Reed v The Queen

[1991] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M31 of 1991

B e t w e e n -

PETER MICHAEL REED

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 NOVEMBER 1991, AT 10.18 AM

Copyright in the High Court of Australia

Reed(2) 1 8/11/91

MR o. GRACE:	If the Court pleases, I appear on behalf of the appellant. (instructed by Grace & Macgregor)
MR M.S. WEINBERG, QC:	May it please the Court, I appear

together with my learned friend, MR N.T. ROBINSON,

on behalf of the respondent. (instructed by

J.M. Buckley, Solicitor to the Director of Public

Prosecutions (Victoria))

MASON CJ: Yes, Mr Grace.

MR GRACE:  If the Court pleases I hand up to the Court an

outline of submissions on behalf of the appellant.

This appeal raises for consideration the

construction of a particular provision of the

presentment rules. Section 371 of the Crimes Act,

1958 of Victoria provides that:

Subject to the provisions of the rules under

this Act charges for more than one indictable

offence may be joined in the same presentment.

In the Sixth Schedule to that Act, rule 2 provides:

Charges for any offences may be joined in the

same presentment if those charges are founded

on the same facts or form or are part of a

series of offences of the same or a similar
character.

It is submitted that the joinder on the presentment in this case of the shooting counts and the bombing

counts was improper. It is submitted that it could

not be said that the counts were founded on the

same facts, that is, the first limb of rule 2 of

the presentment rules, or formed or were part of a
series of offences of the same or a similar

character, the second limb.

A preliminary point on this issue has arisen in relation to which direction is sought from the
Court.	As a result of discussions I have had with

my learned friend, Mr Weinberg, an issue concerning

the parameters of the grant of special leave has
arisen. Although the Crown argument in relation
to the joinder before the learned trial judge may

be interpreted as saying that joinder was open under both limbs, before the Court of Criminal

Appeal in Victoria and before this Court on the

special leave application, the arguments were based

upon the construction of the first limb of rule 2
of the presentment rules, it being contended by the

appellant and disputed by the respondent that the

counts were improperly joined pursuant to that

first limb.

Reed(2) 2 8/11/91

Written outlines of submissions presented to

both the Court of Criminal Appeal and to this Court

on a special leave application support that fact,

as well as the transcript of the arguments on the

special leave application, excepting for only one

mention at page 26 of that transcript which perhaps

I could just refer the Court briefly to.

BRENNAN J:	Do you want to expand your argument now?
MR GRACE:	No, I do not.
MASON CJ:	You want to confine the Crown, the OPP?
MR GRACE:	Yes.

BRENNAN J: That is a different problem, is it not?

MR GRACE:  Yes, it may be.

MASON CJ: Well, it is a problem for the OPP. It is not a

problem for you.

MR GRACE: Certainly, but as I understand it the OPP - I am

perhaps foreshadowing a matter that the OPP -

MASON CJ: Yes, well I think that is enough. You have

foreshadowed the problem.	You proceed with your
argument.

MR GRACE:  If the Court pleases. Over the past 20 years

there has been significant judicial pronouncement

on the principles applicable to the joinder of

counsel and presentment. Almost exclusively these

have related to second limb situations primarily

involving similar fact cases. In the appellant's

trial the learned trial judge and the Court of

Criminal Appeal afterwards found that joinder was

justified on the basis of a common factual origin,

namely the first limb, and perhaps I could refer

the Court to the judgment that was relied upon both

by the learned trial judge and the Court of

Criminal Appeal, and that is the decision of the

Court of Appeal of England, in the case of Reg v

Barrell and Wilson, (1979) 69 Cr App R 250. There

is a short judgment in that case and I propose to

read from the judgment of Lord Justice Shaw at

page 252 of that report. Reading from the second
paragraph of Lord Justice Shaw's judgment on

page 252:

We heard these appeals against conviction

on May 22, 1979, and dismissed them. Both

appellants were charged in relation to the

same set of circumstances with causing an

affray (count 1) and with assault occasioning

actual bodily harm (count 2). Wilson was

Reed(2) 3 8/11/91

charged alone with attempting to pervert the

course of justice (count 3).

At the outset of the trial, application

was made on behalf of each of the appellants

that count 3 ..... should be severed and tried

separately from the counts in which both

accused were involved. The applications were

refused. In the result both were convicted on

counts 1 and 2 and Wilson was convicted on
count 3.

The applications to sever were on two

grounds. The first ground was that as a

matter of law the inclusion of count 3 was a
misjoinder. It was submitted that the joinder
was not within the ambit of section 4 of the

Indictments Act 1915 since it lay outside the

scope of rule 9 of the Indictments Rules 1971.

Rule 9 of the indictment rules in England is in identical terms to rule 2 of the presentment rules in Victoria. Going on to the next paragraph.

It is necessary to look briefly at the

facts. Both appellants together with a man

named Mizon (who absconded and did not appear

at the trial) went to a discotheque after a

bout of drinking. Barrell was refused
admission. All three became aggressive and

attacked the manager of the discotheque and an

attendant there. In the course of the fracas

which ensued, Mizon produced from underneath

his clothing two steel weapons. One turned

out to be a bayonet blade. Both the manager

and the attendant were injured and were

treated at hospital. The appellants and Mizon

were arrested and charged in regard to their

acts of violence. They were released on bail.

Some two months later, during the

currency of his bail, the appellant Wilson

visited the discotheque and approached the

manager whom he sought to persuade to modify

his account of what happened when the matter

came before the justices in the committal

proceedings. According to the manager, this

appellant offered 500 pounds or 1,000 pounds

as the reward for perverting the evidence. It

was not suggested that the appellant Barrell

was in any way concerned in this aspect of the

case.

Mr Jubb, on behalf of Wilson, submitted

that count 3, far from being founded on the

same facts as count 1, derived from a new and

different set of facts which was not only

Reed(2) 4 8/11/91

different in its nature but separated by a

substantial interval of time from the set of

facts which gave rise to counts 1 and 2. He

contended that to justify a joinder within the

terms of section 4 and rule 9 the subsidiary

offence must (to use counsel's terminology) be

an integral part of the primary offences and

must not be separated from them by any

distance in time.

This contention rests on too narrow a

construction of the language of the statute

and the relevant rule. The phrase "founded on

the same facts" does not mean that for charges
to be properly joined in the same indictment,

the facts in relation to the respective

charges must be identical in substance or

virtually contemporaneous. The test is

whether the charges have a common factual

origin. If the charge described by counsel as

the subsidiary charge is one that could not

have been alleged but for the facts which give

rise to what he called the primary charge,

then it is true to say for the purposes of

rule 9 that those charges are founded, that is

to say have their origin, in the same facts

and can legitimately be joined in the same

indictment.

It follows that this ground of appeal, as

a matter of law, fails in regard to Wilson.

That authority appears to be the only one that my

researches can discern applicable to a

pronouncement as to the meaning of the first limb

of rule 2 of the presentment rules.

Prior to the appellant's trial commencing, His Honour heard argument as to the joinder question.

At page 25 of the appeal book, if I could read from

the first paragraph at the top of the page, His

Honour said this in his ruling:

Mr Dee, who argued the matter on behalf of the Crown, submitted in response that at

the time he was intercepted, the accused man

was, according to the evidence, heavily armed

and that there was located in the premises in

which he was found, a quantity of explosives

and other material of an incriminating nature

as far as the bombing was concerned. From this foundation he argued that it would be

open to a jury in such circumstances to view

the conduct of the accused at that time as

being that of a person who was conscious of his guilt of the murder of Constable Taylor

Reed(2) 8/11/91

and who was very concerned to prevent

apprehension, particularly when incriminating

material linking him with that crime was

likely to be found.

In my opinion, there is much to be said

for this proposition. The inference of

consciousness of guilt of complicity in the

bombing is clearly open in the circumstances.

Additionally, the evidence is capable of supporting a finding by the jury that the accused had a deeply felt hatred for the

police and much of the evidence, which it is

intended to adduce to demonstrate the extent

of that animosity, would be admissible as

relevant to the intention with which he may

have acted at the time of the Kallista

incident as well as being relevant to the

establishment of his participation in the

bombing. A common factual origin, to employ

the term used by Shaw, LJ in R v Barrel and

Wilson, arising from these incidents could therefore be seen to exist.

His Honour then goes on to consider the omission of

other circumstances which would introduce a degree

of substantial unreality in the trial and then went
on to say that joinder was justified.

In the Court of Criminal Appeal - and this is at page 39 of the appeal book, the last two lines

at the bottom of the page - when dealing with the

question of joinder:

The learned judge rejected an application

for the severance of those charges on the

ground that they were properly joined under

rule 2 of the Presentment Rules as being

founded on the same facts as the other counts

on the Presentment. His Honour applied the

principle applied by the Court of Appeal in R v Barrell and Wilson -

and there the extract from the judgment that I have

read recently was set out, and then continues:

A common factual origin may be found, as it was in Barrell and Wilson, where there was

a charge of attempting to pervert the course
of justice, in the fact that that charge could

not have been alleged but for the facts giving

rise to the primary charges in that case which

were affray and assault occasioning actual

bodily harm. But those are not the only

circumstances in which a common factual origin

may be found.

Reed 6 8/11/91

In the present case it was open to the

jury to draw the inference that it was Reed's
consciousness of guilt of the murder of

Constable Taylor which led him to take extreme measures to prevent apprehension, particularly

when incriminating material linking him with

the murder was likely to be found. Further,

it was alleged that Reed had a deep seated

hatred of police and much of the evidence that

was led to support that allegation was

relevant on both the bombing counts and the

shooting counts. In this way a common factual

origin is shown.

There must be a sufficient nexus between

the offences charged to justify joinder under
the rule and such a nexus will be found "if

the offences are so connected that evidence of

one would be admissible on the trial of the

other .... " - R v Kray (1970) 1 QB 125 at

pp 130-1. Mr Rozenes did not dispute this

proposition but he sought to extend it. His
contention was that the joinder was only
justified if the evidence tending to prove one
set of counts would be admissible on the trial
of the other set of counts and vice versa.

The last three words were intended to convey

that before joinder could be justified in the

present case the evidence on

counts 8, 9, 10, 11 and 12 which were referred

to as the shooting counts would have to be

admissible on what we shall call the bombing

counts and that the evidence on the bombing
counts would have to be admissible on the

shooting counts. Such a contention certainly
involves a gloss upon or an extension of the
proposition in Kray's case and Mr Rozenes
frankly admitted that he had no authority to

support it.

We think that the contention should be
rejected.	The question for the trial judge's

decision was whether the shooting counts could

be joined with the bombing counts. The

evidence of the shooting was admissible on the

bombing counts to prove a consciousness of

guilt or to provide corroborative evidence of

motive, as Mr Rozenes conceded. But there is

no reason to take another step or to ask the question whether the evidence on the bombing

counts would have been admissible on the

shooting counts. Much of it might not have

been admissible and this will generally be the

case when offences are separated in time.

Whilst evidence tending to prove a later

offence may well be admissible as indicating a

consciousness of guilt of an earlier offence,

Reed 7 8/11/91

the evidence tending to prove the earlier

offence would not generally be admissible to

prove the later offence, save where similar

fact evidence or evidence of a course of

conduct or the like were admissible. The very

separation in time would often lead to the

conclusion that the evidence was irrelevant

and inadmissible.

MR GRACE: With the greatest respect to the Court of

Criminal Appeal, in my submission the extension of

the proposition that Mr Rozenes in the Court of

Criminal Appeal sought to apply ought to have been

accepted. It could not be said that the evidence

on the bombing counts, in the main part, was

admissible on the shooting counts.

DAWSON J:	None of it?
MR GRACE:	Only in respect of the element or the Crown

theory that there was hatred of police as the

motive for both sets of counts.

DAWSON J:	Would not evidence of the fact of the bombing be admissible to explain why the attempted arrest was
made?
MR GRACE:	It was common ground between the Crown and the appellant at the trial that the appellant had been
charged - I will qualify that in a few minutes -
had been charged with a large number of serious
offences which could have indicated or could have
formed a basis for his conduct at the time of his
arrest: many offences of armed robbery; offences of attempted murder on other persons not connected with the bombing trial; and numerous offences of
dishonesty.

Those charges were laid at around the same

time as the bombing charges were laid. It could

well have been possible that the appellant acted,

by way of consciousness of guilt, at the time of

his - - -

DAWSON J: That is from the appellant's point of view, but

the police evidence was, and they were entitled to
give it, that they were attempting to arrest him
for the bombing offences. They would be entitled
to give evidence of the bombing offences, would
they not? Maybe not the detail or the structure of

the bombs and so on, but the fact of the bombing

and that they were arresting him for that. They

would be entitled to give evidence of that, would

they not?

MR GRACE:  In my submission, no, because that would

introduce into the - assuming a separate trial on

Reed(2) 8/11/91

the shooting counts - that would introduce into the
trial of the shooting counts evidence of a
disposition or criminal propensity on the part of

the accused which, in the exercise of discretion,

in my submission, would be excluded on the basis

of - - -

DAWSON J:  You may be right. It just sounds strange to my

ears that if the charges are resisting arrest, the

police cannot give evidence of why they are

attempting to arrest a person. Is that right?

MR GRACE: It is right in theory, Your Honour, I concede,

but in the circumstances of this case, because

there were alternative theories as to why the

arrest may have been occurring, it is not open

necessarily to adopt - - -

DAWSON J: But the alternative theories are the appellant's

alternative theories. The charge was founded upon

an arrest in relation to the bombing.

MR GRACE:  Yes.

McHUGH J: But was not the totality of his criminal

activities admissible to rebut any defence of

accident and to prove the intent with which the gun

was fired on his behalf?

MR GRACE:  The totality of the criminal acts may have been

admissible, but that in itself did not justify

joinder.

McHUGH J:  If all the evidence in relation to the bombing

count was admissible on that basis in relation to

the shooting count, then it would have, would it

not?

MR GRACE:  Yes, but not all the evidence on the bombing

count was admissible.	As the Court of Criminal
Appeal observed in their judgment, a large part was
not.	I have prepared in fact a list for

Your Honours' perusal of those parts of the

evidence in the bombing trial which, in my

submission, would not be admissible in the shooting

trial. I understand Your Honours' associates may

have that list.

DEANE J:  Does that apply even if evidence showing that he

was guilty of the bombing was admissible on the

shooting?

MR GRACE:	Yes, in my submission, it would.
DEANE J:	I am just wondering why.

Reed(2) 9 8/11/91

MR GRACE:  If I could refer the Court to Harriman, which is

a decision of this Court, (1989) 167 CLR 590. I

understand that decision is reproduced in the folders of material that were handed up by my learned friend. At page 592 of that judgment perhaps before I read from the judgment of

His Honour Mr Justice Brennan, could I just

indicate briefly the facts?

Harriman was charged with knowingly concerned

in the importation of heroin, in April 1987.	The
Chief Crown witness was a co-accused named X.	He
gave evidence that Harriman -

had arranged for the heroin to be available

for collection by X in Chiang Mai -

in Thailand -

that he and the accused had broken it into

smaller parcels, and the accused had

instructed him to take it to London and post

it to addresses in Australia. The motive for

the importation was alleged to be to relieve
the financial predicament of a company in

which -

both Harriman and X were involved.

Over the accused's objection evidence was

admitted of his and X's joint involvement in

the sale, and of the accused's use, of heroin

late in 1986.

The whole Court held:

that the evidence of the accused's prior
involvement with X in the sale of heroin was
admissible on the ground that it was highly

probative of the criminal character of the

accused's association with X in Thailand in

April 1987.

If I could turn to page 592 of the report, at

the bottom of the page, reading from the judgment

of His Honour Justice Brennan:

The argument against admission of the disputed

evidence is simply that that evidence revealed

the commission by Harriman of offences other
than those on which he stood charged. In the

Court of Criminal Appeal, the case was argued as though the evidence in dispute were

evidence of similar facts. But the disputed
evidence is not evidence of similar facts; the

offences revealed by evidence of prior sales

and use of heroin are not offences of the same

Reed(2) 10 8/11/91

kind or character as the offence of being
knowingly concerned in the importation of

heroin. The probative force of the evidence

objected to in this case was not found in a
factual similarity between the offences

revealed by that evidence and the offences

with which Harriman stood charged. However,

the two principles which apply to evidence of

similar facts, as stated in Markby v The

Queen, apply mutatis mutandis to evidence

revealing other offences which are not similar

to the offence charged.

And, quoting from that case:

"The first principle, which is fundamental, is

that the evidence of similar facts is not

admissible if it shows only that the accused

had a propensity or disposition to commit

crime, or crime of a particular kind, or that

he was the sort of person likely to commit the

crime charged. The second principle, which is

a corollary of the first, is that the evidence

is admissible if it is relevant in some other

way, that is, if it tends to show that he is

guilty of the crime charged for some reason

other than that he has committed crimes in the

past or has a criminal disposition.

DEANE J:  Mr Grace, I am sorry, I am completely lost. The

question I asked you which led us to this was:

why, if it is admissible to prove that he was

guilty of the bombing charges for the purpose of

proving his guilt of the shooting charges, will the

fact that he was not charged with the bombing

charges affect what is admissible on the trial of

the shooting charges in which evidence which goes
to prove his guilt of the bombing charges is

admissible.

MR GRACE: Perhaps I misunderstood Your Honour's question,

but if I could approach it this way. The Crown

theory in this case was that the shooting occurred

as a result of consciousness of guilt of the

bombing.

DEANE J:  Or to escape arrest for the bombing or whatever.

MR GRACE:  Yes. The whole basis of the common factual

origin was based on this consciousness of guilt or

the motive of having a deep hatred of police. Ultimately, that theory was not proved or not

accepted by the jury, and they acquitted on the bombing. The evidence of the bombing had to be

treated separately to the question of guilt on the

shooting, and His Honour the learned trial judge so

directed the jury in that respect.

Reed(2) 11 8/11/91

DEANE J:  If he were guilty of the particular bombing

involved in this particular case, it obviously

created or provided a very real explanation of his

action in shooting. That being so -

MR GRACE:  Yes. That was certainly the Crown theory

DEANE J:  - - - the evidence, one would have thought even

evidence of any involvement in the bombing, would

have been admissible.

MR GRACE:	Yes.
DEANE J:	You say, though, it should have been excluded as

a matter of discretion if he had not been charged

with the bombing.

MR GRACE:  No, I am saying that the shooting counts could be

referred to as very serious counts in their own

right. They, in no respect, could be referred to

as subsidiary charges, as one would refer to the

perversion of justice charge in Barrell and Wilson.

The facts giving rise to the shooting counts could

not be said to be exclusively able to be alleged

but for the facts giving rise to the bombing

counts. It certainly would have been open on

separate trials for the prosecution, assuming that
the shooting trial was heard first, to say that the
reason that he acted the way he did was a
consciousness of guilt of the bombing. But the
case here is that the Crown theory is interwoven in
both sets of offences. The Crown says that you can
infer consciousness of guilt of the bombing by
reason of the shooting; you cannot infer
consciousness of guilt of the shooting by reason of

the bombing.

McHUGH J:	Who says that, the Crown or you?
MR GRACE:	The Crown.  The Crown did not put at any point in

time the latter part of that contention.

DAWSON J: The latter part being that you could not infer it

from the shooting?

MR GRACE:  You could not infer guilt of the shooting by

reason of involvement in the bombing.	It was
never - - -

DAWSON J:  I thought that was the point, that it was

consciousness of guilt of the bombing that caused

him to shoot?

MR GRACE:  Yes, but that goes to the proof of the bombing

counts. The shooting, as far as the Crown was

concerned, proved the bombing counts, because it

indicated consciousness of guilt. The Crown never

Reed(2) 12 8/11/91

suggested that the evidence of the bombing proved

the shooting.

DAWSON J: Except that the shooting stemmed from the

bombing.

MR GRACE: That was their theory.

DAWSON J:  Yes. You could not separate the two. I do not

know, you may be right, but would it be unduly

truncating the Crown case to have the police just
turning up at the man's place for no reason and

attempting to arrest him without any explanation

and then having him shoot at the police. You could

not present a Crown case that way, could you?

McHUGH J: That is what I do not understand. Supposing he

had stood trial on the shooting counts alone, why

was not the whole of the evidence in relation to

the bombing admissible against him for the purpose

of proving his intention and motive in relation to

what he did when the police came to the scene to

apprehend him?

MR GRACE:  If the trial of the shooting, as a separate

trial, occurred subsequent to the acquittal on the

bombing - - -

McHUGH J: Let us not worry about that, just let us test it

in theory at the moment. Let us assume that the

first count that was tried was the shooting. Why

was not evidence on the bombing admissible against

him?

MR GRACE:  The question of relevance would have to be

established first. Because the trials were heard

jointly there were different considerations in

terms of relevance. If there was a separate trial

of the shooting, the appellant would have been in a

position to have adduced evidence as to the various

reasons why the police may have come to his home.

DAWSON J:  But the Crown would have to prove that it was a

lawful arrest, would they not, and how did they

attempt to prove that it was a lawful arrest here?

MR GRACE:  They could indicate.

DAWSON J: They had a warrant for his arrest?

MR GRACE:	Yes.
DAWSON J:	On what charge?
MR GRACE:	I understand it was for the bombing.

DAWSON J: Yes, because you cannot exclude it.

Reed(2) 13 8/11/91

BRENNAN J:	Why do you put your argument on questions of admissibility? Admissibility is very important for
a variety of reasons, including the discretionary power to sever, but I thought your principal point
was that the facts were not the same out of which these two charges arose.
MR GRACE:	Yes, that certainly is the principal ground.

BRENNAN J: Well then, what are the facts out of which they

arose? The question of admissibility depends upon

what is charged, what the issues are. What are the

facts that you say?

MR GRACE:	The facts are clear, that the bombing arose out of an incident in late March 1986 at the
Russell Street Police Complex, and certain
explosives were placed in a motor vehicle. An
explosion was triggered and great damage and the
death of a policeman occurred.  The shooting
occurred approximately one month later. It
involved the raid by police at the accused's premises in an outer suburb of Melbourne at which
time there were shots fired, both by the police and
by the appellant, and the result was that the
appellant was charged with various counts of
attempted murder and recklessly causing serious
injury.
BRENNAN J:	Why do you not include amongst the facts the

police seeking to arrest, on the charge of bombing,

the accused at the time that he shot them; that

that was the explanation, that was what was

happening, those were the facts?

MR GRACE:  Yes, but that in itself, in my submission, does

not justify the joinder, and perhaps one

could - - -

BRENNAN J: If it is part of the facts, the case arises out

of it.

MR GRACE:  But it is not a common fact.

BRENNAN J: Is that your point?

MR GRACE:  That is not the only point, with respect,

Your Honour. The facts that gave rise to the

arrest are but one of the chain of events that may

be relevant, or certainly relevant and admissible,

to consideration by the jury in respect of the

bombing counts. There is no dispute to that, and

perhaps where the question of admissibility merges

with the problem of joinder on the first limb is

that it is submitted that even though what happened

on the arrest at Kallista, at the appellant's home,

is relevant and admissible on the bombing, it

Reed(2) 14 8/11/91

nevertheless should not have been the subject of

joinder. The evidence could have been called. The

evidence would have been exactly the same.

DAWSON J:  You say it is not founded on the same facts,

whether or not the questions of admissibility

arise, but why is the arrest not founded on the

bombing? It is the very thing, it seems to me,

that is founded on it.

MR GRACE:  The arrest may be founded on the bombing, but not the shooting.

DAWSON J: Well, that is true, but you cannot separate the

two, can you?

MR GRACE:  In my submission, you must. The words "facts" in

rule 2 of the Sixth Schedule does not refer to the admissible evidence in the case. It refers to the facts out of which the offences charged arose.

TOOHEY J: That is what puzzles me. You, in a sense, paint

yourself into a corner when you start to put your
case in terms of admissibility of evidence because

one could imagine that the evidence relating to the

bombing could be admissible to explain the presence

of the police on the occasion when the shooting

took place, but it does not seem to me to follow

inevitably that the two charges could be said to be

found on the same facts.

MR GRACE:  Yes.

TOOHEY J: Well, it is necessary to identify - perhaps not

necessary for you - but in the end, to justify

joinder. The facts which are said to be the same

facts have to be identified.

MR GRACE:  Yes. He had submitted that the same facts are

not present in both sets of offences, as the facts

were not relevant to both sets of charges.

DAWSON J: But you do not have to have identical facts.

MR GRACE : No •

DAWSON J:	The foundation has to be the same.
MR GRACE:	Yes.
DAWSON J: And that is the point here.	It said that the

foundation is the same. The foundation of the

sequence of events which included the shooting,

with the bombing.

Reed(2) 15 8/11/91

MR GRACE:  Yes, I appreciate that, Your Honour, but the

words in rule 2, the first limb, are strict. They

speak of the same facts.

DAWSON J:  No, they do not. They speak of founded on the

same facts. That if the foundation of the charges,

both sets of charges are the same, the foundation

of the charges with the bombing at base, then it is

satisfied. That is the argument against you

anyway.

MR GRACE:  Yes, that is the argument against me, but in my

submission, there was not the same common factual

origin, and if one is able to look at hindsight at

the jury verdict one will see that the jury were

not satisfied that there was a common factual

origin.

DAWSON J: That does not matter. They may have had a doubt

about the appellant's involvement in the bombing,

but nevertheless understand the police belief that

he was involved in it, which explained the arrest,

and they were satisfied about the shooting.

MR GRACE:  The result of the joinder is that the appellant

is unable to put before the jury adequate reasons,

or full and complete reasons, as to why he may have

acted the way he did at the time of the arrest.

DAWSON J: Well, he was not unable to put before the jury,

he did not want to.

MR GRACE:  He was not unable, and he may have wished to give

sworn evidence in relation to his defence of

self-defence in respect of the shooting but was, in

effect, prevented from doing so by reason of the

fact that if he would have given sworn evidence,
and subjected himself to cross-examination, he

would have been cross-examined at large in relation

to not only the shooting offences, but also in

relation to the bombing.

DAWSON J: Well he was placed in a tactical dilemma. That

is something that frequently occurs.

MR GRACE:  But that is a matter that perhaps is interwoven

in this whole contention, that this tactical

dilemma does not exist where evidence on one is

admissible on the other, and vice versa.

TOOHEY J:  But why should that be the test when the rule

speaks expressly, or uses the expression "founded

on the same facts"? Some of the decisions

mentioned in your outline, I think, relate to rules

and provisions that are cast in different terms.

MR GRACE:  Yes.

Reed(2) 16 8/11/91

TOOHEY J:	I mean, say for instance, the shooting had taken place while the applicant was fleeing from the
scene of the bombing; could it not have been said
that in that situation both charges were not
founded on the same facts?
MR GRACE:	It depends on the circumstances of that shooting,

Your Honour. It may have - - -

TOOHEY J: While the applicant was being pursued by police

off ice rs, running from the scene of the bombing ..

MR GRACE:  Yes, it probably would be much safer in those

circumstances to come to the conclusion that it was

founded on the same facts.

TOOHEY J:  I am not simply putting it to you as simply a

hypothetical exercise, but to try to test what it

is that is significant for the present application.

Is it the lapse of time that took place between the

bombing incident and the shooting incident that

enables one to say that they were not founded on

the same facts?

MR GRACE: It is not necessarily the lapse of time. It is

what has occurred in the appellant's history, prior

to the date of the shooting, which is relevant in
terms of explanation for his activity. The Crown

well knew of those activities that had occurred,
and yet it portrayed to the jury that the shooting

was evidence of a consciousness of guilt of the

bombing and the bombing only.

But the question is really at the end of the

day one of fairness to the accused. If there is no

prejudice caused by the joinder in terms of this

particular fact situation, then it could not be

said that it would found a successful appeal, but

the essence of the complaint is that the effect of

the joinder did not give the appellant a fair

trial.

TOOHEY J: Then are we to take it that the application is

not based on the proposition that the rule was

inapplicable, but rather that although it was

applicable, the trial judge should not have

exercised his discretion in the way that he did.

MR GRACE:	No, Your Honour.
TOOHEY J:	He seemed to come fairly close to saying that?
MR GRACE:	I do not want to get into the area of discretion,

because the grant of special leave specifically

excluded that particular aspect of the matter, but

the question of cross admissibility, in my

submission, determines - may certainly determine,

Reed(2) 17 8/11/91

and does determine in this case - the fairness or
otherwise of the trial. Because there was not
cross admissibility substantially in respect of
both the shooting charges and the bombing charges,

there was impermissible joinder.

DAWSON J: Can I just ask you two questions. First of all,

were there explosives found on the appellant's

premises at the time of the arrest?

MR GRACE:  Yes.

DAWSON J: Which the Crown sought to link up to the bombing,

did they?

MR GRACE:	Yes.
DAWSON J: The second question is quite unrelated.	If you

have a sequence of events based upon a common

origin, a factual origin, of course the origin will

explain the events at the end of the sequence, but
necessarily, if you take the facts at the end of

the sequence without reference to the origin, they

will not explain the origin. So that you cannot

talk in terms of common admissibility.

MR GRACE:	It is not put by way of saying it is exclusive cross admissibility or common admissibility. It is
put on the basis that it must be substantially
admissible and, in my submission, the evidence in
respect of the bombing counts was not substantially admissible on the shooting counts.

McHUGH J: But why not, because the bombing was done,

according to the Crown case, because of hatred of

police officers. It was done with great violence

with the use of explosives. Why was it not

admissible on the shooting count to show that the

shooting of police officers was done with the same

amount of hatred? Surely it went to motive and

intent and to rebut any defence of accident or

negligent discharge of a firearm.

MR GRACE: Well, there was a defence of self-defence, in

fact, Your Honour, but that perhaps does not affect

what Your Honour has to say. In my submission,

much of that evidence, if there had been a separate
trial of the shooting, would not have been

admissible on the basis of the exercise of

discretion, because it would indicate to the jury

that this man had a propensity for violent criminal

behaviour which may so affect the jury as to make

it impossible for that jury to be able to undertake

its tasks.

McHUGH J: That is a discretionary argument.

Reed(2) 18 8/11/91

MR GRACE: That goes to the discretionary point, yes,

certainly. But the discretionary point is as to

the admissibility of that particular evidence, not

as to the severance or the joinder of the counts in

the presentment. It is submitted that - - -

McHUGH J: But does that not indicate that the facts which

give rise to the bombing charge are also the same

facts which were relied on by the Crown as part of

the shooting charge because they showed the motive,

namely, hatred of the police? What is more,

perhaps showed even some sort of methodology.	I
mean, they were both very violent acts.

MR GRACE:  It is conceded they were both very violent acts.

It is difficult to argue in hindsight, but the

effect of the jury verdict is to negate that

particular Crown theory, and that, in my

submission, proves in a reverse way that there was

not a common factual origin.

DEANE J: But it is the charges that may be joined, not the

convictions.

MR GRACE:  Yes.

DEANE J: Assume for the sake of your argument that he is

guilty of a bombing, of being involved in a bombing

that killed - was it a policeman or a policewoman?

MR GRACE:	A policewoman.
DEANE J:	Once you make that assumption, you have the whole

explanation for a desperate desire not to be

arrested, which means it would all be admissible if

you assume guilt. Now, that means that you are

really presenting another argument, and that is

that in deciding whether charges can be joined

under the schedule you cannot really make a

decision until you know what the verdict is going

to be.

MR GRACE:  I am not submitting that. What I am submitting

is that in this case we have the benefit of the

verdict to look at, and it is relevant to consider

that if they were based on a common factual origin

one would have expected the same verdict in respect

of all offences.

Now, just to answer His Honour

Justice Dawson's earlier question in relation to

the explosives, for instance, explosives that were

found at the house shortly after the shooting

occurred, in respect of that charge the appellant

was acquitted.

DAWSON J: That was possession of explosives.

Reed(2) 19 8/11/91

MR GRACE: Possession of explosives.

DAWSON J:	But the case that was put by the Crown was that the explosives which they found were related back
to the bombing.

MR GRACE:  Yes. The other aspect is that

DAWSON J:	The Crown may not succeed, but it is a question of what the charges are founded upon.
MR GRACE:	Yes, but there is also a subsidiary question,

which is: what is the effect if the Crown does not

succeed?

DAWSON J: Then that might be questions of unfairness which

arise, about the discretion.

MR GRACE:  Yes, that is what I was trying to convey to

Your Honour Justice Deane.

DEANE J:  But does that not mean that that question would be

whether the verdict is unsafe or unsatisfactory,

rather than whether the charges should have been

joined?

MR GRACE:  The primary submission remains that these charges

were not based upon a common factual origin. It is

conceded that the evidence of the shooting was

relevant and admissible on the bombing but, in my

submission, that does not justify joinder. The

trials should have been separated and the shooting

trial heard subsequent to the bombing trial.

The presentment itself had a number of other

counts other than strict bombing counts. There
were charges concerning the theft of the motor car,

which was the motor car used in the bombing. There

was a charge concerning burglary of a mine at

Tryconnal, where explosives were stolen, and it was

submitted by the Crown that those explosives were

the ones used in the bombing. Those charges are

reflected in counts 1, 2 and 3 on the presentment.

It could not be said that those particular

counts were founded on the same facts as the

shooting, yet they were all lumped together in the

bombing counts and were properly joined, it was

said and conceded, on the basis of a series of

offences of the same or similar character.

TOOHEY J:  Mr Grace, in that decision of Barrell that you

took us to there is reference to the primary

charge, but is it appropriate to look at the
charges in terms of primacy or otherwise when you

are considering whether they should have been

Reed(2) 20 8/11/91

joined, or is it simply a question of applying

rule 2?

MR GRACE: In my submission, the latter, Your Honour. It

just so happened that in Barrell and Wilson there

was a primary and a subsidiary charge. Here it

could not be said that the shooting was a

subsidiary charge to the bombing, that is certainly

conceded.

TOOHEY J:  My question is, would it matter for the purposes

of determining the operation of rule 2?

MR GRACE: In my submission, no.

BRENNAN J:  Mr Grace, have you finished answering

Justice Toohey?

MR GRACE:	Yes, I believe so.
BRENNAN J:	Can I put this proposition to you for your

comment. Where a sequence of events explains a

criminal act occurring at the end of the sequence,

and that criminal act tends to show that a criminal

act occurred earlier in the sequence, the sequence

may be regarded as a single body of facts on which

charges of both offences can be founded.

MR GRACE:  Yes. That may justify joinder in certain factual

circumstances on the second limb, but not

necessarily on the first limb.

BRENNAN J:  The proposition I am putting to you is that

there is a single body of facts which encompasses

both, and if that is so, then there is no doubt

that in this case the two lots of charges arose out

of that so-defined single body of facts.

MR GRACE:	Yes.
BRENNAN J:

So that, what you have to do, is to say there is

something wrong with the definition of the body of

facts which is so broad.

MR GRACE:  Yes.

BRENNAN J: Well, what is wrong with it?

MR GRACE:	Because the body of facts, or the culmination, or the end of that factual scenario, does not
necessarily follow from the origin. If, for
instance, you had an offender committing an armed
robbery and he was to steal a car, use that car in
the commission of the robbery, go into a bank, point the gun at a customer and a teller, leave the bank, take a witness hostage, and continue on, and then be arrested, all of those particular

Reed(2) 21 8/11/91

incidents, offences, of course, would arise from

the common factual origin. They are a continuation

of the sequence of events.

In this case, you have the burglary of a mine

at Tryconnal in October 1985, and theft from that

mine of explosives. You have the theft of a motor

car two days before the bombing. You then have the bombing, and approximately one month later you have

the shooting.

BRENNAN J:  You have, must you not say, the arrest and the

shooting.

MR GRACE:	The arrest and the shooting.
BRENNAN J:	Why do you not look at the totality of those as

one set of facts?

MR GRACE:  Because there may be other explicable reasons for

each of those particular incidents.

BRENNAN J: There may be, but one does not look at what

might be the case.

MR GRACE: Certainly.

BRENNAN J:  One looks, surely, at what the Crown case is,

and if that is the Crown case, why is the Crown
case so described not consisting of a single body

of facts?

MR GRACE: 

Because it does not strictly fall within the

definition of a common factual origin. If there is
any regard to be made to the words in that

particular limb of rule 2, it must have some
cut off point. There must be some stage where the

facts do not become common.  One is not talking

about the facts, to use the words described in Reg

v Danes and Taylor, the Queensland decision

referred to in the outline of submissions at

paragraph 1.5, the word "facts" in rule 2 of the

Sixth Schedule does not refer to the admissible

evidence in the case, but to the facts which the

various offences arose from.

BRENNAN J: 

Why does it not include what I might call the

Bonnie and Clyde situation, a long series of

activities linked one with the other and one

building on the other and explained by the other?

MR GRACE:  In my submission, that scenario would be best

fitted into the second limb of rule 2.

DAWSON J:  No, it would not, you see, because the second

part is dealing with the sort of thing you are

talking about, where you have, for example, a

Reed(2) 22 8/11/91

series of rapes six weeks apart which are

unconnected except that they are offences of the

same or a similar character and you can join those

counts. They are disconnected, you see. That is

the purpose of the second part.

MR GRACE:  Yes. I must go back to what I earlier said, that

there has to be, at some stage, some dichotomy

between the ending of a particular fact or facts

giving rise to a particular offence, and the

beginning of another one. I could not give any

example, except perhaps for the Barrell and Wilson

situation, which would fall within the phraseology

that Your Honour Justice Brennan described, or the

phrase that Your Honour Justice Brennan just

mentioned.

If it is to be said that you could have a

serious Bonny and Clyde series, one that

Justice Dawson emphasized, as falling within the

first limb, in my submission that would not give

any effect to the wording of the first limb or to

the interpretation of what those words mean, as

Lord Justice Shaw gave to them in Barrell and

Wilson.

DEANE J: If, contrary to your submission, the evidence or

the facts of the bombing, as alleged, were
admissible on the shooting charge, do you still say

it does not come within the first limb?

MR GRACE:  If there is a cross admissibility of that, yes, I

would say it would come within the first limb, if

they were based on the - - -

DEANE J:  I follow that. But if one, contrary to your

argument, is of the view that the evidence of the

bombing was admissible on the shooting, that is the

end of this aspect of the case, is it?

MR GRACE:  Yes.

DEANE J:  I follow. Thank you.

MR GRACE:  I feel constrained I have to make that

concession. I have compiled a list - I do not know

if Your Honours have that list of the evidence that

was called - - -

MASON CJ: Yes, we have that list.

MR GRACE:  If one looks at that, there are ten points

listed, and on one view it may be said that all of

those matters are matters that are proper for
consideration in the exercise of discretion, that

is the residual discretion, to sever. But in my

submission the list indicates clearly a large

Reed(2) 23 8/11/91

amount of inadmissible evidence that was heard

before the court on the bombing counts that was not

admissible on the shooting counts. The total

length of the trial was 110 days. The shooting counts occupied only six days of that period of

time. The evidence in relation to the shooting was

swamped, it is submitted, by the evidence in

relation to the bombing. It is clear from the

transcript, and also from the judge's charge, as to

the predominance of material that was before the
jury in relation to the bombing, as distinct from

the shooting.

This appellant was the only accused who was

charged with extraneous offences to the series of

offences which could be loosely described as the

bombing offences. There was application - or

certainly at the outset, the Crown sought to join a

number of other offences concerning the finding of

other items at a place called Kangaroo Ground.

There were a number of offences which were severed

in exercise of the learned trial judge's

discretion. That is set out in the application

book.

It is submitted - and this is set out in the

outline of submissions - that the principles

governing joinder ought to be identical to those

which govern the admissibility of similar fact

evidence in a multiple count presentment, which

would result in joinder being justified only where

the evidence tending to prove one count was
admissible on the trial of the other, and vice

versa.

This restricted approach is to be preferred,

it is submitted, to the wider approach which would

allow joinder where cross admissibility did not

occur but sufficient nexus existed, and some

special feature of the case justifying separate
trials was not established.	I have listed a number

of cases which support the wider approach.

However, it is submitted that the restricted

approach is the preferable course for this Court to

follow.

I do not know if the Court would be assisted

by me going to these cases - the Court may be

familiar with them - but certainly if I could do so

just very briefly. In terms of the wider approach

as to joinder, if I could refer to Reg v Kray,

(1970) 1 QB 125, page 130, paragraph H. This case

of course involved the notorious Kray brothers and

others who were charged on the same presentment

with two murders. Paragraph Hon page 130, the

Reed(2) 24 8/11/91

Court of Appeal in a judgment delivered for the

court by Lord Justice Widgery, said this:

On the other hand, offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists

between them. Such nexus is certainly

established if the offences are so connected

that evidence of one would be admissible on

the trial of the other - - -

DAWSON J: But that is dealing with the second limb, is it

not?

MR GRACE:	Yes, this is discussing -
DAWSON J:	Do not worry about that.  If you can find a case

which says that even though the charges all arise

out of the same criminal episode, nevertheless they
are not founded on the same facts and therefore

should be severed, that would support your case.

MR GRACE:  I am unable to refer the Court to any such case.

DAWSON J: There may be some argument about what amounts to

a single criminal episode, but it does usually

start with something and end in arrest, does it

not?

MR GRACE:  Yes. The only way that principles to be applied

in cases of the first limb could be distilled is by

penalizing the cases that have restricted joinder

in second limb cases, in my submission. That is

why there is reference to these second limb type

cases. Perhaps the high point was reached in the

case of Ludlow. Perhaps before I go to Ludlow, if

I could just complete the quotation from Kray:

Such nexus is certainly established if the

offences are so connected that evidence of one would be admissible on the trial of the other,

but it is clear that the rule is not

restricted to such cases.

Now that qualification, "but it is clear that the

rule is not restricted to such cases" has been the

subject of qualification by this Court in

subsequent cases involving sexual offences

particularly, and if I could refer the Court to

Sutton, (1984) 152 CLR 528, at page 541.

TOOHEY J:  Mr Grace, I am not sure where this argument is

going. I take it you are not suggesting that these

cases have any authority of themselves to support

your argument in regard to common factual origin?

MR GRACE:  No, they are not.

Reed(2) 25 8/11/91

TOOHEY J: But you are seeking to transpose them into that

area?

MR GRACE:  Yes, I am, Your Honour.

TOOHEY J: Well, what is the justification for doing that?

MR GRACE: Well, the dividing line between what is a common

factual origin and what is a series of offences of

the same or of similar character may not be

altogether clear and it may be that the same

principles are applicable to both limbs.

TOOHEY J: Well it may be.

McHUGH J:  What is your submission? Is it or is it not?

Are they the same or different?

MR GRACE: Well, the submission is that the restricted

approach, which is suggested in Sutton, by

His Honour Justice Brennan, in respect of the

desirability of cross admissibility of evidence

between sets of individual counts on presentments

ought to be the same principle that is applied in

relation to the first limb.

TOOHEY J: And where does that appear?

MR GRACE: That appears at page 541 of Sutton. If I could

refer the Court to-the bottom of page 541.

His Honour Justice Brennan says:

When two or more counts constituting a

series of offences of a similar character are

joined in the same information, a real risk of

prejudice to an accused person may arise from

the adverse effect which evidence of his
implication in one of the offences charged in

the indictment is likely to have upon the

jury's mind in deciding whether he is guilty

of another of those offences. Where that

evidence is not admissible towards proof of

his guilt of the other offence, some step must

be taken to protect the accused person against

the risk of impermissible prejudice.

Sometimes a direction to the jury is

sufficient to guard against such a risk;

sometimes it is not. Where a direction to the jury is not sufficient to guard against such a

risk, an application for separate trials

should generally be granted. There may be an

exceptional case where countervailing factors

appear but I do not presently foresee them.

As Lord Cross of Chelsea observed in Director

of Public Prosecutions v Boardman, so long as

the general rule excluding similar fact

evidence is maintained "the courts ought to

Reed(2) 26 8/11/91

strive to give effect to it loyally and not,

while paying lip service to it, in effect let

in the inadmissible evidence by trying all the

charges together". It would be misleading for

a judge to require some further "special

feature of the case" - the criterion adopted

by Lord Pearson in Ludlow v Metropolitan

Police Commissioner - before giving a

direction for separate trials. The purpose of

provisions such as s.278 is to avoid the

technicalities and rigid rules of criminal

pleading and procedure, but not to impair the
administration of criminal justice. Irvine CJ
pointed out in R v Brent with respect to the
corresponding Victorian provision, that it did

not "intend to introduce any fundamental

alteration in the general rule that the

tribunal to determine the guilt or innocence

of a person charged should not be affected by

the evidence given in relation to another

charge - certainly not the evidence given by

another person in relation to another charge."

The price of dispensing with the technicalities and rigid rules of criminal

pleading and procedure is the imposition upon

the trial judge of the onerous function of

directing the course of proceedings to ensure

that justice is properly administered. To that end he is given a discretion to order

separate trials. Where the evidence

admissible on one count is not admissible on

another, and in consequence there is a real

risk of impermissible prejudice to the
accused, the sound exercise of the discretion

generally (if not universally) requires a

direction for separate trials.

TOOHEY J: But that is not to say, is it, that the rule may

not be operative? It is really a warning to trial

judges in the exercise of their discretion.

MR GRACE:  It may be inoperative. The first limb may be

inoperative, if there is not cross admissibility of

evidence, it is submitted. And that is supported,

in my submission, by what His Honour

Justice Brennan had to say.

Subsequently, in the case of De Jesus v Reg,

61 ALJR, that supports the views of Justice Brennan

in Sutton. If I could refer specifically at

page 3, in the second column, the second-last

paragraph, His Honour Chief Justice Gibbs said:

Since the evidence on one count was

inadmissible on the other, Sutton v The Queen
required it to be held that the two rapes

should not have been joined in the one

Reed(2) 27 8/11/91

indictment. There can be no doubt that the

joinder was highly prejudicial to the

applicant - indeed, it seems to me that in

this case, where the applicant was raising an issue of identity in one case and an issue of consent in the other, the jury would

inevitably have been influenced by the fact

that the offences were tried together to find

against the applicant on both issues.

At page 7 of the same judgment, in the judgment of

His Honour Justice Brennan, the second column at

paragraph D:

Once it was conceded that the two sets of

offences were part of a single series, it was
for the judge in the exercise of his

discretion to grant or refuse the application

for separate trials. I have already stated my

view in Sutton as to the way in which the

exercise of that discretion should be

approached and it is unnecessary to repeat it.

Suffice to say that when the admission of the evidence admissible on the charges joined in an indictment carries the risk of

impermissible prejudice to the accused if the

charges are tried together, separate trials

should be ordered. There is no requirement

that some further "special feature of the

case" appear before separate trials are

ordered. I agree with the Chief Justice that

sexual cases are likely to arouse prejudice

and that a direction to the jury is unlikely

to give sufficient protection to an accused.

Though I would not place sexual cases in a

special category for the purpose of applying

the general statement I made in Sutton, it

would be an extremely rare case in which the

difference in the view expressed by the Chief

Justice and my view would result in a different exercise of discretion.

This was a clear case where separate

trials were essential to avoid impermissible

prejudice but the inability to find a further

special feature of the case led to a

miscarriage of the discretion. In

consequence, evidence of an impermissibly

prejudicial kind was admitted on the trial of

each set of offences.

And the appeal was allowed.

That case, of course, was run before the trial judge and the Court of Criminal Appeal on the basis

that the decision in Sutton was not referred to in

argument. And it was certainly stated by counsel

Reed(2) 28 8/11/91

in the High Court and certainly implied in the

judgments that the concession that the two sets of

offences were part of a single series was not
properly made based upon the decision in Sutton.

The decision in Hoch v Reg further supports the principles enunciated in Sutton and DeJesus,

and the case of Reg v Collins is perhaps an example

of the application of those particular principles

to second limb sexual cases subsequent to DeJesus

and Sutton.

Now, I reiterate it is not argued, and I am

restricted from arguing by the restricted nature of

the grant of special leave, that there was a
misexercise of discretion in respect of severance;
but it is maintained that ab initio these charges
could not be properly joined because there was not
the substantial element of cross admissibility

necessary to justify the particular joinder.

In the outline of submissions I have indicated

that in a subsequent trial - if there were separate

trials in respect of the shooting counts - the

appellant would have been in a position to argue

issue estoppel in respect of allegations of

involvement in the bombing to justify Crown

contention that the shooting was as a result of

consciousness of guilt of the bombing. However, if

there were separate trials and, of course, the

evidence of the shooting was admissible on the

bombing - which it is conceded it was

admissible - that would not allow the appellant to

enter a successful plea of autrefois acquit in

respect of that particular evidence. And if I

could refer the Court to Connelly v DPP and - - -

McHUGH J: But how does this help at all? The question has

to be determined as at the time of charge, and what

happened subsequently is of no relevance. If the

Crown were entitled to join these counts at the

time when they were referring the indictments, then

that is it.

MR GRACE:  In my submission they were not so entitled

because of the absence of a common factual origin.

McHUGH J:  I understand that point, but what has the

Connelly point, or autrefois acquit or issue estoppal got to do with it?

MR GRACE:  In terms of what would flow from separate trials.

McHUGH J: But they only go to arguments about discretion.

MR GRACE: Yes. Perhaps, for the sake of completeness, to

refer in Sutton once again to what His Honour

Reed(2) 29 8/11/91

Justice Murphy had to say in relation to the effect

of a Crown theory not being ultimately proved. At

page 538 in Sutton, His Honour said this at the

second paragraph at the top of the page:

The prosecution took the risk of the

whole trial miscarrying by unfair prejudice if

it failed to establish that the applicant

accused was involved in all three incidents.

The discretion to order separate trials "at any state of a trial" ..... protected the

accused in case the evidence failed to

substantiate the Crown allegations which

warranted joinder of the charges. If that

would not be enough to avoid injustice, the

jury could be discharged, or on appeal any

conviction set aside.

His Honour Mr Justice Murphy was the only Judge to

make any reference to that particular aspect of the

matter.

DEANE J: But that would be not because the joinder was

outside the power given by the rule. It would be

that with the benefit of hindsight you could see
that the effect of the joinder was that the verdict

was unsafe and unsatisfactory which is a different

question.

MR GRACE:  Yes, it is certainly a different question, and it

is not the subject of any ground of appeal.

DAWSON J: And Demirok is a case which demonstrates that

starkly.

MR GRACE:  Yes, and I appreciate there must be limits as to

what use can be made of the hindsight argument, and

certainly the extent of that limit, I am unable to

point to, but it is perhaps relevant even at the

low end of the scale to point to the fact that

there was an acquittal on all the bombing counts as

indicative of the fact that the Crown theory which

was a justification of the joinder was not made

out.

The other aspects concerning the question of miscarriage and denial of fair trial are referred

to in the outline. I do not know if any useful

purpose could be served by me referring to the

cases referred to in those submissions except to say that most of the cases will be well known to

Your Honours.

Perhaps one point that requires some

consideration is, what would be the effect if this

Court was to rule that the joinder was impermissible? Would that make the trial a

Reed(2) 30 8/11/91

nullity, or would it be a mere irregularity? In my

submission, it would not make the trial a nullity.

It would be a mere irregularity which resulted in a

miscarriage, and support perhaps for that

proposition can be found in Ryan v Reg,

(1982) 149 CLR 1. There, there was an

impermissible joinder and the question on appeal

related to a sentence point, but the appeal

proceeded on the basis that the trial was not a

nullity, but that the trial proceeded irregularly

and resulted on sentence in an impermissible

imposition of sentence by the Court of Criminal

Appeal.

At page 22 in the judgment of His Honour

Justice Brennan, there is reference to the joinder

question, and later at page 24, the first paragraph

on page 24, His Honour Justice Brennan says this:

The count of trafficking had been joined

irregularly in the same presentment with the

four counts of handling stolen goods. Neither

nexus required by rule 2 in the Sixth Sch. was

available to support the joinder. The counts

were neither founded on the same facts nor

formed a series of offences of the same or a

similar character.

Then His Honour went on to discuss the implications in the interpretation of section 569. There was no

suggestion in any of the judgments of Their Honours

in that case that the trial was a nullity, and it

proceeded on the basis that there was an

irregularity.

Contrary to that particular finding of nullity is the case of Newland, which I refer the Court to

not for the purposes of seeking to endorse it, but
for the sake of completeness. It was a decision of

the Court of Appeal in England, (1988) 1 QB, at

page 402. In that case, there was an improper

joinder and the question that was argued on appeal

was whether the fact of the improper joinder led to

a conclusion that the indictment was invalid or

whether the proceedings that flowed from it were

invalid.

It was held that on appeal, the section of the

Criminal Appeal Act that was relevant applied only

to a valid indictment. So that the indictment

being invalid, the trial judge had misinterpreted a

section and had acted without jurisdiction in

ordering separate trials; that is, he

misinterpreted the proper provisions of the

presentment rules.

Reed(2) 31 8/11/91

That, since the proceedings ensuing after

arraignment flowed from pleas to an invalid

indictment, no valid trial was commenced - - -

MASON CJ:  Mr Grace, we need not trouble you further on that

point.

MR GRACE:  That was the only matter I sought to say by way

of conclusion in relation to the joinder point.

If I could turn to the sentence point, the appellant was sentenced on three counts that he was

convicted on. The first count was count 9,

attempted murder, where he received a sentence of

imprisonment of nine years. The second was

count 10, where he received a sentence of

imprisonment of seven years, three years to be

concurrent with count 9, and the third was
count 11, where he received a sentence of nine

years, which was totally concurrent.

The total effective sentence imposed was 13

years with a minimum of 11. No credit for

pre-sentence custody in maximum security

imprisonment, of two years, four months, was given.

The appellant was on remand, bail refused, during

that period. No reasons were given by the learned
trial judge in his reasons for sentence, which are

found at page 30 of the appeal book, as to the

adoption of that particular course.

Perhaps if I could just briefly refer to

page 30 where the sentences are set out, the last
paragraph of the reasons for sentence on page 30
says this:

In the imposition of that sentence, I have taken into account the fact that you have been in custody awaiting trial for approximately 2 years. Accordingly, you will not be entitled

to receive credit for that period of pre-sentence detention. As I said, the effective	sentence is accordingly a sentence of 13 years
and I direct that you serve a period of 11
years before you become eligible for parole.
The phrase "effective sentence" has some

interchangeable meanings when one looks through the
history of what happened subsequently.

Section 16(1) of the Penalties and Sentences Act

1985 Victoria provides that any period of time

during which that person was convicted of an

offence other than murder is held in custody prior

to conviction shall be reckoned as a period of

imprisonment already served by that person under

the sentence of imprisonment imposed, unless the

court otherwise orders.

Reed(2) 32 8/11/91

I have provided to the Court a number of

extracts from the parliamentary debates at the time

of the introduction of this particular Act.

TOOHEY J:  Mr Grace, could I make sure I understand what the

argument is here. Is it that the trial judge did

not direct his attention to section 16?

MR GRACE:  No, the trial judge did direct his attention, but

he ordered that pre-sentence custody not be

credited.

TOOHEY J: But he did say, as I read his judgment, on the

basis that he had taken that into account in fixing

the sentences.

MR GRACE:  Yes.

TOOHEY J: Well then, what is the complaint?

MR GRACE:  The complaint is that, firstly, the period of two

years is in fact, as will be referred to in later authority, transcribed to a period of three years

and six months, because His Honour failed to take

into account the effect of remissions, and neither

did the Court of Criminal Appeal, the argument

being that in order to serve two years four months

one has to be sentenced to three years six months.

The remission system in Victoria is that one gets

credit for a third of points - - -

DAWSON J:  I get confused with all the changes but at this

time did the court hold itself entitled to take

into account remissions?

MR GRACE:  Yes.

DAWSON J: It had reached that stage?

MR GRACE:  Yes, it had. The parliamentary debates -

TOOHEY J:  I am sorry, can I just stay with this for the

moment? In other words, if the trial judge is
minded to impose a period of seven years

imprisonment but recognizes that the prisoner has

been in custody for two years and it is not enough

to say "Well I will give you five years", on your

argument, he has to say that that two years in fact

represents, notionally, a longer period of custody?

MR GRACE:  Yes. The trial judge has to order, pursuant to

the section, that he has not reckoned, as a period of imprisonment, the period already served by that

person prior to sentence.

Reed(2) 33 8/11/91

DEANE J:  Was it not common ground on the leave application

that, in the light of subsequent decision in

Victoria, there was something wrong here?

MR GRACE:  Yes.

DEANE J: was this what was common ground?

MR GRACE:  I do not believe it was perhaps, with respect,

properly understood by counsel for the respondent

on the special leave application as to what was

meant by three years six months as compared to the

two years four months, and I recall a debate

between Your Honour and Mr Bongiorno, who then

appeared for the respondent, as to what the effect

of remissions and calculations was. But it was

conceded, as I understand it, that the subsequent

decisions of the Court of Criminal Appeal reflected properly the principles that ought to be applied by a sentencing judge in respect of the crediting of

pre-sentence custody. I understand my learned

friend has got some caveat to apply to what I just

said.

In the parliamentary debates it was clear

that, in the normal course of events, the

sentencing judge or judicial officer should give

credit for pre-trial custody. There were no

reasons given by His Honour, the learned sentencing

judge, in this case, and although that is a cause

of complaint it is not the substantial ground

argued.

It is certainly submitted that there was no

justification for the order given by the learned

sentencing judge and the effect was to increase the

sentence by three years and six months. I have set

out at paragraph 2.5 of the submissions a table

where it would perhaps be most easily followed.

The result of the sentencing order on the

individual offences is to produce the - - -

DAWSON J: Can I just understand how you are putting this

case? You refer to section 16(1), which was in

force at the time, which meant that the judge had
to take into account any period during which the
person convicted was held in custody prior to

conviction.

MR GRACE:  No. Section 16(1) provides that:

any period of time during which -

a person convicted of an offence, other than

murder -

Reed(2) 8/11/91

was held in custody -

prior to conviction -

shall ..... be reckoned as a period of

imprisonment or detention already served by

that person under the sentence -

of imprisonment imposed, unless the court otherwise

orders.

DAWSON J:  Now, the court did not otherwise order here?

MR GRACE: It did.

DAWSON J: It did?

MR GRACE:  The court otherwise ordered, but did not give any

reasons.

DAWSON J:	So that the period involved here can only be the period of imprisonment, not a period less
remissions or plus remissions.  It could only be
the, whatever it was, two years four months here,
under the section?
MR GRACE:	Yes, but the argument is that in order to serve

two years four months one must be sentenced to a

term of imprisonment of three years and six months.

DAWSON J: Yes, if you gave an additional two years, but so

far as this two years is concerned, if it is taken

into account, it is two years off and no more, or

two years four months off.

MR GRACE:	No, he has not deducted that period at all.
DAWSON J:	I know he has not, but if he had, all it would be

would be two years four months, not three years six

months.

MR GRACE:  No, with respect, it would be three years six

months. It would be the equivalent of serving

three years six months.

DEANE J:  What you say is, if the appropriate sentence was

three years six months, the judge should say, "The

appropriate sentence is three years six months,

that would involve two years in imprisonment, you

have already served two years in imprisonment,

therefore giving credit for the two years you have

served the appropriate sentence"?

MR GRACE:  Yes. Well, in terms the practice is that judges

do not do.

Reed(2) 35 8/11/91

TOOHEY J:  No, but that is the theory behind your argument,

is it not?

MR GRACE:  Yes.

McHUGH J: But there would be a fallacy in it, would there

not, because he would be let out, then at the end

of the two years, and without any further sentence

being in prison, whereas if he had been in prison,

he would be let out, but with a balance of a

sentence still to be served?

MR GRACE:  I do not quite follow what Your Honour just said.

McHUGH J: Well, supposing the judge said - somebody had

been in prison for two years - the judge said,

"That is the equivalent of three years four months,

therefore I will not impose any further sentence on
the man; I will let him go today". What I am

suggesting to you, you cannot compare the two

things because if, in effect, he had been given

three years four months, true he might have been

released after two years, but he would still have
the balance of his sentence to serve

non-custodially.

MR GRACE:  Yes, I follow what Your Honour has to say, but

the effect in this case was that the sentence of

13 years dates from the date of the sentence.

McHUGH J: But on this particular case it dated from the

date the judge imposed the sentence.	He exercised
his power under 16(1).

MR GRACE:  Yes. So the learned sentencing judge imposes a

sentence of 13 years with a minimum of 11, by not

crediting the pre-sentence custody. That was

increased by three years six months.

BRENNAN J: What is meant by the "minimum of 11"? Is that a

non-parole period?

MR GRACE:  Yes.

BRENNAN J: Under what section?

MR GRACE: That is under section 17 of the Penalties and

Sentences Act. Perhaps the point I am seeking to

make would be elucidated if I refer the Court to

the two unreported decisions of the Court of

Criminal Appeal which were delivered subsequent to

the judgment of the.Court of Criminal Appeal in

this case.

DEANE J: And I think you should withdraw your assent to the

way I put it to you.	On reflection it was not
helpful to you.

Reed(2) 36 8/11/91

MR GRACE:  Yes, I withdraw it.

BRENNAN J: What is meant by section 16. With provisions,

it was to:

be reckoned as a period of imprisonment or

detention already served.

Is that a period of imprisonment already served

under the head sentence?

MR GRACE:  Yes, and the minimum.

BRENNAN J: If it is served under the head sentence, what is

the significance of the parole provisions?

MR GRACE:  One is entitled, in Victoria, to

remissions - putting aside cases of murder, but in
every other case - equivalent to one-third of the
head sentence and the minimum term. So that the

sentence of 13 years, if one takes one-third off

that is approximately four years, would be

equivalent to a sentence of nine years, let us say, and the sentence of 11 years would be equivalent to

somewhere in the vicinity of seven and a half

years, let us say. What His Honour did was to say that the two years four months that he had already served was, in effect, added to the sentence. That

two years four months, in my submission, is

equivalent to three years six months.

DAWSON J: That is the point, I am afraid I do not quite

understand it, because if he had given him the

benefit of the two years four months, or if the Act

had, that is all he would get, two years

four months, not three years six months. In other

words, if he was sentenced to nine years, then at

the moment of imposition of that sentence it would

really be six years eight months, and then you go

from there.

MR GRACE: Perhaps I could come back to that point - - -

DAWSON J: Very well.

MR GRACE:  - - - after referring Your Honours to the case of

Tippett and Ball, and the case of Roderick. The

first is Reg v Tippett and Ball, which is an

unreported decision of the Court of Criminal Appeal
of Victoria, delivered on 17 November 1989. At

page 3 of that judgment, the penultimate paragraph,

His Honour the Chief Justice said this:

It is against the sentences so imposed

that the applicants now seek leave to appeal. In substance the ground of appeal is that in

each case the sentences are manifestly

Reed(2) 37 8/11/91

excessive, but there is one particular respect

in which that contention was developed and

that respect was based upon the observation
that the time spent in gaol pending trial was
taken into account.

In the case of Tippett, for instance, the learned Judge said:

"I sentence you to a period of ten years

imprisonment and I direct that you serve

a period of eight and one-half years
before which you will not become eligible

for parole, bearing in mind, of course,

that you have already spent a year and a

half in prison."

After the sentence had been passed there was a

discussion as to what was meant by what

His Honour said. The discussion was actually

between counsel for the applicant Ball and

His Honour, but in the course of it His Honour

made it plain that what he intended was that

the sentence should begin from the date it was

imposed and that, since he had taken into

account the time spent in gaol pending

sentence, the applicants would get no credit

or no additional credit for that period. The

effect of what His Honour did was to increase

the sentences very substantially. However the

matters are calculated, the fact is that the

applicant Tippett spent fifteen months in gaol

awaiting trial on these charges, and when one

considers that, had that period been served as

part of an ordinary sentence, it would have

been subject to reduction by remissions, it

can be seen that the total effective sentence
being imposed for this particular series of

offences was closer to twelve years than any

other figure.

And just going back to what she had been sentenced

to, there had been a period of seven and a half

years with a minimum of five years for Ball, and

for Tippett there was a sentence of ten years with

a minimum of eight and a half years.

So what His Honour was saying then in respect

of the sentence of ten years, and taking cognizance
of the fact that he had served 15 months in gaol

awaiting trial on the charges and that that would

have been subject to remissions, it can be seen

that -

DAWSON J:  I am sorry, but what would have been subject to

remissions? You see, that is the point. The

Reed(2) 38 8/11/91

15 months would never have been subject to

remissions.

MR GRACE:  Yes, it would, with respect, Your Honour.

DAWSON J: How? All you would say is, "I sentence you to

ten years", and if the judge had then said nothing,
then the Act would say he was entitled to a credit

of 15 months, not 15 months plus remissions.

MR GRACE:  No, except that that 15 months would be

equivalent to a sentence of approximately two years

with remissions.

BRENNAN J: But do you not have to look at the remissions nd

ite parole sections to see what they operate on?	I
mean, if they do not operate on the pre-sentence period that is the end of your argument, is it not?

MR GRACE:  But they do, with respect, Your Honour.

BRENNAN J: Well, do they? I do not know. Where does one

find that it operates on that precept?

MR GRACE: Section 16(1) in terms indicates that.

MCHUGH J: But -

unless the court otherwise orders -

and in this case it did order.

MR GRACE:  Yes, I appreciate that, Your Honour, but the

effect of that order was to increase the sentence

on His Honour's calculation by two years four

months. That calculation was supported by the months, but in my submission, the reality was that

that calculation would increase it to three years

six months.

TOOHEY J: But your complaint is not with what the judge did

in relation to section 16. Your complaint is that

by reason of what he did a sentence was imposed

which you complain is manifestly excessive.

MR GRACE:  It is a two-fold complaint, with respect,

Your Honour. The first complaint is - and it is

all encompassed within one perhaps - that

His Honour, in my submission, had no justification

for departing from the normal course, that is, that

the order made was without reasons. There were no

reasons given as to why he did that because he

purportedly imposed sentences that befitted the

crimes, and there is no quarrel with the sentences

he so imposed. The quarrel is that in not abiding

by what one could phrase "truth in sentencing",

Reed(2) 39 8/11/91

His Honour has in terms increased "through the back

door", if I could use that phrase, with respect,

the sentences, in effect, he imposed. He did not

give any reasons for so doing and, in my

submission, there is no justification for him

making the order that he did.

Even accepting what His Honour

Mr Justice McHugh had to say, that the effect of

remissions ought not to be a factor, one can see on
the table that I have reproduced in paragraph 2.5,
even taking off the figure of three years, six

months from the effective figures, the figure of

one year and two months, one still gets sentences

which are at the very top of the range.

On my calculations, in respect of at least one

of the sentences, if one takes into account the

three years, six months, the total effective

sentence was ten and a half years, which exceeded the maximum of ten years. Just to answer briefly

what His Honour Justice Brennan had to say about
where the power is to take into account remissions,

section 60 of the Corrections Act, Victoria,

subsection (4) provides that:

If under section 16 of the Penalties and

Sentences Act 1985, a period during which a

prisoner is held in custody before being

sentenced is reckoned as part of a prison

sentence, then for the purposes of this

section and the regulations the prison

sentence begins at the beginning of that

period.

BRENNAN J: That means that instead of a prison sentence

starting on the day on which it is imposed, under

section 16 it is deemed to have started on the day

on which he is taken into custody.

MR GRACE: Yes.
BRENNAN J:	So for the purposes of that sentence as a whole,

you reckon remissions and so forth, and parole.

MR GRACE:  In terms of the sentence imposed in this case,

there was a sentence of 13 years with a

minimum - - -

BRENNAN J:  In terms of the sentence imposed in this case,

that had no operation, because 16 was excluded.

MR GRACE:  That is correct, but it would have had the

operation if the order had not been made.

BRENNAN J: That is right.

Reed(2) 40 8/11/91

DEANE J: But is not your point this, that what the Court of

Criminal Appeal rejected in this case as an ingenious argument, it has subsequently said was

correct?

MR GRACE:  Yes.

DEANE J: Is that contested?

MR WEINBERG:  We might simplify the matter in this way. It

is not contested that the effect of section 60(4)

of the Corrections Act which has been read to the
Court would have had the effect that had His Honour

Mr Justice Vincent adopted a different course and

not done what he did, the prisoner would have been
entitled to remissions on the period that he served
pre-custody. That is established.

Secondly, it is conceded that the principles

laid down by the Victorian Court of Criminal Appeal
in the two subsequent judgments seem to be at odds

with the comment made by the Court of Criminal

Appeal that the argument advanced was ingenious and

therefore seemingly disparaged or not accepted by

the Court.

DEANE J:	Does that not mean that if the appeal fails on the
joinder point, the matter should go back to the

Court of Criminal Appeal so the question of

sentence can be looked at in the light of

subsequent decisions?

MR WEINBERG:  If my friend's submission is correct, then one

count has resulted in a sentence which exceeds the

statutory maximum.

McHUGH J: That is count 10?

MR WEINBERG:  That is count 10, that is correct. And we

would not contend other than that the matter

properly should be rectified, if that submission is

correct.

DEANE J: But even if that point were not correct, in view

of the conflict between the rejection of the

ingenious argument and what the court has said in

subsequent cases, would it not be appropriate for

the sentence to be re-examined by the court?

MR WEINBERG:  Your Honour, the court, in the subsequent

cases, did not advert to the observations in this
case and the matter was not fully argued, and I do

not think it has been fully argued in any of the

three cases in that sense. They seem to be

observations and the respondent would not demur

from what Your Honour has said. It would either be

a matter for this Court to resolve the issue or to

Reed(2) 41 8/11/91

remit it to the Court of Criminal Appeal to resolve

the issue.

DEANE J: But it is such a basic point, and if the Court of

Criminal Appeal has not, as it were, fully directed

its attention to it, it would be preferable that it

deal with it, would it not?

MR WEINBERG: In this particular case, Your Honour. All we

would say in terms of future matters is that there

is an entirely new sentencing regime about to start

in Victoria, so there is not a plethora of problems

likely to continue. It is not a point of any great general future importance. Remissions are about to

be abolished entirely in Victoria under so-called

truth in sentencing.

But we accept what Your Honour has said. On

its face, if the later judgments of the Court of

Criminal Appeal correctly state the law, then an

anomaly appears to have occurred in relation to one

count. It does not follow that the court would
necessarily, in those circumstances, interfere with
the total sentence. That would be a matter for the

court itself, in our respectful submission, and we

would not want to trouble this Court with the

details of calculations and so forth. That is

really our position.

BRENNAN J: Then if there is a new system coming in, the

appropriate order for this Court to make is to
allow the appeal to set aside the order of the

Court of Criminal Appeal which refused leave to

appeal against sentence, and remit the matter to

the Court of Criminal Appeal.

MR WEINBERG:  But in allowing the appeal only for the

purpose of permitting full argument to take place

before the court.

BRENNAN J: Yes.
MR WEINBERG:	Not in any sense accepting or conceding that

the later views of the Court of Criminal Appeal

represent the correct standard - - -

TOOHEY J: Because your concession is confined to the

specific anomaly of a statutory sentence having

been exceeded.

MR WEINBERG:  It is, and we are not conceding that the later

decisions of the court are correct, if that could

be made clear. If the Court pleases.

MASON CJ: What do you say, in the light of what Mr Weinberg

has told us, Mr Grace?

Reed(2) 42 8/11/91

MR GRACE: There is still a matter which is extant, so to

speak, and that is whether the learned sentencing

judge was justified in making the order that he did

under section 16(1).

McHUGH J: Well, that is not the ground of appeal, is it?

MR GRACE: Yes, it is, Your Honour. The ground of appeal

was that the Court of Criminal Appeal was wrong in

holding that the learned trial judge did not err in
ordering that the time spent by the applicant in
pre-sentence custody would not be credited to the
applicant in relation to the sole sentence imposed.

In my submission the learned sentencing judge erred

in that respect in not crediting the pre-sentence

custody and perhaps I could support that

proposition with the transcript of the

parliamentary debates which I have previously

referred to and specifically at page 567.

MASON CJ: But, Mr Grace, I do not see why you need to refer

to the parliamentary debates. It is a matter of
construction of section 16, but in the light of
what Mr Weinberg has put to us, why should we not

remit the matter to the Court of Criminal Appeal?

MR GRACE:  Because it is put simply as this, Your Honour,

that pre-sentence custody ought to have been

included in a sentence. He should have been given

full credit for that pre-sentence custody. There

was no basis for him not getting that credit.

MASON CJ: But can the Court of Criminal Appeal not look at

that in the light of the subsequent decisions?

MR GRACE:  The subsequent decisions really refer

specifically to the method of calculation, but also

perhaps - - -

MR WEINBERG:

Your Honour, we would not object to that

question being agitated before the Court of

Criminal Appeal if the matter were remitted.	We
certainly would not insist that the matter be remitted only on a very limited •....

MR GRACE:  It is certainly adverted to in Roderick and

Tippett and Ball.

MASON CJ: Yes, but in the light of what Mr Weinberg has

specifically said now, why should the matter not be

remitted to the Court of Criminal Appeal?

MR GRACE:  The question is whether it is a desirable

sentencing practice, I suppose, that pre-sentence

custody be credited or not.

Reed(2) 43 8/11/91

McHUGH J: Well, the judge has got a discretion. It depends

on the circumstances of the particular case.

MR GRACE:  Yes. There is authority for the proposition

however that if he exercises that discretion

adversely to a prisoner he ought to state reasons for that, and in this case the learned sentencing

judge gave no such reasons whatsoever.

McHUGH J: Well that is not a ground of appeal.

MR GRACE: Well, it perhaps reflects upon the mis-exercise

of discretion and reflects an error of sentencing

principle. The case of Reg v McHugh is perhaps a

case that is of relevance. It is a decision of the

Court of Criminal Appeal of New South Wales,

delivered in 1985, (1985) 1 NSWLR 588, where it was

held that:

It is a desirable sentencing practice that,

where there has been a pre-sentence custody

period exclusively referable to the offence in question, the commencement of the sentence and the non-parole period be backdated to the

commencement of the pre-sentence custody

period.

And support for the proposition that it may be

an error of sentencing principle for reasons not to

be stated, I refer the Court to Reg v Giakis,

(1988) VR 973.

DEANE J:  Mr Grace, you only got leave, in relation to

sentence, on the basis that you were getting leave

in relation to joinder and, as I followed it,

Mr Bongiorno conceded that there was an anomaly in

the sentence imposed here when read in the context

of what had been said in subsequent judgments.

Well now, I still do not follow why, in the light of what Mr Weinberg has said, you are arguing that

the appropriate course is not to send it back to

the Court of Criminal Appeal on the question of

sentence but that, particularly in a context where

we are told there is no continuing point of general

importance involved, this Court should get involved

in dealing with these points about sentence.

MR GRACE:  With respect, there is a continuing point. The

non-continuing point referred to by

Mr Weinberg - - -

DEANE J:	I mean, a continuing point of real principle.
MR GRACE:	There is a continuing point of real principle,

and that is the crediting of pre-sentence custody.

The question of remissions is a secondary point

and, in my submission, the Sentencing Act 1991,

Reed(2) 44 8/11/91

which is yet to be proclaimed in Victoria, deals

with the question of pre-sentence custody in the

same manner as this Act.

McHUGH J: But section 16 gives the judge a discretion.

Whether he exercises it must depend upon the

circumstances of the cases.	We cannot lay down
any rule about that.

MR GRACE:	Yes, but the Court of Criminal Appeal in
Victoria, in the cases of Roderick and Tippett and crediting pre-sentence custody, and if I could
refer very briefly to what His Honour
Mr Justice Crockett said in Reg v Roderick - - -

BRENNAN J: But you are not answering the question which was

put to you by Justice Deane. Why is it that that

point that you now wish to argue is not suitable

cases, but why cannot the Court of Criminal Appeal decide which set of cases, if either, they prefer?

for consideration by the Court of Criminal Appeal?

MR GRACE:	Because the principles governing pre-sentence custody may have already been determined by the Court of Criminal Appeal in the cases of Tippett
and Ball and Roderick, where it was stated
categorically that it is not a desirable practice,
and it is unwise for a sentencing judge not to
credit pre-sentence custody.
BRENNAN J:	If they have so decided and it goes back to the

Court of Criminal Appeal you will succeed.

McHUGH J: It is in your favour.

MR GRACE:	I appreciate that.
McHUGH J:	I do not know why you are persisting. You are

like the man who went in to get his hat.	You
might be in trouble here.	You got some

concessions out of your opponent.

MR GRACE:  Perhaps I was hoping for an answer by this Court

that pre-sentence custody would be credited to the

appellant. That is the only reason for my

persistence, but I understand and accept what

Your Honours have to say and I make no further

submissions.

MASON CJ: The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 12.19 PM SHORT ADJOURNMENT

Reed(2)	45	8/11/91
UPON RESUMING AT 12.43 PM:

MASON CJ:  The Court need not trouble you on the first

point, Mr Weinberg.

The scope of the first limb in rule 2 of

Schedule Six of the Crimes Act is a question of

some importance. However the true scope might be

defined, in our view this case falls within it.

That being so, it is undesirable to articulate the

limits of the first limb in a case where the limits

are plainly not exceeded. The case therefore is an

unsatisfactory vehicle for construing the first

limb. The Court would add that it considers that

the facts on which the shooting charges were

founded included the facts relating to the bombing

charges. Accordingly, the appropriate order is to

revoke the grant of special leave on the joinder

point.

As to the question of sentence, in view of the

discussion between the Court and counsel, the
appropriate order is that the appeal be allowed,
the order of the Full Court refusing leave to

appeal be quashed, and the matter be remitted for

further consideration by the Full Court.

AT 12.44 PM THE MATTER WAS ADJOURNED SINE DIE

Reed(2) 46 8/11/91