first count of arson."
And that was all part of the record, part of the
whole case, that had been referred to the Court of
Criminal Appeal.
I-f I mie;ht turn, in broad terms, to the question
of the fabrication of the crime mark, working through
the summary of argument, and Your Honours have been
referred to some of the evidence of it, that
fabrication was never ever made an issue at trial.There was never any evidence raised of it and, indeed, at the passage which my learned friend
has already referred to, at page 717 of volume III,
repudiated by the applicant, Raymond Mickelberg. it was, in our respectful submission, expressly In the passage on that page, first of all, he is asked: What is the brass and the rubber hand all
about?
They were the hands tendered, exhibit A7, to which
I will refer later:
Sir, they are the objects, amone;st hundreds
of others, that were seized from my house.
Particular reference was made by Hancock
on, I think, 23rd September, from memory,
and by Tovey on the (I think) 15th as to
what a crazy hobby I had.
PlT13/4/SH 195 26/10/88 Mickelberg The implication being, from that and other
aspects and, particularly, where the hand had been tendered, which is in the same volume at
page 578,dealing with that hand. At page 577, he deals with the hand and then he is shown the
. brass hand by Mr Cannon:
That is the brass hand on which they were
commenting on the 23rd of 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.
Now, that hand is on the mantle and the implication is that the brass hand had been seized on 15 July and
returned at some date subsequent to that because
it was there on 23 July.
Had anything else been taken from :,OU 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 case in brass, bronze,
anything that was cast in rubber. There
was numerous things taken.
!-R 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 that was exhibit A7 which was admit-ted. So the clear - it is not said, of course, openly but the
clear implication of that evidence, in our submission,
is that the silicon hand which formed exhibit A7 had been at the house, had been taken, had been
returned and here, in court, it is and that
implication was never withdrawn or never explained
until Mr Cannon gave evidence, until subsequently
my learned friend, Mr Searle, conceded - and Peter
Mickelberg gave evidence before Mr Cannon - that
the hand had been manufactured at a later point in
time, indeed, it would appear just before the trialand after the visit of Mr Bardwell, the defence
fingerprint expert.
(Continued on page 191)
196
PlT13/5/SH 26/10/88 Mickel berg
MR McKECHNIE (continuing): So, to return to page 717, he was really given a comment in cross-examination
to comment on what the hands are doing, and what
their reference is in the trial, and finally
it says, at the bottom of the page, at E:
Not making any suggestion that the
police have used them in any way?
---I am not in a position to make
suggestions about things such as that.
Do you think they did?---I don't think
they did.
It could not have been clearer, Your Honours, that
at the trial the question of the fabrication of the
hand was not in issue between the parties.
BRENNAN J: By this time had Bardwell tried to produce an imprint from a hand?
MR McKECHNIE: Bardwell had tried to produce an imprint. The trial took place in February; Bardwell had
tried in January. He had been shown fingers, not
hands, and the fingers that he had been shown had
not been able to produce any imprint, although the
fingers that he was shown in 1985 were able to
produce good imprints, which is relevant to a
finding of Their Honours.
So that what the defence was, although
my learned friend Mr Wallwork has said that
Ray Mickelberg, he said, never handled the cheque
at that position but, given the repudiation of the
forgery, given no evidence of the fabrication,
given the circumstances of exhibit A7, one has
perhaps some sympathy with counsel: what is he
going to say to the jury? There is the cheque
with the applicant's fingerprint on it. It is not
forged; it is not handled. How did it get there? There really is only the third explanation. So, counsel at trial, Mr Cannon, if I can
take Your Honours to volume IV now, put what is
in reality the issues at the trial, about photographs
and when the photographs were taken and the significance
thereof. At 893 he says, and this is in the address of defence counsel to the jury:
That is Raymond Mickelberg's fingerprint.
You do not need to excercise your mind any further.
The only question now is how did
that print get on that cheque?
And that, indeed, was the question, and at 896 he
puts the defence, at line B:
PIT14/l/JM 197 26/10/88 Mickel berg
So he sent it off on 16th, got it
back on 26th and the fingerprint had
disappeared. The important point is
this: Raymond Mickelberg stated that he handled the WABS cheque on 15th July and, of course, that was the day he was
fingerprinted in full.
At page 897 he puts it even clearer - and I interpose
to say that it was the case, and defence made, properly,
much of it - that this cheque had not been photographed
between 22 June and 15 or 16 July, but at a point inanswer to Your Honour Mr Justice Deane's question
yesterday, there was no photograph, never was and
never has been a photograph which the Crown suggests
was taken pri9r to Raymond Mickelberg's apprehension.
So that put in a nutshell, at trial what was being
said was: there is no photograph prior to his being arrested and his fingerprint got on the cheque
as a result of handling when Hancock handed it to
him. And on appeal, it is really said there is
no photograph until he was arrested and until
rubber replica hands were seized. In either event,
the lack of photograph before remains a valid point
to be considered by the jury in combination with
the others. And the ti.ming of the photography of the
cheque to that respect matters not, because it isnot now, or ever been,suggested that there was a
photograph of the cheque prior to. But at page 897, line B, the defence suggestion is this:
Mickelberg's print was not on that
cheque on 22nd June 1982. It got there on-15th -
July, it should be -
and on 16th -
July -
it was circled and sent away to Dr Kobus. And that is what is said. At page 902, the third
reference, Your Honours, again at line B:
If they had his print on 23rd June the after the Mint job, why could they not
match them up with the 1975 prints?
I suggest to you that Det-Sgt Hancock's
attitude changed because he had handed
him the WABS cheque in such a way to
make sure that there was a good possibilityand probability that he had left a print
on that cheque. Then he took him upstairs and had him fingerprinted in full.
TOOHEY J: Mr McKechnie, how did that suggestion by counsel - the suggestion on page 897 - that the print got there
PIT14/2/JM '198 26/10/88 Mickelberg on 15 July, square with Raymond Mickelberg's own
evidence?
MR McKECHNIE: Well, Raymond Mickelberg's evidence,
Your Honour, on that point - could I take Your Honours
to two volumes: first of all the cross-examination
of.Hancock, which is volume II, page 419; and then
I will take Your Honours to - this is the
cross-examination of Hancock by Cannon:
He said -
that is referring to Raymond Mickelberg -
that you then said, "Take a look at this.
Anyone can see it is yours" and you shook from a plastic bag a cheque that had two
signatures on it. You have to speak because the nod is not recorded on the
cassette?---Sorry; no, that did not
happen.
Ray Mickelberg will state that he laughed
at you and said, looking at the cheque
that you had shaken out of the plastic bag,
"This is not my handwriting. I've never
seen it before."?---No, that is definitely
not right.
That, in fact, was the WABS cheque?---That
is ridiculous.
It was at that stage that he touched the
cheque, he inspected the cheque?---He never
saw the cheque. I never saw the cheque. He will say that you shook it out of a
plastic bag and showed him the two.
signatures and he actually handled the
cheque?---If he says that he is telling
lies. And that when this occurred he was shown
numerous other papers, cheques and photos?
That is the cross-examination of Hancock. The evidence of Raymond Mickelberg on the point, Your Honour,
appears at page 542 in volume III, in about line C:
He said ..... they could show me something
that even I would be able to see that I'd
signed it. He then shuffled through his documents and came up with something, shook
it out of a plastic bag and said, "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
PIT14/3/JM 199 26/10/88 Mickel berg mine; in fact, it was all scrawls. It
was not readable even. I put it back down. He showed me other documents -
and then he described that it looks like the WABS
che_que.
TOOHEY J: Well, thus far the submission, or the argument,
put by counsel does not bear a great deal of
relation to the evidence, and that is not your
problem, I appreciate.
MR McKECHNIE: That is not my problem, Your Honour, but Your Honour is right and Raymond Mickelberg is
cross-examined in the same volume on that point.
I should take Your Honours to page 715 and 716 where he was shown the cheque and he was asked
if he knew it was the WABS cheque. I might interpose to say that there were three cheques;
two were Perth Building Society cheques, which
were a different colour. The single blue one was the WABS, or WA Building Society cheque.
There is another part, which. I will
have to find, Your Honour, or have found, where
it is in cross-examination more specifically put
to him and he describes holding it by the corners,
and not where the actual mark is, but I will find
that reference for Your Honour.
But counsel is in a bit of a problem after
the cross-examination because there is raised, as
it were, i~ the evidence without explanation,
firstly of all this handling incident and, secondly,
the red hand, the inference being that it had been
taken by police and returned. And yet, if neither of
those are pursued in the evidence, then there isonly one other explanation for the mark. So what I am really simply saying to Your Honours is that
that was, in a sense, the issue at trial. No question
of fabrication or forgery. It is known now that the applicant had retained Mr Bardwell who had done
tests, and in fact the evidence went so far - and
I will come to it at.some other time - that Bardwell had
advised Raymond Mickelberg that forgeries could be
made and indeed it was no secret. There is no
fresh evidence that marks are capable of being forged;
that was well known. But the issue did not arise until
the affidavits, to which I will return.
Now, Your Honours, the first and essential
point in relation to the fingerprint evidence is
that it is said that there was fresh evidence and
yet before the Court of Criminal Appeal there was
no evidence that this mark was a forgery. Not one witness was prepared to say that it was a forgery. All the
witnesses could do, that is the witnesses called by the applicants, was to say that they could not tell.
PIT14/4/JM 200 26/10/88 Mickelberg Most of the witnesses called by the applicants
suffered from the disability,in terms of credibility,
of having said something earlier to the contrary.But at the appeal there was no evidence that this mark was a forgery.
BRENNAN J: Is that quite accurate, when one puts together
the denial by Raymond that he had handled the cheque?
I mean, what explanation is there, given that, but
forgery?
(Continued on page 20~
PIT14/S/JM 201 26/10/88 Mickel berg
MR McKECHNIE: Well, I take Your Honour's point. It is, I suppose, in that sense,silently raised if he
says, "I didn't handle the cheque" and it did
not get there in a criminal sense.
BRENNAN J: The contest is clearly drawn, I should have
thought. Once it is acknowledged that that is his fingerprint that has been photographed there
the next question, as everybody agrees, is how
did it get there? There are only two possibilities in kind as to how it got there. It was put there maliciously by those charged with the investigation
or it was put there by the accused in the course
of cormnitting the crime. He denies the guilty implication, they deny the other. That is the point, is it not, always has been?
MR McKECHNIE: In that point, Your Honour, yes, it is raised and in that point, I suppose, one might
say that it could be raised at the trial although
it never was in those terms and, as I say, when
asked about that he gave evidence that he did
not think that that was the explanation. So to that extent it is left. It relates to His Honour's
charge, the trial judge's charge, to which I willturn, but my point in relation to the Court of
Criminal Appeal is still, in my respectful
submission, valid, there is no evidence that it
was a forgery. It may have been an issue whether it was a forgery, the issue raised by the way
that Your Honour puts it, but there was no evidence
that it was a forgery.
DEANE J: But once that issue is raised evidence that it was a forgery would have been the desirable
evidence from the accused's point of view?
MR McKECHNIE: Yes. DEANE J: The next best thing would be evidence that it could
be a forgery and that was what the new evidence, led by the accused, did establish, if accepted? MR McKECHNIE: Two things to that, Your Honour: first of all, if accepted and, secondly, whether that
is really what it did establish, to which I will
have to take Your Honours to the evidence because,
in my submission, it does not establish even that.
While Your Honour says it is the next best thing the irmnediate question is, is it fresh? Is it fresh in the circumstances of this trial to then say, "It could be a forgery", and to bring
evidence from witnesses to say, "We cannot tell
whether it is a forgery or whether it is the
genuine print", which is the state of the evidence
of the Court of Criminal Appeal. Your Honours,
PlTlS/1/MB 202 26/10/88 Mickel berg will appreciate I am not only dealing with what
the Crown evidence in reply was but of the state
of the evidence that the applicants wereputting forward.
DEANE J: -- But to follow it through, once you move into
that area you then highlight the importance of the reliability of the prosecution evidence in
relation to the fingerprint and that, I presume,
is really where you are going?
MR McKECHNIE: Well, that is where we will get. It is a question of how you move into the area, though,
Your Honour, bearing in mind the way that the
trial was conducted and the issues - and I know
in a sense everything is an issue at a trial - but
bearing in mind the way that the trial wasconducted and the issues there raised still, in
my respectful submission, is a real question;
what is the fresh evidence of the Court of
Criminal Appeal? Simply evidence that the mark was capable of being fabricated is not, in my submission, sufficient.
DEANE J: But we have come to the stage now where a defence faced with straightforward evidence of a fingerprint that was photographed on the 15th and then sent away for checking and received back with no fingerprint visible, is now in a stage where we do not know what photographs were taken before it was sent. We have not any evidence of them. We know it was photographed after it
was received back at a stage when the Crowncase was that the person who presumably took the photograph says he could not see anything on it. Now, I might be wrong the way I am putting it to you, but it seems to me that you have to deal
with the proposition that that is a completelydifferent case to that which the defence had
to face and in the context of which it decided
not to raise the issue of forgery. Do not let me take you out of your course. MR McKECHNIE: There is one reference which I thought I had made and if I have not I will not detain
Your Honours to it. Just at the question, first of all, and it is only a minor point in what
Your Honour raises, as to whether the print had
disappeared: certainly, to Mr Henning, it had
disappeared. That is clear from the passage
that was quoted. However, in the same volume, volume I - - -
DEANE J: Yes, I have noticed what the Canberra expert had said about younger eyes being better, but
I might say without much sympathy, if I might
say so.
PlTlS/2/MB 203 26/10/88 Mickel berg MR McKECHNIE: Well, yes. He said at line Eon page 76: Let me explain; it is not actually
unusual for this thing to have disappeared.
You can see the outline, you can see the
cross and you can see a bit - -?---No.You can see some pink orange coloured lines
down the bottom here which are probably
the remains of it. Yes, there it is.
How much of it though? We had it under microscopic light and no-one could find it?
---I am younger than you are.
And then at the top of the page:
I can certainly see what was the remains
of the orange colour of the fingerprints.
I can actually - I am sure that is probably
the centre of it just about there and there
are some of the lines around the edge.
It has faded a lot since we had it. There
is absolutely no doubt but there are
certainly fragments that are there.
The other aspect on that point, Your Honour, to which I would take Your Honours' attention, is in volume X, that is, page 2465. I have taken Your Honours not properly to the passage. It is
the quotation of the affidavit but it leaves
out the important bit which is at volume XIIIpage 2977; XIII is the volume with the judgments
in, Your Honours. What I took Your Honours to is the affidavit of Mr Bardwell where he was
reading the report given to Messrs Cannon & Co.,
about half-way down the page in relation to
certain experiments conducted by the cheque: This was examined under Ultra Violet light
and the faint outline of a developed latent finger print was discernible. Latent finger
prints developed with Ninhydrin can be
fugitive and disappear at room temperate.
I am sorry to take Your Honours to the other volume.
So it is, on the evidence, unclear really whether
the mark had disappeared. Certainly all we would
suggest from the evidence of Henning, Kobus and
Bardwell is that Mr Henning could not see it and
that the mark was difficult to see. So far as he was concerned it had disappeared. I think, in our submission, beyond that can be really
·made of the evidence in total.
DEANE J: I mean, once you find that the photograph in evidence, as the photograph taken before the
cheque was sent, is not what it was represented
as being, where is one left with the unbelievable
PlTlS/3/MB 204 26/10/88 Mickel berg hypothesis that it would have been sent without any record being taken or kept photographically or with the hypothesis that there are photographs
that have not been produced, or with the hypothesis
that the evidence of the photographs having been
taken is untrue? I mean, where does one go?
MR McKECHNIE: Well,,perhaps I could take Your Honour
directly to the evidence of exhibit 74 and of that,
I think, Your Honours have a picture. But, perhap~because there is a obscuration of an important caption
Your Honours could have exhibit 74 and at the same time if Your Honours could take up volume I and the evidence of Mr Henning.
BRENNAN J: Volume I, did you say? MR McKECHNIE: Volume I, Your Honours, the evidence of Mr Henning at pages 62 and 63 where he is
describing exhibit 74. Exhibit 74, Your Honours, has - the top photograph, at 11 o'clock. What the witness says about it at page 62 is: On the right-hand side of the board this
is a photocopy -
he means photograph -
photocopy of the cheque that was sent to
Canberra indicating the position of the
fingerprint and also showing the
fingerprint in its state before it left.
The caption to that is photograph, reverse side, of WOBS cheque number showing position of
developed fingerprint and impose to say that
for all that is now raised that was - - -
BRENNAN J:
That is on the right-hand side of the board, but that photograph at 11 o'clock is on the
left-hand side of the board, is it not?
MR McKECHNIE: Yes, but it is the way that he was looking at it or describing it, Your Honours, because you
will see as he works around he works around
anti-clockwise describing each exhibit.
DEANE J: It sounds as if he is looking over it, as it were?
MR McKECHNIE: Well, I do not know how he was looking, probably - yes, he just reversed it as he was
looking at it but it is clear enough because
that is that. And I impose to say that the only point or issue of that photograph which,
Your Honours, I think, will see has pin-holes in it - the only issue or point of it at the
PlTlS/4/MB 205 26/10/88 Mickel berg trial was to show the position of the developed
fingerprint. Then he goes on at page 62: From what you have told us that is upside
down?---Yes -
clearly referring to the top photograph -
This is a photograph of the fingerprint
taken directly from the cheque before it
was sent to Canberra showing the condition
of the fingerprint.
He is referring there, Your Honours, to developed
fingerprint before enhancement. It is not correct,
in our submission to say there are no photographs
existing of that fingerprint. We would say that is one.
BRENNAN J: Sorry, would you say that again? I am sorry, I have failed to follow?-
MR McKECHNIE: It is not correct to say that there are no photographs of the fingerprint prior to
enhancement, proved photographs. We say that that photograph in the middle is one such, and
described as such.
TOOHEY J: Do you point to any others? I do not mean this exhibit but anywhere in the material before the
Court?
(Continued on page 207)
PlTlS/5/MB 206 26/10/88 Mickel berg
MR McKECHNIE: No, Your Honour, not before the Court, no. BRENNAN J: Was not negative 15, a negative from exhibit 73? MR McKECHNIE: Yes, and that - Your Honour, is one step ahead of me. Photographic enlareement of fingerprint
aft~r enhancement is the bottom photograph of the
three.
BRENNAN J: I see. MR McKECHNIE: So what the witness did to the jury, Your Honours, is, pointing first of all to the
top photograph of the cheque showing that is
the position of the developed fingerprint; then
down to the second photograph, that is what it
was before enhancement; then that is what it
was after enhancement, which technically is
during enhancement because after enhancement
it reverts. And then comparing it with the
fingerprint form, the right index finger, he
has down a blow up at the bottom left-hand corner -
right-hand corner, if you look at it - and then showing
where that came from from the photocopy of the
fingerprints to the form. So what he has prepared is a fairly ordinary comparison board.
DEANE J:
Am I correct that you are reading the evidence as not saying that the photograph of the cheque
was taken before the cheque was sent to Canberra, is that so? MR McKECHNIE: What I say the evidence is about that appears opposite C:
indicating the position of the fingerprint
and also showing the fingerprint in its
state before it left.
DEANE J: In other words, there has been a pause between.. "fingerprint"
as a matter of sense, and the "and also"?
MR McKECHNIE: Yes, the "and also" is really added on. DEANE J: If he was pointing before "and also", he would have dropped down?
MR McKECHNIE: Yes. I do not - I think fairly I would have to say the "and also" relates to that top
print. Then he goes on:
This is a photograph of a fingerprint taken
directly from the cheque before it was
sent to Canberra -
In my submission, he is very clearly referring to
that middle photograph.
PIT16/l/JM 207 26/10/88 Mickelberg DEANE J: If the previous answer referred to the cheque,
and that is wrong, why should one assume that
the next bit is not also wrong?
MR McKECHNIE: Why should one, with great respect, Your Honour, rhetorically assume that it is?
DEANE J: Why should one rely on the statement as to the next?
MR McKECHNIE: The reason one would rely on it, first of all, Your Honour, is the absence of any
evidence indicating its unreliability - pin-holes.
DEANE J: I do not want to take time, but you see you
have a witness saying "also showing the fingerprint
in its state before it left" on the cheque. Well,now, that is in a context where the Crown case is that the fingerprint in the state before it left was completely different from the fingerprint
in the state in which it was when it came back.It is important evidence. MR McKECHNIE: Well, Your Honour, when I get, perhaps, in my
submissions to it, could I develop it further then?
I take Your Honour's point, but, I will, if I may,
leave it and develop it when I reach that, because
I have diverted myself somewhat.
It is perhaps important to take Your Honours
to the evidence of the affidavits of the witnesses
briefly, which all appear in volume XII. The first one was e~hibit 202, which appears at 2845. This
is the witness King, as he later became. Going through his evidence, and it is perhaps sufficient
to take Your Honours to paragraph 22, at 2850:
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. a quantity of such fingers. This
I repeat the advice given to me that the seized
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.
The second affidavit of Thompson I do
not need specifically to take Your Honours to, because
in essence he simply agreed with that of Mr King. The
third one of Mr Bonebrake, startine at 2854, and
the relevant conclusion is to be found at paragraph D
of page 2857:
PIT16/2/JM 208 26/10/88 Mickelberg Based on these imperfections, I find
that the latent fingerprint on the check
is consistent with a latent fingerprint
made using a silicone finger and is not
consistent with the fingerprint made by
Raymond John Mickelberg on the fingerprint
card, which appears as part of the charted
enlargements -
so his, I might say, first opinion was that it was
consistent with the silicone finger and not consistent
with the fingerprint on the fingerprint card.
And finally in that sequence, the affidavit
of Robert Dale Olsen, in the same volume at 2865,
particularly his finding at page 2872:
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 madefrom a mould of the right index finger of
Raymond John Michelberg.
That was the position originally in relation to those
experts, Your Honours, and when called to court no one
was prepared to swear it was a fabrication: they cannot tell. Now, I have just given Your Honours the
references to those particular parts, and I think in part those references have been given by Mr Wallwork.
However, it is important - and I am not going to have
time - to take Your Honours through their actual evidence, and that means their evidence in-chief
and in cross-examination, because the court appealed
from made findings which, in our respectful submission,
are correct. In relation to them - they are all in volume XIII - at page 3025, His Honour commenced his
discussion of this part of the evidence:
It was only when the prosecution intervened
to ensure that the appellants' experts
were fully advised that each in turn recanted
his original opinion to express the viewthat the crime mark was equally consistent
with having been made by silicone rubber
cast and a genuine finger. Not one of the appellants' experts has expressed the
opinion that the crime mark was a forgery
and that set against the opinions of the
respondent's experts that indeed the crime
mark was not a forgery is sufficient to
dispose of these grounds in favour of therespondent.
PIT16/3/JM 209 26/10/88 Mickel berg
He says at page 3030, in the last paragraph:
In short I have not found the
appellants' technical evidence credible.
Mr Justice Olney deals with the matter
at 3086, and at line C:
Despite their earlier assertions made on
affidavit that the fingerprint on the
W.A.B.S. cheque was a forgery, none of
the appellants' witnesses was prepared
to say more than that it is not possibleto say one way or the other.
His Honour then looks at the Crown evidence, but
carries on:
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 naturalfinger 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 possibiliiy that it
might reasonably have acquitted the
appellants.
His Honour then goes on to do so. And His Honour
Mr Justice Pidgeon deals with it at page 3163:
There was no witness, who testified,
who stated that the fingerprint is a
forgery. 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 poorprint.
And he goes on to the circumstantial evidence and
then takes it further in the next point that we
will develop.
Now, Your Honours, as I say, in order to
finally, as it were, make good the findings of
the Court of Criminal Appeal in relation to thatevidence will require, in essence, by Your Honours -
if this is a matter thought necessary for consideration
PIT16/4/JM 210 26/10/88 Mickel berg for the application of special leave - a
detailed review of the evidence of each of those
witnesses.
Could I leave at the moment such a detailed
review and simply, before I pass on to ground 8,
respond to a cormnent made by Mr Mccusker that
no self-respecting police officer runs pencil marks
through the edges of ridges, by referring Your Honours
to volume VI - and perhaps I need not take Your Honours
to it and merely give Your Honours the reference_~ in
the evidence of Mr Henning at page 1656; to volume I:~,
and the evidence of Mr Warboys at page 2194; and tovolume X and the evidence of Mr Norton at 2340 and 2341
as to where this pencil line goes in relation to
ridges and whether or not it is significant.
(Continued on page 212)
PIT16/5/JM 211 26/10/88 Mickel berg
BRENNAN J: Who put it on? MR McKECHNIE: Sergeant Henning, as he then was, put it on in order, as the evidence disclosed, to indicate
to Dr Kobus the print he was interested in. He put it on prior to it going to Canberra, his evidence having been that the cheque when received
had been developed by ninhydren, that there were a
number of smudges on it and a number of identifiable
prints, that he and other officers, particularly
Sergeant Neville, had taken elimination prints f_rom
persons who might have handled it, particularlymint employees and that, when that was concluded,
there remained on the cheque this one mark which
was not identified.
I pass on to paragraph 8. I might say, first of
all, that there is a finding in this respect by the
Court, that there was in existence, in July 1982, no
cast of Raymond Mickelberg's right index fingercapable of use as instrument of a fabrication. In
our respectful submission, that is a finding which is
open on the evidence to the Court and it is a finding
which really answers, perhaps, other criticisms that
might be made in respect of the matter. But perhaps
I should take Your Honours to the evidence thereof.
First of all, in volume II of the appeal book,
Your Honours, the evidence of Mr Tovey, Your Honour has already been referred to; that is evidence in relation
to the taking of hands - hands vrere taken back to the of=ice.
The evidence also available at trial of
Detective Sergeant Hooft, at page 287, Your Honours,
when he was shown what later turned out to be
exhibit A2. I might say that exhibit AZ, which was available in the Court, or it might have been - a brass
hand - Your Honours will see from exhibit A2 on what
I suppose one could call the wrist, a hole which has
been drilled in it, and it is consistent in the evidence
of the police that this was taken, although the time
when it was taken was a matter of debate, but the police
gave evidence that they took it and drilled it to see whether it contained gold. It did not and the hand was returned to Raymond Mickelberg's house. That was the
basis of the evidence to which I have referred
Your Honours about the taking of the hand when, as
it were, in our submission, he lumped together the
brass hand, which was taken, with the rubber hand which
was not. The witness Hooft is asked in cross-examination: Would you have a look at this brass hand? Have
you seen tha:brass hand before?---Yes.
When did you first see it?---It was at Ray's
house on that day.
On 15th July?---Yes.
P1Tl7/l/VH 2 12 26/10/88 Mickelberg Was it taken away from Ray's house?---No.
When was it taken away?---I believe it was
taken away on 26th July.
Are you quite sure it was 26th July?---I'm not
quite sure but on 15th July we were searching
for documents and typewriters and it was on the
26th when the document section were instructed
to look for anything which may be made of gold.
I knew that was brass that's why I did not take it.
Somebody has drilled a hole it in who obviously did not know it was brass. When was the first
time you first saw that brass hand?---At Ray's
house on 15th July.
You are quite sure that that was not taken away?
---I'm positive.
And then the hand was marked for identification. Then,
Your Honours, volume III, is the passage I have,
first of all,of Raymond Mickelberg - the passage
have referred Your Honours to already and will not
trouble Your Honours with it- but could I take
Your Honours to page 749? This is the evidence of the
applicant, Peter Mickelberg, speaking of the events
on 15 July, about line B:
I said to Tovey., "What are these guys doing?"
doing?" because they had big boxes and they
kept chucking everything into the boxes -all of Ray's files - and they moved into Ray's
lounge and took all his brass statuettes and hands
and big fist and rubbers and all those kind of
things. He said they were the documentation squad.
And also in that volume, back a little, was the evidence
of the applicant, Raymond Mickelberg's wife, Sheryl,
which was cut off by Mr Cannon; at the top:
They picked up the phone and said, "These are all right." At that time, they then took
nearly everything in the office, the whole
filing cabinet contents, papers, documents,
pens, anything that was written on, rubber - and although it says -
bands -
Your Honour, we all agree that it says "hands" on the
tape. So it is, "rubber hands." And then Mr Cannon
cut her off:
Did you have any further discussions with them
and the like. So the evidence of the taking of hands at
the trial, is that evidence, Your Honours, that I have
Micke berg P1Tl7{2/VH 213 26/10/88 referred to. Nowhere is it specifically said that,
for instance, fingers were taken. And I use "fingers" in counterpoint to hands - I know rubber hands have
fingers attached, but nowhere is it specifically said
that fingers were taken. At the appeal, the evidence
first of all, in volume IX, Your Honours, of
Peter Mickelberg in cross-examination, line B:
So that hand was in fact manufactured by
your brother prior to the trial, was it not? -
This is exhibit A7 -
I couldn't swear that it was, sir, but I'd
say, yes, it was.
I suggest to you it was in fact manufactured a week prior to the trial?---I wouldn't be
able to answer that, sir.
Then at page 2058:
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.
And then he goes on:
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.
The evidence then goes to volume X, Your Honours, and his explanation, Detective Sergeant Tovey's,
the evidence commences at 2435 but the explanation
is given at page 2439B. The subsequent trial
which is eluded to and which formed part of thesubmissions was the trial of Peter Mickelberg
involving many of the same police officers, including Detective Sergeant Hancock which, in that trial,
had taken place in April of 1984 in relation to
a fabricated gold nugget entitled "The yellow rose
of Texas", and the reference about the trial was
to that. That is at page 2439B. The evidence of Mr Bardwell, in the same volume, Your Honours,
at page 2461. Raymond Mickelberg had, as Your Honours
can see from the grounds of appeal in the Court
of Criminal Appeal, swora an affidavit saying that
he had been given misleading advice by Mr Bardwell.
So Mr Bardwell gave evidence, but Raymond Mickelberg
did not give evidence at the appeal. His evidence,
at page 2461 is, first of all, he is shown exhibit A7
and he says that the first time he saw it was this
morning:
P1T17/3/MB 214 26/10/88 Mickelberg In 1983, you detail that you had retained some fingers; you took some fingers back
to Queensland?---I did.
Did you conduct any tests with them there?
---Yes.
And also with Patrick O'Brien, and at line B:
What were the results of the fingers that
you had?---They could not reproduce latent
fingerprints or fingerprints of any
description at all.
Mrs Yeats had some fingers:
Were they tested?---Yes, by Mr O'Brien.
What were the results of your testing?---Good
fingerprints were developed.
At the bottom of the page:
What can you say about those fingers in
relation to the fingers you were given in
1983?---My recollection of the fingers I
received in 1983 were first of all that they
were slightly longer, appreciably longer,
than these, and they had more of a flesh
coloured, almost transluscent appearance.
And the second reference is again highlighting,
as it were, that the fingers that he was shown
in 1985 were able to leave good prints. Mr O'Brien, who was also called by the Crown at the appeal, gave his evidence, particularly at page 2473 of
the same volume, Your Honours. At line D: In January of 1983 did Mr Bardwell approach
you to do some tests?---Yes. What did he have with him?---He had two
flesh coloured rubberised fingers.
Did you try to obtain impressions from those
fingers?---I tried to obtain impressions from
one of those fingers.
In what material?---I was asked by Mr Bardwell
to make inked impressions of the fingers. I used fingerprint ink, a fingerprint slab and
a fingerprint roller from the fingerprint bureau.
What did you try to do, and what were your
results?---I endeavoured to obtain inked
P1Tl7/4/MB 215 26/10/88 Mickelberg impressions from those fingers, and I was
unable to get legible inked impressions
from the fingers.
Then he speaks - there was a difficulty with ink
in·l983. It was apparently an oily ink and in
1985 when he tested the second batch of fingers,
if I can call them that, he got some of the same
ink but was able to leave impressions in 1985 with
a slippery ink, if I can call it slippery ink.
BRENNAN J:
What does this have to do with the leaving of fingerprints by way of amino acids?
MR McK.ECHNIE: It has to do with the way that ridge detail can be formed, Your Honours. That is a
matter which I will develop, but it will probably
take - and I appreciate that there is no way now
that I am going to finish submissions and I would
prefer to develop that.
(Continued on page 217)
PlT17/5/MB 21 6 26/10/88 Mickelberg MASON CJ:
Well, Mr McKechnie, it may be a convenient time to adjourn now.
But before doing so could
I ask for a realistic estimate as to how long
you are going to take. I am not suggesting that you have not given realistic estimates before
but so far the estimates in this case have proved
wildly inaccurate.
MR McKECHNIE: Well, Your Honour, in view of the fact that I have now stored up two fairly major questions
from Your Honours and have to deal in detail with
the matters that Mr Mccusker has raised, I would
say I would be a good part of a day.
MASON CJ:
Well, it looks to me, as at the moment, it is better to stand this matter over to Canberra
rather than attempt to pursue it for a very
limited period of time tomorrow. I will discuss the matter with the Registrar immediately after we adjourn now and I will ensure that the Registrar
communicates with counsel to let them know whetherthe matter will be listed at all tomorrow.
MR McKECHNIE: Thank you. Can I just finish on the point of Mr O'Brien, Your Honours, by giving you the
other reference that I was going to give which isthe reference at page 2475B!
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 -
the like.
MASON CJ: Yes. Well, the Court will now adjourn.
AT 4.23 PM THE MATTER WAS ADJOURNED TO A DATE TO BE FIXED
P1Tl8/l/MB 26/10/88 Mickel berg 217
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Appeal
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Charge
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Procedural Fairness
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Sentencing
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