Pollitt v The Queen - [1991] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M45 of 1990
B e t w e e n -
ROY ANTHONY POLLITT

Appellant

and
THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 NOVEMBER 1991, AT 10.15 AM

Pollitt(2)	1	13/11/91
MR R. RICHTER, QC: If the Court pleases, I appear with my	learned friend,	MR A SHWARTZ, for the applicant.

(instructed by Kenna Croxford & Co)

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

my learned friend, MR N. PAPAS, for the Crown.
(instructed by J.M. Buckley, Solicitor to the
Director of Public Prosecutions)

MASON CJ: Yes, Mr Bongiorno.

MR BONGIORNO:	If the Court pleases, before my learned friend commences, if I might draw the Court's attention to an error in one of the documents. I
am not sure, having regard to the procedure to be used in this appeal, what the status of the document still is, but it is the answering
statement of the respondent that was filed
originally under the new procedure. It appears at
page 578 of the appeal papers and the assertion by
the respondent in paragraph 2(a) that Mrs Simpson
was shown a photograph:

the day after the murder -
is in fact incorrect and the contention of the
applicant is correct, so that if the last sentence
in paragraph 2(a) was struck out, the document
would be correct.

MASON CJ: Very well.

MR BONGIORNO:

And there is a further error in the next paragraph; indeed both assertions of fact were

wrong.

The next paragraph reads: In paragraph 8 Hargreaves states that Jennifer

McMahon (also known as Jennifer Curillo)
" •••• admitted that she had never spoken to the
Applicant on the telephone before or after

that occasion."
The document goes on to say, "This is
correct". It is contended that this is not
correct, and the amendment which I have indicated
to my learned friend is that it should read, "This
is not correct. She had met and spoken to the
applicant on previous occasions face to face and
had spoken to him on the telephone subsequent to
the relevant occasion." I would seek such leave as

is necessary to make those amendments. The
relevant appeal book references - it might be of
assistance to the Court to give the references as
being 55 and 56, 82 and 83 and 109 and 110.

MASON CJ:

You do not object, Mr Richter?

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MR RICHTER:

No, Your Honour.

MASON CJ: Very well. Those amendments will be made. Yes,

Mr Richter?

MR RICHTER:

If the Court pleases, whilst those amendments

have been made, if I can take the Court to the last
amendment that was made, the complaint that we had
was that that evidence ought to have been excluded,
and on the voir dire where Curillo gave the
evidence, there was no evidence that she had spoken

to the applicant on the phone before or after.

So from the point of view of examining the
voir dire, that would be the evidentiary basis of
examining the learned trial judge's ruling. The
subsequent evidence that was given departed, and
departed in a particularly vague way, and we will
draw the Court's attention to that in due course.
But from the point of view of the contention that
has bein made before the Court, that subsequent
amendment does not make the difference.
If the Court pleases, we would seek to hand up

a summary of submissions which expands on the
summary of submissions in the appeal book, to some

extent.

MASON CJ: Thank you.

MR RICHTER:

Your Honours, the evidence against the

applicant, Pollitt, on the count of murder was in
reasonably short compass, and in order to perceive
why our submissions are, in our respectful
submission, of significance it is important to give
a quick thumb sketch of that evidence.
The deceased was shot on 18 September 1984,

the deceased Simpson. The evidence against Pollitt
consisted, essentially, of a small number of
witnesses. The witness Jones gave evidence that he

had befriended, or rather the applicant had
befriended him some month or two months before the
shooting; that in the course of that friendship he
drove the applicant to the Richmond area and,
indeed, gave evidence that he drove him to see a

man by the name of Dennis Allen. He also gave
evidence that on three occasions he drove the
applicant to a location in Lower Plenty where the

murder occurred. On one of those occasions, he
gave evidence that the applicant was given a parcel
- indeed, it was said, a shotgun - by Dennis Allen,
and that Jones and the applicant went to test the
gun, and the next day they, together, travelled to
the scene where the murder occurred, Jones holding
back - he was not present at the precise scene of
the shooting - the applicant going away and coming

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back saying he had done it. That was, essentially,
the evidence of Jones.
The next piece of significant evidence was the

evidence of the witness Curillo, who is also

described as McMahon. She testified that she had
met the applicant at Dennis Allen's place a number
of times, that on one occasion Dennis Allen brought
a man called Williams, who was said to have been
the intended victim of the murder, to the premises
at Richmond, so that the applicant presumably could
see him. There was evidence that the applicant was
said to have had a photograph of Williams,
presumably for the purpose of familiarizing himself
with the appearance of Williams.
On one occasion Curillo said that she saw a

parcel about 22 inches long being given to the
applicant, and that was said to be a situation in
which - or the Crown asserted that that might well
have been the occasion on which a shotgun was
handed over wrapped up. The murder weapon was not
a shotgun. Later that evening, on the occasion of
the day when the parcel was given t9 the applicant,
there was a phone call from the applicant, and that
is the phone call in which five words were uttered

only: "Tell Dennis the job is done.". Some days
later, Curillo gave evidence, Alan Williams spoke
to the applicant telling him to get out of Richmond
because Richmond was too hot. Essentially those
are the central features of her evidence.
There were then the witnesses, Mr and Mrs

Berry. Mr and Mrs Berry gave evidence of being
present at Chestnut Street, which was the address
of Dennis Allen, or rather one of his addresses,
and that on one particular night, said Mrs Berry,
Dennis Allen told her to watch the late news, and
she watched the late news. She discovered that
there had been what was later said to be a case of

mistaken killing and the following day, at about 11
am there was. a telephone call which Dennis Allen
answered. Dennis Allen was said to have been
ranting, raving, very angry, and after the call he
said that the caller had been the applicant, said
it to Mrs Berry - that was the effect of the
evidence - and that the applicant had, to use a
colloquialism in the trial, stuffed it up, he had
got the wrong man.
Mr Berry's evidence was more or less to the

same effect, except that the assertion by Allen to
the effect that the applicant had got the wrong man
and got it all wrong was said by Mr Berry to have
been made some days later, rather than the
following morning.

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The next piece of important evidence was the
evidence of a man called Denning, who has some
notoriety as a professional gaol father confessor
and, indeed, the evidence at the trial and the
cross-examination of him disclosed him to have been
a person of habitual informer tendencies, for
reasons that were inherent in what he was being
cross-examined about, namely that.he knew an awful lot about an awful lot of murders, and he had done
an awful lot of bad things himself, and being in
gaol and sharing cells with people like the
applicant, he was in a position to improve his lot
in life by saying that people confessed to him as

to all sorts of things. He was most recently noted
as the man who was responsible for the false
conviction of Anderson in the Ananda Marga case.
That was one of the cases discussed in the
evidence.
His evidence, essentially, was that in 1988

the applicant and he shared a cell in Goulburn
prison and that the applicant had essentially
confessed to him to the killing of the man who the
applicant said was the wrong man, Simpson, and that
it was Dennis Allen who had put him up to kill a man called Alan Williams but that he had got the

wrong man. So there was evidence of a gaol
confession from Denning.
There are only two other items that arise out of the Crown case. One is that a police officer by
the name of Ricks went to premises occupied by the
applicant in November of 1984 and had there located
a couple of items; one of them was a jacket that
was subsequently said to be similar to a jacket
worn on the night of the killing, worn by the
applicant, and a shotgun.
The other witness that the Crown called was a

man called Darby, a man of long criminal history.
He was the man whose photograph the widow of the

deceased purported to identify as that of the
killer on a number of occasions. Three days after
the killing·of her husband - subsequently three
years later when she was shown a photographic
spread which included in it the photograph of Darby
as well as a photograph of the applicant she picked
the man Darby. Subsequently at the committal, at
inquest and indeed at trial, that evidence was

given. Darby was called by the Crown in order to
establish, and presumably to establish beyond
reasonable doubt, that he was not the man who had
killed the deceased.
The situation was that alibi evidence, as it

were, was called for Darby. It was alibi evidence
in the nature of showing that Darby was in Sydney

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earlier in the day. But the evidence of the alibi
obviously did not preclude Darby from having been

the killer of Simpson. He could have flown to

Melbourne. He could have executed him. And the
fact that the evidence of Darby and Darby's alibi
did not satisfy the jury that he was not the killer
is demonstrated, in our submission, by the fact
that the jury asked but one question after it
retired, and that was it wanted the evidence of

Darby reread to them. It is not in the appeal
book, but we have photocopies of the page at which
this was done, and those pages were at page 1574 of
the trial transcript going on to 1601. The whole

evidence of Darby was read to the jury. So that
the jury, upon its retirement - that assertion is
not contested, and I do not know if Your Honours
would like to be cluttered by the additional paper,
but those were the pages at which the question was
asked. The jury was certainly not persuaded at the
point at which the question was asked, that Darby
was not the killer of Simpson, and for good reason.
Now, it is in this context that a number of

grounds are sought to be raised here to indicate
that the Court of Criminal Appeal in Victoria was
wrong, and wrong in certain areas that are special
and important, and we would seek to go to those areas now. The first one that we would seek to
argue is in relation to the summing up by the
learned trial judge, and indeed the course of
addresses to the trial judge on issues of
identification.
There was no exception taken at trial to the

summing up. In our respectful submission, that
should not preclude the grant of special leave in
relation to this particular issue because it is one
of considerable importance. One can indicate as to
why no exception would have been taken.

The course that the trial took, a certain interruption by the learned trial judge of counsel

for the applicant when he was addressing the jury,
and the way in which the learned trial judge summed
up the issues of identification to the jury would
have induced some feeling of unease which comes
frequently to those who listen to something that
goes to the very heart of something like the burden
of proof, but really cannot put their finger on

exactly what is wrong with it. It requires an
analysis of what is wrong with it, which is not to
say that a jury might not, or would not, have
followed that path which is to indicate both the
subtlety and the depth of the error, and the error
is fundamental to the notion of the burden of
proof, and that is why it is special in this
particular instance.

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The burden of proof in this case required, in
effect, for the Crown to exclude Darby beyond
reasonable doubt as the potential killer of the
applicant. A proper application of the burden of
proof would have had a differential approach to,
first of all, the evidence of the Crown witnesses
who identified the applicant as being in company of
Dennis Allen, the alleged contractor for the
murder. As far as evidence tending to show guilt,
when it is given as to identification, the whole
bulwark of case law - which is referred to in the
summaries of submissions - is designed to do one
thing, _and that is to draw to the jury's attention
in a very special way the fact that there are
special dangers in hearing in evidence of
identification about which juries may not generally
be aware, that the law recognizes that mistakes are
made, but the whole bulwark, whether the cases
concerned the notion of exclusion of dock
identifications, whether the cases concerned the
notion of the propriety of a photographic
identification, or any other, those cases are all
concerned with excluding the possibility of a false
identification leading to the conviction.of an
applicant.
When evidence of identification - and we call

it disidentification, exculpatory identification -
exists in a trial, the approach of necessity has to
be different because the defence relies on it, not
by saying this identification is correct. The
defence does not say that Mrs Simpson, in this
case, when she purported to identify Darby's photo
is right and that Darby is the killer. Indeed, the
defence would go to a jury on the basis of, "She's
probably wrong, but if she's probably wrong, you've
still got to acquit because she might be right",
and it is in that context that the learned trial
judge's cautions about identification evidence were
correct, and probably impeccable - one would not
complain about them - from the point of view of the

proof required by the Crown, but it had the effect
of completely undermining the evidence of
Mrs Simpson, of undermining any weight that the
jury might attach to it, and that was compounded,
as we submit, by what happened in the course
of - - -

DAWSON J:

I do not understand that; why did it undermine

it?

MR RICHTER: Because, effectively, everything that the

learned trial judge was cautioning the jury about
in relation to evidence that really, when one
analyses it, was not so much identification
evidence: the assertion in relation to Curillo, the
Berrys and so on, about identifying the accused,

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were not really on the basis of, "You have no
sufficient familiarity in order to say that that is
him", it was on the basis they are lies.

DAWSON J:	You say this, and no doubt you will take us to the passages, but what the trial judge did, if you
have no complaint about it in relation to the Crown
case, was to say that identification evidence is
unreliable; that the jury must approach it with caution; and if you think about it, you may not
realize that people make mistakes and so on. What
is wrong with that in relation even to - - -
MR RICHTER:	Nothing wrong with that, going to the issue

about which the learned trial judge was -

DAWSON J: Well, why does it undermine the defence case?

MR RICHTER:	Because each of the instances in which he is telling the jury not to act positively on
identification because of dangers A to z, each of
those dangers, or most of them, are applicable to
Mrs Simpson, but when Mrs Simpson's evidence is
considered, it is not, and ought not to be, considered -

DAWSON J: Well, they are applicable to Mrs Simpson, so the

observations are not incorrect. No doubt he told
them about reasonable doubt.

MR RICHTER:

They may be applicable as a general description

of the unreliability of identifying evidence, but
they, in this case, required a coupling with the
specific pointing out that this is not to say that
they disregard Mrs Simpson, because Mrs Simpson is
only there, as far as the defence is concerned, for
one reason only, and that is, is it reasonably
possible that Darby was the man.

DAWSON J:

No doubt that the trial judge did not tell them

to disregard identification evidence, whichever

side it came on; he told them to approach it with
caution.

MR RICHTER:

Yes, he did.

DAWSON J: And that is a valid observation, whichever side

relies on the evidence.

MR RICHTER: With respect, I could illustrate the problem by

taking a different sort of case - - -

DAWSON J: Well, it would be better if you illustrate it by

taking us to the passages to which you object in
relation to Mrs Simpson.

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MR RICHTER:

Yes, Your Honour. Globally we object to the

passages that in fact highlight the dangers of
identification in the absence of - - -

DAWSON J: What you seem to be saying is, "Well, you

approach the evidence with caution when it is
evidence on which the Crown relies, but you do not
approach it with caution when it is evidence on
which the defence relies". I do not understand
that.

MR RICHTER:

No, we do not say that, with respect. certainly you approach it with caution, but knowing

We say

that all that, from the defence point of view, is
required is that that evidence may possibly be
true. That is the problem. If one were to take a
case of a missing body, for example, someone who is
not found that is said to have been murdered by an
accused, and a witness comes forward and says, "I
saw that person a week after he's supposed to have
been murdered", there would have been no general
blow by blow description stripping identification
evidence of its reliability.
There may well have been a caution, but the

direction to the jury would have been, "For all
those dangers, no one is asking you to accept that
identification evidence and act on it as proving a
point. All one is saying is that: does it raise
the possibility that the man is alive?"

DAWSON J:

No doubt the judge pointed to the fact that the

Crown had to prove its case beyond reasonable doubt and that all that the defence had to do was to
raise a reasonable doubt, but that does not relieve
the jury from their duty, whichever side relies on
it, of approaching identification evidence with
caution.

MR RICHTER:

Your Honour, when the jury is given very lengthy cautions as a matter of law and told to be

aware of certain things as a matter of law, and

then those legal directions are not related to the
facts of the case - as in this case they were not
as far as Simpson was concerned, they ought to have
been related to the facts of the case - the odds

are that the jury would say to itself, "Mrs

Simpson's evidence is really so dangerous to act

on, that we can't accept it."

DAWSON J: What you are really saying is the onus of proof

requires different observations with regard to
identification evidence when it is relied on by the
defence, as opposed to when it is relied on by the
Crown.

MR RICHTER:

Yes, Your Honour, that is what we are saying.

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DAWSON J: What different observations?

MR RICHTER:	The different observation being that the reasons why the law provides for the cautions and
the warnings is because the courts are concerned that innocent people may be wrongly identified and
that juries act on it.
DAWSON J: No, that is stepping one step ahead.	It is

because the evidence is inherently unreliable, and
it remains inherently unreliable whether it is
relied upon by the Crown or the defence.

MR RICHTER:

As being found by experience to be so.

DAWSON J: Yes.

MR RICHTER: Its inherent reliability, though, when relied

upon by the defence does not operate in the same
way, because the defence may well put up the
evidence on the basis of, "This evidence is
unreliable but it raises - - -

DAWSON J:

I do not understand that.

If it is inherently

unreliable, it is inherently unreliable for both
purposes. Then of course you go to the onus of
proof and the standard of proof, and of course the
jury looks at the evidence in the light of that,
but it does not change its character.

MR RICHTER:

With respect, when the learned trial judge gave

the general direction about onus of proof at the beginning of his charge, the jury is entitled to take it and takes it as requiring the Crown to
prove each and every element beyond reasonable
doubt, and that, necessarily, means the identity of
the killer as well.
The learned trial judge then, subsequently,
and in considerable detail, tells them that as a

matter of law the evidence of eyewitness

identification is inherently unreliable. We have
got no quarrel with that. What he does not do, and
what he had to do in the circumstances of this
case, in our respectful submission, because of the
two ways in which evidence of identification was
relied upon, was to tell the jury that those
directions that almost, in effect, tell them that
they should not accept an identifying witness
unless certain things are present, do not apply in
the same way to the question of whether or not a
reasonable doubt might be raised by an identifying

witness. Now, it is the failure to do that -

DAWSON J: That is what I do not understand. If the

observations are correct, they are ultimately

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correct for both purposes. The onus of proof is
the thing that is different.

MR RICHTER:

The observations that we say the learned trial

judge ought to have given the jury was precisely
with respect to the onus of proof, and he should
have told them that whilst identifying evidence is
inherently dangerous, nevertheless in the context
of the onus of proof, the philosophy for the danger
needed to have been explained, because that would
have exposed the fact that when they are concerned
with evidence that might be true, which is not said
to be true, but that might be true, then different
considerations apply because that is capable of
raising a reasonable doubt, and that was never
given to the jury. The jury was never told it, and
it had the subtle effect, in our respectful
submission, of in fact depriving Mrs Simpson's
evidence of weight that it ought to have had.

DAWSON J: What you say the judge ought to have said is,

"Well, in effect, identification evidence is
unreliable but, nevertheless, the fact that it is
unreliable does not mean it cannot raise a
reasonable doubt".

MR RICHTER:

Yes, Your Honour.

But for the purpose of the

jury absorbing that, the philosophy behind the
cautions needed to be explained too.

DAWSON J: Did he say anything to the contrary?

MR RICHTER:

He never said that the evidence of Mrs Simpson was incapable - - -

DAWSON J: Did he say anything contrary to the proposition

that identification evidence being inherently
unreliable, it may nevertheless raise a reasonable
doubt?

MR RICHTER:	He did not say anything contrary to that, no.
DAWSON J: Did he give them a proper charge on the question

of reasonable doubt, the onus of proof, standard of
proof?

MR RICHTER:

In so far as he told them that the burden of

proof was on the Crown and that it required the proof of each element, beyond reasonable doubt, yes. But he did that at the beginning, at a stage
when it would not have been related by the jury to
the factual issues which were, in effect, like
ones.

DAWSON J: So your complaint is he really did not marry the

two directions.

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MR RICHTER: That is right. With respect, that is really,

on analysis, the only way in which we can complain
about it, the fact that it was not married, but
that in cases of this nature the peculiar problem
that is raised, going to the burden of proof,
requires in effect to marry the law to the facts,

and to explain it in a different way. Now, we have
set out the - - - - -

DEANE J:

Mr Richter, why do you concede that negative

identification evidence is inherently unreliable?
Why would not evidence of a witness that she saw a
giant of seven feet commit a murder be quite
reliable identification evidence in so far as it
exonerated a dwarf?

MR RICHTER:

It would be entirely reliable in those

circumstances. The inherent unreliability that is
being addressed is having regard to peculiar
features and opportunities of observation.

DEANE J:

In other words, when one is dealing with negative

identification one needs to look at the
circumstances of the particular case to assess its
reliability or otherwise.

MR RICHTER: Absolutely, Your Honour, with respect. In this

case it went a bit further than that because not only does she pick up the photograph of Darby in
fairly dramatic circumstances but she also gave a
description of the killer to the police which the
Crown accepts is not consistent with the
description that the applicant bore. So there is a
combination of those factors and when I agreed with
Mr Justice Dawson's probability about the inherent
unreliability, that was as a global sort of
statement. Certainly identification evidence may
be extremely reliable in certain circumstances, but
the inherent unreliability is just an observation
of the way the law regards fleeting identification

in particular. It does not go to the question of

whether or not the evidence itself is capable of
raising a reasonable doubt in a very, very proper

sense. It may not be unreliable for the purpose of
raising a reasonable doubt although generally
unreliable as a class of evidence.
In this particular case there were the two aspects of it, and that is both the description given to the police, which did not match the
applicant in terms of height, in terms of other
features, and that is conceded by the Crown, was
conceded at the Court of Criminal Appeal and indeed
is said to have been conceded in the judgment, plus
the fact that she selects Darby's photo, or rather
identifies Darby's photograph, albeit that only

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Darby's photograph was shown to her, there was not
a sort of photographic line-up conducted.

DAWSON J: But the tables were turned in this case. In this

case, the Crown said she made a mistake and the
accused said she did not.

MR RICHTER:

Yes, and in the circumstances - - -

DAWSON J: Well, that issue would have been clearly before

the jury, would it not?

MR RICHTER:

When all the cautions about identification were

given without relating them to the particular case,
to Mrs Simpson, in our respectful submission that
might well have been too confusing for the jury,
and that is why we say it needed special
observations. Because the fact is, nowhere does
the learned trial judge really put it - counsel
argued it - but he does not give the imprimatur of
law on the issue of the burden of proof by ever
saying to the jury, "If you have a doubt about
Mrs Simpson's identification of Darby, then
contrary to what I have been telling you about the
need to prove things beyond reasonable doubt, even
if you do not accept that it was Darby, if it might
reasonably have been Darby, if the identification
might reasonably have been right, you have to

acquit". Now, the jury never got that by way of an
imprimatur of law or of relating the law to the
facts, and that is why this case is peculiar.
There are grave - we have not been able to

find authorities precisely on this, simply because
the issue is both so fundamental and unusual. It
does not usually arise in that way, where the Crown
seeks to demonstrate that its witness is wrong
beyond reasonable doubt, but it necessarily must
arise in a number of situations. It necessarily
must arise in cases where someone goes missing,
presumed dead, murdered, and a witness comes forth

to say, "I saw that person in Corfu two weeks after

the alleged death". Now, there is no doubt that,
in a case like that where that is the issue, and it
is not polluted by questions of positive
identification relied upon by the Crown for other
purposes, in a case like that a trial judge may
well say to the jury, "Generally speaking, evidence
of identification may be very unreliable and it is
the experience of the law that it may be very
unreliable, but that is not to the point in this
case. The only thing to the point in this case is
whether the sighting on Corfu two weeks after the
murder might reasonably have been accurate".
In other words, the evidence for the defence

is tendered and may be said to be tendered for the

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purpose of saying, "This is flawed evidence" or
"may well be flawed evidence, but that is beside
the point. We tender it because it may be wrong,
but also because the possibility is there that it
may be right".
So the authorities do not discuss those

propositions, although they are necessarily
inherent in a proper understanding of the burden of proof. And what we say is, because of the way this
case was conducted and ultimately went to the jury,
there is a reasonable apprehension that the jury in
fact would have been distracted from its proper
consideration of the burden of proof in those - - -

DAWSON J:

Mr Richter, what you are really saying - disagree

if you want to - but you are really saying is that
the trial judge ought to have told the jury that
even unreliable evidence can raise a reasonable
doubt.

MR RICHTER:

Yes.

DAWSON J: Well, that is a proposition that does not have to

be put in terms, does it, where the Crown is saying
she was mistaken?

MR RICHTER:

Depending on the particular case, Your Honour,

we would say it does have to be put in terms
because if the summing up has the effect of - - -

DAWSON J: Did anyone object to its not being put at the

trial?

MR RICHTER:

No.

As we have said, no exception was taken

and we have been at pains to explain why no
exception was taken, and the fact is because it is
a matter which is both fundamental but subtle. And
whilst counsel may have had some feeling of
considerable unease, it would have been hard for

counsel to articulate it in that way.

DAWSON J:	It is not _really very subtle that evidence, although unreliable, might raise a reasonable doubt
is it?

MR RICHTER: Well, it is subtle in this way, that it is

unpolluted by authority, and that to that
extent - - -

DAWSON J:

I suppose the reason is because it is not very

subtle.

MR RICHTER:

As a matter of not very subtle.

arguing first principle, it is

But also as a matter of arguing

first principle, we would submit that in
circumstances of particular cases the trial judge

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has an obligation to relate the law to the facts,
and in this case that is what would have been
required with respect to Simpson.
And there were a couple of side issues that,

in fact, might have tipped the jury over into being
distracted about that issue and into putting too
great a weight on the learned trial judge's
directions of law about identification. And the
way they arose they also might well have cowered
counsel in the sense of distracting him from the
sort of fine analysis of the burden of proof.

MASON CJ: Would it not be of assistance if at this stage

you took us precisely to what the trial judge told
the jury?

MR RICHTER:

Yes, Your Honours.

The summary of the

submissions at page 3 relates to what the learned
trial judge said, with one proviso, that we seek to
draw the Court's attention to an incident that
occurred during address to the jury at the trial
transcript page 1349. Unfortunately it is not in
the appeal book, but we seek to hand a copy of
those pages to Your Honours, and that is a good
commencing point because it leads into what
happened thereafter in the learned trial judge's
charge to the jury.
At that page, Mr Ross for the accused, is

addressing the jury, and he says this:
Now, it is the Crown case that

Mrs Simpson is mistaken in her identification
of the Darby photograph. It is not the Crown
case that she was mistaken about her

description of the man. So let us make sure
that we understand what their case is and what
it is not. Never suggested her description
is wrong, they have suggested her
identification of the photograph is suspect.

When Darby was giving evidence you must have Now, let me just ask you to consider this: noticed that Mrs Simpson was sitting in court
down the back, I have not looked to see
whether she is now. But that is where she sat
throughout the trial. She saw Darby, you will
recall from your own observation and listened

to his evidence. You may expect that after
she had seen Darby she would have been asked
by the police whether or not that was the man.

Now the Crown did not recall her after that - and then there is the interruption by:

Pollitt(2)

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His Honour: You know that they would not have

been permitted to. You should not make
observations of that nature to the jury.

Now, that observation is wrong, in law. They would
have been permitted to because Darby was not on
trial, so concepts of exclusion of in-court dock
identification did not really apply. The Crown
would have been permitted to do that.

BRENNAN J:

To prove that - - -

MR RICHTER: That it might be him.

BRENNAN J: No, to prove the contrary.

MR RICHTER:

I am sorry.

BRENNAN J: What if she had given evidence, "No, that wasn't

the man"?

MR RICHTER:	Then that would have been permissible too.
BRENNAN J:	It would have been splitting the Crown case,

would it not?

MR RICHTER:

It would not have been splitting the Crown case

in this sense, that -

BRENNAN J: When was Darby called?

MR RICHTER:	He was called during the Crown case.
BRENNAN J:	I see.

MR RICHTER:

He was called during the Crown case, and he was a late witness.

It would not have been splitting

the Crown case in the sense that the assertion
would have been maintained, the same assertion for
the Crown, but, of course, it is one of those
things that happen in the course of a trial which

would be of assistance because the issue was, for the defence always, whether it was Darby or not.
So, the learned trial judge is, in effect, wrong
when he says that the Crown could not have done it.
Later on, in the charge - and we will come to

that passage - he comes back to it, and
repeats - - -

DAWSON J: But this is another point.

MR RICHTER: Well, it is a point which leads up, in fact, to

the context in which the jury would have perceived
that what they had been told is that Mrs Simpson's
evidence could not be used, or has no weight that
they really ought to give it, because here is the

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learned trial judge in the middle of what, in our
respectful submission, is an impeccable address
telling Mr Ross that the Crown could not have asked
Mrs Simpson - or the police could not have asked
her - whether the man in the flesh is the man that

she still identifies. As a matter of law, they
could have. Had the prosecution sought to create
an in-court identification of that nature, it would
have been open to the various discretionary
arguments raised in Tripodi, and cases in that
mainstream, but the obverse does not apply.
That is the point of departure on this issue.

The warnings given to the jury were fulsome about
identification evidence, and commence, really, at
appeal book page 355.

BRENNAN J: Mr Ritcher, could I just ask you this? It was

part of the defence case that Darby may have been
the killer.

MR RICHTER: That was the defence case, yes, and that is the

way in which the case went to the jury. When Darby
gave evidence, he was attacked both as to credit;
he was cross-examined; there were massive defects
in his general credit; his alibi was attacked, the
Sydney alibi; all designed to show that he could
well have been the killer, as the alternative
hypothesis, that he could have been there with
Jones, that it was he who could have been there and

not the accused. So it was central.
At 355, the learned judge goes into what, in the appropriate circumstances, would have been a
very, very apposite and good exposition of the law
on visual identification, outlining the various
dangers inhering in it, drawing the distinction
between honest witnesses and mistaken witnesses.
The passage at 355 at line 25 says:
But the fact that a witness is honest does not

mean you automatically accept everything he or she says. Honest witnesses may be mistaken,
particularly when it comes to evidence of
visual identification and so even if you
consider a particular witness was an honest
witness, you must nevertheless scrutinize his
or her evidence very carefully because he or
she may be mistaken.
The interesting aspect of the impact that that

would have had on the jury was this: so far as the
witnesses giving identification evidence for the
Crown were concerned, they were all said to be
tainted persons, disreputable, dishonest, lying
witnesses. No one said that about Mrs Simpson.

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She was accepted by both Crown and defence as an
honest witness.
So that observation about honesty, whilst it

would have had no impact so far as the Crown's proofs were concerned, but would have had an impact
is a necessary prerequisite in analysing the case
in diminishing reliance on Mrs Simpson. Over the
page at 356:
Now when considering evidence of visual identification there are a number of matters
you must have regard to when determining what
weight, if any, you will attach to such
evidence. Did the witness know the person
beforehand? What length of time did he have
the person in question under observation?
Under what circumstances did he see the
person? Was it broad daylight or was the
lighting poor? Did he see him face to face or

only see portion of his face? How far away
from the person was he when he made his
identification?
All these matters really go to Mrs Simpson,

because so far as the Crown's witnesses were
concerned, the principal issue with them was one of
whether or not they were lying, albeit that they

purported to identify the applicant. The real
battle at the trial was, are they telling the truth at all. There is no question that they had lots of
opportunities to see him in good light and poor
light and all sorts of other kinds of light. So in
so far as a caution against acceptance of Crown
identification, it was almost superfluous, although
it needed to be highlighted as a matter of law, but
each of these matters were telling and direct, in
terms of the argument about Mrs Simpson, and each
of these observations detracted from Mrs Simpson,
from whatever it was that Mrs Simpson had to say.

Mrs Simpson did not see the person in ideal light;
Mrs Simpson had no prior familiarity; the others
did. The Crown's witnesses, that the Crown was

relying on, did; Mrs Simpson did not. None of
these features applied really to the evidence for
which that sort of caution is traditionally given,
but in the context of this case it all applied to
Mrs Simpson and all diminished from the sort of
weight - and this is given by the authority of a trial judge directing on law - each one of these
sentences would have been a nail struck at their
ability to accept Mrs Simpson.
Now, if they had to accept Mrs Simpson, we

would say "fair enough"; they did not have to
accept Mrs Simpson. All they had to accept was the

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reasonable possibility that she might be right, and
that is where the problem lies. Further down the
page, the third last line:
You must look at the manner in which the
witness later made the identification. When
identification is attempted with the aid of
photographs, there are introduced peculiar
difficulties due to the various ways
photographic representation differ from
nature. They have a two dimensional and static
quality, the fact that they are often in black
and white, and the clear and well lit picture
of the subject which they usually provide.
They cannot reproduce speech, stance or gait which may all be important for reliable
identification. Photographs can also have,
what is described as a displacement affect.
Having been shown a photograph, the memory of
it, that is the photograph, may be more
clearly retained than the memory of the
original sighting of the offender, and may

accordingly displace that original memory - Those observations - there was a photographic
identification by one of the Crown's inculpatory
witnesses, out of the folder or out of a number of
photographs - Mrs Simpson was only shown the photo
of Darby, of no other person. Once again, in the
context that the Crown's inculpatory witnesses were
really challenged about honesty rather than
mistakes, those observations went to the heart of
what Mrs Simpson had, in fact, given in evidence
and what she did. She was the one who was shown
one photo, or rather there were two or three
photos, but all three of them were of Darby. The displacement effect - she was the one who
three years later was shown a photographic folder
containing 12 people, one of whom was the
applicant, one of whom was Darby, and she picked

Darby,not the applicant. So all that goes to her,
to the ability of the jury to accept her as raising
a reasonable doubt, although, in the context in

which it is said, it appears perfectly fine. But
its impact is not, in our submission.
At line 24 on 357:
In this case certain witnesses have

identified the person in the dock, that is the
accused as the person they saw on various
occasions in 1984 and as one of the persons
implicated in the murder of Simpson. In legal
parlance they have made what are described as
dock identifications.

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The learned trial judge then gives a proper warning
about dock identifications. The people who made
the dock identifications, once again, were people
whose credit was impugned, not so much the question
of whether or not they made the mistake.
Now, at page 358, what the learned trial judge

says is this, starting at line 12:
Further, evidence of dock identification is permitted because the witness who saw the crime take place, may say that the accused can't possibly be the man because, for
example, the accused is six foot four inches
tall, of slim build, with yellow hair, whereas
the offender was a short, fat man who was
completely bald. So evidence of dock
identification may be given because it may in
fact exculpate the accused. But if it does
not, then you must act very cautiously when
considering what weight you will give to such
evidence.

We coupled that with the observation that the
learned trial judge made about the fact that he
would not have permitted a dock identification, and
when that is coupled with the various cautions it
does not do anything to highlight the sort of
dichotomy of identification evidence which is at

the heart of this case. Now, at page 359:
In the present case a number of witnesses

have made dock identifications of the accused,
in particular Gary Jones, Jennifer Curillo,
Sandra Berry and Wayne Berry. Indeed, I think
Colleen Dempster. You must ask yourselves how well did each of those witnesses know the

accused man as at 18 September, 1984? Those are not real issues, in a sense, in the case,

because as far as those witnesses are concerned the attack on them was, "You are lying when you say you knew him back at Richmond in 1984".

BRENNAN J: Did Mrs Simpson ask to make a dock

identification positively or negatively?

MR RICHTER:

Did she ask, or was she asked?

BRENNAN J: was she asked to make - - -

MR RICHTER:

No.

BRENNAN J: Neither positively nor negatively?

MR RICHTER:

That is correct, she was not asked by anyone,

and we would say that comments which go to the

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effect, "Well, the defence could have done it"
would be wrong, because for the defence to do it,
it would be undertaking a burden which it did not

have. The Crown had the burden to try to get
Mrs Simpson to say, "Now that I see the man in the flesh it is not him". That was the Crown's burden,
because unless they could persuade the jury beyond
reasonable doubt that it was not Darby, they were

in trouble. To say that the defence could have
asked for it to be done is, in effect, to shift the
burden of proof. It did not have the burden of
doing it, nor should it have been contemplated,
because what the defence had was prima facie
evidence that the killer is Darby and not Pollitt.
That was the evidence, they were entitled to say,
"That is the evidence", and that consisted of both
the photographic identification and the description
given of the killer, which did not fit Pollitt.
At line 22 on 359 there is then a discussion of voice identification, and we shall come back to
that in submissions when we make our submissions
about the next head of argument, but essentially
the next passage we seek to take the Court to is at appeal book 507-508. Before taking Your Honours to
that we ought to draw the Court's attention to a
passage at 457 in the appeal book, where the
learned trial judge is talking about Simpson's
evidence and at line 8 he says this:
She repeated that she saw the side of the
man's face, that the man's voice was such as

to indicate to her he was Australian. He had

brown or dark curly hair, collar length. It
was curly but wavy, not permed, and a dark

brown colour. He had bushy eyebrows, a stock

type of build. I take it from that she meant
a stocky type of build. Not fat, but not very
slim either. She estimated his height as
being five feet eleven inches -

and Pollitt was considerably shorter than that, in
fact -
and that he was aged approximately early 30s.
Asked about his eyes, she said, "The eyes were
sort of deep set." She was asked, "Was there
anything about the nose?" and she replied
"No."
She said after about 10 seconds her

husband got down. The person was holding a
long weapon, it was dark -

So in the description of her evidence, of course,
the fleeting nature of her look is highlighted, the
fact that there is darkness is highlighted; not

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erroneously, by way of summing up, the nature of
her evidence, but in the context of the earlier
long exposition of the dangers of identification,
when married with that dangerous warning, it is
effectively saying "Well, she is the person I am
really talking about when I am talking about the
dangers of identification evidence". That is what
it amounts to, in my respectful submission.
I took the Court to page 507 of the appeal

book and - - -

BRENNAN J: Could I just ask you one other question? At

page 458, the judge records that Mrs Simpson says
that the rear window had fogged up and therefore
she was not able to see them as they ran away.

MR RICHTER:

Yes.

She said that she had seen the killer

from the side window, not the rear window.

BRENNAN J: And it was not fogged up?

MR RICHTER: It was not fogged up. There was rain, there

were raindrops, but it was not fogged up.
Certainly the fogging of the rear window would have
precluded her from getting a decent look when the
persons reached the position where she had to look
at them through the rear window, but it was the
side window she looked out of and saw the killer,
so to that extent it is really not of assistance to
tell the jury that the rear window was fogged up,
other than to add to the atmosphere which is, very
fleeting glance, adverse conditions, bad lighting,
et cetera.

BRENNAN J: Thank you.

MR RICHTER:

In the middle of page 507, the learned trial

judge is summing up what the Crown is saying, and
he says this:

Mr Walmsley then went into quite some detail
through the actual evidence each of those
witness gave, starting with Leonie Simpson.
He reminded you that she made her observations
at night. There were rain drops on the side
window of the car.

That is the side window that I was mentioning.
The rear window was fogged up and she could
only see the side of the face of the person
with the gun.

That was not said to have been seen from the rear window, but from the side window.

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And he put it to you that in that situation you could not possible accept her
identification of Darby as the person she saw
that night, that she would be in no position
to make any proper identification of that

person at all. However, he did say that her

evidence as to the weapon is accurate. She
saw a dark weapon -
et cetera. That of course has to be taken in the
context of the various cautions that the trial
judge has given and he is relating the argument to
those cautions about not accepting her. Then over
the page at 508 at line 1:
He then submitted to you that the photograph,
Exhibit H, was shown to her in totally
unsatisfactory circumstances when she was
emotionally disturbed and at a time when she
believed she was going to be showed a
photograph of the person who murdered her
husband. And he said that her evidence is not
strengthened in that regard because she picked
Darby out in the sheet of photographs
Exhibit J because that photograph is the same
photograph as Exhibit H.

Exhibit J was the photographic spread that was

shown to her three years later. My learned friend
says that he has got the photographs here if the
Court desires them. For the purpose of argument,
we do not - - -

MASON CJ: Could we see them?

MR RICHTER:

Yes, certainly. Exhibit His the single

photograph and J is the photographic spread. It
might be of interest to see that the photograph of
Darby is a side-on photo.

BRENNAN J: What photograph number is the applicant?
MR RICHTER:	No 2. Darby is No 11 in the spread.

DAWSON J: Which is Darby in this?

MR RICHTER:

Darby is 11.

DAWSON J: And the applicant is 2?

MR RICHTER:

Yes, Your Honour.

BRENNAN J: There is, I suppose, Mr Richter, another

problem, and that is that if it were open to the
jury to form the view that the identification by
Mrs Simpson, though mistaken, could be
corroborative of the identification of the

Pollitt(2)

applicant as the killer by reason of facial
familiarity -

MR RICHTER:

By reason of similarity?

BRENNAN J: Similarity.

MR RICHTER:

There is that.

BRENNAN J: The direction that was given to them would

redound in favour of the accused. In other words,
the problem that you are raising really depends
upon the capacity of the eyewitness to make a

distinction between two people; rejecting one but identifying another.

MR RICHTER:

It is not so much that, with respect,

Your Honour, because identification evidence, of
its very nature, being a reaction to the presence
of the person. It is the immediacy of the
impression that becomes - - -

BRENNAN J:

I appreciate that, but you see, the point is that you are challenging two lots of evidence - or

one lot of evidence.

You are challenging the

evidence of all the suspect witnesses who identify

your client precisely.

MR RICHTER:

Yes.

BRENNAN J: And you are relying heavily upon the

identification of Darby by Mrs Simpson.

MR RICHTER:

Yes, Your Honour.

BRENNAN J: Now, if the jury were to form the view that

Mrs Simpson, having regard to all the
circumstances, might well have mistaken your client
for Darby, because she did see somebody who looked
very like your client, her evidence would tend to
confirm the evidence of the witnesses whose

evidence you are attacking.

MR RICHTER: That would be - - -

BRENNAN J: Now, that means that you would need to have a

direction from the trial judge that they really
ought not to rely too heavily upon that
identification.

MR RICHTER:

Yes, indeed, Your Honour.

We certainly agree

with that aspect of it. We would also say that the
trial judge would then also have to direct the
jury, in terms, distinguishing the problems about
identifying the photograph and the possible
similarities between the two photos, and taking on
board her description at the time. None of that

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was really approached by the learned trial judge

and that is part of the problem. It was not really
discussed with the jury, and was not explained to
the jury. This was, after all, a situation where
fundamental principles had to be related to a
particular case, and none of those subtleties, none
of those problems, were raised.

BRENNAN J:

It is that which really casts the burden on

counsel for the accused, does it not?

MR RICHTER: In our respectful submission, no, because

counsel for the accused is entitled to act on the
basis that it is the Crown's burden to show that it
is not - - -

BRENNAN J: Yes, but it is his function to assist the judge

to give the proper direction.

MR RICHTER:

I am sorry, sir. In terms of exceptions,

absolutely. We agree with that, and we said right
at the beginning that no exception was taken.
Ordinarily that might be fatal, in this case it
ought not to be, because of the sort of subtleties
involved and the fact that if what we say is

correct there has been a miscarriage of justice, and a pretty fundamental one, notwithstanding the
fact that no exception was taken.

DAWSON J: Surely counsel for the accused dealt with this in

his address.

MR RICHTER:

He dealt with it in the address but the problem

is that dealing with it in the address and saying,
"Mrs Simpson raises a reasonable doubt" and so on,
when it is followed by directions such as the
learned trial judge gave, which do not give any
imprimatur but, in fact, have criticism of Mr Ross in them, in our respectful submission, the accused
does not get the necessary stamp of legitimacy that
a proper summing up would have on these issues, and

is thereby deprived of a chance reasonably open to
him of an acquittal. That is why we drew the
Court's attention to the way Mr Ross was pulled up,
and we want to draw the Court's attention to other
passages where the learned trial judge comes back
to that sort of problem about which he· pulled

Mr Ross up. What we say is that the learned trial
judge - - -

DAWSON J: All that you can say about that is that the jury

would probably be mystified by it. I was, until a
bit further on.

MR RICHTER: Well, apart from saying that the learned trial

judge was clearly wrong, I was mystified by it,
too, with respect. The function of the learned

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trial judge is not to assist in the mystification
process for a jury but to be clear and to demystify
things, and he did not. That is really our
complaint.
Going on with the exposition that he gives of

Mr Walmsley's argument at page 508:
He then submitted to you that the photograph,
Exhibit H, was shown to her in totally
unsatisfactory circumstances when she was
emotionally disturbed and at a time when she
believed she was going to be showed a
photograph of the person who murdered her
husband.

All of which fits in to the sort of cautions that

the learned trial judge had already given. I
continue reading:
And he said that her evidence is not photograph as Exhibit H. It is a bit smaller but it is clear Exhibit H has been taken from
strengthened in that regard because she picked
Darby out in the sheet of photographs

that police photograph. He put it to you that
if Darby had been in the dock and the witness
Simpson had purported to identify him, I would
have directed you to ignore her evidence in
that regard. And I tell you, members of the
jury, that is correct.
Now, that harks back to the interruption in

the course of Mr Ross's address, and it has nothing

to do with this trial. It should not have been
said. It has nothing to do with this trial, that

is No 1. No 2, it has the tendency of diminishing
the defence submissions.
The reason it has nothing to do with this

trial, of course, is that Darby was not there as an
accused and could not be there as an accused, and
the notion of not permitting a dock identification
is, at the same time saying, "Well, even if the
defence had done it, I would not have permitted it;
the law does not permit it" and yet cumulatively
coming on the arguments that have been advanced and
the charge that has been advanced, it is in effect
saying, forget Mrs Simpson.
Now, he never says, forget Mrs Simpson, and

the fact is, the jury did not forget Mrs Simpson.
It obviously did not forget Mrs Simpson because, as
we said, the one question it asked for was for a
re-run of Darby's evidence, but it did that in a

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context where their deliberations about
Mrs Simpson -

DAWSON J: Well, you are really repeating yourself,

Mr Richter.

MR RICHTER:

I will pass on, if Your Honour pleases. At

page 519, the learned trial judge, when talking
about Darby's evidence, once again comes back to
the interruption of the Ross problem, and at line 4
he says this to them:
rou might recall that Mr Ross did ask why
wasn't Leonie Simpson recalled to see if she
could identify Darby and I stopped him because
I would not have permitted that to occur, any
such identification of anyone at this stage by
her, of Darby or the accused would have been
totally useless and I would have so directed
you if Leonie Simpson had given that evidence.

And once again, it would not have been useless for

defence purposes, but by saying that it would have
been useless altogether in the trial, he is in
effect flagging to the jury the fact that her kind
of identification - because her identification of
the photograph was, in fact, akin to a dock
identification, the three days later, after the
shooting - is really worthless. In the context
that must be the way in which the jury would have
perceived it. And I am reminded, in fact, by my
learned friend, that that is contrary to what the
learned trial judge had earlier said at page 358 of
the appeal book, where he talks about:
evidence of dock identification may be given because it may in fact exculpate the accused.

So, on the one hand at page 358 at line 18, the
learned trial judge says:

So evidence of dock identification may be
given because it may in fact exculpate the
accused. But if it does not, then you must
act very cautiously when considering what
weight you will give to such evidence.

At page 519 he is in fact saying, evidence of dock
identification is worthless and he would not allow
it. Now, that must have confused the jury and must
have distracted them from the nature and status of
Mrs Simpson's evidence.

Now, coming to the judgment of the

Court of Criminal Appeal, at page 538 around
line 18, Their Honours Mr Justice Crockett and
Mr Justice O'Brien say this:

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The defence relied upon the immediate
verbal description of the killer given by
Mrs Simpson which did not fit the applicant.
Counsel for the Crown conceded that her

description did not fit the applicant. The
first identification of Darby by Mrs Simpson
was tainted by the circumstance that Mrs shown a photograph which she was informed was
of the killer.

Well, the evidence did not go that far; she believed that she was going to be shown it, but
nobody said to her, "This is the killer". What she
was told was that it may be the killer.
Their Honours continue:
Counsel for the applicant said as much to the

jury in his final address. "We concede some
potential defect in just the fact of her being
shown a single photograph."

The majority treat Mrs Simpson's evidence, in our
respectful submission, in fact, as tainted
evidence, tainted by these problems. But that was
not the way in which Mrs Simpson's evidence had to
be examined. It was not tainted. It suffered from
certain disabilities, but - - -

BRENNAN J:	We have been through that.
MR RICHTER:	We have indeed, Your Honour.
MASON CJ:	Mr Richter, in what respects was it conceded that

Mrs Simpson's description did not fit the applicant?

MR RICHTER:

Height was certainly one of the features.

Build was another. Colour of hair - he had red

hair, and she described a person with dark brown hair, wavy hair. The applicant's hair was short

and spiky and it was red.

I am not quite certain,
but there were other aspects to it, but it was
conceded by the Crown that the description did not
fit, and that is a matter of importance. Those
were some of the features in which the description differed. The only other passage apart from - - -

BRENNAN J: Where do we find that description, Mr Richter?

MR RICHTER:

The description I think is best given in

Mrs Simpson's evidence which is at page 33 and thereafter. At page 33 she says what she saw -
the top half of a man standing over him -

et cetera. At page 36 line 2:

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What are you able to tell the members of the jury about the characteristics of the side of the face of the man that you saw?---Well, to
me he was Australian.
What drew you to that conclusion?---The voice.
He had brown or dark curly hair, collar length
whereas the applicant had short, spiky red hair.
When you say curly hair, could you be more
descriptive of that?---Well, it wasn't like
permed hair, it was curly, but wavy sort of.

Yes. And in colour?---Dark brown.
Yes, and what else?---Bushy eyebrows. Stock
type of build.
When you say a stock type of build, what do
you mean by that, standard or bulky?---Sort
of, not, you know, I suppose you call it
bulky, he wasn't fat. But he wasn't very,
very slim either from what I gathered.
Were you in a position to estimate the height
of this person?---Well, I put it down as
5'11".
Yes. His age?---Approximately early thirties.
Anything that you noticed about his eyes or
nose?---His eyes were sort of deep set.

So that is the description she gives.

TOOHEY J: There is a suggestion on the following page,

Mr Richter, that the person who Mrs Simpson saw may
have been left-handed. Did anything turn on that?

MR RICHTER:

No, nothing in the end turned on that.

MASON CJ: And where do we find what the trial judge told

the jury about the concession by the Crown that the
description did not fit the applicant?

MR RICHTER:

I think it is certainly referred to in the

Court of Criminal Appeal's judgment that the Crown agreed with the proposition that - - -

MASON CJ: Yes, you have mentioned that at page 538.

MR RICHTER:

Yes.

I will have Mr Shwartz turn that up, if I

may. I cannot turn up the passage, I am sorry,
Mr Bongiorno thinks that it may only have been in

the Full Court. He cannot recall the precise

Pollitt(2)

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passage either. In any event, the Crown's
concession, whether it be in the Full Court or
during summing up or in the judge's charge to the

jury, is of significance in itself. But we will
seek to turn that up.

BRENNAN J: Did the judge, in the course of his charge to

the jury, recite the evidence on pages 36 and 37?

MR RICHTER:	He recited the description, yes, Your Honour. At 457, when giving Mrs Simpson's account, at
line 7:

She repeated that she saw the side of the
man's face, that the man's voice was such as

to indicate to her he was Australian. He had

brown or dark curly hair, collar length. It
was curly - - -

BRENNAN J: Yes, you do not need to read it, but did he make

any comment at any stage as to the disparity
between that description and the accused?

MR RICHTER:	No, not that I ever noticed, Your Honour, no, I do not believe so.	I was going to take the Court
to the - - -

DEANE J: The Full Court indicated, at page 543, that he

did, at line - -

MR RICHTER:

Then I must be wrong.

DEANE J: It does not necessarily follow.

MR RICHTER:

Not necessarily, but

DEANE J: Their Honours said:

This point was made forcibly by counsel in his address and was supported in the charge.

MR RICHTER:

Yes, I am indebted to my learned friend,

Mr Bongiorno, at 513 Mr Ross's argument is put, and
the paragraph at line 7, and he says:
Let me finally then remind you of the

submissions made by Mr Ross on behalf of the

accused man. He first reminded you of the
fact that within hours of the murder
occurring, Leonie Simpson gave a description
of the man responsible and that description
could not possibly be a description of the
accused man, and if you are prepared to accept
her description, a description which he put to
you must be indelible impressed in her mind,
then this man is not guilty and your verdict
would be one of acquittal.

Pollitt(2)

13/11/91

So, he is summarizing what the defence was putting, and nowhere does Mr Walmsley say, in his summing up
to the jury, that the description did fit the
accused.
The only other passages that we wanted to draw

to the Court's attention were really commencing in
the second last line of page 542 of the appeal book
where Their Honours say this:
The interruption to counsel's address may have
been due to a misunderstanding of the point
being made by counsel. At all events the
comment made by defence counsel was equally

available to the Crown. The defence could
have applied to recall Mrs Simpson after Darby
had given evidence.

We say, in our respectful submission, that that
comment compounded the problems, and it compounded
them in this way: Certainly, there may have been a
misunderstanding because on analysis we do not, for
a moment, submit that the learned trial judge would
not have given a correct exposition had he thought
about it in relation to Mr Ross' address, but where
His Honour says this:
At all events the comment made by defence
counsel was equally available to the Crown.
The defence could have applied -

et cetera, in our respectful submission, that is
indicative of the sort of error into which the
Court of Criminal Appeal fell in this sort of
situation. It really was not a comment that could
have properly been made by the Crown because that
would have had the effect of reversing the burden
of proof, in effect.
The accused was in a position where the

evidence of Simpson, when properly summed up, was,

"Darby's the man", and it would have been foolish
for the defence to undertake the burden of going
the step further and saying, "Is this the man?",
about Darby, whereas it was really incumbent upon
the Crown to do so, to try and get her to say,
"This is certainly not the man", with whatever
deficiencies there might be.
That, Your Honours, concludes the submissions

that we want to make about that ground.

The next matter that we would seek to address
the Court on is the question of the voice
identification by Curillo. There was an objection
to that voice identification and evidence was given

Pollitt(2)

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on the voir dire, and I would seek to take
Your Honours to the voir dire evidence.
Between pages 6 and 8, Curillo gives evidence

on the voir dire. Your Honours will recall that was the telephone call that came late on the day that was circumstantially shown to be the day of

the murder. It came late and it came after the
murder, where Curillo was to give evidence that the
applicant rang up and said to tell Dennis he had
done the job. She gave evidence about her
familiarity with the applicant, gave evidence about
her association with Dennis Allen. At line 9:
I will go to a time late in 1984; did you become aware, as a result of publicity, if for no other reason, there had been a killing that
was referred to as the "mistaken identity"
killing?---Yes, I did.
Was that at a time that you had seen
Mr Pollitt both before and after that event in your house?---Before and after, yes.
Prior to that event, that is, the event of the
death referred to in those terms, on how many
occasions had you seen Mr Pollitt
approximately?---Approximately 30 -
approximately.

Further down at line 26:
On the occasions that you described, did you
engage in conversation with Mr Pollitt on any
or all of those occasions?---Some.

You spoke with him and he spoke with you; is
that what you're saying?---Yes.

At line 5 on page 7:

of incident that I have referred you to, did During this period, that is, up to the night
you have occasion to speak with Mr Pollitt on
the phone?---Sorry, what was that?
Did you speak with him on the phone prior to
this incident?---Prior to it?
Prior to the incident?---Not prior.
Well, on the night in question, did you
receive a phone call?---Yes.
Who was it that you received the phone call
from?---He was known to me as the Red Rat.

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13/11/91

Is that person in Court -
She identified the applicant.
What was said during that phone
conversation?---To myself he said, "Tell Denis
the job's done" and that's it.

At line 24:
How did the conversation commence, for example?---! answered the phone and said,
"Hello" and he said, "the job's done" - "Tell
Denis the job's done".
And nothing else?---No.
Did you say anything else?---No, I hung the phone up.

At page 8, line 4:
Did you have any other occasion thereafter to
speak with Mr Pollitt on the phone?---I am not
sure about on the phone.
Yes. What about personally?---Yes, personally
I did.

The point of that is that at the point of the
application to exclude the evidence identifying the voice, there was no evidence that she had spoken to
the applicant on the phone either before or after
the one telephone call, which was not introduced in
any way by him saying, "It's the Red Rat", or "Roy"
or "Ray" or whatever, no words of introduction.
The evidence is that she picks up the phone, says
"Hello", the words "Tell Denis the job's done" are
uttered, she hangs up the phone, and that is it.

DAWSON J: Just to make sure that I understand the point,

are you saying that if in the voir dire the basis
of admissibility for the evidence does not emerge,
it is inadmissible notwithstanding that later in
the actual trial, the basis does emerge?

MR RICHTER:	Well, it goes to the question of whether or not the judge correctly exercised discretion at the
time. What did emerge at the trial later on is rather confusing. It is not so clear at - - -

DAWSON J: Well, I know that, but assuming that that did

justify it, you would say that is not to the point?

MR RICHTER:

Yes, Your Honour.

DAWSON J: Yes.

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GAUDRON J: Would you not have another difficulty about

miscarriage of justice, if that were your argument?

MR RICHTER:	It would produce a difficulty about miscarriage of justice, but that would be surmountable, in our
respectful submission, by pointing to the evidence
that was actually given at trial which did not go
that much further anyway. The page references
given by our learned friend, Mr Bongiorno, at the
outset, tend to indicate that the evidence of
whether or not and on how many occasions she had
spoken to the accused on the telephone was in a
state of utter confusion, in our respectful submission, so the miscarriage point is not lost,
we would say.

In any event, we would ask the Court almost as
a matter of judicial notice and as a matter of
common experience to accept that the voices of
people on telephones are not the same as the voices
of people speaking in person, face to face; in the
same way that, for example, there are distortions

when there are tape recordings of voices. The
question of voice identification is somewhat
different from the question of visual
identification, in fact, because with visual
identification there are a large number of features
that impact: there is the build, the colour, the
general disposition of the features and the like,
and they make an impression, an imprint, on the
mind, which impression is repeatable, constantly.
Every time the person is seen, certain of those features reinforce the imprinting.
When, in a case such as this, the phone is picked up and five words are uttered by someone
with whom one has no course of familiarity on the
telephone, they cannot imprint themselves as
identifying the person, in our respectful
submission, unless there is some peculiarity or
some particular feature of the voice that is able

to, in some way, give some cogency to the assertion
that the voice is recognized.

BRENNAN J: There was evidence elsewhere that this was a

contract killing, though, was there not?

MR RICHTER:	Yes.
BRENNAN J:	Why was it not admissible to show that shortly

after the death a call came to the phone of the
contractor, expressing those words, and that the
voice was consistent with the voice of the
applicant?

MR RICHTER:

First of all, if it was relevant in the case to

show that Dennis Allen was the contractor, it would

Pollitt(2)

13/11/91

be admissible to indicate that the call came. But
in the context of this case, in our respectful
submission, the evidence was such that it was
really not capable of relating it necessarily to a
killing that had occurred earlier, because the
evidence was that the Allen household was, if one
could use the expression, crime headquarters.
There are a lot of things that were being done at
all times, at all hours of day and night. There
were a lot of drug deals. There were, in fact,
ongoing drug deals, deliveries, pick-ups and so on.
So that the words "Tell Dennis the job's done" could be referable to any job, and that is one of

the problems. If that had been put up for argument
the discretionary approach to its exclusion would
have been "Well, how can one say that it is
referable to the killing at all when we do not have
any precision about how long after the event, so
that we can in fact relate it that way".
The fact is the killing, I think, occurred

about 8 pm. The telephone call was at about 1 am,

it was said by Curillo. So it is not that closely
related. Had the killing occurred at 8 pm and the
telephone conversation at five minutes past eight,

perhaps it would have been even more arguable. But
there are problems for that proposition, in our
submission.
The other essential feature about the fact

that the nature of the phone call itself, the
content of the phone call itself, that prima facie,
in our submission, makes it incapable of
identification by someone who has not a reasonable
familiarity with the voice of the person on the
telephone, is that the recipient of the call was
herself a drug addict and gave evidence and was
cross-examined about that. She was habitually
using heroin at that time. So there are those two
problems: The very limited communication that was
contained in the phone conversation, the

telephone voice, the recipient's own state of drug recipient's non-familiarity altogether with the
dependence and intoxication at the time and the
fact that the Court, in our submission, ought to
take judicial notice of the fact that telephone

voice is different from ordinary voice. The reason
we say that is that it is, and would have been
within the common experience of the jury, that one
can pick up the phone when someone is speaking on
it with whom one has spoken many times and yet not
identify the voice immediately, but asks who it is.
That is a matter of common experience and would go
to questions of weight, and indeed the learned
trial judge gave cautions about the voice
identification which somehow put those problems in
the minds of the jury.

Pollitt(2)

13/11/91

But the point of special importance that we
seek to raise is really preliminary to the notion
of the weight that is to be attached but rather
goes to the question of whether or not the evidence
should have been admissible at all. In other
words, we would submit that in the present case
there was no basis upon which the evidence should
have been included rather than saying it is a
matter of weight balancing weight and, as a matter of discretion, the learned trial judge refusing to
exclude it.
And there is some apparent difference in the

authorities between Victoria and New South Wales in
this regard, and the difference really arises in
this way, as part of our list of authorities, the
Court was given a reference to the case of Smith in
New South Wales, and by accident the decision of
the Court of Criminal Appeal relating to that was
omitted, but Your Honours, I believe that the Court
registry was notified on that and the Court would
have available to it the Court of Criminal Appeal's
decision in Smith, (1987) 7 NSWLR 444, which is, in
fact, the case which precedes another New South
Wales' case, Brownlowe's case, which is at page 461
of the same volume.
The approach in New South Wales, in our

respectful submission, appears to be that there is, in fact, a condition precedent that needs to be met
before evidence of voice identification is admitted
at all, and that was the approach that was taken by
His Honour the Chief Judge of the criminal division
at first instance in Smith, (1984) 1 NSWLR 462, and
that was an approach that was confirmed by the
Court of Criminal Appeal in the decision of Smith
that we have referred to.
At page 475 of the first instance report, the proposition appears at paragraph Fas follows:

The general rule has been held to be that
testimony by a witness that he recognized the
accused by his voice is admissible in
evidence, provided that the witness has some
basis for comparison of the accused's voice
with the voice which he identifies as the
accused's and this is satisfied if the witness
acquires his knowledge of the accused's voice
after the event to which the witness testifies
as well as before that time.
Now, the familiarity in the present case

would, of course, need to be familiarity with the
voice over the telephone because it is different
from the voice when speaking face to face.

Pollitt(2)

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At page 477 paragraph F - this is

(1984) l NSWLR, Your Honours - this is the first
instance decision on an application to exclude

evidence. It is a ruling, in fact, at the trial.
At page 477 the following passage appears:
It is to be noted therefore that

according to both the United States
authorities and to the observations in the
Devlin Report, evidence of the voice of a
person present at a crime as being the same as
the voice of the accused can only amount to
p9sitive identification where the witness is
very familiar with the voice before hearing it
at the crime, or that the voice heard at the
crime was very distinctive, which means that
the witness need not have heard the voice
before the crime but heard it as the voice of
the accused for the first time after the crime
and then noted it to have the same very
distinctive features as had the voice at the
crime.
The evidence sought to be led by the

Crown in the present case falls into this
latter category.

There were said to be peculiarities in the voice. In the present case of Pollitt there were not
said to be any peculiarities in the voice at all,
and the evidence of prior familiarity given on the
voir dire indicated that there was no basis upon
which to find either a prior or subsequent
familiarity with the voice on the telephone.

BRENNAN J: But has this got anything to do with

admissibility?

MR RICHTER:	Yes, Your Honour.
BRENNAN J: Not as distinct from weight?
MR RICHTER:	Yes, it has something to do with admissibility

because, in our respectful submission, the approach
of the courts in New South Wales is that there is a
condition precedent before the evidence is to be
admitted, namely, that there is sufficient
familiarity with the voice, a prior familiarity, to allow the comparison. That is one possibility; or alternatively, that the voice is said to be so
distinctive or to have such features of distinction
that albeit that there is no previous familiarity
with the voice, a subsequent hearing of the voice
identifying that same peculiarity can be admitted.

Pollitt(2)

13/11/91

DAWSON J:

I thought that was said to be a question for the

jury.

MR RICHTER:

In our respectful submission, it is really

expressed as a condition precedent.

BRENNAN J: Where?

MR RICHTER:

It is expressed as a condition precedent in

this sense, that in the ruling on admissibility by
the learned chief judge of the criminal division he
speaks about the evidence being admissible in
evidence, and this is at page 475 -
provided that the witness has some basis for
comparison of the accused's voice with the
voice which he identifies as the accused's.

It is expressed as a proviso and, in effect, is a
condition precedent. The ruling and the
observations of the trial judge - - -

BRENNAN J: That was satisfied in this case, was it not?

MR RICHTER: In our case?

BRENNAN J: Yes.

MR RICHTER: In our respectful submission, no. It was not

satisfied in our case because there was no
familiarity at all with the voice of the witness on
the telephone.

BRENNAN J: But the proposition is that there is some basis

for comparison.

MR RICHTER:

Yes, Your Honour.

BRENNAN J: There was some basis. It might not be very

substantial.

MR RICHTER: Well, in our respectful submission, there would

have been some basis if it was said that the voice
on the telephone had some peculiarities, but that
was not said and the witness could not point to any
feature of it or -

BRENNAN J: But the accused was known to the witness?

MR RICHTER:

On her evidence, yes, in person.

BRENNAN J: And spoke to him afterwards?

MR RICHTER:

Yes.

BRENNAN J: Spoke to him on the telephone afterwards,

perhaps.

Pollitt(2)	38	13/11/91
MR RICHTER:	For the purposes of the voir dire, no. purposes of the later evidence, maybe once.	For the

BRENNAN J:

Why do you say there is no basis for the

comparison?

MR RICHTER:

Because, in our respectful submission, the

comparison of five words spoken over the telephone,
in the absence of the caller identifying himself,
or herself, cannot be set against a familiarity
with the voice of the person, in person, because of
necessity they are different. There is a
distortion in telephone voice, so that it is not a
proper basis for comparison - it is comparing
apples with pears - unless there is a peculiarity

in the voice. If there is a peculiarity in the
voice, then that peculiarity may carry through
whether it is on the telephone or in person, and
that would afford some basis for comparison.
Otherwise it would not, in our submission.

DAWSON J: Mr Richter, in Reg v Brownlowe, it was said in

the judgment of Mr Justice Hunt at page 464:

He then directed the jury that it was for
them to decide whether the voice in question
demonstrated characteristics so distinctive
and remarkable as to make it readily and
reliably recognisable if heard again in

similar circumstances •.•••
All of those directions were held by this

Court to be correct.

It is a matter for the jury.

MR RICHTER:

Of course, it is a matter for the jury, with

respect.

DAWSON J:	I thought you were saying it was not.
MR RICHTER:

It is a matter for the jury whether the
evidence is admissible and admitted. It then
becomes a matter for the jury. But what our
submission is, that there are situations in which
it is simply not admissible because there is no
proper basis for comparison, and what we seek to
say is that in this case it ought not to have been
admitted as a ruling on admissibility rather than
exercise of discretion on the question of
admissibility, because in the circumstances there
was no basis for comparison.
I note what Your Honour Mr Justice Brennan

says in terms of the familiarity with the voice in
person that was said to exist. That, in our
submission, given the nature of the telephone call,

Pollitt(2)

13/11/91

is not a proper basis for comparison at all,
unless the witness were able to depose to the fact

that the voice was somehow peculiar. Now, she is
not able to do that, and was not.
Brownlowe adopts the approach in Smith.

Brownlowe was, once again, a case where it was said
that the evidence of:
voice identification evidence had been wrongly
admitted because there was no evidence -

and I am reading from the headnote -
from either witness that the voice which they
first heard at the time of the offence
possessed any distinctive features such that a
jury could accept that an indelible mental
impression had been left in their minds, thus
permitting the conclusion safely to be drawn
that the two voices were the same.

That was the finding. The court held, in fact, and
applying the observations in Smith, that the
evidence was wrongly admitted because there was no
basis.

DEANE J: But that is quite different, is it not? If you

have spoken to a person, or heard a person speak on
30 occasions and he then telephones you, and you
say, "I recognize X's voice", the process is that
even if you cannot identify the features of X's
voice that you have become familiar with, you think
you have identified sufficient to be able to
identify him. That must be sufficient to get it
into evidence. It is then open to attack if she
has not said what particular features, but the very
process of thinking you identify somebody's voice
whom you have heard speak on 30 different occasions
is far different from what they are talking about
in Brownlowe's case.

MR RICHTER:

In Brownlowe there was no familiarity at all.

The point that we are really seeking to make is this: that one cannot compare apples with pears,
and so a familiarity off the phone has nothing to
do with a familiarity on the phone unless the voice has some peculiarity which transcends the medium of
expression. And that is, really, the submission
that we make. It can be supported by reference to
the fact that we know that voices on the telephone
sound different, the fact that we know that, from
time to time, a very good friend of ours will ring
up and we will say, "Who is that?". It is that
sort of conunon experience and conunon knowledge that
tells us, in our respectful submission, that for
there to be a basis of comparison one has to be

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comparing apples with apples and not apples with
pears and, essentially, and in short compass, our
submission is this: the Victorian approach to the
question of voice identification, as is
demonstrated in Hentschel, Paxton and Jones
v Harris which we refer to, is to say it is all a
matter of weight and discretion.
The New South Wales approach, as exemplified

in Brownlowe, in fact, is to say, "No". Before you
come to the question of discretionary exclusion you
have really got to have some proper basis of
comparison. If there is not a proper basis of
comparison the evidence should not go in at all,
not as a matter of discretionary exclusion but
because it cannot prove what it purports to.

TOOHEY J:

Mr Richter, you appear to be putting the

proposition, in extremely wide terms, that no
matter how familiar a person is with the voice of
another person through knowing that person and
conversing with them, that in the case of a
telephone conversation, unless the caller has what

you describe as peculiarities in that person's

voice, the evidence of identification of the caller

cannot be admitted.

You could not maintain a

proposition in those terms, could you?

MR RICHTER:

I could not maintain a proposition that wide, no, I could not.

I could not maintain it simply

because, in the course of having an excellent
familiarity with the voice in person, there are
certain peculiarities that one notices about the
manner of speech and so on.

TOOHEY J: Once you retreat from a proposition in those wide

terms you are really back into the area of weight
rather than admissibility, are you not?

MR RICHTER: Except for this: that on the question of

admissibility the notion of saying, "I have seen
this person 30 times, on some occasions I spoke to

this person", does not carry it sufficiently enough
to show that sort of intimate knowledge of the
voice that could found a comparison.

DAWSON J: But the evidence is relevant.

MR RICHTER: It is relevant only if it is probative. What

we say is it is not probative; it cannot be
probative.

DAWSON J: But it is probative. If it is accepted, it is

probative.

MR RICHTER:

If it is accepted that that is him, yes.

Pollitt(2)

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DAWSON J: It is relevant and therefore, prima face it is

admissible. If it is to be excluded, there must be
some basis for the exclusion. What is the basis?

MR RICHTER:	The basis is that it really is not relevant in the following sense, that it cannot be said to have
any probative value at all unless there is a basis
for comparison.

DAWSON J:

But that is nonsense to my mind.

Of course it

has a probative value if it is accepted. It is a
question of whether it should be accepted or not,
and that is a question of weight. There is an
exclusionary basis which you could call in aid,
which is that its prejudicial value outweighs its
probative value, but you have not mentioned that.

MR RICHTER: That is the second limb to - - -

DAWSON J:

But that is the only other basis on which you

could exclude it.

MR RICHTER:	Yes, Your Honour, we certainly accept that.
DAWSON J:	I mean, a trial judge does not go excluding

evidence because he does not accept it, just simply

because of that. It may be that its prejudicial
value does outweigh its probative value, but then
he has to reason himself to a conclusion on that
question.

MR RICHTER: Indeed, Your Honour. We accept that, too. The

second string to the submission is essentially
this, that on the evidence given on the voir dire,
any exercise of discretion ought to have been to
exclude it, because there simply was not a
sufficient basis. So that in the end, when one
sized up the evidence given on the voir dire, the
prejudicial value of necessity had to exceed any
probative force. That is really as far as we go on
that submission.

I would like to leave corroboration to the

last, if I may, but if I could now take
Your Honours to the hearsay problem. The evidence
that was led over objection was of the things that
Dennis Allen did and said at some stage after the
killing in the presence of Mrs Berry and Mr Berry,
and that they were permitted to give evidence of
out-of-court utterances which in fact identified
the applicant as the killer, and that those
utterances were, in our respectful submission,
classic hearsay and ought not to have been admitted
at all.
The ruling in relation to Sandra Berry is to

be found at pages 18 to 21. In the course of that

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ruling, the learned trial judge recites what it is
that was sought to be elicited from Sandra Berry at
about page 20. Indeed, it was evidence that was
subsequently led:
How I learned about it -

this is at line 22. This is about the mistaken
identity killing -

was on the night it happened. We left Dennis'
house in Stephenson Street, Richmond at about

1 o'clock in the morning. He told us to watch

out for the late news. I later heard it
whilst in bed that someone had been shot and

that it was a mistaken identity. I didn't
think anything of it until later the next
day -

and the evidence indicates that it was about
11 o'clock the next day -
Dennis said 'Bastard shot the wrong person.'
The next morning we went around to Dennis.
There was a phone call came in and Dennis was

quite angry on it. He told the guy who he was
talking to who he later explained to us was
that Ray -

that is the applicant who was known as Ray -

that he had bungled the job and that he had
killed the wrong person. This call was
received in the lounge kitchen of
37 Stephenson Street. I was sitting on the
couch, Wayne was over at the kitchen bench.
Dennis said, 'You won't get the rest of the money until you do the job properly.'
That was supposed to have been said on the
telephone.

I can't remember what else was said over the
phone this time.

Now, what is being asserted there is, in our
respectful submission, and was inadmissible as
against the applicant and arose out of
misunderstanding of what this Court decided in

Walton's case. It was admitted ostensively on the
basis of what Your Honour the Chief Justice said in
Walton's case at page 288, where Your Honour said:
The hearsay rule applies only to

out-of-court statements tendered for the
purpose of directly proving that the facts are
as asserted in the statement.

Pollitt(2)

13/11/91

The evidentiary basis upon which the prosecution
sought to advance that evidence, was because it was
said that the evidence went to prove
Mr Dennis Allen's, the utters, state of mind. At page 19 line 22:
What is said concerning the first passage of
that evidence -

this is in relation to it being the applicant who
is ringing Dennis Allen and Dennis Allen saying to
Sandra Berry that the applicant, in effect, got the
wrong person; that he wants to get paid -
identification of the applicant.
is that it is hearsay and should therefore be
excluded. For the Crown it is said that
although the evidence in question cannot be
used to establish the facts asserted,
nevertheless it is admissible as establishing Allen's state of mind at the time he made the
statements and demonstrates that he was a
party to the agreement to kill Williams, a
fact which will be very much an issue in the
trial.

In fact, it was not an issue in the trial at all,
as far as the applicant was concerned; it was never
part of the applicant's case that Dennis Allen did
not hire someone to assassinate Alan Williams.
That was simply not a live issue. But the problem,
in our respectful -

BRENNAN J:	Was it conceded?
MR RICHTER:	I am not certain that it was specifically

conceded, but the defence always proceeded on the
basis, "It was not me" •

BRENNAN J:

I appreciate that, but was it common ground that

it was a contract killing and that Allen was the

contractor?

MR RICHTER:

One would have said from the running of the

trial that it had to be, yes.

BRENNAN J: What then is the significance of this passage to

the merits of the case?

MR RICHTER:

None.

BRENNAN J: Well then, where is there any possibility of

miscarriage?

MR RICHTER:

The possibility being that what is being

related is Allen's subsequent assertion, telling
Mrs Berry, that it is the applicant who botched the

Pollitt(2)

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job, and that he wants to get paid, even though he
botched it. In other words, Allen, some time after
the killing, is saying to Berry, and she is
permitted to relate it to the jury, that it was the
applicant who did it.

TOOHEY J:

Mr Richter, the trial judge says in the passage

that you read to us at the foot of page 19 that the
evidence was "admissible as establishing Allen's
state of mind ..... and demonstrates" - and then the

passage that you read follows. Do you understand
that as referring to two bases of admissibility or
is one simply an amplification of the other?

MR RICHTER:

I did not understand that there is two bases of

admissibility, Your Honour, I understood - - -

TOOHEY J:

You mean the state of mind says no more than that

it is some sort of acknowledgement that he was a
party to the aggression?

MR RICHTER:

Yes, and we would say that the reason that the

ruling was wrong, and the reason why admission of
that evidence was completely wrong was that what
was admitted was, in fact, retrospective narrative
trial against the accused, Allen's state of mind at
testimonial utterances by Allen going to prove
the time he utters those utterances has nothing to
do with it at all.

DEANE J: But there are two aspects of it, are there not?

One is the telephone conversation itself. Now, on
one approach, if there was a conspiracy to murder
that can be seen as one of the final steps in the
conspiracy and possibly admissible.

MR RICHTER:

Yes, we are not concerned about that.

DEANE J: That is what I was really asking. You have

answered my question. You are only concerned with
the subsequent statement that, "It was Ray who was

the other person".

MR RICHTER:

Yes, Your Honour, precisely. And the reason we

would not be concerned with the first part is,
because it was never part of the applicant's case
that there was no conspiracy to murder and that
Dennis Allen was not the man who contracted it out.
That was never part of the case. That aspect of it is non-problematic. It is the subsequent utterance
by Allen identifying the applicant as the person
which, we say, breaches the rules, and is founded
on a complete misapprehension of Walton and,
indeed, of Benz, because, in our respectful
submission, it is narrative and testimonial in
character and would be in the same category, for

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example, if a police officer had interviewed Allen
at that time, at the very time when he is supposed
to be talking to Sandra Berry.
If a police officer had interviewed Allen and

said, "Who were you just talking to and what were
you talking about?", and Allen had provided those
bits of information, there is no question that such
a record of such an interview would not have been
admissible against the applicant, could not be,
because it falls clearly within the sort of
dichotomy in Tripodi about the narrative and
retrospective nature of what it is that is being
said. It is confessional material against Allen,
no more, and no less. That is all it was and, in
our respectful submission - - -

DAWSON J: The Crown case was that this was a contract

killing, and the parties to the contract were Allen
and your client.

MR RICHTER:

Yes, Your Honour.

DAWSON J: It was part of the Crown case, first of all, to

establish there was a contract and that, of course,
was relevant to your client's motive, if he was the

killer. Why was it not relevant to establish that
Allen was behaving at the crucial time in such a
way as was consistent with the existence of the
contract which the Crown alleged?

MR RICHTER:

Because at the time when that behaviour

occurred there would have been nothing to show that
that behaviour was somehow in furtherance of any
common purpose, so that whilst it might have been
admissible against Allen, it would not have been
admissible against the applicant.

McHUGH J: But, surely the contract was still on foot, was

it not?

MR RICHTER:

No.

McHUGH J: The object of the contract had not been carried

out.

MR RICHTER:

If the contract had still been - well, there is

some debate about that. Someone had been killed,
and in some sense, one would say the contract would
really have to be renegotiated, so it is not really
the original contract on foot, but some
renegotiation of what is going to happen.
What he says to Berry is not an act or utterance in furtherance of that contract in any

way, shape or form. It is an admission against his

own interest, and that is all it can be. It is not

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conduct that furthers any such contract. In so far
as it evidences the existence of an earlier
contract, it is only admissible against Allen,
because it is testimonial and narrative. It cannot
be evidence of the agreement to kill.
One could imagine circumstances in which a

subsequent utterance might be admissible in a
different context, but this is not it. Moreover,
it is important to remember that the applicant was
initially charged with both conspiring to kill
Alan Williams and the murder of Simpson, and that
the conspiracy count was severed because of the
provisions of the Crimes Act. The conspiracy count
did not proceed, and for good reason.
It was not possible to regard Allen's utterance at 11 am the following day to Berry as
anything to do with furthering the contract that
had existed. All he is saying is that he is
narrating what it was that the applicant supposedly
said to him, what he is angry about.

DAWSON J: If you are going to invoke Tripodi's case, why

were not these two people engaged in an enterprise
in concert?

MR RICHTER:

They had been, but the utterance does not come

at that time and the utterance is testimonial about
what the concert had been.

DAWSON J: If the contract was still on foot - - -

MR RICHTER: There is no evidence of that, in our

submission.

DAWSON J:

I do not know where it came in and whether it was

admissible, but there is evidence that $5000 had
been paid and he would not pay the extra $5000.

MR RICHTER: Yes.

DAWSON J: That seems to suggest the contract was not

completed.

MR RICHTER:

It does not suggest, in our respectful

submission, that the contract is still on foot
though at that time, because all the utterance is
is to say what had happened1 that is all. It is
confessional and testimonial as far as Allen's
state of mind, but is not capable of implicating
the applicant.

McHUGH J: Why was the contract not on foot?

Is the

mistaken killing an implied repudiation of the
contract?

Pollitt(2)

13/11/91

MR RICHTER: It is ground for rescission, as Mr Bongiorno

tells me, but the notion of an ongoing contract to
kill Williams, in our respectful submission, is not
what the Crown case was. That is partly why the

conspiracy count is severed way. The question for
the jury was: did the applicant kill Simpson?
On that issue, for Williams the day after the

killing to say to Berry that the applicant rang and
wanted to get paid, although he had not done the
job properly, is not evidence of the furtherance of
anything; it is simply a retrospective narration
to Berry of what had happened. To that extent, it
does not fall within any relevant principle.

DAWSON J:

He certainly was not acting as the agent of the applicant when he was saying these things.

MR RICHTER: Certainly not. Our point of special interest,

in our respectful submission, is that there is
considerable misunderstanding of the observations
of the learned Chief Justice in Walton's case, and
this is but an example of the looseness with which
the -

DAWSON J: Not only the Chief Justice - presumably the

majority as a whole.

MR RICHTER:

Yes, but generally the passage at page 288

which is being cited has led to error because what
is not being made clear in the Pollitt Court of
Criminal Appeal is that they accept that Tripodi's case is still alive. And it is still alive. It
was not disapproved of in any way, shape or form,
and the dichotomy of testimonial evidence as
against the proof of a fact which is relevant,
survives Walton, survives Benz and is still as

important as it ever was. And it is this point
that makes the case of special importance because
it needs to be propounded authoritatively.

There is no way in which the learned trial

judge in this case could have admitted the evidence
of Berry on the basis that he asserted that was
permissible unless there was that failure to
understand that the dichotomy is alive and well.

TOOHEY J:

But it may be that you are perfectly right in

that submission and that the evidence was
inadmissible. Well now, if that is the case, the
argument for special leave is not one related to

clarification of the law. It has to be found
somewhere else, either in a miscarriage of justice
or

MR RICHTER:

I am sorry, Your Honour, with respect. The

argument does relate to the clarification of the

Pollitt(2)

13/11/91

law, in our respectful submission, because the
learned trial judge perceived that the quote at
page 288 permitted him to admit that evidence when
it plainly did not. And Walton is being
misunderstood in terms of when things are relevant

and when they are not, and to what issue. Walton
has been misunderstood, and indeed the upholding of
his decision by the Court of Criminal Appeal is
wrong on that issue too, because the Court of
Criminal Appeal does not draw the dichotomy, and in
our respectful submission, clearly misconceives the
application of Walton to this kind of situation.
The pages in the judgment appear at - - -

TOOHEY J: You are speaking now of the judgment in the Court

of Criminal Appeal?

MR RICHTER: Court of Criminal Appeal, at 545 line 10,

relating to the conversations, after the murder of
Simpson, between Sandra Berry and Wayne Berry and
Bruce Allen.

TOOHEY J: But you really have to go over to 548, do you

not, to find the basis upon which the Court of
Criminal Appeal said the evidence was admissible?

MR RICHTER:

Yes, Your Honour:

In our opinion the evidence was correctly
admitted as tending to prove Allen's
involvement with others in the killing of
Simpson. The Crown did not rely upon the
utterances of Allen as evidence of the truth
of what he said but says that the evidence
goes to establish Allen's state of mind and
knowledge of and involvement in the killing.

Now, that is not a matter that was relevant; at the
time of the utterances it was not a matter that was
relevant at all.

TOOHEY J: It certainly appears that the Court of Criminal

Appeal found justification in what was said in
Walton.

MR RICHTER:

Yes, and it is clearly wrong, in our respectful

submission, there. The notion of something going
to state of mind is important in a case such as
Walton, depending on what is being said and when it
is said, or in the case such as Benz, but the state
of mind of Allen, after the killing, is simply not
relevant. It may be relevant to a further
conspiracy, if the evidence justified that it might
have been laid, but is not relevant to the actual
killing. It is relevant against Allen and
admissible against Allen as an admission against

Pollitt(2)

13/11/91

interest as a confession, in fact, but cannot be
used or cannot be admitted against the applicant at
all. And it is not just a question of not using it
against the applicant. We say, in our respectful
submission, Allen's state of mind, at the time of
the utterance that he made to Berry, is of no
consequence because the crime had taken place.
There may be other situations in which it might be
relevant, if something else was further done by
them and that had been the subject of the jury's
concern, but that is not the case in this instance.
We, in our respectful submissions, would say

this, that there is a need for an authoritative
clarification of Walton in its application to
post-event utterances, which are not so intimately
bound up with the event itself that they cannot be
said to be a part of any res gestae and that they
cannot, or either that they go to demonstrate a
state of mind which is not relevant to the crime
charged.

DAWSON J: Well, in Walton, the state of mind was relevant

only because the general experience is that a
person acts in accordance with their state of mind
at the time, and it was relevant as to what the
deceased did as part of what happened - -· -

MR RICHTER:	Yes, and here it is not.
DAWSON J:	- - - and you say here, of course, well what this

man did at this point of time, has no relevance
really, except to himself.

MR RICHTER: Precisely; that is our point in a nutshell, and

other than saying - - -

McHUGH J: The Crown case here was that this killing had

taken place as a consequence of an agreement to
kill Williams.

MR RICHTER: Yes.

McHUGH J: Now, suppose there was no evidence concerning the

agreement before the killing, but there was
evidence of the agreement after the killing; that
is that it was still on foot; that would have been
admissible, would it not?

MR RICHTER:

No.

If it was testimonial evidence - for

example, suppose there was no evidence of any
contract beforehand; suppose that Allen is arrested
and is interviewed, and he then makes full
confession saying, "I hired Pollitt to kill
Williams, but he killed Simpson instead." There is
no basis upon which it could have said that that

Pollitt(2)

13/11/91

record of his interview could be used against the
applicant in a trial of the applicant.

McHUGH J: Well, that may be, but surely evidence of payment

by Allen after the event would be admissible.

MR RICHTER:	Yes, but it is a question of form.
McHUGH J:	Why is not this evidence admissible to show that there was an agreement to kill Williams on foot
before and after the killing of Simpson, and
therefore it is admissible simply to prove what the
agreement was between these two.
MR RICHTER:	Because of the form of the evidence, with

respect, because the form of the evidence is that
the day after or, according to Mr Berry, several
days after the event, that is what Dennis Allen is
narrating to the Berrys, and that is classic
hearsay.

McHUGH J:

But it is also evidence of Allen's state of mind,

is it not?

MR RICHTER:

As against Allen, if Allen had been on trial,

but he was not. And it would have been admissible
as confessional material against Allen, and no more
than that; only as confessional material, as
admissions.

TOOHEY J: But what is meant by saying that it is evidence

of Allen's state of mind?

MR RICHTER:

What is meant by the trial judge or what is

meant by the - - -

TOOHEY J: What does anybody mean by it?

MR RICHTER:

I suspect, with respect, that what is meant is

a misunderstanding of the Walton principle. State
of mind, state of intention in Walton was obviously
relevant in a particular way, whereas Allen's state

of mind - and it was never clarified whether it
meant state of mind when the utterances were made
and in Walton it is the state of mind when the
utterances are made which is integral - - -

TOOHEY J:

I was not thinking of Walton, Mr Richter. The

phrase "state of mind" appears in the judgments

that you have taken us to. I just do not
understand what it is talking about.

MR RICHTER: Intention.

TOOHEY J: Is that what it means?

Pollitt(2)

13/11/91

DAWSON J: Can it be put another way? If you take it rather

than looking at it in the Walton situation you look
at it in the end situation. Here it was said that
there was a contract and Allen was a party to the
contract. Shortly after the object of the contract
was or was not achieved, Allen is acting in a way
consistently with the existence of the contract.
Therefore his behaviour goes to prove the existence of the contract. It does not matter particularly
whether what he said was true or not, but his
behaviour, which includes his verbal as well as his
physical acts, goes to prove the existence of the

contract which was central to the Crown case. Can
you put it that way?

MR RICHTER:

Yes, Your Honour, his behaviour may well have.

DAWSON J: Then, his behaviour includes not only what he

did, but what he said, and in that situation the
statements are not being tendered to prove the
truth of what he is saying so much as his behaviour
was consistent with the Crown case, that his verbal
acts as well as his physical acts supported the
Crown case.

MR RICHTER:

One could understand that proposition in some

sense had the identity of the applicant not been
given, and had it been an issue whether Allen had
commissioned the killing. Then we would say yes,
subsequent utterances, as against Allen, may show
that he recognizes that there is a contract -
subsequent acts and utterances - he recognizes it.
But for those acts and utterances to then be used
against someone else falls outside the principle of
agency, outside the principle of acts and
utterances in furtherance, outside of the
co-conspirator's rule, and outside any notion that
is recognized in the authorities as admissible
against Pollitt.

DAWSON J: But, you see, it was put to you by Justice McHugh

that the payment of the sum of money would be
clearly admissible, going to the existence of the
contract.

MR RICHTER:

The payment would, but his saying that he made

the payment may not be at all. It may only be
admissible against him, but not -

DAWSON J: What about his statement, if he made it, that: "I

am setting out to make this payment", as he gets
into the car?

MR RICHTER:

That would then bring it into the Walton-type

situation. Depending on the nature of the Crown's

allegation, it may or may not be admissible. It

Pollitt(2)

13/11/91

depends what the Crown case is. The Crown case is,
here, that Pollitt killed the man, he killed the
wrong man and Allen is angry about it, and upset
about it.

DAWSON J: No, that is attenuated. The Crown case was that

there was a contract for the killing of a
particular man and the parties to the contract were
these two particular people.

MR RICHTER:	If Allen subsequently says, "I paid him $5000", and one cannot separate the utterance from its
content in the sense that it must necessarily carry
content with it in proof against somebody else,
then in our respectful submission, the fact that he
says "I paid him $5000" does not prove the contract as against anyone else other than is an admission
against Allen, because it may or may not be true,
he may be saying anything, but as an admission
against interest, it is admissible. What he does
say does not show that there was a contract one way
or the other against anyone else at the time when
he says it.

Your Honours, essentially that is our point
with respect to the utterances of the Berrys. They are simply not capable, the Allen utterances to the
Berrys are not capable of being led as against the
applicant at all. In so far as the court says that
it goes to Allen's intention - rather, the trial
judge and the Court of Criminal Appeal - it cannot
go to Allen's relevant intention at a relevant
time.
Had it occurred prior to the shooting, things

may have gone under some different principle of
admissibility, but having occurred when it did,
either the next day at 11 am or some days after,
according to Mr Berry, and taking the form that it
did, in our respectful submission, it is not
admissible against the applicant at all. It is

narrative. That concludes the submissions that we
make in relation to the hearsay.

DEANE J:	In relation to the hearsay point, you need to go on to deal with miscarriage in the context of the
trial judge's direction.
MR RICHTER:	Yes, Your Honour, I thank Your Honour for that.

DEANE J: Because if the jury could confine it to the

context which the trial judge said they should
confine it to, it is difficult to see that it would
have done much harm.

Pollitt(2)

13/11/91

MR RICHTER:

Yes, except for this, that it is impossible to

have confined them so.

DEANE J:

I understand that you may say that, but it is only

if the court were to decide that that was so that
you - - -

MR RICHTER:

Yes, Your Honour.

It is only in those

circumstances it would have produced a miscarriage,
and our submission is clearly that the way the jury
was directed would have made no sense to them at
all.

DEANE J:

I do not know about that.

The passage on page 547

is readily comprehensible. Whether it would have
been effective is perhaps another question.

MR RICHTER:	It might have been effective in the absence of the Berrys having specifically been asked who Allen
told them was the speaker. It might then have been
effective. That was a complaint that was made to the Full Court in terms of the object for the
tender of the evidence, and it is a complaint that we repeat now, that the mentioning of the fact that
it was Allen relating that the applicant had rung him could not be put in. But once it was put in it
could not be ignored at all, and the jury could not ignore it, in our submission, notwithstanding that
direction.

Now, if the situation is that there exists the
slightest risk that the jury could not ignore it,
then there is a miscarriage because it was not
admissible, and that is as high as we need to take
it, in our respectful submission, to demonstrate a
miscarriage because it might well have deprived the
applicant of the chance of acquittal to which he
might otherwise have been entitled.

BRENNAN J:

Mr Richter, I think I have located one of the

passages where the objection to evidence was given.

That is page 150. Could you identify where the
passages ar~ where the objection to evidence is?

MR RICHT~R:

Yes, Your Honour.

The evidence that was given

at the trial?

BRENNAN J: Yes.

MR RICHTER: At page 144, Sandra Berry

BRENNAN J: There is no mention of Roy or Ray

MR RICHTER:

Till later, that is right.

The context of the

evidence starts at page 144, but the fact that it
is Ray is given later. At 150 where counsel for

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the Crown comes back to it which is
interesting - - -

BRENNAN J: Yes, that is just before the end of the examination-in-chief, that is one piece of evidence, now where is the other. That is

s. Berry.

MR RICHTER: That is for Sandra Berry.

BRENNAN J: Yes.

MR RICHTER:

Yes. The evidence in relation to Wayne Berry

is at pages 191 to 193, at 24:

he was just a little bit agitated -

that is Dennis Allen -
and I just asked him what was wrong and he
said that someone buggered up something they
were supposed to do •....
When you say he was a little bit agitated,
could you describe for the members of the
jury -

et cetera, and that -
He was jumpy and in a bad mood, the slightest
little thing would upset him.
Some days after this particular day we are now
discussing, you made the observations you did,
did you attend at 37 Stephenson Street with
your wife and there find Dennis Allen in
company with Jennifer McMahon -

that is Corilla -
and others?---Yes, I did.

And were you witness to a conversation held by
Dennis ·Allen and others involving a sum of
money?---That's right, yes.
What was said by Dennis Allen?---That someone wanted $5,000 and didn't do the job right.
Was anything mentioned by Dennis Allen as to
who that person was?---Not at that time I
can't recall, no.
At any subsequent time?---After that, he after
a while, I thought it might be a couple of
days or something, he said Roy got the wrong
one and he wants to be paid for it.

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And Roy is the applicant. Indeed, the very way in
which the evidence emerges tends to indicate that
the two-edged aspect, albeit that the Crown is
maintaining one, the second aspect of it is just
not necessary if the first one is the proper basis

for which the evidence is being tendered. But it
is being pursued in that way which, to the mind of
the jury, would have made no sense other than
planted the notion that Pollitt was the man, and it
could not have been pursued in that way, that is
just classically inadmissible material.
I.f I could now turn to the question of

corroboration. Now, in a sense the question of
corroboration is bound up with the other issues of
admissibility, because this was a case where the
trial judge directed the jury that so far as the
witness Jones was concerned, they should look for
corroboration and he told them what that
corroboration would be, albeit that in one
instance, indeed as the Court of Criminal Appeal found, he mistakenly identified what the item of

corroboration was. It was said by the learned
trial judge that evidence of association between
Allen and Pollitt was capable of corroborating
Jones, when in fact it was not. The Full Court
held that that was in error; that it did not
vitiate the trial.
But the evidence that was outlined as being

capable of being corroboration included - that is the corroboration of Jones - what we say were the hearsay and inadmissible utterances of Allen; the evidence of Curillo, about the telephone call; the
evidence of Denning, who was the gaoled confessor,
or rather the recipient of the gaol confession.
Now, so far as Denning was concerned, the

learned trial judge did give a direction - or did
tell the jury that they should look for
corroboration as far as Denning was concerned,

and - - -

BRENNAN J: Well now, which corroboration are we going to

look at now, Denning's corroboration or Jones's
corroboration?

MR RICHTER:

The corroboration of Denning.

BRENNAN J: Denning?

MR RICHTER:

Yes.

BRENNAN J: Have you finished what you want to say about

Jones?

Pollitt(2)

13/11/91

MR RICHTER: Well, what we want to say is this, that we

would have to concede that in the state of the law
as it exists, to say that Denning can corroborate
Jones, in the state of the law as it existed, was
correct; there was no rule excluding Denning from
corroborating Jones, because Denning was not an

accomplice. But we would turn the matter on its
head in this way - - -

BRENNAN J: Well, now you are going back to Denning's

corroboration. The question I want to ask you is,
could you show us where the judge directed the jury
that the evidence of the Berrys might corroborate
Jones?

MR RICHTER:

Yes, Your Honour. His Honour outlined all the

matters that were said to be capable of
corroboration at page 390 and thereafter. In the

middle of the page:

Now as I said to you before I reminded

you of the evidence given by Jones. Jones was
an accomplice of the accused. In that
situation, it is necessary for you to look for
corroboration of his evidence, that is,
evidence from a source independent of Jones
which implicates the accused in the crime by
tending to show that the crime was committed
and that the accused committed it. In this
case there is evidence which I direct you is,
as a matter of law, capable of amounting to
corroboration.

Then three lines from the bottom:
First there is the evidence of Jennifer
Curillo. The evidence she gave of the
accused's association with Dennis Allen, that
she had seen him approximately 30 times -

et cetera. So, that is the evidence of Curillo.

At page 391, line 19:
Further evidence, which if you accept it, is
capable of amounting to corroboration of
Jones' evidence, is the evidence of Wayne
Berry -

there is then a reference to the evidence of Sandra
Berry, being to the like effect. Finally, there is
the evidence of Detective Brian Rix, and that
relates to the finding of the shotgun.

BRENNAN J:

Is that the only evidence to the Berrys with

respect to corroboration?

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MR RICHTER:	Yes.
BRENNAN J:	Thank you.
MR RICHTER:	Now, at that stage, there was no mention of

Denning as being a potential source of
corroboration for Jones, but that emerged later as
a result of a discussion during the break with
Mr Walmsley who, at page 395, right at the bottom,
says this:
I note that Your Honour hasn't mentioned the confession to Denning is capable of
corroborating Gary Jones and I was just musing
as to whether or not that was because of the
problems of mutual corroboration.

Mr Ross had, on earlier occasions, sought
directions and sought to argue that the trial judge
should give cautions to the jury that they really
should not use one impugned witness to corroborate
another impugned witness, and that was the mutual
corroboration notion that he adumbrated which was
an expansion on the sort of concepts discussed in
Kilbourne, but nevertheless, that is what was being
urged on the learned trial judge, and hence the
reference to:
musing whether or not that was because of the
problems of mutual corroboration.

His Honour says:
No, that was because of oversight.

His Honour then, upon the resumption of the charge,
at page 407, then says that Denning is "capable of
amounting to corroboration":
Members of the jury, when I was giving

you a direction yesterday concerning the

evidence which was capable of amounting to
corroboration of the evidence the witness
Jones gave, I overlooked one further piece of
evidence which, if you accept it, would fall
into that category, and that, of course, was
the evidence of the witness Denning to the
effect that on an occasion whilst he and
Pollitt were together in Goulburn gaol in the
three months prior to July, 1988, Pollitt
confessed to him that he had murdered Simpson,
and so as I said to you -

et cetera, so Denning is given as corroboration as

well. As far as Denning's own position is
concerned, he was given to the jury as someone with

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respect to whose evidence the jury should look for
corroboration. At page 362 at line 24:
Denning is a person with a long criminal

history. He is a person one would describe as
being of bad character or, as Mr Ross put it,
a tainted person or certainly up to

comparatively recently. When considering the
evidence of such a person commonsense dictates
that you scrutinise it very carefully.
It does not automatically follow from the

fact that Denning has a criminal record and
has been a person of bad character that his
evidence will be untrue. Nevertheless,
experience has shown that persons of that
calibre may - and I stress the word "may" - have motives for not telling the truth. So when considering what weight you will attach
to his evidence it is wise to look for
independent evidence which corroborates his
account, that is, evidence from some other
acceptable source which implicates the accused
man in the crime.
We would say that that caution itself, with

respect to Denning, is insufficient to draw the
jury's attention to the peculiar dangers in hearing
not in persons of general bad repute or bad
character but persons in the position of Denning as
a resident recipient of gaol confessions. There
are peculiar dangers that a jury would not
ordinarily be aware of that need to be drawn to
their attention for the same sorts of philosophical
reasons that identification cautions need to be
given in far greater detail and resting on the
experience of the law are given in those instances.
The same rationale, in our respectful submission,
would apply to accomplices as to people in accomplice.

This was a situation in which the learned

trial judge considered that he should give them a
warning about Denning but having done so, he did
not go far enough and did not really cover the
salient features of the problem that Denning

raised. We certainly concede that he was not an
accomplice, but what the jury would then look for
in accordance with this direction would be evidence
from some other acceptable source, and they were
left completely at large as to that. The question
arises, "What would the jury have considered as
evidence from another source that they could use to
corroborate the Denning confession?", because it is
quite possible, on the evidence in this case, that
the jury may well have said, "We do not accept any

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of the Jones evidence, but we do accept the Denning
confession, the confession to Denning". If they
did that the question arises, what would they have
looked for by way of corroboration or what was
permissible for them to use as corroboration and
the answer of course is, at first, they would
immediately go to Jones to try and use Jones's
corroboration of Denning.
The curious feature in this case which arises

is this: the evidence of a principal accomplice is
used to corroborate evidence going to the
determination of guilt of the particular crime.
The fact that Denning is not an accomplice, in our
respectful submission, in these circumstances
should not have precluded, and indeed required, an
additional caution in relation to the evidence that
the jury might be tempted to look at as
corroborating Denning and to grave dangers in
acting on it as corroboration. Indeed, something
approximating an exclusionary principle ought to
have been enunciated to the jury, not in every
case, but in this case.

BRENNAN J: What do you mean by exclusionary principle?

MR RICHTER:

On the basis that the learned trial judge

should have told the jury, for example, that
because Jones was an accessory on his own account
to the murder and because what was impugned was a

confession to the murder, Jones' evidence should
not be used to corroborate that confession.

The sort of corroboration they should look
for, independent corroboration, would be material
which would make it more probable than not that in
fact the appellant confessed to Denning; in other
words, to support the confession, the fact that the
confession was made. That is the sort of material
with which the Court was really concerning itself

in McKinney and Judge. It is corroboration of the
fact that the confession was made which was
important as far as Denning is concerned, not just general supportive material as to the guilt of the
accused.

BRENNAN J: When you say "should not be used", do you mean

it is a question for the jury?

MR RICHTER:

Ultimately it has to be a question for the jury

in one sense, because they could convict just on
the confession. So if they are able to do that,
then - - -

BRENNAN J: Of course that is so, but the question is

whether or not it is for the jury to say whether

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they regard it in all the circumstances as safe to
look at the evidence of Jones as corroboration of
Denning.

MR RICHTER: At first instance we would submit that the

proper direction would have been that they should
not look at Jones' evidence at all as corroboration
of the confession to Denning.

BRENNAN J: What does it mean, "should not"?

MR RICHTER:

Must not, cannot use it, cannot use it as

corroboration - in the same way that as between
accomplices the direction is given they cannot
corroborate one another. That is our primary
submission, that that should have been said in this
case. And it should have been said in this case
because of the history of the case, recalling that
the murder took place in 1984; recalling the fact
that a warrant for Jones' arrest was issued in 1987; that Pollitt is in gaol in Goulburn with Denning in 1988 - in the three months leading to
July of 1988 - and that it is at that time that the
confession is supposed to have taken place, but
that confession is not related to anyone until
1989, not mentioned, not referred to, is not a
truly independent confession in a reliable sense.
Had it been a situation where there was a

truly independent confession made to someone who
had no motive for lying and no basis for making it
up, then it would have been different and no
caution would have been required at all and no
prohibition, but in the circumstances of this case
the chances of Denning making up that evidence,
because of his peculiar position, were so great
and the impact of his evidence potentially so
devastating, that for the jury to be allowed to use
the evidence of Jones as corroborating the making
of the confession ought not to have been left open
to the jury.

MASON CJ:

We will adjourn now and resume at 2.15.

AT 12.56 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MR RICHTER: If the Court pleases, I drew the Court's

attention to the passages at page 362 relating to
Denning. The other passage relating to Denning is

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at page 476 where at line 20 His Honour directs the
jury as follows:
As I said to you before, it does not follow from the fact that a person has criminal
convictions or is generally of bad character
that he will necessarily lie to you,
nevertheless when you are dealing with such a
person you must scrutinize his evidence very
carefully when determining what weight you
attach to it. You will also look to see if
there is independent evidence you accept which
corroborates the evidence of the witness in
question. As I have said to you on a number
of previous occasions such persons may have

motives for lying. You must look at their
evidence very carefully.

That would apply to all the tainted persons really,
but has specific application with Denning. The
passages, as far as they relate to Denning, in our
respectful submission, first of all are not given
as directions of law or might not have been
understood as specific directions of law because
the jury is not told that this is what the law
requires in relation to that; whereas, as far as
Jones is concerned, of course, they are.
The second point that we make about the

warning about Denning's confession evidence was
that there was no explanation given about the
common experience of the law which would, in fact,
reinforce the rationale as to why the caution is
being given to them, and that is an important
dimension, in our respectful submission.
Most importantly, nothing is said about which

evidence could be used to corroborate Denning.
That is left completely at large and would then
fall back presumably to the general sort of
analysis that His Honour performed in relation to

corroboration of the evidence of Jones. But, as
far as Denning is concerned, when one puts aside,
for the sake of argument, the evidence which is
disputed - the hearsay utterances, the voice
identification and the like - the principal source
to which a jury exposed to that summing up would go
would be to look at Jones, and Jones has nothing to
corroborate in terms of the confession itself, but
Jones also is the classic accomplice who is at the scene of the crime and, in our respectful submission, it is odd in the extreme, in the
situation like the Denning confessional evidence, that the jury can go to the very person who is at
the scene of the crime and is, undoubtedly, the
person requiring corroboration as an accessory par
excellence to look for support of the making of a

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confession to Denning, which he cannot
support - Jones cannot give that support at all.
The rule in relation to mutual corroboration,

as discussed in the authorities, and the three
categories of the types of accessories - we are
concerned with the first category, and that is of
co-accomplices not being able to corroborate one
another. That, of course, is not the situation
here, but the rationale behind it in terms of
danger exists in this case and the jury should have
been told that "Jones is not the place to look for
corroboration and shouldn't be used to corroborate
Denning's evidence".
In our respectful submission, the rule

relating to mutual corroboration is, at once, both
too restrictive and too broad, and this Court ought
to lay down principles which will guide courts.
The reason, we say, it is too restrictive is that
the rule as hitherto understood about mutual
corroboration as between accomplices properly
so-called may, in fact, be too restrictive in a
situation where they have nothing to do with each
other and it is quite plain on the evidence that
the very way in which their stories emerge, and in
which they come to give their evidence, is itself
indicative of support and the sort of support that
juries are entitled to look at, and to lay it down
as a rule that in that sort of situation you are
not allowed to look at an accomplice for
corroboration is too restrictive, or rather,
constrains the Crown too much.

On the other hand, the rule is too narrow because one can conceive of a lot of situations
where a common sense analysis of the evidence would
say, "You ought not to be permitted to look at
something else", as affording the sort of support
that is necessary even though the people involved
are not accomplices in the classical sense, and
this is such a case, in our respectful submission.

It is a case where there was a whole range of

tainted witnesses, but specifically the Denning
confessional material was inherently very, very
dangerous. Had it been confessional material that
was said to have existed, much earlier in the
piece, prior to Pollitt being a suspect or prior to
Pollitt being arrested, in other words, prior to
any notion that Pollitt is responsible been floated
in a way that would get to Denning, if at such a
point in time Denning says to someone, "I have had
a confession made to me by Pollitt that he murdered
this man, acting mistakenly," that would put it in
an altogether different category to the one that we
are seeking to enunciate in relation to whether or

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not there should be mutual corroboration between
Jones and Denning.
But this is not such a case; this is the

precise obverse of the case, where Denning, who has
a lot of institutional reasons for fabricating a
confession, is not supported about the making of the confession at all, and the allegation, as he
makes up that confession well after it is known
that Pollitt is the man that is going to be
nominated for the killing, in both circumstances it becomes too dangerous to permit the jury to look at Jones's evidence as corroboration of Denning,
because the Denning evidence requires support for
the fact that the confession was made at all, in
our respectful submission, and Jones can have no
bearing on it, and yet the overall impact of
allowing those two witnesses to support each other
is, in the circumstances of this case, wrong, in
our submission.

DEANE J: But, if you are drawing a distinction between the

kind of corroboration and saying that evidence of
the truth of the contents of the alleged confession
does not corroborate the making of the confession,
do you not really move it into an area where, even
if one accepts your argument about unreliability or
risk, that a corroboration warning is not the
appropriate warning at all?

MR RICHTER:

Whether the strict corroboration warning is

appropriate or not is - - -

DEANE J:	I mean, McKinney, for example; nobody suggested that a corroboration warning was the appropriate
warning there. What was involved there was the
need to give a warning that in a particular set of
circumstances it is dangerous to act on police
evidence of an oral confession.

MR RICHTER:

I accept that, Your Honour, with respect. What I am really saying is that the analysis - - -

DEANE J:

It may not be helpful to you, because it may lead

into a situation where, some warning having been
given, it is a matter for the particular
circumstances of the case whether the warning was

adequate. I can appreciate what you would say
about the particular circumstances, but query
whether that is a matter of general principle.

MR RICHTER:

As to the warning about Oenning's own status,

we would say it falls in the category of a
requirement of a particular kind of warning to be
given because of the class of witness that he is
and his status. As to any warnings about mutual
corroboration, that is something else. That we

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proceed on on the basis of the analysis of a case
and how useful or sensible it is to make such
warnings in the particular case.
In a sense, our submission really adopts the reasoning in Vetrovec as being a helpful analysis.
What we are seeking to do in our submission is
really to get away from the sort of formalism that
delimits the mutual corroboration rule in the way
that it does and to say that ultimately what the
judge is there for is to afford assistance to the
jury. But in a case involving a witness like

can give vis-a-vis the evidence of Denning is to Denning, the only proper assistance that a judge
bring his office to bear to informing the jury
about peculiar dangers that lurk for such a witness
that a jury would not ordinarily be aware of.
As to that, we say that there is a category

where a warning should be given. If it is given,
it ought to be full, ample and helpful, and in this

case it was not. As to the mutual corroboration
aspect, having regard to the case itself, it was a
situation where something ought to have been said.

DEANE J:

Was Denning cross-examined to bring out his

motivation for giving evidence and the advantages
that would accrue to him?

MR RICHTER:

He was cross-examined essentially to

demonstrate that he was giving evidence in a whole
lot of cases and that it was to try and shorten the
sentence.

DEANE J: And he agreed with that?

MR RICHTER:

He did not agree that it was to try and shorten

his sentence. His version was he had seen truth,
justice and reality and had turned a new leaf.

GAUDRON J: What is the warning that you say should have

been given in this case in relation to the double
corroboration aspect?

MR RICHTER:

The mutual corroboration aspect?

On a proper

analysis of the case, in our respectful submission,
the judge should have told the jury that so far as
looking for corroboration of Denning was concerned
they ought not to look at the evidence of Jones.

GAUDRON J: Does it not depend on which way they first

approached their deliberations?

MR RICHTER:

On which witness they pick on to look for

corroboration?

GAUDRON J: Yes.

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MR RICHTER: Well, it would, and one would suppose that they

would have to be informed about that as well.

GAUDRON J: Then what is it? It is most unsatisfactory, is

it not, to raise this issue. You sought no
particular redirections at the trial and it is by
no means a simple issue.

MR RICHTER:

No, what was sought at the trial was a

direction that tainted witnesses should not be used
to corroborate each other. People who themselves
require corroboration should not be used to
corroborate others who require corroboration.

GAUDRON J: But you do not press that?

MR RICHTER:

We press that so far as Denning is concerned,

in particular the aspect of Denning and what

corroborates him and what can corroborate him. We
find it difficult to press it the other way, but in
the peculiar circumstances of the sequence of
events and when the confession arises we press for
a direction that the jury should have been told
that Jones could not be used to corroborate Denning
as to that aspect of the case.

BRENNAN J:

It is difficult to grapple with an argument like

this in the absence of an application for a
redirection along the lines which you now seek and
in the absence of any articulation of the precise
direction which is thought to be appropriate.

MR RICHTER:

Your Honour, there was discussion about the

problems of mutual corroboration and the
recognition of the traditional principle that it
really only precludes two accomplices corroborating
each other, accomplices in the same crime. The
issue was ventilated and it was going to be
ventilated further. If Your Honours look at
page 571 where Ross is asking whether he is to
respond to certain submissions of the learned

prosecutor and says to the learned judge:
Do you want me to answer those matters?

BRENNAN J: 571?

MR RICHTER:

Sorry, 525.

Mr Ross appears to want to go into

the question of mutual corroboration but what
His Honour says at 525 at line 7 - he cuts Mr Ross
off and says:
I'm giving no further direction to this jury
on corroboration of accomplices and
corroboration of tainted evidence given by
tainted witnesses. If the jury can't
understand that now they never will.

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MR ROSS: Just let me say -

HIS HONOUR: You can say it for the record.

MR ROSS: I just want to say this: I raised
the things with you this morning and
Your Honour didn't answer me in terms - I have
heard Your Honour's - - -
So His Honour really determined that as far as

mutual corroboration was concerned, that is it. He
was not going to do anything of the kind.

DEANE J: But there is the unanswerable problem, is there

not, and it is this: it is one thing to say a
corroboration warning may be necessary in a case
such as Denning, in terms of corroboration of the
making of the confession by reference to evidence
that establishes the truth of the contents of the
confession, but if that is not corroboration at all, for relevant purposes, it must be, must it not, that a corroboration warning is not the
appropriate one, because as to the making of the
confession the appropriate warning will be if the
circumstances are such that the evidence should be
viewed with suspicion or great suspicion or a
suggestion that nobody would act on it. But it is
very hard to move it into the corroboration
territory so far as I am concerned.

MR RICHTER: With respect, we see the force in what

Your Honour says, and we are really constrained to
say that we accept the force of what Your Honour
says. It does not eliminate the need to, say, look
for support about the making of the confession, but
not the evidence that he did the crime. And that
is in fact not, properly speaking, a corroboration
caution in the classical sense, but it is a warning
such as in McKinney.
If the Court pleases, we finally, simply, rely

on an accumulation of what we have argued by way of
defects to submit that there has clearly been a
miscarriage in this case for a number of reasons

and that the application should be allowed. If the
Court pleases.

MASON CJ: Yes, thank you, Mr Richter. Yes, Mr Bongiorno?

MR BONGIORNO: If the Court pleases.

MASON CJ:

Now, we need not trouble you on the second point

argued by Mr Richter. Now, that was the point that
concerned the admissibility of the evidence given
by Curillo of the voice identification of the
applicant over the telephone.

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MR BONGIORNO: If the Court pleases. Your Honour, I have

copies of some slightly revised submissions from
those which were put into the original application.

MASON CJ: Thank you.

MR BONGIORNO: In light of Your Honour's indication, I shall

then commence with the question of what might be
called the identification of an exculpatory nature
which I think is foreshadowed ground 1 of the
applicant's grounds of appeal in the event that
special leave is granted.
The applicant's case is that when a judge is

charging a jury on an issue of identification which
goes not to identification of the accused as the
person who committed the crime but as to
identification by way of exculpation, there should
be some either lesser or less emphasized charge in
relation to the reliability of that evidence, the
basis for the submission being that it is only a
reasonable doubt that the accused is interested in
raising and not proving the case beyond reasonable
doubt.
In our submission, the submission of the

applicant is fallacious. When a judge charges a
jury in the traditional way in respect of
identification evidence, what he is really doing is
making what the law requires as a mandatory comment
on the weight to be attached to particular factual
evidence. In one sense, of course, he is giving a
direction of law because the law requires him to do
it - Alexander's case and the others; but in
another sense, he is really making a mandatory
comment on the facts. He is doing that because of
the empirical experience of the courts, as set out
in the authorities, with respect to this type of
evidence.
Whether the evidence is to be used by the

defence as exculpation or whether it is sought to
be relied upon by the Crown as inculpation and
therefore as evidence of identity beyond reasonable doubt is, in our submission, immaterial. It is the fact that the evidence has, as a matter of law,
because of the cases on identification, a certain
quality that requires the judge to draw that
quality to the attention of the jury when he is
dealing with identification evidence.
So that there is no distinction to be drawn,

as a matter of law, between what he must do when he is charging the jury in a case where identification
evidence is led by the Crown to prove guilt, or in
a case where identification evidence is led, be it

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by the Crown or by the accused, and is relied upon
by the accused as suggesting a reasonable doubt.

The warning, as we say, goes to the nature of the evidence and not to its possible use.

It is no
more than a recognition that a particular form of
evidence has a particular quality which is known to
the law, known to the courts and acknowledged by
the courts as having that quality, and that that
quality can affect the way in which a jury ought to
deal with it.
In our submission, Mr Justice Cummins in the Full Court stated the law correctly in his
additional judgment after agreeing with the
majority at page 557 of the appeal material.
His Honour summed the matter up from the beginning
of the second paragraph on that page and, in our submission, did so correctly. In particular, we
refer the Court to the middle of the second
paragraph on page 558 at about line 15:
But I consider it is the nature, not the
source or use, of identification evidence
which involves the need for instruction. That
is because a jury has to decide on evidence.
Jurors are sworn to give a true verdict
according to evidence -

et cetera, and His Honour goes on:
That character inheres in identification

evidence -

that is, character of requiring instruction -

regardless of which party adduces it or which

party relies upon it. I consider that the
relevance of the source or use of
identification evidence goes not to the giving
of instruction but rather to the differential

standard to be applied in considering that
evidence. If relied upon in proof of guilt,
the standard to be applied is proof beyond
reasonable doubt; whereas, there being no
onus of proof upon an accused, it is
sufficient in exculpation if upon the evidence
adduced a reasonable possibility exists or
arises consistent with the innocence of the
accused.
Now, in our submission, His Honour there has identified the problem and has stated the real
reason why, in our submission, and a warning or a
traditional direction in respect of identification
is as apposite in this case as it would be if the
Crown were relying upon a witness to prove

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identification for the purpose of establishing
guilt.

DEANE J:

Mr Bongiorno, can I take you to page 519 of the

transcript and direct you to what His Honour said

from line 4 to the end of that paragraph. Does
that not indicate a complete misapprehension of the
function served by identification evidence in this
case, when His Honour says - I mean he has already
said, all you have got is the identification of a
photo, a photo in these circumstances - he there
says even if Miss Simpson, looking at Darby in the
witness box, had sworn that that was the man she
saw, I would direct you that that was totally
useless.

MR BONGIORNO:

The explanation for that, in our submission,

Your Honour, is that at that stage, what in fact
His Honour is saying is that having regard to the fact that, by the time that occurred, you have got
Miss Simpson, having identified a photograph in the
traumatic original circumstances, subsequently some
three years later having identified photograph 11,
I think, on the large sheet that was handed to the
Court this morning, subsequently having adhered to
those identifications at, I think, two preliminary
hearings, an inquest and a committal proceeding,
and by then, of course, having seen the accused in
the dock for the period, at least, that she was in
the court; I think all His Honour is saying is that
any identification that was made at this stage
would be useless, and that is the comment that he
is making to the jury.

DEANE J: But, if in the context of this trial, with a

different accused in the dock, she had said, "Darby
is the man I saw do the killing", it could not conceivably be suggested that that was totally useless, unless the whole function of
identification evidence in this case is being
confused.

MR BONGIORNO:

The only way I can answer that, Your Honour,

is by saying that it appears that that was what was in His Honour's mind, that so much water had passed
under the bridge at that stage that anything
Mrs Simpson identified, or anybody she identified
at that stage, would have been so confused with the
well known effect that His Honour referred to the
jury, the transfer effect, and the effect of having
seen a photograph on two widely diverse occasions,
perhaps four widely diverse occasions in time, that
by that stage anything she said about anybody would be useless, and I offer that only as an explanation
that is by inference from what His Honour said. I,
of course, have no light into His Honour's
reasoning than what he said, but it would appear,

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in our submission, that that is the case, and that
is our submission as to what His Honour meant, at
least, in saying that he would have regarded it as
totally useless at that time.
He uses the words "at this stage" and it is

from those words really that I draw the inference
that what he is really saying is, "It's too late.
There would be no point served. We'd simply have
more debate about the transfer effect or whether
she was identifying the photograph she saw in the

first place" et cetera. I do not think I can take
that part of the matter any further.
As I understand it, the applicant does not

contend that there was anything wrong with the
directions given by His Honour in respect of the
identification issue other than that His Honour
perhaps over-emphasized the danger of accepting
identification evidence.

TOOHEY J: But that is not really the complaint, is it,

Mr Bongiorno? The complaint is of a failure by the
trial judge to differentiate between the role of
identification and its significance, one, in
relation to Crown witnesses and, two, in relation
to a witness whose evidence would go to support the
defence.

MR BONGIORNO:

Yes.

TOOHEY J: It is not a matter of emphasis, as I understand

the complaint, but of a failure to draw that
distinction which Justice Cummins seems to
recognize on page 559, but which His Honour there
rather suggests does not go to the matter of
instruction but to the differential standard to be
applied, although I have some difficulty in seeing how a differential standard can be applied without
adequate instruction from the trial judge.

MR BONGIORNO:

Your Honour, in our submission, if you take

the whole of His Honour's charge, it is clear that
he has made it clear to the jury that they have to
be satisfied of the guilt of the accused beyond
reasonable doubt and it is, in our submission, an
inescapable conclusion from that direction that he
is instructing them, as it were, that if they had a
reasonable doubt brought about by, inter alia, the

identification of this other fellow by Mrs Simpson,
then the accused would have been entitled to
acquittal.
True it is that he has not done it perhaps as

succinctly as Your Honour just put it, but
nevertheless in the context of the charge as a
whole, it could not be said - and indeed, I did not

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hear Mr Richter to say - that at any stage
His Honour confused the onus of proof or confused
the jury as to the fact that they had to be
satisfied of the accused's guilt beyond reasonable
doubt.
The only conclusion that one can draw from the

direction he did give on Mrs Simpson's evidence is
that he was doing so in terms of exculpation, and
that they could look at her evidence and obviously, if that raised a reasonable doubt, then the accused
would have been entitled to an acquittal.

TOOHEY J: Thank you.

MR BONGIORNO:

The authorities which bear on the

identification question we have referred to in our
written note, and there is no need, it would appear
in the circumstances, to go to them; they are well
known. In particular, Alexander's case in this
Court in 1980 sets out the basis and the problems
generally with identification evidence, and there
does not appear to be any argument between our
learned friends and ourselves in respect of that,
so I will not trouble the Court any further.
There is nothing further on that point that I have to submit to the Court, other than to make the
point which was made by a number of Your Honours,
that there was of course no objection to this taken
in the charge and that that of itself, in any
event, should preclude the grant of special leave
in these circumstances, even if there might
otherwise have been some merit in the point.
I turn then to the second of the points

remaining, and that is the question of what might
be called the hearsay point, the suggestion that
the evidence admitted by His Honour of
conversations with Allen subsequent to the murder

are inadmissible by reason of being hearsay. In

our submission, there are two bases upon which it
can be said that these statements are not
inadmissible hearsay.

GAUDRON J: In the summing up, Mr Bongiorno, the trial judge

directed the jury that they were not evidence
against the accused.

MR BONGIORNO: Yes.

GAUDRON J: What were they? If they were not evidence

against the accused, how could they be admissible?

MR BONGIORNO:

What His Honour meant there, in our

submission, was that they were not evidence that
the accused was - the context in which His Honour

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said that was in saying that what Allen said was

evidence of his state of mind. One of the issues
in the case was the existence of the agreement

between Allen and Pollitt to murder Williams. Some
evidence of that agreement can be found in the
acts, including the verbal acts, of Allen.
What His Honour was saying, in our submission,

was: in so far as you are looking to the existence
of that agreement, some evidence of its existence
resides in that which Allen said about it, in what
Allen said about it. That does not constitute
direct evidence against Pollitt in the same way as
it might have if this was a conspiracy case and
this was a Tripodi-type agency hearsay problem,
which it is not. In our submission, His Honour was
distinguishing this situation from - - -

GAUDRON J:

It must have carried a lot of meaning to the

jury.

MR BONGIORNO: Well, Your Honour, if I could just perhaps

find the passage that Your Honour is referring to
because it was, I think, also repeated by the Full
Court. It appears at page 547 and I think it is
originally at 426. That is in volume 2.

GAUDRON J: The top of page 547 says:

But they are not evidence against the accused
man.
And later, the second paragraph there:
But it is no evidence against the accused man.

MR BONGIORNO:

Yes. What, in our submission, His Honour meant was that if you had a case where these

statements by Allen were made in furtherance of a
conspiracy, or furtherance of an agreement to kill

Williams, and were made in those circumstances

where they would be admissible on that basis, they

are then direct evidence against the person whom

they implicate.

What he is doing here, albeit without

obviously explaining to the jury the reasons for
doing it, is saying that they can only be used here

for a much more limited purpose. They cannot be
taken as admissions made by Pollitt that he killed
Simpson or, indeed, anyone else, but are evidence

which goes to the issue of the existence of the

agreement to which Allen was a party. That is what

he is saying.

Now, when he says:

it is no evidence against the accused man -

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in our submission, he is confining the statements
of Allen to evidence of the agreement. Otherwise,
the passage would be absurd. I would respectfully
agree with Your Honour that it is an absurdity to
say it is not evidence against the accused man, and
one could not attribute absurdity, certainly, to a trial judge of Mr Justice Beach's experience. And it really would be absurd, in our submission, to
say it is not evidence against the accused man,
otherwise it would never have been admissible in
the first place, it should not have been on the
transcript, it should not have been in the trial.

GAUDRON J: It is admissible against the accused man, you

say?

MR BONGIORNO:

Yes. man but not in any direct sense.

It is admissible against the accused

GAUDRON J: To prove what?

MR BONGIORNO:

To prove the existence of an agreement

which - - -

GAUDRON J:	Between?
MR BONGIORNO:	Between him and Allen.
GAUDRON:	Then, of course, that is precisely what the trial
judge did not say and did not intend to say, is it
not?
MR BONGIORNO:	Your Honour, at the middle of 426,

His Honour, in fact, expands a bit on that and,
indeed, puts it largely in the way that I have just

put it to Your Honour. He says:
Now, this passage of her evidence falls

into the same category as the passage of the
evidence I reminded you of given by her
husband.

He is talking about Mrs Berry's evidence, whose
first name I cannot remember:
That is this passage of her evidence is no evidence at all against the accused man.

He uses the same, with respect, absurd statement if
it is to be taken the way that Your Honour
Justice Gaudron has suggested:
This is what she says Allen told her and what
she saw after the killing. The only basis
upon which this evidence is admissible is to
establish Allen's state of mind at the time
and if you accept the truth of what she says,

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that he, Allen, was party to a plan to kill
Williams.
The existence of the agreement is what it is
evidence of, and in so far as the existence of the
agreement is relevant to the guilt of Pollitt, then
it is evidence against Pollitt.

GAUDRON J:

How can it be unless it proves that he was party

to it, and this passage of the evidence, in any
event, does not go to his part being party to it.

MR BONGIORNO:

No, it does not.

GAUDRON J: And, indeed, it is not even objected to, it is

not the subject of complaint in these proceedings;
it is the latter bit when he identifies the bungler
as Ray that is in issue.

MR BONGIORNO:

Yes. Your Honour's original question, in our submission

But to get back to the answer to

what His Honour meant was that it is admissible
only for that limited purpose and he did not mean
it is totally no evidence against Pollitt. If he
meant that it was no evidence against Pollitt it
follows, logically, that it should-never have been
led and he would have had no business dealing with
it in his charge.

McHUGH J: But a party to a plan at what particular time?

Suppose this conversation had taken place five or
six years after the event, would you still assert
that it was admissible?

MR BONGIORNO:

It would be, certainly, much more difficult

to assert that it was admissible. Certainly, on
the alternative way that we put it, that it was
part of the res gestae, because that involves some
sort of contemporaneity problem or contemporaneity
concept, and then it would be more clearly, and would fall more easily, be characterized, in Mr
Richter's terms, as narrative or a description

simply of what occurred in the past.

McHUGH J:

I must say, I do not understand what is meant by

"state of mind" in this context.

DAWSON J:

I must add to that, I do not either.

I mean, the

reason for adducing the evidence was to prove the
truth of the assertion which was made. If that was
not it, there was no point in it; I mean, "state of
mind", apart from the assertion, was irrelevant. I suppose, in one sense, one can always say that when
anyone asserts something, that that demonstrates
their state of mind, but the state of mind has
independantly to have some relevance; it does not
here.

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MR BONGIORNO: Well, in our submission, the "state of mind"

relevance has to be that it demonstrates that
Allen, as one party to an agreement, had a state of mind which was, in a sense - - -

DAWSON J:

Being one party to an agreement, but I mean,

that is really just going around in circles,
whereas if you take a case like Walton's case, it
was important because one wanted to know what the
victim did on the particular night. If she had a
particular state of mind, that threw light on that,
but here all you want to establish is an agreement
and you say that because he said there was an
agreement, there was an agreement and that was his
state of mind, but his state of mind does not
matter.

McHUGH J: It is either an admission or nothing, is it not,

and if it is an admission, it should not have been
in.

MR BONGIORNO:	No, in our submission, it does not - if I can perhaps just go back and deal with it from the
beginning. The Crown case was that this crime consisted of an agreement to kill Williams and the killing of Simpson for a sum of money, of which
half had been paid prior to the killing taking
place and in respect of which the other half was
payable presumably, on completion. Yes, I think my
learned friend corrects me; half was paid
immediately after and the other half was payable at
some future time.

In so far as the Crown case involved that
agreement, evidence of that agreement was relevant.
It cannot be made irrelevant simply because it is
not contested, as Mr Richter suggested this
morning, that it was never in contest; that there was an agreement to kill Williams; that cannot be
determinative, in a criminal trial at least, where
there are no pleadings in the ordinary sense of

what is in issue between the parties on a plea of
not guilty. So that, in so far as the agreement
was relevant, and it was relevant, (a) because it
was part of the Crown case that the agreement
existed and secondly, it was relevant in any event
as going to the motive of Pollitt for performing
the murder - - -

BRENNAN J: What is the distinction between those two?

MR BONGIORNO:

I suppose there is none, Your Honour.

BRENNAN J: It is admissible only in proof of motive, is it

not?

Pollitt(2)

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MR BONGIORNO: Proof of motive, yes, and that is the way the

Crown put it. If it is accepted that that is
admissible, then evidence which goes to the
existence of that agreement is admissible and it is
our submission that - - -

DAWSON J: It is the

form of the evidence that is important.

What is the difference between his saying, "Yes, I
admit there was an agreement" and saying what he
said here? Both of them go to show his state of
mind.

MR BONGIORNO:

Yes, I would have to concede that there is no

difference between those two circumstances,
except - - -

DAWSON J:

Does it matter who he said it to, if he said it

to a detective afterwards, or he said it in these

circumstances? No difference, is there?

MR BONGIORNO:

No. With respect, I would not quarrel with

that proposition, Your Honour. The difference
here, and it may really be that it must be examined
then on the second way we put it, is that the
contemporaneity of the statement with the events
which made up the crime make it admissible as part
of the res gestae in any event.

BRENNAN J: What does it serve to explain?

MR BONGIORNO:

It serves to explain the fact that the crime

was not committed in accordance with the agreement,
because it explains the killing of Simpson pursuant
to an agreement to kill Williams, and it has all of
the features, in our submission, that the
Privy Council were referring to in Ratten.

McHUGH J: But what is spontaneous about it? There is

nothing spontaneous about it. It is a narrative
statement, not a testimonial statement.

MR BONGIORNO:

It is spontaneous in the sense that in the

case of Mrs Berry, if I can take Your Honour to the
evidence there, at page 144, Mrs Berry is giving
evidence at line 12:
Did you, the next day, go back to the Dennis
Allen premises?---Yes.
And when you went back there, did Allen say
anything to you?---He said "Did you watch the
news?" and I said "Yes, what about it?" And
he said "The mistaken identity", and I had
said "What's that got to do with anything?"
words to that effect. I can remember saying to him, "What are you talking about?" Or my husband had said it.

Pollitt(2)

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Did Allen say any more at that time about who had been shot?---After a phone call, yes.
This is the morning after, is it, after you
heard the news broadcast?---Yes.
At that time, were you still at the Dennis
Allen property?---Yes.
And what happened?---There was a phone call,
it might have been about 1 o'clock that
morning, and Dennis was ranting and raving.
When you say he was ranting and raving, did he answer the phone?---Yes.
Was he agitated or ranting before he answered

the phone?---He wasn't himself. He was
furious over something at the time and when the phone rang we were able to hear what he said, only a little bit of the conversation
that I took notice of.
Tell us what you can remember?---He said, "You
get the rest of the money when you do the job
properly."
Was anything else said about the identity of
the person who had been shot to the person on
the other end of the line?---Not that I can
remember.
Where was this call received in the house?---
In the loungeroom.
And where were you sitting?---On the couch.

et cetera. Husband there. At line 17:

And did Dennis Allen say anything about money?---Yes, he was furious when he got off

the phone, ranting and raving that "I have
already given him 5,000, he expects me to give
him another five for something he hasn't
done."
Now, in our submission, that is a spontaneous
assertion which is made with a sufficient degree of
contemporaneity to the events so as to constitute
part of the res gestae.

BRENNAN J:

Say that statement had been made by somebody on

the other side of Melbourne sitting down having a
cup of coffee with a friend, would it have been
admissible?

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MR BONGIORNO:

Someone unconnected with - - -

BRENNAN J: Unconnected.

MR BONGIORNO:

No, with respect, of course not, Your Honour.

BRENNAN J: Well then, how does it become admissible?

MR BONGIORNO:

Only because of the other body of evidence

which connects Allen with the events.

BRENNAN J: And what is that?

MR BONGIORNO:

Your Honour, there is the evidence that - I

suppose commencing with the evidence that Williams
was brought to the house so that Pollitt could
identify him, earlier - that is in the evidence of
Curillo. The evidence of Curillo, herself, as to
the phone call received at Allen's house, "Tell
Dennis the job's done". Curillo's other evidence
of the relationship between Pollitt and Allen, and
Williams, and Jones for that matter, as well. The evidence of the passing of the bag that
inferentially may have contained the weapon.
Jones' evidence. So that, we would submit, all of
that links Allen in so that this statement is in a
context. It is not a statement made in the way
that Your Honour suggested.

DAWSON J: Well, you say it is part of the entire criminal

transaction.

MR BONGIORNO:

Yes.

It is not simply a statement made by

someone who is not otherwise implicated. I suppose
to take Your Honour Mr Justice Brennan's comment
there would be many instances where statements
would be admissible in criminal proceedings which,
if made by someone who was otherwise not implicated
in other circumstances - to use Your Honour's
example, having a cup of coffee on another side of
Melbourne - would be inadmissible.

DAWSON J: But when you say, "made by a person implicated"

you have to put it on some other basis than that.
You say it is part of the res gestae. It must be
that or nothing.

MR BONGIORNO:

Yes.

So it has that degree of

contemporaneous expression with the events of the
night before, to take it out of Mr Justice McHugh's
example of being something that occurred a long
time after, so that the restriction in Ratten as to
the time available to fabricate or concoct is not
there, that essentially the element of voracity of
the statement which is one of those touchstones
that Ratten talks about in respect of the question

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of res gestae is there. That is really the way in
which it is admissible.
So that in so far as it has an element of

heresay reasoning in it, it has it in a permissible
way, permissible on the principle of it being
admissible by reason of being part of the res
gestae and therefore able to be received.

GAUDRON J: What is it that makes it part of the res gestae,

just the contemporaneity?

MR BONGIORNO: That, plus the other evidence that I referred

to in answer to Mr Justice Brennan's question, that

it is part of the whole criminal transaction. It
goes to explain why something went wrong, why there
was a murder that was not intended, why the wrong
man was shot.

GAUDRON J:

I do not know that - it may be you are right,

but is there authority to say that what brings
matters within the concept understood as the res
gestae is the whole criminal transaction? Because
on that basis, if he rang up a month later saying,
"You still haven't paid me", it would seem to
be -

MR BONGIORNO:

Your Honour, a month later, you would run

into the problem that Ratten refers to. In
Ratten's case, (1972) AC 379 - that is in the
Privy Council in Ratten - Your Honour will recall
that Ratten:
was convicted of the murder of his wife by
shooting her with a shotgun. His defence was
that the gun had discharged accidentally
whilst he was cleaning it. To rebut that
defence the prosecution called evidence from a
telephone operator who stated that shortly
before the time of the shooting she had

received a call from the address where the

deceased lived with her husband. The witness
said that the call was from a female who, in a
voice sobbing and becoming hysterical, said
"Get me the police, please" and gave the
address •••.. before she could make the
connection to the police station the caller
hung up. The defendant objected to that
evidence on the ground that it was hearsay and
did not come within any of the recognised
exceptions to the rule against admission of
hearsay evidence. The objection was
over-ruled and the evidence admitted. The
defendant's application to the Supreme Court
of Victoria for leave to appeal against
conviction was dismissed.

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It was then taken to the Privy Council. In the
course of their judgment, Their Lordships said
this. At page 387, they dealt with it in terms of
the statement being evidence other than testimonial
evidence and said that it could be admitted in that
way, and then at page 388, their Lordships said
this:
The expression "res gestae", like many

Latin phrases, is often used to cover
situations insufficiently analysed in clear
English terms. In the context of the law of
evidence it may be used in at least three
different ways:
1. When a situation of fact (eg a

killing) is being considered, the question may
arise when does the situation begin and when
does it end. It may be arbitrary and
artificial to confine the evidence to the
firing of the gun or the insertion of the
knife, without knowing in a broader sense,
what was happening. Thus in O'Leary v The
King evidence was admitted of assaults, prior
to a killing committed by the accused during
what was said to be a continuous orgy. As
Dixon J said at p 577:
"Without evidence of what, during that time,
was done by those men who took any significant
part in the matter and especially evidence of
the behaviour of the prisoner, the transaction of which the alleged murder formed an integral
part could not be truly understood and
isolated from it, could only be presented as
an unreal and not very intelligible event."
2. The evidence may be concerned with

spoken words as such (apart from the truth of
what they convey). The words are then
themselves the res gestae or part of the res

gestae, ie, are the relevant facts or part of
them.
3. A hearsay statement is made either by

the victim of an attack or by a bystander -
indicating directly or indirectly the identity
of the attacker. The admissibility of the
statement is then said to depend on whether it
was made as part of the res gestae. A
classical instance of this is the much debated
case of Reg v Bedingfield, and there are other
instances of its application in reported
cases. These tend to apply different
standards, and some of them carry less than
conviction. The reason, why this is so, is
that concentration tends to be focused upon

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the opaque or at least imprecise Latin phrase
rather than upon the basis reason for
excluding the type of evidence which this
group of cases is concerned with. There is no
doubt what this reason is: it is twofold.
The first is that there may be uncertainty as
to the exact words used because of their
transmission through the evidence of another
person than the speaker. The second is
because of the risk of concoction of false
evidence by persons who have been victims of
assault or accident. The first matter goes to
weight. The person testifying to the words
used is liable to cross-examination: the
accused person (as he could not at the time
when earlier reported cases were decided) can
give his own account if different. There is
no such difference in kind or substance
between evidence of what was said and evidence
of what was done (for example between evidence
of what the victim said as to an attack and
evidence he (or she) was seen in a terrified
state or was heard to shriek) as to require a
total rejection of one and admission of the
other.
The possibility of concoction, or fabrication, where it exists, is on the other hand an
entirely valid reason for exclusion, and is
probably the real test which judges in fact
apply. In their Lordships' opinion this
should be recognised and applied directly as
the relevant test: the test should be not the
uncertain one whether the making of the
statement was in some sense part of the event
or transaction. This may often be difficult
to establish: such external matters as the
time which elapses between the events and the
speaking of the words (or vice versa), and
differences in location being relevant factors
but not, taken by themselves, decisive

criteria. As regards statements made after
the event it must be for the judge, by
preliminary ruling, to satisfy himself that
the statement was so clearly made in
circumstances of spontaneity or involvement in
the event that the possibility of concoction
can be disregarded. Conversely, if he
considers that the statement was made by way
of narrative of a detached prior event so that
the speaker was so disengaged from it as to be
able to construct or adapt his account, he
should exclude it. And the same must in
principle be true of statements made before
the event. The test should be not the
uncertain one, whether the making of the
statement should be regarded as part of the

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event or transaction. This may often be

difficult to show. But if the drama, leading
up to the climax, has commenced and assumed
such intensity and pressure that the utterance
can safely be regarded as a true reflection of
what was unrolling or actually happening, it
ought to be received. The expression ttres
gestae" may conveniently sum up these
criteria, but the reality of them must always
be kept in mind: it is this that lies behind
the best reasoned of the judges' rulings.
Now, in our submission, what this statement
has got is the first of those criteria; it has
spontaneity, it has connection in time, it has, as
Mr Justice Dawson has observed, been made at a time when the criminal event is, in fact, still
happening.

DAWSON J:

I suggested that to you.

MR BONGIORNO: Suggested it, and it has been made at a time

when, on one view, the agreement which the Crown
alleged existed certainly had not been carried out.
It had been breached by someone else in fact being
the victim. So that, in that sense, it has all of
the criteria which, in our submission,
Their Lordships were pointing to in Ratten, and
there is nothing in Walton or Benz, the decisions
of this Court, which, in our submission, would cast
doubt on its admissibility in that context.
Now, we would concede that it was not

explained in those terms by His Honour the trial
judge, but it was by the Full Court and accepted by

the Full Court in that way and, in our submission,
that is not to the point, given the way in which

the trial and the appeal went. It does not matter
now that the trial judge did not express himself in
those terms when he admitted it on another ground
and, accordingly, in our submission, it is

admissible.
Accordingly, in our submission, His Honour did

not fall into error in permitting that evidence, or
those pieces of evidence, to be given.

In the alternative, I suppose, we would say
that given the way in which His Honour directed the
jury and, in particular, to the way in which
Justice Gaudron drew my attention to the
proposition that he repeated the phrase, "It's not
evidence against the accused man", even if the
evidence was inadmissible the jury were clearly
directed that they were not to use it directly

against Pollitt. We would say that they were
directed properly to use it against Pollitt in the

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indirect sense, that is, as establishing the
agreement to which Pollitt was a party and which
constituted the beginning of the Crown case, but
even if that submission is incorrect, then the way
in which the trial judge directed the jury was to
the effect that they were not to use that evidence
directly against Pollitt in the way that it is
suggested by Mr Richter the jury might have used
it. He makes that clear in at least two places,
both of which we have referred to, so that even if
the evidence was inadmissible the jury was subject
to that direction and, in our submission, this
Court ought not to go behind the direction and
assume that the jury in some way used that evidence
contrary to the direction they were given by the
trial judge, so that no miscarriage of justice
follows in any event.
For there to have been a wrongful conviction following the admission of that evidence, or even
the possibility of a wrongful conviction, as a
matter of logic the jury must have disregarded the
judge's direction, and it would only be upon their
disregarding the judge's direction that this could
have exposed the accused to conviction in
circumstances where he had the possibility of an

acquittal. So that, regardless of whether the
statements are admissible or not, or are held by
this Court to have been admissible or not, the end
point ought to be that it does not affect the
conviction.

BRENNAN J:

Mr Bongiorno, I notice that in Vocisano

v Vocisano, {1974) 130 CLR 273,
Sir Garfield Barwick explained Ratten's case in the
Privy Council and drew a distinction between
statements that are made approximately to the
occurrence of an accident and which are made by way
"of a historical account rather than a statement

made as part and parcel of the occurrence". Now,
the occurrence here is surely the killing.

MR BONGIORNO: Well, in our submission, the occurrence here

is the killing, pursuant to an agreement, or the
occurrence, in fact, is the mistaken killing,
purportedly pursuant to an agreement and that the
uttered statement is all part and parcel of the
whole transaction. It is one of the participants

saying that the agreement was bungled. Now, in our
submission, the criminal enterprise is still very
much on foot; it has not come to an end in any
sense, either in the sense that the killing, which
actually occurred - although that physical event
has finished - the criminal enterprise involved a
collection of proceeds, a collection of a fee, by
the contract killer and that had not occurred; it
was in the context of that and the attempted

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collection of that fee that this spontaneous
utterance occurred, in our submission, and that is
why it is in fact - and, with respect, we would not
seek to distinguish that part of the
Chief Justice's judgment in Vocisano from the
present circumstances.

TOOHEY J:

Mr Bongiorno, the charge in relation to the

deceased was simply one of murder, not an agreement
or conspiracy to murder.

MR BONGIORNO:

No, Your Honour, but the Crown case which

involved, as it were, an allegation of a motive for
the murder, being the contract killing, involved

all of those elements. It can be tested this way,
in our submission: if a question of the relevance
of a payment made were raised, surely then that
payment would be admissible or the fact of that
payment would be admissible on the trial as being
part of the transaction, possibly also, of course,
as part of an admission, if it was made by somebody
who was an accused, but it would certainly be
admissible, whether Allen was still alive. If one
assumes for a moment that Allen wrote a cheque for
$5000 and gave it to someone to give to Pollitt,
that transaction and the chain of handling the
cheque would have been relevant and admissible
evidence on this trial.

TOOHEY J:

That may or may not be. saying that the agreement was in some sense an

I rather took you to be

element of the charge against the applicant.

MR BONGIORNO:

Not an element of the charge, Your Honour,

but an element of the case, and I distinguish the
charge from the case, the charge being simply the
set of legal propositions which result in
conviction if facts are proved; whereas the case
is a much broader concept which involves all of
those things that the Crown can prove including,
for instance, motive which is never part of a
charge but can always be part of a case, and it

could involve motive; it could involve disposal of
the body; it could involve payment; it could
involve the disposal of stolen property if it was a
dishonesty or a stealing charge; it could involve
evidence of a number of peripheral matters which go
to make up what is usually referred to in the
authorities as "the Crown case", the Crown not
being confined to proving simply the elements of
the offence as defined either by statute or common
law. So that, in our submission, it is all within
the purview of the Crown case that these events
occur and these statements take place, statements
are made.

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BRENNAN J: Evidence of motive is admissible in a case of

homicide like this to prove either a state of mind
or, relevantly in this case, identity, is it not?
It is not relevant for any other purpose in this
case except to prove identity or in aid of proof of
identity?

MR BONGIORNO: It would always be relevant, I suppose. In

this case the question of intention is hardly
relevant - - -

BRENNAN J: Hardly in issue.

MR BONGIORNO:

- - - hardly in issue, but as I submitted

earlier, it is sometimes difficult, indeed always
difficult, to define exactly what is and what is
not in issue in a criminal trial, and it must
always be assumed that everything is in issue and
the evidence of motive would always be relevant and

admissible on the issue of intent in any event. I
respectfully agree with Your Honour that in this
trial, for practical purposes it was the question
of identity to which motive would be most strongly
argued, certainly.

BRENNAN J: If one identifies the relevance of the

challenged evidence as relevance to identity, then
it is difficult to see that this statement, that
is, that "Ray was the party with whom Allen had the
contract", is not by way of historical narrative
rather than explanatory of the occurrence.

MR BONGIORNO:

Of its nature, comments within the one - we

would suggest they are usually comments that are
admitted by way of the res gestae, they are usually
short statements, they are usually not long
narratives, can always be subject to an ex post
facto analysis and seem to be narrative, or seem to
be - I mean, the classic example of, he called out,
"He hit me", if taken as a simple statement and
subjected to the same analysis is clearly narrative

but may well, in appropriate circumstances, be part of the res gestae. So that the fact that it is
narrative, or subjected to an analysis can be said
to be narrative, at least, in one of its forms,
does not answer the question, in our submission, or
not answer it sufficiently, in any event, to take
it outside what would otherwise be admissible as
part of the res gestae.
Your Honours, accordingly we conclude that

part of the argument by simply again saying that in
the event that this Court were to determine that
this evidence was inadmissible, it would then, in
order to deal with the matter, it would have to ignore the trial judge's charge to the jury and deal with it as if the jury had ignored the clear

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directions of the trial judge that they were not to
use this evidence against the accused in the way
that would be impermissible if it was impermissible
hearsay and, in our submission, that destroys it of the ability to provide a special leave ground or to
be the subject of a remedial order by this Court.
I turn then, Your Honours, to the question of corroboration. Here the applicant puts two
propositions in draft grounds (d) and (f). In
draft ground (d) he asserts that:
The Court of Criminal Appeal erred in failing
to set aside the conviction as a result of the
Learned Trial Judge's failure to adequately
sum up the law to the jury as it related to
the issue the mutual corroboration between
"tainted" witnesses.

And in (f) he asserts that it erred in determining
which evidence:
was capable of affording corroboration.

Now, if I can commence by dealing with the evidence
of the informer Denning. Denning's evidence is
important for at least two reasons. One, not only
is it, if accepted, a confession of the guilt of
the accused but it has within it, or perhaps I
should say it also has, in this instance, the
advantage of being partially, and I say partially,
corroborated by the accused's own unsworn
statement.
The fact that the accused discussed this

matter with Denning is not in issue. The only
point at which the accused and Denning depart is as
to what was said, and if I can take the Court,
firstly, to Denning's evidence in-chief, or the
relevant evidence, is at page 248.

After describing his being in Goulburn gaol,

on page 247, with the accused, and identifying the
accused as being the man he was in gaol with, he
deposes to the confession at line 17 and
subsequently. At line 14, the question is:
During that time, did you, whilst in one of
the yards together, have a conversation about
something that happened in Melbourne?---Yes, I
did.
What was said and who said it?---Basically one
day Roy had called me out into the yard next
to what is called "B" wing and he said that he

could be in a bit of bother. He said, "While

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I was fronting for sentence a couple of
coppers, who I think are from Melbourne want
to interview me about a murder".
Yes?---He said, "You wouldn't believe what

happened" . He said, "I shot the wrong bloke" .

Yes. Did he say about - you mentioned some
policemen from Melbourne?---Yes.
Did he say who they were?---No, he didn't

mention any names. He just said he thought a
couple of, I think he said Jacks or detectives
from Melbourne.
Did he say where it was that they had seen him?---He said that it was while he was
fronting up for sentence, I think it was, some

country town in New South Wales. I can't
recall.
And it goes on:
Did he say, did he offer you any opinion as to
his belief as to their state of knowledge?---
Yes, he said that he thought they wanted to
see him about a murder blue.
HIS HONOUR: Sorry about a - - -?---Murder
blue.
About a murder blue, yes.

MR WALMSLEY: Did he say anything to you about
the detail of that conversation or what they
appeared to know or otherwise not know?---He
was, just he seemed to me a bit paranoid about
the whole situation.
Yes. And you mentioned something about
getting the wrong bloke a moment ago was that

wouldn't believe it, I shot the wrong bloke". the - - -?---That was the words he said, "You

Yes. Did he say anything about that, the detail of it, how it happened, who else was
involved, the like?---He went on to say that
he done a favour for a couple of blokes in
Melbourne by the name of Dennis Allen and
Georgy Staehr.

HIS HONOUR: And George - - -?---Georgy Staehr

or Stir. I am not sure of the spelling.

Yes?---And I said to Roy, I said, "You are talking to Georgy Staehr that we met at
Parramatta", and he said, "Yeah, that bloke".

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MR WALMSLEY: Yes, did he mention anything
about Staehr and Alan and their involvement in
drugs in Melbourne?---Yes, he said they are
pretty big in the drugs down in Melbourne.
Did he say to you words to this effect, that when he was recently, at the time when he was down in Melbourne, they were looking after him, and that they asked him to do something
to this bloke?---Yes, that's correct.
What was it that they asked him to do?---They asked him to kill a person by the name of
Alan Williams.
Did he say to you whether he was given any
help or information to assist him in that
regard?---Yeah, he said he was with another
young bloke.
Yes?--~From memory he didn't mention his name.
Did he mention anything about being shown anything prior?---He said, he was given a

photograph of Alan, a description of a vehicle
that he believed Allen was getting around in.
Yes. Yes. When you say a description of the
vehicle that Alan was getting around in, there
might be some confusion here, are you there
talking about Dennis Allen or the Alan
Williams?---The Alan Williams, yes.
Now, did he say anything to you about what he and the, I think, you mentioned the young
bloke, did?---He said that they went to an
address he was given, and a car drove in
fitting the description that he had been
priorly given, and that a man got out of that
vehicle, and that a short conversation took
place and from memory not Roy, but the bloke

that was shot supposed to have said, "Oh I am
not the bloke you are looking for", or words
to that effect. And Roy then said, "Oh, I
shot him anyway".
Did he say to you how many times he shot
him?---No, he didn't go in to any details
about how times he shot him.
Did he say to you anything about discovery
after the event, about the identity of the
person?---Yes, he said that he found out
sometime afterwards that he had shot the wrong
bloke.

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That is effectively the extent of the confession to Denning. It is instructive to look
at the cross-examination of Denning to see what
Pollitt's case was as to what had occurred between him and Denning because, as I indicated to the
Court, there appears to have been no issue that he
spoke to Denning, that he discussed this matter
with him in terms not terribly dissimilar to those which Denning gave, but dissimilar sufficiently to
have them characterized as not a confession.
At page 280, I think it is Mr Ross who is

cross-examining Denning, and he cross-examines him
about the fact that they were both in the Goulburn gaol together and that the records would show that.
He then puts at line 23:
During the time when you spoke one with the
other, didn't he just say to you, "Look, I
understand that I am wanted over a case in
Victoria in which the allegations against me
are the following", didn't he say that to
you?---No, he didn't.
If he did, you don't remember it, or didn't
hear it, is that it?---No, he definitely
didn't say it.
He didn't say it?---I know the way he said it, and it's like I explained to the jury this
morning.
You say, do you, that from your memory, going
back now -

et cetera. There are questions of jogging memories
and -
No, I can't recall reading anything about it.
And you say, do you, that you are certain in

way of explanation, "This is what they're your own mind that Mr Pollitt didn't say, by alleging against me"?---No, he definitely
didn't say those words.

On the next page on 282, line 16, a further
proposition is put to Denning:
Wasn't this said, that Mr Pollitt said to you,
"If Dennis Allen's involved, maybe Kath
Pettingill will give evidence about it?---No,
that's not the words - - -

The intervening passage was a description of here somewhere is it was Dennis Allen's mother -

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had given evidence on other occasions in other
murder trials that her son confessed - Dennis Allen
is dead - I think the Court appreciated that from
the material. Dennis Allen died of natural causes
some time between 1984 and - he died in 1987.
Before he died there had been at least, I think,
two trials where Pettingill has given evidence that
he confessed to the particular murder on his
deathbed, and that is what this is directed to.
Now they are the suggestions put by counsel for Pollitt to Denning. In Pollitt's unsworn
statement, which for relevant purposes is at
page 332 in the same volume; it starts at 332 and
at 335 the accused, in a very short passage, one
paragraph, speaks of this conversation with
Denning, at about line 18:
Anyway, I told Ray Denning about what I was
doing, what I thought the allegations were

against me. I might have mentioned Kathleen
Pettingill's name, but I cannot have said more about it than I knew, and that was no more
than anybody knew. That is as much as I can
tell you.
Mr Richter suggested that what ought to be

sought, and what the judge ought to have said to
the jury about Denning's evidence was that they
ought to have looked for some corroboration, not of
the substance of the confession that Denning heard
but of the fact that the confession was made. Now
there is no corroboration of the fact that the
confession was made, but there is certainly that
evidence that it was never other than Pollitt's
case that he had discussed the matter with Denning,
even if not agreeing that he had confessed to the

crime. In our submission the proposition is put in
cross-examination to the effect that "Did he not
say that I was being looked for for this crime or
sought over this crime" can be taken in the
circumstances as being Pollitt's case.

So that whilst there is no corroboration and

one would suggest it would be unlikely that in many
instances in this sort of confession there would be
such corroboration of the confession itself having
been made, at least in this instance there is
evidence of opportunity and further than that there
is evidence of the discussion which - on the same
topic as the confession.
So that, it is not the sort of situation that

one might find where there is a direct conflict as
to whether, in fact, even the parties had a
discussion or were, as occurred with Denning on one
other occasion, whether he was even in the same

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gaol at the same time. That is not the situation
here, it is slightly different.
Then, I move to the question of, "What is it

that the trial judge ought to have done?". Well,
in our submission, accepting the proposition that
Denning is "a person of bad character" in the way
that that phrase has been used in at least one of
the cases relating to warnings and corroboration
generally, in this instance the trial judge did
all, in our submission, that could possibly have
been required, and if we take the Court to the
passage in His Honour's charge that deals with

that, he deals with it in two places. He deals
with it generally when talking about corroboration
generally at page 362.
Your Honours, I think Mr Richter referred to the same passage and I will not trouble the Court by reading it any further, but he sets out what the
jury must be satisfied of before they can act on
Denning's evidence: two things, one, that what
Denning said was said was, in fact, said, and

secondly, that it was true. He then goes on at
line 23 with the warning that he gives the jury in
what, in our submission, are very careful terms:
As with Jones and Douglas Robinson, who I

shall deal with at a later stage of my charge,
Denning is a person with a long criminal

history. He is a person one would describe as
being of bad character or, as Mr Ross put it,
a tainted person or certainly up to
comparatively recently -

et cetera. He says to:
scrutinise it very carefully •••.• "may" - have motives for not telling the truth •.... wise to
look for independent evidence -

et cetera. Then secondly at page 476 he came back
to the same topic:
As I said to you before, it does not follow
from the fact that a person has criminal
convictions or is generally of bad character
that he will necessarily lie to you,
nevertheless when you are dealing with such a
person you must scrutinize his evidence very
carefully when determining what weight you
attach to it.

So that, in our submission, the direction given by
the trial judge was more than adequate in respect
of Denning's evidence, more than adequate to warn the jury of the dangers of accepting it, and more

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than adequate to suggest to them that they should
look for independent support for it even if not
corroboration in the legal sense.
Independent support for it, of course, comes from a number of sources which His Honour
identified, and in particular I suppose in this
context, because it is confessional, was the other
confession that is alleged, and that is the
confession made to Curillo over the phone: "Tell
Dennis the job has been done." So that there is a
clear corroboration. There is corroboration even
in the Baskerville sense of the confession to
Denning in that statement of Curillo's.
Further than that, in our submission, there

was no obligation on the trial judge to go. I do
not think Mr Richter went as far as to suggest that
in cases involving people who might be said to be
of bad character or might be tainted witnesses
there should always be a corroboration warning in
the sense that that is presently required in
respect of accomplices. If he did - and it is
suggested to some extent in his written material -
in our submission that is not and ought not to be
the law.
It is not the law and there is no authority

for the proposition, in our submission. And it
ought not to be the law for the very reason which
arose in this case, that there will be occasions,
particularly in cases such as this, where the Crown
case must rely on perhaps a full complement of
witnesses of bad character. And if it were the law
that one witness of such a category could not
corroborate another, convictions in cases such as
this would either be impossible or so difficult to
obtain as to thwart the criminal justice process.
It is sufficient, in our submission, and we do

not seek to submit anything other than that judges

ought to give whatever warning is appropriate,
having regard to the degree of moral turpitude the

jury might find in the particular witness. So that
in a case of someone who has a very, very bad
criminal history, the warning given by the judge
should conunensurately be greater than that where
someone has some other or lesser defect.
In this instance, we would point to the

proposition that trial judges, as a matter of
course, when charging juries on the question of
what evidence they should accept or what evidence
they should reject, should always say to juries
that witnesses may have varying motives for telling
the truth or lying, and it is not simply witnesses
of bad character that have to be scrutinized. And

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experienced trial judges, certainly in my
experience at least, always point out that when
scrutinizing the evidence of any witness, jurors
should be astute to the possibility that the
witness may have a motive for lying. The phrase
that is used in the cases as having a reason of his
own for telling other than the truth, can apply to
people who are of the most exemplary character and
can apply to people in circumstances where neither
judge nor jury can divine any such motive and where
no such motive appears following cross-examination
or is put or even known, perhaps, to those on the

other .side of the record. So that there are always
situations where witnesses may or may not have
motives for not telling the truth, and in our
submission it is sufficient if the judge tailors
his charge to the degree of danger he perceives in
any particular witness.
So that, in our submission, as the law stands

at the moment, in those cases where an accomplice corroboration warning is not required as a matter of law, but a witness is still a person who might
be said to be of bad character, a careful direction
should be given. We do not submit otherwise, but
we do submit that in this case His Honour went at
least as far as was necessary and probably further.
We would respectfully submit that this Court

ought not, in this case at least, go any further
than deal with the warning which was given by the
trial judge in respect of this matter and that

there is no basis in this case for doing anything
other than holding that the warning was sufficient,
and that to take up the, at least, implicit
suggestion in the applicant's case that the Court
should take the opportunity of dealing with the
giving of evidence by tainted witnesses or courts
dealing with that evidence, in our submission is
not justified on the facts of this case, having
regard to what His Honour said and the way in which

it was dealt with.
If, however, the Court was minded to use this
case as a vehicle for dealing with the issue of
corroboration in a more general sense or the issue
of tainted witnesses or the issue of those
witnesses in respect of whom support should be
sought or corroboration in the legal sense should
be sought then, in our submission, the Court ought
to consider the Canadian position as outlined in
Vetrovec's case.
The proposition in Vetrovec is essentially that which I have been putting, that the trial
judge should in each case assess the circumstances
and deal with the issues as they appear to him to

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require to be dealt with in the particular case
before him.
So that to use the phrase that appears in a number of the authorities there should be no
attempt by this Court and, indeed, at all to lay
down precise formulae or directions that trial
judges ought to give in respect of particular
categories of persons, it being, in our submission,
impossible to categorize witnesses, other than in
the most general terms and other than in ways which
would make it inappropriate to lump, perhaps, some
with others.
In Vetrovec's case, to which we have referred in our written notes, the Supreme Court of Canada
dealt with the general issue of corroboration in a
way which accords with legislative intervention in
that area in recent times. The legislature in
Victoria has removed compulsory corroboration in sexual offence cases, it has been done elsewhere,
and, in our submission, if, in fact, the Court was
going to look at this issue in more general terms
than the confines of this case, then it ought to do
so in the way Vetrovec suggests, and in the way in
which legislatures have gone alone the same line.
And we refer the Court, in that respect, to

two pieces of extraneous material: the discussion
paper of The Australian Law Reform Commission, a
copy of which I think is with the material that was
filed, a copy of the relevant part of which is the
Interim Report No. 26, and it is chapter 23, and
there the law reform commission deals with the
question of corroboration and the sorts of
witnesses in respect of whom warnings ought to be
given, and opts for a proposition largely along the
lines that I have suggested. The Law Commission in
the United Kingdom in working paper No. 115, again
which material was notified on the list of
authorities, deals with the matter in a not

dissimilar way.

MASON CJ: But you seem to be inviting us now to restate the

principles of corroboration.

MR BONGIORNO:

No, Your Honour.

I put those materials only

in the event that it was to that point that this

Court was going to direct itself on this appeal. I
do not invite the Court to take up the issue of
corroboration generally as, in our submission, this

is not an appropriate case in which to do it. If
the Court was against me on that and had decided or
was to decide that it should do so, then I would
commend those materials as being of assistance, and
in particular the judgment of the Supreme Court of
Canada in Vetrovec's case.

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The last remaining point appears to be a
suggested error by the trial judge as to what
evidence could be corroborative. In our
submission, there was no error in respect of which special leave in this Court ought to be granted on

that score. I do not think there is anything
further we need to put in relation to that.
So far as then generally, Your Honours, the

question of whether there ought to be special leave
in this case, the issue of identification of an

exculpatory nature is not, in our submission, a
matter which requires clarification from this
Court. The principles are, we would submit, easily
applied from the decided cases in respect of
evidence of identification called by the Crown. So far as the question of the alleged hearsay
proposition is concerned, in our submission, Walton
and Benz, assistance from Ratten and such
assistance .from Vocisano as is required, is an
ample statement of the law in that area. So far as
the corroboration point is concerned, as I have
just said, this is not, in our submission, an
appropriate case in which to deal with that, important as some of those matters might be.
So that in our submission, the application for

special leave in this case ought to be refused. In
the event that it is granted, the appeal, in our
submission, ought to be dismissed. If the Court
pleases.

MASON CJ: Thank you, Mr Bongiorno. Yes, Mr Richter?

MR RICHTER:

There are essentially three or four short points on which we would seek to reply.

In relation to the impugned hearsay evidence, our learned friend contends that there was a

criminal enterprise still on foot, and that is why

the impugned utterances, or the utterances we say

are hearsay, but some of which we complain more

than others, in particular the identification
issue, what we would submit is this: the basis for
the assertion that there is an ongoing criminal
enterprise which is still on foot is, in fact, the
content of the impugned utterances. So, it is very

much, in our submission, a bootstraps argument.

Our learned friend says that there is an ongoing

contractual situation, and he gets that from the

utterances that, we say, are inadmissible in the

first place, and that cannot be correct in that

case, in our submission.

The second matter is that our learned friend,
in respect of the hearsay, says that a jury would

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not have used the evidence and, therefore, there is
no miscarriage because the judge told them not to
use it against the accused. What that leaves open
is that they used it as corroboration of Jones, or
of Denning, and that is not excluded and cannot be
excluded. That would not be direct use of it
against the accused but, in the circumstances,
assuming they abided His Honour's direction, one
cannot say they did not use it as corroborative of
Jones or of Denning, for that matter, and thereby
indirectly it affected the position. So that, in
our respectful submission, it cannot be asserted
that there was no miscarriage of justice.
The third matter in relation to the hearsay

was the second basis on which our learned friend
sought to argue that the matter is admissible, and
that is the basis of the contemporaneity of the
statement which makes it admissible as part of the
res gestae, and he relied very heavily on the
notion of "no time to concoct". The fact is, the
first time that that utterance was related to
anyone was three years after the event, if not
more, although it purported to relate to the time
and in terms of the very opportunity to concoct, it
goes against the assertion that it ought to be

treated as part of any res gestae. It would have
been different if it had come from a different
source, possibly different, for the purposes of
argument, had it come from someone who had nothing
to do with it, an innocent bystander who hears
Allen utter it, utter those words, and then relates
them immediately.
That would still not have overcome the problem

of whether or not it is part of the res gestae

because the question would still then be, "What is
the res that we're concerned with?", and, in our

submission, we are concerned with the killing. The
notion of the ongoing contract really emerges from
the impugned utterances and the res gestae is the

killing.
Finally, we go to the first matters that we

argued in relation to exculpatory identification.
Our learned friend submits that an i-q.ntification
caution would, as a matter of law because of
Alexander and Davies & Cody and the like, be
necessary in any case where identification is in
issue.
We would say that first of all it would not,

and an example of a case where it would not is the
pure example that we give of an allegation that

someone has been murdered. He is missing, and
there is a reported sighting of that person two
weeks later. In terms of the sort of cautions and

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directions that Alexander, Burchielli, Davies &
Cody and all those cases required, they would not have to be given at all. What a judge may say, and
in our respectful submission, would not be required
to say as a matter of law, is, "Be careful when you
are considering that evidence because, as you know,
people make mistakes about identification. But the
fact is it is not being tendered here to show

guilt. So you do not have to accept it beyond

reasonable doubt. The Crown has to show beyond
reasonable doubt that it cannot be true." And to
that extent, the judgment of Mr Justice Cummins is,
in fact, both accurate and inaccurate in some
senses, where he says at the bottom of page 558:
That character inheres in identification

evidence regardless of which party adduces it
or which party relies upon it. I consider
that the relevance of the source or use of
identification evidence goes not to the giving
of instruction but rather to the differential
standard to be applied in considering that
evidence.

The fact is that the identification evidence, in
some cases, need not draw a caution. What
Mr Justice Cummins, in fact, is saying is, the

precise proposition that we put to this Court. He
is, in fact, adumbrating the proposition that we
put to the Court, when he says that the judge:
would have been entitled to have given the
jury specific instruction in relation to the
identification evidence of Leonie Simpson.

But says that:
He did not.

"Nevertheless, that does not lead to error". We
say, in our respectful submission, that he had to,

given the nature of the case that was put up
against the applicant. If the Court pleases.

MASON CJ: Yes, thank you Mr Richter. The Court will take a

short adjournment in order to consider the course
it will take in this matter.

AT 4.10 PM SHORT ADJOURNMENT

Pollitt(2)

13/11/91

UPON RESUMING AT 4.35 PM:

MASON CJ: The Court refuses the application for special

leave to appeal so far as it relates to the first
and second points in the applicant's outline of
submissions. The Court does so by majority on the
first point, and unanimously on the second point.
The first point on which the applicant seeks

special leave to appeal is that the trial judge's
directions with respect to the frailty of
Mrs Simpson's exculpatory evidence that Darby was
the person who shot the deceased undermine the onus
of proof and that the trial judge should have
specifically instructed the jury that Mrs Simpson's
evidence of identification of Darby was capable of
raising a reasonable doubt.
However, His Honour's instructions did not

exclude that matter from the jury's consideration.

Moreover, the trial judge gave some emphasis to the case for the applicant when he told the jury that

counsel had reminded them "of the fact that within hours of the murder occurring, Leonie Simpson gave
a description of the man responsible and that
description could not possibly be a description of
the accused man, and if you are prepared to accept
her description, a description which he put to you

must be indelibly impressed in her mind, then this man is not guilty and your verdict would be one of
acquittal".
The essential issue in the trial was the

identification of the murderer, and the jury were
clearly directed that the applicant could not be
convicted unless they were satisfied beyond
reasonable doubt that the identification of the
applicant as the murderer was correct. The jury
could not have failed to appreciate the
significance of Mrs Simpson's description of the

murderer and her identification of the photograph
of Darby as the murderer.
Furthermore, no exception to the directions

was taken at the trial. The way in which the
matter was left to the jury may have implications
for the applicant's case as to the reception of
hearsay evidence, but it does not warrant the grant
of special leave to consider it as a discrete
point.
The second point urged by the applicant for

the grant of special leave is that the evidence of
Jennifer Curillo that she recognized the voice of
the applicant as that of the person who telephoned

Pollitt(2)

13/11/91

Allen's residence and said, "Tell Dennis the job's
done" was inadmissible and should have been
excluded because no basis was established in the
voir dire for the witness's knowledge of, or
familiarity with, the applicant's voice at the time
when the conversation took place. However, the
witness did have a basis for comparison of the
applicant's voice with that heard over the
telephone, arising from prior conversations,
although not over the telephone, which she had with
the applicant, evidence of such conversations being
given at the trial. Again, this point does not
warrant the grant of special leave.
Otherwise, the Court reserves its judgment on

the application for special leave to appeal.

AT 4.39 PM THE MATTER WAS ADJOURNED SINE DIE

Pollitt(2) 100 13/11/91

the killer of Simpson.	He could have flown to
Melbourne.	He could have executed him. And the

observations are not incorrect.	No doubt he told
them about reasonable doubt.

matter of law the evidence of eyewitness
identification is inherently unreliable.	We have

and to explain it in a different way.	Now, we have
set out the - - - - -

in particular.	It does not go to the question of
whether or not the evidence itself is capable of

to say, "I saw that person in Corfu two weeks after
the alleged death".	Now, there is no doubt that,

first principle,	we would submit that in
circumstances of	particular cases the trial judge

His Honour:	You know that they would not have
been permitted to.	You should not make

would be of assistance because the issue was, for	the defence always, whether it was Darby or not.
So, the learned trial judge is, in effect, wrong
when he says that the Crown could not have done it.

mean you automatically accept everything he or	she says. Honest witnesses may be mistaken,
particularly when it comes to evidence of visual identification and so even if you
consider a particular witness was an honest witness, you must nevertheless scrutinize his or her evidence very carefully because he or
she may be mistaken.
The interesting aspect of the impact that that

which it is said, it appears perfectly fine.	But
its impact is not, in our submission.

to indicate to her he was Australian.	He had
brown or dark curly hair, collar length.	It
was curly but wavy, not permed, and a dark
brown colour.	He had bushy eyebrows, a stock
type of build.	I take it from that she meant

person at all.	However, he did say that her
evidence as to the weapon is accurate.	She
saw a dark weapon -

correct there has been a miscarriage of justice,	and a pretty fundamental one, notwithstanding the
fact that no exception was taken.

Mr Ross up.	What we say is that the learned trial
judge - - -

would probably be mystified by it.	I was, until a
bit further on.

the learned trial judge had already given.	I
continue reading:

jury, is of significance in itself.	But we will
seek to turn that up.

You spoke with him and he spoke with you;	is
that what you're saying?---Yes.

of incident that I have referred you to, did	During this period, that is, up to the night
you have occasion to speak with Mr Pollitt on
the phone?---Sorry, what was that?
Did you speak with him on the phone prior to
this incident?---Prior to it?
Prior to the incident?---Not prior.
Well, on the night in question, did you
receive a phone call?---Yes.
Who was it that you received the phone call
from?---He was known to me as the Red Rat.

be admissible to indicate that the call came.	But
in the context of this case, in our respectful
submission, the evidence was such that it was

about 8 pm.	The telephone call was at about 1 am,
it was said by Curillo.	So it is not that closely

perhaps it would have been even more arguable.	But
there are problems for that proposition, in our
submission.

that the voice was somehow peculiar.	Now, she is
not able to do that, and was not.

1 o'clock in the morning.	He told us to watch
out for the late news.	I later heard it

way, shape or form.	It is an admission against his
own interest, and that is all it can be.	It is not

contract which was central to the Crown case.	Can
you put it that way?

the payment may not be at all.	It may only be
admissible against him, but not -

can give vis-a-vis the evidence of Denning is to	Denning, the only proper assistance that a judge
bring his office to bear to informing the jury
about peculiar dangers that lurk for such a witness
that a jury would not ordinarily be aware of.

the	question of	mutual corroboration but what
His	Honour says	at 525 at line 7 - he cuts Mr Ross
off	and says: