Penney v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A66 of 1997

B e t w e e n -
MICHAEL ROSS PENNEY
Appellant
and
THE QUEEN

Respondent

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 30 APRIL 1998, AT 12.40 PM

MR K.V. BORICK: If the Court pleases, I appear with MR A.J. REDFORD, for the appellant. (instructed by Scales & Partners)

MR P.J.L. ROFE, QC: If the Court pleases, I appear with my learned friend, MS J. McGRATH, for the respondent. (instructed by the Director of Public Prosecutions (South Australia))

McHUGH J: Yes, Mr Borick.

MR BORICK: If the Court pleases, I propose to present my argument first by dealing with the particulars of what we say are the incompetence or deficiencies in the investigation. I then propose to deal with the issue of what actual, or risk of prejudice, suffered by the appellant as a result of the deficiencies.

KIRBY J: Conceptually, you have three arguments, do you not? You have the deficiencies in the police investigation and the consequences, you have the alleged, or suggested, misdirections on the issue of motive and intention or inadequacy of those directions, and then you have the catch-up of the so-called unsafe and unsatisfactory.

MR BORICK: Yes.

KIRBY J: What is the statutory provision in South Australia that is the unsafe or unsatisfactory provision? What is the proviso provision? Could you find that? At some stage, if I could have a reference to the exact - - -

MR BORICK: I thought I had thought of most of the questions I was going to get, but not that one. Having dealt with those first two issues, I then propose to deal briefly with the issue of the failure of the prosecution to prove that the fire was deliberately lit. That is our submission and the impact of that. I will then deal with the directions on motive and intention and to then turn to the proper approach of a trial judge in an appellate court when police incompetence is established.

The first two segments I think will take me a little longer than the others because a great deal of what I wanted to say in relation to the other matters is in my outline of argument. So I commence with what we say were the deficiencies in this investigation and the first was dealing with the investigators’ failure to understand the basic scientific principles involved.

KIRBY J: There is no suggestion that this was deliberate or malicious or wicked police misbehaviour, is there?

MR BORICK: No, not at all.

McHUGH J: But what legal principle do you rely on to invalidate a conviction which you assert is the product of an incomplete or incompetent police investigation?

MR BORICK: Well, it if is established that an accused has been prejudiced by the deficiency or incompetence of the investigation, then that, in itself, is sufficient to render a trial unsafe and, more particularly, unsatisfactory.

McHUGH J: What is the authority for that, and what is the basis of it?

MR BORICK: There are a number of cases referred to in our list of authorities where the courts in Western Australia and Northern Territory have held that where there has been an incompetent or a deficient investigation by the police, then the appropriate test by a Court of Criminal Appeal is has there been a risk of prejudice, whereas, our court - - -

McHUGH J: Should you not take us to the argument in favour of the conceptual framework in which you are going to conduct this argument? For myself, it would be useless talking about deficiencies in the investigation unless I know what the governing principle is. In this, as in most areas of communication, context first, details later, and I would appreciate if you would formulate, with some precision, the principles and the supporting authorities.

MR BORICK: I start with the basic principle that the accused has a right to a fair trial and the word “trial” encompasses more than just the actual trial itself, but encompasses the investigation and the pretrial process.

McHUGH J: Well, where does the accused get that right from?

MR BORICK: Because, in my submission, the word “trial” just does not mean walking into the court with a jury being selected and then you say that is the trial.

McHUGH J: Well, that is ordinarily what it means, particularly in South Australia, does it not? Has it not been held that the trial does not commence until the indictment is read?

MR BORICK: In one sense, your Honour, butif there is the incompetence during the investigation stage and that affects the trial, well, in that sense, the concept of fair trial encompasses more than just what goes on in the courtroom itself. You are entitled to look - - -

KIRBY J: Is there any case that says that?

MR BORICK: No, your Honour, not that I can find.

HAYNE J: And is not the key to the proposition that you put that the incompetence affects the trial?

MR BORICK: Yes.

HAYNE J: You may have the most glaringly incompetent investigation of a crime and if you have an eyewitness to the crime, of undoubted probity and credibility, the conviction will stand whether or not the police threw away bits of evidence or not.

MR BORICK: Yes.

HAYNE J: Does your point amount to anything more than a point that the verdict is unsafe and unsatisfactory because of deficiencies in the evidence that were tendered at trial?

MR BORICK: That is my basic proposition.

McHUGH J: Exactly. That must be your point, and it has nothing whatever to do with whether the - or seems to have very little to do with whether or not the investigation was incompetent. If there was evidence that would have thrown light on the question of your client’s guilt, the failure for it to come to light may render the verdict unsafe or unsatisfactory; whether it was the product of inefficiency, incompetence or beyond the capacity of human beings to acquire, as at that time.

MR BORICK: The Court of Criminal Appeal, in dealing with - - -

McHUGH J: Talking about competence or incompetence seems to be a point of prejudice. I do not know that it has much to do with the legal relevance. It may have.

MR BORICK: The Court of Criminal Appeal held that the jury had to consider the evidence that was before it and said, in effect, not to speculate about what could have been. The difficulty with that was that there was so much evidence that was missing that the accused had no chance of conducting his own investigations. In my respectful submission, it was wrong for, first of all, the trial judge to basically ignore the problem that existed there, and then for the Court of Criminal Appeal to say, “Bad luck about that for the accused. The jury cannot speculate about what might have been”. The prejudice that was suffered here was real.

HAYNE J: Is the proposition again any more than this, that because the accused was denied the opportunity to test certain physical items - they had been thrown away or disposed of - the jury could not safely conclude that the fire was deliberately lit by the accused.

MR BORICK: On the evidence as it stood, that we would submit the jury could not safely conclude anything about the fire because the evidence, if anything, showed that the probability was that the fire was accidentally lit by the spark from the switch.

KIRBY J: Can I go back to Justice McHugh’s question at the beginning, Mr Borick. You told us that there were some other State decisions which deal with the so-called incompetency of the police investigation. Are they rationalised and explained as relevant to a criminal appeal by reference to the so-called unsafe or unsatisfactory ground or on some other basis, a fair trial basis or some other conceptual basis?

MR BORICK: In each of them there was evidence which was missing because of incompetence.

KIRBY J: Not deliberate, because that could raise difference issues, I think. There was one case mentioned in the submissions about deliberate police misconduct.

MR BORICK: No, we are not arguing deliberate police misconduct, we are arguing incompetence.

KIRBY J: Yes. What is the way the State courts dealt with it? Was it under unsafe or unsatisfactory or some other way?

MR BORICK: Basically it will always come down to unsafe and unsatisfactory in this area, because if you knew what the evidence was that could have been before the court, but for the incompetence, well then there is no argument about it because you know it. But if the fact that you do not know what the evidence is, that there necessarily has to be, in one sense, a degree of speculation about it.

When you look at the whole variety of incompetent activities here and link them all together, you can see that the prejudice to the accused, and that links back to an unsatisfactory trial, occurred right from the very moment that there was a decision to arrest him.

KIRBY J: Yes, I think you have written this in your written submissions and you say the committal then miscarried and everything else has flowed. What are the cases in the States which have dealt with so‑called incompetent police investigation? This is just for my purposes so that I can have a look to see the way in which they rationalised the relevance of incompetence.

MR BORICK: The three Australian authorities are Wyatt, Hallett and Williams.

KIRBY J: Yes, I do not ask for them to be produced now, simply named and citations given, please, for the record.

MR BORICK: The United States authorities are Villafuerte and, I am sorry, they are the ‑ ‑ ‑

KIRBY J: May the United States authorities not turn on due process requirements that are not as such relevant here.

MR BORICK: Well, in my respectful submission, the case of Unger and Houlahan is probably, from my point view, the most useful because there it says that ‑ ‑ ‑

KIRBY J: What are the references to these cases? We have got to put them on the transcript, if you do not mind.

McHUGH J: And for the future, Mr Borick, the written submissions should contain the references to the cases and the page numbers. So Hallett and cases like that, Williams, are referred to in your submissions. There is no references to them at all.

MR BORICK: Well, could I then over the luncheon interval correct that immediately we recommence ‑ ‑ ‑

KIRBY J: It just makes our life a little easier when we are writing the judgments.

MR BORICK: Thank you. May I just go back to the issue of where the prejudice started and ‑ ‑ ‑

McHUGH J: Are you going to take us to the cases? I am sorry to interrupt you, but it seems to me that is where you have got to start with the principles that are applicable. Just talking about deficiencies is not going to help us much because at the end - we have got to come back - while we are going through all these deficiencies we do not know what is relevant or what is irrelevant for the purposes of the applicable legal principles. I will try not to interrupt you because time is short here, but I will point out to you my difficulties, but you conduct your own case.

MR BORICK: The principal issue which we raise before this Court is that if we can establish that there has been a risk of prejudice to an accused, then that would lead to an unsatisfactory trial. In that, we have the support of the Australian authorities referred to and, also, in particular, the case of Unger and Houlahan, where it was pointed out that an accused does not have to show actual prejudice.

GUMMOW J: That is a charter case, is it not?

MR BORICK: Yes.

GUMMOW J: It is on the Canadian Charter?

MR BORICK: Canadian Charter case, yes, I am sorry. If that is the essence of our argument, and we can then establish it, in my submission, this Court would then have to say that the trial of the appellant was unsatisfactory and, therefore, unsafe as well. That leads me to the proposition that I would need to explain to this Court precisely what the deficiencies and the incompetence of this investigation was, so that I can then take the Court to the issue of actual prejudice and risk of prejudice.

KIRBY J: But is there a nice statement in either Williams or the Northern Territory cases of Hallett, or even Unger, with the problem of the charter - or Wyatt - where the judges have said, “Now every person is entitled to a fair trial and, inherent in that, is a satisfactory trial and, inherent in that, is the entitlement to have not just what happens in the courtroom satisfactory, but what preceded it satisfactory? Now, where is the best encapsulation of the principle that you rely on, because you had one go at a jury; you are now in our field.

MR BORICK: Yes, I appreciate that. Well, dealing with the - - -

KIRBY J: Would it be easier for you to find that after lunch and, as it were, bring to our notice what you say are the encapsulated principles that you are seeking to apply?

MR BORICK: Well, it would be certainly easier and quicker for me to pull those together over the luncheon interval and go straight to that issue. But I suspect that it will always come back to the fundamental proposition that ‑ ‑ ‑

KIRBY J: You say all these hundreds of pages that have been written are no more than saying everyone is entitled to have a reasonable trial, and that includes reasonable investigation of the evidence that the Crown presents?

MR BORICK: Yes.

KIRBY J: That is all it is?

MR BORICK: That is inherent in all that has been said in the Australian and American cases, that if the incompetence is established, well, then the court must look to see whether there has been a prejudice.

KIRBY J: But we are not a police discipline body. We are not here to deal with competence or incompetence, as such. We have to see what its relevance is to the appeal - to a Court of Criminal Appeal, by a person who has been convicted.

MR BORICK: Well, our Court of Criminal Appeal said it did not matter. It did not matter what the incompetence established, that speculation was unhelpful. That is the fundamental area that, we say, exists, and which we challenge here, and would ask this Court to say, “A jury is entitled to draw inferences in favour of an accused if evidence is missing ‑ ‑ ‑

KIRBY J: What do you say, in just a few sentences, of what the trial judge should have said to the jury on the police investigation?

MR BORICK: The trial judge, in this situation, has at least two options. One is to discharge the jury and that happened in the English case of Birmingham, where a video of an incident was destroyed by police ‑ ‑ ‑

KIRBY J: That was deliberate destruction, was it, or incompetence?

MR BORICK: Incompetent destruction - destruction on the basis that the police officer did not think what was on it was relevant. The second option for the trial judge is to give a direction to the jury that if the evidence has been thrown away, evidence is lost, then they could infer that that evidence could have assisted the accused in the presentation of his case. And that recourse - the actual direction - would depend upon the circumstances of each case. Your Honour, in principle, I would see no difference between evidence which is maliciously withheld from the jury ‑ ‑ ‑

KIRBY J: There may be public policy questions that arise there, if those who are sworn to uphold the law are seen to be acting in a way that is contrary to the law in a way prejudicial to the accused.

MR BORICK: In my respectful submission, if the end result is the same, namely you have evidence which is missing which may have assisted the accused or which - it might be higher than that, depending on the circumstances. But whether it is thrown away maliciously or whether it is thrown away through incompetence, the issue, in my respectful submission, is there is no difference, because any ‑ ‑ ‑

KIRBY J: The respondemt says you had full opportunity which you exercised to press these matters upon the jury. Is your complaint (a) that the judge should have, in these circumstances, discharged the jury- I did not see that specifically raised - and (b), that he should have given a very strong direction, lending the judicial office to a warning to the jury of the disadvantages to the accused from the incompetent police investigation?

MR BORICK: I did not at the time ask for a discharge, but I did ask for a direction of the type referred to. In hindsight - there was, I am reminded, a submission of no case to answer. That was looking at the overall facts of the case, but there was no submission the jury should be discharged because of the incompetent investigation. But my proposition to the Court is, even each circumstance, that is a circumstance where the loss of the evidence is due to mala fides or bad behaviour by the police and you do not know what it was that has been thrown away or the real effect and impact of it, because you do not know what it was, the Court would still, in those circumstances, look at the question of whether there has been any real prejudice, putting aside the policy question at the moment.

McHUGH J: Well, it is one o’clock, we will adjourn. The matter is not proceeding too quickly, I am afraid, so we will have to try and move it along after lunch. The Court will now adjourn and resume at two o’clock.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

McHUGH J: Yes, Mr Borick.

MR BORICK: In answer to your Honour Justice Kirby, the determination of appeals in ordinary cases in South Australia is section 353 of the Criminal Law Consolidation Act.

KIRBY J: Do you have that there with you.

MR BORICK: Yes, I do.

KIRBY J: If that could be handed up and we will get it photocopied, I would be appreciative. I take this rather odd and eccentric view that “safe and unsatisfactory” are words that slipped into our language and they are not the words of the statutes.

MR BORICK: And they are not the words of the statute there ‑ ‑ ‑

KIRBY J: As far as I am concerned, I am going to apply the statutes.

MR BORICK: I can only assume that they are under the cover of miscarriage of justice.

KIRBY J: Yes, well, anyway, we know what you mean.

MR BORICK: Could I take your Honours briefly to the four Australian cases and one English case on which I basically rely for the propositions which I am putting forward in relation to the issue of incompetence. The first is the case of Wyatt 99 ALR 490, and I take your Honours to a passage at page 493.

GUMMOW J: There is a passage beginning at line 16 but I am not sure there is all that much in it.

MR BORICK: I would just take your Honours to the top of the page where his Honour is pointing out that it is said to have been “simply incompetent”. So, we are dealing with that. We are not dealing with the improper conduct. Further down at line 11:

the court has a responsibility to consider whether the circumstances upon which reliance is placed show that there has been a miscarriage of justice.

Then his Honour makes the assumption that failure by a person to cause some scientific examination to be undertaken for which cogent evidence could reasonably be expected could lead to a fair trial. So, I accept that his Honour there makes the assumption. Then if your Honours go the case of Hallett which is in (1995) 3 NTJ ‑ ‑ ‑

KIRBY J: The anchor for Justice Jenkinson’s decision is Jago, which is where this Court said you have a right to a fair trial. That arose out of Justice McHugh’s important judgment in New South Wales. So, that is what you were saying earlier.

MR BORICK: Yes, your Honour. In Hallett at page 19 of the judgment, his Honour was there referring to the fact that it was astonishing that eight persons who should have been called were not called and there was no explanation given. Then right at the bottom of the page, his Honour said:

If that is the way crime is to be investigated and the consequences may well be that any resulting conviction of that crime is unsafe and unsatisfactory.

McHUGH J: Where are you reading from?

MR BORICK: At the bottom of page 19 of the judgment.

McHUGH J: I gather this is from 3 Northern Territory Reports? We were furnished with an unreported copy of the judgment.

MR BORICK: In your Honour’s volumes, it is in volume 1 at page 1442.

McHUGH J: Volume 1 of what?

MR BORICK: Of the list of authorities.

McHUGH J: What are we talking about in terms of - - -

MR BORICK: Your Honours, we have supplied the copy. It is an unreported judgment in Hallett.

McHUGH J: Yes, well that is what we have.

KIRBY J: And we have page 19, but it does not - - -

MR BORICK: And if you go to paragraph number 32 and 33.

McHUGH J: There are no numbered paragraphs in the judgment we have.

MR BORICK: No numbered - - -

McHUGH J: I said there are no numbered paragraphs.

MR BORICK: Well, the only other references I have are at the top of - we have page 1442, and then the page of the judgment itself is page 19.

KIRBY J: The page 19 of the unreported judgment in Hallett that we have does not contain the statement that you have just read. Is Hallett reported anywhere or is the copy that you have a manuscript copy?

MR BORICK: A manuscript copy.

KIRBY J: I see. Well, perhaps you might leave your copy with the Court staff when we finish and we will have a - it brings it back to unsafe or unsatisfactory?

MR BORICK: That is right. His Honour just went on to say:

To my mind, the failure to call as witnesses any of those persons named whom the Crown knew were present and the further failure to provide any explanation at the trial for the Crown’s failure to do so is such a significant matter that the convictions cannot be allowed to stand.

Then in the case of Williams (1992) 8 WAR ‑ ‑ ‑

GUMMOW J: That is a confession case, is it not?

MR BORICK: No, that was a case where there was a failure to obtain a blood test and if I could take your Honours to page 277 at line 21 the majority held that:

The question of unfairness, however, arises because the respondent has been deprived of the opportunity of bringing some form of objective evidence which would assist in resolving the only issue then relevant, namely: did the respondent make a statement in the exercise of a free choice to either speak or remain silent. In the context of this case, that is not a jury question. However, it reflects directly on the respondent’s right to a fair trial.

And further down the page at line 38:

It was said by the investigating officers that it would have been inconvenient to obtain a blood test at the time. There was no suggestion that there would be any inconvenience in obtaining a breathalyser test. In fact, a blood test was taken the following day but there is no evidence that it was tested for blood alcohol level. The respondent has been deprived of evidence which could be relevant at his trial concerning his condition at the time that the statements were taken.

And the last line on the page:

However, the respondent has been denied the opportunity of adducing evidence which could have been readily available and, at least as subsequent events have shown, should have been obtained. This evidence may have supported the respondent’s challenge to the confessional evidence.

Then in the unreported case of Boyce v Nunn which was ‑ ‑ ‑

KIRBY J: But they dismissed the appeal there now.

MR BORICK: Yes.

KIRBY J: How did that - it was not a derogation from the right ‑ ‑ ‑

MR BORICK: That was a prosecution appeal.

KIRBY J: I see, yes.

MR BORICK: In Boyce v Nunn, which is a judgment delivered on 29 May 1997 of the Supreme Court of the Northern Territory, at page 6 of the judgment - just by way of background, this was a case where the accused had indicated to the police there were some witnesses who might help him and the police said, “Well, don’t worry. We’ll find them”, and they never did. His Honour at page 6 said:

In the course of submissions from the prosecutor, the learned Magistrate enquired as to whether a conviction would be “unsafe” in circumstances when, in his Worship’s view, the police had not satisfactorily endeavoured to identify, locate or interview the potential witness.

So there his Honour is linking it direct to “unsafe”. Reading on:

However, it was not suggested that either police officer should be regarded as having decided for some improper purpose there would be no further enquiry made for the person.

So that you do not need the requirement of impropriety. Further down the page, after the submission that the failure to do that “renders the finding unsafe and unsatisfactory”, the court said that:

It had been submitted that the appellant had been deprived of the benefit of evidence which that scientific examination might have provided -

and he is there referring to Mr Justice Jenkinson in Wyatt. Then at page 11 his Honour said:

I can discern no relevant distinction between a case in which evidence, such as a confession, had been obtained in circumstances where it was unfair to admit it (for example, Duke v The Queen (1989) 63 ALJR 139 at 141) and in the case where the unfairness may arise because other investigations by police had otherwise not been properly conducted, in the sense that the investigations were inadequate and for which there was no reasonable explanation or excuse for the failure......The appellant was denied by those circumstances of the opportunity of adducing evidence which could have been available and which may have supported his defence to the charge.

And I rely upon that case to support the argument that I raised earlier that it does not really matter, at the end of the day, whether the lack of evidence which may have assisted an accused stems from impropriety, or whether it is dealing with - one in which a confession has been obtained in some way which is not necessarily improper, but still unlawful, that it is the impact of the absence of the evidence which the court is required to look at.

McHUGH J: But surely there must be something more to it than the fact that there has been an incompetent investigation which has failed to reveal evidence.

MR BORICK: Yes, I accept that, but our Court of Criminal Appeal, in dealing with that, said, well, it does not really matter and did not look at the question of whether there was any prejudice, and what the something else is, is the question of whether there has been either actual prejudice, or a risk of prejudice, and we would submit in this case, that it is both actual and real.

The other authority which I rely upon is the case that had referred to earlier of Birmingham (1992) Crim.L.R. at 117. In that case, it was a case involving a disorder outside a nightclub. There was the video tape and by the time of the trial, the tape had disappeared. There was no prospect of it being found. The court stayed the trial on the ground that a continuation of the case would constitute a misuse of the process of the court and a fair trial was not possible.

KIRBY J: That seems to confirm that there are two streams here, one is the so-called fair trial stream, and the other is the unsafe or unsatisfactory stream, and it may be they come together in the sense that, if a trial is not fair, then it is not safe to convict or to establish the conviction of the accused.

MR BORICK: In my submission, that was the submission I was going to make to the Court, that you look to see if it was - I suppose, overall you are looking at the question of fair trial in the cases, or refer to that.

McHUGH J: What do you mean by a fair trial in this context, in all events?

MR BORICK: I suppose I am using the words “fair trial” in the context in which it is used in the passage which I have just cited from the judgments ‑ ‑ ‑

McHUGH J: I am afraid it does not help me very much. What do you mean by “fair trial”?

MR BORICK: Well, a fair trial has a number of basic requirements and the first would be, in my submission, a competent investigation. Second ‑ ‑ ‑

McHUGH J: Where do you get that principle from? We still operate under the adversary system. The Crown tenders evidence, the defence meets it; the defence has to have an opportunity to meet the Crown case, and that is the basis of a fair trial. An accused - a trial may be unfair if prejudicial evidence is improperly admitted, or if there is an error of law or direction of some kind, but what is the basis of the notion that the trial is unfair because there has been inadequate police investigation? I can understand the argument there has been a miscarriage of justice. I have some difficulty, at the moment, in relating an incompetent investigation to an unfair trial.

MR BORICK: I respectfully submit that it is very difficult to, in fact, define “fair trial”, but there are certain requirements and we look at the international requirements and take, for example, the right to a fair and adequate opportunity to prepare and present your defence. So that is an aspect of “fair trial”. But perhaps in this instance we are looking more at what is unfair and it becomes clearer, in my respectful submission, to ask that question, because then you look at the issue we raise of incompetence, and it has been looked at in these other cases I have just referred the Court to, and ask, “Is the trial unfair, because the accused was deprived of the opportunity to investigate for himself evidence which the prosecution seek to lead?” and, associated with that, failure ‑ ‑ ‑

McHUGH J: What, on the hypothesis they are not seeking to lead it?

MR BORICK: But also the failure to be able to obtain evidence which may have exonerated him.

KIRBY J: If you leave aside this case and test your principle by the general sort of case that comes up, you could have a case, I suppose, where there was DNA evidence which would have conclusively, one way or the other, implicated or exonerated the accused and if, in such a case, the police through incompetence have destroyed that evidence, before it can be tested, then I suppose your proposition is, it does not really matter much what happens in the court of law, what is fatal is what has happened before it got to the court of law and, if that prevents the trial being fair, in the sense that you then do not really have an opportunity to present your defence, then that is a matter upon which (a) you can apply to discharge the jury or (b) the judge has to give very strong warnings to the jury to determine that. Is that how you are putting that?

MR BORICK: That is how I put my argument; that if the evidence which is missing may have been cogent and may have assisted the accused that, in my submission, would be sufficient and, in one sense, there one would have to look at the facts of each case. You would go to the facts of this - - -

McHUGH J: But I do not see how the trial is unfair. I can understand the argument that there has been a miscarriage of justice because evidence may have affected the verdict, but I have real difficulty about unfairness of the trial of fairness of the trial. That was an expression that once had a fairly clear meaning. In recent years, influenced by human rights treaties, lawyers have grabbed hold of it, it now seems to mean anything. It means whatever you feel is unfair.

MR BORICK: That may be correct in the sense that lawyers have grabbed hold of it and would hang their hat wherever they can find it but ‑ ‑ ‑

KIRBY J: They were slightly provocative statements by the learned presiding judge.

MR BORICK: I will refrain from being provoked in that. But, surely, your Honour, there must be a point of time when a trial is unfair, for whatever reason, and it is not possible to - - -

McHUGH J: Well, it may be oppressive. The accused may not have had an opportunity to meet the prosecution evidence. But this notion that somehow or other there is some general conception of unfairness, as Justice Gleeson has said extrajudicially, fairness is not a common law concept.

HAYNE J: It is arguing from a tag to the content of a tag, and that is a chain of argument that is simply impermissible.

KIRBY J: This Court said in Jago that you are entitled to a fair trial, and said you are not entitled to a trial within a certain time and you are entitled to a fair trial, and the Court must have meant something when it said that.

MR BORICK: And in Dietrich it said the same thing; that a trial could be unfair because of the failure to provide representation.

McHUGH J: But that was because lack of representation did not enable you to effectively defend yourself. There is no problem about that. But in this particular case, your client had every opportunity to defend himself against this particular evidence.

MR BORICK: With respect, no, and I do not need to put any tag on it because, if it is established that he did not have the opportunity to properly defend himself, then the Court should inquire into that and ask whether there has been a miscarriage of justice, to use the words of the section.

McHUGH J: That is another question altogether. What I have been putting to you is that there is a real distinction between the unfairness of a trial and a miscarriage of justice.

MR BORICK: And accepting that, and bringing my argument to the concept of a miscarriage of justice, there is also the risk of a miscarriage of justice. In many decisions, a court will not be able to say, “There has been a miscarriage of justice but it - - -

McHUGH J: Well, they have to. The fact that there is a risk that something may or may not have occurred may, itself, constitute the miscarriage of justice. But there is either a miscarriage of justice or there is not. I do not know of any authority that says there is such a thing as a risk of a miscarriage of justice, in this context.

MR BORICK: Could I put this to your Honour: let us assume there was evidence which was missing and all an appellant could say in this situation is that there is a risk of a miscarriage of justice, but subsequently the evidence turns up and it proved to be conclusive of innocence. The court then goes back and says, “Well, now, there has been a miscarriage of justice.” Now, with respect, what is the fundamental difference? If an appellant, as this appellant can do, in my submission, show that he has been deprived of an opportunity to meet the prosecution case and present cogent evidence which could have assisted his case, then whatever tag you put it under, the conviction is safe, to use another tag.

So whether you are using “unfair” or “fair trial”, “miscarriage of justice” or the words “unsafe and unsatisfactory” and each of them has been - at various stages in the debate those tags have been criticised, but somewhere along the line the appellate courts in this country and this Court itself have found reasons to set aside trials which have been categorised in one of those three ways and so I ‑ ‑ ‑

McHUGH J: Anyway, I think we understand the way you put your case. Now, do you want to take us to the facts which you say show that this was a miscarriage of justice or, on your first argument, an unfair trial?

MR BORICK: Just before I leave that, I would also remind your Honours of the comments the Court made in Jones v The Queen without going to it now.

KIRBY J: What is the reference?

MR BORICK: The reference is (1997) 72 ALJR 78. It was a judgment of this Court on 2 December 1997. It dealt once again with M’s Case and what the words “miscarriage of justice” mean and “unsafe and unsatisfactory”.

KIRBY J: What is the passage you are taking us to?

MR BORICK: The passage is at page 84:

In M v The Queen, the majority said that although the phrase “unsafe and unsatisfactory” does not appear in s 6, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. In the same case, McHugh J said that a “miscarriage of justice” arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed raise a real doubt as to whether the conviction can be regarded as a safe or just conviction.

And there perhaps are other words, your Honour ‑ ‑ ‑

KIRBY J: That is entirely consistent with what Justice McHugh has been saying, that his concept is that the “fair trial” is a technical expression which is looking at - you have entered the door of the court and it has certain procedural and other requirements, but you want to push it backwards and you say, “Well, it is all controlled by what happens before.” There is a lot of writing in the area of prosecutorial discretion, that that can affect everything that follows in the trial, but there is nothing much courts can do about that.

MR BORICK: I was also just taking the words as “safe and just” conviction, and in particular the word “safe”. It is another way of expressing, in my respectful submission, the concept of proposition that I have been advancing. Your Honours, appreciating the time problems, I would deal with the question of the actual incompetence by, in effect, just listing the various matters that we refer to and rely upon and with the page references.

The first was the failure of the examiner to understand basic scientific principles. I give your Honours two examples. He did not understand what was meant by the expression “pyrolysis”. He said that it occurred in “the presence of oxygen”, whereas it occurs in the absence of oxygen. That is at page 28 of the transcript. Secondly, he did not understand the explosion limits, that is, the explosion can only occur when the amount of petrol vapour oxygen is between 1.4 and 7 per cent. He did not understand that. The importance, particularly of the latter failure to understand the basic scientific principles, is that he never turned his mind to the question to whether there could have been an explosion.

KIRBY J: But his evidence of opinion was excluded. The prosecution did not present that to the jury.

MR BORICK: No.

KIRBY J: They relied on a different expert, and you had two experts of your own.

MR BORICK: They excluded it two days before trial, and ‑ ‑ ‑

KIRBY J: So what? You had plenty of opportunity to, and I assume did, indicate the flaws in this investigation.

MR BORICK: Meaning to indicate them to the jury?

KIRBY J: Yes, and complain about the way this really prevented you from being able to test the match and the rag. That would have given you a tremendous lot to talk about to the jury. By majority they were not convinced, or they were convinced by the Crown’s address.

MR BORICK: There were two factors about that, your Honour. The first was that the trial judge when dealing with it simply said, “Here’s what defence counsel has said about it”, and then had nothing further to say. The second thing is that if our Court of Criminal Appeal is right and it is a waste of time to speculate about what might have been - the jury had to consider what evidence was before it - then that made the criticisms of the police investigation irrelevant because, if the jury were not to speculate about it, what was the point of even raising it?

HAYNE J: The relevance at the moment, I must say, Mr Borick, the fact that a witness not called to give expert evidence, did not understand the discipline about which he did not give evidence, escapes me.

MR BORICK: Could I take your Honours again quickly through what we say were the inadequacies or deficiencies. The first was the failure to understand basic principles, and I will explain why that was important; the failure to accord to basic find investigation principles and standards. That can be seen at page 560 of the transcript. There are various stages in which a fire scene is to be investigated, and they are set out in the transcript at 560, at pages 322, 638 and 641.

KIRBY J: Are these in police instructions in South Australia, or is there any ‑ ‑ ‑

MR BORICK: No, come mainly from the leading textbooks, Kirk, Thatcher and Cook & Hyde. Kirk is the leading textbook on the subject and Thatcher is probably Australia’s leading fire investigator. They all point out that an investigator needs to have some basic understanding of the scientific procedures, he needs to carefully record where everything is found, and so on. A fire scene is a ‑ ‑ ‑

KIRBY J: Here is this poor old policeman who is just chasing a few motor vehicles for going too fast and suddenly he has this problem on his hand, and he does not deal with it as perfectly as, perhaps, retrospect suggests, but he does it as best he can, and you can make a tremendous fuss at that trial about it, and I am sure you did, rightly did.

MR BORICK: That is the danger. The ordinary person on the street is not going to pick up that distinction immediately. They are going to see ‑ ‑ ‑

KIRBY J: But did you cross-examine the policeman on the basis of Kirk, and the other books.

MR BORICK: Yes, the matters were put to him.

KIRBY J: So you are really complaining, because you did not ask for the discharge of the jury, that the judge did not lend the authority of his office to say, “Ladies and gentlemen of the jury, you must be very careful and look very carefully at this, because the police dealt with this incompetently”?

MR BORICK: Yes, and the reason for that is that it is - it is not just an ordinary policeman off the beat, so to speak, coming along to investigate a fire, this man is given what is regarded as specialist training and he becomes a fire scene investigator. So he comes into an almost specialist category and the jury would assume that ‑ ‑ ‑

KIRBY J: This particular police officer had specialist training, did he?

MR BORICK: That is the claim, your Honour.

KIRBY J: He was called in specially because this was a fire case?

MR BORICK: That is right. He becomes a fire investigation and that is the way the procedure works in ‑ ‑ ‑

KIRBY J: Was he presented to the jury as a specialist fire investigator?

MR BORICK: Yes. Can I take you to the first page of the transcript and to just see how it is done?

KIRBY J: I got the impression that the Crown did not lead his opinion.

MR BORICK: They did not, no. Two days before the trial they told us that they were not going to lead the opinion. Up until that stage, we had prepared our defence and utilised our resources on the basis that we had to meet the opinion that the fire was deliberately lit. Then the prosecution decided not to lead the actual opinion evidence and presented Mr Carger as a special fire investigator, and at page 1 of the transcript he - I will take very little time in this - but he talks about being a member of the South Australia Police Technical Services Branch, completed a Crime Scene Examiners Course, received training from senior members of various members of police departments and government departments:

I am presently performing duties which include the examination of fire scenes - - -

KIRBY J: I did not appreciate this, I thought this was just a local officer, but this is an expert or a specialist who has been put before the jury as a specialist and, you say, to counterbalance that evidence, it was incumbent on the judge to say, “Well, he may have had the special training and been brought in to do this, but the way in which he handled it was one which fell short of proper standards, and you should take that in to account and be very careful in the way you look at his evidence”. Did you ask for such a direction?

MR BORICK: Yes.

KIRBY J: You better take us to your request for a specific direction on that matter. Do it in your own time, Mr Borick, but do not forget it please, because it is important for me.

MR BORICK: Why I am hesitating, your Honour, I am just not quite sure of the exact words that I used. I did ask his Honour to, in effect, direct to the jury that the incompetence here was a serious business. Now I need to look for the exact words that I used.

The other importance of the fact that there was a claim to expertise by the investigator is that the decision to arrest the appellant was made solely on that man’s decision or his opinion that the fire was deliberately lit, and when I come to the issue of prejudice I will be putting that at the forefront, but I will just complete quickly the areas of incompetence. The failure to protect the fire scene - and you can see that in the annexure to our outline of argument that there were people going backwards and forwards to this fire scene. The boot was being opened and closed, there were exhibits being moved around and it was never properly protected as it should have been. There was the failure to properly record the position of the exhibits and there was a failure to properly record the collection of the exhibits.

KIRBY J: Now would you trace for me the rag, because I gather the wife took the rag out from the car as soon as the car was stopped and the fire discovered. Were there two rags or only one rag suggested and was this rag suggested to be the wick for the methylated spirits?

MR BORICK: The fire was put out by Mr Ryles, the man who came along. Mr Ryles took the rag out of the fuel pipe. That was the so-called wick. That was thrown on the ground and stamped on. Mrs Penney picked up the rag and handed it to an officer, Officer Kelly, and it was said to have been placed back in the boot of the car. Subsequently, that rag was said to have been taken by Cargar, the investigator, and shown to Mrs Penney, about a couple of hours later. At trial it was very difficult to know just what had happened to those rags, because they were never properly kept and recorded and traced.

The next item of complaint was the failure to obtain and relate the information from eyewitnesses and others and that includes Ryles, and it includes a very serious question about this as no inquiry was made how long the rags and the other items in that boot had been there. It was important to have that information so some assessment could be made perhaps of the amount of vapour that could have been in the boot.

KIRBY J: If that is the request for misdirection, it might be better for you to complete your list of the complaints and then you come to the direction.

MR BORICK: Yes.Thank you.

KIRBY J: Because there was also a complaint about a failure to check your client’s clothing which it was suggested might have demonstrated either hydrocarbons or other evidence of his connection with fire. But how will that be, given that he was not there at the time the fire ignited? Is it suggested that the clothes might have revealed traces of matches or methylated spirits or something like that, or what?

MR BORICK: Soot or other residue from the fire because - - -

KIRBY J: But he was not there when the fire - the fire occurred after he had left the scene.

MR BORICK: No, we do not know that. If, as the evidence shows, there was an explosion, the explosion could have occurred as he closed the boot which means that he was there. Now, the explosion would have been caused by the spark from the switch, and I will be showing your Honours the evidence in a minute of why it appears that there was an explosion. If there was, one or two things could have happened. He could have been very seriously hurt depending upon the degree of the explosion, or else there would have been a rush of fuel vapour and soot which could have been on his clothing, but his clothing was never tested for that.

McHUGH J: But what has it got to do with it? Did he say there was an explosion?

MR BORICK: No, the evidence was from the experts that the explosion of this sort may well be masked just by the closing of the boot, and the evidence was from the experts that it is very difficult to distinguish between an explosion and a fire. It is simply not possible on the evidence to say how the fire was caused, or when it first started, or what the cause was. One of the reasons why that is so was because of the inadequacy of the investigation, because it - - -

McHUGH J: Well, because this proposition certainly seems to be novel to me. The hypothesis seems to be that if the police case is weak because of inadequate investigation, the accused is entitled to have a conviction set aside.

MR BORICK: No, it is not, the proposition is not that the prosecution case was weak. The proposition is that the defence were deprived of the opportunity. The defence came very close at trial, when you look at the evidence of the three experts, to show that this fire did start accidentally, that is, from the boot light switch.

McHUGH J: There was a wealth of evidence from which a jury, using their commonsense, would come to a very clear strong view, as they obviously did, that whatever the experts might say, whatever their theories might be, there was just too much of a coincidence for this fire to have started in these circumstances without your client being the causative factor.

MR BORICK: Well, with respect, that is the prosecution case in a nutshell.

McHUGH J: Exactly.

MR BORICK: And the answer to it is that if the scene had been properly investigated and, if, for example, the clothing had been properly checked, then it may well be that there would have been information coming from that which would have assisted the accused in going to that very next step.

McHUGH J: How could it have assisted him though?

MR BORICK: By elimination in one way.

McHUGH J: Elimination of what? If there was nothing found - - -

MR BORICK: Well, that is something.

McHUGH J: - - - it did not change the position at all. I mean, you are entitled to start with that basis; that there was nothing - the prosecution led no evidence that his clothing had soot or unburnt hydrocarbons on it. Now, if they had been found on it what would that have shown: that he was guilty or that he was not guilty?

MR BORICK: Well, there are a number of complex issues arising out of that. If there had been some soot, that might have supported the explosion theory.

McHUGH J: But what does that - - -

MR BORICK: The explosion theory went right to the heart of it, because that depended upon the fire starting from a spark from a switch.

HAYNE J: And you put up three experts who deposed to that, did you not?

MR BORICK: Deposed to?

HAYNE J: The possibility of the explosion theory.

MR BORICK: Well, they went a bit further than that, particularly - not so much - - -

HAYNE J: And the jury heard them, and they were still persuaded, beyond reasonable doubt, that the accused was guilty.

MR BORICK: Yes, and, in fact, that is why we are here, of course.

McHUGH J: The accused’s case was not that there was an explosion when he was there; his case was he had nothing whatever to do with it; if there was an explosion it was because it occurred when he was not there.

MR BORICK: No, we were unable to say when the fire started.

McHUGH J: Well, I know that, but you denied being responsible.

MR BORICK: He denies that he - the prosecution case was that he threw a match in.

McHUGH J: Yes.

HAYNE J: It happened within a minute and three‑quarters of him admittedly going to the boot and removing his briefcase.

MR BORICK: No, it could have happened within a matter of a second.

HAYNE J: Yes, but it happened within the minute and three‑quarters between him removing his briefcase and the fire being observed.

MR BORICK: Right. Now, there was nothing intrinsically wrong in the circumstance, namely, a person forgetting an item and, having remembered it, going to collect it. That is all that amounted to. The fact that the fire started - - -

HAYNE J: Pulling it out of a boot where there is a rag leading down into the fuel filler - - -

McHUGH J: Changing cars, finding an excuse to get his wife to drive another car.

MR BORICK: That was all - - -

HAYNE J: A boot in which there are open containers of flammable liquid ‑ ‑ ‑

MR BORICK: Very little, and we - - -

HAYNE J: - - - and an accused who is having difficulties with his marriage.

MR BORICK: There was very little open containers of flammable liquid. We know that Carger threw them away anyway. The only tin which contained any quantity of petrol was the large petrol can that you see in there and that was sealed up. Now, none of those events by themselves, in my respectful submission, are sufficient to establish attempt murder and an intention by an individual to kill. There had to be something else and the prosecution set out to prove that the something else was the deliberate lighting of the fire and they failed, with great respect, miserably to do that and they went further.

Despite what - they wanted to back off it, they were saying that here was a match thrown into this tin of methylated spirits and that is how it started. Now, with respect, they totally failed on that point and at the end of the day you were left with a real probability of an accidental fire starting. Now, if you go back and remove the throwing of the match in and look at the facts as they stood, there was no way, with great respect, that either the intent or the attempt could be proven from the other circumstances, the fact that he went to cricket on one particular day and the fact that he had all this stuff in his car and the fact that he had an unhappy marital relationship. That could not have proved ‑ ‑ ‑

McHUGH J: It seemed to me there was far more evidence against your client than there was against Plomp and this Court held there was enough evidence to convict Plomp. All you had in Plomp was the fact that he wanted to marry another woman and he and his wife went surfing on a day where there was no undercurrent and she drowned.

MR BORICK: With respect, there was a great deal more against Plomp than that. I mean, Plomp had lied about his relationship with the other woman.

McHUGH J: Well, he may have.

MR BORICK: If your Honour reads the fact of Plomp, they are very, very different to this because you are dealing with a man of good character. You cannot say that he ‑ ‑ ‑

McHUGH J: But a jury would be entitled to take the view it would be the most extraordinary coincidence imaginable that this man, having matrimonial problems, his wife and he likely to divorce, all sorts of questions arising out of the matter, custody, he gets his wife to change the car. The cap on the tank is missing. He has got a rag there. Then suddenly he comes up behind her because he says he has forgotten his briefcase. It really is ‑ ‑ ‑

HAYNE J: And a minute and three‑quarters later there is a fire in the boot of the car.

MR BORICK: Yes, and the evidence was that the fire most likely started accidentally.

KIRBY J: You can take each one of those points apart. You can say that you demonstrated that there was a defect in these particular cars and that this was a defect that led him to put his car in to be fixed, it was natural that he should leave his briefcase in what was ordinarily his car and you could go one by one through all of the points and seek to answer them, but I think you have really got to anchor your case, it seems to me, in the failure of the judge to bring his authority to bear on the jury and say that by the way in which this was investigated, you really lost an opportunity to strengthen the case of the defence and exonerate and answer what appears to be a strong circumstantial case that is being presented against you.

MR BORICK: That is the anchor of my case, as your Honour put it to me.

KIRBY J: You have also the arguments about intention and motivation where you say a mistake was made, but on this point, for my own part, I think comparing this case to Plomp or any other case is a bit dangerous. I think we have just got to look at this case because we do not know - I do not know all the facts about Plomp.

MR BORICK: Anyway, such as they are, they are set out there, but when you look at them they are, as I said, very different.

KIRBY J: I just do not think you can approach a question in an appeal like this and start looking at the myriad of facts in other appeals; you have just got to look at this one.

MR BORICK: Could I just finish the items of what we say were the incompetence. There was the failure to properly examine the interior of the boot and surrounds, including the boot seal and the soot marks. In relation to those soot marks, could I just take your Honours to volume 4, the photographs taken by Mr Kutek ‑ ‑ ‑

KIRBY J: Was there evidence that this ignition could have caused death; in other words that it presented a real peril of an explosion in the car?

MR BORICK: Yes, the evidence was all one way, that however it started, whether by someone throwing match in, that was a very very dangerous thing to do, or whether by switch there could have been an explosion, depending upon the mixture of fuel to air in the boot at the time.

If we just take the photographs at pages 844 and 845, and look at photograph 27 on 844, that is the soot mark which Mr Kutek photographed, and another one on page 845. These soot marks were immediately behind holes in the rear wall of the boot and there was about three or four inches to the rear seat of the vehicle. Carger did not see those marks at all. If he did he would not have understood the significance. But the fact that they were there, round holes and no other soot on the back of this car seat was a very strong indicator there had been an explosion because, even if it had been a smouldering fire, more soot would have got around and it would have spread much more evenly. I am simply referring to that at this stage and for this purpose of the failure to examine the interior of the boot seal which was never properly examined and the soot marks.

KIRBY J: How were the soot marks photographed? They were done later by your expert?

MR BORICK: Yes, he found them later and had photographs, and we showed them to the prosecution at the committal.

KIRBY J: Did he say that they were inconsistent with the sort of explosion that the Crown case postulated, or simply that they were equally consistent with the defect in the light bulb in the boot?

MR BORICK: The evidence was it was consistent with the proposition of an explosion as the boot closed and the switch causing it, because that had to cause the explosion. If, for example, the switch had caused it as the boot was being opened, then there would have been clear damage to the appellant. So it had to be the other way.

The failure to collect exhibits - the photographs show that the police took - there was a black plastic bag and a green plastic bag in the boot. They simply disappeared. Carger’s evidence of that is at pages 268 and 309, and when asked about it he just did not know. There was the failure to keep exhibits. Your Honours are aware that the match, the rags, the fuel that was in the tins, it was thrown away.

KIRBY J: What was your theory, or the case that you presented, consistent with a match being found actually inside the tin of methylated spirits. On the face of things that is very damning evidence of some misconduct and, as I understood the submissions, even if the match had been available it could not have demonstrated or spoken to us and said how it got into the tin of methylated spirits.

MR BORICK: No, and our case in relationship to that was that if the match had been thrown in that it was an extraordinarily dangerous thing to do, but then there were the other mysteries ‑ ‑ ‑

KIRBY J: All right. Well, it is very extraordinaryand very dangerous, but it seems to rather contradict the alternative theory of the spark from the light bulb in the boot as you close the boot. It is just not consistent. This is misconduct; this is misbehaviour; this is crime, a match in a can of metho.

MR BORICK: The prosecution case was that that is how the fire started with these matches being thrown in.

KIRBY J: Well, what was your case, that the.....innocently?

MR BORICK: That the fire started by - we do not have the matches to talk to or, as your Honours put it, we could not say how the match or matches got in there and the reason why I said “matches” is that looking at these photographs again, if your Honours turn to page 726, they begin with photographs taken by the police - 725 and 726. If you look at photograph No 12 and you look at those two matches, or the two parts that are there, it is pretty difficult to marry them up. You see the same at 13 at a different angle and so you could not possibly take that any further on the basis of just what we have been provided with, but if we had the actual match or those two pieces then we would have had the opportunity to decide for ourselves whether it was one match or two matches, taken the tip along to have it examined and see whether it - and the evidence was one way on this, that the match could have been subjected to a proper scientific examination.

KIRBY J: But whether it is two matches, one match or half a match, finding a match in a tin of methylated spirits is very conducive to a conclusion of crime. They do not come in cans of methylated spirits as part of a product. They are not part of what is sold for a tin of methylated spirits. It is a foreign body and it would seem to me its damage to you is not neutral. It is very significant damage because it tends to knock on the head the alternative theory. At least it is open to a jury to so conclude beyond reasonable doubt.

MR BORICK: And the jury did and must have come to that conclusion, but that was in the face of the powerful body of evidence that that would have been an extremely dangerous thing to do to throw a match into that boot and the second part of it was that here was a very probable explanation, your Honour, when you looked at the whole of the circumstances because if the match had been thrown in there would have been a different appearance of the ‑ ‑ ‑

McHUGH J: Mr Borick, we are getting away from the questions of principle upon which special leave was granted in this case. The fact of the matter is that the expert evidence in this case could not eliminate human intervention as the cause of the fire. That being so, the jury were entitled to look at a whole host of other factors. Now, we have to move on. You have two other points you want to deal with: motive and unsafe and unsatisfactory. Have you got anything more that you want to put about this question of deficiency? We have read your written submissions.

MR BORICK: The only other aspect of the incompetence was the failure to keep proper notes and also you see where witnesses say - important witnesses like Carger and Overmeyer are saying they are at certain points at certain times were not, in fact, there. For example ‑ ‑ ‑

KIRBY J: This is at 10.10, and we have seen that in the written submissions.

MR BORICK: You have seen that one, and the other one was Constable Kelly at application book 161, said that between 11.15 and 11.30 Carger and his vehicle collected rags at the Balhannah Shopping Centre. The police running sheet at application book 222 shows Carger arriving at the scene at 11.03 and departing at 12.07. So, on his evidence, and then the evidence of the running sheet, he is in two different places at once. The significance of that and the fact that Overmeyer is in two different places at once, adds further fuel, if I could use that expression, to the high degree of incompetence ‑ ‑ ‑

McHUGH J: So what? Let it be - so what? I doubt if I have heard a more remarkable proposition than a trial could be unfair because a policeman is suppose to be at one place at 10.27 when the running sheet shows he was there at 10.01, or he left at 10.01. What has it got to do with the case?

MR BORICK: Simply, it demonstrates the degree of incompetence. One further step ‑ ‑ ‑

McHUGH J: Yes, but what has that - he will not be the most ‑ ‑ ‑

KIRBY J: This is not the Police Board of South Australia, Mr Borick, this is the High Court of Australia.

MR BORICK: Yes. Well, incompetence is part of - in our submission, is an extremely important part of our argument, and I have taken your Honours to the degree of it. Can I just deal quickly with the prejudice that was suffered ‑ ‑ ‑

McHUGH J: This is the real point of your argument, not whether somebody’s running sheet was incorrect or not.

MR BORICK: I have covered this to some extent, but in dealing with the failure to examine the clothing, at appeal book 684 at lines 19 to 21, Mr Rofe, in his argument, was putting to the jury, line 15, the clothes:

were analysed for the presence of petrol or flammable liquid. Mr Kutek has told us that if there was anything to be seen on the clothing, it would be soot. Presumably, these are carbon particles that might be obvious, might be able to be disposed of by brushing them. We just don’t know.

Because we do not know, because they were never tested for soot, and Mr Rofe, in his argument, was able to say, “Well, look, there might be some articles there but he might have just brushed them off, but we do not know”. Secondly, if the investigator had done his job properly, he would have not been able to say, by just looking at the match in the can, that this fire was deliberately lit. He would have had to ‑ ‑ ‑

KIRBY J: How could it be other than deliberately lit if there is a match in it?

MR BORICK: Well, he could not jump to the conclusion just by looking into that tin and seeing that there was a match there.

KIRBY J: Mr Borick, how many times have you see the boot of a car shut? In your life, it would be thousands, and you have never seen a fire caused by it. I know it can happen, but it would be an infinitesimally small percentage of cases. Whereas, if a match goes into a can of methylated spirits, a fire will happen, if the match is alight, every time.

MR BORICK: No, with respect, that is not so. The evidence of Mr Kutek is to the contrary and, in fact, your Honour can try it. You could throw a match in and, if it falls into the liquid, it will go out. It will not set fire to the liquid, that was the evidence. There has to be the vapour above it.

KIRBY J: Yes.

MR BORICK: Now, there is no certainty, whatsoever, that just by throwing a match in that you are going to get a fire.

KIRBY J: Well, I think that is a fair correction, but can I put it this way; that the risks of a fire breaking out are much greater from the interposition of a match and a can of methylated spirits than from shutting a boot.

MR BORICK: Well, no, the combined evidence of Isaacs, the electrician man who has examined lots of Toranas, and Kutek’s evidence - - -

KIRBY J: Did you have any theory as to how the match got there, at all, in your case?

MR BORICK: No. Well, I suppose you have theories about whether ‑ children playing could have thrown a match in there, but they were - in my respectful submission, it was extremely dangerous ground for an accused at trial, trying to - - -

KIRBY J: I am trying to direct my attention to what Justice McHugh has said is the essence of your case on this point; what is the prejudice of all this long list of police incompetence, as you put it? Now, against the match, what is the prejudice?

MR BORICK: The match does not really figure that strongly in our complaints of prejudice compared to what we say the real prejudice was.

McHUGH J: Well, what was the real prejudice?

MR BORICK: The first was the failure to examine the clothing.

McHUGH J: But we want to know how that may have affected the evidence. You have not said a word yet how one can feel confident - I have read your written submissions, I have heard your argument and, at the moment, I can tell you frankly, Mr Borick, I have heard nothing that gives me the slightest cause to think that this conviction may be unsafe by reason of this inadequate investigation, and I am waiting for you to demonstrate to me that there is some ground for thinking that this conviction may be unsafe. But you just cannot say, “There has been an incompetent investigation. They failed to do this, they failed to do that.” It leads you nowhere.

MR BORICK: Well, I am doing the best I can, and I have given my position on the clothing and I have explained how the prosecution were able to mount an argument that may not have been able to mount if it had been - the clothing properly investigated. He would never have been arrested if a properly trained investigator had looked in that vehicle and had recognised the - - -

McHUGH J: Well, the fact that he was arrested is, for present purposes, totally irrelevant. Even on your argument, there was either a fair trial or it went to a miscarriage of justice, but the fact that he was arrested is neither here nor there, for present purposes.

MR BORICK: The moment he was arrested, then that was the end of the matter. There was nothing further done by way of an investigation of the items that were in the boot of his vehicle. There was no wiring looked at, and all the other things that I have referred to.

To give your Honours another example, again going to the arguments presented to the jury by Mr Rofe at page 683, the prosecution had to meet the argument based on the evidence that the boot light switch could have caused this fire as the boot was closed. Mr Rofe was referring to two rags, and one was P12 and one P8. P12 was found in the position right by the switch and P8 was in a plastic container right up towards the front of the boot. The argument put at line 17 on 683:

If that is the source, given where it is positioned, you might wonder about P12, the petrol-soaked rag, up in that top corner, the source of petrol vapour, why that exhibits no signs of being charred or burnt or scorched in any way, contrasted with where there was an obvious fire, namely P8 and the ice cream container, and that is shown by the sooting and the heat effect on the outside of the boot.

Now, Mr Kutek in his - - -

HAYNE J: Is the position of those rags shown at 766 in the photograph, and is that a photograph of the boot as it was found after the fire?

MR BORICK: Yes.

HAYNE J: Yes, thank you.

MR BORICK: Yes, it was pretty close anyway.

KIRBY J: I thought the wife had taken the rag out and thrown it on the ground.

MR BORICK: That is the one which probably is P10A and P10B in the bottom right‑hand corner. Ryles had thrown that on the ground and she had picked it up and Kelly had put it back in.

KIRBY J: So, we do not know where it was originally. Ryles had taken it out from the boot and thrown it on the ground and the wife just put it with the fire extinguished somewhere in the corner.

HAYNE J: Or was it the rag that had been in the filler cap?

MR BORICK: If you look at it as a whole, it looks like that is what it was, but the evidence was so jumbled up that it became - - -

KIRBY J: How did the tin of methylated spirits happen to be exposed? How was it open to ignition to the match getting in it?

MR BORICK: The tin in which the match - that is where it was found.

KIRBY J: That is P14, is it, somewhere in - - -

MR BORICK: P15A and B.

KIRBY J: I see, that is just a little can really?

MR BORICK: Yes, that is right, one inside the other.

KIRBY J: And that was just full of methylated spirits sloshing around in the back of the - - -

MR BORICK: No, there was - we have only got Carger’s evidence on this. There was only a tiny little bit in it but he threw it out. So you do not know. Nowhere is it suggested that it was sloshing around; in fact you just do not know.

KIRBY J: So the theory was that there was a can with a little bit of methylated spirits in it, there was a rag which had been ignited that was put on there which it was hoped would, in due course, ignite the methylated spirits in the can and that would cause the explosion that would cause the death of Mrs Penney?

MR BORICK: That is what the prosecution theory must be, that Mr Penney was standing at the back of the boot somehow or another out on the country road, lights a match - no match was ever found in his possession or his house ‑ ‑ ‑

KIRBY J: He did have opportunity though, did he not, and it is alleged he had motive.

MR BORICK: He had clearly opportunity; it was there. That was the prosecution case, and then the question of motive ‑ ‑ ‑

GUMMOW J: What was P14?

MR BORICK: That was the jerry can for petrol that he had bought for his lawnmower. There was no dispute that he had bought that, and no dispute that he used that sort of petrol for his lawnmower.

KIRBY J: Was it full?

MR BORICK: Full and tightly closed. Also there was the evidence that he had been cleaning his lawnmower on the Sunday.

KIRBY J: But with an explosion from the can, P15A and B, the possibility that that could penetrate the jerry can and cause a major explosion.

MR BORICK: No, excluded by everybody. There would not be an explosion just necessarily by dropping a match into that can because of all the other unknown factors about the mixture of air and petrol vapour in the boot.

KIRBY J: P14 is irrelevant then really, in your understanding?

MR BORICK: Yes.

KIRBY J: A tightly closed jerry can full of petrol.

MR BORICK: Taking your Honours to Mr Rofe’s argument at 683 where he said about P12 and P8, two of these rags, and Mr Rofe was arguing:

you might wonder about P12, the petrol‑soaked rag, up in that top corner, the source of petrol vapour, why that exhibits no signs of being charred or burnt or scorched in any way -

But P8, that is the one in the front, had some scorching. That was a problem the prosecution had in this case because they had to try and get rid of the argument that the switch had started it, so the argument was advanced, and it was a totally pseudo‑scientific argument that had no real basis at all. “Well, jury, have a look at that rag there and if the fire started the switch you’d expect that to be burnt”. The evidence of Kutek on that at 655 was that you would not expect, necessarily, for that rag, P12, to be burnt because the rag itself does not burn, the vapour above it does.

McHUGH J: But so what, Mr Borick. Your point is, if you have a point, that there have been deficiencies in the investigations which may have affected the jury’s verdict. That is what you have to show us. There is no point telling us what one of your experts said in respect of a matter that the Crown made a submission to the jury on. That is not what this appeal is about.

MR BORICK: Yes, except for this, that the prosecution had to get over the problem that the fire could have started accidentally and in particular from the boot light switch, and to get over that they had to put some arguments to the jury and the arguments they put to the jury were spurious, not based on the evidence. Because of the fact that they were permitted to advance what I have described as pseudo-scientific arguments, it was extremely prejudicial to the accused and it is another example of the ‑ ‑ ‑

McHUGH J: But that has nothing to do with the deficiency of the police investigation, even on your argument.

MR BORICK: On my argument with this, his Honour the trial judge permitted the prosecution to take a complex issue, totally oversimplify it and cause prejudice by not referring to actually what the expert evidence was on that and other topics like it.

McHUGH J: Well, what ground of appeal is this going to? It certainly does not seem to go to your deficient investigation.

MR BORICK: I am dealing at the moment, your Honour, with the more general issue of what actual and real prejudice occurred as a result of the inefficient investigation.

McHUGH J: Mr Borick, that is supposed to be in the context of the deficiencies in the investigation, not what you claim is general prejudice in the trial.

MR BORICK: Well, in my respectful submission, what I am putting is directly related to the inefficient investigation and the deficiencies overall in it, and in particular what I am putting now, that it was never properly explained to the jury, either by prosecution or the learned trial judge.

KIRBY J: Are you going to come at some time to where you ask for a redirection, precisely what you asked his Honour to do? Well, perhaps whilst you are doing something else, Mr Redford can find that and you can then come back to it later.

MR BORICK: Page 890, I am obliged to Mr Rofe. At the bottom of page 890 and 891.

KIRBY J: Did his Honour use those words, “totally inadequate investigation, hopelessly inadequate investigation”? Do you repeat your assertions in that regard?

MR BORICK: No, your Honour. His Honour simply, in his summing up ‑ ‑ ‑

CALLINAN J: Mr Borick, he summed up your submissions at page 879.

MR BORICK: Yes, and all his Honour did ‑ ‑ ‑

CALLINAN J: Fairly completely, I thought.

MR BORICK: ‑ ‑ ‑ was to say that I had referred to the inadequacies but he did not lend any judicial weight to it. It was just something the defence were complaining about.

CALLINAN J: It is a fair summary of what you said though, was it not? What you put to the jury was fairly summarised there, was it not?

KIRBY J: I think we have the recorded addresses, do we not?

McHUGH J: Yes.

MR BORICK: Yes, you have the recorded addresses. I would, with respect, answer that by saying, no, it did not fairly reflect the full weight of ‑ ‑ ‑

KIRBY J: Can you tell us before the afternoon is out - perhaps Mr Redford can get the page on which you gave your submissions to the jury on this point and we can look at what you said and what his Honour said and what you asked for and what the Court of Criminal Appeal said.

MR BORICK: Yes, I will give you those pages in a moment. Your Honours, on the issue of motive - again, I am very conscious of the time - much of what I want to say on that issue is in my outline. I obviously make the point that there is a difference between motive and intention and that ‑ ‑ ‑

KIRBY J: Motive can give rise to intention, can it not? I mean, motive is relevant to intention.

MR BORICK: Yes.

KIRBY J: Where is this treated in legal authority? I think you cited a decision.

MR BORICK: Yes. Well, I think the leading authority is in the case of Murphy (1985) 4 NSWLR.

KIRBY J: You have a book of authorities that you are using there and I do not think we have been favoured with that. Is that just your personal, private book of authorities, is it?

MR BORICK: Yes. I had understood that our list had been put into ‑ ‑ ‑

KIRBY J: We have got Murphy. There is no problem. I just wondered if I was missing something.

MR BORICK: Page 55, there is the reference to the ground of appeal. In page 59B:

In some cases proof of motive is indispensable as in R v Clewes. In Plomp v The Queen, had there been no evidence of the accused’s liaison with another woman, the case for the Crown would not have sufficed to warrant his conviction for murdering his wife.

Then at the bottom of the page in G:

In our opinion it is incorrect to direct a jury that the accused’s motive is a “subsidiary fact” or a non‑essential element in the case which does not require proof beyond reasonable doubt but may be proved to the jury’s satisfaction or on the balance of probabilities. Motive is not merely a matter which may explain the accused’s conduct. It is rather a fact directed to proof of the accused’s guilt; as Chamberlain makes clear, before a jury can infer guilt from motive they must be satisfied that the motive asserted has been proved beyond reasonable doubt.

And further down, at C:

This argument, however, overlooks the circumstances that the facts upon which the Crown relied as a basis for the inference of intention were the same as those said to support the inference of motive. Hence the jury were invited to apply two different standards of proof to the same facts in order to draw two different inferences.

In my respectful submission, that is precisely what has happened in this case; that motive was totally confused with intention.

CALLINAN J: Mr Borick, is this submission summed up on page 7 in paragraph 8 of your written submissions? Is that the misdirection to which you are referring, the one that you have quoted from page 880?

MR BORICK: No, that is - - -

CALLINAN J: What, do we just ignore this?

MR BORICK: No, that is simply an example of where, in my respectful submission, motive was confused with intention.

CALLINAN J: Well, where else did the trial judge speak about motive? Can you give us the references?

MR BORICK: Yes, his Honour, in summing up, simply referred to the unhappy marriage - - -

CALLINAN J: Well, is that what you have set out in paragraph 8.3 on page 7 of your submissions?

MR BORICK: Yes, but that is all that his Honour did, he - - -

CALLINAN J: Mr Borick, please listen to me. All I want to know is where we find the misdirections with respect to this matter? Now, are they all set out in your paragraph 8, or are there others? Because, if there are others, I do not want to hold you up, but perhaps your junior can tell us where they are.

MR BORICK: That is the page reference to where his Honour directed the jury on motive and intention.

CALLINAN J: So, there are only three directions with which we must be concerned on this topic, and they are set out in your paragraph 8? Is that right, or not?

MR BORICK: Well, I would point to the whole of the - at page 880, your Honour, from where it starts:

The prosecution points to the unhappy relationship -

and reading on down the rest of that paragraph and the next paragraph, because my paragraph 8 on page 7, with respect, does not tell the whole story, because if you go back to page 880, itself - - -

CALLINAN J: All right. Well, we look at page 880 - and we can do that. Now, how do you say the learned trial judge misdirected the jury in those passages?

MR BORICK: Firstly, his Honour pointed to the fact that the prosecution were relying on the unhappy relationship.

HAYNE J: Yes. What did he do wrong?

MR BORICK: And, secondly, he accepted that, standing alone, that does not prove very much.

CALLINAN J: No, what did he do wrong, Mr Borick? We can read it, if you do not mind. Just tell us where his Honour fell into error - - -

MR BORICK: In those passages, he fell into error by, one, confusing motive and intention.

CALLINAN J: You say that in paragraph 8. Is there anything you want to add to that?

MR BORICK: Secondly, by that confusion, motive became related to intention, and they became one and the same, and that is my major complaint.

CALLINAN J: Is your submission that he should have given a direction to the effect that if motive were to be relied upon by the jury, they had to be satisfied of it beyond reasonable doubt? Is that your submission?

MR BORICK: Yes, that is my submission.

CALLINAN J: Thank you.

MR BORICK: The other submission, of course, is that people who have an unhappy married relationship, is not, on its own, sufficient to establish motive and he should not have left motive. The prosecution argued the case on the basis that they were not saying it was motive, but just as a background circumstance ‑ ‑ ‑

CALLINAN J: But the unhappy marriage was not the only matter that was relied upon for motive. The other aspects were the financial benefits that he might derive as a result of his wife’s death, his unrestricted access to and custody of his children. Those too were matters that were referred to and could be relied upon for motive.

MR BORICK: But the prosecution did not say that these were motives. At page 880, you will see in that second paragraph, the trial judge said, “Well, this is not the primary motive”.

CALLINAN J: Happy marriages or unhappy marriages are not motives, but they are facts which lead to the conclusion that a person has a motive for doing something.

MR BORICK: But, just to prove those facts beyond a reasonable doubt, does not prove motive beyond reasonable doubt, motive itself, because that is what the Court of Criminal Appeal said to get around the problem. They said, “The prosecution were never saying that this was motive”. There is a very good reason why the prosecution never said these things were motive, by themselves, because they could not have been. The Court of Criminal Appeal said, “Well, look, although the prosecution just said these were proven circumstances accepted by the defence, nevertheless, they were really motive, and because those facts themselves were - the unhappy marriage had been agreed, therefore you applied the proviso”. But nowhere were the jury directed that motive had to be proven beyond reasonable doubt, and that is a critical error of law ‑ ‑ ‑

KIRBY J: Did you ask for a redirection on that point?

MR BORICK: I will check that after I sit down, but certainly the real problem ‑ ‑ ‑

KIRBY J: Do you say that his Honour at 880 should have said, “But I have to tell you, as a matter of law, that if you are considering the motives on those matters, that a fact that had been relied on, namely the unhappy relationship, the money tree, the possible monetary benefit and the access to the children, that on all of those matters you must be satisfied beyond reasonable doubt that they constituted his motive for doing this act”?

MR BORICK: That is right.

KIRBY J: Well it is not there, so it is either a good point or a bad point. Apart from Murphy, is there anything else that supports that proposition, that where motive is suggested as part of the prosecution case, there must be express instruction to the jury that they have to be satisfied beyond reasonable doubt.

McHUGH J: Well, that is not even a ground of appeal, is it, the beyond reasonable doubt point?

MR BORICK: I would be somewhat surprised if it was not, because it has always been part of our argument that the motive was - it has always been a major plank of our argument ‑ ‑ ‑

McHUGH J: Well, whether it has or whether it has not, is it a ground of appeal? The answer seems to be no.

MR BORICK: I would have thought that it would have been ground 2(d), 2(e) and ‑ ‑ ‑

KIRBY J: All of these are complaints about the Court of Criminal Appeal; you say they were meant to read that the Court of Appeal erred in failing to hold that the trial judge had, for his part, failed properly to direct the jury on the matter of motives.

MR BORICK: Yes.

KIRBY J: It is not very well expressed.

MR BORICK: I apologise for that, but nevertheless ‑ ‑ ‑

McHUGH J: Mr Borick, it does not remotely get near raising a question about proof beyond reasonable doubt and motive. What it says, in terms is that the Court of Appeal was wrong in deciding that proof of an unhappy relationship is sufficient, without more, to prove a motive to kill. It has got nothing whatever to do with proof beyond reasonable doubt.

MR BORICK: Those grounds of appeal were drafted with the judgment of the Court of Criminal Appeal in mind and sometimes there is confusion for counsel in drafting ‑ ‑ ‑

McHUGH J: They should be drafted having regard to what this Court granted special leave to appeal on.

MR BORICK: As I understood it, it was on the question of motive, because that was certainly our argument on the special leave application, and, in particular, the failure to direct a jury that motive have to be proven beyond reasonable doubt. It was certainly our argument in the Court of Criminal Appeal and recorded ‑ ‑ ‑

KIRBY J: It was ground 7 in your grounds to the Court of Criminal Appeal: “The learned judge erred in law by failing to direct the jury that a motive, if it existed, had to be proved beyond reasonable doubt.” Page 898.

MR BORICK: Thank you, your Honour, and that was picked up in the appeal to this Court, basically an appeal from the court below, the Court of Criminal Appeal, and the specific complaint was made in that ‑ ‑ ‑

McHUGH J: If you are going to rely on it as a ground of appeal, you had better draft a fresh ground of appeal to raise the point, because, as far as I am concerned, it is not remotely raised. And then you can draft your ground and then seek leave to amend.

MR BORICK: Could I pick up the drafting that has just been referred to by his Honour Justice Kirby and seek leave to appeal on ‑ ‑ ‑

KIRBY J: Mr Redford had better write it out, because we have to get our record in order; we have got to see whether the Crown objects. It is at 898 paragraph 7.

MR BORICK: Thank you, your Honour. Your Honours, I rely upon Murphy in relation to that. It has been said elsewhere, and I do not think there can be any dispute about the first proposition that there is difference between motive and intention and here, there was movement from facts which simply were ordinary human common facts: that a man and a woman were in an unhappy married relationship, there might have been issues about custody and property to be resolved and, in my respectful submission, it would set a very dangerous precedent for that to be classified as sufficient to constitute, without more, proof beyond reasonable doubt of motive and then to translate that to intention, because that is the reality of what happened here and the accused, at the end of the day, was ‑ ‑ ‑

McHUGH J: But intention was hardly an issue in this particular case. This was a case of causation. There was never an issue in this case as to whether your client had a particular intent. The real question in the case was whether he did it.

MR BORICK: Well, with great respect, your Honour, there are only two elements to attempted murder and one is intention and the other - - -

McHUGH J: Well, of course it is, but in the context of this case one would think one flowed inevitably from the other, in the context of this case.

MR BORICK: That is making - - -

McHUGH J: I mean, if you client had gone to all this trouble to do what the Crown alleged, there would not be much doubt about what his intention was. Your case was he did not do it.

MR BORICK: No, it was not. Well, I suppose our case is that he did not set fire to the car.

McHUGH J: Exactly.

MR BORICK: But our case was in relation to all these other things, we agreed. He did live in an unhappy married relationship. He did have children. He was going to benefit if - - -

HAYNE J: But the whole question was: how did the fire start? If he started it, he was guilty of it attempted murder. If he did not start it, not guilty.

MR BORICK: Well, then in that case, there was no case to answer once the Crown could not establish that a fire was deliberately lit, because that is what the position was in this trial. The evidence was that the fire may well have started accidentally.

McHUGH J: But that is only one factor. It has to be taken - circumstantial evidence works cumulatively. You start one fact, yes, you have an explanation; two facts, another explanation; three facts, another explanation. By the time you get to the end of the list, explanations start to look very, very thin, indeed, until finally a jury says “Well, this is just too much. It would be too much of a coincidence for all these things to be consistent with the innocence of the accused”, and that is what the Crown says in this case. They begin with a proposition that scientific evidence cannot eliminate human intervention. The accused is in an unhappy relationship; there is flammable material in the boot of the car placed there by the accused; the accused initiates a change of arrangements in the driving of the car. He suddenly comes up in extraordinary circumstances and asks his wife to stop the car and he goes to the boot of the car. Within one and three‑quarter minutes the boot is on fire. He is alleged to have parked the car in a particular area so his daughter could not see what he was doing. He stood to get benefits from the relationship.

KIRBY J: And there is the matchstick.

McHUGH J: And there are these other matters. You have a rag hanging out of the petrol.

HAYNE J: Which he acknowledges he put there.

McHUGH J: And then when he is confronted by the police, he really does not ask how his wife - what happened to his wife. There is a huge amount of evidence upon which a jury could be satisfied beyond reasonable doubt that he was guilty. Now, you as his counsel are entitled to put to the jury, “Well, that doesn’t prove anything. There are all these explanations.” It was a jury question, but to say that there was not a prima facie case in this case just seems to me to be living in an unreal world, Mr Borick. I mean, you may have good legal points on your investigation point. Anyway, it is not a ground of appeal.

MR BORICK: Well, hopefully it soon will be. That is on the question of motive?

McHUGH J: No, on the question of prima facie case.

MR BORICK: Your Honour, the evidence for the prosecution could be put into four broad compartments. You have got the evidence relating to motive - and they are the things we have just been ‑ ‑ ‑

McHUGH J: I am sorry, but I was replying to what you put. Now, what is this argument directed to? Time is getting on. I take it you have finished with deficiencies. You have moved on to motive. Now, what point are you going to talk about in respect of these four categories?

MR BORICK: I will summarise my overall position and I rely ‑ ‑ ‑

McHUGH J: But for what purpose, unsafe and unsatisfactory?

MR BORICK: Unsafe. The general question ‑ ‑ ‑

McHUGH J: Right. So this is your third point?

MR BORICK: ‑ ‑ ‑ and in particular to answer the way in which the prosecution case has just been put to me by your Honour because the way in which it has been put just assumes that an unhappy married relationship and problems with custody and property disputes can automatically lead to an intent to kill. That is the way it was left to the jury and, in my respectful submission, that is a dangerous precedent.

In summary, the prosecution case was in four components. There was evidence relating to the motive which we have been talking about; the contents of the boot; the movements of the accused, including opportunity; and fourthly, the question of how the fire could have been caused.

At its highest, he had a possible motive, and it was possible he threw a match into the boot, and it could never get higher than two possibilities. It is then said because of the contents of the boot, and as Mr Rofe described it, the bomb, the two basic possibilities could be translated into proven facts from the jury could infer both the intent and the attempt. In my respectful submission, that reasoning is flawed. Even assuming the contents were suspicious, which is in dispute, you are simply adding a suspicion to two possibilities. It would, for example, be different if an actual bomb had been placed in the boot, and there was no issue whether or not a crime had been attempted. If, in addition, it was proven that the appellant was the only person who had placed the bomb in the boot it would be difficult to resist a conclusion of guilt, but that was not this case. In our submission, the fact that the fire could have started accidentally means you are thrown back to look elsewhere for proof of the vital elements - that is the intent and the attempt - and you are left with a possible suspicion and a possible motive.

It was never our submission that the expert evidence should be isolated. What we are saying was that other evidence had to be found to get over the hurdle of the accidental cause, and all they had were two possibilities. In the end you have two possibilities linked with a suspicion.

The final point that I would like to take the Court to is where the Court of Criminal Appeal said there was evidence from other sources which ‑ ‑ ‑

KIRBY J: You say it was only the wife, she was the only other source?

MR BORICK: Yes. If your Honours have seen my argument in relation to that, then I will not repeat it. There were no other sources in which his evidence was disputed. That, in my respectful submission, was a clear error and affected very much the way in which the court went about its task of assessing whether it was unsafe and unsatisfactory because if they believed their was evidence from other sources which contradicted what the accused said, they were quite wrong, because there was not. There was the evidence that was there, in the way in which your Honours have put it to me quite strongly from time to time, but the accused had given his explanations about that, and there was nothing in the evidence to contradict it. I have also, in my outline, referred to the circumstances relied on by the prosecution. In my submission, I hope I have demonstrated there they were not proven circumstances but merely arguments.

I seek leave to amend the notice of appeal, at appeal book 926, by adding the following ground. It will be 2(ba). The learned trial judge erred in law by failing to direct the jury that a motive, if it existed, had to be proved beyond reasonable doubt.

McHUGH J: What do you say about that, Mr Rofe.

MR ROFE: Your Honour, I am not taken by surprise, because of the Court of Criminal Appeal and, in my submission, no basis.....

McHUGH J: Yes, we will allow that amendment. Will you undertake to have an amended notice of appeal filed in these proceedings so that our records can be correct?

MR BORICK: Yes, your Honour.

KIRBY J: Before you sit down, tell me about the majority verdict. What is the position in South Australia? You can take a majority verdict after a certain amount of time, can you?

MR BORICK: After four hours you can take a majority.

KIRBY J: And the majority must be at least 10, is it, or 11?

MR BORICK: Yes, 10 or more. And basically the only crime for which a majority is not accepted in South Australia is the crime of murder, where it must be unanimous.

McHUGH J: Will you have that notice of appeal filed within seven days, please, Mr Borick?

MR BORICK: Yes. I am not sure whether it was Justice Kirby or Justice Callinan who asked for my page references to the scientific evidence in my address. Certainly at - from 692, 693 - - -

HAYNE J: Well, at 696 you used the expression “hopelessly and inadequately” and “hopelessly inadequate” on two occasions, and it is that expression which the trial judge appears to have taken up in his direction.

MR BORICK: That is at 696. My recollection of the summing up was that, to a very large degree, it was a very strong attack upon the investigation, it permeated right through it, and that his Honour dealt with it in the way that he did, and I would submit a very perfunctory way.

McHUGH J: Yes.

MR BORICK: This clearly was our big talking point at trial, and it was basically dismissed as being of no real importance and, as I earlier argued, it was, in effect, at the end of the day, if the Court of Criminal Appeal are right, a waste of time, because the speculation about it was unhelpful.

McHUGH J: Yes, Mr Rofe. You are finished, Mr Borick, are you?

MR BORICK: Yes.

McHUGH J: Yes, Mr Rofe.

MR ROFE: Your Honours, in my written submissions I identify the three issues that I see as arising on the appeal, which I think have been identified by Justice Kirby and agreed to by Mr Borick. If I could, in case time defeats me, simply say on the question of motive and intention that I respectfully adopt the reasoning and conclusion of the Court of Criminal Appeal and the reference in particular to Wilson’s Case.

GUMMOW J: What was the sentence?

MR ROFE: The sentence?

GUMMOW J: Yes.

MR ROFE: Ten years, with a seven year non‑parole. Sorry, six.

KIRBY J: Ten years, six years non-parole?

MR ROFE: Yes.

KIRBY J: What do you say in relation to the alleged failure to direct the jury about the onus of proof of the facts relevant to motivation?

MR ROFE: Well, in my submission, the summing up did not direct itself to motive at all. In that sense there was nothing incumbent on his Honour to go to where my friend says that was required.

KIRBY J: It is mentioned, the word is mentioned in his Honour’s charge to the jury.

MR ROFE: Yes, but certainly not in the same way as it was in Murphy, and all that his Honour mentions it in terms of is the natural reasoning process of circumstantial evidence, of moving from proven facts to inferences, to intention. It is never put any higher than that, in my submission, and certainly was never put any higher than that in the prosecution case. Clearly, as has been pointed out, the facts on which motive and, indeed, as far as that inference helped with intention went, were undisputed. There was no difficulty about proof beyond reasonable doubt of any of those intermediate things - the unhappy relationship, the incidental benefits, and so forth.

KIRBY J: I did ask Mr Borick whether there was any application for redirection on that part of the summing up, but none has been drawn to notice.

MR ROFE: No, and I do not think - I found the one on the other aspect, but nothing on that particular aspect.

KIRBY J: In fact, the passage on page 880 is simply a recapitulation of what the prosecution was saying.

MR ROFE: It is not a direction at all. I mean, it was simply stating my argument that it was easier for the jury to look at the converse, and say it was harder ‑ ‑ ‑

KIRBY J: You might be to blame for bringing in the word “motive”.

MR ROFE: Maybe it was me, indeed. Reverting back to the other points of the inadequacy of the investigation and the unsafe and unsatisfactory complaint, in my submission, there is no principle relating to an incompetent police investigation which would give rise to the contention that my friend seeks. The closest that any of the authorities come is Justice Jenkinson in Wyatt in the passage that has already been read at 493, and clearly you would then look at it in terms of: when were these inadequacies, deficiencies known to the defence, as to what the appropriate remedy is.

In my submission, if there was this prejudice coming from that, the time to ventilate those would be an application to stay the proceedings before the trial judge on the basis that a fair trial could not be had because of what had been denied to the defence.

McHUGH J: There seems no reason in principle why, if inadequacies in the investigation have in fact prejudiced the accused in the sense that they may have prevented him or her from obtaining an acquittal, that would amount to a miscarriage of justice which could be set aside.

MR ROFE: I have got no doubt about that, your Honour, but I was talking about at trial court to prevent it or on an appeal to rectify it, if it happened to get it through, but clearly if they were known to the defence and they had substance, your approach would be go to the trial judge and say, “Look, we cannot get a fair trial because Policeman Smith threw the car away before we could examine it,” and challenge any of these so‑called findings or conclusions or opinions.

It would be a very rare and exceptional case and each case would turn, in my submission, on its own facts and the difficulty here is what Justice Jenkinson noted as the cogency of what was lost and in that sense it is very akin, if you like, to the fresh evidence cases where, you know, you just do not come back and turn everything over because something that was not previously known to you is now known to you, unless it has that cogency and unless it gives rise to the significant possibility that a jury would acquit if it had been known to it.

McHUGH J: Yes.

MR ROFE: The difficulty with my friend’s argument right through this is he cannot point to it and I have put in my outline of submissions references to the three experts, the prosecution expert and the two defence experts, where they are asked specifically, “Well, you know, what could you have done if you had the match?” And their answer is, “Look, simply it is just not good practice not to keep things.” But they could not say, “We could have got this out of it,” or, “We could have that out of it.” That was my friend’s difficulty and that is his present difficulty, in my submission, in establishing any possibility of a miscarriage.

KIRBY J: I find it hard to believe that it is not good practice where there is a trial for attempted murder to keep the objective evidence. I mean, I certainly would not want myself to be saying anything that gave encouragement, “Oh, just throw it all out. It does not matter much.” I mean, who knows what will be relevant?

MR ROFE: I agree with your Honour and clearly it is ‑ ‑ ‑

KIRBY J: It is bad practice. It is a question of what follows from it in this case.

MR ROFE: That is right. He photographed it. You have seen the photographs of it. I mean, he obviously appreciated the relevance of it to that point and made what perhaps in hindsight now is a bad decision just to say, “Well, I have done what I needed to do in that respect.” But none of the experts could come any closer to it than that. The complaint about throwing out the methylated spirits. He sampled the methylated spirits - it is P7A and B - which were then analysed as being consistent with methylated spirits. So all we lost out of that was exactly how much was in the tin and he gave an estimation.

The criticism of the collection of the rags was the possibility because of putting two rags in a tin that one might contaminate the other, but the reality of the factual situation here was that the appellant himself said, “I had the boot open on Sunday night. I was cleaning the mower with the ice cream container of petrol, used these rags. Now, I don’t remember putting them back in the boot, but I must have done,” or at one stage said, “Well, my four‑year‑old was around the place. He might have put them in.”, but conceded that the presence of those petrol‑soaked rags came as a result of activities by him. So really, the contamination theory was of no consequence whatsoever in the overall scheme of things. Again, bad practice.

KIRBY J: There could be cases. There was that case in New South Wales which, ultimately, after one inquiry led to a second inquiry, and it was discovered that the blood that man picked up his wife, I forget the name of the case, it was a very celebrated case.

McHUGH J: McLeod Lindsay.

KIRBY J: McLeod Lindsay, that the blood pattern was not consistent with a splatter. It was consistent with movement and this had been hidden or not revealed at the time. Forensic evidence is very very tricky and very important and I would not want, for myself, that this Court should say anything that should give any support for lax practices.

MR ROFE: I would not ask this Court to condone the practices in this case.

McHUGH J: I think it is a most unlikely prospect that this Court would condone inefficient police practices.

MR ROFE: Thank you, your Honour, I expected that. But the consequence is where you go from there. Now, assuming that it is not of such - the nature is to deny a fair trial from the outset, or if, for example, the inadequacies or deficiencies were picked up during the trial - and the remedies have been mentioned about discharge, but even with - - -

McHUGH J: What do you mean by a fair trial? Do you take the view that what I put to Mr Borick is the view that belongs to another age, an earlier age, and that the notion of a fair trial has now been transformed, so an unfair trial is what a judge thinks is an unfair trial, or has it some restricted technical meaning?

MR ROFE: I mean, my concept, your Honour, is simply that it is once, when you walk into the courtroom and you have pleaded not guilty, you know what the charge is against you, you know what the evidence is going to be against you.

KIRBY J: The Crown might have a slightly more restricted view of what is a fair trial than the accused.

MR ROFE: They may, your Honour, there is no doubt about that. And one of the difficulties, of course, in this case which I find a great difficulty in understanding is the prejudice claimed by the prosecution, if you like, saying, “Yes, we are not happy with this police investigation. You are not going to give the evidence of this fire was deliberately lit, as you did at committal and in your statement, and we are going to call you simply as a collector of evidence. And we are going to call another expert who turned out to give identical evidence to the two defence experts.”. And in my outline, I think, and I hope I have indicated where both those defence experts said, “Yes, we have read Dr Kirkbride’s evidence from the prosecution and we have not got any real disagreement”. Except, he puts another possible cause, namely the spark from the exhaust up a bit higher than we would. We do not think that is particularly likely at all. So it is a long way to go, in my submission, for Mr Borick to say this somehow caused prejudice.

The next item that needs to be addressed in that respect, I guess, is what direction is to be given. In my submission it cannot be simply, look, somehow you have got to take this all against the prosecution because someone has been incompetent, careless, negligent or whatever. That is not such a direction and it has got to lead somewhere. Unfortunately Mr Borick’s leading is, well that evidence - you must work on a presumption that the evidence that has been denied to us, whatever it might have been, would have assisted the defence. Now, that has never been a proposition to my mind or known to the law. In the absence - and it is simply, if you like, to relate it to the failure to call witnesses. Sure you can make the comment or give a direction, would not have assisted the party who failed to call, if comment is to be made about the absence of someone one would expect. Of course, two of those cases, the Australian cases, were on failure to call witnesses. The correct approach, in my submission, is Wyatt in the Federal Court, which is a much more analogous situation to ours about why did they not take some samples from finger nails.

So, in my submission, you cannot say that the judge had to give a direction in those terms, that is unduly favourable, and it would only be if the defence could say, as they normally do - and these are just talking points through the course of the trial - we could have done this, and point to something concrete, cogent, positive, that would then enable a judge to give a direction that would have some meaning other than the one contended for by Mr Borwick.

KIRBY J: It is said that if only the investigator had checked the accused’s clothing that that would have provided some evidence, but presumably it could only have been inculpatory evidence.

MR ROFE: Well, with respect, I would say that also of your Honour Justice Kirby’s DNA suggestion; it is a very dangerous game once you start saying ‑ ‑ ‑

KIRBY J: Yes, but it can, you know - there are cases where the Crown gets DNA evidence that exculpates and they abandon the prosecution. I mean, the accused can say that if they can only, as it were, exclude themselves, that is the importance of very careful forensic work.

MR ROFE: That is true. But if the accused chooses to make that comment about negligently lost semen samples, for example, saying, “Look, despite all this other evidence the Crown has got, I have been denied the opportunity of proving my innocence because of that,” then the obvious retort is, well, if we are going to go into that realm, the DNA could well have confirmed - and it really is an area you have to stay out of, other than to say the Crown case is that much weaker, and that will be said by defence. But here, there was nothing of that sort, nothing of that cogency that could be demonstrated. So, whatever the principle may be, this is just not the case; that even if it gets to - - -

McHUGH J: No, it is unlike, say, a film of the scene. Supposing one of the stores had a camera which showed what actually happened and, by police neglect, or negligence, or as the case may be, that was destroyed, in those circumstances you might say that the accused has been unfairly prejudiced because you had the real account of it. But even there, I suppose, you would say it is a question that may have inculpated him.

MR ROFE: Well, it is a question of degree but, you know, I can understand a judge, acting in those circumstances, to saying the prejudice is so great because of the cogency that would have been produced, or the cogent evidence that would have been produced by that, I am not - I am stopping this, and I say that is the appropriate way to go and that, once it is in, and once it is not concealed during the course of a trial - and this is the other aspect of the fair trial - you know, this was known. He got everything thrown at him about, you know, “Why you threw that away,” and, “Why you put that in that tin, and didn’t put that in this tin,” and so it went on, and that is the fairness of ‑ ‑ ‑

McHUGH J: It must have been a great talking point in front of the jury.

MR ROFE: It was, your Honour, if you read my friend’s address.

KIRBY J: Convinced one or two of them.

MR ROFE: It did, obviously. Of course, in this sort of context one has to remember the practicalities of the administration of criminal justice; you know the virtual impossibility of getting a perfect investigation. In any case - and Villafuerte, the American case on my friend’s list is one - with someone saying why did you not take fingerprints off the back door, the side door, why did not you go looking for these two blokes, Joe and Gus, that I told you about, and so on an so on and so on.

McHUGH J: I have not read that case, but does it turn on the due process clause?

MR ROFE: Yes, and that there had to be bad faith for it to have any moment over there, but I was just using it as a demonstration of the dangers of this sort of principle of saying, how far, what is it, we cannot have perfect police investigation, how far are we going to require the police to go. That is a very difficult line.

KIRBY J: But fire and blood; Mr Rumpole was the expert on blood, and there are people who are experts on fire. They are two areas where there is a very well established forensic tradition.

MR ROFE: Absolutely, your Honour, and with respect, recognised by the prosecution in this case by refusing to lead his opinion. Just in case I did not put those references in my outline as to the cogency of the evidence,

could I just very quickly give them to the Court. Kirkbride at 368, Goodman at 561, 577 and ‑ ‑ ‑

HAYNE J: They are at paragraph 13, I think, of your outline, are they not? Kutek at 645.

MR ROFE: I am sorry, I just lost my outline, Kutek 645, thank you, your Honours. They are the only matters I wish to put on that and probably, listening to your Honours’ discussion with my friend, I think your Honours are appreciative of what I would put as was the reasons why the verdict was not unsafe and unsatisfactory in terms of the circumstantial nature of the prosecution case.

KIRBY J: Can you just humour me as to whether there is any reference to unsafe and unsatisfactory in the South Australian statute?

MR ROFE: No, there is not. It is what is called the common form and it was certainly addressed in ‑ ‑ ‑

KIRBY J: It does not differ from the other State provisions, criminal appeal provisions?

MR ROFE: It differs very marginally. For example, I think New South Wales, for example, would have “of the opinion” in the second line rather than “thinks” that the verdict should be set aside on the ground that it is unreasonable and so forth, but this was considered by this Court in M v The Queen, from which the unsafe - which I understand your Honour Justice Kirby may not be in full agreement with.

KIRBY J: Well, it will be considered in due course in another case that stands for judgment.

MR ROFE: But that is what was referred there to as the common form and, in my submission, it was clearly open on the evidence before the jury to be satisfied beyond reasonable doubt of the guilt of the accused, notwithstanding the scientific or expert position that was led by the Crown, that could not of itself exclude accident as a possible cause of the fire. Unless there is anything the Court particularly would like me to address on, they are my submissions.

McHUGH J: Thank you, Mr Rofe. Mr Borick, anything in reply?

MR BORICK: Just very briefly. It is our fundamental proposition that it is the deprival of the opportunity of bringing some sort of objective evidence which is the issue. It is not a question, when an appellate court is looking at it, as to having to establish some sort of actual prejudice, but it is deprival of the opportunity.

McHUGH J: Well, that is then the big point of difference between the two sides because, when you were in‑chief, I though that you were going along with the view that deprival of opportunity was not enough, and that was why I was pressing you to point to material. But you say that the principle is just simply deprivation of opportunity, do you, and that that, in itself, is sufficient?

MR BORICK: On appellate review?

McHUGH J: On appellate review.

MR BORICK: What the submission to the trial judge is may well be a different matter, depending on the circumstances of each case, when you look to see what is missing. But in so many cases of this sort, you do not know what is missing. Then the speculation must be allowed, depending on the circumstances. But at appellate level, I will point to deprival of opportunity as being the key issue.

McHUGH J: That is the deprival of opportunity to further your defence, is it?

MR BORICK: Yes, opportunity to further the defence, yes - “providing some objective evidence which may further the defence” is the expression, I think, used in those cases.

McHUGH J: Yes.

KIRBY J: Was there any application for redirection on the issue of motive intention or not?

MR BORICK: On motive, no, I cannot see it there, but it was hardly touched on and Mr Rofe, your Honours remember, at trial was saying “We are not alleging these things amount to motive - they are background circumstances”.

KIRBY J: Yes, but you are complaining about it now and therefore the question is: did you ask for redirection in the matters of which you are now complaining?

MR BORICK: But the prosecution was not saying it was motive then and it was only the Court of Criminal Appeal who said - they were really saying it was motive. That is the reason why there could be no complaint at the trial, because they were not saying there was a motive.

KIRBY J: Yes.

MR BORICK: And Mr Rofe said that because of certain exigencies, assuming he meant financial, you cannot expect a perfect investigation as though this was, as in his outline, just some short drift away from what is perfect and, with great respect, what happened here was totally imperfect and, in effect, condoned by the Director of Public Prosecution and the judges in South Australia.

McHUGH J: What do you say about the degree of deprival of opportunity - deprival of opportunity probably does not have any degrees - but to what extent must you be deprived of the opportunity and in what way is it - for instance, if police fail to investigate or pursue one line of investigation, which may have thrown some light on the matter, is that enough from your point of view?

MR BORICK: We know, of the cases that are there, that one was the failure to have the breath test, or the blood test, I think it was, and the other one, where they did not investigate the witnesses who the accused, in that case, had told them about. I expect that maybe I have not got my position clear on the soot on the clothing, but I still think that is a very important example of what happened here. If the clothing had been tested for soot, that would have told us something, and it may well have been very ‑ ‑ ‑

McHUGH J: What is put against you is that it may have told against you, it may have incriminated you.

MR BORICK: But that was the critical feature of it. You see, if they had found the soot on there, Mr Penney probably would have been pleading guilty, or had to come up with some other explanation for that.

HAYNE J: Or if they had not, so what?

MR BORICK: Well, you do not know that, but at least we had the opportunity ‑ ‑ ‑

HAYNE J: Well, let us into the secret, what do you say ‑ ‑ ‑

MR BORICK: We would have had the opportunity to say that the boot, the lid was just about closed when the fire started, which is contrary to the concept of the match being thrown in.

McHUGH J: That is what I am having difficulty with, and I have difficulty with your submissions earlier today. Because the prosecution did not carry out that investigation, because they did not show that there was soot, hydrocarbons, you were in the preferred position where you were able to go to the jury and say, there was none.

MR BORICK: Well, I have not made my point clear.

McHUGH J: Yes.

MR BORICK: If the accused had stood at the back of the car and thrown in a match, then there is a very fair chance that there would have been - a very big chance that he either would have been physically injured himself, or there would have been the soot deposits on a fair bit of his clothing.

If the fire started by the switch, just as the boot lid closes, then it is inside the boot and there is very little chance then of soot on the clothing or, alternatively, it would have exploded out in that fraction of a second and you would get a line of soot on his clothing, but we could not ever test for that because they never checked it.

McHUGH J: I see. Your point is that it is not good enough for you to say, “Well, the Crown has not shown one way or the other. We were deprived of an opportunity of showing that, on examination, there was no line of soot which you would expect to find in the ordinary course of events if the Crown theory was right.” Is that the way you ‑ ‑ ‑

MR BORICK: Or more importantly, if the Crown theory about the match goes in, Mr Rofe would not be able to argue that, “Well, he could have just dusted the soot off.” They did not look for it, and that deprived us of that real opportunity and, of course, there were the other matters that I have referred to, but I am using that simply at this point in the argument to demonstrate what I mean by deprival of opportunity. We cannot say what would have transpired. Perhaps it would have been inculpatory, but you do not know and that is the critical point. Thank you, your Honours.

McHUGH J: Yes, thank you. The Court will consider its judgment in this matter and we thank counsel for their assistance.

AT 4.13 PM THE MATTER WAS ADJOURNED

[1998] HCATrans 129

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