Reg v Rogerson

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl43 of 1990
B e t w e e n
THE QUEEN

Applicant

and
ROGER CALEB ROGERSON

First Respondent

MORRIS ENRICO NOWYTARGER

Second Respondent

NICHOLAS JOHN PALTOS

Third Respondents

Application for special
leave to appeal

Rogerson

5/11/91

MASON CJ
BRENNAN J

DEANE J

TOOHEY J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 NOVEMBER 1991, AT 10.16 AM

MR K. MASON, QC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,
MR G.E. SMITH, for the applicant. (instructed by
the Director of Public Prosecutions (New South
Wales)

MR K.G. HORLER, QC: If the Court pleases, I appear for the first-named respondent, Roger Caleb Rogerson, with

my learned friend, MR P. BYRNE. (instructed by
O'Connor Bellamy)

MR T.E.F. HUGHES. QC:

May it please the Court, I appear

with my learned friend, MR A.J. PHILPOTT, for the
second respondent, Nowytarger. (instructed by
O'Connor Bellamy)

MR R. RICHTER, QC:

May it please the Court, I appear with

my learned friend, MRS.A. SHIRREFS, for the third
respondent, Paltos. (instructed by Pryles &
Defteros)

MR D.J. ROSE: If the Court pleases, I appear for the

Attorney-General of the Commonwealth, intervening
to support the applicant, but limited to the
principles concerning the grant of special leave.
(instructed by the Australian Government Solicitor)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned
friend, MS J.F. LEE-JUSTINE, to intervene on behalf
of the State of South Australia, also to support
the applicant, and likewise confined to the issue
of the proper principles on a grant of special
leave. (instructed by the Crown Solicitor for
South Australia)
As my submissions are confined to the proper

approach to the interpretation of section 35A, I seek leave to address submissions to that issue.

MASON CJ: Any opposition to the grant of leave? Leave is

granted, Mr Solicitor. Yes, Mr Solicitor for
New South Wales.

MR MASON:

Your Honours, the case at trial is summarized

quite conveniently in the written submissions filed
on behalf of Mr Rogerson before the Court of
Criminal Appeal and in volume IV of the application
book, pages 876-877, there appears a summary of the
Crown case and a summary of the defence case in
under one page:
Rogerson and Nowytarger placed $119,000 into

bank accounts in false names. On 1 July 1985
they closed the accounts and were filmed doing
so. They later became aware of this fact and
realised that Rogerson "would have to have an

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5/11/91

explanation for having a large sum of money in
false names in the bank" because "an
investigation would take place ... as to the
source of the money and its legitimacy".

Your Honours, at that stage Mr Rogerson was a
police officer, but a suspended police officer.
The police became aware of it on 16 July, the
Taxation Department on 19 July. Rogerson and
Nowytarger agreed with Paltos and Karp to
"concoct a story" (the sale of the Bentley to
Karp) to explain the source of some of the money and thereby "interfere improperly with public justice which includes the process of
investigating crime by police".
Your Honours, the Bentley belonged to

Nowytarger. Rogerson had some interest in the
Bentley. Paltos was approached firstly to assist in providing an explanation for the source of the

money. He said he could not, but he introduced the
others to Karp, the solicitor, and Karp arranged,
on behalf of Nowytarger and Paltos, to prepare a
sale agreement, in 1985, which was backdated to
1983, and it was common ground at the trial that it
had been backdated, although the purpose for its
backdating was in issue. Each of Karp, Nowytarger
and Rogerson, when subsequently interviewed by the
police, asserted the validity of this sale
agreement as the source of the moneys which were
put into the bank accounts under the control of
Rogerson in the false names.
Returning to page 877:
various steps were taken to implement the
agreement. "[I]it is not necessary for the
Crown to prove where this money came from.
However, the only inference, perhaps an
irresistible inference which is left, is that

the money was unlawfully obtained." The
probable source of a large proportion of the
money was in fact the drug transaction between
Rogerson and the witness Jones.

The defence case was that:
The money was in false names because an
imminent trial involving Rogerson -

that involved a man called Drury -
There was no agreement to concoct a false
explanation for the source of the money
because the explanation given was true. There

Rogerson

5/11/91

was no intention to pervert the course of
justice. Rogerson had never met Jones.
Your Honours, in the outline of the written

submission which I understand the Court has, we set
out six grounds why, in our submission, the Court should grant special leave in this case. The nub of the decision in the court below can perhaps be
identified by referring to two pages in the
judgment of the Court of Criminal Appeal which is
in volume IV, commencing at 1190. If I may take
the Court to pages 1211 and then 1215 in volume IV.
At page 1211, page 22 of the judgment of the court
delivered by Mr Justice Lee, His Honour, at the top
of the page, said:
Those words do not express the matter as

definitively as I have just done, but they are
intended, in my view, to be understood as
stressing that, in a charge of attempting to
pervert the course of justice involving a
police investigation, it is not sufficient
merely to say of the appellants that, by
telling lies to the police, they indicate that
they have done something unlawful which could,
if it were known, result in proceedings
brought against them; there must, when
attempting to pervert the course of justice is
charged, be positive evidence put forward to
point to the kind of proceedings, in the sense of the general nature of the charge, which the
accused had in his contemplation when he
engaged in the conduct which resulted in his
being charged with attempting to pervert the
course of justice.

At page 1215 to 1217, I will not read the whole of
the passage, perhaps I can look at the bottom of
1216, referring to a case of Field, three lines

from the bottom, he said:
It can be seen that it was plainly within the contemplation of the appellants that an
identifiable course of justice, namely,
prosecution in respect of the planned robbery
would follow and the object of their agreement
was to prevent that.

At about point 4 on page 1217, referring to a case
of Andrews:
Once again one sees in the evidence the established fact that an event has occurred
which is likely to be the basis of a
prosecution, and thus the imminence of an
identifiable course of justice.

Rogerson

5/11/91

Finally, if I may, 1221 near the top of the page,
this is referring to Todd's case, the South
Australian case which was found to be in point by
the court:
The police investigation in that case, was an
inquiry designed to find out what had happened
that accounted for the car being where it was,
and in the case with which I am concerned
here, the investigation was no more than an
inquiry by the police to find out how the
monies came into existence. In neither case
were the police investigating a crime or a
breach of the law with a view to making an
arrest and launching a prosecution as an
ordinary consequence of the investigation, if,
of course, the evidence was available to
connect the person charged with the offence
being investigated.

At the bottom of the page:
From all the foregoing, it can be seen

that the stream of authority, particularly the
more recent cases, shows that where a
prosecution for attempting to pervert the
course of justice is based upon falsehoods or
fabrication or attempt to fabricate evidence
designed to interfere with or to deflect a
police investigation into the commission or
possible commission of a crime, the evidence
in the Crown case must show that such conduct
has the tendency to and is intended to affect
curial proceedings which, in the ordinary
course, could follow that investigation. This
necessarily means (except where the accused
asserts a bogus crime) either that there must
be evidence that an identifiable crime has
been committed, or evidence that the police
conducting the investigation have before them
some evidence which raises a suspicion or

belief that an identifiable crime has been
committed.
I will return, if I may, to our criticisms of

that. The nub of the decision in requiring the
Crown to establish and prove what the identifiable
crime was in the minds of the accused is a
proposition that would apply to conspiracy, attempt
or pervert the course of justice in its statutory or code or common law form throughout the country.
We, secondly, submit that the decision is

clearly wrong and, if I may, I will come to that.
Thirdly, we submit that if this Court were not prepared to review this decision then the opportunity may not arise in any other case

Rogerson

5/11/91

conveniently to do so because even if the Court
were to overturn Saffron's case in its reserve
decision in Mellifont, in our submission, that
would not necessarily bring about the situation
that the matter could be determined. That is
because the Crown could never, with good
conscience, certainly in New South Wales, lay a
charge simply for the purpose of conceding at trial
that the matter was governed by Rogerson and then
conceding in the Court of Criminal Appeal on a
Crown appeal that the matter was governed by
Rogerson, simply for the purpose of bringing the
matter into this Court. So, in our submission, it
is not a matter in which it is likely that an
opportunity would present itself again in which,
certainly in a New South Wales context, this issue
which, in our submission, is a material change in
the law could be determined by this Court.
Fourthly, we submit that, leaving aside the

facts of the present case, the decision has a
bearing upon corruption charges generally involving
police officers, prosecutors and the like, because
if all that the Crown is able to prove is that
there was a general corrupt arrangement whereby
money would be paid to a public official such as
that, to burke all prosecutions involving a
particular person or class of persons, then the
requirement of specificity, which is said to be
essential in the Court of Criminal Appeal decision,
would be absent.

DEANE J: What is this word "burke", Mr Solicitor?

MR MASON: Cover up. I have not checked it in the

dictionary for some time, but I understand it
is a - - -

BRENNAN J: Is it Solicitor-General jargon or criminal

jargon?

MR MASON:

It is discussed in Kalick's case, the Canadian

one and I will check it later, but I understand it
is a word in the English dictionary.
Your Honours, may I hand to the Court an

affidavit, copies of which have been given to my
learned friends, relating to proceedings that are
very shortly to commence iri the County Court
of Victoria, in which the trial is expected to go
on the Crown estimate, four to six months; on the

defence estimate, 12 to 18 months. The presentment
in that case involves perverting the course of
justice. It does involve an allegation of some
more specificity than was involved in the present
case in that the allegation is that police officers
were involved in a five year long racket to protect

Rogerson

5/11/91

brothel owners from prosecution, although the range
of prosecutions one can presumably infer what they
would include, but not necessarily confined to
prosecution perhaps for conducting a brothel.
And there was an application in February of
this year in effect for a stay of the

proceeding because of the Rogerson decision. The
Crown adjoined with the defence counsel inviting

the judge to rule on the matter; he declined. The
matter has, in effect, been deferred until the
close of the Crown case, which will obviously be
many months of hearing time away and whilst
His Honour at paragraph 7 of the affidavit
indicated a view that, in his opinion, the mere
fact that the arrangement preceded any
contemplative proceedings, did not - in his view

that meant that the charge possibly was good. In
effect the point has been raised and we would
submit that here is a situation where, if
Rogerson's case is correctly decided, in this case
the Crown has laid a charge, but the charge may
come to naught; there may be other cases where the
Crown is unable to lay a charge because of the
holding in Rogerson's case.
The fifth reason we would advance why, in our submission, special leave should be granted is the
fact that section 35A(b) of the Judiciary Act
highlights the interests of the administration of
justice, either generally or in the particular
case, as a factor to which the High Court shall
have regard in exercising its discretion.
Whilst in one sense there is a little bit of

circularity in the argument because we say that the
interests of the administration of justice were
involved and our opponents say they were not, it is
in our submission well established by Murphy's case

that the course of justice commences to flow when
police investigations commence.
Therefore, what is in issue here is not the

fact that the investigation preceded any charges
being laid or any proceedings commencing, but the
specificity of the knowledge in the mind of the
accused at the time when they did the acts which
are complained about. Nevertheless, those are
matters involving the interests of administration
of justice, in our submission.
Finally, we submit that the case is a suitable

vehicle to address what we submit is an apparent
difference of principle between members of this
Court about Crown applications, and we are
confining the case to Crown applications involving

Rogerson

5/11/91

the order of an intermediate Court of Criminal
Appeal which sets aside a jury verdict.
One of our opponents who has given us a copy

of their submissions suggests that what the Crown
should have done in this case was followed the
advice of this Court in Jones v Reg, (1989) 166 CLR
409 at 415. That was a case in which an appeal to
the Court of Criminal Appeal was brought by an accused person on a number of grounds, some of
which were acquittal grounds and some of which were
new trial grounds. The appeal was upheld and a new
trial was ordered, but the accused person said he
wanted an acquittal, and the matter came to this
Court and the Court granted special leave, as it
did earlier this year in a case of Solomon, where
the Crown accepted that it was bound by Jones's
case.
The Court said there, "Whilst we grant special

leave, the proper course would have been to have
gone back to the Court of Criminal Appeal" - and it
is particularly at 415 - "the proper course would
have been to have gone back to the Court of
Criminal Appeal first and said, 'Well, I know
you've given me a new trial, but I remind you that
some of my grounds would, if accepted, lead to an
acquittal'."
Your Honours, in the present case all of the

grounds were argued before the Court of Criminal
Appeal and the Crown was naturally attempting to
hold on to the conviction and the appellants were
naturally attempting, as their first choice, to
achieve what they achieved, namely an acquittal.
In our submission, it just would not be open for the Crown, having lost on the greater ground, to say to the Court of Criminal Appeal, "Well, we
would like you please to write another judgment on
the other grounds to say why in any event you would

have dismissed those other grounds or upheld those
other grounds".
The Court of Criminal Appeal was invited, as

was the trial judge, to throw out the case on the
ground which ultimately succeeded before the Court of Criminal Appeal, and so our submission is, what
more could the Crown have done, and if, as we
submit, the Court of Criminal Appeal fell into
error in throwing out the whole charge on the basis
that it did then, whilst the course we seek from
this Court is the matter to be remitted for the
remaining grounds to be dealt with, it is not our
fault, to put it at its lowest, that on the
application of the accused the court was led into
error by taking a shortcut to an acquittal.

Rogerson

5/11/91

Your Honours, if I may then move to our submissions as to the error of the Court of
Criminal Appeal and briefly take the Court to the
chronology of the facts which we have set out in

Appendix A. There was evidence, which was highly
disputed, about the receipt by Mr Rogerson of a
large sum of money in exchange for a bag containing
white powder at an airport. This was led,
obviously, to show, at least against Rogerson, the
fact that he had access to money received in
circumstances where he would have a motive to hide
the source of that money and he would have a motive
to deflect or burke any police investigations.
It was also common ground, as we suggest in

the chronology, that in May 1985 Rogerson and
Nowytarger arranged for Rogerson to deposit moneys
totalling $110,000 into accounts in false names at
the National Bank at York Street. The bank on
1 July asked for all accounts in false names to be
closed and they were and the moneys were then

divided. The money from one of the accounts was
put into another account under the control of
Mr Rogerson but again in Nowytarger's presence, in
an account at Westpac, Penrith; the· other money was
disposed of by Nowytarger by lendi-ng it to a
friend.
At that stage, and at that stage unbeknown to

them, Rogerson and Nowytager were photographed by
the bank's security cameras. Within a little over
a week a police officer told Rogerson that he had
been photographed with a criminal, and we stress
those words because they would, whether or not
true, and Rogerson and Nowytarger vehemently denied
that that was a correct description of
Mr Nowytarger, they would, nevertheless, trigger
off a concern by a police officer that police
investigations were likely to follow from that
event.

Then subsequent to that event, but before the

commencement of the police investigations - and the
respondents would make much of the latter statement
- a meeting took place at a Kings Cross restaurant
where, in effect, the arrangement was made; that Mr
Karp, then a solicitor, was going to prepare this
backdated sale agreement that would show a stream
of moneys being paid by Karp to Rogerson and
Nowytarger that would come up to close to $60,000
on account of what was, on the Crown case, a sham
sale of the Bentley car, and that agreement was
prepared; was signed by Nowytarger and Rogerson and by Karp as Karp as purported vendor; bogus receipts
were created showing the stream of payments over
the preceding two years; an accountant was involved
and he gave evidence that he, on Rogerson's

Rogerson

5/11/91

request, had prepared backdated notes that would
purport to be showing that in 1983 the matter was
discussed.
Subsequently, each of the conspirators on the

Crown case told the police when eventually

inquiries were made that, yes, this was a genuine
agreement and the moneys had been paid.
The Crown relies upon the facts referred to at

the bottom of page 2 to show the corrupt nature of
the arrangement; the fact that it was triggered
off by the knowledge that Rogerson and Nowytarger
had been seen together. There was evidence by Karp
who had pleaded guilty and gave evidence as a
co-conspirator which was, it believed, quite clear
as to the corrupt nature of the arrangement and its purpose to deflect police investigation. There was
the very fact that the fake agreements were
prepared; the facts that subsequently, and this
was some months later, Rogerson and
Nowytarger - and I should have added, initially
Karp - told the false story to the police when
inquiries were being made about the source of the
moneys. And in the case of Mr Paltos there was
what one would have thought was very strong
evidence, and if I could just very briefly take the
Court to that - it is in volume III of the
application book right at the back - because
although this evidence only went in against Paltos,
it does show that Paltos, nevertheless, was the
beneficiary of the Court of Criminal Appeal
decision, as were the other respondents.
This was a conversation that was obtained by a

listening device on 19 July 1985 in which Paltos,
Karp and Palmer were overheard speaking.

MASON CJ: What page is it, Mr Solicitor?

MR MASON:

I am sorry, page 856, in which, in effect, Paltos

was bragging about what he had done for Rogerson,
and I will only just quickly look at a couple of

bits of it. On 856:
What did Roger want, what d'ya do for Roger?
You done something for him?

And then he said yes, very big. Then at about
line 13:
And he opened up a couple of bodgie bank
accounts -

a reference to obviously Nowytarger. Over on
page 857 at the top:

Rogerson

5/11/91

What's happened is, ah, Roger's gone to one of
the banks to withdraw the money right.
Yeah.
In the bodgie name.
Yeah.
At the bank for some reason, internal reason,
they photograph anyone who is withdrawing
money from accounts and closing em.

And then there is reference to that. Then over the next page, about line 9:
Anyway, whenever it is.
They photographed them going in to take the
money out.
They recognise him and they think now that
this money is from ill gotten drugs (from
drugs,) tell the truth, drugs.
Well, he said drugs right okay, now he went
and opened another account at a Penrith bank
and redeposited the money, right.

Then, at about line 27 -
So he's got to explain where this money's come
from, agreed.
Yeah.
Because it's cash, well just by coincidence,
I've been withdrawing cash out of my accounts.
No, what happened then was, that's his trouble
right.

He comes to me, somehow he's got to prove how
he's got the seventy thousand (expletives
deleted) sixty thousand dollars he's gotta
prove.
Right.
Right. That's where Rossy comes in, I, he
rang me up to meet me, he asked me if I could

do it for him. I said, look, I can't cause
I'm overdrawn •.... But I says, Ross -

that is Karp -

Rogerson

5/11/91

might be able to help ya cause over the years
he's taken out I remember fives and tens and
eights and used them for cash for our
business. Which falls in ideal and they're in
a business -

And then at the top of the next page:
So they've done, they've exchanged contracts

and everything this is 18 months ago. Ross is
buying the car; 60,000 dollars and he's
proven that's why he's taken out, the bank,
and he's written receipts out for em, all
contracted, all stamped, all ..... you know I've
never seen two happier blokes in my life today
Ross.
No, they could've eaten us Nick.

BRENNAN J:

What was the evidence to show what was the

apprehension about the police investigation?

MR MASON:

Yes.

Essentially it is as summarized in pages 2

and 3 of the chronology, but to state it in my own
words, the fact that the occasion for the
preparation of the false agreement was the
knowledge by Rogerson and Nowytarger that they had
been photographed, or that Rogerson had been
photographed, with a criminal - - -

BRENNAN J: But why is that said to be Nowytarger?

MR MASON:

Because it was Rogerson and Nowytarger who were

photographed at the bank when they closed the
accounts that had been opened in the false names.
So, in early July they closed the two accounts that
were Rogerson's accounts but under false names.
They had been opened - it had been Mr Nowytarger
that took Rogerson to the bank in the first place;

it was his bank. It was Mr Nowytarger that went

with Rogerson when the accounts were closed and the
money from the two accounts was divided: half
approximately went to Rogerson and was put into
another falsely named bank account; half was given
to Nowytarger who disposed of it as he saw fit.

TOOHEY J:

Does that second cheque assume any further

significance?

MR MASON:

No, not - - -

TOOHEY J: That is, the one that is described as having been

lent to a friend.

MR MASON:

No, it is the arrangement that was made to

explain the $60,000, in effect, that ultimately
stayed in Rogerson's hands that is the nub of the

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5/11/91

conspiracy, that it was an arrangement whose
occasion was, the Crown case submits, the laying of
a false trail in anticipation of what Rogerson
feared and communicated to the others would be an
investigation by the police of his own activities
in relation to the receipt of the money.

BRENNAN J:

Why did he apprehend that?

MR MASON: There was - I think I am correct in saying - some

evidence that there had been an earlier charge laid
against him in relation to the alleged bribery and

alleged killing of a police officer. He feared
that the police were out to get him generally and
there was considerable cross-examination of police
officers who gave evidence at the trial that the
police were out to drum him out of the police
force, in effect.
There was evidence given that the sham

arrangement was subsequently used by each of the
three conspirators who were investigated by the police and that the investigation was about the
source of the moneys that they said, "No, it came
from this sale agreement relating to the car." So,
by the subsequent use of the material the Crown
invited the jury to infer that that was the purpose
for which the material had been created in the
first place. There was the timing; there was -
certainly as against Paltos - the material which I

had read from the intercepted conversation. I
think that is the nub of it.
There was, Your Honours, some evidence that

Rogerson - I will put it this way: the respondents
say, "Well, Rogerson may just have feared police
disciplinary investigations and not necessarily
criminal investigations", to which our response is

twofold. The fact that it included the potential
of a criminal investigation was enough, and

secondly, police disciplinary investigations do
lead to curial proceedings, because there is a
court of record called a Police Tribunal that has
power to hear charges of misconduct against police
officers and to make recommendations leading to
their dismissal from the force.

BRENNAN J: But was there anything to indicate that the

parties had some apprehension that if the truth
were told, it might lead to a criminal
investigation?

MR MASON:

Such evidence as there was was mainly evidence by

inference rather than direct evidence.

BRENNAN J:

Was there any evidence from which that inference

could be drawn?

Rogerson

5/11/91

MR MASON:

The fact that a police officer was putting a

large sum of money in a false name in a bank
account, the fact that when discovered he took
these steps to cover the trail and perpetuated with
his co-conspirators the telling of the lie in

relation to the creation of the documents. It was
found by the jury, in effect, because they were
directed that they had to find an intention to
pervert the course of justice, that the whole story
about the sham agreement was itself a lie.
Qne then asks: why were they preparing

themselves to be able to tell the lie which they
eventually told? The inference, in our submission,
the necessary inference and the conclusion upon
which the Court of Criminal Appeal proceeded, was
that it was to cover a police investigation into
the source of the money.

DEANE J:

Mr Solicitor, under the New South Wales Police

Rules, would Mr Rogerson have been required to give an explanation as to where the money came from if
he were asked by his superior officer?

MR MASON:

The answer is yes, on my instructions.

DEANE J: And would it have been an offence if he declined

to comply with the direction?

MR MASON:	Yes, Your Honour.
McHUGH J:	You can tell in Travers' case, in (1958) SR(NSW),

that there was no privilege of self-incrimination
when you are - by a police officer being asked.

MR MASON:

Yes, thank you.

DEANE J: Well, why would that not be the obvious

explanation for the fabrication of an explanation
of where the money came from?

MR MASON: Well, the explanation that was in fact advanced

at the trial by Rogerson, who gave sworn evidence,
was that the money was being put there so that if
he was convicted in the Drury case, which was
heard, I think, in about May of 1985, June of 1985,
then there would be a nest egg, a safe nest egg for
his family.

DEANE J:

I follow that, and assuming that the money had a

criminal origin, in terms of your answer to
Justice Brennan, why would not the reason for the fabrication be as much to avoid answering questions
by superiors truthfully about the source of the
money as to divert any anticipated investigation
leading to criminal prosecution?

Rogerson

5/11/91

MR MASON: Well, there was the evidence of the whole

Miss Jones episode, which showed that at an airport
Rogerson was given a bag full of money in return
for a bag full of white powder in small plastic
containers.

DEANE J: But the Crown did not suggest that the evidence

justified a finding beyond reasonable doubt that
that was the source of the money.

MR MASON:

No, and here, in our submission, lies one of the

difficulties with the Court of Criminal Appeal's

approach to the matter. Mr Justice Lee appeared at
times in the judgment to focus upon the need for
the Crown to prove the actual offence relating to
the source of the moneys. In fact, that is to look

at the wrong aspect of the matter. May I give an
example to illustrate that?
A person may be innocent of murder but, fearing a police investigation into murder, create
a false alibi. That creation of a false alibi for
that purpose would, in our submission, be an act
done with intent to pervert the course of justice.
So it is not the reality of the situation, it is
the reality of the purpose for which the act was
directed, and here the acts done in conspiracy was
directed. And the question then becomes, in our
submission, not "Did the conspirators know
definitely that there would be a police
investigation of a criminal nature?" but "Did the
conspirators believe and fear that this was
something that could occur against which they
needed to prepare the day so that they could answer
it when and if it occurred?"
The respondents, in their affidavits that were

filed last week, appear to make much of the fact
that the police investigation did not commence
until 16 July - the bottom of page 3 of our
chronology - whereas the arrangement was made at

the restaurant some time before that. That is
common ground.

Our response to that is that if one

concentrates upon the correct characterization of the offence, which was a conspiracy to divert the course of justice which includes police
investigation into whether or not a crime has
occurred, and if so, by whom, then it does not
matter that the police investigation was to
commence the next day, if it can be proved that the purpose of the arrangement was to interfere with it
when it did.
And just as a destruction of documents knowing
a subpoena is about to issue, even, we would say, a

Rogerson

5/11/91

subpoena in proceedings that are about to commence
is about to issue would, in our submission, be a
perversion of the course of justice, so here it is
the doing of an act which is done for the purpose
of interfering with the course of justice whenever
it commences, provided, once it is accepted, as it
must be, in our submission, that the course of
justice includes police investigation into whether
or not a crime has occurred.
When Mr Rogerson was interviewed by, I think

is is, Inspector Strong, he was cautioned; he
nevertheless chose to advance in response to
inquiries about the money, the account based upon
the false agreement. Now, again, that is looking
at subsequent events in order to draw an inference
as to the original purpose, but that, we submit, is
a legitimate thing to do.

MASON CJ: What is the date of the conversation deposed to

my Assistant Commissioner Strong with Rogerson,
which is recorded at pages 65 and 66 of the
transcript?

MR MASON:

Is that the one with the 14 points?

MASON CJ: Yes, I think that is it. It has 14 paragraphs in

it, yes.

MR MASON:

Yes, 24 July. At page 842 of the appeal book

there is a note of the 14 points that were put to
the inspector at that time - volume III - and there
was no dispute about this conversation.

MASON CJ: Well, one or more of the paragraphs there seem to

indicate an apprehension that there would be an
inquiry in relation to the possible participation
of Rogerson in criminal activity.

MR MASON: Yes, in my submission. Paragraph 9, in

particular perhaps, is the crux of it.

TOOHEY J: Does that mean, Mr Solicitor, that the Crown

recognizes that there may be some differences as
between the position of the respondents?

MR MASON:

No, because of the principle that we refer to in

paragraph 10 of our written submissions, it does
not matter what the motives of the respective
respondents were, if in fact they helped Rogerson
for old times sake, let it would be said, that
would not prevent them being found guilty. It
would nevertheless have to be shown that they
intended to pervert the course of justice and I
think the leading case on that is Freeman's case.
It is a New South Wales Court of Appeal decision.

I will get the reference for Your Honours. But

Rogerson

5/11/91

the jury were directed that they had to be prepared
to draw that inference and, of course, in Paltos'
case, one has the intercepted phone conversation.
Freeman's case is (1985) 3 NSWLR 303. In
Nowytarger's case: he was present at the meeting
at the restaurant, although he came late to that
meeting; he signed the false sale agreement; he
gave the false story to the police when they were
investigating the matter and as I say, the jury
were, in our submission, appropriately directed
about the need to be careful, as against each
respondent, that they were satisfied of an
intention to interfere.
The other aspect of Nowytarger's evidence is

referred to at page 5 of our chronology. In
December 1985 Nowytarger, under a false name,
visited Karp in prison and asked him, on Karp's
evidence, although Nowytarger gave a slightly
different version of this, on Karp's evidence was

he going to stick to the story as agreed. Now,
that was after the police, to Nowytarger's
knowledge, had started investigating the whole
matter.

DEANE J: What was Mr Karp's evidence as to the reason for

the fabrication that was given to him, did it
coincide with what was said in that recorded
conversation?

MR MASON:

The recorded conversation with Paltos and Palmer?

DEANE J: Yes.

MR MASON:

I think the answer is, yes. Perhaps I can have

that looked up while I am - - -

DEANE J:

So, Karp said he was told that the money had come

from drugs because that is what was said in that
recorded conversation?

MR MASON:

No.

My junior says that his evidence did not go

that far; it was, in effect, they were in trouble
over the bank accounts and wanted to be able to
explain them to the police when asked.

BRENNAN J: There is the world of difference between the

police investigation that might be investigation of
nosy parkers and the police investigation which is
directed to uncovering crime, and would it not be
necessary for the Crown to prove that it was
apprehended that there would be a police
investigation to uncover crime?

MR MASON:

Yes, I accept that, that the moving back of the

concept of "course of justice" to anticipate
commencement of curial proceedings appears in the

Rogerson

5/11/91

cases to have been relating to police

investigation. Now, perhaps the police
investigation would include - it certainly includes
committal investigation, Murphy's case, and,
presumably, it could include a special prosecutor
or a royal commission investigation but the essence
of some sort of official investigation seems to
be - certainly the cases do not go beyond that.
Why that is so, perhaps, is to bring home to the
person who enters into the corrupt arrangement
that, at least, that person fears that curial
proceedings may eventuate, whereas by telling a lie
to a friend you might not really think that that is
going to stop or interfere with any court
proceedings, but if it is a policeman you ought to
know that one possible outcome is that there will
be court proceedings.

McHUGH J: Supposing some anonymous caller makes a complaint

to the police about some crime having been
committed and a police officer goes down and
interviews the person named, informs the person of
the allegation and that person tells the police
officer some lie, is the person guilty of
attempting to pervert the course of justice?

MR MASON:	The person who goes to the police officer?
McHUGH J:	The person who tells the lie to the police

officer.

MR MASON:

If the person anticipates that the police are

investigating whether or not a crime occurred, yes,
because the person knows that if the police
discover the existence of a crime and the

perpetrator a charge is likely to follow. The
cases about the perversion of the course of justice
seem to clearly include the case where no charge is
laid at all and the case where a bogus crime is

confessed. So to go and say, "I committed murder",
when not even a murder occurred, let alone the
wrong confessor - - -

McHUGH J:

I know the latter cases are exceptional but in

all the other cases about attempting to pervert the
course of justice there is some defined crime, is

there not? I mean, if your theory is right, why
could not these accused by charged with contempt of
court?

MR MASON:

They could but that does not exclude the capacity

to charge them with this. There is an old case
about, I think, the father of a boy accused of rape
paying the complainant the expenses of going on an
overseas trip the day before the trial. Now, that

Rogerson

5/11/91

is a contempt or a perversion of the course of
justice. It is the same thing, in my submission.

DEANE J: When you say they could be charged with contempt

of court, contempt of what court?

MR MASON:

I suppose the difficulty - if you do not know

what the crime is you are not able to say what
court it would end up in.

McHUGH J: But your answer must be, would it not, you would

say that you would rely on Lord Diplock's first
category in Attorney-General ..... , namely
interference with the general administration of
justice as opposed to the interference of justice

in a particular case. You have got to go that far,
have you not?

MR MASON:

Certainly in the contempt area I do, but perhaps

Your Honour's questions are raising in my own mind
perhaps some doubt about whether it is correct to
say that it is always contempt and always
perverting the course of justice. Maybe in the latter case we are seeing a different stream of
authority emerging now that the cou~se of justice has been pushed back to the investigative stages.

McHUGH J: What happens to a case like Robinson v Reg in

this case where it is said that there is no
contempt until the accused is arrested?

MR MASON:	I am not sure that that is - I am trying to recollect whether Mr Justice Windeyer was of a
different view in that case and whether the
Court of Appeal in the recent case of Deane did not say that there is a contempt by saying the person
confessed when the arrest was imminent. Perhaps I
am wrong. Perhaps the time is from the arrest,
even though the person has not yet been brought
before the court.

That may be another example where perhaps

there is a different answer if you look at it as a
contempt than if you look at it as perverting the
course of justice. It may be Freeman's case which
says that it must be the intention to pervert the
course of justice which is not a requisite element
in contempt, may be the resolution of the
conundrum.

McHUGH J:

Mr Solicitor, do any of the cases throw any

emphasis on what is meant by "perverted"? Does it
simply mean in some way divert, or does it mean
divert from obtaining a conviction?

MR MASON:

No, it just means divert from taking their

ordinary course. The classic case of Vreones -

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5/11/91

perhaps I can just go to the statement of this

Court in Murphy's case which followed Vreones. I
do not really need to go beyond that, in my
submission. At 158 CLR 596, at 609 and 610 in the
judgment of the Court, about the middle of the
page, as Archbold puts it:
the office "is, somewhat confusingly, referred
to in a number of ways - for example,
defeating the due course of justice,
perverting the course of justice, interfering
with the administration of justice,
obstructing the administration, or course of
justice, defeating the ends of justice or
even, until recently, effecting a public

mischief". Some only of those descriptions
were used in the drafting of s. 140 of the
Criminal Code ands. 43 of the Crimes Act, and
their use causes no confusion in the present
case ••••. The gist of the offence was described
by Pollock B. in Reg v Vreones, as "the doing
of some act which has a tendency and is
intended to pervert the administration of
public justice". It is quite clear that at
common law, and under the statutory provisions
of Queensland, New Zealand and Canada, an
attempt made to pervert the course of justice
at a time when no curial proceedings of any
kind have been instituted is an offence ..... In
Reg v Kane the Court held that a person
commits the offence of attempting to pervert
the course of justice if, when a crime has
occurred and the police are investigating it,
he is guilty of conduct aimed at preventing or
obstructing a prosecution which he
contemplates may follow. In a later case,
Reg v Selvage, the Court of Appeal reaffirmed
that there may be an attempt to pervert the
course of justice notwithstanding that no

legal proceedings have begun, and attempted to
define the limits of the offence. Watkins LJ
said:
"It is obvious from these cases that this

offence which affects the administration of
justice is not confined to matters directly
concerning criminal proceedings already in
being. It impinges upon the process of
investigating crime suspected by the police of
having been committed or falsely alleged to
have been committed by a person desirous of
unlawfully bringing criminal proceedings about
or of causing police officers to embark upon
the process of investigating false accusations
to the detriment of their duties."

Rogerson

5/11/91

Now, Your Honours, we would submit that the

essence of the offence is not whether or not a
particular crime has occurred because it extends to
diverting the course of civil justice. Vreones was
a case involving tampering with samples in an

arbitration which never took place. Nor is the
essence of the offence that the course of justice
was perverted because it extends to attempts; nor
that no charge was laid, and although Your Honour
Justice McHugh says it is exceptional, the fact
that it extends to making a false charge where
there was no crime at all shows that the essence of
the offence is the taking of acts which lead or are
intended to lead those who have a primary function
in laying charges before a court to do that which
they would not otherwise do in relation to those
charges, whether or not they are laid.

DEANE J: But is not, in the circumstances of this case, the

critical question whether the first line on
page 610 states too narrowly what is the
appropriate test in a case such as this? In other
words, it is not enough to say, "Oh, he had engaged
in criminal activity and he wanted to fabricate a
situation to answer questions that he was forced to
answer." You have to say, "His conduct was aimed
at preventing or obstructing a prosecution which he
contemplated was, as it were, in the pipeline".

MR MASON:

Or which might be in the pipeline if he did not

head it off by the - yes.

DEANE J: Well, I mean, say, for example, the evidence in

this case was that this recording disclosed that
they all considered there was no chance at all of
the police uncovering the crime that led to the
money, but that they had to have a story because
Rogerson had to give an explanation of the money, and if he did not give a feasible explanation he would be guilty of an offence -

MR MASON:

Under the police disciplinary situation.

DEANE J: Yes. Well now, do you not have to go so far as to

say in those circumstances they were guilty of
perverting the course of justice, even though they
thought there was no chance of a prosecution, but
they had to have an explanation of the money
derived from criminal sources, and if they gave the
honest explanation there would be a chance of a
prosecution.

MR MASON:	If they thought there was a chance of police disciplinary proceedings by giving an honest
answer, or by not laying a false trail, that would
be enough, in my submission, because police disciplinary proceedings are themselves curial and

Rogerson

5/11/91

investigation by the police internal investigative
unit would fall within the category.

DEANE J:	But that is a different thing really, is it not?
MR MASON:	I thought Your Honour was asking me to assume

that that was the purpose, namely - - -

DEANE J:

Yes, but the police disciplinary proceedings

would have been brought if he had just remained
silent.

MR MASON:

Yes, but if they thought, "Well, you don't want

to be in trouble for remaining silent, it is better
to lay the groundwork so that you can speak" and
get away from, avoid, both Scylla and Charybdis.
As long as one of the factors in their
contemplation, in our submission, was the laying of
a false trail to affect possible curial
proceedings, that is enough.

DEANE J: Yes, I follow.

MR MASON:

I would, of course, also not - I know Your Honour

was not putting it to me, but in relation to the
crime I would submit that on the facts of this
case, as long as it was proved as it was, we say
that they feared that there could be a criminal
charge laid. That was enough.

McHUGH J:

But on the whole theory in the argument you are

putting, correct me if I am wrong, the trial
judge's charge to the jury was put unfavourably to
the Crown in that there was no need for the Crown
to prove that the money had been obtained
unlawfully, was there?

MR MASON:	Yes.
McHUGH J:	You agree with that?
MR MASON: Yes.

McHUGH J: Apart from being - it would not matter whether

the money was obtained innocently, as long as - - -

MR MASON:

Yes, that is correct.

Your Honours, at the bottom of page 2 of our submissions, we refer to a number of cases in
which, in our submission, the - - -

DEANE J: Is what you have just said correct, that if they

were trying to hide the money and there was no
question of it having been obtained through crime

Rogerson

5/11/91

that, on your submission, would be perverting the
course of justice?

MR MASON:

Yes, because of the example I gave about the

person who knows he is innocence but fears the
police will never believe him and arranges a false
alibi with a friend in order to make sure that he
will not be charged, that would be a perversion of
the course of justice.

McHUGH J: When you gave that illustration I must say it

surprised me. Is there any case that decides that
in point of decision?

MR MASON:

I am not aware of any that is on that particular fact situation, no.

McHUGH J:

No.

MR MASON:

Your Honours, I will not take the Court to all of the cases referred to at the bottom of page 2 the

top of page 3 but may I just go to a couple of

them, Meyrick, 21 Cr App R.

Your Honours, at

page 97 of the report, the charge was that various

people conspired, about point 6:

to effect a public mischief by obstructing the
Metropolitan Police in the execution of their public duty, and by corrupting officers of that force and contriving to secure that they
should make to their superior officers false
and misleading reports upon matters referred
to them in the course of their official
duty ..... and thereby to prevent the due
administration of the law, and to defeat and
pervert the course of justice.

At page 100, point 6:
In the words of the learned counsel for the

when at a later stage the learned Judge came prosecution it was "one big conspiracy revolving round the figure of Goddard," and to deal with the matter again, he used these
words ••••. "In my opinion this count charges a
conspiracy to do an unlawful thing, that is to
say, in substance to effect public mischief by
corrupting the police force." That may be
stated quite generally to be the object of
this conspiracy in this indictment.

Page 101, point 7:
It is not suggested that Mrs. Meyrick was in direct communication with Ribuffi, but it is
more than suggested - nay, the jury are asked
to find as a fact upon the evidence - that

Rogerson

5/11/91

Mrs. Meyrick was in communication with
Goddard, and that Ribuffi was in communication
with Goddard, and not for a purpose individual
and special ..... but for a common
design ..... namely, that stated by the learned
Judge in the words I have just mentioned.

And, finally, at 103, point 6:
What is referred to here is a conspiracy not
only between Ribuffi and Mrs. Meyrick and
Goddard, but also between them and other
persons - a widespread conspiracy for the
accomplishment of a purpose going beyond the

giving or receiving of a bribe. The
object ..... was to secure the results which the

bribes were intended to secure. The

object ..... was not to bribe; the bribe was a

means to the end. The end of the conspiracy
was of a more far-reaching character than the
individual act.

Your Honours, perhaps the matter appears more clearly in Hammersley's case, (1958) Cr App R 207.
There, in effect, the conspiracy was:
to obstruct the course of public justice -

reading from the headnote, and it covered a period
from 1949 to 1957, and these were senior police
officers charged with conspiring:
together and with persons unknown to obstruct
the course of public justice in that -

they would -
act contrary to their public duty as police
officers in relation to the administration of
the law.

And, again, from the headnote:
They had been committed for trial upon a
charge that between the -

dates -
they did conspire together •.•.. to solicit .....
rewards ..... for showing ..... favours contrary
to their duty as police officers and thereby
to obstruct and defeat the course of public
justice.
So, in effect, they were getting money to stop

any and all crime relating to some persons and that
was held to be a good charge. At page 214 point 7:

Rogerson

5/11/91

These defendants were, on the evidence which
the jury accepted, interviewing suspected
criminals, in some cases actual criminals, and
saying that for considerations they would not
bring charges or they would help them when
charges were brought or they would prevent
them from being arrested by other police
forces.
Thomas' case, Your Honours, (1979) QB 326,

makes the point perhaps even more sharply because
there were two charges, one of which failed and one
of which succeeded. There was a charge under - at
page 327 of the report, in the summary of the
facts:
the applicants ..... were convicted on a count
charging that they attempted to pervert the
course of public justice by supplying John
Charles Short with the registration numbers of
certain police vehicles with a view to
assisting him to avoid arrest and prosecution
for robbery; they were acquitted, on a
submission of no case to answer, on a count of
contravening section 4(1) of the Criminal Law Act 1967 in that ..... after John Charles Short had committed the arrestable offence of
robbery they, knowing or believing him to be
guilty of that or some other arrestable
offence, without lawful authority or excuse
supplied him with the vehicle registration
numbers -

At 328 of the report, line C, in the report of the
judgment of the court given by Lord Justice Bridge:
At the close of the case for the prosecution a submission was made to the judge
that on that second count there was no case

that there was no evidence that either of them for either applicant to answer on the footing
knew or believed that Short was guilty of the
arrestable offence mentioned or any other
arrestable offence. The judge upheld that
submission and directed an acquittal -

so there is the specificity charge failing.

The applicants now seek leave to appeal
against their conviction for the common law
offence of attempting to pervert the course of

justice. The point ..... is a short but
important one ..•.. At the material time when
the acts relied upon •.••. were committed, the
man named ..... Short, was, it is common ground,
a man whom the police were keeping under
observation and whom in due course they

Rogerson

5/11/91

intended to arrest as a person whom they
suspected to have been guilty of committing
one or more bank robberies. According to the
facts which must be taken to have been proved,
what the applicant had done was, finding
themselves under observation by police
officers who were travelling in unmarked
police vehicles, to give the number of those
police vehicles to Short with a view to
assisting him in avoiding arrest as a suspect.

It does not say they knew what offences were. In
fact, they had been acquitted on the charge that
required that knowledge. At page 329, four
propositions were stated. It is the second one, at
line F, that is the critical one. The second is in
these terms:
Doing an act calculated to assist another to
avoid arrest, knowing he is wanted by police
as a suspect, falls into the category of
offences of perverting the administration of
public justice.

And they say they come back to that one. At
page 330, below C:
The authority on which essentially

Mr Arnlot relies for his second
proposition ..... is a decision of the Court of
Criminal Appeal in Northern Ireland in Reg v
Bailey. That was a case of a man who had made
a false confession to police implicating two

other men and himself in a murder. He was
convicted on an indictment which described his
offence as effecting a public mischief. It
was said by Lord Macoerrnott CJ in giving
judgment, that it could more appropriately
have been prosecuted as the offence of
perverting the course of public justice. The

particular passage -

is as follows -
"But the administration of public

justice, particularly in the criminal sphere,
cannot well be confined to the processes of
adjudication. In point of principle we think
it comprehends functions that nowadays belong,
in practice almost exclusively, to the police,
such as the investigation of offences and the
arrest of suspected persons; and we see no
good reason for regarding these preliminaries
as beyond the scope of the category we are now
considering."

Rogerson

5/11/91

Your Honours, a petition to go to the Lords

was dismissed, as appears at the end of that
report, and that case was noted with approval by
this Court in Murphy.
Your Honours, we submit that, turning now to

paragraph (C) of our outline, that the decision of
the Court of Criminal Appeal was contrary to
principle, for various reasons which are summarized

in volume IV of the application book. It is
pages 1235 to 1238.
The first reason is that one has the situation

that, if the Crown must prove what the particular
charge or class of charges were that the accused
feared might be laid, it means that if you are so
successful in diverting the police inquiry that
they cannot find out what you have done, but can
only prove that you have done - or that they
suspected that you did something illegal and you
acted to divert that, then there could be no
offence. In our submission, that would tend to
bring the law into disrepute.

McHUGH J: Well, can you give me an illustration of this, a

concrete illustration?

MR MASON: Well, this case, of course, is one, but that is

not what you are asking me.

McHUGH J: Well, it is not necessarily one because -

MR MASON:

Here the Crown were not able to prove, as against

all of the respondents, that Rogerson had received
the money unlawfully. Indeed, as against Rogerson,
there were merely facts which cried out for some sort of explanation and clearly would have given
rise to a reasonable police suspicion which would
trigger off a police investigation.

DEANE J: But you say that it does not matter whether he

received it unlawfully or not.

MR MASON:

No, I do not.

So that, as long as he and the

others acted out of a fear that a police
investigation into a suspected crime or a suspected
breach of police discipline, then that would be
sufficient, because the thing they were acting
towards or acting to stop was itself something that
would result in curial proceedings.
The policeman who has taken bribes generally,

is perhaps another example, Your Honour: that if a
policeman or a Crown prosecutor just had an
arrangement with a particular solicitor or a
particular accused person, in effect, to nobble
whatever charge.

Rogerson

5/11/91

McHUGH J: But in those cases you would always know what you

are talking about, in the sense that you would be
able to identify some concrete case, would you not?

That would seem to me to be what Hammersley was
about as well.

MR MASON: Well, with respect, you do not, because the

essence of the corruption is stopping the charge
getting off the ground or stopping any charge, and
all that you may have is, "I will take the money
and every time your name appears in the charge
sheet, I will lose the file. It does not matter
what you are charged with. You may not be charged
yet; it is money on account of when and if you are
charged." In my submission, that falls, in
principle, within the - - -

McHUGH J: Well, it may be another offence altogether.

MR MASON: Well, it may also be corruption of a public

officer, but in a sense that cuts a bit both ways,
because if the law does not mind it being an
offence there, why should it be so upset here?
Although it may be put against me, "Well, you
charge them with the other offence" but, in my
submission, if one looks at the stream of principle
dealing with this particular charge, it falls
within the stream.

BRENNAN J: The relevant element of offence is intention to

pervert the administration of justice and that
connotes the knowledge that what is being done will
pervert the administration of justice and that in
turn connotes that there is an appreciation that
what is on foot is the administration of justice.

MR MASON:

Or is likely to come on foot.

It can

extend - - -

BRENNAN J: Yes, or is likely.

MR MASON:

Yes.

BRENNAN J: No, not really; that is on foot because it may

be part of the early part of the administration of
justice, but whichever way you put it.

MR MASON:

Yes.

BRENNAN J: Well, the problem seems to me that you have to

prove that the accused in this case knew, at the
time that they entered into the conspiracy or the
agreement, that what the police would be doing
would be administering justice or preparing for the
administration of justice.

Rogerson

5/11/91

MR MASON:

Your Honour, the indictment which is at page 1

preparation of the agreement, the uttering of it,
lays the charge as conspiring between May 1985 and
as it were, when they were interviewed, are alleged

as part of the conspiracy. One answer to what
Your Honour has put to me is that even if the idea
was cobbled up at a time before they knew the
course of justice was in play, the fact is the
conspiracy continued to be put into effect, and
those acts evidence the continuing nature of the
common purpose after the course of justice had
clearly been set in motion.

BRENNAN J: But if the police were minded just to railroad

the respondent out of the police force, that would
not have been the course of justice.

MR MASON:	No, it certainly would not, but - - -
BRENNAN J:	So it must be that there is the knowledge that

there is to be on foot a bona fide inquiry into
crime.

MR MASON:

Or police misconduct.

BRENNAN J: Or police misconduct. Did you have evidence of

that?

MR MASON: Yes, I submit I do. Well, a knowledge that such

inquiry may come about and a decision to put in
train steps to interfere with it when and if it

does. And I would go on to say and, in fact, that
agreement was continued as the course of justice
actually commenced on 16 July onwards.
Your Honours, at the top of page 1236 in the

special leave affidavit we give another example,
and this again is the situation of the person who
falsely accuses another, or falsely confesses to a

crime that never occurred. If it is accepted that that is within the scope of the offence, and there
is a passage from Selvage's case which is cited in
Murphy - - -

McHUGH J: Could I just stop you at about the second line at

the top of that page. Is there not some ambiguity
about the phrase, "investigation of suspected
offences"? Now, is it possible that there is a
distinction between investigations to determine
whether a crime has been committed, and
investigating what is suspected to be a crime?
That is to say, the police have a suspicion a crime has been committed, they then investigate it.

MR MASON: There are perhaps three categories: they know a

crime has been committed and want to know who did

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5/11/91

it; they know the facts but want to see whether
they were criminal; or they are not even sure, they
just have a general unease that someone said, "He
committed a crime", or they suspect that he may
have done something unlawful and they are
investigating to find out, with intention that if
they do find out that a crime was committed and who
did it they will lay charges. Certainly, one can
conceptualize those distinctions.
But if the course of justice,as authority establishes, in our submission, includes the whole
process of detection or investigation of crime
simply because if detected charges would expect to
be laid, then the three categories are all within
the offence.

McHUGH J: But there is a distinction between, in a sense,

investigating a crime and investigating an
allegation, and it is part of a policeman's duty,
no doubt, to investigate complaints, allegations,
even in cases where they may be fairly confident
that there is nothing in them, but they have got to

clear the books, so to speak. Now, is the course
of justice involved in a case where they set out -
maybe they set out to clear somebody?

MR MASON:

In my submission, yes, because the course of

justice can, as it were, involve proceedings being
stopped at any stage. For example, the course of
justice, if it stretches back to committal, one
accepts a likely outcome could be that the
proceedings are stopped because of clear innocence
or want of proof of guilt. In my submission, so
long as it is clear that a charge could be laid,
could possibly be laid, or that was the purpose of
the act in the first place, to interfere with the
police discretion to lay a charge and prosecute a
charge according to the true facts then, in my
submission, that is an offence. And I come back to

the false confession to a crime. If that is within the concept, then what makes that a crime is that
the police are likely to lay a charge, even one
which they will have to end up withdrawing. And

that offence is committed even if the police detect the false confession before they proceed to lay the charge.
We submit, as we do in 1236, line 15, that

there is no difference in principle:
The additional requirement gives no principled
reason for distinguishing the search for a
perpetrator of an identified crime and the
search for the appropriate crime with which to
charge an identified criminal.

Rogerson

5/11/91

McHUGH J: Well, that is a bit - the question being, "Is the

expression 'identified criminal' circular?"

MR MASON:

No, well, suspect.

In relation to this concept

of bringing the law into disrepute, there is a
passage in Gilson's case to which reference is made
at the top of page 3 of our outline of submissions.
Your Honours will recollect that was the case in
which the jury convicted on - it was a charge of
stealing and receiving, and it was uncertain which
of the two it was, and the argument was that unless
you could prove which it was, then it had to be
neither.

McHUGH J:

Mr Solicitor, are you, at this stage, putting a

full argument, or is this an argument as to whether
we should grant special leave in this case?

MR MASON:

I am putting a

full argument, Your Honour. At

line 420F in the joint judgment of the majority,
left-hand column - sorry, Gilson is (1991) 65 ALJR

416 at page 420. Your Honours said:
It is clearly unsatisfactory to require a jury
to acquit an accused entirely when they are
convinced beyond reasonable doubt that he was
guilty of either theft or receiving, merely
because, as a result of being required to
apply the same standard of proof, they cannot
determine which offence he committed. The law must surely be brought into disrepute if it is
so bereft of answers that an accused who is
clearly guilty of one offence or the other is
allowed to escape conviction altogether.

I accept there is an element of circularity in applying that to the present case, but I would
respectfully submit that in one sense there is an
element of circularity in the reasoning that
Your Honours were putting there. The point of

substance is that when you know it is either one or
the other but cannot quite say which, then the
perception that the person should escape entirely
for want of that form of proof is difficult to
justify.

DEANE J: But that argument only applies if you abandon the

higher ground and approach it on the basis the
Court of Criminal Appeal approached it; that is,
that it is proved that the moneys were obtained
from criminal activity. As I follow your argument,
if these moneys had been obtained, for example, by
Mr Rogerson by a completely innocent loan from some
political figure and the explanation was fabricated
to protect the damage to the reputation of that
political figure which would follow from
association with Rogerson, the fabrication would be

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5/11/91

a conspiracy to pervert the course of justice, even though - - -

MR MASON:	I do not think I do have to go that far, Your Honour, because in that example - - -
DEANE J:	I thought you did.
MR MASON:	- - - there is no legal proceedings affecting the

political figure.

DEANE J:

I thought you said that the mere fact that

Rogerson would be required to answer questions and
the fabrication was to provide a means of answering
those questions in the future - - -

MR MASON:

I am sorry, because of his position as a police

officer.

DEANE J:

I said in the circumstance of this case.

MR MASON:

I am sorry, Your Honour, yes.

In that situation,

yes, I agree with that alternative approach to the
matter. There was something I was .going to say,
but it has gone.

DEANE J: That is no doubt my fault rather than yours.

MR MASON:	We have given a couple of other examples: at pages 1237 to 1238 which I will not burden the Court with reading but I would ask the Court to
take into account in considering the question of
principle. We submit that Todd's case, which is
relied upon by the Court, is distinguishable and
wrong for the reasons set out on page 3 of the
submission, which I will not develop unless the Court wishes me to do so.

Your Honours, I do not know whether it is

going to be suggested that there is a third
possibility besides disciplinary offences or State
crimes, nam~ly Commonwealth crimes, but in
paragraph 9 of our submission we refer to the fact
that State police have a function or power to
arrest in relation to Commonwealth crimes and
therefore say that so long as a fear of
investigation into any form of crime was the moving
factor, then the offence was made good.
Paragraphs 10 and 11 I have already put to the
Court.
If I may then turn to the question of, we

submit, a principle relating to the approach the
Court should take to Crown applications for special leave against acquittals entered by the Court of
Criminal Appeal following a jury conviction. We
submit that it is well established by earlier cases

Rogerson

5/11/91

which are set out in paragraph 12 of our submission
that the Court has clear jurisdiction to grant
leave and to restore the original sentence,
including, in some cases, sentence of death, where

there has been an error. In one sense I wish to
emphasize that we are not dealing with appeals from
jury acquittals and that in one sense we claim, in
this case, to be on the side of the jury, unlike what usually happens in a Crown appeal, that the jury have the function of finding guilt as well as
innocence and, having found guilt, if the
conviction is taken away through an error of law by
an intermediate court of appeal, then in our
submission it is proper in an otherwise appropriate
case for this Court to regard the application by
the Crown for leave in the ordinary way.
There is a typographical error at the

commencement of paragraph 13 - it should be 35(2)
and not 34(2) - and that error may have trickled
down elsewhere.
Your Honours, the Judiciary Act in those two

sections that are referred to speaks in absolute
terms by conferring on the Court - by saying that
there is no appeal without special leave and by
saying, in 35A that:
the High Court may have regard to any matters
that it considers relevant -

and going on to qualify that by requiring it to

have regard to certain specified factors. We
submit that these sections, despite their form,
should be seen against their constitutional
background of being exceptions or regulations from
an otherwise absolutely conferred judicial
appellate power in section 73 of the Constitution.
We are not challenging the validity of these
sections, as occurred in the recent Carson and

Smith Kline case, but we are submitting that the
sections, despite their words, nevertheless confer
a judicial discretion and one which, in appropriate
cases, can be the subject of judicial elucidation
by case law development within this Court.
To take an extreme example, the conferral of

power to have regard to such matters as it
considers relevant would not, in our submission,
authorize the Court to have regard to the colour of
the applicant's hair. If that proposition is
accepted then the judicial discretion, while
remaining a discretion, is one which is controlled,
in our submission, by the terms of section 73, the
function of this Court in declaring the law for the
whole of Australia and it would not, in our
submission, be a proper exercise of the discretion

Rogerson

5/11/91

which in section 35A is described as a discretion
whether to grant or refuse special leave.
And Your Honours, if one has regard to their

nature, and here we are not privy to the reasons the Court is preparing in relation to the Carson matter, but our submission is that ultimately they
can only find their justification,
constitutionally, as exceptions and regulations and
therefore, if they do not apply on the proper
construction in a case then, whilst the matter
remains in the discretion of the Court, the
discretion is, in effect, all one way, to give
effect to the grant of appellate jurisdiction by
section 73 of the Constitution. In one sense that
is just to state the problem, rather than to
resolve it, but it does, if acceptable, put it in a
constitutional context which, in our submission, is
where it should be.
Then we come to the discussion by members of the Court in Benz's case, 168 CLR, and may I take

the Court to that. Your Honours, there are, in our
submission, two and possibly three different
approaches in point of principle taken by the

members of the Court. Mr Justice Dawson, whose
judgment is at pages 131 and 132, at the bottom of
the page, after referring to the Court's power and
saying that:
Notwithstanding that a distinction is to be
drawn between judgments given by courts of
criminal appeal and those based upon a jury's
verdict, the jurisdiction to grant special
leave to appeal to the Crown is to be
sparingly exercised and only in exceptional
circumstances -

goes on to say, in effect, why that is so: The circumstances available to the Crown to support an application for special leave to
appeal will necessarily be limited to matters
of public importance and will, for that
reason, ordinarily be more confined than those
available to support an application by a
convicted person. It is in that sense that
the grant of special leave to the Crown is
said to be exceptional.
Now, Your Honours, the Chief Justice, whose reasoning on this matter is at pages 111 to 114, is
perhaps taking a slightly different approach to
Crown appeals and we say this because that in
Davern's case, Your Honour the Chief Justice and
Mr Justice Brennan appeared to regard the fact that

Rogerson

5/11/91

it was an appeal from an acquittal as itself an
exceptional factor. It is not clear whether
Your Honours had in mind an acquittal at first
Your Honours, whilst stating that the general principle is that there is a search for a matter of general public importance and, subject to
instance or an acquittal by an intermediate
disentitling factors, a duty to exercise the
appellate jurisdiction to resolve those matters, it
is possible that Your Honour the Chief Justice
nevertheless regards there a factor to be put in
the scales as being that it is an appeal from an
acquittal, and if that is so then there is arguably
a difference between Your Honour's views and that
of Mr Justice Dawson.
Your Honour the Chief Justice distinguished at

page 112 an appeal from acquittal by a Court of
Criminal Appeal from an appeal by a verdict of
acquittal by a jury, referred to the jurisdiction
in courts overseas to do it, and we have - and I
will not take Your Honours to it - in our
appendix B endeavoured to update that material as
to the general acceptance of Crown appeals in these circumstances. At page 113 at about point 7, after
referring to Darby's case, Your Honour said:
This Court cannot allow an error of principle
on the part of a Court of Criminal Appeal,
especially in the law of evidence, to remain

uncorrected. To do so might only serve to
perpetuate that error and allow it to become a
source of further error. Inevitably the
decision of the Court of Criminal Appeal,
unless reversed, would be applied at first
instance. Furthermore, the doctrine of stare
decisis might result in the Court of Criminal
Appeal declining in the future to reconsider its decision upon the point. It follows that

a failure by this Court to grant special leave
to appeal to rectify such an error of
principle would necessarily have adverse and
serious consequences for the administration of
the criminal law generally, quite apart from
any consequences that it may have for the
administration of justice in the particular
case. As always, and perhaps today even more
so, the public importance of ensuring that the
administration of criminal justice accords
with sound principle and regular procedures is
Crown in the absence of circumstances pointing to the inappropriateness of such a grant.
so manifest that the correction of an error of the
principle on the part of a Court of Criminal

Rogerson

5/11/91

Your Honours, as we perceive it and would
respectfully submit, Your Honour Justice Deane is
taking a view which differs in a point of principle
and says that it -
from that in the two earlier judgments I have read.
"is clear that special leave should be granted
to the Crown" to appeal to this Court in a
criminal matter "only in very exceptional
circumstances". That statement was made in
the context of an application by the Crown for
special leave to appeal from a decision of a
Court of Criminal Appeal quashing convictions

and ordering a new trial. The position is
even clearer in a case where the application
for special leave to appeal is from orders of
a Court of Criminal Appeal that a conviction
be quashed and a judgment and verdict of
acquittal be entered. As Dixon J said, in
relation to such an application in R v Wilkes,
the Court should be careful to remember "that
it is not in accordance with the general
principles of English law to allow appeals

from acquittals, and that it is an exceptional
discretionary power vested in this Court".
Those comments in Lee and Wilkes should not be
seen as empty rhetoric which can be formally

acknowledged and effectively ignored. They
are authoritative statements of the approach
which considerations of fairness and of
traditional principle require this Court to
observe when asked by a State to subject a
person, who has been acquitted or granted a
new trial by the State's own ultimate criminal
court, to the ordeal of renewed jeopardy or to
the risk of being deprived of the chance of
acquittal on a new trial.

Your Honours, it was not clear to us what

Your Honour was conveying in the reference to "the
State's own ultimate criminal court", and if we
have misunderstood Your Honour in our response at
pages 7 and 8 of our outline of submission,
Your Honour will accept that it was, with respect,
that we have responded in the way that we have,
that the Crown has no special relationship with its
own Court of Criminal Appeal and, in any event,
since this court is at the apex of the State
judicial system it is circular, we would
respectfully say, to say, "Well, it is your court,

so you are stuck with their judgment". I know that
is not what you are saying, but that is a very
rough and no doubt unfair paraphrase of that aspect
of it.

Rogerson

5/11/91

Your Honours, in our submission, the

difference is one of principle, and we would
respectfully submit that Your Honour has
reintroduced by the back door that which was closed
by the majority in the front door in Davern,
namely, the relevance to double jeopardy in the
context of a Crown appeal from an acquittal at a
court of first instance. And, in our submission -
the passages are set out at the top of page 6 of
our outline - the majority of this Court explicitly
said, following the American and other authorities,
that there just is no relevance of a concept of
double jeopardy in the present context.
We also submit that Wilkes's case, from which

Your Honour has drawn the statement of the principle that is set out on page 120, should be
seen in its context because in that case there was
a judgment of acquittal which was based upon

inconsistency of verdicts. May I very briefly go
to 77 CLR. In that case, Your Honours, the jury
had acquitted on some charges, convicted on
another, and in the appeal to the Full Court the
Full Court reversed the conviction because the

verdicts did not really stand together. In the
judgment of Mr Justice Dixon at 516, about point 7,
His Honour said that:
The judgment of acquittal in this case is the judgment of the Supreme Court as a court of criminal appeal and is contrary to the verdict of the jury and not in accordance with the
verdict of the jury.

Your Honour Justice Deane had drawn emphasis to
that in your judgment in Davern's case. About 517,
point 6, on the case made for the Crown:
it was difficult for the jury to convict on
the third count consistently with their

acquittal on the first two counts.

And that is one factor that was very much involved
in Wilkes's case.
The other factor can be seen from the very end

of Justice Dixon's judgment at 519, in the middle
of the last paragraph:
For it is a point of law which, as it appears
to me, is not necessarily implicit in the case
itself.

And Mr Justice McTiernan made this point perhaps
more clearly in his reasons, at the very bottom of
page 519 and over the page.

Rogerson

5/11/91

So there were clearly discretionary factors

involved. The High Court was pointing to the fact
that the point did not clearly arise and, indeed,
the judgment of the Full Court was really to bring
the matter in line with the jury verdict rather
than, as in the present case, to overturn the jury
verdict. We would therefore submit that it would
be improper to draw a firm statement of principle
from the words or the application of Wilkes's case.
Your Honours, the third point we make, at the bottom of page 6 of the outline, is that certainly
so far as overseas courts are concerned the
prospect of restoring the conviction and sentence is, in one sense, a thing earnestly to be desired
rather than to be a factor that discourages the
Court from granting leave in an appropriate case.
May I refer Your Honours to just one House of

Lords decision of Hollinshead, (1985) AC 975.
Your Honours, in the speech of Lord Roskill, with
whom the other Lords agreed, at 998 and 999,
line F, reference is made to a section which has
its replication in the New South Wales Criminal
Appeal Act which, in effect, allows the Court of
Criminal Appeal to order the person to be detained
in custody notwithstanding their acquittal if the
Crown indicates it wishes to appeal to the ultimate

Court of Appeal. The section in the New South
Wales Criminal Appeal Act is section 24.
Lord Roskill said this, at 998F:
Unfortunately the respondents are now in

a position to view the restoration of their
convictions with total indifference. This is
the result of the refusal of the Court of appropriate order under section 37(2) of the
Criminal Appeal Act 1968.

Then there is a reference to other cases and, at
the very bottom of the page:
With all respect I think that in these cases,
as in Mccaffery, such orders should clearly

have been made. The consequence of their not
having been made is that these respondents,
guilty as they are of serious fraud and
sentenced to imprisonment, will go wholly
unpunished since as already stated the trial
judge released the respondents on bail pending
an appeal ..... Your Lordships may think it
right to suggest that in future whenever a
conviction is quashed upon a point of law and
the prosecution state that they wish to
consider bringing the matter before this
House, the Court of Appeal (Criminal Division)

Rogerson

5/11/91

should, unless there are strong reasons for
not so doing, make such order ..... as will
ensure that if this House takes a different
view of the law ..... and therefore restores the
quashed convictions, the offenders in question
do not avoid all punishment as unfortunately
will happen in the present cases.

McHUGH J:	What is the point of reading this to us?
MR MASON:	To show that the concerns about double jeopardy

and fairness which appear to inform the approach
taken by Justice Deane, seem to involve concern (a)
about.double jeopardy strictly, so-called, and its
relevance to the special leave power; and (b)
concern about the reimposition of the punishment
that would flow from a grant of special leave where

there has been an acquittal. The submission we
make is that if the acquittal was ex hypothesi
wrong, and of course that is the question in issue
in this application anyway, then the Court should
welcome the opportunity to restore the conviction
and the sentence rather than shy away from it in
the exercise of its discretion.

McHUGH J: Well, I can understand an argument but I do not

see how this case advances it. I must say I would
take some persuasion to agree with Lord Roskill's
view. After all, if the Court of Criminal Appeal
holds that the accused was entitled to be acquitted
as a matter of law, that one should hold him in
gaol or her in gaol while the House of Lords deals
with the matter seems to me to be just contrary to
what one would expect.

MR MASON:

People are held in gaol pending a charge,

notwithstanding that they have the presumption of
innocence during that period of time.

McHUGH J: That is because they have not been tried. Here

Court of Criminal Appeal holds that they are is a situation where, having been tried, the innocent.

MR MASON:

It just shows that the Court of Appeal is not the

apex of the judicial system, neither here nor
there, and it is not the final decision of the law.
The word "final" is used in the Canadian -

McHUGH J:

Did you make an application to the Court of

Criminal Appeal in this case?

MR MASON:

No, we did not, Your Honour.

In the Canadian

provision which we just referred to in Appendix B,
at page 3 there is a section in the Canadian
Charter of Rights and Freedoms that says if a
person is finally acquitted of the offence, not to

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5/11/91

be tried for it again. There is a discussion in of Appeal, but by some of Their Lordships in the
Supreme Court that those words are not triggered
off by an acquittal entered by an intermediate
Court of Appeal.
We would submit that earlier authorities which

are referred to in paragraph (d) on page 7 do not
have regard to the risk of reimposition of a
sentence as a relevant factor. We submit in
paragraph (e) that if a case is a proper case for
the exercise of the discretion, then it is one
which the Court ought to exercise in order to give
effect to its constitutionally guaranteed appellate
power.
To decline on a special ground relating to the

mere fact that it has been an acquittal is in
effect, having regard to factors which the court
would not permit the executive to have regard to,
and is taking into account, in our submission, a
legally irrelevant factor.

McHUGH J: What about the position that this matter would

not be disposed of by our judgment, even if you
were right?

MR MASON:

The accused are not in custody.

All the points

were argued below. It was their choice to
introduce this ex hypothesi wrong ground. If the
court declined to entertain the appeal having
regard to that fact, in our submission, the
opportunity to correct the error would be unlikely
ever to arise again.

McHUGH J:

I think we said something about this in Mobilio's

case.

MR MASON: In Mobilio's case, that was a reason announced

by the majority. Of course, we would say firstly
that does not elevate it into a fixed rule or
principle. Secondly, one of the factors which
certainly seemed to figure largely in argument and
was referred to as a reason for refusing special
leave was that the trial judge had there expressed
concern that the conviction was an unsafe one. There is no such concern here. The sentencing remarks are in the application book. Here it has
only been the Court of Appeal that has robbed the
jury of its verdict, in our submission.
We thought it appropriate not to involve the

Court in the grounds. In doing that, we certainly
do not concede that they are meritorious grounds,
but equally we are not suggesting that they are
ones that can be dismissed without consideration.

Rogerson

5/11/91

Unfortunately, they were not considered by the
Court of Criminal Appeal.

McHUGH J: And if you accept your most extreme view of this

area of the law, the evidence of the informant
would be irrelevant and highly prejudicial, would
it not?

MR MASON:

The informant Karp, or Miss Jones?

McHUGH J: Miss Jones.

MR MASON: Well, there were a number of applications to have

either a separate trial or a discharge based upon
that. It was clearly relevant as against Rogerson, in our submission. The judge was aware of the fact that he had a discretion; he exercised it adversely to the respondents.

McHUGH J: But how would it be relevant, if you accept your

general thesis?

MR MASON:

Because it proves clearly that the receipt of the

money by Rogerson, in circumstances where any
policeman would know that it would excite
reasonable suspicion; swapping money for a suitcase
of white powder at an airport is not the sort of
stuff that you can say, "Well, they will think I
was covering up for a politician" or something. If
the Court pleases.

MASON CJ: Yes, thank you, Mr Solicitor.	Yes, Mr Rose.
MR ROSE:	If the Court pleases, may I hand copies of the

submissions to Your Honours.

MASON CJ: Yes, Mr Rose.

MR ROSE: If the Court pleases. The submissions have, in

fact, largely been covered by the submissions from

my learned friend, the Solicitor-General for New
South Wales, so I do not propose to go through them

in detail. If I could just comment on the main
features of them.
In my submission, there are two main strands

in considering applications for special leave in a
case such as this. The first is what Your Honour
the Chief Justice has described as the abiding
responsibility of this Court to declare the common
law for Australia and not to allow errors of
principle on the part of the Court of Criminal
Appeal to remain uncorrected. The other main
strand is the principle of double jeopardy within
the true scope of that concept and that was, of
course, the subject of this Court's detailed
consideration in Davern v Hessell.

Rogerson

5/11/91

Taking those two strands together, in my

submission, in paragraph 4 of the outline, is that
in an application for leave to appeal to this Court
from a Court of Criminal Appeal on a question of
law it is generally sufficient if there is a
question of law of sufficient public importance.

MASON CJ: That hardly measures up to the adjectives

exceptional, very exceptional or truly exceptional,
does it?

MR ROSE:

I am proposing to come to that in a few moments,

if Your Honour pleases. That is the subject of
paragraph 5 because, as Your Honour has indicated,
it does raise the question of the resent status of
statements in previous cases that very exceptional,
truly exceptional or just plain exceptional
circumstances must exist on the three main - three
of the main cases where those expressions occur are
set out below.
In my submission, the question should be resolved as follows: either one may take the
approach stated by Justice Dawson in Reg v Benz and
say that in this situation of an application for
leave to appeal from this Court from a Court of
Criminal Appeal on a question of law that that is,
in itself, an exceptional situation which justifies
the grant if the criteria of public importance and
so on are satisfied.
Maybe one might feel a little uncomfortable at

going further and saying that in those
circumstances one can say that the circumstances
are very exceptional, perhaps truly exceptional, if
"truly" is meant to give the same kind of emphasis
that the expression "very" gives to it. If that is
the case, that there is discomfort in reconciling
the dicta on the basis suggested by Justice Dawson,
my submission would be that the statements in

question, in cases such as Wilkes and Lee, should
be taken to have been qualified as a result of this
Court's detailed consideration in Davern v Hessell of the true scope of the doctrine of double
jeopardy and its examination of the considerations
of fairness in these situations.
The contrast between the two principal

approaches is, of course, stark, I think, between
the views of Your Honour the Chief Justice and
Justice Brennan, and on the other hand
Justice Deane. If I understand Your Honour
Justice Deane correctly, the view is stated in
greater length in Davern v Hessell, but repeated
briefly in Reg v Benz, and it seems to be the
concept that even though the accused himself has
instituted the process of appeal, nevertheless, the

Rogerson

5/11/91

institutions of the State - not in the sense of the
State as compared with the Commonwealth, but the
State in the broadest sense - can be brought to
bear in that appeal process generally speaking only

once. They can have one go. Beyond that, it
becomes in the nature of oppression to take it
further.

TOOHEY J:

Mr Rose, what is meant by the term "exceptional"

as you understand it in those decisions? Does it
mean exception to a rule, in which case there is
perhaps an element of circularity about it, or does
it mean unusual?

MR ROSE:

As I read the cases, Your Honour, I doubt if it

could be taken to mean unusual. If one did
interpret it in that way, I think it probably would
not be correct to follow Justice Dawson's
description of an appeal in the circumstances of
this case as being exceptional because, I suppose,
one might say they are not unusual, not unusual for
issues to be raised concerning the correctness of
questions of law in a court of criminal appeal. So
perhaps it would not be satisfactory to treat it as
meaning unusual. Justice Dawson thought the
exceptional nature of the situation in a case such
as this lies in the fact that the issues must be
ones at least of public importance, and that
therein lies the difference in the case of appeals
by the Crown.

MASON CJ: But is not the problem with that that that is, in

effect, the principal criterion in determining
whether special leave will be granted in any case?
Now, there are, of course, judgments, and I have in
mind judgments that have been delivered by
Justice Brennan and myself in interlocutory applications in civil special leave applications
where an injunction has been sought, or a stay has
been sought by the applicant pending the hearing of

the special leave application in which both
Justice Brennan and I have said that the jurisdiction to grant special leave is, in effect,
an exceptional jurisdiction. But one would have
thought that "exceptional" in the context in which
we are now speaking has a different meaning
altogether, because the point as I thought of
Justice Dixon's judgment iri Wilkes was to indicate that there was a difference, and a marked difference, in the way in which the Court dealt
with a Crown appeal and an appeal by the accused
person.

MR ROSE:

And true it is, if Your Honour pleases, that the

general rule would be that appeals by the Crown
from acquittals are - in particular of course at
first instance, the general rule is against it and,

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5/11/91

in that context, one could perhaps understand
Justice Dixon's comment that the grant of leave to
the Crown to appeal is exceptional.

TOOHEY J: That is usually exceptional in a sense that it is

an exception to the rule.

MR ROSE:

An exception to the rule, yes, Your Honour.

TOOHEY J: Which has, again, certain circularity built into

it.

MR ROSE:

It is my submission that an exception to the

general rule that leave to appeal is not given to
the Crown in respect to an acquittal at whatever
level, either at first instance or further up - an
exception to that general rule arises where the
appeal is from a Court of Criminal Appeal on a
question of law of major public importance. That
is, in itself, exceptional. As I indicated earlier
one might, perhaps, have some discomfort in
describing that situation as very exceptional.

TOOHEY J: That may simply mean, Mr Rose, that the original

rule may need modification?

MR ROSE:

And that was, in fact, if Your Honour pleases, the

alternative which I put to the Court and which is specified there in paragraph 5.l(b) at the bottom
of page 2.
The first way of possibly resolving the

apparent conflict is to say that the cases, within
the limits I have mentioned, are exceptional and
very exceptional in terms of the general rule in

relation to leave to the Crown to appeal from
acquittals. But the alternative basis is,
precisely, the one that Your Honour Justice Toohey
has indicated that one should now in the light of
Davern v Hessell and the detailed consideration by

the Court there of considerations of fairness and
so on, that what has been stated as a general rule
should be regarded as qualified in a situation such

as this and that the correct approach, in my
submission, is that indicated by Your Honour
the Chief Justice in Reg v Benz with the notion as
contrasted with the concept that I understood to be
enunciated by Justice Deane, that the alternative
concept is that once the accused begins the
appellate process then he or she takes the
appellate structure as it is and that, in that
context, it is appropriate for this Court to
correct errors of law in a Court of Criminal Appeal
in the absence of special circumstances.
So, in a sense, in this situation the general
rule should be around the other way because of the

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5/11/91

general responsibility of this Court that I opened
with; special leave should be granted unless
exceptional circumstances exist to indicate that it
should not be. And that way of stating the general
rule for a case such as this appears in the

case, 168 CLR 114. judgment of Your Honour the Chief Justice in Benz's

McHUGH J: Perhaps Mr Rose, it is a balancing process, that

the point has got to be of such or of sufficient public importance that it overrides the ordinary
right of an accused person to have criminal
proceedings in, once an acquittal is entered on his
behalf.

MR ROSE:

Yes, with respect Your Honour, it is a balancing

process and His Honour the Chief Justice did, in
Benz's case, put it in those terms, that the grant
of special leave, in that situation of correcting
errors in a Court of Criminal Appeal, in the
absence of special circumstances to the contrary,
in His Honour the Chief Justice's view, taking that
approach, achieves:
"a truer balance between the protection of the
defendant as the weaker party in a criminal
case and the interests of society in ensuring
the due administration of the law."

That is quoting from Davern v Hessell in the joint
judgment of His Honour the Chief Justice and
Justice Brennan; a slightly different context, but
nevertheless the comment is, with respect, an
apposite description of the process here.

TOOHEY J: Given the existence of section 35A, does that not

have to be the starting point for any application
for special leave to appeal, whether by the Crown
or otherwise?

MR ROSE: Indeed, Your Honour.
TOOHEY J:	I mean, it may be that the interests of the

accused might lead the Court to consider that,
although some of the criteria in section 35A exist,
administration of justice in the particular case
may tell against a grant of special leave.

MR ROSE: With respect, yes,Your Honour, and I am not

intending to convey the impression that the process
is an automatic one. In quoting from the
Chief Justice's remarks in Reg v Benz, I referred
to the proposition that although it is a general
approach, that where the question is for leave to
appeal from a Court of Criminal Appeal to this
Court, generally that leave should be granted, though, of course, there may be circumstances

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5/11/91

pointing to the inappropriateness of the grant in
such a case and that was the content of paragraph 6
of my written submission, because when one looks at

talking about exceptional circumstances, one finds
that there are a number of circumstances where the

the various cases where the courts have been the administration of justice as outweighing the
need to correct the Court of Criminal Appeal on an

important question of law. My learned friend has
referred to the particular circumstances in Wilkes'
case, for example, where, although there was an
important question of law discussed, apparently it
was of marginal relevance at the trial.
I think Your Honour Justice Deane, in Benz's

case, drew attention to the particular
circumstances of that case where, amongst other
things, Your Honour mentioned that the Crown had
not adequately argued the point of law in the Court
of Criminal Appeal, and this would be one sort of
special factor that could, in my submission,
properly weigh against the general approach of
granting special leave to appeal from a Court of
Criminal Appeal.
There are other special situations that can

arise and certainly, in my submission, I am not
suggesting that there is anything automatic in the
general proposition. Far from it. The Court, in
my submission, would always be alive to the
interests of the administration of justice in
accordance with the particular circumstances, but
nevertheless, in my submission, there is the
general proposition in accordance with the approach
of Your Honour the Chief Justice in Benz's case,
which is, with respect, the appropriate approach to
take in such a case.

MASON CJ: Thank you, Mr Rose. Mr Solicitor for

South Australia.

MR DOYLE:

If the Court pleases, our submissions are

directed to the so-called general principle that
the Crown must demonstrate exceptional

circumstances. We have provided to the Court a
separate single sheet - I do not know whether Your
Honours have it in front of. you - in which, simply
to save time, we collated some of the cases in
which - - -

MASON CJ: Yes, we have that.

MR DOYLE:	As far as we could find, Your Honours, the only case where the Court as a whole seems to have
endorsed the principle is the third case in the
first group of cases, Reg v Lee, where the

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5/11/91

proposition appeared in a judgment of all five
Judges. In other cases individual judges have made
remarks to that effect that it is the only one

where the whole Court has. Not that we suggest for
a moment that the general impression, if I can put
it that way, is not that the Crown should show
exceptional circumstances.
As to what that means, Your Honours, our

understanding of it really accords with what
Your Honour Justice McHugh said, that it seems to
mean, or has been taken to mean, that the interests
of the accused in having criminal proceedings
terminated once there has been an acquittal is seen
as applying in relation both to a jury acquittal
and an acquittal by an appellate court and that
then that is given such a high value by our system
that should the Crown appeal from an immediate
acquittal it will not be enough for it to pass the
ordinary barriers showing a point of law of general
importance, it has to pass some higher barrier, but
the Court has not itself ever indicated the nature
of that higher barrier. One would surmise, as
Justice McHugh suggested, that the requirement is
on the part of those who adhere to that principle
that the point really be one of exceptional
importance and one that might have some quite
fundamental effect on the administration of the
system of criminal justice, but it is subject to that that the interests of the accused are given
the greater weight, and it is that view which we
would challenge.
Your Honours, paragraphs 1 and 2 of the

outline have really been covered quite adequately
and so I will pass over them. Could I just start
our submissions by looking at the policies which
seem to underline this approach.

Your Honours, the traditional approach to

Crown applications for special leave seems itself
to be clearly enough linked to the common law
principle that there is no Crown appeal from an
acquittal and from the further principle derived
from that that a statute which creates a right of
appeal will not be treated as creating a right of
appeal from an acquittal in the absence of very
clear words.
So the first link, in our submission, is to the common law approach to acquittals. When one
asks oneself, "Well, what is that common law
approach?", that, again, as the cases show clearly
enough, is based on the notion of double jeopardy. Our first submission is that when one looks at the
cases, what they appear to refer to and the matters

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5/11/91

they allude to, are primarily matters which are
relevant to their being a further trial on the
merits.
That seems to be what underlies double jeopardy, that it is wrong or unfair that an
accused should face another trial on the merits.
But, in our respectful submission, if one can say
that is not the end result of what the Crown seeks
then, while that is not the end of the issue, in my
submission, one can say, as a starting proposition,
that what the Crown seeks is not offensive to the
basic notion of double jeopardy and, therefore,
that the link which is made to that notion may not
provide sufficient answer in the present case.
So our first point, which is really

paragraphs 3 and 4 of the outline, is that the
relevant principle, at first sight, seems to be
based on double jeopardy and that that principle in
turn primarily relates to a second trial on the
merits.
I have referred Your Honours, in paragraph 5,

in passing, to the judgment of the United States

Supreme Court in United States v Wilson. I do not
propose to read from it, it is undoubtedly familiar
to Your Honours. But it is interesting that, in
America, where this matter has the status of
constitutional principle, it has again been spelt
out in terms which support, I would submit, what I
am putting to the Court, the three facets: no
second trial for the same offence after an
acquittal; no second prosecution for the same
offence after a conviction; and then, no multiple punishments for the one offence. And again, they are developments of the basic principle which, in our submission, in the present context, have one
thinking primarily: "Is there going to be a second
trial on the merits here?"

Your Honours, if that is so, in other words if

there is a valid distinction between a challenge to
an intermediate acquittal which will not lead to
another trial on the merits, and the basic notion
of double jeopardy, one then has to ask: what is
the principle at stake here? And when there has
been an acquittal, the principle at stake in the
notion of double jeopardy, in our submission,
appears to be one of fairness. When there has been
a conviction, what double jeopardy seems to look to
is the inappropriateness of yet another trial when
the man has already been convicted. When he has
been acquitted, what the principle looks to is
broader issues of fairness.

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5/11/91

If I could just direct attention then to some

of the arguments that have been advanced under that
broader principle in support of the view that there
should be no appeal from an intermediate acquittal,
in other words, the policy issues.
First of all, it has been said to be unfair if

the prosecution can improve its case but, in our
submission, that can only be applicable in the case
of a second trial and has no real relevance here. resources and strength between the State and the
individual. While it is acknowledged that that
does apply in the area of appeals, in our
submission, it has much less weight in relation to
an intermediate acquittal, first of all because of
the significance which has been developed by
Mr Mason of a judgment of the Court of Criminal
Appeal and its ability to upset the orderly
administration of the criminal law; secondly,
because it is the accused who has himself invoked
the appellate process.
The third factor which has been pointed to is

oppression of the individual which, in our
submission, is really another facet of the point
already made. Reference has also been made in the
cases to the sanctity of the jury verdict, but an
appeal for an intermediate acquittal does not
impinge on that. Then there are occasional
references to the possibility of an innocent person
being convicted but, in our submission, that would
again seem to be applicable only if a retrial is
foreshadowed.
Then finally, reference has been made to the

fact that in the usual case both the prosecutor and
the court were emanations of the one State and when
the court established by the State rules in favour

of the defendant, fairness requires that that be
the end of the matter. As to that and as to these
points generally, we would submit that what has to
be put against that are the interests of society
and the State and of the victim in the regular
administration of the law and in the punishment of
persons properly found guilty.
So, Your Honours, in a sense those points may

seem rather bland and rather assertive, but our
submission is that when the fundamental principle
is examined, it does come down to that rather broad
issue of fairness and, in our respectful
submission, the arguments are in no sense
compelling when one is looking at an intermediate

acquittal. So for those reasons, we would
respectfully adopt the approach taken by

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5/11/91

Your Honour the Chief Justice in Reg v Benz. May
it please the Court.

MASON CJ: Thank you, Mr Solicitor. Before the Court

adjourns, could counsel for the respondents hand in
their submissions? There is no need to do it now,
but when the Court adjourns if they could be handed
in to the associate who is clerking, they can then
be conveyed to us. The Court will now adjourn and
we will resume at 2 pm.

AT 12.41 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

MASON CJ: Yes, Mr Horler. And in the first instance you

might confine your argument to the question whether
the Court should grant or refuse special leave.

MR HORLER:

Thank you, Your Honour.

So confining myself to

that question alone, Your Honours, there is not
very much more that I can add that has not already
been said. I do not think that I can assist the Court by going to the cases which attempt to say
what the word "special" means, whether it is
something truly or really; that has been attempted
in the written submissions put to you this morning

by counsel for the Commonwealth. I think rather
than falling into the trap of exchanging synonyms,
sufficient to say, using the phrase used by
Mr Justice Dixon in Wilkes, that in respect of a
Crown appeal against an intermediate appellate
decision substituting a verdict of acquittal, that
that is a rare thing and one avoids the
difficulties with the modifiers and the intensives

put in front of the often recurring word in the
cases to which you have already been taken.
The second thing I would want to say,

concerning our resistance to the notion that
special leave should be granted, - and it has been
touched upon before - is that, were special leave
granted, then this litigation, this prosecution, could not come to an end in this Court, because, whatever view Your Honours took, if the applicant
were successful, the applicant asks that, following
upon the grant of special leave, that this case go
back to the Court of Criminal Appeal in
New South Wales where there are some 17 or 18
substantial grounds of appeal, argued but not
adjudicated upon, and that would mean that one of

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5/11/91

at least two things could happen, which we say
would be grossly unfair to the respondents here. Either the Court of Criminal Appeal, bearing
in mind what this Court had said, would resolve the
matter and there would be no new trial, or there
would be a new trial, and we say, given the
chronology, and I will not, unless required, go to
the chronology, but given events that began round
about the middle of 1985, it would work a prejudice
and be grossly unfair to my client Mr Rogerson and
indeed, I think I can include all three
respondents, for them to be jeopardized - I want to
shy away from the American nomenclature, with all
due respect to Mr Justice Deane - but it would be
unfair if the result of the proceedings here were
to send these respondents back to the
Court of Criminal Appeal, with the very real
possibility of a further jury trial, given the
history of the matter and in Mr Rogerson's case,
the fact that he has served about nine months gaol,
and the other matters that are set out in the
chronologies provided by the various parties to
this litigation.

So in the exercise of Your Honours'

discretion, it being a rare thing to grant the
applicant what it seeks, so far as it concerns my
client, I would ask Your Honours to have in mind
the matters of history and chronology which point
to the unfairness to the respondents, and the fact
that there can be no finality here in this
litigation if they gets the relief or the orders
they ask for.
In relation to the special leave point, I give

Your Honours a reference to a case already cited
more than once, Davern v Hessell, 155 CLR,
particularly what was said at page 53 point 5, the
Chief Justice and Justice Brennan referring to
Wilkes and other cases and the notion that what is

sought here is a rare thing, Your Honours there
encapsulated the cases and what can be gleaned from
the cases. I think it is sufficient for me to give you a reference to that portion of Davern v Hessell
at page 53 in that judgment, and Your Honours
already have the references from Benz, and we rely
upon those.
Your Honours, in my own brief written

submissions in relation to the confined argument as
to special leave, on page 2 at paragraph 5 we say
this: if special leave to appeal is granted, the
Court should exercise its discretion not to disturb
the judgment, that is, the acquittal, substituted
to the Court of Criminal Appeal in the instant
case. These matters are relevant to the exercise

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5/11/91

of discretion. I draw Your Honours' attention
to (i) because it has already been referred to by
the Solicitor for New South Wales, and the fact
that through no fault of the respondents we have
not had the benefit of a judicial determination on
some very substantial matters which are available
to the respondents.
By way of example only, I refer to the fact -

I was not in the trial below, but when the Crown opened the case before the jury in the District
Court in New South Wales, it made very specific
reference to what we say was the dubious use to be

made of the evidence of Miss Jones. I refer to
this in a little detail because it is a point still
unresolved.
Miss Jones, her name being in inverted commas, was the lady who said at trial over repeated
objection that she had traded money for white

powder at the airport. It was said by counsel for
Mr Rogerson below and repeated by me, but skewed in a different way, that that evidence was
inadmissible and it caused alone the trial to
miscarry, and that is why the refer~nce to the
recent decision of Jones v Reg, 166 CLR at page 409
is relevant.
Your Honours, it is unusual in New South Wales

for a Crown opening to be taken down. I should,
however, give you a reference to - it is the first
of the application books; volume I at pages 10 and
13. I will read briefly from what the Crown

prosecutor said in opening this case of one count of conspiracy to support a submission that I will
come to in a moment - volume I, page 10, at the
bottom - that the Crown did not have a case in
respect of the one count of conspiracy charged
against these three respondents.
In order to make out the bulk as a makeweight,

what the prosecution did - and we say impermissibly
- in creating great prejudice was to refer to
another basket of evidence which had never led to a
charge against Mr Rogerson, or indeed any of the
other respondents here, nor could it. The evidence
relating to the, we say, unconnected and
impermissibly admitted evidence of what happened at
the airport was that the witness Miss Jones said

she exchanged cash for a white powder.
That, in the current climate, may or may not

have been a suspicious circumstance. Your Honours
do not have to decide that, but it had nothing to
do with the trial of these men charged with a
conspiracy to pervert the course of justice. This
was in part recognized and conceded by the Crown

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5/11/91

prosecutor when at page 10 in his opening, this is
how he dealt, ambiguously we say, but creating
great prejudice, with that body of evidence that
emanated from Miss Jones. This is the Crown
prosecutor to the jury before the first witness was
called. Line 40, page 10, volume I:
We do intend to call evidence as to the probable source of a large proportion -

MASON CJ:	Where is this?
MR HORLER:	I am sorry, in the application book, volume I,

page 17, Your Honours:
We do intend to call evidence as to the probable source of a large proportion of that
money.

I stop myself there to say Rogerson was never charged as he might have been, had there been a
case, with possession, deemed supply or supply of

drugs. No such charge was ever brought against
him.
The female witness will be called who will
tell you that on a day, probably 14 May 1985,
she left Melbourne to travel to Sydney by car,
bringing with her a bag which contained a
large sum of money made up in bundles of $50

notes. She will tell you that at the Sydney
Terminal she met the accused Roger Rogerson
and he was holding a bag which was identical
to hers.

And Your Honours will see, over the page, page 18
in volume I - I will just ask Your Honours to read
that. There is a summary there of what her

evidence was. I should say, at this stage, that

her credit was attacked and, indeed, Rogerson's
defence was: "It didn't happen, I do not know this

woman, I have never met the woman". I am
corrected, although the ultimate proposition is
still true, he was charged with a conspiracy to
supply and that charge was subsequently withdrawn
and no evidence was proffered in that regard.
Now, I just want to take pause there,

Your Honours, to make some brief analysis of how the Crown then went about its task, because in the legal argument this morning, perhaps the factual
issues which were important and remain important
have been somewhat blurred.
It was not an offence for Mr Rogerson or

Mr Nowytarger or, indeed, anyone to open a bank

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5/11/91

account under a false name, and it was quite clear
that there was abundant direct and admissible
evidence of that happening and they were on the
camera in the bank at the time they closed the bank

account and got two bank cheques. Now, it was not
an offence to open a false bank account.
The prosecution began but desisted in a charge

of conspiracy to supply the white powder; began and
withdrew a charge in relation to the allegedly
tainted money, bringing a charge of the kind
"possession of goods in custody". Given
Grant's case and other cases, it could not have
succeeded. So, in the fallback position I submit
that what has happened is that these respondents,
each and all of them, were charged with - you have
the indictment before you. And it was unsustainable
but was in a highly prejudicial way propped up by
these constant references, even from the opening of
the case, to a matter which could not be proved
beyond reasonable doubt, so that the jury were
clearly invited and encouraged for the tail to wag

the dog: "If we surmise and conjecture that this
money came as the result of illegality, namely
illicit drug dealings on a commercial scale, ergo
what they were doing was to set up the sham and to
tell these lies in order to conceal a crime that
they were never charged with".
And that is why the decision of the Court of

Criminal Appeal was impeccable and that is why the
course followed by the prosecution was prejudicial
and involved a charge (a) being made out by the
impermissible use of material which was not
admissible on the charge that was preferred against

these men. And that is referred to at the very
beginning of Mr Justice Lee's judgment and because
this has figured in some of the questions from the
bench to counsel, I felt the need to refer to it.

Now, the only other matter I want to go to is this: a number of questions were put by
Mr Justice McHugh and others concerning a blurred
proposition that is to be found in volume IV, and I
will just take you to the reference. In volume IV,
final volume of the application books, at
page 1236, there is one of the complaints or
criticisms of the method of reasoning of the Court
of Criminal Appeal in New South Wales, and I
suppose to understand it one has got to go to the
bottom of 1235. Just to give Your Honours the
context, if you would be so good to go to the
bottom of 1235 in volume IV, the last sentence I
will read and over the page:
The CCA decision failed to reflect this once
it is accepted that the course or

Rogerson

5/11/91

administration of public justice includes the
investigation of suspected offences by the
police with a view to possible prosecution.

Page 1236 at the top is just where I have just read from.
Now, what has happened there is that two

separate but related propositions have been jammed
together and in so doing there has been a
distortion and we submit to you that there were at
least two possibilities and they were identified by
Mr Justice McHugh in that question to the Solicitor

from New South Wales. It would have been
appropriate for police officers, constables in New
South Wales, to investigate whether a crime had been committed, and having made that investigation
it would have been equally appropriate and logical
for the police to investigate who had committed
that crime.
So that the two questions are run together in

that which appears on the top of 1236. Let me
summarize, fairly I hope, what is revealed by the

evidence in relation to what did happen. There was
clear evidence of the sham, there was clear
evidence of the physical presence of two of the
respondents in the bank getting their bank cheques.
Where did that put Detective Rogerson, he being the only policeman in the quartet? He was vulnerable
to being asked questions about how come a sergeant
of police had, with or without another, in excess
of $100,000.
As has been correctly said, unlike other

citizens, he could not exercise his right to
silence. Travers says that, and more recently, I
think, the Victorian decision of Morris says that,
that the police officer cannot decline to answer
questions of the kind that I have articulated. But
I stop myself there to remind the Court that

whatever disciplinary proceedings might have been
on foot or further processed, there is no evidence
to suggest that at that time, or subsequently, the
commission of a criminal offence was being
investigated and following upon that, that a
criminal offence, an identifiable one, had been
committed by Mr Rogerson or, indeed, any of these
respondents.
In that situation, what is sought to be relied

upon is the irrelevant and prejudicial material in relation to another transaction, and the jury were clearly invited to speculate about the tainted and
criminal provenance of the money, and that is a

ground that has not yet been resolved. It is
important, therefore, to refer to that English case

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5/11/91

of Hammersley, reference to which has already been
given, in order to point to the way in which this
application is misconceived. In Hammersley a
number of police were charged that they did, over a
number of years, solicit and receive bribes from
people clearly engaged in criminal activities,
mostly in relation to illegal gambling.
If one looks at the headnote in Hammersley and

elsewhere, one sees that in that case there were
clear, discrete, specific criminal charges
preferred against those policemen, and sufficient
to tell the Court that in Hammersley in the
headnote at page 208 one finds the form of the
indictment. Perhaps I should give that to
Your Honours in more detail. Hammersley & Ors,
page 208, in the different typeface, one sees, at
about point 3:
They had been committed for trial upon a
charge that between the afore-mentioned dates
they did conspire together and with other
persons unknown corruptly to solicit and
obtain rewards for Rand the first two
appellants for showing or promising favours
contrary to their duty as police officers and
thereby to obstruct and defeat the course of
public justice -

Why it is important to draw attention to the form
of the indictment is to compare and contrast it
with what happened in relation to Mr Rogerson and
others: no known offence of opening a bank account
in a false name; an unprovable case based on
speculation in relation to the transaction at the

airport, white powder for money. So that there was
no specific crime which was then in the criminal
justice works, the actions of which in telling lies
and/or in setting up a sham transaction could be
said to have diverted the criminal justice system
from. That is a very convoluted sentence but it is

important to see that there was a discrete and
particular crime or crimes referred to in
Hammersley which is just lacking in the evidence in
the present case.

TOOHEY J: Mr Horler, it does not appear that particulars

were sought prior to trial,. although there was some
discussion after the Crown had finished opening, as
to what the nature of the conspiracy was because
the trial judge eventually ruled on the matter.

MR HORLER:

It would be surprising if it was not and one

counsel appearing with Mr Hughes, who was at trial,
tells me that was done.

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5/11/91

TOOHEY J: Perhaps I should have put it differently. It

does not appear that particulars were supplied
prior to trial.

MR HORLER:

They were sought;

whether they were supplied or

not I do not know. The overt acts were sought and
particulars were given.

TOOHEY J: Are they before us?

MR HORLER:

I will ask Mr Byrne to look that up,

Your Honour. I do not remember having seen them in
all the papers.

TOOHEY J: Because there was a debate when the Crown

finished its opening as to what precisely was being
alleged against the accused, as I read it.

MR HORLER:

Yes.

I took that to be a complaint that the

opening was outside the particulars, but they do
not seem to have been before the judge so that that
issue could be adjudicated. Your Honour, we will
give an answer to it, but I am afraid I cannot do

it at this moment. They were sought. They were
books but they can be supplied.
supplied. Whether they are in the books - the the

TOOHEY J: Yes, thank you.

MR HORLER:

Your Honours, before I close I want to add one

further thing concerning that which I was asked to
confine my remarks to, namely, special leave. The
Solicitor for South Australia began an image from
steeplechasing which seemed appropriate pointing
out that in ordinary leave applications - and I am
falling into the trap I am trying to avoid, but in
ordinary leave applications there are certain
hurdles that an applicant must get over, and I
would want to adopt and just amplify that by saying

of them and they are taller and higher than that not only do those hurdles exist, but there are more
which would ordinarily confront an applicant in a
case where there was not the substitution of an
acquittal as a judgment by the intermediate court.
Your Honours, unless there is any other matter

on that confined issue of special leave, there is
nothing more that I would wish to add.

MASON CJ:

We will hear from the other counsel for the

respondents on special leave in the first instance
at this stage, Mr Horler.

MR HORLER:

Thank you, Your Honour.

MASON CJ: Yes, Mr Hughes.

Rogerson

5/11/91

MR HUGHES:	Your Honours, whatever the precise denotation or connotation of the adjective "exceptional" in this area of discourse, one thing is clear, in my
respectful submission, and that is in a course of
decision extending now over 43 years, this Court
has consistently held that the Crown faces a
particular and special hurdle when it seeks special
leave to appeal against a judgment of acquittal entered by a Court of Criminal Appeal.

In this case, we submit that there are

particular hurdles affecting the Crown's
application for special leave to appeal against

Nowytarger. We would respectfully adopt as a
useful touchstone for the purposes of this argument
the idea that was adumbrated by Justice McHugh this
morning, namely, that a balancing exercise is
involved, and we would add a balancing exercise
which has to be carried out in full view and with
regard to the reluctance that this Court has
manifested over the course of judicial decisions
going back to 1948 to grant special leave to the
Crown in a criminal case.
Now, very high in the ranking of the factors

that must be weighed in the balance, we submit, is
the question of fairness, fairness to the accused,
and that concept was enunciated by Sir Owen Dixon
in Wilkes, and I will not go to the text. It was
read to Your Honours this morning.
The problem, we submit, that the Crown faces

or one of the problems that, we submit, the Crown
faces in seeking special leave in this case is a
problem of its own making because of the way in
which it sought to fashion the case at the trial.
I refer to the introduction of Miss Jones's

evidence. She was an undisciplined witness, and I
think I have given Your Honours a reference to

that. She said once, blurting it out, that the
white substance was heroin and the learned trial
judge struck it out; she repeated the allegation
again that it was heroin, I have given the page
reference, and on that occasion His Honour, perhaps
the transcript does not record accurately exactly
what he said, but the transcript records that he
allowed the evidence to stand. But even struck
out, the jury heard it and, of course, it would
have a profoundly prejudicial effect upon not only
Rogerson but upon my client, prejudicial because,
as I have pointed out in the outline, when
His Honour came to sum up the case to the jury,
while His Honour said twice that that evidence as
to what happened at the airport was not admissible
against Nowytarger, or for that matter Paltos,
nevertheless when His Honour came to deal with the

Rogerson

5/11/91

competing contentions of the Crown and of
Nowytarger's counsel, volume III, His Honour, at
pages 805 and 806, had this to say. It starts
relevantly at line 25:
You have heard from no-one from the Barclay
Club to support the statement of the accused
Nowytarger as to where that money came from -

this is recounting the Crown submissions -

the large sum of money that was "won". The
Crown says that you would draw the conclusion
that the explanation given by Nowytarger is a
farce, a cover-up, that the money was obtained
from an illegal source. The Crown says that
you would accept the evidence of Miss Jones,
that you saw her cross-examined at some
length.

Now that was a most unfortunate collocation of

thoughts or ideas because, in the way it was put,
the learned trial judge contrasted the alleged
position of Nowytarger and Miss Jones, undoing, we
would submit, the effect of the previous directions

at a fairly late stage in the summing up.
On the submissions that are now made in

support of the application for special leave and in
support of the appeal if special leave be granted,
Your Honours, the evidence of Miss Jones was
nothing more than an irrelevant excrescence, yet in
the way the trial was conducted, her evidence hung
over the case, if I may use a simile, like a black
cloud.
That is one of many reasons why the learned Solicitor-General for New South Wales has conceded
to Your Honours, as he did this morning, that there

case be remitted, as he asks to be done, to the are substantial points to be argued should this

Court of Criminal Appeal. One of the points, but
by no means ·not all of the points, which was
advanced, for example, on behalf of Nowytarger in
the Court of Criminal Appeal, in support of the
alternative application for a new trial, was that
the trial miscarried, because whether one viewed
the particular problem of joint trial or separate
trial in prospect or in retrospect - one being
entitled on the authorities to do the latter - the

trial had miscarried because the evidence, for example, against Nowytarger, compared with the
evidence admissible against Rogerson, was
significantly different and we invoked Darby's
case.

Rogerson

5/11/91

Now, that sort of problem would not have

arisen, it might be surmised, had the Crown not, as
it were, played with fire in the fashioning of its
case by calling this evidence of Miss Jones which,
on the case they now seek to make, need or should
never have been called and which was concededly,
subject to the unfortunate slip, as we would
respectfully put it in the summing up, ruled not to
be evidence against my client and Paltos.
So, what we would submit is that there should

be weighed heavily in the balance, in favour of the respondents, particularly my respondent, the factor that the Crown was responsible, arguably - and it
is conceded to be arguably so - for a mistrial, so
that these accused would face the prosect, not only
of a further full argument on the new trial points
in the Court of Criminal Appeal, but the prospect,
if those arguments are successful, of a new trial,
probably by then seven years, certainly seven years
after the events that gave rise to the indictment,
and we have mentioned in our submission that a
factor which ought to be, we say, weighed in the
balance against special leave is that in any event the course of this police investigation could only
be described as dilatory and leisurely.
The events giving rise to it occurred in

July 1985; the last of the accused was not interviewed until 26 March 1986 and apparently then
- and this appears from the evidence of the
witness, Mr Strong, who was investigating, an
inspector - the matter was allowed to lie dormant
until the charges were brought in September 1987. So there is an unfortunate history of
dilatoriness and new trials are an evil, most
times, especially so when a new trial is had

probably seven years after the event. Now, so far

grounds taken in paragraph l(a) of our outline. I have not said anything about the first of the

TOOHEY J:	Mr Hughes, what you describe as a balancing exercise might more aptly be described in terms of
section 35A(b), whether the administration of justice in the particular case requires
consideration by the Court of the judgment.
MR HUGHES:	Yes, Your Honour.

TOOHEY J: That is not to answer the question, that is

merely to pose it.

MR HUGHES: Well, I would invoke, with respect, that

formulation of the question, Your Honour, the
arguments that I have endeavoured to put under the
rubric of the balancing exercise, and I would not

Rogerson

5/11/91

wish to add anything to them on that score. I hope
Your Honour does not think that I am -

TOOHEY J:

No, no.

I understand that, but they would apply

equally to either formulation.

MR HUGHES:

Yes, indeed, Your Honour.

Now, very shortly -

and I am restricting myself now to the special
leave point -

MASON CJ:

You are now turning your attention to l(a), are

you?

MR HUGHES:

Yes, l(a), Your Honour.

We say that on the

special facts in this case the Court of Criminal

Appeal was plainly right. The argument presented
today by the learned Solicitor-General for New
South Wales is an attempt to extend beyond
permissible limits the ambit of the offence of
conspiracy to pervert the course of justice or, by
the same token, the ambit of the offence of
attempting to pervert the course of justice.

MASON CJ: Are you seeking to say that the statement of

principle by the Court of Criminal Appeal was
correct, are you?

MR HUGHES:

Yes.

MASON CJ: There is difficulty in getting that point across

to us in the short space of - - -

MR HUGHES: There is. I appreciate that, but I am not

abandoning the point.

MASON CJ:

I have never known you to abandon a point,

Mr Hughes. If all you are doing is addressing us
to persuade us that you are not abandoning a point,
I do not think you need to do that.

DEANE J:

Mr Hughes, if one looks at what the Court of

Criminal Appeal has held, is not what Their Honours
have said this, that looking at the summing up, on
the basis of that the jury here have found
everything except an identifiable crime. In other
words, they have found the moneys were the proceeds
of crime, therefore there was a crime; the
fabrication was by people knowing investigation of
the source of the moneys was inevitable and
imminent; but the conviction cannot stand simply
because the prosecution cannot identify the
particular crime. That is quite different, of
course, from what the Solicitor has said, but that
seems to me to be what the Court of Criminal Appeal
has held.

Rogerson

5/11/91

MR HUGHES:

Your Honour, may I answer the point that

Your Honour has put to me in this way. First of
all, we would respectfully say that the
Court of Criminal Appeal did not hold that there
was evidence to the jury that the moneys were the
proceeds of crime. Certainly it did not hold that
as against Nowytarger.

DEANE J: They did not examine it, but they did say that the

jury found that the moneys were the proceeds of
criminal activity.

MR HUGHES:

If they said that and if they are right, the

result arrived at is right, albeit partly for the
wrong reasons.

McHUGH J:

I do not see how they could have said that,

because the case was never left by the trial judge

on that basis. It seems to me if you look at 823,
was a:

that is where the trial judge summarizes what the

moneys deposited -

because -
police investigations were inevitable and that
such investigations could lead to criminal
proceedings against either the accused
Nowytarger or Rogerson or both.

MR HUGHES:

What was overlooked by the prosecution at the

trial and, with respect, by the trial judge was
this, that proof of a conspiracy involves proof of
mens rea. My learned friend the Solicitor for New
South Wales referred this morning to Freeman's
case. Unfortunately it escaped from our list, but
I am not going to cite more than one short passage

in the judgment. Could I hand up just the page
from (1985) 3 NSWLR. This is in the judgment of
Chief Justice Street at page 308. It starts a third of the way down:
Similar views were expressed in the brief encapsulation by Lord Hailsham of a series of propositions in Kamara v Director of Public
Prosecutions (1974) AC 104 at 119-120. The
propositions were numbered by his Lordship and
I quote the first three:
"(l) It is common ground that the actus

reus in a conspiracy is the agreement to execute the illegal conduct, and not the
execution of it. The crime is complete when
the agreement is made."

Rogerson

5/11/91

His Lordship referred to the Poulterers' case.
"(2) In spite of this, mens rea is an

essential ingredient in the crime of
conspiracy. This mens rea consists in the
intention to execute the illegal elements in
the conduct contemplated by the agreement, in the knowledge of those facts which render the
conduct illegal."

It is because of the necessity for the Crown to
prove the ingredient of intent in this particular
type of case that some evidence must be given of an
awareness by the accused of facts which constituted

a crime. One can scan the evidence of the
principal witness for the Crown in this case, Karp,
which is in volume I at page 122, where he gives an
account of the restaurant meeting which was the
heart of the Crown case on establishing a
conspiracy. There is no reference in that - and I
will not read it; it would take up too much time -
it is in the second-half of the page - there is no
reference in it to any discussion by the accused or
admission by any of the accused of an awareness that the purpose of the concoction was to be to cover up what they conceived to be a crime or to
cover up what they conceived to be a possible or
probable police investigation of a crime.
The other single feature about that central

piece of evidence is that if one looks over to
page 123 it is not until the main part of the
conversation is finished and some undefined part is
left that Mr Nowytarger arrives at the restaurant.
And that is confirmed by what is said in
cross-examination at page 139.
So where the Crown case failed was in several

important respects: lack of proof of intent; and
the intrusion - the second main one - of the

prejudicial evidence which, on the cases now presented, was quite unnecessary. I appreciate the limits of argument on an
application for special leave and I have probably
exceeded them, Your Honours. For those reasons, we
submit that special leave should not be granted.

BRENNAN J:

Was there any direction to the jury apart from

823 which drew their attention to the question of
whether there was any knowledge of any legal source

of the money? I think 686 refers to it also in
similar terms.

MR HUGHES:

Yes, 686 does.

BRENNAN J: But is there any other passage?

Rogerson	63	5/11/91
MR HUGHES:	Not that I am aware of.	I should stress that

evidence that Nowytarger knew of what had the trial judge, expressly, said that there was no
transpired at the airport. I think that is common
ground and my learned friend, Mr Richter,
properly - - -

BRENNAN J: Or Paltos.

MR HUGHES:

Or Paltos.

I hope that answers Your Honour's

question.

MASON CJ: Thank you, Mr Hughes.

MR RICHTER:

If the Court pleases, we would, with respect,

adopt the argument that fell from our learned
friend Mr Hughes, in particular, and on the issue
of whether or not special leave ought to be given,
the applicant relies on two bases, the first one
being the general question of law that they say is
raised: whether, on a charge of conspiracy to
pervert the course of justice, that involves the
deliberate giving of misleading information to investigating police with a view to preventing
someone's prosecution, whether the Crown must prove
the general nature of the offence.
In some senses that misstates the way in which

the case went to the jury in the first place,
because the focus of the way in which the case went
to the jury in the first place was not on the
question of what the respondents knew or

apprehended. It just did not go on that basis at
all, and on that basis alone the applicants, in our
respectful submission, would have been entitled to
win and to win an acquittal unless there was evidence capable of showing their knowledge.
So far as Paltos is concerned, we say that he

is in a slightly different position from the other

contemplation by him of police investigation or of two from the point of view of the ability to show the possible curial or adjudicatory proceedings
thereafter. There simply is no evidence and our
learned friend, the Solicitor-General for New South
Wales, did not state the facts accurately, in our
respectful submission, in terms of what evidence
there was against Paltos because he relied on the
tape recording as indicating evidence that was

available against Paltos. Now, when one looks at
the tape recording it is not evidence that was
capable of being looked at by a jury to indicate
his knowledge of any police investigation.
The witness Karp gave no evidence that Paltos

knew or would have known or could have known of any
police investigation. The only other piece of

Rogerson

5/11/91

evidence against Paltos is the tape recording, and
if one looks at the passages that have been read to
Your Honours from the transcript, one clearly sees
that what Paltos is there talking about is a bank
investigation. He is not talking about a police investigation, he is talking about the fact that
the bank photographed him, photographed Rogerson,

and the bank is going to inquire. He does not say
the bank is going to inquire but the context does
not permit a jury to find that what he meant was
that he believed the police were going to inquire.
Now, the reason his case is different, both

from a special leave point of view and any other
point of view, is this: that he of course did not
speak, or rather did not give an account to the
police when he became aware that there was a police
investigation and, on the evidence, that is when
the police sought to speak to him about it, he did
not give the account relating the money to the Bentley. In fact, he said, "It is too long, I
cannot remember" and he was not forthcoming in
terms of an explanation. But he did not perpetuate
the account that was allegedly the conspiratorial
account. What he did do, and the only place at
which he gives an account is in his unsworn
statement to the jury in which he does not seek to
maintain the correctness of the account relating to
the Bentley, but says he believed that it was a tax
investigation. Under these circumstances, it would
not have been possible for a jury to convict in any
way.

BRENNAN J:

Was there any application to have a verdict by

direction?

MR RICHTER:

Yes there was, Your Honour.

It was not argued

on that basis, but that was a basis that was taken
up in front of the Court of Criminal Appeal, was
not fully argued because, contrary to what the

Court has said, all grounds were not argued in the

Court of Criminal Appeal. On the second day the
presiding judge indicated that the court was really
only interested in the question that it ultimately
resolved, and so other grounds were not fully

argued, although they were there. Some were not
argued at all, although they were going to be. But
the situation is that as far as an application for special leave so far as Paltos is concerned, there
is simply no evidence that he had knowledge of or
had in contemplation a police investigation.
So that whatever is said ultimately about the definition of a conspiracy to pervert the course of
justice cannot apply to Paltos, and for that reason
alone, for Paltos, there ought to be no special
leave to appeal.

Rogerson

5/11/91

DEANE J:

Must not the starting point be to identify what

other considerations, including whether it is
is the point of law involved in the judgment of the the
of significance and extremely important and so on.

MR RICHTER:	Yes, Your Honour.
DEANE J:	Can I just put this to you: assume against

yourself that the approach that one has to identify a particular crime is wrong and that it suffices if there has been criminal conduct whose precise
nature cannot be proved. If that is assumed
against you, if the jury were satisfied of the
matters identified on page 1201 of the transcript,
why is not the judgment of the Court of Criminal
Appeal wrong, and wrong on an important point of
principle?

MR RICHTER:

Not wrong vis-a-vis Paltos in the sense that if

he were an applicant he would be required to show
some miscarriage.

DEANE J:	I am accepting that the Court of Criminal Appeal seems to have gone on an assumed state of affairs
almost, and you would not want to attack the facts and everything else, but identifying the point of
principle, if you have everything on page 1201, is
not the ratio of the Court of Criminal Appeal decision that you cannot have conspiracy to pervert
the course of justice if you cannot identify a specific time which the fabrication was intended,
as it were, to cover up?
MR RICHTER:	If you cannot identify course of justice, as it

were?

DEANE J: Well, in relation to a specific crime.

MR RICHTER: With respect, in the case of these applicants

that was not the question, and it does not
determine the issue at all.

DEANE J:

I appreciate you say that, but I am simply trying

to identify the ratio of the decision of the Court

of Criminal Appeal, and that seems to me to be it.

MR RICHTER: At page 1201 it does appear to be it, yes. It

does not deal with the question. In some way the
Crown's ability to identify unlawful conduct would
not suffice in any event, because what would need
to be identified and demonstrated is the knowledge

or contemplation by the accused. So to that
extent, yes, we would agree that that is arguably
wrong. But its resolution would not go against

Rogerson

5/11/91

Paltos in this Court, and for that reason no
special leave to appeal ought to be granted.

DEANE J: But the Court of Criminal Appeal seems to have

decided this on the basis that if the evidence had
been that the three applicants had all got together
and said, "Rogerson has got this money through
criminal activity, and the police are investigating

and criminal proceedings are likely. We have to
fabricate a story to cover up the source that
conspiracy to pervert the course of justice could
not be proved unless the prosecution could identify
the crime that led to Rogerson having the money."
If that is the ratio, it seems to me -

MR RICHTER:

If that is the ratio then there is argument as

to why that ratio is wrong.

DEANE J: Yes, and one then, of course, has to pass on to

the other consideration.

MR RICHTER:

But then one has to pass on, and it is really

at the passing on stage that I commenced, and I
should not have commenced, but that would arguably

be wrong and would give cause for argument. But

that really cannot be what it was that the court

was deciding in this case because this case was

decided on its facts, as all these cases appear to

be. And it is at that level that we say there is

no miscarriage of justice, as it were, in allowing
the Court of Criminal Appeal's judgment to stand
given that that enunciation, when related to the
particular case at hand, does not really make the

difference, and it will not govern other cases

which will also depend on their specific facts;

because in other cases one would not have it as a

separate requirement that a particular offence be

identified as the source of the money, for example.

One would have a specific requirement that the

accused knew and intended to cover for that

offence. That is why in this particular

instance - if I can use the language that is always

employed when there are private special leave

applications - there is no miscarriage. For that
reason there ought not to be special leave granted,
and for that reason it is the wrong vehicle.

MASON CJ:

Mr Richter, can I ask you what was the date of

the conversation between your client, Karp, and
Palmer?

MR RICHTER:

19 July. recorded, yes, Your Honour.

That was the one that was tape

MASON CJ: Now, you have said that all you can gather from

that transcript is that there was concern about an
internal bank inquiry.

Rogerson

5/11/91

MR RICHTER:	Yes, Your Honour.
MASON CJ:	Now, when you look closely at the transcript it

does not bear out that description of it, does it?

That is page 857. Now, you will see there at the
foot of that page your client refers to the fact of
the two of them being photographed. Then he goes
on to say at lines 20 and 21:
Somethin' happened to the bank manager and he put 'em in and told 'em about the bodgie
accounts and told someone, mentioned to
someone about the internal accounts.

MR RICHTER:

Yes, "told someone".

MASON CJ: Then you go over to page 858 and at about line 12

there is attributed to Karp the statement:

They recognise him and they think now that
this money is from ill gotten.

Then your client:
Drugs (from drugs), tell the truth, drugs.
K - Well, he said drugs right okay.
That is in the context, with respect,

Your Honour, of Paltos saying, "They photographed

them", and that is the bank. The bank photographed
them, not the police.

MASON CJ: Yes, but is it not in the context that, although

the bank has photographed them, the bank manager
has put them in?

MR RICHTER: Unfortunately, that is simply too equivocal in

this sense, the bank manager could put them in to
his superiors at the bank, he could put them in to

the tax department, he could put them in to any
number of places, and that is why we say it is just
not enough. And to be enough it would have to be
acceptable beyond reasonable doubt that what is
being spoken about there is, "He put them in to the
police". There is simply no other evidence against
Paltos at all that he knew about the existence of a
police investigation, because the first meeting -
in fact it is said to have been before the 16th,
and on the chronology appears to slotted in

somewhere after the 12th. On the evidence it in
fact would have occurred on the 9th or 10th of
July, that meeting, because Karp's evidence was that that meeting occurred eight to 10 days prior

to the tape recorded meeting. Your Honours will
find that in volume I at page 122.

Rogerson

5/11/91

So, on that basis, when the alleged agreement

is struck - first of all, there is not any police
investigation, no-one has put anyone in to
anything. There just is not one. And certainly
there is no evidence called to indicate that Paltos
ever found out about a police investigation.

MASON CJ:

Can I take you over to page 859, where there are

two further statements attributed to your client.
At line 2 he says:
No, what happened then was, that's his trouble
right.

And then further on:
He comes to me, somehow he's got to prove how
he's got the seventy thousand sixty thousand
dollars he's gotta prove.

MR RICHTER:

Yes, but that does not, in our respectful

submission, indicate the police, necessarily,
because as Paltos said in his unsworn statement, he
thought it was a tax inquiry, he could have to prove it to the tax department, in ·which there might potentially be a - theoretically, a
conspiracy to pervert the course of Commonwealth
justice, not New South Wales justice, and one could
simply not determine which is which.

BRENNAN J: But if your client had - if the jury were

entitled to infer from that conversation that your
client knew that drugs was the source of the money,
if they were entitled to infer that, are they not
entitled to infer that your client knew that the
purpose of the arrangement to account for the money
was to ensure that nobody found out that it came

from drugs?

MR RICHTER:

That was not the basis on which the case was

put against him, and they would not be, in our
respectful submission, because it would not
indicate that it is a police inquiry into the
proceeds of drug dealing.

BRENNAN J: What if there were no police inquiry, just that

a series of drug dealers formed a conspiracy that, in relation to the proceeds of their crimes, they
would conceal the source of the money?

MR RICHTER:

One would have to go to the nature and element

of what it is that the Crown would be required to
prove and in a conspiracy to pervert the course of
justice, the Crown would be required to prove the
contemplation that the reason for that happening is
to stop future proceedings that could take place if

the truth was known. They would have to prove

Rogerson

5/11/91

that, not speculatively, but by way of an inference
which necessarily flows, and they could not do so
in the case against Paltos, as against the
possibility that it is being disguised for tax
purposes. They could not do so.
And that was the hypothesis that he raised in his unsworn statement; he never having repeated the
story of the Bentley to the police. That was a
hypothesis the Crown would have had to exclude
beyond reasonable doubt in order to get anywhere it

could not. It could not. On the basis of this
tape, it could not, when coupled with what he tells
the jury was the situation, and that is why it is
not an appropriate vehicle for him for starters.
There are other reasons, we would say, and we

would expatiate on that argument and would have
done so in the Court of Criminal Appeal, had we had
to argue it, in relation to the consequences of
that, because our learned friends, in their outline
of submissions, take up the issue of, "So what, if

it is Commonwealth or State?" We would say it is
pretty crucial, because the District Court in
New South Wales, sitting in its State jurisdiction,
has no jurisdiction to try or convict someone of a
conspiracy to pervert the course of justice in
right of the Commonwealth, for example, and we will
not argue it at this point, because, going simply
to the question of special leave, one of the
crucial questions is, is this the appropriate
vehicle?
So that the benefit of an acquittal, albeit by

an intermediate court, is removed from these people
and they have to go back and face, first of all,
the Court of Criminal Appeal again, and in all
probability, on the concessions that have already
been made here, another trial. That is why it is

not an appropriate vehicle. We would say that the

second basis upon which it is sought to say that
this appeal raises questions of general importance
is, in effect, a bootstraps argument relating to
this Court's approach to special leave
applications. This Court does not bind itself, if
there are disagreements on the Court on peripheral
areas as to whether or not a special leave ought to
be given, to determine the matter, case by case, as
it necessarily has to, having regard to the
particular case, nor does it bind any other court,
because other courts do not give special leave in
this way. To that extent it cannot be a question
which affects the general administration of
justice, so that the second leg is not a basis to
give special leave to appeal at all. It lifts
itself up to elevate itself to that status.

Rogerson

5/11/91

The next reason why, in our respectful

submission - well the other reasons have already

been canvassed. In the same way that in the case
of Mobilio that has been referred to, there are
essentially three bases for the refusal of special
leave, albeit that the question was seen to be a
very important one in the public arena, special
leave to appeal was refused there, first of all, as
Your Honour Mr Justice Brennan said, in the first
place it was an application for special leave from
a verdict of acquittal, albeit the verdict was
entered by the Full Court, so that was of concern

and of importance. The second issue in the Mobilio
case related to the fact that the trial judge had
expressed reservations about the safety of the
verdict. The third point, which applies to us
here, is that this Court could not give a final
decision if special leave were granted and the
appeal allowed, the matter would have to go back to
the Full Court for further consideration on
outstanding grounds.
Now, out of those three, we have two that are

certain, but we also have, certainly so far as
Paltos is concerned, and I suspect as far as
Nowytarger is concerned, and possibly Rogerson, but
certainly Paltos, the situation that, on the face
of it, on the material, Paltos could not lawfully
have been convicted and should not lawfully have
been convicted and that at a retrial, on an
appropriate definition of what it is that the Crown
has to prove, assuming there was error, such as the
one contended for by our learned friend, the
Solicitor-General, a jury would have to be charged
in the way that the first jury was not charged,
namely that the Crown had to prove that Paltos
contemplated the adjudicatory or curial
proceedings, because the police investigation is
not the course of justice. It is said to be a part
of the course of justice, because it necessarily

leads into curial or adjudicatory hearings, but it
is not the course of justice. What has to be
proved is an intent to pervert the course of
justice of which the investigation is but a part.
If, theoretically speaking, the investigation

is taken on its own and a police officer determines
to investigate something and limits himself as follows, "I will investigate this situation to
determine whether or not a crime has been committed
and who committed it but I will not lay charges

against anyone; I am just doing it to satisfy
myself.", an attempt to interfere with that
investigation could not be said to be an
interference with the administration of justice.

Rogerson

5/11/91

So that the way the trial proceeded, the

concentration was on the possibility or
inevitability of an investigation, taking the

investigation as the course of justice, whereas it

cannot be and it is not. The investigation can
never be more than a necessary step leading into
the hearing. If a jury had to be instructed, in
this case, as against Rogerson, Nowytarger and Paltos that the accused had to have the common
intent to affect the administration of justice;
namely, not just did they think that an
investigation was inevitable but did they intend
that should there be a hearing that it be
perverted, that is the intention that was required.
The jury never determined that, was never asked that, and if it was, on the evidence against
Paltos, it could not return a verdict of guilty.

BRENNAN J: Then there will not be any retrial, no matter

what?

MR RICHTER:

we have not been promised that.

BRENNAN J: If your argument is right?

MR RICHTER:	If my argument is right it would take away a good deal of the anxiety if we had been promised
that, but we have not been. If the Court pleases,
for those reasons, there ought not to be special
leave to appeal.

MASON CJ: Thank you, Mr Richter. Yes, Mr Solicitor.

MR MASON:

Your Honour Justice Deane drew attention to the

narrower ratio of the Court of Criminal Appeal
decision and we certainly, with respect, agree that

that is the ratio. I was, if I may say so, drawn
into deeper waters in the course of debate this
morning, but it clearly is part of our case that

the narrow ratio is wrong and may I simply refer to
the opening portion of paragraph 8 of our written
submission and pages 1230 to 1232 in the affidavit
grounding the special leave application.
That is, if I may say so, what brought us

here. At page 1230 we refer to the facts that the
Court of Criminal Appeal found, in effect, that:
The money was in fact derived from an illegal
activity -

which is proposition (3) at the bottom of
page 1230, which said that the Crown failed because
it was unable to prove what the illegal activity
was.

McHUGH J: But how can you say that a jury found that the

money was derived from illegal activity, having

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5/11/91

regard to the way the case was left to the jury at
686 and 687, and again at 823?

MR MASON:

Those pages - and I think 823 is another passage

to similar effect - - -

McHUGH J: Yes, 686 and 687 is a fuller account. Because

the theory of the passages at 686 and again at 823
is that the course of justice began when
investigations were inevitable and could lead to
criminal charges against Rogerson and Nowytarger.
If the jury found that and that there was a
conspiracy to fabricate the source of the moneys -
and clearly we have an abundance of evidence of
that - then a case was made out, subject to the
question of intent which was also - - -

MR MASON:	But not in the eyes of the Court of Criminal Appeal, because although the jury were directed - I
feel I am at cross purposes with Your Honour.
McHUGH J:	No, all I am taking you up on, Mr Solicitor, is

the statement at the bottom of 1230 that the jury
found that the money was in fact derived from some
illegal activity.

MR MASON:

I am saying that is the way the Court of Criminal

Appeal - - -

MCHUGH J: Yes.

MR MASON:

Yes, but what you are putting to me, if I

understand it, is that the way it was put to the
jury was more along the lines of the way I was
drawn into putting it this morning, that it is a
question of looking at the perception of the
accused who entered into the agreement, and if it
is sufficient that they contemplated that criminal
proceedings were imminent, then that would be
appropriate.

McHUGH J: The way the judge put it is that objectively it

was at a time when police investigations were
inevitable and that such investigations could lead.

MR MASON:

That would mean if the suspicions that were

inevitably aroused by the facts known to the
conspirators turned into hard evidence.

MCHUGH J: Could.

MR MASON:

Yes, could.

But the trial judge was not saying,

"You have to find that there was a crime before you
can say there was an interference".

Mc HUGH J:

No.

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5/11/91

MR MASON:

Your Honours, there is a direction of the trial

judge about the course of justice at 674 which, in
our submission, in the last full paragraph, is

impeccable. Your Honours, counsel for Mr Rogerson
- and my learned friend Mr Hughes picked up on
this - complained about the intrusion of
Miss Jones's evidence. Miss Jones's evidence was
clearly admissible against Rogerson. In our
submission, there could be no doubt about that. It
showed he was in possession of money in suspicious
circumstances. The question of whether or not its
prejudicial effect as against the others led to a
separate trial issue is a separate question.

McHUGH J: It was either admissible against the lot or

admissible against none, was it not?

MR MASON:

Your Honour, that is my submission.

True it was

put at the trial on a narrower basis, but my
submission is that it really was admissible against
all.

MCHUGH J: Or none?

MR MASON:

Or none, yes.

But if it was put at the trial on

the basis it was certainly admissible against
Rogerson and there were directions favourable to
the other accused that they were to disregard it,
my learned friend, Mr Hughes, pointed to the
passage at 805 and 806 where there was a
trespassing upon the fencing that the trial judge
had erected before himself. As to that no
redirection was sought; no ground of appeal was
taken in relation to that point below, and it
really is something of am afterthought to try and
draw it down on the present matter.
In any event, Your Honours, in our respectful

submission, the reference to the Miss Jones
material, as well as the attempt by Mr Paltos's
counsel to argue matters peculiar to him, does not

detract and does not really impact upon the
question of special leave or no in our submission.

It can surely not be unfair to an accused person to have to undergo court proceedings.

An
accused person undergoes court proceedings at
trial, does it suddenly become unfair when it is
court proceedings in the High Court when the - - -

McHUGH J: It is not really unfair, and I am not sure that

fairness or unfairness is the right concepts, it is
really a question of oppression. Nobody who
appears in a criminal trial, whether they are
acquitted or convicted, ever escape the
psychological scarring of it. When somebody has
stood trial, been convicted, perhaps gone to gaol

Rogerson

5/11/91

and then a Court of Criminal Appeal enters an
acquittal, to put that person back on trial again
or put that person back into gaol, it just strikes
me as a very oppressive thing to do unless the
public interest requires it. Now, it may require it because a case such as this case is alleged to be raises a question of law of fundamental public
importance which has got to be resolved.

MR MASON:

I can only put the submission that if it strikes

Your Honour that way, I would ask Your Honour to
reconsider that, ultimately, if taken to its
logical conclusion, is saying that Your Honour
would exercise a discretion by reference to what
would become a dispensing power, because section 24
of the Criminal Appeal Act, section 73 of the
Constitution brings about the situation that this
can occur and, in our submission, to exercise the
discretion to stop it occurring in an otherwise
appropriate case, is to dispense with the rule of
law.

McHUGH J:

No, but you start with what Mr Justice Dixon

says. An acquittal has been entered - - -

MR MASON:	Yes.
McHUGH J:	- - - and, therefore, that ought to be the end of

it, at least that is the perception of -

MR MASON: If it is a final acquittal, yes, but it is not

final - - -

McHUGH J: - - - of •he common law, but then the Crown comes

and it seeks a privilege, it asks for the grant of

special leave in this Court. It does not come
here as of right - - -

MR MASON:

I submit that special leave is never a privilege.

It is a request for the exercise of a judicial
discretion, and we do not seek any more than the

application of the principles that are applied in
favour of litigants generally but we do not seek
less.

McHUGH J: But there are not even any parties before the

Court on a special leave application, at least so
this Court has held in Hass. So you come and ask
the grant of special leave to restore a conviction.
That has to be weighed up against the important point. Speaking for myself, I regard the point as
of fundamental importance, but it has to be weighed
against the fact that the Court of Criminal Appeal
has acqiotted the accused.

MR MASON:

I do not, with respect, accept that, but I will

not repeat what I have said. As to dilatoriness,

Rogerson

5/11/91

which was suggested at page 89 of the application
book, there was evidence given as to the reasons
why the Paltos intercepted conversation was not
available until March 1986. It had been
intercepted by a federal crime authority, and there
was an undertaking, in effect, not to make use of
that material.
I have not conceded the points in the ground

of appeal are substantial, as my learned friend,

Mr Hughes said. I have conceded that they are not
untenable and there is, in my submission, a
difference. There appear to be two issues bubbling
around in connection with what I call the

specificity question. One is a timing question and
the other is the specificity question, and the two
have become rather confused, in our submission, in
what was put by some of our opponents.
The timing issue is raised by my learned

friend, Mr Horler's, suggestion that the criminal
investigation must be in the criminal justice
works, and that submission has been taken up by

some of the others. We submit that that is
definitely not part of the law, that if you concoct
a false alibi or false evidence knowing that the
police have not yet discovered the body, it can
still be a conspiracy or a perversion or an attempt
to pervert the course of justice. The more
critical issue, which is the one really raised in
this case, is whether, even if it took place after
the police investigation occurred, as happened
here, because this conspiracy went through to 86,
the Crown fails if the conspiracy was 100 per cent
successful; in other words, i& it achieved its
ultimate object beyond their wildest dreams in
stopping the police finding out, does the Crown
fail if the Crown is fortunate enough to be able to

prove all the other elements of the offence. If
the Court pleases.

MASON CJ: Thank you, Mr Solicitor. The Court will take a

short adjournment in order to consider the course
it will take in this matter.

AT 3.24 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.45 PM:

MASON CJ:

The Court has concluded that at this stage of the case it will not give its decision on whether or

Rogerson

5/11/91

not to grant special leave to appeal but will
continue to hear the balance of the arguments on
the points of substance. So, Mr Horler, you may as
well proceed now with the balance of your argument.
You had confined it in the first instance to the question of grant or refusal of special leave.
Mr Rose, you do not want to remain further, I
suppose.

MR ROSE:	No, Your Honour.
MASON CJ: Very well.	Your further attendance is dispensed

with, as is yours, Mr Solicitor for South
Australia.

MR ROSE:

Thank you.

MASON CJ: Yes, Mr Horler.

MR HORLER: If Your Honours please. While it is fresh in

mind, because it is relevant to the balance of the
submissions and there was some debate about it
shortly before the Court adjourned, there was an
attempt to identify what was said to be the ratio
of the Court of Criminal Appeal's decision. Could
I therefore give the Court a reference to a portion
of that decision in application book No IV at page
1209, and that is page 20 in the smaller pagination
of the judgment of Mr Justice Lee in the Court of
Criminal Appeal in New South Wales.
Your Honours, I want to read from that in

terms of putting a submission to you as to whether
or not what occurs at about that section in the
judgment can properly be called the ratio of the
decision under consideration. At line 5 on
page 1209 this occurs:
A person may be charged with attempting to
pervert the course of justice in respect of
proceedings in which he may be involved -

the expression is rather loose there -
or the person charged may be a person who is
trying to help some person who will be charged
as a result of the information about some
crime which the police will have gathered.
This feature has a real relevance to the
requirement of the law that the person charged
with attempting to pervert the course of
justice, or of conspiracy to pervert the
course of justice, has the intention to
pervert the course of justice, for the very
reason for engaging in the offending conduct
will be to head off or frustrate in some way
those proceedings being taken or prevent them

Rogerson

5/11/91

following the course they otherwise would.
The person charged with attempting to pervert
the course of justice, if he has in fact

committed the crime which the police believe
has been committed, will at least know the
general nature of the proceedings that will be
faced if proceedings are to be taken, although
he may, of course, be quite ignorant of the
precise charge which is to be laid or any of
the technicalities involved in the charge.
But he will have in his contemplation that
proceedings arising from what he has done - or
what someone else has done if he is carrying
out the role of assisting another for
instance - will probably take place, and his
conduct in telling lies to the police will be
for the purpose of frustrating those
proceedings.

Stopping there - and because I think this is
freshly in mind in the court - at the time of the
two sets of lies that the jury's verdict must have
been taken to have proved, there were no
proceedings in contemplation, nor could Sergeant
Rogerson be taken to be a person who, because of
his more experienced position, might have
anticipated some proceedings in the criminal
justice system brought against him.
When I say that there were two sets of

fabrication, concoction, I am talking firstly about
the opening of the false bank accounts, and
secondly, the sham transaction said to be an
explanation and to give the colour of legitimacy to

what was done. We say that the telling of lies to
the police - and putting the prosecution case at
its highest - and/or that coupled with the sham or
pretensed transaction involving the Bentley, that
those lies by themselves in the context of the
absence of any evidence relating to a conspiracy
with the intention to divert the criminal justice,

no charge having been made and there being no
evidence of conversations between the conspirators
that that is what they had in mind when they went
either to the bank and/or concocted the story with
Mr Karp, the ex-solicitor. So I draw Your Honours
to that aspect of the judgment and of the evidence.
Your Honours, I come back now to the outline

of the submissions which the Court has, and I will
not, unless in any way it is necessary, go to the
special leave point. Ground 1 or paragraph 1 in
the outline of the submissions for the first
respondent deals principally with the special leave
point, but the grouping perhaps is not as logical
as it might be.

Rogerson

5/11/91

But we say, leaving aside special leave, that

because, as has been urged upon you more than once,
these cases of perverting the course of justice or attempting to do so are very much decided on their
own facts as happened here, that in the exercise of
your discretion - I know I seem to be going back -
that this would, even if Your Honours have
criticisms of the reasoning and analysis of the
Court of Criminal Appeal, that nevertheless there
is not demonstrated a need for the administration
of criminal justice in New South Wales or on the
Commonwealth, that even if there is perceived error
- and I do not concede that - that the matter
should go back.

McHUGH J: But there are two separate problems as it appears

to me: the first is, is the ratio of the Court of
Criminal Appeal's judgment, particularly as it is
set out at page 1201-1202, erroneous? If it is,
the question then arises as to whether or not it
really reflects the Crown case as appears at
pages 686-687. At the moment they just seem to me
to be on two different tracks altogether, the Court
of Criminal Appeal - - -

MR HORLER:

The short answer might be that those two pages

that Your Honour Mr Justice McHugh has referred me
to in volume IV, at 1201 and 1202, probably cannot
be described as the ratio in the case, so that if
what Your Honour is putting to me is, compare what
is at 1201 and 1202 and that other 800 page part of
the book, then we say that 1201 and 1202 is not the
right or appropriate place to identify the ratio
because - I have had another look at it while the
Court was adjourned - what is occurring at 1201 and
1202 is merely a description and summary of what
happened below without - - -

McHUGH J: That is the point, I do not think it did.

I do

not think that is an accurate - what appears at

1201 does not seem to be an accurate illustration

of the way the case was left to the jury. You read
686-687, it does not seem to me that that is an
accurate - the Court of Criminal Appeal said that
if it was left to the jury:
they could convict the appellants if they thought the moneys were derived from some unspecified, unproven, unlawful activity.

I do not think that that is the way the case was
left to them at all.

MR HORLER: Just let me line them up, Your Honour. Going to

the first two pages, 1201 and 1202, this occurs
about line 28:

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5/11/91

At no time in the summing up did the learned
trial judge -

I will go to the middle of the page -
The conclusion is inescapable that the jury were being told by both Crown Prosecutor
and Judge that, because the deposits which, of
course, were not of themselves unlawful, had
been made, and made in cash, and because the
story was false, and the source of the monies
left unexplained, they could convict the
appellants if they thought that the monies
were derived from some unspecified, unproven,
unlawful activity.

McHUGH J:

Now, you contrast that with the way it was left

at 686-687 and, again, at 823.

MR HORLER:

The Crown, this is at 686, the conspiracy as

identified - - -

McHUGH J:

In effect says, that the course of justice were

that at a:
time when police investigations were
inevitable and that such investigations could
lead only to criminal proceedings -

"could ..... lead". Nothing to do with money or
proving the unlawful - act of money, and then there
are serious questions of whether there is any
evidence against Nowytarger or Paltos in respect of
the way the case is left at 686 and 687. But
nobody seems to have taken any objection at the
trial in relation to any of these points.

MR HORLER:

Well, Your Honour, it is only part of an answer

of what Your Honour has put to me. I will read
again from page 686:

The Crown says that the conspiracy to fabricate the source of the moneys deposited
in the National Australia Bank accounts
occurred at a time when police investigations
were inevitable -

Now, that seems to be a flourish from the judge in summing up. There was not evidence that would
entitle the judge in summing up and charging the
jury, to put that as an available inference on the
evidence and, indeed, Inspector Strong said that
the sham and the fibs in no way impeded his
investigation of matters which were primarily
related to undiscipline within the police force.
So, if the answer is that there has been some

misunderstanding of what the trial judge did, I

Rogerson

5/11/91

would want Your Honours to understand that the way
in which the jury was charged at that point that
you are taking me to, was without an evidentiary
foundation in terms of intention or the state of
the evidence as to imminent or likely or
apprehended investigation - - -

McHUGH J: What I put to you is not necessarily against you,

because it may be a ground for refusing special
leave, but the point I was seeking to draw to your
attention was that there seem to me to be two
separate problems: is, what at the moment seems to
me to pe an abstract question of law as defined by
the Court of Criminal Appeal correct? And then the
other question is: was the way the case was left to
the jury correct?

MR HORLER: Well, can I answer the second first? The way

the case was left to the jury was inappropriate and

incorrect. Now, that - I know it is the second
first, but how it was analysed in the
Court of Criminal Appeal, while it came to the same
result, which I have summarized, that the stages
whereby they got there may be open to some
criticism - I could make that partial concession -
but I want to make it clear that the way in which
the case was conducted, it was open, the way in
which it was put to the jury, had a number of
matters that attract serious criticism. Whether
they were correctly or completely identified at
pages 1201 and 1202, I agree that there are some
problems there; they do not completely chime or
mesh.
There are some parts of the judgment of the

Court of Criminal Appeal that I want to put to the
Court and that is at the bottom of page 1201, in
application book No IV, this passage appears:
At no time in the summing up did the learned trial judge specify or define the nature of

the illegality giving rise to the deposit of
$110,000.

We say that is an appropriate and accurate observation for the Court of Criminal Appeal to

have made. The passage goes on:
The nearest he got to dealing with it was to say that the Crown suggested that the likely
source of the money was the Miss Jones
incident.

Your Honours will remember that this morning before
we adjourned I took you to that portion of the
Crown opening, and we say that the use of the
Jones' airport evidence, certainly so far as it

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5/11/91

concerns Mr Rogerson, was totally inappropriate and that the case should not have been opened that way;
and for the Court of Criminal Appeal subsequently
to pick up the way in which the case was conducted
as well as left to the jury was totally
appropriate, and that led logically to the
acquittal that was subsequently made. It goes on: As I have said earlier if the Crown had been
putting forward a case that the incident with
Miss Jones was a drug deal and that that was
the source from which the monies came, it
would have been necessary for it to be proved
beyond reasonable doubt -

and that was a burden that the prosecutor did not
decide to shoulder -
that a crime was thereby committed, this being
an essential ingredient in the proof of such a
case.

BRENNAN J: What does that mean?

MR HORLER: There is a contradiction there because excepting

what the Crown said it would and would not do,
perhaps there is being ascribed there to the Crown
only in the way in which the Crown sought to run
the case something which the Crown did not, could
not and should not have set out to prove,
particularly so far as Mr Rogerson was concerned.
It is not immediately clear what Mr Justice Lee
means, what the "this" in line 4 refers to -
this being an essential ingredient in the
proof of such a case -

because the crime charged was the conspiracy to
pervert the course of justice, not the crime of
conspiracy to supply drugs, or possess drugs or to
be a deemed supplier. It goes on, and I think I

should take the Court to this:
One may proceed to deal with the case upon the
footing that it was a conscious decision on
the part of both the Crown Prosecutor and the
trial Judge, that the only case that could be
made against the appellants was that the monies derived from some unspecified but unlawful source and that it was not necessary
for the Crown to prove that any identifiable
crime had been committed in the obtaining of
the monies.
Now, I would urge that that is an appropriate and correct analysis of the way in which the case was
conducted, but I do not submit that the Court of

Rogerson

5/11/91

Criminal Appeal is here saying that that was an
appropriate way for this prosecution to have been
conducted. It goes on:
The proposition put forward on behalf of the appellants is that, in a case where a false
story is told to the police, the crime of
conspiracy to pervert the course of justice is
a crime which requires proof that there is an
identifiable course of justice in progress or
imminent -

and, with respect, we would adopt that -

and that this requirement is not satisfied
merely by proof that some unspecified, illegal
activity may have occurred.

And given the authorities to which you have already been taken, that in summary, is an appropriate
approach to the cases. As part of that submission,
it is put that where one has a police investigation
it is not sufficient that the investigation be into
circumstances which may be suspicious but which, of
themselves, are innocent and not, in their nature,
of criminal import; in this case the deposit of
the moneys. But that what is required is evidence
that some crime identifiable from factual
circumstances proved in the Crown case not as a
specific charge but in a general way - homicide,
assault, drug dealing, death, et cetera - has been
committed and that a course of justice that is
curial proceedings in respect of that offence, if
found to be committed, could in the ordinary course
of events follow.

DEANE J:

Mr Horler, can I just take you back to what

Justice McHugh has asking you about? If you look at page 1201, you have there the passage extracted
from the summing up which hones in on prosecution,

apprehended, and so on. You then have the

statement to the effect that it was implicit in the
jury's verdict that they found that the source of
the unexplained moneys were some unlawful or

criminal activity. On this judgment the question
arises whether, if all those things are proved,
that is enough, or whether the failure to identify
the specified crime means that a conviction cannot

stand. ·

MR HORLER:	My submissions would focus on the second and not the first.
DEANE J:	I am just trying to draw your attention to what

was being put to you and that is, that is one
question, but what Justice McHugh was directing
your attention to was the suggestion that the

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5/11/91

ingredient in that question, that is that it was
implicit in the jury's verdict that the source of
the moneys was criminal activity, was an assumption
which cannot be made when one looks at the way the
case was left to the jury. I do not really think
you have dealt with that, and perhaps you did not
appreciate it could have been helpful to you.

MR HORLER:

I would accept, we would submit, that it is

implicit in the jury's verdict, that they made
findings of the kind that Your Honour has just
identified to me in relation to the source of the
money ~nd its illegal taint.

DEANE J: Well, it does not follow that that is so if the

directions to them were merely along the lines
identified in the passage Justice McHugh directed
you to, or in the passages that are cited in the
judgment.

MR HORLER:

No, well, Your Honour, I accept that implicit in

the jury's verdict, given the way in which the case
was commenced and run, that if the findings involved
a finding adverse to Mr Rogerson, and perhaps the
other respondents, in respect of the source of the
moneys that were - I accept that. But what I want
to make very clear and emphasize - - -

BRENNAN J: In other words, we can decide this case, so far

as you are concerned, on the basis that Rogerson
was dealing with moneys that had come from an
illegal source?

MR HORLER:

No.

With respect, no, Your Honour.

We say that

at the threshold, the way in which this case was
opened and the way in which it proceeded on the
evidence available to the prosecution, that it was

totally misconceived. We say - and I am sorry if
my submission is repetitive - that in respect of
Mr Rogerson that the evidence relating to the Miss
Jones transaction was inadmissible - not just a

matter of exercising some discretion but was, in
the strict sense, inadmissible and should not have
been called in the case against Mr Rogerson. The
other respondents may be on stronger ground, since
her evidence, if believed, related to a transaction
between herself and Mr Rogerson. I will leave that
for other counsel.
But we say that the whole of the trial

miscarried because of the failure to identify, in
opening or through evidence to support it, an
identifiable crime that had been committed.
Because there was available material which fell far
short of the criminal standard in terms of proof,
as I said this morning, perhaps straying beyond the
point that I was asked to argue, that that was put

Rogerson

5/11/91

in to provide bulk and to be a makeweight in
respect of a charge which, strictly, could not have
got past a prima facie level.
We say, with respect to the prosecutor, it was

wrong to have opened the case against Mr Rogerson

because of this, to have adduced the evidence of

thus. It was wrong, and the trial miscarried highly prejudicial aspect into the case. Because
what was charged against him was not, "You are a
drug dealer" or that "You are suspected in a
general way of being engaged in criminal activity

that produces large sums of money". He was not
charged with that. But although he was not charged
with that, evidence which hinted at that but which
could never prove that was brought in to shore up,
to give bulk, to a case which could never be
proved.
So that is why I go back at least two steps to

say that the prosecution was - so far as Mr
Rogerson was concerned and to the extent that it
brought in irrelevant matters concerning where the
money came from and whether it was clean or not,
that the whole of the trial against Mr Rogerson was
misconceived and that aspect of his appeal, it was
the first ground of appeal, the constant objections
by counsel at trial and applications for the jury
to be discharged, that has not been dealt with.
So that is how I would deal with that aspect of those two pages; not to duck the question but
to focus my answer to it in a different way, that
counsel at a trial only deal with the way in which

the case was made against him. He had to deal with
the evidence; it was objected to. There was the
Crown opening. And that is the body of evidence
admitted over objections that the trial judge had
to deal with in his summing up.

The continuing vice was that on the one hand

the prosecutor seemed to be doing the right thing
and saying, "Well, we won't prove this beyond
reasonable doubt, we don't have to, but we are
going to create a suspicious ambience in which you
will decide the case in respect of charge A; in
respect of charge B, 'you're a drug dealer', which
has never been brought, in respect of which there
is not evidence of sufficient probative value to
prove it beyond reasonable doubt". That is why - I
hope I am not to be thought to be avoiding the
question but saying that the whole of the trial as
against Mr Rogerson was misconceived for those
reasons.

Rogerson

5/11/91

Your Honours, the only other thing I want to

say is this, that even if there are some criticisms
of the analysis and the way in which the answer is
arrived at by the Court of Criminal Appeal in New
South Wales, that what happened in relation to the
Rogerson appeal does, in my submission, appear to
have no resonances - and I am mindful of what
Mr Justice McHugh has said earlier - in relation to
causing problems to the Crown and the prosecution
or the DPP in relation to the general
administration of criminal justice in New South
Wales.
In my submission, the case involving

Mr Rogerson, how it miscarried, the mistrial, is
confined very much to its own special facts and
circumstances. And the claim in the written
submissions, by the prosecution, that if this
acquittal is allowed to stand it is going to cause
continuing problems in the administration of
criminal justice in New South Wales, that

contention, that submission, is not made out
because of the narrow, confined and very specific
way in which that prosecution proceeded and
miscarried. And that would be another submission
as to why, leaving aside the leave question, that
the intermediate verdict of acquittal should not
now be interfered with.
Your Honours, in terms of consistency as between what happened below, both at the trial and
the Court of Criminal Appeal, can I just give the
Court some references as to disparity. This is a
reference that counsel has been referred to more
than once. At page 1230 in volume IV, at the very
bottom of that page at line 21, these words occur -
and might I remind Your Honours this is in the
affidavit in support of the leave application. It
is under the general heading:
The essential facts as found by the jury and

be summarised as follows. accepted by the Court of Criminal Appeal may

You see there (3):
The money was in fact derived from some
illegal activity.

I have identified that and I would ask Your Honours
just to compare and contrast that with what occurs

at 1197. I have already read some of that to
Your Honours, but I would draw the Court's
attention to the conflict between that proposition
in the solicitor's affidavit and what is to be
found at 1197 at line 12 beginning with the words:

Rogerson

5/11/91

Quite clearly to use the circumstances surrounding the deposit of cash and the making of the agreement to tell a false story about
its origin, as the basis for an inference that
the monies came from an illegal course, could
not prove in any way what that illegal source
was.
So, my submission is, that what is said to be

the finding at the page earlier referred to, does
not mesh or fit or chime with what you find in that
section of 1197. If Your Honours please.

MASON CJ: Yes, thank you Mr Horler. Yes, Mr Hughes?

MR HUGHES:

Yes.

Your Honours, there is a tension between

the passage which has been the subject of
considerable examination this afternoon in the
judgment of the Court of Criminal Appeal at
page 1209 and that part of the charge to the jury,
which is found in two places, I think page 686 and
later at page 823. In our submission, the problem
about the judgment of the Court of Criminal Appeal
is not, from the respondents' viewpoint, a fatal
problem, problem though it be, because if one comes
to a later passage, which I think starts at
page 1221, that the Court of Criminal Appeal seemed
to centre their expressed thinking on the question

of intent. May I first of all go to page 686,
Your Honours, because here one finds the learned
trial judge encapsulating the essence of the Crown
case in the passage beginning at line 21:
The Crown says that the conspiracy to fabricate the source of the moneys deposited
in the National Australia Bank accounts
occurred at a time when police investigations
were inevitable and that such investigations
could lead only -

and perhaps the word "only" there should be

emphasized -
to criminal proceedings against Rogerson
and/or Nowytarger - that is, criminal
proceedings were imminent or threatened.

Now, if that is an accurate reflection - and we do
not seek to say it was not - of the way in which
the Crown case was conducted at the trial - there
were some flourishes, of course, with which I have
dealt - then, Your Honours, if one concentrates
one's mind on the question of proof of intent, in
conjunction with that passage, we say that there
was no evidence to sustain that Crown case against
my client.

Rogerson

5/11/91

Now, I do not wish to be tedious by

repetition, and therefore I shall not read to
Your Honours in extenso, the passage in the
evidence of Karp about the critically important
meeting in some restaurant in Kings Cross at which,
on the Crown case, the conspiracy is said to have
been hatched.

BRENNAN J:

Is the argument you have just put one of the

arguments that has been unresolved in the Court of
Criminal Appeal?

MR HUGHES:

No, because in the Court of Criminal Appeal

eventually Their Honours, and with respect perhaps
not in the clearest way, did get to the question of
intent, which is all important in this case,
particularly all important when one evaluates the
Crown case as put, or as described, at page 686,
Your Honour.

BRENNAN J:

But was the point taken in the Court of Criminal

Appeal that there was no evidence which would have
allowed the jury, following the direction at 686
and emphasizing the word "only", to record a
verdict adverse to your client?

MR HUGHES:

I cannot, at this point - because I have not had

the opportunity of seeing the transcript in the
Court of Criminal Appeal - vouch that that argument
was put specifically, but what was argued was that
the evidence did not sustain a verdict, putting it
at its highest pitch against the Crown. Perhaps
the reason why I cannot vouch a positive answer to
Your Honour's question is that in the Court of
Criminal Appeal the running was taken by my learned
friend Mr James, who appeared for Rogerson, and we

adopted his arguments. I think what one must do
overnight is to - when I say "what one must do" I
mean what I must do is to consult the written
argument, which I think is in the appeal book, but
one would be very surprised if that point was not

taken in some way or another.

McHUGH J: Well, it is not taken in terms in the grounds of

appeal, which appear at 894 and 895, so far as your
client is concerned, unless it is ground 2 which
says there should have been an acquittal.

MR HUGHES: Well, that ground is wide enough to encapsulate

this argument.

MCHUGH J: Yes .

MR HUGHES: Clearly, in my respectful submission.

Rogerson

5/11/91

MASON CJ: Yes, but one would have thought if the point was

to be taken it would have been put explicitly in
the grounds of appeal.

MR HUGHES:	I did not draw them, Your Honour.
MASON CJ:	No, I am not accusing you of any defect,

Mr Hughes.

MR HUGHES:

I am not trying to shunt off the responsibility

by making that remark. Forensic views on that may
legitimately differ.

McHUGH J:

If you look at page 948 it may be of some

assistance to you, Mr Hughes, under the heading
"Intention to pervert the course of justice":
There was no evidence that Nowytarger knew of procedures which could give rise to either
curial or departmental proceedings qua
Rogerson. There was no evidence that he had
agreed ..... to give false evidence.

MASON CJ: Yes, so it is really brought in under ground 11

of the notice of appeal.

MR HUGHES:

Yes.

Your Honours, these grounds were drafted

by my learned friend, Mr Philpott, before I came

into the case. To say that is not at all to
criticize them, and I would not dream of doing so,
but they were filed in court before the appeal
started, and what is in the written submissions
were treated as part of the argument. What was
argued orally was by way, on this point probably,
of adopting the written submissions. Certainly the
written submissions were never departed from.
So on the footing that this point is fairly

open to me, what we say is that if one looks at the
critically important evidence given by Karp - and
that was the only evidence - about the content of

the discussion on or about 9 or 10 July at the
restaurant in Kings Cross and looks at that from
the perspect·ive of Nowytarger's alleged
involvement, there is simply no evidence (a) that
in the discussion that took place as recorded in
the evidence at pages 122 to 123 of the transcript,
there was any advertence by any of the accused to
the purpose of the fabrication or to their
perception of what purpose might be served by it.
Moreover, and this is the second point which I made earlier this afternoon - and I merely bring it
to notice in the particular context of discussion
of the appeal if special leave be granted - there
is no evidence as to the specific portions of that
conversation to which Nowytarger, who came in late,

Rogerson

5/11/91

was a party. Karp's evidence was left - the actual
point of time and the actual course of discussion
at and after which Nowytarger made his entry - up
in the air.
Karp's evidence was left, the actual point of

time and the actual course of discussion at and
after which Nowytarger made his entry, up in the
air.
Now, in my respectful submission, we do not

have to embrace, as essential to the success of our position in the appeal, the proposition that it had
to be shown in the Crown case that the accused were
aware of the commission of an identifiable specific

crime. We can concede for the purposes of our
endeavours in the appeal, that it will be an
interference with the course of justice if the
accused have in mind an investigation which may
lead to criminal charges being preferred.

MASON CJ:

Now, Mr Hughes, if I can interrupt you, we will

adjourn now. The Court will adjourn until 9.45 am
tomorrow.

AT 4.29 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 6 NOVEMBER 1991

Rogerson

5/11/91

[1991] HCATrans 311

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Intention

that meant that the charge possibly was good.	In
effect the point has been raised and we would
submit that here is a situation where, if

and everything this is 18 months ago.	Ross is
buying the car; 60,000 dollars and he's

it was his bank.	It was Mr Nowytarger that went
with Rogerson when the accounts were closed and the

had read from the intercepted conversation.	I
think that is the nub of it.

at the wrong aspect of the matter.	May I give an
example to illustrate that?

he going to stick to the story as agreed.	Now,
that was after the police, to Nowytarger's

in a particular case.	You have got to go that far,
have you not?

when at a later stage the learned Judge came	prosecution it was "one big conspiracy revolving round the figure of Goddard," and	to deal with the matter again, he used these
words ••••. "In my opinion this count charges a
conspiracy to do an unlawful thing, that is to
say, in substance to effect public mischief by
corrupting the police force." That may be
stated quite generally to be the object of
this conspiracy in this indictment.

bribes were intended to secure.	The
object ..... was not to bribe;	the bribe was a
means to the end.	The end of the conspiracy

that there was no evidence that either of them	for either applicant to answer on the footing
knew or believed that Short was guilty of the arrestable offence mentioned or any other arrestable offence. The judge upheld that
submission and directed an acquittal -

It does not say they knew what offences were.	In
fact, they had been acquitted on the charge that

in volume IV of the application book.	It is
pages 1235 to 1238.

crime that never occurred. If it is accepted that	that is within the scope of the offence, and there
is a passage from Selvage's case which is cited in
*Murphy* - - -

the false confession to a crime. If that is within	the concept, then what makes that a crime is that
the police are likely to lay a charge, even one
which they will have to end up withdrawing. And
that offence is committed even if the police detect the false confession before they proceed to lay the charge.

line 420F in the	joint judgment of the majority,
left-hand column	- sorry, Gilson is (1991) 65 ALJR
416 at page 420.	Your Honours said:

goes on to say, in effect, why that is so:	The circumstances available to the Crown to	support an application for special leave to
appeal will necessarily be limited to matters
of public importance and will, for that reason, ordinarily be more confined than those
available to support an application by a
convicted person. It is in that sense that
the grant of special leave to the Crown is
said to be exceptional.

Your Honour the Chief Justice in Reg v Benz.	May
it please the Court.

evidence was.	I should say, at this stage, that
her credit was attacked and, indeed, Rogerson's

Your Honour.	I do not remember having seen them in
all the papers.

of them and they are taller and higher than that	not only do those hurdles exist, but there are more
which would ordinarily confront an applicant in a
case where there was not the substitution of an
acquittal as a judgment by the intermediate court.

probably seven years after the event.	Now, so far
grounds taken in paragraph l(a) of our outline.	I have not said anything about the first of the

wish to add anything to them on that score.	I hope
Your Honour does not think that I am -

Your Honour has put to me in this way.	First of
all, we would respectfully say that the

evidence that Nowytarger knew of what had	the trial judge, expressly, said that there was no
transpired at the airport. I think that is common
ground and my learned friend, Mr Richter,
properly - - -

Court has said, all grounds were not argued in the
Court of Criminal Appeal.	On the second day the

them", and that is the bank.	The bank photographed
them, not the police.

not an appropriate vehicle.	We would say that the
second basis upon which it is sought to say that

special leave in this Court.	It does not come
here as of right - - -

prove all the other elements of the offence.	If
the Court pleases.

1201 does not seem to be an accurate illustration
of the way the case was left to the jury.	You read