Reg v Lewis

[1988] HCATrans 84

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No Dl3 of 1987

B e t w e e n -

THE QUEEN

Applicant

and

MICHAEL ANTHONY LEWIS

Respondent

Application for special leave

to appeal

WILSON J

BRENNAN J

DAWSON J

Lewis

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 MAY 1988, AT 2.20 PM

Copyright in the High Court of Australia

C2T 1 7 / 1 / AC 1 4/5/88

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

my earned friend, MR W.J. KARCZEWSKI, for the
applicant. (instructed by the Sol1c1tor for the

Northern Territory)

MR T.J. HIGGlNS, QC: If the Court pleases, I appear with

my learned friend, MR J. BREWSTER, for the respondent.

(instructed by Macph1llamy & Co)

WILSON J:  Yes, Mr Glissan.

MR GLISSAN: If the Court pleases, I hand up copies of our

outline.

Your Honours, this is a somewhat unusual

application for special leave in the sense, at

least, that it involves an appeal by the Crown

in right of the Northern Territory against the

acquittal of the accused by a Court of Criminal

Appeal and that it is based, essentially, so far

as the application for special leave is concerned,

on two procedural matters which have not directly,

so far as our researches at least reveal, been

decided by Your Honours' Court in that context.

The first is the question of reconstitution

of the Court at a time after which the hearing

had, in substance, been embarked upon and I should

acknowledge to Your Honours at this stage that

there is, perhaps, a threshold problem from the

point of view of the application for special leave

in that no active objection was taken to that course

by counsel who appeared at the appeal. That may

be, subject to Your Honours' hearing me in relation

to it, able to be fairly readily explained but

the important poin½ for which we actively seek
this Court's intervention in relation to, relates
to the second ground as it is set out in the outline;
that is to say that the Court determined the appeal

without having heard, or given the opportunity

for advancement of argument, the Crown in relation

Your Honours, I do not, if it is possible -

to the substantive point.

WILSON J:  Are you referring to the ground that the Court

would need to add at the time it handed down its

decision on ..... the unsafe grourid.

MR GLISSAN: Essentially, Your Honour, yes.

(Continued on page 3)

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MR GLISSAN:	Your Honour, if I could endeavour to encapsulate the events as they occurred before the Court of
Criminal Appeal. This was a matter in which the
respondent to the appeal was unrepresented at his
appeal and a somewhat unusual course was adopted. Counsel, whose standing is not, in our submission, from the
material,at all clear, who is referred throughout
as amicus curia but seems to take an active part
in relation to the appellant in the proceedings,
appeared in his interest. There is no other way, as we would put it to the Court, that Mr Tiffin's appearance can be regarded.
There were no grounds of appeal and there were some written materials placed before the court at
various times during the hearing, which extended over several days. On the first occasion the court was composed of the then Chief Justice of the Northern
Territory, Mr Justice O'Leary, and two other judges,
Their Honours Mr Justice Muirhead and Mr Justice Maurice.
The second or subsequent hearing the Chief Justice
did not sit and without chere being any direct advertence to the fact that the court changed its
constitution the matter proceeded. What had been
the subject of agitation on the first day and continued, in our submission, to the court to be the subject of agitation throughout, was an application for leave.

There was, at no time, as the transcript

reveals, any argument on the merits of the appeal.

There was a great deal of evidence called in relation

to certain matters which went to the preliminary question of whether it was appropriate to permit the application for leave to succeed, but there

was no argument on the merits of the appeal at all.

That occupied a great deal of the court's time and

as Your Honours will see from the application book,

some 600 pages of transcript. At no time was the

substantive question, or any of the substantive

questions which were ultimately to be found in the

document which appears at about page 600 of the

application book, ever agitated before the court.

(Continued on page 4)

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TOOHEY J:  Mr Glissm, is there a general provision in

the Northern Territory CODE requiring leave for

all appeals against conviction?

MR GLISSAN:  No, Your Honour, there is not.

TOOHEY J: What was it about, this matter that required leave?

MR GLISSAN:  Perhaps I can assist Your Honour in relation to

that. Section 410 of the CODE provides a provision

which is similar, if not identical, to the provisions

to be found in almost every jurisdiction in Australia;
that where a question of law alone is involved, there

is a right of appeal; where there is a question which

involves a question of mixed law and fact, then the

leave of the court is required and where there is an

appeal which is to be an appeal against sentence, the

leave of the court is required.

This was an appeal which, on any view of it,

involved questions of mixed law and fact, as we would

put it to the Court. Questions as to unsafe and

unsatisfactory, as it was ultimately determined by

the Court,invariably involve questions of mixed law

and fact.

DAWSON J: Is it customary to hear applications such as this

in two stages, one leave and then, when leave is

granted, an appeal?

MR GLISSAN:  No, Your Honour, it is not customary but it would

be, in our respectful submission, an inappropriate way

to test it in this case because time and again in the

course of the events that occurred in this particular

appeal, the judges were at pains to point out the unusual

nature of the course that they had embarked on in doing

precisely that and, indeed, that is said in terms by,

I think, Mr Justice Muirhead in the course of argument

where he says not only that he observes - at page 423

of the application book - he refers to the peculiar

and undesirable nature of the appeal but, Your Honour,

whether or not that was a cotm:non thing, whether or not

it was in the context of this case a unique thing,

matters, in our submission, nothing at all in the
context of this case because it was what the Court,

of its own motion, determined should be the course to

be followed by the parties and so far, at least, as

the Crown was concerned, that was the course which it

followed and it was denied the opportunity of being

heard.

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WILSON J:  Now, how do you put the point of general importance?

Is that the ground on which you would base the

application for special leave?

MR GLISSAN:  Your Honour, yes, for this reason: that it is,

in our respectful submission, important that Your Honours' Court exercise, in relation to

Courts of Criminal Appeal and appellant courts generally,

not only a role as declaratory of the substantive

law but also o:&ot:he pw,ocedural law. And there are

two serious vitiating factors present in the way the

Court of Criminal Appeal in the Northern Territory

conducted this appeal. One relates to the

reconstitution of the court. It may be that the fact that

objection was not taken to that would not permit

an application to Your Honours' Court to be made

if that were the only ground, but certainly - - -

WILSON J: Let us pause before going on with the second.

How far would it be true to say that the first

hearing, that is when the Chief Justice was presiding,

centred around discussions on matters of procedure
related to the clarification of the grounds upon

which the respondent sought leave to appeal?

MR GLISSAN:  Very substantially.

WILSON J: That was my impression from reading it. Now if

that were so and the matter begins again on

1 July, it was virtually a hearing de novo in

substance, was it not?

MR GLISSAN: Your Honour, except for this: it could, I suppose,

in some ways have been regarded as-the earlier

proceeding as an interlocutory proceeding but the

Court there made orders. The Court in its own

remarks from the Bench regarded itself as part heard

and it is quite clear from what the Chief Justice

said at,I think,page 232 of the application book,

that he certainly regarded the matters as being

such that the Court would need to maintain the

same constitution and that he regarded the Court as -

I am sorry it is at page 279 of the application

book and it is Mr Justice Muirhead who sat on the

subsequent appeal. This was said by Mr Ellis:

So there's lots of matters which

may well have been discussed between

counsel.

The Chief Justice said:

I suppose it comes back to what

Mr Tiffin said this morning, that if

we're to deal with this it's obviously

going to take time.

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Chief Justice O'Leary is recorded as saying:

Well I can understand Mr Lewis would want it dealt with today or tomorrow, but

really Mr Lewis just raises a lot of very

difficult questions that will have to be

explored.

And over the page

WILSON J: This is all very much an interlocutory proceeding

so far?

MR GLISSAN:  So far, Your Honour, indeed. But it is what

happens at page 280 on which we rely in that regard.

The prisoner says:

I was wondering if it does get

adjourned, will I have the same panel

in front of me? .....

Will I have the same judges? Will

you be here in the whole appeal or will

there be different judges?

And the Chief Justice there says:

Well, I think we may have to now

because we've embarked on it, you see?

If one then looks at

BRENNAN J: Embarked on what?

MR GLISSAN:  On the hearing of the appeal, as we would put

it, Your Honour.

BRENNAN J: The hearing of the appeal?

MR GLISSAN:  On the hearing of the application for leave

to appeal and that is all that was ever argued.

If I cannot convince Your Honours of that I cannot

get special leave, there is no question about that.

(Continued on page 7)

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DAWSON J: Is there some place you can identify the

distinction being made in the - - -

MR GLISSAN:	Yes, Your Honour.
DAWSON J:	Do not let me take you out of the course.

MR GLISSAN:  No, I will not. Your Honour, that occurs at the

judgment. The easiest way to answer Your Honour's

question is to invite Your Honour, if Your Honour

would be so kind as to come with me to page 630

of the application book - I am sorry, there is

one earlier page to which I need to refer the Court

before we come to that. At page 620,

Mr Justice Maurice at the top of the page says:

As far as the Crown's concerned, whilst

it may be that we will be able to decide the

matter without putting the Crown in the

position where it has to consider whether

it wishes to call evidence or not, we would

not decide it on a ground where it would be

unfair to the Crown to do so without first

giving it an opportunity to consider whether
it wanted to call evidence or not.

And then, at the bottom of the page, the court adjourned:

AT 4.46 PM THE MATTER WAS ADJOURNED INDEFINITELY

WILSON J:	Mr Glissan, that passage from Mr Justice Maurice,
is that not in the context that one of the subject-
matters that occupied a great deal of attention
was the desire of the respondent to agitate a ground
which focused on the negligence or the conduct of his defence by his counsel.
MR GLISSAN:	Yes, indeed.

WILSON J: And that evidence was led before the court, at

the instance of the respondent, bearing on that

question, and what M~ Justice Maurice is reserving

is the right of the Crown to call evidence in
relation to that, should it have become the subject
of leave to appeal. It never did become the subject

of leave to appeal, did it?

MR GLISSAN:  No, that is certainly so, and thus far there

is nothing which has fallen from Your Honour that

I would wish to take issue with but if I might do this, there are other matters in the course

of the argument which make it quite clear that

the Crown was directed away from any argument dealing

with questions of "unsafe" or "unsatisfactory",

the nature of the odontological evidence as it

came to be called in the context of the appeal

below, and, as well, directing it away from any

C2T21/l/ND	7	4/5/88
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consideration of those substantive matters. I

will take Your Honours to those - I hope I will

not have to take Your Honours to all of those

individual matters but at least nominate the

pages at which those remarks are to be found.

If I could answer Your Honour Justice Dawson's

question perhaps more fully this way by asking

Your Honour to look at page 631 where judgment

is being delivered on 17 July, the court having

reconvened after having adjourned the appeal.

Your Honours will see that counsel then appearing

for the Crown indicates that the Crown was

completely taken unawares by the turn of events.

Right at the beginning of that page:

All I can say is, Your Honour, that I

perhaps was under some misapprehension as

to the position that we'd all - or that the

court had arrived at - in some misunderstanding

as to today's function, in the sense that

as I understood the matter, if leave to appeal

was to be granted, the Crown was to be given

the right to consider its position -

,

and in relation to the matter which Your Honour

Mr Justice Wilson raised. But a little further

on:

Perhaps again it's my fault in the sense that

I had a misunderstanding as to the precise

nature of that point, and the fact that

Your Honours would be proceeding on other

points.	I didn't understand that to be the
case.

(Continued on page 9)

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MR GLISSAN (continuing):  Now, Your Honour, that is not

an utterance of counsel that proceeds from

negligence or a misapprehension of what had

occurred before. It is something that proceeds

from the precise nature of the proceedings as

they had gone before and in that regard we seek

to rely on what is dealt with when the CARROLL

case, or the question of the sufficiency of

evidence - and let me say this to Your Honour,

interrupting myself, if I may: there was no

argument which ever emanated from the accused

or any person representing him, or partially

representing him, or whatever standing Mr Tiffin

had; or which was raised by the bench for the

purpose of consideration by the Crown, or which

emanated from the Crown touching any of the general

issues that would go to a proper consideration of whether the verdict was safe or unsafe. All that was ever discussed, and that tangentially to what
was being considered by the Court, was the question

of the CARROLL case and its application to the

facts of this case. I do not know whether I have

made myself entirely clear in that submission,

but - - -

WILSON J:	The basic problem the court found that led them to think that the verdict was unsafe was the
view it took of the odontological evidence.

MR GLISSAN: Well, Your Honour, there is a ground on about

whether or not an application for leave - it goes to

whether or not the verdict of the jury was in

fact, or could properly have been regarded by

the c~urt as unsafe and unsatisfactory, and

we would respectfully submit that should that

arise, as it does in a manner that is associated

with this, Your Honours would look to that question

as well.

The Court in coming to the view which it

did disregarded, in our submission, the combined

effect of the circumstantial evidence in the
case.	What really happened so far as that aspect

of the case is concerned is that in delivering the

judgnents in the way that they are framed the

ourt's approach, as we would submit Your Honours

would hold it to have been, was to look at the Crown case,

at the end of the Crown case, rather than to look at the whole of

the evidence as it went to the jury. Now, it may

be that if there was a question as to the sufficiency

of the tooth mark evidence and the question as to

the sufficiency of the eye witness identification,

either of those individually would not have been
sufficient to support a verdict.

The combination of both, the one corroborating

the other, added materially to their weight, but
the most important factor which is not taken into

account in the proper way by the Court of Criminal

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Ap2eal was the effect of the failed alibi,

ana that quite clearly, taking the combination
of the three into account, as the case - - -

WILSON J:	Was there anything discrediting the evidence
of the mother? I thought that was evidence
that went to support an alibi.
MR GLISSAN:	Yes, that is so, but it - perhaps it begs

the question, Your Honour, to put it quite
as highly as I have, but it is nevertheless
the fact that the alibi must have failed for
the jury to have returned the verdict which it

did. It is nevertheless the fact that it must

have operated as a powerful corroborative or

supportive factor to the balance of the Crown

evidence in the way that alibis are traditionally

said to have done.

BRENNAN J:  Mr Glissan, you are now getting into the merits

of the case, are you not?

MR GLISSAN: Well, in an endeavour to - - -

WILSON J:	That :is possibly my fault.
MR GLISSAN:	Yes, is the answer to Your Honour's question.

(Continued on page 11)

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BRENNAN J:  Could I just take you back to Mr Justice Dawson's

question?

MR GLISSAN: Certainly.

BRENNAN J:  Is 620 and 631 the high point of the

observations falling from the court or in which
the court might have been regarded as having

agreed with counsel as to what the court was bent

on from the time when it was first reconstituted?

MR GLISSAN:  No. Your Honour, there are - I would endeavour

to put them in a very brief way - a number of times

at which what was being agitated before the court

was expressly the subject of judicial observation.

There is the early passage, I think, at 423 to

which I referred Your Honours earlier about the

unsatisfactory nature of the appeal.

BRENNAN J:  That was in relation to the issue of instructions

to counsel.

MR GLISSAN:  Yes.

BRENNAN J: Now, there are, are there not, questions of the

issue of instructions to counsel; questions of

leave and questions of the merits of the appeal

generally?

MR GLISSAN:  Your Honour, with respect, my answer to

Your Honour's question would be no in relation

to the latter because what we would put to

Your Honours is this: that at the outset - at the

very commencement of the adjourned proceedings -
the orders that had been made by the Chief Justice
on the first occasion in relation to the future
conduct of the case were expressly adopted by
the court as reconstituted. That is to say, they
were going - or the court intended to examine -
the merits of an application for leave and to try

to establish what the grounds were and throughout

the course of the case the Crown was deprived of

the opportunity of putting argument in relation

to the substantive matter by the court. For instance,

at page 462, Mr Justice Maurice says, in relation

to CARROLL's case when it, for the first time,

comes to the fore:

it's a decision on a matter of fact and,

therefore, it's no precedent for anything -

and at 463 suggests that the proper way to have dealt

with it would have been to make a submission to

the trial judge in relation to the direction that

was appropriate to it. I should, perhaps, go back

to 457 where, for the first time, the question -

any question - of the verdict not being supportable

C2T23/l/AC	11	4/5/88
Lewis

by the evidence is raised in any sense.	But the
important thing there, Your Honour, is -

BRENNAN J:	Where abouts on 457?
MR GLISSAN:	The first remark of His Honour Mr Justice Maurice,

he talks to Mr Tiffin:

I don't want to start you off on your

submissions without perhaps your first

distilling and refining the grounds of appeal

from the summary, so that we have a document

against which to measure what you may put,

and indeed the Crown has something a little

more disciplined to respond to -

WILSON J:	And that was on the second of the three-day hearing?
MR GLISSAN:	Yes, but there was no document at that stage,

Your Honour.

WILSON J: Well, there was one document - the document that

appears at - - -

MR GLISSAN:  At page 290, or thereabouts of the application

book, yes.

WILSON J:  But then, could I draw your attention, in this

respect, to the observation at the end of 2 July

which is 498.

MR GLISSAN: It is the last page of volume 2 of the book.

WILSON J: Now, the presiding judge, Mr Justice Maurice -

they discovered that they could sit on the next

day, that had not been apparent earlier and so

here is a summing up, is it not, at the top there:

I hope it's the last time we are going to have to impose on you -

this is to Mr Tiffin -

and it's anticipated then that we will try

and cover all aspects of the appeal against

conviction tomorrow, save perhaps whether

you need to go into evidence -

and that, of course, is the matter to which you

adverted earlier. '

(Continued on page 13)

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MR GLISSAN:	Yes.
WILSON J:	But there could not be any misunderstanding subject

to something Mr Justice Maurice said on 3 July but,

at that point at any rate, the Crown was on notice

that the next day the appeal against sentence on such

grounds as - - -

MR GLISSAN:	An appeal against conviction I think Your Honour means but - - -
WILSON J:	I beg your pardon, an appeal against conviction would

proceed.

MR GLISSAN:  On such grounds but none of those ground was an

unsafe and unsatisfactory ground. None of those grounds

went beyond a question of the sufficiency of a direction

by the trial judge in relation to that evidence.

WILSON J: Well, let us reserve the question of the unsafe -

the bringing in of the fresh ground for the moment.

MR GLISSAN: Well, the difficulty is, Your Honour, that the

court disposed of the appeal on that ground and the

Crown at no time on any view ever had an opportunity

to put any argument in relation to it. That, really,

is the crux of the case, so far as we are concerned.

WILSON J: Yes, I appreciate that is so .. That is the most

important fact, if I may say so,with respect, of your

argument and I am just trying to test it. How close

does ground 10 come to it and that -coupled with the

fact that the transcript shows that Mr Ellis, the

Crown c0unsel, addressed at length covering all the

proposed grounds of appeal whether leave had been

given not, including ground 10,which means that in

substance he dealt with a ground of appeal that -

how was it expressed - having regard to - ground 10:

There has been a substantial miscarriage

of justice when the defects in the conduct of

my trial are looked at in totality.

MR GLISSAN:  Your Honour, that can only be read in the context of foregoing material. It does not relate -it is not

expressed to relate to a ground of unsafety, lack of

safety or - - -

WILSON J: It is certainly not expressed to be but I wondered,

as a matter of substance, counsel did have the
opportunity and, I think, as I read his submission,

he took it of reviewing the evidence in its totality.

MR GLISSAN: Well, Your Honour, except that every time that he

endeavoured to take that sort of review of the evidence,

the bench would interrupt him and say, "Well, look,

perhaps we are taking you away from what we really

C2T24/l/SH	13	4/5/88
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want to consider which is whether or not we ought

to give leave to appeal" and that happened over and

over again. At a time when Mr Ellis comes to deal

with one of the questions relating to - would

Your Honours just pardon me for a moment while I

turn it up in my notes which will be quicker than

looking for it in the application book.

(Continued on page 15)

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MR GLISSAN (continuing): This sort of thing appears throughout

the period of that argument, Your Honour. Perhaps

I should just take Your Honour through each of

these, if I may, without trespassing too much on

the time of the Court.

WILSON J:	Yes.
TOOHEY J:	Just before you do that and perhaps this will provide

some sort of context for that exercise, Mr Glissan,

can you tell us when the unsafeness of the verdict

first surfaced in writing as a ground?

MR GLISSAN:  Well, Your Honour, it surfaced, so far as I

understand the case, at the time of delivery of

the judgment by the court, and not before.

TOOHEY J:  When leave to amend was given?

MR GLISSAN:  Yes. And, indeed, it never emanated from the

appellant or anybody representing him.	If Your Honour
goes to page - - -

TOOHEY J: Well, that is perhaps enough for present purposes. I

thought it might be a context in which to look

at these references.

MR GLISSAN:  Well, it might be, perhaps, convenient if I do answer Your Honour completely though. At page 630,

what happens is the presiding judge Mr Justice Maurice

says:

I'd call upon my brother Muirhead to deliver

his judgment first.

Mr Justice Muirhead says:

Firstly, I would grant the appellant leave to amend his grounds of appeal by including

the following broad ground -

which His Honour then formulates, then says:

I would not give leave to appeal on the

other grounds -

which one takes with the exception of grounds7 and

10, and then says:

I would allow the appeal and quash the conviction.

The whole of the judgments are predicated on the

ground formulatedby His Honour at page 630. to trouble Your Honours.

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DAWSON J: Ground 10, to which the presiding judge ref erred,

strikes me as being very close to an unsafe and
unsatisfactory ground, but that was apparently

filed on 3 July in the course of the application

for leave, or appeal, whatever it might be.

MR GLISSAN:	Yes, Your Honour, and towards the end of it.
DAWSON J:	Well, why does that not raise sufficient -
WILSON J:	When you say "and towards the end of it", it was

accepted at the beginning of the third day - - -

MR GLISSAN:  At the beginning of the day, I am sorry,

Your Honour, towards the end of the appeal -

WILSON J:  - - - and it was on that day that Crown counsel

had a full opportunity or - - -

MR GLISSAN: - - - made soma lengthy submissions. Your Honour,

for this reason: it is not a ground that asserts

of capacity of the evidence to satisfy the onus of proof. It refers to the defects in the conduct of my trial, it does not refer to evidence.	or relates to a shortfall of evidence in terms to Your Honours, relate precisely to that; not
evidentiary matters but whether or not directions
of law given by the judge in the course of the
sununing up were sufficient; whether or not rulings
as to the admissibility or inadmissibility of
evidence made by the judge were correct as matters
of law; whether or not,in the context, particularly of this case, counsel who may or may not have been
bound by instructions abided by those instructions and conducted the case in accordance with them
or departed in a way which put the trial at nought.

Those are the matteJ:Swhich are covered by a

broad ground of that nature, not questions of
sufficiency of evidence.	Now, Your Honour, with

great respect that, in our submission, is the only

way that that ground can be read. It cannot be

read as a ground that says the conviction is unsafe

and unsatisfactory or, perhaps, I should say, neither

can it be read as a ground which says there was no

case for me to answer.

DAWSON J:  No doubt - I mean, it is not strictly correct

to say that the applicant was appearing in person but it is not strictly correct to say he was not.

MR GLISSAN:  No, Your Honour. Well, Your Honour, it raises

the problem that Your Honour has dealt with in

SMITH's case, I suppose, the Mackenzie friend sort

of situation. This person who appeared was not

amicus curia, he was not there to assist the court,

he was there to assist the appellant but sought

C2T25/2/MB	16	4/5/88
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to gain some benefit, it would seem - I do not say

it critically of counsel who appeared - but to gain

some benefit by not being actually aligned with

the appellant in the sense of being - one does not

know, one speculates - bound by instructions from

him or - it is a very difficult situation for the of the application for special leave in the light

of what Your Honour said in SMITH, we would say

it is a very unsatisfactory one and it is a practice

to be discouraged.

(Continued on page 18)

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DAWSON J:  What I had in mind is I cannot imagine that an

applicant in that situation did not complain generally

about the case against him and its inadequacy. I

cannot imagine that he would confine himself to these

grounds as they are formally drawn.

MR GLISSAN:	No.
WILSON J:	Can I just make your task just a shade more

difficult, Mr Glissan.

MR GLISSAN:  I do not think it is possible, Your Honour.

WILSON J:  I have just found what I was looking for. It is

on page 215, which is the final page of the handwritten

grounds prepared by the respondent and which were

before the court throughout the period of

1, 2 and 3 July, and which caused a good deal of the

frustration on 1 and 2 July because the court was

trying to make sense of them and that is what led to

the revision overnight, between 2 and 3 July, that

led to the grounds finally appearing at pages 621

to page 629. Can I just read that final ground?

MR GLISSAN:	May I read it for Your Honour?
WILSON J:	If you would like to.
MR GLISSAN:	Your Honour, because we would want to adopt that

on two bases as being matter which really disadvantaged the Crown because it was not what was ultimately relied on and the Crown was not given an opportunity by

the court of dealing with it.

WILSON J:  But it would be a strange result if, when confronted

with a revised ground, which includes ground 10 to

which Justice Dawson has referred, that the Crown was

not sufficiently alerted to the complaint that was

being made. You have not read it, so let me.

MR GLISSAN:  I am in Your Honours hands.

WILSON J:  It says:

The power and duty of the Court to set

aside a verdict where a miscarriage of

justice has occurred includes the case

where, although there is sufficient evidence

to support it, as a matter of law it would

be unsafe or dangerous to allow the verdict

to stand.

MR GLISSAN:  Well, Your Honours, I do not know which of

Your Honours recognizes it as a quotation -

WILSON J:  Yes, well it cites CHAMBERLAIN' s case.

C2T26/l/HS	18	4/5/88
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MR GLISSAN:	- - - but it is quite apparent that, in fact - and it is a quotation.
WILSON J:	He had a fairly good Mackenzie's friend in the prison, did not he. He referred to it, I think.
MR GLISSAN:	He did indeed, Your Honour.

WILSON J: Yes.

MR GLISSAN:  But, Your Honour, it was not pursued in those

terms. There was no agitation of it as an issue.

The Crown had no opportunity - in real terms had no

opportunity to respond to it and that was where I was

going to take Your Honours to, more or less, a

chronology of the argument as it proceeded from

the Crown, and in particular looking at what the

bench had to say. Perhaps I could start at page 467

where His Honour Mr Justice Asche says, after these

grounds, which Your Honour Justice Wilson has just

referred me to, were on, at page 467, says:

It may be that the basic problem that the

appellant has is that there's nothing in

these grounds relating to the odontological

evidence.

And the other thing at page 469, on which we rely as

being of absolutely critical importance, so far as the

Crown's understanding of what was then occurring in

relation to those grounds was when His Honour

Mr Justice Maurice said:

We are only talking about amending the

application for leave to appeal at

this stage.

WILSON J:  Yes, but the sting is taken out of that because at

the end of that very day the presiding judge said

what they would do the next day.

MR GLISSAN:  Yes, I understand.

WILSON J:  I appreciate, if I could say so, the tide ebbed and

flowed during this hearing and it must have been

terribly difficult for Crown counsel, for the court,

for everybody.

MR GLISSAN:  It was very difficult for everybody. I think

there is no question about that, Your Honour.

WILSON	J:	Yes.
C2T26/2/HS	19	4/5/88
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MR GLISSAN (continuing): But the problem is that the one

matter which was used to resolve the appeal was

not agitated and that really is all I can put over

and over again to Your Honour.

WILSON J:	What relief are you seeking, a new trial?
MR GLISSAN:	Yes.

WILSON J: And the respondent spent 14 months in prison as

the record shows and has been at liberty now since

3 July or 17 July.

MR GLISSAN:	Yes, there are a number of alternatives which perhaps would be perhaps more appropriate even than
the granting by this Court of a new trial. It is -

TOOHEY J: That is not the relief you are asking for,

Mr Glissan, in your notice of appeal,is it?

MR GLISSAN:  No, Your Honour, that is not the relief that

is being sought in the notice of appeal. But

perhaps I could just deal with the alternatives

that are available to the Court. I would not

want to bind the Court in its discretion.

BRENNAN J:	You will come back, taking us through this sequence, will you not:
MR GLISSAN:	I hope I have the opportunity, Your Honour, yes.

But so far as that is concerned we would put to

Court that there are a number of alternatives. There
could be a remitter of the matter to the Court

of Criminal Appeal to determine the matter after

argument. That would have the effect of reviving

the sentence. There was,in relation to the

conviction,a Crown Appeal on foot against the

inadequacy of sentence_ which,of course,fell to the

ground with this judgment. There is an alternative

that the Court could order a new trial. Your Honour,

perhaps I might be permitted to say this in

relation to that.	It has never been a bar to the
granting of a new trial that a prisoner - or to

the fixing of a new trial that a prisoner has been

released from custody after a period of either

successful appeal or even after a non-parole period has expir2d. So that I would not want Your Honours

to regard that as too significant a matter in the

context of the case. There was quite a substantial

sentence even though the Crown asserted an

inadequate one imposed. If I can assist

Your Honour Mr Justice Brennan I will try to deal

with the balance of these matters.

WILSON J:	I will not interrupt you.
MR GLISSAN:	No, Your Honour, I am grateful for any of

Your Honour's interruptions. After page 469, the

C2T27/l/SR	20	4/5/88
Lewis

passage to which I just referred Your Honours, on

the very next page, Mr Justice Muirhead says to

the Crown prosecutor:

I don't really think we can call upon

you to argue the case until the grounds

are fairly and squarely and certainly

before you.

And the response of the Crown prosecutor to that

was:

That still leaves it as an application,

and certainly the Crown would have a

submission to make as to whether or not the

application for leave to appeal should be

granted.

At page 472 there is discussion with Mr Justice Maurice

about the amendment to encompass the points raised
in the summary and that might relate to what has
already fallen from Your Honour the presiding judge,

but he goes on to say:

Just how we do that is something we have

yet to determine.

So that there are at this stage no grounds. Then

there was a lengthy discussion between 472 and 484

about a case: called KNOWLES' case in New South Wales

which you may or may not have had any significance

beyond this, that it again distracted the attention

of the Crown prosecutor from a consideration of

any of the substantive points and direct his

attention to the antecedent point, whether or not leave should be granted because that is what that case and the argument that is set out there for

12 or 14 pages of transcript is concerned with.	Then at
page 484 this occurs,and this is tremendously
important so far as the Crown would put it,

Your Honours, Mr Justice Maurice raised the balance

of the appeal points with the Crown and in particular

at page 485 the CARROLL case and suggested that

it was appropriate. At about the middle of page 485,

something that arose:

under the original application for appeal,

and that's a question of us looking at

the evidence of the odontologists ..... .

And considering whether the trial judge

should have given any special direction,

perhaps, to the jury in relation to that.

C2T27/2/SR	21	4/5/88
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MR GLISSAN (continuing):  But then what occurs after that

has been argued backwards and forwards between counsel

and the court on page 486, at the top of page 487,

says to counsel:

This is side tracking you a bit because we

really want to deal with the other matters

as to how we should proceed.

And, throughout the case, the Crown's conduct of the

case is predicated on the matters that are being

discussed being what the procedure is to be in

relation to an application for leave to appeal and

the reception of evidence and whether the Crown would

need to call evidence and the like rather than any

substantive question that arose as part of the appeal

and, Your Honour, we would say in the context of this

case and in the context of what Your Honour said

instead, it matters not the reason that there is a

denial of natural justice. The fact is that once it

occurs, if the denial is sufficiently grave, if the

party has been effectively deprived of putting its

case in relation to a substantial matter, then the

decision cannot stand on which it is based - or ought

not to stand.

At page 489, Mr Justice Muirhead says this -

bearing in mind the judgment that was ultimately

delivered in relation to this case which judgment is largely predicated on the finding of the Court

of Criminal Appeal in Queensland in CARROLL's case -

an extraordinary thing-and something that we say

clearly misled counsel just -

With respect -

right at the top of 489 -

I found it a bit difficult sitting here to

understand what CARROLL's case has got to

do with this ..... it may well be that the

Full Court of Queensland thought something

was dangerous in the circumstances; but

there's nothing in that case that says
it is dangerous to act on the evidence of
odontologists as to tooth marks, that I
understand, as a raw proposition.

And yet, the ultimate judgment is predicated on

almost precisely that proposition; that it ought not

to have been received as evidence, there being no objection to it being received as evidence at the

trial, and it is not without significance in that

context that there was no pursuit, so far as the

judgment is to be understood, of the argument that
it had first been the central argument, that the

representation which was afforded the respondent

C2T28/l/SH	22	4/5/88
Lewis

in these proceedings was inadequate, nor would we

say, with respect, looking at the case proper,

could there have been.

At page 491, this is said by Mr Justice Maurice:

But we really can't get into the merits of

it, and hear his submissions in support of

these additional grounds until we have

finally those grounds in some final form,

and that, the way things have gone, is something

we're going to have to look at ourselves.	So
we're going to have to adjourn it shortly to
enable that to take place -

and then, of course, there is talk about whether or

not the court could reconvene the following day which

it ultimately did.

But, even as close as seven pages of transcript

to the passage to which Your Honour drew my attention

earlier, the court is saying, "We cannot really deal

with this until we have the final grounds of appeal

in final form".

WILSON J:  And that is said at the end of the second day of this

hearing and they had the final grounds at the

commencement of the third day.

MR GLISSAN: Well, except that the final grounds did not

contain the grounds on which the appeal was determined.

WILSON J: Well - - -

MR GLISSAN: There were no such grounds ever before the court.

WILSON J: Well, that -

MR GLISSAN: Well, I understand Your Honours· are seized of

that proposition.

WILSON J:  Yes.

(Continued on page 24)

C2T28/2/SH	23	4/5/88
Lewis

MR GLISSAN:  There are similar observations at 493 and 494

and that is important, Your Honour, in relation

to the final grounds, the grounds that they were expressed, because at 494 Mr Justice Asche says:

I would be prepared to ..... accept the sort

of broad ground -

that His Honour the trial judge -

misdirected the jury as to the weight to be

given to the odontological evidence or .....

something like that, just to get it before

us -

Mr Justice Muirhead says that the court was not going to hear nebulous argument. The court - not without some reason in the context of this case,

at 495, at about point 7:

We have to know which argument is relevant

to which ground of appeal, because you

haven't got an appeal of right.	We've got
to give you -

what they describe as -

special leave -

but I think the.court means leave -

to appeal.

And there is a bit of argument from Mr Lewis as

to whether or not that was entirely fair.

DAWSON J:  I see on page 630, of course, that there was an

amendment to allow the ground to be added, but

certainly the ground was never before the court.

MR GLISSAN:  But that was the amendment which emanated from

the judge deciding the case at the time he was

delivering the judgment.

DAWSON J: Exactly, but it would be most unusual to allow

an amendment in circumstances where the matter

was not covered in argument.

MR GLISSAN:  Yes, Your Honour. With great respect,

Your Honour, that is the thrust of the appeal, that this is most unusual.

DAWSON J:	But why did not the Crown object at that stage?
MR GLISSAN:	Your Honour, the only remarks that are made

in relation to that appear at 631. They are

C2T29/l/ND	24	4/5/88
Lewis

Mr Ellis at the top of the page and in the middle of the page and I read their context to

His Honour Mr Justice Toohey a little earlier.

They could not, even with the most generous

-interpretation, be regarded as an objection by

counsel to the course that was being adopted.

At best, I suppose, they could be taken to be a

weak protest but they reveal, in our submission,

quite clearly, that counsel was taken completely

unawares when the judgment was delivered.

DAWSON J:  But in relation to that ground, the calling of

evidence could not assist. That seems to be the

point which is being made on page 631.

MR GLISSAN:	Yes, quite so, but argument may have.
DAWSON J:	But that is not what is being complained of?
MR GLISSAN:	Your Honour, that is what is being complained

of, the Crown was never given an opportunity to

argue that ground.

DAWSON J:	the Crown was to be given the right to
consider its position in relation to the calling
or otherwise of Mr Adams, and of instructing
solicitors.
MR GLISSAN:	I am sorry, I see what Your Honour is drawing

my attention to. In the middle of the page though,

Your Honour -perhaps again it is my fault in the

sense that I had a misunderstanding as to the precise

nature of that point and the fact that Your Honours

would be proceeding on other points, I did not

understand that to be that case.

DAWSON J: That is credible, yes.

MR GLISSAN:  And, Your Honour, it is beyond argument that precisely that was the case. The point that is

never raised at any time prior to it being

formulated by Mr Justice Muirhead as part of the

judgment - as immediately antecedent to the judgment

which he delivered and as the foundation of it.

BREL\JNAN J :  Have you finished the second arm?

MR GLISSAN:  Yes, I think so, Your Honour. I am-sorry I

keep getting side-tracked, Your Honours.

WILSON J: It is not your fault, Mr Glissan.

MR GLISSAN:  Not entirely, Your Honour, but I am prepared

to take the blame. At page 493 - I think I have

referred Your Honours to that - there is a remark

of Mr Justice Asche about nebulous argument and

C2T29/2/ND	25	4/5/88
Lewis

there is, at the top of 496	the passage
which I had just started to	refer Your Honours
to before I got lost again.	The very first remarks,
Mr ~ustice Asche says:

even if you don't like the other grounds that

he's prepared, they seem to me to cover much

of the matters you put in your document, at

least take that back with you and try to

throw it into that sort of form.

MR LEWIS:  Yes, I will.

And Your Honour, now I think I can say that at 497
and 498 there is some discussion about the competing

Crown - - -

GAUDRON.J:  What about the remark of Mr Justice Maurice at

page 496?

Your 12 page summary is something we've all

seen and read and will take into account,

insofar as it supports or has a bearing upon

the grounds of appeal that you ultimately

rely upon.

MR GLISSAN:  Yes, that refers back to the document which

is in the application book at 204 and thereafter

and which contains - - -

(Continued on page 27)

C2T29/3/ND	26	4/5/88
Lewis

\HLSON J:  Which ends with the CHA:,rnERLAIN q'Jote.

MR GLISSAN:  - - -the quotation from CHA11BERLAIN. \-Jell,

let me deal with that in this way, Honour:

it is not reflected in the grounds of appeal

which he ultimately relied on unless one takes

into account the ground of appeal drafted by

Mr Justice Muirhead as part of the judgment,

unless ground 10 is arguable.

GAUDRON J:  You say that, but are not all the same issues

traversed as a matter of law rather than as a
matter of mixed fact and law, but given the nature

of the matters perhaps that is the same in

ground 1 of the new - - -

MR GLISSAN: Well, he was not given leave - let me not

make any error - - -

GAUDRON J:	Page 621.
MR GLISSAN:	Your Honour, he was not given leave to argue

that ground.

GAUDRON J:	He was not.
MR GLISSAN:	At page 630 Mr Justice Muirhead says:

I would give leave to appeal on that ground -

being the ground he had just formulated -

and I would also give leave to appeal

on grounds 7 and 10. I would not give

leave to appeal on the other grounds.

That would seem to me, with respect, Your Honour,

to dispose of ground 1.

Now, if I can endeavour to take Your Honours

back to volume 3 of the application book - I
will get there in the end, Your Honour - and it

might in part also enable me to answer from my

own point of view in a satisfactory way the

matter raised by Mr Justice Wilson at page 498.

If we can start at page 498.

I hope it's the last time we are going

to have to impose on you -

is said to Mr Tiffin. Your Honour, I think, need

not open this. It is what has been read before.

It's anticipated then that we will try

and cover all aspects of the appeal against

conviction tomorrow, save perhaps whether

you need to go into evidence.

C2T30/l/JM	27	4/5/88
Lewis

At 503, after the amended grounds had been received on the following day,

Mr Justice Maurice says to Mr Tiffin - the

last paragraph on the page:

the court has not yet reached the view
that this is an appropriate case to give
the Crown cause to consider whether it

ought to call evidence -

Now, in that whole paragraph the Court indicated

it gave leave to amend the grounds to rely on

thosegrounds numbered - to substitute those

grounds numbered 1 to 10 as part of the application

for leave.

So that the combination of those remarks

again, which involve some substantial submissions

which extend, I think, to about page 550 of the

application book, were not such as to cause the

Crown to understand that it was going to be

required to argue any ground relating to the

sufficiency of evidence.

GAUDRON J:  It was however going to be required to argue

ground 1.

MR GLISSAN:  At that stage?

GAUDRON J: Well, it did in fact, did it not, traverse the

grounds of appeal the next day?

MR GLISSAN: Well, Your Honour, yes, it did.

GAUDRON J:  And ground 1 of the amended grounds of appeal

was a matter to which the Crown must have known

it could direct attention.

MR GLISSAN: Well, let us perhaps look at ground 1, if

tht is correct, and let me respectfully propose

this question to the Court: where can it be

seen as part of ground 1 that any of the matters

on which the insufficiency was relied -

insufficiency of evidence was relied on by the

Court in formulating the final judgment is to

be found? Now, the basis on which the judgment

of the Court of Criminal Appeal proceeds is

first,that the odontological evidence was

unsafe and ought not to have been received

into evidence. Secondly, that the evidence of

eyewitness identification was unsafe and

uncorroborated could not found a conviction; and thirdly, the alibi should be disregarded

altogether, I think is a somewhat terse but

fair statement.

C2T30/2/JM	28	4/5/88
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MR GLISSAN (continuing):

l(A) The conflict between the evidence of

Miss Dunford and Detective Gage about how

Miss Dunford came to be at the magistrate's

court.

Now, that might be said to go, 1n some way, to

identification.

GAUDRON J:	And how she came to identify him.
MR GLISSAN:	That is why I say - that goes, 1n some way,

to identification.

Failed to warn the jury ..... on the dangers

of relying on the expert odontological evidence.

Well, that really does not do His Honour justice

in relation to the summing up at all and, thirdly:

erred in inviting the jury to compare the

crucial material, namely, the acetate tracings

with photographs.

Now, first, that ground was not relied on; secondly,

it does not raise in the way it would need to to put the Crown on notice that it was dealing with

an application to have a verdict quashed because

it was unsafe or unsatisfactory or inherently unreliable

because of the evidence - it does not put it on

notice of the combination of evidence which went

to that issue. It raises specific matters about

specific pieces of evidence but no more.

DAWSON J: But, it raises the reliability of the odontological

evidence and without that there could not be much

question that there was not enough evidence, could

there?

MR GLISSAN:  I do not know that I quite understand, Your Honour.

If Your Honour says if the odontological evidence

had been rejected altogether and there was none

of it before the jury, well, I would respectfully
concede that that would be the position. There

was evidence of identification - - -

DAWSON J:	Which was pretty thin.
MR GLISSAN:	Which was pretty thin - I think that is probably

right, I would not want to be heard to say anything

to the contrary of that. There was - - -

DAWSON J:  So it really did not centre around the reliability

of the odontological evidence and although it may not

have been raised formally in the correct way, it

certainly is raised by ground l(B), is it not?

C2T31/l/AC	29
Lewis

MR GLISSAN: Well, in a technical sense it might have been

but so far as the agitation of the case went it

was not. So far as the argument -

DAWSON J: Well, was not ground l(B) argued?

MR GLISSAN:  Your Honour, it is very difficult to see anywhere

in the transcript it was argued in a way that reveals

it as being suggested that it should not have been

received. It was argued only in the context that

counsel who appeared for the appellant at the trial

had somehow failed in his duty by failing to obtain

appropriate experts to attack it or the like.

It was not raised in the sense, I think that

Your Honour is putting to me, that the evidence

was not admissible or that something more significant

than joining issue was involved.

DAWSON J: What I am suggesting is you cannot take too technical

a view of these things when you have an applicant

in person, or semi in person, if that is the correct

way to put it.

MR GLISSAN:  Well, that is the difficulty, Your Honour -

semi in person is the point at which - - -

DAWSON J:  And painting with a very broad brush the complaint

that was raised about the admissibility of the

odontological evidence and that would normally

be sufficient, would it not, in these circumstances?

MR GLISSAN: Well, Your Honour, these circumstances are so

unusual and so to be deplored that I am not able

to answer Your Honour's question, fairly.

DAWSON J:  Yes, but you cannot expect, normally, an applicant

in person to come up with grounds of appeal - or
grounds for this application - which are in terms

of the relevant legislation.

MR GLISSAN:  No, normally, but this is not a normal case,

Your Honour. This is a case where the applicant

was partially in person, partially - if that is

the right way of viewing it - represented, had

had substantial assistance in drawing the grounds

of appeal - or at least in amending them - so that

it is unreal, in our submission, to look at it

as a case of an applicant in person who ought,

therefore, to be given so much broader scope than

would ordinarily be the case.

GAUDRON J:  Can we look at it from another end. Here is

this applicant in person who in his first document

that the lawyers do not like has raised the ground

which has ultimately been found in his favour.

C2T31/2/AC 30 4/5/88

Lewis (Continued on page JOA)

In the course of the discussion with him the court

has assured him that they will not lose sight of

what is in that document that he first formulated

and that it will be taken into account. There

comes about another document substantially at the
direction of the court for the benefit of the
lawyers which, in part, touches the issue but not

in substantially the same way. What would you tell this man now if you said - I mean in what words would you explain to this man that the

quashing of his conviction must be set aside because

nobody realized that he was relying on the ground

of unsafe and unsatisfactory put in his first

document?

(Continued on page 31)

C2T31/3/AC	JOA	4/5/88
Lewis

MR GLISSAN:  Your Honour, with great respect, the test that

ought to be applied in this Court as in any court

really is not one of explaining the situation to the

individual but it is one of whether or not there has

been an opportunity given to a party entitled to be

heard to agitate the matter which has been used to

resolve that issue. I am unable to answer Your Honour's

question in any better way that that.

GAUDRON J: Well, that may be so in the generality of cases but

we are entertaining an appeal by the Crown against a

person who has once stood trial and has had his

conviction quashed. Now, I do not know what the end

result would be if you were successful in your

application today, Mr Glissan. It is not at all

obvious to me what the appropriate order would be

if you succeeded but there is another consideration in relation to Crown criminal appeals, is there not,

that does not obtain in the normal appeal situation.

MR GLISSAN:  Yes, it might be regarded as an additional

obstacle to leave.

GAUDRON J: Yes, and there is an underlying jurisprudential

rationale for that additional obstace, is there not?

MR GLISSAN:  Your Honour, we would answer that proposition in

this way: the Crown ought to be, whether appearing

as an applicant for leave or a respondent to an

application for leave, in no better but no worse

position than any other litigant. Any litigant -

the system of justice which we have adopted is

predicated on the parties being heard, upon the

issue - - -

GAUDRON J:  On the parties having an opportunity to be heard.

MR GLISSAN: Well, in this case, we do not resile from the

proposition that it is the same thing.

DAWSON J: But, you see, no one is questioning that. Things

seem to go awry here, that is true. Whether it was

fatal, what happened or not, that is another question

or whether it would be fatal if leave were granted

but where is the point of law that is involved?

Where is the point of principle?

MR GLISSAN:  Your Honour, I endeavour to answer that in this

way:  that what is involved is an important point as to

the procedure that ought properly to be adopted by

courts of criminal appeal.

DAWSON J: Well no one is really in doubt as to what the

proper procedure is and if we went wrong here, it

is not going to shake the foundations of the law

gnerally.

C2T32/l/SH	31	4/5/88
Lewis

MR GLISSAN: Well, no, Your Honour, that may well be true

but with great respect there seems to be some

misapprehension as to what the appropriate course

to be adopted is in the Northern Territory if this

case is to be regarded as representative.

DAWSON J:  You say the principle of law is that the court

that begins an appeal should be the court that ends

up giving judgment.

MR GLISSAN:  Yes.

DAWSON J: Well, does anyone really doubt that?

MR GLISSAN:  Your Honour, it has never actually been directly

pronounced on by Your Honours' Court so far as our

researches were able to - - -

DAWSON J: It may be so obvious.

MR GLISSAN: Well, that may be but it does not seem to have

been entirely so obvious to this Court.

(Continued on page 33)

C2T32/2/SH	32	4/5/88
Lewis

WILSON J:	The law can still be the law whether this Court has pronounced on it or not?
MR GLISSAN:	Indeed, Your Honour, but it is actually very

difficult to find any authority for that

proposition other than the most glancing of kisses,

if I can use that expression.

BRENNAN J:  Mr Glissan, at the risk of sounding like a

chattering parrot from my cage, could I ask whether

you have any further references with respect to

the second day?

MR GLISSAN:  No, Your Honour, not with respect to the second

day. TQose are the matters to which I wish to

draw Your Honour's attention.

BRENNAN J:  So that I need not read between pages 503 and 602?

MR GLISSAN:  So far as I am concerned, Your Honour, no. I

am sorry the third day, Your Honour - - -

BRENNAN J:	I am sorry the third day.
MR GLISSAN:	- - - there are some particular matters I want

to draw Your Honours' attention to at page 550 and

thereafter on the third day. And perhaps I can

indicate this: what had happened was contexturally

that at page 503, Mr Tiffin, for whatever

perspective he made submissions, made submissions

that ran through to page 550 and this then occurred

at page 550 -Mr Justice Muirhead where his name

first appears:

I suppose that could be a complaint

to any person who'd been convicted

after a criminal trial. They thought

their expert had let them down a bit,

or let down their expectations, I

suppose.

Mr Justice Maurice: 

I think we would have to have - this is a tentative view; I throw it out: I

think we would have to have evidence

before us now that there were experts

readily available in Australia ..... who

if called would have said, "Look, you

can't use this type of evidence except

to exclude people. You can't use it

to inculpate in the way that Sims is

doing, and that there are many people

who take the same view as I." But

we don't have that evidence.

Mr Tiffin:	No.
Justice Maurice:	So we can't say there

has been a miscarriage of justice.

C2T33/l/SR	33	4/5/88
Lewis

Now this is immediately before the Crown

begins making submissions in relation to it.	We
would say that in relation to that both
Mr Justice Muirhead and Mr Justice Maurice are

there expressly, if one likes to put it that way,

depriving the Crown of any notice that that is an
issue by appearing to resolve that issue or
(a) to disregard it, but (b) to the extent that

they turn their attention to it at all, to say,

'Well, you do not need to be concerned about that

because we would not be able to say in the
context of this case that there was any miscarriage

of justice." At page 560 the counsel for the Crown

had commenced making his submissions. That point,

by the by,at page 550, having been conceded by

Mr Tiffin who says:

I can't take that point any further.

At page 560, counsel for the Crown is there dealing

and being directed to deal by the Court expressly
with an application for leave to appeal. At -

cases there referred to and in relation to the

argument he is asked:

It's a long judgment and obviously

we're not going to digest it ..... .

Was leave given? .....

Mr Ellis: No. All the applications

were dismissed.

Justice Maurice:  So that it was on

the actual leave application that

counsel were called?

Mr Ellis: Yes.

Justice Maurice: Counsel for the defence?

Mr Ellis: Yes. Affidavits were tendered by - - -

TOOHEY J: Is that a reference to the trial or a reference to

some other case?

MR GLISSAN: That is a reference to another case that has been

cited in argument.

TOOHEY J:	What is the significance?
MR GLISSAN:	The significance of that is that what the Crown

is there doing is arguing the question of whether

or not there should be leave to appeal by reference

to decided case law and being dealt with by the

court on the basis that all right we have got

C2T33/2/SR 34 4/5/88

Lewis (Continued on page 34A

authority for the proposition that counsel are to

be called and heard on the application for leave

to appeal.

BRENNAN J:  And that this is the time to call him because

it is an application for leave?

MR GLISSAN:	Yes, that is so, Your Honour.
WILSON J:	I am sorry, Mr Glissan, this case, it was cited,

was it not in the context of Mr Ellis answering

a query that the Court had made earlier as to

whether there was any case in which (a) the counsel

at the trial had been called to give evidence in

the course of a hearing of an appeal.

MR GLISSAN:  Yes, Your Honour.

(Continued on page 35)

C2T33/3/SR	34A	4/5/88
Lewis

MR GLISSAN:	Yes.
WILSON J:	And it is in that context that - I am sorry, I may have misunderstood but it is in its - - -
MR GLISSAN:	It is in the context, but one is

there dealing again - that the Crown is continually

being directed towards the aspect of the case that

relates to the question of leave to appeal, not to

the argument of any substantive question to be

resolved in the appeal, should leave be granted.

DAWSON J:  It does not seem that way, from what Mr Ellis said

at the bottom of page 561. He does not seem to worry

whether it is on the application for leave or on the

appeal, but the question to which he is addressing

himself is whether the Crown should call evidence by

way of reply - - -

MR GLISSAN:	Yes, Your Honour.
DAWSON J:	- - - and apart from that, at the top of page 563

he proposes to deal with all that has been before the

court to date.	Presumably he sets out to do that
and does it.

MR GLISSAN:  Well, Your Honour, except to this extent: what

is argued, what has just been argued by counsel for

the appellant is material that was put expressly

on the basis of disavowing any application for

quashing and seeking only the opportunity to be tried

fairly and properly, and it is in that context that

the Crown comes to deal with the argument.

DAWSON J:	You have made that point, yes, but Mr Ellis had the opportunity to, and presumably did, recite the
arguments which had been put up to that time.
MR GLISSAN:	Yes, and indeed it is dealt with fairly extensively

in argument between page 604 and page 608. Page 603,

I suppose, is where it really begins, where counsel

for the Crown there starts to deal with the grounds in

the form in which they were finally pleaded - I do not

propose to take Your Honours to all of that - but at

page 608, in the context of the odontological evidence,

there is a submission made about the criticism of

the experts and the like:

So that it is not accurate -

Mr Ellis is recorded as saying:

to say that the appellant's counsel at

trial, being aware of the importance of

the odontological evidence in this case, and

being aware from the CARROLL case

and the like -

C2T34/l/HS	35
Lewis

'Failed to secure an expert to give

evidence of such unreliability'. That's

simply not true -

and he refers to the evidence of the witness who was,

in fact, called by the defence. But again, it is the

comment from the bench which is particularly

significant that appears at the bottom of page 608.

Mr Justice Maurice says:

Isn't that the inference to be drawn from

the fact of the calling of the expert by

the defence.

MR ELLIS:  One would think it's the only

inference available.

MAURICE J:  And the tenure of his evidence? -

if Your Honours will pardon the misspelling -

MR ELLIS:	Yes, that would be the only inference
available on my submission,	Your Honour.

But I think that really in many ways,

CARROLL's case is a bit of a red herring,

but so far as it's been raised, and the

issues criticised ..... are without substance,

given that there was cross-examination, the
issues were raised by counsel and by the

presiding judge.

MAURICE J:  The trial judge specifically

referred to CARROLL's case -

and the matter proceeds there on page 609 and on

page 610 Mr Justice Muirhead says:

I'd be very surprised if the trial judge

didn't know the course of that

cross-examination -

and then there is some desultory remark or other,

followed by:

In any event, there's no further matters

that I'd like to address the court on in

relation to CARROLL's case.

DAWSON J:	So that Mr Ellis had full opportunity to reply to the criticism of the odontological evidence that
was made.
MR GLISSAN:	Yes.

C2T34/2/HS	36	4/5/88
Lewis

DAWSON J:  And it was on the basis of the deficiencies in

that evidence that the Court of Appeal came to the

cone 1 us ion that the verdict was illlsafe and unsacisfactory'?

:MR GLISSAN:  Except to this extent. The Crown was not either

directed or encouraged by the bench to agitate the

proposition that the evidence of the odontologist

was either unsafe or was, as was ultimately found

to be the case, inadmissible. Now, Your Honour,

we put to Your Honours that that was unfair to the

Crown, it denied the Crown the opportunity of

addressing that question since it subsequently

formed the basis of the judgment.

DAWSON J:  Well, presumably it was inadmissiable because it

was unreliable, it was not sufficiently reliable.

MR GLISSAN:	Well, yes, Your Honour, that seems to be a necessity.
DAWSON J:	The issue of reliability of that evidence was

canvassed, was it not?

BRENNAN J: Questions of reliability are jury questions,

are they not?

MR GLISSAN: Well, Your Honour, they are certainly not

questions where a judge has a discretion in the
absence of the most compelling situation to withdraw

the evidence from the consideration of the jury

and, really, that is what has been done in this

case.

DAWSON J:  Well, in the sense that expert evidence is not

sufficiently reliable but you say it is not an

area of expertise which en ab 1 es you to admit the

evidence and that, presumably, is the way in

which it was approached.

MR GLISSAN:  But, Your Honour, there were indeed, there should

have been, all sorts of difficulties in the path of an appellant attempting to assert that. That

really is only another way of formulating the ground

that he was incompetently represented because there

was no objection taken at the trial to the reception of that evidence. It was extensively cross-examined on, there was forensic evidence in relation to the

teeth marks called by the defence as part of its

case. That evidence was cross-examined on. There

was no application to the trial judge for any

specific direction. The judge gave directions which

were in context, as we would put it to the Court, unexceptionable. Now, in those circumstances any appellant had to assert one of two things: either there was some supervening reason by -reason of which leave

to argue that ground should have been granted, he not
having raised it in the court below or, as was the

case here, he was incompetently represented, and

C2T35/l/MB	37	4/5/88
Lewis

the whole application for leave to appeal was

argued on the basis that what was being discussed

in the context of any defects in the odontological

evidence went not to that evidence per se but to

the quality of his representation. It really, with
respect, we would say, does not come to terms with

the real issue to say it was agitated, that there

was ample opportunity, as Your Honour says, to argue

whether or not the evidence was reliable because

that was not what was being considered. What was

being considered is whether or not the conduct

of his counsel at trial had been adequate in relation

to any issue of unreliability that there was in

relation to that evidence. They are different

points, utterly different in the context of this

case.

WILSON J:  Could we just clarify that point made a moment

ago. Although at page 683 acting Mr Justice Muirhead

says that:

the admissibility of expert evidence in this

situation may be a matter of some doubt - I have not picked up where they said it was inachnissible,

and that what they are doing here is simply

evaluating it as on a ground of unsafe, unsatisfactory,

and having dealt with that evidence they go on to

deal with the alibi.

MR GLISSAN:  Well, there are separate judgments, of course,

Your Honour.

WILSON J:  Yes, but both the other members of the court

agreed with Justice Muirhead's judgment. Do not

let me delay you, Mr Glissan, it was just that

.•... if. any importance attached to it I should

draw your attention to it.

MR GLISSAN:  Well, Your Honour, really, I think I have taken

q1lite enough of Your Honours' time and I have finally

come to the end of the pages to which I wish to

refer the Court.

(Continued on page 39)

C2T35/2/MB	38	4/5/88
Lewis

WILSON J:	We had better go on with 3 July, I think.
BRENNAN J:	Page 610 is the last one that you wish to
MR GLISSAN:	Yes, Your Honour, that is the last passage to

which I - - -

BRENNAN J: And then we can go to 620 to find the grounds

and 630 to some judgments.

MR GLISSAN:  And 625 or 629 to 630 to find the ultimate

ground which was relied on in the judgments.

BRENNAN J: May I ask you, was any reference made in the

course of the argument by either counsel to any
of the standard kinds of authorities that deal
with interferring with the verdict on the grounds II f II d II • f II?

o f unsa e an unsat1s actory .

MR GLISSAN:  No so far - well, CHAMBERLAIN is referred to.

BRENNAN J: In that context?

MR GLISSAN:  No, Your Honour. The only time that is ever

raised is 7 so far as I am aware, and do not let me mislead Your Honours,I do not have the minute

familiarity that I would like to have but my

recollection is there is no point in any of the

600 pages of material before Your Honours other

than that one page at 204, or whatever it is, where

any of the authorities in relation to "unsafe" 11 • f <I - , ,J h "

an d u n s a t 1 s a c t o r y a re re t e r r E:· c: :: 0 2. r, u 1.-1 a t 1 s

contained there is the single quotation which the	presiding judge read from CHAMBERLAIN 1 s case.
~ut, otherwise, the answer to Your Honour's question
1s no.

BRENNAN J:  Did the court, at any time, ask for any submissions with respect to the safety of the verdict?

MR GLISSAN:  No, Your Honour, at no time.

BRENNAN J:	Did Mr Tiffin make any submissions with regard to it in terms of it being unsafe?
MR GLISSAN:	Your Honour, my recollection is not but I would

not want to commit myself to a submission in

precisely those terms. I am confident that the

answer is no and certainly I - - -

BRENNAN J:  Mr Higgins can no doubt draw our attention

to - - -

MR GLISSAN:  Yes, I am certainly unable to point Your Honour

to anything in that regard but no recollection is 11 No 11 • I do not know whether Your Honours wish

C2T36/l/ND	39	4/5/88
Lewis

me to deal with the third ground which raises the question of whether or not the verdict was unsafe

or unsatisfactory or not. ·

BRENNAN J: If your argument be right and that there was a

denial of natural justice to the Crown in this

case, then the ordinary result of the denial of

natural justice is that the decision goes back

to the place from which it came for further

consideration.

MR GLISSAN:	Yes, Your Honour, that would be the ordinary
BRENNAN J:	You spoke earlier of a question for retrial.

Why should there be a retrial if the question is the sufficiency of the verdict which was first entered?

MR GLISSAN:  Your Honour, the relief which we originally

sought was the quashing of the order of the Court
of Criminal Appeal which would necessarily involve
the revival of both the decision of the jury and

the verdict.

WILSON J: That would not be right, would it?

MR GLISSAN:  Your Honour, it is difficult to see why not

as a matter of law. The only case I can call to

mind where that has ever occurred was LEE's case

which I think is back in 82.CLR.

Mrs Lee had been ·convicted of murder by a jury

and that conviction had been quashed by a Court
of Criminal Appeal and that conviction was revived

and she was hanged as a result of ·an appeal to

this Court.

WILSON J:  But we could not say there was no merit in the

appeal. If,as Justice Brennan says,the Court

accepted the tenor of your submissions the appeal

itself would have miscarried, would it'not?

MR GLISSAN:  Yes.

(Continued on page 41)

C2T38/2/ND	40	4/5/88
Lewis

WILSON J:	And that would call for a fresh determination
of the application - - -
MR GLISSAN:	Of the appeal.
Wl~SON J:	- - - for leave to appeal.
MR GLISSAN:	Yes, yes, Your Honour.
WILSON J:	Yes.

MR GLISSAN: That would carry with it the necessary

consequence that the sentence would be

revived pending the disposal of the appeal unless the appellant was admitted to bail, or in some other way - - -

BRENNAN J: Is there a bail provision in the Northern

Territory?

MR GLISSAN:  There is bail provision in the Northern

Territory, Your Honour, and it would apply

in these circumstances. It would be possible

for him to be bailed for that purpose.

TOOHEY J:  For what length of time, Mr Glissan, was the

respondent in custody?

MR GLISSAN:  Your Honour, I think about a year. I am

instructed about a year, Your Honour. It is

not easy to be precise.

TOOHEY J: Well, the offence was alleged to have occurred

on 18 January 1985 and the trial - - -

MR GLISSAN:  Occurred some time in 1987 - 1 86 was it?

TOOHEY J: Well, whenever it occurred, he was

convicted as a result.

MR GLISSAN: October 1986, Your Honour.

TOOHEY J: Well, at what point was he released from

custody?

MR GLISSAN:  He was taken into custody on 20 October 1986

and my understanding is he was released from

custody at the date of determination of the

appeal, 17 July. So, it is October 1986 - - -

TOOHEY J: Well, the record suggests somewhere he went

into custody in May 1986 and was released at

the beginning of July.

MR GLISSAN:  There may have been a bail difficulty in

relation to it. Can I just obtain accurate

instructions in relation to that? Your Honour,

C2T37/l/JM	41	4/5/88
Lewis

the difficulty is - the answer to Your Honour's

question is there were periods of custody.

WILSON J: Other charges?

MR GLISSAN:  Not necessarily referable to this matter and

I am unable to assist Your Honour with absolute precision as to precisely when his custody in

relation to this matter commenced.

TOOHEY J: Well, I suppose, working backwards once the

Court of Criminal Appeal had delivered its judgment, he would have, if then in custody, been released.

MR GLISSAN: He was certainly released then, on 17 July.

TOOHEY J: And whether in a continuous or broken periods

up until then, are you saying that he was

in custody for possibly 14 months?

MR GLISSAN:  He had been in custodycontinuously since

20 October 1986. Thereha.d been periods of

prior custody, but to what degree those periods

were all referable to the present charge is

something about which I am not able to assist,

I regret to say. It is not something that I,
I must say, had anticipated would arise

directly in relation to this matter.

Well, Your Honours, that leaves me with the

third ground which asserts that there was a

sufficiency of evidence both to go to a jury and

to support a conviction.

BRENNAN J:  But that surely could not be a ground of

special leave to - - -

MR GLISSAN:	No, Your Honour, it would only arise in the context that Your Honours wished me to direct
some remarks to that if Your Honours propose
to deal with the application for leave to
appeal in a number - - -
BRENNAN J:	But that would be on tl"E basis that we were

going to hear the apppeal which we say that

the Court of Criminal Appeal should have

heard itself.

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

(Continued on page 43)

C2T37/2/JM	42	4/5/88
Lewis

BRENNAN J: That seems to be a very curious notion.

MR GLISSAN: Well, Your Honour, I had anticipated that

Your Honours would not desire to take that course.

BRE0!~JAN J:	~foll, I am speaking only for myself.
MR GLISSAN: It is a proper case.	Your Honours, it is a case

for remitter to the Court	of Criminal Appeal, in our
submissior, for the matter	to be properly determined
by that Court.

WILSON J:	In which case - - -
MR GLISSAN:	No - I am sorry, Your Honour.
WILSON J:	In which case, subject to your right of reply,

you have said all that you would want to say on the

application and at the appeal.

MR GLISSAN: That is so, Your Honour, unless Your Honours 0.,1ish

to hear me at all in relation to the authorities which

were put on the list relating to ground 1 about the

reconstitution of the court but I rather anticipate

Your Honours do not.

WILSON J:  Thank you, Mr Glissan. Yes, Mr Higgins.

MR HIGGINS:  Your Honours, may I first hand up the respondent's

submissions which do, I regret to say, include reference
to the third ground of appeal which seems to have dropped

out of consideration as a matter of relevance.

Your Honours, perhaps if I can go straight to

paragraph 4 because the first three paragraphs are

really prefatory. The question of the reconstitution

of the court seems to be the first ground which is

raised. The summary of the summary, I suppose, of

my submission simply is this: that, as to that

ground, firstly, the court itself when it first was	constituted ultimately dealt only with directions.	It gave directions as to how the future conduct of
the application for leave to appeal should take place
and, indeed, that appears quite expressly on 8 May,
at page 292 of the appeal book when His Honour
the Chief Justice of the Northern Territory gave the
decision of the court in respect of the directions
which it had been asked to give. Now, in reality,
that concluded that part of the proceedings. Now,
why the Chief Justice was not available on the
subsequent reconstituting of the appeal, of course,
is not a matter that is referred to in any of the
appeal books but it is certainly clear that at the
end of the day, on 8 May 1987, all that had happened
is that directions had been given as to how the
appeal should proceed and, indeed, that ought -

C2T38/l/SH	43	4/5/88
Lewis

TOOHEY J: Is that strictly correct, Mr Higgins? I just

look at page 292, the second last paragraph, and

I draw your attention to this because of your

statement that the Chief Justice gave directions

as to how the appeal should be conducted. Is it

not more accurate to say that he gave directions

as to how the application for leave to appeal

should be conducted?

MR HIGGINS:  Yes, that would be more accurate, Your Honour,

that is true, and, perhaps if I refer to the words.

The words- in the second last paragraph are these:

We think that the question whether or not the appellant should have leave to raise them -

that is, the grounds on the appeal -

should be determined as a preliminary matter

before we embark on the hearing of the appeal

itself. We therefore propose to give directions

for the determination of that question and the

directions we give are as follows -

and they are then enumerated.

Now, what then took place is, of course, the

matter was adjourned indefinitely and resumed on
1 July 1987 with the court constituted, as my learned

friend stated but there was set out by Mr Tiffin at

the very outset,and this is at page 311, a resume of

the history of the matter which included the fact that:

The matter had come on on 7 May before the

court which then comprised the Chief Justice,

Maurice J and Muirhead J.

(Continued on page 45)

C2T38/l/SH	44	4/5/88
Lewis

MR HIGGINS (continuing):  So that there was certainly no

misunderstanding either in respect of the counsel who appeared or in relation to the members of the

bench as to the fact that the court had previously

been differently constituted. Mr Ellis, who appeared

for the Crown on both occasions took n~ objection
at all to that course and, as a matter of substance,

when the grounds of appeal were formulated as they

were on the third day full argument proceeded upon

those grounds. There was a question which, potentially,

was left up in the air as a result of that argument,

of course, which was if the ground succeeded in

one fashion rather than another, it may have been

that there would be the need to take further evidence.

In the light of the decision of the Court

of Criminal Appeal that eventuality did not occur
but, nevertheless, the grounds upon which the then

appellant sought to have as the grounds of his

appeal - his application for leave - were certainly

then put and argued,one side,then the othe~ with

a right of reply. So that there is no substantive

difference, no substantive withholding of material

from the second bench which had been placed before

the first; there was no, as indeed in some cases

where part of the evidence is taken before one

bench and, perhaps, a differently constituted bench

then hears the remainder of it - there was no offence

of that kind which was committed, so that if there

was any procedural defec~ and it is contended there
was not, it was ~ne of such a minor character with

no practical consequences tha~ first of all, no

court, with all due respect, would say that it

was a ground for vitiating the decision ultimately

arrived at by reason of a defect in natural justice;

the second is that it is not a special leave point.

There is no point of special leave that arises

because there is no affirmation of any principle

by the Court of Criminal Appeal of the Northern

Territory that it is permissible for a court,

substantively, to embark on an appeal - having

substantively embarked on an appeal or an application

for leave to appeal then to reconstitute in order

to finish it. There is no affirmation of any such

principle. So there is no question of principle

involved in relation to the first ground at all

which would constitute a reason for granting special

leave on that ground.

It is, indeed, hardly possible to add much more in respect of the first ground upon which

special leave is sought. There was, of course,

a canvassing of the question as to whether there

would be necessary to start de novo or not

necessary to start de novo, but that, of course,

C2T39/l/AC	45	4/5/88
Lewis

was in the context of the court being uncertain

as to what the end result would be of the hearing

which was then proceeding on 8 May, indeed 7 and 8 May,

before the Court of Criminal Appeal as originally

constituted. It was not really until it was decided

that there ought to be directions given rather than proceed on the substantive hearing of the application for leave to appeal, that the procedural

direction became quite clear. But once that position

becomes clear, it is also clear that there was

no substantive miscarriage of justice as far as

the Crown was concerned.

The second ground, and this also is a procedural

ground, is the ground that, in effect, the decision

took the Crown by surprise and - - -

BRENNAN J:  No, that is not the ground. The ground is that

they were not heard on the ground which was successful.

MR HIGGINS: Yes. I intended to encapsulate that by what

I have said but they say they were taken by surprise

because they did not have an opportunity to argue

the point upon which the court decided the matter.

(Continued on page 47)

C2T39/2/AC	46	4/5/88
Lewis

MR HIGGINS (continuing): In one sense, of course, the

proceedings on the second day are somewhat irrelevant

to this point because at that stage the court
was grappling with a question as to what the grounds

of appeal really should be; that the pleadings

should be, as it were, which set forth the grounds

which were to be relied upon by the appellant

should he be granted leave to appeal. And there

is no doubt that that was a difficult matter

because the applicant for leave to appeal was

representing himself, and in every respect of the
sense, he was not accepting Mr Tiffin as his

counsel, he did not even have Mr Tiffin draft the

second notice of grounds of appeal. It was

correct to say, as I think was put, that although
those grounds of appeal were largely drafted at

the direction of the bench with,no doub 4 Mr Tiffin's

advice being used by the appellant to assist him,

they were not only physically but apparently in
terms of the language used drafted by the

appellant or the applicant for leave to appeal in

the manner which he thought represented what was

the advice he had been given.

So the grounds were still not in a form which

would have passed muster in any pleading exam or

indeed for counsel to put their name to as grounds

of appeal which are filed in this or any other

court· They were still an informal document

in that sense. And, it is, of course, relevant to

say that perhaps the first document which the

appellant drew was probably better in terms of

encapsulating the merits of his argument than the

final one which he drew with legal assistance. So

perhaps it is a case where the lawyers were not of

all that much help to him.

That discussion about the form in which the grounds of appeal should be and the difficulty of

proceeding without distilled grounds of appeal appears

at pages 487 and 491 of the appeal book.	I think
they have already been referred to so it is probably

not necessary to refer to them again.

(Continued on page 48)

C2T40/l/SR	47	4/5/88
Lewis

MR HIGGINS	(continuing): But quite clearly, as they emerged on the third day, and the beginning of the third day,
the grounds as formulated did raise the issue of the unsatisfactory nature of the odontological evidence, and there was a general ground, at the end of the grounds of appeal, which referred to the defects in the trial which rendered it a miscarriage
of justice. Now, the Crown, of course, did not object
to the formulated grounds of appeal. The Crown was
aware of the original document, and aware, too,
that what the court had hoped would be the result of
the formulation of the grounds of appeal was that they would take out the odontology point, as it was called,
and at page 498 in volume 2 Mr Justice Maurice said
this, and it was in the context of discussion with
Mr Tiffin - the second paragraph where His Honour's
name second appears:

And overnight if the appellant - if you

could try and perhaps write out, Mr Tiffin,

we are adjourning early, a ground along the

lines suggested by my brother Asche, to pick

up the odontology point and to add to the

appellant's document, and if he could read

that overnight. If he's brought - - -

BRENNAN J:  Now, where is the suggestion of His Honour's

brother Asche?

MR HIGGINS:	I think that is about page 495 or page 496, Your Honour. It is just shortly before. Justice Asche
said this at the top of page 496:

You see, I think we can add this: the

odontology ground is worrying you -

that was Mr Lewis to whom that remark was addressed -

Well, I think we can put that in this notice

that Mr Tiffin has prepared, but even if

you don't like the other grounds that he's

prepared, they seem to me to cover much of

the matters you put in your document, at least take that back with you and try to throw it into that sort of form.

MR LEWIS:  Yes, I will.

(Continued on page 49)

C2T41/l/HS	48	4/5/88
Lewis

MR HIGGINS (continuing):  So, as a matter of substance it was

quite clear that the odontology point, the

unreliability of that evidence -

BRENNAN J:	Was that the odontology point?
MR HIGGINS:	Yes.

BRENNAN J: Unreliability?

MR HIGGINS: Unreliability in the sense - - -

BRENNAN J:  Not admissibility?

MR HIGGINS: Also admissibility, but there was a reference

made quite early in the appeal, as it came up on

7 May, about the application of CARROLL's case

where the discussion had been whether a verdict
based on the odontological evidence given. in that
case rendered the decision unsafe and unsatisfactory.

Now, the court had read it, it appears, and it was certainly referred to at page 459, which is of the

appeal book.

DAWSON J:	The CARROLL case had held the evidence admissible?
MR HIGGINS:	Yes, admissible - - -
DAWSON J:	Unreliable?
MR HIGGINS:	- - - but because of its unreliability to the

verdict which was substantially based upon it,

was for that reason unsafe and unsatisfactory.

So the implication arose from the odontology point,

as it was called. It was quite plain at all material

whether having regard to the unreliability of it,

times. It was quite plain that it referred to - where

a verdict based upon it, was unsafe and unsatisfactory.

Now, Mr Glissan conceded this verdict in this case

could only safely have been based on the acceptance
of that odontol"ogical evidence.	There is no doubt

that the balance of the evidence could not have

safely found it a verdict of guilty.

The appellant, in fact, had as early as

1 July, in the course of that hearing, raised the

question of CARROLL's case, and this was as soon

as he was sworn to give evidence, which he was,

at page 326 of the appeal book. Justice Maurice

asked him:

What do you want to say, Lewis?

And he said:

Just in the affidavit I'd like to add the

CARROLL case and the arguments to the

CARROLL case.

C2T42/1/MB	49	4/5/88
Lewis

Justice Muirhead said:

What's the CARROLL case?---The CARROLL case is to do with the teeth; the odontology.

The court said:

We're not interested in arguments at this

stage.

But nevertheless it was raised, virtually at the

outset. It was raised again at page 459, as
already indicated. It was raised again at page 467

in a discussion between Mr Tiffin and Justice Asche

and Justice Maurice. Perhaps it might be said that

it was also a question as to how that would fit

in in terms of a ground of appeal because it would

have several implications.

(Continued on page 51)

C2T42/2/MB	so	4/5/88
Lewis

MR HIGGINS (continuing): It would have an implication as

to admissibility, perhaps, an implication as to

whether it ought to have been admitted in the

exercise of discretion and implication as to whether

there ought to have been a warning in relation

to it in the judge's direction but it also raises,

of course, the question as to whether the verdict

based upon it was unsafe and unsatisfactory.

The Crown, even on 2 July 1987, made a

submission concerning CARROLL's case. At

page 486 Mr Ellis said this - this is half-way

through his submission as reported on that page:

It would be my submission that

Mr Adams could do no more than that, and that

that would be how he would use CARROLL's case.

He would be entitled to put what was previously said, which he did, and test him on that and

then put to him some of the problems with
this conflict in evidence, which he did.

And to put to him the problems in relation

specifically to bruising, which he did.

Although it is to be noted in this case

that there was some laceration on the bruise,
which was.·not the case in CARROLL, it was

purely a bruise type situation, and it was on a rounded surface. All of those things

were put to Mr Sims -

Now, of course, the only argument the Crown could

raise in relation to the CARROLL case was that

it should not be applied because fundamentally
it was simply a question of fact for the jury to
determine and it therefore ought not to found any
submission that it was unsafe and unsatisfactory
to base a verdict on the odontological evidence
admitted in the instant ~ase. That was the only

argument· the Crown could really put and that was

the argument which was being addressed by Mr Ellis

at pages 486 and 48 7.

This is, of course, before the case of the grounds of appeal were properly formulated and it was in

that context that Mr Justice Muirhead said at

page 489 that it was a bit difficult to understand

how CARROLL's case fitted in and, of course, it

is until you distill a ground of appeal to which

it relates.

(Continued on page 52)

C2T43/l/ND	51	4/5/88
Lewis

DAWSON J:  But there was that ground of appeal at that stage

and -

MR HIGGINS: Well, in fact, there was, that is right.

DAWSON J:  And, of course, that is not a question for the

jury when you raise that point.	It is for the assessment
of the appeal court.

MR HIGGINS: Well, indeed, because it is one of those curious

grounds of appeal where, in effect, nothing could be

done to save the trial. The evidence being admitted
and properly admitted, it is not a ground of appeal

to assert that it should not have been,.1 The learned

trial judge in this case adequately directed the jury

as to it. There was no fault found with His Honour's

direction and yet, for the jury to find a verdict of

guilty in the circumstances, is unsafe and unsatisfactory.

It is rather like - I think, a case whose name just

escapes me at the moment where the accused's wife was called to give evidence but she did not wish to give

evidence and it was held that was a correct exercise

of discretion but it created a miscarriage of justice.

BRENNAN J:  Mr Higgins, the passage that you referred us to at

page 489 of Mr Justice Muirhead - I am not sufficiently

familiar with the whole of this record to know whether

what His Honour is saying there is, "We have heard

argument thus far on questions of admissibility of

odontological evidence . Therefore, I do not know

what CARROLL's case has to do with it because it does

not say that, as a raw proposition, odontological

evidence is not admissible., "

MR HIGGINS: That is so.

BRENNAN J: Well now, if that is so, in a sense, it is against

you, is it not, because at least so far as His Honour

is concerned there, he is talking about a consideration

of a problem of admissibility.

MR JIGGINS:  Yes, His Honour is primarily directing in the first

part of the page his mind to the question of

admissibility but he does go on to say - and this is

at two exchanges following -

(Continued on page 53)

C2T44/l/SH	52	4/5/88
Lewis

MR HIGGINS (continuing):

There are a host of cases where

courts have said that the scientific

evidence, or other forensic evidence, is

unsafe.

BRENNAN J:	Yes.
MR HIGGINS:	And then goes on to say:

But here the appellant refers to

a kind of a fence, and they were all on
one side of the fence, but one was called

by his own counsel, and we can't speculate.

Maybe they couldn't find anyone on the other side of the fence.

BRENNAN J: Yes, that is though said again in response to

Mr Ellis' observations about CARROLL's case,is not

it?

MR HIGGINS:  Yes, there was a difficulty plainly in formulating

a view about exactly what the relevance of CARROLL's

case was going to be in the context of the

application for leave to appeal.

BRENNAN J:	Was there anything the next day which indicated that CARROLL's case was being looked at as,as it were,
a talisman for the determination of this case on
the merits?

MR HIGGINS: Well it was certainly adumbrated at some length.

If one goes to the Crown argument which occurs

at page 604 onwards on the following day -I am

sorry, it is not the Crown argument at page 604 so

much because the Crown argument started before

then, but in fact it started at page 559, but it

starts on CARROLL's case on page 604 and the

method chosen by Mr Ellis to deal with the points

raised had been to address the notice of appeal and

he addressed the points raised in it seriatum and

he had gone through, at this point, the question

of the number of criticisms which had been made of

the safety of the evidence or the adequacy of

the evidence which had led, so the applicant for

leave to appeal had said, to a miscarriage of justice.

And at the bottom of the page, he says:

Just finally, in relation to - in sort of getting to CARROLL's case, I did have

a number of comments to make in relation to the

case generally, which were to be short, if I can

find them. I think that previously the attention

of the court has been drawn to the vast differences

in factual situations, and I don't intend to

cover that ground again.

And he then referred to the evidence of Dr Sims and to
r1r Just:ice Neap's judgment which had, of course, been the leading

judgrrent in CARROLL' s case.

C2T45/l/SR	53	4/5/88
Lewis

MR HIGGINS ( continuing): It was said that certain things

had been put to the various expert witnesses and

then returned again to CARROLL's case, which was

apparently then in court, and after having gone

through the factual material that related to the

instant case made this submission, at the bottom

of the page 606:

But no matter the merits of that, the

fact is that he was cross-examined on that

aspect. Then if one looks at the judgment

in CARROLL's case, at 415 after the quotation

from the evidence there are a number of matters

raised and it is those problems which are raised which are seen or revealed in some

of the subsequent questioning by Mr Adams.

One will see that there were questions asked

about the changes in tension of the skin,
the shape or rather the curvature on any of
the places that bite marks might've appeared,

the problems with 3 dimension to 2 -

because the identification, in this case, was from
photographs of a bite mark, not from the bite mark

itself. So the distinction made in CARROLL's case,

or one of the causes for dissatisfaction was, that

the identification was being trans lated from a curved

surface, namely, the teeth, to a flat surface,

namely, the photograph of bite marks - that is

the reference there -

and in fact there were problems with relation

to the examination of bite wounds on deceased
persons.

Now, in effect, the argument about CARROLL's case then continued until page 610 and, again, the Crown, as it had to, was merely saying, and only saying,

all that it could say was that: "Well, this is

a different case, it is safe and satisfactory in

this case even if it was not in that." and at page 610

In any event, there's no further matters that
I'd like to address the court on in relation

to CARROLL's case. I think I've covered all
of those aspects that need covering.

Mr Ellis said - the middle of the page:

(Continued on page 55)

C2T46/l/AC	54	4/5/88
Lewis

MR HIGGINS (continuing):  And immediately then, at page 611

went on to ground 10, the:

substantial miscarriage of justice when

the defects in the conduct of my trial

are looked at in totality." Well -

the submission in relation to that was simply

this:

one doesn't get to totality when one
adds up nothing. There's no total and

it's the Crown's submission that when you

add up all of the these points, nothing

is what you get.

There is no basis at all for any

suggestion -

says the Crown -

that there was a miscarriage of justice in

this -

area. And the Crown argument concluded at page 613

where Mr Ellis .concluded in this way - and this

is towards the top of the page:

there is insufficient substance to raise
this matter to raise the grounds if you like,

to - upon the balance of probabilities .....

there was such a miscarriage. The Crown's

submission is that the Crown, at this stage,

ought not to be called on to call evidence as there simply is at this point in time no

case which could be made out on this

application.

Now, the Crown's submission was when finally boiled down that there was no merit in any of the grounds

which the appellant sought to raise, therefore

the application should be dismissed. So the

merits were in fact being canvassed, certainly as

far as the Crown were concerned, to block the

appeal then and there. But reserving the right

if it were the case that the /.ppeal Court felt that

evidence should be called as, for example, if the

court felt there was some prima facie merit in the argument about the conduct of counsel that

evidence would need to be called.

BRENNAN J:  Mr Higgins, what troubles me about this is

I see the force of what you say as to the general coverage of everything that had been raised and that perhaps one ought not to look too much as to whether it is an application for leave, or whether

it is the full hearing, or whether it is just one

question still outstanding, but in the passages to

whi~h you have directed us, I see no indication.

C2T47/l/JM	55	4/5/88
Lewis

except in the general reference to CARROLL's

case of attention being directed by any party,

or by the Court, to the question as to whether

on the whole of the evidence it is so unsafe

and unsatisfactory that a jury ought not to

have convicted.

(Continued on page 57)

C2T47/2JM	56	4/588
Lewis

MR HIGGINS:  Your Honour, I think it would be fair to say

there is no express reference.

BRENNAN J: Is there any implication - I should add, apart

from the general references to CARROLL's case.

MR HIGGINS:  Apart from that, the only other reference,

Your Honour, is when Mr Lewis made a final submission

to the court and that started at page 613 and

Mr Lewis himself, at the bottom of page 613, referred

to Dr Sims not being:

examined on his mistakes in the CARROLL case,

and how he came to his conclusions in the

CARROLL case -

he said he did not think the court was aware of

the CARROLL case and then said, at 615:

Some of the things in CARROLL that were

brought up, but they were not told about in

the Carroll judgment saying that is not

reliable, and that the appeal court had

already made that judgment. That the things

that they were saying weren't reliable, they

never said to that jury or anyone that that

CARROLL judgment had already made them

judgments that they were not reliable.	They
just said that people thought that.	They

never said that there had already been a

judgment put down that these things were not

reliable.

And it is certainly true to say that Mr Lewis was

hammering the point that the odontological evidence

was not reliable as he had done in his original

document and relied expressly in that case on the

CHAMBERLAIN case and the unsafe and unsatisfactory

point which at that stage, of course, the appellate

court had and firmly had, according to the statement

that had been made to him, firmly in mind and,

indeed, one assumes that that statement would not

have been made if it had not been a fact. And

if that was the fact, so far as the court was

concerned, it would also be the fact, one would

think, as far as counsel for the Crown were concerned.

(Continued on page 58)

C2T48/l/ND	57	4/5/88
Lewis

MR HIGGINS (continuing):  Even at the very end where, in effect,

the court terminated the proceedings, at page 620,

the passage that has been read does, in the context,

bear a little bit of a different interpretation and

so far might be thought as being placed upon it.

It might be noted that after Mr Lewis had finished

his address Mr Tiffin was asked whether he wanted
to add and he did not do so. The Crown did not ask

to add anything in reply to what Mr Lewis had said.

The Crown did not suggest that it misunderstood

anything Mr Lewis had said and His Honour

Mr Justice Maurice, having asked Mr Tiffin whether

he wished to add anything said:

I think you can be sure, Lewis, that we

will consider the matter very carefully

and all the points that you've raised, and

look at it from both sides; but there are,

as you've acknowledged, 2 sides.

As far as the Crown's concerned, whilst

it may be that we will be able to decide the

matter without putting the Crown in the

position where it has to consider whether it

wishes to call evidence or not, we would
not decide it on a ground where it would be

unfair to the Crown to do so without first

giving it an opportunity to consider whether

it wanted to call evidence or not.

TOOHEY J: 

Mr Higgins, what is the "it" referred to in the

fourth last line of that paragraph; "we would
not decide it"?

MR HIGGINS: That was the application then before the court,

Your Honour. Undoubtedly it would refer, in formal

terms, to the application for leave to appeal but,
of course, it is not unknown for an application for
leave to appeal to transform itself into an appeal

per se, leave being inunediately granted and the

appeal being disposed of one way or the other, where

it appears, in effect, that the whole merits of

the appeal have in fact been canvassed and be a
waste of everyone's time further to proceed.

There is no doubt, Your Honour, that it would have been far better for the court to have come back

and said, "Look, we have decided that leave should

be granted, is there anything more you or the Crown

want to add?" There is no doubt of that, but the

court did not do that.

WILSON J: Yes, I would have read 620 that the word "it" harks

back to the matter that appears in line	2; "we
will consider the matter very carefully."

C2T49/l/MB	58	4/5/88
Lewis

MR HIGGINS:  Yes, and in formal terms, the matter certainly

was the application for leave to appeal, but

whether not only the court, but also counsel,

would have understood the matter to include the

potential disposition of the matter in a final

form, is not clear. But the question that then

arises, of course, is that even if it be said that

that is not clear, when the court came back on 17 July
and gave its decision, redrafting, in effect, the

ground of appeal, which was one of the grounds of

appeal which ultimately succeeded, and relying on

grounds 7 and 10, the Crown could not be said

to have, in terms, objected to that course being

taken.	The Crown did say, in the middle of
the - - -

BRENNAN J:  That would have been shutting the stable door

after the horse had not only bolted, but come past

the winning post.

MR HIGGINS:  Up to a point, but nevertheless, the horse was

not out of the paddock. It could have been recalled.

But what was said by Mr Ellis was, "Perhaps it is

my fault in the sense that I had a misunderstanding."

Well, it mai or may not have been his fault in this

context, but 'the fact that Your Honours will be

proceeding on other points, I didn't	understand that
to be case."	But if one asks, as a matter of

giving leave to appeal. Logically they lead to a question of quashing the conviction without ordering a new trial. Is there anything you want further to

substance, what would have been the situation had

add to what you have already said?", one asks what

could Mr Ellis really have added?

(Continued on page 60)

C2TS0/l/HS	59	4/5/88
Lewis

BRENNAN J: That is a question which, I think, perhaps puts

its finger on the real nub of this case and that

is: can an answer be given? Could it have been

given by the Court of Appeal because if it could

not be given by the Court of Appeal there was a

failure to accord natural justice?

MR HIGGINS:	The answer we would submit, Your Honour, is that there really was not anything further to be
said.  The issue as to CARROLL's case had been
canvassed, it had been canvassed by both sides, the argument led the Court of Appeal, on reflection
to consider that there was no way that the verdict
could be supported.  They did not expressly embrace
any principle which said that a party should not
be given any leave to be heard or should not be
given the opportunity to be heard on a point, it was not a case where the court said, expressly,
that, "You have been given enough ogportunity to
be heard, you do not need any other'. If there
was an error at all in the proceeding that, as
it happene~ it was an error that appears to have
arisen because of the confusion of the original
format of the application for leave to appeal rather than from any other cause.

It certainly does not raise any issue of

principle about how a case should be heard. The

worst that can be said of it is the applicant for

leave to appeal was fortunate that he got his

proceedings foreshortened whereas he was released

when the court came back, to deliver its decision

on 17 July. Had the Crown wished a delay to argue

the point he might have had to wait another week

to be released. But quite clearly - for a start,

it is very difficult to point to any miscarriage
of justice that arose to the Crown as a result

of the way in which the court decided the matter.

(Continued· on pt:ige- 61)

C2T51/l/ND	60	4/5/88
Lewis

MR HIGGINS (continuing): Secondly, it is easy to point to a

miscarriage of justice to the respondent to this

application for leave to appeal if the verdict of

the Court of Appeal is now set aside, and there is

no question of general importance or of substance

that arises which needs the intervention of this

Court to lay down something that needs to be made

clear to the various supreme courts of this country,

or, indeed, the lower courts of this country.

In my submission, even if there be a procedural

fault it is not one that is of sufficient imuortance

to give rise to an application for leave to appeal

succeeding. In any event, substantial justice has

been done.

TOOHEY J:	Mr Higgins, can you tell us with any precision the length of time your client has been in custody
in connection with this offence?

MR HIGGINS:  I believe 14 months, Your Honour. Our instructions,

Your Honour, are that he was in custody a total of

14 months in connection with this matter.

TOOHEY J: Presumably a substantial part of that between trial

and appeal and some part of it prior to trial?

MR HIGGINS: Yes, and some part p'rior to that time.

TOOHEY J:  Yes, thank you.

MR HIGGINS: If the Court pleases. Unless the Court has anything

further, those are my submissions.

WILSON J: Yes, Mr Glissan?

MR GLISSAN:  Your Honours, unless there are some particular

matters, there are some short factual matters that I
could take Your Honours to, but I think they have

been canvassed fairly extensively. The issue seem

to be fairly joined between my friend and I.	The
only short factual matter is related to the opportunity
afforded the Crown and the content of Mr Lewis'	last

remarks taken in toto and throughout. All we would

raise issues in relation to CARROLL 1 s case,	say in relation to that is: all of those clearly
odontological evidence,confined to the conduct of his counsel. Beyond putting those matters I
do not think there is anything - unless there is
some particular matter that Your Honours wish me
to deal with - I do not wish to be heard further.

WILSON J:  The Court will retire for a moment to consider the
matter.

AT 4.23 PM SHORT ADJOURNMENT

C2T52/l/SDL	61	4/5/88
Lewis

UPON RESUMING AT 4.32 PM

WILSON J:	The Court will consider its decision in this
matter.

AT 4.32 PM THE MATTER WAS ADJOURNED SINE DIE

C2T53/l/SDL 62 4/5/88

Lewis