Perrier v The Queen

[1991] HCATrans 231

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M13 of 1990

B e t w e e n -

MURRAY JAMES PERRIER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 AUGUST 1991, AT 2.20 PM

Copyright in -the High Court of Australia

Perrier 1 30/8/91

MR R. MERKEL, QC: If the Court pleases, I appear with my

learned friend, MR R.A.R. LEWIS, for the applicant.

(instructed by Slades)

MR M.S. WEINBERG, QC: If the Court pleases, I appear

together with my learned friend, MS L. LIEDER, on

behalf of the respondent. (instructed by the

Commonwealth Director of Public Prosecutions)

DAWSON J: Yes, Mr Weinberg. Mr Merkel.

MR MERKEL:  If the Court pleases. The application raises three issues. The first relates to the

circumstances in which character can be said to

have been put in issue. The second relates to

what, in our submission, constitutes a grave

miscarriage of justice resulting from what we would

submit is an unauthorized, inexplicable and

inexcusable mistake or error by counsel for the

accused in the course of the conduct of the trial

concerning this matter of character. The third

relates to the nature of the head sentence and the
minimum sentence handed down: the life sentence

and the minimum of 22 years both being the most

severe and harsh sentences that had been handed

down at that time in Victoria. Can I deal with

each of those in order?

The question of character was held to have

been put in issue in the present case when counsel

commenced to ask a question but withdrew and

desisted from asking the question. So that at the conclusion of what occurred there was nothing that could be said to be in the form of admissible

evidence before the jury and no material upon which

the jury could act concerning the accused's

character.

The second aspect of what occurred which we

say is also important is that in endeavouring to

give explanations for what did occur it became

abundantly clear that counsel had made a mistake in

endeavouring to ask the question, had appreciated

the mistake before he concluded the question and,

as a result, desisted from asking a question and

moved on to another matter.

TOOHEY J:  Mr Merkel, could you identify the mistake that it

is said that was made? I mean, is it a mistake as

to the facts or a mistake as to the legal

consequences of what had been done? I mean, it is

not suggested, I take it, that counsel did not mean

to do what he did in the sense that he acted

consciously. So I take it the mistake is as to the

consequences of doing what was done.

Perrier	2	30/8/91
MR MERKEL:	Yes, Your Honour.	We would say, and it is not

easy to give a precise answer because of the

confusion that appeared to surround this particular

question in the mind of the Full Court, although we

say that the trial judge expressed a fairly clear

view as to how he approached it. But because of

the confusion about this question in the Full

Court, we have sought and we do seek leave to file

a short affidavit by counsel which I think has been

handed up today - - -

DAWSON J: Yes, we have it.

MR MERKEL:  - - - which seeks to explain and at least

removes some ambiguity that was said to exist.	We
would submit that helps answer Your Honour's

question and that he, in that affidavit, makes it

clear: he did not foresee or realize that the

reading of the testimonial as he proposed to read

and ask the witness about it would have the

consequence of bringing the applicant's character

in issue. When he, in effect, was warned by the

Crown prosecutor that that was where he was headed

he stopped reading and desisted. There is no doubt

that he had done all this on his own volition

without instructions and the client had no

knowledge of what was proposed and had given no

instructions for it.

DAWSON J: Well, a client would not normally give

instructions in these circumstances, would he? It

is for counsel to say how they conduct the case.

MR MERKEL:  It is the counsel conducting the case, although

this particular case had a background to it wherein

matters placed before His Honour - and can I just

hand up, there is one page of the transcript I did

want to refer the Court to, at page 814, where it
was suggested that the client may have been

involved or had some implication in the matter

because, at this passage in the transcript, when

counsel was seeking to explain to His Honour what

had occurred - in the middle of the page - it is

suggested, just before the reference by His Honour

to place the character:

In relation to the particular facts of this

trial, my instructions in relation to the

issue of character have in fact been placed,

however, I have resisted it most strongly.

HIS HONOUR: Place the character?

MR COLLINS:	Yes.
HIS HONOUR:	Why would you want to place him
in?

Perrier 3 30/8/91

MR COLLINS: Very obvious reasons, I have

advised my client to the contrary so again I

am not resiling from the fact it was an error

on my behalf.

That counsel had advised the client strongly

against putting character in issue and the fact

that he had brought about a circumstance where

character had been put in issue was entirely and

solely an error made by counsel which we say was

explained to His Honour the trial judge at the time

and is explained consistently by him in his

affidavit filed today that he did not foresee or

realize the consequence of what he was doing. That

is entirely consistent, of course, with what

occurred.

DAWSON J:  I am not sure that I understand this, Mr Merkel.

What does it mean:

In relation to the particular facts of this

trial, my instructions in relation to the

issue of character have in fact been placed -

Who is this interchange between?

MR MERKEL: This is between Mr Collins, counsel for Perrier,

Your Honour, and His Honour.

DAWSON J:	At the trial.
MR MERKEL:	At the trial after this issue had arisen and the question was being considered as to how it should
be dealt with. Mr Collins gave a number of explanations to His Honour, many of which were not easily reconciled or were not capable of being reconciled.

DAWSON J: It is the sentence:

In relation to the particular facts of this

trial, my instructions in relation to the

issue of character have in fact been placed -

What does that mean?

MR MERKEL:  Your Honour, there was a suggestion that the

accused, in fact, wanted counsel to put his

character in issue and Mr Collins strongly advised
against it and resisted it. What he was saying

there is that it was his error that led to this.

In other words, there is no suggestion the client

overrode that instruction.

What His Honour the learned trial judge found

is equally strong concerning how inexplicable or

inexcusable the error was. Can I take the Court to

Perrier 4 30/8/91

passages from His Honour's ruling at page 30, about

a third of the way down the page - and this is

forming part of His Honour's ruling concerning the

matter. His Honour said:

He read the letter into evidence, and adopting

that unusual, perhaps it could even be

described as bizarre course, he placed his

client's character before the jury. In other

words, Mr collins put his client's character

in issue.

Then His Honour sets out how far he went and then

that:

he broke off -

and said -

"I won't continue with that."

Then, at the top of the next page, this is page 31

of the application book, in the first paragraph,

His Honour said:

Only Mr Collins knows why he did what he

did.

Then, further down the page, His Honour comments,

about three-quarters the way down:

After some further discussion, I gave Mr

Collins some extra time over the luncheon

adjournment, to collect his thoughts.

Then, at the top of page 32, His Honour said:

Clearly, Mr Collins conceded that it was a

mistake on his part.

Then His Honour comments on how this occurred - in

the last paragraph at page 32:  I indicated that I regarded Perrier's

character as before the jury, even though the

evidence came in a rather extraordinary manner

from the Bar table, rather than from the

witness box.

Then, over the next page at page 33, at the top of

the page, His Honour said:

Mr Collins on his own admission made a

mistake -

Perrier 30/8/91

and then His Honour concluded that given those

circumstances it was proper to permit the Crown to
lead evidence of his prior convictions.

The circumstances and the sequence of events are such that, certainly when His Honour described

it as bizarre to even contemplate putting character

in issue given the prior convictions and the nature of them and their relevance and significance to the

conduct of this trial, made it absolutely clear

that on no objective basis can any reason be put

forward or be given as to why this occurred. It

occurred with, what we would submit is no

understatement, horrendous consequences for the

further conduct of the trial. The Full Court

acknowledged, and I do not think anyone could

possibly dispute, that the evidence that went in on
prior convictions was clearly highly prejudicial;

probably of the most prejudicial kind imaginable in

the context of this particular trial.

We say that, as a result, the two issues that arise: one, the issue of law, was character placed

in issue in these circumstances and, if so, was

there any proper basis for exercising the
discretion in the way His Honour did, namely to

permit this highly prejudicial evidence to go in

when there is nothing that the jury was entitled to

act upon as to good character on the part of the

accused? We say that the answer to the second

question, if we are wrong on the first, in our

submission, permits of only one answer: that the

harmful and prejudicial effect and the prejudice to

a fair trial was so overwhelming in these

circumstances that His Honour clearly and

manifestly weighed up the balance wrongly.

DAWSON J:  The purpose of allowing the evidence in is not to punish anyone for making a mistake but, presumably, merely to even up the balance, is it not?

MR MERKEL:  It is to redress a balance on the principle that

the harm done to the prosecution case by the

assertion of good character could only be redressed

by the prosecution calling its evidence of bad

character. The problem there, of course - and what

we say raises an important question - is whether

one can really say harm has been done to the

prosecution case by reference to material that is

not able to be looked at or not properly able to be

looked at by the jury.

DAWSON J: There is no doubt that your client - in the

document that was read out - was being put forward

as a man of good character, and it was read out.

Perrier 6 30/8/91

MR MERKEL:  It was read out as part of a question to be

asked, but never asked. It was not read out in the sense of being tendered as a document, Your Honour.

DAWSON J: Well, to use a neutral term, it was before the

jury - the contents of that document.

MR MERKEL: Well, that is the question, Your Honour. We say

that if the question is asked somewhat differently,

"Could the jury properly have taken that letter

into account as evidence before the court?", then

the answer, we say, is, "No, it couldn't".

DAWSON J: What I was wanting to ask you was this: the

trial judge had to do something, did he not? What

do you say he ought to have done?

MR MERKEL:  There were three possibilities, short of what His Honour did. The first is to give a very strong

and clear direction to the jury that would require

the material that had been put before the jury.	them to disregard in its entirety the reference or a matter for him in those circumstances but he
certainly could go so far as to say that there is
no evidence of good character. That, as a course
open to the trial judge to ensure no harm was done
to the Crown case, was a far more balanced course than the highly prejudicial course ultimately
selected.

If His Honour felt he could not correct the

harm appropriately by a direction of that kind,

His Honour could have severed the trial of this

accused or, alternatively, aborted the trial.	The
worst of all - - -

DAWSON J: Well now, how long did the trial take and at what

stage did this occur?

MR MERKEL:  I think it was into the 43rd day. Yes, it was

well into the trial so there were obvious - - -

DAWSON J: It would not be a very attractive proposition,

would it?

MR MERKEL: Highly unattractive, Your Honour, but sometimes,

as unattractive as it may be, the consequence of a

trial that necessarily thereafter had to be an

unfair trial for this accused, was the worst

possibility of all possibilities. It is

harder - - -

TOOHEY J:  Mr Merkel, have I understood the position

correctly that the author of the letter was, in fact, the witness who was being cross-examined?

Perrier 30/8/91

MR MERKEL: That was the fact although that had not, as I

understand it, been before the jury - - -

TOOHEY J:	I realize that did not come out.
MR MERKEL:	It was just a piece of paper read which was

handed to the witness, was in fact his document but it was not presented as his document at that stage.

He was asked to read it and counsel commenced

reading it and then after being warned, not once, and in somewhat colourful language, almost in the nature of a rugby tackle from the Crown prosecutor,

he then stopped and the matter then went no

further. So that, as far as the jury was

concerned, it is a matter of surmise as to what

they would have thought was occurring in the court.

But they would not have identified that as that

witness's document.

TOOHEY J:  No, I appreciate that but it appears from the

judgment of the Full Court that what was put to the

Full Court was that the purpose of introducing the letter was not to proffer the good character of the applicant but, as it were, to make it apparent that

Lewis, the witness who was being cross-examined,

was a person involved in legitimate business

transactions.

MR MERKEL:	Yes.
TOOHEY J:	Is that one of the arguments or the ways in which

it was put to the Full Court?

MR MERKEL:  I think counsel below had put several

possibilities to His Honour and they were not, as I

indicated earlier, easily reconciled. It was

suggested - - -

TOOHEY J:  No, I am not speaking of the trial judge; speaking of the position before the Full Court. I am

As

I read the judgment, that was one of the ways in

which it was put to the Full Court.

MR MERKEL:  It was one of the possibilities, Your Honour. I

think that it is hard to go beyond, in effect, the

impression of the trial judge, when these

explanations were given to him, that whatever the

explanations were it seemed to constitute a bizarre

circumstance that counsel should, on whatever

explanation, have taken the course he did with the

consequence that that brought about. His Honour

said that only counsel could really know why he did

what he did. In other words, there were different

explanations, none of which had the benefit of

reason or logic to support them.

Perrier 30/8/91

I understand what Your Honour said is one

possibility but it is not easy to discern from the

material that that was in fact something that could

have been a benefit in any real sense. It is very
hard to approach it before this Court and, indeed,

since His Honour's ruling in the light of the

different explanations that were given as anything

other than inexplicable and inexcusable conduct

undertaken by counsel of his own choice but,

importantly we say, desisted in before carried

through to a question. So this is not a case where

one asks a question, gets the wrong answer and

says, "I have made a mistake, there is the evidence

before the court".

That really takes us to the first question

which is: can it be properly said that an accused

has put his character in issue when what has

occurred in the court stops short of any evidence or material that can properly be had regard to by the jury? We say this is the issue in the present

case.

His Honour Mr Justice Brooking, in delivering

the judgment of the Full Court, selected a passage

from Archbold which is undoubtedly correct that

endeavours to put good character in issue - put

character in issue. The emphasis on the word

"endeavours" comes from an historical background

where the counsel for the accused got the wrong

answer. The "endeavour to put good character in issue" had resulted in bad character coming out,

but having made the endeavour by admissible

evidence, questions and documentary evidence

adduced or a statement from the dock by an accused,

the consequence was the Crown could then put in
evidence of character and prior convictions.

His Honour, by emphasizing the notion of an "endeavour" to put character in issue, equated it

with the quite different circumstance where this

really was not an endeavour to put character in

issue in the sense that it had been carried through

to any completed course of conduct at all. It was

really the commencement of a step which was not

carried through.

We say that the authorities on "endeavour"

really go to a quite different point. When one

looks at· the cases, there are two principles that

seem to emerge. The first principle is that

character is only put in issue by evidence or

evidentiary material - cross-examination, a
statement from the dock - not by material or matter

that the jury could not have regard to.

Perrier 9 30/8/91

The second, which is equally important and, we

say, relevant in the present case, are those cases

where the accused's counsel calls a witness and

gets, in effect, a non-responsive answer where the

witness talks of the accused's good character.

That has been held not to have put character in

issue because there was nothing in the nature of

the conduct of the accused's counsel that showed an

intent or wilful conduct to put character in issue. issue.

One of the cases or instances used by His Honour Mr Justice Brooking in the Full Court

judgment was Woolcott Forbes where the character

evidence was said to be in rebuttal of adverse

Crown evidence going to matters in issue. What the

Court of Appeal and Sir Frederick Jordan, in delivering one of the judgments of the Court of

Criminal Appeal in that case went out of their way

to emphasize is, it was not putting it in issue

merely because you had called evidence that had the

effect of putting it in issue; you had to intend

to put it in issue.

Their Honours went to examine counsel's

opening, not for the purpose of saying or

identifying whether the opening put character in

issue, but for the purpose of trying to give a context to the questions that were asked. The court concluded that, in that total context, it was

clear that the accused intended to put his

character in issue; it was not merely just

rebutting Crown evidence by character evidence. If

it was just the latter, character would not have

been put in issue.

So, we say that those two strands which one

can find clearly emerging from the cases, raise the

central issue on the question of law in the present

case because we say that - - -

McHUGH J:  But do you have to intend to put it in? I

remember I was in a murder trial once where the

accused made a statement from the dock and gave an

account of some good deeds he had done to the

deceased person and a very experienced trial judge

held that he had raised character and allowed the

Crown to prove previous convictions.

MR MERKEL:  Yes, I should have been more explicit,

Your Honour. I look at the intent or wilful

conduct in terms that are objective, objectively

viewed. I do not say it is a matter of subjective

intent. If one looks at what the Court of Criminal

Appeal did in Woolcott Forbes in New South Wales it

was looking at the opening, looking at the

Perrier 10 30/8/91

questions, looking at those for the purpose of

responding to whether it was a response to Crown

evidence on the issue or whether it was really

putting character in issue. So, in that sense, it

is an entirely objective test.

DAWSON J:  But if the purpose is to redress the balance, it

cannot matter what the intent was: subjective or

objective. If character in fact is put in evidence

it becomes an issue.

MR MERKEL: Well, with respect, Your Honour, the cases -

DAWSON J: You say that that is not so. I realize that.

MR MERKEL:	We would say, with respect, that is not what the cases say. Woolcott Forbes is a very good
example - - -

DAWSON J: It may be a question - and I am not familiar with

the case you are referring to - but it may be that

it happens in such an incidental way that it does

not become an issue in the trial.	I can understand
that.

McHUGH J:  In Woolcott Forbes one of the things was that he

said the commissioner of police came down and met

him at the boat at Fremantle, did he not?

MR MERKEL:	Yes, Your Honour.
McHUGH J:	And that was held to raise character.
MR MERKEL:	But when one reads Woolcott Forbes, the issue

was whether it was in effect a rebuttal of Crown

evidence on the issue which necessarily involved
character which would not be treated by the court

as putting character in issue, or whether it went

further and was putting character in issue. It was

for that reason, and that reason alone, they went

to counsel's address to show that the way in which

it was opened was putting character in issue.

DAWSON J:  But that is a different thing. I have now read

the headnote of Woolcott Forbes. What was done

there, apparently, was that the evidence was

offered as going to something else, not as evidence

of character, but in fact it was evidence that

invited the inference that the accused was a man of

good character. In that situation evidence to the

contrary was admissible.

MR MERKEL: Well, Your Honour, if one reads the judgments,

with respect, it was always evidence of good

character. There was no doubt that the quality of

the evidence went to character.

Perrier 11 30/8/91

DAWSON J: Perhaps you will direct our attention to the

passage you rely on.

MR MERKEL:	Yes, Your Honour, it comes up firstly in Sir Frederick Jordan's judgment, page 340 to 341.
In the middle of page 340, His Honour says:

It was contended for the appellant that

all that had been done on his behalf was to

meet evidence given against him that he had

left Sydney surreptitiously and had

subsequently absconded from his bail in

Bombay. We have been informed, and it is not

disputed, that counsel for the appellant, when opening the defence to the jury, said that the

accused alone had fought a long fight for the

company; his loyalty was his undoing, his

loyalty to the company, to Bush whom he loved, to his wife and children: that sent him out of
the country. In his statement made from the

dock -

and then it sets out what he said. Then His Honour

continued on at page 341, in the middle of the

page:

The impression which this material

produces upon me is that the appellant was

being held out, and was holding himself out,

as an injured innocent whose only fault, if so

fine a character could be said to have a

fault, was his intense loyalty to his company

and then His Honour, in the total context,

concluded:

In my opinion, therefore, evidence of the

appellant's actual character was admissible in

order to dispel the erroneous impression which

he was thus seeking to produce.

Probably, the best summary of the principle in that

case, Your Honour, is in the second case on our

list of authorities, that is Reg v Stalder,

(1981) 2 NSWLR 9. At page 13, His Honour the

Chief Justice, at paragraphs C and D, refers to

Woolcott Forbes where His Honour says:

. Although it has long been the practice in

this State to regard the raising of good

character in an unsworn statement as

equivalent to adducing evidence of good

character, the only reported case of which I

am aware in which the point has arisen is

R v Woolcott Forbes. In that case the

accused, in the course of an unsworn

Perrier 12 30/8/91

statement, gave an account of his life which

led the trial judge to the conclusion that he

was inviting the jury to draw the inference

that he was a man of blameless character.

Evidence tendered by the Crown in reply was

admitted to prove that he had been convicted

of a number of fraudulent offences in the

United States of America. It was contended on

appeal, inter alia, that evidence of the

appellant's bad character should not have been

admitted. All three of the members of the

Court of Criminal Appeal accepted without

question that protestations of good character

made in an unsworn statement could expose an

accused person to the common law consequence

of evidence in rebuttal being called by the

Crown. Moreover, each of the three judges recognized that, if it were doubtful whether the accused had gone so far as to raise his

character, reference could be made to his

counsel's opening address to determine whether

or not the accused was in truth putting

himself forward as a person of good character.

It is that notion of trying to, in effect, not

penalize where character evidence may be called in respect of an issue rather than character evidence

called in respect of character. The third case on

our list is the one I had in mind - - -

DAWSON J: But it does not raise any question of intent,

does it? It is whether he was, in fact, putting

himself forward as a man of good character. If he

was then that raises the issue. What was contended

in Woolcott Forbes was, of course, that this was

merely evidence which was relevant to other issues.

MR MERKEL:  But it was good character evidence. The

question really is, we would submit it was raised,

was whether the accused was raising his good

character rather than responding to evidence in

rebuttal which happened to be, by its nature,

character evidence. We say the latter is not

putting it in issue; the former is.

DAWSON J: But I thought - when you put it into the context

of the present case, there is no question that good

character was raised; it was put forward - - -

MR MERKEL: Well, we, with respect, say that is the issue,

Your Honour.	We say that these cases and
possibly - - -

DAWSON J:  - - - whether it was done unintentionally or not.

Perrier 13 30/8/91

MR MERKEL: Well, we say that it still is the issue because

we say the conduct stopped short. By not having

anything that could properly be taken or put before

a jury, it stopped short of raising character in

issue. Possibly the third case is a better

example, Your Honours. It is R v Butterwasser,

(1948) 1 KB 4. That is the example I gave the

court where an accused is not called to give

evidence and does not put his own character in

issue. No evidence can be given by the prosecution

of his bad character merely because he has attacked

the evidence of witnesses of the prosecution.

Where evidence of bad character of the accused is

admissible during a trial it must be given by a

witness who is able to swear to it of his own

knowledge and not sufficient before verdict.

At pages 6 to 7, what had happened in that

case - I am sorry, I have given the Court the wrong case. That was the reference to it having to be by

evidence. It is R v Redd, which is the fourth case

on the list, that raises this question of being put

in issue by a wilful act to do so, viewed

objectively. R v Redd, (1923) 1 KB 104, if I could

just read the headnote:

An appellant, who was tried for

housebreaking and robbery, called a witness

for the purpose of producing certain letters.

This witness, without any question being put

to him by the appellant, voluntarily made a

statement as to the appellant's good

character. The counsel for the prosecution

then claimed that as evidence of the

appellant's good character had been given he

was entitled to cross-examine the witness as

to the appellant's real character, and he

thereupon proceeded to ask the witness as to

the number of times the appellant had been

convicted: -

Held, that the appellant was not under the

circumstances endeavouring to establish a good

character by calling a witness who voluntarily

made a statement as to the appellant's good

character -

That is why we say that, properly viewed, cases

such as Woolcott Forbes and K v Redd show that it

is not just a matter of saying did the evidence

before the jury, however presented, result in

character being in issue in the case, it must go to

the next stage and demonstrate wilful conduct on

the part of the accused through his counsel.

TOOHEY J:  Why do you use the expression "wilful'',

Mr Merkel? It seems to me that the argument is

Perrier 14 30/8/91

blurring the number of propositions and I am having

a bit of difficulty identifying them. I mean, the

authorities do not suggest that the question is

answered by reference to intent. They do suggest

that it is answered, at least in part, by reference
to an objective examination of the material because

it may appear from that examination that the

statement came out accidentally, was non-responsive

to a question that had been asked, or that the

evidence was clearly tendered for some other

purpose. Well, now, none of that seems to involve

intent.

Then there is another question which you

appear to be urging that, in any event, unless the

material constitutes admissible evidence, all other

questions aside, it cannot put the accused's

character in issue. To any of those questions, is

the intent of the accused relevant?

MR MERKEL:  I probably selected an unfortunate word. I

tried to use that terminology to emphasize that the

question is whether the accused has put his

character in issue and that is a matter viewed

objectively and it - - -

TOOHEY J: That is right. The answer may be, "No he hasn't

because the material was tendered or came in either

for another purpose altogether or it came in quite

accidentally".

MR MERKEL:  Yes, Your Honour, and what I was seeking to

avoid is the notion that merely because character

had entered the ring it did not follow that the

accused had put character in issue.

TOOHEY J: But let us say it has entered the ring and there

is no other explanation available. Do you say that

unless the material said to put character in issue

constitutes admissible evidence then it cannot

ground an application by the Crown to call counter-

evidence as to character?

MR MERKEL:  Yes, Your Honour. We would put it slightly

broader than that and we would say that unless it

constitutes material on which a jury can act,

without getting into the debate as to whether a
statement from the dock is evidence or material on

which a jury can act, but that it must be material

which a jury can act upon in the case. Otherwise

we say character cannot be put in issue.

McHUGH J: Well, taken an analogous area: recent invention.

Now, counsel can make suggestions of recent

invention by way of questions and by conduct, by

all sorts of devices, and yet it is held that that

issue has been raised and a prior inconsistent

Perrier 15 30/8/91

statement or a prior consistent statement can then

be led. So why should it be any different in this

area?

MR MERKEL: But, Your Honour, the recent invention gets into

the ring because of the questions and answers to

them - - -

McHUGH J:  Not necessarily the answers. It can often be

just the way that the suggestion is there.

MR MERKEL:  I accept what Your Honour says. It is a bit

like the "endeavour to put good character in

issue"; you may ask the question and get the wrong
answer but you nevertheless have the consequence.

If you put recent invention and you get the wrong

answer, by having put it as a proposal to the jury

and answer, even though the answer may tend in the other direction, which says it is material or it is matter that the jury can properly look at. But we say where a question is not asked, that we have stopped short of getting anything that the jury can properly act upon or properly take into account.	in a completed question, you have put in a question improperly acted upon it or had regard to it as if
it were evidence which it is not.

That is why we say that the proper course in

those circumstances is a very strong direction

which could in itself, in terms if need be, be

somewhat prejudicial to the accused in the sense

that he has not put good character into issue, nor

has he adduced any evidence of good character.	But
that, of the two alternatives this accused was
facing, was far far less than the end result. Really, we say that is the issue.

The decided cases that the court referred to,

that is the Court of Criminal Appeal, are all

instances where the evidence was in the form of

either an unsworn statement or admissible evidence.

There are no instances - - -

TOOHEY J:	Mr Merkel, what about if counsel, in the course of closing address, invited the jury to treat the
accused as a person of good character when in fact
the accused had a number of convictions? Now,
apart from whatever the implications might be from
the Bar ·counsel for doing that, would the Crown be
entitled to call evidence in rebuttal? It is not
admissible evidence.

MR MERKEL: It is not admissible evidence. It is a question

of whether the jury was entitled to have regard to

it. It is an extraordinary notion because it would

be quite improper, as Your Honour pointed out,

Perrier 16 30/8/91

whatever the Bar counsel might say, it would be

quite improper for that to be done in the same way

as an opening address would raise evidence that was

not intended to be called. And we would say that

it raises a difficult question, but we would say

consistent with the principle, if it was material a

jury was not entitled to have regard to, it should

not have the consequence of having put character in

issue. But it is a difficult case because it is

such highly improper conduct, and therefore it is
hard to use as an example something that should not

occur in the sense that it is improper and would be

the subject of disciplinary sanction and it could

well have aborted the trial.

But at the end of the day, we say what is

fundamental is the balancing act which the trial
judge was required to undertake of the harm done to

the Crown case balanced against the prejudicial

consequences of this evidence.

McHUGH J: That is another issue, is it not?

MR MERKEL: It is a second issue, Your Honour, but it is a

very difficult question. To answer His Honour

Mr Justice Toohey, we say that in the end result

the character should not be deemed to have been put

in issue if the jury could not have regard to it.

We say that must be a test because the criminal

court must act upon the evidence properly

admissible before it and not otherwise.

McHUGH J:  What about putting a document into evidence?

Counsel puts a document in the witness's hand, and

then says something like, "Your evidence is based

on this little thing in this map". The document is

then in evidence.

MR MERKEL:  Then one would get, Your Honour, to the case of

Redd, that if by accident something had slipped in

on character but addressing another issue, then it

would appear Redd's case would say the accused has	not put his character in issue. But I have no
difficulty with the case where a question directed
to character is responded to. That results in putting a character in issue. That is the classic
formulation, even when the answer goes the wrong
way. But the cases the Full Court relied upon and
recent authorities as far as we are aware of do not
produce any instance where material the jury is not
permitted to look at, and would be quite improper
for it to have regard to, could be said to have
raised character in issue. We say it is a matter
of evidence, and we say that that is a fairly
central point.

Perrier 17 30/8/91

The Full Court, we say with respect, is wrong

because it has used the word "endeavour" in a way

that the cases have used it, but always by
reference to character being put in issue by

admissible evidence or material on which a jury can

act.

McHUGH J: Well, supposing counsel for the defence had

opened the case for the defence and said that the

accused was a man of good character, and then did

not call the accused, and did not call any evidence

in relation to good character, but it went into

evidence nevertheless? Could the Crown in reply

tender evidence of convictions to answer what

counsel had said in opening?

MR MERKEL:  It is a bit like the reverse impropriety of what His Honour Mr Justice Toohey put to me. They are

extreme circumstances. If the court concluded that

the jury could act on it, then the answer would be yes, but probably that would abort the trial. But

it would be highly improper for counsel to have, in

effect, opened a case based upon evidence he knew

he was not calling.

We say that unless there was some additional

doctrine which takes you beyond the material on

which a jury can act, we say that character should

not be said to have been put in issue in that way.

I say they are the hardest cases, but they are

improper conduct cases which are not good examples

of the point.

TOOHEY J:  Mr Merkel, is there authority that makes it clear

that character can only be put in evidence by

evidence that is admissible or through material

which it is proper for the jury to have regard to?

MR MERKEL:  We say the cases in our list of authorities are

all to that effect, Your Honour.

TOOHEY J:  That may be because that was the way in which it

arose? I mean, nine times out of ten it is going

to arise in that way, of course, through questions

asked or evidence tendered, but that may be to say

no more than that these cases are illustrative of

particular situations. But is there any statement

anywhere that suggests that character can only be

put in issue in the way that you submit?

MR MERKEL:	Your Honour, Lowery's case, (1974) AC 85, appears to suggest that. That is No 6 on our list
of authorities. At page 101, Lord Morris' judgment, the last sentence at the foot of the
page, His Lordship said:

Perrier 18 30/8/91

Lowery put his character in issue. If an

accused person puts his character in issue in the sense of asserting that he has never been convicted of any offence then provided that it

is fair to do so it may be shown that he has

had convictions. If an accused person puts

his character in issue in the sense of

adducing evidence that he is of good general

reputation then it may be legitimate to call

rebutting evidence ..... When an accused person

puts his character in issue he is in effect

asking a jury to take the view that he is not

one who would be disposed to have committed or

would be likely to have committed the crime in
question.

Indeed, in all the cases - I think I had started to read the third case on our list of authorities

which is R v Butterwasser, there at pages 6 to 7

the Criminal Court of Appeal was saying that one

puts character in issue only by calling evidence.

For example, Lord Goddard at page 6, where it was

suggested that attacking witnesses for the

prosecution was putting character in issue,

His Lordship, about seven lines down on page 6

said:

A police officer was called, who testified to

the prisoner's previous convictions and

general character. In the opinion of the

court, that was a course which cannot possibly

be allowed as the law is at present. It is

elementary law that ever since it became the

practice, as it has been for the last one
hundred and fifty or two hundred years, of

allowing a prisoner to call evidence of good

character, or where he has put questions to

witnesses for the Crown and obtained or

attempted to obtain admissions from them that

he is a man of good character, in other words, where the prisoner himself puts his character

in issue, evidence in rebuttal can be given by

the prosecution to show that he is in fact a

man of bad character.

All the cases emphasize it must be character.	Over
the page at page 7, His Lordship says:

But it is admitted that there is no authority,

and I do not see on what principle it could be

said that if a man does not go into the box

and put his own character in issue, he can

have evidence given against him of previous

bad character when all that he has done is to

attack the witnesses for the prosecution.

Perrier 19 30/8/91

There is similar authority from this Court in

Australia - - -

TOOHEY J: 

The difficulty is in deciding whether those

statements are meant to be exhaustive or whether
they are merely statements made in the light of the

sort of situations that have arisen. I do not

suppose anybody would have foreseen the sort of

situation that we have here today.

MR MERKEL: 

Your Honour, we say that is the issue that arises in the present case, whether the authorities

which are explicit in their references to material

going to a jury or evidence, are exhaustive of the principle. We say they should be because there is

the more fundamental principle that a jury can only
act on the evidence that is before it and not

otherwise, and we say that it is that principle

that should restrict the doctrine, bearing in mind

the courts' armoury to deal with these situations
in ways other than permitting or raising the issue

of highly prejudicial rebuttal evidence being

brought into the arena.

DAWSON J: 

I think we have what you say about that as a

special leave point.

MR MERKEL:  The second aspect goes to the question of the balance in the present case. We say that the

balance struck as it was failed to give weight to

the conclusions that His Honour accepted, that this

had all come about as a result of a bizarre

circumstance and certainly something that counsel

conceded was a mistake. And what His Honour did

is, in our submission, treat the evidence, if it be

that, if I am wrong on my first point, as being

harmful to the Crown case in a way that could not
be redressed in any appropriate way other than the
calling of this highly prejudicial prior conviction

evidence.

TOOHEY J: It is a bit hard to see that point as a special

leave point in isolation from your other one, is it

not?

MR MERKEL:  It is, Your Honour, and that is why our second

point goes really to the broader issue, and that is

that if in the events that have occurred a grave

miscarriage of justice has resulted, then we say

that that does constitute a ground on its own, and

we say that that is what has occurred in this

trial, that the effect of the inexcusable,

inexplicable conduct that we have been putting as

the subject of our submissions had the inevitable

consequence that thereafter it could not be a fair

trial. We say that that result is one that the

Court should not sanction in any case, but should

Perrier 20 30/8/91

sanction least of all where the end consequence is

a term of life imprisonment in circumstances where

the defence of the accused to his charge was

fundamentally based upon his credit as a witness
and no evidence of propensity for this kind of
crime.

Now, both of those pillars which were central to his defence were just eliminated by the

admissibility of this evidence. We say that this

is a case where the miscarriage of justice that

arrives at the end result of what we have put

before you, is not a circumstance where such an

error should, in any circumstances, be visited on

the accused.

DAWSON J: Yes.

MR MERKEL:  The third point raises the difficult question in regard to sentence. The commercial quantity under

section 233B of the Customs Act is 1.5 kilograms.

In fact, the conviction related to 1.6 kilograms.

The sentence imposed was the highest ever imposed.

The minimum sentence, likewise, of 22 years was the highest ever imposed.

DAWSON J: But you are now really complaining just about

excessiveness of sentence, are you not?

MR MERKEL:  Yes, Your Honour. It is manifestly excessive,

but - - -

DAWSON J: Well, you know, maybe attitudes have changed to

some extent in relation to sentence. I do not know

about that, but it has never been said to my

knowledge that the mere fact that the sentence is

excessive is a ground for special leave.

MR MERKEL:  I appreciate that, Your Honour, and we accept the difficulty we have. The three points I suppose

we make in respect of sentence are:	(1) that the
court has lost a proportionality view of what has	occurred, that the life sentence reserved for the
most serious categories of this kind of offence,
larger quantities, repeated trafficking or dealing,
part of a large organization on a continuing basis,
we say that they are circumstances that might
attract the maximum sentence. In the present case - - -

DAWSON J: These are all matters for a Court of Criminal

Appeal. This is not a Court of Criminal Appeal.

There is nothing of general importance about that.

MR MERKEL:  I accept that, Your Honour. The sentence point

that we say arises is that the sentence, in fact,

Perrier 21 30/8/91

is so disproportionate to the tariff and the other

sentences being handed down around Australia - - -

DAWSON J: That is merely to say it is so excessive.

MR MERKEL:  Yes, well we can only say, Your Honour, it is so

manifestly excessive it does demonstrate an error

of principle in respect of a statutory provision
that is applied by the courts throughout the
country, and we say that the circumstances of the
present case do give rise to an issue where that
sentence is so out of proportion and so
disconnected to sentences in respect of similar

offences, but that is how we do put the sentencing

principle. If the Court pleases.

DAWSON J: Thank you, Mr Merkel. Yes, Mr Weinberg. You

need not address the last point, the sentence.

MR WEINBERG:  If the Court pleases. Your Honours, that

leaves three matters raised by my learned friend,
the first of them being the question of whether
character can be put in issue by matters other than

admissible evidence being placed before the jury;

second, an attack upon the exercise of discretion,

and third, a question about the effect of mistake

on the part of counsel, as we understand the points

that have been agitated.

Could we start by saying something very

briefly about the affidavit material that has been

supplied to the Court, and indeed supplied to us

today.

DAWSON J:  You do not object to us having regard to it, do

you?

MR WEINBERG:  Yes, we do, Your Honour. I regret to say that

we do. The affidavit was provided to us at 9.40 am

this morning. Having been on the defence side of

the bar table, I have frequently in the past

complained about being ambushed by the Crown, but	talk about being ambushed at 9.40 am, an hour and
20 minutes before the matter is due to come on for
hearing is not misplaced criticism, in our
respectful submission.

There is no explanation forthcoming in the

affidavit or from my friend as to why the affidavit

has been.signed and sworn as recently as three days

ago and provided to us today. The matter of an

absence of an affidavit was referred to by the Full

Court in its judgment as being of significance at

page 69 of the application book, where His Honour

Mr Justice Brooking said this, half-way down the

page:

Perrier 22 30/8/91

No attempt was made to place before this

court an affidavit by leading or junior

counsel or the instructing solicitor

concerning the client's instructions and their

own state of mind and motivation. The case is
not one of a blunder made by inexperienced

counsel.

So for about a year or more that comment has been

present in the minds of those instructing my
learned friends, and we find provided to us, as we

say, an hour or so before this case is due to

commence, an affidavit. The contents of the

affidavit are in direct conflict with statements

made by the counsel in question to the trial judge

when giving explanation for doing what he had done.

We had set out in our response our answering

statement at page 19 of the application book, a

synthesis or summary of the five different

explanations that counsel had given for doing what

he had done when he did it, and when it was drawn

to his attention so forcefully by counsel for the

prosecution.

The first of those explanations was, and this is his first comment to the learned trial judge,

that -

he had read the testimonial deliberately to

the jury and with full knowledge of the likely

consequences of doing so because he was

convinced that evidence of his client's prior

convictions would, in any event, have been led

by the co-accused.

Now, we have the relevant pages of the transcript for the Court, and with the Court's permission we

wish
would to simply hand those pages to the Court. going to submit, that this case is not an

appropriate vehicle for the grant of special leave

simply because of the complete uncertainty as to

the facts and factual premises which underlay what
counsel did and why he did it. But his first

explanation to the jury appears at page 763,

half-way down the page, when His Honour said:

I simply cannot believe that you could read tha~. I find it - it begs description that

you could read that to the jury when you know

that Mr Perrier has got two relevant prior

convictions. You have put his character in

the melting pot.

Perrier 23 30/8/91

MR COLLINS: It is already there and it is

going to be raised in an adverse fashion by my

learned friends.

HIS HONOUR:	You do not know that, they may,
they may not.
MR COLLINS:	From day one

and that is a reference to the fact that there had

been earlier submissions for a separate trial based

upon the fact that Mr Collins apprehended the

co-accused were going to lead positive evidence of

his client's prior involvement in drug - - -

McHUGH J: Well, it does not necessarily mean that was his

reason.	It might be his attempt to justify what he
had done.	I must say I am like - - -

MR WEINBERG:  It is his first explanation, Your Honour. We

cannot do any more than say this is what he first

said to the learned trial judge.

McHUGH J:  I am like the trial judge. I am just stunned

by - - -

MR WEINBERG:  Your Honour may find that Your Honour is more

stunned as we go through the other explanations

because they are all irreconcilable. They are

inconsistent with each other, and on one view what

he did he did because he believed that his client's

character was going to go into issue in any event

and he pre-empted it and did it deliberately for

that reason. That was his first explanation. That

is not mistake.

His second explanation appears at page 771

where, in summary, we say he had read the

testimonial without appreciating that it involved putting the applicant's character in issue before

the jury. If I could just hand that to the Court.

Contrary to my friend's submission before this

Court, Mr Collins did accept that what had happened

was that character had been placed before the jury

but said on page 771 that it was a mistake on his
part and one that he did not resile from. This is

about a third of the way down the page, and what

Mr Collins said half-way down the page was:

Your Honour, the situation now is that what I

would submit sir, is that Mr Lewis had the

document and I read it from the bar table and

fortunately for the intervention of the

Prosecutor, nothing, I didn't make any moment

of it.

Perrier 30/8/91

HIS HONOUR:  I don't understand what you mean

by that, "I didn't make any moment of it,"

what do you mean?

MR COLLINS: Sorry, I didn't ask further

questions of Mr Lewis about that particular

document in which clearly character is

asserted.

HIS HONOUR:  It suddenly dawned on you.

MR COLLINS: Yes, that is right.

HIS HONOUR: It can happen to anyone,

Mr Collins, but perhaps not as bad as this.

MR COLLINS: It was rather stark.

HIS HONOUR:	I am sure it came as a great
shock to you.	I accept that.

The third explanation proffered, again

inconsistent, appears at page 773, if we could hand

that to the Court. We have summarized that at the

bottom of page 19 of the application book:

He had read the testimonial to the jury not in

order to put his client's character in issue,

but merely to bolster and re-establish the

credit of the witness Lewis - see transcript

at page 773.

And half-way down the page Mr Collins said:

Yes, Your Honour, it is to be remembered the

situation here is that we have Mr Lewis, who

is a Crown witness, and he had clearly given

evidence-in-chief and had been subject to

cross-examination.

HIS HONOUR:  Yes.

MR COLLINS:  Now, what the defence in relation

to Mr Lewis' utility was, that he was a

business associate of Perrier.

HIS HONOUR:	Yes, I understand that.
MR COLLINS:	They had this gem business, and

in relation to his credit, that had been, that

is, Lewis's credit had been perhaps somewhat

shaken. Now, what in fact my

cross-examination of Mr Lewis was designed to
do was to in fact re-establish, as best I

could, his, as it were, good character.

HIS HONOUR: Lewis's good character?

Perrier 30/8/91

MR COLLINS: Lewis's good character so that

the business he had with Perrier could be seen

to be legitimate.

That is version No 3.

McHUGH J: Well, it is difficult to understand how that

could be because the letter was written by Lewis

himself, was it?

MR WEINBERG: It was, Your Honour, and the letter asserts

that -

there had been long-standing business

relations between the two, and that Mr Perrier

was a man of honesty and reliability; he knew

gems, and he had a known repugnance for

anything to do with -

and then the last word was not read. But in any

event, that was version No 3. Version No 4 appears

at page 826 if we could hand that to the Court - I

am taking these a little out of order - and this is

subtly different from version No 2, where

His Honour has again, at the top of page 826, taken seeking to re-establish the credit of Mr Lewis.

His Honour described that as "nonsense". Then

Mr Collins goes back to the letter and says this:

What I had in mind was in relation to

Mr Salek's cross-examination, the point of his

suspicions of - I read from page 717 -

and a quote is read.

What had been raised there was an attack on

Lewis' credit and it also raised his statement

wherein he had mentioned to Gaul that he was

suspicious of Perrier, and what I was seeking

Mr Lewis to be was a business associate who

was setting up a genuine gem stone business.

What I was after was Mr Lewis to rebut that

position of him being suspicious of Perrier

and I sought to do it by leading or giving

that letter to him and then to say you are

prepared to say that of him after you knew

that he had been charged with this drug

dealing so that to rebut that - - -

HIS HONOUR:  I can't believe it, I simply

can't believe it.

MR COLLINS:  Your Honour, that is seeking his

opinion.  As a by the by, it raises character

because what is not sought is the character of

Perrier.  What is sought, what I was driving

Perrier 26 30/8/91

at is the opinion that Mr Lewis had of Perrier

in relation to his business dealings so that

what is not being placed before the jury for

the purpose of this trial is Perrier's

character at all. I never intended to do that

in any shape or form.

That is version No 4.	And version No 5 was
referred to by my learned friend at page 814.	It

is confusing, but at page 814 it appears that what

Mr Collins was saying to His Honour was, in a very

curious way, that he had been given instructions by

his client to put his character at issue which he

had resisted or opposed most strongly. His Honour

asked him:

Why would you want to place him in?

MR COLLINS: Very obvious reasons -

and they were obvious to Mr Collins perhaps. It

may be that Mr Collins' first answer is the closest

to the truth, that he simply apprehended that his

client's character was going to be put in by the

co-accused. In any event, and for that reason, as

that was going to happen, it was better to elicit

some evidence of good character from someone who

knew him and who was called by the Crown as a

witness.

The short answer is we do not know. The

learned trial judge was unable to make a real

finding as to why Mr Collins had done what he had

done, and the Full Court was unable to make any

such finding.	It said it simply did not know at
the end of the day.	But there are some

explanations that are put forward which are quite

inconsistent with the material contained in this

affidavit, and that makes this case, in our

respectful submission, not an appropriate vehicle

for the grant of special leave in so far as my

mistake or error, because we do not concede that	friend seeks to argue the second point regarding
there was relevantly a mistake or error, save that
Mr Collins thought, mistakenly, that he could get
away with doing what he did with impunity. That
was a mistake. It turned out that he could not do
so, but he did not pick up the wrong document; he
did not read the wrong document; he did not read a
document, the contents of which he was unaware of.
He placed, in our respectful submission, the contents of that document before the jury
deliberately. He did not appreciate perhaps that
he would be unable to do that with impunity. That
is a mistake. But it is not the kind of mistake,
in our respectful submission, that the law properly
has regard to in dealing with that second point.

Perrier 27 30/8/91

If we can come back to the more fundamental

point that my friend raises which, if it could be

made good, would be a matter we would concede for

the grant of special leave, namely, whether there

is some general absolute principle which says that

one does not put one's character in issue in any

relevant sense unless one places before the jury

either admissible material or material which a jury

is entitled to have regard to. My friend puts that

as a proposition of law.

We take issue with him. We say that is not a

proposition of law, and the rule is simply not so

circumscribed. We say that the matter is in

reality far from doubtful. It does not call for

this Court to deal with the matter, or grapple with

the matter, because the principle adopted by the
Court of Criminal Appeal in Victoria in this case

was, in our respectful submission, plainly correct, and that was that there are other ways in which one

can place character in issue without calling or

adducing admissible evidence, without placing

before the jury material upon which a jury is
lawfully entitled to act - if I can insert the word
"lawfully".

We say that because if the law were otherwise, the law would be absurd. There are situations

which one can easily contemplate which do not

require the far-fetched arguments of counsels'

impropriety that my learned friend referred to.

For example, assume an unrepresented accused who

addresses the jury and informs the jury in the

course of his closing address that he has never

been in trouble with the law and he has no prior

convictions. The law would truly be "an ass" if

the Crown were not permitted to rebut that

assertion by calling evidence of bad character and

prior convictions, and if the accused were entitled

to say, "I have not placed any admissible evidence

or material upon which a jury is entitled to act
before the jury.	My address is not evidence, and

closing address is supposed to be confined to

argument rather than placing facts before the

jury." That would be, in our respectful

submission, absurd.

In the same way, counsel could conce_ivably open to the jury that his client has no prior

convictions, or in his closing address say so, not out of impropriety, but out of ignorance. Counsel

might simply get that wrong.

McHUGH J: Well, this troubles me though, Mr Weinberg. Does

it become an issue in the case if there is no

evidence? That is not to say that there is no

remedy, such as the discharge of a jury, and in

Perrier 28 30/8/91

certain cases such as the case of a prisoner who

repeated this sort of thing, it may even be

contempt. But is it an issue in the trial?

MR MERKEL:  It is a handy way to be able to discharge a

jury, Your Honour, if one feels that one has not

got the best run from the judge or one feels that

the trial is not going terribly well. Your Honour, our submission is the law must provide a remedy for

a situation in which a false picture has been

presented to the jury by a false assertion of good

character, irrespective of whether that be by way

of admissible evidence.

In our respectful submission, there are many

other examples. I have given only a couple,

Your Honour. If I could give another: a question

asked of a witness, but not answered by the

witness; a question asked of a witness knowing

that the witness is unable to answer the question.

For example, this question asked of a witness who

might have known the accused for a long time but is

aware of his prior convictions, "You are not aware

of any prior convictions that my client has, are

you?" Answer, "No". Now, if my friend's argument

is correct, that is not putting character in issue

because there is no evidence led from a witness

that the accused has no prior convictions. It is a

cleverly worded question which simply elicits from him that he is not aware of any prior convictions.

Again, that would be absurd, in our respectful

submission. The law is broader, in our respectful

submission, than that. In the 19th Century when it

was perhaps more robust than it is today, and I do

not invite this Court to turn it back to the

19th Century and make it robust again, the wearing

of medals was held to constitute a putting of

character in issue by an accused in the dock. No

doubt people today might take the view that that

need not necessarily be an assertion of good

character, but in any event, it was thought to be

capable of amounting to an assertion of good

character at that time. There are judges who have

told accused persons in the dock to remove from

their person large and visible religious artifacts

or crosses on the basis that they might be exposing

themselves to an assertion of good character by

doing just that.

In our respectful submission, the question is:

what picture has been presented to the jury by the
totality of what has occurred? This was not a mere
statement by counsel. This was a handing of a

testimonial to a witness who was invited to read

it, and it was turned back to counsel and counsel

commenced to read it. In practical terms, in our

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respectful submission, a jury would have been well

entitled to assume that what was being done was to

read to the jury something that that witness would

adopt or would be about to say about this

particular man, and it was a very strong

testimonial.

If principle is not sufficient, then we submit

authority is. There is a passage which was glossed

over by my learned friend taken from the judgment

of Lord Goddard, the Chief Justice in Butterwasser,

and we would ask the Court to come back to it at

page 6, because we submit that Lord Goddard, in

formulating the proposition, did so with care and

did so accurately, and did so in a manner which is

wholly correct. It is at page 6 of the judgment of

the Court of Criminal Appeal in Butterwasser's case

at page 6, where His Lordship said at about ten

lines from the top:

that ever since it became the practice, as it

has been for the last one hundred and fifty or

two hundred years, of allowing a prisoner to

call evidence of good character -

and then appears the word "or" -

or where he has put questions to witnesses for

the Crown and obtained -

and then appear the words "or attempted to obtain

admissions from them" -

that he is a man of good character, in other

words, where the prisoner himself puts his

character in issue, evidence in rebuttal can

be given by the prosecution to show that he is

in fact a man of bad character.

Now, we submit that those words and that

formulation, upon its ordinary construction,

suggests a desire to encompass precisely what we

have put to the Court that the attempt, by asking a

question which suggests the accused is of good

character, to elicit or present to the jury the

image of a person of good character, is sufficient,

can be sufficient, to constitute putting character

in issue before the jury. There are many cases

where the courts have spoken of evidence of good

character being placed before the jury, but that

formulation is adopted because on the facts of

those particular cases, and in 99 cases out of 100,

that is exactly what will have occurred. But the

principle, in our submission, must be broader than

that and must encompass other mechanisms by which

that impression is placed before the jury.

Perrier 30 30/8/91

Now, it is our submission to the Court that

in the particular circumstances of this case what

was placed before the jury was an impression, and a

strong impression, of a person who was honest and

reliable, matters that go to that person's credit,

and he was after all going to give an unsworn

statement or unsworn evidence later or whatever,

and also that he would have a known repugnance for

anything associated with - the last word not read;

it was open to the trial judge and open to the

Court of Criminal Appeal to conclude that a jury

would have found that testimonial as likely to be

one that was prepared for the purpose of this

trial, by this witness, and that what had occurred

was equivalent to the witness having in fact given

that evidence.

And if he had, in our respectful submission,

if the question had been asked, the witness had

actually adopted what was in the testimonial, in

our submission there would have been only one

answer to the question whether good character had

been put in issue and whether harm had been done to

the prosecution case, entitling the Crown to

redress that harm by showing that the accused was

falsely claiming a character to which he was not

entitled.

That is all this case is about. It is about

whether what occurred was practically equivalent to
having gone one step further and got the answer.

Now, it is our submission that this Court is not in

a position to know, and certainly should not act

upon the affidavit of Mr Collins, whether what he

says in that affidavit constitutes the true basis

upon which he did what he did. He was mistaken; he

was mistaken certainly in terms of producing a

result which was bad for his client.	We concede
that readily.	But that happens in many cases,

where people put good character in issue and find

that the consequence of doing so is damaging so far
as their case is concerned.	The applicant is

entitled to a fair trial, but a fair trial means a

fair trial conducted in accordance with the law and

in accordance with the rules which govern the

conduct of such a trial.

There was nothing in the reasons for judgment

given by His Honour the learned trial judge which

indicates that he exercised his discretion

improperly. He was conscious of the damaging

nature of these convictions. But His Honour took

the view that in the circumstances, the other

avenues suggested by my learned friend were not

appropriate and would not have produced justice as

between the Crown and the accused. In particular,

His Honour had a problem, because one of the

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co-accused had actually led evidence of good

character. So His Honour would have had to direct

the jury as to the law relating to good character

so far as that co-accused was concerned, but

His Honour was concerned about the effect of having

to give a full direction about good character later

on and at the same time a direction to the jury to

disregard what they had heard about this man's

character in this particular situation.

How a judge deals with this problem, in our

submission, is very much a matter for the trial
judge; very much a matter of discretion; His Honour

was greatly advantaged in having been there, having
ascertained for himself the effect of reading that

letter to the jury and the harm that His Honour

assessed had been done to the prosecution case.

There were no irrelevant considerations taken into

account by His Honour in the exercise of his

discretion and it must particularly be borne in

mind that the applicant bore the onus of showing

why the discretion should be exercised in his

favour and had to show, not merely that the

evidence was prejudicial, but that its prejudicial

nature was such that it substantially outweighed
whatever benefit he might have gained from the

adducing of the material before the jury.

Your Honours, I believe that those are the

submission we would make in opposing the

application for special leave.

DAWSON J: Thank you, Mr Weinberg. Yes, Mr Merkel.

MR MERKEL:  In respect of the affidavit, in our submission

the Court should have regard to it. It is

consistent with the findings of the trial judge

when the Full Court - - -

McHUGH J: It has one problem for a start, that we do not

admit fresh evidence.

MR MERKEL:  Your Honour, in our submission it flows from and

is consistent with what the learned trial judge had

found concerning these matters. The problem that

has arisen before this - and we say it is fully

consistent with the findings of the learned trial

judge that I have taken the Court to at the outset

- the problem before this Court was that it was suggesteq in the Full Court that there may have

been some ambiguity about these events which we say

do not follow from what the trial judge found, where His Honour found it was an inexplicable

mistake. The transcript passages my learned friend

referred to make the trial judge's comments more

than clear as to that. It was inexcusable and

there was no rational explanation for it. There

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was no suggestion it was done on the basis of

instructions. We wanted to file it because the

Full Court had suggested there may have been

something other than that which was before the

trial judge and in my learned friend's submissions

it was suggested that there were some other

motives.

We say that the issues are raised fairly on

the trial judge's findings which are fully

consistent with that affidavit. We wanted to

remove any suggestion whatsoever that anything done

was done on instruction and we do not believe that

suggestion is reasonably open on any of the

material. The central point, however, is that my

learned friend's submissions on the fact that a

jury could be expected to act upon or have regard

to something other than the evidence or material it is entitled to act upon raises, we say, a pandora's

box the other way. He says that the unanswered

question, a half-question, conduct before a jury

which may be matters that they are not entitled to

act upon at all, can somehow now all be said to

have been able to result in character being put in

issue.

McHUGH J:  Butterwasser suggests that it can be by a

question, even if you do not get the answer, and

after that it is a question of the discretion of

the trial judge under the ordinary discretion

available in a criminal case.

MR MERKEL:	With respect, Your Honour, we would say that that is precisely what Butterwasser does not say.
What Butterwasser is about is what the endeavour
principle is about, where you put a question, attempting to get an admission as to good
character, and you get the wrong answer. You do
not get the admission, but you do get an answer.
In Butterwasser, the passage my learned friend took
you to, it was not suggested that there was not an
answer; it was the same point that I had raised
earlier and the Full Court had raised, where you
put questions to witnesses for the Crown and obtained or attempted to obtain admissions from
them that he is a man of good character.

All of the cases that talk of an endeavour to

put character in issue are not an endeavour to put

character in issue, an endeavour to put good

character in issue.	You do so when you get the
wrong answer.	But we say there is no suggestion

in any of the cases that an unanswered question has

ever been held to have put character in issue. Yet

we do not have that.	We have an incomplete
question; a question that was never asked.	So we

say that there is just no warrant in any of the

Perrier 33 30/8/91

cases for a jury to be expected to act on anything

other than evidence and we say that my learned

friend's submission would carry with it conduct in

court, half completed questions, questions raised

and then not proceeded with, we say that the

pandora's box he opens is a very severe and very

serious one indeed. On the other hand, the extreme

examples of counsel being guilty of improper

conduct, being putting character in issue, we say

these are the matters that are raised for

consideration in the present case. We say that

they are issues of principle which the courts have

not addressed and we say that if his submissions

are correct, the criminal courts can rapidly become

a mine field for the unwary, the half incomplete

question and so forth. We say they are matters of

importance which this Court should address.

We also emphasize the consequences, of course,

of the miscarriage that resulted in the present case in the passages he read out, probably more than any other, explain the submission that we put

at the outset, that it was inexplicable,

inexcusable and unauthorized conduct which, in our

submission, should not be visited on the accused

having to, in effect, suffer a life sentence on a

trial that no one could say was a fair trial in the

result, in the light of what happened.

If the Court pleases.

DAWSON J: In the particular circumstances of this case, we

are not persuaded that the decision of the court

below is attended with sufficient doubt to warrant

the grant of special leave. Special leave will be

refused.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

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