R v Lewis

[1992] QCA 223

IN THE COURT OF APPEAL [1992] QCA 223

QUEENSLAND

C.A. No. 189 of 1991

T H E Q U E E N

v.

TERENCE MURRAY LEWIS

(Appellant)

JUDGMENT - THE CHIEF JUSTICE

Delivered the 3rd day of August, 1992.

The appellant, for a number of years, had served as

Queensland's Commissioner of Police and was, on 5 August, 1991,

convicted by a jury on fifteen counts of official corruption. The jury considered the matter for four days before bringing in its decision. The appellant now appeals both against conviction

and sentence by his notice dated 13 August, 1991.

The notice of appeal states and particularises a number of

grounds but in the argument on the appeal against conviction

only three points were taken.

Counsel for the appellant submitted that:

(i)The conduct of counsel appearing for the Crown at the

trial resulted in a miscarriage of justice.

(ii)Apart from concerns about the reliability of the evidence given by the Herberts (the chief Crown witnesses), the evidence adduced at the trial was insufficient to prove any of the counts with the exception of count no. 2.

(iii)The adverse pre-trial publicity concerning the appellant had been such that a fair trial was not had.

The trial went for some eighty-nine days and the record is voluminous, running to sixteen volumes. Our appreciation of the effect of the evidence was assisted by the announcement made by counsel for the appellant that he was content to accept the evidence summary which had been produced by the Crown for the purpose of the appeal. The summary itself runs to some 142

pages.

With the exception of the second count, each of the counts on the indictment was framed under s. 121(1) of the Criminal Code dealing with corrupt conduct by persons, including public

servants, whose duties of a non-judicial kind involve the prosecution, detention or punishment of offenders. Count 2 was

framed under s. 87(1) of the Code which is also concerned with

corrupt behaviour of public servants in respect of duties not involving the administration of justice. The subsections are as

follows:

"87.Official corruption. Any person who -

(1)Being employed in the Public Service, or being the holder of any public office, and being charged with the performance of any duty by virtue of such employment or office, not being a duty touching the administration of justice, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of any thing already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office; or ..."

"121. Official corruption not judicial but relating to

offences. Any person who -

(1)Being a justice not acting judicially or being a person employed in the Public Service in any capacity not judicial for the prosecution or detention or punishment of offenders, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person, on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him, with a view to corrupt or improper interference with the due administration of justice, or the procurement or facilitation of the commission of any offence, or the protection of any offender or intending offender from detection or punishment; or ..."

The case against the appellant below depended upon the evidence of a former police officer, Jack Reginald Herbert, and, to a lesser extent, Herbert's wife. Both of these witnesses had

been given indemnities against prosecution by the Crown. The

indemnities were conditional upon the Herberts' repeating in the

trial of the appellant testimony that they had previously given

in the course of the official inquiry known as the Fitzgerald

Inquiry and testimony in accordance with statements which they

had supplied to officers making investigations to assist that

Inquiry. In directing the jury that the case against the appellant depended upon the evidence of the Herberts, the trial judge ruled that their evidence was uncorroborated.

To appreciate certain aspects of the conduct of the trial and certain of the arguments which were advanced on the hearing of the appeal, it should be borne in mind that counsel for the appellant, both in this Court and below, urged that there was no corroboration in law of the Herberts' evidence while counsel for the Crown urged below and to the extent that it was relevant to

do so submitted before this Court that the evidence was

corroborated by certain other independent evidence which had
been led.

During the trial counsel for the Crown produced a summary of matters which it was submitted corroborated the evidence of the Herberts. These items were identified also in the Crown's

argument on the hearing of the appeal. To the forefront of these were certain diary and appointment book entries which had

been kept, that is, written by the appellant as contemporaneous

records of events. There was also evidence from a number of witnesses called by the Crown at the trial referring to association by the appellant with persons featuring in the Crown allegations or dealing with actions taken by the appellant in the course of his duties. In both cases it was said that this

evidence connected to some degree with the direct accusations made by the Herberts. The Crown argued that this independent evidence had a double aspect: it was, first of all, corroborative of the Herberts' evidence and then it was, apart from this, capable of being regarded as "supportive" of the

Crown case against the appellant.

The substance of the fifteen counts of the indictment should now be stated and an outline given of the particulars supplied by the Crown early in the course of the trial pursuant to an order made by the learned trial judge.

Count 2, brought under s. 87(1) of the Code, alleged an offence committed between May, 1980 and December, 1980 claiming that the appellant, a person employed in the Public Service as

Commissioner of Police, being charged with the duty to submit to

the relevant Minister a report in respect of poker machines,

"corruptly agreed to receive from one Jack Rooklyn certain property, namely $25,000, for (himself), on account of (his),

... submitting a report adverse to the introduction of poker
machines" into Queensland in discharge of his duties.

All of the other counts, those brought under s. 121(1), were in a common form, although the stated details varied. Count 1 alleged that between January and December, 1978 the

appellant, being a person employed in the Public Service as Commissioner of Police and in that capacity being concerned in

the prosecution of offenders, "corruptly agreed to receive from

one Jack Reginald Herbert certain property namely $1,500 each month, for (himself) on account of (his) ... ensuring that police action would not be taken against intending offenders

against the laws relating to the conduct of entertainment machines, with a view to their protection from detection and punishment". The total spread of years covered by the

individual counts nos. 1 and 3 to 15 inclusive was 1978 to 1987.

Each of the counts 3 to 15, like count 1, alleged corrupt agreements to receive named monthly sums. In each case it was stated as being "on account of (the appellant) ensuring that police action would not be taken against intending offenders

against the laws (specified in each case) with a view to their protection from detection and punishment". The nature of the protection was generally specified and amongst the counts there

was some repetition: counts 1, 11, 12, 13 and 15 specified laws relating to the conduct of entertainment machines, counts 3, 5, 10, 11, 12, 13 and 15 specified racing and betting, counts 10,

11, 12, 13, 14 and 15 specified illegal gambling, counts 8, 10,

11, 12, 13 and 15 specified prostitution. It is apparent from

these details that some of the counts referred to protection

against a combination of laws; thus counts 13 and 15 referred to laws concerning entertainment machines as well as racing and

betting and so on.

On the sixth day of the trial, but before any evidence had

been called, apart from certain evidence on a voir dire, the

defence asked for certain particulars of matters alleged in the

various counts of the indictment. Having in mind the appellant's present submission that the evidence adduced by the Crown was insufficient to prove any of the counts (apart from

count 2), attention should be directed to the fact that the particulars requested at trial relevantly sought details of the

police action which was "promised not to be taken". That is,

this aspect of the request was in terms concerned with the

nature of the subsequent possible police action rather than broader aspects of the alleged agreement or understanding

between the appellant and Herbert. The particulars which were

supplied in response do, however, state matters which specify further the content of an agreement or understanding between the

accused and Herbert. Thus, the particulars delivered in respect

of count 1 stated:

"(a)Particulars of the police action promised not to be

taken:

It was the contemplation of the accused and Herbert at the time of this agreement that the action which would not be taken was any attempt to enforce the laws in relation to the conduct of entertainment machines."

Under count 3 particulars supplied included the following:

"(a)Particulars of the police action promised not to be

taken:

It was the contemplation of the accused and Herbert at the time of this agreement that the action which would not be taken was any genuine attempt by Licensing Branch police to enforce the laws relating to illegal bookmaking in respect of the activities of a number of persons."

Count 2 made allegations of a distinctly different nature and for the moment it may be put to one side. Each of the further counts 4 to 15 resulted in particulars which stated what

was the contemplation of the accused and Herbert in these terms "that the action which would not be taken was any genuine attempt by ... police to enforce the laws relating to ...". The word "genuine" attached to the word "attempt" in these particulars and those for count 3 involves, on the face of

things, a departure from the allegations in the indictment which

spoke of "ensuring" an absence of any police action. Counsel for the appellant urged that the qualification introduced by the

use of the word "genuine" was significant and, indeed, critical because no amendment to reflect it was made to the counts in the

indictment and because the effect of the evidence of Herbert

(the relevant witness) did not establish the Crown case in

accordance with the indictment. That is, it was said that the evidence of Herbert did not match the absolute terms in which the indictment had been framed and allowed to remain. This

argument turned much upon the use of the word "ensure".

Herbert in his evidence did not claim an agreement for

protection entered into with the accused upon the basis that the

accused would ensure that no relevant action was taken. The agreement or arrangement of which he spoke was more to the effect that the accused would play his part to ensure that no effective action was taken or would act appropriately to that end. The particulars given of counts 3, 4, 5, 6, 7, 8, 9, 10 and 11 refer to an absence of genuine enforcement action by the Licensing Branch and counts 12 and 13 add the Gold Coast police

and count 14 adds the Cairns police to the Licensing Branch as
entities expected to be inactive.

The defence called no evidence below and its argument on appeal was that defence counsel in one aspect of his endeavours restricted his cross-examination and his attack upon the Crown case to an effort to demolish any suggestion that the appellant and Herbert had agreed or had an understanding in the terms set out in the indictment. It was said that the defence was entitled to take this approach since the indictment remained unamended. It was submitted that the Crown illegitimately pressed for a verdict unrestricted by the terms it had alleged

and proceeded as though any corrupt agreement of the general kind alleged in the indictment would suffice even though it did

not conform with its precise details.

Portions of the record to which our attention was directed

do provide support for the contention that defence counsel in

cross-examination of Herbert was at times content to restrict himself to obtaining Herbert's assent in the witness box to the

proposition that he and the appellant had never agreed in the

precise terms of count 1 and counts 3 to 15.

The need to refer to the record in detail on this point is

reduced by concessions that were made during argument on appeal.

It was accepted by counsel for the appellant and by counsel

for the respondent with reference to count no. 1: that there

was evidence below sufficient to show that the appellant agreed to receive and did receive money from Herbert and that he did so

for his (Lewis') part on the basis that he would do nothing to

cause police action which he knew could be taken against persons referred to in the indictment in circumstances where he, Lewis, knew that no action was being taken or would be taken unless he

caused it to be taken. This same concession applied also to the counts nos. 3 to 15 in respect of which, however, a further concession was made.

With respect to counts nos. 3 to 15 it was agreed: that

there was evidence sufficient to show that Lewis agreed to

receive, and did receive, money from Herbert and that he did so for his (Lewis') part on the basis that he would co-operate in

the appointment to positions in the Licensing Branch and at the

Gold Coast and Cairns of police who, to his knowledge, would

have control over the policing of the illegal activities engaged

in by the persons referred to in the various counts, and who

would not take genuine action against such persons and further on the basis that he would cause correspondence coming to his attention in the course of his duties in respect of such illegal activities to be referred to the Licensing Branch.

The distinction between agreeing to do nothing to cause

police action to be taken and co-operating in the appointment of

"tame" or "co-operative" officers on the one hand and on the other "ensuring" that police action would not be taken against those designed to be protected is obvious. The question is

whether evidence which, perhaps, had no more than the lesser effect stated was a sufficient basis for conviction on the charges in the form in which the Crown brought them.

Before turning to this question, it should be mentioned

that there was evidence concerning the part which the

Commissioner of Police played in the making of promotions,

transfers and appointments within the force. While he did not

have anything which could be called a free hand, he was in a

position where he could exert considerable influence in these

matters and, although established procedure required him to consult with others, he seems very often to have achieved what he wanted. The Crown case was that the appellant, while he was

Commissioner, succeeded in arranging the appointment of a number

of corrupt officers in key positions in the Licensing Branch and
at the Gold Coast and Cairns.

Each of the counts, apart from count no. 2, was in the form which referred to the receipt of money and the appellant's "ensuring" that police action would not be taken. It was submitted for the appellant that it was the choice of the Crown to present an indictment in this form. It need not have done

so. For example, we were referred to another recent case considered by the Court of Criminal Appeal (Herscu (1991) 55 A. Crim. R. 1) which charged that payments were made "on account of

(the person named) attempting to ensure" that a local authority

would approve certain planning changes. The Crown circumscribed itself in the present case, it was said, by electing to charge

the appellant with receiving payments on account of his

"ensuring" that offenders would be protected against police action. Dictionary meanings of "ensure" were referred to. Thus, the Shorter Oxford gives the meaning as warranting or

guaranteeing or making certain and other dictionaries similarly

describe a consequence which is not qualified by uncertainty or

doubt.

The argument advanced for the Crown, on the other hand, endeavoured to remove from the centre stage proof of the agreement or precise agreement between the appellant and Herbert. It was said that the word "agreed" in the phrase

"agreed to receive" in s. 121(1) of the Code contemplates no more than a voluntary or consenting receipt of property by the person charged. Yet there is more to the subsection than this

because it still remains necessary that the receipt, when

receipt is charged, must be "on account of" something done or

omitted.

The agreed effect of the Crown evidence appears to be that

the payments in question were made on the basis of an

expectation or agreement that the accused would continue or not disturb and add, if necessary, to an existing protection system

which was in place. The Crown alleged a great number of payments to the appellant by Herbert over the years referred to in the indictment but each payment was not made the subject of a

separate count. If that approach had been adopted there would have been an embarrassingly large number of counts in the

indictment. Instead, the Crown alleged, in effect, a limited

number of express or implied agreements to receive sums in exchange for giving or continuing protection. Only when the level of payments, that is, the amount of individual sums paid

to the appellant was changed did the Crown then charge in a

separate count a different agreement to receive. In this way, by charging agreements to receive rather than actual receipts

the Crown was able to reduce the number of counts to a more

manageable level but it did not consequentially restrict the
scope of the evidence which it led.

The defence did not claim in the trial or argue on the appeal that any precise sum which the evidence might show had been received was a vital element in the Crown case, but it

otherwise contended that the Crown was restricted to proving the

precise agreement alleged in the indictment.

There is some common ground shared by s. 87 and s. 121.

Although it is not necessary in the present proceedings to

attempt to set out definitively the construction of all aspects of these related sections, it does assist to consider some of their common objectives.

The sections are concerned with matters which take place in

the public domain in contrast, in this respect, with the topic

of secret commissions which is dealt with in Chapter XLIIA of the Code. Section 87(1) is concerned with events not in the

field of justice administration involving corruptly taking or asking for benefits for past or future actions done or refrained from in the discharge of the duties of an office holder, that

is, for things which it is obviously contemplated may be

improper. The phrase "in the discharge of the duties of his

office" which appears in the subsection does not refer to those things which a culprit is obliged to do or refrain from doing in

accordance with his duties or it is not restricted to this but bears a meaning more like what is conveyed by the phrase "within

the scope of his responsibilities". His duties may give him

scope to act but not compel him to act in the precise fashion. This construction emerges from the judgments in the case of Herscu (supra). This case has now been considered in the High

Court (1991) 65 A.L.J.R. 677: see especially at 679.

Section 87(2) creates a corresponding offence in the case

of the person who gives the property or benefit.

Section 88 is an interesting contrast with s. 87. It carries the heading "Extortion by Public Officers" and is concerned with public servants taking benefits for performing their duty. A lesser maximum penalty is prescribed and the

section does not use the word "corruptly" in connection with the taking of the benefits. The offence under s. 88 can be

constituted by the public servant's taking benefits for things properly done. There is no corresponding offence created in the

case of the giver of benefits in the case of s. 88.

Section 121(1) is again concerned with persons who are in the public domain but not acting in a judicial capacity. It proscribes "corruptly" taking or asking for benefits for past or

future actions done or refrained from, those actions being with a view to corruptly or improperly interfering with the due administration of justice. Section 121(2) creates a corresponding offence in the case of the one who corruptly gives.

Counsel for the Crown, perhaps apprehensive of an effect which might be given to such a case as R. v. Phil Maria [1957] St.R.Qd. 512 made a point of stressing that under subss. 121(1)

and 87(1) the Crown did not have to prove a conspiracy. But under these subsections the Crown has to prove something rather like it. The subsections respectively require that there be

some wrongful interference with the administration of justice or the discharge of duties of a public kind that is expressly or by

implication contemplated between the actors if the offence is to

be committed. To this extent there has to be some plot or a

degree of mutuality in relation to a plan or correspondence

between action taken and reciprocal benefit conveyed. This

seems to follow from the use of the phrase "on account of" in the subsections. It is not required, of course, that the

receiver of the benefit should subsequently fully implement the plot or even perhaps genuinely intend to do so at the time that

he receives the benefit but an arrangement or actions having the

features described in the subsection must be arrived at or

performed. A recent decision of this Court, R. v. Smith (C.A.

No. 334 of 1991 unreported), examines some of these aspects.

Attention now has to be turned to the fact that a variation existed between the precise terms of the counts of the indictment (apart from count no. 2) and the effect, as it was

conceded to be, of the evidence presented by the Crown at the trial. If the Crown was under an obligation to prove precisely

in accordance with the terms of the counts, then it has not done

this and the attempts of counsel for the respondent to bridge

the gap and blur the distinction between indictment and evidence

by directing attention away from the word "ensuring" should be

regarded as unsuccessful. There is a significant distinction between agreeing to ensure that some consequence will come about

and, on the other hand, agreeing to do one's best or to take

specified steps intended to bring about the consequence.

Among authorities dealing with the question whether a

discrepancy between the indictment and the evidence vitiates a

verdict, two might be mentioned as examples. In Hays v. The King [1947] St.R.Qd. 118, a perjury case, a substantial part of

the evidence alleged in the indictment to be perjured - eight lines out of twenty - was not proved to be false. An amendment

was refused and on appeal it was held that the conviction could stand, having regard to the way the trial was conducted. It appeared that although the eight lines were admitted to be true, the verdict was not disturbed because the judge told the jury in his summing up to "treat the indictment as limited to the part

not withdrawn from their consideration". It was held that nothing that happened "denied the prisoner the substance of a fair trial". An even broader approach is to be found in R. v.

Tirado (1974) 59 Cr. App. R. 80 at 88. The Crown there set out

to prove a representation by the accused that he had procured

employment which was presently available. Language falling short of that was held to be sufficiently close to the indictment to support the verdict.

The next question is whether in the circumstances of this case the difference between the effect of the evidence and the terms of the indictment means that the convictions are not

sustainable. In answering this question it is necessary to decide what effect should be accorded to the delivery of

particulars early in the course of the trial.

The argument of counsel for the appellant under-estimated

the importance of these particulars. The appellant's argument

proceeded on the basis that the only Crown case which had to be

met was that which was encompassed by such particulars of alleged agreement as could be found within the terms of the counts in the indictment with the particulars or further particulars furnished under the order of the Court resulting in

no deviation from that position. This argument does not allow proper effect for particulars of a charge furnished under

statutory authority.

Section 564 of the Code directs that indictments shall contain such particulars of time, place, person involved and property if any in question "as may be necessary to inform the

accused person of the nature of the charge". It is said that "it is sufficient to describe an offence in the words of this Code". Section 564 is said to be subject to the subsequent provisions of the Code.

Under s. 565 the value of anything mentioned in an

indictment does not have to be set forth in the indictment

unless the value is an essential element of the offence. In the case of offences charged under s. 87(1) and s. 121(1) it could not be said that the value of the "property or benefit" is an essential element. Section 565 also says that it is not necessary in the indictment to set out any particulars or matter which need not be proved.

By s. 571 certain descriptions of persons and, in the usual

case, times at which offences are committed are declared to be
formal matters which will not give rise to valid objection.

Apart from these provisions, the Code specifically provides

for the delivery of particulars in the discretion of the trial

judge: s. 573. Particulars when ordered and delivered will

have a force and significance by virtue of the very fact that

our criminal procedure provides for them. Once delivered they will have a consequence in the further conduct of the trial. Obviously they will have to be read with the terms of the

indictment in defining the terms of the charge and the case

which the Crown has to prove.

Section 572 provides for the amendment of indictments. The section states that if on the trial of a person charged there appears to be a variance between the indictment and the evidence and if the variance is not material to the merits of the case and the accused will not be prejudiced thereby in his defence, the Court can order the indictment to be amended and the matter

will then proceed further as the section indicates. There may or may not be a postponement of the trial. It is fundamental that the Court will be concerned for the position of the accused

who, under our established criminal procedures, is entitled to full and proper notice of the case which he will be called upon

to meet. Amendments made late in a trial can obviously have

significance for the defence greater than if ordered earlier.

From a procedural point of view it is obviously desirable

to order amendment of an indictment in cases where, for example,

the evidence varies from the charge or particulars are delivered

which are inconsistent with the terms of the charge, that is, if the trial is to continue. There is a clear necessity to ensure

that the Court's formal record remains correct. This is the

position which the concluding sentence of s. 572 recognises.

Whether there can properly be an amendment of an indictment

after verdict and conviction is something to which we do not need to turn particular attention in this case. Section 572 does not seem to contemplate it and for other than formal

defects this section is the only relevant source of power: see

Maher v. The Queen (1987) 163 C.L.R. 221 at 230 and R. v. Phil

Maria (supra) in the answer to question 3 in that case at 529.

The form of the limited power conferred by s. 649 also seems to

support this view. Accordingly, the suggestion made to the contrary in R. v. Lowndes [1938] Q.W.N. 11 may not be correct. Since the bringing in of verdicts lies within the prerogative of

juries and the verdict will obviously be related to the form of

the charge at the time it is pronounced there will be

considerable difficulty in terms of principle in allowing any general amendment of the indictment after verdict. Section 649

allows for amendment after verdict but before sentence on application by the convicted person on a motion for arrest of judgment: see R. v. Baynes [1989] 2 Qd.R. 431 at 435.

Whether a trial judge should allow delivery of particulars
by the Crown containing an element of departure from the terms

of the indictment will always be a matter to be addressed by him in the exercise of his discretion. If the departure represents

an actual inconsistency, then there will be additional consequences and a decision will be called for in which attention is given to the necessity of ensuring that the defence has and has had proper notice of the case it is called upon to

meet. If there is an inconsistency and the delivery of such particulars is nevertheless allowed, then the indictment should

be amended.

When an accused is legally represented and objection is not made by the defence to some lack of consistency between the count and the particulars then the force of any later challenge based upon the point will obviously be reduced.

In the present case the particulars were delivered early in

the course of the trial. Defence counsel had both an

opportunity to object to any inconsistency in the formal statement by the Crown of its case and a full opportunity also to conduct the case for the defence with the particulars in mind

for the remainder of the trial. If thereafter defence counsel

consciously restricted his attack upon the Crown case to that case as it appeared in the original terms of the indictment rather than as expanded by the particulars, his action is likely to be regarded as a deliberate tactical decision.

Defence counsel in the sense under discussion did not make any point on non-conformity between the indictment and the particulars when they were delivered. Had he done so it may

well be that the indictment would have been amended or an amendment foreshadowed. After the summing-up in which the judge did not direct the jury to acquit on the basis presently being discussed, no redirection was sought by defence counsel.

Although the trial judge gave a direction extremely favourable to the defence in some aspects, so far as the matter of

sufficiency of the evidence to prove the agreement or arrangement charged was concerned, he simply left it to the jury as a matter of fact for its decision. The jury subsequently brought in its verdicts of guilty.

The fact that no point on non-conformity between indictment and particulars was made during the trial results in an informality in the state of the record. The convictions will be

recorded on the counts as framed but that does not mean that any injustice affected the position of the defence after the

delivery of the particulars. Even though the word "ensuring"

was used in the counts of the indictment it was, after the particulars had been delivered, sufficiently conveyed by the

Crown case that it was not restricting itself to alleging that

the accused had agreed to guarantee protection in the relevant

respects but had rather accepted that he would lend himself to an arrangement as particularised. The evidence led sufficiently supports this case. This conclusion disposes of the point taken on each of the fourteen counts. It is now too late to take an objection that the indictment was not and should have been amended.

I have read and agree with what Pincus J.A. has stated in

his reasons on the topic of pretrial publicity.

A further topic to be dealt with concerns the complaints made about the conduct of prosecution counsel in the course of the trial. The weightiest matter argued refers to remarks of counsel in address following the trial judge's ruling that there was no evidence which was capable of corroborating Herbert's testimony implicating the appellant in the various offences

charged.

Although a ruling on corroboration had been given by the trial judge, the prosecution's final address followed a strong line which the appellant now submits was contrary to the ruling.

It is said that it virtually invited the jury to ignore what could be expected to come from the trial judge during his summing-up on the topic of corroboration and the danger of convicting in the absence of it. What might be regarded as exemplifying this conduct at its most extreme occurs in the passage referred to in the reasons of Pincus J.A. and so that it

is suitably identified it is best to set it out again:

" Now, His Honour intends to direct you that there is no
evidence capable in law of corroborating the Herberts.
That is a direction on the law which we must
therefore accept - whether we agree with it or not is
not to the point. It means that you should scrutinise

the evidence of any accomplice with care before acting

on his or her evidence.

In the end, after considering all of the evidence, you may think that the absence of evidence technically amounting to corroboration does not in the circumstances of this case matter much because all of the evidence when taken together, in our submission, so overwhelmingly supports the evidence of Jack Herbert on the essential matter of whether he paid Lewis in the relation to the protection of illegal activity. In other words, it is really, in this case, in our submission, a question of whether or not, and because he is the only person who speaks of the payments that were made to the accused - apart from his wife - you believe him."

Although there were further examples where the prosecution

submissions to the jury shared a similar approach, this particular passage serves as a convenient focus for

consideration of the objections now raised.

It is said that the prosecution subverted the effect of the

judge's ruling and invited the jury to ignore the lack of

corroboration. The submission is that the prosecution was wrong in pressing the comparative value of what it referred to as

"overwhelmingly" supportive evidence, doing this in a way which flouted the function which the rules dealing with corroborative

evidence are designed to serve.

Certainly there are parts of the prosecution address

highlighted in the passage quoted by Pincus J.A. where counsel's

invitations to the jury went very far and it should be said went

too far.

A prosecutor is obliged to give full and unqualified recognition to the rules which determine the approach to be adopted by a jury to the use of corroborative evidence and the approach to be adopted when there is no such evidence in cases where corroborative testimony would ordinarily be looked for. The prosecution is also obliged to give full and respectful

effect to a trial judge's rulings on points of law. A prosecutor fails in his duty if he does not conform with these

requirements.

In the present case the parts of the prosecutor's submission which went too far were those in which while conceding the obligation to accept a ruling or direction on law it was obliquely conveyed that the prosecution did not agree

with the judge thereby undermining his authority and in which by labelling the rule on corroboration as technical and by pressing the rival claims of "overwhelmingly" supportive evidence it

conveyed a disparagement of the rule itself. It was the

combination of these references which constituted the mischief.

Notwithstanding this judgment on the prosecution address
two things should said. A very long address was delivered,

spread over some eleven days, and if in some portions there appear transgressions beyond mere hyperbole and beyond acceptable limits a sense of proportion demands that criticism should be reduced somewhat to allow for the overall effect attributable to the transgressions. The second point to make is that the course of the trial is very much in the discretionary

control of the trial judge. No one can be better placed than he in deciding how to react to any excesses which find their way

into the addresses of counsel.

A trial judge will usually be reluctant to interrupt counsel's address to make a necessary correction but in a case where it seems to him to be clearly the best course to adopt he will be free to do this rather than wait until after it is concluded since the responsibility for controlling the trial is his. In an extreme case should he find that his rulings or

directions relevant to the conduct of the trial are not being

observed he can be put in a situation of difficulty. This situation, it can be assumed, will happen only rarely since counsel are usually respectfully mindful of their duty. Any aberrant behaviour on the part of a prosecutor if the effect cannot otherwise be compensated for and a fair trial assured to an accused person may, in an extreme case, only be able to be met effectively by discharging a jury but it can be accepted that this would be adjudged necessary only in an unusual case. Nothing in this category occurred in the present trial.

Counsel should not suggest or endeavour to hint to a jury
that the trial judge's rulings on law are wrong or that they
disagree with them or that the rules relating to corroboration

are merely technical and may be ignored or that other evidence which has no corroborative capacity can be used in a way to serve exactly the function of evidence which is corroborative. Criticism of the prosecutor's address is from these points of

view justified in the present case. However, the trial judge obviously did not find it necessary to stop the prosecutor during his address, conscious, no doubt, that his own summing-up

was to follow and that in it he would have an adequate opportunity to correct any wrong impression conveyed and so consign counsel's remarks to a level of importance where they would have no more consideration than they were entitled to. We see that in the summing-up in this case the trial judge quite definitely and clearly told the jury that Herbert's testimony was uncorroborated and that there was accordingly a danger in acting on it without examining it carefully. The excesses complained of in counsel's address received adequate correction in the trial judge's summing-up and there remained no unfairness

to the accused which could be said to have distorted the trial

or rendered it unjust to the accused.

Once this conclusion is reached it is strictly unnecessary to consider whether the trial judge's ruling that there was no evidence capable of corroborating Herbert was correct. That ruling and the directions given to the jury on the basis of it went in favour of the accused and can give him no cause for complaint. However, the topic received considerable attention in the arguments advanced on the hearing of the appeal and it is

discussed in further reasons to be delivered and it may in

consequence be appropriate to make some limited observations upon one aspect that is the distinction which it is suggested can be drawn between supporting evidence and corroborative evidence.

In making these observations I do not find it necessary to say anything on the subject of accomplices. The trial judge's remarks during the debate on the existence of evidence capable of corroborating and his subsequent ruling and direction to the jury seem to reflect a view that there was no evidence in the

case capable of corroborating the testimony of Herbert whatever

the source of that evidence.

The case was quite complex and the evidence voluminous and

the question whether there existed any evidence capable of

providing corroboration would be best examined by regarding the

categories of independent evidence which might be thought most strongly to qualify. Pincus J.A. in his reasons has identified some of this evidence.

Herbert's evidence shows that he knew that the appellant used a code in his diaries and as part of this code utilised references to three selected points which were apparently meeting places in the city area. The diaries when examined show that a code was used and that it encompassed the three places

referred to even if Herbert's evidence concerning the details of the code references was not completely accurate. Herbert also said that in the course of nefarious activity in which the appellant was engaged he met with two persons, Rooklyn and Robinson, who were involved with in-line machines. The

appellant's diaries show that meetings were taking place with those two persons. Herbert's evidence was that he and the

appellant were involved together in the sharing of proceeds of corrupt activity. The appellant's diaries reveal a close connection between Herbert and the appellant. Herbert's evidence spoke of the appellant's involvement in knowingly appointing corrupt officers. Other prosecution evidence indicated that a number of senior officers in the Licensing

Branch were corrupt at a time when the appellant was

Commissioner. Mrs Herbert gave evidence of having passed an

envelope containing money to the appellant on an occasion in Lennons Hotel in Brisbane. In view of the conclusion already

reached and expressed above, it is unnecessary to express a concluded opinion on whether any of this evidence or any other evidence in the case which might be pointed to was capable of corroborating Herbert or whether, on the contrary, the trial judge was correct in holding that it was not.

The rule in question has some technical aspects but it is

designed with the practical end in view of providing a measure

of protection to accused persons. Evidence from an independent source which is merely consistent with the account of the witness who calls to be corroborated will not corroborate him. While evidence which is inconsistent with an allegation will

tend to disprove it, evidence which is consistent may

nevertheless not have the necessary tendency to implicate. It is not necessary that corroborative evidence should be so strong

or complete that it will by itself be capable of proving the offence which is charged: R. v. Baskerville [1916] 2 K.B. 658 at 664 and Doney v. The Queen (1990) 171 C.L.R. 207 at 211. However, evidence which is corroborative within the meaning of

the rule must, in my opinion, do more than simply lend some

general support to the evidence coming from the source which

calls for corroboration and directions customarily given to juries identify specific items of evidence with some potentially

significant probative capacity. The independent evidence must actually tend to implicate the accused in the commission of the offence which is charged: R. v. Baskerville (supra). Thus, evidence which merely raises grounds for general suspicion of criminal behaviour of some kind or other will not ordinarily be capable of corroborating an allegation of a precise criminal offence which is charged. Further, it is apprehended that evidence which merely supports in a general way the testimony of the witness requiring corroboration perhaps by giving some

limited support to the credit of that witness will not be

corroborative within the meaning of the rule unless, going further, it supports the relevant central allegations: cf.

Peacock v. The King (1911) 13 C.L.R. 692 at 638-9, Reg. v.

Hester [1973] A.C. 296 at 325 and Attorney-General of Hong Kong

v. Wong [1987] 1 A.C. 501 at 512 quoting with approval a passage from Reg. v. Turner (Bryan) (1975) 61 Cr.App.R. 67. To take an

example, if it is alleged by an accuser that an accused committed a particular offence in Brisbane on a particular day, evidence from an independent source that the accused was present in Brisbane on that day will "support" one particular aspect of

the accuser's testimony but it will not ordinarily be regarded

as corroborating his claim that the accused committed the particular offence which is alleged against him. In Ridley v.

Whipp (1916) 22 C.L.R. 381 it was declared that opportunity

alone could not constitute corroboration.

It seems that corroborating testimony can tend to implicate an accused only if there is an appropriate connection between its details and the details of the account given by the witness

requiring corroboration. It is true that the significance of the supporting testimony may only be perceived when the details

of the allegation are known. It is suggested that it is only when the independent testimony fits in with an aspect which is to some necessary degree central to the allegation made that it

may be regarded as corroborative within the meaning of the rule.
Since the testimony must tend to implicate the accused in the
offence which is charged, if it merely supports the account of
the accuser at the fringes it may not be enough to qualify

within the category. A judgment will be called for upon the probative force possessed by the material which is independently

proved.

Evidence may be admitted that lends some general support to

the account of the witness calling for corroboration although it

does not constitute corroborative evidence within the meaning of

the rule. A tribunal of fact is entitled to have placed before

it such evidence of surrounding circumstances as is necessary to

place in context the particular allegations against an accused

person. In one sense that general evidence may support the principal allegations and tend to assist in the drawing of a

conclusion of guilt but it would not, in my opinion, be correct always to regard such independent supporting evidence as corroborative. Corroboration is a concept which has a general and non-technical aspect but in the context under discussion it has a restricted and technical sense and it is suggested that it

is regarded as referring to evidence which supports a witness,

not broadly in respect of his general credibility, but precisely in tending to implicate the particular accused person in the

commission of the particular offence. The particular practical judgment which is called for when a trial judge has to decide

whether particular evidence is capable of providing corroboration is a judgment which is assisted by bearing in mind that what is being looked for under a rule designed to afford

necessary protection to an accused person is some evidence which is capable of bringing a greater degree of certainty to the

central allegations.

It is not necessary to say more on these matters since the trial judge's ruling that there was no evidence capable of being corroborative of Herbert's testimony even if in any respect incorrect was a ruling which was favourable to the appellant and

can give rise to no ground of complaint so far as he is concerned. The conduct of the prosecution related to the presence or absence of corroborative evidence and the judge's ruling raise no issue which can be turned to the appellant's advantage on this appeal.

It is unnecessary to deal further with other objections which were raised to the prosecution's address and its conduct of the case, since, in my view, these matters have been adequately dealt with in the reasons of Pincus J.A. The adversarial system will sometimes give rise to complaints of the kind now aired and a trial judge will have a primary responsibility in regulating the conduct of both sides during a trial. Looking at the matter from the point of view of the

appellant and taking into account the very favourable summing-up which the appellant received, there is no reason to conclude that the conduct complained of resulted in an injustice to the accused.

The appeal should be dismissed.

The application for leave to appeal against the sentences

imposed should be refused. The position of the appellant as

Commissioner of Police and the conduct established against him

by the jury's verdict has the result that the effective term of fourteen years' imprisonment cannot be regarded as excessive

even though it is seen that on all of the counts but one the

term is equal to the maximum provided under the Code.

JUDGMENT - PINCUS J.A.

Delivered the Third day of August 1992

I have had the advantage of reading the reasons of the

Chief Justice. I do not find it necessary to repeat the

explanation of the nature of the counts which is to be found there. I agree with what the Chief Justice has written

concerning the contention that the evidence was insufficient to prove any of the counts other than count 2. I will deal only with the first and third points raised by counsel for the appellant - the conduct of counsel and the pre-trial publicity.

Counsel for the appellant argued that the conduct of counsel for the prosecution at the trial produced a miscarriage of justice. He also contended that because of pre-trial publicity, the trial should not have been held, but the

proceedings should have been permanently stayed. Counsel for

the appellant argued the points in that order; that is, he

raised the contentions about the conduct of prosecution counsel first. During the course of his submissions, counsel argued

that the two points are related to one another, in that the pre-

trial publicity made it especially necessary that counsel for

the prosecution exercise care in suggesting to the jury approaches they might take to the case. Counsel said that this was not done.

It seems convenient to consider first the strength of the submission that there should have been a stay, as a separate point, and then go on to deal with the conduct of counsel for

the prosecution.

PRE-TRIAL PUBLICITY

The procedural history of the District Court's treatment of

pre-trial publicity is as follows. The matter first came before

the District Court on 14 May 1990, when counsel for the

appellant contended that the defence should be allowed to challenge for cause, as contemplated by s.610(2) of the Criminal Code; that provision permits objection to a particular juror on

two grounds, the second of which is:

"That the juror is not indifferent as

between the Crown and the accused person".

The purpose of counsel's application was to obtain permission to

question prospective jurors.

In support of that application, counsel relied upon a considerable quantity of material showing that the conduct of the appellant and matters related to it had been extensively

discussed in the media from early in 1987 to the date of the

proceedings. Counsel for the Crown opposed the application, on

the grounds that the material did not show a probability of

prejudice against the appellant and that much of the material produced was favourable to the appellant. It had been held in

Manson [1974] Qd.R. 191 and in other cases that, as under the

general law, there is under the Code no right to cross-examine a

juror to establish that he is not indifferent as between the

Crown and the accused, unless there is first shown a foundation

of fact creating a prima facie case: see the discussion of Manson in Stuart and Finch [1974] Qd.R. 297 at p.326. It was

this obstacle which counsel for the appellant sought to overcome

by the material which has been mentioned.

The judge held that the material did not establish:

"... a prima facie probability of prejudice of the kind which would warrant departure from the normal method of dealing with such possible prejudice during a trial".

His Honour went on to hold, in effect, that the matter

could be dealt with by appropriate directions to the jury.

The question of pre-trial publicity was raised again when

the case came before the District Court on 18 March 1991 (having

in the meantime been considered in the Court of Criminal Appeal)

for the holding of the trial which led to the convictions now

the subject of appeal. Then counsel for the appellant made on 19 March 1991 an application for a permanent stay of

proceedings, arguing that this was justified on the basis of certain publicity associated with the trial and by other circumstances which do not now require to be mentioned.

As far as the publicity was concerned, counsel for the appellant relied upon material of the same kind as had been before the judge on the application made in 1990, just discussed. He also relied upon certain additional publicity

connected with the proceedings in the Court of Criminal Appeal.
As to the latter, counsel argued, and it appears to be correct,

that it might have made the public aware that evidence which the

Crown might otherwise have called had been excluded by the

District Court.
After extensive argument, the judge refused the application
for a stay, saying in substance that although the publicity

might have given people who would comprise the jury a preliminary view, there was no reason to think that the jury would ignore directions cautioning them to put out of their minds anything they might have heard outside the courtroom concerning the appellant.

As has been mentioned above, before this Court the

publicity was relied on again and it was said that the

proceedings should have been stayed; it was also argued that

the publicity produced a miscarriage of justice and an unsafe verdict. Counsel sought to place before the Court, in addition to the extensive material which had been before the trial judge, the 1989 report of Mr. G.E. Fitzgerald Q.C. (as he then was) who

had been commissioned to inquire into "possible illegal

activities and associated police misconduct", the expression quoted being taken from the name which the Commission of Inquiry

bore. The Court was pressed to accept the view that what the

report said would have become known to people on the jury.

It is convenient to deal first with the question of the application relating to the report of the Inquiry. Counsel for the appellant argued, and it may for the purpose of the argument

be accepted, that the report conveyed the following:

"(a)for many years, up to and including the time that Bischoff was Commissioner of Police, there was considerable corruption in the police force albeit of a not particularly organised kind;

(b)the appointment of Whitrod as Police Commissioner was a new beginning for the police force, Whitrod being honest and intelligent and determined to stamp out corruption;

(c)up to about 1974, Jack Reginald Herbert had played a major and finally central role in the organisation of a corrupt system in the police force;

(d)during Whitrod's period, corruption

greatly receded;

(e)Lewis and others (including his former co-member of the 'Rat Pack', Tony Murphy) engaged upon a campaign against Whitrod;

(f)that campaign was successful, Lewis ultimately becoming Commissioner of Police;

(g)honest police were moved out of positions of power whilst Lewis was in control, and corrupt and dishonest police moved into such positions;

(h)after Lewis' appointment, Jack Reginald

Herbert organised and maintained a
massive and sophisticated system of

corruption".

Counsel for the appellant conceded that the report did not

find that the appellant was corrupt, but said that the "basic

assumption" of the report was the appellant's corruption.

It would not appear to be a proper exercise of discretion

to allow the report in as part of the evidence before this

Court. The appellant's counsel at first instance had ample

opportunity to consider what material should be used as a basis of the argument there advanced on two occasions, about ten months apart. Further, there is no evidence that, or reason to assume that, the report was so widely distributed amongst the community that members of the jury would be likely to have read it. Lastly, the nature and content of the report were

extensively discussed in the media, particularly in Queensland, as the material placed before the primary judge shows; it is probable that members of the jury would have gained knowledge of the content of the report from discussions in the media, rather

than from reading the document itself. More particularly, the

propositions quoted above from counsel's arguments all appear

able to be derived from the media reports of the evidence given before the Inquiry or of the Commissioner's findings based upon

that evidence.

Counsel for the appellant invited this Court to read in

full the material showing the nature and extent of the

publicity, but did not attempt to summarise its effect. He

submitted, however, that its character was such that it had become "no less essential for anyone in Queensland to believe in

the guilt of the appellant than ... to believe in gravity".

It was pointed out for the respondent that the publicity was by no means all adverse. The appellant, obtaining from time to time substantial help from the newspapers, had done his best

to defend his reputation and publicly to condemn those who had

accused him and, in particular, the witness Herbert. The bulk of the publicity was, however, undeniably adverse to the appellant. Examples from the newspapers should be given. On 28 October 1987, it was reported that one Burgess gave evidence to

the Inquiry relating to his having accepted bribes during a

period of service as a police officer in the Licensing Branch.

When asked whether he thought this was risky, he replied: "I

thought if the Commissioner was in on it, it would be o.k.".

Burgess gave evidence at the appellant's trial. On 2 November

1987 it was reported that the appellant was referred to as a

shark who takes a big bite, in connection with receipt of bribes. On 5 November 1987, one Parker, another corrupt police

officer, was reported as having given evidence that he was sure the appellant was involved in corruption. On 9 November 1987,

Parker told the inquiry, according to a report of that date,

that the appellant had told him in connection with relevant

matters that "if we all stick together everything will be all right". On 2 February 1988, a newspaper article reported that an ex-policeman told the Inquiry he believed the appellant sanctioned everything Parker did, including the payment of bribes. On 23 February 1988, a newspaper article referred to a

police raid on illegal gambling premises in 1977; it mentioned

that the appellant, then a relatively new Police Commissioner,

said that the raids would continue, but they did not and illegal casinos flourished and multiplied with little hindrance from the police. On 11 March 1988, it was reported that a police officer

said the appellant had ordered an investigation into the Licensing Branch, which led to its effective officers being

transferred; the officer thought this had happened because the branch had been too successful against SP bookmakers. On 6 May

1988, an article referred to a remark by a senior officer to the

effect that corruption allegations could not be taken into the Commissioner's office. On 6 July 1988, it was reported that an

Inquiry witness said that one Rooklyn had paid the appellant

$25,000 for an unfavourable report on the introduction of poker

machines into Queensland. On 29 August 1988, an article reported that the Inquiry had been told that the appellant approved a system of corrupt payments soon after he became the Commissioner, in 1976. On 29 November 1988, one Sir Edward

Lyons gave evidence that in 1985 the appellant had asked him how

to invest $150,000 and that Lyons had described it as "one of the biggest shocks I have had in my life". On 5 February 1989,

it was mentioned in the "Sunday Sun" that the witness Herbert

had said he had paid the appellant more than $611,000 between

1979 and 1987, but that the claim was denied by the appellant.

On 25 April 1989, there was reference to a claim by the

appellant that he would not receive a fair trial if charges were brought against him as a result of the Inquiry. There was

discussion of a special Act of Parliament declaring the Office

of Commissioner vacant, which had allowed the government to withhold moneys which would otherwise have been due to the appellant.

These examples are not randomly chosen, but are intended to

be representative of the material which may be thought

especially damaging. It was argued for the respondent that by the time the trial began last year, a considerable period of

time had elapsed since the Commissioner ceased to receive

evidence and the memories of members of the jury as to relevant events would have faded. That is true with respect to the details, but it would have been a rare member of the public, at

the time the trial began, who was unaware of the ample evidence

of police corruption which had been aired in the Inquiry, or of the suggestions that the Commissioner was involved or of the

fact that the Commissioner was dismissed by the government on

account of these revelations. Plainly, members of the jury might well have approached the case with an initial tendency towards a poor opinion of the appellant and especially of his

standards of probity as the highest police officer in the State.
Much of the adverse publicity was an account of evidence given

to the Inquiry which was, in substance, given again at the

appellant's trial.

Counsel for the appellant contended that the situation was unique, that the appellant could never have a fair trial, that no adjournment, however long, could have helped, that a permanent stay should have been granted and the appellant was

entitled in this Court to a verdict of acquittal.

As has been mentioned, the judge rejected similar contentions below, on the ground that the proper course was to endeavour to ensure a fair trial by appropriate directions. That he gave such directions is not in dispute, but the appellant says that the jury was so gravely prejudiced against him that nothing the judge said, however strong and emphatic, could achieve a fair trial.

The judge appears to have paid careful attention to the
considerations put before him in favour of the contention that
it was necessary to question prospective jurors and on the

application for a stay. His Honour's conclusion that the problem could and should be handled by giving directions was a

discretionary one. As appears from the remarks made by members

of the High Court in the two decisions discussed below, this is an important element to be kept in mind when considering the validity of the appellant's attack on the judge's ruling.

Recent authority in the High Court is such as to make it unnecessary to analyse earlier authorities at any length or to deal with the voluminous academic writings. It is of interest

to note, however, that some of the latter work records attempts

to determine the effectiveness of means of reducing bias

engendered by pre-trial publicity and, in particular, judicial directions. See, for example, the paper by Kramer Kerr and

Carroll in "Law and Human Behaviour" Volume 14 No. 5 (1990),

especially at pp.412, 430 and 434; see also the Australian Law Reform Commission paper "Prejudicial publicity in the courts" published in November 1986. These writings support the view

that "there can be no guarantee that directions given by a trial

judge in an effort to counter the effect upon a jury of media publicity will be successful": Murphy (1989) 167 C.L.R. 94 at

101.

The trend of authority in Queensland is against the appellant. In Stuart and Finch the Court of Criminal Appeal approved the course taken by the trial judge of refusing, as the judge did in this case, to allow questioning of jurors with a

view to supporting challenges for cause. The case concerned a mass murder which received enormous publicity; the circumstances were such that there must have been considerable animus against the accused persons within the community, including the jury. A second authority illustrating the

position is Convery, Hapeta and Jones (Court of Criminal

Appeal, 13 October 1989, unreported). In that case, on the very

day on which the jury convicted Hapeta of unlawfully trafficking in heroin and unlawfully having heroin in possession, there had

appeared an article in the Courier Mail displaying photographs of persons said to be Sydney criminals, including Hapeta, whose photograph was captioned "Hapeta ... vice empire". The article,

in the Court's view, presented "Hapeta in a very poor light and

... was calculated to prejudice his fair trial". The trial judge had declined to discharge the jury and instead gave them a

further warning not to have regard to matters heard outside the

Court. After citing authority in favour of the view that there

is "every reason to have confidence in the capacity of juries"

to ignore such matters, the Court of Criminal Appeal held that

the judge had not been shown to have erred in the exercise of his discretion. In that case, Hapeta's complaint was somewhat

weakened by the fact that the article had not asserted that he was involved in the drug trade, but said that his "vice empire" was based on prostitution; he had given evidence that he was a brothel keeper.

The decision in Convery, Hapeta and Jones was based in part on that of the High Court in Murphy, a recent treatment in that Court of the problem under discussion. That case concerned the

convictions of a number of men for murder, the victim being a young woman whose appalling treatment by her attackers received

extensive attention in the media and aroused widespread public revulsion. On 16 March 1987, one of the people accused pleaded guilty at the beginning of an intended trial and that was

publicised the same evening. Another accused was described in

the media as a prison escapee. The judge discharged the jury on the ground of the potential prejudice to the latter accused, which he thought could not be adequately dissipated by directions.

On the same day and the following day, there was further media reference to one of the accused being a prison escapee and when the court reconvened five days later, an application was made to the judge to adjourn the trial for six months. The judge refused, saying that the problem could be dealt with by

directions. He remarked:

"I am fully conscious of the right of an accused person to a fair trial. I am also conscious of the interests of the community in having trials brought on with regularity and expedition".

The High Court, upholding the decision of the New South Wales Court of Criminal Appeal, rejected appeals by the accused so far as they were based upon the refusal of the adjournment. The Court emphasised the discretionary nature of the trial

judge's function and the advantage the judge has in determining

the best means of securing a fair trial (pp.105, 124).

Counsel for the appellant in the present case contended

that the appellant was entitled to a fair trial and nothing less

and, in particular, not an almost fair trial. By that he appeared to imply that unless one can be sure that a jury will consider its verdict unaffected by notions gained before the trial began, the trial will not have been a fair one. The Court

in Murphy made some remarks relevant to this proposition. Mason

C.J. and Toohey J. said:

"It is fundamental that, for an accused to have a fair trial, the jury should reach its verdict by reference only to the evidence admitted at trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in 'sensational' cases makes such a pristine approach virtually impossible" (pp.98, 99).

After referring to various remedies which might be available,

their Honours went on:

"It may be that in a particular case neither of these remedies will be fully effective" (p.99).

Their Honours remarked a little later:

"The importance of a fair trial to an accused must not be underestimated. But it is not the only consideration. It is important that anyone charged with a criminal offence be brought to trial expeditiously" (p.99).

The ideal of absence of pre-conceptions, in circumstances

of the present kind, must it appears be weighed against other
considerations. That is explicit in the reasons of Brennan J.:

"There is a legitimate public interest in knowing of the solving of serious crime as well as a legitimate public interest in having the trial of alleged criminals conducted free from prejudice. There may be a tension between the two interests of the public which has to be resolved ...

The avoidance of delay in a trial as well as bias for or against an accused are both aspects of a fair trial. Sometimes those aspects are in competition. When they are, the trial judge must form a prudential judgment in determining how fairness can best be achieved. In reaching his decision the trial judge is entitled to consider whether any bias for or against an accused can be mollified if not abated by appropriate directions and whether a procedure of questioning jurors on a challenge for cause is an appropriate safeguard against the empanelling of biased jurors" (pp.122, 123).

The expression "mollified if not abated" should be noted.

Neither set of reasons holds that the trial is vitiated if the

former result is achieved but not the latter. Deane J.'s

reasons are consistent with this. Dealing with the refusal to adjourn trial by reason of the likelihood of prejudice, his Honour remarked:

"The likely prejudice which would result from knowledge that one of the accused was a prison escapee would obviously be extremely difficult to dispel even by strongly worded directions. Against that were all the ordinary disadvantages of a lengthy adjournment of a criminal trial. Perhaps most important, the brutality and consequent notoriety throughout New South Wales of the abduction, rape and killing of Mrs. Cobby meant that it was impossible to be confident that one or more members of any future jury would not have acquired and retained either the information that one of the accused was a prison escapee at the time the crimes were committed or some other comparably prejudicial piece of inadmissible evidence about one or more of the accused ... It has not been suggested that the vigorous directions which his Honour gave in a sustained endeavour to overcome the risk of prejudice through extraneous information were other than appropriate to the circumstances" (p.125).

The High Court's remarks support the view that, at least in some circumstances, an accused must be content with a trial in which the court does the best it can for him by way of directions, without producing any certainty that preconceptions derived from media treatment of the facts of the case will be

utterly dispelled by the time the jury comes to consider its verdict. Were that not so, then it might be impossible lawfully to try a person such as Jack Ruby, whose crime was witnessed by

millions on television. It may be that if adverse publicity is deliberately generated by persons for whom the Crown should

properly be held responsible, then justice would require that a permanent stay be granted; otherwise, it is not easy to imagine

circumstances in which publicity before or during a trial could entirely prevent the pursuit and eventual completion of a prosecution: cf. Jago v. District Court (N.S.W.) (1989) 168

C.L.R. 23 at 47.

A similar problem has recently been considered by the High

Court in Glennon (1992) 66 A.L.J.R. 344. It is unnecessary to

set out the facts of that case and enough to say that it has in common with the present that an unsuccessful application for a stay of proceedings was made on the ground of prejudicial pre- trial publicity. By a majority, the Court granted the Crown special leave to appeal against verdicts of acquittal entered by the Victorian Court of Criminal Appeal, allowed the appeal, set

aside the Victorian Court's orders and remitted the matter to

that Court for consideration of outstanding grounds of appeal.

The dissenting judges (Deane, Gaudron, McHugh JJ.) would
have refused special leave on the ground that the substantial
question in the case was one of fact. Their Honours said that
the possibility could not be excluded as a matter of law that -

"... an 'extreme' or 'singular' case might arise in which the effect of a sustained media campaign of vilification and pre- judgment is such that, notwithstanding a lapse of time and careful and thorough directions of a trial judge, any conviction would be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and prejudgment. In such a case, a permanent stay may be granted" (p.358).

Two members of the majority, namely the Chief Justice and

Toohey J., commented upon the matter in passages which should be

quoted, rather than summarised, in view of their importance in

the decision of the present case.

"Apart from the unique case of Tuckiar v. The King (1934) 52 C.L.R. 335, there has been no other instance in the judicial history of this country of an accused's conviction being quashed and a verdict of acquittal then entered on account of the potential prejudicial effect of pre-trial publicity. The decision of the Court of Criminal Appeal is all the more remarkable in that it rejects the discretionary judgment of Crockett J. refusing a stay in circumstances where that discretionary judgment appears to disclose no error of principle. Not only does the Court of Criminal Appeal appear to have erred in principle in rejecting the assessment made by Crockett J., but the Court also appears to have given little, if any, weight to the community's right to expect that a person charged with a criminal offence be brought to trial (Barton v. The Queen (1980) 147 C.L.R. 75, at p.102; Jago v. District Court (N.S.W.) (1989) 168 C.L.R. 23, at p.33; Carver v. Attorney-General (N.S.W.) (1987) 29 A.Crim.R. 24, at p.32), to the means available to a trial judge to ensure a fair trial and to the steps taken by the trial judge in the present case (pp.347).

...

It was common ground that the respondent's appeal could not succeed unless it were shown that Crockett J.'s decision was erroneous in accordance with the established principles governing appeals from discretionary judgments. Accordingly, it was for the respondent to show that Crockett J. acted upon a wrong principle, took into account some extraneous consideration, failed to take into account a relevant consideration or mistook the facts (House v. The King (1936) 55 C.L.R.

499, at p.505; Reg. v. Shrestha (1991) 65 A.L.J.R. 432, at p.437; 100 A.L.R. 757, at p.766). If convinced of such an error but not otherwise, the Court of Criminal Appeal was entitled to set aside the decision of Crockett J. and exercise its own discretion (p.348).

...

The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J. observed in Hinch (1987) 164 C.L.R., at p.74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them (p.349).

...

The majority's reasoning was also based on materials which could not support the inferences drawn, took little, if any, account of the effect of the trial judge's instructions and disregarded the community's right to expect that a person accused of a serious criminal offence will be brought to trial (p.350).

...

On the other hand, a permanent stay will only be ordered in an extreme case (Jago (1989) 168 C.L.R., at p.34) and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences' (Barton (1980) 147 C.L.R., per Wilson J. at p.111) (p.350)".

The present case has in common with Glennon that the question is

whether a discretionary judgment reached below should be reversed; here, as in Glennon, it does not appear that any error of principle can be pointed to as a ground of attack upon the treatment of the matter by the trial judge. It is also necessary to note that the reasons of Mason C.J. and Toohey J. are authority for the view that weight has to be given to the community's right to expect that the appellant be brought to trial.

The other two members of the majority were Brennan J. and

Dawson J.; the former gave reasons with which the latter

agreed. Again, in view of the importance of the matter to the
decision of this case, it is desirable to quote at some length:

"From these formulations it appears that some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest. Clearly enough, though the fairness of a criminal trial may be at some risk in such a case, the trial proceeds. If a punishable contempt occurs, ex hypothesi there is a real risk of prejudice - perhaps, to adopt the formulation by Mason C.J., a substantial risk of serious interference with a fair trial. But it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted (p.353).

... pre-trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal law's protection of society and its members to refuse to allow the law to take its ordinary course in these cases. The administration of criminal justice by the courts, which proceeds inexorably to its conclusion in each case, would be adventitious if trials could be halted by a punishable contempt (p.353-354).

... these protective mechanisms cannot guarantee perfect impartiality, as Mason C.J. and Toohey J. recognized in Murphy v. The Queen (ibid., at p.101):
'It may be said that there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial' (p.354).
...

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial (p.354).

even if, as may fairly be assumed, Peggy Herbert knew that the payment to the appellant was part of the system of corruption,

the details of which she was quite familiar with, that did not

necessarily make her a principal offender in relation to any of the offences of agreeing to receive payment: see s.7 of the

Code. For example, her paying money by way of a bribe to the

appellant was, if she knew the nature of the payment, an offence but it was not the offence of aiding the appellant in the

commission of any of the offences with which he was charged.

This point is further discussed below.

Poker machine report

According to Herbert's evidence, the appellant told him about mid-1980 of the prospect of a committee being formed to investigate the introduction of poker machines in Queensland.

Herbert told the appellant that Rooklyn would be vitally

interested in keeping them out and that he would pay $10,000 for

an adverse report about them. It was agreed that Herbert would arrange for two people called MacNamara and Garde to induce Rooklyn to do this. When approached, Garde said that Rooklyn

would pay more and it was agreed that $25,000 would be asked for, $15,000 to the appellant and $10,000 to be distributed

among the rest; the appellant agreed to that division. Rooklyn was willing to pay but wanted to see the appellant and Herbert arranged a meeting at the Crest Hotel where the matter was settled. While the appellant, Herbert and Rooklyn were talking, a waiter entered the room and was addressed by Rooklyn as "Serge". There was evidence from a Serge Pragliasco that he was asked to take a bottle of wine or champagne to one of the two penthouse rooms in the hotel; on entering he recognised Rooklyn

and the appellant and spoke to Rooklyn. There was evidence that
Pragliasco was maitre d' at the hotel until 10 August 1980.

According to Herbert, the appellant gave him a poker machine report to show to Rooklyn and Herbert went to Sydney to see Rooklyn at his home in Vaucluse. The report mentioned Rooklyn as a figure in the report of the Moffat Royal

Commission. Eventually, Rooklyn paid the appellant and,

according to Herbert, a meeting took place, again, at the Crest Hotel on 18, 22 or 23 December 1980. The appellant's diary

recorded that the appellant went to the Crest Hotel at 5.30 p.m. until 6.55 p.m. on 23 December 1980 and recorded the appellant as having had contact with various people, including the Premier, concerning poker machines and the poker machine report.

There was evidence that one Hayes, a police officer who, according to Herbert's account, was corrupt was, on the appellant's direction, on 27 May 1980, appointed chairman of a committee which had been established to examine the detrimental effects on the community of poker machines. Members of the committee gave evidence of having produced a report dated 9 July 1980, which did not include a particular passage suggesting that

a decision on the introduction of poker machines be delayed. The appellant forwarded the report to the Police Minister,

however, including the section which had been deleted by the

committee.

System of police corruption

A number of police officers gave evidence that there was,

during the appellant's tenure of the office of Commissioner, a

substantial system of corruption operating within the Licensing Branch. The Branch had to do, or should have had to do, with

the policing of some of the illegal activities which, according

to Herbert's evidence, the appellant was paid to protect. The

circumstances were such as to be capable of implicating the appellant as Commissioner. It could only be put aside for the purpose of s.632 if the police officers involved in the

corruption were accomplices of the appellant in respect of the

offences with which the appellant was charged.

Herbert said that when he agreed with the appellant that

payments were to be sought to protect S.P. bookmakers, it was

stipulated that the Inspector and probably the Senior Sergeant of the Licensing Branch would need to be particularly chosen. Herbert's story was that the question of staffing of the

Licensing Branch was discussed from time to time between the

appellant and himself. The Crown adduced evidence that a series of Inspectors and Senior Sergeants of the Licensing Branch under the appellant were corrupt.

Hayes, mentioned above, was appointed Assistant Commissioner with jurisdiction over the Licensing Branch in October 1978 and remained there for more than two years. The jury was entitled to think this curious; the appellant's own

diaries for October 1978 record the Premier as having said that

Hayes was not to be "over" the Licensing Branch.

One Rigney was appointed Inspector of the Licensing Branch

in circumstances which supported Herbert's evidence that he had

influence with the appellant in this area. Herbert said he

recommended Rigney to the appellant as a person to be in charge of the Licensing Branch and that he knew Rigney had been involved in corrupt activities previously. Herbert said he

himself told Rigney that he was to be appointed. Rigney, who

denied corruption, said that the appellant told him at a

Christmas function in 1978 that the appellant had a job for him, but did not say what it was. He said Herbert came to his home

early one morning unannounced and told him that he believed that Rigney was to be in charge of the Licensing Branch and Herbert

said: "Well, Terry and I would like a quid. Watch what you are

doing and don't stand on our toes".

Herbert said that towards the end of Rigney's appointment

to the Licensing Branch, he recommended one Dwyer to the

appellant as someone he knew to be corrupt. Dwyer was duly appointed Inspector, having been approached in a similar way to Rigney. That is, the appellant told Dwyer he had a place in

mind for him (without saying what it was) and later Herbert came to see Dwyer and told him that the appellant wanted to know if

Dwyer was prepared to take on the Licensing Branch. There was then, according to Dwyer, a discussion between himself and

Herbert relevant to corruption and a few days after that he was

told he was to be in charge of the Branch. Dwyer gave evidence

of his participating in the corrupt system and that was

supported by other independent evidence.

One Bulger was appointed Senior Sergeant of the Licensing

Branch on the suggestion of Hayes, who later became Inspector in

charge of the Licensing Branch; Bulger was admittedly corrupt.

One Burgess, another corrupt officer, was the subject of a
conversation between Herbert and the Commissioner in which the

latter said that Burgess would be put into the Bureau of

Criminal Intelligence "for our own purposes". The appellant

later told Herbert that a deputation from the C.I.B. had been to

see him to say they did not want Burgess. Diary entries of the appellant in June 1984 showed that the deputation (a detective called O'Brien) and the officer in charge of the Bureau did not want Burgess. The senior applicant for the position was a man called Radford who was working in the Bureau and was regarded by the officer in charge as having done a good job. The Assistant Commissioner with responsibility for the Bureau also wanted

Radford. Again, the jury had before them an explanation from Herbert as to why Burgess, a corrupt officer, received the

appointment despite his apparent unsuitability.

One Boulton replaced Bulger as Senior Sergeant of the

Licensing Branch in September 1984. He was also corrupt. When

he was promoted to Inspector and left the Licensing Branch, the

appellant congratulated him and told him he had done a good job;

there was discussion of his having had a "good teacher in

Parker" who was also corrupt.

A similar story attached to the appointment of another

corrupt officer, one Kelly.

It was, of course, a matter for the jury whether this
series of appointments of corrupt police officers to the
Licensing Branch was a mere coincidence or whether it was

evidence which supported Herbert's evidence that matters were being so arranged by the appellant as to ensure the continuation

of the system of corruption. It is difficult to see why this evidence was not regarded as being capable of corroborating Herbert. Presumably, the judge took the view that the corrupt officers were accomplices. His Honour gave his ruling about corroboration after a long and very detailed discussion of the evidence with counsel, but did not specify precisely why some portions of the evidence which, his Honour appeared to suggest

during counsel's addresses, might be corroborative could not be

put before the jury as having that character.

It was at least arguably correct that, as prosecution counsel said to the jury, there was evidence supporting Herbert's story; whether it strongly supported the story was a

matter for them.

What is an "accomplice"?

Section 632 of the Criminal Code reads:

"A person may be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices, but the Court shall warn the jury of the danger of acting on such testimony unless they find that it is corroborated in some material particular by other evidence implicating that person".

The Code uses the word "accomplice" in s.632 without

defining it. One view is that the word is best left undefined,

so that the practical purpose of the section may be better achieved, namely to include all persons who are so involved with the commission of the crime charged as to make their evidence

about it potentially unreliable. I would doubt whether the test can be as broad as this; a person who knowingly assists the accused to commit the offence charged must be an accomplice for the purpose of s.632, even if in the particular circumstances of

the case, his having done so does not render his evidence

unreliable. The flexible approach is discussed in the 3rd Australian edition of Cross on Evidence (para. 15090), but the

authors suggest that in Australia the cases support an application of the formulation in Davies [1954] A.C. 378 at 400.

That case is authority for the existence of three classes of accomplices: those who are guilty whether as principals or accessories in respect of the actual crime charged; receivers of stolen property, in relation to those who have stolen the property; parties to offences on which the Crown relies as

proving system and intent and negativing accident - i.e. similar

fact cases. In the present case, it does not seem to matter

whether either the second or third category is properly included
within the meaning of "accomplice" for the purpose of s.632.

It is my opinion that the basic rule is that a witness is an accomplice for the purposes of s.632 of the Code if he or she is a party to and liable to be convicted of having committed the

offence charged. It is not, in my view, necessarily enough merely to show that the accomplice appears to be guilty of an offence closely connected with that charge. The point is illustrated by the decision of the Victorian Full Court in

Olholm and McPherson [1925] V.L.R. 377, although the Court did

not discuss the problem. The accused were convicted of having conspired to get money from one Callaghan to protect Callaghan's daughter from prosecution. The evidence showed that Callaghan

paid a substantial sum to the accused and others under the

agreement the Crown set up. Mr. Cussen, for one of the
appellants, put the argument that Callaghan was an accomplice:

"He had committed a crime connected with the detectives' offence - he gave the money, they took it" (p.381).

Mr. Menzies for the other appellant said:

"Suppose the accused were charged merely with accepting a bribe, and Callaghan had bribed them. He would be an accomplice, though obviously he could not be placed on trial for himself accepting the bribe; yet his interest would be to curry favour by giving evidence against the accused" (p.381).

The Court decided that Callaghan was not an accomplice. In

Ready and Manning [1942] V.L.R. 85, the Court held that an

accessory after the fact is not an accomplice for the purpose of the relevant Rule (p.93); see also the report of the case in

the High Court 16 A.L.J. 59.

The decision of Philp J. in Sneesby [1951] St.R.Qd. 26 was concerned with the identification of an accomplice for the purposes of the Code. The question was whether two witnesses

who were not guilty of the offence charged, but guilty of an offence consisting of precisely the same facts, were accomplices. Philp J. said they were because they -

"... although not chargeable with the actual offence with which the prisoner is charged, nevertheless have brought themselves, by the very acts to which they were party, within the criminal law ...".

In my opinion, one should read the words "the very acts to which

they were party", in context, as a reference to exactly the same

events as were relied on to constitute criminality in the accused. The peculiarity of Sneesby was that there the accomplices were not able to be charged with the precise offence with which the accused was charged, because of their ages.

Another possible exception to the basic Davies rule is that accomplice includes a person directly implicated in the accused's actions and guilty, not of precisely the same offence as that with which the accused is charged, but of any other offence of which the accused could be found guilty on the indictment: Khan [1971] W.A.R. 44. This is similar to, but not

precisely the same as, the exception derived from Sneesby.

Sneesby and Khan, then, would I think include as an accomplice a person who as a participant in the very acts constituting the offence charged is himself guilty of an offence, whether or not being guilty of the precise offence charged against the accused. Additional authority providing at least some support for this view is to be found in McNee v. Kay

[1953] V.L.R. 520 at 530, Rigney (1975) 12 S.A.S.R. 30 at 37 and

Ling (1981) 6 A.Crim.R. 429 at 451.

A judge may see fit to direct a jury that a witness who is
not within any of the four categories is nevertheless one who
has a particular motive or opportunity to tell lies against the

accused. The reasons for doing so may of course include that the witness has received an indemnity, the effectiveness of

which is dependent on the content of the evidence the witness gives. But such a direction would not be one required by s.632

and failure to give it would not be in breach of that section.

In my opinion, the scope of the notion of an accomplice for

the purposes of s.632 does not go beyond the four categories

mentioned, if indeed it includes them all. It is not enough, in order to classify a witness as an accomplice for those purposes, to find that he has committed an offence which is connected with

that charged against the accused. Accepting for present

purposes that the second and third Davies categories are

properly to be included (a point which it is not necessary to

determine here), it is my view that a witness is not an

accomplice unless he falls within one of the three Davies categories or has participated in the very acts constituting the offence charged in such a way as to be himself guilty of an offence. To return to Olholm and McPherson, there Mr. Cussen said that Callaghan:

"... had committed a crime connected with the detectives' offence - he gave the money, they took it" (p.381).

To which McArthur J. replied:

"But the crime is conspiring" (p.381).

So here, all the offences with which the appellant was charged were of corruptly agreeing to receive money. The Crown alleged 15 such agreements. The onus was on the appellant to show that the witnesses said to be accomplices were, in truth, accomplices: Cox [1986] 2 Qd.R. 55. All the witnesses claimed to be accomplices, namely Herbert's wife and the corrupt

policemen, did acts which, if there were such agreements as

alleged, followed from them. What Mrs. Herbert did in paying money due under agreements was directly consequential and what the corrupt police did in participating in the distribution of

money and acting so as to protect illegal activities was indirectly consequential on the agreements. It does not appear

that Mrs. Herbert or the corrupt police could have been charged

with any of the offences of making agreements between Herbert and the appellant, with which the appellant was charged. Nor, if one considers the fourth category mentioned above, was there

any evidence that a witness other than Herbert took part in the

making of the agreements charged.

The course of events then, although unsatisfactory, did not

in my opinion vitiate the trial. The judge appears to have

reached his view that none of the 100 witnesses in the case other than Herbert corroborated Herbert's account of events either by treating as accomplices of the appellant people who were not properly to be regarded as within that category, or by taking a narrow view of what evidence might constitute

corroboration, or by both such means. It appears to me correct that, as was submitted on behalf of the appellant, the jury were invited to consider for themselves whether Herbert's evidence was supported by other evidence, despite the judge's view that there was no corroboration of Herbert's evidence.

In my opinion, the case was one in which there was evidence capable, depending on the jury's view of it, of being treated as corroborative. The words of s.632 are "... unless they find it is corroborated" (emphasis added), meaning unless the jury so

find. It might have been better for the trial judge to have taken the course suggested in Matthews and Ford [1972] V.R. 3 at

22:

"... after the giving of a proper warning and a proper explanation of corroboration, the jury be given a broad indication of the sort of evidence which may be treated as corroboration and, if thought desirable, an indication of the areas of the evidence in which it may be found, without further elaboration ...".

The discussion between counsel and the judge about whether there was corroborative evidence fit for the jury's consideration was extremely long and was almost entirely concerned with questions as to what inference the jury might reasonably draw from pieces of evidence. A random example of the sort of submission made was that, Rooklyn having gone to the

appellant to discuss the possibility of legalisation of massage parlours, there was "nothing surprising" about the appellant's

having then put Rooklyn's Sydney phone number in his diary. The

judge seemed, in the course of argument, to favour the Crown's

contention on this point, and it appears would have been better advised to leave to the jury the question whether evidence of that kind gave any support to Herbert.

I refer also to the discussion in Matthews and Ford (at

p.20) to the decision of the Queensland Court of Criminal Appeal

in Walczuk [1965] Q.W.N. 50 and the subsequent treatment of the

matter in Sorby [1986] V.R. 753 at 782, 783. It was impossible to say, in my respectful opinion, that no part of the evidence

other than that of Herbert was fit for the consideration of the jury as supportive of Herbert's story. Parts of that evidence,

if accepted, were capable of supporting Herbert at a number of

significant points. The submissions relevant to corroboration made by counsel for the prosecution were, in my opinion, more than counter-balanced by the repeated and strong judicial directions which may well have given the jury the impression that the evidence apart from that of Herbert was of little

consequence. That was, in my opinion, not so and the appellant was, as far as the question of corroboration went, placed in a more favourable position than he should have been.

I am of opinion therefore that the remarks made by counsel

about corroboration did not vitiate the trial.

Other complaints about counsel's address

It is impracticable to be exhaustive, but some concrete instances must be given of the other remarks of which complaint was made. A minor example is that in the course of discussing events at the trial, counsel for the prosecution remarked:

"So, it might be said that at this stage
the penny dropped with the defence".

This might be thought objectionable, on the ground that, in a colloquial way, it was suggested that defence counsel had blundered and had failed to appreciate until too late a point

which was against his case. It seems to me plain that this

remark did not, in its context, exceed the bounds of propriety.

Then, complaint was made of a long passage in which counsel

for the prosecution suggested that the case had in some respects

been conducted with particular fairness. An extract should

suffice:

"... the only way that I can ensure that you have what the Crown says is a fair picture of the evidence, is to seek to put the evidence in context because I have got no control at all over what is put to you after I sit down ... the defence have the right of last address.

Now, may I just say in relation to that, you can recall on a number of occasions during the course of the trial that the Crown were invited to tender a particular document and never once hesitated to do so ... if the Crown hadn't tendered a document as evidence, then the only way that that evidence could have been got in by the defence was to tender it, and once evidence, of course, is called, that means that the order of addresses change ...".

It was argued for the appellant, amongst other things, that this

was misleading because the Crown was in truth obliged to put in all the documents which it tendered. I am inclined to think the prosecution's remarks were not, in that sense, misleading, but

they were open to objection as being irrelevant.

Next, the appellant complained of the Crown's having

described him in the course of address as a man with an

"impaired memory", in a context in which it seems to have been ironically meant. The suggestion that the appellant was so

afflicted came, in fact, from the defence in cross-examination and it seems to me plain that the Crown was entitled to make of that what it could.

A passage of which the appellant's counsel particularly

complained was the following:

"The other front, of course, is, that even if - and this is a matter for you, but it appears to be the way the cross-examination proceeds - how attractive you find it is also a matter for you - there did exist a corrupt combination or agreement or relationship between Lewis and Herbert, the Crown has somehow got it wrong in the charges which have been laid. That sort of approach, if it is to be an approach, you may well find, and indeed, in our submission, will find a completely unattractive one, because it really is a case, we would suggest, of the defence having two bob each way. The point that the Crown would strongly urge upon you, if you do come to the conclusion beyond reasonable doubt that there was a corrupt combination between Herbert and Lewis, it is only then a very small step to take to find the charges as alleged by the Crown proved. At any rate, this, you may think, indicates perhaps some lack of confidence in the first proposition; namely, as to whether the evidence so overwhelmingly points to there being a corrupt combination between the accused and Herbert".

The appellant's counsel said that there was nothing wrong with the defence's making alternative or inconsistent contentions: that no corrupt agreement was proved and that if one was proved it was not of the kind alleged. There was, of course, no legal objection to the defence's pursuing this line in cross-examination or in address, but I do not think that the

passage would have been understood by the jury as suggesting otherwise. The contention to the effect that if the jury found there was a corrupt agreement then it was only a very small step

to a conviction was plainly a factual contention which was, in

my view, open on the evidence. I think the passage is expressed in a way which many would regard as too strong, but am far from

thinking that what counsel said misled the jury.

Another part of the address which the appellant's counsel

especially relied on might conveniently be partly summarised and
partly quoted.

The prosecution urged the jury to scrutinise Herbert's evidence
closely and to look closely at it, but to "keep your feet on the
ground" in doing so. The Crown suggested that if corrupt

payments were made no-one would be likely to be found to give evidence about them except a person like Herbert and that one would hardly expect a person of unblemished character to testify on the matter. Then counsel said:

"If the argument, members of the jury, is that in these cases one can never rely upon a witness like Herbert, even where there is so much other evidence which suggests it supports his credibility, we may as well give up, may as well give up. If people are unable to see that the reason why a corrupt system crosses and why it is so difficult to bring people to account is because those involved in it can participate knowing full well that those on the inside like Herbert, even if they were to change sides, would be so vulnerable to the same kind of criticism levelled against Herbert here that no-one would believe them, then we are wasting our time. Next time, if it isn't possible to look at the evidence and examine it and see - look at it clinically and objectively and see whether or not Herbert in those circumstances ought to be believed - next time here or elsewhere in Australia, we find the stench of institutionalised corruption which Herbert's evidence so plainly points to, we may as well give up and do nothing".

It is my opinion that the appellant's objection to this
passage has validity. It was not the case, as the jury might

have thought from these remarks, that they had to take their

part in eradicating a corrupt system. All they had to do

"clinically and objectively", as the prosecution said, was to decide whether Herbert's evidence was to be accepted on the

essential points, having got such assistance as they could from
the other evidence in the case.
Counsel for the appellant linked with this another passage which

was to the effect that the evidence suggested that corruption was long institutionalised in the police force and people might be reluctant to accept that this could be so

because "we wish to trust police officers. We want to accept

that they are honest". Next, counsel suggested

"institutionalised corruption in the police force involves a political dimension, you may think", which offends powerful

people and:

"It might be that people have taken the view that vice can never be stamped out and it is better to leave people involved in it to regulate themselves, or it might be that people have thought that a little bit of corruption in a democracy is a necessary price to pay for freedom, and what, after all, is wrong with a few jokes going on in the Licensing Branch? Some may even think that SP activity stands in the Australian tradition of Ned Kelly, and what is wrong with a bit of SP?".

Counsel again suggested that acceptance of Herbert's evidence

might be "too unpleasant to contemplate" and concluded by inviting the jury to accept Herbert and submitting that the jury

might think his evidence greatly supported by other evidence.

It was, in my opinion, permissible for the Crown to suggest

that there could be reluctance to accept the existence of a long

continued system of corruption in the police force and to say that the jury should overcome their reluctance and accept the Crown case. The reference to a "political dimension", although

obscure, may have been designed to convey that people politically aligned with the appellant could be on that account

reluctant to accept his evidence. Then, it was implied that others might think that corruption is ineradicable and best ignored.

On the whole, it does not appear to me that these expressions were particularly objectionable. The passage concludes with an invitation to the jury to put aside the considerations mentioned as irrelevant and focus on issues in the case. What the jury were being invited to do, I think, was to consider whether, if they were reluctant to accept Herbert,

the reasons for the reluctance were notions of the kind counsel

identified. The implication was that if they were they should

be discounted.

All of what prosecution counsel had to say was followed by a substantial address from the defence and a summing up which was unfavourable to the prosecution. The jury were told by the judge, in effect, that Jack Herbert was a liar who had a lot to

gain by giving this evidence and a lot to lose from abandoning

his story, that Peggy Herbert had every reason to lie and that

there was no evidence capable of corroborating the evidence of

the Herberts. His Honour said:

"Although you may convict on the uncorroborated evidence of the Herberts, it would be dangerous to do so".

In summing up, his Honour told the jury again and again that evidence other than that of the Herberts, which he dealt with in some detail, did not corroborate Herbert and was not evidence against the appellant. In strong terms, he directed the jury not to concern themselves with institutionalised corruption and the like and not to accept Herbert's evidence in order to check

corruption. He concluded by reminding the jury of Herbert's "greed, treachery and dishonesty", described him as an "unmitigated liar", reminded them of lies Herbert had told in the past and reiterated the danger of convicting on the basis of

the Herberts' evidence. It is my opinion that in the respects

in which the submissions to the jury on behalf of the Crown

transgressed, they were effectively neutralised by the strong

summing up. The judge was asked to discharge the jury on the ground of the prosecution's address and declined, in his

discretion, to do so.

The appellant also suggested, as mentioned above, that one could combine the pre-trial publicity with objectionable features of the Crown's address to arrive at the conclusion that

the appellant did not receive a fair trial. Passages in the

Crown's address were suggested to be invitations to the jury to recall ideas they had gleaned from the media. It is enough to say that this complaint was not, in my opinion, made out.

CONCLUSION

I would hold that none of the grounds of the appeal

succeeds and that the appeal should be dismissed.

It should be added that the appellant complained of the severity of the sentences imposed. In relation to each of the counts save count 2, he was sentenced to 14 years imprisonment, the maximum. In relation to count 2, he was sentenced to five

years imprisonment. The submission that the sentence should be

interfered with was not, I think, pressed, but appears in any

event not to be sustainable. Leave to appeal against sentence
should be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 189 of 1991

Before the Court of Appeal

The Chief Justice

Mr. Justice Pincus

Mr. Justice Byrne

T H E Q U E E N

v.

TERENCE MURRAY LEWIS

(Appellant)

JUDGMENT - PINCUS J.A.

Delivered the Third day of August 1992

MINUTE OF ORDER:Appeal dismissed. Leave to appeal against

sentence refused.

CATCHWORDS:

CRIMINAL LAW - CONDUCT OF PROSECUTION - Appellant alleged conduct of counsel for prosecution at trial gave rise to miscarriage of justice - whether comments by counsel in relation to corroboration conflicted with judge's directions and vitiated trial - whether jury misled by various comments of counsel - Criminal Code ss.121(1), 87(1), 564, 565, 571, 573, 572

CRIMINAL LAW - CORROBORATION - Trial judge ruled that evidence of accomplice was uncorroborated but prosecutor nevertheless addressed in terms of "overwhelmingly supportive" evidence - whether jury misled by discrepancy - whether distinction between corroborative and supportive evidence.

CRIMINAL LAW - OFFICIAL CORRUPTION - Indictment against appellant alleged appellant was party to agreement to ensure that certain persons would not be prosecuted - whether evidence of agreement in precise terms of indictment - whether evidence sufficient basis for conviction - whether verdict vitiated by discrepancy.

CRIMINAL LAW - PROCEDURE - FAIR TRIAL - Unsuccessful appliation for leave to question jurors and for stay on ground of prejudicial pre-trial publicity made by appellant at trial - whether matter adequately dealt with in directions to jury to disregard publicity - whether error in exercise of judge's discretion.

EVIDENCE - CORROBORATION - Trial judge ruled that evidence of accomplice was uncorroborated but prosecutor nevertheless addressed in terms of "overwhelmingly supportive" evidence - whether jury misled by discrepancy - whether distinction between corroborative and supportive evidence.

Counsel:  R.V. Hanson Q.C. and R.A. Mulholland Q.C., with

them J. Callinan for the Crown S.E. Herbert for the Appellant

Solicitors:  Director of Prosecutions for the Crown

Hillhouse Burrough & Whitton for the Appellant

Hearing Date(s):28, 29, 30, and 31 January and 3 February 1992

JUDGMENT - BYRNE J.

Delivered the 3rd day of August 1992

I agree with what Pincus J.A. has written concerning

pre-trial publicity.

As to the conduct of the prosecutor and the contention that

the evidence was insufficient to prove the counts (other than

count 2), I agree with the Chief Justice's reasons.

The Chief Justice and Pincus J.A. have also canvassed

questions relating to corroboration. I do not find it necessary

to decide and express no opinion on these issues.

The appeal against conviction should be dismissed.

The application for leave to appeal against sentence should

be refused for the reasons given by the Chief Justice.