Petty v The Queen; Maiden v The Queen

[1991] HCATrans 53

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl of 1990

B e t w e e n -

LESLIE DAVIDSON PETTY

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S13 of 1990

B e t w e e n -

STEPHEN ARTHUR LESLIE MAIDEN

Applicant

and

THE QUEEN

Respondent

Applications for special leave

to appeal

Petty 27/2/91

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 FEBRUARY 1991, AT 10.16 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, QC:  May it please the Court, I appear with

my learned friend,	MR P.J. PEARSALL, for the
applicant, Maiden.	(instructed by Arden
Associates)

MR M.A.M. MACGREGOR, QC:  May it please the Court, I appear

with my learned friend, MR K.P. COOREY, for the

applicant, Petty. (instructed by Turner Freeman)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friends, MS W.L. ROBINSON, QC and

MR P.G. BERMAN, for the Crown. (instructed by

S.E. O'Connor, Solicitor for Public Prosecutions)

MR HIDDEN:  Your Honours, subject to the Court's

concurrence, it was agreed between counsel that
although the application of Petty is earlier in
time than that of Maiden and appears first on the
list, as the issue raised really arose in the case

against Maiden, that we should commence the

argument.

MASON CJ: Yes, that is acceptable, Mr Hidden.

MR HIDDEN: If the Court pleases. That being so,

Your Honours, we hand up an outline of argument which is a joint outline on behalf of both

applicants, Your Honours.

MASON CJ: Yes, Mr Hidden.

MR HIDDEN:	May it please the Court.
MASON CJ:	I should say, on reading the outline of argument,

it seems that you are not raising any question in

connection with the difference of opinion that

manifested itself in Wilde.

MR HIDDEN:  The honest answer to that, Your Honour, is that

we had not intended to. If, however, Your Honours

would permit us, we will turn to those differences

of opinion in the course of argument.

MASON CJ:  The reason why I make that comment to you is that

when I looked at the affidavit in support of the

application it did seem that a question was going

to be raised to you in connection with Wilde and,

after all, we need to know what your special leave

points are.

MR HIDDEN:  Yes. Perhaps I might turn to the affidavit.

The affidavit in relation to the applicant Maiden

as I understand it, Your Honours, is that of

Peter John Pearsall, now my learned junior, which

commences at page 248 of the application book

and the - - -

Petty 2 27/2/91

MASON CJ:  I see (7) raises - that is on page 251 - a number

of question in connection with the .....

MR HIDDEN:	Yes, Your Honours, that is so.
MASON CJ:	And Mr Justice Priestley's judgment applied the

view expressed in the joint judgment.

MR HIDDEN: Yes, that is so, Your Honour.

MASON CJ: In what?

MR HIDDEN:  Our submission will be, if the view of the joint

judgment be more generous to the application of the

proviso than the view of the minority, then even on

the view of the joint judgment, the proviso ought

not be applied here, particularly if the major
argument to be advanced in this application be
sound. Basically, as Your Honours know, what

happened was that the Court of Criminal Appeal was

of the view that the re-examination of the witness

Crawley was admissible and that the directions

given in respect of it were correct to some extent,

but went too far and amounted to impermissible comment on the fact that a matter had not been

raised before, in effect on the exercise of the

right to silence.

Now, it is our submission that, even on the

Court of Criminal Appeal's view, the error detected

by it was so fundamental, given the issues raised

in the case, that the proviso ought not to have

been applied, but a fortiori, if our argument on

this application be sound, that is that the

re-examination should not have been permitted in

the first place and that the directions of the

learned trial judge, Mr Justice Hunt, were wholly

erroneous, then there is clearly no place for the

application of the proviso.

Undoubtedly, Your Honours, that submission is

made with even greater strength if the view

expressed by Your Honours Justices Deane and

Gaudron in Wilde be preferred.

MASON CJ: Yes, but if you look at page 253, the last reason

given for the grant of special leave to appeal, it

appears that the draftsperson of the affidavit was

accepting the majority view in Wilde rather than

asserting that the minority view in Wilde - - -

MR HIDDEN: Yes, that is so, Your Honour. I not having been

the draftsperson, Your Honour, as I understand it,

the submission made by the affidavit is that on the

majority view if this is not a case where it might

be said that the accused lost a chance of acquittal

fairly open to them then it is a case in which the

Petty 27/2/91

departure from the proper conduct of a trial is so

fundamental that the proviso ought not be applied.

Your Honours, both applicants were found

guilty of murder in a trial conducted in the

Supreme Court at Grafton before His Honour

Mr Justice Hunt. Maiden, for whom we appear, had

been charged simply with murder; Petty had been

charged with murder or, in the alternative,

accessory after the fact to murder. After a

lengthy trial both were found guilty on

20 September 1988 and both were sentenced to penal

servitude for life. Both appealed to the Court of

Criminal Appeal of New South Wales and by a

judgment of 15 December 1989 their appeals were

dismissed.

Now, Your Honours, the facts are adequately sketched, we would submit, in the judgment of the

Court of Criminal Appeal which commences at

page 195 of the application book. Suffice it to

say the Crown case was that the two applicants, by

a subterfuge, lured the deceased into remote bush

land in the north coast of New South Wales where

the deceased was killed and buried.

How that was done and what the involvement of

each applicant was was disclosed mainly by evidence

of admissions said to have been made by both of

them to police and, indeed, to a private citizen.

Your Honours, the applicant Maiden, for whom we appear, who is referred to in the judgment of

the Court of Criminal Appeal as the first appellant

made a record of interview and that is summarized

at page 198 of the application book. The effect of

his record of interview was - this commences at

line 14, Your Honours - that there was an intention

to kill the deceased White; that Petty announced

that to Maiden in the bush land and gave a reason

for wanting him to kill, that appears at line 15

and line 16, and according to the record of

interview Maiden claimed he wanted nothing to do

with it but that Petty said:

'Just throw him on the ground' -

Maiden had a cigarette and as the deceased

approached Petty said -

'Now' -

he and Maiden pushed the deceased over and left the

scene and when he came back the deceased was

apparently already dead by the hand of Petty and

the two of them buried him.

Petty 4 27/2/91

Now, Your Honours, in the trial Maiden did not adhere to that account although he conceded having

given it. He said he gave that account to the

police but it was false and deliberately false and

was invented by him as an act of vengeance against

Petty because of an issue between them over a lady.

The truth, said Maiden, was that the deceased had

attacked him and then in the course of that attack

and in defending himself he had placed the deceased

in a headlock which somehow by misadventure

apparently caused his neck to break. In other

words in the trial, Your Honours, the deceased

Maiden said in effect that the act causing death

was his but it was not accompanied by the requisite

intent and was by misadventure, and he said that

Petty appeared during the course of this fracas and

came to his aid.

Now, Your Honours, it is of some importance,

for the purpose of this application, to look also

at the record of interview made by Petty, and that is summarized at page 199 of the application book.

It would seem that the effect of Petty's record of interview was something similar to Maiden's case in the trial, that is, that he, Petty, came to the

scene where Maiden and Mark White, the deceased, were, and saw the following, and this appears at

line 16:

Steven -

that is Maiden -

was laying on his back with Mark -

that is the deceased

on top of him. Steven had his arm around

Mark's neck and a scissors hold with his legs

around Mark, I think around his legs. As soon

as Steven knew I was there he started yelling

at me to shut Mark up and help him hold him."

And, according to the record of interview, Petty

said that in the course of this procedure the man,

Mark White, died and was buried.

Now, Your Honours, there was at the trial a

witness known as James Crawley. In fact, he had a

fairly lengthy name; his full name was Melvyn James

John Mark Crawley, but he was referred to as James Crawley consistently throughout. His evidence was

to the effect that a couple of months later, the

incident causing death having occurred in

November 1987, in January 1988, he was in the

company of the two applicants at Yass in the State

of New South Wales and the effect of Crawley's

Petty 27/2/91

evidence was that in a conversation with him the

applicant, Maiden, admitted having, along with

Petty, killed the deceased, and the effect of

Crawley's evidence appears at the bottom of

page 200 of the application book, commencing at

line 24. He said that Maiden described how the

three of them had gone into the scrub; Petty had

said "Go", and that he, Maiden:

had then grabbed Mark White around the throat

from behind and then with his other hand

pushed Mark White's head sideways in an

attempt to break his neck, and that this had

made him unconscious.

According to Crawley, Maiden went on to say that

Petty had then attempted to break Mark White's neck

and apparently succeeded because finally he was

dead and both buried him.

Now, Your Honours, in the committal

proceedings Crawley gave evidence and was cross-

examined and that evidence is extracted in the

application book commencing at page 254. Suffice

to say Crawley was cross-examined about details of
the evidence of that conversation and the

circumstances of it being made and where it was

made and it was put to him that the conversation

was a fabrication - did not occur. There the
cross-examination ended at the committal

proceedings.

In the trial however, Your Honours,

cross-examination of Crawley was to this effect,

that there had been a conversation between Maiden

and him on the occasion in question, but at a

slightly different place, in fact, not outside a

motel where Crawley said it was but while the two

of them were walking down a road and that what

Maiden said to Crawley was quite different from

what Crawley had said in evidence. What was put to

Crawley was that Maiden gave Crawley an account

consistent with his account in the trial, that is

that he was acting in self-defence and that the

death of the deceased was by misadventure in the

course of holding him in a headlock.

Your Honours, the Crown sought to re-examine

Crawley to establish that that version of the

conversation had not been put to him in the re-examination was admissible. His Honour's
committal proceedings. Objection was taken to that
by both counsel then appearing in the trial and His

reasons for that ruling appear at page 41 and

following of the application book but it is

probably sufficient, Your Honours, t9 take

Petty 6 27/2/91

Your Honours to the judgment of the Court of

Criminal Appeal where the relevant parts of it are extracted.

The major grounds of the appeal was that this

re-examination was wrongly admitted.	At page 205
of the application book the Court of
Criminal Appeal noted that Mr Justice	Hunt:

decided to permit this evidence to be given.

In giving reasons for this ruling, he first

observed that it was "clear from the

depositions of the committal proceedings that

this particular version of the conversation

alleging that the death was an accident was

not put to the witness.

And His Honour then continued and there is

extracted, Your Honours, at page 205 to page 206

probably the relevant part of His Honour's judgment

and the effect of His Honour's judgment was that His Honour accepted that an accused person had a

right to silence and that an inference of guilt

could not be drawn from the exercise of that right.

In that respect His Honour referred to the decision

of this Court in Woon v Reg, to which it may be

necessary for us to refer a little later. His

Honour went on to say, and this is at line 24:

I should emphasize that my decision to allow

this re-examination does not depend in any way

upon any failure of counsel appearing for an

accused person to comply with the rule in

Browne v Dunn at committal proceedings. I do

not intend to enter into that vexed question

at all. Nor does my decision depend in this

particular case upon the inference to be drawn

as to any instructions which the accused had

given to his solicitor in the committal

proceedings.

And His Honour contrasted Reg v Robinson, which I

mention in passing, Your Honours, was a Queensland

case simply dealing with the failure to put certain

things to Crown witnesses at the trial, not at

committal proceedings. His Honour went on to say

at page 206:

My decision to allow this re-examination does not depend upon the mere fact that this explanation was not offered at the committal.

What it does depend upon is the fact that the

accused Maiden offered this explanation only

on the seventh day of the trial, at a stage

when it cannot now be investigated fully.

Petty 27/2/91

Now, Your Honours, we pause to remark that, as we

understand the course of the trial, in the trial

itself there was no opportunity to raise Maiden's

defence until the witness Crawley was called and

that did not happen until the seventh day of the

trial and that was no fault of the accused. That

was the order on which the Crown happened to call

witnesses.

TOOHEY J:  I am not sure that I follow that, Mr Hidden, when

you say that there had been no opportunity until

then to raise Maiden's defence.

MR HIDDEN:  What I mean, Your Honour, as I understand the

course of the trial, there had been no witness,

prior to Crawley, to whom Maiden's explanation of

accident could have been put. It was not until

Crawley was called, to whom Maiden said he had

claimed the defence of accident, that the matter of

accident could be raised at the trial by
cross-examination, as we understand the course of

the trial, Your Honours.

BRENNAN J: 

The conversation that Maiden then raised as

having taken place between himself and Crawley,
they were the only parties to it?

MR HIDDEN: 

Yes, Your Honour.

BRENNAN J: 

What, if any, investigation was requisite?

MR HIDDEN: Well, precisely, Your Honours, indeed the Court

of Criminal Appeal dealt with this. The Court of

Criminal Appeal itself was of the view - and, with

respect, we agree - that the conversation itself

could not have been further investigated nor could

the assertion of accident because, in effect, Petty

had raised that in his record of interview, as we

summarized to Your Honours earlier. Indeed, now

that Your Honour Mr Justice Brennan has raised that

I should perhaps turn to that very point of the

judgment of the Court of Criminal Appeal with which
we respectfully agree.	Your Honour, may I return

to that when we have found it.

Certainly, our submission is that if any

investigation were possible in respect of the

assertion of death by misadventure then it ought to

have been done after Petty was interviewed because,

in effect, he raised it, and of course no further

investigation was possible as to the terms of any

conversation between this applicant and Crawley.

Now, Your Honours, very shortly, our submission

is - - -

Petty	27/2/91
MASON CJ:	If you want to refer the Court to the passage in the judgment of the Court of Criminal Appeal, it is
at page 213.
MR HIDDEN:	Thank you, Your Honour. This was in the context of the Court of Criminal Appeal considering
His Honour's directions to the jury subsequently.
The Court said, at line 20, Your Honours:

Thus what could not be fully investigated was

either the first appellant's account of the conversation with James Crawley or the case upon which he was relying at the trial.

Although for practical purposes there may not

have been much difference between the two

concepts, it is necessary to have the
difference in mind in considering what it was

his Honour was referring to when saying there

could not be full investigation of it.

DAWSON J:  What do they mean by saying there could not be a

full investigation? What could not be done?

MR HIDDEN:  What did Mr Justice Hunt mean by that,

Your Honour?

DAWSON J: Well, I mean, what would they have done if they

did not prevent it from being - - -?

MR HIDDEN: Yes, precisely, Your Honour. In our respectful

submission, nothing could have been done.

DAWSON J:	What did Mr Justice Hunt have in mind? have had something.	He must
MR HIDDEN:	I do not know, Your Honour.	Your Honour, with

respect, where we think Mr Justice Hunt's view came

from, is from a line of cases dealing with the

raising of an alibi for the first time at trial,

and it seems to be from that line of cases that

His Honour has extracted that passage.	Now, those
cases, we submit, are clearly distinguishable from
a case such as this.	Even if further investigation

were possible, they are still clearly

distinguishable from a case such as this but, a

fortiori, when no further investigation is

possible.

TOOHEY J:	What differences, Mr Hidden, were there between Crawley's account of where and in what
circumstances the discussion with Maiden had taken place and Maiden's account?

MR HIDDEN: Apart from what was said, Your Honour, only

where Crawley said that the two were sitting on a

bench outside a motel in Yass where a group of

people had been staying. Maiden said that the

Petty 9 27/2/91

conversation they had was while the two of them

were walking down the highway away from the hotel

for the purpose of getting some petrol apparently

that Mr Petty wanted.

TOOHEY J: But, on either account, were there only two

persons present?

MR HIDDEN:  Yes, as we understand it, Your Honour.

Your Honour, my learned junior will just checked

that with some care, but as I apprehend it, yes.

TOOHEY J: Could I just ask you this, having interrupted

you? The defence case, I take it, took the form of

unsworn statements by each of the accused, and was

that the entirety of it?

MR HIDDEN:	Yes, Your Honour.
TOOHEY J: We do not have those statements.	Is it

presumably not thought that we ought to have them?

MR HIDDEN:  Maybe Your Honours should. I note also

Your Honours do not have the records of interview

and if Your Honours would wish those my learned

friend has copies of all that. Your Honours, I

take it, it was considered by those who drew the

application book that the summary of the cases and

the summing up would be sufficient to convey to

Your Honours the nature of the defence and what was

said, but it may be advisable for Your Honours to

have the whole of those documents.

TOOHEY J: Yes, it may be useful, nevertheless.

DAWSON J:  Anyway, on this point, the Court of Criminal

Appeal has said there was another investigated, and

that is the basis of what they have said?

MR HIDDEN: That is so. In effect, Your Honour, yes.

MASON CJ:  You have got to come now to the ground on which

the Court of Criminal Appeal said the

re-examination was admissible.

MR HIDDEN: Yes, indeed, Your Honour.

DEANE J:  Mr Hidden, on the committal, did your client

depart from the assertion that the deceased had

been killed, but killed by the other person?

MR HIDDEN:	At the committal?
DEANE J: Yes.	I mean, is that not of critical importance

here in terms of whether the fact that he did not

suggest an accident at the committal was

admissible?

Petty 10 27/2/91

MR HIDDEN:  Your Honour, as I understand it, and I will

confer with my learned junior to be sure of this,

at the committal the applicant gave no evidence and

made no statement and, as I understand it, no

witness was cross-examined to suggest the defence

of accident although, again, Your Honour, I suppose

the only witness who could have been was Crawley.

DEANE J:  I am not suggesting it is necessarily the end of

the matter but it is wrong to talk of the right to

silence in terms where your client has made an

allegation that the man was murdered, there failing to cross-examine to suggest accident is relevant to

the maintenance of the allegation as to how the

deceased died. It may not affect the result of the

argument but it does put a different complexion on

what has to be argued about.

MR HIDDEN:  Your Honour is referring to during the committal proceedings?

DEANE J: Yes, when no doubt evidence of the confession was

given -

MR HIDDEN:	Yes.
DEANE J:	- - - and in that context there is no departure by the accused of his allegation that the deceased had
been murdered.

MR HIDDEN: No. Well indeed, Your Honour, as I understand

it, there was no departure from the allegation to

the police but given that he made no statement and

gave no evidence at the committal which is the

common practice, it would seem that the only

witness where there might have been any opportunity

to raise in cross-examination the suggestion that

the death did not occur as appeared in his record of interview would have been the witness, Crawley, yes.

DEANE J:  I follow that, but what I am suggesting to you is

that in a situation where your client has a

standing allegation of murder, the question is

whether it is permissible to bring out that on the

committal proceeding he did not suggest by the
conduct of the proceedings that that allegation was

wrong and it was only when one comes to the trial

that, for the first time, he suggests accident.

Now, that does not seem to me to fall neatly into

the idea of a right to silence.

MR HIDDEN:  Your Honour, in our respectful submission it

does because - - -

DEANE J:  Let me not take you out of your course.

Petty	11	27/2/91
MR HIDDEN:	Thank you, Your Honour.	Our submission, as

indeed outlined in the outline, is that the right

to silence extends to the committal proceedings

themselves in the sense that there is no obligation

there to raise any matter of defence which is

subsequently raised at the trial and no inference

adverse to the accused - and I emphasize that, Your

Honours - not the inference of guilt but no inference adverse to the accused can be drawn from the fact that a matter of defence raised at the trial was not raised in the committal proceedings,

anymore than any such inference would be available

if that matter of defence had not been raised with

investigating police when interrogated.

BRENNAN J:  Why do you put it on the right to silence? I

mean, the purpose of committal proceedings is to

see whether there is a prima facie case. Why does

one look to see whether or not in the committal

proceedings some statement was made or some

allegation put?

MR HIDDEN:  Indeed, Your Honour, that is an alternative way

of looking at it although perhaps that is itself a

facet of the right to silence. Certainly,

Your Honours, it is our submission that committal

proceedings are of an administrative nature, they

are proceedings in which the accused is given an

opportunity to cross-examine but is under no

obligation to do so and that if he does choose to

cross-examine he may do so selectively. He may

cross-examine as to some matters and not as to

others. He may raise some matters and not raise

others and yet may raise further matters in the

trial and no comment is permissible upon the - - -

DAWSON J: But you go further and say he may be inclined to

cross-examine for tactical reasons?

MR HIDDEN:	Yes, indeed.
BRENNAN J:	And usually does.
MR HIDDEN:	Yes.  I suppose it has to be said in all

honesty, Your Honours - I do not suggest this is
such a case - that not uncommonly in committal

proceedings cross-examination is loosely based at

that stage on fairly loose instructions too. That

is one of the practical problems that frequently

occurs with committal proceedings.

TOOHEY J: But the gravamen of this case does not lie in a

failure to cross-examine. It lies in the fact that

there was cross-examination, does it not?

MR HIDDEN: There was cross-examination, Your Honour, but

not upon this issue, the issue that there was a

Petty 12 27/2/91

conversation with Crawley different from the one he

claimed in which death by misadventure was raised.

That was not put. However, it was put that the

conversation to which Crawley deposed did not

happen; but certainly, Your Honours, we say, "So

what?" from the point of view of the question of

this conversation being raised for the first time

in the trial.

TOOHEY J:  But as the defence ultimately emerged there was

an admission of a conversation at the time and in

the circumstances more or less deposed to by

Crawley but not as to the contents.

MR HIDDEN:  Yes, that is correct, Your Honour, yes.

DAWSON J: It really comes down to this in the end, that the

evidence which was sought to be adduced by way of

re-examination was simply probative of nothing.

MR HIDDEN:  Yes, correct, Your Honour.

DAWSON J: That is to the point and should it not have been

omitted for that reason.

MR HIDDEN:  Yes. Your Honour, there is a long line of

authority on the right to silence generally, in

respect of interrogating police and before

committing magistrates, by which Your Honours may

or may not be assisted. Our submission is that

where the expression used by Mr Justice Hunt seems

to have come from there are a line of cases dealing

with alibi, in which it has been held thate where

an alibi is raised for the first time at a trial it

is permissible for the judge to point out that it

was raised for the first time at the trial, no more

than that; or maybe to say it was unfortunate that it was raised for the first time at the trial, but the authorities are clear that the judge may not go

to the point of saying from the fact that it was

raised for the first time at the trial you may draw

an inference adverse to the accused.

DAWSON J:	What do you draw?
MR HIDDEN:	The reason why that direction is permissible, as

we understand the cases, Your Honour, is simply

that an alibi is something peculiarly within the

knowledge of the accused; something as to which he

bears an evidentiary burden, and something which

the Crown is, generally speaking, incapable of

anticipating, unless it does have prior knowledge

of it, and the effect of the direction is not to

comment adversely to the accused upon the failure

to raise it earlier, but really simply to say that

in assessing the weight of the alibi evidence you

will bear in mind that the Crown has had no

Petty 13 27/2/91

opportunity to answer it; the Crown has had no

opportunity to investigate.

DAWSON J:  So what?

MR HIDDEN: Well, I assume, Your Honours, indeed, with

respect, we do - - -

DAWSON J: Because it is not the duty of the accused to

assist the Crown?

MR HIDDEN:  No, indeed, Your Honour.

DAWSON J: So, what do you draw from that?

MR HIDDEN: Well, Your Honour, we are saying the most that

can be drawn from that line of authority is that.

DAWSON J:	What?
MR HIDDEN:	We submit, with great respect, even that is a

misdirection: but the most that can be drawn from

it is because an alibi is a matter peculiarly

within the knowledge of the accused, if it is

raised and there is no prior notice to the Crown, a

judge might be able to say, "Well, bear in mind,

ladies and gentlemen, the Crown has not had an

opportunity to check this - - -"

DAWSON J: That merely says the Crown is disadvantaged and

that has now be cured in most jurisdictions, I

think, by requiring notice about - - -

MR HIDDEN:  By the Crimes Act in New South Wales,

Your Honours, by section 405A of the Act, which now

requires notice; correct. All the authorities are,

as far as New South Wales is concerned, prior to

the passage of the addition of that section to the

Act. But, Your Honours, it is from that line of

authority, we suspect, Your Honours, that

Mr Justice Hunt arrived at this expression,

trial at a stage when it cannot now be investigated	"explanation offered only on the seventh day of the
fully". It seems to have come from the line of
authorities relating to alibi which relate only to
alibi, and which by their terms permit a very, very
limited direction, that is simply that the Crown
has been disadvantaged by not being able to check
it.

BRENNAN J: 

Mr Hidden, in New South Wales, does the formula

used by the committing magistrate follow the usual
term?

MR HIDDEN: 

Yes, Your Honour; section 41 of the

Justices Act? He must warn the defendant

that - - -

Petty 14 27/2/91

BRENNAN J: Nothing to hope for or fear, et cetera.

MR HIDDEN:  Yes, that is right. Not obliged to make any

statement, but anything he does say may be taken

down and may be given in evidence against him at

his trial. Yes, the standard form warning is

given.

BRENNAN J:  Not against him; used in evidence.

MR HIDDEN: Funnily enough, Your Honours, by the terms of

our section, the words "against him" are there.

DAWSON J:	They were always there originally.
MR HIDDEN:	Yes.
DEANE J:	Do we know whether submissions were made on behalf

of your client at the committal or did he just

concede it was a case to got to trial?

MR HIDDEN:  Your Honours, I can readily find that out. The

solicitor who appeared is present.	No,
Your Honour, no submission was made	that the case
was not a proper one for committal	- realistically,
no doubt.

Your Honours, just as to a matter which

Your Honour Justice Deane raised a little time ago,

I am instructed but I do not have the material with

me, Your Honours, that the doctor who was called by

the Crown at the trial - Dr Oettle - was called at the committal and that there was cross-examination of him exploring the possibility that the injuries perceived by him were consistent with accident or

misadventure. I do not have that material though,

Your Honours. It is here if Your Honours require

it.

Well, now, Your Honours we perceive that a

lengthy analysis of the authorities dealing with

the history of the right to silence and directions

which may be given where a defence is raised for

the first time at the trial, may not be necessary.

It is perhaps sufficient, Your Honours, to go to -

on the question of the direction which might be

given where an alibi is raised for the first time,

the line of authority seems to commence with R v

Littleboy, (1934) 2 KB 408.

In England the commencement of a modern line

of authority - it is not necessary to go to it,

Your Honours, I think - on the right to silence generally and directions arising from it, seems to

begin with R v Naylor, (1933) 1 KB 685. It is

Naylor that is consistently referred to through the

Petty 15 27/2/91

authorities thereafter. Again, Your Honours, it is

probably not necessary to go to it in terms.

MASON CJ:  Do any of these right to silence cases deal with committal proceedings?

MR HIDDEN: Naylor itself did, Your Honour. Perhaps we

should take Your Honours to Naylor. Naylor was a

case in which the accused was cautioned by the

committing committing magistrates in the common

form, Your Honours, and, in reply, said:

"I do not wish to say anything, except that I

am innocent."

He was then committed for trial and the learned recorder at the trial made a comment upon that and

that appears at the bottom of page 685. He said:

"Imagine a purely innocent man accused of

housebreaking and having these words put to

him - 'Do you wish to say anything in answer

to the charge?' Surely, if he is innocent,

one would think he would give some explanation

of where he was and what he was doing at the

particular time -

et cetera. Your Honours, the Chief Justice,

Lord Hewart, giving the judgment of the court,

simply said that is not on.	And at page 687, he
said:

We do not think that the words of the caution can properly be construed in the sense that

the prisoner remains silent after being

cautioned at his peril and may find his

silence made a strong point against him at his

trial. In our view, the words mean what they
say, and a prisoner is entitled to reply to

the caution that he does not wish to say

anything.

Your Honours, other cases in England basically

deal with the exercise of the right to silence

under cross-examination by police officers and we

refer, but merely pass over Your Honours, to Reg v

Leckey, (1944) 1 KB 80, Reg v Gerard, (1948)

33 Cr App R 132, Reg v Davis, (1959) 43 Cr App R

215.      But Your Honours, the situation became a

little more complicated when the Court of Appeal in

England turned to Reg v Michael Ryan, (1964)

So Crim App R 144, and to that we should perhaps

take Your Honours.

Ryan was a case of the appellant being seen

acting suspiciously in the vicinity of a truck and

when spoken to by police did not give an

explanation which he later gave at the trial and

Petty 16 27/2/91

the direction to the jury, which was the subject of
the appeal, Your Honours, appears at page 147 of

the report in the second complete paragraph. It

seems that the learned trial judge said:

The other matter, members of the jury, is

this: It is said by the prosecution, you may

think with a great deal of force and a great
deal of propriety, that, apart from his legal
advisers, this man has never tendered an
explanation to anybody. His learned counsel

says, 'Well, why should he?' I agree that in

law he is not obliged to do so. As I say, in

law, he can remain completely mute, and say,

'You get on with it and prove my guilt, if you

can.' But you would expect, would you not,

that a railway servant, who has been in the

service of the railways -

et cetera. His Honour goes on to comment that the

explanation tendered in the trial was not given at

the time of his apprehension.

Now the Court of Appeal was of the view that

it was permissible in this circumstance to make a

comment upon the fact that an explanation had not

been raised earlier provided the jury is warned

that the inference of guilt cannot be drawn from

the exercise of the right to silence and the

passage which is much repeated appears, Your

Honours, at page 148 at about point 5:

It is, we think, clear as a result of those

authorities that it is wrong to say to a jury

"Because the accused exercised what is

undoubtedly his right, the privilege of

remaining silent, you may draw an inference of

guilt"; it is quite a different matter to say

"This accused, as he was entitled to do, has

not advanced at any earlier stage the

explanation that has been offered to you

today; you, the jury, may take that into

account when you are assessing the weight that

you think it right to attribute to the

explanation."

Now, Your Honours, Mr Justice Hunt and the

Court of Criminal Appeal relied upon Ryan in

arriving at the decision that the re-examination

was admissible.

DAWSON J: That approach has never been adopted anywhere

else in Australia, has it?

MR HIDDEN:  Your Honour, it was, and in fact, perhaps it is

appropriate to come to this immediately - - -

Petty 17 27/2/91

DAWSON J: Because it is, logically, quite inconsistent.

MR HIDDEN:  Yes. Your Honours, it was by the Court of

Criminal Appeal in Reg v Sadaraka, which was also

referred to both in the judgment of Mr Justice Hunt

and that of the Court of Criminal Appeal. Indeed,

the Court of Criminal Appeal said that Sadaraka was

a decision by which Mr Justice Hunt was bound.

Your Honours, this is an important decision

which, in our respectful submission, is wrong and

needs to be corrected. Sadaraka is reported in

(1981) 2 NSWLR 459. It was a murder case in which

the accused at trial asserted death by involuntary

act, by accidental discharge of a gun, not having

done so before on the Crown case. It was

complained first that the learned trial judge ought
not to have asked the accused, while he was giving

evidence, questions as to why he had not made this

assertion to police and that piece of evidence,

Your Honours - part of the evidence appears at the

bottom of page 460 and into 461 and it was

asserted - - -

MASON CJ:  Mr Hidden, I have a copy of the Australian

Criminal Reports.

MR HIDDEN:  I am sorry, Your Honours. I regret we have

enough to make available to me the copy from the

given Your Honours the wrong reference.

Australian Criminal Reports. The Australian

Criminal Reports, Your Honour, report the judgment

in full, whereas the New South Wales Law Reports

does not.

Your Honours, complaint was also made that the

trial judge had not directed the jury that no

inference adverse to Sadaraka could be drawn from

the fact that he had not raised the issue of

accident earlier. It is in that context,

Your Honours, that the then Chief Justice

Sir Laurence Street giving the leading judgment

referred, with approval, to Ryan and that appears

at page 225 of the report in the Australian

Criminal Reports.

I pause to interpolate, Your Honours, that by

then the subsequent decision of the English Court
of Appeal in Gilbert was out, but there is no

reference to it in this decision. Gilbert, of

course, to which we will return in a moment,

disapproves of the reasoning in Ryan.

There is a further problem, Your Honours, with

Sadaraka which bears somewhat indirectly upon the

matter the subject of this application, but which,

Petty 18 27/2/91

in our submission, cries out for correction.	At
the bottom of page 224, the then Chief Justice
said:

The second objection which Mr Hosking

raises is that the trial judge did not

specifically direct the jury that no adverse

inference could be drawn by the jury from the

appellant having exercised his right to remain

silent. There is no rule of law requiring a

direction to be given to a jury that, where an

accused person elects to avail himself of his

right to remain silent, the exercise of that

right does not entitle the jury to draw any

inference adverse to the accused person.	The
law, rather, is formulated in terms which
involve the trial judge being under an

obligation to ensure that a jury is not left

under a misapprehension. In Woon .... . Kitto J

said, in the context of examining the

existence of the right to remain silent:

"If the jury had been left under an impression

that they were entitled to draw inferences

against the applicant from mere refusals to

answer, or from statements that amounted only

to refusals to answer, there would have been

serious fault to find with the charge."

The charge in that case did not contain a

specific direction to the effect that no

adverse inference could be drawn from silence.

Your Honours, with great respect, that is

simply not what Woon said at all and might be

convenient at this point, Your Honours, to take

Your Honours to Woon v Reg, a decision of this

Court, (1962), 109 CLR 529. In Woon, Your Honours,

the leading judgment was given by Mr Justice Kitto

with whom the other Justices, with the exception of

Mr Justice Windeyer, agreed. Woon was a case of

breaking and entering a bank and stealing money

from it and Woon was said to have done it in
company with a number of accomplices.	He was

interrogated by police in Sydney and subsequently

in Melbourne and the interrogations are set out at

length, Your Honours, in the report at pages 530 to

532.

Suffice to say, Your Honours, the

interrogations were relatively lengthy. Woon was,

on both occasions, cautioned and he declined to

answer some questions using various forms of

expression but forms of expression amounting to
refusal to answer. Other questions he did answer

but none of his answers were, on their face,

inculpatory. However, the point of Woon was that

Petty 19 27/2/91

some of the answers which he did give, although not

on their face inculpatory, were damning to Woon in

the light of other evidence. In particular, when

first interrogated in Sydney and asked whether he

knew the persons with whom he was alleged to have

committed this crime, he said that he knew one of them who had been a good friend of his and he had

known him for years, he could not say that he knew

the other two he had never heard of them. Now,

there was evidence that he was sending telegrams to

one of his other compatriots in the crime at about the relevant time and subsequently in Melbourne he

admitted as much.

Now, it is in that context, Your Honours - it

seems that in Woon the submission was that the jury

ought to have been directed to disregard the

evidence of the interrogations because they

contained no express admission. The High Court

said, as had the Full Court of Victoria, not so.

You can look at what a man does say to see whether,

in the light of other evidence in the case and in

its context, it demonstrates a consciousness of

guilt even though it is not expressly an admission

of the crime. That said, Your Honours,

Mr Justice Kitto was careful to go on and say this,

at page 534:

One observation should be made at once

concerning the leaned Judge's recital to the
jury of the questions and answers which the

police witnesses had recounted in their

evidence. The interrogations had been

preceded by a clear statement to the applicant

that he was not obliged to say anything. His Honour reminded the jury of this fact, and he

made it clear to them, not only generally

before he went through the evidence but again

specifically in relation to each answer which

was or amounted to a refusal to answer, that

the applicant was within his rights in saying

nothing and that no adverse inference could
properly be drawn from refusal to answer.	But

he added, in effect, that such answers as the

applicant chose to give might be considered by

the jury, though not amounting to admissions

of any of the facts suggested by the police,
for the purpose of seeing whether they
revealed a consciousness on the part of the

applicant that he was guilty of the crime

about which he was being questioned.

Now, it is after that there comes the passage

extracted by Mr Justice Street.

If the jury had been left under an

impression that they were entitled to draw

Petty 20 27/2/91

inferences against the applicant from mere

refusals to answer, or from statements that

amounted only to refusals to answer, there

would have been serious fault to find with the

charge:

And His Honour refers with approval to Leckey in

England and Twist in Victoria. Now, Your Honours,

the main point of Woon, as I apprehend it, was that

in particular by initially denying knowledge of one

of his compatriots, that denial, in the light of

his subsequent admission that he knew him and other

evidence in the case, demonstrated a consciousness

of guilt. That was the principal area where it

seems the High Court saw the interrogation of Woon

as significant, but returning to Sadaraka, it is

not true to say, page 225, about point 3:

The charge in that case did not contain a

specific direction to the effect that no

adverse inference could be drawn from silence.

It clearly did. And it is not true to say that

there is no law that a jury must, in every case, be

directed that no inference adverse to the accused

should be drawn from the exercise of the right to

silence and that such a direction should be given

only if the jury are likely to be left under that
impression. That is not what Mr Justice Kitto was
saying in Woon. Clearly implicit in His Honour's

reasons in Woon was that the direction must always

be given, because clearly the right to silence is

not common knowledge in the community.

Now, Your Honours, to that extent we submit, with great respect, the decision in Sadaraka is

severely flawed and it was in part Sadaraka upon

which Mr Justice Hunt relied and by which the

Court of Criminal Appeal held Mr Justice Hunt was

bound in deciding to admit the re-examination. It

is interesting, of course, while we are on

Sadaraka, Your Honours, to go on to the remaining

part of the report in the Australian Criminal

Reports, because it then goes on to consider a
matter from which it may well be that

re-examination as to what occurred in committal is

legitimate, because it seems it was suggested

apparently that Sadaraka's solicitor at committal

had made an assertion as to Sadaraka's behaviour in

the presence of the police, which was inconsistent

with what he was asserting in the trial and the

court held, and presumably, Your Honours, rightly

held, that to reveal to the jury that the

inconsistent allegation had been made in the

committal was legitimate and I suppose,

Your Honours, it must be, subject to a discretion -

there are dangers in it of course.

Petty 21 27/2/91

TOOHEY J:  I am not clear whether we are being asked to

approach the question of the direction given by the

trial judge on the basis that the question asked in

re-examination was properly admitted or that it

ought not to have been admitted or that it does not

matter whether it was admissible or otherwise?

MR HIDDEN:	Your Honours, our primary submission is the re-examination was inadmissible, because it was
probative of nothing. Our secondary submission is, even if it were admissible, His Honour's directions
to the jury that although there is no challenge to
the right to silence, the fact that it was raised
for the first time at the trial might be considered in determining the credibility of the explanation
now advanced, we also submit, is in error.
TOOHEY J:	Do you suggest that the question of admissibility raises a matter of special leave?
MR HIDDEN:	We do, Your Honours, because inherent in the decision to admit the evidence was a view taken of
a line of cases concerning the right to silence
which are conflicting and the issue raised by that
line of cases is important and, in our respectful
submission, this Court ought declare the law for
Australia in this respect.
DEANE J:	But what if in his confessional statement he had

admitted that he was guilty of murder? Would it

then be permissible for the evidence to be led that

having admitted he was guilty of murder he had

never suggested accident until the trial?

MR HIDDEN:  In our submission, no, Your Honour. Comment

could certainly be made upon the fact -

DEANE J:	That is really this case, is it not?
MR HIDDEN:	Yes.
DEANE J:	Here he has admitted that there was a murder.

Query: whether the Crown can then bring out that

given the ideal opportunity to go back on that and

suggest accident, he still let his confession of

murder that there was a murder stand until the

trial?

MR HIDDEN: Yes, Your Honour. In our submission, obviously,

the Crown is entitled to comment, "He tells you one

thing now, ladies and gentlemen; he told the
police the opposite". Clearly that is available
but the intermediate step he could have taken the

opportunity to put his defence on record at

committal was impermissible and a very serious

error in the trial, in our submissions,

Your Honours. This re-examination and the

Petty 22 27/2/91

directions upon it, Your Honour, must have been

very very damaging to Maiden's assertion in the

trial, very damaging indeed, probably fatal to it.

It would have been the end of the matter,

Your Honours, in our respectful submission.

Your Honours, just turning again to the question Your Honour Justice Toohey raises as to

why this question is one of special leave. It is,

as we say, Your Honours, because the decision to

admit the evidence was based upon the decision that

it was relevant in the light of the decision of the

English Court of Appeal in Ryan, that is it was

admissible to show that the defence was being
raised for the first time and was admissible as a

matter going to the weight the jury might give to

Maiden's explanation. Ryan, in turn, was approved

in Sadaraka but, Your Honours, in England

subsequent to Ryan but before Sadaraka and before

this case the reasoning in Ryan had been considered

by the Court of Appeal in Reg v Gilbert, (1977)

66 Cr App R 237.

Indeed, Your Honour, Gilbert itself was a

murder in which a suggestion of provocation was

raised apparently for the first time in the trial.

Gilbert was not an alibi case but most
significantly the court considered Ryan again in

Gilbert and had this to say at page 244 of the

report, the second complete paragraph:

There are a large number of reported

cases arising from comments made at trials on
the failure of the accused to disclose the

defence put forward at the trial when
questioned by the police or at an earlier

stage of the proceedings. It is, as

Lord Parker CJ said in Hoare .. ... not possible

to reconcile all of them. It is in our
opinion now clearly established by decisions

of the Court of Appeal and of the Court of

Criminal Appeal that to invite a jury to form

an adverse opinion against an accused on

account of his exercise of his right of

silence is a misdirection -

and there is reference to Gerard and to Davis.	The
court went on:

In Ryan ..... it appears that a number of cases were cited but not Gerard and Davis.	In
the light of the authorities cited to it, the
Court held -

and there is there set out, Your Honours, the

famous passage from Ryan, the two ways in which

failure to raise an explanation might be used, the

Petty 23 27/2/91

first being impermissible, the second being

permissible. The Court goes on:

We have to confess that we are unable to perceive that that is the case. The second of

the statements quoted seems to us an

invitation to the jury to drawn an inference

adverse to the accused on account of his

exercise of the right of silence, though in a

more oblique fashion than in Davis. It is

perhaps unfortunate that this decision was not

brought to the attention of the Court in the
later case of Hoare and we do not find it

possible to reconcile it with Gerard, Davis

and Hoare.

We regard the present position as

unsatisfactory. In our view it may not be a misdirection to say simply "This defence was

first put forward at this trial" or words to

that effect -

Your Honours, we pause there to say that that may

be a reference to the line of alibi cases which did
permit the mere assertion that the alibi had not

previously been raised and it could not be

investigated. Their Honours went on:

but if more is said, it may give rise to the
inference that a jury is being invited to
disregard the defence put forward because the
accused exercised his right of silence, in

which case a conviction will be placed in

jeopardy.

Your Honours, there was no reference to this

decision of Gilbert in Sadaraka.

DAWSON J: Just before you go on, what is the right of the

judge to comment adversely on the failure of the

accused to give evidence in New South Wales now?

MR HIDDEN: It cannot be done, Your Honour.

DAWSON J: At all?

MR HIDDEN: That is prohibited by statute, Your Honour.

DAWSON J: At all?

MR HIDDEN:  Yes. The judge can comment upon the fact that

the accused's statement is not on oath and not
subject to cross-examination but he may not comment

upon the fact that the accused elected - I am

sorry. Your Honour is speaking where an accused

says nothing at all?

Petty	24	27/2/91
DAWSON J: Yes.

MR HIDDEN: It is such a rare event, Your Honour.

DAWSON J:  I have some impression in my mind that the

situation is different in New South Wales.

MR HIDDEN:  Yes. As I apprehend it, Your Honour, where an

accused chooses to say nothing at all, the common

position applies. There is statute law in New

South Wales governing the election of an accused to

make an unsworn statement and prohibiting comment

upon his choosing not to give sworn evidence. But,

as Your Honours will see, the Court of Criminal

Appeal here did consider guilt but was of the view

that Ryan was to be preferred and that there is a

valid distinction between, on the one hand saying,

"From the fact the defence was not raised before,

you may draw the inference of guilt", which it

cannot do; but, on the other hand saying, "But

from the fact the defence was not raised before,

you may perhaps give less weight to what is now

being advanced to you by the accused".

TOOHEY J: Are you content with that distinction?

MR HIDDEN:  No, Your Honour, in our respectful submission,

the distinction is illusory; it is meaningless.

TOOHEY J:	So that nothing should be said.
MR HIDDEN:	To say even that is to invite the jury to take

at least one step upon the logical road to the inference of guilt. To say, "You cannot infer

guilt from prior silence but it may reflect

adversely upon the weight of the explanation which

the accused now gives", is to say virtually the

same thing, in our submission, Your Honour,

particularly in a case as here, where the

re-examination and the directions related to the

core of the defence. The defence was, "Yes, I

killed him but I had no intent; it was by

misadventure." This was the central issue in

Maiden's case; it is what it was all about.

TOOHEY J: So, what are the options available, Mr Hidden?

The trial judge says nothing or he gives a firm

direction to the jury that the absence of any explanation by the accused simply cannot tell

against him in any way?

MR HIDDEN: Yes, correct. That assumes that evidence that

the explanation was not given earlier gets in in
the first place which, in our submission, it should

not. But, if it does then, in our submission, the

judge's duty is to warn the jury - really,

consistently with what this Court said in Woon,

Petty 25 27/2/91

that no inference adverse to him can be drawn from

the fact that earlier opportunities to raise the

defence were not taken; none at all.

BRENNAN J: That, perhaps, in the light of the underlying

principle of the alibi case, is too broadly

stated, is it not? Because, if there is a

proposition advanced by the accused which lies
peculiarly within his knowledge and which the

prosecution has no opportunity of rebutting,

having regard to the time at which it is made, the

real thrust of any observation is with respect to
the absence of prosecution evidence and the

explanation for why the prosecution is not

adducing it. That is a somewhat proposition.

MR HIDDEN:  Yes, Your Honour, that appears to be the reasoning of the alibi cases.

BRENNAN J: Well then, if you had some other question of

fact where the prosecution could, if it knew

anything of it, have adduced any evidence and which

it adduced for the first time by the defence, would

a judge not say, "You have only the defence

evidence. This is the first time that it has been

raised and therefore you have got no prosecution

evidence in reply."?

MR HIDDEN: Well, Your Honour, so much was suggested,

indeed, by Mr Justice Sugerman, in Reg v Bouquet,

(1962) SR (NSW) 563. Your Honours, our respectful

submission is that even a comment of that kind is

an infringement upon the right to silence but,

having said that, we can say only - I am sorry,

Your Honours, perhaps I should take Your Honours to

that particular passage. Bouquet itself was a case

in which one of the grounds of appeal was that

comment was made upon the late raising of an alibi.

And, indeed, the majority of the Court of Criminal

Appeal were of the view that the comment made by

the learned trial judge went too far and amounted

to prohibitive comment upon the exercise of the

right to silence. But Mr Justice Sugerman reviewed

the authorities, Your Honours, commencing at

page 569 and, at page 570, in the second complete

paragraph, said:

The matter of particular relevance here

is that there are found in New Zealand -

reference to Foster -

(Reg v Twist),
and in Victoria as well as in apposite where, the accused having remained

silent on interrogation after warning, an

alibi, or it may be some other positive matter

Petty 26 27/2/91

of explanation or defence, is raised for the

first time by evidence given at the trial.

It is the very matter which Your Honour

Justice Brennan raised. Now, Your Honours, as to

that, we submit that thus far the only cases in

which any comment of that kind have been

countenanced are alibi cases. There is a

consistent line in relation to alibi cases and

cases such as the one the subject of this

application, we would submit, are aberrant and in

error. I suppose, Your Honour, logically that must

be so, if one could conceive of such a matter. I

mean, generally speaking, Your Honours, now there

tends to be adequate protections to the Crown in

situations such as this.

BRENNAN J: There is no statutory provision in New South

Wales requiring notice of alibi to be given?

MR HIDDEN: There is, Your Honour; in New South Wales there

is. I suppose one could conceive of it in other

cases such as perhaps diminished responsibility and

murder, where usually, unless the defence chooses

to inform the Crown that it is to be raised, the

Crown has no way of knowing that it is going to be,

and there is usually no way in the committal that

it could be raised even you wanted to, unless you
wanted to go into evidence at committal which no

one ever would. Suffice to say, Your Honours,

there certainly is, in New South Wales, a practice

whereby the Crown is notified by the defence before

trial that diminished responsibility will be raised
and that there will be psychiatric evidence called

and there is a practice that the Crown is usually

notified of the nature of it, but I suppose it is

fair to say there is no rule of law to that effect.

In practice, though, the Crown is usually ready to

meet it, and usually turns up with a report

suggesting the accused is, in fact, M'Naghten mad,

and that is led in reply.

DEANE J:  What if the police constable, to whom the

confession that there had been a murder was made,

had been asked, "Did you have subsequent

conversations with the accused?" and answered

"Yes", and said "Did he ever say anything to

suggest that his confession was false and that in

fact it had all been an accident"?

MR HIDDEN: Well, Your Honour, we would submit that that

evidence would be inadmissible, for the same

reason.

DEANE J:  I am just trying to identify where one draws the

line here, because -

Petty 27 27/2/91

MR HIDDEN:  Yes, we would submit, Your Honour, that that

evidence would be equally inadmissible, because, as

we have submitted, Your Honours, for the accused

not to raise that in subsequent conversation with

the police is doing no more than exercising his

right to silence. It may be exercised selectively.

DEANE J:  Why is it not by conduct a continuing affirmation?

MR HIDDEN: Because the law says it is not, Your Honour, in

our submission. Logically, of course it may be.

DEANE J: That is what I am concerned about. In any of

these cases, was there not silence, but a
confession as to guilt, or is the commission of a

crime followed by failure to do anything to depart

from what was asserted?

MR HIDDEN: Your Honour, I do not believe so. If I be wrong

in that my learned junior no doubt will inform me.

But, I do not believe any was such a case. In

other words - in particular, I suppose, Your Honour

is asking, are there any of the decided cases on

all fours factually with this one? Not that I am

aware, Your Honour.

DEANE J: What I am wondering about is: take a case other

than this, say, your client said what he did say,

and that is, there was murder, but the other

accused did it, and assume the other accused said

there was murder, but your client did it, and those
confessions remained unquestioned by the accused
until the end of the Crown case; is it really the
law that they could then say it was accident, and

it could not be brought out that they had let the

whole of the proceedings go on the basis that their

assertion was it was an accident?

MR HIDDEN:  Does Your Honour mean, until the end of the

Crown case in the trial?

DEANE J: At the trial, yes.

MR HIDDEN: Oh, I am sorry.
DEANE J:	Or until one of the late Crown witnesses.

MR HIDDEN: Again, we are assuming the records of interview

are not challenged as to their inaccuracy.

DEANE J: Yes.

MR HIDDEN:  Yes, Your Honour, our submission is, yes, that

must be so unless of course a witness was called in
the course of the Crown case to whom the

opportunity might arise and, perhaps, the duty

might arise to cross-examine on that matter in the

Petty 28 27/2/91

light of the ruling in Browne v Dunn because that

happened here with Crawley.

DEANE J: But you see when it comes to fairness to the Crown

that is not silence, it is a case of a statement

that is allowed to stand that is producing the

consequence.

MR HIDDEN:  But the silence is in not changing it,

Your Honour, in our submission.

DEANE J: Yes, I am not suggesting what you are putting is not right but it seems to me it is in a much more

problematical area in this case though than in the

cases that are referred to.

MR HIDDEN:  Yes.

McHUGH J: That is the problem that has vexed my mind from

the beginning of this case as to whether the whole point is not misconceived. Take the detective who

interviewed your client, why could he not have been

asked as to whether your client had put forward -

or either of them put forward a defence of

accident?

MR HIDDEN: For the same reason, in our submission,

Your Honour, there is no obligation on an accused

to put forward any explanation and the corollary of

that: there is no obligation on an accused, having

put one explanation, to put a conflicting one if

that is what he wants to do to the police.

McHUGH J:	Your client conceded that he had made the very statement that the police said he had made.
MR HIDDEN:	Yes, said he had lied to the police,

Your Honour, yes.

McHUGH J:  So he had not maintained his silence, he had

given an account.

MR HIDDEN: Yes.

McHUGH J: Well, once he speaks, or once it is alleged he

has spoken, why is the privilege to remain silent

of any relevance at all?

MR HIDDEN:  Your Honour, in our submission, the privilege

continues and may be exercised selectively.

Indeed, might we say in passing, Your Honour - - -

DAWSON J:  May I say in that context there is nothing to

prevent the Crown alleging recent invention, as you

have said, and saying you say this for the first

time in this Court.

Petty 29 27/2/91

MR HIDDEN: With respect, Your Honour, we would say, no,

because, on our submission, the Crown would never

be able to prove that that was the case.

DAWSON J:  But it could be suggested to the accused if he

gives evidence.

MR HIDDEN:	Your Honour, we would object to that line of cross-examination.
DAWSON J:	I thought you said earlier that that can be put

to the accused, that it would be put to him that

the first time he has told this story is in court?

MR HIDDEN:  I beg Your Honour's pardon, yes. Clearly

the - - -

DAWSON J: It is a recent invention.

MR HIDDEN: Clearly the Crown can comment upon the fact that when first spoken to by police the accused did give

an account and it is the diametric opposite of the

one he is giving now, of course, Your Honour, yes.

DAWSON J:  And it follows that they can put to the accused

that the first time you gave this evidence was in

this court - the first time that you have put

that - - -

MR HIDDEN:  Yes, I think that must be so, Your Honour, I

think that must be so.

BRENNAN J:  Then he could call his solicitor to say he would

tell him that it was not a recent invention.

MR HIDDEN: If the evidence got in, Your Honour, that remedy

might be available.

BRENNAN J:  Why do you put it on the basis of a right to

silence? Once the man is charged and brought

before the court, has not the adversary proceedings

started?

MR HIDDEN: Yes, indeed. Perhaps it is appropriate to turn

immediately, Your Honour, to the latest word in New v Birks, (1990) 19 NSWLR 677. Your Honours, it is,

in fact, not quite accurate to say that this is the

latest word. There is a subsequent decision to

which I might shortly take Your Honours.

Your Honours, Birks was a sad case. It was a

serious sexual assault case and it seems that a

significant part of the accused's defence which

went to explain innocently why the complainant came

by certain injuries was simply not put to the

complainant at the trial. The court examined the

Petty 30 27/2/91

whole course of the trial and was of the view that

this was a case where the conduct of counsel in the

trial was such that a miscarriage of justice

resulted and there should be a new trial. Counsel

apparently frankly confessed in an affidavit that

he had simply by inadvertence neglected his duty as

counsel in that respect and confessed he had made a
serious omission.

It seems, Your Honours, that in cross-examination of the accused, the fact that his

counsel had not put this matter to the complainant

at the trial was pressed but also the fact that his

solicitor had not put it to her at committal was

raised.	Now, Your Honours, the Court of Criminal
Appeal dealt with that in short order.	At page 689

at about point 8, the present Chief Justice

Mr Justice Gleeson said:

The learned trial judge commented upon the

fact that a particular matter was not put in

cross-examination during the committal

proceedings. Such a comment is normally

inappropriate. It has never been the rule in

committal proceedings in this State that there
is a duty to cross-examine Crown witnesses

whether in detail or at all. Indeed, it would

be most regrettable, and would lead to undue

lengthening of committal proceedings, for any

such rule to be adopted.

Your Honours, Mr Justice Lusher dealt with the same

question, and indeed, in the judgm_ent of

Mr Justice Lusher a good deal of the

cross-examination of the accused is set out in

extenso commencing at page 694 and at 697, just

under letter E, a question is quoted:

Q. Nothing was suggested in the lower court

that it was the torch that caused the

complainant's injuries to her face?	A.	No,
that is correct, yes.

arose here, although perhaps in Birks it is not	In a sense, Your Honours, the very problem that
quite as serious because this matter was not
necessarily the core of his defence, the matter of
how the complainant came by her injuries; there are other matters he had to deal with as well.

TOOHEY J:	I am just having a lot of difficulty with the proposition we are being asked to deal with,
Mr Hidden. This is not a case, as I understand it,
in which there was simply a failure by the defence
to cross-examine at the committal proceeding from
which no inference could have been drawn adverse to
the accused.  The question seems to be whether, by

Petty 31 27/2/91

embarking on cross-examination of a witness and

putting a particular account of matters to that

witness, the defence leaves itself open to comment

if, subsequently, some different account is either

given by the accused or forms the subject of the

defence at trial. Is that not the situation here?

MR HIDDEN: It is not the situation here, with respect,

Your Honour. Could I take Your Honour to the

cross-examination of Mr Crawley at the committal

and the relevant part is at page 257. By and large

the cross-examination was simply questions by way
of inquiry rather than putting anything as to where

it was said the conversation had taken place and in

what circumstances. There was some
cross-examination on page 257 about doubts the
witnesses had expressed as to where exactly the

conversation took place and the third last

question, Your Honour, line 31:

Q. Would that be because the conversation did

not happen at all?	A. This conversation did
happen.

Your Honour, unless I stand corrected, that is all

that was put at committal, and indeed that is the

effect of what was put at trial. The conversation

deposed to by Mr Crawley did not happen; another

one did, a conversation of entirely different

content from that suggested by Mr Crawley. That is

as far as committal. Your Honours, we would agree

that if at committal a line of cross-examination

were pursued which positively put X and then at

trial the accused says non-X, then prima facie

evidence could be led of what was put at committal.

If the two lines of cross-examination cannot stand together that would be subject to the discretion of the trial judge not to allow it and regard might

have to be had as to who appeared at committal and

what the instructions were and how rushed it all

was and that sort of thing, but prima facie we
would agree that what happened at committal might

be admissible in the trial if something happens in

the trial which is the diametric opposite of what

happened at committal and cannot stand with it.

GAUDRON J: But does that not show, Mr Hidden, really that

the question is whether what was said or not said

at the committal is probative of anything?

MR HIDDEN:	Yes.
GAUDRON J:	And what was said by Chief Justice Gleeson in

Birks is right, you have to look at all the

circumstances to see whether anything at all is

properly to be inferred from what happened?

Petty 32 27/2/91

MR HIDDEN:	Correct, Your Honour, yes.
GAUDRON J:	Now, in this case would that not depend on

whether there had in fact been a challenge or a

departure from the account by the cross-examination

of Dr Oettle? If your client's cross-examination

of Dr Gettle squarely raised accident, then there was a departure from what had been done and there

was perhaps no need to go any further.

MR HIDDEN:  Your Honour, forgive me - if there had been a

cross-examination at the trial of Dr Oettle?

GAUDRON J:	No, at committal.
MR HIDDEN:	Yes, Your Honour.  It may well be that would

have been the end of the matter, Your Honour.

GAUDRON J:  It may well be that it is the end of the matter.

I thought you said earlier that there had been

cross-examination of Dr Oettle consistent with a

defence of accident, or raising a defence of

accident on behalf of your client and if that was,

then failure to raise anything with Mr Crawley,

perhaps the probative value of it either disappears

or diminishes very considerably.

MR HIDDEN; Yes. Your Honour, if we can find the precise

passage might we do the necessary copies and make

it available to the Court, having shown it to my

learned friend. We will pursue that passage and

see if it can be located, Your Honours. Just

completing Birks, Mr Justice Lusher dealt with the

question at page 703C:

The second matter also concerns the

committal. The Crown put it to the accused

that his solicitor had not put certain

material to the complainant at the committal,
again the inference being adverse to the

accused's claim as to his instructions. This

was carried over into the summing-up. There

is no obligation or duty on an accused's legal

representative to put anything as to the

client's case or at all at a committal.

Your Honours, clearly the law, in our submission,

and the significance of what Their Honours say is,

a little bit like the right to silence itself, it

need not be used in a blanket way; it can be used

selectively. Woon, in our submission, recognizes

as much. It is often quoted as authority for the

contrary. It is not. Woon clearly said you can

answer some questions and not others and no

inference can be drawn from those you choose not to

answer.

Petty 33 27/2/91

Now likewise, accused's legal representative

at the committal can ask nothing or what he likes

and the fact that something is not put, even though

other things are, cannot ground any inference

adverse to the accused at his trial, unless if you

say, what is put at committal is inconsistent with

what is being put at the trial.

Now, Your Honours, the remaining question then

is whether - well, of course, if our submissions

be sound or find favour with the Court,

Your Honours, we would submit that there could not

possibly be any room for the application of the
proviso, because if our submissions be sound, the

trial has gone far more awry than the Court

of Criminal Appeal said it did. If our submissions

be sound, the re-examination should never have
happened in the first place and there would
accordingly have not needed to be any directions

from the learned judge or any comment at all upon

the exercise of the right to silence. And all this

material went to the heart of Maiden's defence and

we would submit -

TOOHEY J: If the question in re-examination was wrongly

permitted, was there any direction that could have

cured the harm that was done?

MR HIDDEN:  In reality, Your Honour, we would submit no. I

am sorry, you mean if that had been determined in

the course of the trial or if that is the view of

this Court now?

TOOHEY J:  I ask you that because I am still having some

problems with identifying the complaint in terms of

the admissibility of the statement and the

direction that was given thereafter.	I know you
complain about both.	I question whether - if you

are right in your submission that the question

should not have been allowed in re-examination,

nevertheless the direction itself might have cured

any harm that was done.

MR HIDDEN:  No. Well, Your Honour, we would certainly

submit, it did not. The direction itself is also set out, I think almost entirely Your Honours, in the judgment of the Court of Criminal Appeal,

commencing at page 215. Now the direction was, in

effect, Your Honours, a Ryan direction - the

English Court of Appeal decision in Ryan.	The
learned trial judge said:

The Crown says that no weight should be given

to this explanation put forward by Maiden now,

that it was all an accident.

Petty 27/2/91

This explanation was not put forward by Maiden

until James Crawley was cross-examined

concerning a conversation which he says that

he had with Maiden at the Yass Motel. That

cross-examination was on the seventh day of

this trial.

He goes on to refer to the:

different version of the conversation -

put to Crawley, which Crawley denied.	His Honour
said:

He told you that he had given evidence of his

version of that conversation in the committal

proceedings which took place on 15 June of

this year, and that he had been cross-examined

there in relation to that evidence by the

solicitor then appearing for Maiden. But this

claim by Maiden that the death had all been

quite accidental had not been suggested to him

by that solicitor.

His Honour went on:

No claim has been made by Maiden or by those

representing him that some prior notice had

been given that he was asserting that Mark

White's death had been accidental.

The Crown says that any such explanation now

offered so late

et cetera, you -

should not give any weight to this new

explanation.

Now, His Honour then goes on to give a direction

affirming the right to silence and saying that from
its exercise:

no inference or conclusion of guilt may be

drawn ..... That rule of the law is to ensure

that no-one will be forced to incriminate

himself by feeling obliged to answer

questions.

There is reference to the caution being given by

the police according to the evidence and the

interrogation of both accused.	And His Honour
concluded:

I direct you, therefore, that you are not

permitted to draw any inference or conclusion

of guilt from Maiden's failure to raise this

Petty 35 27/2/91

explanation that Mark White's death was an

accident at some earlier stage.

DEANE J:  Of course, that is unduly favourable to your

client, is it not, in that if your client has made

an allegation of murder against somebody and the

allegation is false, he has no right to remain

silent. He has a legal obligation, if it is an

accident, to correct the allegation.

MR HIDDEN:  Your Honour, in our submission, not if he

himself has been charged with that same offence and

has been cautioned.

DEANE J: What, the proposition is this, that if somebody

falsely alleges that Xis guilty of murder in

circumstances where it was an accident, he is under

no obligation to correct the false allegation of

murder?

MR HIDDEN:	Your Honour, he might be liable for prosecution for a different criminal offence but if he is
charged with the same murder that, in our submission, in his trial - - -

DEANE J: But we are not talking about his trial here, we

are talking about a general right of silence in the

face of a false allegation of murder.

MR HIDDEN:  Your Honour, we submit that it obtains.

DEANE J: That you are entitled to remain silent and not

correct the false allegation of murder?

MR HIDDEN:	Yes, Your Honour.
BRENNAN J:	Why do you need to put it so

MR HIDDEN: Finally, Your Honour, in the trial, he did not.

BRENNAN J:  Why do you need to put it so high? Is not the

right to silence simply that a failure to speak

cannot be used as evidence against the	accused who
failed?

MR HIDDEN: Yes. Well, Your Honour, in a sense I suppose

the right to silence is an abstraction, it is a way

of expressing in an abstract way that very

proposition. That a conscious decision not to

speak in the face of an accusation or not to speak

further about it, is a matter from which no adverse

inference can be drawn.

DAWSON J:	Can I take you back to the question of recent invention? It may be much more delicate than my
question to you indicated.  You could base an
allegation of recent invention on positive evidence

Petty 36 27/2/91

that it was so but you could not base it upon the

mere failure to say anything in the meantime, that

is between telling one story and then telling

another in the witness box.

MR HIDDEN: With respect, Your Honour, yes.

DAWSON J: Is that the way you put it?

MR HIDDEN:  Yes, that is the way we would submit it,

Your Honour, so that in the example postulated by

Your Honour - well, in this case - - -

DAWSON J:	I mean, you could always put it to the accused if he gave evidence, "Well, the first time you thought
of this was in the court, was it not?", but you
could not seek to substantiate that by reliance
upon his failure to say anything - - -?

MR HIDDEN: Correct, yes, that would be our submission.

Turning to the directions then, Your Honours, and

to the matter raised by Your Honour Justice Toohey,

our submission is that the directions, in fact,

given only made matters worse and really drove the

significance of this re-examination home and,

indeed, as Your Honours have seen, the Court of

Criminal Appeal itself was of the view that they

went beyond permissible boundaries and were in

error because they did, in effect, amount to a

comment, an impermissible comment, upon his failure

not to raise the matter at committal or at some

earlier stage and amounted to an invitation to draw

the inference of guilt which the law says the jury

must not do.

GAUDRON J: If it is the case - can I go back to this - I

mean, if your client had confirmed the account that

he had given in his record of interview by way of a

statement at the committal proceedings, that could

have been given in evidence and it could have been

said he gave that account to the police and he

confirmed that account at the committal

proceedings, could it not? The warning would - if

he positively made a statement.

MR HIDDEN: Yes. With respect, Your Honour, I am not sure

that that is right. Clearly, it is only the

accused who would want to do that and I would have

thought any statement made by him at committal

consistent with his case at the trial would simply

be a self-serving statement and would be

inadmissible.

GAUDRON J: No, consistent with his record of interview. If

he had confirmed the account given in his record of

interview.

Petty 27/2/91

MR HIDDEN:  I beg Your Honour's pardon. Of course, yes,

Your Honour, because that would be clearly

inconsistent with the line being taken at the

trial.

GAUDRON J: Yes. Now, it must be then, must it not, that if the failure to cross-examine Mr Crawley is properly

to be viewed as an adherence to what was said in

the record of interview that you could say, "And he

adhered to that record of interview at the

committal proceedings".

MR HIDDEN: If the line of cross-examination was clearly

based upon an adherence to the record of interview,

I suppose so, Your Honour. It would be difficult

to conceive of a line of cross-examination that

would clearly demonstrate that that was the

accused's case. It certainly was not the case

here.

GAUDRON J:  No, but the question then really is, can you say

that the failure to cross-examine did amount to

such an adherence?

MR HIDDEN: In this case, Your Honour?

GAUDRON J: Yes.

MR HIDDEN: Certainly not, Your Honour, we would submit.

All that was put was that the conversation as described by Mr Crawley did not happen, did not

occur, that is what was put and, in effect, that

was what the accused was saying in the trial.

There was a conversation but not that one.

GAUDRON J: So, if it in some way at all confirmed the

record of interview, there would be nothing wrong

with the summing up at all?

MR HIDDEN: Well, if he confirmed the record of interview,

Your Honour, the summing up might have been in

rather different terms.

GAUDRON J: In some way. That is right, it would have been

worse from your point of view than this one, but

this one, if it had confirmed it, would not, if it

had in some confirmed it or some way suggested that

your client was still adhering to that account?

DAWSON J:  What you say is you cannot read confirmation into silence.

MR HIDDEN: No, precisely, Your Honour. Yes. It perhaps

gets back to the original point, Your Honour. If

there were a line of cross-examination from which

it was as plain as a pikestaff that the solicitor

Petty 38 27/2/91

indulging the cross-examination had instructions

consistent with the record of interview, then - - -

GAUDRON J: But, at least outside the area of the criminal

law, there are situations in which the failure to draw attention to a matter is the equivalent of a

positive assertion as to that matter.

MR HIDDEN:	Yes.
GAUDRON J:	Now there must be cases also in this area where

that can be said.

MR HIDDEN: Well, it may well be the case, Your Honour,

within the trial itself, but we cannot conceive of

such a situation pre-trial. Clearly, within the

trial itself, what is and what is not asked is of

great importance.

GAUDRON J: It may depend, as Justice Deane said, on whether

there has been an earlier statement.

MR HIDDEN: Well, Your Honour, our submission is no. No

inference can be drawn from the fact that a man

having made one statement chooses not to make a

different one before he comes to trial, in the

exercise of his right to remain silent.

BRENNAN J: Well then, why do you put it on that basis as

distinct from the adversary proceeding?

MR HIDDEN: I am sorry, Your Honour. Yes, I understood

Your Honour Justice Gaudron to be speaking very

generally of the entire period; from when first

spoken to to the time of the trial - yes, a

fortiori in committal proceedings, we would submit

that the law is correctly stated in Birks. There

is no obligation to put anything at all or any

particular matter, you can put what you like; you

can choose not to put things, because really, as

this Court emphasized in Barton and I think in

Grassby, in a very different context, committal

proceedings give the accused an opportunity to

cross-examine, but no obligation to do so.

Well now, Your Honours, our submission also is

that the in so far as His Honour directed the jury

that while the accused's failure to raise this

defence prior to the trial was not a matter from

which they could drawn an inference of guilt, it

was a matter which they could have regard to in

assessing the weight of his defence. Your Honour,

in our respectful submission, that direction in

turn was in error.	It was based upon Ryan in
England.	We submit, with respect, Gilbert

correctly states the law, and that the distinction

made in Ryan is an illusory one, and that even the

Petty 39 27/2/91

comment His Honour did make as to that matter

amounted to an invitation to the jury to draw an

inference adverse to the accused from the fact that

something was not raised prior, and that is what

the law forbids.

As we said, Your Honours, the Court of

Criminal Appeal itself was of the view that

His Honour's directions went too far and were in

error but applied the proviso and, of course,

reasons for doing so were given - towards the end

of the judgments, Your Honours, commencing at

page 230. Their Honours referred to Wilde v Reg,

(1988) 164 CLR 365 and, in particular, to the

passage from the joint judgment of Your Honours

Justices Brennan, Dawson and Toohey. The passage

is there set out in the application book and that
is the passage in which Your Honours referred in

particular to the line of cases dealing with

whether an accused has lost a chance which was

fairly open to him of being acquitted by the error
in the trial, a question which is decided, of
course, no doubt in the light of the apparent

strength of the Crown case.

But, Your Honours in the majority in Wilde did

go on to say that that is not the only test.	At
page 372 of the report in Wilde, Your Honours
referred to a submission:

that the question whether a reasonable jury

would inevitably have convicted does not arise

when the error in the conduct of the trial is

fundamental.

Your Honours went on to deal with that

submission; referred to Quartermaine v Reg; and,

having done so, said at the bottom of page 372:

This view is undoubtedly correct, for the

proviso was not intended to provide, in
effect, a retrial before the Court of Criminal

Appeal when the proceedings before the primary	court have so far miscarried as hardly to be a
trial at all. It is one thing to apply the
proviso to prevent the administration of the
criminal law from being "plunged into outworn
technicality" (the phrase of Barwick C.J. in Driscoll v The Queen); it is another to
uphold a conviction after a proceeding which
is fundamentally flawed, merely because the
appeal court is of the opinion that on a proper trial the appellant would inevitably
have been convicted.
Now, Your Honours in the majority were none

the less of the view that in Wilde the proviso was

Petty 40 27/2/91

properly applied, taking the view that the error there was not the type of fundamental flaw which

would have prohibited the application of the

section. Your Honour Mr Justice Deane was of a

different view from the majority but expressed the

principles, in our submission, in much the same

way. At page 375, Your Honour referred to

section 6(1), the one providing for the proviso,

and to its terms. But, just prior to that,

Your Honour said:

The fundamental prescript of the

administration of criminal justice in this
country is that no person should be convicted

of a serious crime except by the verdict of a

jury after a fair trial according to law.

And, having referred to the proviso, Your Honour

said that it:

does not negate that principle. The reason

why that is so is that it is simply not open

to a court of criminal appeal to dismiss an

appeal, in reliance on such a proviso, on the

ground that there has been "no substantial

miscarriage of justice" in a case where error,

impropriety or unfairness has pervaded and

affected the trial to an extent where the

overall trial ceased to be a fair trial

according to law. In such a case, the verdict

of guilty is intrinsically flawed and it is no

part of the function of a court of criminal

appeal to say that the accused is, in its
view, so obviously guilty that the requirement
of a fair trial according to law can be

dispensed with.

And Your Honour went on to say that in this case,

in Wilde, the case was gravely affected by

unfairness and error to the extent that it was

irredeemable. Your Honour Justice Gaudron, in

dealing with the requisite principles, was also of

the view that the proviso ought not to have been

applied, said this at page 382, having referred to

some of the previous authorities including

Driscoll, Your Honour said this:

With respect to those who hold a contrary

view, I am unable to accept that the question

which arises when there has been an error of

law in the course of a trial resulting in a

wrong statement of the legal principles

relevant to the jury's consideration of its

verdict or the receipt of inadmissible

evidence or the rejection of admissible

evidence is ever to be answered by reference

Petty 41 27/2/91

to an appellate court's view as to the

strength of the prosecution case.

And at page 385 Your Honour said:

To allow a verdict to stand notwithstanding

that evidence was improperly admitted or that

the jury was invited to make impermissible use

of evidence in determining factual questions

is to overlook the fact that the jury may well

not have been satisfied as to those matters

solely on the remaining evidence. If the proviso allows such a course of action it allows for the decision of an appellate court

to trespass upon and undermine the role of the

jury in a criminal trial. I cannot accept

that such a consequence was intended by or is

implicit in the proviso to s.6(1) of the Act.

Now in applying the proviso here

Mr Justice Priestley said this, Your Honours,

page 231, having referred to the passage from

ml~:

The error which I earlier concluded had

been present in the summing-up was that the

judge had suggested to the jury that an

obligation had lain upon the first appellant

to put forward his case in sufficient time for

the Crown to be able to investigate it fully

and that he had wrongly failed to meet that

obligation. Did the first appellant lose a

real chance of acquittal because of this?

Would he have inevitably been convicted if

this had not been suggested to the jury? In my opinion both of these questions should be answered adversely to the first appellant.

That is our client. His Honour went on to say, in

effect when one puts the direction in its context

of the lengthy summing up as a whole, he referred

to its small place in the summing up:

particular significance for the jury at all.	it seems to me very unlikely to have had any
The proper directions were given on several
occasions, prominently -

by which I take it His Honour meant the Ryan style

direction which His Honour did give. His Honour

concluded:

I cannot see that the passages in the summing-

up which I have earlier discussed extensively
on this point, were such as, in the

circumstances of the whole summing-up, to have

left the jury with the impression that they

Petty 42 27/2/91

could take earlier silence into consideration
in corning to a conclusion as to where the

truth lay in the case or to have put into

their minds the idea that an adverse inference

could be drawn against the first appellant

because he had remained silent.

And he concluded that:

an error in the summing-up did not cost the first appellant a real chance of acquittal.

Now, Your Honours, confining ourselves simply to

the application of the proviso as the Court of

Criminal Appeal did it, we would submit that the

court had regard only to the loss of a reasonable

chance of acquittal test. It appears to have had

regard only to that test and has had no regard to

the more fundamental matters of principle referred

to by the majority in Wilde and by Your Honours -

in different forms of expression by Your Honours

Justice Deane and Justice Gaudron.

have regard only to the loss of a reasonable change
of acquittal test but appears to have had regard
only to that test and has had no regard to the more

fundamental matters of principle referred to by the

majority in Wilde and by Your Honours - in

different forms of expression by Your Honours

Justice Deane and Justice Gaudron.

The court did not appear to have considered

whether the proceeding had been fundamentally

flawed, as the majority put it at page 373.	"The
court failed to consider", in the words of

Your Honour Justice Deane, "whether the verdict is

intrinsically flawed" or in the words of

Your Honour Justice Gaudron perhaps, at 384, where

Your Honour said:

Where there is an error of law the proviso may

be applied when it can be said that the law

was correctly applied by the jury

notwithstanding the error.

Now, Your Honours, in our submission, it was not

open to the Court of Criminal Appeal to apply the proviso even upon its view of the case, but we do

submit, Your Honours, a fortiori, if the directions

of Mr Justice Hunt were wholly erroneous and the

view of the Court of Criminal Appeal in England in

Ryan is wrong, as we submit, and if the

re-examination should never have been permitted in the first place, then this trial has irretrievably miscarried and on no view of the proviso in

New South Wales, however expansive, could these

Petty 43 27/2/91

convictions stand. Those are our submissions on

behalf of Mr Maiden, if the Court please.

MASON CJ: Thank you, Mr Hidden. Yes, Mr Macgregor.

MR MACGREGOR:  Your Honours, I feel that Your Honours

perhaps should have, if Your Honours do not already

have them, the document which was prepared by the

trial judge, which set out what he perceived to be

the issues which he was leaving to the jury against

each of the accused, so that Your Honours can see

how Petty was affected by the course which the

trial took, arising from the way that the witness

was cross-examined on behalf of Maiden at the

committal proceedings. A three page document was

prepared. I have but one copy of it. I will

arrange to have copies of the document made. It is

referred to during the course of Mr Justice Hunt's

summing up at page 149 of the appeal book, where
His Honour said:

Members of the jury, you will see from that document -

that is the document which was handed to the jury -

that the Crown case against Petty on the

charge of murder is based only on his acting

as an accessory to the murder of Mark White by

Maiden. There is, I repeat, no evidence at

all that is available in the Crown case

against Petty that Petty killed Mark White

himself. None of the statements made by

Maiden to which we have been referring are

evidence against Petty in the case against

Petty, nor is Maiden's record of interview.

There was a record of interview tendered in the case against Petty, again, copies of which I will

provide to the Court, and during the course of it

the relevant matter is in response to question 10,

which I can summarize by saying that shortly he

went away from where Maiden and others were with

the deceased and when he came back he observed that

Maiden was in a situation where he and the deceased were wrapped around each other, in some form,

apparently having been involved in some fight or

wrestle or some such.

TOOHEY J:  We have that document.

MR MACGREGOR:  As Your Honours please. But Your Honours do

not have the issues document which may be of

assistance. Petty's statement was referred to by

the trial judge at page 156 of the appeal book, and

there is an important error on the page which may,

Petty 44 27/2/91

or may not, lead Your Honours into error. There is

a reference at line 9 to:

According to Petty's own sworn

statement -

that is a misprint for "Petty's unsworn statement'',

and that is summarized there -

he did not see the start of what he described

as a fight, so he is unable to say for himself

just how it started -

and so on. Your Honours will see on the next page,

it was left to the jury on the basis:

If the Crown has not satisfied you that

Maiden was not acting in self-defence, then

you must outright acquit Petty of the charge

of murder by finding him not guilty. That is

the end of this case on the issue of murder.

You would have to turn to the alternative

charge of being an accessory after the fact of

murder.

If the Crown has satisfied you that

Maiden was not acting in self-defence, and if

the Crown has also satisfied you that it was
the act of Maiden which caused the death of

the deceased and that it was done with intent

to kill -

and so on. During the course of the appeal the

relevance of this point in the trial of Petty was

referred to by Mr Justice Priestley at page 26 of

the judgment, which appears on page 220 of the

appeal book, and at the bottom of that page

His Honour said:

Before going on to these other grounds, I

should recall that the misdirection relied on

by the first appellant was, by way of

corollary relied on by the second appellant.

Although the misdirection primarily concerned

the first appellant's case, if the Court were

to conclude it led to the jury really being

likely to consider matter adverse to that

case, in a way they were not entitled to
consider it, then since the case made by the

first appellant at the trial was in substance

similar to that made by the second appellant,

there would be a clear possibility that the

second appellant's prospects of acquittal,

poor though they may have been, were also

affected by the misdirection.

Petty 27/2/91

I just want to give Your Honours one or two

other references beyond those given by my learned

friend, which may be helpful, relating to the

medical evidence and how that was left to the jury
by His Honour during the course of the summing up. At page 81 of the appeal book, His Honour told the

jury that:

Dr Oettle, the specialist pathologist of

some thirty years' experience, told you that

he could not fix the cause of death because of

the degree of decomposition in the body.

On page 85, he said:

The reason why Maiden would no doubt like

you to concentrate on the uppercut, of course,

is that it may be perhaps a little easier to

accept the theory -

or His Honour interpolated -

(or the reasonable possibility)

which is the relevant matter, as distinct from

theory -

that the particular act was done in self-

defence than was the subsequent headlock and

the maintenance of that headlock for such a

long period of time.

And later, at appeal book page 136, the judge told

the jury:

Dr Oettle told you that this injury to

the first cervical vertebra, which he observed

at the time when he examined the body, could

have been caused if Mark White had been held

under his chin by someone with that person's

knee between his shoulder blades -

and so on.	I think they are all of the relevant
matters.	Your Honours we adopt the submissions

which have been advanced to the Court by my learned

friend. Helpfully, perhaps, I would wish to say

one or two additional things. If I could take

Your Honours to the - - -

BRENNAN J: Could you outline how it is that this problem

that arose in Maiden's case affects your client?

MR MACGREGOR:  I thought I had done so, Your Honour. If the

jury was satisfied that the death of the deceased

was caused accidentally by Maiden, then there would

be no case of murder against Petty at all.

Petty 46 27/2/91

DAWSON J:  To which your client can be an accessary to the -

- -?

MR MACGREGOR:  Yes, Your Honour.

BRENNAN J: But, he was not convicted of being an accessary,

was he?

MR MACGREGOR:  No, Your Honour, he was convicted as a

principal in the murder in the second degree, but
if, quite clearly, the defence of accidental death
was as available to him, if the jury were to accept

Maiden's account of what had happened, if the

deceased had died accidentally during the course

either of self-defence or some fight between Maiden

and the deceased, then there is no basis on which

there could have been a conviction for murder

against Petty, no basis at all.

BRENNAN J:  And this is on the same body of evidence, is it?

MR MACGREGOR:  Yes, Your Honour. Your Honour will see that

it is suggested by the trial judge, and it is

clearly the fact, that there is no evidence that

Petty was involved - I am sorry, I do not want to

misquote it.	I will restate it in terms in which I
put it to Your Honours earlier.	I gave

Your Honours a reference to it a few moments ago.

At page 149, His Honour said - Your Honours do not

have the document. It is unfortunate Your Honours

do not have the document at the moment but it was

left to the jury on this basis. If the Crown has established in the case against Petty that it was

the act of Maiden which caused the death of

Mark White and that it was done with an intention

to kill or inflict really serious bodily injury and that Maiden was not acting in self-defence and that

at the time when the act was done by Maiden, Petty

both was present and intentionally gave aid or

encouragement to Maiden in doing the act, then

Petty is guilty of murder.

BRENNAN J:	What was the evidence against Petty that Maiden had murdered?
MR MACGREGOR:	Only the statements in his record of interview, Your Honour.

BRENNAN J: In Petty's record of interview?

MR MACGREGOR:  In Petty's record of interview which

Your Honours have and is set out in answer to

question 10 at page 3.

BRENNAN J:  Why is it that the problem in Maiden's case then

affects that body of proof?

Petty 47 27/2/91

MR MACGREGOR:  I am sorry, when Your Honour says "that body

of proof".

BRENNAN J: That is, the body of proof by which it was

proved against Petty that Maiden had murdered the

deceased.

MR MACGREGOR: Well, Your Honour, as I put to Your Honours

before, it was an element of the charge of murder

against Petty that the Crown had to establish that

Maiden was not acting in self-defence at the time

of the death of the deceased.

BRENNAN J:  I appreciate that, but you tell me that the way

in which that was proved against Petty was by

Petty's confessional statements.

MR MACGREGOR:  I am sorry, I am not suggesting that,

Your Honour. By his own admission, he was present

at a time when the deceased was still alive because

his legs were said to be moving at the time and

there was some activity taking place between Maiden

and the deceased at the time when Petty returned
from wherever he had been to where Maiden and the

deceased were then present when Maiden was still

alive. It is all to be derived from the record of

interview.

McHUGH J:  I have difficulty with that. I can understand a

case against him that he was guilty of murder in the first degree as a party to a conspiracy from the general circumstances of the case. I find it

very difficult to see how he was an accessary on

his record of interview.

MR MACGREGOR:  Your Honours, all I am suggesting to

Your Honours is the way that the case was left by

the judge to the jury. I mean, the man was

convicted on the basis of the way the trial was

developed; the matter was left to the jury on this

basis; it was left on the basis that for Petty to

be guilty of murder the Crown had to establish,

affirmatively beyond reasonable doubt, that Maiden

was not acting in self-defence at the time that

Petty was - - -

BRENNAN J:  Nobody doubts that proposition, I should not

have thought, Mr Macgregor. The question is how is

it that in the proof of that issue against Petty
the problem arises in Maiden's case affects the

ordinary course of the administration of justice?

MR MACGREGOR:	Your Honour, I cannot put it any better or otherwise than this, Your Honour: it was left to
the jury that in order to convict Petty of murder
there was an issue which the jury had to consider
and that was whether or not the cause of the death

Petty 48 27/2/91

of the deceased was accidental. Now, Your Honour,

our submission is that the way that the matter was

left by the judge to the jury was to effectively
deprive the accused, Maiden, and therefore Petty of
the defence of accident. It was so undermined by
the way that the judge left it to the jury and all
of the materials to which my learned friend
adverted as giving rise to matters of general

importance are equally applicable for that reason

to the applicant, Petty.

BRENNAN J: Is it accepted that the confessional statement

attributed to Maiden was admissible against Petty

to prove the truth of the facts to which that

statement related?

MR MACGREGOR:  No, Your Honour. What I was proposed to

take Your Honours to was the material in the appeal

book. We would adopt the criticism of the analysis

carried out by Mr Justice Priestley on behalf of

the whole court of the way that the matter was left

to the jury by Mr Justice Hunt.

DAWSON J:  A jury could not find Maiden not guilty of

murder and Petty guilty, could they?

MR MACGREGOR:  No, Your Honour, and the jury was expressly

told that.

DAWSON J:  Yes. That being so, by whatever evidence Maiden

was held guilty of murder was crucial to Petty's

case. That is simply it, is it not?

MR MACGREGOR:  Yes, Your Honour. That is what I had rather

hoped, but clearly I had not, been putting.

McHUGH J:  Is that right? Was there not an admission

against Petty that	he had said to Crawley, "Do	you
think we should do	Mark in?", or that was said	in
Maiden's presence,	was it?

MR MACGREGOR:  I am not certain, Your Honour. I will have

to ask my learned junior. Your Honours, I

understand that that is another Crawley.

McHUGH J:	That is Ronald Crawley is it?
MR MACGREGOR:	Yes, Your Honour, as distinct from James

Crawley. Your Honour, the problems that arise

directly on the face of the judgment of the Court

of Criminal Appeal because the Court of Criminal

Appeal felt that Mr Justice Hunt was bound by the

decision in Sadaraka to admit the evidence and thus

we make what we submit is a strong attack on

Sadaraka for the reasons my learned friend referred to. Primarily it misstates what - in respect of a

matter which does not concern Your Honours in this

Petty 49 27/2/91

case, that is as authority for the proposition that

there is no right in an accused for a jury to be

informed, that no inferences adverse to an accused can be drawn from silence, it simply misquotes the

judgment of Mr Justice Kitto in Woon, or it

misstates the position.

MASON CJ:	Mr Hidden made that point.
MR MACGREGOR:	I do not want to pursue it beyond saying

that in addition to that error which we suggest, in

picking up Ryan and running with Ryan, it simply

ignored the later decision of the Court of Criminal

Appeal in Gilbert.

Your Honours, the difference between what is

permitted by Sadaraka and, in any event, what

Mr Justice Hunt did we suggest is significant.	The
point is that if there was a comment which was

permitted, then it was interpreted by the Court of

Criminal Appeal as going well beyond the type of

comment that might be permitted.

What I wanted to draw Your Honours' attention

to is this, my learned friend said that there was a
line of authority that was based on the alibi

cases. The first hint in the Australian

authorities that some other explanational matter of

defence may be the subject of comment arises in

Bouquet. Your Honours do not have a reference to

the judgment in Foster which is a New Zealand case,

but it was in Foster for the first time where it

was suggested that comment may be made in relation

to other matters other than alibi but there is not to be found in the Australian decisions up to that
time any reference to any other matter as distinct

from alibi and Your Honours will see that the line

of authority based on alibi is derived from

Littleboy.

Your Honours will see that the line of

authority based on alibi is derived from Littleboy

court sought to restrict what it was there laying	and it is important to note, in Littleboy, that the	down. In Littleboy, at page 413 of the report, the
Chief Justice has said:

We are not seeking to lay down, nor would

it be useful to lay down, any general
proposition either with regard to the defence

of alibi or with regard to the disclosure of

defences. The question which we have to

determine is a much more limited one - whether

it is a misdirection for a judge to say that

failure to disclose an alibi in time to afford

an opportunity of its being tested is

Petty 50 27/2/91

unfortunate and something to be borne in mind

with reference to the value of the defence.

And, at page 414:

The observations of the Court in Rex v Naylor

were never intended to go to that length.

There is a great difference between making the
comment that silence on the part of the

prisoner is unfortunate and a matter to be
regarded with reference to the weight of the

defence, when the defence of alibi is raised,

and saying that the fact that the prisoner was

silent may be treated as evidence against him

or as corroborating the evidence of an

accomplice.

It is important to note, in our submission,

that in Gilbert the court, as it were, seemed to

desire to cut back the effect of that line of

authority when it said - again, I have the case

reported in the - I think Your Honours also have it

in this report - at page 244:

We regard the present position as

unsatisfactory. In our view it may not be a

misdirection to say simply "This defence was

first put forward at this trial" -

that is in inverted commas; that is the comment

that they limit it to -

or words to that effect, but if more is said,

it may give rise to the inference that a jury

is being invited to disregard the defence put

forward because the accused exercised his

right of silence, in which case a conviction

will be placed in jeopardy.

TOOHEY J: There is a certain unreality, Mr Macgregor, in

suggesting that it may not be a misdirection to say

simply, "This defence was first put forward at
trial".	I mean, what if the jury comes back and

asks for some exposition of that statement? What

is the trial judge to say?

MR MACGREGOR:  Precisely, Your Honour. The suggestion that

there is a difference - it is implicit in all of the cases, and express in some of them, that the

restriction on comment does arise from the right of

an accused person to silence. During the course of
argument some members of the Court have suggested

that it may be a misnomer in terms of the facts of

this case, but Sadaraka and Gilbert and the cases which the Court purported to apply in these cases depend upon the right to silence for their

rationale.

Petty 51 27/2/91

Now, my learned friend has described as

illusory - and we submit it is illusory - to

suggest a distinction. It is really playing with

words because if one looks at the suggested

dichotomy in Ryan one is simply exacting a

restatement of - the second proposition is just

another way of restating the former.

TOOHEY J: That is a different problem to the one that

arises from what is said at the foot of page 244 in

Gilbert. That simply admits as not giving rise to

a misdirection a statement that goes no further

than to say, "This defence was first put forward at

trial" without any further direction to what the

jury is to make of it.

MR MACGREGOR:  Your Honours, we do not concede that the

alibi cases ought to be a recognized exception to

the rule. I mean, we have to go as far as

suggesting that if there is a right to silence the

distinction which is thrown up by the alibi cases

is unreal.

DAWSON J:  Why is it an exception to the rule? Why cannot

you say, "Well, now you may accept", to the jury,

"that the first time this was brought up was at the

trial"?	Now you cannot use that against the
accused.	He has a right to maintain his silence

but it does explain why the prosecution is unable

to counter that .... "they learnt it recently", that

has got nothing to do with the right to silence.

MR MACGREGOR:  It may well not have in those terms,

Your Honour.

DAWSON J: That is what they say, is it not?

McHUGH J:	In New South Wales you have got to give notice of the alibi, have you not, and have for many years.
MR MACGREGOR:	Yes, Your Honour, and whether an alibi in

those circumstances in the absence of alibi can be

raised, of course, is a matter for the discretion
of the trial judge.	The trial judge has a number

of options open to him of course. He can permit the alibi to be raised simply by discharging the jury. The Crown then have notice of the alibi and

the Crown can prepare a case based on the then

knowledge of the alibi. So, the Crown is not

always prejudiced by late failure to - - -

DAWSON J:  I was assuming that a situation where there was

not a notice of alibi becomes irrelevant in that

situation.

MR MACGREGOR:  Yes. But even if there is not the Crown is

not necessarily prejudiced by the exercise of the

Petty 52 27/2/91

judge's discretion because he also has a discretion

to abort that trial and reconstitute the trial at

which time the Crown has notice of it. So, quite

clearly, the alibi cases arose and is an exception

because alibis were thought by the courts to be a

matter of defence which the prosecution could not

reasonably anticipate. The fact that a person was

going to say that he was in Buenos Aires at the

time -

DAWSON J: That was all I was questioning. It is not by way

of exception, it is something entirely different.

MR MACGREGOR:  Yes, Your Honour.

DAWSON J: Because you are not using the right to silence

and the failure to speak as something adverse to

the accused. You are merely using it, the fact

that there was silence, to explain why the

prosecution finds itself in a particular

predicament.

MR MACGREGOR:  Yes, Your Honour. The critical matter in

this case is that the Court of Criminal Appeal said

that whatever comment may have been permitted by

that line of authority in so far as it restricted

to a comment that it was being raised for the first

time at the trial, it would necessarily have been

treated by the jury as an invitation to the weight
to be given to the whole of the case against the

accused and is going to the general issue, not just

to - - -

DAWSON J: That is a different thing.

MR MACGREGOR:  Yes, but I mean that is the way the

Court of Criminal Appeal dealt with it. They said

that is the fundamental error in it, but, I say

again, the line of authority which leads the court
to that conclusion, is all expressed in terms of

the right to silence and exceptions to the right to

silence. Your Honours do not have the reference to

the Foster case -

MASON CJ:  We have it now.

MR MACGREGOR: - - - but it is referred to in Bouquet so I

do not have to deal with it further. Well,

Your Honours, we would also adopt what has been put

by my learned friend in relation to the proviso.

For our part we see no real - the majority judgment

and the two other judgments in Wilde would appear

to overlap. To the extent that there is a

significant difference between the members of the

Court, if there is any difference at all, is that

Justice Gaudron for her part sees the issue of - if

Petty 53 27/2/91

Your Honours would pardon me for a moment until I

pick up the reference.

MASON CJ: Well, we can read the judgments for ourselves,

Mr Macgregor.

MR MACGREGOR: Well, I am sorry Your Honour, I was not going

to read the judgment. I thought that in so far as

that was a real distinction, we say that the

effective removal that what the trial judge's

direction to the jury, as assessed by the

Court of Criminal Appeal was, was to suggest that

an accused may be penalized for not giving notice

of a defence or that he failed to cross-examine at

committal, when there was no obligation upon him to

do so, having regard to the whole of the summing

up, was to invite the jury to treat the defence of

self-defence or accident in a way which was unfair

to the accused.

In so far as Your Honours have to read the

whole of the summing up, perhaps I should just

indicate to Your Honours that some of the summing

up was expressed in the language of derision. In

relation to the injury which caused the death,

there were references to pygmies inhabiting the
area where the death occurred and there were

references to ''007» and matters of that kind. When one reads the whole of the summing up, the Court of

Criminal Appeal saw it not as being restricted merely to comment on the late explanation which, we

would say, should not have occurred in any event

but was effectively to remove the consideration of the defence from the jury in any real sense. I do

not wish to add anything further.

Your Honours, my learned friend has just

indicated to me, we had sought to suggest in the outline that there were divergent views taken by the courts in Australia as to that original aspect
of Sadaraka as to whether in every case the jury

ought to be informed that they were not entitled to

draw inference adverse to an accused from the
exercise of the right to silence.	I have been

reminded by my learned friend that there is

implicit, I suppose, in the language of the

judgment of the Federal Court in King an invitation

for this Court to look at the question because of

what it saw there as the conflict. Sadaraka has

been disapproved in cases in Victoria. In

Queensland, it has been followed. Indeed, in

Queensland in 1988, the court in Queensland seemed

to suggest that it might be a misnomer to refer to

a right to silence but the authorities are - - -

BRENNAN J:  What case was that, Mr Macgregor?

Petty 54 27/2/91

MR MACGREGOR: That is the case of Fraser, Your Honours, it

is in my list. I will give Your Honours the

citation to it. It is 32 A Crim R 477.

MASON CJ:  I think the judge's inquiry was merely for the

citation, Mr Macgregor.

MR MACGREGOR:	I am sorry, Your Honour.
MASON CJ:	The judge merely wanted the citation.
MR MACGREGOR:	I have just given it, 32 A Crim R, thank you.

MASON CJ: Yes. Thank you, Mr Macgregor, Mr Blanch.

MR BLANCH:  May it please the Court. I hand up some copies

of outline of our submissions, if the Court

pleases.

MASON CJ: Yes, Mr Blanch.

MR BLANCH:  May it please the Court. There was some

questions that were asked of my friend that I would

like quickly to address. There was one question

that was asked, "What could the police have done if

there had been an earlier raising of the defence?", which is a practical question of some importance in

terms of the debate. The only answer that I can

give to that question is this, that what the police

did with James Crawley was to take him back to Yass

where this conversation had occurred because they

had moving as a group of people around the

countryside. They took him back to Yass and sat

him down in various positions in an attempt to

refresh his memory as to what the conversation was

or where the conversation occurred and it had been

suggested that in a slightly different part of Yass

another conversation had occurred that they may

have done the same thing. But that would be as

much as I can conceive that the police could have

actually done in furtherance of examining the

question about whether there had been this further

conversation.

To put that in its context, the conversation

that James Crawley gave evidence about was a

conversation that he said had happened at the motel

in Yass. The conversation that was put to him was

said to have occurred while he and Maiden were

walking up the street at Yass to a service station

to get some petrol. Another question was asked as

to whether there was anyone else present at the

time of the conversation upon which the Crown case

relied? The answer to that is that Danielle Curry,

who was the female companion of the deceased, was

called by the Crown at the trial to give evidence

as to her presence at that conversation and she

Petty 55 27/2/91

failed to do so and was declared hostile and

cross-examined on a statement that she had made

previously.

And the third matter that I would like to

mention was it was said that, in the course of
cross-examination at the committal proceedings,
there had been a cross-examination of Dr Oettle to

suggest that the injury causing death could have

occurred accidentally. The depositions are not

part of the application book, however we have

looked at the cross-examination from the committal

proceedings and the Crown would not be prepared to

concede that Dr Oettle was cross-examined as to

accidental death. If I might just explain that, as

I see the cross-examination, as I understand the

cross-examination, there was a degree of

cross-examination about how such an injury could

have occurred, various hypotheses about how arms or

hands were and the neck was, but nothing

specifically put in terms of accident. To attempt

to suggest that that was put at the committal

proceedings, you would have to rely on our

suggestion that one of those possible hypotheses

was hypotheses that could have occurred in an

accidental type situation.

Going then to the outline, the first point in the outline deals with the admissibility of the

evidence that was called in reply. The cases that
are quoted at l(b) are all cases which deal with a

situation where what occurred at the committal
proceeding was used - or what did not occur at the

committal proceeding - was used as evidence during

the course of the trial, which addresses one of the

areas of the debate that was raised here.

To put all of that in context, I would

emphasize to the Court that the direction given by

the trial judge about all of these things was very

much in terms of the fact that this was a defence

been raised earlier than the trial, either during	of accident which occurred late and which had not	the course of the record of interview, or during the committal proceedings, or subsequent to the committal proceedings, or at any stage during the
course of the trial. So the significance of the
evidence as, in our submission, was put to the
jury, is very much limited to a context where the matter was being put by the trial judge, very much
on the basis that it was material that had come
forward now, and - - -

McHUGH J: But that theory seems to assume that there was

some obligation to put it forward or to cross-

examine on it at the committal.

Petty 56 27/2/91

MR BLANCH: Not necessarily, Your Honour. If I might just

go on to point l(c), the other matter that I would

like to raise in conjunction with this is the fact

that the reality of the situation must have been at

the trial that the witness was being cross-examined
to suggest that the accused Maiden had raised with

him the version that it was accidental at the time

that they were in Yass.

Now, obviously, there is a forensic advantage

to Maiden in raising that at that stage and no

doubt it would have grounded a submission to the

jury that not only was the killing accidental but

Maiden had raised it at a very early stage; had

told James Crawley at a very early stage that the

killing was accidental; had told him that at Yass

when he had first, in confidence, given him a

version of what had happened.

McHUGH J:  But accepting that as so, that was denied, what

light does it throw on that - the raising of it at

that stage - that they did not cross-examine at the

committal?

MR BLANCH: Well, Your Honour, what I was trying to do in

what I am saying at the moment, is to put what did

not happen at the committal in perspective and it

is in this perspective, in our submission, that

Maiden sought to raise the fact that he had claimed

accidental death at a very early stage. And,

subsequently, that is precisely what he did say in

his statement in spite of the fact - and I should
point out at this stage - that in his record of
interview he said - at question 47 and the answer
to question 47 in his record of interview, it was

put to him that there had been a conversation with

Daniel Curry and James Crawley while they were

sitting in some tables and chairs at the motor inn

at Yass and he said, in the record of interview:

The conversation was about Mark and I told

Danny and James that me and Joe had done him

and never to repeat it because if Joe finds

out that I told you he'd kill all of us.

Now, the answer more specifically to

Your Honour's question is this: all this was

simply founding a submission by the Crown in answer

to all of that, that that was totally wrong; that

he had not said anything to James Crawley about it.

His claim that he had raised the defence early was

wrong and not only had he not told James Crawley

that but he had not said that to anybody else

or - - -

DAWSON J:  And was Crawley asked in the examination in-chief

whether he had said this?

Petty	57	27/2/91
MR BLANCH:	No, Your Honour, he was not.	What was put to

Crawley in cross-examination appears at page 20 of

the appeal book. I am sorry, page 20 of the appeal

book, at line 30, is where it was put to him that

he had said he had:

accidentally killed a guy.

Now, at page 50 of the appeal book, in

cross-examination, what was put to him was rather

in terms of the question that appears at line 20 on

page 50.

DAWSON J: This is re-examination. The Crown did not put it

because it knew nothing about this examination

in-chief. It arose in cross-examination and - - -

MR BLANCH:  Yes, this is a re-examination, and it is at

line 20 on page 50 that the nature of the answer

is - the question was rather in terms:

did one word be put to you along the lines of the purported conversation that Mr Gordon put

to you yesterday?

McHUGH J: But what is the theory that enables the Crown to

get that evidence in in re-examination?

MR BLANCH:  Your Honour, it is this, in our submission, in

this case, that the issue was raised in

cross-examination by the accused's counsel that he

had at an early stage raised a defence of accident

and the Crown was entitled to reply to that that

that just was not so and the Crown is entitled to

give that evidence not only as what happened at

Yass and in the committal proceedings as well.

McHUGH J:  But why fasten on to the committal proceedings?

On your theory the question should have been,

"Before today has it ever been suggested to you by

Mr Maiden that the death of the deceased was

accidental?".

MR BLANCH:  Certainly it could be in terms of that,

Your Honour, but there is no reason why it should

not be in more specific terms than this and

fastening on to the committal proceedings because

the committal proceedings are at a time when there

was in fact cross-examination. It has been

included in the appeal book. It was not put to

him. The particular passage was read out,

page 257.

McHUGH J:  But it rather indicates, does it not, that the

committal proceedings are fastened on because there

was some obligation, that the jury might think that

Petty 58 27/2/91

there was some duty or obligation on the accused to

put it at that stage?

MR BLANCH:  No, Your Honour, it was fastened on because it

was an opportunity for the accused to put it at

that stage.

McHUGH J:  But he had opportunity. He had six months

or

MR BLANCH: It is a more precise opportunity, Your Honour,

though when he is at the committal proceedings and

he was questioned and he was asked, was he

cross-examined about things at the committal

proceedings and he said, yes, and it was put to him

in a more general form than specifically what was

put to him at the committal proceedings and what

was put to him at the committal proceedings was,

the conversation did not occur although it is said

now that there may be some ambiguity about that

because it may be talking about the conversation at

the motel rather than a conversation walking up the

street from the motel.

DAWSON J: But, the difference is, surely this, that if he

were asked about the original conversation with

Crawley and it was put to him, "Well, did he say

anything else? Did he say anything about it being

an accident?" and so on. It is not put by way of

criticism, but the cross-examination as to what

happened at the committal proceedings is put by way

of criticism of his exercising his right to

silence. There is a difference.

MR BLANCH:  No, in my submission, Your Honour, there is not.

It is put as being at the committal proceedings

simply because the committal proceedings is one

specific focus and it is a specific focus where he

was cross-examining about the conversation, or a

conversation, at Yass and it was an opportunity to

raise this.

DAWSON J: May I put it to you another way? If, when he was

talking with Crawley, this had happened, you would
have expected him to tell Crawley about it and if

Crawley says it did not happen, that may be

relevant, but there is no relevance in the fact

that he did not say something at the committal

proceedings because he had no obligation to do so.

MR BLANCH: There is relevance, Your Honour, in the fact

that he did not say anything before the trial and
the committal proceedings was one of the focuses of

events before the trial at which there was an

opportunity for him to do so.

Petty 59 27/2/91

TOOHEY J:  But you seem to be putting two propositions.

One, is that the committal proceedings furnished an opportunity which was not availed of and because it was not availed of, paved the way for the

re-examination. The other is, that having opened

the matter by cross-examination, the way was clear

for a question to be asked in re-examination.

Which way do you put it?

MR BLANCH:  I put it in both those ways, Your Honour,

because the second way is important, in our

submission, because it had become an issue in the

trial at that stage, clearly by raising the fact or

suggesting that he had raised his defence of

accident at an early stage, at Yass, prior to his

arrest, he was putting himself in a position where

he was going to ground an argument which was no

doubt put to the jury that that is exactly what

happened and it is the hallmark of a true

explanation that he raised it at an early stage and

he is telling you again the same story now.

McHUGH J: Suppose he never said anything to the police at

all, he maintained silence right up to the trial,

could you have led evidence to the effect that he

had not told the police about it?

MR BLANCH:	I would have difficulty supporting the proposition that you could, Your Honour. There, in
fact, of course, is some authority that might
suggest that that is possible. There is of course
a very strong philosophical argument that having
been told of your right to silence and you exercise
the right to silence that it is almost - I think the American courts regard it as a form of
entrapment, that to tell someone of their right to
silence and then they exercise it and then you use it against them in any way is a form of entrapment
in terms of being - - -
<McHUGH J:	I must say I have got some sympathy with that

point of view and I would like to hear your

comments on the alibi cases as to what their

justification is.

MASON CJ: You may have a chance to do that after the

adjournment. We will adjourn until 2.15.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

Petty 60 27/2/91

MASON CJ: Yes, Mr Blanch.

MR BLANCH:  The short answer I would make to Your Honour

Justice McHugh is that in the alibi cases the law

developed a public policy of requiring matters to
be brought early because the late bringing of

defences handicapped the prosecuting authorities

investigating meeting them, and - - -

McHUGH J: Well, yes, I can understand that, and perhaps

that does provide a rationale, namely that the

judge can comment on the inability of the Crown or
explain why the Crown cannot deal or may not be

able to have dealt with the piece of evidence, but

that does not get you very far in this case, does

it?

MR BLANCH: Well, Your Honour, our submission in this case

is this is not a right to silence case at all - -

McHUGH J:	No.
MR BLANCH:	- - - here is a case where the accused is given

a version and we are talking about inconsistency.

The Court of Criminal Appeal, as Your Honour will

have noted in dealing with the case, actually

tended to dismiss the idea that there might have

been something the Crown could have done further in

this case, because they said the accident version

was something that would have been investigated so

far as Petty was concerned anyway because Petty had

said that and that the other question about what

could be done about a suggestion that was a

conversation raising accident was something that

was a bit hard to see, and as I have said, the only

thing I can see that could have been done is that

police might have done what they did in any event

and that was take the witness down there to walk up

the street, but that perhaps would not have taken

the matter very far.

McHUGH J:  Can I ask you this: would you seek to support a

decision like Ryan?

MR BLANCH: Well, do I have a right to silence, Your Honour?

The answer, in the position that I am in here,

Your Honour, yes. I would have to seek to support

the decision in Ryan, and the reason that I would

adopt for it is the same reasoning as the reasoning
adopted by Mr Justice Priestley in the Court of

Criminal Appeal, and that is that there is a distinction in reality between the right to silence

and the late raising of a defence where the late
raising of a defence, depending upon all the

circumstances; material which the jury can consider

in assessing its weight, and that there is, in

fact, a distinction between saying that the jury

Petty 61 27/2/91

can infer guilt from silence and saying that a jury

will consider the weight they will give to a

defence which is raised at a later stage than might

be anticipated depending on the circumstances.

In some ways, there is nothing different about

saying that than saying that someone, confronted
with a particular accusation, might be expected to

react to a particular way to it and there are other

instances of something less than a pure right to

silence throughout the criminal law, and it is

said, and I think appropriately, that the doctrine

of recent possession is, perhaps, another exception

to the right to silence in its truest sense.

And there may be circumstances where it

becomes an issue. One of the points that I wish to

make or have already made in this case, is that in
this case this whole question became an issue
because of the defence raising the fact that the

defence of accident was raised at an early stage.

BRENNAN J:	What was the issue?
MR BLANCH:	A forensic issue during the course of the trial,

Your Honour, that the defence was maintaining that

it had been suggested - the question was asked of

James Crawley, "Well did I not tell you, when I was

walking up to the service station with you at Yass,

that this death was accidental?" and it founded an

argument for the applicant in this case that, not

only was the killing accidental as he was telling

the jury today, but that he had in fact said that

right from the beginning.	He had told people that
even before he was arrested.	He told James Crawley

that on the way up the street and he was

overcoming, not only the fact that he was here

raising the defence of accident, if James Crawley

was believed, for the first time at the trial, but

he was also overcoming what he had said himself in

the record of interview and in the record of

interview he had given a completely different

version of the death and not only had he given a

different version of the death, but he had also

adopted James Crawley's version, in general terms,

of what that conversation was, so that he was faced

with a fairly difficult set of circumstances to

overcome at the trial and clearly one good way of

doing that was to maintain the situation that in

fact he had said right from the very beginning, to

James Crawley, that it was an accident. If the

jury in considering that might think, well if that

is what he told James Crawley at the beginning then

what he said in the record of interview was just

obviously a lot of nonsense; what he is saying here

is right, that what he said in the record of

Petty 62 27/2/91

interview was wrong and that he is now here giving

the same accident version again.

So that when he said it actually became an

issue in the arguing between the parties at the

trial and that puts it entirely outside the general situation, as does the fact that we are not talking

about a right to silence situation in any event,
because he did not choose to remain silent from the

beginning and the matter proceeded on that basis.

One matter that has been discussed at length

this morning was the position of the committal

proceedings and the asking of the question about

the committal proceedings and what use was made of

that during the course of the trial. I have quoted

in l(b) of the outline the cases which would

support the proposition that what happened in the

committal proceedings could be used and I have

referred the Court to the particular pages of the
cross-examination.

The particular matter that I wish to put to

the Court about that is just that at pages 216 and
217 of the appeal book appears the critical passage

quoted from the summing up to the jury where the

trial judge directed the jury as to the

significance of these matters. And he made it very

plain, in our submission, at page 216, that there
was a right to silence; he instructed the jury as
to that and that no inferences were to be drawn as

to the guilt of the accused from their silence.

Then, at the very bottom of page 216, he says:

But that does not mean that, as Maiden has

chosen not to remain silent -

and there His Honour is dealing with it on the

basis not of a right to silence but of the fact

that he has chosen not to remain silent, so he is

dealing with it on the basis of an inconsistency -

and as he did offer at least one version of

what happened when he made his record of

interview on 15 February, you cannot take into

account in judging the weight to be given to

this explanation, now put forward so late his
failure to put it forward either at the time

of his record of interview or during the

committal proceedings, at least when James

Crawley was giving evidence to which such an

explanation was directly relevant or at some

later time, but at any event in time for the

Crown to investigate it fully.

Petty 63 27/2/91

It is clear that the trial judge was putting

it to the jury on the basis of an inconsistency and

he was putting it on the basis -

DAWSON J: But he cannot do that, can he? It is very

muddled. Of course the Crown were entitled to

refer to the fact that the explanation which he

first gave was not the explanation which he now

gave.

MR BLANCH:  Yes.

DAWSON J: That is one thing. But to say that you can also

draw an inference from his failure to say something

at committal proceedings is another.

MR BLANCH:  I appreciate, Your Honour, that that has come

forward as a separate issue in this morning's

discussion of - - -

DAWSON J: It is a separate issue.

MR BLANCH: Well, Your Honour, I am attempting to join it up

again by submitting to Your Honour that in this
direction that he is giving - the overall effect of
the direction that he is giving about this is that
we are looking at the version that he is giving

here today at the trial as opposed to a version

that he gave earlier and the version that he is

giving today is a late version if you accept

James Crawley and it is late in the sense that he

had opportunities to put it forward before. And

all he is saying is that it could have been in the

record of interview, it could have been at the

committal proceedings, or it could have been at

some other stage but it has not occurred.

What I am putting, arising out of that, is

that, in the directions that the trial judge gave
to the jury, there is no special significance given

by him to that aspect of the matter. Now, that

submission either goes to the fact that it receded

into insignificance completely or it goes to a

submission that if it had any significance at all

it is such significance that justifies the use of

the proviso as against the strength of the Crown

case in the matter.

As to the strength of the Crown case, that was

fairly shortly summarized at pages 88, 89 and 90 of

the appeal book in six points, the first being at

page 88 that these two men got out of the car with

the deceased, knew where his body was found. The

second point appears at the top of page 89, that

Ronald Crawley was told they intended to strangle

him and Ronald Crawley gave evidence. The third

point, that when they came back to the car they

Petty 64 27/2/91

were "puffed out". The fourth point, they told

Ronald Crawley that the deceased was "tough", and

the fifth point, at the bottom of page 89, was the

evidence of James Crawley about the Yass

conversation. The sixth point, over the page on

page 90, Maiden's own account of what happened.

It is for that reason that I come back to

that, Your Honour, in terms of asking the Court to

look at the reality of what was before the jury,

what the jury were directed about that and that is

fairly neatly encapsulated at the top of page 217

of the appeal book. It is, in our submission, easy

to exaggerate the significance of what was said

about the committal proceedings. Clearly, if, at

the committal proceedings, there had been a

particular attack on the witness which was

inconsistent with what was being raised at the

trial, it is our submission that what was done at

the committal proceedings on his behalf would have
been admissible at the trial.

The problem in this case arises because the

question at the trial related to a general
assertion that there had been no questions asked in

a particular vein but, nevertheless, it is our

submission that the circumstances of this case are

such that if this be the - and that the jury were

entitled to take this into account - fact that he

was maintaining that it was an accident and that he

had told James Crawley that it was an accident,

then it is inconceivable that that would not have

arisen during the course of the committal

proceedings. As I submit to the Court, our primary

submission about that is that the question about

what happened at the committal proceedings has to

be seen in the context of the way the judge put it

and it is only a very small part of a chronology of

events that could have occurred between the time of
his arrest, or even before that, and the time of

the trial when the matter was never raised, and the

committal proceedings aspect of it assumes no

greater significance than that.

The other matters in the outline are matters relevant to the question I have already adverted to

and that is the question of a late defence is a

defence which may lack weight and all of those

cases that deal with that. There is a substantial

body of opinion as to that. There is one case that

I have not adverted to that I should draw the

Court's attention to. It is the case of Reg v

Chambers, 47 CCC 503 and it is a review by the

British Columbia Court of Appeal of the right to silence cases in British Columbia and, in particular, bearing in mind the controversy that

arose in England as a result of Gilbert's case and

Petty 65 27/2/91

it is a conclusion by the Supreme Court of British

Columbia that they should no longer follow

Ryan's case and in the course of the judgments of the court there is a dissertation on the law in

other provinces of Canada which suggest that all

the other provinces of Canada had abandoned

Ryan's case long before and that British Columbia

is the last province to take that step. They have

done that on the basis of, as I read the judgment,

a fairly much the American line of thinking, not

because of the Canadian Bill of Rights but because

their interpretation of the common law is that

there is a right to silence and by telling somebody

their right to silence and then attempting to use

that silence in any way is a negation of that or an

entrapment of the person, and it is not appropriate

to do that.

As far as I am aware there are no authorities in the Supreme Court of Canada.

McHUGH J:  Does it deal with silence after a caution or

silence generally?

MR BLANCH:  I think this case deals with silence generally.

It is a fairly discursive number of judgments about

the right to silence as a general proposition. It

does tend to zero in more on the question of

silence after a warning because I am not aware that

there is any line of authorities either in England

or North America that would deny to the prosecution
the benefit from any evidence of selective silence
or contradictions. So, I refer the Court to the
case on the basis that the Court may be interested,

I mean interested in the broader question.

However, in our submission, it is not relevant

because that question does not arise in this case.

BRENNAN J:  Mr Blanch, would you help me? What was the

evidence that was admitted over objection?

MR BLANCH:  It is the evidence in re-examination as I

understand it, Your Honour, and that is the

evidence which appears at page 50. It starts at

page 48. This is the evidence in re-examination.

The first couple of pages seem to be fairly

general.	The real bits of evidence that are of any
significance appear on paged 50.	At the top of

that page at line 5 Your Honour sees:

Q. Mr Crawley, when was the first time that it
came to your notice that it was suggested that

Maiden says that a conversation such as that

was had with you?	A. Yesterday afternoon.
Q. Whereabouts?	A. In court.

Petty 66 27/2/91

I would assume there would be no problem about that

general question and answer. The problem then

emerges at line 20 when a more specific question is

asked about the committal proceedings - actually

that is mentioned a little bit above that when he

said he was cross-examined in relation to the

statement at the committal proceedings and then

that question and answer at line 20.

BRENNAN J: Thank you.

MR BLANCH:  The other matter that I would like to address is

the question of the proviso unless the Court wishes

me to deal with any of those other legal matters.

BRENNAN J:  Do you have anything to say as to whether, if

the conviction of Maiden is set aside, the

conviction of Petty should stand?

MR BLANCH:  I am not sure whether the Court was handed a

copy of the document that my friend, Mr Macgregor,

was - but this was a document given to the jury.

In respect of Petty it was put - Petty was convicted of murder; the jury was told that they could only convict Petty of murder if they were

satisfied that it was the act of Maiden which

caused Mark White's death and that that was done

with an intent to kill and that he was not acting
in self-defence, and at the time that Maiden was

doing that, Petty was both present and giving

assistance to Maiden to do it.	So it was put on
that basis.	The verdict was guilty on that basis,
Your Honour.

As to the exercise of the proviso, there is

little I can say as to that except for the fact

that obviously I would support the majority

decision in the matter of Wilde. It would be our

submission that the wording of the proviso clearly

envisages a situation where there can be an

irregularity in the trial which does not cause the

trial to miscarry. It is too narrow a reading of	the proviso to maintain that any irregularity can	be said to involve the proposition that the accused
did not get a fair trial according to law and what
needs to be looked at in each case is whether, whatever the irregularity is, is of such a fundamental kind as to deprive the accused of a
fair chance of acquittal.

It is not every irregularity that will be so

serious as to be able to say that the accused has
not been able to get a fair trial. It is our

submission that the proviso was placed into the

Criminal Appeal Act specifically to avoid a

situation where the Courts of Criminal Appeal were

consistently sending back to the trial courts

Petty 67 27/2/91

matters for retrial arising out of mistakes,

irregularities and procedure that had occurred

during the course of the trial but which could not be evaluated as fundamental or affecting the right of the accused to a fair trial.

In our submission, it is a very important

practical safeguard, in the administration of the

criminal justice system, that the trial courts are

not unnecessarily burdened by sending matters back where the Court of Criminal Appeal itself can make

that assessment and it is for that very reason that

the proviso was placed in the Criminal Appeal Act.

McHUGH J:  The difficulty about that theory is that it

substitutes a trial according to law by jury for a

trial according to law by a Court of

Criminal Appeal.

MR BLANCH:  It does to some extent, Your Honour, but as does

a power vested in the Court of Criminal Appeal to

enter a verdict of acquittal on the basis of the

assessment by the Court of Criminal Appeal that the

verdict is unsafe and unsatisfactory.

McHUGH J: That is in favour of the accused?

MR BLANCH: That is in favour of the accused, yes,

Your Honour. On the other hand, it is our

submission that there is no difference in principle

between those propositions and that in all of these

matters the position of the Crown must not be

overlooked. In one sense, for example, the

American legislatures in many of the States have

now enacted speedy trial legislation a right to

speedy trial of the State, so that the State can

insist on a speedy trial in a particular instance

where the accused may not be ready to go to trial.

That is an illustration of a fact that has, to some

extent, been overlooked in the courts over a period

of time, that there is a broader interest in the

administration of justice which requires an

efficient administration of the system itself to

enable the trial courts to dispose of trials

quickly and that, in the broader sense, the

community has that interest of justice as much as

it has an interest in justice that each particular accused be tried fairly and in accordance with the

general principles.

McHUGH J:  Do you have a list of authorities where this

Court has either applied the proviso itself or sanctioned the use of the proviso? Wilde is one;

Lawrence, 38 ALR, is another one that comes to mind.

Petty 68 27/2/91

MR BLANCH: No, I am sorry, Your Honour, I have not. There

is a collection of some authorities dealing with

the proviso in Wilde, but no, I do not even think I

do elsewhere, on the assumption, Your Honour, that

Wilde could be accepted, and it is our submission that Wilde can be accepted on that basis and it is

also our submission in that respect that it is a

very important principle that that be allowed.

I do not think that I can give the Court any

further assistance as to that. It is very

difficult dealing with American authorities in this

respect. There was a case of Greer v Miller,

483 US 756, where the Supreme Court in 1987 was

dealing with a right to silence point,in fact, but
the problem with the American authorities is that

they deal with constitutional error and non-

constitutional error and the tests are different

and the right to silence is a constitutional error

and they deal with it, generally speaking, on this

basis, just quoting from page 630:  "This Court has

recognized that prosecutorial misconduct may so

infect the trial with unfairness as to make the

resulting conviction a denial of due process."

Another phrase, "of sufficient significance to

result in the denial of the defendant's right to a

fair trial." Another phrase, "found that the

prosecutor's question was harmless beyond a

reasonable doubt."

In our submission, it is a very important

practical safeguard, in the administration of the

criminal justice system, that the trial courts are

not unnecessarily burdened by sending matters back where the Court of Criminal Appeal itself can make

that assessment and it is for that very reason that

the proviso was placed in the Criminal Appeal Act.

McHUGH J:  The difficulty about that theory is that it

substitutes a trial according to law by jury for a

trial according to law by a Court of

Criminal Appeal.

MR BLANCH:  It does to some extent, Your Honour, but as does

a power vested in the Court of Criminal Appeal to

enter a verdict of acquittal on the basis of the

assessment by the Court of Criminal Appeal that the

verdict is unsafe and unsatisfactory.

McHUGH J: That is in favour of the accused?

MR BLANCH: That is in favour of the accused, yes,

Your Honour. On the other hand, it is our

submission that there is no difference in principle

between those propositions and that in all of these

matters the position of the Crown must not be

overlooked. In one sense, for example, the

Petty 69 27/2/91

American legislatures in many of the States have

now enacted speedy trial legislation a right to

speedy trial of the State, so that the State can

insist on a speedy trial in a particular instance

where the accused may not be ready to go to trial.

That is an illustration of a fact that has, to some

extent, been overlooked in the courts over a period

of time, that there is a broader interest in the

administration of justice which requires an
efficient administration of the system itself to
enable the trial courts to dispose of trials

quickly and that, in the broader sense, the

community has that interest of justice as much as

it has an interest in justice that each particular

accused be tried fairly and in accordance with the

general principles.

McHUGH J:  Do you have a list of authorities where this

Court has either applied the proviso itself or

sanctioned the use of the proviso? Wilde is one;

Lawrence, 38 ALR, is another one that comes to mind.

MR BLANCH: No, I am sorry, Your Honour, I have not. There

is a collection of some authorities dealing with

the proviso in Wilde, but no, I do not even think I

do elsewhere, on the assumption, Your Honour, that

Wilde could be accepted, and it is our submission that Wilde can be accepted on that basis and it is

also our submission in that respect that it is a

very important principle that that be allowed.

I do not think that I can give the Court any

further assistance as to that. It is very

difficult dealing with American authorities in this

respect. There was a case of Greer v Miller,

483 US 756, where the Supreme Court in 1987 was

dealing with a right to silence point,in fact, but
the problem with the American authorities is that

they deal with constitutional error and non-

constitutional error and the tests are different

and the right to silence is a constitutional error	and they deal with it, generally speaking, on this
basis, just quoting from page 630:  "This Court has
recognized that prosecutorial misconduct may so
infect the trial with unfairness as to make the resulting conviction a denial of due process."
Another phrase, "of sufficient significance to
result in the denial of the defendant's right to a
fair trial." Another phrase, "found that the
prosecutor's question was harmless beyond a
reasonable doubt."

McHUGH J:	The American phrase is "harmless error", I think.
MR BLANCH:	Yes, it is, and it is harmless error found to be

harmless beyond a reasonable doubt in -the context

Petty 70 27/2/91

and that is the test that is used for

constitutional error. For other error it is

nowhere near as high, so they are much more

prepared to accept an exercise, a proviso-type

situation than a non-constitutional error case.

I am not aware of any other approaches. I

would submit to the Court, however, that the

phrasing of the proviso section itself is an

indicator of the fact that it was seen to be, I

think the phrasing is "a substantial miscarriage of

justice", and it was clear in the very phrasing of

the provisions of the proviso that it was always

envisaged that there would be cases where the Court

would perform that function and it would be an

abnegation of the function of a court for the court

to say that that function will not now be

exercised. If the Court pleases.

MASON CJ:  Yes, Mr Hidden.

MR HIDDEN:  Thank you, Your Honour. Your Honours, we have

copied the evidence of Dr Oettle in the committal

proceedings. I believe Your Honours have already
been handed that. It is probably not necessary to

turn to it now, suffice to say if I said that to

Dr Oettle in committal accident death was

suggested, that is certainly not right and, indeed,

I do not know how one could ever suggest that to a

doctor. Suffice to say, Your Honours, the doctor

was cross-examined by Mr Arden, the solicitor then

appearing for the applicant, Maiden, and a number

of possible explanations for the injuries which he

observed were put to him, and I do not use the

words "put to him" in a strict sense, Your Honours.

The doctor was asked about a number of

possible explanations commencing at page 27 of the
transcript, two of which, the first and second

appearing at page 27 to page 28, are consistent

with the account given by the applicant, Maiden, of

what happened in his unsworn statement in the

trial, but a number of other scenarios the doctor
was asked about as well.	The only significance of
it, Your Honours:	I think it came up in answer to
a question from Your Honour Justice Gaudron.	The

significance of it at least is that the line of

cross-examination does not suggest that the

approach to the committal proceedings was an

acceptance of Maiden's record of interview as the

truth. Perhaps it cannot be taken beyond that.

Your Honours, there is only one other matter

which perhaps should be raised in reply. Our

learned friend said that another possible exception

to the rule that no inference adverse to an accused

can be drawn from his or her silence ✓ were cases of

Petty 71 27/2/91

recent possession. Your Honours, it would seem

that that is not so and without taking Your Honours

to the cases now, certainly so much was held in

Victoria in Reg v Beljagev, (1984) VR 657 and, more

significantly, Your Honours, by the joint judgment

of five Justices of this Court in Bruce v Reg,

(1987) 74 ALR 219. We have nothing further in

reply, Your Honours.

MASON CJ: Thank you, Mr Hidden. Do you wish to reply,

Mr Macgregor? The Court will consider its decision

in this matter.

AT 2.48 PM THE MATTER WAS ADJOURNED SINE DIE

Petty 72 27/2/91