Savvas v The Queen; Nicholson v The Queen

[1992] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney Nos S76 and S168 of 1991

B e t w e e n -

GEORGE SAVVAS

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S29 of 1991

B e t w e e n -

ROY WILLIAM NICHOLSON

Applicant

and

THE QUEEN

Respondent

Applications for special leave

Savvas 1 4/8/92

to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 AUGUST 1992, AT 12.07 PM

Copyright in the High Court of Australia

MR P.J. HIDDEN, OC:  May it please the Court, I appear with

my learned friend, MR P.R. ZAHRA, for the applicant

in the matter of Savvas.	(instructed by Ferrier &
Associates)

MR M.A. GREEN, OC:  May it please the Court, I appear for

the applicant in the matter of Nicholson, together

with my learned friend, MR P.R. ZAHRA. (instructed

by M. Richardson, Director of Legal Aid Commission

of New South Wales)

MR K. MASON, OCf Solicitor-General for New South Wales: I

appear with my learned friend, MR G.R. BARR, for

the respondent in both matters. (instructed by

S.E. O'Connor, Solicitor for Public Prosecutions)

MR HIDDEN:  Your Honours, this application raises the status

of what the court described as the rule of practice

in McKinney and Judge v Reg and, in particular,

whether it has any application or at the very least

offers any guidance to the manner in which Courts

of Criminal Appeal should decide appeals which come

before them in respect of trials conducted before

McKinney and Judge was decided.

Against the background, Your Honours, of a

case of which Mr Justice Kirby in his dissenting

judgment at page 122 of the application book said:

However, the thought that, without objective

evidence, a person could be convicted and

suffer such a sentence on the uncorroborated

verbal testimony of police and the

substantially uncorroborated evidence of two

confessed criminals, causes a sense of

foreboding.

Your Honours, in short the argument which

brings the matter before this Court was that

the time the trial was conducted, a warning to much	although McKinney and Judge had not been decided at
the same effect ought to have been given and, indeed, a warning to something like that effect was
requested, at least in respect of two of the
offences for which Mr Savvas stood for trial, and
the evidence in relation to them.
The majority of the Court of Criminal Appeal were of the view that McKinney, being decided after
the trial was held, had no application to it and
that no warning along the lines suggested by the
majority of this Court in McKinney need have been
given and no miscarriage resulted from its not
having been given.

Savvas 2 4/8/92

Mr Justice Kirby in dissent accepted that the majority in this Court intended the rule of

practice in McKinney to be for the future but, in

effect, questioned whether the Court had the power

to declare such a rule for the future.

MASON CJ: Well, we have the power.

MR HIDDEN: 

But held that in any event the case was one

which called for an appropriate warning, McKinney
or no McKinney, and McKinney was certainly some

guidance to appellate courts as to what that

warning might have been.

Your Honours, in a sense the problem which has

arisen in this case is that McKinney has been seen,

Your Honours, certainly among courts in New South

Wales, as erecting some totally new edifice for the

guidance of the summing up of trial judges which

had no antecedents in previous authority.

The fact is, McKinney and Judge was the last

of a long line of cases, in this Court and

elsewhere, dealing with the concern, increasing

over recent years, about the possiple unreliability

of confessional evidence.

MASON CJ:  But why are we concerned with that? I mean,

McKinney is there, it stands for what it is. We

need not be troubled about what views	are taken of
it by others.

MR HIDDEN: 

Your Honour, if -

McHUGH-J: 

One thing is plain about McKinney: it only

applies in a case where evidence of the confession
is the only evidence or substantially the only

evidence to get the case to the jury. As far as I

am concerned, speaking as one of the four authors

of the majority judgment, it was never intended to
apply in a case such as this in relation to the

third count and to apply it would be inconsistent

with the express statement in that case that police
are not a suspect class of witnesses.

MR HIDDEN: 

Your Honour, with respect, is the judgment of the majority so confined?

McHUGH J: 

It says so in terms, so it must be the making

MR HIDDEN: 

McKinney and Judge was itself a case where

substantially the only evidence was confessional.

McHUGH J:  The case did not go off, in McKinney, on the

basis that it was - - -

Savvas 3 4/8/92

MR HIDDEN: 

Your Honour, at page 474 of the report, the

majority of this Court said that the whol question
of warnings concerning confessional evidence should

be reconsidered and, at the top of the page - I am

sorry, Your Honours. It is reported, of course, at

171 CLR 468. May we hand up copies. At page 474

the majority said:

That reconsideration has led us to conclude

that a rule of practice should be adopted for
the future along the lines suggested by

Deane J in Carr.

The Court had already referred to something of what

Your Honour had to say in Carr. When one goes to

Carr, 165 CLR 314, we have copies of that also, Your Honours, it is clear that what Your Honour

Justice Deane was speaking of in Carr was a warning

about the reliability and possibility of

fabrication of confessional evidence, whether or

not it was the only or substantially the only

evidence in the case and, at page 335 of the

report, Your Honour had this to say - now, of

course, Carr was a case where the confession was

really the only evidence, but Your Honour had this

to say, having referred to the dissenting judgment

of Mr Justice Neasey in the Court of Criminal

Appeal, at about point 5 of the page:

For my part, I would go further and recognize

a prima facie requirement that such specific

directions be given in any case where the

prosecution relies upon police evidence of

disputed oral admissions allegedly made while

the accused was under interrogation while in

police custody and where the actual making of

the admissions is unsupported by video or

audio tapes, by some written verification by

the accused, or by the evidence of some

non-police witness.

Then Your Honour went on: 

In addition, I consider that, as a prima facie

rule, those specific directions should, in a

case where uncorroborated police evidence of
the making of a disputed oral confession is
the only, or substantially the only, evidence
against an accused, include a further warning

to the jury pointing to the danger involved in

convicting upon the basis of that evidence
alone.

And later, at page 338, Your Honour had this to

say, speaking generally about the risk of

fabrication, at about point 3:

Savvas 4/8/92

If there is other substantial evidence against

the accused, his chances of successfully
resisting fabricated police evidence of an
alleged oral confession may be remote indeed
since the jury may well see any evidence of
his guilt as corroborating not only the
contents but the actual making of the

fabricated confession.

So that, Your Honours, it -

MASON CJ: But you have got to look at page 476.

MR HIDDEN:  Of McKinney?

MASON CJ:  Of McKinney. The critical statement is that

commencing at line 5.

MR HIDDEN:  Yes:

Thus, the jury should be informed that - - -

MASON CJ: And it goes down to the nature of the warning:

that they should give careful consideration as

to the dangers involved in convicting an

accused person in circumstances where the only

(or substantially the only) basis for finding

that guilt has been established beyond

reasonable doubt is a confessional statement

allegedly made whilst in police custody, the

making of which is not reliably corroborated. enunciated by this Court in the context of the case

MR HIDDEN:  Yes, Your Honour, and that was the rule

which it was called upon to decide. But,

Your Honours, in my submission - I appreciate I am

speaking to three of the Justices who had decided

the case - McKinney adopts in a broader way the

dicta of Mr Justice Deane in Carr.

MASON CJ:  I think it is very difficult to make that out

when all that the majority judgment does, in terms

of referring to Justice Deane's judgment in Carr,

is to say "along the lines".

MR HIDDEN:  Yes.

MASON CJ: And then you have this specific statement at

page 476.	I do not see how you can take it
further.

MR HIDDEN: Well, Your Honours, perhaps by returning to

page 475.

MASON CJ: Yes, and what can we find there?

Savvas	4/8/92
MR HIDDEN:	Your Honours point out that, at about point 3:

it is the want of reliable corroboration that

should attract the warning, rather than that

the statement is oral or, as was put in

argument in Carr, unsigned and uncorroborated.

Then in the next paragraph, Your Honours said:

In Carr, Deane J expressed his preference for a prima facie rule of practice, allowing

that a warning need not be given in

"extraordinary and special cases" where

something "unmistakably confirmed" the making

of the statement. However, once the question
of a warning is approached from the general
perspective of want of reliable corroboration

rather than from the more limited perspective

of the argument in Carr, it follows that what

is appropriate is a rule of practice of
general application whenever police evidence

of a confessional statement allegedly made by

an accused while in police custody is disputed
and its making is not reliably corroborated.

Now, Your Honours, it is my submission that the

judgment of the majority should properly be read as

saying that a warning is required in most cases,

indeed in all cases but exceptional ones, where

there is disputed confessional evidence. And of

course, part of the reason why a warning is

necessary when there is other evidence in the case

is the very matter which Your Honour Justice Deane

raised in Carr - the other evidence in the case may

give the confessional evidence a credibility which

it does not deserve.

Now, Your Honours, as far as the question of the prospective operation of the rule in McKinney

is concerned, it is clear that this Court said it

was a rule for the future and it is clear that this	Court declined to decide McKinney and Judge itself,
on the basis of that stated rule.

That matter was considered by Mr Justice Kirby

in his dissenting judgment at pages 153 to 160 of

the application book and, Your Honours, it needs

hardly be said that we could have no better

advocate. The question whether a rule of law may

be declared by an appellate court for the future

only is one which remains to be squarely considered

by this Court. Mr Justice Kirby referred to the

valuable article of my learned friend the

Solicitor-General in 63 ALJ at page 526 on

prospective overruling, which summarizes the

position very well. It would seem that nothing

Savvas 6 4/8/92

that has been said in this Court since, including

Bropho, takes the real question any further.

Of course, there is the separate question

whether a rule of practice can be declared for the

future and customarily, I suppose, they are. But

the point which arises here, Your Honours, and

which is developed by Mr Justice Kirby better than

we could, is really this: when one is speaking of

directions to juries, can one ever be speaking of a

rule of practice in that sense?

Connolly v Director of Public Prosecutions, to

which my learned friend refers in his summary, was

a classic case of a rule of practice. There the

House of Lords was concerned with a longstanding

practice of not joining in a murder indictment

other counts, and the House of Lords said, "Well,
the time for that rule is gone; you can do it in

the future" - clearly a matter relating to the

practice and procedure of the Court.

A real question arises, in our submission,

Your Honours, and perhaps one which this Court if

necessary ought to reconsider, whether a rule, if I

can use that word, as to how juries ought to be

directed in relation to evidence the dangers of

which have been perceived for years, and the

dangers of which were obvious in this case, can be

said to operate only in the future and cannot be

called upon by a Court of Criminal Appeal for
guidance in determining an appeal before it simply

because the case was decided before the appellate

court announced the rule.

DEANE J: But there are two issues that you are tying up

together there. Obviously the content of what is

,involved in a fair trial will vary from time to

time, for example in the 19th century it was a fair

trial even though an accused was not allowed to say

anything in his own defence.	It must be a matter
of social values which change and that, I think,

was the thinking underlying seeing this as a rule

of practice to be laid down in general terms for

the future. But nothing in McKinney said no

circumstances have arisen in the past in which the

particular case may have called for this sort of

direction.

MR HIDDEN: Certainly not.

DEANE J:  It was simply saying in future we have reached the

stage where, unless this sort of direction is

given, there will be a prima facie miscarriage of

justice.

Savvas	7	4/8/92
MR HIDDEN:	Yes, I appreciate that, Your Honour.	So that in

effect McKinney was recognizing the existing danger

and one which had been existing for quite some

time. Which brings me, I suppose, Your Honours, to

the secondary argument, which is closely related.

Your Honours, in the application book - - -

DEANE J:  But has anybody seen the decision in McKinney as

different, as laying down positively that the

McKinney type of direction should not be given

regardless of the circumstances?

MR HIDDEN:  No, Your Honour, the problem only arises - I

should say this, Your Honour. Trial courts now

accept invariably that a direction along the lines

of McKinney should be given.

McHUGH J: In every case of a disputed confession?

MR HIDDEN:  I think I can safely say that, Your Honour. I

do not know of a case which has been seen as

sufficiently acceptable not to justify the warning.

It needs hardly be said, Your Honour, that the warning is given with varying degrees of enthusiasm

and detail, but trial judges do set out to give

some sort of warning.

MASON CJ:	In every case of disputed confessions or only in cases of disputed confessions where basically that
is the substantial Crown case?
MR HIDDEN:	No, Your Honour. This is necessarily anecdotal

- may I just confer with my learned junior about

this. Your Honour, my learned junior's experience,

which involves a lot of trial work, is that

generally a direction along the lines of McKinney

is given even where the confessional evidence is

not the lynchpin of the Crown case.

DEANE J: But there are two directions in McKinney: one is

to point out the problems of an uncorroborated, in

the terms of making an uncorroborated confession in

custody, which one would think would be of general
application; the second obviously only applies when

the police evidence is substantially the only

evidence, and that is it would be dangerous to
convict.

MR HIDDEN:  As I apprehend it that is how it is being

applied, so that where the confessional evidence is
not the lynchpin of the Crown case the judge will
at least warn the jury to scrutinize the
confessional evidence carefully and hopefully, in

many cases, draw the jury's attention to the

particular weaknesses which ought to put them on

guard.

Savvas 4/8/92

Now, Your Honours, I should perhaps have said

this at the outset but we took the unusual course,

which I trust has Your Honours' approval, of filing

a supplementary summary of our - - -

MASON CJ: Yes, we have seen that.

MR HIDDEN:  Thank you, Your Honour. Which really brings me

to that aspect of the case, and that is this, that

whether or not the rule enunciated by this Court in

McKinney can be said to have a retrospective

operation and be called in aid by appellants dealt
with before it came into existence, on the law as
it stood, in our submission, the directions of the
learned trial judge were inadequate and the

majority of the Court of Criminal Appeal, with

respect, missed that point.

Mr Justice Kirby, at page 144 and following of

the application book, listed a number of aspects of
the confessional evidence which His Honour said

ought to have conveyed warning signals, ought to

have led one to be concerned about its reliability.

An argument to that effect was put, it would seem, Your Honours, in the course of the appeal and

dealt with by the majority at page 107 of the book,

and a submission that the verdict was unsafe

because of the absence of an appropriate warning in

any event was recorded by the majority but not

really dealt with, in our submission, Your Honours,

except for the fact that the majority went on, at

pages 107 to 108, to point out that there was the

evidence of the indemnified accomplice James so

that in this case the confessional evidence was not the lynchpin of the Crown case on these counts. Of course, Your Honours, that raises the very matter

which we have just been discussing.

Mr Justice Kirby, on the other hand,

Your Honours, having accepted, himself, that the

rule of practice enunciated by this Court in

McKinney could have no application to the

applicant's trial because it was proclaimed to be a

rule for the future, none the less said that as the

law then stood the jury were not adequately guided

as to the dangers of the confessional evidence and

for that reason the verdict was unsafe. Even if a

specific ground that a direction should have been

given could not be made out, none the less in the

absence of an appropriate warning the verdict was

unsafe.

As Your Honours will recall, the summing up on

this aspect is fully set out in the application

book commencing at page 95, the extracts from the

learned trial judge's summing up. In effect, the

Savvas 4/8/92

only warning to which His Honour sought to give the

weight of his judicial authority was one about

being careful of the demeanour of police witnesses

and how it is difficult from their demeanour to
determine their credibility. No other aspect of

the evidence received the weight of His Honour's

judicial authority.

Your Honours, in my submission, it was a case

calling for much stronger warnings and, in

particular, calling for a reference to the very

clear weaknesses in the evidence and calling for a

reference from them and a caution about them with

the weight of His Honour's authority. Your

Honours, if the majority of the Court of Criminal

Appeal failed to see that necessity, then maybe

this Court needs to explain again the general

requirements of warnings in any case or in any

trial where an aspect of the evidence raises a

matter of concern of which lawyers from their

experience are aware, but juries probably are not.

To that extent, Your Honours, I would submit

the situation is analogous to that dealt with by

this Court in Domican v Reg, 66 ALJR 285. Perhaps

I should hand copies up to Your Honours. Domican,

Your Honours may recall, was a case dealing with

identification evidence, and funnily enough a

question arose there as to whether the full weight
of the judge's directions about identification

evidence -

MASON CJ: Well, it does not help us much to go to Domican,

Mr Hidden.

MR HIDDEN:  No, Your Honours, except to say that at

pages 287 to 288 this Court explained, in relation

to identification evidence, the particular need of

the trial judge to identify the weaknesses in the case at hand and to give the weight of his or her

Your Honours, that just did not happen here. In judicial authority to warnings about it.	our submission, the case cried out for it and in
holding that the verdict was not unsafe in the
absence of that warning, the majority of the court,
in our submission, fell into error. The question
which then arises as to the adequacy of warnings
concerning confessional evidence is one of general importance upon which this Court ought pronounce.

Your Honours, there is, of course, the other

application dealing with sentence.

MASON CJ:  I was going to ask the Solicitor-General whether

he would prefer us to hear the applicant's argument

in Nicholson before we call upon him to reply in

this case.

Savvas	10	4/8/92
MR MASON:	Yes, I foresee there may well be more overlap than emerges at the moment.	I have no objection to

my friend putting his argument on the sentencing

point as well.	My friend in this case has a second
point.

MASON CJ: Yes. Mr Hidden.

MR HIDDEN:  I am sorry, do Your Honours wish me to proceed

with that now?

MASON CJ: Yes.

MR HIDDEN: Well, Your Honours, again, in effect, we could

add little to the dissenting judgment of His Honour

Justice Kirby, except perhaps to refer Your Honours to a little additional authority.

In the course of the judgment of the

majority - perhaps I should record, Your Honours,
the findings of fact upon which the learned

sentencing judge sentenced the applicant are

recorded at the application book at pages 22 to 26,

the specific findings of fact. The judgment of the

majority said that His Honour was not in error in having regard to those matters for the purpose of assessing the gravity of a conspiracy. At

pages 173 to 174, Mr Justice Gleeson, the Chief

Justice, referred to the legitimacy of taking into

account:

the overt acts of the conspiracy insofar as
they bear upon what has been described as "the

content and duration and reality of the

conspiracy" and indicate the degree of

criminality involved.

Now, Your Honours, that expression quoted there

comes from the Victorian decision of Reg v Kane,

(1975) VR 658. It is probably unnecessary to hand

it up to Your Honours, except to say that the

context in which the Full Court used that

expression was this, that was a case of conspiracy

to commit robbery on one occasion only where the

offenders were apprehended before the robbery could

be committed. All that was complained of was that

the learned sentencing judge, in sentencing the

appellant, had had regard not merely to the fact

that there had been an agreement to commit a

robbery, but to the matters involved in the
preparation there for, including proceeding in a

stolen vehicle to the premises and the possession

by one of them of a pistol.

Now, it was in that context only that the Full

Court in Victoria said it was proper to have regard to those matters to ascertain the content, duration

Savvas 11 4/8/92

and reality of a conspiracy. Well, Your Honours,

clearly so, and indeed, in most cases the objects

of a conspiracy can only be determined by evidence

of the overt acts. But that is a different matter

from saying that when one comes to sentence for

conspiracy one can take into account the acts which

in fact amount to the substantive offences said to

have been conspired.

Now, that is the complaint here, Your Honours, and the very significant distinction which

Mr Justice Kirby draws. Interestingly,

Your Honours, in Verrier v Director of Public

Prosecutions, (1967) 2 AC 195 - that case,

Your Honours might recall, dealt with the general

question whether sentence for conspiracy ought be

limited as a maximum to the sentence which the

substantive offence would carry. Verrier said
usually but not necessarily and Verrier itself was
a case where the House of Lords was of the view

that the sentence could exceed the maximum for the

specific offence.

Perhaps it is appropriate for Your Honours to

examine this passage, if we may. At page 222 of
the report, Lord Pearson, who gave the main

judgment, referred to some remarks of Lord Goddard,

the Chief Justice, in R v Morris, and there appears

an indented quotation towards the top of page 222.

In particular, towards the second half of that

quote from Lord Goddard:

Where the evidence showed that the only matter

in which the defendant had been concerned was

one definite offence, it would obviously be

wrong, by means of indicting him for

conspiracy, to impose on him a longer sentence

than he could have received if he had been

indicted merely for the substantive offence.

But in the present case the appellant has been

motor cars fitted so that this traffic can be	engaged in a traffic which obviously has been going on for many months; he has had four
carried on, and was smuggling on a very
extensive scale.

Now, a little later on, Lord Pearson said:

There was in the argument of this appeal some

criticism of the last part of the passage

cited above, on the ground that apparently

other offences, not proved and not desired to

be taken into account, were being allowed to

increase the sentence. I think the words used

do invite that criticism, but in substance it

was right to make an exception in that case,

because the conspiracy involved a combination

Savvas 12 4/8/92

of persons making elaborate preparations for

smuggling on a large scale and might well be
regarded as an offence different from, and

more serious than, the substantive offence of

merely smuggling in the particular watches

concerned.

Now, Your Honours, in Hoar in this Court this

question was not really considered and, in our

submission, it remains for the consideration of

this Court. But in short, Your Honours, our

submission is consistent with the view expressed by

Mr Justice Kirby. True it is that after a jury's

verdict the judge, in sentence, must assess the

gravity of the crime and sometimes that does

involve the sentencing judge making findings of

fact which are not inherent in the jury's verdict.

They may perhaps go to matters of aggravation. For

example, a jury's verdict of guilty of armed

robbery does not necessarily say whether the

witnesses who said the gun went off and was fired
into the ceiling should be believed; the judge has

to make his or her own decision about that to

determine whether it ought to be taken into account

on the question of sentence.

But that is a very different matter from a

judge sentencing for conspiracy taking into account

the evidence suggesting the commission of the very offences said to be the subject of the conspiracy.

That is a matter squarely raised by this

application and is a matter of general importance

in our submission. In particular, Your Honours, of

course, the whole sentencing process led

Mr Justice Kirby to return to the oft-repeated

words of this Court and others as to the

undesirability of charging conspiracy when the

evidence is capable of supporting the substantive

offences. Of course, in the context of sentence,
the undesirability of adopting the charge of

conspiracy where the evidence might have supported

know from the jury's verdict is that they have	substantive offences is the very fact that all you
found conspiracy. If you charge the substantive offences we might have known what the jury would
have made of those. In this case, we never will. The injustice is that -

MASON CJ:	I think we are seized of the point, Mr Hidden.
MR HIDDEN:	May it please the Court.

MASON CJ: Yes, Mr Green.

MR GREEN:  Your Honours, this matter was first in this Court

on 6 August last year and it did not proceed to

argument. On that day I handed up outlines of

Savvas 13 4/8/92

argument. Do Your Honours have those documents? I

have copies here if they are not there. They are

fairly important because they do enlarge on the

somewhat cryptic grounds and reasons that were set

out in the - - -

MASON CJ:  I have only got what is in the book. I have not

got any separate documents, nor have the other

members of the Court.

MR GREEN:  I have copies of the outline of argument and as I

say, Your Honours, they are of some importance

because they do refine and enlarge somewhat what

were set out as the grounds and reasons in the

application book, in particular the grounds that

are set out in paragraph 6 on page 3 of the outline

of argument, the grounds why, in our submission,

special leave ought to be given in this particular

case.

Your Honours, this application arises out of the applicant's conviction for inflicting grievous

bodily harm - it was a gaol bashing - and he - - -

MASON CJ: We are familiar with the circumstances. There is

no occasion to go through them.

MR GREEN:  Thank you, Your Honour. As Your Honours then

know, the evidence against him was all admissions,

admissions not only to police, of course, which is

largely the subject material of this application,

but also to a co-offender, Winefield, who gave

evidence against him.

Turning to the grounds for special leave, it

is our submission that special leave ought to be

granted in this case on the three grounds as set out. Firstly, that the Court of Criminal Appeal

made fundamental errors in its approach to the

appeal, and in particular I wish to take

Your Honours to that part of the judgment which we

that court's judgment.	say typifies or sets out the errors that appear in
They appear at page 23 of the judgment given by Mr Justice Lee of the New South Wales Court of
Criminal Appeal. His Honour, after citing the
cases of McVittie and Herdman - and I will return
to those at a later time - says this, beginning at
the middle of that page:

I am far from satisfied from a reading of the transcript that the evidence of Winefield

was so suspect that it could not be relied

upon as counsel contended and we of course

cannot appreciate the impression he might have

made upon the jury one way or another. Nor do

Savvas 14 4/8/92

I consider that the evidence given by the police must be regarded as so suspect as to

justify a view that the jury should have been

warned of the danger of convicting on that

evidence either alone or in combination of

Winefield's evidence. There was nothing in that evidence which of itself indicated

fabrication, and his Honour expressly drew the

jury's attention to the fact that the police

may tell lies.

I will refer a little later to what His Honour did

in fact say. We say of course that there was no

direction given at all. Returning to my point at

the moment, Your Honours, it is quite clear from

that part of the judgment that what His Honour was

doing was confusing what had been said - I am not

just talking about McKinney, but in Carr, in that

it is not, in our submission, appearing suspect or perceived unreliability that triggers the need for the warning that was asked for. It is the lack of course of reliable corroboration that the
confession was made.

There was, in the context of the evidence, in

our submission, plenty of elements or indications

of unreliability. Even on Mr Justice Lee's own

tests themselves, the evidence to the police, the

"verbal" was cryptic in the extreme. It contained

nothing, for instance, that the police would not
have already known and it was from a man who had

been taken unwillingly from the gaol. That was

accepted by His Honour after the voir dire

evidence - unwillingly from the gaol to the

interrogation at the police station; a man who had

sought legal assistance and was unable to get it.

Our point is that they are not the tests. The

court was clearly in error in applying those sets

of tests to found the basis for the giving of a

McKinney or Carr direction. That direction was

asked for at the trial. The Carr direction was

asked for by counsel and that application was

refused.

The second error is that there is no

requirement that police evidence be demonstrably

false before a warning can be given. That appears

in the judgment of Mr Justice Lee, the judgment of

the court. In McKinney of course, the words are "a
reasonable possibility" mentioned at page 477 of

the judgment, but even going back before McKinney,

because McKinney had not been decided of course

when this appeal came before the court, in Bromley

the words used are "potentially unreliable". Where

the evidence is potentially unreliable, then there

is need in those cases for a particular warning or

Savvas 15 4/8/92

a caution to the jury. Nothing as high as the

indications put on it by Mr Justice Lee appear in

any of the cases, in our submission, prior - and

including of course McKinney.

But more fundamentally, in our submission,

Your Honours, there was no judicial warning at all.

His Honour at page 22 in the judgment of the Court

of Criminal Appeal repeats the direction which

His Honour gave to the jury. It was not a judicial

direction because it was simply a summing up of

counsel for the Crown's address to the jury. What

His Honour said, as repeated in the judgment of the

Court of Criminal Appeal, was this:

"The Crown accepted, either in his final or his opening address, that you would need to examine the evidence of the policemen with

care. It is a regrettable fact, of which you

are aware, that some policemen sometimes tell

lies. That of course does not mean that these

policemen are necessarily or in fact doing so.

Just as you have to do with every witness who

comes before you in a case, you have to make

up your minds on the whole of the evidence

whether or not you are prepared to accept what

they told you. He does, however, put to you

that if the policemen were really trying to

make a false story against the accused, would

they not have tried to make it somewhat better

by adding a few more lines of detail to the

admission that they said had been made to

them?"

It is quite clear that that came in the context

that His Honour was summarizing the arguments of

each of the counsel and it was not a judgment given

the force and the blessing of his judicial weight,
of course. There is plenty of authority, and of

course the recent authority of Domican v Reg

indicates that that simply is not good enough. In

particular, in Domican on page 289, this Court
said: However, as we have already pointed out,

mere repetition of counsel's arguments is an

insufficient discharge of the trial judge's

duty to draw the jury's attention to any

weaknesses in the identification evidence.

There was plenty of, in our submission, New South

Wales authority prior to that. So that,

Your Honours, is our first ground, the errors that

appear in the judgment of the Court of Criminal

Appeal, in arguing that this is a case for the

granting of special leave.

Savvas 16 4/8/92

The next ground is set out on page 3 of my

outline. I do not intend to elaborate on that at

all. Our third ground is a matter that was taken

up in argument in the Savvas matter, and I do not

intend to canvass it all again in detail. However,

it is our submission that it is a matter of general

importance, that what we are submitting is a

confusion and a misstating of the rule in McKinney

in New South Wales is cleared up by this Court.

It is certainly my experience and it is our submission that any direction, any McKinney

direction, is in many cases in New South Wales

being excluded where the case involves confessional

evidence which is the only, or substantially the

only, evidence against a particular accused.	I
have read personally transcripts of evidence,
particularly in district court matters, of
exchanges between each counsel and trial judges
where this very point has been taken.

It is not simply a question, regrettably, of

perhaps the milder direction that a jury should

scrutinize or look with care on the evidence in

cases where there is other evidence indicating the

guilt of the accused, but it is often the case that

there is an outright refusal by judges to give any

form of direction whatsoever where there is other

evidence indicating the guilt of the accused in the

particular crime. In our submission, that is

unfortunate.

MASON CJ:  I suppose these cases are all going up to the

Court of Criminal Appeal, are they?

MR GREEN:  I do not know. They are perhaps a bit young,

Your Honour, at this stage. Perhaps we will see
them there. Certainly the ones I am dealing with

will be, yes. The question was raised in Savvas by

His Honour Mr Justice Gleeson at page 56 in the

Court of Criminal Appeal judgment.	I only have the
unpublished Court of Criminal Appeal judgment. It

is page 105 of the application book, where

His Honour Mr Justice Gleeson says at the top of

the page:

There may be room for debate as to how

the rule of practice established in McKinney
will operate in relation to a case such as the
present, where the alleged confession to the
police was not the only, or substantially the
only, basis for finding the appellant guilty

of the drug charges.

Indeed, in the Nicholson appeal at page 23 of our

application book, His Honour Mr Justice Lee cites

those cases of McVittie and Herdman. They are both

Savvas 17 4/8/92

cases where, amongst the reasons for judgment of

the court, there was this matter. There was other

evidence against the particular accused. In

McVittie, an unreported judgment of the Court of

Criminal Appeal of 28 May 1990, at page 5 of the

Wales says this:  judgment, His Honour the Chief Justice of New South

In my view, the directions which the

learned judge gave in relation to the matter

were adequate. His Honour directed the jury

in relation to the matter of onus of proof and

he canvassed in detail the competing

submissions of the Crown and the defence in

relation to the various issues in the case,

the principal of which was the disputed
confessional material.

As has already been mentioned, there was

a deal of material, apart from the
confessional material, in the case upon which
the Crown properly relied and it is not
correct to say that the Crown case depended
entirely upon the police evidence of oral

admissions.

In other words, in my submission, in the judgment

of the Nicholson appeal, Their Honours were at

least impliedly accepting the proposition that

where there was other evidence of the accused's
guilt, then there was no necessity in those cases
for the giving of any type of warning at all along

the lines of McKinney or Carr.

It is our submission that there is, in

Your Honour Mr Justice Deane's approach

particularly in Carr and, of course, as was

accepted in McKinney, room for the giving of a

McKinney direction in cases containing less severe terms in cases where there is other evidence,

albeit substantial evidence indicating the

accused's guilt.

MASON CJ:  We have been through that in the other case.

There is no occasion to take us to the authorities

again.

MR GREEN:  Your Honours, in our submission there is that,

shall we say, perhaps even a two-stage or a

two-step approach. It is important that this

Court, in our submission, point that out, clear

that matter up and ensure that McKinney is properly

applied.

MASON CJ:  I think you are repeating to us what was said in the other case, Mr Green.

Savvas 18 4/8/92

MR GREEN:  So just to summarize the grounds, Your Honours,

it is fundamentally the errors on which the Court

of Criminal Appeal base their rejection of the

applicant's appeal, and secondly, our concern that

this Court announces and ensures that McKinney is

applied to cases even in which the disputed
confessional evidence is not the only evidence

indicating the guilt of the accused. They are my

submissions.

MASON CJ: Thank you. Yes, Mr Solicitor?

MR MASON:  Your Honours, in the Savvas matter, the case

ultimately turned upon the refusal of leave to take

a point not taken at the trial - pages 106 and 107

of the application book. Whilst some of the
matters that have been debated here have obviously

influenced the Court in its consideration of the

matter, the fact remains that that is the actual

context of the way the point is raised in the

present case. That would suggest some difficulty

in making Savvas an appropriate vehicle for

debating the matters that are sought to be raised.

That is a point peculiar to the Savvas matter.

The second point, but which is common to both

Savvas and Nicholson, is that the McKinney

direction was not called for on the facts of either

case. In Savvas it was not called for because

there was substantial independent support for the

Crown case. That is referred to at pages 105 to

1-07 in the application book, and in particular the

acceptability adverted to both by the trial judge

who saw him and the Court of Criminal Appeal who
saw him of the Crown witness known as James.

Mr Justice Hunt's comments about him are referred to at pages 18 and 19 of the application book.

The same can be said in the Nicholson matter

because in that case, the Crown case turned in part

upon the disputed verbal confession made in police

custody, but also in substantial part upon the

confession made to the fellow prisoner, about which

there were appropriate directions given as to his

position as a co-accused and the need for the jury

to be satisfied that his evidence was appropriately

corroborated.

The third point, which again is common to

both, why special leave should be refused is that,

in our submission, McKinney was correct in
determining or holding that the rule of practice

there stated was one with prospective operation

only. In our submission, the contrary proposition,

whether it is based on constitutional or other

principles, has not been shown to be sufficiently

arguable to merit the granting of leave. It is a

Savvas 19 4/8/92

matter determined by this Court by the very finding

it made in McKinney, applied by this Court in

Bropho's case, and in my submission its correctness

has not been sufficiently disputed to merit

reagitation.

The fourth point - again I can deal, I hope,

with convenience to the Court with both cases together - turns upon the argument that there

should have been some direction that was more

tailored to the facts of the particular case. In

the Savvas application it is the complaint about

the refusal to give what is referred to as a Carr

warning. Much was said in each case about the

desire of the applicants to have the weight of the
judicial office thrown into the directions, a

factor which in our submission is not normally an

appropriate matter to be put into the balance in

determining whether a direction is correct or not.

The very point about the Carr direction is that it turns on the facts of the case, and that is

what the Court was saying before McKinney. The

applicants appear to be wanting to elevate that

into some general rule of principle contrary to the

prospectivity principle stated in McKinney. Their

attempt to do so ultimately turns upon the facts of
the particular case and they have not in any event

shown arguable error in the way the Court of

Criminal Appeal dealt with each matter.

MASON CJ:  Mr Solicitor, if it is convenient, we will

adjourn now and resume at 2 o'clock.

AT 1.03 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.04 PM: 

MASON CJ: Yes, Mr Solicitor?

MR MASON:  Your Honours, I was proceeding to deal - in fact

I think I had completed addressing, as it were, the fourth ground which is common to each of Savvas and

Nicholson, namely the complaint about the giving of

a warning tailored to the facts of the case. The

reason why in Nicholson there was no error shown in

the refusal to give what was described as a Carr

direction is really based on a number of factors.

Savvas 20 4/8/92

The material at pages 23 and 24 to which

attention has been drawn should not be seen, in my

submission, as in effect a full explanation for why

a Carr warning, or even a McKinney direction, may

be given in an appropriate case, but rather the

factors present in this particular case why the

onus upon the applicant to show error in the

refusal to give such a warning had not been made

out.

It is also material in Nicholson's case that

there was a direction at page 22 near the top of

the page. In our submission, what His Honour was

doing in that passage was saying, "The Crown has

accepted, and I am reminding you, that it is a

regrettable fact, of which you are aware, that some

policemen sometimes tell lies." That, one might

say, is a little bit in between Carr and McKinney,

but it was a further factor why, on the facts of

this particular case, no error was shown, in our submission, in the exercise of the discretion to

decline to give what has been described as a Carr

direction.

Dealing finally with the sentence aspect of

Savvas, we would submit that for the reasons given at pages 173 and 174 in the judgment of the Chief

Justice, Mr Justice Hunt was clearly correct or, to

put it more appropriately, this Court would not be

persuaded that he or the Court of Criminal Appeal

erred in the sentence approach. In this case, the Crown case on conspiracy was based upon overt acts

and those overt acts having been proved in this

case, it would have been to have - - -

McHUGH J: But that is the point, is it not? You do not

know which of them were proved from the jury's

point of view.

MR MASON:	Of course, that is a problem that could occur in the exercise of the sentencing power in a number of
cases.  Mr Justice Kirby, when he in effect was
saying that that is a reason why you cannot have
this principle, was really arguing a much broader
point, in our submission incorrectly arguing a much
broader point.  If the court has to go beyond what
is necessarily found by the verdict in order to
sentence properly, the test is that the court must
itself be satisfied beyond reasonable doubt of the
relevant facts.

In my submission, that was the way

Mr Justice Hunt approached it. The argument of the

applicant appears to be that even if those facts
are clearly established to the satisfaction of the

sentencing judge, he or she must disregard them

when one is dealing with a sentencing exercise in a

Savvas 21 4/8/92

conspiracy matter. In my submission, that would be

totally devoid of reality and is contrary to the

authorities, including the judgment of this Court

in Hoar's case which is referred to at the bottom

of 174 and the top of 175.

DEANE J:  Mr Solicitor, can I divert you for a moment on a

matter that just interests me. What is the

relationship in New South Wales between a sentence

of life imprisonment and a sentence such as this of

25 years' imprisonment? Is 25 years a lot worse

than life imprisonment?

MR MASON:  I think it has all changed now.

DEANE J: That is what I was asking you.

MR MASON:  There is now a procedure whereby life I think can

mean life, subject only to the exercise of any
prerogative power. This is under the Sentencing

Act.

DEANE J:  I see. So life now means life?

MR MASON: That is my understanding of it.

DEANE J: That answers my query, thank you.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Hidden?

MR HIDDEN:  Your Honours, just on that last point, yes, it

is the case in New South Wales now that life means

life, but virtually every offence which used carry
the indeterminate sentence has been amended to

provide for a maximum sentence of 25 years. In so

far, however, as the Commonwealth provision clearly

means the indeterminate life sentence, I think the experience of the New South Wales criminal justice

system where indeterminate life sentences were

concerned was that prisoners served a mean of about

11 and a half years before being released on a

licence. In reality - - -

McHUGH J:  That was my experience; 25 years ago it was my

understanding that there was some research done - -

MR HIDDEN:  That is strictly a mean figure, Your Honour. A

large number of prisoners, particularly convicted

of murder, would serve about 13 or 14 years in

practice before being considered for release on

licence or being released on licence.

Your Honours, just some short matters in reply

to some of the earlier submissions of my learned
friend. True it is, as my learned friend said, the

majority in respect of the McKinney direction point

Savvas 22 4/8/92

taken.

refused leave under rule 4 of the Criminal Appeal

The fact was, Your Honours, as appears from

pages 102 to 103 of the application book, a point

along the lines of McKinney was taken in respect of
the incitement to murder charge but was not taken

in terms in respect of two charges of which the

applicant was found guilty. So that in a sense,

the point was taken, Your Honours, although taken

in a rather limited way.

McHUGH J: Counsel foresaw the future effect of McKinney.

He applied for the direction where the confession was the sole evidence against the accused.

MR HIDDEN:  Yes, he just failed to foresee fully the effect

of McKinney, Your Honour. In so far as my learned

friend's submits that no direction in general terms

was called for because of the perceived strength of
the evidence of the man known as James, in a sense
this raises the very point which was being argued
before, Your Honours.

In addition to the matters which we had previously submitted as to the reasons why a

warning ought be given even when there is other

evidence in the Crown case, there is the additional

factor that of course other evidence in the Crown

case can provide the source of fabrication of a

convincing looking confession.

In any event, Your Honours, as far as the

weight of the evidence of James was concerned, the

majority of the court were of the view that in all

probability the jury accepted the evidence of James

and may not have given much weight to the evidence

of the police on the two charges of which he was

found guilty, given that they acquitted on the

incitement to murder charge.

However, Mr Justice Kirby at pages 129 to 131

of the book pointed out that there was another

explanation for that, and that is they may have

accepted the confessional evidence but understood

that to be a confession to something less than an

incitement to murder. Indeed, the learned

sentencing judge himself seems to have taken that

view of the verdict, as is recorded by

Mr Justice Kirby in the passage to which I have referred. Those are the only matters, if the Court

pleases.

MASON CJ: Yes, Mr Green?

Savvas 23 4/8/92

MR GREEN:  Your Honour, perhaps not strictly in reply, may I

add just one final submission in relation to the

question that was argued by both applicants. That

is the question of the direction to be given when

there is other evidence besides the disputed oral

confessions against the accused. Your Honour the
Chief Justice referred to what is said

unequivocally on page 476 of McKinney but there is

also, in our submission, what appears on page 475

in the middle of that page, where it was stated:

it follows that what is appropriate is a rule

of practice of general application whenever police evidence of a confessional statement

allegedly made by an accused while in police

custody is disputed and its making is not

reliably corroborated.

What is said on page 474, that the rule of practice

to be adopted is along the lines suggested by

Your Honour Mr Justice Deane, allows us, in our

submission, firmly to rely on what Mr Justice Deane

said, in our submission, unequivocally on page 335 of Carr in the middle of that page. That sets out

what I might loosely describe as a two-stage

approach. Your Honour says:

For my part, I would go further and recognize

a prima facie requirement that such specific

directions be given in any case where the

prosecution relies upon police evidence of disputed oral admissions •.... In addition -

Then Your Honour Mr Justice Deane sets out what I

would consider the stricter terms of the required
direction where the disputed verbal evidence is the
only evidence against the accused. Those
propositions, in my submission, are unequivocal and

they are not being accepted unreservedly in courts

in New South Wales, and in our submission that is

undesirable and not the law as set out in Carr and
sanctified in McKinney.	They are the only
submissions.

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

adjournment in order to consider the course it will

take in these matters.

AT 2.15 PM SHORT ADJOURNMENT

Savvas 24 4/8/92

UPON RESUMING AT 2.21 PM:

MASON CJ:  The ground of the application for special leave

to appeal in Savvas so far as it relates to

conviction is that the trial judge's directions, given before this Court's decision in McKinney v

The Queen were inadequate. The adequacy of the

directions turns very much on the facts of the

particular case and does not in the view of the

Court .give rise to any question of general

principle. We are not persuaded that the

directions actually given gave rise to any

miscarriage of justice. The application for

special leave to appeal so far as it relates to

conviction is therefore refused.

On the other hand, there will be a grant of

special leave to appeal in relation to sentence.

The Nicholson case, like the application for special leave to appeal against conviction in

Savvas, turns very much on its own facts and does

not in the view of the Court give rise to a special

leave point.

The application is therefore refused.

AT 2.23 PM THE MATTER WAS ADJOURNED SINE DIE

Savvas 25 4/8/92