Palmer v The Queen

[1992] HCATrans 74

..

• 'I

• 'J.A

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M26 of 1991

B e t w e e n -

JOHN WILLIAM PALMER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

Palmer 1 12/3/92

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 12 MARCH 1992, AT 12 NOON

Copyright in the High Court of Australia
MR P.C. DANE, QC: If the Court pleases, in that

application, I appear with my learned friend,

MR O.P. HOLDENSON, on behalf of the applicant.

(instructed by Haines & Polites)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

my learned friend, MS E.H. CURTAIN, for the Crown.

(instructed by J. Buckley, Solicitor to the

Director of Public Prosecutions (Victoria))

MASON CJ:	Mr Dane?
MR DANE:	In this application, we say that the case can be

characterized as a one Crown witness case, and that

Crown witness was so unreliable, objectively

unreliable, that upon conviction the Court of

Criminal Appeal should have had a closer look at

that evidence, or in the terms of the authority,

subjected her evidence to special scrutiny.

We say that the court misdirected itself and,

to that end, we take this Court to the judgment of

Mr Justice Vincent, the leading judgment on page 31

of the application book. Reading, if we may,

quickly:

It is trite law that questions relating

to the credibility of witnesses are

essentially and, for the most part,

exclusively to be determined by the tribunal

of fact, in this case, the jury. It would

only be in the most unusual of situations that

an appellate Cour~ would, in my view, be

justified in interfering with such findings.

GAUDRON J:  As to that sentence, Mr Dane, do you challenge

that?

MR DANE:  No. We certainly concede that only in the rare

cases does one embark upon the special scrutiny.

GAUDRON J: Well then, in this case, you must establish that

this is such a rare case.

MR DANE:  Yes, and we say that is clear from the authorities

that where the Crown case is one witness, and that

one witness has a character about them that

objectively leads to unreliability, it follows that

in those circumstances the Court engages upon the

activity that was urged upon Courts of Appeal in

Morris' case. And, we say, that in Morris' case,

as the Court well knows, that there was a reason

for unreliability but in all the other cases to

which we refer in the outline, they are all cases

where there is the one witness. In Ralph and

George, Mr Smith was the one witness where he was

Palmer 2 12/3/92

totally unreliable. Nguyen is the same, as is

Bradley, Britten, Parkinson, Lander, and, of

course, Chidiac & Asfour, and we say that that is

nigh on the list of rare cases, and we say that

this case falls into it.

We say that the Court of Criminal Appeal has

misdirected itself as not perceiving that this is

one of those cases, and, accordingly, has contented

itself with the observation that one relies upon

the jury's verdict as to credibility and

reliability, and it is to that point, and that

point alone, because the court, clearly, did not

wish to engage upon the prescription in Morris'

case. The next paragraph goes to that:

I do not consider that there is anything

in the judgments in Morris's case which is

inconsistent with this approach.

His Honour then sets out the difficulties that he

personally has with the approach and it is to no

great moment that his views are there expressed.

It merely, perhaps, provides the court with an

inside as to why His Honour there misdirected

himself. On page 32, that matter is concluded, and

in the middle of the page, he says:

Nevertheless, setting those reservations to one side, it is clear that the Court in

Morris's case was concerned to emphasize, when

considering the concepts of the "reliability"

and the "sufficiency" of the evidence upon
which a conviction was based, that they were

with circumstances of that case: -

not dealing matters of mere credibility.

and then, of course, that proposition is quoted

from the judgments in that case itself, Morris,

and, on page 33:  I can see no justification for any

present matter which are clearly dependent upon its assessment of the credibility of	interference with the jury's findings in the for special leave to appeal against conviction
should be dismissed.

Perhaps that is just an error. Again, on

page -

DAWSON J: This witness was given an indemnity, was she?

MR DANE:  Mrs Palmer was an accomplice with an indemnity.

Prior to her indemnity, she made nine statements to

Palmer 12/3/92

the police wherein she indicated that she was not

present at a series of armed robberies and other

offences. Those statements were presented to her

at committal where, on oath, she swore to them as

being true and correct. That proposition, as to

them being true and correct, was challenged in

cross-examination. She maintained her position in
cross-examination. And then at trial she freely
admitted that they were lies and said that she was

actually present at some of these - - -

DAWSON J:  Was any warning about the need for corroboration

given?

MR DANE:  Yes.

MASON CJ: There is no challenge to the correctness of the

directions?

MR DANE:  No, there is no difficulty about it at all.

MASON CJ: So, it was a trial completely and regularly

conducted.

MR DANE:  That is so, and the complaint here is that this

case falls into the rare class of cases that we

have enumerated, and the Court is well familiar

with that class of case, namely, where there is a

single witness whose reliability is objectively

questionable, and in those cases the principle set the Court of Criminal Appeal to engage upon the
out in Morris' case by the majority and affirmed in

scrutiny of that evidence to see whether or not a

jury could reasonably come to the conclusion of

conviction.

MASON CJ: This expression "single witness", what do you

mean by that, a witness on the acceptance of whose

evidence the Crown case exclusively depends?

MR DANE:	Yes, Your Honour.
MASON CJ:	In other words, there is no other evidence of any

significance to corroborate or confirm the evidence

of the princ.ipal witness?

MR DANE:  At page 27 of the application book, Your Honours

will see the judgment of Mr Justice Vincent, at the

foot of the page, the last paragraph:

Although perusal of the transcript

indicates that in respect of some of the

counts there was some supporting evidence, it

appears to me, and I do not understand counsel

for the Crown in this Court to have argued to

the contrary, that the Crown case against the

Palmer 4 12/3/92

applicant in relation to each of the matters

under consideration in this application

depended upon the evidence and credibility of

Mrs Palmer.

The trial judge, at page 79, to the jury, putting

it in context, the first paragraph:

As I said a moment ago, she has been

called on behalf of the prosecution, or the

Crown, and her evidence relates to all the

counts to varying degrees. In relation to

counts 1 to 20 -

and it is only as to counts 4 to 18 that this

appeal relates -

what I propose to say - I think Mr Willee

probably opened this some weeks ago, you may
have forgotten, but I think he opened along

these lines some weeks ago. If he did not do

so, I make this comment, and you do not have
to accept this if you do not think it is

appropriate or you do not agree - in respect

of counts 1 to 20 it seems to me that you

really cannot convict the accused on any of

those counts unless you accept the evidence of

Mrs Palmer in relation to those counts, or at

least some of them. In other words, without

her evidence the Crown case is not strong

enough to enable you to record a conviction.

MASON CJ: That does not exclude the possibility that there

is other evidence that confirms or supports her

evidence.

MR DANE:  In relation to that, Your Honour, there is an

analysis by the learned trial trial judge in the

charge, having given the standard accomplice

warning that it is unsafe to convict unless on

corroborated evidence, he then goes on and explains

that it is his duty to point out evidence which is

capable of corroboration, and it is then only on
counts 6, 7, 10 and 11 that he identifies, starting

at page 76 of the application book in the fourth

paragraph on that page:

First of all, in relation to count six -

without needing to go to that in any great detail,

he identifies two issues there. First of all, an

identification witness, and then another

identification mark on a gun and, of course, he had

given the identification warning in relation to

that particular witness, Paul Andis.

Palmer 12/3/92

He then turns, at the foot of that page to

count 7 and talks about a track suit, the subject
of a theft, that had a unique design that was found

at the applicant's mother's home. Then, on

page 77, the other corroborative evidence, or

evidence that His Honour identified as maybe

capable of being corroboration in the middle of the

page as to counts 10 and 11. He there identifies a

witness, Hickey, saying that the gun that was

identified as being relevant, a pistol, a luger,

was brought by the accused to a certain location

and that the accused threw that gun away and it was

found in the location where it was said it was

thrown to, and that there were cartridges in a

Datsun vehicle that was otherwise linked with the

accused.

MASON CJ:  But is that not a problem for you. Even though

the corroborative evidence only relates to some,

and not all, of the counts, may it not have the

effect of reinforcing the credibility of Mrs Palmer

as a witness before the jury?

MR DANE:  Yes, in fact there is an additional hurdle, and

that is that, of course, the jury may on the
uncorroborated evidence, if they are so minded,

convict, but they were warned against that and here

there is, on those counts, corroboration. But,

Your Honour will quickly appreciate that those

matters of corroboration occur on pages 76, 77 and

completed in relation to irrelevant matters

concerning counts 21 and 25 on page 78. It is

on 79 that His Honour gives the indication that it

all rests upon Mrs Palmer and, it is respectfully

submitted - - -

GAUDRON J: And immediately before that, that she is an

accomplice and that it would be dangerous to
convict without her.

MR DANE:  Yes, so there is no complaint about what

His Honour the learned trial judge has said to the	jury. The situation is that there are four counts
where he has identified that there is evidence of
corroboration, and he also identifies matters that
are not concerning this Court, in counts 21 to 25,
but there is no complaint made about that, nor was
there any complaint made to the Court of Criminal
Appeal about that. So, what we say is that the
jury has convicted on uncorroborated evidence on
counts 4, 5, 8, 9, 12 to 18.

DAWSON J:	Who was the trial judge, Mr Dane?
MR DANE:	Judge Hogg, Your Honour, and we do not criticize

His Honour.

Palmer 6 12/3/92

DAWSON J: It is a very good charge, is it not?

MR DANE: We do not criticize His Honour.

MASON CJ: That is feint praise, Mr Dane.

MR DANE:  It is generally found in the jurisdiction that

Judge Hogg is a great judge and he is very generous

in his warnings and any accused would be grateful

to have him as a fair-minded judge.

MASON CJ: Are you going to send him a copy of the

transcript?

MR DANE:  It automatically goes, no doubt. I do have a

matter listed before him next week.

We do wish to lay emphasis, of course, upon His Honour's clear understanding of the

difficulties that the jury understood, and he was

giving them the clearest of warnings. In other

words, this is the paragraph that I have read that

begins at the top of page 79:

'

In other words, without her evidence the Crown

case is not strong enough to enable you to

record a conviction.

That is referring after all the corroboration

evidence has been given and drawn to their

attention. So, we say that it is one of the rare

cases and, unfortunately, the Court of Criminal

Appeal has misdirected itself as to its duty in view of the authority of Morris and Chidiac &

Asfour, and all the other cases where the other

jurisdictions - and we have not got a Western

Australian case as to principle, but we say that

Morris has clearly being followed in a case

of -

MASON CJ:  We do not need to be satisfied whether Morris has

been followed, or not. We are going to follow

Morris whether anyone else does or not.

MR DANE:  Yes, well we would ask that this Court grant

special leave in this case to lay emphasis on the

proposition that, unfortunately, the court, in this

case, has misdirected itself and it is appropriate

in these circumstances that the court should have

provided this applicant with the opportunity that

the review would disclose. In other words, the

applicant did not get, in our submission, what he

was entitled to get, and that is the independent

scrutiny of Mrs Palmer's evidence as to whether or

not a jury could be satisfied to the requisite

standard so as to record a conviction and, we

submit, that unfortunately the court below has not

Palmer 7 12/3/92

done that and, accordingly, under section 35A that

this is an appropriate matter for special leave.

We do say, not by way of authority but just

comment, that in a matter before this Court on

15 November last year, in Peter George Knight,

special leave was granted on a similar direction to

the court itself.

MASON CJ: Just remind me of the circumstances of Knight,

would you, Mr Dane?	I thought there were other
factors in Knight.

MR DANE:  Your Honour, this is where a man died as a result

of a gun shot which was not the subject of any

charge, but Knight was holding that gun at the time

and then he - - -

MASON CJ: But that was an entirely different point, was it

not? I mean, it is an unsafe and unsatisfactory

case, but that is all you can say about it;

otherwise it bears absolutely no resemblance to

this case.

MR DANE: It was a misdirection.

MASON CJ: Yes.

MR DANE:  We cannot advance this any further unless we lay

emphasis upon Mrs Palmer's unreliability, but we do

not perceive that to be a question going to special

leave. That is a question in the event that leave

is granted. What we say here is that it is the

Morris point, and the Morris point alone, because

this is a case where that point arises. It is one

of the rare cases and, unfortunately, the Court of

Criminal Appeal below did not perceive it as such,

~nd we say that it is patent.

GAUDRON J: But, is there not one aspect to it, Mr Dane, in

this regard?	One of the bases on which you attack
this evidence is that there was prior inconsistent

evidence, or statements. Is that the main basis of

your attack?

MR DANE:  No.

GAUDRON J: Well, at least so far as that is concerned, that

is explained, is it not, by the indemnity?

MR DANE:  Yes. By way of background, as the Court no doubt

has read, there is a large criminal history

attaching to this particular witness, in excess of

50 counts of dishonesty in the last 10 years of

convictions, at least.

Palmer 12/3/92

In addition to that, there is the prior inconsistent statements which were exposed through

the committal and trial process that Your Honour

has identified, but also necessarily there is the
admitted perjury, but then again, there is also by

clear implication the fact that this lady has

managed to deceive both the police and the

authorities responsible for giving the indemnity.

The indemnity has been given on a false basis.	We
make no criticism of the authorities.	They have

been deceived by this woman. Accordingly, one can

point to deception of police officers, deception of

magistrates, deception of, in fact, a county court

judge on a plea, a history of criminality, a

deception of law enforcement agencies and, in

particular, the Director of Public Prosecutions,

and, accordingly, it is a toss of a coin as to

whether or not she is telling the truth on any

particular day. This woman is thoroughly

unreliable.

The significance of the indemnity is that it

provides her with an opportunity to tell the truth.

It means that she has extricated herself from her

personal anxiety about whether or not she will be

able to tell the truth but, with respect, when one

examines her history and realizes that she is the

estranged wife of the accused man, she is then at

liberty to have the motive of self-preservation

being removed by virtue of the indemnity, she can

then move to the motivation of inflicting misery

and harm on her husband, being the estranged man.

Now, as to the evidence in support of that

proposition, that is, that she is vindictive and she is prepared to go to any lengths. in order to

pursue that particular course, she has thrust a

glass in the eye of a suspected lover of the

accused man, and she then, in the - - -

GAUDRON J:  It does not necessarily bear on her credibility.

MR DANE:  No, but it bears on her -

GAUDRON J:	Or vindictiveness.
MR DANE:	But it bears on the passion that she has in

relation to the separation. She got the wrong

lady, in any event, and then lied to the police

about it. But it demonstrates, in any event, a

total disregard for the law and the way in which

she handled cross-examination, and then just

blithely admits it in trial, it shows a total

disregard, as the balance of her history does, of

disregard for the law, and so it turns on the

single turn of a pigeon-toss, to take Kipling's

words, that one will never know, and upon that

serious convictions were recorded.

Palmer 9 12/3/92

I am reminded that the statements were

extracted from the witness on oath, but that is

only a statutory oath for the purpose of

statements. Accordingly, when one examines this

woman, the utterances that poor Mr Morris might

have made to his nurse become absolutely gilded

with golden lights of truth and reliability, but

that is only a comparison.

MASON CJ: Yes, you have got a summary in the application

book of the cross-examination which, I take it,

basically sets out the matters on which you rely.

MR DANE:  Yes. That sets out the way that she - yes, I

suppose it is demolished, but it was not, with the

greatest of respect to counsel who appeared on that

occasion, this woman was quite prepared just to

admit, "Oh yes, well I lied on that occasion; yes

that was untruthful", and that demeanour that is

evident is another string to the bow inasmuch as she just disregards the significance of any oath

and disregards the standing of courts and will use

them for her own advantage. Any officer of

authority can be used to her advantage and, of

course, it is not insignificant that in the charge

it will be seen that one of the points seized upon

by counsel for the accused when addressing the

trial was that he, for the defence, pointed to the

demeanour of the witness and that was drawn to the

attention of the jury again by the learned trial

judge as a point for defence.

So when one is engaged at the Court of

Criminal Appeal in analysing these matters, when it

is said that it is just a sterile transcript and

you cannot really pick up the flavour of the case,

and it was the jury who are able to see the

demeanour of the witness, clearly, even from the

sterile transcript one would be able to gain the

flavour of the case because the demeanour of the

witness was clearly something in the favour of the

defence, because it was he, the counsel for the

defence, that was making the point. Accordingly,

it was not the demeanour of the witness as a

demure, if I can use that word again this day,

witness sitting there with white gloves and a

crucifix around her neck, where the Crown is

saying, "Look at her now. Isn't she just a picture

of reliability and credibility".

The Crown did not go to the question of

demeanour. It was the defence that went to

demeanour and so upon analysis by a Court of

Criminal Appeal which, we say, should have taken

place - and that is our complaint - the Court of

Criminal Appeal would have been able to detect that

not only were the words, but also the demeanour,

Palmer 10 12/3/92

was something that would count heavily against a

jury coming to a conclusion that there was

sufficient material to convict this man.

I am reminded that the Court of Criminal

Appeal has, in our submission, with respect,

disregarded its obligations that were set out on

page 444 of the judgment of Your Honour the learned

Chief Justice in Chidiac & Asfour,

(1991) 171 CLR 432, wherein it says, in the middle

of the page:

Nonetheless, occasions do arise when a jury proceeds to a conviction when the Crown case

rests upon oral testimony which is so

unreliable or wanting in credibility that no

jury, acting reasonably, could be satisfied of

the accused's guilt to the required degree.

With respect, this witness, on analysis, would, in

our respectful submission, not be able to persuade

a jury to that level, but it is not to that point

that we go. We say that the opportunity for-that

result never was given the opportunity by the Court

of Criminal Appeal inasmuch as it failed to go

through that process, and it is to that process

that we ask this Court grant leave so that the

appeal can be presented in the appropriate way and

the orders that would follow on a successful appeal

would have to be something that we do mention to

the Court here so that - - -

GAUDRON J: Are you seeking special leave on a limited basis

so that this Court itself is not required to

determine whether the conviction was unsafe and

unsatisfactory, but rather it should be remitted to

the Full Court for that decision to be made?

MR DANE: That is the complaint, that the court misdirected

itself and so, accordingly, it is that court that

does the analysis, but on appeal, if it is patent,

Court can enter a judgment for acquitta_l. then that process, as was the case in Morris, this

MASON CJ: Well, it could, but why should it? I mean,

generally speaking, if an intermediate appellant

court has failed to fulfill its responsibility,

then one would imagine the appropriate course is

that the matter goes back to that court so that it

can discharge its responsibility.

MR DANE:  We do not argue with that. It is only a question

of time and efficiency, and if this Court sees that

that is the appropriate course, then we do not

argue against it.

Palmer 11 12/3/92

In the event that it was successful, whether here or there, it would require a return to that

court because there would have to be a complete

recasting of sentence.

MASON CJ:  Some of the cases, of course, are different.

What happened in Morris was, there was an

examination by the Court of Criminal Appeal. The

question was, was it a sufficiently comprehensive

examination? Now that, of course, entailed this

Court in covering the same ground, but here, if you

are successful, you are successful on the footing

that no examination has been conducted.

MR DANE: Precisely, and we ask for, really, that

opportunity for that analysis to occur, so it is

only to that point and, therefore, we would not

insist either way. We just ask for that

opportunity which we say has been lost. But we

re-emphasize that should we be successful on making

the point, and that there be acquittals, either

here or there, then it has to go back to that court

for a complete recasting of the sentencing because

there is no appeal in relation to counts 20 to 25

and the whole sentencing structure would have to be

realigned. They are the only matters that we wish

to bring to the Court's attention.

MASON CJ: Thank you, Mr Dane. Yes, Mr Bongiorno

MR BONGIORNO:	In our submission, the Court of Criminal Appeal, although its judgment predated Chidiac,
there is nothing in Mr Justice Vincent's judgment
which is contrary to the propositions of law which
can be extracted from that case. His Honour has acknowledged, at page 30 of the application book,
the obligation of the Court of Criminal Appeal to
make an independent assessment of the evidence,
both as to its sufficiency and its quality, and
quotes from the judgment in Morris' case. He then
goes on to, whilst not analysing the matter in the
same depth that the trial judge did in directing
the jury, certainly deals with the proposition that
is extracted from Morris' case and comments on it; at page 31, asserts a proposition of law with
which, in our submission, there can be no quarrel:

It would only be in the most unusual of

situations that an appellate Court would, in

my view, be justified in interfering with such

findings.

MASON CJ: But if you stop at page 31, true it is, as

Mr Dane has conceded, that in the second-last

sentence of the paragraph commencing on page 31

there is no error in the statement of principle,

but when you come to the following sentence:

Palmer 12 12/3/92

The present matter does not, as I see it, fall within that exceptional class -

does that not, in the light of what follows in the
judgment, indicate error or the possibility of

error?

MR BONGIORNO: 

In our submission, Your Honour, it indicates

that His Honour has in fact reviewed the evidence
in the court below and has then come to that

conclusion.

MASON CJ: But where is the evidence of that review?

MR BONGIORNO:  We concede that he has not, in his judgment,

set out - or indeed, critically - - -

MASON CJ: Well, you would have expected, would you not, if

your submissions be right, that he has conducted a

review, that the rest of the judgment would be

devoted to that review. Instead, the rest of the

judgment is directed to establishing the

proposition that if it is a matter of credibility

or reliability of a witness, then it is not for the

Court of Criminal Appeal to direct its attention to

that question because that is the constitutional

responsibility of the jury.

MR BONGIORNO:  Your Honour, what we would submit His Honour

is saying is that having, as it were - what he is

implying in saying:

The present matter does not, as I see it, fall within that exceptional class -

is "Having looked at the evidence, it does not fall

within that exceptional class", and then the rest of his judgment is dealing with the class that it

does fall into, ie, a class of case in which the

question is merely one of the credibility of an

attacked witness and not one where there is - - -

MASON CJ: But do not Morris, and particularly Chidiac,

establish that the credibility of a witness may

give rise to a responsibility to review?

MR BONGIORNO:	Yes, Your Honour, certainly we would not quarrel with that proposition as emerging
particularly from Chidiac but, in our submission, there is nothing inherently wrong with the rest of
His Honour's judgment, even viewed in the light of
Chidiac, particularly if one interprets that
phrase, the last sentence that Your Honour has
drawn attention to, as being the conclusion that he
has reached after conducting the review that he
acknowledges he is required to on the previous
page.

Palmer 13 12/3/92

MASON CJ:  But it seems to me you are struggling to

establish that the Court of Criminal Appeal

conducted the review, because the rest of the

judgment just does not support that view.

MR BONGIORNO:  I cannot put it any stronger than saying it

has to be derived from that sentence or I would
have to respectfully agree with Your Honour that

there is no other "evidence" as to what the Court

of Criminal Appeal did.

MASON CJ:  It seems to me that another view of the judgment

may be this: that His Honour did correctly state

the principle in that sentence in the first

paragraph and that he was of the view that

something exceptional had to be established before

it was necessary for the Court of Criminal Appeal
to conduct the review operation and that nothing

exceptional had been established in the

circumstances of this case. But His Honour does
not give any clue as to what he has in mind by the
need for something exceptional, except in so far as

you can derive from the rest of the judgment that His Honour thought that it must be something over and above a mere attack on the credibility of the

witness, which was a matter for the jury.

MR BONGIORNO: Well, Your Honour, one has to - whilst it

does not alter the legal principle, it alters

perhaps the way in which things are expressed, but

this judgment was written, of course, before

Chidiac and His Honour was mindful, of course, of

Morris, which was a particular case with particular bizarre facts, and in our submission it has to be

looked at in that light. It does not mean, though,

that he has fallen into an error of principle by

not, as it were, enunciating the principle in

exactly the same way that Chidiac did. He has

acknowledged the obligation, at page 30, of making

the independent assessment.	He has not qualified
that obligation by reference to anything other than
the fact that it had to be done.	He has not

qualified it by reference to exceptional

circumstances. All he has said is that questions

of the credibility of witnesses are for the most

part matters for the jury and it is only in - - -

MASON CJ: Well, that is obviously correct.

MR BONGIORNO: That is obviously correct, with respect.

His Honour Mr Justice O'Bryan, at page 37, does say

something I should draw the Court's attention to.

At the top of page 37:

When the issue at the trial is simply one

of credibility of an important witness, it

would be well nigh impossible for an appellate

Palmer 14 12/3/92

tribunal to overturn the jury's verdict by

making an independent assessment of the
evidence for its reliability. Particularly

must this be so when the charge is impeccable

and has drawn to the jury's attention the

weaknesses and contradictions in the evidence

and pointed to the danger in the jury

convicting upon tainted evidence.

Now, on one view - - -

DAWSON J:  The next paragraph is instructive too, because

that seems to reflect a view one can take of

Mr Justice Vincent's judgment:

In my opinion, unlike Morris, where an

appellate court was able to carry out an

independent assessment of the admission

evidence, the reliability of the tainted
evidence in this case was a matter for the

jury.

MR BONGIORNO:  Yes. Your Honour, our principal submission

is that when you have a case such as the present,

which is simply a heavily attacked witness, and

legitimately attacked, and the witness who had, on

any view, been a consummate liar in the past, but
where ultimately her evidence goes to the jury with

an explanation for the change of heart and the now

truth, that is peculiarly a jury question,

notwithstanding any review that might be conducted

by a Court of Criminal Appeal of the state of the

evidence.

MASON CJ:  You see, I think that puts you at odds with

Chidiac.

MR BONGIORNO: With respect, if Your Honour's proposition is

correct, that would mean that when one has a

heavily attacked witness, as this one was, who

admits prior inconsistencies and lies, et cetera,

ad nauseam, there would be no way that the Crown

could ever achieve a conviction based on the

evidence of a witness such as that, even if she

gave an explanation to a jury which was accepted as

to why she had lied in the past and was now telling

the truth.

GAUDRON J: That does not follow, Mr Bongiorno, as Chidiac

shows. In Chidiac, the witnesses fell into much

the same category but there was corroboration and

the result in Chidiac was that, given that

corroboration in certain respects, the verdicts

were not unsafe and unsatisfactory.

Now, here you have got a case where it is said that there is evidence capable of corroboration on

Palmer 15 12/3/92

four counts. That corroboration may or may not
flow through to the rest of the charges, but one of

the problems in this case and in relation to your

primary submission is that there is not even a

mention of the fact that in some respects there is

corroboration.

MR BONGIORNO: In the Full Court judgment?

GAUDRON J: Yes.

MR BONGIORNO:	No, I concede that there is no
GAUDRON J:	And an analysis of the unsafeness and

unsatisfactoriness of the verdicts would not depend

simply on the evidence of Mrs Palmer but would

necessarily involve going further and looking at

the rest of it.

MR BONGIORNO:  Yes.

GAUDRON J: And it might be, you see, that that

corroboration would flow through; it might be that

it would not.

MR BONGIORNO: Yes.

MASON CJ: But in many respects the situation is therefore

the same as in Chidiac, where you have got to take

into account the corroborating evidence in arriving

at a conclusion as to whether the verdict is unsafe

and unsatisfactory.

MR BONGIORNO: Yes, I cannot argue further that His Honour

did more, of course, than can be legitimately

inferred from what he said, and I would have to rely on the proposition that when he is talking

about an exceptional class he is talking about the

sort of situation that was envisaged in Chidiac

and that he is - - -

MASON CJ: But there is nothing you can point to immediately

as something that would stamp this case as one that

is not of a rare or unusual class.

MR BONGIORNO:  One would have to concede that Mrs Palmer was

certainly to one end of the spectrum in terms of

truth telling, but whether she is so rare as to put

her in to a - - -

GAUDRON J: But she was not only at one end of the spectrum

in terms of truth telling, she was an accomplice

and she was an indemnified witness with, over and

above her status as an accomplice, perhaps some

ends of her own to serve.

Palmer 16 12/3/92

MR BONGIORNO: True, but then of course - and this is to

terms of inculpating the accused, is not - although

some extent embarking on what it is suggested the

it was quite different; she placed herself as being

a direct accomplice. In her previous statements or

her last set of statements she had in fact been
only an accomplice in the sense of being an

accessory probably in the position of an accessory

after the fact.	So she had elevated her own
position after receiving the indemnity.	And, of

course, that, as Your Honour would suggest, would
be one of the matters that the Court of Criminal

Appeal would take into account. I can only say

that it is our submission that it probably did.

Your Honours, I think I can probably deal with the rest of this simply by saying that ultimately,

even if we get to a position where this Court was
of lhe view that the Court of Criminal Appeal did

not carry out the sufficient independent

examination, then we would refer the Court to a

passage in the judgment of Mr Justice McHugh in

Chidiac.

MASON CJ:	What page?
MR BONGIORNO:	I am hampered, Your Honours, in that the

reference I have got is to the ALJR but I have -

yes, I have it here. It is at page 463 - - -

GAUDRON J: Page 463 at the very bottom.

MR BONGIORNO:  Thank you, Your Honour. At the very bottom:

In my opinion, the Court of Criminal Appeal did not carry out the duty imposed on it by

s 6 of the Act in that it failed to make its

own assessment of the evidence for the purpose

of determining what a reasonable jury would

have made of the relevant evidence.

It does not follow, however, that this

Court should grant the applicants special

leave to appeal because the Court of Criminal

Appeal has failed to exercise the jurisdiction

conferred on it bys 6 of the Act. Failure to

exercise that jurisdiction is not of itself a

special leave point. In the context of this

case, the grant of special leave would be

appropriate only if this Court formed the view

that the applicants were likely to succeed in
their appeal if special leave were granted.

And I have come - - -

Palmer 17 12/3/92

MASON CJ: But are you now making the submission that it is

unlikely the applicants would succeed if special

leave were granted?

MR BONGIORNO: Unlikely that the applicant - as I understand

Mr Justice McHugh there, what he is saying is

"unlikely that the applicants would succeed in the

appeal".

MASON CJ: Yes, that is right, but what His Honour did was

to conduct a comprehensive review of the evidence
and, having conducted a comprehensive review of the

evidence he said that as far as he was concerned,

if the matter were to go forward to an appeal, they

would not succeed. Now, are you inviting us to

conduct a fairly a comprehensive review of the

evidence with a view to determining whether - - -

MR BONGIORNO:  I am sorry, I did not catch the peginning of

that, Your Honour.

MASON CJ: Are you inviting us now -

MR BONGIORNO:  No, Your Honour, I am not.

MASON CJ: Well, how can you make this submission without

inviting us to review the evidence in some way?

MR BONGIORNO: Well, in our submission, the burden of

establishing that the applicant was likely to

succeed on the appeal would be, of course, on the

applicant and that there is nothing been argued

that would suggest that he would necessarily

succeed on the appeal if there was a full review of

the evidence conducted. Indeed, we would submit

the contrary without, of course, suggesting that

the Court should embark on the matter.

GAUDRON J: But this case is in a somewhat different

situation from Morris and, indeed, from Chidiac.

It is just nothing there below to enable any

analysis.

MR BONGIORNO:  Yes, I would have to concede that,

Your Honour. I do not - - -

GAUDRON J:  It is more analogous to the situation where a

Court of Criminal Appeal has failed to deal with an

appeal point altogether, a situation we have also

dealt with. And in effect it is a constructive

failure to deal with it, is it not, if you take

that - - -

MR BONGIORNO:  Yes, I would perhaps, with respect, not put

it quite as highly as Your Honour has put it, but I

can understand what Your Honour says.

Palmer 18 12/3/92

Accordingly, in our submission, even if on

further examination of this case - the Court could

take the view now, of course, that before

determining the issue of special leave there ought

to be the examination conducted in Chidiac to determine the point that Mr Justice McHugh is referring to and, if that were the case, then it

would be probably, with respect, appropriate that
the matter be adjourned for a fuller hearing, both

on the special leave point and on the appeal, if

that were the appropriate course, rather than - - -

MASON CJ: That course seems to me to involve the Court in

the worst of all possible worlds. There is no way

in which it really is appropriate for this Court to

be conducting the kind of review that is involved

in Morris and Chidiac before an intermediate Court

of Appeal does so.

MR BONGIORNO:  Yes.

MASON CJ: And that is what you are asking us to do, and say

that if it goes back to the Court of Criminal

Appeal it would not succeed.

MR BONGIORNO:  Yes, I do not think I can

MASON CJ: That is not an economic use of our time.

MR BONGIORNO: With respect, I can see the force of what

Your Honour is saying.

MASON CJ: But it all seems a rather dry argument for the

future if we grant special leave to appeal, does it

not? In other words, the question that comes

before us is: did the Court of Criminal Appeal

discharge its responsibility? And if we answer

that in the negative, then it goes back to the

Court of Criminal Appeal. That is the one question

we will be determining on the appeal.

MR BONGIORNO:  Yes, and having regard to the views in

argument, certainly that would seem to be not a

proposition that I could contend any more
forcefully than I have at the moment ought not to
occur. In that case, if this Court were to take
the view that it would appear it takes of the Court

of Criminal Appeal judgment, then it would be a

more economic use of the Court's time to deal with

the matter instanter and -

MASON CJ: Would you object to that course?

MR BONGIORNO:  I would not, Your Honour, no.

Palmer 19 12/3/92

MASON CJ:  In other words, you would not object to the Court

granting special leave to appeal and allowing the

appeal?

MR BONGIORNO:  And allowing the appeal, if the Court is, as

I perceive it to be, as against the arguments which

I have put to defend the position in the Court of

Criminal Appeal. If that happened, the matter
could then be dealt with in the Court of Criminal

Appeal.

MASON CJ:	We would need to consider that.
MR BONGIORNO:	I certainly would have no objection to - I am

not inviting the Court to do it but I would have no

objection to it.

MASON CJ:  I realize that. What you are saying is that if

the Court signifies that its view on this

application is that the Court of Criminal Appeal

has not discharged its responsibility in accordance

with the principles enunciated in Morris and

Chidiac, you would have no objection to the Court

granting special leave to appeal, allowing the

appeal instanter, and remitting the matter to the

Court of Criminal Appeal.

MR BONGIORNO:  Yes, I would have no objection to that,

Your Honour.

MASON CJ:  Now, Mr Dane, assuming that that course commends

itself to the Court - and I am not indicating at

the moment that it will - would you have any

objection to that course?

MR DANE:  No, Your Honour.

MASON CJ: All right. We will consider it at this stage,

and we will resume at 2.15.	The Court will now
adjourn.

AT 12.54 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.12 PM:

MASON CJ:  The Court has considered the concession made by

Mr Bongiorno QC that if the Court concludes that

the Court of Criminal Appeal failed to make an
independent assessment of the evidence in

conformity with the principle stated in Morris v

Reg and Chidiac v Reg he would raise no objection

Palmer 20 12/3/92

to the grant of special leave to appeal, the

allowance of the appeal and the remitter of the

matter to the Court of Criminal Appeal to enable

such an examination to be made.

The Court proposes to act on that concession

and will stand the application over to a date to be

fixed for the making of formal orders.

Mr Dane, in the light of that, you should file

a notice of appeal in anticipation of the grant of

special leave to appeal.

MR DANE:  Thank you, Your Honour. If the Court pleases.

AT 2.13 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Palmer 21 12/3/92