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

[1988] HCATrans 256

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IN THE HIGH COURT OF AUSTRALIA

Offic~ of the Registry

Perth No P27 of 1987

B e t w e e n -

PETER MICKELBERG

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Perth No P28 of 1987

B e t w e e n -

RAYMOND MICKELBERG

Applicant

and

THE QUEEN

Respondent

Mickel berg

Applications for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 25 OCTOBER 1988, AT 10. 48 AM

Copyright in the High Court of Australia

PIT 2/1/SDL 1 25/10/88

MR H.A. WALLWORK, QC:  If it please the Court, I appear

with MR G.H. LAWTON for the applicant, Raymond Mickelberg.

(instructed by Lawton Gillon)

MR M.J. McCUSKER, QC:  May it please the Court, I appear

with my learned friend, MR P.SEAPlE, for the

··applicant, Peter Mickelberg. (instructed by Lawton Gillon)

MR J.R. McKECHNIE: If Your Honours please, with my learned

friend, MRS.M.A. YATES, I represent the Crown

in both applications. (instructed by the Crown

Solicitor for Western Australia)

MASON CJ; Yes, Mr Wallwork?

MR WALLWORK: If it please Your Honours, these applications

for leave to appeal against conviction arise from

a decision of the Western Australian Court of

Criminal Appeal which was given at the end of

last year. The original trial was held back

early in 1983 and it concerned the obtaining

unlawfully of some gold from the Western Australian

mint by persons, and the applicants have always

denied that they were those persons.

The facts, I would submit, I should not waste too much of Your Honours' time on them

because, in essence, it was that the gold was

taken by couriers to an office in Barker House

in Subiaco about two or three miles from the

mint and then taken by another courier to Jandakot

airport where it has never been seen since -

that -is the bars of gold concerned.

When the trial was completed, after approximately

four weeks early in 1983, the three Mickelberg

brothers were convicted of the charges and

Brian Mickelberg later appealed and the Court

of Criminal Appeal in Western Australia allowed

his appeal against convictions and he was discharged.

That left the two applicants, Raymond and his

younger brother Peter, convicted of these offences

associated with the stealing of the gold.

There are two errors in the appeal book,

volume XIII, if I may take Your Honours to them,
I think may be significant, so I will. Volume XIII -
I think I will be mainly referring to that,
Your Honours - of the appeal book. It contains

the various decisions and grounds. Volume XIII,

at page 3188D, says; at paragraph (g) appearing

opposite the letter D:

PIT2/2/SDL	2	25/10/88
Mickelberg

The evidence before the Court of Criminal

Appeal established that Exhibit 21 which was a police artist's sketch -

it should read, "established that the underlay

to exhibit 21". It does not matter much but

it is inaccurate so I would ask leave to put

in the words, "the underlay to" in case there

is any confusion about that; The underlay to

exhibit 21 is a police artist's drawing of the

suspect and over that, the over lay, had some hair

and glasses on it. So for accuracy I would ask

leave to add those words there.

The other error of significance appears at page 3181 and, on the bottom of that page,

under paragraph 4, their sentences are set out

and 4(e_) says:

6 years concurrent.

I t sh o u 1 d be "cum u 1 a t i v e " . The tot a 1 s en t enc e

in this case for Raymond was 20 years with a

minimum of 12.

If I may now go to the question of the submissions and hand up the applicant's submissions

in this matter.

MASON CJ:	Thank you.
MR WALLWORK:	They are a little bit longer than the three

pages recommended, Your Honours, for which I

apologize but it was impossible to put enough -

MASON CJ: There is no need to apologize, Mr Wallwork.

MR WALLWORK; Thank you. Your Honours, this appeal, so far as

Raymond is concerned, arises fundamentally and

mainly over the fingerprint evidence. The applicant,

Raymond, will ask leave to address Your Honours

on evidence which has become apparent and conceded

by the Crown since the Court of Criminal Appeal
gave its decision, which the applicants say is

vital to Raymond's defence. It was never known

until the appeal was heard at the end of last
year _that Mr Billing, who was at the time of

the offence a detective sergeant, had had anything

to do at all with the comparison of the fingerprint.

At the appeal, after the applicants had called

before the Court of Criminal Appeal of Western

Australia Detective Sergeant Henning, who had been represented by the Crown as the fingerprint

expert and who had had control of the fingerprint

investigation - he gave all the fingerprint evidence

and he said that, "On 15 July 1982 I photographed

this fingerprint on this cheque and I arranged

for various things to be done", and the trial

was conducted on that basis.

PIT2/3/SDL	3	25/10/88
Mickelberg

When we called Mr Hemming at the appeal

there was no change in that situation so far

as the applicants were concerned, but when it

became Mr Billing's turn - and we also called

him - he then announced to the Court of Criminal

Appeal for the first time - and this is about

-· 1983 the trial took place; there had been extensive

investigations conducted by both the applicants

and the Crown early in 1985 and in 1987, when

it came to the appeal - four years, approximately,

after the trial had taken place - it was revealed

for the first time that Mr Billing had ordered the comparison of this fingerprint to be made.

That appears on page 1533 of the appeal papers in volume VII of the application book, if I may

refer to it.

What had happened, Your Honours, is that - I should take you back - my marker is at 1532,

the page before that. This is in front of the Court of Criminal Appeal. Mr Billing, at Bon

page 1532, was asked by counsel - opposite B,

half-way down page 1532:

With all that information, and knowing what you had in your pink file -

offence, at which time his fingerprints had been taken -

which was a file which had existed on a minor

that has been put in there - I have lost

track of that number. 171? You were then

able to say, "We have got Raymond John

Mickelberg here, and we can get his prints,

and we can compare them with any print

on any cheque that we have got"?

The reason for that question was: at the trial

Raymond Mickelberg had always said. "That cannot
be my fingerprint on that cheque;	I never touched

that cheque prior to being taken in for this

investigation by the police officers". The fingerprint

had allegedly been discovered on 24 June 1982;

it was never photographed at all prior to three

raids on Raymond Mickelberg's home on 15 July 1982 -

three extensive searches on the one day at which

the applicant and his brother had always said -

and his wife - that rubber hands were taken.

Raymond's hobby was making his hand out of silicone

rubber - and those of his children. He could

produce a hand that looked like a hand - whether

out of rubber or brass.

PIT2/4/SDL	4	25/10/88
Mickelberg

The point of this question was that the police

had never photographed any print on the cheque

between 24 June and these raids on 15 July -

which is three weeks, in round figures; they

had never kept any written record of this alleged

fingerprint of Raymond Mickelberg on this cheque

during this time; and the evidence at the

trial was clear and unequivocal that at 15 July

they had taken Raymond Mickelberg in, fingerprinted

him and on that day photographed this alleged

fingerprint on this cheque.

Well, at the appeal the question was -

we were investigating this and Mr Billing,	when
asked about this:	"You have got Raymond Mickelberg,

why didn't you compare his prints?", that was

the purpose of the questions, "and arrest him

straight away because, 'We've got you now; you've

got your print on this cheque; you're the one

who pushed this cheque across to the mint'."-

it was said, by Mr Billing:

Perhaps I could assist you with the sequence

on the 15th July, your Honours, if you

would like, and it may save quite a lot

of questioning.

MR WALLWORK:	Yes, please.
WITNESS: Sir -

and he then addressed the judges of the Court

of Appeal -

firstly, I probably should say that I think

Henning -

who was the detective sergeant in charge of the

fingerprinting -

would not have had the opportunity to classify

these fingerprints until 16th July, even

though they were taken on 15th July. On
15th July, the evening of 15th July, I
was working in the documents section with

Constable Hofstee, and I think Constable

Herdsman was also working back. It was

in the late evening, and the majority of
the staff would have knocked off from the

fingerprint bureau at that time. I was

checking out a large number of documents
which had been brought in by detectives
and inquiry officers from searches out

at premises

and this was the three searches on Raymond's

house, amongst others -

PIT2/5/SDL	5	25/10/88
Mickelberg

At the time there was a Senior Constable

Muhleisen who was working afternoon shift

in the fingerprint bureau; he was the

duty fingerprint officer on afternoon shift.

I think it would have been very late evening,

possibly half past seven, 8 o'clock at

night -

and Raymond had been arrested and fingerprinted
at midday, so it was seven hours and a bit before

any comparisons of his print was made at all

although the police had taken him in and fingerprinted

him with this alleged print on this cheque.

Muhleisen came to me with a set of

fingerprints which he had collected from

the lock-up. This was normal procedure;
for the afternoon fingerprint duty officer

to attend at the lock-up to collect the

fingerprints so that they could be checked

would have been taken by Van Den Eulen,

and searched for the next day's court.

or whatever it is;	a set taken at the
East Perth Lock-up on the 15th.	He told

me that he had Raymond Mickelberg's fingerprints

there, and I asked him - I had the cheque,
the WA Building Society cheque which was

locked in my custody -

which has the print on it.

I handed that to him - it was protected in a cellophane folder - and asked him

if he would check the outstanding fingerprint

on the back of the cheque with the fingerprints

of Raymond Mickelberg.

None of this evidence was given at the trial

and the applicants were, until this moment, unaware

of any of this.

He returned to me about half an hour

later and said he thought it was Raymond

Mickelberg's fingerprint.

Constable Muhleisen was not called at the trial

or the appeal to verify any of this.

Muhleisen was not a fingerprint expert but he was very close to becoming one. He asked me if I would have a look at it.

I returned to the bureau with him and checked

against the fingerprint, and I also formed

the opinion that it was the fingerprint

of Raymond John Mickelberg; the right

index finger.

PIT2/6/SDL	6	25/10/88
Mickelberg

However, I was also of the opinion, to me, that there were only possibly six

or seven points of identification, which

is not acceptable in a court in Western

Australia as an identification.	I phoned
Sergeant Henning -

who was the man in charge of the fingerprint

investigation -

or it was Sergeant Henning at the time -

and told him of this. This would have
been probably 9.00 or after 9 o'clock at

night, and I asked him if he would like

to come back and have a look at the

identification, and after having a discussion

with Henning I formed the opinion, as he

did, that nothing could really be achieved

until the next morning.

Now, about this time, maybe we could argue half
an hour or so, but that evening, certainly at

7.30, Detective Sergeant Hancock and other detectives

on this investigation were still at work. Detective

Sergeant Hancock, the man in charge of this

investigation, attended on Raymond Mickelberg

in the lock-up at 8 o'clock the next morning

and, apparently, did not even know of this comparison.

He certainly never asked him about it or put

it to him that, "Look, Raymond, you're print's

on this cheque", or anything similar. So the

man who was notified - and this is for the first

time, and it is important, that the applicants

had ever heard any of this evidence - rang the

man in charge and nobody informed any of the.

other detectives that we are aware of, of this

development. And this was a very big investigation

and had received tremendous publicity in Western

Australia at the time. They had had a special

section of the CIB put aside for this investigation

and yet, apparently, nothing was done that evening

to alert the officer in charge or the man who

called on Raymond Mickelberg with him, Sergeant
Lewandowski - another detective - the next morning.

They never mentioned it to Raymond at 8 o'clock.

And he says;

So the documents were locked in the safe .....

the next morning. In fact, before I had

a meeting with the other officers, I photographed

in natural size - - I took a natural-sized

photograph of that latent fingerprint which

had been identified on the back of the

cheque -

and that, as it turned out at the appeal, was

the first time that alleged fingerprint had ever

been photographed although evidence had been

PIT2/7/SDL	7	25/10/88
Mickelberg

given at the trial at which these men were

convicted, that that had taken place the day before.

He went on to say:

Each of these experts, and Henning,

of course, was in charge of this particular
case - agreed that it was Raymond Mickelberg's

print, but there were insufficient points

of identification for that identification

to be used in court, and for that reason

it would be very dangerous for us to act

upon it.

And he went on to say that he had sent it over
to the east. That was the state of the evidence
at the appeal on which the learned judges of
appeal brought in their decision, that they were
not prepared to overturn the convictions. But,
since that time, it has become - and the then

Sergeant Billing - he was an assistant commissioner

at the time of the appeal - produced an exhibit

the next day, and that appears at page 1603 of

the same book, opposite D.

He was then being cross-examined by the

learned Crown counsel and, opposite D, he said:

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

over to Canberra.

MR McKECHNIE:  That was taken on what date?

---That would have been taken on 16th July -

this is the one he said he took that next morning.

That has pin-holes in it which were put in it

in Canberra after 20 July. That was wrong evidence

before the Court of Criminal Appeal in Western

Australia. There has never been a negative produced

to the applicants or to any court taken prior

to the sending of this cheque to Canberra on
16 July. That negative has holes in it which

were put in the cheque at Canberra and those holes appear on the negative and those holes

were put in by Dr Kobus after 20 July.	So that
is incorrect.

If I may then, before I ask leave to refer

to these photographs, refer to what His Honour

the learned trial judge had said at page 3082

of the appeal book. This fingerprint was central

to the police tying Raymond in with this investigation

and at page 3082, in volume XIII of the book -

at the bottom of page 3082, Mr Justice Olney

in the Court of Criminal Appeal in Western Australia

dealt with the learned trial judge's summing

PIT2/8/SDL	8	25/10/88
Mickelberg

up. He says there, having dealt with a number

of general matters of law and then specifically
with the evidence relating to first, Brian

Mickelberg, who was later, as I mentioned, discharged after a Court of Appeal decision,

and then Peter, His Honour continues - and this

is at the trial:

"I turn now, members of the jury, to

consider the evidence relating to the

accused Raymond John Mickelberg. Perhaps

the most direct evidence against him is the

fingerprint on the West Australian Building

Society cheque; one of the three cheques

which was handed over on 22nd June in
exchange for the bullion. Sgt. Henning,
who gave evidence on the fourth day of the

trial, told you of his long experience in classifying and identifying fingerprints. He told you that there has been no documented

evidence of two fingers leaving the same

print; each finger leaves a different print.

As his evidence in that regard was not challenged, you may safely accept that a

f~ngerprin~ is, in effect, an unforgeable

signature.

And it was argued at the Court of Criminal Appeal

that there was no evidence that a fingerprint could

not be forged and that that was really saying if

Raymond Mickelberg's fingerprint was on that cheque,

it was an unforgeable signature. He signed it,

therefore, he is guilty,and that was one of the

grounds we had taken 1.before the Court of Criminal

Appeal.

But to go on with His Honour's direction:

"Sergeant Henning went on to tell you

of his getting the three cheques on

24 June last, I think, of examining

fingerprint on the cheque in question

them and of his noticing one

which he could not identify .

(Continued on page 10)

PlT2/9/SH	9	25/10/88
Mickelberg

MR WALLWORK (continuing):

He went on to tell vou, then after

15 July he sent the· cheque to

Canberra

actually, at the appeal it was Mr Billing. That

was ar~anged on 16 July. ~e sent the cheque to

Canberra:

SH where it was treated by Dr Kobus and

then, after the cheque an~ photographs

made by Dr Kobus had been returned he

concluded that the cheque in question bore

the fitlg~t made by the right index finger of
the accused Raym:md John Mickelberg.

Sgt Henning demonstrated to you, as you

have been reminded, the position of the

finger when it made the print.

If you find, and there is no dispute about it it would seem, that the cheque does bear Raymond John Mickelberg's fingerprint then you will need to ask yourselves: How did

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

Mint it would seem, and of course this is a matter of inference entirely for you,

that the accused Raymond John Mickelberg

was definitely involved in the swindle.

If he was not involved how else could his

print come to be on the cheque? The accused

has told you that he handled the cheque

in the course of an interview with

Dt-Sgt. Hancock on 15th July .. He said that

Sgt. Hancock showed him a cheque, shook

it out of a plastic bag, and told him that

his handwriting was on it and referred him to the 1 t 1 s 1 , some of the 1 t 1 s', appearing

in the handwriting. The accused said that

he handled the cheque. In evidence he said
that he handled the cheque by picking it
up at the corners. Sgt. Hancock told you,

when it was put to him in cross-examination,

that nothing like that happened. He said

that the accused did not handle the cheque

in the course of the police investigations.

On behalf of the accused it is said that

there is no independent evidence to show

that the print was there before 15th July.

That was the defence at the trial. The defence

at the trial was: it is not Raymond's print;

it was not there before 15 July; there are no

records of it; there should have been, et cetera;

PlT3/l/ND 10 MR WALLWORK, QC 25/10/88

Mickelberg

no photographs of it; and evidence was called

and accepted at the appeal that the universal

police practice throughout the world is that

if a print is obtained on a cheque like this

through the ninhydrin process it is likely to

disappear, so universal police practice is that

.. when, on the 24th, this cheque was treated with

a substance, it should then have been immediately

photographed when the print came up because it may not have been there the next day or a week

later. That was never done in this case.

Mr Cannon put to you that there was no

photograph taken of the print before then.

Mr Davies has commented on that and reminded you of Sgt. Henning's testimony as to finding

the print on the cheque on 24th June.

That is 1982.

If you accept Sgt. Henning's evidence you would find, it would seem, that the print was there well before the accused

Raymond John Mickelberg was interviewed

by the police.

On his behalf it is put to you also that

if the fingerprint was there before

15th July it should have been identified
before then, before Raymond Mickelberg was

interviewed at all, because he has told

you his fingerprints had been taken in 1975

or 1976 and therefore were on file and

available to the police officers. As

Mr Davies took pains to point out to you,

the only evidence to that effect is his.

No-one else has said that his fingerprints

were taken in 1975 or 1976.

We now know that that was done.

There is no evidence that his fingerprint

from that time was available to the police

officers and you would have expected, if

it were, that when Sgt. Henning found the

fingerprint, as he has told you, on
24th June that it would have been compared

with Raymond John Mickelberg's fingerprint

if it were in the records.

Because he was a suspect at 9 July, well before

the three raids on his house on 15 July and no

attempts were made to obtain his prints from

the Federal Bureau of Fingerprinting where they

keep all these records or from the Commonwealth

or from anybody else.

PlT3/2/ND	11	25/10/88
Mickel berg

That is the importance of the print,

Your Honours. That was the way His Honour

introduced the Crown case at the trial against

Raymond Mickelberg. "Perhaps the most direct evidence", he said, "is this", and he went on

to deal with it. So when, in early 1985, one

. · of the persons associated with the Mickel berg

family had obtained certain affidavits from the
United States of America and England, these were

presented to the Premier of Western Australia

and he was asked what he was going to do about

i t .

The Solicitor-General then asked the police

for certain photographs which his representative

then took around the world and showed other experts.

Those photographs were supplied in 1985 by the

police to the Solicitor-General of Western Australia

and they show and are identified with tablets

on them - this was a photograph taken on

15 July. They must have come from somewhere.

They were, first of all - that did not accord

with what Mr Billing said at ,the appeal that

the first photograph taken was taken on 16 July

but, more importantly, they have got pin-holes

in them. So they were taken after 20 July.

So the police force in Western Australia

have supplied the Solicitor-General with photographs

wrongly and very misleadingly labelled. And

it was those photographs which the Crown relied

on at the appeal. The pin-holes were not discovered

until after the learned judges in the Court of Criminal Appeal had dealt with this matter and they were discovered by a person purely by good

luck or good fortune or whatever, not a fingerprint

expert at all. But the Crown now concedes that

those holes were put in that cheque and that
the evidence at the trial which part of it concerned

photos of the cheque for comparative purposes

had these holes in it.

There is one photograph at 9 o'clock on

the main comparison board which is probably taken

on 16 July but that negative has never been produced

for examination. But the main comparison photograph,

the back of the cheque, was said by

Detective Sergeant Henning to have been taken

by him on 15 July and that is it up there. That

is a photo of it and that has got pin-holes in

it. The problem is that none of this was known

to the defence at the trial. It was not known

at the time of the appeal but, more to the point,

this sequence of events displays either a complete

lack of care for the liberty of the subject by

the Western Australian police or something more

sinister.

PlTJ/3/ND	12	25/10/88
Mickel berg

It does not matter so far as Raymond is

concerned but he has got 20 years sentence and

we say -and it is basically the basis of this

application for special leave -that he was

convicted on evidence which is now conceded by

the Crown, in part, and on a vital part, we say,

· to be incorrect. And because of that the corner-

stone of the Crown case has been removed and - - -

DEANE J:	I do not follow why you say it is a vital part.
Was it suggested by the Crown that the photo
existed before your client said he handled the
cheque?
MR WALLWORK:	Before he said he handled - - -
DEANE J:	On the 15th.
MR WALLWORK:	Yes, it was said by the Crown that they had

it on 15 July. At the appeal this was changed

to 15 July.

DEANE J:  You are not answering my question. I asked you:

was it suggested that the photograph had been

taken on 15 July before your client handled the

cheque on 15 July, according to his account?

MR WALLWORK:  No, he did not handle it on his account until

26 July.	He was not questioned about this cheque
on 15 or 16 July.	He was never questioned about
the cheque.

DEANE J:	Then that is an error in the trial judge's summing
up, was it, when he said:

The accused has told you that he handled

the cheque in the course of an interview

on 15 July.

MR WALLWORK:  Did he? I am sorry, I have made an error

myself.

DEANE J:  I am asking you, Mr Wallwork.

MR WALLWORK: It has just been pointed out - that is an

error on my part, Your Honour. No time was given

as to what time he touched the cheque on 15 July.

DEANE J:	Reading His Honour's summing up, it seems that
it was not suggested by the Crown that the photo was taken before your client alleged that he
had handled the cheque and it was not relied
on in that regard.
MR WALLWORK:	No, I think that is right, Your Honour.

I would have to check that. I am uncertain -

I think that is correct. So I am subject to

correction but I think that is correct.

PlT3/4/ND	13	25/10/88
Mickel berg

DEANE J:  Can I also ask you: was it suggested that the

photo had been taken before the relevant material
was removed in the searches of your client's

home?

MR WALLWORK:	Was it suggested that that had been done?
DEANE J:	Yes.
MR WALLWORK:	There was a dispute - - -
DEANE J:	And that it therefore precluded the rubber glove
theory which was raised for the first time in the Court of Criminal Appeal.
MR WALLWORK:	There was a dispute, Your Honour, between

the parties.	The Crown now says that there were
no rubber hands taken on 15 July.	The Crown

says there were no rubber hands taken until

26 July.

DEANE J:  I said, "before the material was taken".

MR WALLWORK:  No, it would not. He was not picked - he

was picked up at and fingerprinted at 12.30

approximately and I think the first raid was

7 am that morning.

DEANE J: So it is not suggested the photo was taken before

material - it was not suggested before material

was used?

MR WALLWORK:  No, the Crown now says the photograph was

taken at 7.30 at night and the searches had been

completed on that day in daylight.

DEANE J:	Then I do not see why dating the photo a day
later or a week later was vital in terms of the
evidence led at the trial which was all I was asking you about.

MR WALLWORK:  Perhaps I could come to the applicant's

submissions on that aspect, Your Honour, because

I think that is set out there. In paragraph 2,

the incorrect evidence concerning the alleged

fingerprint - this is at the trial - included

the following - I am on the front page of this

outline of applicant's submissions:

Sergeant Henning said he had photographed the

alleged fingerprint on 15 July and that the

photographs appeared on the board produced to

show the fingerprint comparison.

BRENNAN J: Before you go on, do you say that the

fingerprints in exhibit 74 were said at the trial

to be fingerprints which were taken on 15 July?

PlTJ/5/ND	14	25/10/88
Mickel berg

MR WALLWORK:	The photograph at 11 o'clock on that board
was said to be a photograph taken on 15 July. got pin-holes in it so it was not taken until
after the 20th.
It is now said that this evidence was wrong and that the alleged fingerprint was first
photographed on 16 July by the then Sergeant Billing. This is important because although the police
said that they had had the fingerprints since
24 June they did not photograph it contrary to
universal police practice until 16 July 1982,
the day after they had carried out three searches of the applicant's home and, according to the defence, had taken rubber hands from the home.
It is agreed that the word "bands" which appeared in the transcript should be "hands".

DEANE J: Mr Wallwork, I do not want to take time but that

that is what I was asking you about. The

inference there seems to be that by changing

from the 15th to the 16th, an answer given by

the Crown to the defence was no longer available.

On what you said to me earlier, that inference

simply is not accurate.

MR WALLWORK:  In so far as he handled the cheques on

the 15th?

DEANE J:	Yes.
MR WALLWORK:	Yes, Your Honour, that is correct.

DEANE J: Or in so far as the material was taken in searches

on the 15th.

MR WALLWORK:  Yes, that is correct, it was taken but

Raymond Mickelberg always denied his fingerprint

could have been on that cheque anyway.	He said
the only time he ever touched the cheque was

on the corner of the cheque, not where the print

appears on the cheque. So this was the issue.

This was the issue being fought.

DEANE J:	I may be being obscure, but if, for example,
the Crown had said, "The fingerprint could not
have come there from him handling it because
we took the photograph before he says he handled it . 11 or if they said, "The fingerprint could
not have come there from an impression from the
material we took because we took the photograph
before we took that material." the change of date would be critical.

15

Pl13/6/ND	25/10/88
Mickel berg

MR WALLWORK:  Yes, I am sorry, I have just realized why

it is. Detective Sergeant Hancock denied at

the trial th~t Raymond Mickelberg had ever touched

the cheque at all on the 15th. It was Raymond

that said he had touched it on the 15th. The

police said he did not. So that answers, perhaps,

··that - I had not thought of that. The man in

charge said that Raymond never touched the cheque

at all on the 15th. So the Crown case was he

could not have touched the cheque on the 15th.

BRENNAN J: What difference does it make if the photograph

was taken at 7.30 on the 15th or at 11 o'clock

on the 16th?

MR WALLWORK:  Because the evidence to that degree was wrong

but there is a lot else wrong, Your Honour, that

I was just going to come to combine with it.

BRENNAN J:  So what you are saying is that the significance

of this change of evidence is just the wrong

date or time was assigned?

MR WALLWORK:  No, the significance of it is, Your Honour,

that the evidence at the time was wrong. Evidence

which has been produced since in answer

to carry out an investigation is also wrong and
attempts, we say, a jury would be able to come to a
very fair conclusion that the true evidence has
never been presented to the trial, the correct

evidence, at all.

BRENNAN J:  Would you just help me a little, Mr Wallwork,

to se~ if I can understand precisely what the

relevance of all of this is? The critical question

I take it is whether or not there is a fingerprint

of Raymond Mickelberg on the back of the cheque?

MR WALLWORK:  That is correct, Your Honour.

BRENNAN J: If you look at the material that came from

Canberra, Dr Kobus, and Mickelberg's acknowledged

fingerprints there are points of similarity between

them?

MR WALLWORK:  We say it, and I think it is fair to say, they cannot be differentiated.

BRENNAN J:  Right. So that the whole question

is: when and how did that fingerprint mark get

on to the back of the cheque?

MR WALLWORK:	Yes, that is correct.
BRENNAN J:	And there are two possibilities, are there?

One is that it was put there by rubber implementation

in some way and the other is that it was put

PlT3/7/ND	16	25/10/88
Mickel berg

there by him handling the cheque in the course

of the investigation.

MR WALLWORK:  Or the third one: tne Crown would say that

it was put there before the crime was committed.

BRENNAN J~ Quite, yes, that is the guilty one. Then the question is whether or not we can exclude those

other two innocent possibilities - innocent in

the sense that the Crown put the thing on or
the police put the thing on by the rubber glove
or,in the other way,by him handling it in the

course of the investigation.

MR WALLWORK:  Yes, Your Honour. We would say that it does

not have to go that far, that if the evidence

which is now available had been available at

the trial there would have been a grave area
of doubt for the defence to cross-examine about

and find out exact what did happen to support

Raymond's evidence that it could not have been

his fingerprint on the cheque because the evidence
at the trial misled the defence and the evidence

since the trial has misled the Court of Appeal.

I have tried to set that out - if I can

read on there, I think the significance of it

is set out here - if I may go on and I answer

that question for you. This is important because

although the police said that they had had the

fingerprints since 24 June - I am sorry, I have

read that. There were no written records kept

by the police concerning the existence of the

alleged fingerprint prior to 16 July 1982 - the

day after the three raids. The applicant had

been fingerprinted by the police on 15 July at

about midday in the presence of

Detective Sergeant Hancock in charge of the

investigation.

The fingerprints were then given to

Sergeant Henning in charge of the fingerprint
investigation at lunchtime on the 15th.	No

comparison of the applicant's fingerprints with
the alleged fingerprint on the cheque was requested
or made that afternoon despite the fact that

the applicant was photographed and that his

handwriting samples had been earlier compared

with ·the writing on the cheques - that was on

13 July. He was a suspect, he had been identified

with the writing on the cheque - or rather, they
were trying to identify him with the writing

on the cheque; they did not identify him with

the writing on the cheque ultimately. And on

the 15th he was asked to write words out in the

presence of the police.	His voice was also
recorded.	The only thing that was not done was

his fingerprints compared although they were

then available.

P 1 T 3/ 8 /ND	17	25/10/88
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Although Mr Billing said at the appeal that

he had arranged for a comparison of the alleged

fingerprint to be made at 7.30 pm to 8 pm on

15th July, he had given lengthy evidence at the

trial and had not mentioned this. Also,

Detective Sergeant Hancock said in evidence that

· he had called on the applicant at the lock-up

the next morning at 8 am with Sergeant Lewandowski.

Neither of them had mentioned the alleged

fingerprint on the cheque to the applicant who
was released from custody on 16 July without

being questioned concerning any alleged .

fingerprint on the cheque.

Had defence counsel at the trial known of these facts there would have been extensive

or preliminary papers were misleading in these areas.

investigation of the reasons for the delays, depositions

(Continued on page 19)

PlTJ/9/ND	18	25/10/88
Mickel berg

MR WALLWORK (continuing):  For example, Serseant Henning

was never asked, even at the appeal, why he had

carried out no comparisons or why Detective

Sergeant Hancock apparently was not informed

even that night, of the comparison. He and

Detective Round were still at the CIB premises

··at 8.30 to 9 pm on that night discussing what Raymond Mickelberg had allegedly said earlier

that day.

The second aspect of the incorrect evidence

is that Sergeant Henning told the jury at the

trial that the photograph of the cheque on
exhibit 74 showed the fingerprint in its state
before it left. This is now admitted by the

Crown to be incorrect. That photograph of the

back of the cheque has pin-holes in it which

were placed there some time after 20 July in

Canberra. The negatives of any photographs of

the alleged print prior to the cheque being sent to Canberra on 16 July have never been

produced to this day.

However, at the appeal Mr Billing produced

a negative which he said was a photograph of the

fingerprint on the back of the cheque taken natural size prior to it being sent over to Canberra. That

is incorrect. The negative has in it the pin-holes.

The third incorrect part of the fingerprint evidence is that Sergeant Henning told the jury that when the cheque arrived back in Perth from

Canberra the fingerprint had disappeared; that

is what he told the jury. At the appeal he

told the three Court of Criminal Appeal judges

that it had gone completely. That evidence

was incorrect because photographs produced by

the police after the trial, which were exhibits

at the appeal, and bearing inscriptions of having

been taken on 15 July before enhancement and on
15 July before a cheque, sent to Dr Kobus

respectively, both show the pin-holes and were

taken after the cheque was returned to Perth.

The importance of this evidence is that

apart from it being misleading to the defence
generally exhibit 166, which is the photograph
of this fingerprint, shows up to 16 points of
comparison. This fact severely damages the Crown
evidence that the cheque was sent to Canberra

for enhancement, which is the reason they gave
for sending it off, enhancement being to improve

its identifiability, because there were insufficient

points of identification on the alleged fingerprint

brought to be used in court, or possibly only

six or seven points of identification. Yet, at

the appeal, using the same photograph that

PlT4/l/MB	19	25/10/88
Mickel berg

Sergeant Henning had there were 16 -up to 16 points

visible on it. So somebody had taken a photograph

of an invisible print after it came back from

Canberra.

BRENNAN J.:	Is it right that 166 was taken after Canberra?
MR WALLWORK:	Yes, sir, and that was sworn at the trial.

By that stage the fingerprint had disappeared.

GAUDRON J:  Could I ask what turns on whether or not the

fingerprint had disappeared from the cheque,

apart from the photographs?

MR WALLWORK:  Because at the trial the evidence led was

that it had by the detective sergeant in charge

of the fingerprinting; that is what he said, twice,

when asked about it:  "Now, was it there when it

got back?" "No, it had gone completely."

GAUDRON J:	Does anything turn on that?
MR WALLWORK:	Yes, Your Honour, because the evidence is

incorrect and the defence were trying to find out.and

probe this alleged fingerprint and if it was not

there when it got back it could not have been photographed and this exhibit up on the board

is incorrect because of that reason.

GAUDRON J:  If it was not there the photographs were taken

before it went to Canberra?

MR WALLWORK:  No, Your Honour, the detective sergeant was

saying that, "I took this photograph and there

it is up on the board, on 15 July", he said at

the trial.	It was not taken on the 15th, we
know that.	He said, "Not only that, when this

cheque - I sent it off to Canberra because I

could only get six or seven points of identification

on it, that is why I sent it to Canberra, and when

it came back it had gone."	Now, when it came
back he was able, or somebody was able, to take

photographs of this print showing up to 16 points

of comparison. There was nothing wrong with the

print when they sent it off, even on their own

story.

BRENNAN J:	That would have given you a wonderful piece of cross-examination, would it not,· at the trial?
You would have said, "You said you sent it off
because you could only get six or seven points. There you have 16 on that photograph?"
MR WALLWORK:	Yes, that is what we say.
BRENNAN J:	But you could have said that at the trial?

PlT4/2/MB	20	25/10/88
Mickel berg

MR WALLWORK:  No, we did not know at the trial. At the

trial this photograph, and at the appeal this

photograph, was represented as having been taken

before it went off to Canberra.

BRENNAN J; And there were how many points of comparison

in that photograph?

MR WALLWORK:  At the appeal?

BRENNAN J: Well, at the trial?

MR WALLWORK:  At the trial only six or seven, but the

enhanced photograph which was done in Canberra

by the chemical process was said to have brought

it up to 12, I think_- 12 to 14. But the original

unenhanced photo which is of the print that was

not there clearly shows 16, according to the Crown

evidence now and at the appeal. It was never

necessary to send it off at all. That would have made wonderful cross-examination material because

the defence would have been able to say, "Look,

you had 16 points, why did you send it off at

all in the first place?"

BRENNAN J:  When did that 16 point photograph first make

its appearance?

MR WALLWORK:  When the Solicitor-General asked for photographs

which he sent around the world prior to this

appeal taking place.

BRENNAN J:	I see, yes.
MR WALLWORK:	I am speaking about mythical photographs.

We have prepared photographs. If I could hand

up copies of what I am talking about, Your Honours,

I think I will be able to explain it eas.ier.

MR McKECHNIE:  May I ask what is being handed up,

Your Honour, before it goes in. I am not sure

whether it purports to be fresh evidence or

evidence of matters that were on the appeal?

MR WALLWORK:	I can answer that question, sir.
MASON CJ:	Yes.
MR WALLWORK:	What I want to hand up is the photograph

which the police produced early in 1985 for

the Solicitor-General to investigate the

allegations which says: "Enlargement, latent

print on cheque. Photographed on 15 July before

enhancement", before it was sent off to Canberra.

BRENNAN J:  Now, when did this first appear in evidence

before a court, this photograph?

P1T4/3/MB	21	25/10/88
Mickelberg

MR WALLWORK:  It first appeared at the appeal and, again,

I am subject to correction. It first appeared

at the appeal in court - it is exhibit 166 - because

the Crown relied on it to prove that these

allegations, which the Mickelbergs were making,

. was incorrect and their prime expert, a Mr Warboys, from Scotland Yard in England carried out all

his tests on this print and everybody assumed that

it was taken,as it says it was,on 15 July.

In fact, it was taken after 20 July when the

print had gone. That is the significance of it.

BRENNAN J:  Well, that is, it appeared before the Court of

Appeal when they last considered this case, is

that correct?

MR WALLWORK:	Yes, sir.
BRENNAN J:	And the evidence about the pin-holes was never, of course, before that court, was it?
MR WALLWORK:	No.
BRENNAN J:	How does it get before this Court?
MR WALLWORK:	Well, because we say the Court of Criminal

Appeal gave its decision and Mr Justice Olney

in his reasons specifically refers to the photos

taken on 15 July, and this is what he is referring

to. This was not taken on 15 July. The Appeal

Court does not know yet, that is, the Appeal Court

of Western Australia, about these pin-holes. When

this was found out - it is not only this photograph,

it is other exhibits as well. When it was found

out we asked the Attorney-General to send it back to the Appeal Court so they could reconsider this evidence in the light of what they had already

heard, and that application was not consented to.

The Court of Criminal Appeal gave their judgment on the basis of this photograph which is labelled

and was assumed to have been taken on either
15 or 16 July.	Nobody knew then it had been taken

after this fingerprint had completely disappeared

according to all the evidence at the trial and

the appeal.

GAUDRON J:  I do not want to be difficult but how could it

be taken after the fingerprint had disappeared?

MR WALLWORK:  Well, it could not, it could not. The

fingerprint never disappeared, that is what we

wish to establish. This evidence is all wrong.

DEANE J:  But look, was 15 July, 16 July, whatever it is,

photograph, in evidence at the trial?

PlT4/4/MB	22	25/10/88
Mickel berg

MR WALLWORK:	Yes.
DEANE J:	Well, now, that is what you keep calling the

"11 o'clock" - - -?

MR WALLWORK:  Yes, that is correct and I have got a photo

-· of that here too.

DEANE J:  Is that the photograph that we are now talking

about?

MR WALLWORK:  No, that was another one, I was going to

come to that. That is another one in this bundle.

DEANE J:  Well, does the 11 o'clock photograph that was in

evidence at the trial contain these pin marks

which show that it was not taken?

MR WALLWORK:  Yes, sir, and the Crown concedes that to be

the fact.

DEANE J:  Well, then what have we got to bother about the

other photograph that shows the pin marks for?

MR WALLWORK:  There are three photographs before the Court of

Criminal Appeal which dismiss this appeal by the

Mickelbergs. Two of them say they were taken

on 15 July and on which the Crown experts relied,

That is incorrect so the Court of Appeal

based their judgment on that. Also this exhibit

at the original trial was said to have been taken

on 15 July; at the appeal it was said to be the

16th. But in any event it was said, "It is now

known-to have been taken when the evidence at

the trial said it was not even on the cheque."

That is the importance of it. The evidence at

the trial is just plain wrong, in vital areas,
and because of that, we say, the defence has not
been ever, until now, able to properly·

cross-examine the police witnesses. That is the

importance of it, sir.

DEANE J:  Well, all I was suggesting to you was that it

does not really help to get involved in the extra

photo, that what is relevant is that the photograph

at the trial was quite wrongly identified by the

police evidence?

MR WALLWORK:  Yes, but at the appeal there were two more

photographs which the Crown relied on so the Appeal

Cpurt·could also have been misled which might

be relevant to whether or not Your Honours thought

that the Appeal Court judgment ought to be upheld.

DEANE J:  Thank you.

MR WALLWORK:  I think that is the point of it. So the

photos which I would like to hand up to you so

PlT4/5/MB	23	25/10/88
Mickel berg

as I could explain this, is exhibit 166 of the
Court of Appeal; exhibit 74 at the trail - it is

a photo of it which shows these pin-holes - and exhibit 182 at the appeal which is a photograph

of the negative produced by Mr Billing to say,

. "And this is the negative of the photo I took on

the morning of 16 July before I sent it off to

Canberra which has also got these pin-holes in

it." And the photograph of exhibit 186 which
is a photograph of the back of the cheque which

also shows the pin-holes in it. So the pictures

which have got these pin-holes in it and the labels

on them are in this folder and, finally, the copy
of the exhibit on which the Crown expert, Warboys,
relied to say there were 16 points of identification

I could see on this photograph which the Crown

had said at the trial only had six or seven

points of identification on it and "That's why

we sent it off to Canberra." Yet this, again,

was what misled the Court of Criminal Appeal

in Western Australia.

BRENNAN J:  Mr Wallwork, if we get to the point of saying

that before neither the trial court nor before
the Court of Appeal has any photograph ever been

produced which was taken before the print went

off to Canberra, that is what you are seeking

to prove, is that right?

MR WALLWORK:	No, there is one, sir, that - I do not know. The Crown says there is one at 9, but it does
not do anything for the case, we say. The one
at 9 o'clock is not a vital photograph but that
may have been taken, but it is hard to tell.
It does not get anyone anywhere, we would say.
So the relevant photographs are taken after
20 July, yes.
BRENNAN J:	All right. Well, given that where do we go from there?

MR WALLWORK:  I had better go on then with this precis

of the importance of it.

MASON CJ:	Can we have the photos?
MR WALLWORK:	Yes.
MASON CJ:	Thank you.
MR McKECHNIE:	Your Honours, perhaps to help my learned

friend could I say this about the photos, because

he has referred several times to the concession

by the Crown, and it is simply this, that in the

process that Dr Kobus undertook which included
irrnnersing the cheque in liquid nitrogen in order

to keep the cheque down, as it were, to be

photographed, he pinned it. Any photograph in

PlT4/6/MB	24	25/10/88
Mickel berg

which pin-holes are visible therefore regardless

of the label which may be attached to it, the

Crown would say has had to have been taken

after Dr Kobus' treatment. That, I think, is

the extent of the Crown's concession and would

. seem to follow from everything that was in the

appeal.

MASON CJ:	Thank you.
MR WALLWORK:	Your Honours, if I could perhaps explain

those. The relevant exhibit is the one - the

trial exhibit is the second photograph into

there which shows a board with comparisons on

it. The one at 11 o'clock up the top is the

actual photograph of the cheque said to have

been taken at the trial, that is, the second

photograph in this one, board. That is

exhibit 74 at the trial. That one up the top

showing the fingerprint with a pencil line drawn

around it and a cross was the one said to have

been taken prior to it going off to Canberra,

but it has got pin-holes in it.

The importance of that is that it was sent

off to Canberra because it did not have enough

points of identification, only six or seven.

But if you turn back to the first one, exhibit 166,

that is the one which has got 16 points of

identification in it and it is before it was

sent off to Canberra allegedly - it is on the

label, it says it was taken on 15 July - it has

got the pin-holes in it, it was there for a post-

Canberra photograph. And, yet, the Crown

experts at this appeal, before the Court of

Criminal Appeal in West Australia were relying on this to give Their Honours the evidence that they gave, which Their Honours accepted. If I may go over to the second last one in - - -

DEANE J:  Mr Wallwork, how would it have affected the

evidence that the Crown experts gave on the

appeal? I mean, they were dealing with a

different - - -

MR WALLWORK:	First of all, sir, it was a pre-enhancement photograph allegedly. In fact, it was a post-
enhancement photograph in practice after the
thing had come back.  It may have changed from
a six or seven point print on the night of
15 July to a 16 point. print by the time it got
to Canberra on the 20th.
DEANE J:	Well, I am no doubt being more than unusually
slow but can you take one Crown expert on the appeal and just explain to me how the date on which the photo of the fingerprint on the cheque
would have altered the evidence he gave as to whether
the fingerprint on the cheque could have been caused by a rubber glove il:q:)rint?

PlT4/7/MB	25	25/10/88
Mickel berg

MR WALLWORK (continuing): Had he known that the photo

he was looking at, and that is this one I am

talking about - I will take this photo in

particular- had he known that the first one in

the folder, exhibit 166, was taken some time

after the cheque returned to Western Australia,

about 26 to 27 July, instead of what it says and
what he would have accepted, which was given to
him like this, photographed on 15 July before
enhancement, he may have said, "Well, I do not
know what to make of this because I know the oolice
said it was not even there when this photograph

was taken. Secondly, I know they sent it off to

Canberra because it only had six or seven points

of identification on it, but I can see 16".

0

DEANE J:  I can see that is a point the counsel

makes.

MR WALLWORK: 

Yes, it can develop . like a flower opening up, these men hiding - - -

DEANE J: 

I will not delay you but I would be interested if you could point to the evidence of a specific

expert and show how the date on which the photo

was taken would have altered his evidence in

the Court of Criminal Appeal on the topics on

which he was able to give expert evidence.

MR WALLWORK: 

I cannot do that, Your Honour, for the reason that it was not known at the Court of

Criminal Appeal time that this la.bel was incorrect.

So it is only what counsel, as a defence counsel

at a trial can make of it that is the important part

about it - why the police would want to say it

was taken on 15 July when it was not. Why they

would want to say it was taken on 15 July, a number

of years after the trial when there were extensive

investigations being made into the matter, why they

would want to supply the Solicitor-General with an

never told at that time, "Look, we have made a	incorrectly labelled photograph and why it was
terrible error here.	It really hadn't gone when

it came back. In fact,we have now discovered

photographs we took after it came back". Why did

they not tell the Solicitor-General that? Why did

they not tell anybody that?  Wh7, was not the

Court of Criminal Appeal told, 'Look, we have

made a dreadful error here.  We have now worked this

all out". But in 1987 the Court of Criminal Appeal

was still being told this photograph was taken

before this cheque went to Canberra. There are any

number of sinister implications arising from such a scenario, namely a cover-up. But the important

PlT5/l/SR	26	25/10/88
Mickel berg

aspects of it are the written records do not exist,

the file cannot now be located, there are no

pre-Canberra negatives available, but the Appeal

court was told, "Here is one, this is the one I

took. That is a post-Canberra negative". So

the whole thing is wrong and we say that a conviction

based on wrong evidence from which the defence has been shut out due to incorrect evidence - it would

not matter, we say, whether it was done purposely

or not, but where the defence has been shut out of

an area of proper investigation, it cannot be

said that the evidence has been properly probed at the trial. The error was not ever on the defence.

All the errors have been made by the Crown.

Incidentally, not one of these errors has since been discovered by the Crown, they have been discovered

by the applicants and it is not known what might
be able to be discovered if the original negatives

were ever produced and if this wrong sort of

information had not been continually supplied, from
prior to the trial, at the trial and later on to

the Solicitor-General in 1985 and the Appeal Court

in 1987. Each time something else has come up

which invalidates the earlier material. That is

the danger, we say, of allowing a conviction to

stand on that kind of evidence.

BRENNAN J:  That is not the test that has to be applied,

is it Mr Wallwork?

MR WALLWORK: Your Honour, if I may refer to the law on that aspect

of it which was put at, and we would not argue

with it - it has been put by Your Honours on many

occasions. But at page 3076 of this appeal book,

that is volume XIII,we would rely on the dicta

appearing at page 3076E and that was in

GALLAGHER's decision, the former Chief Justice,

Sir Harry Gibbs. - He said:

I have had the advantage of reading

the reasons for judgment prepared by

Justices Mason and Deane who suggest	that the Court of Criminal Appeal will
conclude that the unavailability of the fresh evidence at the time of the trial
will have involved a miscarriage of
justice if the Court considers that there
is a significant possibility that the jury,
acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. I am in
substantial agreement with this statement.
However, I would emphasize that no form of words should be regarded as an incantation

PlTS/2/SR	27	25/10/88
Mickel berg

that will resolve the difficulties

of every case. No test can detract from

the force of the fundamental principle

that the appeal must be allowed if a

niscarriage of justice is shown to have

occurred. It is only a practical guide

to the application of that principle to

say that the Court will grant a new trial

if, having approached the matter with the

caution that is always demanded when fresh

evidence is produced in a criminal case,

and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at

the trial, it considers that a jury might
reasonably have reached a different verdict

if the evidence had been available at the

trial.

We say that is this evidence had been available

at the trial it is no knowing where it would have

led and what verdict the jury may have come back with.

It is not all we rely on, we are relying on a multitude of errors which I have not yet got to -

some of them. But if I can just go on. In the

same case, Mr Justice Brennan observed:

The miscarriage of justice consists in

a conviction which it is likely would not

have occurred if the fresh evidence had

been given. It is enough that the fresh
evidence, if given, would have been likely

'to remove the certainty of the prisoner's

guilt'.

And on the bottom of that page, 3077, opposite E:

A court will not, of course, reach such a conclusion lightly and will bear in mind that the evidence led at the previous trial

was sufficient in the opinion of the jury

beyond reasonable doubt. For this reason a

to establish the guilt of the appellant

verdict will not be disturbed unless the

fresh evidence is relevant, cogent and

plausible. In the end, however, the question

remains whether on the whole of the evidence,

including the fresh evidence, a jury might
reasonably acquit, not whether it is
likely to do so.

And on page 3078, opposite B:

I have thought it preferable to express

myself as I have because it seems to me

that if there is any real possibility of

acquittal by a reasonable jury, it must

always be significant when considering

miscarriage of justice.

PlTS/3/SR	28	25/10/88
Mickel berg

And I will not go on reading extracts from said in many different ways. But if there is a

real possibility, we say, that a jury may have

reached a different verdict, had the defence

. been able to probe this evidence properly, then

the man is entitled to a retrial, that is

basically what we say. There is a corollary to that and that is this: the applicant could not
probe this case properly ; he could not properly

defend himself because in a number of significant

areas the Crown evidence was plain wrong and

misleading. And we say that that is a very relevant
matter because if the benefit is to be given to

anybody in those circumstances it should be given

to the accused person. It is no knowing where he

could have gone had he known all this what he

knows now ; had he been able to examine all the

detectives and say, "Why didn't you do this? Why

didn't you do that?"et cetera. And it would be not

fair to the applicant if I did not refer

Your Honours to volume XII of the appeal book at

page 2915 at the bottom. The applicant brothers

taped the officer-in-charge of this investi~ation

without his knowing about it when he came to their

home.  And this is what he said: 

RAY -

and Ray is the applicant,Raymond. That is

volume XII, at page 2915. This is the officer-in-charge

of the investigation:

RAY You shouldn't attack old grannies.

That was your mistake. You should have

left the grannies and the women alone.

The Western Australian Police Force picked up

Ray Mickelberg's wife and two young children at

7.00 am in the morning and took them into the

police headquarters and kept them there while they

separately questioned Raymond Mickelberg on

23 September. And this is the conversation about that:

You should have left the grannies and

the women alone.

HANCOCK Well, we offered you that.

RAY No, you didn't. You went and took

Sheryl -

who is Ray Mickelberg's wife -

before you spoke to me.

HANCOCK You knew this was coming.	You
knew it was on.

PlTS/4/SR	29	25/10/88
Mickelberg

RAY No, we didn't; not at all.

HANCOCK You got every opportunity to

leave them out.

RAY You changed -

rules, I think that should be but it does not matter:

If td been in your position.

HANCOCK That was to put pressure on you.

RAY I know that but if I had been the guy

in charge I would have threatened it but

I wouldn't have done it.

HANCOCK Are you talking about mum -

that is Ray Mickelberg's mother -

or you wives?

HANCOCK Your wives didn't get charged.

They only went into the office and out

again. There is nothing to be worried about

that ..

RAY They were still dragged out early in

the morning. It inconvenienced them and

scared them. If I was the sergeant in charge

would you like it if I arrested your wife

and kids?

HANCOCK They weren't arrested.

RAY No, but they were still dragged off - you know.

HANCOCK They were asked.

RAY There was no option.

HANCOCK No.

RAY Well, I ask the question again: Would you like it?

HANCOCK Of course not, but you've got to

play the game, don't you? I mean, you can't

have everything your way.

RAY I don't think I am having anything my way

HANCOCK I don't know what you expect.

RAY To live by certain rules.

PlTS/5/SR	30	MR WALLWORK, QC	25/10/88 ·
Mickel berg

HANCOCK Well, are there rules?

RAY You tell me there are.

HANCOCK No. There might be guidelines

but no rules. I could have gone harder. We

could have thrown them in and built a fence
around them, too, and made it real hard.

They would have probably walked out on it.

RAY Yes, they would have.

HANCOCK	We could have made it a lot harder.
RAY	Do you think it would have been wise?
HANCOCK	I couldn't see any point in it.

The point was to try and get you to come to

the party.

Which is a strange thing to do if the man was ready

to confess verbally as they had said he was.and

his brother:

But you didn't.

I do not know what that refers to, it can only mean

not coming to the party or not confessing, presumably:

It is no good you bitching about it.

RAY I'm not bitching. I'm just saying

that you, if you're a man,	you shouldn't
have, as I know I wouldn't have.
HANCOCK Nobody is harmed by it.	You didn't

react as most fellows would have over the

whole deal.-

again, if that is relative to a confession, it is

a funny way of putting it -

so something different had to be done.

Normally, it wouldn't have been done.

RAY You can put me in a chair and flick

the switch and I would beg you "Please" on the hope that you wouldn't and if you did, well, hard luck.

HANCOCK Do you know what I'd do?

RAY Yes, you'd have it disconnected.

HANCOCK No I wouldn't; I'd flick it.

RAY Well, I'd be gone. It wouldn't hurt me.

PlTS/6/SR	31	25/10/88
Mickel berg

HANCOCK Pride comes into it. Don't ever challenge me to do something because I'll

fucking do it all right.	You can rest
assured about that.
PETER You're mean, Don.

HANCOCK I'm not a mean person, but, I'll

tell you what, I've done things in my life

that you never did, and harder things -

and I might add that Ray Mickelberg was an SAS
paratrooper in Vietnam for 12 months, I do not know

what this man has suppose to have done -

worse things, and if I've got to do them

again, well, I'll do them again.

RAY In the line of duty.

HANCOCK That's it, yes. What I believe

is my line of duty - to get the job done.

RAY With violence if necessary.

HANCOCK Well, maybe not - - tried everything

else.

RAY It works on some people but not others.

Some people like pain - - no that's not

technically right. No-one really likes it

but they can handle it.

HANCOCK Have you ever had extreme pain?

Crying pain?

RAY No, you've got to get down to -

HANCOCK Luckily we live under a democracy.

You can't do this.

RAY You think you'd like to, do you?

HANCOCK No. I don't really. I wouldn't

like to. Let's put it that way.

RAY I just wish you hadn't done that to them.

His wife and two young children:

HANCOCK It's not that important. Why do you

keep looking for things that we might have

done wrong? I don't believe you're dinkum

about that. You don't really - - That doesn't

worry you - that we took the wives into the

office, does it?

PlTS/7/SR	32	25/10/88
Mickel berg

RAY Yes, it does.

HANCOCK Well, I don't see why. It really

wouldn't worry me.

RAY Because I think it was weak.	I hate
weakness. I loathe it - you know.	I'd
rather die than be treated weak.

HANCOCK What do you reckon was weak about

that?

RAY Stooping to those tactics.

HANCOCK To use something to bring pressure

onto somebody else. It's done all the time.

RAY Well, to bring pressure on a person is

probably not bad but it is the method used

and the fact that innocent people are

inconvenienced and children are there. Not

very nice.

HOOFT There are a lot of things that happen

that aren't very nice, Ray. ·

RAY If you wanted to put my hand in a mincer well, fair enough. It would be a bit awkward

but I'd scream like buggery and I wouldn't

have a hand. I would probably look upon that

as more justifiable than, perhaps - - -

HANCOCK The majority of things are cleaned

up because of pressure that can be brought

to bear in other ways than personally. If

it was left to that, nobody would ever get

anything cleaned up. The weak blokes would

admit the things; the strong blokes wouldn't.

So there has to be other ways of putting pressure on. That's only cormnon sense. It is

done all over the world in all sorts of ways.

MASON CJ:  Now, what are we getting out of all this, Mr Wallwork?

MR WALLWORK: Just another six lines, sir, and then I am

going to stop it. And that is the attitude of
the officer-in-charge of this investigation towards

these people. They did not sign a written confession.

They are alleged to have verbally given comments

that would, in the words of the Court of Criminal

Appeal, tacitly admit th~ir offences. But this

bit here, lastly - I do think that that is

important, the next couple of lines:

RAY Oh, yes, true.

P.ANCOCK "You either do this or we' 11 tell

your missus that you're screwing the bird

down the street.

PlTS/8/SR	33	25/10/88
Mickel berg

RAY Whose idea was it to bring Sheryl and the kids in? Yours?

HANCOCK Yes, of course. Entirely responsible.

RAY .I didn't think you would say it. I thought

you might have said some poor bastard up top.

HANCOCK Come on! No. I've got no qualms about that. I'd do it again tomorrow.

Now if that is the standard of the police investigation,

what could a defence make out of that, allied with

the matters I have already referred ta? Where does

pressure end. Your Honours have, of course, dealt

with it in WILLIAM's case and I will not go into

that. But if you look at that kind of evidence

and you look at false or wrong evidence and a man

convicted on it, it is submitted that it would be

dangerous to allow these convictions to stand with

that kind of attitude being demonstrated. It gives

all sorts of reasons why things can be done; why

prints are not what they are said to be; why photos

are backdated, all this sort of paraphernalia that

I have been addressing Your Honours on. That is

the significance of that tape. If there were to be

a retrial that would be obviously the highlight

of it. That would be the first thing the

detectives would be asked about. And the photographs
incorrectly labelled would be the second and the

fact that they can manage to get 16 beautiful

points of identification off a cheque when the·

fingerprint has gone completely.would be the third,

and so on.

So, it is the £?-ct;, ip our submission, that this is a

very dangerous conviction in view of all this sort of evidence. briefly, a~d ~f I qan get back to the summary

of argument. That evidence - and I think half-way

down page 5 - the importance of this evidence is

that apart from it being misleading to the defence

generally, exhibit 166 shows up to 16 points of
comparison - Crown witness, Warboys.	He was the star

Crown witness at the appeal. This fact severely

damages the Crown evidence that the cheque was sent

to Canberra because there were insufficient points
of identification on the alleged fingerprint for
it to be used in court or possibly only 6 or 7

points of identification. Olney J's comments are

important in this. Mr Justice Olney accepted

that this photograph was taken on 15 July.

The incorrect evidence referred to in paragraph 2

above deprived the applicant, we submit, of the

chance to properly examine the question of the

authenticity of the alleged fingerprint. He denied

PlTS/9/SR 34 25/10/88

Mickel berg

that he had handled the cheque prior to the

offences. The judges in the Court of Appeal were

also misied.. The presence of the pin-hole in the

photographs was not discovered until after the

appeal. The fact that Mr Billing had asked for the

comparison of the fingerprints was only revealed

. ·when he gave evidence at the appeal on 31 August 1987

after Mr Henning had given evidence and after we

were not told that it was really Billing.

The damage to the defence by the evidence concerning the fingerprint discussed above was increased when the learned Crown prosecutor told

the jury in his closing address that Sergeant Henning

had done his comparison as soon as they nad the

fingerprints of Raymond Mickelberg to compare it

with. Now that is wrong. The fingerprints were

taken of Raymond Mickelberg at 12.30. Sergeant Henning

did not do any comparison at all, he went home. And late night, Mr Billing says, he and another

constable, who never gave evidence at all, did this

comparison for the first time.

(Continued on page 36 )

P1T5/10/SR	35	25/10/88
Mickel berg

MR-WALLWORK (continuing):  And Mr Billing gave 67 pages of

evidence at this original trial on the transcript and

not once did he mention any of this. In fact, for

sme yet to be explained reason neither Sergeant Henning

nor Detective Sergeant Hancock or any of the

investigating detectives did anything about comparing

_the fingerprints of the applicant with the fingerprint

- on the cheque during the afternoon of 15 July. This

was contrary to the impression given to the jury.

Neither the jury nor the Appeal Court had evidence

from Senior ConstabLe Heysen - I have dealt with that.

The prejudice to the defence was increased when the

learned trial judge told the jury in his final trial

address that: "You may safely accept that a fingerprint

is, in effect, an unforgeable signature." The

evidence of the appeal established this statement is

incorrect.

•

It is relative when considering the question of

how the jury's verdict may have been affected, had

the defence been able to explore the above question at 1, it is contrary to normal police procedure not to photograph a ninhydren fingerprint for 23 days as the Crown said happened in this case. It is

contrary to normal police procedure - and this is

universal police procedure - not to keep records of

photography, and there are none concerning the alleged

fingerprint before 28 July.

DEANE J: What is the evidence on 28 July?

MR WALLWORK:	That is where the first photographic record was made of the photograph of this print.
DEANE J:	By whom?
MR WALLWORK:	The police.

DEANE J: Where, though?

MR WALLWORK: In their photographic register department.

DEANE J:	I see.
MR WALLWORK:	The file which was kept by the police concerning

the alleged fingerprint cannot be located and could not
be located for the Court of Appeal. Detective Roun-ct
-who played- a very active part in this investigation,

Gaid, at the appeal that, on 9 July 1982 he was not aware that a crime mark had been found on the cheque,

which is startling, seeing that this was being

investigated from 24 June and he was one of the ace
investigators. The learned Crown prosecutor, in his

closing address said, "Part of the planted evidence,

is the accused Raymond Mickelberg wanting you to

thinR that the police already had his fingerprints

on file ..... Not so; the accused Raymond Mickelberg

said that some police officer said, 'We've had you

on file from so and so', not the police officer, not

PlT6/l/VH	3 6	25/10/88
Mickel berg

anyone outside the accused himself and this is the

devilishly cunning preparation of this swindle of

the Jury."

The learned trial judge in his direction said,

"There is no evidence that his fingerprint from that

time was available to the police officers and you

-would have expected if it were that when

Sergeant Henning found the fingerprint, as he has told you, on 24 June, that it would have been

compared with Raymond Mickelberg's fingerprint if

it were in the records!' In fact, the police in

Western Australia had a file on the applicant and from the information in that file they could have

obtained a set of his fingerprints as soon as the

applicant became a suspect. That was on 9 July at the

latest, six days before his house was searched and,

of course, there were good reasons why his house was

searched three times on 15th because they thought

he was the suspect.

TOOHEY J:  Mr Wallwork, you told us, I think, that there is

no negative in existence of -

MR WALLWORK:  That we know of.

TOOHEY J: Well, let me finish - of a photograph taken

before Canberra was brought into the picture, and

I take it by that you mean there is no negative

available of a fingerprint which shows no pin:hole

is that right?

MR WALLWORK:  That is what I understand the position to be, yes, we have never seen one.

TOOHEY J: Well, negatives aside, is there any photograph

in existence which shows no pin.-hole?

MR WALLWORK:  Only this one at 9 o'clock, which is too bad

or poor a photograph for anything much to be done

with it. That is at 9 o'clock on exhibit 74.

TOOHEY J: Is that the only one?
MR WALLWORK:	Yes, sir, that I am aware of, subject to

correction. So the judge told the jury that,

"You would have expected that if there had been a

fingerprint available, Sergeant Henning would have,

when he found the fingerprint, as he told you on

24 June, that it would have been compared with

Raymond John Mickelberg's fingerprint if it were

in the records." In fact, the police in Western

Australia had a file on the applicant and from the

information in that file they could have obtained

a set of his fingerprints as soon as the applicant

became a suspect. The evidence of Chief Inspector

Norton, retired, from Victoria, whom the Crown

brought over here for the appeal, is very relevant

to that aspect. He said he probably would have done

PlT6/2/VH	37	25/10/88
Mickel berg

the comparison. The Western Australian police

made no request for the applicant's fingerprints

even though by 9 July he was a suspect. The jury

did not have the advantage of knowing in detail

what the officer in charge of the investigation had

said to Raymond Mickelberg as recorded on a tape;

· there were a couple of question asked by defence

counsel but not in the detail that I have just read

to Your Honours; the references are there. It was

only partly referred to at the trial. It is now

conceded by the Crown that that bit I read to you

is a transcript recording of the conversation.

The applicant was generally prejudiced in

his defence by the Crown evidence concerning the

identification of the applicant,Peter Mickelberg.

He adopts the submissions which will be made on

Peter Mickelberg's behalf. What I was going to say,

sirs, that my learned friend, Mr McCusker,will take

you in great detail through that and it would

double-handling, in our respectful submission, if I

were to do it first. It is relative to Peter, really. trial together and once Peter was in, Ray was in, and vice versa.

It is submitted that because the cogent evidence

discussed above was led by the Crown and considered

by the Crown and is now known to be incorrect, the
convictions should be quashed. Your Honours, we would

like to ally ourselves with and adopt what Mr Mccusker

would like to say to you because he will cover the

rest of the matters which we say, within the dicta

of Sir Garfield Barwick in IRELAND's case, amount

to an aggregate of faults, such that the conviction

should not be allowed to stand.

BRENNAN J:  Mr Wallwork, may I just ask you two questions?

The first is this:  the material that you have been

drawing our attention to, is that capable of affecting

a finding as to whether the rubber glove could have

produced the crime mark?

MR WALLWORK:  Yes, sir. The evidence at the appeal by the

applicants-' experts was that it was capable of

productng a crime mark.

BRENNAN J:  But that is not my question. The material to which

you have been drawing our attention, about the

photographs when they were taken, and so forth; the

evidence of the police; the tape recorder; is that evidence capable of affecting a finding reasonably

as to whether the crime mark was capable of being

produced by the rubber hand?

MR WALLWORK:  Yes. If the experts were called at a trial

and they say, as they did at the appeal and the judges

PlT6/3/VH	38	25/10/88
Mickel berg

of the appeal say this, it cannot be said whether

this is a genuine print or a false print, and the

jury were taken into these areas which I have been

covering and the jury would be asked by defence

counsel to say, "Look, you cannot accept anything

that these people say. This is wrong.	Raymond Mickelberg
.	ought to be believed when he says, 'I never said
those things out at Belmont." You see, as my learned

friend, Mr Mccusker, is going to address Your Honours

on, these two men were ordered to be picked up on the

morning of 26 July by the police. They should have

been taken to Perth CIB headquarters where a whole

investigation area was set up. They were taken to

an outlying police station in Belmont and questioned.

They never signed any written admission of any kind

and they were said to have passively admitted to the

police officers there that they were involved.

Raymond Mickelberg says, "I never touched that

cheque prior to this offence; that could not be my

print. I ask you to believe me. And look at all

the rest of this evidence. Why should you believe

that I allegedly tacitly admitted a part in this,"

or, "Why should you believe that that print which

could have been put on there, why should you believe

it is my genuine print?" So the whole thing, we say,

is a jury question. ·Whether a jury would accept that

kind of evidence knowing all this other additional

new and/or fresh evidence is the question, and we would

say it would be dangerous not to allow a jury to hear

the right evidence instead of a lot of wrong evidence.

BRENNAN J: And can I just ask you the second question: that is,

has this Court ever allowed an appeal on the	grotmd of
fresh evidence which has emerged between the	time of
the hearing of an appeal by the intermediate	Court of
Appeal and the hearing of the appeal by this	Court?

MR WALLWORK:  Not that I am aware of, Your Honours, not that

I am aware of. But we really would only like to say

this about that:  we did ask it be referred back to

the Court of Criminal Appeal and it was not. We

cannot get back to the Court of Criminal Appeal.

Perhaps that should have been done but the only way,

again, the applicant can go is to this Court. There

is only two ways: he can get an inquiry set up or this

Court can make orders, perhaps sending it back to

the Court of Criminal Appeal or perhaps doing anything

that Your Honours, I think, would want to do. But we

would ask you to quash the conviction because it is

too dangerous to stand, fJndamentally, on the basis

that Raymond Mickelberg is not responsible for all

this incorrect evidence; it is the Crown. They did

not do things properly and I do not want to preface
my friend's corrnnents, but it was not only in connection

with the fingerprint. There is the method he is

going to tell you about in a minute of putting

photographs into the jury room said to have identified

PlT6/4/VH	39	25/10/88
Mickel berg

Peter, and all this sort of business, which he will

go into in detail; it was not only the fingerprint.

So perhaps if I could leave it at that, Your Honours, from Raymond's point of view, but adopt my friend's

additional remarks.

MASON CJ;· Yes, Mr Wallwork.

MR WALLWORK:	Thank you, sir.
MASON CJ:	Yes, Mr Mccusker.

MR McCUSKER:  May it please Your Honours. I have six copies

of the outline of submissions for Your Honours.

MASON CJ:	Thank you.
MR McKECHNIE:	I wonder if I could interpose my learned friend

before he starts, Your Honours? The Crown, on

18 July, received a letter from this applicant's

has received some other material, it was not until this morning and, judging from the outline of

then solicitors indicating an intention then to

amend the grounds to be identical with his brother

submissions that it appears that it proposes to argue,

the applicant proposes to argue ·all the matters

raised in the application book. I just formally ask

my friend if that is the case because the undertaking

that was given by the solicitors is then to be breached

and certainly the Crown will endeavour to meet the

arguments as now mounted, but we have proceeded all

along, or since 18 July, following the hearing before

Your Honour Justice Toohey and the appeal books have

been prepared on the basis that the only matters to

be covered by this applicant were those identical

with the grounds of his brother, Raymond.	If Your Honours
please.

MASON CJ: What is the position, Mr Mccusker?

MR McCUSKER:  May it please Your Honour, it is proposed to argue

all the grounds. I became aware, very recently,indeed,

of the undertaking referred to by my learned friend,

given by Peter Mickelberg's former solicitors.

However, such an undertaking, I would respectfully

submit, could in no way hamper his freedom to argue

grounds which counsel considered to be 'proper grounds

uponan application for special leave. Due to

Mr Mickelberg's impecunious circumstances, which are

deposed to in his affidavit, it has only been quite

recent that he has been able to obtain the services

of counsel and when that occurred, I did, having been

briefed some three and a half, four weeks ago, have

a conversation with my learned firned, Mr McKechnie,

in which I did, at that stage, indicate that whatever

undertaking may have been given - my learned friend

referred to an undertaking then - as I saw it, it would

be improper for Peter Mickelberg not to argue some

PlT6/5/VH	40	25/10/88
Mickel berg

of the other groundsandI mention those specifically

they refer to the handwriting and the photo-fit

identification. The other grounds - I have discussed

this with my learned friend this morning - which are

in there, for the most part, are in some way or other
traversed by the grounds of Raymond Mickelberg,

·although they have not yet been argued; my learned friend, apparently, has left the burden of that in

some part to me, and all of the grounds, as I perceive

it, were matters which were dealt with in argument

before the Court of Criminal Appeal· below. So it is

not as if there are fresh matters sought to be raised.

So far as the material is concerned, my learned

friend did mention to me, when I had the conversation

some weeks ago that I mentioned, that it may become

necessary to provide the Court with further material

beyond that included in the appeal books, as they then

stood. I understand that, for different reasons, in

fact, because it was thought by my learned friend

for Raymond Mickelberg that all the material ought to
be available before the Court in case the Court sees
the need to refer to other material. All that material

is, in fact, before the Court; all the material has

been bound and is available for reference by the

applicant or, of course, by counsel for the Crown.

May it please Your Honours.

MASON CJ: Yes. Well, Mr McCusker, I think you may proceed

with your argument and we will have the opportunity

of going through the outline, which is very lengthy,

as you present your argument.

MR McCUSKER:  May it please Your Honours. May I say first,

taking up one or two of the points that have been

raised by my learned friend in argument, that,

although the question of Raymond's fingerprint would not
seem at first to be of any direct relevance to the
case against Peter Mickelberg, it is, of ·course,
one of the essential pieces of evidence because of

the fact that the charge was conspiracy - the nature

of the charge. Indeed, it was referred to,as my

learned friend said, by the learned trial judge in his

direction, as being one of the highly significant

pieces of direct evidence.

The first submission,which we would make, Your Honours, in relation to the fingerprint evidence,

if I may so categorize it, is that the finding of the

jury and the finding of the Court of Criminal Appeal

is, in each case, based on wrong evidence and that,

we do not say, is, as it were, sufficient for this

Court to intervene, but it is wrong evidence which goes to a very important matter and, that is, to put it fairly and squarely before the Court, the

question of which of two alternative inferences or

conclusions. was open to the jury in relation to

the fingerprint. Was the fingerprint placed there

PlT6/6/VH	41	25/10/88
Mickelberg

by Raymond Mickelberg in the course of committing

the crime, or was it placed there by the police

as a forgery using a silicone rubber moulding for

that purpose? Before the Court of Criminal Appeal

there were, in fact, copies or replicas of

Raymond's finger produced to demonstrate the

intricate detail which it is possible to achieve

·with this comparatively advanced, but certainly not novel, method of moulding fingers and other parts of the anatomy and, of course, other things,

in 1982. The evidence before the Court of Criminal

Appeal was that, quite clearly and contrary to

the learned trial judge's direction to the jury,

a fingerprint is capable of being forced.

Now, looking at the date, one has to have

regard to the scientific and expert evidence that

was given to the Court of Criminal Appeal as to the

nature of fingerprints and fingerprint detection. Your Honours, the first matter to be aware of is

that the evidence that was given is that when a
fingerprint is thought to exist by police officers

in the course of detection, the fingerprint or the

area which may have a fingerprint is subjected to

a ninhydren chemical treatment which innnediately

brings up the fingerprint so that it can be

photographed. As my learned friend, Mr Wallwork,

has said, the result of that, since it may disappear

and times vary, is usually - and in accordance with

prudent police practice - photographed. The first

question, then, is, why was it not photographed on

24 June when, on the police evidence - and the

police evidence had to be this because they had the

cheque on 23 June and one would expect them to check

it for· fingerprints - on the police evidence on

24 June they had identified what is referred to as

the "crime mark," that is, the one fingerprint

amongst a number of others for which they could not

account. They went to the mint, checked with

employees and found that this was the one left and

this was the suspect print. So the first question is,

if it was there, why was it not photographed?

The next question is, when, as the evidence

disclosed, both Peter and Raymond Mickelberg, before

15 July, were suspects- why was not the fingerprint

then photographed? But it was not. And furthermore,

in the case of Raymond Mickelberg, why was not some

attempt made to compare the fingerprint,if it did
exist, with the fingerprints which did exist on file

of Raymond Mickelberg in Canberra, a bureau to which

this police department as, I think every State, has

access, Again, the question is raised, why was it not

done? Because, in accordance with normal police

practice, it should have been done. The further

question, as my learned friend has said, we go to
15 July, when Raymond Mickelberg was arrested on a charge of - it is a petty charge - of using a false

name. He was then, of course, well known to be a

P1T6/7/VH	42	25/10/88
Mickel berg

suspect by all of the investigating officers including

Detective Sergeant Hancock. His fingerprints were

taken, it appears, twice on that day, but no comparison

was made, it is said, and certainly nothing was done

in order to confront him as would be expected with

the evidence that his fingerprint corresponded. to the

crime mark, if the crime mark existed.

(Continued on page 44)

P1T6/8/VH	43	25/10/88
Mickel berg
MR McCUSKER	(continuing):	On 16 July Raym:md Vickelberg was taken

to court, charged and convicted and fined, I think,

$10 on the charge of using a false name, and

released. If the fingerprint, the crime mark,
existed - which the experts have said, looking

at the photograph that was produced to them,

·showed sufficient points of identification -

that is their evidence on that photograph

which we now know was not a photograph taken on the 15th or the 16th, but some time after

20 July - why was Raymond Mickelberg allowed to

go and why was he not confronted with the fingerprint?

Your Honours, in the material before you,

just dealing with one matter of what photographs

of prints were in existence, there was one at

9 o'clock - - -

DEANE J:  Mr Mccusker, if you go back to the trial and

look at Detective Henning's evidence, was any of this arsument put in cross-examination, or any of these rhetorical questions you are

asking?

MR McCUSKER:  Your Honour, to a small extent, as I

understand it, but the point - - -

DEANE J: Well, where?

MR McCUSKER:  - - -that we really seek to make is that

the significance of this further evidence

against the background of the facts that I

am saying looms large, because whereas it may

not have been thought to be perhaps more

than carelessness, sloppiness perhaps, not to

have photoeraphed the print before 15 July,

which was the evidence given in the court - - -

DEANE J:  But the dispute at the trial was the Crown

said this fingerprint had been there and known

to the police since 24 June.

MR McCUSKER: True.

DEANE J: The defence said the fingerprint was not there

until 15 July.

MR McCUSKER:  No, Your Honour, the defence said that

the fingerprint was not there and how it got

there, the defence did not know. The evidence

of Raymond Mickelberg at the trial, and this is

significant - he gave evidence, of course, after

he knew full well that the crime mark - - -

DEANE J:  Let us not take time. The defence said that

the fingerprint was not there before 15 July.

MR McCUSKER:	Yes, Your Honour.
PIT7/1/JM	25/10/88
Mickelberg	44
DEANE J:	On which day Ray Mickelberg handled the cheque.
MR McCUSKER:	Yes.

DEANE J: Then all these rhetorical questions were directly

relevant to that central issue at the trial.

MR McCUSKER:	They were.
DEANE J:	And I have been reading Detective Henning's

evidence:	I cannot find any cross-examination
at all.

MR McCUSKER:	I do not think there was any, Your Honour. The approach that the defence took, because
of a total inability to understand how the
print could have got there, was that through
Mr Cannon, counsel for Raymond Mickelberg
in closing address to the jury, to suggest to the jury, contrary to the evidence of
Raymond Mickelberg, that the mark might have
got there during the handling which Raymond Mickelberg said took place. But Raymond Mickelberg, although it might have been in his interest to say, "Yes, I could have handled it", said clearly and unequivocally
that he held it at the corners.  So that he said,
"I don't know how my fingerprint got there." That
was his evidence. It was not a proposition by
Mickelberg in his evidence, "I could've put my
fingerprint there inadvertently." His evidence was clear, "I thought Hancock was trying to get me
to handle it, so I avoided doing it."

I. accept what Your Honour says that

more could have been made of these matters that

I have mentioned leading up to the significance of the further change in the date of the

photographing of the cheque.

DEANE J: Well, now, can I ask you this: was there

any evidence, either at the trial or before

the Court of Criminal Appeal, as to what

facilities exist in this country for central

checking of a crime mark once it is found by

the police?

MR McCUSKER:  Yes, there is. There is evidence of that,

Your Honour. I cannot directly - - -

DEANE J: Was that pursued at the trial at all? Why, if

the police found what they believed was a

crime mark - - -

MR McCUSKER:	I believe not, Your Honour.
DEANE J:	- - - it was not sent over to have checked

against records of fingerprints?

PIT7/2/JM	45	25/10/88
Mickelberg
MR McCUSKER:	I believe not, Your Honour.	I am subject to

correction - no, it was not. It was not, but,

Your Honour, can I just explain the reasoning

behind that too"t It appears - there is evidence

of this - that prior to the matter going to

trial, counsel for Raymond Mickelberg, Mr Cannon,

-had called for an expert, or person who was

of some experience in fingerprinting detection,

from Queensland and sought through the medium

of experimentation, which seems on the evidence

to have been highly crude experimentation, to

see whether a fingerprint could be forged by

medium of a rubber silicon finger, a finger

that is produced - a replica of Raymond's finger.

That expert, of whom I think evidence was given at the Court of Criminal Appeal, experimented

• unsuccessfully and said that he did not think

it could be done. He was wrong; it could have

been, but not with the materials and the tools

that he was using. Based on that, counsel saw

it as inappropriate to pursue the line that

the police could have forged the fingerprint,

and in the course of cross-examination of
Raymond Mickelberg by counsel for the prosecution,
Ryamond Mickelberg - who had given evidence as had

his wife and Peter and indeed one of the detectives

had given evidence to the same effect that rubber
hands were taken on 15 July - was questioned as

to what he saw as being the significance of that.
Being unable to say, in his then state of knowledge,
that the moulds or the hands could have been used
to create a forgery, he said, "I can't say." And
although the question was put to him several times,

he simply said, "I cannot say". He maintained

therefore simply, from his evidence, he did not

know how the print could have got there; he could

not suggest how it had got there; he clearly had

some suspicion but was not prepared to voice it
against the background of this failed experiment.

That was the reason, Your Honour, why in the

end the question cf forgery, to which these

. rhetorical questions would be very relevant was not

pursued.

DEANE J:  But in terms of the relevance of these issues,

they were alwaysrelevant at the trial when the

issue was whether Ray Mickelberg had been, as it

were, entrapped into putting his fingerprint

on it in the course of interrogation on the 15th,

or whether they were genuinely there on the 24th.

MR McCUSKER:  Your Honour, in the face of Raymond Mickelberg's

very clear evidence - he steadfastly maintained that he could not have put his finger on it in the place indicated, since he touched the corners,

taking care not to touch the cheques because he

suspected Detective Hancock - it could not really

be pursued. It is certainly the case that, in

a flight of oratory, perhaps, some suggestion was

PIT7/3/JM	46	25/10/88
Mickelberg

made to that effect to the jury by Mr Cannon, but was supported by no evidence; in fact, it was contradicted by the evidence of Raymond.

DEANE J: But that was what the trial judge understood

the - - -

MR McCUSKER:	He understood the defence - - -
DEANE J:	- - - contest to be in that respect.

MR McCUSKER: Yes, he did, Your Honour, quite wrongly.

Mr Cannon, as I suppose counsel may sometimes have the licence to do - I do not say he does,

but in any event h:. addressed the jury on the

basis of evidence which simply did not exist.

DEANE J:  One of the problems here is that if the police

had sent the fingerprint to be checked out on

27 June, say, at some central bureau and if it

had come back with, "It doesn't match any

fingerprint we hold", that evidence would only

have been admissible if the defence made it

admissible by cross-examining and one can well

envisage a deliberate decision being made by

counsel not to pursue what records existed prior

to the 15th.

MR McCUSKER:	Your Honour, it does not seem from the context to have been a decision based on that
approach, but rather a decision that since it
could not be established, as they misconceivedly
considered, there was no point in pursuing the
line of- forgery. It was only Raymond who gave
hints, as it were, of his suspicions but was not prepared, perhaps under counsel's advice, to actually voice those suspicions and under
cross-examination, as I said, he simply said,
"I don't know how it got there. I cannot say
what the significance of the moulds is."
DEANE J: Thank you.

MR McCUSKER: That, of course, is of great significance

when it comes to looking at what I think

Your Honour Mr Justice Brennan suggested might

be the contest: whether it could have been

on the one hand a crime mark placed there by

the criminal, or whether it could have been a

forgery, or whether it could have been put

there inadvertently on 15 July. The latter

proposition was never open and was never

Raymond Mickelberg's proposition. It was his

counsel's, but not his.

So we are left, Your Honours, with the proposition which was not advanced at the trial

at all, that this crime mark could have been a

forgery. Not only was it not advanced, but indeed

PIT7/4/JM	47	25/10/88
Mickelberg

that was taken away from the jury, if there

had been any evidence to support it. But evidence
has since been obtained which shows that the trial

judge's direction was wrong. It can be forged,

and we have here the unique - almost unique

coincidence that this man,	and there is overwhelming
evidence to this effect,	had this unusual hobby

of making casts of his fingers,and his family's

fingers and hands and so on, and kept them at his

home. He says, and his family said, that these

moulds and casts and so on were seized by the

police on 15 July.

Now the significance of the date becomes

more apparent when considering the scientific

evidence that was given,and that is that when

a _fingerprint is fresh it may not, even under

this ninhydren treatment, be other than what

was called, I think, an immature print. In other

words, photographing a fresh print, if it were

freshly made on 15 or 16 July, could result

in a very poor print, one from which one could not

pick up any sufficient identification. The evidence

was further, from the experts, that in order to

forge a print in the way suggested now, some time

would have to be taken. It is not something

that could be done, as it were, slapdash.

Experimentation to get the right content of the

amino acid that has to be put - which is simply

from the body, from the skin - has to be put on

the rubber print. The first few experiments may

not be successful because of the nature of the

receiving article and so on, but it can be done.

This ,would account for the fact that - although

on the evidence of some of the witnesses,

a number of witnesses, uncontested at trial,
these moulds et cetera were seized on 15 July -

we do not have a photograph of the print

taken on the 15th because the print was then

simply immature, or in the process of being

fabricated. We do not have a print taken -

although evidence at the Court of Criminal Appeal

was that the print which appears in exhibit 166 was taken on 16 July, we now know that is wrong

too and the evidence given before the Court from

the experts was that new prints, whether they

be forged or natural, may mature over a period of

days. Now, over a period of days, en route to

Canberra, this print - which we say, on the

evidence, if it existed, existed in a very crude.

state on 16 July - may have matured sufficiently

for the photograph which is exhibit 166 to be

taken which shows a very clear fingerprint, one

which all the experts said was a print from which

sufficient points of identification could be taken.

That is the significance, Your Honours, of

this new evidence: that if the print shown to the

PIT?/5/JM	48	25/10/88
Mickelberg

experts at the trial was L~ that form on 15 or 16 July,

then the experts would have said it is unlikely

that that print could have been forged on

15 July, because it would probably, though not

invariably, take time to mature. But if that print

w~s made on 15 July and took time to mature,

that accounts - that is a reasonable hypothesis

which accounts for the fact that the only photograph

which exists showing the clear print is one which

we now know for the first time, through what my

learned friend describes as good fortune - that is

all it was - - -

MASON CJ:  Mr Mccusker, could you identify for us the

pages in the transcript in the appeal books where

we can read the evidence relating to maturing

prints?

MR McCUSKER:  Yes, Your Honour.

MASON CJ: Because we may be able to do that during the

break.

MR McCUSKER:  Yes, Your Honour. I will undertake to provide

Your Honours with a schedule, if I could do that,

which lists the various propositions supported by the

evidence, rather than go through it in detail.

MASON CJ: Yes, if you would, but if you could identify

the pages that deal with maturing prints now

so that we can look at the evidence, if we have

the opportunity during the adjournment.

MR McCUSKER:  Yes. May I just quickly go on while my

learned junior is getting that information for

Your Honours?

MASON CJ: Yes, certainly.

MR McCUSKER:  Looked at in that time sequence, Your Honours,

we do not say that all of that would prove that	the police forged the fingerprint, but we do	say that all of that evidence - including the
undisputed now fact that exhibit 166 was not
photographed - did not exist until some time after
20 July, a reasonable hypothesis which would have
been open to the jury had all this evidence been
known was one consistent with innocence.

BRENNAN J: Exhibit 166 was never in the trial, is that

right?

MR McCUSKER:	No, it was before the Court of Criminal Appeal, Your Honour, but it was, if not a copy - we
are not quite sure of the status of this - but,
if I could put it this way, the print that was
before the trial, and which appears in the board,
as my learned friend has said, the photograph of

PIT7/6/JM	49	25/10/88
Mickelberg

the cheque at 11 o'clock~ what was before the

Court of Criminal Appeal. That shows the

fingerprint, or the crime mark, that was said

at the trial to be taken on 15 July. That has
pin-holes in it too, showing that it could

not have been taken on 15 July.

DEANE J: Is what you have in your hand what was in

evidence at the trial, or is that a small

photograph of a large board that was in

evidence?

MR McCUSKER:  That is a photograph of a large board,

Your	Honours, which I could perhaps - that has
just	been produced and perhaps that ought to be
made	available to the Court.

MASON CJ: Yes, I think it should.

MR McCUSKER:  If Your Honours would look, because the

photograph that you have before you is somewhat

obscure. Could I direct Your Honours' attention

in particular to the photograph at 9 o'clock.

As you will see on the large board - - -

BRENNAN J: This was produced in the course of the

evidence of Dr Kobus, was it not?

MR McCUSKER:  No, before - through Henning, Your Honour.

BRENNAN J: That is when it was marked for identification,

was it not? Was not exhibit 73 the negatives

produced by Dr Kobus, and was not 74 then

marked for identification. 1174"7 produced as the exhibit previously having been

MR McCUSKER: Well, Your Honour, I may stand corrected

on that. Henning identified the cheques and

so forth on the board. It may well have been

that ultimately the production - - -

BRENNAN J: That may be so.
MR McCUSKER:	- - was through Kobus, but certainly

Henning identified the material that is on the

board. Your Honour, that appears at page 23 of

the application book index, exhibit 74. It was

marked for identification at page 64 during

examination-in-chief of Henning and tendered

during the evidence of Kobus, as Your Honour says.

My learned junior conunents that just how or my that happened is not clear. But in any event the

identification was made by both Henning and Kobus. The photograph of the cheque which appears

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

be seen is extremely poor in production. That

is one which as far as can be ascertained does

PIT7/7/JM	50	25/10/88
Mickelberg

not have pin-holes and therefore may have been

taken, as the evidence was given, before the

cheque was sent to Canberra for enhancement

on 16 July.	But none of the experts found that
of any assistance whatever.	Now, there are two

possibilities: that the photographer may have

b.een inept; or - and we suggest this only as an

alternative hypothesis, consistent with the

hypothesis of innocence - the photograph was

deliberately blurred because the print was

not then in a condition where if photographed

it would show, as it had to be, that it was a

matured print. It had to be a matured print if

the evidence was correct that it was discerned

on 24 June.

(Continued on page 52 )

PIT7/8/JM	51	25/10/88
Mickelberg

BRENNAN J:  The hypothesis that is relevant to this

consideration is that the police acquired the

rubber glove, or rubber hand, used it but did not

get a mature print and then sent it off to

Canberra to be - - -

MR McCUSKER:  Yes, Your Honour, used it and then got a

print which was not then sufficiently

identifiable.

BRENNAN J:  Which was not sufficiently identified and then

sent it off to Canberra to enhance it.

MR McCUSKER:	Yes.
BRENNAN J:	Was it known by the police at this time that

prints matured over a time and that - - -

MR McCUSKER:  Your Honour, really there was nothing to lose

because the police had not, as at either

15 or 16 July, said to any of the Mickelbergs,

"We have the print". So if the result from

Canberra was, "There is nothing that we can produce",

so be it. If, on the other hand, Canberra was able

to get something which was at that stage sufficient

by a process of enhancement to prove it has been

Mickelberg's crime mark, Mickelberg's print, then

they have had a victory.

BRENNAN J:  Was that so, because there was a cross and

a pencil marking outlining this print before it

went to Canberra, was there not?

MR McCUSKER:·

Exactly, Your Honour, and that is a further matter of some great significance, but if

Your Honour looks at the - there was evidence

given at the trial that no self-respecting

policeman involved in fingerprinting would
deliberately run a pencil mark through the ridges

which form part of a suspect fingerprint. That

pencil mark which appears much better on the board,

I think, than on these photographs, does run

through - it is not very clear on this rather

poor photograph, Your Honours, but on the board

itself it is quite apparent and comment was made

on this before the Court of Criminal Appeal. That

line does run through the ridges forming part of

the fingerprint, the suspect print. Now, if one

assumes an approach of care and if one assumes that

the print did exist, a matured print, on 16 July,

why was that pencil circle put through the print?

An alternative hypothesis is that it was not

thought that it was being put through the print
because the print had not yet matured and that when

it came back and was photographed- aswe now know

not on 15 July as shown there but on sometime after

20 July and possibly 28 July, according to the

PlT8/l/HS	52	25/10/88
Mickel berg

register- when it came back it was found that

through maturity what had appeared to be, as it were, vacant space, was now taken up in part by the ridges of this fingerprint.

TOOHEY J:  Mr Mccusker, do you agree with what

Mr Wallwork told us, that the photograph on exhibit 74 is the only photograph in the material

rendered to any of the courts that appears not

~o have pin-holes?

MR McCUSKER:  Yes, as far as we can see. We would

not say that it is clear beyond doubt that it was

taken before it went, but that appears to be the

position. Certainly the pin-holes are conclusive,

wherever they appear, as my learned friend for

the Crown has conceded, that it must have been taken

some time after 20 July, despite the labelling to

the contrary. Continuing with this hypothesis,

and it has to be put: on the hypothesis that this

was a forgery, Your Honours, and that it was put

there and immature on 15 or 16 July, one way of

ensuring that the forgery as such was never

detected, if forgeries could be detected, would be
to dispose of all material from which detection

might be possible. The fact of the matter is

that all such material has disappeared. Even the

negatives which were said to be the negatives of

Professor Kobus' photographs that he took now have

been shown, and I here seek leave to produce a

further affidavit because it is an affidavit by an

experienced photograph of many years standing who

says he has examined the negatives and finds that

they are not first generation negatives -they are

not Kobus' negatives; they are second, or third

or more - later, that is, negatives.	They a re
copies of copies.

The significance of that, Your Honours, 1s

that when one does that, the print from such

negatives is so bad a production it is impossible

or not. for any expert to discern whether it is a forgery

DEANE J:  But this raises a very important question, does

it not - - -

MR McCUSKER:	It does, Your Honour.
DEANE J:	- - - and that is the extent to which this Court, which is a strict court of appeal and not a court
are trying to do, in effect, could lead to this Court saying, "We do not think the Court of
of rehearing, can hear evidence. I mean, what you evdience put before us the Court of Criminal Appeal's
decision was wrong.

PlT8/2/HS	53	25/10/88
Mickel berg

MR McCUSKER:  Your Honour, I accept what Your Honour a miscarriage has occurred. says. The prime question, of course, is whether

So far as the date of

the photograph exhibit 166 is concerned, I would

submit that, at least to that extent - the concession

having been made by the Crown -that should not cause

this Court any concern. I appreciate that where it

is sought to tender yet further evidence, thP.n there

may be some concern that this Court is, in effect,

rehearing once again. But this is a unique, a most

unusual situation where evidence has been discovered

after a hearing for which, of course, the
prosecution, the Crown, had ample time to prepare.

It has been discovered that one important aspect of the evidence given at that hearing was fundamentally

and clearly wrong.

DEANE J:  I was not indicating any view on it but

it does seem to me it is something that you have to

deal with because there is a great deal of authority

against you, I would have thought.

MR McCUSKER:  Yes, I accept that, Your Honour. I accept that

there is no authority that would, at least in clear

terms, appear to support this approach.

MASON CJ:	Why should we receive the evidence?
MR McCUSKER:	Why?
MASON CJ:	Why?
MR McCUSKER:	In the interests of justice, Your Honour.

That is the only proposition I can advance, that

it is in the interests of justice and that it is

important that we submit to the administration of

justice in this country, that a wrong verdict and

a wrong finding, demonstrably wrong, by the

Court of Appeal, should not be allowed to stand

if it is based, that is, on evidence which is

demonstrably wrong. This is not an attempt, as it

were, to call witnesses to parade before Your Honours.

It is a short point. It is an important point but

it is a short one.

MASON CJ:	We had better hear what your opponent says about it.
MR McCUSKER:	Yes, Your Honour.
MASON CJ:	Yes, Mr McKechnie.
MR McKECHNIE:	If Your Honour please, in anticipation of the point could I hand up six copies of our very
short submissions on the point.  My learned friend
has attached the authoritie~ too.  I will take
Your Honours to the authorities.
DEANE J:	At least you have not been taken by surprise on

this issue.

PlT8/3/HS	54	25/10/88
Mickel berg

MR McKECHNIE:	Not on this point, Your Honour, no.
DEANE J:	If I had known you were sitting there waiting to

pounce I would have kept quiet, Mr McKechnie.

MR McKECHNIE:  I realize the time, Your Honour, but two

things very quickly can be said, Your Honours,

about it is that my learned friend is being coy

when he says there is no authority for it. In

fact, in our respectful submission,every authority

is against it and one of the reasons why_becomes

evident in our point number 3 because this so-called

fresh evidence - a copy of the affidavit is dated,

I think, yesterday - is certainly not accepted by

the Crown. Were it to be admitted the Crown would

certainly seek need to cross-examine, examine

and perhaps call responsive evidence thereto

because the point is certainly not accepted.	But
I do not move on to that point because, in our

respectful submission, the cases, and particularly

I will not bother Your Honours with citation of more

than one, RONALD V HARPER, which I will hand to

Your Honours, is the old authority reported in

11 CLR 63,which we will just hand up to

Your Honours, and that was a particularly stark

example of the matter because the fresh evidence

sought to be called was the fact that certain

witnesses at the defamation trial appealed from

had, since the appeal, been convicted of perjury.

Perhaps, in view of the time and the fact that I have handed the authority in, I can simply

leave the point, Your Honours, by referring to

His Honour the Chief Justice,at about half-way down

page 77,who deals with the point; His Honour

Justice Barton, half-way down page 82, and

particularly the judgment of Justice O'Connor at

page 84, where His Honour says:

This Court cannot act on the new grounds

until it has determined in the appellant's

favour the allegations of fact contained

in the affidavits filed in support. An

inquiry into those facts now submitted to

this Court in the first instance would be

clearly the exercise of original and not of appellate jurisdiction, and Mr Duffy, apart

from any consideration of the merits, has

raised by way of preliminary objection the
important question whether this Court has

jurisdiction to enter upon any such inquiry.

His Honour goes on to look at section 73 of the

CONSTITUTION and comes to the view that the Court

has no such power. In view of the fact that it

is nearly lunch-time I will not make any other

citation, Your Honours, other than to simply advise

Your Honours that DAVIES and CODY went before

PlT8/4/HS	55	25/10/88
Mickel berg

this Court on two occasions. On the first

occasion there was fresh evidence sought to be

raised and the Court held that it did not have

power. On thatoccasion there was already an

indication that the Attorney-General for Victoria

intended to refer it to the Court of Criminal Appeal.

That was done and it came before the Court again.

CROUCH V HUDSON being one of the later

decisions, a decision of the whole of the Court,

and our submission simply is that there is no power in the Court exercising its appellate

it is a one-page decision,whichwewould hand up to

jurisdiction to take such evidence. If that

Q	submission is not accepted then we would not accept without test the affidavits, if Your Honours
please.

MASON CJ:  Thank you, Mr McKechnie. Do you want to say

anything in reply, Mr Mccusker?

MR McCUSKER:  I do not think so, Your Honours, no.

MASON CJ:  Very well. The Court will consider this matter

over the adjournment and will resume at 2 o'clock.

AT 1.03 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ:  The Court has given consideration to

Mr McCusker's application to adduce. fresh evidence

in the form of an affidavit. The Court has

decided that it will defer its decision in relation

to the reception or rejection of that fresh

evidence until it has had the benefit of hearing

more of the applicant's case. At the same time

I should point out that a like question arises

in relation to the Court's power to act upon the

concession that has been made by the Crown with

respect to the pin-holes in the photographs of the

cheque, and the Court will wish to hear- or wish

to have the advantage of argument from counsel in

relation to that matter at a later stage of the case.

Yes, Mr Mccusker.

MR McCUSKER:  May it please Your Honours. Before leaving

the point that I have sought to adduce further

affidavit evidence on,may I mention this, that

at volume X, page 2299, at lines D to E, the

evidence of - - -

PlT8/5/HS	56	McKECHNIE	25/10/88
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MASON CJ:	Page 2299?
MR McCUSKER:	Page 2299, Your Honours, yes, volume X,

at lines D to E, Mr Justice Pidgeon asks Dr Kobus

when he received the sample to improve - that is

the cheque and the fingerprint:

did you also receive a sample of the

admitted print of the person it has

been compared with, the suspect's

print?

That is, of course, at that stage the police had

Raymond Mickelberg's fingerprint because they had

taken his prints twice on 15 July. His answer:

No, I just got the cheque.

So whether it had the points of

identification, that could only be what

you were told? You had nothing to compare

it with?---Just by looking at it I could

see bifurcations and ridge endings and so
on, looking at it, and after I had taken
the photograph I could see more ridge
endings and more bifurcations than I could

see at the start.

But you had nothing to compare it with?

---Oh, no. I just assumed ..... I could

see quite clearly -

and so on. But the point was made well by

Mr Justice Pidgeon that all that Professor Kobus

received was the cheque itself. He said he was not

a fingerprint expert and all he did was receive it

subject to this process of enhancement which means

putting it in a solution of zinc chloride, subjecting

it - I think putting it below a certain temperature,

pinning it at the time to the container in order

to keep it still and then subjecting it to
fluorescent light and taking a photograph.	He
essentially did that,	took the photograph and sent

the negatives back to Perth. That was his evidence.

There was also evidence given. Your Honours,

by Detective Henning at page 60A	that was
at the trial - and by Kobus at page 72C,
which is in volume I, Your Honours.

MASON CJ:	What was the first of those pages?
MR McCUSKER:	Page 60, Your Honour, line A, where the

negatives that Dr Kobus sent back from Canberra

after photographing the cheque and the fingerprint

on it whilst under this enhancement treatment.

The negatives were identified by Henning and by

Kobus at page 72, line C, and they comprise

PlTS/6/HS	57	25/10/88
Mickel berg

exhibit - page 60, line A, and page 72, line C,

where those negatives are identified by both

Henning and Kobus as the negatives that were

sent back from Canberra. Kobus, no doubt,

took that to be correct, since they were produced,

in fact, by the police at the trial.	The negatives
in a bundle comprise exhibit 73 -	the negatives

that were identified as Kobus' negatives.

Those negatives - if Your Honours perhaps could look

at them I will just mention this to you - negatives

numbers 26 and 27 - the numbering is extremely

small but it is discernible - which were at the

end of the role, I think it was, of Kobus' alleged

negatives, show two of the fingerprints which were

taken from Raymond Mickelberg - that is the suspect's

print.

Now, the deduction from that is quite clear,

that if these were the original negatives, as said
at trial, sent back from Canberra by Professor Kobus,

they would not have been photographs, they would not

have contained photographs of the suspect print,

but on that role there appear two of the suspect
print which Professor Kobus never had in his

possession. So that we make the point,

Your Honours, that there is yet another anomaly in

the police evidence and that is discernible not by
the production of fresh evidence before this Court,

but simply on the face of the evidence that is in

this Court.

Can I mention one other matter, Your Honours,

turning to the evidence given before the

Court of Criminal Appeal - - -

BRENNAN J:  Before you proceed with that, those

photos, exhibits and negatives 26 and 27, they

are not self-speaking exhibits, are they?

MR McCUSKER:  I would have thought that by reference to the evidence that was given relating to them they

are self-speaking. They raise immediately an

inconsistency. Those negatives could not be, on the face of it, the negatives that Dr Kobus sent

from Canberra because Dr Kobus did not have in

Canberra, as he said in evidence he did not have,

a copy of the suspect's print. So those negatives

would appear to be some other negatives.

BRENNAN J:	Some other negatives.
MR McCUSKER:	Yes, not Dr Kobus'.
BRENNAN J:	That is as far as it goes.
MR McCUSKER:	That is so, Your Honour.

BRENNAN J: They may be prints of Dr Kobus.

PlTS/7/HS	58	25/10/88
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MR McCUSKER:  No, they are clearly raised prints, I think,

Your Honour. I do not think there is any

suggestion that he took other fingerprints and if

one looks at - - -

BRENNAN J:  That is why I say it is just not

self-explicatory.

MR McCUSKER:  I am not sure that there has been identification

in the evidence itself of those two prints and I
would not like to perhaps subject Your Honours to
too much of a detection problem, but if one
compares those prints with the photographs of

Raymond Mickelberg's prints, it is tolerably clear that they are the same. That is the prints which

the police took on 15 Julv.

BRENNAN J:  I simply wish to draw your attention to

the fact that - - -

MR McCUSKER:  I would take the point, Your Honour, yes.

BRENNAN J: - - - the problem may be the same as that which

the Chief Justice has already mentioned to you.

MR McCUSKER:  To a degree, yes. And again, Your Honours,

I mention that that was not something which was

raised at the trial or before the Court of Criminal

Appeal. It may be said the negatives to some

extent may speak for themselves but it is straining

matters too much to expect perhaps that counsel would

have discerned at the trial that anomaly which

clearly does exist. It is only when the other

anomalies started to arise that one is set on

a course of further inquiry. Dealing with

anomalies, Your Honours, if I could ask

Your Honours to look also at volume VII, page 1503.

(Continued on page 60)

PlTS/8/HS	59	25/10/88
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MR McCUSKER (continuing): At page 1503, through from

A to D, Detective Henning gave evidence before the Court of Criminal Appeal to the effect - I will not take Your Honours through all the

questions and answers - that if he had had the

print as was alleged, the fingerprint, not

enhanced but a ninhydrin-treat print, on 15 July,

it would have been a simple matter to make an

identification. It takes, perhaps, five minutes

to make an identification. He said:

Depending upon the quality of the print.

There were some questions about obtaining the

prints from the Central Fingerprint Bureau but

that, really, is not to the point. If it was

there on 15 July when Raymond's prints had been

clearly obtained, why was no attempt made to, then,

compare the prints in such an important matter as

this.

But, Your Honour the Chief Justice asked

just before lunch for some page references

relating to the prints and the way that they
develop. There is a further reference that my

learned junior has reminded me of and that is

at page 2936. It is an affidavit by

Frank Edwin Warboys of Scotland Yard dealing

with the question of whether there would be a

forgery or could be a forgery.	He says, at
paragraph 21 of his affidavit:

The alleged forger would necessarily be

required to work blindly as sweat on

paper is invisible and even if the cheque

had been previously treated with ninhydrin

the mark would still be invisible at the

time of its application though it may

develop shortly thereafter.

The evidence on this point is to the effect that

the time of development seems to vary according to
all kinds of circumstances but there, clearly, is

generally speaking some time lapse between the

application of a print and its development.

Your Honours, if I could just pass on by

way of outline before dealing in further detail with the grounds of appeal of this application,

we rely upon matters which are set out in a summary

exhibited to a further affidavit filed in these

proceedings by Mr Garry Lawton, dated 19 October 1988,

and that summary is a summary of what, it is

submitted with resDect, are imoortant special

leave points. · -

PlT9/l/SH	60	25/10/88
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I have been dealing hitherto with pages 1 and 2 of that summary, the proposition being

that the conviction ought not to stand if it

is demonstrable as here, that the conviction

and, indeed, the finding of the Court of

Appeal is based on wrong evidence - conceded to

· be wrong. The further propositions which we would

seek to advance by way. of special leave application

is that the identification evidence which is

peculiarly related to Peter Mickelberg is entirely

unsatisfactory and rendered more so as a result of

the evidence which was given before the Court of

Criminal Appeal but which was not before the trial.

Indeed, the evidence before the trial in relation to exhibit 21 which I will direct Your Honours'

attention to, the sketch, the photofit sketch,

was entirely misleading.

There are two issues involved on the question of identification and it is submitted that they are

both important matters which this Court ought to

determine. The first of those issues relates to

identification by handwriting and, in this case,

Peter was identified by a note which was given to

a Mr and Mrs Allen the month prior to the crime,

a month prior to 22 June, when a purchaser in

response to a newspaper advertisement, a purchaser

of a motor vehicle from Mr and Mrs Allen, a $450
1965 Falcon sedan, wrote his name or purported name

and left the note with the Allens so that they could

transfer the registration papers to the purchaser.

It was a very short note and I will direct

Your Honours' attention to it - a matter of two

lines-itJ:,ecame known in the trial and the appeal

as the Talbot note. It was a note - Robert Talbot,

care of post office, Meekatharra. They were the

words which were printed on the note and by reason

of which the Crown sought to identify Peter

Mickelberg as the purchaser of this 1965 Ford Falcon sedan.

The evidence which was given at the trial in

purported identification by handwriting was that of

a police office who had had with him the Talbot note.

He had a number of samples which were produced in

court of printed handwriting acknowledged to be

Peters. From those samples of handwriting, he

selected and cut out letters, printed letters,

with which he then reconstructed the Talbot note,

the words in the Talbot note. He admitted in

evidence under cross-examination at the trial that

the method of reconstruction was by selecting the

letters which generally speaking best matched up

with the printed letters of the Talbot note and

that means of identification was put before the
jury on a chart, quite a large chart, showing the

Talbot note alongside the mocked-up version of the Talbot note derived by the selective process

from letters, printed letters, which had been

PlT9/2/SH	61	25/10/88
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made over a period of time by Peter Mickelberg

in various writings.

No warning was given by the learned trial

judge to the jury as to the dangers relating to

that means of identification. Indeed, the direction

• · which His. Honour gave to the jury which was in

traditional and accepted terms as to the dangers

of visual identification was not at all reflected

in any direction at all referring to the handwriting

identification but to the contrary and, by contrast,
appeared to suggest that there was no danger involved
in that means of identification.

At the Court of Criminal Appeal, the applicant called a witness of undoubted experience in

handwriting identification who made these points:

first, in his view - that was Roberts - that means

of selective sampling was not satisfactory; two,

that the sample was too small to enable one to

be satisfied, without significant doubt, as he put

it, that the Talbot note was written by the accused.

Your Honours, the Talbot note - I am reminded -

which is exhibit 20 is contained in the supplementary
papers, volume VI, it is a supplementary application
book, at page 3892. It is exhibit 20 and Your Honours

can see the note itself. It is, as the witness

Roberts described, a somewhat small basis for

identification but -

MASON CJ:  We do not appear to have the supplementary application

books.

MR McCUSKER:  I am informed, Your Honours, that they were filed

or lodged with the .registry last week but, perhaps,

if Your Honours, in the meantime, were to have

exhibit 20 which is - - -

MASON CJ: Yes, thank you.

MR McCUSKER:	means of identification - well, there are questions. Your Honours, the question that arises from that	The first is whether that approach to identification
of an accused is, in any event, satisfactory and the
second is, if it is a satisfactory approach to proof
of identity, should such evidence be admitted without
any warning, as was the case here, of the dangers.
Now, we say at once, Your Honours, that before the trial judge, there was no evidence given by way of expert evidence, as to the dangers involved in
attempting to identify a person by that means of
comparison.  It was only at the Court of Criminal
Appeal that that evidence was introduced and
Mr Roberts gave such evidence. His evidence was
effectively rejected by the Court of Criminal Appeal.
PlT9/3/SH	62	25/10/88
Mickelberg

We would submit - and I will come to that

further in the grounds of appeal - that the
basis of rejection was not appropriate for
the Court of Criminal Appeal; that is, that

the approach taken was misconceived, with

respect, because there was no evidence before

the Court capable of supporting a view that the

evidence of Mr Roberts was not capable of being

believed. The court, rather, took the view that

they preferred the evidence, effectively, they

preferred the evidence of the handwriting expert,

Mr Billing, who had, in the first place, made up

the board.

Incidentally, Your Honours, the board for

comparison of the handwriting is exhibit 87 which

I will arrange to have brought before the Court if

it is not here. That was the exhibit which was

produced to the jury and which was, in turn, taken

by them to the jury room without, as we say, any

warning of the special need for caution and the

learned trial judge's direction on that point, if

I could take Your Honours to it, is at page 1153, volume V, Your Honours.

BRENNAN J: Where do these letters on the right-hand side of

this board come from?

MR McCUSKER:  From various documents which had admitted

samples of Peter Mickelberg's-not handwriting in

the sense of script but printed words by Peter

Mickelberg.

BRENNAN J:	I see.
MR McCUSKER:	And the evidence of the witness, Billing, who made up that comparison, that note, was that he
cut out letters in an extraordinary ma~ner in one
case because there was no sample of "care of",
for example, so he cut the portion of a "k" and
joined it up with an "o", I think, in order to
make up the comparison.

MASON CJ: What are the numerals there on the letters on the

right-hand side, the ones from the admitted samples?

MR McCUSKER:  They are, Your Honour, references to the various

samples of - - -

MASON CJ: Handwriting.

MR McCUSKER:  - documents and so forth which were in

court.

MASON CJ:	Yes.
MR McCUSKER:	If the jury had been so minded, they could have gone to those documents as being the primary source
from which the letters were cut and there were documents, I think, also in court included in the

PlT9/4/SH	63	25/10/88
Mickel berg

bundle of exhibits from which no sample was taken
but the witness, Mr Billing, quite candidly admitted

that he had, in going through this process, matched

up as best he could the Talbot note with cut-out

printed letters.

MASON CJ:  In that respect he seems to have done rather a

good job.

MR McCUSKER:	He has, Your Honour, an excellent job. But the question, of course, is whether that is a satisfactory
means of identifying a person's printed writing.
TOOHEY J:	So, none of them were samples brought into existence

for the purpose of checking or comparison.	They were
simply selected at random.

MR McCUSKER:  They were selected. Well, yes, Your Honour,

they were selected. Perhaps, it is difficult to

say, at random, in the sense that whatever the

documents - how ever the documents were selected

the final product was not at random but for the

purpose of matching up with the Talbot note.

Now, that is putting to one side any question

of mala £ides. That lends itself to all the kinds
of dangers, with respect, that have been emphasized
over the years in relation to visual identification,
that is, to take but one obvious example, the
unconsciously subjective approach of a witness
purporting to give visual identification evidence

is here, not unconsciously subjective, but totally

subjective. Consciously subjective in the sense

that there is an endeavour to match one with the

other and Roberts, who was called before the

Court of Criminal Appeal, made what is, perhaps,

the trite and obvious point that printed words

are less apt to be a means of identification than

one's script. I say, it is really, perhaps, a

matter of common knowledge, self-evident, but

nothing in the nature of a warning was given to

the jury when that particular board went to them

and it must have made - it must have been calculated

to make, particularly without any warning but,

rather, a reassuring effect from the judge's
direction, a very large impact on the jury.

Now, going from there, this Talbot note, as it was called, was given by a person who, on

the Crown case, was Peter Mickelberg when purchasing

this motor vehicle in May of 1982 and, at the time

- and the vehicle, I should add, was one which was

only just roadworthy apparently because it had to
be pushed to start it. This was said to be the

vehicle which was used for the purpose of the

swindle. I should mention, Your Honours, looking

at the note there that Roberts made,

PlT9/5/SH	64	MR McCUSKER, QC	25/10/88 -
Mickelberg

the point that although there are

points of similarity between Peter's printed

words and the Talbot note - printed letters -

there are also points of dissimilarity which he
pointed to as simply a comment. His evidence,

.. Your Honours, Roberts' evidence was not that that was not the handwriting of Peter Mickelberg;

simply that one could not say. It could have been

but one could not be sure whether it was or it

was not because of the method used and the small

sample.

DEANE J:	Was any objection taken to the use of an arrangement
such as this?

MR McCUSKER:  No, Your Honour. The objection, as I recall it,

raised in relation to this was more in the nature of

the manner in which a portion of the handwriting

sample was obtained, a question of entrapment. I

do not think, on the authority, such an objection

could be sustained. Part of the material used was

the printed particulars form that Peter Mickelberg

gave when he was arrested so that was the essential

objection but the crucial objection, based on the

inherent inadmissibility of this kind of evidence

was simply not considered.

Now, it may be said, of course, Your Honour,

"Well, that is a matter that should have been raised

by counsel." In our respectful submission, whether

counsel raises this kind of matter or not, the trial

judge has an overriding duty to ensure a fair trial
and there could be no fair trial on this issue

without a fair and clear warning to the jury of the

dangers of such evidence if, indeed, such evidence

were said to be admissible at all.

MASON CJ:  Was a warning asked for?

MR McCUSKER:  No, I do not think so. No, it was not.

BRENNAN J:  Mr Mccusker, what is your submission as to the

role of this Court in reviewing the view of the

Court of Criminal Appeal about the cogency of this evidence based, as that view seems to have been,

upon a contest between witnesses?

MR McCUSKER:  Yes. Your Honour, my submission, really, goes

into these parts: that, first, before the Court of

Criminal Appeal and not before the trial, there was evidence which was, on the face of it, plausible evidence, capable of belief and, indeed, not only

plausible but somewhat common sense, directed to
both the inherent danger of reliance upon this
but it was not before the trial judge. The

Court of Criminal Appeal, in rejecting this ground

PlT9/6/SH	65	MR McCUSKER, QC	25/ 10/88
Mickel berg

of appeal, failed to take into account the

with0 this kind of identification evidence, the	backqround, the underlying danger or problem
underlying problem being that there was no warning
and all that the Court of Criminal Appeal did, in

. - dealing with the evidence of Roberts, was to

consider, in a sense, his comparative credibility as against the witness Billing and they came to a conclusion in various manners, it was expressed,

that they did not accept the approach of Roberts

and, indeed, I think, at least one of the learned

judges took the view that he was somewhat less than

objective about - but there could be no quarrel, in

our submission, with the basic propositions put

forward to the Court of Criminal Appeal and the

court took too narrow a view of its function.

What it should have done, with respect, was to

have considered that evidence alongside the conduct

of the trial itself and, having regard to that

evidence and the conduct of the trial, ought to

have held that there had been a miscarriage.

Now, the Court of Criminal Appeal, having

failed to do that, Your Honour, this Court, with

respect, ought not to allow the matter to stand

because if it were to, then it would be taken, as

it were, by omission, to be approval of this means

of identification and, furthermore, more to the

point, in these courts in Western Australia, such

an approach would be likely to be embraced again.

That is to the dangerof an individual who is accused.

DEANE J:  But what warning should have been given?

(Continued on page 67)

PlT9/7/SH	66	25/10/88
Mickel berg

MR McCUSKER:  A warning to the jury, Your Honour, that not

only - I would not suggest any high-bound warning,

it depends upon the circumstances. But not only in

the case of visual identification but also in the case
of identification by this means, the jury ought to

take great care for the reasons expressed, essentially,

by Mr Roberts, which I have entmciated before deciding

beyond reasonable doubt that that was the accused,

Peter Mickelberg's handwriting.	My submission,
however - - -

DEANE J: Except, just looking at it, one might have thought

the more care that was taken, the more damaging it

might have been for your client.

MR McCUSKER:  Yes, I was - I think, underlying, perhaps,

Your Honour's question is the question of whether

that kind of evidence ought to be admitted at all.

DEANE J:  Was there any evidence to show that, for example,

the very unusual letters were common in terms of a

particular school that taught you to make "e."s like

that or - - -

MR McCUSKER:  There was no evidence one way or the other,

Your Honour, but Mr Roberts again made the point

that in the case of printing of letters it is a
further difficulty that various schools may teach

printing in various ways and that one cannot accept

that any individual has a necessarily unique manner

of printing. It would have been a mammoth task,

I think, to have made a survey of the schools of

Western Australia and, indeed, I think, Victoria,

where Peter Mickelberg was at one stage living, in

order to, as· itwere, produce that kind of evidence.	It
should not be, in our submission, an onus upon the

accused to have to go to that kind of lengths. Either

the evidence should be excluded entirely - we say
in the way that this evidence was produced it should

have been excluded - or, at least, if admitted, with a

very strong warning, none of which was given. Indeed,

to the contrary: at 1153, volume V of the application

book, starting at just above line B, the learned trial judge commenced:

I must warn you of the special need for

caution when considering the evidence of

Mr and Mrs Allen and Mr Henry as to the visual

identification of the young man seen with the

car.

I pause there to interpolate, Your Honours, that neither

Mr nor Mrs Allen ever identified the accused,

Peter Mickelberg, nor did Mr Henry identify him, that is,

in terms of a face-to-face identification. And I will

come in a moment to the problem of the photographs,

the touched-up photographs,that were used and sent to

the jury as a means of identification.	He went on to say,
however:

PlTl0/1/PLC 67 25/10/88

Mickel berg

i;._i--,cit I have to say now, of course, does

not relate to the handwriting comparison.

So the special need for caution was not only missing in the case of this means of identification but the

jury were implicitly told that there was no need for

caution.

BRENNAN J:  Well, that is rather over-stating it, is it not,

because of what appears at the top of page 1154? The

basis of the warning about visual identification of

people is misstating it?

MR McCUSKER:  With respect, we would not view it that way,

Your Honour, because nowhere after that does the trial

judge give a direction which could be seen as any kind

of warning about this means of identification.

BRENNAN J: What is the warning which is necessary apart from

having caution?

MR McCUSKER:  Your Honour, in terms of the warning, I think

that was adverted to in DAVIES AND CODY in the case of

visual identification, there should be more than, as

it were, a passing mention of it or a suggestion of

various possible opposing schools of thought,or schools

of writing, perhaps, but, there should be a clear

know of this that in the case of identification of this	reminder to the jury who may not be conscious or even
kind the possibility exists that quite a number of
people may print in a similar manner; that where there is such a small sample the dangers of wrong identification
are magnified and that Detective Sergeant Billing, by admittedly going through a selective process to match
up, has effectively destroyed the value of any such
identification evidence or, if it goes to the jury
perhaps one cannot say that, but almost destroyed it.
So it would be highly dangerous for the jury to rely
upon that as a means of identification.

BRENNAN J: But is there in that anything which indicates that

the court has an awareness of these risks superior to

that which is possessed by the jury?

MR McCUSKER: Well, Your Honour, it is now well-established

law that a trial judge owes a duty,as part of his

conduct of the trial and in the interests of fairness, to

give a warning in the clearest of terms and with full

explanation to the jury, as was done here, in the case of visual identification. There is no evidence that

a trial judge is necessarily in a superior position to

a jury in terms of his knowledge of the dangers and,

occurred. indeed, the miscarriages and injustices that have

BRENNAN J:  I thought that was the very basis on which DAVIES AND

CODY was founded.

PlTl0/2/PLC	68	25/10/88
Mickelberg

MR McCUSKER: Well, it was stated, Your Honour, but since

Your Honour has raised the point, in my submission,

those amongst the jury who may have read of trials,

for example of BECK, to name but one, and SLATER - men who were convicted and sent to prison on wrong

visual identification evidence and sent to prison

for a considerable term subsequently to be found to

be.quite wrongly convicted- people, the common person

who may have read of those trials.may well be aware

that there are dangers. The point of the warning is
to emphasize, in the interests of fairness, the existence

of those dangers both to those who may be aware of them

in a general sense and those who may not be aware at

all. And the same applies here, with respect: the
question of whether a trial judge is in a superior

position in terms of knowledge of the dangers is, in

our respectful submission, not relevant. The question

is in the interests of a fair trial -and to avoid the

possibility that some jurors may too readily seize

upon this method as a hard and fast and sure method

identification -a warning ought to be given. And

that would be, in our respectful submission, a warning

not in precise terms, of course, along the lines of

DAVIES AND CODY suggested there but still a warning

directed to the same point; the point being to ensure

a fair trial.

There is one other aspect of that Talbot note

that should be mentioned in passing and that is that
there was evidence of ninhydren treatment, as one

might expect, of the note but there is no evidence

from the prosecution - never has been any evidence -
as to the results of the obvious attempt to discern

fingerprints. There is no suggestion that the purchaser

of the note was wearing gloves and the evidence of the Allens clearly shows that he handled the note.

So, we just do not know what the result of the fingerprinting detection was because it was never

produced in the trial or the Court of Criminal Appeal.

In our submission, Your Honours, this approach to

identification is of such importance that this, of

which we submit is independently of that ·but related to	itself, is a special leave point. The further question	the most important question cf identification is the
identification by photo-fit which was undertaken in
this case. Your Honours, the exhibit in question is
exhibit 21 and with it should be viewed, since the jury
also viewed, exhibits 23 and 78. I have had prepared,
Your Honours, some samples of these photographs.
My learned friend, Mr McKechnie, has pointed out to
me and I, in return, point out to the Court that they
are not absolutely the same size as the exhibits. So, with that warning, if I could perhaps hand them up to the Court?

MASON CJ: Yes.

PlTl0/3/PLC	69	25/10/88
Mickelberg

BRENNAN J: Are these photographs photographs of one of the

accused?

MR McCUSKER:  The photographs, Your Honour, are the photographs

of the accused, Peter Mickelberg. The chain of

circumstances and, indeed, the evidence - the evidence

wbich was given in relation to these exhibits,

including exhibit 78 is, in our submission, not putting

it too highly, extraordinary.

Mr and Mrs Allen - and first, one needs to understand the background - who had sold the Ford

Falcon,which was a white 1965 Ford Falcon, in May 1982, gave evidence that they spent some time with a police

artist but, perhaps, I should first explain how that

came about. On the day of the crime there were·

three security firms which were separately contacted or engaged by the swindler or swindlers by telephone,

the man using the name "Fryer". And they were

directed to go to an address in Barker House, Subiaco -

that is in Hay Street, Subiaco, a suburb of Perth -
and to there collect - each of them separately, collect

a cheque which was payable to the mint; proceed from

there to the mint; take delivery there of gold bars

which had already been, on that day, ordered from the mint; proceed with the gold bars back to the address in Barker House, Subiaco. Custody of the bars was

then taken by another security firm, Arpad

who gave evidence, was engaged also by telephone to	Security firm, and a man called Duynj.ak
take the consignment which he was told were insurance
papers out to Jandakot Airport. His evidence was that
that is precisely what he did: left the consignment
which was gold bars at Jandakot Airport in a somewhat remote point, and the gold bars have never been seen
again.

Now, in the course of that morning - these events,

the picking up of the gold bars and delivery to Hay Street,

Subiaco, occurred in the course of the morning of

22 June and in the course of that morning at a distance

somewhat down the road from Barker House, Subiaco,

about - I think I am correct in saying about 100 metres,

there were premises conducted by a company called

City Business Brokers of which a Mr Terrence Henry

was an employee. Mr Henry saw, in the parking area

which was his parking area, a 1965 Ford Falcon car and
he saw a young man in the car and he later saw the

young man outside the car and later move off and he saw

the young man again that day when he returned to the

car and he spoke to him. There was a short exchange.

Mr Henry was not happy, understandably, that this car was in his parking bay and had telephoned, in the

interim, the police in Subiaco and asked them to - and

they came - saw the car. He suspected that it was being

abandoned. I should add that the person that he saw,

the young man that he saw at the car, he said he thought

was wiping down the handles of the doors and indicated to

PlTl0/4/PLC	70	25/10/88
Mickelberg

him, at least, a suspicion that perhaps the

car was being dumped - stolen and dumped. The police

rang - they took the number and the police checked

with Mr and Mrs Allen to see if the car was

stolen and the answer was that it was not.	So that
is a rather bizarre incident in the course of

what was otherwise a rather clever - I do not use

that word other than perjoratively - swindle that

occurred that morning.

The prosecution case was that the young

man who was seen with the car was Peter Mickelberg.
Mr Henry gave evidence of a description; he

described the young man he had seen when the

suspicion arose. Indeed, he gave evidence at the

trial that he had spent some time with the police

artist, Mr Pierce, in an endeavour to construct

a photo-fit sketch, or a sketch which combined

elements of the photo-fit method. So that

the prosecution hypothesis was that Peter Mickelberg

was the purchaser of the car in the previous month;

the car had been used in the mint swindle; and

Peter Mickelberg was the young man seen at the car.

In order, of course, to establish that

the car was the car used in the mint swindle

it was necessary to at least show some basis

for that approach, for that hypothesis, and the

basis essentially was, as put to the jury by the

trial judge, the strange circumstances of the

purchase of the car because the purchaser, whoever

he was, had said, "I'll leave my name and address.

I won't wait to have the papers filled out, send

them to·me at the Post Office, Meekatharra",

coupled with the fact that Mrs Allen said in

evidence that she thought the man was wearing

a wig - he had odd long hair. There was that

aspect; there was the fact that the car when sold

was not fitted with a CB radio but when it was seen on the day of the crime, on 22 June, in this parking

area of Mr Henry's, it was fitted with a CB radio;

and the evidence was, from Mr Duynjak, the messenger

who took the gold to Jandakot, that he had been

given instructions via CB radio; and that some time

later a car, said to be the same car, was found

a burnt out wreck at a northern suburb, Wanneroo.

From those fact~ essentially, the jury was invited

to draw an inference that the car was used in
the mint swindle and was used by Peter Mickelberg

to connect him with the crime.

Apart from those facts, Your Honour, which I have outlined - there are some further details,

but in outline they are the relevant facts - the

only evidence against Peter Mickelberg to implicate

him in this crime were the verbal admissions said to have

been made by him. Now, Your Honours, it therefore

became crucial to identify Peter Mickelberg as the

PITl0/5/JM	71	25/10/88
Mickelberg

person who had purchased the car, and to identify

him also as the person who had been seen by

Mr Henry a month later on the day of the crime

in Mr Henry's parking bay in Subiaco.

BRENNAN J: 

I am not sure that I follow exactly the

implications of what you have been putting to
us. Is it the proposition that the evidence
relating to the young man with the car was

insufficient to establish that the young man

with the car was a swindler?

MR McCUSKER: 

Yes, that is the first questionable point,

Your Honour, and I raise that as a question but

I take t~e matter beyond that to the question of: assummg that to be so - assuming that there

was sufficient evidence on which to reach that conclusion, a matter which must raise a question - the evidence

then to prove that Mr Peter Mickelberg was the

man at the car on that day becomes of high importance.

BRENNAN J: Of course, yes.

(Continued on page 73)

PITl0/6/JM	72	25/10/88
Mickel berg

MR McCUSKER (continuing):  The underlying hypothesis that

the car was used for the mint swindel, in my

submission, would seem to rest upon somewhat

shaky foundations in terms of an inference that

could be drawn from those proven facts. But

assuming that hypothesis to be at least open

to the jury, that the car was used for the mint
swindel, it was never seen in any connection with
the swindel, either in the transport of the gold
from the mint to Barker House or in connection

with the transport of the gold to Jandakot

airport, which is a considerable distance away.

BRENNAN J:  Was that point ever taken on appeal from the

verdict on the first occasion that this went to

the Court of Criminal Appeal?

MR McCUSKER:  Your Honour, the circumstances of the appeal

by Peter Mickelberg on the first instance, that

is, before last year's appeal by way of petition,

in effect, at first instance.Peter Mickelberg had -

I think there is an affidavit before this Court -

given instructions to his solicitor, his then

solicitor, to appeal against the conviction

of conspiracy.

MR McKECHNIE:  I wonder, Your Honour, if my friend is

referring to that affidavit -the Crown objects

to that as being fresh evidence never ever before

the Court in any form before. It is first

filed there and there are other matters in that

affidavit which, in our submission, are fresh

evidence and not admissible.

BRENNAN J:  Really all I wanted to know was whether or not

this point had been taken on that appeal?

MR McCUSKER:  No, Your Honour, because Peter Mickelberg

who, I am informed, conducted that appeal in

person - he did not appeal, in short, against

the conviction of conspiracy.

that one should not read into that the proposition My submission is

that he accepts that he was justly convicted,

indeed we would not be here today, but he did

not appeal against that conviction.	The point
was, therefore, not taken.	The identification

evidence which went before the court, before·

the jury, which linked Peter Mickelberg as being

the purchaser of the car and the man at the

scene of the crime, or somewhere near the scene

of the crime on the relevant date, was a matter

which was the subject of the most recent appeal

and the application before the Court of Criminal

Appeal.

The freshness of the evidence, or the new

nature of the evidence is this, that at the trial

the effect of the evidence of Mr and Mrs Allen

PlTll/1/MB	73	25/10/88
Mickel berg

That is the overlay that Your Honours have

on the original exhibit. The overlay is not

the reason for that will become apparent

in the sample kit that I produced, Your Honours. and

.-when I go to the evidence of Mr Henry.

You can't get them that accurate.

The learned judge said:

The witness has the bottom part of the item

marked for identification 21, is that

right?

Is that the one you agreed on? -

at the foot of the page -

Not really.	As we left we said the hair
was still not right.	We could never get
the hair right.

At the top of page 13:

But what about the facial features?---Yes;

we thought that was as close as we were

going to get at that stage. We had had

enough.

Then there is further evidence at page 13 to
the same effect and page 14 lines A and B it was put to him:

And when you left after a couple of hours, you and your wife were satisfied

as to the features of the person he had

drawn, but you were still a bit concerned

about the hair style?---Mm.

I can't remember whether we drew the glasses

on that night or - - Yes, he did draw it

on while I was there. I was only there the

once; yes.

Just pausing there because there is further evidence

dealing with a photograph. Again, the effect of

that evidence is, consistently with his

examination in-chief, that exhibit 21 was

something which he and his wife were reasonably

happy with as depicting the facial features of

the person who purchased the car from them as

well as, to some extent but a lesser extent, the

hair-style. Mrs Allen, at pages 21 to 22 - and

I will not take Your Honours to all this evidence, the references are there - gave evidence somewhat

to the same effect. The combined effect of their

PlTll/4/MB	76	25/10/88
Mickel berg

evidence must have conveyed to the jury the view

that the exhibit 21, as it finally became with the

overlay on it, was something which they had

produced with the police artist, Pierce. The

evidence of Mr Henry is at pages 29 to 30, what

·he describes - sorry, that really goes to the

man that he saw and his description of him.

At 31 there is further evidence of that effect.
At 32 D to E there is a further description.

He describes the man as:

About 5.5, 5.6 -

at line D at page 32, an important piece of

identification evidence since Peter Mickelberg

is, on varying accounts that have been given,

some three inches taller than that.

MASON CJ:	Can I take you back to page 14?
MR McCUSKER:	Yes, Your Honour.
MASON CJ:	After the questions and answers that you read

at the top of the page, the fifth question:

Did your wife tell you that he brought

another picture?---Yes. He brought out

another photo and they got a closer

description that time.

Now, what is that reference to?

MR McCUSKER:  It is a mystery, Your Honour. It could refer,

we think it does refer, to one of the photographs,

the middle one, in exhibit 78. The problem

with that is that Mrs Allen has never identified

that middle photograph as something which she

produced.

MASON CJ:  Do we know where that middle photograph came from?

Is there other evidence indicating - - -

MR McCUSKER:  Only in an oblique way, Your Honour, and that

is that - it was a result that this was put on,

according to the evidence of Pierce, as a result

of something that a Detective August said to him.

It was left as vague as that. But that appears

to be what Mr Allen, in a piece of hearsay evidence,

is saying at that point, that he understood -

he was not there at the time, he said that,

but he had heard from his wife that another photo

had been brought around and they got a closer description which he did not see. But he has,

nevertheless, left on the evidence, clearly in

the eyes of the jury, with identifying exhibit 21

as being the result of his efforts - and his wife's

efforts - with the artist.

PlTll/5/MB	77	25/10/88
Mickel berg

At page 34 at about line C in his evidence

at trial, he was asked:

Would you look, please, at the item marked
for identification No. 21? Would you see
if you are able to recognise all or any of

that? It does lift up to show the underneath

part -

as Your Honours will see from that exhibit.

Mr Henry said:

Yes; I recognise the underpart.

Now, Your Honours, why the underpart was there,

of course, was that he had never said that the

man was wearing glasses, in fact, the young man

he saw was not wearing glasses. His description

of the hair, to what degree, is not clear, but

his description of the hair was different from

the hair description given by Mrs Allen who

thought that the young man, the purchaser, was

wearing a wig. So he said:

Yes; I recognise the underpart.

As what?---As the description I gave to

the police officers at that time.

That is the one that you yourself -

it is a leading question of course -

put together with the police?---That's

right.

Were you afterwards shown any photographs

by the police with some drawings or

alterations made to them?

If I may for the moment leave the photographs

question, that is, exhibit 78 until a little

later and just concentrate on the photo-fit

sketch.

(Continued on page 79)

PlTll/6/MB	78	25/10/88
Mickel berg

MR McCUSKER (continuing):  The result, in our submission,

of the evidence to that point is that the jury

would have before it evidence that exhibit 21 was

either the result - the underlay, that is, with

differing hair, was either the result of the efforts

of Mr Henry and the Allens at separate times, but

-nevertheless the combined result, or else that they

both made photo-fit sketches at different times

which were the same as exhibit 21. And on that

point the advisors of Mr Peter Mickelberg sought

expert evidence to see whether that indeed were

possible and, in addition to that, sought expert

evidence to see whether the photo-fit sketch which

went into evidence, as part of the identification

evidence and, indeed, something which could be

produced by the Penry photo-fit method as it is

called which is a slight difference from the identikit

method.

Evidence was then obtained from a Mr Domingo.

Mr Domingo's evidence, Your Honours, starts in

volume XII, it is an affidavit, I am sorry, at

page 2815. Mr Domingo -

MASON CJ:  Now what page was that, Mr Mccusker?

MR McCUSKER:  Page 2815, Your Honour. Mr Domingo was a

detective from the New York City Police Department,

as appears in his affidavit,and he gave evidence -

his evidence appears also, Your Honour at

pages 1390 and following. If I could just take

you to the affidavit because I think it encapsulates

it. He stated he was:

a Detective with the New York City Police

Department, where I have been assigned

to the Composite Artist Unit for the past
eight years.

And he gives then details of a considerable history of experience with composite drawings. And at

paragraph 6, having given that history and quite

impressive credentials, he says: 

I have seen the composite facial depiction

that was presented as Exhibit 21 -

he referred to it as a "composite facial depiction"

and also noted that he had read extracts from the

transcript of the evidence, as it turns out, of

Mr and Mrs Allen and Mr Henry and Mr Pierce. And,

in short, at paragraphs 12, 13 and 14 he says that

it could not be. And at paragraph 16 says:

In my opinion, based on my training

and experience, whether a composite is

hand made or made through mechanical means .....

PlT12/1/SR	79	25/10/88
Mickelberg

it would be impossible for one

composite to be produced during two

separate interview sessions by two sets

of witnesses.

And at the top of page 2817:

It is my conclusion that either

Mr and Mrs Allen and/or Mr Henry were

grossly in error in the sworn testimony

that was given to the court regarding

Exhibit 21 at the MICKELBERG trial.

The same thing is said, Your Honour, in his viva voce

evidence at page 1398, but I will not take

Your Honours to that, lines B to C.

GAUDRON J: It was not in dispute, I take it, that the

underlay et cetera were admissible?

MR McCUSKER:  The comment was made at the time that it was

put into evidence that it was a question of weight

and, in my respectful submission, that is simply

an error on the part of counsel.

GAUDRON J:	You concede it is admissible or was admissible?
MR McCUSKER:	Our contention, Your Honour, is that it was

clearly not admissible. However, it went into

evidence before the jury and it went into evidence

as the combined effort of the Allens and Mr Henry.

Of that there could be no real doubt. It is perhaps

arguable that having regard to the evidence of

Pierce, to which I will refer Your Honours, that the

jury might have perhaps thought that, looking at

all the evidence of Pierce, it was a bit odd that

Mr Pierce had said, as I will take Your Honours tort, that . the Allens had some difficulty and I

take Your Honours to page 81 to see the evidence

of Mr Pierce. It is fairly brief. Page 81, line A,

he says:	On the 25th of June, 1982 I spoke with
Mr and Mrs Allen at police headquarters
and subsequently prepared a drawing
of hair and spectacles on drafting film.

So that much was consistent with the Allen's evidence:

What happened to that?---It was given to

the inquiry officers.

Did you spend any time in June with a

Mr Terrence Henry?---Yes. I prepared a

facial drawing in the presence of and

under the direction of Mr Terrence Henry.

P1Tl2/2/SR	80	25/10/88
Mickel berg

What became of the facial drawing that

was prepared in conjunction with

Mr and Mrs Allen?---On the 28th of June, 1982

Det. Gillespie told me something. I

subseqeuntly cut a portion of the drafting

film from that drawing -

that is the Allen drawing -

that I had prepared in the presence of

Mr and Mrs Henry.

He means, I think, Mr and Mrs Allen. There was a confusion now and again in the course of the

trial of Allen and Henry:

Mr and Mrs Allen?---Mr and Mrs Allen -

I am sorry. This was for use as an overlay

on the drawing that was completed in the

presence of Mr Henry.

Did you subsequently put the two together

in the form of an overlay?---I did.

That is, the facial drawing of Mr Henry

with the hair and spectacle of Mr and Mrs Allen

overlaid on the top of it?---That is correct.

In due course did you show the total result to the Allens?---No, I did not myself.

So there is a suggestion there that the total result

has gone to the Allens, but he himself did not do it.

To which the learned prosecutor said:

They have given their evidence of that. See

if this, at present marked for identification 21 -

it is the exhibit previously put to the Allens

and Henry -

is the board that you speak of which

underneath is Mr Henry's effort with

Mr and Mrs Allen's hair and spectacles put

on the top?---That is correct.

I now tender, it.

And it went into evidence. And we went to the board

after that which probably heightens the problem.	Now
before the court - - -

BRENNAN J: Just before you leave that: there is a reference

there to the drafting film and the drawing as two

distinct things. Now I take it that drafting film

would be filled in with the Allens and then another

drafting film filled in with Mr Henry?

P1Tl2/3/SR	81	25/10/88
Mickel berg

MR McCUSK.ER:  One would assume so, Your Honour, although that

is not at all clear as to whether he was using
the same or something - but one would infer that that

is the probability that there was - pages 83 and 84,

if I can take Your Honours to that. At the top

of page 82, perhaps if we start:

Exhibit 21 was an attempt to do a full

facial drawing.

I did put my question rather carefully, sergeant. Is the overlay in that centre

photograph -

he is talking about exhibit 78, so if I could pass

on for the moment. Then at page 83, in

cross-examination, he was asked by Mr Singleton

about this photo-fit sketch. He said:

We endeavoured to draw the face for the

majority of that time. However, it was

not successful.

What were you drawing - the spectacles

and the hair?---I was endeavouring to draw

the whole thing.

And at page 84:

That document you prepared that night -

is that in court today -

it is just below line A -

Where is that?---That is the overlay.

Perhaps you could have a look at the overlay

to exhibit 21. It appears that at some stage

the hair has been lengthened or am T

imagining that? It appears to be shaded a

little differently as though it had been

added?

Mr Pierce said:

We did a lot of alteration on the drawing.

Then we go back to the photograph and at page 85 at lines C to D he refers to having made up the

exhibit 78 to look like the hair described to him

by Mrs Allen for preparation of a further overlay.

Now, as I was saying, Your Honours, the effect

of the evidence of Mr and Mrs Allen and Mr Henry
must have been to the jury that they were both

recognizing and identifying exhibit 21 as their

work. The evidence of Pierce casts some slight,

P1Tl2/4/SR	82	25/10/88
Mickelberg

perhaps, doubt on that to those who are perceptive

enough to see it. But the documentary evidence

that went before the jury, bearing in mind the

length of this trial, was calculated to cause them to

think that that was something which Mr and Mrs Allen

and Mr Henry had produced. Mr Domingo's affidavit

-before the Court of Criminal Appeal was seen by

Mr Pierce who then, before the Court of Criminal

Appeal, gave evidence that that was not so and

agreed with Mr Domingo, in effect, that the evidence

of the Allens was wrong and in no uncertain

terms that he said that the Allens' attempt to

produce a photo-fit sketch was unsuccessful, contrary

to the statement by Mr Allen that it was successful.

That is the statement made to the jury. It was

unsuccessful and he said, for the first time before
the Court of Criminal Appeal, that he had erased
the sketch, or what he described as the "attempt"

to sketch through their direction, the underlay -

that is the facial features. He was asked when

he erased that and under some cross-examination
he said that he had done that probably before the
Allens left. That appears at page 1267, line B.

That is in volume VI, Your Honours, where Mr Searle

put to Mr Pierce:

it is not as if he mistook one sketch for

another sketch, is it?---Well, I don't know,

sir. I wasn't in court when I saw this

presented to him.

That is at the original trial.

If it was presented like that and he

identified that as the drawing that he did,

well, he's mistaken.

And at page 1268, just above line C, having said -

I should take Your Honours back to page 1267B:

I should imagine -

that the erasure -

would be in the presence of the Allens .....

because they - - they couldn't do any

good with them.

That is quite contrary to the evidence given by the

Allens at trial and,. indeed, not the evidence that Mr Pierce gave at trial, although I could not say

it was absolutely inconsistent:

Are you not sure whether you rubbe·d out

the features in their presence at the end

of the session.

And he said:

83   25/10/88

P1Tl2/5/SR

Mickelberg

It would be normal practice for me to do that ..... .

Had they appeared to try very hard ..... As

I recall, they did.

They worked with you into late on the

Friday night?---Yes, sir.

Did they express any dismay -

and there was an interjection. And at line D,

page 1268:

I am just asking you whether you could

have rubbed out the features after they

left?---It is highly improbable, and I would

say no. It wouldn't be a practice that I

would normally partake of.

And just above E:

that it would have been in their presence

surely -

that he erased it -

because they would have been making comments.

Now without taking Your Honours to the precise evidence, at various stages in the course of

Mr Pierce's evidence at the Court of Criminal Appeal

he categorized the evidence of Mr Allen, when it was put to him, the evidence itself; as false at

page 1236; untrue at page 1239; page 1258 wrong

identification; page 1260 he disagreed with the

evidence of Mr Allen when Mr Allen had said that

their efforts were successful; page 1262, there

is a complete contradiction between the evidence

of Mr Pierce and the evidence of the Allens regarding

the hair and facial features, because as I have

pointed out to Your Honours, the evidence of the

Allens was that they were reasonably happy at the

end of their session with Pierce with the underlay,

that is the facial features, except that the - I
think, they said that the jaw line was too fine, but

apart from that that they were not happy, he could

not get the hair right. Whereas the evidence of

Mr Pierce at page 1262 is to the effect that they

were happy with the hair, but he disagreed that

they were happy with the facial features.	So
it is a complete contradiction.

P1Tl2/6/SR	84	25/10/88
Mickelberg

MR McCUSKER (continuing):  On 1266 he says that they

were "absolutely mistaken". He repeats that

at 1267 and at· 1274, that Allen was wrong if

he claims, as he did, that they were reasonably

happy with the features.

GAUDRON J~. Mr Mccusker, I am having some difficulty,

I am sure it is my fault. What was the

point of all that evidence before the

Court of Criminal Appeal?

MR McCUSKER:  Before the Court of Criminal Appeal?

GAUDRON J:  Yes. I mean, you were not advancing that

as fresh evidence, were you?

MR McCUSKER:	Yes, Your Honour.
GAUDRON J:	You were?
MR McCUSKER:	On the basis - - -

GAUDRON J: Well, if the other evidence was not admissible,

how does that sort of evidence become admissible

evidence properly to be taken into account as

fresh evidence.

MR McCUSKER: Well, Your Honour, if I could approach it

this way: the evidence being admitted, we

say wrongly, but nevertheless it was there - - -

GAUDRON J:	But without objection - - -
MR McCUSKER:	Without objection, Your Honour.
GAUDRON J:	- - - and in circumstances, one might think,

deliberately without objection.

MR McCUSKER: Well, I would - - -

GAUDRON J:  I mean, I cannot really - and I am sorry,

if there is something, please tell me, but I

have been sitting here thinking the only basis

this could have gone into evidence is because

the defence wanted it in.

MR McCUSKER:  Your Honour, that is one hypothesis, but

it is not the only one open.

GAUDRON J: But it was not objected to at all.

MR McCUSKER:  No, it was not objected to; it was said to

go to a question - - -

GAUDRON J:  And it does not irrnnediately strike one as relevant

to any issue in the trial.

PIT13/l/JM	85	25/10/88
Mickel berg

MR McCUSKER:  But, with respect, it really, when one

looks at all the evidence, became of vital

relevance.

GAUDRON J: Yes.

MR McCUSKER:  And the reason for it - Their Honours in

the Court of Criminal Appeal, two of Their Honours,

suggested that the sketch did not look much like

Peter, and that - - -

GAUDRON J: Yes, which is why one assumes it was not

objected to.

MR McCUSKER:  Yes, and that therefore that, if anything -

the introduction of that - would have helped Peter's

case. One cannot divine the reasoning of counsel,

other than to say that counsel said, "I can't object;

it only goes to the question of weight", so he

was stating his view of the law which, with respect,

was wrong. I am reminded in fact that his comment

on that went to exhibit 23, not 21, but I think the
same general view seems to have been adopted, that

it goes in and it is a question of weight.

But, Your Honour, whether one's subjective

impression of that sketch is that it looks reasonably

like Peter Mickelberg, or it does not, the major

problem with a sketch going to the jury is that it

forms a bridge between the Allens selling the car

and the young man seen by Mr Henry because if

one has in evidence, as there was, a Talbot note

identifying Mr Peter Mickelberg as the purchaser

of the car, then the question is: was the purchase

of the car - assuming he was Peter Mickelberg,

the writer of the Talbot note - at the scene of

the crime, or near it, on 22 June?

BRENNAN J:  Was it the same car?

MR McCUSKER:  The same car identified by the licence nurrber.

It was a Wallaroo licence number, Your Honour,

which the police took at Subiaco because it was

parked in the wrong bay; it was improperly parked. So, we have the evidence of Mr Henry

that there was a young man there - on a one-man

identification parade, Your Honour, when he

was asked, face to face with Peter Mickelberg

and him only, "Is this the man?", he said, "No.

He is too tall and his hair is wrong." But the

prosecution approach was to suggest that nevertheless

it was the same man as the purchaser of the car,

that the two persons in each place were identical

to Peter Mickelberg, and one way of doing that,

whether it be thought subtle or not, was to put in

the photo-fit sketch which, on the evidence of

the Allens and the evidence of Mr Henry, was of the

same person. They both said, "That's our work."

PIT13/2/JM	86	25/10/88
Mickel berg

And whether it looked totally dissimilar or not,

on that point it really did not much matter because

they are saying at that point, "The same man

who purchased the car is the same man that I" -

Mr Henry - "saw on 22 June."

Now there was evidence, Your Honour, just

dealing with the question of one's subjective
impression of a likeness - despite the view taken
by Their Honours in the Court of Criminal Appeal,

there was evidence given before the Court of

Criminal Appeal by some very eminent experts

to the effect that that photo-fit sketch could

not have been the result of the joint efforts	of the Allens and Henry, and indeed, Mr Pierce -
I do not say recant, but certainly - disagreed
with the Allens' ver~ion and in effect agreed
with Mr Domingo at the Court of Criminal Appeal.
But there was further evidence given by experts
called by the defence that on examination of that photo-fit sketch so-called, it could not
have been a sketch made up in the way that was
described by Mr Pierce. That raised a fundamental
issue, a different issue, and evidence was given - I will come to it, Your Honours - in short that
the sketch was either a tracing, or a copy of
a passport photograph with enough slight differences
to make it appear different, but nevertheless a
tracing or a copy. Reference was made in
particular to somewhat minute features which the
experts said - those called for the defence -
could not possibly have existed in an ordinary
sketch based on an eye-witness identification; features such as the same positioning of the
eyes which were off-centre - the photo-fit sketch method does not provide for off-centre eyes;
features such as the eyelashes being drawn in,
which was said to be unusual and drawn in not
right across, but part of the way. Expert
evidence was to the effect that a visual
identification and description would never give
that kind of detailed result. but that was a
separate issue.

Coming back to the issue, the question of the new evidence:

the evidence before the -Court of Criminal Appeal

was that that photo-fit sketch did not in effect

provide the bridge or the link between the Allens

and Mr Henry that the jury must have supposed it

did.

BRENNAN J:  Mr Mccusker, if the use which was put by

the defence of this document at the trial

was to say to the jury, "There you have the best

effort that these witnesses can give. One of

these witnesses was unable to identify the accused

Peter Mickelberg, and that is the man that they

PIT13/3/JM	87	25/10/88
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should be looking for, not my client.", all

the evidence that you have been directing our

attention to would have weakened that submission?

MR McCUSKER:  Yes, it would have weakened that

~ubmission, Your Honour, I suppose, but that

photo-fit sketch, of course, like all the

evidence, must not be viewed in isolation.

It was then accompanied by the photographs which
form exhibits 23 and 78, which were produced,

as I said earlier, in a somewhat extraordinary

manner so as to suggest it to the jury that the

Allens had identified the person in the middle

photograph effectively, although there was

no evidence that Mrs Allen ever did, and that

the photograph on the end of exhibit 78 was

something which Mr Henry had identified.

DEANE J: But how - I do not fathom exhibit 78. What

was that all about?

MR McCUSKER:  There are three photographs, of course,

Your Honour, of Peter Mickelberg.

DEANE J: Only somebody has put a wig on two of them.

MR McCUSKER:  Yes, that is right.

DEANE J: Well, who did that?

MR McCUSKER:  The police artist did that. He put a

wig and glasses on the middle photograph,

and that went forward as being, as it were,

Mrs Allen's wig and glasses - her best attempt at wig and glasses - although there was no

evidence from Mrs Allen that that person in

the middle photograph was the person who

was the purchaser of the car. But it went

forward with her wig - her description, as

the police artist said, of the wig and glasses

The end photograph fell to 1 a somewhat

different category; that was a photograph ·

on which there was hair,once again,drawn,
which, if Your Honours lift up the underlay

on exhibit 21, can be seen to be similar to,

perhaps, the hair which Mr Henry had said, or

had described as being his effort on the photo-fit

sketch.

Now, as I say, Your Honours, the middle photograph - the one with the glasses - was

never identified by Mrs Allen, or Mr Allen,

as being the man who had bought the car from

them, although it was certainly suggested in

the end to the jury that that was the effect

of the evidence. The end photograph,· or a

copy of it, became exhibit 23, which should be

before the Court. It is a photograph - I will

PIT13/4/JM	88	25/10/88
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just hand it up to you.	The evidence, Your Honours,
in relation to that is as follows:	that on 16 July 1982

the police asked Peter Mickelberg to accompany them
that morning to what turned out to be a one-man

identification parade attempt. They took

Peter Mickelberg to Subiaco and asked Mr Henry

p·oint-blank, "Is that the man that you saw in

the car-park?" I think it is fair to say that

Mr Henry did not in categoric terms say, "No, it

is not."

I am sorry. I was saying, Your Honours,

that on the morning of 16 July, Peter Mickelberg

was taken to Subiaco and was shown to Mr Henry,

not from a distance, or in a line-up, or in

a crowd, but face to face, and was asked, "Is that

the man that you saw in the car-park on 22 June?"

Mr Henry's response, as I have told Your Honours,

was, "He's too tall; his hair is wrong." So,

he did not say, "It couldn't be him.", but he

said, "He's too tall; his hair is wrong." And
the description that he had given of the height,

five foot five to five foot six, is at variance

with Peter Mickelberg's height, which is about

five foot nine, on the evidence.

That having failed, about four days

later, I think on the evidence, Mr Henry was

shown yet a further identification attempt, as

it were, by then being shown Peter Mickelberg's

photo, which is exhibit 23, with the hair which

is drawn on it and was asked then by the police

whether he could identify that as the man he

saw in the car-park and he said, "Yes." Now,

Your Honours, in our submission, that means

of identification flies in the face of all

accepted views as to what is an appropriate

approach for the police to take in identifying

suspects. It has, amongst other things,
inherent within it what has been described as

the displacement effect, that once a person

has been shown, particularly in police custody,

this man was with policemen - to a witness, if he

is again shown, or a photograph is shown, there is

a likelihood,albeit all honestly, the witness will

tend to take that person, pick that person as being the suspect, particularly so, of course, where here there was not even a bundle of photographs produced,

there was simply the one: "Is that the man you saw?",

and that was the evidence that went to the jury on that.

(Continued on page 90)

PIT13/5/JM	89	25/10/88
Mickelberg

DEANE J:	Was that evidence objected to?
MR McCUSKER:	No, that is the evidence in respect of which

I am reminded by my learned friend, Mr McKechnie, counsel made the comment, when the learned trial

- judge asked whether he had any comment, that it

was a question of weight, pages34 and 35, volume I,

my learned friend tells me.

DEANE J: And what about in the Court of Criminal Appeal?

Was it argued that that made-up photo was not

admissible?

MR McCUSKER:  It should not have gone in - my learned junior

assures me it was strenuously argued, it should

not have gone in.

DEANE J: And, did the Crown oppose that submission and say

that is should have?

MR McCUSKER:  As I understand it, yes, Your Honour, it did.

So, the jury had before it, at trial, this highly

unsatisfactory melange of vague but, in the end,

very, very cogent identification evidence -

dangerous. They had the unsatisfactory Talbot note

on the board with the carefully selected samples of

printing to link Peter Mickelberg as the purchaser

of the car. I should add, Your Honours, that

Peter Mickelberg had some evidence which was

adduced that, on the day in question, the day

he was supposed to have been purchasing the car,

he was doing some tiling for his mother and had

gone to a shop in Subiaco - it does not matter -
a shop in order to purchase some tiles and evidence
was, I think, in the form of an affidavit, given

by a salesman in the shop but there was no precise

identification of the time of day that that occurred,
that is, the r,urchase of the tiles and the proposition

advanced was, 'Well, if it did occur on that day, he still could have purchased the car." But there is the

Talbot note linked on the board to Peter as the	first problem with identification evidence, the
purchaser.

The second problem is that by means of this

photo-fit sketch which is conveyed to the jury as linked inexorably to 22 June young man in the car the joint efforts of Henry and the Allens, he is

park in Subiaco. Then we have the further evidence,

this unsatisfactory one-man identification parade

and then one-photo photo examination by Mr Henry

saying, after a failed identification attempt - and

in~i.dentally I should say, in court again said, ''No,_ I

cannot identify the man as being the young man

I saw". Nevertheless, all went to the jury.

PlT14/l/SH	90	25/10/88
Mickelberg

It is, I suppose, needless to say,

Your Honours, that the learned trial judge gave

the customary direction to the jurors that they

should examine all the evidence, both the oral

evidence and the exhibits, all being evidence

.· which they should take into account in reaching

their verdict and so far as the exhibits are

concerned, in my submission, they, generally

speaking, have a much more cogent effect on

jurors' decisions or are likely to, than the

oral evidence.

Now, Your Honours have, on several occasions,

raised the question of whether these exhibits 23

and 78 were objected to at trial and the answer

I have given but, in our submission, there are

as they were, they became even more objectionable	two points to be made: one is that objectionable
once it was established, as it was before the
Court of Criminal Appeal, that the photo-fit sketch was not as the jury would have understood, the joint effort of those two sets of persons. The
second point to make -

DEANE J:  But that does not seem to bear on exhibits 23 and
78?

MR McCUSKER:  No, it does not, Your Honour. It bears on it,

I suppose, indirectly. You have got, at the one

end, on 22 June, you have got Mr Henry saying,

"Although I can't identify Peter at an identification

attempt, that's his photograph" so that you have got

that piece of objectionable evidence going before

the jury. That is the photograph of the young man

I - - -

DEANE J:	But we are getting a little bit remote from the
admissibility of particular evidence that was not objected to at a trial from which an unsuccessful
appeal was brought and so on.

MR McCUSKER:  Yes. Well, Your Honour, if I could make this

point: at the Court of Criminal Appeal for the

first time, it was brought out that this photo-fit

sketch was not the joint effort and, therefore, the

link which the jury would have seen between the

purchaser of the car and the man at Subiaco, at

least in that regard, did not exist. It just

did not exist because the effort of the Allens

was, according to Mr Pierce, so bad he era~ed it,

he thought in their presence, although they never

said that.

Now, the Court of Criminal Appeal, in our

respectful submission, has failed to take the

appropriate approach for a court of criminal

P1Tl4/2/SH	91	25/10/88
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appeal when considering this aspect of the

evidence and that is the point on which -

DEANE J:	I do not want to delay you but I still do not
see why you say we should get involved in the

. objectionability of dressing up a photo of the

accused to look like the suspect and getting

it into evidence when no objection.was taken,

when an appeal did not raise it, and when the

fresh evidence does not really seem to touch it.

MR McCUSKER:  Yes. The appeal - it was certainly areued

at the appeal, Your Honour, but not at the trial.

DEANE J:	I am talking about the appeal from the conviction.
MR McCUSKER:	I see, yes. That is the appeal, the first

appeal?

DEANE J:	Yes.
MR McCUSKER:	I do not think it raised it, Your Honour. No, it did not, but we say that, raised though
it could have been, once this photo-fit sketch
became questioned and the fresh evidence came
into existence, then the objectionability became
heightened. That really is the point and the
further point is that the Court of Criminal
Appeal - one cannot say, "Well, the jury would
have convicted anyway because there's a link
which is a cogent part of the evidence" - the
Court of Criminal Appeal simply looked at in
isolation the question of the photo-fit sketch.
Indeed, they approached it on the basis of
their assessment of the expertise of the various
witnesses who were called by the defence and, in the end, took the view that, despite the admitted
evidence now, the admission that the photo-fit
sketch was not the joint effort of the Allens
and Henry, it really would have made no difference
and that is to disregard all of the other evidence.
They have viewed this matter in isolation without
looking at all the other evidence and the
objectionability of that. Indeed, in their
judgments they do not refer to the objectionability of the other evidence which is exacerbated by what has occurred in relation to the photo-fit sketch
and, in our submission, this Court ought to rule
on this point as an important matter for the administration of the law. It is very important since photo-fits are becoming increased in usage
and, I understand, Your Honours, that photo-fits
have now developed to the point where they can be computerized. It is important that this Court
give a clear ruling and direction for the guidance, not only of the courts but also the law enforcement agencies.

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BRENNAN J: Well, what is the ruling we should give?

MR McCUSKER:  That - well, we would seek a ruling,

Your Honour, that this means, at least, of

going about the production of identification

evidence is so unsafe and unreliable that it

ought to be rejected.	Such evidence should
not be admitted.	We say that-that is not the
principal point of this appeal.	The major point,

as it must be, on this issue, is that the Court

of Criminal Appeal did not seize itself, did not

apprise itself of that particular issue. They

were content to view exhibits 23 and 78 as being,

on the face of their judgments, acceptable and
made no mention of the danger involved in the
introduction of that evidence, particularly

coupled with the photo-fit sketch.

BRENNAN J:  Mr Mccusker, I have difficulty, at the moment,

in corning to grips with this part of your argument for this reason: that here was evidence which was

admitted without objection, not the subject of any

ground of appeal at first instance; then it comes

back before the Court of Criminal

Appeal on a reference; the Court of Criminal Appeal

has to determine the cogency of the fresh evidence
which bears upon this matter from Mr Domingo.

MR McCUSKER:	Yes.
BRENNAN J:	The Court of Criminal Appeal comes to some view

about. that. Then it comes here on an application

for special leave.

MR McCUSKER:  Yes.

BRENNAN J: What is the special leave point in all of this? MR McCUSKER: Well, Your Honour, in terms of a legal issue,

there are two. The first of those is whether the

Court of Criminal Appeal took the proper course

in the course that it did take,in considering this

fresh evidence. It viewed it, in our submission,

and I will take Your Honours to the reasons, in

isolation. It did not view it against the

entirety of the identification evidence. It

should have done so. That is the proper task

and it should have viewed it, not only against

the entirety of the identification evidence but
also the objectionability, as it stood, or the

danger of that identification evidence.

So far as counsel not objecting is concerned,

we say simply this: that the fact that counsel

fails to object should not, if the matter ought

P1Tl4/4/SH	93	25/10/88
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to be - if the evidence is inadmissible and is

unfair, that is not a matter, in our submission,

which ought to cause this Court - - -

BRENNAN J: Is this saying anything different from the way

· in which the Court of Criminal Appeal evaluated

the fresh evidence was wrong?

MR McCUSKER:	But fundamentally wrong, Your Honour, not in terms of its assessment of the evidence, but
it was fundamentally wrong in its approach because
it did not take into account the matters I have
referred to, the objectionability of 23 and 78
and you have that which is in - the evidence is
in - then Their Honours should have considered, ''Well,
that was dangerous as it stood." They did not say that that evidence was dangerous and ought to have
been the subject of a clear caution, warning, which
it was not and the danger was so heightened by the
introduction of this link, this false link, that
that in itself was sufficient to cause the matter
to go back for retrial. That is our submission,
Your Honour.

So far as the point concerning failure of

counsel to object goes, there have been a number of

cases, of course, where the failure of counsel to

object has, nevertheless, not been held to be a

bar to the point being raised. I refer to the

clear error of law which was made by counsel in

RE KNOWLES which is on our list of authorities,

a decision in Victoria where counsel failed to
adduce evidence there on a misguided view of the

law as to the propensity of a deceased person

where the accused was charged with murder.

The Court of Criminal Appeal in RE KNOWLES said

that, notwithstanding counsel's error, .that was

no bar to the court considering that there had

been a miscarriage of justice which it held there.

But we would say that one could view the matter

there, clearly, was a miscarriage of justice;	in this way, in reliance upon RE KNOWLES: that	t~at the miscarriage of justice in the first place
resulted in the admission of this identification
evidence at all, certainly without any warning.
The miscarriage was heightened, was added to, by
the introduction of evidence which we now know to
be quite wrong. The message to the jury of the
link formed by exhibit 21 was simply a wrong
message.

DEANE J:	Mr Mccusker, was Mr Henry told that the photo
he was shown had been doctored and was a photo
of the person he said was too tall?

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MR McCUSKER:  No, he did not, Your Honour. He did not

identify that photograph as being the man he had

seen four days earlier, I am told. There is no

evidence that he was told that the photo was

doctored. He was simply shown a man which was Peter Mickelberg whom he said was too tall and

the hair was wrong. Then he is shown a photograph

- not the man the same height - but a photograph

and he says, "Yes, identify that" and he signs the

back of it so it goes to the jury.

(Continued on page 96 )

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Mickelberg

MR McCUSKER (continuing): It is not as though he saw this

young man simply seated. As I have said, the evidence

was that he was standing and he was, at one stage,

jogging up a lane way. So he saw him in various

poses sufficiently to form a reasonable assessment of

his height, and there is a difference between

.	five foot five, five foot six, and about five foot nine or five foot eight and a half, as the various estimates
have been given of Peter Mickelberg's height.

If I may clarify one aspect of that evidence, page 2422 of Volume X, taking up a point that was

raised a moment ago, starting at the top of 2422,

Mr Searle asked Mr Henry - this is at the Court of

Criminal Appeal:

You were told at that time that the man in

the photograph was the man that you had

failed to identify one week before?

That was the question:

It may have been, I don't remember that either.

Did you know that the man in the photograph

was the man you had failed to identify the

week before?---No, I did not, sir.

You could not identify from the photograph

of Peter Mickelberg that he was the same man

you had been requested to identify the week

before?---No, I could not.

You did not know at that time that the

photograph of Peter Mickelberg was precisely

the man that you said wasn't the man the man

you saw that morning?---No, I did not, sir.

So it goes on:

Were you asked to draw any hair on a photograph

of Peter Mickelberg?---No, sir.

Were you told who had drawn the hair?---No, sir,

I was not.

At no stage did you have identification parade with Peter Mickelberg?---No, sir.

GAUDRON J:  Now, all of that, I take it, was in the Court of

Criminal Appeal?

MR MCCUSKER: That is so, Your Honour, yes.

GAUDRON J:	From whom was the photograph eventually tendered, or through whose evidence was it tendered?
MR McCUSKER:	I am just not sure whether it was Henry's

or Pierce, Your Honour. It was Henry - I am assured

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from the bar table that it was through Mr Henry.

BRENNAN J: This is exhibit, what?

MR McCUSKER: Exhibit 23, Your Honour. Yes, it appears

in examination-in-chief of Mr Henry, line D:

Were you afterwards shown any photographs by

the police with some drawings or alterations

made to them?---Yes.

How many photographs were you shown, Mr Henry?

---I was shown two.

Were you able to recognise the person depicted in - - -?---Yes, I was.

As being?---As being the fellow that I saw that

morning.

And he said he signed the back and then just below E:

Who is that a photograph of, in your assessment?

---It was the fellow that I saw in the car park.

That is where His Honour asked whether there was any

objection? Mr Singleton, at the top of page 35: I do not think I can validly object. I think,

really, it is maybe a question of weight.

And the exhibit went in. That is at the top of page 35.

Now, that view, whatever construction one can put on

counsel's failure to object to exhibit 21, the sketch,

the view expressed by counsel at the top of page 35,
that he thought he could not validly object, is, in

our submission, wrong and, for that reason, there was

a miscarriage, but we say that the miscarriage - it

is true that that was not the subject of the original

appeal against conviction - but it was not an appeal,

incidentally, against conviction on the conspiracy.

DEANE J: I will stop raising this -

MR McCUSKER: No, Your Honour, I am grateful that you - - -

DEANE J: I am still a little lost. Was any objection taken

to the-conduct of the police in dressing up a
photograph to accord with the description of the
suspect and then showing it to a witness to get him

to identify the person he had seen?

MR McCUSKER:  No, Your Honour, at the trial, no.

DEANE J: Well, anywhere?

MR McCUSKER: Well, before the Court of Criminal Appeal the

argument was raised fairly and squarely that this -

because of the way in which this material was

produced, it should not have been before the jury.

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DEANE J: 

And on that basis?

MR McCUSKER: 

Yes. Well, that goes to the background or

the way in which it was done and part of that
includes the conduct of the police in dressing it

_up. The photograph was dressed up by a person who,

t think, gave no evidence, but referred to as a

Detective August, and that appears at page 83, line A,in theevidence of Mr Pierce, the artist, who says:

In fact, it was that photograph there.

He is pointing to the board, and:

Afterwards, as a result of what I was told
by Detective August I removed the spectacles

from the overlay and changed the hair

texture depiction on the overlay.

some hair or a hair-style which he puts on the

So he, Pierce, has got from an intermediary, of

photograph which became the third photograph, the

one without the spectacles and, in turn, became the

photograph shown to Mr Henry.

BRENNAN J: Is there any evidence as to the time when the

underneath section of this pencil portrait was

finally done by the police artist?

MR McCUSKER: Well, the evidence of Pierce, certainly at the

Court of Criminal Appeal, was that that was done in

conjunction with Mr Henry; that the underlay - - -

BRENNAN J: Well, I have not quite followed that, because it

seemed to me that there was a reference to draughting

film, as though when you are working with somebody

you use one piece of paper and then they go home and

then, at the end of it, you perhaps get your pen out

and do a tradesmanlike job on the main piece of

paper.

MR McCUSKER:  Yes, yes. I will try to turn up the evidence,

for you, Your Honour. But the effect of it, as I

recall, the effect of Pierce's evidence was that

the underlay was the result of his working with

Mr Henry; certainly at the Court of Criminal Appeal that was the thrust of it, and at the same time

saying it was not the result of any work done with

the Allens.

BRENNAN J:  I appreciate that, but I took that perhaps to mean

the source from which the information was acquired.

MR McCUSKER:	Yes.
BRENNAN J:	But what I was wondering about is, when was this

piece, this document itself that is part of the exhibit,

the underlay now, when was that produced? I must

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confess I do not quite understand what is meant at
the top of page 83:

I removed the spectacles from the overlay and changed the hair texture depiction on

the overlay.

What is that?

MR McCUSKER:  Yes, that is exhibit 78, Your Honour. You see,

if we turn to the previous page, 82~

What have you done on the centre one?

BRENNAN J:  I see, yes.

MR McCUSKER: I spoke with Mrs Allen and subsequently

prepared an overlay which added spectacles

and hair to a photograph similar to this

one. r· fact it was that photograph - - -

so he is talking there of the three photographs.

BRENNAN J: Yes.

MR McCUSKER:  And afterwards he removed the spectacles and

changed the hair texture depiction on the overlay.

BRENNAN J: That is the one on the right-hand side?

MR McCUSKER:  Yes, Your Honour.

BRENNAN J: Yes, I see.

MR McCUSKER:  That is the one -but rathe;'exhibit 23 would

appear to be that. Exhibit· 23 was the one which was

shown to Mr Henry who had failed to identify

Peter Mickelberg and asked, "Is that the man?"

and Henry identified it. then, some four days later

after the failed identification and signed it at the

back. That went to the jury in that form.	There
could be no doubt, of course, that the effect of that was
that	; Peter Mickelberg was the man he had seen

that Mr Henry was saying, stronger than in words,

in the car~park and yet, when confronted with

Peter Mickelberg, he had failed to identify him both

on 16 July and in the court.

Now, there was, as I have said to Your Honours,

there was a direction given by the trial judge in

relation to the dangers of visual identification;

but that direction did not, as it were, extend to

the photographic evidence, at least not in its terms.

The prosecution's closing address, inpliedly invited the jury

to rely upon those three exhibits as bearing on

the identification of Peter as the buyer of the car

from the Allens and the man, the next month, seen in

the car-park on the date of the crime. I refer

Your Honours there to page 1042 ,which is volume V,

P1Tl5/4/VH	99	25/10/88
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to 1043. Now, before I take Your Honours to that

address, which was the closing address of the

prosecutor, I would submit that in broad terms,

although the learned prosecutor undoubtedly put

to the jury the problems with identification, at
the end of the day, and talking about some of the

exhibits, he may well have made things unwittingly

worse than they already were. He said at line B:

As a matter of good police practice, photographs

are not shown unless you do not have people
to talk to and the lead from the Allens as to
who bought the car, than can be the way it was
done but had the Allens, even with the wig,
either of them, come to this court and said,

"Yes, I identify the accused Peter Mickelberg

as the person who came and bought the car," it

would be worth nothing, Mr Foreman, ladies
and gentlemen; indeed, I can tell you
categorically now, it would be led by the Crown.

The grave danger is that what the witness is

doing, with the best will in the world, is

recognising the person that she saw in a

photograph. the same with Mr Henry. When

the police, at an early stage, showed him a

photograph of the accused Peter Mickelberg with

the hair touched up to fit the story about a wig,

that had come from a different source, and he

signed the back of a photograph and said, "Yes.

I said that's like him",

So it goes in on that basis:

rt· would be wrong, even if he were able to do it,

for Mr Henry to come to court and say, "That's

the person,',' because he has seen a photograph

in the meantime. This is even without disguises.

So he puts in a hint of disguise, acknowledges that

Mr Henry has not been able to identify the accused

Peter Mickelberg as the man seen, but the photograph

is still there before the jury. The learned

prosecutor went on at that page and then said, towards

the foot of the page:

There was little danger of it -

this is below E -

because I think defence counsel brought it on

themselves. "Stand up, Peter Mickelberg."

"Is that him?" He said, "He looked very familiar. '

and that is:

because he had been shown him on 16th of July.

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He talks about the probbems there. At 1043:

There is not and could not be any evidence

of identification of the accused Peter

Mickelberg by the independent witnesses.

That is why I would say to you that it is

really unfair for Mr Singleton to say to you,

"The Crown tried to hide the fact that

Mr Henry did not pick him in the first place"

because hidden away: in the hand-up brief was

the evidence all along of Detective-Sergeant Hooft
and Detective-Sergeant Henley, that they took

Mr Henry to see the accused Peter Mickelberg

and then took Mr Henry away and said something

to him and so on. There was no hiding ..... ·. ·

Henry's evidence was that afterwards he picked

a photograph, touched up by the police artist.

Mr Singleton called it an outrageous exhibit.

Perhaps, one may say, a little late.

Why is it done, Mr Foreman, ladies and gentlemen?

Not - I say categorically - not for the purpose

of suggesting to you and you must not take it as

such that Mr Allen or Mr Henry identified the

accused Peter Mickelberg; really to show you that

there is nothing in the description of the person

and the efforts of Mr and Mrs Allen and of

Mr Henry to pick him, which says to you that it

was not and could not be the accused

Peter Mickelberg. His own evidence was that he

had himself measured at Canning Vale and he came

out to five foot eight and three-quarters and

that the shoes made one centimetre difference,

he would put to you, .... We know there was a wig

at Armadale, if you harken to Mrs Allen but

the importance of questions about Mr and Mrs Allen

picking him and Mr Henry picking him are twofold.

This, I say, Your Honours, is where dangers arise. (Continued on page 102)

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MR McCUSKER (continuing):

First of all the answers that came from

him to the police when they said,

"People have identified you" -

pausing there, Your Honours, as part of the oral

admissions - the records of interview given

by the police - they said that it had been put to

Peter that he had been identified by people. That,

in fact, was-not true, but that got into evidence

both through the police evidence of the oral

record of interview and it was referred to by the

learned prosecutor:

which was· not quite right although they

may well have thought that for the purpose

on inquiry it was close enough, because

you know from Sgt Pierce that Mrs Henry -

he means Mrs Allen there -

had said, "That photo in the middle

with the hair drawn on".

There is in fact no evidence that Mrs Allen ever

identified "that photo in the middle with the hair

drawn on" as the man who purchased the car:

"I did not show her a photograph of the accused with hair on because it was not

her effort; her effort was the drawing

doing the best she could."

But the problems are manifest, that the learned

prosecutor is referring there incorrectly to

evidence that Mrs Allen had said that the photo

in the middle was the one she picked. She

did not. Her effort was confined, Your Honours,

to the drawing, never the photograph:

The other importance of the evidence

relating to identification is the

reverse identification -

he said -

which occurred when the accused

Peter Mickelberg really identified

Mr Henry. He picked Mr Henry as the

bloke he had seen on the morning of

the 22nd.

Your Honours, that needs some swift explanation.

The evidence of the police was that when Peter

Mickelberg was confronted, taken - ·this one·-rnan

identificationp_arade - !"o Mr Henry, that after

Mr Henry had been confronted,Peter Mickelberg

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started to sob, in effect, and broke down,

saying, "I think he has identified me" - words

to that effect - "I think he knows me". That has

to be examined against the light of all of the

evidence. Mr Peter Mickelberg said at the trial

that when he was confronted by Mr Henry,_Mr Henry

said, "No, he's too tall and his hair is wrong".

That was put, of course - in the course of the
prosecution case when Mr Henry gave evidence -

,;:.hat was put on his instructions by his counsel

to Mr Henry who agreed that that was what he had

said at the time. It is therefore unlikely in the

extreme that the so-called reverse identification

referred to there took place, that is Peter

Mickelberg breaking down and saying, "I think he's

identified me", if he had heard, as clearly he did,
Henry say, "No, he's too tall and the hair is wrong".

Then over the page:

getting back to our talk about

confessional evidence, did not that put

him in a position where he was at a pretty

low ebb when they started to ask him

questions after that. He knew he was

gone. Horror of horrors, they have taken

him and confronted him with the very fellow
he had to run away from on the morning of
22nd June.

Henry gave evidence that on the morning of 22 June the young man who had parked his car in the parking

area, his parking area, and who had difficulty

starting the car at a later stag~ jogged off down

a lane way at some stage - not towards Barker House,

incidentally:

Horror of horrors -

they had confronted him -

he had to run away from on the

morning ..... when he was there probably

in his wig, you may think.

May I interpolate there the evidence of Mr Henry

was that as far as he could discern there was no

sug~estion that the young man he saw was wearing

a wig, but it is put on this photograph, and it

looks a bit like a wig as it is put on the
photograph, and Mr Henry has identified that

photograph four days after he has failed to

identify Peter. At page 2424, Your Honours, at

volume X, line D, Mr Henry was asked before the

Court of Criminal Appeal whether it appeared that

he had a wig on and the answer was:

I would not know.

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It appeared to you that his hair

was quite normal?---Yes. I would have

to agree with the fact that it looked

quite normal to me.

So therewas no suggestion from Mr Henry in his

evidence that the man that he saw was wearing a

wig, yet it is put to the jury, "probably in his wig

you may think" . T.he wig, of course, forming some

kind of implied link with the Allens who had

so 1 d a car to a man whom Mrs A 11 en at 1 ea s t	thought
was probably wearing a wig.	Then the learned

prosecutor said, still at page 1045:

Someone had to go to the unit on the morning of the 22nd but, to repeat - before I comne to what the Crown says

to you is the evidence against him - there

is no evidence that you could possibly act

on that the Allens have said "He's the

person who bought the car" -

That, of course, was stating the obvious.	They
had never said it -

or Mr Henry has said, "He's the person

who was at the back of Finance Brokers

House."

Thus far, so good, but the prosecutor then says, dealing, of course, with the exhibits 21, 23 and 78:

The attempts to have them identify them

have a different significance. You will

bear that in mind as we go through.

The significance was never really explained.	The
exhibits went in.	They could only have gone in on

the basis that they were evidence of identification,

not visual in the normal sense of an identification

parade, but in the means I have described.	The
trial judge, Your Honours, as I have said, gave

a proper warning to the jury regarding visual

identification, and that appears at page 1152,
line E, to page 1156, but he did not exclude

the exhibits from the jury and he referred, at

page 1160, towards the foot of that page:

Then, as you were reminded, Sgt Hancock showed him a photograph -

that is Peter -

of himself with a wig and thick

rimmed glasses superimposed on it,

he told the accused that the couple at

Armadale identified him as the person who had purchased the car -

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that was wrong. The couple at Armadale had not

done so ""'.

and the accused said, "It still

doesn't prove it was me."

That is dealing with an aspect of the admission

evidence given by the police, but in the course
of that the police have introduced evidence to

suggest to the jury that the Allens had identified

Peter when in fact they never did.

BRENNAN J:  Could you give us a reference to the pages at

which counsel for the defence dealt with this matter?

MR McCUSKER:	At the trial, Your Honour?
BRENNAN J:	At the trial, yes.

MR McCUSKER:  I will Your Honour, yes. Your Honours,

I have noted at page 12 of the outline, in

paragraph 16, really by way of summary, · what

occurred, and I should mention that the importance

of exhibit 23, this photograph of Peter that was

shown to Mr Henry about four days after the failed

identification parade - the importance was emphasized

because at volume I, page 43, line C, having

introduced that as an exhibit, the learned

prosecutor showed it at once to the jury.	That 1s
at line C when it was tendered - before that:

Mr Henry, do you still have the

photograph that you signed there?

Perhaps I should go back a little earlier:

That is the only area of identification

in which you have been asked to

participate?---Yes.

Then Mr Davies re-examines:	do you still have the photograph that
you signed there?---Yes.
From what you can see of it, is it
actually all a photograph or has it been touched up in some way?---It seems
to me that there has been hair
superimposed on -

it -

That has been tendered, sir, and I would

ask that the jury be allowed to see it.

It was then shown to the jury clearly for the

purpose of identification. I will not take you

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to all the pages, Your Honours, of the transcript,

but at paragraph 17 I refer to the prosecutor's

closing address which impliedly invites the jury

to rely upon those exhibits, in our submission,
as identification of Peter as the buyer of the car

and the man in the car-park.

Now, if I may come to the question of the

error made by the Court of Criminal Appeal in

relation to this matter, I deal with that at

paragraph 19 of the outline, Your Honour.

MASON CJ:	Can that be dealt with shortly?
MR McCUSKER:	I think so, yes, Your Honour. First if

I may refer to Mr Justice Wallace at page 3034, line B, at volume XIII, and say that this simply

demonstrates the problem that arose from the
introduction of this evidence and the likely effect

of it on the minds of the jury, because it had the

same effect on the mind of His Honour,

Mr Justice Wallace.	He said - I should read
the whole of it:

We pass from the appellants'

allegation of the police having

fabricated evidence against Raymond to

the contention that the police artist's

portrayal of Peter was not as a result

of information given to him by Mr and

Mrs Allen from whom he purchased the

white Falcon motor car and from the

observations of one Henry who claims

to have seen Peter on the day the

conspiracy was completed.

Now, there was never any claim by Mr Henry that he had seen Peter on the day that the conspiracy was completed. It was tried on the one-man

identification attempt on 16 July, it was tried

again at the trial, and on neither occasion did he

identify Peter and that, with great respect to

His Honour Mr Justice Wallace,does illustrate the

cogency of exhibit material put before a tribunal, despite the clear evidence of Mr Henry that he could

not, he did not identify Peter, the photograph goes

in and the conclusion is so easily drawn. Now,

Their Honours Justices Wallace and Olney, at

the points I have noted - I will not take you to

the references - said that the sketch itself, in

exhibit 21, does not bear a likeness to Peter, and

although that is a matter of personal impression
the essential point was overlooked by Th=ir Honours,

that is the constitution of a link between the

Allens and Henry. What Their Honours said, in

effect, was that exhibit 21 should not concern the

defence because it did not look all that much like

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Peter; and so, Your Honours, we say that is a

matter of subjective impression. It was
sufficiently like Peter for some eminent experts

to say it looked like either a tracing or a copy from a photograph with some differences and some

elongation but,nevertheleis,very close similarities

in certain facial features.

The learned trial judge's direction they, in

any event, said was sufficient to avoid unfairness -

I have taken Your Honours to the trial judge's

direction - there was no direction as to the use of

misuse of this material. It was not sufficient,

in our respectful submission, to have dispelled

or avoided fairness. So that we say, dealing

with the point which Your Honour Justice Brennan

raised with me some time earlier that the Court

of Criminal Appeal has simply erred in the approach

that it took. It has failed to appreciate the

significance of the evidence. We are not here

saying to Your Honours that you should take a

different view of the evidence necessarily by

reviewing the credibility, if that were an
appropriate task,of the witnesses, but rather to

simply say that the Court of Criminal Appeal has

failed to appreciate the significance of the

evidence and, indeed, in its view that the

trial judge's direction was sufficient to avoid

unfairness, has taken a wrong view of the law.

Would that be an appropriate time, Your Honour?

MASON CJ:	Yes, it would be, Mr McCusker.
MR McCUSKER:	Could I just mention one matter, Your Honour?
MASON CJ:	Certainly.
MR McCUSKER:	Justice Brennan asked where in the material

defence counsel dealt with some of this material
and page 728 to page 735 - that is rather

extensively - page 735, Mr Singleton at the trial -

that is in the supplementary application book,

volume III.

BRENNAN J:	Which is somewhere?
MR McCUSKER:	It is now before the Court, I understand,

Your Honour.	There are bundles of it before
the Court.	May it please Your Honours.

BRENNAN J:	Thank you.
MASON CJ:	The Court will now adjourn until 10 o'clock

tomorrow morning.

AT 4.34 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 26 OCTOBER 1988

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